Gravity of Abuse (Chapter Four: Three Strikes)

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

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The Trial: Day 5 - Monday, June 13, 2011

Early in the morning, the defense called Richard to the stand. He’d never testified in his own defense. A screw up could amount to a life sentence.

Once Richard was sworn in, defense attorney Matthew Pang questioned Richard about his relationship with Brandy. Richard detailed their violent past, which led Pang to ask about April 29.

Richard said he and Brandy had gone to a neighbor’s apartment down the hall — Ian was with them — and when they returned, Richard went to the bedroom to go to sleep, while Brandy laid Ian down. And as Richard talked, the story he told of that night differed significantly from Brandy’s.

Richard said Brandy came into the bedroom and wanted to be intimate. “I told her no.” Then he felt a sharp pain in his shoulder, he said. Before he could see what happened, Richard said Brandy jumped on him, hit with him wild blows, then grabbed on to his arm and took a big bite.

“And were you doing anything while she was doing this?” Pang asked.

“I hit her, uhh, with my right hand,” Richard said. “I’m not sure if I hit her square in the face. I don’t know, but she wouldn’t let go, so I was hitting her.”

Brandy continued hitting him, he said, so he grabbed her by the side of the head and pushed her off the bed. He went to grab the rent money, but Brandy blocked the bedroom door. When she wouldn’t move, he said, he pushed her. Brandy grabbed his leg and after jerking free, he left the apartment.

Richard said he bought some beer, drank one, then returned to the apartment — where he met Francisco at the door. Richard turned over his keys, then left, sat outside the apartment and had another beer.

“What’d you do after you cracked a beer open?” Pang asked.

“Started drinking it,” said Richard, “and then the police arrested me.”

“OK. And thank you. Your witness.”

Richard’s cross examination began. Although DPA Hershkowitz had been sensitive to Brandy, he peppered Richard with statements and questions.

“You get angry when you’re drunk?” Herskhowitz asked.

Richard paused. “No.”

“Sometimes get physical when you’re drunk?”

Another pause. “No.”

“You’ve hit Brandy when you’re drinking?”


The testimony turned to the April assault.

“You shoved her down,” Hershkowitz said.

“Yes,” Richard answered.

“You assaulted her.”

“I pushed her.”

“You assaulted her,” Hershkowitz repeated.

“Objection,” Pang said. “Calls for a legal conclusion.”

“Overruled,” said Judge Yu.

Hershkowitz said once again, “You assaulted her, sir.”

“Yes,” said Richard.

The cross examination continued, Hershkowitz firing questions and Richard hitting back answers like well-matched tennis opponents. Hershkowitz referenced the photos of Brandy’s injuries. Richard admitted to causing the swelling on her right cheek.

“You also strangled her as well, didn’t you?” Hershkowitz asked.

“No,” Richard said.

“Put significant pressure on her throat?”


“Made her have difficulty breathing?”

“No,” Richard said.

As Hershkowitz served more questions, Richard returned answers, mostly “Yes” or “No.” A police photo of Richard with a scratch on his forehead was shown in court. Hershkowitz asked Richard if the police caused it.

“I know Brandy was hitting me and biting me, and that’s all I can say,” Richard said. “I don’t definitively know where I got a specific scratch.”

“But you’re pretty clear that she bit you,” Hershkowitz said. “And you had to defend yourself, isn’t that true?”

“Yes,” Richard said.

“No further questions,” Hershkowitz said.

Pang asked Richard whether Brandy had scratched him. Richard said she had. Pang said he had no further questions.

Judge Yu told Richard he could step down, then asked Pang and Warden if they were done.

“The defense rests,” Pang said.

Richard’s testimony lasted 55 minutes, barely one third as long as Brandy’s.

When the court returned from lunch, Judge Yu read jury instructions, which informed jurors that if they couldn’t agree that the defendant was guilty of a second-degree assault, they could find him guilty of a third– or fourth-degree assault. Then the state made its closing remarks.

Hershkowitz reviewed the charges against Richard, Brandy’s injuries, her loss of consciousness. He told the jury the defense would probably invoke self-defense for Richard, which was a distortion of the facts. “The defendant is trying to fit square pegs through round holes,” Hershkowitz said.

He dissected each of the five counts, showing how the state had met its burden of proving Richard’s guilt. Hershkowitz stressed the definition of strangulation: putting your hands on someone’s neck with intent to put pressure. “Is Brandy’s version of the events more reasonable than the defendant’s version of the events?” he asked. Yes, he added, they were.

In the defense’s closing arguments, Warden said that cuts and bites on Richard showed signs of an attack. She said Richard had the legal right in Washington state to protect himself: “It was classic self-defense.” She added, “If you think there’s a reason to believe Mr. Duncan’s recounting of events —” and the defense thought there was “— then you have a reasonable doubt.”

Based upon that reasonable doubt, Warden asked the jury to consider lesser charges, since the jury had the discretion to find Richard guilty of third– or fourth–degree assaults. Warden, noting that no one deserves to be abused, said Brandy’s credibility was problematic, and Francisco’s testimony didn’t fully corroborate Brandy’s: more reasonable doubt. She mentioned the landline Brandy didn’t use. And the state didn’t prove Brandy’s strangulation. “We are asking for a finding of not guilty as charged on counts one, two, three and four,” Warden said.

Hershkowitz offered a brief rebuttal. Then the jury was excused into the jury room. Two minutes later, the court adjourned.

The Trial: Day 6 - Tuesday, June 14, 2011

The jury began deliberation, breaking for lunch around noon. Once the jury returned, more deliberation. Then, after less than five hours, the jury had reached a verdict.

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