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.
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,
“And is it your desire to have a new lawyer?”
Hearing and seeing an opening in the storm clouds
“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.”
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.”
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.)