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?”

 

CHAPTER 36 

After dropping the boys off at the hospital Perrini couldn’t wait to get back to the Courthouse. With the murder weapon now in his possession, a renewed sense of mission and direction swept over him. Back in the office he felt compelled to move on this new information right now. It was 6:30 in the early evening but most of the checking and tracing could be done online., Booting up the computer, Ben immediately searched for the weapons screening and print scanning software. He plugged in all the data in the forms on screen and all results came back positive. Ballistics identified the SR22 as the murder weapon and the bore markings matched the slugs removed from the victim’s body. The prints on the hand grip were smudged with grease from the engine but were a perfect match for one Virgil Fusner, a known small-time felon.

Virgil Fusner was born in Shelby, Montana. He grew up as the singular spawn of a white trash couple. Neither of them would acknowledge that he was anything but a drunken mistake. Each blamed his existence on the other and neither took responsibility for his upkeep or bad behavior. His juvenile rap sheet was a classic tour of what kind of trouble can I get into next.

As a fourteen-year old homeless on the street vagrant, Virgil Fusner stole a car in Polson, Montana and drove South to Missoula and ultimately West into Northern Idaho. Using an Oklahoma credit card (rubber hose) to siphon gas from parked cars, he finally ran completely out of gas in Spokane, Washington. Caught trying to suck the gas out of a parked Police vehicle, he was apprehended and taken to jail. After a sleepless night in a communal cell shared with a couple of sleep it off street drunks, he was arraigned before the on-duty Justice of the Peace the next day. Because of his age the magistrate gave him six-months jail time and six-months’ probation. After sentencing, he was sent to Echo Glen Youth Reform School. His roommates there quickly saw his potential. On release, his associates and reputation helped him fit into a series of burglaries, muggings and a number of other gang-related incidents of note. In a developmental curve to be admired, all of this schooling helped establish him as a successful low-level career criminal. As of now, Fusner’s rap sheet included such exotic material as doing time as an adult in Montana State Penitentiary in Deer Lodge. While incarcerated there he had shared a cell with Chief Crooked Arrow, a well-known Native American indigent drunk.

The county, state and federal data bases all pointed in the same direction. Now all Perrini had to do was find him, make the arrest and turn it all over to the DA. The new evidence would clear up everything but why the murder happened. Whatever alibi or explanation Fusner might have wouldn’t be able to erase his prints from the murder weapon. Ballistics confirmed the SR22 was the gun. And motive didn’t seem to be an issue. At any rate it would all be over soon.

According to google, Fusner’s last known address was a cheap motel in Airway Heights, a suburb located on the western outskirts of Spokane. Airway Heights, has the dubious distinction of being the home of the Lucky Seven Tribal Casino. The Humvee the victim had been driving was registered to the Tribe. Airway Heights Correctional Center, a State criminal custodial facility was located just a couple of miles away.

With staff help in the office next day, Perrini had narrowed the search down to the All Climate Rooms/Motel on Sunset Highway, not too far from the Correctional Center on West Sprague.

When the Swat team and Perrini arrived at the motel, Fusner was just getting out of bed. Answering the door in his underwear, he wasn’t in any mood for visitors.

“What the hell, ya want at his time of day?”

Remembering the mug shots of record in his office and comparing them to with what he was looking at, Ben Perrini began,

“Virgil Fusner, you are under arrest. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand?”

Fusner, no stranger to this line of attack said,

“I need some duds on if you’re hauling my ass outta here.”

 

CHAPTER 35

It didn’t make any sense. A gun stuck in an engine. What the hell could that mean? Forensics went over that vehicle with a fine-tooth comb. They even ran a video lead up the exhaust pipe. It’s unimaginable they would have overlooked the engine compartment. These kids are having another laugh at my expense by dreaming up another Scottish wild haggis hunt.

DI Perrini’s brain was running a complete disk search looking for a reason to ignore Sean’s remark.  The search ended with zero results. Ben terminated it by locking the office and strolling out to his car.  With the boys hard on his heels the trio set out on another mission. If successful it would add a whole different slant on who they were looking for. Sean and Randy were nervous, charged and resolute. Perrini was nervous and charged but still skeptical and definitely not resolute

“Get in, you two. We’ll go take a look at what you found.”

With one foot on the accelerator and one hand on the emergency brake, he sped away from the courthouse and headed for the Sports Complex parking lot.

The drive took all of about ten minutes. Plenty of time for Perrini to remember, Fool me once, it’s on you. Fool we twice and I’ve got no one to blame. Once burned, forever shy, Ben wasn’t about to get snookered again. However, by the time they got to the Humvee his imagination had taken charge and was driving the action. Slipping under the tape, the boys were anxious to prove their find and Ben had his hopes up for a positive outcome. All three were operating at a feverish pitch to find what they came for.

“Remember, this is still a crime scene.”

“As if we could forget it.”, muttered Randy.

Sean added, “Yeah. This is personal. Your opinion of Indians is hanging out again, Detective.”

Out loud this time Randy pitched in.

“And when we found this thing, we ran all the way to the courthouse to find you.”

“You guys stand clear. I’ll pop the hood.”

With Sean and Randy in front of the Humvee, Perrini found the hood release under the dash.

“Can you still see it?”

“Yep. It looks just like what I saw in computer class this morning.”

Perrini set the brake, jumped out and joined Sean’s head under the hood.

“Did the computer name the parts?”

“No, but I know what a radiator looks like. You can see all the belts. Do you know what any of this is?”

“That belt runs the fan and the alternator.”

Randy, pointing at it,

“There’s the thing.”

“Where?”

“There between the alternator and the intake manifold?”

Still needing to be in control, Perrini reminded them.

“Don’t touch it. It does look like a gun.”

Sean, no longer hesitating, “Suspicions confirmed.”

Adding this discovery to his disappointment and frustration over the Italian snow job, Ben Perrini was both startled and breathless. When he saw the SR22 lodged between the alternator and the intake manifold, he couldn’t help sucking air. Quickly pulling on the blue gloves before reaching for it he removed and bagged the piece.

“If this hasn’t been wiped clean. We’ll get the prints into the system and find who shot Michael O’Brien.”

“Hey, that’s your name, Sean.”

“So, what, Randy? There’s more than one dog named spot and probably quite few O’Briens.”

On the way back to the office, Ben dropped the boys off at the Hospital ER right on time to catch their ride home. Not wanting any more surprises, he launched a gag order.

“Remember, you two. Don’t tell anybody about this. Not even your Mom.”

CHAPTER 34

With Riago Restorini in custody, Ben Perrini wanted to ignore the facts. They had no gun, no forensics and just a bunch of circumstantial rumors, attitudes, societal norms. No real evidence that he was the one.

All he could do at this point was arrest and cite him for reckless endangerment. Not even a speeding ticket, since Ben’s need to take him alive had caused Restorini to obey the signs on his flagrant romping rampage.

It was looking like that after summary judgement by the local magistrate, Restorini would relinquish ownership of all weapons and get off with four weeks in jail. With time off for time already served, he would be back on the street. After sentencing he would have to do one-year public service and be on probation for two years.  His Parole Officer and the Civic Service committee in Clayton were to determine what, where and how.

For Ben this whole shitty investigation had turned out to be one of the most frustrating time-wasters  in his twenty years of public service in law enforcement.

Late Monday afternoon when Sean and Randy came in looking for him, Ben Perrrini was dead ended more or less right where he had started out before convincing himself that the Italian was the guy.

Dismal as the prospects were now, Ben Perrini was at his wit’s end. He was unprepared for the boy’s abrupt interruption in a miserable day.

“What are you two doing here?”

In unison and loud, “We’ve got something new for your murder investigation.”

“Look, guys. I’ve almost given up on this one. It’s getting colder by the day. After your mother’s help, I came out looking like a fool or a tool, depending on who you’ve been talking to.”

“That wasn’t her fault.”’ said Randy.

“Of course not. But It sure sounded like the painter was the right guy.”

Hearing that this line wasn’t moving in the right direction, Sean interrupted.

“Take us back out to the Humvee. It’s still there and there’s a thing under the hood.”

“What the hell were you doing there? It’s still a crime scene. Didn’t you see the yellow tape?”

Early on, Sean had learned that a good offense was the best defense. His flanking move was to sidestep and thrust.

“This morning, Mom transferred us in to Deer Park High School. It’s not the friendliest place but she thinks we’ll get a better shot at making a living when we get out. Anyhow, we had time to kill waiting for her to get off work.”

Randy supported the attack with,

“Yeah, and so we just went over and slipped under the tape. We didn’t move or break anything.”

“Well, I took a Forensics Team out there last week. Took the side panels off, pulled up the floor boards, looked under the seats and dash, crawled inside and underneath, checked the wheel wells and spent two hours with a spectroscope looking for blood or any other evidence. They didn’t find diddly squat.”

Randy felt the need to parry.

“That’s too bad. But the reason we ran over here is because, when we got to school this morning, we saw the Humvee still sitting there. Sean googled the Humvee in computer class and wanted to look at the engine.”

“OK. Got that. And?. . . . .”

Sean’s “coup de tete.”

“And if you take us out there, we can show you what we found.  It looks like a gun stuck in the engine.”

CHAPTER 33

All day long in each class Sean had been thinking about the Humvee across the road. As soon classes were done for the day and Randy got out to the track, Sean’s curiosity took charge.

“There’s nobody over there at this time of day. Let’s go take a closer look.”

“Good idea. I’ve always wanted to see one up close.”

Trying to look nonchalant and casual they crossed the road and moved closer to the Humvee. Looking around in all directions, Randy decided it was safe to approach. Sean did his own 360-degree visual survey before giving his OK. Then both sidled up to the vehicle.

“If it’s not locked, we can get inside and check it out.”

“Try the driver’s side door, Randy.”

“Hey, it’s unlocked.”

Once inside, Sean took the back seat and began rummaging around, behind, in front of and under everything.

“What are we looking for, Sean?”

“Anything the police might have missed.”

“Like what?”

“When you and I were doing the breakfast dishes Saturday, I overheard that detective tell Mom he was still hadn’t found the gun.”

“What kinda gun was it?”

“I couldn’t hear what he said. Anyhow, after the cop and I found this Humvee, he told me the detective and his boys checked it out and came back empty handed.”

“Those guys don’t miss much.”

Jumping in the driver’s seat, Randy grabbed the steering wheel started making engine sounds and pumping the pedals.

“Randy, pop the hood. I want to look at the engine.”

With Sean outside again, Randy found the hood release under the dash.

“What dja see?”

“It looks pretty complicated, but it’s just like the picture I googled in computer class this morning.”

Randy exited the front seat and joined Sean’s head under the hood.

“Did the picture show you a parts list?”

“Nope.”

“Do you know what any of this is?”

“I know where the radiator is and I can see all the belts,”

“Can ya see what the belts do.”

“One of ‘em runs the fan to cool the engine and it looks like the same pulley drives the alternator.”

“OK. I give up.”

“Wait a damn minute, Randy. What ‘s that thing there between the alternator and the intake manifold?”

“Where?”

Pointing at an object that hadn’t been in the googled picture,

“Don’t touch it, Randy. It looks like a gun. Slam the hood down. We better high-tail it over to the Police station and bring that detective back with us.”

Sixteen blocks on a dead run. Randy got there first. Sprinting across the Court House lobby, they both skidded to a stop outside of Police HQ. Bursting into the front office, the Desk Sergeant met them.

“Hey, slow down, you two. What are you doing here? Your shift doesn’t start until Wednesday.”

“We found something. We need to report it. Is DI Perrini here?”