Book Two / 1
♦
Arriving in my office on a Monday morning I placed my coffee on the desktop and picked up the calendar. I shuffled quickly through the pages to remind myself of the hearings and trials scheduled that week, and to determine whether the judge had one of his weekend road trips coming up. We both had hobbies that helped us get through the stress of our work. His had been motocross racing for a few years, and on summer weekends he’d pack up his bikes and his gear and drive to races around the state.
I picked up my coffee again and walked over to the windows. Eight floors up from nearly sea level, I could gaze from my office out beyond the buildings of the city’s historical and financial districts to the waters of Puget Sound. Its waves glittered in the summer sun mere blocks from the courthouse.
On the other side of the sound a series of islands lined up north to south. A vast peninsula stretched to the west of the islands, separating our inland region from the coast of the Pacific ocean. Ancient rain forests still grew deep into the peninsula through which a small mountain range thrust up, its snow caps easily visible in the winter months.
As I stood looking out at the water a ferry came slowly into view, carrying residents of the islands to their work in the city. I watched the wings of seagulls stretch out in the morning light as the birds swooped around the approaching ship. In my mind I heard their high-pitched cries. It was the middle of summer, and I marked the moment for whatever it might be worth before returning to my desk and beginning the week.
_______________
After checking emails that had arrived over the weekend I reviewed the files on my desk and began to prepare for the cases headed our way.
In addition to an assigned trial, we had several ongoing matters reappearing on our calendar that week. The most difficult involved a defendant who had been pre-assigned to us for trial back in January of that year. The case had come our way shortly after the new chief criminal judge had begun her rotation through that position at the beginning of the calendar year. One morning, during her first full week of duties, a middle-aged male appeared before her whose unwavering ability to frustrate every individual in a courtroom very quickly overwhelmed her available time.
That defendant, Terence Myers, had been arrested in the late summer of the previous year on domestic violence assault charges. Following his arraignment in September he had waived his right to an attorney and elected to proceed pro se — on his own without counsel. The chief criminal judge, presiding over the arraignment, had accepted Myers’ waiver of counsel, but ordered that a court-appointed public defender act as standby counsel to provide support. Then, as a consequence of Myers’ inability to get along with the man over the next few months, the new chief criminal judge had discharged him in January and ordered that a different attorney be appointed as Myers’ standby counsel.
The following week a second public defender duly filed his notice of appearance and a hearing was scheduled to confirm his appointment. At the hearing, however, Myers refused to be transported from the jail to the courtroom. The presiding judge had signed what is informally — if inartfully — termed a drag order, compelling Myers’ appearance in court and ordering the jail officers to use “reasonable force,” if necessary, to secure his presence.
Myers had arrived in court that day against his will and he began objecting vehemently to any court-appointed assistance of standby counsel. Exasperated, facing a courtroom filled with defendants waiting for their own cases to be called, and in need of resources and options unavailable to her, the chief judge acquiesced to his demands. She entered an order discharging from the case the latest attorney appointed as standby counsel.
At some point in the developments that morning Myers happened to mention that he had appeared before my judge on a previous case and recalled liking him. Needing no more to persuade her, the chief judge entered an order pre-assigning the case to us.
_______________
Terence Myers was a fifty-seven year-old African American male, the middle of three brothers. At the time of his arrest all three of the brothers had been living together in the same apartment, despite the existence of a protection order that prohibited Myers from having any contact with the oldest of the three.
The protection order had been entered more than a decade earlier, following several prior incidents of violence that Myers had committed against his brothers. Over the past thirty years he’d been convicted of at least nine felony offenses, including residential burglary and domestic violence harassment.
On the occasion at issue in the case assigned to our court Myers had allegedly thrown food on his younger brother at lunch one day and a fight ensued between the three of them. According to the report of the arresting officer, Myers pulled a knife on his brothers, threatened to kill them, then thrust the knife twice into the wooden door of a bedroom into which the two brothers had managed to escape.
The oldest brother yelled at Myers to leave the apartment, advising him that he was no longer welcome to live there. Through the closed door between them Myers hollered a threat to kill his brother, then left the apartment as ordered.
The next day he returned. After an argument with his oldest brother Myers cornered both brothers in the hallway of the apartment building. He then pulled out his knife and stabbed the oldest in the chest with its six-inch blade. Responding officers located Myers walking around the halls of the building with blood on his shirt, the knife in his pocket, and a long gardening tool tucked into his rear waistband.
Myers was arrested and charged with first degree felony assault, felony harassment, and felony violation of a court order. His brother was transported to the hospital with life-threatening injuries from which he would eventually recover.
The case filed against Myers for that assault capped an adult lifetime of violence against his own family. It also brought to an end the latest round of the family’s attempts to assist this middle son — now an aging man — in his efforts to support himself and to survive in the world despite the persistent problems he encountered.
The history of the family’s efforts over the years would begin to unfold for my observation a few months after pre-assignment of the case to our court.
_______________
In all cases a defendant has a right, in preparation for trial, to interview the alleged victim as a means of discovering and defending against the testimony the victim would provide. Normally an interview of this type would be conducted by a defendant’s attorney. In that way there would be no violation of the order prohibiting contact between the defendant and the victim.
In the case against Terence Myers, however, the judge was forced to confront a legally awkward situation: he’d accepted Myers’ waiver of his right to an attorney and allowed the withdrawal of any standby counsel who might otherwise assist. Since Myers had been permitted to proceed pro se, the judge now had to determine how he could allow Myers to interview the victim in this case, his own brother. The judge had either to deny Myers his right to conduct necessary pretrial discovery — a reversible error on appeal — or to sanction a violation of the no contact order still in place against him.
The best decision the judge could make was to arrange for an interview to occur in a manner that accomplished the defendant’s discovery needs while at the same time protecting the victim as much as possible from additional abusive contact. We did this by ordering Myers’ transport to our courtroom and setting up an interview between him and his brother by telephone.
For nearly two hours on the morning of the interview Myers sat at counsel tables, an officer from the jail seated directly behind him and the State’s prosecuting attorney at the table opposite. Next to the prosecutor sat the assigned victim’s assistant. The victim himself joined the assembled group through a speaker phone arranged in the middle of the tables. Throughout the interview the judge remained in his chambers.
As I worked in my office I monitored the conversation through my half-open door. In their voices just outside I could hear the history of conflict between these two brothers as the defendant conducted his interview. It was a history of classic domestic violence, similar in most respects to many other cases we saw in court and in trial.
Early in the interview Myers’ accusations of bad faith and abandonment by his family would be met each time by his brother’s patient explanations. Weary from repetition and from staying on-message over the years, the older brother kept trying — as he must have done many times before — to convince Myers that the family had not betrayed him, that he needed help, that they had done everything they knew to do and could no longer risk their own lives.
As the interview continued, however, the older brother’s patience began to wear thin. What had been a tone of focused determination to explain his position became an anguished insistence on the fairness and generosity he had displayed over the years. His desire to connect rationally with his incarcerated younger brother became a steadfast refusal to accept once again the man’s litany of accusations against his own family. They were the accusations used with each opportunity to turn the tables of blame and responsibility.
To my ears Myers’ accusations sounded similar to those he had made against the prosecutor, against his standby counsel, and against the judge during each prior appearance in our court. Casting himself as the victim of the entire system around him, Myers consistently refused to accept any responsibility for the situation he was in. He blamed the prosecutor instead, he blamed his own attorneys when he’d had them assigned, then he blamed the judge when it was clear that the case would not be dismissed. Just as he was blaming his own brothers now, Myers had blamed any official with whom he’d interacted of intentionally obstructing his ability to proceed with his defense in the manner he believed he deserved.
At counsel tables that afternoon the prosecutor was now attempting to conclude what had become yet another opportunity for Myers to manipulate and control his older brother. In the brother’s voice could be heard the pain of a man whose persistence in the face of futility had finally been overwhelmed.
Perhaps he still loved his younger brother, but he had reached the point where he was willing to aid in the prosecution of an offense that would keep the man in prison for many years, possibly the rest of his life. Every other option had failed.
♦
The Sun Do Shine 