The Verdict Is In....

I've struggled the last few days trying to decide how to write this. Last week was truly one of the most grueling weeks of our lives. It's just a step down from Mark's 30 day visit in the hospital. At least this time I had him alive and well, and by my side.

I know you're all curious, so I'm just going to give you the details. There are 6 critical people in this story. Mark, Chuck, Mike, Ana, Tish and the eye witness. Chuck is the one on trial, his wife is Ana. Mike is another of Mark's brothers and his wife is Tish. The four of them were at Chuck's house when the assault took place.

We met with the prosecutor right after jury selection and just before the trial started, and the judge evoked the exclusionary rule, which means anyone that is going to testify (except the defendant and the victim) cannot be in the courtroom until they have testified and have been excused by both sides. So, I got the difficult blow that I couldn't be by Mark's side until the end of the second day (I was the last to testify for the prosecution). The prosecutor, who I believe is one of the BEST at his job, said he fought for me as I wasn't testifying to any facts since I wasn't at the scene. But the judge said no, so I had to watch my Mark walk into the courtroom alone. I felt as if I was sending him to the wolves. Fortunately, much of my family was there so he really wasn't alone. And neither was I. Since I had asked some of our friends to be character witnesses in case the prosecution had to go down that road, they too were excluded from the proceedings. Kim and I parked ourselves on a bench in the hallway and tried to entertain ourselves so we wouldn't look at the clock every 30 seconds. We were only partly successful. It was difficult being left in the dark.

Mark testified first on Monday afternoon. He gave his testimony about Chuck's trailer that had been brought to Mark's job by another brother. The trailer was damaged by another contractor and Mark had offered to repair the trailer for Chuck. In fact, Mark even offered to replace the trailer in order to appease Chuck. This happened in early Fall. After getting estimates and going back and forth with Chuck, they finally decided that Mark could just repair the damaged ramp and they would call it good. As Mark doesn't remember the events of that day, we believe that he went over to Chuck's house to pick up this ramp in order to get it repaired. The only "facts" we have to go on from there are the testimonies from Mark's brothers, Chuck and Mike, and their wives. They gave verbal and written testimonies to the police officers on scene. They said that Mark got out of his truck with a stick in his hand and that Chuck walked out to Mark in the middle of the road and assaulted him, knocking him out. They said that someone drove by, yelled out their window that they were calling the cops, and then the brothers drug Mark into the house. The prosecutor asked Mark how this has affected his life and his family. Mark was overcome with emotion and when he could finally speak he only said, "My heart is broken because of the pain that this has caused my wife and my children. It has been the hardest on them. It is difficult to watch my family go through such devastating circumstances."

After Mark testified, Dr. Gaufin (the surgeon that saved his life) testified. He went over the CT scans from the night of the injury and in January. He explained how he removed shattered bone fragments, brain tissue and cerebral fluid. I can't wait to get the transcripts of the trial so that I can hear his full testimony. I do know that he told the court that his surgical skills are not what saved his life. He testified that the Lord is the one that deserves the credit. By no uncertain terms, Mark should be dead. He has no explanation for Mark's survival, except that it was not his doing. Such a humble man.

As Mark was a mess after the prosecutor finished with him, the defense asked to wait to cross examine him after Dr. Gaufin testified. That was considerate of them. I do believe that it also worked against them. By this time of day, Mark was exhausted. Physically, mentally and emotionally. Exhaustion makes his brain injury very obvious, where sometimes it's not so obvious. Mark had a difficult time understanding the questioning and I think the jury was made well aware of his deficiencies. This is when the first day ended. We were both spent. Actually, everyone involved in the case was spent.

Tuesday morning began with the testimony of the eye witness that drove by and called the police. In his testimony to the police officers at the scene, he said that he saw a man on the ground being punched in the head by another man, with a second man standing over them with a stick in his hand. When he yelled out that he was going to call the police, the man with the stick threw the stick into the weeds by Mark's truck. They then dragged the unconscious man into the home. He waited for police to arrive, gave his testimony to them and left. This is the exact same testimony he gave on the stand.

When he walked out of the courtroom, Mark followed him out. Mark asked him to stop for a second and introduced himself as the man on the ground that was being hit. Mark shook his hand and thanked him for calling the police as he probably saved his life by getting him to the hospital quickly. I was emotional and gave him a hug. This young college student has no idea how he was an instrument in the Lord's hands. Had he not been willing to involve himself in this crime, my husband probably wouldn't be alive. We will forever be grateful for him.

Now it was my turn. I talked about my conversations that day with Mark, how I found out about his injuries, his stay in the hospital, his deficiencies, and our life now. I was an emotional wreck. My mom said the whole audience was crying, including the judge's clerk. I had to look at pictures of Mark from the emergency room and in the ICU. I had to describe in detail what I saw and heard when I first arrived at the hospital. I had to tell them what Dr. Gaufin said about the severity of Mark's injuries. I felt as if I were experiencing it for the first time. The sounds, the smells, the pain. It was all there. When I was excused, the judge said it was time to break for lunch. I felt as if I were in a time warp. I couldn't believe it was only noon. To me if felt as if I'd been on the stand for four hours. I thought it was time to go home.

After lunch, the defense started their arguments. Ana, Tish and Mike all testified. They claimed that Mark was threatening (over the phone) to kill them with his gun. The four of them went from Mike's home to Chuck's home, where they said Mark came on the property, swinging a cut-off shovel handle and continually threatening to kill them. They claimed that Chuck had his own shovel handle and was pushing Mark back towards his truck, on the other side of the road, all the while telling him that he needed to calm down and leave. They claimed that Mark hit Chuck two or three times in the left side. Mike claimed that Mark hit him in the hand, but no one else collaborated that story. They were all over the place with different versions of what happened. There was no consistency in their "facts". They claimed that the police were jerks, not cooperative, and wouldn't listen to them when they tried to tell them what happened. They claimed they were only given five minutes to write their written statements at the scene. When the prosecutor cross examined them he made each of them hold the shovel handle and show him exactly how Mark was swinging. He made each of them estimate how far away Mark was from the front porch, where they claim this swinging/backing up escapade started. He asked each of them at what point when they were in fear for their lives did they call 911. Each of them said, "I didn't." He asked each of them at what point in the last 14 months did they go back to the police to give them the full details of what happened that night. Each of them said, "I didn't." In each of their written statements, they conveniently left out the entire story of Mark being on the property and pushing him back towards his truck. Ana, in her desperation to tell the police what had happened in order to keep her husband out of jail, wrote only six lines in her written statement. Tish didn't give a written statement because she told everyone at the hospital that she didn't see anything. Then on the stand she claimed that she was never approached by the police department to give a written statement. The detective testified otherwise and that she said she had nothing to say.

During the afternoon break, everyone filed out of the courtroom and Mark noticed that his brother Larry had arrived. Mark walked up to him, shook his hand, thanked him for coming and asked him to make sure he told the truth about the trailer. Told him to make sure he testified that it was Larry that brought the trailer up to the job...not Mark. As everyone was in the hallway, this conversation was overhead by Mike and Tish. They informed the defense attorney that Mark was witness tampering.

There was no court held on Wednesday. On Thursday morning the defense attorney brought up the issue of "witness tampering" to the judge. She was not impressed with what he had to say and said she wanted to keep things simple in regards to the facts of the case. Who brought the trailer to the job wasn't relevant to the case. Chuck was the first to take the stand. His testimony was pretty long, as he was the one on trial. Once again, his claims were skewed from the others. He was asked the same things by the prosecutor and gave the same answer to both questions, "I didn't". As we were preparing to break for lunch, the judge asked it there were going to be any rebuttal witnesses from the state. The prosecutor said he was going to call Mark and the case detective. The defense brought up the witness tampering issue again and said that it went against the credibility of Mark's testimony. The judge said she would decide over lunch whether or not she would allow him to give his rebuttal testimony. She then said that the prosecutor needed to provide Mark with a public defender as witness tampering is a 3rd degree felony. Everyone left for the lunch break except me and Mark. I couldn't eat. I was physically ill. Mark was so confused about what had just happened. I tried to explain to him that what he had said to Larry wasn't okay. He couldn't see how telling Larry to tell the truth was witness tampering. It wasn't that he told him to tell the truth, it's that he said, "Make sure you tell the truth. Make sure you tell them that I didn't borrow the trailer." The act of "telling" Larry what to say is the witness tampering part. The prosecutor returned with a public defender and he met with Mark. Mark explained exactly what happened, what he said, why he said it and that he didn't understand everything. The prosecutor, public defender and defense attorney's all met in the judge's chambers and the judge decided she would allow Mark to give his rebuttal testimony, as long as he didn't talk about Larry or the trailer. Whew! I, and anyone that really knows Mark since his injury, knows that he didn't know what he was doing. We're grateful that the judge was able to understand that as well.

Mark was next and was asked to tell about a birth defect he has. He explained that he was born without the pectoral muscles of his right chest. He testified that it has limited his physical abilities on that side. He writes with his right hand but does anything physical with his left. He then stood and removed his suit jacket, tie and shirt for the jury to see the deficit on his chest. Remember that the prosecutor asked the defense witnesses to show exactly how Mark swung the shovel handle and they ALL demonstrated it from the right. Mark has never swung anything with his right arm. His range of motion and strength are much less on the right side, therefore hindering his abilities. He has a "hump" on his back on the left side where his back muscles have had to overcompensate for the deficiencies. You could have heard a pin drop. The entire room went quiet. I do believe it was the final point to tip the scale in our direction.

Mark's mom came in next. She was only there to confirm that Chuck had come to her house on or around December 8th stating that he didn't have anything else to live for so he was going to the hospital to "finish what he started". She denied that he said those words. She said that he was upset and felt that since Mark was in so much pain that he would "end it for him" and then kill himself.

The case detective was next to testify. He said, again, that he had talked to Tish about giving a written statement and that she told him she didn't see anything and therefore didn't have anything to say. He testified that he spoke to Mark's mom about the day that Chuck came to her house and said, "I've lost everything (custody of 2 of his boys). I have nothing else to lose. I'm going down to the hospital to finish what I started." She denied that he said that, even though that's what she reported to the security guards at the hospital, and what they put in their reports.

Let the circus commence. The attorneys now gave their closing arguments. The prosecution goes first and last. The prosecutor gave a brief explanation of what he was supposed to prove and checked each item off the list as he went down. Then it was time for the defense. I was completely floored at his callousness. At one point he was laughing and saying, "You don't have to be a brain surgeon to see that Mr. Davis has suffered a brain injury." He was flippant, immature and showboated. He got several facts wrong. The most important one being that the eye witness saw Mike throw a stick into the weeds. Some of the people that had only come in for the closing arguments couldn't figure out if he was for the prosecution or the defense. He talked in circles and about things that had nothing to do with the case. I guess when you don't really HAVE a case you have to fill in with theatrics and useless oration. Then the prosecutor got up for his final arguments and mopped the floor with their case. He pointed out EVERY inconsistency, EVERY impossibility, EVERY SINGLE ONE. The case detective leaned over right before he started and said, "Now we get to watch Craig work his magic." HE WAS AWESOME!

The jury was then given their instructions. They were excused to deliberate at 4:30. We spoke to the prosecutor and he told us to go get dinner and find something to do as these things can take a while. We gathered a group together and went to Brick Oven. We tried to keep things light, even though I was looking at my watch every five minutes. We got back to the court house around 7:00. We hung out in one of the conference rooms. The prosecutor called me about 8:45 and said the jury had wanted to listen to the eye witnesses' testimony again, but they're not allowed to do that. They have to look at their notes and rely on their memory. At 9:45 he called again and said that the jury was deadlocked. He said the judge had more instructions she was going to give them to see if they could come to a decision that night. As we all sat together in the conference room, hearts racing and palms sweating, Kim suggested we say a prayer. Mark offered a prayer that the jury would be able to come to a decision, that they would remember the things they'd heard and be able to listen to the Spirit and hear the truth. I'll never forget the feel of that room after we closed the prayer. It was quiet and peaceful. I didn't know what that meant, only that I was okay with whatever happened. At 10:15 he called back and said that they were bringing the jury back into the courtroom to give them the additional instructions, and see if they would be able to come to a decision that night. She excused them back to the deliberation room and said the bailiff would come inform us of their decision. About ten minutes later the bailiff came in and said they wanted 30 more minutes. Wow! That meant they were really close one way or the other. It was now 10:45. We stayed in the courtroom to wait it out. Everyone was visiting and trying to spell the tension that was in the air. Funny thing was, I was completely calm. Mark was a mess. He couldn't sit still and was sweating. He was also VERY tired. I must say that that was the longest 40 minutes of my life. At 11:25 the bailiff came back in and said they'd reached a verdict. We all stood as the judge and jury came back in and took their seats.

When Mark and I sat down we held each others hands. Very tightly. I put my other arm around him and held Kim's hand. Very tightly. It happened just like it does in the movies. The judge asked if the jury had reached a unanimous decision. The chairperson stood and said, "Yes". He then handed the verdict to the bailiff, who then handed it to the judge. She read it and then handed it to her clerk. The judge said that the clerk would read the verdict. Even now my heart is racing as I type this. She said," We the jury, in the Fourth District Court of the State of Utah, in the case of the State of Utah versus Charles Lee Davis, on the count of 2nd Degree Felony, Aggravated Assault, find the defendant, Charles Lee Davis, GUILTY."