Broken Doll (13 page)

To comply with the mandate of the Fourth Amendment particularity clause, a search warrant must be sufficiently definite so that the officer executing the warrant can identify the property sought with reasonable certainty. Thus, search warrants are to be tested and interpreted in a commonsense, practical manner, rather than in a hypertechnical sense. In general, the degree of specificity required varies according to the circumstances and the type of items involved. A description is valid if it is as specific as the circumstances and the nature of the activity or crime under investigation permits.

The fact that a warrant lists generic classifications does not necessarily result in an impermissibly broad warrant. The scope of the search warrant Detective Herndon sought was based on the following language in the affidavit: “If Roxanne was removed from her residence by use of the van, there would be trace evidence from the victim in the van.”

Trace evidence means “small items of a foreign material left on another of which there are many possible types.” This includes hairs, fibers, and other such items. Due to the inherent size and multiplicity of kinds of trace evidence, their prior identification in a warrant is impossible.

“It therefore appears,” ruled the court, “that the April 3, 1995, search warrant was not impermissibly broad, as it limited the search to trace evidence in Clark's van of Roxanne Doll. Merely because the search for trace evidence involved the search of many items in the van for trace evidence, including parts of the walls and floors of the vehicle, does not therefore make the search a ‘general, exploratory rummaging in a person's belongings' prohibited by the Fourth Amendment.”

“They seized the van without a warrant,” said Clark's attorneys. Seth Fine responded, “A motor vehicle may be impounded if there is probable cause to believe that it was used in the commission of a felony.”

Clark's argument that the police lacked probable cause to impound his van was based on the same argument used in asserting that Judge Fisher lacked probable cause to impound the vehicle based on the evidence linking Clark to Roxanne's abduction. This was the same evidence that allowed Judge Fisher to issue a search warrant for the van hours after it was impounded.

The van remained impounded behind a chain link fence in Everett, and Clark continued to be held without bail in the Snohomish County Jail. In theory, Clark's battered van could remain parked in that same spot until it rusted into dust—vehicular death by natural causes. Richard Clark, however, faced a more dire threat. If the Snohomish County prosecutor successfully sought the death penalty, Clark could be executed.

 

 

 

After serious consultation and consideration, the Snohomish County Prosecutor's Office decided to pursue the ultimate penalty for Richard Clark—the sentence of death.

When seeking the death penalty, the state is required by law to serve notice upon the defendant and his attorney within thirty days. Neither Clark nor his attorneys, however, personally received this notification until after the time was up. Instead, the state left the notice in the designated box in a restricted area in the prosecutor's office, and the public defender's staff retrieved it, took it to the public defender's office, stamped it received, and left it in the appropriate attorney's mailbox.

The notice was delivered to the defendant's attorney in the same manner as every other motion served for several years—a method possibly at odds with the law.

Defense attorney William Jaquette did receive a telephone call from a Snohomish County deputy prosecutor advising him that a death penalty notice would be filed regarding Richard M. Clark on January 19, and the notice was filed in the Snohomish County Superior Court on that date.

That same day, pursuant to an agreement between the public defender's office and the prosecutor's office, the notice was left in the public defender's office box in the prosecutor's office with a cover memorandum. The death penalty notice and memorandum were picked up by a public defender's office staff person and carried to that office where they were stamped “Received Sep 20 1995 Sno. Co. Public Defender.”

It was a simple system, and one that had been in use for twelve years. “The offices of the prosecuting attorney and the public defender have an agreement for transferring correspondence and other papers,” explained Snohomish Country Superior Court judge Richard Thorpe. “Twice each day, a nonattorney staff person of the public defender's office delivers its correspondence and other papers for the prosecuting attorney to the prosecutor's office,” Thorpe said, “and retrieves the correspondence and other papers from the prosecuting attorney for the public defender from a box within the prosecutor's office.”

The public defender staff picked up and dropped off papers at the prosecutor's office as part of the courthouse run, each day at 9:00
A.M.
and 3:00
P.M.
The two offices never adopted a special protocol for service of papers in cases involving the death penalty.

The state sought personally to serve the notice on Jaquette on September 29, 1995. Jaquette filed a pretrial motion objecting to what he regarded as an illegal notification of the state's intent to seek the death penalty because neither his client nor he was personally served notification as required by law. After examining the arguments, Judge Richard Thorpe of the Snohomish County Superior Court ruled in favor of the defense.

The trial court concluded the notice was not timely served under the statute because personal service was necessary, and struck the notice, directing the case to “proceed without the possibility of the death penalty.”

Seth Fine, assistant chief criminal deputy prosecutor, whose experience included more than sixty cases argued in the Washington State Supreme Court, requested that august body to consider reviewing, and hopefully overturning, Thorpe's decision.

Whether or not the state supreme court would consider the matter was unknown. Hence, everything continued toward trial—a trial the defense wanted moved out of Snohomish County.

 

Between Christmas and New Year's Day, the court held the initial hearing on the defense's request for a change of venue. At that time, the defense introduced exhibits containing articles from the
Everett Herald,
the
Seattle Times,
the
Seattle Post-Intelligencer,
and videotapes and logs of the coverage from KOMO, KING, and KIRO television, and two circulars used to alert the public when Roxanne Doll was missing.

This media attention, which also included KSTW television in Tacoma, began during the period when Roxanne was missing. Featuring extensive coverage of the massive efforts of the police and volunteers to find her, it also embraced the funeral and memorial services held for the young victim, and the Snohomish County prosecutor's announcement that he would seek the death penalty. In particular, counsel noted that the publicity was calculated to appeal to the emotions.

“Articles focused on the concern of Roxanne's family and friends of the family,” recalled attorney Suzanne Lee Elliott. “Counsel cited, as an example, an interview with a coworker of Roxanne's mother, Gail Doll-Iffrig. The coworker stated that she tried to do her crying away from the family because she had to be strong for them. The friend's eleven-year-old son had, according to the news coverage, canceled his birthday party and instead helped spread flyers about Roxanne's disappearance.”

Another article described a second-grade girl who was unable to sleep because of Roxanne's disappearance. These and other stories, defense attorneys insisted, were not only calculated to evoke emotional responses, but the stories also presented a great deal of information about Richard Clark and his past criminal record, including details that the defense would move to suppress at trial. “The case was even featured on
America's Most Wanted
,” noted Elliott.

“Strangely enough,” recalled Detective Herndon, “I didn't watch that episode of
America's Most Wanted
. In fact, I was also on another episode and I didn't watch that either. I try to keep my work life and home life separate—or maybe that type of show just doesn't interest me after doing it all day long.”

The court denied the motion for a change of venue, giving two reasons for the ruling: the lapse of time between the news coverage and the actual trial, and the great care that would be exercised in jury selection—care that would assure Clark a fair trial with the presumption of innocence.

“The publicity surrounding the case was not inflammatory,” insisted deputy prosecutor Ron Doersch. “For the most part, the publicity had to do with the facts of the case. It was the crime that generated public reaction.” The media coverage discussed the impact of the crime on the victim's family, he noted. “Is it really inflammatory to report that a murder victim had a family who loved her and will miss her? These are things likely to cross the mind of any thoughtful person upon hearing of such a death. There is nothing inflammatory about reporting them.

“All of the allegedly emotional reporting was done in April 1995,” Doersch said. “Since that time, the news articles have focused on court proceedings. Until we attempt to empanel a jury, we cannot know what the jurors' familiarity with the case is, nor its effect on them. The fact that some of the jurors have knowledge of the case is irrelevant. The correct analysis is whether they have such fixed opinions that they cannot act impartially.”

 

 

 

The trial of Richard Clark, scheduled to begin in February, was brought to a halt. The Washington State Supreme Court announced that it would review Judge Thorpe's ruling that blocked prosecutors from seeking the death penalty for Richard Clark if he was convicted of murdering Roxanne Doll.

“This decision indefinitely stays Clark's trial,” deputy prosecutor Seth Fine told Judge Thorpe. “My guess is that we are looking at a year's delay in the trial.”

“A full year?” Judge Thorpe was mildly surprised and openly disappointed. “Can they be convinced to review the case more quickly? Have they ever attempted to expedite things besides Seahawks' issues,” chided Thorpe, referring to the Seattle Seahawks football team.

“Yes,” Fine said, “but the supreme court follows a deliberate process for reviewing death penalty issues. It likely will take nine to twelve months.” Fine was only off by three months.

Arguing before the state supreme court, Seth Fine accused the defense lawyers of engaging in a procedural game. “There is no dispute that notice was actually received,” he said. “The real issue is whether or not the notice was served in an effective manner.”

The law does not specify how notice must be served. “This is a classic case of rigid compliance with the requirement,” said Fine. “The word ‘service' can mean twenty different things.

“For twelve years, a messenger service between the prosecutor's office and the public defender's office functioned regularly without any problems,” noted Fine. State supreme court justice Charles Johnson asked Fine if mailing or faxing the notice would be okay.

“That is an unlikely scenario,” Fine responded, “because capital-case defendants are usually in jail, so mailing documents to their house wouldn't be appropriate.”

Justice Richard Guy noted that in some counties defendants are called into open court and served with written notice at that time. William Jaquette, Clark's defense attorney, pointed out that this was exactly the procedure most recently utilized in the death penalty case of Charles Finch in Snohomish County.

Charles Ben Finch, eventually convicted of a double homicide, was notified of the prosecution's intent to seek the death penalty in open court. “There is no ambiguity here,” asserted Jaquette, “when the law is unclear, legal precedence holds that documents must be delivered personally to defense lawyers or their clients. This is not a matter of convenience,” Jaquette said. “The state should do what is required because of the severity of the issue. Let's do the right thing.”

The state supreme court, never one to deliberate in a heated rush, delivered its verdict within 240 days. On August 8, 1996, the question of Richard Clark facing the death penalty was finally resolved.

 

 

 

The state supreme court gave more than a decision; it gave pointed commentary. “This was a close case, and needlessly so. We will not condone sloppy practice,” the decision stated, and reprimanded the prosecution. “The State can easily avoid all the issues discussed in this opinion by the simple expedient, for instance, of serving the statutory notice upon the defendant or counsel in open court, on the record. The State should be aware,” continued the supreme court, “. . . that anything less than a punctilious approach toward the filing and service of the statutory notice in a death penalty case is a risky practice. Especially when the ultimate penalty is involved, this Court's duty is to ensure the defendant receives every statutory protection the Legislature has provided.

“Clark's lawyer noted that the State did not physically bring the papers inside the Public Defender Office. But where the delivery was effected according to the method chosen and controlled by the Public Defender Office and the Public Defender Office assumed physical control of the notice before it even left the Prosecutor's office, it was a reliable method of service meeting the requirements.”

In other words, despite “sloppy” and/or “risky” practice, the notification was ruled valid—Richard Clark faced death. Clark asked for reconsideration, but the state supreme court denied it on November 1, 1996. The Snohomish County prosecutor, vindicated in the matter of delivery, was now free to pursue execution.

 

 

 

The defense team again asked for a change of venue; the court again denied the motion. Final jury selection would begin within thirty days, but not before the defense and prosecution would skirmish over another important issue—potential surprise evidence.

“We had the strong suspicion that the defense had Mr. Clark examined by mental-health professionals while he was in jail,” recalled deputy prosecutor Fine. “The defense stated ‘the defendant has not pled insanity or has he asserted any other mental defense for the trial phase of these proceedings'. They didn't say anything about the mitigation phase. The only way to know that for sure if the defense had Mr. Clark examined or tested by psychiatrists and/or psychologists was to find out who visited him while he was in the Snohomish County Jail. The legal question was simply this: does the Snohomish County Prosecutor's Office, as a criminal justice agency, have access to jail visitation records?”

Richard Clark's defense attorneys, Bill Jaquette and Errol Scott, argued that such jail visitation records were the equivalent of “private paper and affairs.”

Deputy prosecutor Ronald Doersch responded that jail records were kept confidential and only made available to “criminal justice agencies.”

Any criminal justice agency, including the Prosecutor's Office, has full rights to jail visitation records. There is nothing secretive nor private about such visits. In fact, as these visits take place in clear and unobstructed view, anyone from a correctional officer to an inmate trustee could easily observe what person or persons visited a particular defendant. Doersch, in addressing the court, portrayed the defense's position as one designed to ensure that the defense expert witnesses could conduct comprehensive psychological examinations of Richard Clark, keep the results of such examinations and evaulations secret, and thereby prevent the state from being able to rebut the defense experts' testimony.

The state requested that its own expert, pretrial, evaluate the defendant and that the results be sealed. Only if the defendant introduced psychological mitigating evidence in the penalty phase would the state have grounds to obtain both the defendant's psychological evaluations and the sealed examinations by the state's expert.

“When a defendant delays in disclosing his penalty phase psychological evaluations and witnesses until after the jury finds the defendant guilty,” said Doersch, “the state is severely prejudiced.

“The state is unable to rebut such expert testimony. Therefore, the state requests that its own expert, pretrial, evaluate the defendant and that the results and reports of the examination be sealed. If the defendant introduces mitigating psychological evidence at the penalty phase, the state would then gain access to the sealed evaluation and thereby have the ability to present rebuttal expert testimony. When a defendant raises his mental condition as a mitigating factor, the state is entitled to a fair opportunity to refute that claim. The state's request is designed to ensure that the jury is presented with comprehensive mental examinations conducted by experts chosen by both parties.”

With access granted to Snohomish County Jail records, the state saw that the defendant was visited by at least two psychologists, noted Ron Doersch—Wendy Marlowe, Ph.D., and Natalie Novick. “Ms. Marlowe is a neuropsychologist who contacted the defendant for a professional visit on January 21, 1997. Ms. Novick is a psychologist who contacted the defendant on January 3, 1997. There may have been another psychological interview of the defendant on January 23, 1997, by a third psychologist.”

The state believed that the defense consulted these witnesses for expert testimony in the penalty phase of the trial. The rules of discovery were designed to enhance the search for truth, and the process always has been considered a two-way street with the court acting as traffic controller. The goal was to ensure a fair trial.

The defense first refused the state's request for any of the psychologists' reports on Clark, and the prosecutor's office wanted the court to compel the production to the expert findings and/or notes of Novick and Marlowe.

The State wanted copies of all psychological reports and evaluations, regardless of whether or not the defense intended to endorse the psychologists as witnesses. In deputy prosecutor Jo Vanderlee's view, the defense would most likely call the psychologists as witnesses to testify regarding the defendant's neurological functioning in general and on the day of the alleged crimes in particular. With less than two weeks until trial, Vanderlee entreated the court to compel disclosure of the reports no later than February 18, 1997.

“She was really ticked off,” recalled Tim Iffrig. “After all, if the jury was gonna hear a bunch of psychological stuff, they should get the opinions of experts from both sides. I mean, I don't think you can have the defense keep secrets and pull out something at the last minute that the prosecution isn't prepared for. That wouldn't make sense. Of course, there were lots of things that didn't make sense anyway, like all the stupid-ass demands Clark tried to make about media coverage of the trial.”

 

 

 

Richard Clark, via his court-appointed defender, supplied the court with a laundry list of requests, entreaties, and motions. Under the heading of “Conduct of Trial,” Clark requested multiple restrictions on media coverage. Everett's newspaper, the
Herald
, immediately filed objections with the court.

“Of the nine requests the defendant enumerates in his motion, The Herald objects to Nos. 2, 3, and 4,” wrote the
Herald
's legal counsel. “The defendant's requests seek to prevent the press from questioning and photographing the defendant outside the courtroom, a limitation that goes beyond the state's rules for limiting press access to criminal proceedings and impermissibly restricts federal and state constitutional rights. Accordingly, these requests should be denied.”