Gravity of Abuse (Chapter Four: Three Strikes)

Non-Fiction | published in Real Change on May. 30th, 2012


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The Trial: Day 1 - Monday, June 6, 2011

The State of Washington v. Richard James Duncan was heard in King County Superior Courtroom W-928, Honorable Judge Mary Yu presiding.

Sitting at the defense table, Richard, wearing a button-down gray shirt and slacks, looked pale, gaunt. He’d lost almost 40 pounds since his arrest, worrying about a life sentence. But by the trial’s start, he was reconciled to what fate would prescribe.

The morning began with counsel discussing what information would be included in the trial. Since DPA Hershkowitz knew a defendant could only be tried on the charges in a case and not judged on his past, he wanted to exclude evidence pertaining to Richard’s felony convictions from Nevada. Excluding this evidence meant the jury would never know that Richard could face a third strike, with a potential life sentence, if convicted. Judge Yu granted the motion.

In the afternoon, potential jurors entered the courtroom, the judge informing them what selected jurors might experience. She emphasized that when defendants opt for a jury trial, they’re voicing an important message: “They are saying they trust you.” She added that a trial is a very methodical process, a deliberately designed process. A human process. “And it’s not perfect,” Judge Yu said.

Then she outlined the final charges against Richard:

felony violation of a no-contact order – domestic violence;
assault in the second degree – domestic violence, for intentional strangulation;
assault in the second degree – domestic violence, for causing substantial bodily harm;
felony harassment – domestic violence;
plus three domestic violence aggravators, mitigating factors that could affect the length of a sentence.

Even with the charges, Judge Yu said the state bore the burden of proving Richard’s guilt. “The presumption of innocence is real,” she said.

The prospective jurors then went through a process called voir dire, during which defense counsel and the prosecutor questioned prospective jurors on their backgrounds and any potential prejudices that could impact their decision-making if chosen to sit on the jury. A dozen prospective jurors from the pool were excused before the court adjourned. Richard returned to his cell.

The Trial: Day 2 - Tuesday, June 7, 2011

As voir dire continued, more prospective jurors were excused, with others restocking the pool. Sometime after noon, 13 jurors — five men, eight women — were sworn in and impaneled, one serving as an alternate. The court broke for lunch.

Before the jury returned, the defense team made a motion for a mistrial because a juror had commented that Richard’s bald head and tattoos indicated he was a skinhead. Judge Yu, finding the jury hadn’t been tainted, denied the motion. Richard sat still.

After opening statements, the first witnessed testified.

DPA Hershkowitz asked a radiologist what Brandy’s being “choked” meant. Hands were placed around her neck, and pressure was placed there, the radiologist replied.

Defense attorney Matthew Pang asked the radiologist to confirm that strangulation wasn’t a diagnosis when Brandy visited the ER after the assault. “That is correct,” the radiologist said.

When the Renton police officer who had responded to Brandy’s 911 assault call from November 2009 took the stand, DPA Hershkowitz asked about Brandy’s demeanor that night. “She was crying, she was shaking, she was having a hard time talking,” the officer said.

Following a cross examination, the court adjourned for the day.


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