D.A.: Ferrer went too far with lethal use of force

Paul Mann
Mad River Union

EUREKA – A linchpin of the state’s second-degree murder case against Juan Joseph Ferrer, 36, of Arcata, is that jeers are no justification for resorting to deadly force with a knife, even if the alleged taunts were homophobic.

Again and again, Deputy District Attorney Roger C. Rees asked prospective jurors in pre-trial proceedings in Humboldt County Superior Court if they would shoot in the head an assailant who had punched them hard in the face once, or even twice.

facebookbadgeforwebMost said no, that killing an aggressor in response to a vigorous blow or two, much less incendiary shouts, would certainly be over the top.

Ferrer is on trial in Humboldt County Superior Court for second-degree murder in the street-side stabbing death of Abruzzi chef Douglas Anderson-Jordet, 50, shortly before 1:30 a.m. on Nov. 25, 2013. Ferrer allegedly knifed, and his two companions punched and kicked, Anderson-Jordet in the wake of a verbal row on H Street, several blocks north of the Arcata Plaza.

Evidently, the confrontation escalated fast from verbal to physical after the unarmed Anderson-Jordet allegedly bellowed, unprovoked, “Fuck you and your fat girlfriend!”

The girlfriend, one of Ferrer’s two companions that early morning, was Sophie Rocheleau, 25, also of Arcata.

Ferrer’s attorney, Conflict Counsel Marek Reavis, contends the clash was triggered by Anderson-Jordet’s homophobic verbal reaction to the way Ferrer and his friends were dressed, in a gutter punk or Goth punk get-up of black apparel with studs. Purportedly, the attire suggested a gay or bisexual orientation to which Anderson-Jordet took exception in his drunken state. His reported blood-alcohol level was 0.23, almost three times the legal driving limit. Ferrer identifies himself as bisexual.

An Everett’s Club bartender, Damien Hofsted, testified as the trial opened last week that Anderson-Jordet drank four pints of IPA beer and two shots of whiskey between about 10 p.m. and 1:15 a.m. before he left early on Nov. 25, 2013, three days before Thanksgiving. Hofsted said he remembered the victim clearly because he mentioned being from Minnesota and Hofsted was interested in moving there.

The barkeep added that Anderson-Jordet, who was not a regular customer, appeared to hold his liquor well that night and early morning. Hofsted agreed however that habitual heavy drinkers can appear less inebriated than their intake suggests as they develop a high tolerance for alcohol.facebookbadgeforweb

On the other hand, Arcata Police Acting Sergeant Chris Ortega testified that Anderson-Jordet’s gait – recorded after he left Everett’s on surveillance videos at RE/MAX Realty and the Humboldt Clothing Company on opposite sides of H street – indicated he was staggering northward.

Anderson-Jordet was on the east side of H, while Ferrer and his two drinking companions that night walked single file at a normal pace on the west side. None of the three appeared to stagger in the videos, according to Ortega.

He said the videos offered no evidence that Anderson-Jordet was saying anything at that point as he and the three proceeded in parallel toward Ninth Street and beyond on opposite sides of H’s one-way route south.

The first week of the long-awaited trial produced no independent corroboration that Anderson-Jordet spewed homophobic abuse, as the defense claims.   

Sarah Brody, an ear-witness who overheard the verbal clash break out beneath her second-floor apartment window in the 1100 block of H Street, was unable to confirm that Anderson-Jordet ridiculed the three as “you fucking faggots,” as Reavis has claimed in and out of court. According to Reavis’s version, Ferrer retorted, “Fuck you too, man!” then warned, “Hey, stay back you fucking lunatic!”

Brody corroborated only, “Fuck you and your fat girlfriend,” devoid of homophobic content.

Virginia Jimenez, Anderson-Jordet’s ex-girlfriend, testified that he never employed homophobic words either in front of her or when they were in the company of other people.

Chris Smith, Abruzzi’s proprietor, said in a private interview at the restaurant two weeks before the trial that he never heard Anderson-Jordet use foul language of any kind, either during working hours or elsewhere on social occasions. Employed at the restaurant for some 15 months, Anderson-Jordet did not chivvy others, even when joking, Smith said. He described his late chef as a gentle, mild-mannered, consummate professional who was liked by everyone who knew him.

facebookbadgeforwebA colleague, J. Blue West, who works upstairs at Plaza Grill in Jacoby’s Storehouse, wrote in an affidavit submitted in March, 2014, “Doug was not known for being anything other than helpful and kind.” She added, “I am not clear as to the events of the evening leading up to the death of my co-worker. But I knew Doug to be a mild-mannered man.”

Hofsted, the Everett’s bartender, described Anderson-Jordet simply as “average.” He was a patron who caused no trouble in the hours leading up to his death, the barkeep testified.

Defense attorney Reavis admonished jurors, however, that whatever may be said about Anderson-Jordet’s character, or whoever says it, only his behavior on the night in question is germane to the murder charge.  Although the prosecution reasons that Ferrer had no business stabbing anyone who was strictly a verbal tormentor, Reavis counters that his client acted solely in self-defense against a putative homophobic hate crime when Anderson-Jordet allegedly struck Ferrer on the side of the head. That first punch triggered the fatal, three-on-one scuffle that led the defendant to brandish his knife.

According to the defense narrative, Anderson-Jordet swung a “haymaker blow,” lost his balance momentarily and fell on Ferrer and the pocket knife, which was at least four inches-plus in length.

Yet some two-and-a half hours of testimony by the 30-year forensic pathologist who conducted Anderson-Jordet’s autopsy cast doubt on the proposition that the victim fell on the knife.

True, an autopsy cannot establish whether a victim fell on a knife or not, Dr. Mark Super of Sacramento told jurors. In general, he offered, “I’m not really big on whether people can fall on knives.”

But he ventured that “Falling on a knife doesn’t ever make sense” unless it is in a fixed position and held immobile.

Referring to the fatal injury to Anderson-Jordet’s heart, the doctor stated, “I wouldn’t expect a wound this deep if [the knife had been] held loosely” by the assailant, implying that Ferrer probably wielded it with a firm grip and forceful thrust. Super measured the puncture to the heart to a depth of 3.5 inches. He has performed more than 10,000 autopsies.

The defense account is that Ferrer pushed off his assailant as Rocheleau and Nicholas Stoiber, 29, the second Ferrer companion, piled on. Anderson-Jordet fell as he suffered a kidney punch from Stoiber.

Ferrer stepped aside momentarily, according to Reavis, and “was in shock” at what had transpired. Moments later, Anderson–Jordet was back on his feet, according to Reavis, and therefore Ferrer “never knew” that he had inflicted a serious wound.

Although the fight was a three-on-one, Reavis told the court there were extenuating physical factors. Anderson-Jordet was three inches taller than Ferrer, 5’11” versus 5’7”, and the chef weighed 210-220 lbs.

Reavis said Ferrer weighed some 330 lbs. at the time – he is considerably thinner now from his incarceration – so he was hardly agile or athletic when the skirmish broke out. Counsel described his client as “morbidly obese” in 2013, and emphasized that Ferrer delivered a sharp warning to his assailant to “stay back” before the knifing ensued.

The alleged murder weapon was not recovered; Ferrer reportedly disposed of it, but in a manner not revealed if known. He was not charged with obstruction of justice for getting rid of it because California does not have such a statute, District Attorney Maggie Fleming said in an email. State penal code section 135 addresses “destroying or concealing” evidence, she added, “but that is a misdemeanor and so not usually charged when the person is charged with a homicide.”

Ferrer’s actions in the days right after the death were at the forefront of the the prosecutor’s opening statement last week. Rees led off with a large photograph of Anderson-Jordet projected on a courtroom wall. Noting that during jury selection, Ferrer had stood smiling and introduced himself cordially to candidate jurors on successive days during pre-trial, Rees told the court pointedly “Doug won’t get to stand up and introduce himself. That’s because he killed him,” the deputy D.A. said in an accusatory tone, pointing a finger at Ferrer, seated at the defense counsel’s table.

Absent video surveillance, Rees underscored, “We never would have known the defendant was responsible for Doug’s death.”

Discrediting Ferrer further, the prosecutor added, “The defendant never came forward to explain why Mr. Anderson-Jordet had to be killed” prior to Ferrer’s arrest more than a week after the slaying.

Rees charged that Ferrer did not stand his ground in the struggle, as his lawyer claims, but instead disposed of his knife and fled. He failed to inform police of the encounter, did not notify emergency services and did not attempt to determine if the victim was seriously wounded, Rees said.

When paramedics arrived, Ferrer was not present to explain to them in what way Anderson-Jordet might be at risk of his life, Rees went on, declaring, Ferrer “left him to die in the street.”

The prosecutor used Ferrer’s statements to Arcata Police to portray the suspect as a liar and a dissimulator who sought to avoid coming forward and taking responsibility for his lethal action against a lone, unarmed victim.

Marshaling police interview recordings, Ferrer’s text messages and a PowerPoint of the defendant’s statements to police, Rees sought to shred the defendant’s credibility head-on.

Quotes to detectives projected on a courtroom wall showed Ferrer answering a hypothetical question about the proper use of lethal force: “Nobody should die for, you know, hurling an insult maybe.” Alternatively, Ferrer suggests, an aggressor “maybe be bitch-slapped or something.”

At other points Ferrer stated “I wasn’t attacked though,” and “I didn’t have to defend myself.”

Jurors may find those declarations to be a devastating refutation of Reavis’ central argument – that his client acted solely in self-defense – when in fact he told police without equivocation that he actually believed he didn’t have to defend himself at all.

In possible mitigation, the suspect was also quoted in police interviews stating, “I wasn’t trying to kill him; I just stuck him to get past him.” In this version, he sought only to deter Anderson-Jordet, not disable him, at least not fatally.

Yet if Ferrer acted only in self-defense, as Reavis asserts, text messages obtained by police and presented in court last week suggest Ferrer and his confederates by no means assumed that self-defense would hold up in court, if it came to that. The multiple messages on successive days seem to show that their first impulse was to elude arrest and punishment.

• “Long as that weapon don’t come up I think we are cool,” Ferrer says of the knife.

• “Only my sister aside from you and soph and my fam are gangster no snitching,” Ferrer tells Stoiber. “Soph” refers to Rocheleau.

• “You think we’re clear?” Ferrer asks. “Clear enough,” Stoiber replies.

• “Not (cq) witnesses besides us,” Stoiber affirms. “Word thanks brother,” Ferrer answers.

The pronoun “we” in “I think we are cool” refers to Ferrer, Rocheleau and Stoiber. The latter duo pleaded guilty last November to a reduced charge of misdemeanor battery and were sentenced to three years’ probation and court-ordered alcohol and drug reviews. They had been accused of punching and kicking Anderson-Jordet.   

“Sister” and “fam” refer to Ferrer’s relatives – he was arrested at his grandmother’s residence, where he looked after her as a caregiver. He voices confidence they will not snitch to the authorities.

“Oh man, I wasn’t there,” Ferrer claimed in his initial denial to police, which he subsequently retracted, admitting he had lied, perhaps further  jeopardizing his credibility with jurors.

In another instance, Ferrer confided that the authorities did not have  DNA or video evidence of the crime – suggesting he was at least hopeful at the outset that no hard evidence would turn up that police could use to charge him.

Rebutting Rees, Reavis said the prosecutor employed selective pieces of Ferrer’s conversations for the court, failing to tell the whole story of what happened that night and why.

Reavis outlined in detail the sequence of events leading up to what he called a “tragic accident” – that the allegedly stupefied Anderson-Jordet lost his balance and fell on the knife.

Reavis noted that all four parties to the dispute were drunk. He alternately characterized his client as either “fairly drunk” or “very drunk.”

He said Ferrer and his friends were taken completely by surprise and were frightened by a stranger wearing a black trench coat and black T-shirt who inexplicably launched into a tirade for no reason.

Far from leaving Anderson-Jordet to die, Reavis rejoined, the victim was still ambulatory when Ferrer and his two friends departed the scene at 11th and H streets and went on shouting at them in threatening terms, “I’m still behind you!”

But those words did not come from Anderson-Jordet, according to ear witness Brody. Questioned repeatedly and intensively by Reavis, the apartment dweller was unwavering that “I’m still behind you” –  although uttered in a male voice in the same kind of rant as that attributed to Anderson-Jordet – was aired in a “distinct and different voice.”

Brody said the warning bore the tone of a parting shot and she heard it at least twice. “It didn’t sound the same as the first voice,” she testified, leaving open the possibility that someone else might have been present on H Street. If so, he never came forward and investigators have never suggested such a chance alternative. Nor have the state and defense. For now at least, Brody’s belief about a second voice remains a riddle.    

Countering Rees’s accusation that Ferrer left Anderson-Jordet to die, Reavis said his client had no idea that this “complete stranger” had been seriously wounded. Nor did Ferrer know that after the scuffle, Anderson-Jordet walked up H Street a block or so before collapsing near Wildberries, where he died despite multiple attempts by first-responders to resuscitate him.

“This was an accident,” Reavis admonished jurors again as he concluded his opening remarks last week. “This was unintentional.”

The trial is projected to continue until the end of May.

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