“Bits ‘n Pieces of Me: Memoirs to retain identity in the face of growing dementia” — unpublished page Part 2D5:
What is justice? It is the just treatment, the deserved reward or punishment, and the exercise of power and authority to maintain what is just and right. This justice does not exist in our legal system today; the criminal has many rights and the victim has few, as I discovered during the retrial of the man who shot my 21-year-old brother, Spencer.
In March of 1983 this man was found guilty of manslaughter. He had been tried for murder, but a superior court decision must be unanimous and two jurors thought him “too nice for murder”. While the judge was giving him a sentence of five years he was signing papers for his first appeal — thus escaping jail time.
But, for the sake of justice, my sister was in a jail of her own making. At 23 years old she was a witness and the conviction was under appeal, so until a decision was reached she could not have conversations concerning the events of that night. This prevented a beginning of the healing process.
In 1985 she brought me the news; due to an error of jury instruction the verdict was overturned. “Double-jeopardy” was the only legal effect of the first trial; the defendant couldn’t be charged with murder again because manslaughter was what he had been convicted of.
The prosecuting attorney informed us of our family’s rights. Since most of us were not witnesses, we still had the citizen’s right to observe the court case. But we only kept that right if we were quiet, still, and showed NO RESPONSE to the proceedings. He admitted that it wasn’t fair because the defendant doesn’t have those restrictions, but he said, “most of the rights go to the defendant, that’s the way the law reads.” We were warned that this defense attorney was noted for tactics attempting to force response from the victim’s family; he could then have the family removed from the courtroom, and he would also have grounds for another trial, if the current one went unfavorably for his client.
The retrial was held in October of 1988, six years after the shooting. It lasted about ten days, and it was pure hell. Within ten minutes after the jury was selected, we had a taste of the tactics to be served; the court case began with an attack on our family. The defense attorney stalked across the room to where we were seated, pointed his finger at us and accused us of being present in the courtroom! (Which, of course we were. My sister was the only one receiving a subpoena and so restricted from the courtroom.)
The jury was then dismissed “to prevent them being influenced,” and the defense attorney explained that he was now putting my grandmother under a subpoena. With wide eyes and teeth chattering, she left the courtroom. But Mom and I remained. Careful to show no fear at the sudden power of this man, we sat down and awaited the next tactic of the battle.
As the week crawled on, any time the case was at a particularly sensitive point, the defense attorney came over and spoke from right in front of us. Sometimes, as he made his point, he glared at us and pounded his fist on the wooden banister.
To combat this I developed a litany: “… Control … Stay perfectly still and school your face to silence. Control those shoulders that try to back away from his assault. Remember, even a facial expression is ground for an appeal. Reach for control and hold it tight. … Control …”.
Then, one day the attorney brought bags with him. All those years Spencer’s hat, boots, and other personal items had been held for evidence. Now they were taken out of the bags. There was no mistaking those boots, they were my brother’s and they had meant a lot to him. Through multiple summers of working livestock he felt that he had earned the right to wear both them and a cowboy hat, and had requested being buried in them. The hat was what hurt most. I remembered the countless times I saw him take it off while entering the house, setting it right there by the door, to put on when leaving.
One of the first things I learned as a child was to never touch a man’s hat without his permission, and to never say anything bad about it or mistreat it in any way. Now the defense attorney held Spencer’s hat, talked about it, set it carefully back into the bag, and then leaned his elbow into it.
“… Control … No tears. Don’t let it register whose hat they are talking about. That’s not Spence’s brain and skull scattered on the map, it’s merely marks on a paper. … Control … Emotions don’t exist, only control …”.
But my control broke; when he punched his elbow into my brother’s hat, tears rolled down my expressionless face. With shaking fingers I tried to write a note for the prosecuting attorney (who hadn’t been raised around cattle and cowboys, so wouldn’t know their standards of conduct). Then reality hit me. The defense attorney began relating to the jury those very standards; he called it “the mystique of a cowboy hat”; he knew exactly what he was doing!
And I could do nothing …
… I had no power; … no rights.
Update: This time the man was found “not guilty”;
the evidence was no longer available.
Washington state tax payers paid all legal fees.