You must state your case, and you must prove it. – Aristotle
Mad River Union
HUMBOLDT – The trio of guilty verdicts against Garberville native Bodhi Tree marked a near-total rejection of defense counsel’s unshakable stand that the prosecution’s murder case did not even begin to allay reasonable doubt.
Only Tree’s conviction for second degree rather than first degree murder cushioned the jury’s wholesale blow to the defense fight for acquittal.
Tree, 29, faces a total of 80 years in prison, a combined total of 40 years for each of two counts of second degree murder, according to Deputy District Attorney Elan Firpo.
The jury found him guilty of killing Eureka High School senior Christina Schwarz, 18, and Michigan native Alan “Sunshine” Marcet, 27, on May 18, 2013. They died of multiple gunshot wounds in a small house on Eye Street in Arcata, not far from Sunset Avenue.
For the third charge, the attempted murder of Rhett August in Eureka on May 15 last year, Tree can receive a combined total of 37.5 years in prison, Firpo said. August survived a barrage of four or five gunshots as he stepped into his driveway in the dark a few blocks from Eureka High School. He survived life-threatening bullet wounds, but was unable to identify his assailant.
For all three verdicts, the grand total confronting Tree is 117.5 years.
In a post-verdict telephone interview on Aug. 9, Firpo explained in lay terms the difference between first and second degree murder. First degree covers express malice, willful and deliberate murder. Second degree applies to a heat-of-passion killing.
Firpo said the sentencing hearing, originally scheduled for Aug. 22, probably would be postponed until the first week of September in deference to a request from Schwarz’s parents. Firpo is filing for a continuance this week.
One of the jurors, 46, from Eureka, agreed to speak with a reporter after the verdict, on condition his name not be used to protect his privacy. Designated juror number seven, he said, “The circumstantial evidence presented by the prosecution stacked up piece by piece.”
Even without the three jailhouse informants who testified late in the trial that Tree had boasted of the crimes, the juror said, “The prosecution case was persuasive. The defense did the best it could with a really weak hand.”
Asked about the mood and atmosphere in the courthouse deliberation room, the juror laughed in a gentle, amused tone and answered, “Which day?”
Naturally, feelings and behavior changed in the three days of discussions, he said. “When you’re stuck in a room with 12 strangers – even though we all knew each other by then – it brings out the best and worst in us.”
Gary Sokolow, a former prosecutor and currently professor of the Administration of Justice at College of the Redwoods, said in an e-mail, “I am not surprised Firpo won convictions. Considering the very high burden of proof – beyond a reasonable doubt – that she had to meet, this tells me that she was very well prepared for the trial and did her homework.”
The jury was convinced of Tree’s guilt despite a no-holds-barred closing argument by defense co-counsel Casey Russo and Heidi Holmquist. They backed their case for acquittal with detailed PowerPoint images displayed on a courtroom projector as the trial entered its final hours. [The prosecution’s closing arguments were reported in last week’s Mad River Union.]
The two denounced what they argued was the prosecution’s flimsy physical and forensic evidence; its resort to manifestly unreliable witnesses (felons, heroin addicts, jailhouse informants), and the prosecutor’s forbearance of investigative blunders.
They also faulted a lack of interagency communication and coordination among the authorities involved, even though the Arcata Police Department immediately alerted the Eureka Police Department when evidence emerged that the shootings in each community were connected. It was a breakthrough in the case, although the defense contended that EPD, APD, the District Attorney’s Office and the California Department of Justice should have been in touch with each other a lot more often on a variety of points.
Beyond that, EPD and APD detectives fumbled alternative leads and suspects and botched evidence collection, Russo and Holmquist told jurors in closing. Amateurish police work fell far short of due diligence, they asserted. Firpo should not have acquiesced to it.
Russo dissected what he argued were the flaws in the state’s attempted murder charge against Tree for the attack on August, his former friend and roommate:
• No physical evidence placed Tree at August’s J Street, Eureka, apartment.
• Eureka police failed to do a thorough search of the apartment and its contents.
• The police cordon was compromised and raised prematurely.
• The EPD’s lead detective, Peter Cress, had only seven months’ experience and rushed to judgment that Tree was the prime suspect.
• No forensic evidence (fingerprints) or physical evidence put Tree in the aging Land Rover said to have been the vehicle in which Charles Crow and Sean Butler-Smith gave a ride to Tree to Eureka the night of the shooting.
• Only one witness, Butler-Smith, an unemployed homeless felon and heroin addict, put Tree in the Land Rover. Crow, the driver, did not corroborate Butler-Smith’s testimony.
• A civilian witness, a neighbor of August’s with a spotless record, identified the suspect vehicle as a GMC Safari cargo van, not a Land Rover. He saw two suspects, not one, fleeing down an alley toward the van after the gunfire. Russo complained that the prosecution and police neglected to develop this alternative lead despite the testimony of a responsible civilian with no ax to grind.
• No effort was made to track down the Safari and inspect it.
• Detectives were negligent in developing other leads and gathering the history and background of alternative suspects. They included the first suspect in the Eureka probe, Melvin Matthews.
• Cress saw Matthews drive past the J Street crime scene shortly after the shooting. That is common criminal behavior. Cress interviewed Matthews later, but concluded he was not a prime suspect.
The defense insisted Matthews should have been investigated further. He feuded with August’s closest friend, Steve Upton, over marijuana and cash not long before August was shot. Upton drove August to the hospital the night of the shooting. Police found ample quantities of marijuana in August’s apartment afterward. Eureka police neither investigated nor confiscated it. Both Matthews and Upton, imprisoned, refused to testify at the trial.
Co-defense attorney Holmquist sought to discredit the Arcata portion of Firpo’s case. She said the deputy district attorney had completely failed “to overcome all reasonable doubt.”
Holmquist itemized the doubts as follows:
• There was no confirmed, scientific gun match between the Eureka and Arcata shootings.
• Divergent striations (grooves) in the bullets fired at each location suggested the use of two guns, not one. The missing murder weapon was never found.
• Arcata Police conducted no gunshot residue tests of the hands of the eight to 10 occupants in the Eye Street house immediately after the double murder there. Yet each of them was a potential suspect.
• No one saw or heard a suspect, or suspects, leave the house after the shootings.
• Police walk-throughs of the house failed to turn up two occupants belatedly found sleeping in the garage hours after the killings. Neither was tested for gunshot residue.
• None of the victims’ blood was found on Tree’s clothing, despite the fact that the shots were fired at close range, three to four feet, generating blood splatter in the area where the killer stood and fired.
• APD investigators failed to map the blood splatter on the walls opposite the bodies of the deceased.
• There was no hard evidence, only supposition, that Tree had a gun at the actual time of the murders.
• The APD produced no crime scene reconstruction. Yet a reconstruction was of utmost importance in view of the missing murder weapon and the absence of eyewitnesses to the killings.
• The crime log of the scene was “worthless,” Holmquist charged, an incomplete and erroneous record kept by a rookie who was not up to speed.
• The police cordon of the Eye Street house was compromised by at least one unidentified person. APD officers left the house unsecured when they finished their investigation at the scene. They failed to conduct a repeat search to ensure no evidence had been overlooked.
• Only one Arcata officer searched the neighborhood for witnesses and the gun right after the murders. APD failed to carry out follow-up searches and intensify its questioning of neighbors who might have remembered something later.
• Inexplicably, Arcata police Sgt. Bob Martinez did not pursue a potential suspect, Joshua Ice. His tie-dyed T-shirt had “red dots” when Martinez interviewed him, dots that might have been blood. Martinez did not order the shirt to be confiscated and the dots chemically analyzed, even though they looked like blood. He later apologized for the oversight.
Holmquist also cited the lack of a timeline for Tree’s presence in the Eye Street house. There is no evidence, only inference, he was there when the murders took place, she told the court.
Residents confirmed Tree was present the day and evening before the killings. Police recovered a beer bottle in the kitchen with Tree’s DNA on it. Video at the Arcata Alliance 76 service station recorded him purchasing two bottles of beer between midnight and 12:30 a.m. on May 18, 2013. Where he headed immediately after leaving the station is unknown. Schwarz and Marcet were shot to death minutes before 2 a.m.
Firpo theorized that Tree headed back to Eye Street, drank a beer as he contemplated the murders and, intoxicated, fired in cold blood at Schwarz and Marcet. They were lying on the living room floor on a makeshift bed and pillows. Apparently, Firpo suggested, Tree placed the bottle on the kitchen counter, turned, entered the adjoining living room and aimed.
“But when did Tree put [the bottle] there?” Holmquist asked rhetorically. Firpo, she said, did not produce “one iota of evidence” about how long the bottle was in the kitchen.
Alternatively, Holmquist theorized that Tree proceeded from the Alliance 76 not back to Eye Street, but to a Marilyn Street house in Sunny Brae, which he had frequented before. Police raided it on a tip the afternoon of the May 18. Tree allegedly ran out the back door and was captured later on Shirley Boulevard, hiding in undergrowth.
• As he departed the 76 station, Tree knew he could not go back to the clean and sober house in Eureka where he had been staying on probation because his heavy drinking violated his felony parole, Holmquist speculated. He spent the night at the alternative Marilyn Street location, never returning to Eye Street after his beer run.
Holmquist confronted head-on the issue of Tree’s motive. Firpo had argued since the start of the trial on May 14 that Tree acted in retaliation for sexual rebuffs by white women and the intervention of white males who asked Tree to back off.
But in each instance when Tree made passes, he retreated when the men intervened, Holmquist stated. He did not become aggressive, violent or unrelenting. His sexual overtures and inappropriate touching grew out of his drinking, which was understandable if inexcusable. He had been drinking heavily to numb the pain from his injured face and ribs after being pummeled at August’s house by third parties who were irate at his advances.
Holmquist also noted that no evidence emerged of a quarrel or fight in the period just before the early morning Arcata murders.
In fact, Holmquist added, Tree’s acts of imaginative empathy for others are hardly the stuff of a killer. He helped to save the life of a person from a heroin overdose at the Sunny Brae house not long before the Eureka and Arcata shootings, she said. While walking in police custody down Shirley Boulevard after his capture, he made the ‘peace’ sign to a little girl.
As for why he fled the Marilyn Street house when police arrived, Holmquist explained that Tree knew he had violated parole. His drinking — police said he was still intoxicated when interviewed at headquarters — predictably led to weak decision-making. Hence his impulse to run. But that in no way proved he was the murderer, she insisted.
The jury disagreed on every single one of the three counts. Rigorously argued as the defense closing was, jurors found Tree guilty across-the-board.
Russo and Holmquist had stated their case, as Aristotle stipulated. But in the jury’s judgment, they had not proved it.
Note: the following story was published in the Aug. 6 Mad River Union, prior to Bodhi Tree's conviction. – Ed.
A hundred suspicions don’t make a truth. – Dostoevsky
When you attach an assumption to a piece of evidence, you start to bend the narrative to support it and prejudice yourself. – HBO’s True Detective
Mad River Union
HUMBOLDT – Garberville native Bodhi Tree’s alleged murder binge in mid-May 2013 sprang from his fast-gathering anger and frustration at being ostracized socially, rejected sexually and “jumped” by riled peers, according to the prosecution’s closing argument.
Deputy District Attorney Elan Firpo is seeking to persuade jurors that in a three-day period last year, Tree engaged in a “continuous course of conduct.” That is, he retaliated over and over when he was spurned, insulted, beaten up and, finally, “demeaned as an errand boy” by his peers, she said.
Tree “is the most terrifying of murderers,” according to Firpo. “He sneaks back under cover of darkness and shoots people. He’s the worst type of murderer, a coward.”
Firpo admonished the jury that the disposition of Tree’s case is crucial, given the nature of his alleged crimes and the heinous manner in which they were carried out. That is why 73 witnesses appeared at the trial, she explained, more than three times the average of about 20.
Every piece of evidence, however circumstantial and minute, merited consideration, Firpo argued, owing to the concerted malice and vindictiveness of Tree’s alleged acts. The missing murder weapon and the absence of eyewitnesses heightened the demands on the prosecution to marshal every available fact.
In her concluding summary late last week, Firpo alleged that Tree’s criminal course of conduct began with the attempted murder of his four-year friend and former roommate, Rhett August, at a night time shooting in Eureka near the high school on May 15, 2013. August survived his life-threatening gunshot wounds.
Just 72 hours later, Tree allegedly continued his destructive course when he murdered two innocent and defenseless people in cold blood in Arcata: Christina Schwarz, 18, a Eureka High School senior, and Alan ‘“Sunshine” Marcet, 27, a Michigan native. Both died of gunshot wounds on a makeshift bed in a suburban bungalow off Sunset Avenue. They were shot at nearly point-blank range as they slept. The gunman stood at their feet as he fired, scarcely more than three or four feet away, according to independent expert testimony. Some four or five shots were triggered, probably from a .38 snub-nosed revolver. Taken together, Firpo told jurors, the series of shootings represented an escalating “course of conduct” — a term of art meaning “a consistent pattern of behavior that shows continuity of purpose.”
Tree’s conduct was not only consistent, Firpo underscored. It was also “premeditated, willful, deliberate and calculated.”
Firpo reminded the jury that Tree, who is black, had been rebuffed repeatedly by white women, at both Eureka and Arcata social gatherings. Schwarz had been among the young females who spurned Tree’s advances, which were characterized by witnesses as coarse, vulgar and aggressive. His advances were broken up by white males, who defended the females against Tree’s sexually predatory behavior.
Late in the trial, three of Tree’s inmates in the maximum security compound of the Humboldt County jail testified that Tree derided his tormentors as “white guys trying to play the hero” at social occasions. Repeated verbal altercations broke out in or near the Eureka and Arcata residences where the sequence of shootings later occurred.
Tree’s aggressive sexual overtures in Eureka spurred the men at August’s apartment to pummel him in the driveway when he refused to desist from harrying a white woman. Unwanted, he put his arm around her as they sat on a couch, according to multiple witnesses and the woman herself, Taraya Rives. At another point, he groped her buttocks and genitals in a stairwell, Firpo reminded the jury.
August took no part in the fight, but he observed it, Firpo noted. When it was over, Tree allegedly uttered a threat to his assailants, warning, “I’ll be back! I’ve got something for you guys!”
The “something,” according to prosecution witnesses, was probably a .38 caliber pistol.
Colin Baldridge, a long-time acquaintance of Tree’s, told the court the suspect openly showed off a gun during an afternoon party at the Arcata house on Eye Street in the run-up to the double murder there in the wee hours after midnight the next morning. Saying he had been around guns most of his life, Baldridge described Tree’s weapon as “a compact, snub-nosed, larger caliber revolver in the .38 range.”
Bullets extracted from the victims’ bodies probably, although not definitively, fit that category, the authorities testified.
When Tree spontaneously displayed the weapon at the party, Baldridge went on, “He was saying ‘nobody should mess with him.’”
Baldridge, who is white, was one of the men who intervened on behalf of Schwarz and other women at the Arcata bungalow when Tree hounded them verbally for sexual favors. He asked Tree to refrain. Tree did but he was miffed and petulant.
Firpo interprets Baldridge’s testimony about the suspect’s gun and his provocative display of it as evidence that Tree was ready and eager to defend himself with at least the threat of gun fire if he were faced with another physical confrontation like the one meted out to him in August’s driveway three days before the Arcata murders.
If Firpo is correct, Tree was an increasingly vexed and haunted man. Supposedly, according to Firpo, the prime suspect was poised for retaliation and had an itchy trigger finger in the hours that led up to the Schwarz and Marcet killings. He had experienced the same social ostracism in Arcata that he had endured days before in Eureka.
Tree, 29, has a history of mental problems and his criminal background spans more than a dozen convictions. His slide downhill reaches back some 15 years to his teens, when reportedly he began abusing alcohol and was hospitalized for alcohol poisoning.
Tree was arrested in his youth for petty theft, burglary and drunken driving. He was named a ward of the court at age 15. Eventually he was diagnosed with paranoid schizophrenia and committed to a state hospital.
In October 2011, Tree was arrested yet again and subsequently convicted of felony evasion of a police officer. He had led law enforcement on a 100 mph chase that began at Bear River Casino in Loleta.
Sentenced to three years in prison, Tree was released early, in April of 2013, under the state’s prison realignment initiative. Probation officials documented their certainty that he would find himself in trouble with the law once more. Only weeks following his release, he was charged with two counts of murder in the Arcata attacks and one count of attempted murder in the Eureka assault.
In the days immediately before and between the Eureka and Arcata shootings, Tree reportedly drank so heavily that he passed out again and again. According to his probation reviews, first summarized by the North Coast Journal, he was prone to substitute alcohol consumption for the prescribed medications he was administered to treat the apparently grave mental afflictions which surfaced in his teens.
Combined ingestion of alcohol and other drugs is known to lead to devastating results.
Aside from whether drugs were a factor in Tree’s case or not, Dr. Kathy Charles, a forensic psychologist in Edinburgh, Scotland, contends that a personality disorder is at the root of major offenses, including murder and rape. In an interview last year with the United Kingdom’s online Daily Record, she was quoted as saying that murderers, whatever their demeanor, “all share one thing: a psychotic personality that gets a thrill from killing.”
“Their nervous systems are different from others in the sense that they don’t get a thrill from some of the things that normal people would,” Charles said. “They are all cold, callous individuals who do not share an ounce of sympathy or remorse for what they did.”
In contrast to Charles’s focus on nervous systems, Richard Rhodes, author of the 1999 book Why They Kill, endorses the sociological theory of “violentization,” developed by U.S. criminologist Dr. Lonnie Athens.
The Athens theory outlines a four-stage evolution of social experiences that comprise brutalization, belligerency, violent performances and “virulency.”
The stages refer, in part, to cruel treatment at the hands of primary others (family, gang, clique); subjugation or coercion by authority figures (including parental punishment); witnessing others being violently abused; and implacable ridicule and bullying.
According to the violentization theory, the victim’s four stages of abuse leave him extremely troubled and disturbed. He may ask himself ad nauseam, “Why was I singled out for such treatment?” He feels hopelessly at odds with both himself and his world and finally relieves his unendurable frustration with overt and often brutal aggression.
These modern psychological and sociological models of homicidal behavior – the interminable “nature versus nurture” debate – are by no means exclusive.
One corollary is the nexus that Firpo draws between frustration and retaliation. This link was highlighted as long ago as 1962 in a monograph, The Psychology of Murder, by Professor Stuart Palmer of the University of New Hampshire. Based on three years of research of 51 murderers, Palmer found that 82 percent suffered higher levels of pre-adult frustration than their non-murdering brothers. He created detailed metrics of his many data.
In Palmer’s words, the 51 “were individuals who by and large had led dismal, unprestigeful, frustrating lives.”
Potential murderers often lack verbal ability and they are more likely to repress their internal lives in consequence, Palmer found from his relatively small sample. When they become involved in particularly frustrating circumstances, their repressed aggression can explode “through their crust-like shell of socialization.” They kill the person “whom they conceptualized as their primary frustrater.”
Hence Firpo’s argument as to Tree’s driving motive, retaliation, and its fatal consequences.
The deputy district attorney is scheduled to resume her closing statement on Aug. 4, followed by the summation of the defense case and Firpo’s rebuttal of the public defenders’ counterpart closing arguments.
Afterward, Judge Dale Reinholtsen will brief his final instructions to the jury, which is slated to commence its deliberations at mid-week, barring unforeseen developments.