Letter To Parole (Clemency) Board Against The Parole of A Man who Murdered a 15 YO Child in the 80’s

Tiger eating child

 

 

December 9, 2014

Ms. Ellen Kirschbaum
Chairman
Arizona Board of Executive Clemency
1645 West Jefferson, Suite 101
Phoenix, AZ 85007-3000

Re: Jacob Wideman

ADC # 070340

Dear Ms. Kirschbaum:

When I was a kid, my parents took me to the San Diego Zoo. Back then they had earthen pits instead of cages, round in shape, no bars and you could look into the pit with nothing but distance between you and the animal. At one point, my father and I were standing on the side of a pit looking down at the lions or tigers, some kind of predatory cat, and I noticed one of them just walking around the pit’s perimeter, round and round, staring out as he was walking. I was standing next to my father and said; “I wonder what he’s thinking.”

Without hesitating, my father said; “He’s thinking of a way to escape.”

I asked “What do you think they would do if they did figure out a way to escape?”

My father said; “They would eat you.”

My father went on to explain that he believed that all the tigers or lions ever thought about was escape; getting out. All day, everyday, they walked in circles, checking the perimeter for any opening, any weakness, any change in routine that they could exploit to get free. And, he said, they probably never give up until either they escaped or died, whichever came first.

Jacob Wideman, and all of his ilk, are just like that lion or tiger. All day long, day after day, year after year, they think of one thing: getting out. They look. They think. They act. They go to parole hearings to study the faces and thought process of the parole board honing their pitch, their physical appearance even the sound of their voice. They do and say everything with one thought: getting out, or better said, convincing you to let them out.

You cannot do that.

Like the man who shot and killed my own son, who is also serving a “life term” in an Arizona prison, Jacob Wideman thinks only of getting out. He does not think of the life he stole. He does not think of the misery he visited upon Eric and his family. He does not better himself or look for real change. He thinks only of himself and his goal – getting out. Everything he does. Everything he says and every “change” in his life has a single purpose– getting out.

Do not think that I come to this conclusion because I am the bitter father of a murdered child. I was a criminal defense attorney for 23 years before my son was shot. I helped clients just like Mr. Wideman with their strategies. I intimately know their persona. No matter what he says. No matter what the Wideman family swears is evidence of Jacob’s change as a human being, it is all an act.

Jacob Wideman has not changed because he cannot change. And he cannot change because deep inside he does not believe that he sits in prison because of what he did to the victim in this case, Eric. He believes he is in prison because of someone, something or anyone else, other than himself. Whether it is feigned psychological problems or because of alleged drug or alcohol or abuse problems, or because he was poor, whatever the excuse, in his heart, he is not to blame.

Since Jacob Wideman does not blame himself for the murder he committed, it is easy for him to look contrite, or sad and remorseful because, in his mind, he should be free. Manipulation comes easy to those who perceive themselves as wronged.

But the truth is, he knows how to act now, because he has been before you before and whatever he did, did not work. And if the upcoming hearing does not get him out, he will consider his options and make the appropriate changes in his demeanor for the next hearing, and the next, until either you let him out or he dies.

Like the lion or tiger, at the San Diego Zoo, you can take him out of the jungle, and lock him in a cage but his core self, the one who killed, can never change.

Let him out, and he will eat you, or if not you, someone else.

Very truly yours,

Daniel J. Marco

Posted in Clemency, grief, grieving parent, Letter To Parole, loss of child, parent of murdered child, Parole "Parole hearing" letter "Parole Board" Murder, sentence of murderer of child | Tagged , , , , , , , , , | 1 Comment

Zachary Marco Foundation for Hope and Arizona State University Scholarship Information –

Zachary was a good kid. There is no doubt about it. To keep that name alive, The Zachary J. Marco Foundation for Hope has teamed up with Arizona State University  (both entities are 501( c ) (3) charities and all contributions are tax deductible) to offer scholarships in his name, in perpetuity. The day after Zack was shot, he was scheduled to meet one of his professors and it is now certain, he was going to Washington DC as an intern. There are many other deserving kids out there who deserve to go as well, but they cannot afford the living expenses and therefore pass the opportunity by. This will help those kids go. Maybe one of them will change Washington, the way Zachary would have so changed the game:

From Arizona State University:

As a friend of Zachary Marco’s, his family and ASU, we invite you to make a gift to support the new scholarship established in his name, the Zachary J. Marco Capital Scholars Scholarship Endowment.  We are honoring Zachary’s legacy with this very special tribute, a permanent endowment that will perpetually fund a need-based scholarship for an ASU undergraduate student to participate in the ASU Capital Scholars program in D.C. Since 1998, Capital Scholars students have had the unique opportunity to spend a summer in Washington, D.C., interning with legislators, federal agencies, advocacy groups, the media, nonprofit organizations, think tanks and policy research groups. Zachary excelled at ASU as a political science major in the College of Liberal Arts and Sciences and an honors student in the Barrett Honors College. He was in the Junior Fellows program, a page in the Arizona Legislature and aspired to be a legislative intern, a Capital Scholar and an attorney.  A 2008 graduate of Red Mountain High School in Mesa, Arizona, Zachary was enrolled in the fall semester of his junior year when he was tragically killed near campus on October 17, 2010.  The Zachary J. Marco Capital Scholars Scholarship will benefit many students who, like Zachary, have a passion for political science, philosophy and justice.

 

Please consider making a gift to support this scholarship endowment. You may make a gift online with your credit card at www.asufoundation.org/zacharymarcoscholarship.

 

 

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Draft of A Speech at a Conference on Death and Dieing (What fun) Dealing with Your Grief

150px-Venn0001.svg

I AM SURE MANY OF YOU IN THIS ROOM WERE TREATED TO THE LITTLE SNOW STORM WE HAD DURING THE WEEK. AND, OF THOSE OF YOU WHO SAW THE SNOW I AM SURE YOU THOUGHT IT WAS A RARE AND BEAUTIFUL SIGHT. WELL, NOT SO MUCH TO ME.

BACK IN 2001 MY SON, ZACHARY, AND I DROVE FROM OHIO TO OUR NEW HOME IN NEW MEXICO FOLLOWING CHRISTMAS WITH THE FAMILY. THE DAY AFTER WE GOT BACK INTO NEW MEXICO, IT SNOWED. ZACK AND I STOOD ON OUR LITTLE BALCONY AND AFTER CHATTING A BIT, I TOOK A PICTURE OF SNOW ON A PALM TREE. WE WENT BACK INSIDE.

THAT IS WHAT THE SNOW THE OTHER DAY REMINDED ME OF; MY SON. EVERYTHING REMINDS ME, IN SOME WAY, OF HIM. NO MATTER WHERE I LOOK, WHAT CONVERSATION I AM HAVING, NO MATTER THE THOUGHT TRICKLING THROUGH MY BRAIN, I AM REMINDED OF MY SON.

BUT THE TRUTH IS, EVEN THOUGH EVERYWHERE I LOOK I AM REMINDED OF HIM, NO MATTER HOW HARD I TRY, I CANNOT FIND MY SON.

BECAUSE HE’S NOT THERE.

SINCE MY SON DIED, THERE HAVE BEEN TIMES THAT THESE LITTLE REMINDERS OF HIS LIFE, LIKE WHEN I SEE A DAD SHOOTING HOOPS WITH HIS SON, JUST PILE UP ON ONE ANOTHER UNTIL THEY JUST BECOME OVERWHELMING AND I THINK TO MYSELF: ENOUGH! I JUST CAN’T TAKE IT ANY MORE. PLEASE, JUST STOP

THEN, THERE ARE OTHER TIMES, TIMES WHEN I MISS HIS PHYSICAL PRESENCE SO MUCH THAT THE PAIN BECOMES A BURDEN TOO GREAT TO BARE. HOW MUCH I WOULD GIVE? EVERYTHING, I WOULD GIVE, EVERYTHING, JUST TO CATCH A GLIMPSE, A WHISPER, A NOD OF HIS HEAD; OF HIM AGAIN.

AND I THINK TO MYSELF: ENOUGH! HE’S NOT THERE. SOMEONE PLEASE TAKE THIS PAIN AWAY.

THOSE ARE THE DAYS OF SOLITUDE AND PAIN. THOSE ARE THE DAYS WE HIDE FROM FRIENDS AND EVEN FAMILY BECAUSE THE TIME IS LONG PASSED FOR US TO HAVE “MOVED ON.”

BUT THEN ONE DAY, AS I WAS SITTING THERE AND THINKING ABOUT ZACK, AND GRIEF AND LIFE AND ALL THAT CRAP WHEN I HAD A THOUGHT AND IT IS THIS THOUGHT THAR BARBARA WANT ME TO SHARE WITH YOU. THAT THOUGHT WAS:

ZACHARY IS EVERYWHERE. ZACHARY IS NOWHERE.

I REMEMBER THIS THOUGHT COMING TO ME ONE DAY AND FOR WHATEVER REASON, MY GRIEF CRYSTALLIZED IN MY MIND:

I ACHE BECAUSE EVERYTHING, EVERY DAMN THING, SOMEHOW REMINDS ME OF MY SON.

I ACHE BECAUSE I CANNOT FIND ZACK ANYWHERE. HE IS NOWHERE.

AND IT DAWNED ON MY THAT MY WORSE MOMENTS WHERE WHEN I WAS EITHER FOCUSED ON THE CONSTANT STREAM OF REMINDERS, OR WHEN I WAS FOCUSED ON THE FACT THAT ZACK WAS NOT PRESENT. SO I THOUGHT IF I COULD JUST ACCEPT THE FACT THAT EVERYWHERE I LOOK, I WILL SEE ZACK, BUT, AT THE SAME TIME, UNDERSTAND THAT I WILL NOT SEE HIM AGAIN, IN THIS WORLD ANYWAY, THAT I WOULD FEEL BETTER, AND I DID, FOR SOME REASON.

USE VENN DIAGRAM HERE

WHEN I EMBRACED THESE TWO ESSENTIAL TRUTHS: ZACK IS EVERYWHERE; ZACK IS NOWHERE, THE CONSTANT REMINDERS BECAME LESS OF A BURDEN AND, IN FACT, LESSENED THE PAIN OF HIS LACK OF PHYSICAL PRESENCE IN MY WORLD.

NOW, IT IS STILL A DAILY STRUGGLE TO STAY HERE, IN THE AREA OF MY VENN DIAGRAM, WHERE THE TWO CIRCLES INTERSECT. THERE ARE DAYS WHERE SOMETHING REMINDS ME SO STRONGLY OF HIM THAT I CANNOT HELP BUT BOW MY HEAD AND CRY. AND THERE ARE OTHER DAYS, WHEN I SO WISHED HE WERE HERE TO SHARE SOMETHING WITH ME THAT MY HEART, LITERALLY, FEELS LIKE IT IS GOING TO BREAK RIBS.

BUT YOU KNOW WHAT, I DECIDED THAT IS OK. THAT I DESERVE THOSE DAYS AND MY SON DESERVES THOSE DAYS AS WELL. BUT ON BALANCE, I FELT BETTER.

WHETHER THAT WORKS FOR YOU OR NOT IS PERSONAL. THAT THOUGHT, THAT DIAGRAM HELPED ME: i EMBRACE THE MEMORIES. I TAKE HOLD OF THE THOUGHTS. I WALK WITH MY LOVED ONE. I TALK TO HIM , OUT LOUD. I DO AND I CAN BECAUSE HE IS EVERYWHERE.

BUT AS A FINAL THOUGHT, I JUST WANT TO READ A COUPLE PARAGRAPHS FROM THE FINAL BLOG ENTRY I AM WRITING ABOUT MY SON – MY PATH: FROM MURDER TO A NEW ORDINARY. I WROTE THIS JUST A COUPLE OF DAYS AGO AND I AM WRITING TO OTHERS WHO STUMBLE ON MY BLOG IS SEARCH OF SOME COMFORT:

YOU CAN, YOU MAY, YOU HAVE THE WORLD’S PERMISSION TO, COME BACK OUT INTO THE LIGHT NO MATTER WHAT YOU HAVE BEEN THROUGH, NO MATTER HOW DARK THE PATH AHEAD LOOKS. DARKNESS IS BUT THE ABSENCE OF LIGHT. YOU, MY FRIEND, MAY SHINE AGAIN, IF YOU WANT TO, SOMETIME FROM NOW. YOU ARE YOUR OWN LIGHT SOURCE. YOU ARE YOUR OWN AA BATTERIES, SOLIDLY BUILT WITH STORED ENERGY WITHIN, READY TO BE RELEASED BACK UPON THE WORLD. YOU ARE LIKE GLOWING LIGHT, RED EMBERS, HEARTH COALS, OF RADIATED WARMTH AND UNIVERSAL BLESSINGS.

YOU! NOT A FLASHLIGHT, NOT THE SUN, NOT A BULB OR A LCD SHIMMER, YOU AND ONLY YOU CAN SHED THE DARK WITH WHITE LIGHT. YOU. IT HAS TO BE YOU. THERE IS NO ARTIFICIAL LIGHT TO RELY UPON. NO SWITCH. NO EXTERNAL POWER SOURCE. JUST YOU. IN THE END, THERE IS ONLY YOU.

AND YOU HAVE BEEN PLACED DIRECTLY ONTO THE CRAPPER.

FEELING BETTER DOES NOT DIMINISH THE MEMORY OF THE LIFE OF YOUR LOVED ONE. YOU ALREADY HAVE THE WORLD’S PERMISSION FEEL BETTER, SO THAT IS NOT A PROBLEM. WHAT YOU HAVE TO DO IS PICK YOUR LOVED ONE UP AND CARRY THEM WITH YOU ON YOUR JOURNEY. BE GRATEFUL THAT SO MANY THINGS IN THE WORLD BRING BACK BLESSED MEMORIES, DO NOT HIDE OR SHRINK AWAY FROM THEM. ACCEPT THE FACT THAT DESPITE THESE MEMORIES, YOU LOVED ONE IS NOT RIGHT THERE, TO TOUCH AND TO HOLD.. AND YET, HE OR SHE IS THERE, THROUGH THE REMINDERS AND THE MEMORIES. WHEN THESE TWO REALITIES CO-EXIST IN YOUR MIND, YOUR HEART AND YOUR LIFE, I BELIEVE YOU HAVE COME TO GRIPS WITH YOUR GRIEF. IN MY OPINION, GRIEF NEVER GOES AWAY, THE PAIN NEVER FADES. YOUR HEART NEVER HEALS. BUT YOU HAVE SOMETHING POSITIVE THAT NO ONE ELSE HAS – EVERY WHERE YOU LOOK YOU SEE YOUR LOVED ONE, EVEN THOUGH HE OR SHE IS NOT PHYSICALLY THERE.

I DO NOT KNOW, NOR WILL I EVER KNOW, IF ANYTHING I SAY HELPS ANOTHER HUMAN BEING, ALTHOUGH THAT IS MY INTENT. BUT LET ME BE CLEAR, THE RESOLUTION OF GRIEF IS PERSONAL, LONELY AND PAINFUL NO MATTER WHAT ANYONE SAYS TO YOU. TIME DOES NOT HEAL ALL WOUNDS. TIME ONLY GIVES YOU PERSPECTIVE, AND THIS IS MINE.

I BELIEVE YOU MUST GIVE YOURSELF PERMISSION TO CARRY ON WITH YOUR LIFE.

HOW CAN I MISS\

WHAT SURROUNDS ME?

THAT WHICH EXISTS

IN THE FORESTS

IN THE TREES

EVEN THE BIRDS

AND THE BEES

AND OUR DOGS

SING YOUR NAME

TO ME

HOW CAN I MISS

WHAT IS ALWAYS THERE

YOU EXIST IN SWEET NECTAR

IN MY VERY AIR

HOW CAN I MISS

WHAT I HAVE NEVER LOST?

THE SOUND OF YOUR VOICE

A YOUNG CHILD’S COUGH

THE BOUNCE OF A BALL

A PICTURE ON THE WALL

ENOUGH IS ENOUGH

TOO GREAT THE COST

WHY CAN’T I SEE

WHAT IS SO NEAR ME?

I FEEL YOUR PULL

AND YOUR PUSH

YOUR ASPIRATIONS

FOR ME

BUT MY SEARCH IS ALWAYS

EMPTY

WOEFUL

BEGOTTEN

HOW CAN I MISS

WHAT SURROUNDS ME?

I WILL TELL YOU HOW

I AM HUMAN, JUST ME.

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The Second to Final Hurdle: A Letter to the Judge On the Eve of the Sentencing of the Co-Defendant in the murder of My Son

November 29, 2012

The Hon. Judge Warren J. Granville

Re: Sentencing of Marion Patterson

State v. Patterson CR2010-48707-001

Dear Judge Granville:

After two long years of dealing with the death of my son, Zachary Marco, at the age of 21, the investigation, the Criminal process, the implosion of my family as a unit, and the lunacy that is Mr. Patterson’s immediate family, I struggle hard to separate Mr. Patterson from his co-defendant, Louis Eugene Harper, two years Mr. Patterson’s senior and yet his nephew. I have an equally hard time separating him from his family. But I am trying to put myself in your shoes and I am trying to be as objective as possible. But the fact is, you have not been intimately involved in this case, save for a couple of hearings that had no real facts presented to them. You have not witnessed his family’s contempt for me, my family, and the Courts. You have not lived this case. You have not experienced the destruction of my family as a single unit. You do not know my son, his accomplishments, his drive, his ambition to be the best.

So the purpose of this letter is A) to give you my own thoughts about the appropriate sentence for Mr. Patterson; B) to give you an idea of what happened at about 9:26 pm on October 17, 2010; and, C) to represent my son, one last time, here on earth because he cannot represent himself. He is dead. He was shot in the chest with a hallow point bullet and bled out on scene.

Although difficult, I recognize, given my 24 years of Criminal Defense practice, that is precisely what needs to be done.

By order of culpability, there is no doubt that Louis Harper was the trigger man and that he, in fact, killed my son. But, Marion Patterson, a documented member of the Vista Blood gang, the most violent gang in Phoenix according to the police, played no little part in my son’s death. He is, by law, just as guilty of the murder of my son, as Mr. Harper, even though he did not pull the trigger. That is what the law is, there is no way around that fact.

By way of background, I was given unfettered access to the police investigation file and because of my 23 years as a Criminal Defense Attorney, I am quite experienced in reading statements and culling truth from fiction. Based upon that review, I am able to put the last few moments of my son’s life in narrative form. The following is the synopsis I used in Mr. Harper’s sentencing:

The night before the murder, Mr. Harper and his Uncle, Marion Patterson sent texts to each other indicating that they need to do a “lic” (which is street lingo for robbery, or something bad that is going to happen to someone) because they needed some “racks,” meaning money. Obviously, they had robbed before so, while they had no particular victim in mind, they knew who to look for. Living near campus they knew students often walked alone carrying valuable equipment, such as laptop computers and cell phone, IPODS, that sort of thing.

The next night, Mr. Harper convinced some girls that he needed their car and they brought it over. After picking up Mr. Patterson, Mr. Harper and another girl, they decided to go to Mr. Patterson’s residence to hang out, which is south on Rural Road from the intersection of Rural and University in Temps, AZ.

Unfortunately, at the exact some time as the car carrying Harper and Patterson reaches that intersection, intending to turn left, or south onto Rural from University, my son, carrying his laptop computer case and listening to music on his IPOD was walking home from the Arizona State Library after a night of studying. At about 9:20 he approached the intersection of Rural and University, walking east on University.

The light turns green. My son begins to walk across the street. As he reaches about the mid-way point, the car carrying Mr. Harper and Patterson turns left and executes the turn immediately behind my son. Mr. Harper says, out loud; “He has a laptop.” He and Patterson have a quick conversation and Harper instructs the female driver of the vehicle to execute a u-turn and then to turn right onto University, following my son. Because she had an idea what Harper intended to do, the driver actually missed the right hand turn and drove through the Rural and University intersection. Mr. Harper instructed her to take the next right. They do and they come out on University and drive behind my son. Mr. Harper tells them to pull into a driveway. She does, stops the cars and Harper and Patterson get out of the vehicle.

Patterson gets behind my son and is asking him to stop and give them directions. Harper is, of course, behind Patterson. Because he was listening to music, my son could not hear Patterson so he repeated the request for directions a couple of times. Finally, Zachary stops, takes one ear bud out of his ear, listens to Mr. Patterson and tells them he cannot give them directions.

Patterson then grabs for the computer bag. My son, all 5’4” of him, takes two hands and pushed Patterson to the ground. While he does that, the computer comes out of his grip, flies into the air and lands at Mr. Patterson’s feet. (Clearly, at this point the Zachary’s laptop breaks. The screen was cracked and damaged in the fall, so in the end, my son’s life was taken for nothing.)

Zack turns and sees Harper.

Now, in Mr. Patterson’s statement, he says that a scuffle ensues and that Zachary grabs for the gun, and that he and Harper fought over the gun which goes off. I think that Patterson here is just trying to make it look like an accident to help his older nephew. There is no evidence that the shot that killed my son was from close contact. There was no powder burn on his skin or on his shirt. Consistent with that, the medical examiner concluded that the shot probably was fired from a few feet away, which makes sense.

Having just seen the ease with which Zachary dispatched Patterson, Harper, the ultimate coward, just raised the gun and fired. He hit my son just below his left nipple. The hollow point bullet did what it was designed to do. That is it fragmented and pierced his heart causing him to immediately and quickly bleed to death.

Harper tells Patterson to grab the laptop because it might have fingerprints on it. He has the presence of mind to search for, and find the ejected shell casing (the gun was a glock) and then instruct Patterson to run to the car.

Once in the car he instructed the driver to DRIVE DRIVE DRIVE. As they once again approached the intersection of Rural and University, he instructed the driver to cut through a business and through a parking lot, rather than go through the intersection, out of fear for the intersection cameras.

Inside the vehicle, Mr. Harper, quite proudly showed off the shell casing.

There are conflicting reports about what he said about the shooting. One is that it was an accident, that he just raised the gun and it went off. The other was that he thought that my son was going to punch Patterson, whose nickname is Bop. (“He was going to punch you Bop.”) But what is certain is that he instructed Patterson who, somehow got possession of my son’s cell phone, to take the battery out of the phone so that they could not get traced through the cell towers. Patterson obliged.

A couple of days later, Patterson’s mother sees a box on the upper shelf of a closet where Patterson put the laptop and case after Harper asked him to get rid of the evidence. Patterson’s mother sees the box and, thinking its contents garbage, took the box to the nearby Safeway Store. Instead of placing it into the garbage bin, she laid it down next to the it. An employee saw the bag, opened it up and associated the laptop with the murder of a boy in Tempe because she had seen the media stories on TV. The rest is just good, old fashioned police work. I am sure this fact catches Mr. Patterson completely by surprise.

So, Marion Patterson is more than just a little culpable in my son’s death. He knew, for example, that Harper was carrying a gun that night. He knew that there was an intention to rob. He made the initial contact with my son and certainly, had they not been arrested, he would have never turned himself in. In fact, when approached by the police for his arrest, he took flight, running through a series of back yards. Under a bush in one of those yards was a gun Mr. Patterson tried to hide while running. Yet another gun. Clearly, the simple fact that my son was dead, that he had participated in a murder, was NOT reason enough to cast away firearms.

Finally, I firmly believe Mr. Patterson lied when he told his version of the events that terrible night to the Maricopa County Prosecutor’s Office. He wanted it to look like Louis Harper shot Zachary by accident, to help his older nephew out, but the evidence in the case simply does not bare that out; nor do the statements attributed to Mr. Harper by the other two in the car “He was going to punch you Bop.” BUT Louis Harper was answering Mr. Patterson’s question at that time “What did you do that for?” And, when the gun shot rang out, Mr. Patterson apparently yelled out “Shit!”

My Recommendation and Request

I have been in the unfortunate position to study the demeanor of Mr. Harper and Mr. Patterson over the course of the last two years. There is, from what I have seen, a stark contrast. While Mr. Harper was and remained threatening towards us and detached from my son’s death (he clearly acts more like the balance of the family one of whom was arrested at the Harper sentencing hearing for disruptive behavior) Marion Patterson seemed to just want to steal looks at his mother and go about his business. We never locked eyes. He never overtly threatened my family and he otherwise looked like he was just trying to get through the process.

That having been said, I cannot state with any certainty that Mr. Patterson feels remorse, beyond getting caught, although his attorney seems to think that he does. But that lack of certainty causes me not to factor remorse, or lack of remorse, into the equation. What I can say is that Mr. Patterson planned, participated in and was a major actor in the death of my son, my best friend in life, my future law partner and a person for whom I, not just as a father, had a deep and abiding love and respect.

Zachary’s death devastated my family, extended and nuclear. We are a house divided as his mother and I have gone completely separate ways and all we are waiting for is the Judge to sign the final decree. My parents have attended the funeral of their third grandchild, though this is the first through violence. My children, Zachary and my daughters Kathleen age 21 and Michelle age 17, were always very close but there was no doubt that Zack was the leader of the bunch. Now, both of his sisters struggle with attachment and, while they are very close, even closer than ever before, to each other, they are not developing close relationships outside of the family unit.

I ask you as a father: What does a father say to a daughter who just realized that she has lived one day longer than her older brother? What does a father say when his youngest daughter tells him that the schools treat her grief as institutional burden and places her in a room, alone, to cry, rather than display compassion and understanding, because she needs to “just get over it?” What does a husband say to a wife when he decides that the only thing that matters is seeing to it that his son’s killers are brought to justice because he promised his son that is exactly what he would do, just before pushing his body into the crematory furnace? And what do I tell myself, when, now that I am conscious again, and I look around me, and I only see remnants of a life that once was once so good, and so whole and so fulfilling?

I was a career Criminal Defense attorney and was just getting going in Arizona (my Criminal practice thrived in New Mexico and Ohio) when they struck down my son. Now, without the stomach for Criminal defense, at the age of 52, I have been left to build a new practice which is finally coming together. Until recently, my financial lifeblood had been excised. I am though personally, emotionally, and intellectually exhausted.

And as to his mother, Claudia: I have seen the depth of a mother’s love for her children because that place where she kept Zachary was ripped out of her soul and dumped at my feet. I just do not know what else to say. She is devastated. She is different. As am I.

So, what is a Judge to do? On the one hand, Mr. Patterson is about to be punished for the murder of a bright ASU honor’s student with no horizon on his future; an act which demolished a familial unit.

On the other hand, Patterson crossed his insane family and agreed to testify against his older nephew, even though I firmly believe he was not completely forthcoming in his version of the moments leading to the gunshot. This has to be given some weight even though his main motivation may have been to save his skin from a life sentence. Who knows? He, God and the Devil are truly the only ones, I guess.

The range of possible sentences here is 14 to 19 years if memory serves. If you give him 14 years, you diminish the memory of my son. If you give him 19 years, you diminish the value of his decision to testify against Harper, no matter its motivation, which ultimately led to Harper’s plea I would imagine. Plus, prison is no place for someone who agrees to testify against another Blood gang member. I know that and I can assume so does Mr. Patterson.

Despite all that, I believe my son’s life should be given greater weight. I therefore am asking this Court to sentence Mr. Patterson to 17 years in prison. If Mr. Patterson displays true remorse at the sentencing, that will be nice but it comes a little too late. Zachary is dead. No apology can change that. No amount of wishing it hadn’t happened will put my family back together again. Besides, my clients were all well rehearsed in the art of remorse, so I look at a defendant’s sentencing statement with a bit of jaundiced eye.

But I do have one final comment, and I have said this before to others who seem rather surprised. I do see in Mr. Patterson a birthday candle’s flame of something good. I cannot quite put my finger on it. Claudia has noted the same thing. Maybe it’s because anyone but Hitler, standing near Mr. Harper, would, by comparison, appear to be an angel. I am not certain. But I hope Mr. Patterson spends his time in prison communing with God and books rather than gang members and drugs because the winds that blow through prison are more than capable of blowing out a birthday candle. I hope he comes out better than when he enters, but then, he would be the exception to the rule, wouldn’t he?

17 years.

Epilogue

After writing the above, I received a note from Mr. Patterson, through his attorney, addressed to me and Claudia. In it, he asks for forgiveness and alleges a conversion to God.

As for forgiveness, that is not my place. I can neither forgive the death of my son nor forget his life. Zachary’s death is now simply a part of what is left of my life; no matter where the fault lies. Carrying hatred around my neck like a yoke on an oxen is more of a burden than I need now and I will not tote it around for others to see. There is no sense to it.

As to Mr. Patterson, I do not feel hatred; I feel no more than ambivalence.

Thus, I think Mr. Patterson first must ask for Zachary’s forgiveness; not mine and his mother’s or his sisters’. What was stolen belonged to Zack, not us. It is Zack’s future that is gone for good: his zeal, his desires, his smile, his laugh, his drive and ambition. We were merely around to observe those things and to rejoice in them. We may miss them a great deal but we are simply collateral.

Second, Patterson’s belief that God has forgiven him is personal and I have no comment as to that.

Third, there is a difference between secular punishment and personal forgiveness; the law, not God, commands prison time and that is what we are dealing with here.

Finally, I do hope Mr. Patterson finds some fulfillment of life. He will be probably about 30 years old when released. His life has not been stolen like it was a cell phone or a laptop computer to be sold to a pawn shop. No, he still has time. If he wants forgiveness, he can demonstrate his personal resurrection to others. He must convince the world that he has changed; that he has empathy and emotion, and a desire to speak and do good acts for others. He need not convince me or even you, your Honor.

Ten or so years from now, when he gets out, when he has nothing to gain by the acts, then, it is the world that should and will hold him to task. And if he falters, like so many others before him, he will simply walk back into prison.

That is his choice, just like the choice he made to follow Mr. Harper’s lead.

Thank you for your time and attention in this most personal and devastating case. On behalf of my family, I thank you, The Tempe Police Department, Cleve Lynch of the Maricopa County Prosecutor’s Office, the Phoenix Gang Task Force and the Maricopa County Sheriff Deputies who displayed such compassion while protecting me, my family and the Court from the less than stellar family members of both these defendants.

17 years.

Very truly yours,

Daniel J. Marco

Posted in bereavement, going home again, grief, grief murdered child, grief recovery, grieving parent, inspiration, loss of child, parent of murdered child, sentence of murderer of child, Uncategorized, victims and the courtroom, victims of crime | Tagged , , , , , , , , , , , , | 3 Comments

The Third to Final Hurdle: A Letter to the Judge on the Eve of the Sentencing Our Son’s Murderer

Sentencing Memorandum By Daniel J. Marco

Father of Victim Zachary J. Marco

21 Years Old

Dear Judge O’Connor:

First of all, on behalf of my family, Claudia R. Marco, Zachary’s mother and Kathleen (Katie) Marco and Michelle Marco, Zachary’s sisters, we would like to extend our gratitude for the professional and compassionate manner in which you conducted these past proceedings. I doubt that you really understand, at an emotional level, what it is like to sit through hearing after hearing in a case involving the death of a son, best friend, mentor and hero but you kept us safe from the defendant’s family outbursts, their verbal taunts on the streets and their overall disrespectful behavior. The apple simply did not fall far from the tree, there can be no doubt.

The purpose of this letter, and my comments at sentencing, are not to try and get you to vary from the agreed upon sentence of 15 years for armed robbery consecutive with 25 years to life. We approved that deal and we are not backing away from it. However, it seems to me that 35 years hence, Mr. Harper will appear in front of some board, whether it is parole or clemency, asking to be released back into the community, and I am using this opportunity to speak, most probably from the grave, to those board members.

Attached to my visor in my car is a series of photos Zack had taken for a Passport. Unfortunately, with the passage of time and because of the fact that sunlight hits those photos from time to time, they are already starting to fade. Memory is much the same way. And though I will never forget my son, there are times, already, that I struggle to recall his voice, his laugh, his mannerisms and his ubiquitous smile. While my memory is clear, I am now 52 years old, I want the world to know exactly who Mr. Harper killed:

  • A son and best friend and grandson cousin and nephew
  • A mentor and hero to his sisters
  • He joined ROTC during his sophomore year of High School
  • He held three letters in High School Sports (Wrestling, football and cross country)
  • He was awarded the Provost Scholarship to Arizona State University
  • He scored “Exceeds” on all his AIMS scores
  • He worked his way into the Barrett Honors College at Arizona State University
  • He was a political Science Major with a philosophy minor
  • He was a straight A plus student following his first semester in college
  • He was taking a class load of 8 courses
  • He, at the same time, tutored up to 50 students, teaching them how to study and in a number of cases raising their grades from C’s to A’s. He actually made course plans for his tutoring sessions and created poster boards to explains his lectures to his students
  • He spent up to 18 hours a day, everyday including weekends in the ASU library, studying (he was shot on a Sunday night at 9:30 walking to his apartment from the ASU library after spending over 12 hours in the library)
  • He was selected to serve as a Page in the Arizona State Senate
  • He would have interned in Washington D.C.
  • He worked for charities such as Habitat for Humanity, among others
  • He was an absolute favorite of his professors
  • He did not drink, smoke, or do drugs. He played sports even though he was only about 5′ 4” in height
  • He had a wonderful sense of humor and rare is the photograph of him without a smile on his face
  • He had a very small but tight knit group of friends all of whom did not do drugs, got A’s for grades and are now starting careers that are in the upper stratospheres
  • He planned on being my law partner, as I was my father’s law partner for 16 years in Ohio
  • He was doggedly loyal
  • He was kind to everyone UNLESS he thought you were a person not rising to your potential, then he just sort of ignored you
  • He was in absolutely perfect physical shape despite a slight heart valve issue
  • He wanted to get into politics and his goal was to “reintroduce a conversation about the greater good”
  • He intended to go to Harvard Law School
  • He was the rock in our family, the sun around which our planets revolved. When he was taken away, the family unit disintegrated, and that is a great damn shame
  • He, need we say it, was a great, great kid. His potential was unlimited. The good he was going to do, boundless. His energy unsurpassed. His compassion unique. His gifts from God, inspiring. He was and remains an inspiration to his friends, his sisters, his mother and to me.
  • He is a lost treasure to this County, this State, this nation and the world.
  • He is profoundly missed by all who knew him, not week by week, or day by day; but rather, second by second.
  • We mourn the world’s loss.

Now, let’s compare that bullet list to Mr. Harper’s:

  • He is a High School drop out
  • He is a documented Gang Member loyal to the Vista Bloods, one of the most violent gangs in Phoenix according to the police
  • He is a felon
  • He is a probation violator and apparently never once appeared at a scheduled meeting
  • He was in Scottsdale jail just 30 days before he shot my son, so obviously incarceration does not phase him in the least
  • He is 22 years old and is the nephew of 18 year old Uncle Marion Patterson III his co-defendant
  • He is, unfortunately, the father of a child out of wedlock
  • He was unemployed, with no visible means of support except he says he receives a small Social Security death benefit. The truth is, he lived off his mother and his girlfriend who worked two jobs. His only real source of income was stealing and pawning and who knows what else.
  • When he was arrested, the police found counterfeit money on his person.
  • He is a coward who took a gun loaded with hollow point bullets to a fight he was going to start where he knew, with I am sure 99% certainty, his opponent would be unarmed.

So that is who shot and killed my son. A person of no redeeming qualities, no goals, no ambition. A small time thug gangsta wannabe who could not even come up with $500 to post bail when he was initially arrested. A failure in school. A failure in life. A failure to the community. And now, a certain failure as a father. A failure in every aspect of life, even his gang life. We are all safer during the period of his incapacitation.

Defendant’s Mental Retardation Claim

There was quite a bit of debate regarding the possibility that the defendant is mentally deficient. While that was relevant to the then pending death penalty specification, it should not be relevant to any request for parole, clemency or release at any time in the future. Louis Harper is not mentally deficient in terms of his ability to function within the normal limits of societal values. His actions in the death of my son are clear evidence of that fact.

The Tempe Police Department graciously gave me unfettered access to the investigative file regarding this crime. I read Marion Patterson’s statement, Mr. Harper’s denials (about 4 hours worth of denials) and the synopsis of the two passenger statements. I reviewed crime scene photos, and hospital and autopsy photos. Given my 23 years as a Criminal defense attorney, and my stellar win-loss record in almost any kind of case, my ability to read these types of reports and synthesize a probable theory of the case is, well, better than most.

Now, Mr. Harper may have a low IQ, I do not know, I was not privy to those reports, but there is a difference in being able to navigate the halls of the schools and being able to navigate the streets, where Mr. Harper’s real education came. Clearly, his family has no interest in education as my interactions with them prove them to be ignorant, combative and stupid. Harper may have failed school but he possesses a PhD in crime and street survival tactics and, frankly, came very close to getting away with this murder; and who knows, this may not be his first murder.

So, what appears to have happened in this case, and what belies his cries for compassion, is as follows:

The night before the murder, Mr. Harper and his Uncle, Marion Patterson sent texts to each other indicating that they need to do a “lic” (which is street lingo for robbery, or something bad that is going to happen to someone) because they needed some “racks,” meaning money. Obviously, they had robbed before so, while they had no particular victim in mind, they knew who to look for. Living near campus, they knew students often walked alone carrying valuable equipment, such as laptop computers and cell phone, IPODS, that sort of thing.

The next night, Mr. Harper convinced some girls that he needed their car and they brought it over. After picking up Mr. Patterson, Mr. Harper and another girl, they decided to go to Mr. Patterson’s residence to hang out, which is south on Rural Road from the intersection of Rural and University in Tempe, AZ.

Unfortunately, at the exact same time as the car carrying Harper and Patterson reached that intersection, intending to turn left, or south onto Rural from University, my son, carrying his laptop computer case and listening to music on his IPOD was walking home from the Arizona State Library after a night of studying. At about 9:20 he approached the intersection of Rural and University, walking east on University.

The light turns green. My son begins to walk across the street. As he reaches about the mid-way point, the car carrying Mr. Harper turns left and executes the turn immediately behind my son. Mr. Harper says, out loud; “He has a laptop.” He and Patterson have a quick conversation and Harper instructs the female driver of the vehicle to execute a u-turn and then to turn right onto University, following my son. Because she had an idea what Harper intended to do, the driver actually missed the right hand turn and drove through the Rural and University intersection. Mr. Harper instructed her to take the next right. They do and they come out on University drive behind my son. Mr. Harper tells them to pull into a driveway. She does, stops the car and Harper and Patterson get out of the vehicle.

Patterson gets behind my son and is asking him to stop to give them directions. Harper is, of course, behind Patterson. Because he was listening to music, my son could not hear Patterson so he repeated the request for directions a couple of times. Finally, Zachary stops, takes one ear bud out of his ear, listens to Mr. Patterson and tells them he cannot give them the directions.

Patterson then grabs for the computer bag. My son, all 5’4” of him, takes two hands and pushes Patterson to the ground. While he does that, the computer comes out of his grip, flies into the air and lands at Mr. Patterson’s feet. (Clearly, at this point the Zachary’s laptop breaks. The screen was cracked and damaged in the fall, so in the end, my son’s life was taken for nothing.)

Zack turns and sees Harper.

Now, in Mr. Patterson’s statement, he says that a scuffle ensues and that Zachary grabs for the gun, and that he and Harper fought over the gun which goes off. I think that Patterson here is just trying to make it look like an accident to help his older nephew. There is no evidence that the shot that killed my son was from close quarters. There was no powder burn on his skin or on his shirt. Consistent with that, the medical examiner concluded that the shot probably was fired from a few feet away, which makes sense.

Having just seen the ease with which Zachary dispatched Patterson, Harper, the ultimate coward, just raised the gun and fired. He hit my son just below his left nipple. The hollow point bullet did what it was designed to do. That is, it fragmented and one of the pieces pierced his heart causing him to immediately and quickly bleed to death.

Now, here is where Mr. Harper’s street genius kicks in. He yells to Patterson to grab the laptop because it might have fingerprints on it. He also had the presence of mind to search for, and find the ejected shell casing (the gun was a glock) and then instruct Patterson to run to the car.

Once in the car he instructed the driver to DRIVE DRIVE DRIVE. As they once again approached the intersection of Rural and University, he instructed the driver to cut through a business parking lot, rather than go through the intersection, out of fear for the intersection cameras.

Inside the vehicle, Mr. Harper, quite proudly showed off the shell casing.

There are conflicting reports about what Harper said about the shooting. One is that it was an accident, that he just raised the gun and it went off. The other was that he thought that my son was going to punch Patterson, whose nickname is Bop. (“He was going to punch you Bop.”) But what is certain is that he instructed Patterson who, somehow got possession of my son’s cell phone, to take the battery out of the phone so that they could not get traced through the cell towers. Patterson obliged. He also told the other occupants of the vehicle to never speak of the night’s events, to just not think about it. He told them this while holding a gun.

These are not the acts nor the instructions of someone mentally retarded or even mentally deficient. They are the instructions of a cold-blooded killer; someone familiar with the routine of crime, death and evasion from authorities. Mr. Harper is clearly, just a bad, awful person, who should be kept away for as long as possible.

It goes on. In the apartment, Mr. Harper opened my son’s laptop, saw that the screen was broken, tried to boot it up and failed. Fortunately, it was probably in the act of opening the laptop that he transferred his thumbprints to the screen. He instructed Mr. Patterson to get rid of the laptop. Patterson placed it in a box and placed it on the top shelf of a closet.

A couple of days later, Patterson’s mother sees the box and, thinking its contents garbage, took the box to the nearby Safeway Store. Instead of placing it into the garbage bin, she laid it down next to the it. An employee saw the bag, opened it up and associated the laptop with the murder of a boy in Tempe because she had seen the media stories on TV. The rest is just good, old fashioned police work. I am sure this fact catches Mr. Harper completely by surprise.

One last thing, Harper was in jail when the police searched his house. During one recorded jail phone call to the home they were talking about the search. He asked whether a certain bedroom was searched and the answer was yes. He responded something to the effect of, you gotta get me out of here. Why? Because he had hidden the murder weapon between a box spring and mattress and he knew the gig was up.

Again, taken as a whole Mr. Harper displayed moments of Criminal genius and, absent the removal of the laptop from the apartment to a space next to the garbage bin rather than inside the garbage bin, it is likely this crime would have never been solved. The only real stupid thing Harper did was keep the gun.

So, despite what the defense will attempt to portray, this is not a man worthy of empathy or care. He is a rotted fixture of a corrupt and emotionally deficient segment of our culture. He, and all like him, of every race, color or creed should be banished from this earth. There is no hope of redemption for him, or the likes of him. We should show no quarter.

 Lack of Remorse

Throughout these proceedings, Mr. Harper, and his family, have shown absolutely no remorse, no sorrow and no self-reproach. In fact, the entire family has displayed contempt for me and my family; a contempt that is palatable. Mr. Harper, in one hearing, actually raised his shackled hands and formed his hand into a gun, using the thumb as a mock trigger, dropped his thumb and said “boom.” He did this quietly. He and I locked eyes many times throughout the hearings, mad dogging as it is called, and he would simply sit and stare at me, clearly threatening me. He said, on one occasion, as he was being removed from the courtroom by a guard, that he would “beat your bitch ass.”

On a number of instances, his step-father, I believe he is his step-father, made advances towards me and my family. On one instance, as I and my 80 year old father, along with a couple of others, stood outside on a corner waiting to cross the street, a car driven by the step-father, with his mother sitting in the front seat drove by and they yelled “Leave him alone, leave him alone” as if Mr. Harper is a victim of my family. He cannot display remorse because clearly, he was never taught to care.

Finally, Mr. Harper takes no blame for what happened despite his guilty plea. His plea was to save his own skin from the death penalty. For example, in a hearing designed to reach resolution, he essentially blamed race or my standing as an attorney as the reasons for his predicament. He claimed the shooting was an accident. At that hearing, Zachary’s mother and I were lectured by Harper’s sister on the issue of “mercy.” We did not respond.

The only regret Mr. Harper carries is that of being caught, arrested and facing life in prison. To him, all these events are external. I am sure, at night, he lays and wonders how all this happened, to him. He is the consummate victim. Life’s dupe. But the fact is, not only is he is own worse enemy, he is the world’s enemy.

Conclusion

There are only three things a defendant says at this type of sentencing: I’m sorry. It was an accident. I didn’t mean it. Mr. Harper can save his breath. He is not sorry. It was not as accident as the evidence demonstrates and he did mean it. He pulled out a gun, placed his finger on the trigger, pulled and then tried to cover it up.

When Mr. Harper killed my son, he killed me and my family. We are no longer a single unit but we are a house divided. Zack’s mother lives one place, I live in another. This was not the probability of things while he was alive. Further, my earning capacity has greatly diminished as I no longer have the stomach for Criminal defense work; the core of my earning power has been removed. My daughters no longer trust people outside of the family. We face alternating days of depression and deep depression.

My son, my best friend, my pal, my student, my coach, my example, my future law partner, my right hand, my artist, my writer, and my hero is dead. Not over a laptop and cellphone, but over a broken laptop and an unusable cellphone. His life traded for nothing. He was doing and did nothing wrong. He happened upon the path of one Louis Harper, a coward, a fiend, an enemy to all mankind. A person who was afraid of a punch. He shot my son with a hollow point bullet, it hit him right below the left nipple, fragmented in his body, pierced his heart and he bled out.

Mr. Harper, however, will live to fulfill his own destiny: uselessness, despair, a leech of public funds and the target of other inmates. An absentee father.

My son will never fulfill his destiny. He is dead. And his death is unforgivable.

Very truly yours,

Daniel J. Marco

Posted in bereavement, grief, grief murdered child, grief recovery, grieving parent, inspiration, loss of child, parent of murdered child, sentence of murderer of child, Uncategorized, victims and the courtroom, victims of crime | Tagged , , , , , , , , , , , , | 5 Comments

Hurdle 17: Death, Divorce, Drinking and a Blind Dog (Or How I lost 35 Pounds without Trying)

Some of you, at least those that live in in Phoenix area, may have noticed that I have, in the months since my last post herein, lost some weight. While I wish it was because I tried, it is, weight loss that is, the end product of the roller coaster ride that is my life, our lives. It’s sorta like when I projectile vomited after getting off the Witches Wheel; it just happened.

So, on occasion, when I meet someone who notices the weight loss, but who does not know the sanctum of my life events, they ask:

“How you doing it?”

To which I might reply: “Doing what?”

And, without fail, they come back with the same thing:

“How’d you lose the weight, man? I been trying for years. I guess I just like food too much. I just don’t have the will power, bro. I don’t always want to eat, I just do, without even thinking. I love the taste of food. The texture and mouth feel. I even love the sensation of being full.  I just do. And then, every month or two, I move the belt up yet another notch and hate myself in the morning when my pants no longer fit. So how are you doing it? What’s the secret?”

“Oh! You want to know what diet I am following. I call it the ‘The Three D’s and B Diet.”

“Really, what’s that stand for?”

Now I know, at this point, that the person(s) that I am talking to hopes, in the back nether-regions of his or her (their) mind(s), that they are about to hear a description of the easiest diet ever devised. One that takes no effort, leaves no feeling of emptiness or caloric longing, and which caused even a fifty year old guy to drop down to pants sizes he has never wore before; even as bell bottomed jeans. I can see it in their eyes, pleading: please say three D’s and a B stands for Dunkin Doughnuts, Dreamsicles and Beef.

After a short hesitation, because I know they are really curious, say about five and a half heart beats, I answer: “It stands for Death, Divorce, Drinking and a Blind Dog.”

Now they know they’ve gotten themselves in a pickle. Crap, they think, almost universally, I am dealing with damaged goods here.

Invariably, they look toward a door at this point.

Anyway, I explain it thus:

“Here’s all you have to do. Wait for a significant loss in your life. One is always just around the corner, you know. Can be anything, a favorite pet, a ceramic pot that drops, anything that will act as a catalyst for the Big Bang of your family unit, followed by binge drinking and then, right in the middle of it all, have your favorite dog contract a bizarre fungal disease that causes you to have her eyes removed. Trust me, you will drop weight faster than a balloonist countering a leak while heading straight toward an electric transmission wire. Then, when you start to feel better, cut the drinking back a bit and BAM weight loss!”

So, one time, I gave this same explanation to a friend of mine, one who is, in fact, well acquainted with the drama that fills my life’s current diorama. When I told this to him or her, he or she said, looking me straight in the eye:

“Really?”

“Ya, near as I can tell, it works every time.”

“Hmmm, Well, wanna go get something to eat?”

“What? Didn’t we just talk about . . . well, Thanks. Yes, I think I do.”

“Whadaya feel like eating?”

“This might sound weird, but I feel steak and doughnuts followed by a quick trip to Dairy Queen. I call that a  “Beef and Sweets evening.”

“Dan, that’s the most logical thing you’ve said all night.”

“Ya, well I got dibs on the doggie bag and is it OK if I bring my son along?”

“Absolutely Dan, there’s room for all of you in my car. Bring it all. Oh, and Dan, you are the weirdest mother I ever met.”

“Well, the diet does works, you know.”

“Ya, I know, I can tell. Let’s go.”

I just gotta tell you, I have the best friends in the world.

And that is sweeter than a Creme Filled Log at Dunkin Doughnuts.

Posted in bereavement, grief, Grief and weight loss, grief murdered child, grief recovery, grieving parent, inspiration, life after death of child, loss of child, parent of murdered child | Tagged , , , , , , , | Leave a comment

Not a Hurdle: A case in Support of Pending US Constitutional Amendment for Victim Rights

   This is a letter written to Congressman Trent Franks presenting a case in support for a pending house bill that would ultimately result in a U.S. Constitutional Amendment granting Victims of Crime Some very basic Rights.  It is a much stronger letter than the one I wrote to the Illinois Legislature but some parts are, in fact, the same.  There is a hearing in Washington on 26 April 2012 on the pending legislation.

April 23, 2012

CASE FOR SUPPORT OF H.J. RES. 106

HEARING DATE 26 APRIL 2012

Congressman Trent Franks

C/O Ms. Jacki Pick,

Deputy Chief of Staff and Counsel for the Subcommittee

I write in support of the Victim’s Rights Amendment, now known as H.J. Res. 106.

My perspective is different from most. For twenty-three years I practiced Criminal Defense law in three states, Ohio, New Mexico and Arizona. My son was to join me in that practice and all was going to plan until October 17, 2010 when he was the victim of a robbery gone bad; two young men decided they wanted the lap top computer he was carrying home from the college library. They shot him, killed him and they took his computer, leaving him dead on the black asphalt.

Now, eighteen months later, the case against the shooter is still pending in the Maricopa County Superior Court, State of Arizona, and there is no end in sight. The defendant is manipulating the Justice System, ignoring and manipulating his attorney, mocking me and my family and because Judges, particularly at the State level, do not like to be reversed, it appears he will get his way.

Despite the fact that he is firing his appointed attorneys, after a year and a half, for no good reason. Despite the fact that members of his family are regularly removed from the courtroom by the Judge for aggressive behavior. Despite the fact that the defendant and his family threaten and lecture me and my family. And, despite that fact that these behaviors, are calculated and intentional, he is cloaked by practical Constitutional immunity. Any move by the Court to protect us, years from now, may be interpreted as a violation of the defendant’s Constitutional rights causing reversible error. So the path of least resistance is to give in to his demands, and this trial will be delayed until 2014, at the earliest.

Now I ask you: To whom do WE turn?

The answer is, nowhere and to no one.

While the defendant schemes delay, my family and I sit silently, shaking our collective heads, only sobbing later, in the privacy of our respective homes.

Understand that for years, and I wholly admit this, I exploited the Bill or Rights in favor of my client’s interest. Of course I did, it was my duty, it was my job and I was ethically obligated to do so. But one of the main reasons I was able to be so manipulative is that there is no countervailing interest. In a Criminal Courtroom, only the defendant matters. Justice, whatever one’s concept of justice might be, is merely a probability, a hoped for end result of the Process Due only the defendant. And since there is no counterweight to the defendant’s interest, justice is blind only insofar as Victims are concerned; but she sees clearly the interest of the accused.

In the State of Arizona there is a Victim’s Bill of Rights in the state constitution. But because it does not have any Federal teeth, even the limited rights of notice, presence, the right to be heard, and the right to a speedy trial are really of no effect. Whether a State has a Victim Bill of Rights or not, the Victim of a heinous crime will endure three or more years of pretrial process fraught with delay after delay and hearing after hearing. With no mechanism to be heard, we are mere patrons to the passion play; watching and suffering in silence because we are excluded from the process. Excluded. Of no force and effect. Irrelevant. Impotent.

So long as our meager state right is weighed against, for example, the Fourth or Fifth Amendment to the Constitution of the United States, the phrase “Victim Rights” remains a slogan and political ploy. The fact is, a Judge knows when he or she is treading on reversible territory, so does the Prosecutor, and the defense simply exploits those fears.

But, if we, the only innocent persons sitting in the courtroom, had some small amount of equal standing, then the Prosecutors could argue, and the Judges could order, for once, a reasoned decision that actually includes the interests of ALL parties to the proceeding. Absent a Federal Amendment, this will not and cannot happen. Continuances will be granted without our input, bail and conditions of release will be set without consideration for our safety and hearings will be held without our presence because we were not notified. And worse of all, our dead sons and daughters will be identified only by case number with a cursory nod of the head acknowledges the presence of the surviving family. Dignity? There is none in a courtroom for a victim of crime.

The murder of my son has obviously caused me to re-evaluate many long-held philosophical positions, inside and outside the practice of law. A view from the perspective of the “victim’s bench,” changes a person. Although this experience has changed my life on so many different levels, the relevant shift is in my perception of the role of the victim in the Criminal process. Prior to my son’s death, I believed the victim played no role and was wholly irrelevant to any proceeding in the Court. And, that view prevails throughout the land today. I was not alone!

What I now conclude, through reflection, is not only is there room for the victim in the courtroom, but that “fundamental fairness” dictates that the victim play a small role in the proceedings; to at least give voice to their concerns regarding their own safety and the safety of the family unit and the passage of time and the absurdness of the defendant’s motions.

The “natural law” that guided the constitutional principles penned by our Founding Fathers must not be allowed to lay fallow; it must be allowed to evolve naturally with societal realities. Just as the law regarding the rights of the accused changed in response to government excess, so now must the law react to protect the victim from the excess of today’s criminal defendants. The Courts and the Prosecutors need safe harbor to make arguments everyone already knows should be made. It is sad, but true.

In addition to being acquainted with the courtroom from a new perspective, I have become involved with, or have met, scores of other victims of crime. They are a silent group, isolated by their own grief, by their fear of the defendant, by their own guilt and by their ignorance of the criminal process. And, very early in the process, they realize that they are relevant to the criminal process only in so far as they are relevant to the crime itself.

Victims do not want to interfere with the system, but over two hundred years, the Criminal process has evolved so skewed against any fair treatment of the victim, that, at times, the Criminal process feels more like a play than reality; that the case number represents nothing, least of all, my son, and all the sons and daughters who have been felled, through no fault of their own, victims who end up simply a corpus delecti, whose life is reduced to being no more than an element of a crime; just a matter of proof.

I have practiced criminal defense law for more than two decades. I know the importance, in a free society, of protecting the rights of the accused. I know that nothing in the proposed amendments will infringe on those rights. And I now know, from the vantage of the father of a murdered son, that a free society can no longer tolerate the unfairness with which crime victims are treated. I urge you to pass the amendments and let the People through their vote, have their say. I would hazard to guess, it will pass.

Thank you for your time and attention in this matter.

Sincerely,

Daniel Joseph Marco

father to Zachary Joseph Marco, deceased

Posted in Crime Victim Bill of Rights, grief, grief murdered child, grief recovery, grieving parent, inspiration, loss of child, parent of murdered child, Uncategorized, victim of crime bill of rights, victims and the courtroom, victims of crime | Tagged , , , , , , , , , , | Leave a comment