Please direct all comments and inquiries to JRBurton5@hotmail.com
CHAPTER TWENTY-EIGHT
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In January I received a copy of the transcript. Freakin’ finally: with fewer than two months left before the trial. I tore it open like a rabid wolf, read and reread it, and made a hundred comments. Marginalia. Circles and lines. Exclamation points.
It was about 200 pages long. And it putatively recorded every word, from that austere event. That was a good thing too— because believe it or not I could not remember every word!
I’ve already related much of the important content from that transcript when I recreated the Preliminary Hearing— so I shant’ belabor it here. But I will make some comments, of course:
It was prepared by a Certified Shorthand Reporter and Notary Public, by the name of Penny Abbott. She certified that she had transcribed it all from a CD. She noted that the transcript was full, true, and correct, except for where the tape recording was inaudible. And those places she said that she would indicate as such.
INAUDIBLE?! Isn’t that just perfect!
Well then the first thing to report is that there were thirty-two places in which something was marked as “inaudible”. THIRTY TWO PLACES in which the words could not be understood! Most of them were probably of very little consequence, though, but still: this was an important matter, and it should not have had such problems.
Hmmm: did that have something to do with why Eric Lind did not go in on half of the transcript?… Did he already know that the recording was going to be sub-par? Nah. That’s paranoid—especially since the transcript was still good enough.
Or was it? As I read and reread it I realized that some of the things I remembered clearly were not even on it— and that those omissions were immense: for example, the part about Wally saying to Mark Fisher: “We don’t have those pictures, do we?”, was nowhere to be found… And the part where Corissa exclaimed: “They found a hair!” was likewise nowhere to be found.
I recalled a lesser matter, too, in which Wally had rested and sat, then leaped back to his feet, after I pointed out that he had used the wrong pronoun with one of his questions. I had scribbled a quick note, and he had jumped up to clarify his question… That didn’t appear on the transcript either.
Naah: I must have invented all those things. Clearly I was psychotic— and had made all those exchanges up… But no— I knew that was not the case—and I was too far past that sort of explanation. So I was sure that all those things had really happened. To make absolutely sure about what I say, however, I read that transcript a dozen times— and none of them were there.
So why weren’t they there? And what other things— that I did not remember— had been omitted from it as well?
Was there to be no end to Prosecution’s bullshit?
That snafu meant that I would have to get the Court Reporter’s record of the prelim: the one that she physically typed that day, as the proceedings went on. If that didn’t bear fruit I considered actually reenacting the dialogue recorded on the transcript- to show that such a reproduction would not take up the full four hours the hearing took… That would prove that stuff had been omitted. But that would be going overboard— and crazy too— since those omissions were quite brief.
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Some other things were also amiss, in that long-delayed transcript. More stuff was rotten in Denmark, I mean. Rotten, hell: it was festering with maggots: because still other exchanges that were recorded here were not reported exactly as I remembered. For example, I told you that Mark Fisher had claimed that while he did not include the claim that “he’s my friend” upon his report, that he did remember something along those lines having happened. But the transcript told it differently: according to the transcript it took place with Wally asking Mark Fisher this: “…although it may not be in your report, you think you do recall that Corissa said that this is my friend?” To which Mark Fisher answered “Yes”. But the reason that exchange was interesting was that there was nothing prior to that disclosure in the transcript to have set up that exchange: no previous admission by Fisher, that is, that he’d had that memory— or shared it— before that point. In other words, it appeared that Wally was asking that question out of the clear blue sky.
Okay, let me try again— said still one other way: nothing had laid a foundation for that question— according to the transcript! And an Attorney doesn’t just ask such a question in court speculatively without a reason for doing so. So something had to be missing— just as I had thought… I was not making that stuff up!
The absence of such a prior admission was of critical importance: for it diluted my claim that that exculpatory evidence had been suppressed. It looked less, that is, like Eric Lind and/or Mark Fisher had withheld something important— and more like a forgotten memory of Mark Fisher had merely been jogged….and that suggested that the absence of that admission in the transcript might was more than just an accident of poor recording.
On the other hand, if they were deliberately expunging, why would they have expunged the statement about finding a hair? If anything, that claim only damaged me. So I couldn’t come up with an answer. Indeed, that omission was more suggestive that that outcome really was just an accident of poor recording… Or that that exclamation never really happened at all either…
So yes: perhaps I made that up too! But why would I have made that up? Because it was just a dead end that had not seemed to hurt me— and in view of all that I’ve already disclosed, had a hair been found I don’t think it would have been surprising!
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I’m concerned about the fact that I’ve made claims to you, dear reader, that now I can’t back up. So yes, I would understand your concern— and perhaps even your growing incredulity. But I hope the argument about Mark Fisher’s claim is convincing enough to compel you to remain with me: that its veracity will sustain you, I mean— because I’m afraid that some of my claims will become more tenuous still. You see, I’ve got one more omission to point out: one more outrageous position to claim. And if you didn’t believe me on this one then I might well lose you for good…
It’s about the testimony Corissa gave about our journey to the water tower: the excursion that I couldn’t remember, and that gave rise to my psychopathic fantasies: the journey that at the prelim she’d said she didn’t remember either. Well guess what? In the transcript there’s no memory of her having even said that. Rather it seems that she’d said nothing at all about the drive at all— according to that official recapitulation. Nor had the question even been asked! So apparently that was just another crazy thing that I made up.
Except that I did not make it up. I swear.
My psychopathic alter-ego was poised to rise from the dead!
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Onward to the statements that were made by Judge Mower. They were problem-atic too: because in my earlier reporting about the Preliminary hearing, I recorded the Judge’s comments as they were culled from the transcript. But in fact, even those— in the transcript— were slightly different than I recalled.
Even as I write these words I can still hear the Judge’s voice resounding in my head— when I want to hear them, I mean. His exact words were: “Am I supposed to listen to all of this and believe she’s mentally incompetent?”! Yes, I can still hear his rising inflection there— and I can see his splaying arms, underscoring his incredulity. So I’m still positive that that was what he said.
But the transcript tells it a little bit differently, as I’ve said. According to that he said: “… how do I listen to Corissa tell me about what she saw and what she heard and what she did and she’s got a good memory and speaks forcefully, and how do I do all that and then find her to be mentally incompetent at the same time?” Hmmm.
It is significant that that expanded version helps me even more— but that is not the point. The point is that that rendition seemed to me a lengthy latter-day interpolation: an alteration, perhaps, to the text. Perhaps the situation was that that pronouncement did not get recorded either, and that somebody— realizing the importance of that statement— attempted to recreate it…Or perhaps somebody, recognizing its pivotal gravity there, thought it required lengthy explication…Paranoia? I don’t know. But remember that I’m asserting that alteration did not hurt me. Nonetheless, something was definitely amiss.
I didn’t specifically remember the judge threatening to hold the two attorneys in contempt either. But I’m less married to my memory there. Forgetting stuff is easy to do— especially under stress. Besides, much of that exchange happened just as was recorded.
HEY: Did that spate of alterations explain the real reason for the delay in the transcript? Naah. For that would implicate the notary public too… Such a conspiracy as that would be too far-flung. But I know what I remember— and I know what was left out. That being said, it’s more credible that stuff was omitted than that stuff was invented…
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I asked Leslie for the name of that Judge that Sammy had called in Utah: the one who had reported that Eric Lind knew about Corissa’s reputation, and all that stuff. So she gave me his name and phone number. His name was Joseph Brewer. That’s an alias.
I had to work up some courage to call him. But one afternoon, while standing by the enormous music tent in Breck, I finally did call him. I wanted his opinion on my arguments about “detention”, for one thing— and I wanted to ask him about some other important stuff. Imagine my surprise when I reached him directly, on my first attempt!
Unfortunately, though, he would not talk to me. As soon as I identified myself, he asked me if I was a Defendant in the State of Utah— and of course, I told him that I was. So he said “Then I probably should not be talking to you”. He sounded like a very nice man though. I do not say that glibly either- but there was something in the quality of his voice that told me I could trust him- or talk to him, at least. Something like that: that even while refusing to talk to me, warmth and humanity shined through.*
Later I wrote him a letter. It was full of hypotheticals, once again. But the hypotheticals were really the facts— couched in that old “hypotheticals” disclaimer— that allowed him to comment on them— wink wink— without commenting on the case. So I revealed everything that was at issue in my case, and disclosed many relevant facts. It included my baker’s dozen arguments about detention. (I was very proud of that list.) I also told him about the (cross-armed) threat of perjury. Finally, I told him about the charge the Judge had levied himself, and about my quarrels with the AK law.
But instead of sending it to him, I sent it to Leslie. Inasmuch as I should not be talking to the Judge directly, I thought it prudent to let her to forward it to him.
Soon after that I talked to Leslie again, to see what she had thought of it. She said that on some points I lacked objectivity— but I didn’t know what she meant. Anyway she said she’d made a few small changes— and had then sent it to the Judge in its entirety.
What I wanted to happen was for Joe Brewer to get in touch with David Mower: to leak all my arguments to him before the fact. And I wanted Judge Mower to have time to consider them— and to recognize that my arguments were solid— and persuasive! “Judges can talk to judges” Sara had once said to me: “Lawyers can’t talk to judges” she’d gone on: “but judges can”!
*Until I wrote this account of this Kanab era of my life I hadn’t realized how much stock I put in the sound of people’s voices!
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In addition to all those other virtues I’ve told you about, Breck had a Community theater too: another very fine attraction, to make that town so livable. I attended several productions there. Well since acting was another thing I’d long meant to try my hand at, I decided I’d like to participate in one of their performances. But the productions they were planning to stage seemed a bit beyond my reach: they either required too much dialogue to be memorized, or they required a commitment I could not give. As to the first point, I was a rank amateur anyway— so I did not think I could try to jump into a demanding role anyway: I thought I should bite off something smaller, for my first go. As for the second point, well, some of the plays would take place after my trial date— or require rehearsals on dates I must be away. But I couldn’t be certain that I’d even be able to return, to make good on a commitment…because after my trial, I was not sure that I’d even be free. Damn the Kanab scum that were handcuffing so much of my life.
But there was to be a one night only performance, I learned, to be staged on Valentine’s Day. It was called “Love Letters”— a play whose story line was conveyed strictly via love letters to be read upon the stage. So it required no memorization at all. Basically, two characters at a time— a man and a woman— or a boy and a girl— would sit side by side and read each others letters, which had been written to each other through many phases of their lives. And that was the whole play. But the couples changed, every now and again, to correspond to their respective changing ages, that is. It was written for four couples, but this particular production would use six— of ages ranging from about ten to about 70.
It required an audition. And that turned out to be rather simple— even though I had never done one before. But the Producer Jeremy merely told us what to read. Then he asked for some variations, with different inflections, and emphases, and stuff. It was really rather fun. And I got the part— of course. And I don’t merely that I can do anything I set out to do! It was really just because there were scarcely more actors auditioning that day than there were parts to fill. So it was as simple as that. But I was the right man for the part anyway— I’ll have you know!
The woman who played opposite me was named Sylvia. She and I had two rehearsals together, before the show. And we had good chemistry, as they say, so we were a good match. One of the other Actors was named Daniel Halleck, who lived in Breck too. And his resume was quite impressive: he’d had bit parts on several TV shows, and had worked with some big time Directors, like Sam Peckinpah. So I can boast that on my very first gig, I worked with a star!
Anyway, on the night of the performance, I was not at all nervous— until moments before I took the stage. But I calmed down as soon as I sat down. I also told you it wasn’t real acting: it was only marginally “acting”— and only that at best. But we did get to impart some feeling through our voices as we read each other the letters. And we got to emote with body language, and through facial expressions, as we read and listened back. Soon I felt very comfortable out there. It helped, perhaps, that we couldn’t see the audience. It was too dark. Anyway, I enjoyed it, and received some nice compliments later. One guest in the restaurant several nights later recognized me, and said I’d been one of the best up there, that night. I had thought so too.
Since my arrest I had taught and I had acted, I’d climbed Mt. Whitney and descended the Grand Canyon. I’d made a sculpture too. And now I’ve written a book!
I called my parents after the show, to tell them how it had gone— and also to boast that it had gone so well. They were very happy for me. I asked how they were doing too. I knew my father had recently gone back to the hospital: he’d had Prostate cancer, several years before. That had been a hell of an ordeal, too, and the chemotherapy made him sick for a long time. But the cancer had been in remission for over five years, at this point, which they say is very good news. Unfortunately his PSA was rising again now: his Prostate Specific Antigen, that is. And that was not good news. What was more, the cancer was no longer in the prostate. That meant he had cancer cells somewhere else in his body— and nobody knew where.
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I received Wally’s final version of the pre-trial memorandum. Since it’s only five pages long, I have reproduced it here in its entirety. I have changed only the font, the margins, and the line spacing. (But the footnotes move quite freely on their own: I cannot control them.)
One more thing: the (biblical-looking citations) from the prelim are mostly page
numbers— from that 200-page tome! And if you don’t know what all the strange looking symbols mean, take heart— you’re not alone.
Anyway much of this will be mere repetition— of arguments I have propounded before. Sorry about that!
ARGUMENT
I. THE CASE SHOULD BE DISMISSED BECAUSE THE STATE CAN-NOT ESTABLISH A PRIMA FACIE CASE THAT L. WAS NEITHER DETAINED OR RESTRAINED
To be convicted under the Utah Kidnapping Statute a person must “detain or restrain” another person. Utah Code Ann. §76-5-301. Mr. Burton neither detained nor re-strained L. at any time during their short acquaintance. There is no definition of deten-tion in the statute itself. Webster’s New Collegiate Dictionary defines detain: (1) to hold or keep in or as if in custody; (2) to keep back or withhold; or (3) to restrain especially from proceeding. Webster’s defines retrain: (1) to prevent from doing; (2) to deprive of liberty.
The Defendant neither detained nor restrained L. according to the testimony of L, she voluntarily got into the Defendant’s Jeep and the Defendant never forced her to do so. The following relevant excerpts from the preliminary hearing are dispositive on this issue:
YOUR HONOR: So Corissa, this man spoke to you and said come here. Is that right?
A. Yes. And I said no three times and –
Q. (BUGDEN): When you said no three times, what you said earlier when you testified was that you had an instinct and inside of you something said no, don’t go over there?
A. Yes.
Q. Not that you spoke out loud. But inside three times you heard your inner voice talking to you?
A. Yes.
Q. Okay. So three times you heard an inner voice but you didn’t listen to your inner voice.
A. No.
Q. Is that right?
A. Yes.
Q. And you didn’t actually say anything to him?
A. No.
[Preliminary Hearing at 54:2-20]
Q. Okay. Now wait. And no one, he didn’t go over and grab you. You walked there yourself?
A. That’s correct.
Q. That’s correct. And then when you stood next to him what was the conversation when you were standing next to him, Corissa?
A. Actually he opened the door and I got in and then he got in his, his side.
Q. So he opened the door for you?
A. Yes.
Q. And then you got in?
A. Yes.
Q. He didn’t push you in?
A. No.
Q. You got in on your own?
A. Yes.
[Preliminary Hearing at 55:2-17]
The doors were unlocked (Preliminary hearing at 59: 22-25) during the drive to the to the water tank. Once at the water tank, the Defendant opened L.’s passenger door for her to exist the Jeep. (Preliminary Hearing at 63:14-22.) The Defendant did not pull L. out of the car. She stepped out by herself. (Preliminary Hearing at 64:2.) He did not restrain her or hold her. (Preliminary Hearing at 64: 14-21). After a mountain bike was removed from the back of the car, L. got back in through the hatchback by herself. (Preliminary Hearing at 65:15-19). She was free to leave. She could have walked away at any time. She was not restrained or prevented from leaving in the least. (Preliminary Hearing at 66:8-21).
Four different kinds of detentions are specifically identified as constituting kid-napping. Utah Code Ann. § 76-5-301 (a,b,c,e). Under these sections a defendant must detain a person for a “substantial period of time,” “exposing the victim to risk of bodily injury,” hold the person in “involuntary servitude,” or move the victim a “substantial distance.” Id. Mr. Burton’s short encounter with L., which she described as consensual and voluntary, fall into none of these categories.
Furthermore, ‘detention’ as defined in Utah case law requires some kind of physical or psychological confinement. Utah first addressed the meaning of the word detention in State v. Couch. 635 P.2d 89 (Utah 1981). “A kidnapping begins when the detention be-gins to be against the will of the victim.” Id. at 93. This definition is supported by other sources. For example American Jurisprudence states, “The crime of kidnapping, by its very nature cannot ordinarily be committed by an act to which the supposed ‘victim’ consents in a legally valid manner; both at common law and under modern statutes, the taking or carrying away must be against the will of the victim.” AMJUR Abduction §25. Elaborating on the words “against the will of the victim,” the Couch court described the actions of the defendant as “[f]orcibly removing a person a substantial distance from her normal surroundings and natural sources of aid in an isolated area where she is entirely at the mercy of her assailant. . .” Couch, 635 P.2d at 93. The encounter at issue in this case was never against the will of L. and therefore a detention never began. The defendant did not forcibly remove her, she came willingly. Each of the quoted portions of L.’s testimony bear this out. In fact, this Court stated at the preliminary hearing, “There’s not evidence here to show to me that L. did not consent.”(Preliminary Hearing at 182:19-20.)
Moreover, the Utah Supreme Court has looked at far more egregious circumstances than those presented in this case, and found no evidence of detention. In State v. Finlay-son, the defendant lured the victim to his apartment under the pretenses of studying and then sexually assaulted her. 2000 UT 10, ¶3-5. The court found that this was not a detention because, “[the victim agreed to meet defendant, and then agreed to accompany him to his apartment.” Id. at ¶22. Even though, the “defendant deceived her as to his intentions . . .her decision was not made against her will and was not a ‘detention’ within the meaning of the aggravated kidnapping statute.” Id. (emphasis added). Unlike Finlayson, this court has already found that any sexual acts that occurred in this case were consensual. (Preliminary Hearing at 182: 18-25). These findings clearly support the conclusion that L.’s decision was not made against her will and there was not a ‘detention’ within the meaning of the kidnapping statute
.
THE DEFENDANT IS NOT GUILTY OF KIDNAPPING BECAUSE HE LACKED THE REQUISITE INTENT
Mr. Burton cannot be convicted of kidnapping because the State has not proven he intended to kidnap L. Section 76-5-301 of the Utah code defines kidnapping. The first section states “(1) An actor commits kidnapping if the actor intentionally or knowingly, without authority of law, and against the will of the victim: . . .” Utah Code Ann. 76-5-301(1)(emphasis added). This statute specifically requires the State to prove that the defendant acted with intent or knowledge in committing the elements of the crime. The Utah Code defines intentionally or knowingly as follows:
(1) Intentionally, or with intent or willfully with respect to the nature of his conduct or to a result of his conduct, when it is his conscious objective or desire to engage in the conduct or cause the result.
(2) Knowingly, or with knowledge, with respect to his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or the existing circumstances. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
Utah Code. Ann. §76-2-103 (emphasis added). Thus the standard to judge intent is what the defendant actually knew, not what he should have known. “Liability for criminal negligence attaches where the defendant "ought to be aware of a substantial and unjustifiable risk, and thus may be based on objective criteria. By contrast, liability for criminal recklessness, knowledge, and intent require actual knowledge or awareness, and thus turn on the defendant's subjective mental state.” State v. Martinez, 2000 UT App 320, ¶12, nt. 5, 14 P.3d 114 (emphasis added).
In this case the State must prove that Mr. Burton intended or knew he was detaining or restraining L. The facts must be viewed from the subjective mental state of Mr. Burton. Given that, L. has testified that she voluntarily got in Defendant’s car, she was free to leave at any time, and that she knew what she was doing, there is no evidence to support the conclusion that Mr. Burton was intending to restrain her against her will.
The State argues that the Defendant can be convicted under subsection (d) of the statute. The kidnapping statute including subsection (d) reads:
An actor commits kidnapping if the actor intentionally or knowingly, without authority of law, and against the will of the victim:
(d) detains or restrains a minor without the consent of the minor’s parent or legal guardian . . ., if the minor is 14 years of age or older but younger than 18 years of age.
Utah Code Ann. 76-5-301(d)(emphasis added). Thus, the state must prove that Mr. Bur-ton intentionally detained L. knowing that she was a minor. “Due process requires that each essential element of a crime be proved beyond a reasonable doubt.” State v. Russell, 733 P.2d 162, 171 (Utah 1987). It is clear that Mr. Burton had no intention to detain or restrain L. Additionally, he had no knowledge that she was 15 and a minor.
It is true that with many crimes against a minor the “defendant's knowledge of the victim's age is not an essential element of the crime.” State v. Martinez, 452 Utah Adv. Rep. 62, ¶12, 52 P.2d 1276 (Utah 2002)(Martinez II). In the Martinez cases the courts were reviewing the statute regulating unlawful sexual activity with a minor. See Marti-nez, 2000 UT App 320; Martinez II, 52 P.2d 1276 (Utah 2002). The Supreme Court sta-ted, “Allowing the defense of mistake as to the victim's age, or requiring the prosecution to prove a mens rea for a violation . . . would render [the statute] inoperative.” Martinez II, 52 P.2d at 1279. Thus, the court concluded that the statute imposed strict liability. However neither this rationale nor the law regarding strict liability apply in this case.
Before a court can impose strict liability it must find that it was the Legislature’s specific purpose to impose strict liability. See Id. “An offense shall involve strict liability if the statute defining the offense clearly indicates a legislative purpose to impose criminal responsibility for commission of the conduct prohibited by the state without requiring proof of any culpable mental state.” Utah Code Ann. §76-2-102. “We discern legislative intent and purpose by first looking to the “best evidence” of its meaning, which is the plain language of the statute itself.” State ex. rel. Div. of Forestry, Fire & State Lands v. Tooele County, 2002 UT 8, ¶10. The plain language of the statute gives no indication that the legislature intended the age requirement of the victim to be a strict liability crime.
The Unlawful Sexual Activity with a Minor statute is a good comparison to show how legislative intent is interpreted. In, State v. Elton, the Utah Supreme Court held that the Unlawful Sexual Activity with a Minor statute included a mens rea of criminal negligence in connection with the age of the victim. 680 P.2d 727, 729 (Utah 1984). This decision was reversed in the Martinez case. 2000 UT App 20, ¶12. The difference between the cases was not judicial interpretation, but a change in the statute. After Elton, the legislature added §76-2-304 to the criminal code, which reads: “It is not a defense to the crime of Unlawful Sexual Activity with a Minor . . . that the actor mistakenly believed the victim to be 16 years of age or older at the time of the alleged offense or was unaware of the victim’s age.” Utah Code Ann. §76-2-304(2). This addition to the criminal code showed the clear intent of the Legislature to make statutory rape a strict liability offense. The kidnapping statute contains no such language. However, it does contain a mens rea requirement of knowledge or intent.
[1] Jurisdictions imposing strict liability for statutory rape include Alabama, Arizona, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, Virginia, and Wisconsin. Martinez, 2000 UT App 320, ¶15, nt. 10. citing, Colin Campbell, Annotation, Mistake or Lack of Information as to Victim’s Age as Defense to Statutory Rape, 46 A.L.R.5th 499, 510-13.
II. L. CANNOT BE FOUND MENTALLY INCOMPETENT UNDER THE KIDNAPPING STATUTE WHERE SHE HAS BEEN FOUND COMPETENT TO CONSENT TO SEXUAL ACTS.
It is clear that L. was found competent to consent to sexual acts under the sexual offenses statute. At the preliminary hearing Judge Mower asked the prosecution:
“Mr. Lind, how do I, how do I listen to L. tell me about what she saw and what she heard and what she did, and she’s got a good memory and speaks forcefully, and how do I do that and then find her to be mentally incompetent at the same time?”
The prosecution responded: “It is an irony I agree, Your Honor.”
At the preliminary hearing the charges for aggravated kidnapping were dropped because this court found that L. was capable of “appraising the nature of [her] acts” and consenting to them. See, Utah Code Ann. §76-5-406(6), (Preliminary Hearing at 182: 18-25). Now the prosecution wants L. to be found incompetent under the kidnapping statute. “When interpreting a statute, this court looks first to the statute’s plain language to determine the Legislature’s intent and purpose. We read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters.” Miller v. Weaver, 2003 UT 12, ¶17, 66 P.3d 592 (emphasis added).
[Preliminary Hearing at 178]
While the kidnapping statute does not contain the same definition for mentally in-competent person, it defies reason to say a person is competent enough to consent to intimate acts, but not to accompanying another with whom they will commit the acts. Judge Mower recognized this paradox in the statutes when he said: “So I’m right back in the same conundrum again because I’ve got to talk about competence and I’ve got to find that she’s mentally incompetent in order to find lack of consent in the kidnapping.” (Preliminary Hearing at 181:4-8.) Finding L. competent to consent to sexual acts, but in-competent to consent to leave with someone in order to commit those acts would make the application of the statutes arbitrary and capricious and deny the defendant due process. This Court found that L. knew what she was doing. It is only reasonable and rational to apply that determination to the kidnapping statute as well as the sexual abuse statute.
CONCLUSION
This case should be dismissed because the State did not present at the preliminary hearing and cannot present the prima facie evidence necessary to convict Mr. Burton of kidnap-ping. There is no evidence of a detention and the defendant did not intend to confine or restrain L. The Defendant made an error in judgment but he is not a kidnapper. The elements of the this serious crime cannot be proven to survive a Motion to Dismiss when the State rests its case, nor can the case be proven beyond a reasonable doubt.
DATED this _____ day of February, 2005.
BUGDEN & ISAACSON, L.L.C.
I thought that it was a very good memo. And note that the “PTM” was full of my own arguments. Shaped and tweaked a little, yes: but they were essentially mine. Okay, I’ve already said that. So yes, I’m tooting my own horn. Wouldn’t you?
I have also said that I would have never received that memorandum had I given Eric Lind a plea. And having received it, now, how could I go to court with such a document and say that I was guilty of something?
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As mid-February dawned, I was feeling confident. I had glorious visions of prevailing in court. After that I would come home to Breck, and miraculously win the lottery, to metaphysically restore my life. Then I would enter a snowboarding race, and win my age division. Yes, that would be on my birthday. I saw it all so clearly— in my waking dreams. For I had faced it all— at this point— and I had endured. And as surely as life had dealt me such shitty cards, now life would adjust anew— and deal me my reward.
But don’t think my stomach didn’t still jump up and down. For my stomach did not feel as confident as the rest of me. The rest of me was cocky— and haughty, and sure: Too sure, though, for my sibling’s likings. That was why Mark called me to recommend I take the plea deal. I took the call in my Subaru, on a snowy night, in the parking lot. That was because the battery was low on my cell phone, and I had only a car charger then.
There I listened to Mark implore me to take the deal, as I said. But somehow he missed the point, I felt. He said that I could not hope to change Eric Lind, by being so determined to fight. But I did not aim to change him. In fact, I doubted seriously whether anything would ever change him. He was a lost cause. No, it was the system itself that I was fighting: people like him, the forces of evil, and the domains they had staked. The inhuman habitations they had forged— and the law as immutable force of nature attitude they pretended to. Something like that. The goddam unbelievable entitlements of those people, in any event: but not Eric Lind specifically, on that. No, I preferred that Eric Lind grow up, of course— and join the human race— while suffering a great deal along the way- but I was not about to hold my breath for him.
But the laws of Utah had to change. And who better to lead that fight than I? I had no family, I communicated well, thought clearly (well not always), and presented myself well too. Plus, I’d had my winter of fun— as I had planned— to that would tide me over for a while.
Well it wasn’t quite a whole winter of fun— since Wally had scheduled my trial
for the first freaking day of March. But it was close enough. So no, Mark, I said. “I have to fight this thing”.
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Jeff was concerned for me as well. He was very impressed with the PTM too, as I’ve already told you. And he was impressed by the fecundity of my mind. Ah, shucks. But he still had a warning for me. After all, he’d been in court many times. His concern was that Judges sometimes have agendas: that sometimes they just do whatever they want to do—regardless of the facts- and that being “right”, therefore, is no guarantee of victory.
He wasn’t impugning Judge Mower, though, for he knew nothing about him (at least, I don’t think he did): It is quite important that I that make that point clear. But Jeff’s point was well taken anyway. I took it to heart, I mean.
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In late February Leslie sent to me an e-mail she’d received from Wally. In it, he was responding to a question she had asked. Basically, she’d asked Wally if I was ma-king a mistake— in his opinion— by being so recalcitrant. This is what he said:
Dear Leslie,
If we go to trial, I think the chances of an acquittal are extremely slim. Kidnapping is a second-degree felony. Upon conviction, I believe the prosecutor would ask that Royce be taken into custody. He is from out-of-state and unemployed. The crime of kidnap-ping is considered to pose a threat to the safety of the community. Assuming the judge convicted Royce, the presumption is in favor of immediate incarceration on a felony matter. Then at that stage, incarceration would be in the Kane County Jail until sentencing which would probably be about 60 days later. After the sentencing, I believe the most likely sentence for a crime of the seriousness with a victim with special-needs (i.e. men-tally incompetent abused by a total stranger) is prison. The prison sentence would be one to 15 years at the Utah State prison. It is what is called an indeterminate sentence. The board of pardons would decide how long beyond one year Royce should serve. His release date will be related to his acceptance of responsibility and level of remorse. Any appeal will have to be filed after Royce has been sent to prison. An ap-peal will cost anywhere in the range of $10-$20000 and will take a year or two to pursue.
Wally
I must admit that made me feel woozy. But on the other hand, what exactly was going on? When he’d expressed his joy early on, he’d said probation might be possible. And the last time I’d actually spoken to him in person, he’d said my chances were less than 50/50— but he added that if I lost I’d probably get at most a year. Now he was claiming— to someone else— that I was likely to get much more.
Was he just trying to scare me? Trying to prepare me for the worst, that is? If so, I understood that—and that was arguably a good thing. But I suspected there was something else going on, too, that I didn’t understand. So I felt left out of the loop again— on my own goddam defense. I was terrified anew.
I also wondered when he had written that e-mail, though: for I was hardly unemployed! I’d held two jobs, even— for the past two and a half months!
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Leslie still hadn’t gotten a response from Judge Brewer. So it seemed that he had just ignored us. But perhaps he’d simply been too busy, to comment on my case. Or maybe our appeal had fallen through the cracks, somehow. Yeah, maybe. But it was also possible that he’d outwardly ignored us- but had gotten in touch with Judge Mower anyhow.
But such speculation was insufficient. The stakes were too high and I needed more certainty than that. I needed to hear from Joe Brewer: I had to know what he thought about my case— before I risked the trial. If he also said he thought my position untenable, too, then I might decide to deal.
So the eleventh hour was approaching. And my resolve was waffling a bit.
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CHAPTER TWENTY-NINE
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Then late February was upon me, and I had no place left to go. Except for Kanab.
I called Cathy to tell her I was leaving, but not another soul in town knew. Nor did anyone else in town even know I was in trouble with the law. I hadn’t even told Chad.
I hadn’t invited so many people to the trial this time, because I knew there was another possibility of delay. I’d already put too many people through that bullshit once before. Mark was coming, though, and so, of course, was Leslie. But that would be the entire roster of spectators for my trial this time— for the defense side, I mean. Prosecution would have its own litany, I was sure: organized women against child Abuse, and the like
I arranged with Cathy for her to clean out my room— should I lose at the trial. And I clandestinely removed everything from my Ski School locker— and put it in my room. But I didn’t bother to request time off from the Ski School. Nor from the Salt Creek. Instead I represented myself to both places as having an emergency, for which I had to hasten home. Yes, I lied— but that was sort of true.
Fortunately I was able to cover all my shifts at Salt Creek. But as for Ski School, I merely called off: I said I’d explain when I got back. Hell, I didn’t want to screw them, but my problem was so much bigger than any I might be creating for them. And in the end I learned that I didn’t screw them anyway. They got by. So enough about them now.
And then I drove to Kanab again— in the dead of winter.
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I arrived two days before the big event. Since that was to take place on a Tuesday, it meant I arrived on Sunday night. I arrived around dusk— and parked by the water tower. Then I did something that was along time in coming: I hiked to that upper tower— the one I’d headed to with Corissa, the day I was arrested! It only took me five minutes, too. But then, I can walk quite fast!
After that I called my buddy Bret, and told him where I was. I apologized for not having invited him down, this time. But I said that I could use some moral support. He sounded disappointed, and said he wished that he could be there. He also said his instincts were telling him it would turn out more or less okay: “The outcome might not be exactly what you want”, he said— “But I think it won’t be bad”. I wonder if he’s looked off to some distant oracle too, before saying that— like Melissa and Erin Kate had done.
The evening was brisk. There was moisture in the air, and the sky was somewhat cloudy. In town again I asked a guy about the recent weather. He said it had been cloudy every day. Fuck! That was very bad news. I still wanted the day I’d dreamt of having. I still needed the day that was meant for me: that sunny day, I mean. A day on which butterflies might come out.
Guess where I slept that first night in Kanab? Easy: behind the water tower.
Wally was supposed to be in Kanab by then too. Or, at least, that was when he said he’d be there the last time we had discussed it. But since then he had not communicated with me— except to send me packages, of course: Discovery stuff, letters, transcripts, and the like. But as far as our meeting in Kanab was concerned, I was still operating on four month-old information: the date and place that he had told me he’d be, when he’d so curtly expressed his disdain in October. He was pissed off because I hadn’t taken the deal— and because he didn’t think I’d be able to get it back. That non-communication since then was distressing, too. I felt abandoned there.
On Monday morning I called Wally’s office to find out exactly where the fuck he was. I reached one of his assistants there, but I don’t recall her name. It wasn’t Kim. She said Wally was already in southern Utah— but that he had gone off somewhere hiking for the day. HIKING?! I couldn’t believe my ears. So I asked where he was hiking, and she told me that he was in the Buckskin Gulch. That was not too terribly far from Kanab. I knew the place. I’d even been there myself—during that era when I’d been using Kanab as a base. Anyway she said I could probably catch up to him. But I didn’t see the point.
I did tell her that I was feeling abandoned, though: that it was the most important day of my life— and that my Attorney was off taking his own pleasure. But she persuaded me that behavior was just part of his “process”. Something like that. I bought it, too. That meant his hiking trip could be a good thing— for me.
Later Wally’s assistant called me back. She gave me the name of his hotel, and she said that I should plan on meeting him later in the day. But it was to be an evening meeting- and it seemed to me we still had a great deal to discuss. I thought we needed much more time than that, in other words! Shit! Then I did consider driving to the Buckskin Gulch. But I didn’t go.
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Leslie and Mark would meet in Las Vegas that same evening, and rent a car and drive up to Kanab. Leslie had once again arranged the hotel room there where we three would stay. But since I wouldn’t be able to check in until the early afternoon, I had half a day to kill. So what was I to do? Well killing time in Kanab was hardly new to me, so I killed most of it at the Vermillion Café. Harold was there too— of course— and he asked me how things were. But I think I only grunted. I didn’t tell him anything.
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After I checked in to the hotel room, I watched some television. Day fare, mostly: stuff I really hate. Then I took a nap.
In the evening Wally called and said that I should meet him in a certain Mexican restaurant for dinner. It’s a small town, so I knew the restaurant well enough that I had to express my concern that we wouldn’t be able to talk in private there. But Wally thought we could, so that was where we met.
I arrived first, and waited at a table. Eventually Wally came strolling in— looking like he’d just gotten back from a hike. He was dressed very casually, I mean. But at least he had showered.
I was right— the privacy was not really there. But we talked anyway— guardedly, and in low voices. He reiterated that he thought that I’d made a terrible choice. Going to trial, that is. Then of course we spoke about many things.
He said that certain things on the transcript were not as he remembered them either. But he thought the idea ridiculous that anyone had changed it. So I dropped that.
He said that the Judge had merely scrolled down from the AK statute to arrive at the simple K: that he would have just scrolled downward— and stopped at the first lesser included there. Interesting, I thought. So I was right to say I was suffering the repercussions of a statute I should never have been charged with. But I did not say that.
He said he’d contacted the Prosecutor that morning, despite my directive not to deal— he’d done that because his job was to watch out for his client— “Even when they’re being stubborn”. And he said he’d tried to persuade Lind to offer a misdemeanor. But Lind had stayed dug in. The prick.
He commented on one of my final letters. The one where I had said “Fuck him”, about Eric Lind. He said I’d sounded angry— and that I was haughty and arrogant as well.
And he told me he wasn’t sure whether the Judge could even find UD, in the end.
UD, as you remember, was a charge he had dismissed. In my mind, though, he could find me guilty of it anyway— since it was still a lesser included of the K. In fact, I still thought it was a shoo-in for him to find me guilty of that charge at the most: that all he had to do was believe I didn’t know Corissa was eighteen, and to rule that I did not have strict liability on that point— in order to find me guilty of it— instead of the K!
Why could he not find for the UD, I asked? Was it that for having dismissed it once, that he couldn’t land there again? Or was it the problem with the inconsistent language once again? Well Wally said he didn’t really know. Shocker!
As I pondered that new problem I remembered something else that Judge Mower had said at the Prelim “…so it’s kidnapping or nothing”. That meant that that quandary was a real one: that it was not based solely on Wally’s speculation. It might have meant that the Judge had excluded UD from his future consideration, just for having said that.
But if so, then would he be more— or less likely to convict me of the K? Oh shit.
.
Nobody knows these fucking things. It’s always the same thing. Nobody seemed to know a damned thing about how this amazing convolution of laws worked— or about anything it gives rise to. It was the same shit every time.
But I thought I needed an answer to that question too— before I could go on:
whether the Judge could find for the UD, that is. Whether he thought himself at liberty. It was an entirely new wrinkle— and one I hadn’t thought of. It was an eleventh hour snafu.
Wally said that the Judge might think there was a detention by any standard— if I’d just told Corissa to “get into the car”. And that thought gave me pause. For I assumed he meant if I had ordered her into the car. As in “GET IN”. But what if I had casually said to her “get in”— as in “It’s okay now— your seat is clear of all my stuff and so you can get in”. I know I did not do the former. But is it possible I’d done the latter? I thought not, but it is possible that I did. It does sound marginally like something I might say.
Ah but so what. That wouldn’t have run afoul of any social convention if I had merely said “get in”. But what if Corissa does testified I’d said “GET IN”?! Damn it!
Then Wally dropped a bombshell on me. He said that the day after my trial he had to argue some damned thing or other before the Utah Supreme Court. He said that that court is recalcitrant on such matters, and does not allow extensions even for lawyers involved in ongoing cases. Therefore, we’d have to wrap my trial up by 2:30 PM, so that he could catch his flight. WHAT?! Did he really mean that on the most important day of my life— with my trial having been scheduled to take place on a day I did not want it on to begin with— and scheduled to his goddam convenience— that I was now going to be rushed through my trial— so that my Attorney could rush back to a meeting mandated by yet another court?! Yes, actually, he did men that. That was exactly what he meant.
Furthermore, the start time of the trial had been pushed back to 8:30 AM— so we’d pick up half an hour on the front end. Well BFD. (Big fucking deal.) The goddam prelim had lasted for four hours. Why should I think the trial could be completed in six?
We were interrupted by the ringing of my cell phone. I answered it, intending to make it quick. It was Kelly Sheehan, from Ski School, calling me from Breck. Of all the times to call! I had taken a shine to her, and had been trying to arrange a date.
But what should I even say to her?: that I might not even be back?; that she was a good reason to want to come back? It was weird and awkward, and I wished she hadn’t called.
“I really want to talk to you”, I said— “But I’m in the middle of something really important”. Then I said “I’ll see you when I get back”. I tell you this because as I replay that conversation I think I’d made up my mind already: to take a deal, I mean— if I could still get a good one.
Wally reiterated that I’d probably be taken into custody at once— if I were convicted— because I posed a “flight risk”. But was that much even true? I no longer knew how much was true and to what extend was he just trying to scare me. Or whether he was scaring me out of duty, or rather just to get his way? Maybe the case was that nobody wanted to have to try this damned thing—that maybe even in winning, somehow Wally would look bad: that helping a heinous child molester walk would make him look mercenary.
Neither of those, by the way, were proper reasons for trying to scare me into taking a deal: not by me, at least. But something that had been nudged in Breckenridge was snowballing down a hill. It was distrust.
Wally said that if I had taken Lind’s deal that after two years all I’d have would be an A misdemeanor on my record. That would be Custodial Interference. “A legal fiction”, was what he called it. But I didn’t know what that meant. “It means it’s something made up that has no real applicability to your case”. Oh, okay, I thought. But so what?
I asked if we might still get back that final deal, which Lind had offered in October. He said that he would try. He’d call Lind at home and then give me a call later.
Then our meal was over. Wally picked up the check. I sauntered back to my room to take another nap. I was depressed. Everything seemed to be going the wrong direction again. And I had new questions and concerns.
********************************************************
Wally called me later in the late evening. He said he’d been unable to get in touch with Eric Lind. So he’d try to reach us both again later— or he’d just see me in the morning. I was surprisingly calm, though. It was like I did not care: like I did not have a preference either way. Trial, deal, or whatever else— they did not seem to make a difference, anymore. So I thanked him calmly, and went to sleep.
I heard Leslie and Mark come in very late at night.
The next day I learned that they’d gotten lost along the way— and such a Burton thing to do. They’d gone hours out of their way, it seems, and gotten stuck in Zion National Park. And since it was at night, they didn’t even get to see it!
*******************************************************
In the morning I showered and put on my nice clothes. Okay— I dried off first, of course. I even shaved and brushed my teeth. But this was no time for humor.
We went to the breakfast buffet in the hotel. Eeeh: it was okay. There Leslie showed me that she’d drawn up a Power of Attorney. She wanted me to sign it so that she could manage my affairs— if I lost the case, that is— and was spirited away. I told her I would sign it— if I lost! Then we made our way to the courthouse- again. It was only two blocks away. On the way Mark said he couldn’t believe how calm I seemed. I was.
It was another ugly morning, like the last several had been: misty, that is— and it looked like it would not clear up. So it was not to be the day that I had pinned those hopes upon. Thanks a lot, Wally. Thanks for the goddam March 1st trial date.
We met Wally in the Courtroom. I introduced him to my brother there. He already knew Leslie, of course. Then Leslie, Wally and I huddled for a minute, to discuss some legal stuff.
Wally still didn’t want me to testify. He thought that if I were to testify, that I’d have to admit to all that sexual stuff. And he thought by the disclosures there the Judge would be enraged. So there it was again: the enraged phalanx of judges, ever ready for (attack). Bullshit.
“But Wally”, I rejoined. “The Judge has already heard all of that stuff’. I mean, Jesus Christ: “He already heard all that testimony from Corissa, and he threw out the sex charges nonetheless”. So why would that same testimony now enrage him? I was tired of hearing about the antagonized Judge. Interestingly, Wally’s eyes did light up at that. Like he thought I might just be right. And Leslie looked as though she thought so too. But I had already told Wally that before. Had he stopped hearing me too?
And did that mean that the motion-in-limine had been shot down, or forgotten?
Then Lind appeared, and Wally excused himself to talk to him about the deal. He was optimistic that the Prosecutor would re-offer his late October deal: so exactly what I had thought he’d do too— even when I was being castigated for passing up that golden opportunity. Or that “perfect storm”, or whatever the fuck it was.
I noticed that Dickie Robinson was in the courtroom. But she did not look at me. Then when I excused myself to go to the bathroom, I saw Corissa in the hall. She was off in a corner with some fat woman I’d never seen before. It was her suicidal Counselor, I guessed. Corissa strained to look at me then. Again, she looked quite cute.
Then I stepped outside for a minute, to check upon the day. It was still misty out. Visibility was poor.
As I went back inside I heard a voice, and saw a woman. It was Cora Richards— or Wilson, or whoever the fuck she was. She addressed me as Ross. And she told me she forgives me. Wow! I told you I do not think quickly upon my feet, for if I did I would have asked her “Then why are we here?” But instead I said “Thank you: that means a lot to me”. I told her I hoped we could have a dialogue about this, at some time in the future. But she dismissively said “Let’s just pray upon it”. LET’S PRAY UPON IT?!
Back in the Courtroom Wally summoned us aside. All three of us, I mean: Leslie, Mark, and I. once again it was to sojourn to a private room. And once again, we kept Judge Mower waiting.
He said that Lind had offered the same deal. Once again he outlined its terms: I would enter into a Plea-in-Abeyance agreement. It would last for two years. During those two years I would have to under-go a psycho- sexual Evaluation, including a plythysmo-graph. And I would have to follow the Counselor’s recommendations. That meant some counseling was almost assured. There would be “court costs”, of exactly $1000— and there would be reimbursement of Corissa’s excess counseling fees. But those would probably only come to a couple hundred dollars, he assured me. Finally, I would have to report to the court every three months— to tell them where I’m living, and where I am employed. My Counselor, meanwhile, would report upon my progress once every six months. At the end of the two-year Abeyance period, I would have a misdemeanor on my record. It would be Custodial Interference, as I’ve said.
So it was hardly a sweetheart deal still— but it was scads better than the first— and the second. But when you’re innocent, no deal is sweet.
And has that plea-in-abeyance actually grown from a year-and-a-half to two years since the October offer—or had I just gotten it wrong since the first time?
It was obvious that my two siblings wanted me to take the deal. And I thought that I might take it too. But I asked them all to excuse me. I said I needed five minutes alone to think about it. Then I walked out of the room, and out of the Courthouse too.
I stood outside the building and beheld the weather. In the past twenty minutes
there had been a major change. The mist had lifted, and the sky was pure blue. Oh God: It was the day I had envisioned! Oh shit: it was the day I’d waited for!
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If life were a Hollywood movie, we know what I would have done. I would have charged back into that courthouse, and declared that “It’s my day— I can feel it, we’re going to trial”. There would have been stunned protestations, and a trio of rolled eyes. Then I would have gone into the courtroom against the advice of legions, and stunningly had my innocence affirmed. Perhaps some new evidence would have slipped out then, or some argument made to force the judge’s hand. The gallery would have gasped, and I would have left the courtroom triumphantly: grinning and remonstrating and brushing past Prosecution’s grumbling phalanx. And the sun would be not only shining then, but burning holes in our very marrow. A mass of migratory butterflies would have swirled all about— and I would have gone home singing “My Way”
If it had been a Hollywood movie, that is, then that is surely what would have happened.
But life is not a Hollywood movie. So I took the deal. And instead of butterflies, celebrating my success, it was a buyer’s remorse which slid into a landing pattern there. And there were lots of relieved eyes which found their niche as well: Wally’s, Leslie’s, Mark’s and mine. Yes, mine— but only to some extent. The others may have thought it was over— but to me it meant just one more respite. For me it was still far from over, and I would still fight on: carrying my fight to other courts, and via other means. Into still other avenues of research, I would pour my energies. In fact, I already had a few new avenues in mind… Like going out of State, with the case, to compel my goals.
Perhaps the others thought I was sacrificing all recourse, by taking Prosecution’s deal. But I had been right before opposing what others were sure they knew. And I was still sure that I was right. So it wasn’t over. I still had plenty of fight.
I was given a form to sign that outlined all the terms of the deal. It said that I waived all my rights to all appeals. (Yeah, maybe, I do, I thought- in the State of Utah!)
So all that being decided, witnessed and signed- we filed back into the courtroom.
As we went into the Courtroom I saw the women from the “organization”. What organization that was I have yet to find out. But they were children’s rights advocates, of some stripe or another. And they were exercising their right to sit in on the proceedings: all two of them. They looked right at me as I strode by too— but it was not a glare. In fact they rather exuded the sense that they were quite nice people too. It wasn’t like they were some big biker women who wanted to kick my ass.
Leslie and Mark sat in the gallery. And Wally and I stood beside the table on the right. I guess that time it didn’t much matter where I stood, that final time.
And Eric Lind, the weasel, stood where he usually stood, with his little crossed arms: at the table on the left.
The courtroom session was long and dull. Judge David Mower presided, don’t you know. There was a lot of talking going on, amongst him and the two attorneys. And as usual I hardly remember any of what was said. But one of the first things Judge Mower said I do remember. It was that he wished he had a nickel for every time a case was resolved on the morning of the trial. There was nothing at all surprising to me about that.
It was a lot of formality, really— all the talking and discussion that went on: agreements and recordings as to the terms we had accepted. But I’ll bet you that nothing that was said that day was left out— of the official recording, I mean. Harrumph!
I was expected to admit that I had been with Corissa on the day in question. So I did that readily, of course. Hell, I never had denied that.
I was expected to accede to all the terms. No problem there either. Then I was expected to offer a formal apology— to Corissa and her mom.
Don’t think that provision was too strained in coming, either— because I’d intended an apology— almost all along. Of course, my resolve there had weakened too— when I’d decided Cora had participated in so much evil against me. But in the end, I figured that Cora had a right to know where we’d been going when I “took” Corissa up the hill. I figured that a mother has the right to sleep at night.
But I still did not tell her where we’d been going. Instead I said something very much like this, as I faced Cora and Corissa:
“An apology is the easy part; I’d been intending an apology all along. My behavior was inexcusable, and I take full responsibility for it”. Then I turned to Cora specifically, and said to her; “Cora Richards*, when I met you briefly out in the hall just now I said I’d be open to a dialogue. And I mean that. I know that you have questions and I have some questions too. But I won’t force myself upon you. So if you want to have a dialogue about any of this stuff, you can contact me through my Attorney”.
If I said more, I do not remember it. But I do remember that Cora’s eyes shone with humanity all the while.
I should say though, that they couldn’t have known whether an apology was coming anyway— without its being required. And what’s the value of a coerced one? Why should they even think that it’s sincere, I mean, if it’s a mandated part of the resolution? Do they just like to play games with themselves?….Or is the situation that my apology is something they could trot out if they decide to sue.
*Did I really use he name Richards there? I wonder why, if I did…
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Then there was the matter of the counseling. I would have to undergo an evaluation, as I said, and abide by the recommendations of my Evaluator. And the Judge wanted to know if I agreed to all of that. So I expostulated once again, saying almost verbatim what I’ve said elsewhere, in this account. “The idea of counseling doesn’t bother me at all. In fact, given the nature of the accusations, I think it would have been remiss of the Prosecution to not have asked for that. I’ve been in counseling several times in the past— by my own volition, and for unrelated issues. And I have always found it to be helpful”
So you see that even in social intercourse I start sentences with conjunctions!
Lind felt that he had to stipulate that I see a Counselor I did not enlist via my sister. I guess he thought she had connections, or something like that. But Wally disabused him of that notion. He said that whatever advantages I might once have had there— if I had— were nullified by the fact that I lived in Colorado now.
My plea deal stipulated that I was free to go anywhere that I wanted to go. I could even leave the country— as long as I paid my court costs ($1000), reimbursed Corissa’s family (an amount still to be discussed) and completed all the terms of the plea-in-abeyance: that PS Evaluation; whatever counseling was recommended; and a letter every three months, telling the court what I was doing. Oh yes: my Counselor would have to write a letter every six months, to tell how I was faring there. As if these people really cared!
The Prosecution stipulated that I submit to a search by any law enforcement person. Should they stop me, that is— for any reason— and ask me if they could. Wally said he could not understand that provision, however, as I’d be living out of state where there would be no one to enforce that particular provision. But I knew why they were asking for it. It was in case I went back into Kanab and started sniffing around their cesspools. In case I started investigating their old skeletons, I mean. For then a cop or sheriff could search me and plant some evidence on me— and haul me off to jail.
Every other aspect of this deal you already know. Except that I was given ninety days to complete my evaluation- and that my payments to the court would be broken down into monthly payments of $42, which would commence right away.
And then we were through. But before I left that table, Cora and Corissa both came forth to shake my hand. I was actually moved by that, and I shook them both, of course. Their hands, I mean! And they both said that they forgave me.
And that was fine and good, of course, but I had not forgiven her. Cora, I mean. You know I’d never felt a moment’s anger toward Corissa.
It was funny, though— in a way— that Corissa offered me her left hand. Well why the hell is that funny, you might want to know? It seems more pathetic, you might say, that she was so confused. Well it’s because she was standing right next to Cora when Cora had shaken my hand. And she had seen Cora shake my hand with her right hand. Yet Corissa still waffled for a moment, trying to decide which hand to use. Then she used her left one. Hmmm. You want courtside humility here, perhaps, but even then I was incorrigible me: it appeared to me that she’d been coached to stick out her left hand then. Fine. Call me paranoid.
Then Mark Fisher approached from across the room. He stood right beside me once again, as he had before he’d busted me. And he extended his hand too— and once again. And damned if I didn’t also take his hand. Then he said “I hope things go better for you from here on out”. He said it without a trace of malice. His eyes even flickered then, with their own humanity. It was an amazing moment! I said “Thank you: do you really mean that?” And he said “I wouldn’t have said it if I didn’t’. I looked at him again, and finished up by saying “I can see it in your eyes that you mean it!” I honestly did not want to hate Mark Fisher.
But Eric Lind dared not approach. I doubt a Prosecutor would ever do that any-way. But I hate to think of the words that might have been exchanged had he come over to me, intending to shake my hand— intending, to suggest we’d found some fair result, for example— with which we all might live. Bah!: the only “fair” I cared about then was to hear him fairly scream— as I watched him bursting into flames!
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Outside the Courthouse Wally made conversation about his daughter. It was I who had brought the subject up. He’d alluded to her at the Preliminary hearing— almost a year before. He’d told us then that she was a swimmer, and that she was going to be in the Olympic trials. So the Olympics having come and gone, by then, I asked him how she’d fared.
Well the good news was that she was going to college on a scholarship. But I don’t remember where. The bad news was that she had been too short to make the cut. She was fast, but not so much that she could overcome her height disadvantage. And he said that through her he’d met several of the Olympic stars. That was exciting to me.
I asked him if he thought Aaron Piersall had cheated, at the Olympics that had just passed. There had been a scandal, because of his method of turning, and one of the judge’s had called him out for it. I didn’t know the exact and specific rules— but they had looked very suspicious even to me too. That was why I’d asked the question. And to that Wally gave a big sigh, and uttered “Nooo”.
Changing the subject, Wally said that right after our courtroom session he’d rushed in to see the Judge. He’d given him the PTM, it seems, and said “Hey judge- you’ve got to look at this”. JUDGE— YOU’VE GOT TO LOOK AT THIS! Just how, exactly, should I interpret that? Could it be that he’d thought it was one of the best PTMs he had ever seen— let alone compiled— and that he too was sure it was a winner, after all? Yes, I’ll bet that was what it was!
Wally also confided— or revealed, perhaps— that the reason Lind would not offer a misdemeanor was that with it he couldn’t “control me” with it. Um hmm: just what I had come to suspect. Or had come to wonder about, at least. I’ve said that, I know. So it was that extradition thing, again. But I had to wonder how to interpret that disclosure anyway. Did that mean that Lind himself really thought my crime was just a misdemeanor— but that he was maliciously prosecuting it, beyond even what the evidence suggested? All that just so that he could “control” me? Bah! I could not believe that that was true.
But I’ll bet the son-of-a-bitch would have immunity for even that behavior!
My siblings and I retired to the same restaurant Wally and I had eaten in the night before. We wanted to have some lunch, before they went home. There Mark and Leslie expressed their admiration for the topography they could see looming in the distance. And I’ve affirmed before that it was indeed very pretty. But I told them that they’d seen nothing yet.
We called Jeff. I don’t think I’ve ever heard such relief. He reiterated that you just never know: that Judges don’t always do the right thing, and all that stuff. Once again I was touched by his concern.
There was a family eating at a nearby table. It included a small boy, who seemed to focus in on me. Cute as a bug’s ear, he was. And I’m afraid that I encouraged him. I remembered what Sara had said; “That children and animals know (about a person)”. And that thought of hers still comforted me. But this one was still too young to know— at his age they surely trusted everybody. So Sara’s rubric fell flat there. But it still felt good to be engaged, by one so young. Perhaps the case was that even at his age, though he might not know if someone’s good— he might still know if someone’s really rotten!
After lunch we went our separate ways: Mark and Leslie went back to Vegas, and I went back to Breckenridge!
