CHAPTER 43  The End Game

On a cold February day in Deer Park, WA, a petty thief/burglar, Virgil Fusner in an unplanned opportunistic act of violence shot and killed an Irish/Native American Marine veteran. The victim was the grandson of an Irish Immigrant and a Cherokee woman from Oklahoma. The body was discovered by two teenage boys in the derelict apple orchard located on the outskirts of this suburban town.

The suspected motive for the killing was obscured by the fact that the victim was wearing a commemorative publicity T-shirt from a Benny and the Banshees concert. The chest of the T-shirt sported the grunge group’s logo, which was a Native American Mississippi Tribal Peace symbol inside of a red, white and blue circle. It bore a striking resemblance to a backwards swastika. After Virgil Fusner shot O’Brien, he calmly stood over the body and with a pocket knife traced the swastika logo on the victim’s chest as if performing a ritual sacrifice, which in a very real sense he was. When questioned Fusner said he had felt threatened when the victim was reaching in his cargo pants side pocket. Post mortem exam revealed the pocket contained a knife used for carving miniature totem poles for sale to tourists.

In the same time frame, an angry drunk Italian/American, Riago Restorini, son of Italian immigrants, became publicly involved with Edna Running Eagle, a Native American RN. Since she was the mother of Sean O’Brien and Randy Roadkill the two teenage sons with different fathers who discovered the body, she quickly became a very important part of the investigation. Restorini on the other hand, because of his confrontational behaviors and artistic endeavors on behalf of progressive politics and union thugs early on became the prime suspect in this killing. When questioned by the Police, he went into an extensive drunken rant declaring his religious background and his life-long commitment to his Roman Catholic faith. During interrogation, he confessed that he and the victim had engaged in a violent confrontation and a public disturbance about religion but denied that he had killed anybody. His legal ownership of what was determined to be the murder weapon cast serious doubt on his innocence.

Detective Inspector Ben Perrini of the Deer Park Police Department, in a well-intentioned search for the perpetrator runs up several blind alleys. Several dead-end clues, wild goose chases and a desperate search for connections that get him nowhere. With the help of Sean O’Brien and Randy Roadkill and some savvy technology he is able to identify and apprehend the real killer.

A serious review of this case and the facts exposed, point out that people of this century in this country and those who want to be, regardless of their supposed origins, need to understand and admit that the source of their national pride will be a mongrel mixture, at best. In Restorini, O’Brien and Fusner’s case it was an unbalanced mix of Religious dogmatism, Irish rebellious nature, and Native American stoicism.

This story may be regarded as an exploration of the process of Judeo-Christian radicalization and commitment to what the suspected perpetrator considered his fatwa. The author explores how in the first six years of a child’s life; a man born in a foreign country, transplanted in the United States and living a normal adult life, gave up secular clothing, donned a priest’s cassock and yarmulke, continued his use of tobacco, marijuana and alcohol, shaved his head and would have murdered someone if someone else hadn’t beat him to it while he slept off a drunk. He explained to the Police that his faith required him “to kill anyone who insults the Pope.”

As for the actual murder, it appears that this crime can be laid at the foot of what it means to be the product of a dysfunctional American family.

CHAPTER 42 – the penultimate trial

After several hours of question and answer attempts by Dibs Jackson to cloud the issue of felony murder on the third day of the trial, Judge Karl was faced with what looked like an unsolvable dilemma. Jackson had roped Riago Retorini in as a witness for the Defense. During a rigorous and inflammatory cross examination, DA Faiweather was unable to diffuse or contain the Italian’s militant religious defense of trying to protect the Pope as a motive for murder.

The circumstances had simply reversed the participant’s roles in the case.

Instead of Fusner being on trial for murder in the first degree, he was now suing the State for unlawful prosecution.

Friday, April 3, 2014

SUPERIOR COURT of Spokane County, Spokane, Washington

Criminal Action Number 2, VIRGIL FUSNER, Defendant. v.

Washington

The above-entitled action came on for a Jury Trial

before the HONORABLE Maximillian Karl, Associate Judge,

and a jury duly impaneled and sworn in Courtroom Number 319, commencing at approximately 9:46 a.m.

THIS TRANSCRIPT REPRESENTS THE PRODUCT OF AN OFFICIAL REPORTER, ENGAGED BY THE COURT, WHO HAS CERTIFIED THAT IT REPRESENTS THE RECORDS OF TESTIMONY AND PROCEEDINGS OF THE CASE AS RECORDED.

APPEARANCES: On behalf of the Government: Frank Fairweather, District Attorney

On behalf of the Defendant: Dibley Jackson, Court Appointee

The Clerk of the Court begins,

“The matter before the Court at this time is Virgil Fusner versus the State of Washington.

“Frank Fairweather on behalf of the State. Good morning, your Honor.”

“Good morning. Mr. Fairweather

“Good morning, your Honor. Dibley Jackson on behalf of Mr. Fusner.”

‘Good morning. Mr. Jackson and Mr. Fusner.

Dibs offered a squinting, “Good morning, your Honor.”

Fusner still unaccustomed to the court rigmarole and protocol, squeaks out a mumbled “morning.”

Mr. Fusner, when we adjourned yesterday you said that you wanted a new lawyer. I explained to you that if I give you a new lawyer, we would have to abort the trial and dismiss the jury.  I also explained to you that the State would be able to prosecute you again for these charges. You said you understood, but still wanted another lawyer. I also explained to you that it would more than likely, be held in abeyance until the other case is settled. And you said you understood that. I asked you to think about it overnight. Have you had an opportunity to think about that?

Not to be deterred, Fusner,

“Yes.”

“And is it your desire to have a new lawyer?”

Hearing and seeing an opening in the storm clouds

“Yes”.

“Let me say this came up in the context of Mr. Jackson approaching the bench and indicating that there was a conflict that had risen between he and Mr. Fusner”.

When I asked Mr.Fusner, he said there was, indeed, a conflict between he and Mr. Jackson. Mr. Jackson had asked to withdraw mid-trial and according to Mr.Fusner, there was a conflict as well between, Mr. Fairweather’s legal advice and Mr. Jackson’s legal advice. When I asked Mr.Fusner, when the Court found out near the end of the opening statement, which went on for over an hour, that as to whether or not, Mr. Jackson had ever tried a felony murder case before, Mr. Fusner replied that that was his discovery. Quite frankly, it was evident, in parts of the trial that Mr. Jackson who had purported to represent someone in a felony murder case had never tried such a case before and the District attorney, Mr. Fairweather, was complicit in this. It appeared to the Court that there were defense theories out there, but the defense lacked the ability to execute those tries. It was apparent to the Court that there was a not a good grasp of legal principle and legal procedure of what was admissible and what was not admissible, to the detriment of Mr. Fusner.

And had there been a conviction in this case, based on what I had seen so far, I would have granted a motion for a new trial under 23.110. 18. So I am going to grant Mr. Fusner’s request for new counsel. I believe it is a choice that he has knowingly and intelligently made and he understands that it’s a waiver of his rights. Alternatively, I would find that they are based on my observation of the conduct of the trial manifest necessity. I believe that the performance was below what any reasonable person could expect in a murder trial. So, I’m going to grant the motion for a new trial. And I must say that just this morning, as I said, when all else is going on in this courtroom, I received a motion from an investigator in this case who attached an e-mail in this case from Mr. Jackson to investigate a defense witness.  I, quite frankly, don’t know what to do with this because it contains an allegation by the investigator about what Mr. Jackson was asking investigator to do in this case. So that’s where we are. And I’ll fill out what to do about this case. But it just seems to me that based on my observations and as I said, not just the fact that defense counsel had not tried a felony case before, it was his first murder trial.

And I think, as I said, it became readily apparent that the performance was not up to par under any reasonable standard of competence under the Sixth Amendment. So, I’m going to grant the motion. We’ll set this over. Do you want to retain a lawyer, another lawyer or do you want me to appoint you another lawyer?

Fusner: “I don’t understand the question.”

Judge Karl: “If you cannot afford a lawyer, I will appoint you a lawyer.”

Fusner:  “Okay”.

Judge Karl: “There are some good, competent lawyers who have tried these cases before.”

Fusner: “Yeah. I would like you to do that.”

Judge Karl: “Okay. So, what I’m going to do is, I’m going to have you come back next Friday, and I’ll appoint a lawyer, and in meantime, they will get an opportunity to go over and see you at the jail.”

Fusner: “Okay.”

Judge Karl: “All right.”

Clerk of the Court: “That completes our matters before the Court, your Honor. May I be excused?”

Judge Karl: “Yes.”

Clerk: “Thank you.”

Judge Karl: “You might want to take a look at this pleading.”

Clerk: “I was going to ask, but I don’t know if I have what I need.”

Judge Karl: “Check with Mr. Fairweather and Mr. Jackson.”

Clerk: “May we have copies?”

Judge Karl: “I don’t know what to do with it. I don’t know whether you should see it or not.”

Clerk: “Okay. Well, I’ll accept your decision.”

Judge Karl: “I have an e-mail from you to the investigator, Mr. Jackson You may want to look at it as it raises ethical issues. That’s my only copy.”

Dibs Jackson: “Your Honor, I was just going to look at it and then bring it back. Is that something you wanted to discuss?”

Judge Karl: No. “But you might want to discuss it with someone else.”

Clerk: “Your Honor, was that filed in court?”

Judge Karl: “I don’t know. It was delivered to Judge Leibovitz this morning. She sent it over to me because this case was originally her case.”

(The proceedings adjourned at 9:55 a.m.)

 

CHAPTER 41

At 9:30 AM the next day, the Sheriff once more ushered Fusner in decked out in jailhouse restraints and orange coveralls. Taking his seat at the Defense table with Dibley Jackson, he was still trying to figure out how to avoid the whole damn thing.

As the trial resumed, Frank Fairweather’s strategy became very clear.  He simply submitted the forensics, ballistics and the weapon into evidence and sat down.

“Is that all you’ve got, Mr. Fairweather?” asked the Judge.

“Yes, Your Honor.  The Prosecution rests.”

With the verdict now up for grabs, Dibs Jackson was cocked and primed with all the dirt and dung he had been able to dig up on Perrini, O’Brien’s service record, the Native American Casino, the Italian workers at the brick yards, the bar in Clayton and of course his main witness to grill, Riago Restorini.

When all was said and done, Jackson had been able to paint a picture for the Jury. The picture though foggy and distorted was as clear as the sinking of the Titanic after being torpedoed by the Lusitania. With Restorini’s uncontrollable ranting on the stand about O’Brien’s sacrilegious remarks and the violent feelings they had provoked, it was obvious that regardless of evidence to the contrary, he certainly was capable of murdering O’Brien.

Dibley Jackson’s rambling reiteration of all this in his defense summary ended with,

“If the picture don’t fit, you must acquit.”

And with that memorable remark, it was time for Judge Karl’s instructions to the jury.

“As a member of this jury it was your responsibility to listen to all the testimony and evidence. Having now heard it, your job to be as fair and objective as possible in considering all of the facts of the case. Since the accused is being charged with felony murder with hate crime attachment, your decision must be unanimous, guilty or not guilty as charged. The Clerk will now take you to the Jury room to complete your deliberations. When you return the trial will resume.”

After two hours of boredom, the Clerk was confronted by the Jury Foreman.

“We aren’t even close to agreeing on anything. You need to let the Court know we are deadlocked.”

“Keep at it. Judge Karl is not known for his patience in this type of thing.”

After being sequestered for three days and nights in private rooms and a private dining room at the Davenport Hotel at tax payers’ expense, there was still no end to the stalemate. With the accommodations and amenities, they received while being billeted at the most prestigious place in town there was no incentive to compromise and resolve the issue.

As the jury members grew more comfortable, Judge Karl and the rest of the Court’s patience waned.

The third day of the trial had gone more or less in the right direction as far as Edna and the boys were able to understand.  As part of the defense’ final statement they had heard again about Perrini’s wild goose chase of Restorini into the Gonzaga University campus and the embarrassing results. Of course, they all thought that Sean and Randy’s discovery of the gun in the Humvee engine compartment would have gotten him back on the right track.

Listening to Ben Perrini’s rambling remarks on the stand for the prosecution sounded pretty good under the circumstances. He hadn’t said anything that could be tracked back to his thinking about Native American involvement.

Unable to deal with any further delay, Judge Karl yelled at the Clerk,

“Get that Jury back in here ASAP!”

As they file in, he orders the defendant,

“Virgil Fusner, stand.

“Mr. Foreman. Have you reached a verdict?”

“Your Honor, we have been unable to reach any kind of decision. The jury is split without being able to convince the opposition or arrive at a compromise.”

“OK, then. Here’s what we’re going to do. While this jury was vacationing on the County’s time, the defendant has made repeated requests to fire his legal representation. Under these circumstances, being unable to pass judgement at this time, I have decided to dismiss this Jury and reconvene when we have a better grasp of who is to be held accountable for this crime.”

“Jury you are dismissed. Remember, you are not to discuss this case with anyone.”

Banging the gavel,

“Courts adjourned.”

At this point Edna and the boys were still in the gallery, and the current direction of the Court proceedings was a mind-blower,  For three months, they had continued to think of themselves as being more than just interested bystanders. Edna said she could understand how Restorini could be a witness for the defense, but Sean and Randy were unable to grasp how the smoking gun they had found wasn’t aimed directly at Fusner.

How in the hell was Fusner able to get a new trial without getting himself convicted was beyond their idea of justice.  Little did they know or understand how the complex manipulation of evidentiary testimony could affect the truth. The complicated interplay of social relationships coupled with familial ties and racial hatred, mistrust and flat out lying were able to distort and alter the direction of whatever truths the court could have started out with or uncovered during the trial.

Be that as it was, for them at least the end was now in sight and no one on the reservation was being considered a suspect. After all that had always been their main concern from the beginning. Sean and Randy had survived the troublesome cultural assimilation at school and had Deer Park High School Graduation ahead. of them.

As they left the Courthouse, Edna gave the boys her verdict.

“I don’t think we’re going to be here for the next session of this circus.”

 

CHAPTER 40

At an initial arraignment, if the accused has no legal means of support the Court is obligated to appoint an attorney to represent the defense. Historically these appointees were chosen from a collection of hanging on bottom feeders in the murky barrel of the legal profession. A careful review of cases ending up for consideration in the United States Supreme Court reveals the dirty truth. That austere body known as the law of the land still hasn’t been able to agree on the issue of sentencing/punishment for the conviction of a capital crime. Both murder and rape are up for grabs each time a new case is heard.

Getting back to the appointees, they were either low pay or no pay, and very often had neither the litigation skills or experience to do an adequate job of representing the accused.

In Fusner’s case he got a well-known public defender named Dibley Jackson.

At the Spokane County Courthouse, Jackson was the go to guy for this sort of thing. He and Fairweather had kept the Courthouse humming and prospering for a couple of decades. Divorces, bankruptcies, torts of all sorts, civil and criminal cases to argue, mediate and settle in or out of court. Colonel Custer’s Little Big Horn fiasco had more serious results, but the Fairweather- Jackson productions kept the local media going with political fodder on a dependable basis.

Jackson was a born in the class product of the Manito Park neighborhood on the South Hill of Spokane.  As the only child of well to do parents, he attended public schools, graduated from Lewis and Clark High School, entered Gonzaga University and left with a JD.  After graduating and sliding past the Bar he spent two years trying to set up a private practice specializing in family law. During that same time, for all practical purposes he lost his eyesight to cataracts, glaucoma and macular degeneration. Faced with the prospect of having to move back in with his parents Dibs volunteered to serve the indigent and unserved as a court appointed Public Defender. With the help of a guide dog and the court reporter he was able to provide needed counsel to the needy, socially repressed and undesirable. Having found a perfect niche for a blind lawyer he became the perfect foil for the District Attorney’s team of budding prosecutors in the Superior Court proceedings of Spokane County.

Back in the Courtroom for the second day of the trial, Judge Karl resumed the action. Addressing the DA,

“Is the prosecution ready for  today’s business?”

“Yes, Your Honor.”

“Mr. Fairweather. You can begin your opening statement.”

“Your Honor, Ladies and Gentlemen of the jury, after a thorough review and consideration of the glaring facts and circumstances in this case provided to our office by CDI Perrini of the Deer Park Police Department, the accused, Virgil Fusner is being charged with aggravated murder in the first degree. We will provide testimony and additional evidence to show why this has been elevated to the level of a hate crime. The prosecution will prove beyond a shadow of doubt that he is the only person who could have committed the crime and that he did it without any outside assistance.”

“Call your first witness.”

“As the lead on this case, the prosecution calls CDI Inspector Ben Perrini as our first witness.”

Bailiff gets things going with,

“Please state your name for the court.”

“Ben Perrini, CDI, Deer Park Police Department”

“Detective Perrini do you swear to tell the truth and nothing but the truth, so help you God?”

“I do”

“Please tell the court in as few words as possible what evidence you have to support these charges.”

Faced with the impossible task of making a brief synopsis of the messy investigation, Perrini hit the high points and ended with,

“And now we have the murder weapon.”

With Ben Perrini on the stand, Jackson also found out about the aborted part of the investigation and the police wild goose chase pursuit of Restorini. He made a mental note thinking that maybe he could find a way to focus the jury’s attention on the Italian’s religious obsession and launch a legitimate Hail Mary or at least an end run around for a mistrial.

Having heard the charges read aloud yet again and after another superficial scan of the prosecution’s brief, the Judge proceeded with,

“Does the defense have anything to add at this time, Mr. Jackson?”

“Since this case has just fallen so to speak in our laps just a short time ago, your Honor, the defense requests this trial be postponed for 24 hours in order to be able to prepare an adequate defense.”

“After two dull days of selecting a jury and repetition of charges by Mr. Faiweather, this case is already costing the taxpayers more than it’s worth, but. . .  in consideration of your lack of visual acuity, the Court will honor your request. We are adjourned until 10:00 AM tomorrow.”

In a brain farting fog Fusner was reviewing his thinking in the orchard. Since all of the ‘ifs’ and “thens” clogging his brain and his ears hadn’t convinced him, why was still a mystery. He was quite sure he couldn’t remember giving the shooting that much thought.

 

CHAPTER 39

When Spring vacation in the Deer Park Schools conveniently coincided with the Superior Court calendar, Edna decided to take a week’s vacation so she and the boys could go to the trial. It would be a worthwhile extracurricular field trip added to their education.

What it did do was entertain more questions.

As they drove away from the Courthouse, Sean started out with,

“I get what murder is but what exactly is a hate crime?”

“Good question.” agreed Randy.

“Look it up when we get home.”, Edna’s avoiding answer.

“I wonder if all this daily crap we put up with at school is hate stuff. It probably isn’t a crime but it oughta be.”

The drive back to Wellpinit was filled with more small talk revolving around the trial and how it might turn out. Edna tried to referee but without much success. Each time she said anything the boys just yelled louder. Getting back home Sean and Randy raced for the family PC. Randy won and jammed in hate crime in the search box.

The computer coughed up,

RCW 9A.36.080   Malicious harassment—Definition and criminal penalty.

A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:

“Hey, Mom. What does perception mean?”

“That means what someone thinks is true of something or someone.”

“You mean if I think  Sean is a bum then that’s my “perception “ of him?

“Right, and I ‘m sure that’s his perception of you, too under the same circumstances.”

“Well, this thing goes on and on and on, without saying hate even once. What’s that about?”
Over Randy’s shoulder, Sean tries to explain.

“Look Bro, lawyers get paid by the word and politicians get paid on how much time they spend writing laws and arguing about what they write and judges get paid to decide who wins.”

“What do the losers get, Sean?”

“The short end of the stick, Randy. The whole thing just keeps repeating itself, so they’re  never out of work and still get paid.”

“Looking at this thing with all the ifs, thens and buts, somebody must be  making a bunch of money on this one.  Hell’s fire, they can’t even agree on what is what, who is who and why is why is important. Just look at all this crap.”

Randy printed out three copies and Edna and the boys struggled to make sense out of the RCW
(a) Causes physical injury to the victim or another person;

(b) Causes physical damage to or destruction of the property of the victim or another person; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.

(2) In any prosecution for malicious harassment, unless evidence exists which explains to the trier of fact’s satisfaction that the person did not intend to threaten the victim or victims, the trier of fact may infer that the person intended to threaten a specific victim or group of victims because of the person’s perception of the victim’s or victims’ race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap if the person commits one of the following acts:

(a) Burns a cross on property of a victim who is or whom the actor perceives to be of African American heritage; or

(b) Defaces property of a victim who is or whom the actor perceives to be of Jewish heritage by defacing the property with a swastika.

This subsection only applies to the creation of a reasonable inference for evidentiary purposes. This subsection does not restrict the state’s ability to prosecute a person under subsection (1) of this section when the facts of a particular case do not fall within (a) or (b) of this subsection.

(3) It is not a defense that the accused was mistaken that the victim was a member of a certain race, color, religion, ancestry, national origin, gender, or sexual orientation, or had a mental, physical, or sensory handicap.

(4) Evidence of expressions or associations of the accused may not be I      introduced as substantive evidence at trial unless the evidence specifically relates to the crime charged. Nothing in this chapter shall affect the rules of evidence governing impeachment of a witness.

(5) Every person who commits another crime during the commission of a crime under this section may be punished and prosecuted for the other crime separately.

(6) For the purposes of this section:

(a) “Sexual orientation” has the same meaning as in RCW 49.60.040.

(b) “Threat” means to communicate, directly or indirectly, the intent to:

(i) Cause bodily injury immediately or in the future to the person threatened or to any other person; or

(ii) Cause physical damage immediately or in the future to the property of a person threatened or that of any other person.

(7) Malicious harassment is a class C felony.

(8) The penalties provided in this section for malicious harassment do not preclude the victims from seeking any other remedies otherwise available under law.

(9) Nothing in this section confers or expands any civil rights or protections to any group or class identified under this section, beyond those rights or protections that exist under the federal or state Constitution or the civil laws of the state of Washington.

After they had all had a chance to read and try to  understand the law, Edna’s responded with,

“That whole thing sounds like they’ve called it Malicious harassment instead of Hate crime and then made up ways on how to avoid getting prosecuted for it. Whatever it was to begin with.”

CHAPTER 38

In the jurisdiction of the Spokane County Superior Court, the choice of which judge might be hearing this trial was a foregone conclusion.

Maximillian Karl was the judge of choice for most cases in the Superior Court arena. Judge Karl was a German born, Black American raised in Colfax, Washington. His father was a black US Infantry non-com from Georgia stationed in Stuttgart who married a German farm girl from Wollenzach in what was then West Germany. Coming back from overseas, the young couple and child settled in the Palouse region south of Spokane.

Being a bi-racial kid in Colfax Elementary school was a unique experience which somehow scrappy little Max survived. Junior High had another set of problems and set in motion the Max’s future. In High school, much to the chagrin and pride of the community, he became an outstanding Interscholastic heavyweight boxer. After graduation, he was recruited and got an athletic scholarship to box for Gonzaga University.

While still an undergraduate, Max Karl launched a meteoric rise as a heavyweight contender in the Amateur Athletic Union and went on to Law School. With his mother’s growth of the soil German farm background he could have quite easily fell into the trap of inheriting the family wheat ranch as a career goal. However, when considering things like climate, seasonal constraints and the damned hard work involved, he didn’t find that inviting. All that together caused him to rethink his choice of career goals.

After passing the bar exam, being unemployed and not wanting to go back to the farm, Max decided to capitalize on his reputation.as a successful boxing competitor and jumped into the political arena. It worked. His first election win was a knockout and the prize was a position on the City Council. His rise in politics matched his ascent in the ring. With the backing of various do-gooder PACs Bro Karl as they liked to call him, soon became the most popular Superior Court Judge in the Tri-County region. Being in a position of influence and able to put a positive spin on issues of race relations helped in all the right circles.

As Judge Karl entered, Bailiff began,

“All rise. The Superior Court of Spokane County, Criminal Division is now in session. The Honorable Judge Maxillian Karl presiding,

“Bailiff what do we have to hear today?”

“Your Honor, today’s case is the State of Washington v. Virgil Fusner.”

Judge Karl says, “Everyone but the jury may be seated.

“Bailiff, Please swear in the jury.”

“Members of the Jury, please stand and raise your right hands.”

After two days of being subjected to the attorney’s attempt to prosecute and defend, the surviving twelve jurors were both relieved, on edge and eager to get started on this high-profile case. They stood quickly,

“Do you solemnly swear to try the issue before this Court and that you will speak to no one except the members of this jury about the facts of this case, nor will you allow anyone to speak to you about the case, except in court and that you will read no news reports regarding this case until you have agreed upon a verdict? Do you so swear?”

In an unrehearsed unison chorus the Jurors all answer,

“I do”

Without missing a beat the Judge’s instructions to the Jury followed in sequence.

“Members of the jury, having been selected for this case as a citizen of the United States and the State of Washington, you should feel honored for the opportunity. Your duty today will be to determine whether the defendant is guilty or not guilty based only on facts and evidence provided. The prosecution must prove that a crime was committed and that the defendant is the person who committed the crime. It’s your responsibility to listen carefully to all evidence and testimony. The attorneys for the prosecution and defense will try to convince you that their point of view is correct, but it’s your job to be fair and objective in considering all of the facts of the case. However, if you are not satisfied of the defendant’s guilt to that extent, then reasonable doubt exists and the defendant must be found not guilty.”

“You may be seated. Read  the charges”

“Virgil Fusner, resident of Spokane is formally charged with the murder of Michael O’Brien, a Marine veteran and employee of the Tribal Casino in Airway Heights. Since O’Brien was member of the Flathead Tribe this charging document is listed as a hate crime in accordance with RCW.9A.36.080 of the Revised Code of Washington State and the Federal statue U.S. Code Title 18 Section 249.”

Having heard the charges read aloud after a superficial scan of the prosecution’s brief, the Judge proceeded with,

“Virgil Fusner, you were read your rights when you were arrested. Do you understand that was done to make sure your legal rights are protected?”

“These cuffs and leg irons ain’t helping.”

“Do you have an attorney?”

“No”

“Well you are in luck this morning. We happen to have one that’s always available.

During Fusner’s arraignment, Dibley Jackson’s and his guide dog, Pluto had arrived at the court house in his chauffeured limo, just in time to be appointed as Fusner’s attorney.

“Mr. Jackson, come on up and meet your new client. Maybe Mr.Fusner can give you enough of his story for this case to move forward.”

During a very brief consult with his client, Dibs listened to Fusner’s version of what had happened. Based on his initial legal assessment, he advised Fusner to plead not guilty in order to get things started on a balanced basis for argument.

“Virgil Fusner. How do you plead?”

“Not guilty, your honor.”

“In light of the severity and extenuating circumstances of this case being considered a hate crime, bail is set at ten thousand dollars.”

With bail set at ten thousand dollars, there wasn’t any possible way for Fusner to leave town, let alone get out of the County jail. And charging Fusner with Murder in the first degree demanded premeditation and planning.

“May it please the Court your Honor, Mr. Fusner has neither the means or resources to make bail or leave town. The defense requests a reduction in the amount of bail and that Mr. Fusner be released to his own recognizance.”

“Your Honor, the prosecution believes Mr. Fusner’s rap sheet indicates he is totally untrustworthy and could easily be a threat to himself and the pubic if he is released.”

“Agreed. Take the accused back to his cell.”

 

CHAPTER  37

For Ben Perrini, reading Fusner his rights, writing up the charges and attending the arraignment hearing could have been the end of it. It wasn’t. Ben’s life, what he thought and had always lived by was once again being challenged and he was still up to his ass in this case. His sphere and scope of serve and protect had expanded. As the arresting officer, he knew he would be called to testify for the prosecution. Now, with the case on the docket and with the arraignment and preliminary hearing out of the way, things were moving in the direction of a pretty much open and shut case. It was ready to be cut and dried.

With the DA’s review of charges, the negotiated decision for a jury trial, appointing a defense attorney, getting the trial on the court docket, it was dragging on. The trial itself attracted an eager and aggressive media blitz. And with a new cast of participants in the wings, storm clouds were gathering on the horizon.

To say that the Chief Prosecutor for this murder trial came with a colorful past would not give credit where it was due. Frank Fairweather came from Bend, Oregon. His mother was a member of the Kalapuya Tribe and his father had been an itinerant Mexican farm worker. After being a promising scholar/athlete in High School he had gone on to Linfield College. As an under graduate majoring in Sociology, he left school before finishing the degree. Out of school, out of work and in need of money he got hired by the US Forest Service as a Forest Fire Lookout on the East side of Mount Hood. One season of terminal boredom pushed him to the edge of discovering that he needed to go back to school. Searching for alternatives, he discovered that being fifty percent Native American he was entitled to federal grant money for tuition. After scoring just good enough on the LSAT, he applied to Lewis and Clark University Law School.

Three years later, after passing the multi-state bar exam he was armed with a bright and shiny JD. Although Frank didn’t have any specific career plans, he eventually got hired as an Assistant District Attorney in Spokane County, Washington. Due to retirement, death in the saddle and normal attrition the position of Chief Prosecutor eventually fell in his lap.

Getting ready for what just might turn out to be the trial of the year in Spokane County, DA Fairweather felt compelled to do more than his usual perfunctory study of the evidence before writing the charging documents.

“I need to have everything you have on this case on my desk before tomorrow morning, Perrini”

“I’ve got two separate files, one on Riago Restorini and one on Virgil Fusner. They both have a significant bearing on how you end up charging Virgil Fusner. I hope you take the time to review both before you get to court.”

In a feeble attempt to be more personal than professional, Fairweather continued.

“No worries, Ben. You know we always do a thorough job in this office.”

“Right, your reputation precedes you. That’s why I’m insisting. Are you going to be there for the arraignment or will it be one of your Assistants?”

“ln order to save time and energy, we usually share the burden. The Assistant DA will do the prelim arraignment and hearing. I’ll be there for the arraignment in Superior Court, the pretrial hearing and the Jury trial, if it gets that far.”

“It’ll get that far, Frank. You or whichever Asst. DA draws the shortest straw have got plenty to look at before charging Fusner at the first arraignment and hearing.”

“Ben, just be damned sure you’re around for all this prelim stuff.  You will be a prime witness for the prosecution. Understand?”

“Understood. Are you gonna want to brief me, so I don’t point the finger at the wrong guy?”