The Last Time We Saw Her

by Robert Scott

  At least in one regard, Haroldson got exactly what he was looking for. In an e-mail statement about Joel Courtney, New Mexico governor Bill Richardson wrote, Now that justice has been served here, the State of New Mexico will do everything in its power to see that justice is served in Oregon. We will process this extradition as quickly as possible to help bring peace to the Wilberger family.

  The phrase “as quickly as possible” was appropriate in light of Joel Courtney’s determination to fight the extradition to Oregon. In February 2008, Courtney was in a courtroom in Santa Fe facing a different prosecutor because he had been moved to a penitentiary in Santa Fe County after having pled guilty in the Natalie Kirov case. By now, Joel Courtney’s court-appointed attorney was Stephen Aarons, a lawyer with a lot of experience handling difficult cases.

  On Courtney’s behalf, Aarons noted that an original attempt had been made in 2006 to extradite Joel to Oregon, and it had been quashed. Aarons now looked into whether a second extradition attempt violated Courtney’s legal rights. Another challenge by Aarons was about the green van that police had seized, stating that Courtney did not own that van, and another person could have used it to kidnap Brooke Wilberger.

  One person not surprised at all by Joel Courtney’s intransigence in being brought back to Oregon was Benton County DA John Haroldson. He told reporters, “These events certainly do not signal any change in Courtney’s approach we’ve seen to this point. I will support the process of getting him back up here as soon as possible, even if that means going down there for any reason whatsoever.”

  Finally in April 2008, John Haroldson and Oregon got the news they had been waiting for, for so long. After looking into possible legal avenues of staying the extradition, Stephen Aarons apparently didn’t find any, and he did not challenge it. Haroldson said of this watershed event, “We will be in the process of arranging to bring Joel Courtney back to Oregon in the most secure and expedient manner. I anticipate that just as soon as he gets here, he will be scheduled for his court appearance.”

  New Mexico had a month to extradite Courtney to Oregon. So it almost seemed to be a conjurer’s trick, when less than a week later it was learned that Joel was in Corvallis, Oregon. As if by magic he was suddenly in a jail cell in Benton County, Oregon. Speaking of the dramatic turn of events, Benton County sheriff Diana Simpson told reporters that seven Benton County deputy sheriffs and one FBI agent escorted Courtney back to Oregon. Asked why it took so many law enforcement officers, she replied that it was because of the high-profile nature of the case.

  Simpson added that the officers had picked up Joel Courtney from the Central New Mexico Correctional Facility in Los Lunas, a town eighteen miles southwest of Albuquerque. Sheriff Simpson would not go into details about the mode of transportation in which Courtney had been brought to Oregon, except to say that federal law banned such prisoners from commercial flights. One thing Simpson did say was that the transference had taken from Sunday through Tuesday afternoon, which appeared to many to be an indication that Courtney might have been driven the one thousand miles from New Mexico to Corvallis, Oregon.

  With such big news about the extradition, both Sheriff Simpson and DA Haroldson held a news conference. Haroldson noted that at 11:30 A.M. on April 9, Courtney was scheduled to hear charges formally read against him. The interesting thing was, Courtney would not even be in a courtroom. Just as had happened to Aaron Evans earlier, Joel would listen to the charges as he sat in a jail cell, linked by audio and video to the courtroom. As to what kind of cell he was in, Sheriff Simpson would only state that Courtney was in a single-inmate cell in the Benton County Jail for his safety, and for the safety of others.

  Without Joel Courtney present at his arraignment, not even his court-appointed lawyers Steven Krasik and Steven Gorham entered a plea in his arraignment, so Judge Locke Williams entered a plea of “not guilty” for him. It was no surprise when DA Haroldson asked that Courtney be held without bail, and Judge Williams granted that request. Attending the short court hearing were five members of the Wilberger family.

  There was a whole host of charges against Joel Courtney in the Brooke Wilberger case—nineteen in all. They included aggravated murder, first-degree rape, and first-degree sexual abuse. The aggravated murder charge was, of course, the most serious. The document let it be known that the district attorney’s office was seeking the death penalty on that charge.

  Haroldson later explained to a Gazette-Times reporter about why there was a multiplicity of charges against Courtney. “You have various forms of homicide under Oregon law. Murder is defined as intentionally causing the death of another human being. Aggravated murder is murder plus other factors. You could have a murder committed in the course of a particular crime, murder to cover up evidence of a crime or to conceal that evidence in a place not likely to be found. You couldn’t just plead one count and have all these things included.”

  As far as Joel Courtney’s lawyers went, Steven Krasik had a long history of handling tough cases in Oregon, including death penalty cases. One of Krasik’s cases had been a death penalty case against Christian Longo, a man who was charged with killing his wife and three children, and dumping their bodies into the ocean near Waldport, Oregon.

  DA John Haroldson still wanted to keep much of the evidence against Joel Courtney secret, but his nemesis in this regard once again turned out to be KGW-TV. Right from the start, KGW had wrangled with the Benton County DA’s Office about the public’s right to know. Not getting any information about Courtney from Benton County, KGW turned to the recently released information on Courtney from the New Mexico court system. Once this was out, Haroldson decided to step forward and release a great deal of information in public records in Benton County. For the first time the press and public learned why Joel Courtney had become a suspect and about the path to his arrest in the kidnapping and murder of Brooke Wilberger.

  One new piece of information was that a bloodhound, handled by a U.S. Marshal, had tracked Brooke’s scent to the southwest corner of Twenty-sixth Street, then south to Southwest Philomath Boulevard, and east on Southwest Philomath Boulevard to the overpass, seven-tenths of a mile from the apartment complex. The bloodhound then lost track of the scent. This was all remarkable, since Brooke had probably been in the back of a van during all that distance.

  The public now learned as well that Joel had not returned to his in-laws’ residence in Portland until 10:00 P.M. on May 25, and he seemed to be stressed out. In fact, within a short period of time, he went to the hospital complaining of chest pains. He also told his sister-in-law a very strange story about being kidnapped and that he thought one of the kidnappers had killed a young blond woman.

  Two or three weeks after these incidents, Joel suddenly left the Portland area with the green minivan. He later gave his brother-in-law and sister-in-law two different explanations about why he had suddenly left. In one version Joel said that he’d been the victim of a kidnapping and was afraid the kidnappers might find him again. In the second version he said the police were after him, although he gave no reason why they were after him.

  The public learned that when a search warrant was executed on the van that Joel had been driving in May 2004, it contained DNA evidence that Brooke Wilberger had been inside that van. Blond hairs, white rope with one end tied like a noose, a gray duffel bag and floorboard mats containing blond hair—all contained trace evidence belonging to Brooke Wilberger.

  As to why DA Haroldson was now releasing all of this information that he had so stringently guarded up to that point, he said, “I had requested that the affidavit for a search warrant remain sealed until we were able to have a meaningful conversation with the defense. Once those documents were given to the media by the New Mexico court, they became public record, and I am bound by law to release them.”

  Commenting on all of this, Courtney’s defense lawyer Steven Krasik commented, “Haroldson has been absolutely straightforward and absolutely within the spirit of the legal req
uirements. But I’m concerned, as is Mr. Haroldson, about unverified information being related that may or may not be admissible in a trial. It can do nothing but taint the jury pool and might prevent a fair trial for Mr. Courtney or for the state.”

  Defense lawyers often speak of the right of their client to be tried in a court of law and not in the press and on televison. But in this case Krasik was correct in his assessment that the more people who read accounts about Joel Courtney or watched news reports about him on television, the harder it was going to be to empanel a jury once the case went to trial. There were sure to be plenty of people who did not want to serve on a death penalty case. As the pool of potential jurors grew smaller and smaller, the job for the defense and prosecution would become harder.

  Not that the news about Joel Courtney and Brooke Wilberger was going away anytime soon. The Gazette-Times wanted to know how hard it was going to be for the prosecution to get a death penalty conviction against Joel Courtney without Brooke Wilberger’s body. For that purpose they sent out reporter Bennett Hall to ask this question of prosecution and defense attorneys.

  Susan Rozelle, of the University of Oregon School of Law, told Hall, “It’s certainly harder if you don’t have a body, but not as hard as you might think.” There were murder cases all of the time in Oregon that were successfully prosecuted without a body being found. “All you need are enough facts that look suspicious enough that the jury is convinced beyond a reasonable doubt. There are a lot of definitions of reasonable doubt, but one thing they all agree on is that it doesn’t mean the foreclosure of any doubt at all.”

  In other words, a juror might have some doubt about certain “facts” the prosecution was giving them via testimony. However, if the juror believed the preponderance of the “facts,” then they could vote guilty.

  Prosecutor Josh Marquis had no body, nor even any physical evidence to work with, on a 1993 Deschutes County murder case he prosecuted. Marquis had a missing person, Carolann Payne, and a suspect, Joel Abbott. Marquis related, “We had suspected Abbott for some time. We wired up a friend of his with a body wire, and Mr. Abbott made some fairly incriminating statements.”

  In that case Marquis convinced the jury that Payne must be dead, because there was no evidence that she was still alive. There were no contacts by Payne to her friends or family, no financial transactions, and no sightings of her anywhere. Marquis added, “I did it by proving the negative.”

  Also weighing in on this issue was veteran prosecutor Norman Frink, of Multnomah County in Portland. Frink said that he’d prosecuted the disappearance of Tim Moreau, an employee of the Starry Night concert hall in Portland. Moreau had vanished in 1990. Ten years later, nightclub owner Larry Hurwitz pled no contest after another employee, George Castagnola, testified that he and Hurwitz had strangled Moreau to death to cover up a ticket-counterfeiting scam that Hurwitz had been part of.

  Other lawyers, however, told Bennett Hall that prosecutors faced an uphill battle in the Wilberger case because it was a death penalty case. Sam Kauffman, a defense attorney with the law firm of Garvey Schubert Barer in Portland, said, “The state has the burden of proving a person died.” The defense didn’t have to prove a person was still alive.

  Even Susan Rozelle said that the defense’s best argument in the Wilberger case was that Brooke was not dead. If she wasn’t dead Joel Courtney could not be prosecuted for her murder.

  In May 2008, two stories dominated the headlines around Corvallis. One was that it was now the fourth anniversary of Brooke Wilberger’s disappearance. The other headline was that in a short court appearance before Judge Locke Williams, both the prosecution and the defense were told by the judge that the trial was scheduled for February 2010. The Wilberger family, who was in the audience, looked momentarily stunned. They had waited so long for justice for their daughter, and now they learned that they would have to wait a year and a half longer. Even then, the February 2010 date was just a “place-holder” on the court calendar. It could even be later than that.

  Many of the local newspapers and television stations ran segments about Brooke, her family, and Joel Courtney. The Oregonian noted comments by Wilberger family spokesman Tom Sherry about the initial search for Brooke. “Everybody felt that everything that could be done was being done. The Wilbergers are an amazing family and remain committed to their religious faith and the principle of forgiveness. But the impact of Brooke’s disappearance will be felt again when the case goes to trial. It will dredge up the worst feelings.”

  And then in July 2008, there was a short article that appeared in the Salt Lake Tribune in Utah. It simply stated: Family of missing girl may support plea deal. The parents of Brooke Wilberger have signaled they would support a plea deal should the man accused of abducting and killing their daughter four years ago reveal the whereabouts of her remains. As soon as this short article appeared, any other mention of plea deals disappeared from the press.

  Of course, all of that depended upon Joel Courtney going along with a plea deal. So far, all of his actions had been ones of intransigence and contempt of the judicial system. He was still claiming he was innocent of all charges, and the chances of actually finding Brooke’s remains seemed as remote as ever.

  CHAPTER 22

  OUT OF THE PAST

  At least by the autumn of 2008, pretrial motions and hearings were moving ahead on the Brooke Wilberger case in Oregon. In September 2008, Joel Courtney’s attorney Steven Krasik let the judge know that he and Steven Gorham were wading through twenty-six thousand pages of discovery documents, with still more to come. Neither the prosecution nor defense had as yet received documents from the FBI.

  In November 2008, the issue of whether Joel would have to wear a stun belt while in court came up at a hearing. The judge had already ruled that Courtney could wear civilian clothes in court during trial. Steven Krasik, however, wanted to ensure that the jurors never saw Courtney wearing handcuffs, stomach chain, and restraints around his legs. Krasik told the judge, “It’s important the jury can’t see those shackles. Any kind of indication that he’s not innocent, especially with chains, would indicate to people that there’s some concern for this person.”

  Krasik added that Courtney had not been disruptive in any of his previous court hearings in Corvallis and that he didn’t need to be overly restrained. DA John Haroldson countered that this was a death penalty case, and shackles were a well-established fact in Oregon.

  There was a long hiatus in significant pretrial hearings until the spring of 2009. In March, DA Haroldson fought for a couple of issues on the case. The one case was, of course, the Brooke Wilberger disappearance and presumed murder. The other cases concerned the charges against Joel in the attempted kidnapping of the two OSU female students a few blocks away from where Brooke disappeared.

  Haroldson told the judge, “There was a common scheme and plan in all of these actions. The plan was the abduction and sexual abuse of a young female.” Haroldson wanted all three cases joined into one.

  Even more important, Haroldson wanted a lot of Joel Courtney’s previous history to be heard by jurors. The list included the details of the 1984 kidnapping and attempted rape of Sue McDonald, Joel’s failure to appear at a Lincoln County court on the morning of May 24, 2004, Joel’s drug and alcohol abuse, and the planned abduction of the other two female OSU students. The kidnapping and rape of Natalie Kirov in New Mexico was also part of the list.

  DA Haroldson knew that without Brooke’s body he was going to have to convince the jurors of Joel’s guilt by other means. And the best way of doing that was by adding one issue at a time until there was a pile of issues against Joel. Even Haroldson admitted that the bulk of the state’s case was subject to “OEC 404,” which basically cited that a defendant’s propensity to act in a certain way may be used for other purposes, including proof of motive, opportunity, intent, plan and preparation.

  A lot was riding on Judge Locke Williams’s decision to allow the matters that Haroldson want
ed to be presented to jurors. If Williams ruled against most of these, then Haroldson was going to have a very, very difficult time convincing the jurors that Joel Courtney had abducted and murdered Brooke Wilberger. All he had was circumstantial evidence, with very little physical evidence.

  And then in May 2009, Judge Williams heard some very powerful and detailed testimony. The testimony came from witnesses that DA Haroldson wanted the jurors to hear. If they were allowed to go on the stand during a trial, their testimony was going to be very damning against Joel Courtney.

  DA Haroldson was not taking on this important matter alone. In fact, he had called upon the services of veteran Benton County DDA prosecutor Karen Kemper to argue most of the proceedings before Judge Williams and to question witnesses as well. One of the first was the powerful story of Natalie Kirov, once again telling of her evening of terror at the hands of Joel Courtney.

  Even before matters got under way with Natalie, there were arguments between DA Haroldson and defense attorney Steven Gorham about the term “victim.” Haroldson said at one point, “I use the word ‘victim’ because there is an interest by the state to shield those victims’ names from any media exposure. I note there is a pool camera in the courtroom.”

  The defense didn’t have any objection to keeping the witnesses’ names out of the media, but Gorham added, “Concerning the term ‘victim,’ except for the individuals that Mr. Courtney has been convicted in relation to, we ask that the term not be used. Instead, we would like the term ‘witness’ used.”