Foul whisp’rings are abroad.
Unnatural deeds do breed unnatural troubles.
– Macbeth, Act V – Scene I
Mad River Union
HUMBOLDT – “I wasn’t there.”
Thus spoke Deputy District Attorney Roger C. Rees with unalloyed realism when he delivered his opening statement April 21 in the trial of murder suspect Juan Joseph Ferrer, 36, of Arcata.
“I’m not certain about what happened that night,” the prosecutor declared. “Why? I wasn’t there. You might be a little disappointed if you expect to be certain at the end of the trial about what happened.”
Rees was cautioning the 12 jurors and five alternates not to assume that when all the evidence and testimony are in, they will know everything that occurred in a few fateful minutes at about 1:30 a.m. on Nov. 25, 2013, when Ferrer allegedly stabbed to death unarmed Abruzzi chef Douglas Anderson-Jordet, 50, of Arcata. The defense argues the stabbing was strictly accidental.
Rees’ openly expressed doubts about what is ascertainable are hardly unique to the Ferrer case. “‘There is always in litigation a margin of error, representing errors in fact-finding, which both parties must take into account,’ the United States Supreme Court held in a 1958 decision, Speiser v. Randall.” (Emphasis added.)
To illustrate: suppose a hypothetical murder case comprises a thousand facts. How many of them will be discovered and collected by investigators? Half? As high as 85 percent, perhaps, or as low as 30 to 40 percent?
Of the facts overlooked or never found, how many might have been persuasive to a jury had they been recovered? It is a known unknown.
When the available facts are placed on the courtroom table – whatever their number and their presumed value – the district attorney and the defense counsel distill them into dueling narrations for presentation to the jury. Both sides argue their cases with as much certainty as they can muster, notwithstanding Rees’ upfront admission in the Ferrer case, “I’m not certain about what happened that night.”
If a disinterested Jill Q. Public had heard the opening stanzas of the Ferrer trial, she might have concluded as follows:
• The state says Ferrer committed murder when he and Anderson-Jordet confronted one another in the street in the dead of night and Ferrer stabbed him after derogatory verbal exchanges.
• The defense says the two were involved in a tragic accident when their bodies collided and Anderson-Jordet fell on the knife.
• The state says Ferrer had no grounds for employing deadly force to repel a verbal onslaught, allegedly a homophobic one.
• The defense says Ferrer had every right to exercise self-defense, and to stand his ground under California law, when Anderson-Jordet allegedly punched the accused on the left side of the head, the salvo that caused the verbal altercation to escalate into deadly violence.
Bare bones, those are the principal arguments and counterarguments in the trial so far.
The uncertainties and ambiguities that Rees foretold and the jury must grapple with include the fact that Ferrer’s knife was never found.
Almost always, the murder weapon is a crucial piece of evidence, although convictions are obtained without one, as occurred in the double murder trial last year of Bodhi Tree, whose gun was never recovered despite intensive searches.
In contrast to that case, Ferrer freely admitted on the witness stand across three days of testimony that he threw the knife over his shoulder into bushes somewhere on 12th Street. He and his two companions that night, Sophie Rocheleau and Nicholas Stoiber, were retreating from the scene of the confrontation just north of 11th and H streets in Arcata.
Rees asked Ferrer to estimate the length of his knife, but he could only provide an estimate of, say, five or six inches. He did not recall seeing blood on it before he tossed it away in the early morning dark, he told the court.
The forensic pathologist who performed Anderson-Jordet’s autopsy testified that he measured the puncture wound, which penetrated the heart, to a depth of 3.5 inches.
Is it reasonable for jurors to conclude, therefore, that Ferrer stabbed his alleged assailant forcefully and aggressively? And that Anderson-Jordet did not, as defense counsel Reavis argues, fall on Ferrer’s knife accidentally in the mêlée?
Although the pathologist, Dr. Mark Super of Sacramento, was not asked to compare the length of the blade to the depth of the wound, he did voice open skepticism that Anderson-Jordet fell on the knife – a notable setback for the defense.
“I wouldn’t expect to see a wound this deep if” Ferrer had held the knife loosely, Super testified. In his professional opinion – the doctor said he has performed more than 10,000 autopsies – “Falling on a knife doesn’t ever make sense. Someone has to be holding it hard enough to get it in,” because skin and cartilage “are like steak.”
Photographs of the post-mortem introduced in court showed that Anderson-Jordet’s chest was punctured just below the left nipple where cartilage affixes the ribs to the sternum. The victim was wearing a T-shirt and a trench coat and the knife perforated the shirt.
Ferrer testified that Anderson-Jordet simply collided with him. “It was almost as if he was trying to run me into the ground.”
Another uncertainty: The defense has underscored that the chef’s blood alcohol level was 0.23 percent the night he was slain, almost three times the legal driving limit. A bartender at Everett’s Club, Damien Hofsted, corroborated that, telling the court that Anderson-Jordet drank four pints of IPA beer and two shots of whiskey between about 10 p.m. and 1:15 a.m. The confrontation just north of 11th and H streets occurred at about 1:30 a.m. or shortly thereafter.
Super said his autopsy turned up no evidence that the deceased suffered from cirrhosis of the liver, common among abusive drinkers, nor any track marks from intravenous drug use.
This is relevant because in May, 2014, the Times-Standard and the John Chiv Words Worth blog reported that Arcata Police Detective Todd Dokweiler had learned third-hand that Anderson-Jordet had moved to Arcata from Minnesota owing to several heroin transactions that had fallen through.
Reportedly, too, one of the decedent’s restaurant co-workers had informed investigators that Anderson-Jordet had inquired about procuring black tar heroin.
But the pathologist’s findings cast doubt on this hearsay, which has not been a subject as yet at the trial.
Further, Arcata Police Acting Sergeant Chris Ortega testified that no drugs were found in Anderson-Jordet’s quarters at the Crew House in Arcata after his death, apart from a small personal quantity of marijuana of no legal consequence.
Yet two witnesses testified that Anderson-Jordet abused alcohol. His ex-girlfriend, Virginia Jimenez, said that was the reason she broke up with him. A Crew House manager, Cher Southard, had planned to inform Anderson-Jordet that his lease would not be renewed because of his drinking and the discomfort it caused her and the other 18 residents at the Crew House.
Queried by Rees about Anderson-Jordet’s chances of survival after the stabbing, Super hypothesized he might have lived had he made it to an emergency room in time, within an hour, but he was bleeding heavily. The pathologist drained 300 cubic centimeters (cc) of blood, mostly coagulated, from the body.
The prosecution charges that Ferrer and his two friends left Anderson-Jordet to die alone in the street, unattended. The defense counters that none of three had any reason to believe the victim was seriously wounded because he was still standing and still shouting epithets at them as they departed the scene, heading north on H Street, then turning left and proceeding west on 12th Street.
Anderson-Jordet, meantime, walked up the same hill before collapsing in the crosswalk at 12th and H streets adjoining Wildberries Marketplace, according to Acting Sergeant Ortega.
What touched off the spontaneous, street-side confrontation in the first place? Purportedly “foul whisperings” a la Macbeth, albeit homophobic shouts in this instance.
Allegedly, Anderson-Jordet “screamed” (Ferrer’s characterization), completely unprovoked, “What do we have here? A couple of fucking faggots and their fat bitch girlfriend?” According to testimony, he was moving toward the trio, crossing from the east side to the west side of H Street in the vicinity of RE/MAX Realty and the Humboldt Clothing Shop.
If Ferrer and his two companions did nothing to trigger the verbal pasting, what did?
Defense counsel Reavis contends that taken together, Ferrer’s appearance, apparel and apparent sexual orientation were the precipitating factors in the fatal encounter.
Ferrer testified that he was wearing makeup that night, specifically eyeliner and eyeshadow. He was dressed in Goth punk or gutter punk style, black clothing festooned with the studs and the music band patches he favors.
According to the 1999 book, Pretty in Punk: Girls’ Gender Resistance in a Boys’ Subculture by Lauraine Leblanc, older gutter punks – Ferrer is 36 – “claim to choose this lifestyle in order to opt out of a mainstream society that they view as overly concerned with status, power and the accumulation of wealth at the expense of the virtues of compassion, integrity and freedom.”
Ferrer testified that he and Anderson-Jordet might have caught sight of one another beforehand at Everett’s. If so – and it is an if – did Anderson-Jordet size up Ferrer’s sexual orientation at that time? Was Anderson-Jordet feeling mounting anger at the very sight of Ferrer as he departed Everett’s?
Ferrer was on a smoking break outside the back of the bar when he saw “a man who looked at me.” Neither man spoke. “I just noticed he was there. He stared at me but he didn’t say anything. I just thought he was really drunk and he didn’t have no response.”
Was the man Anderson-Jordet? Did he leave Everett’s right after Ferrer and his friends did with the intent to trail them along H Street and confront them?
How much time elapsed between the trio’s departure and Anderson-Jordet’s? If both parties paid with credit cards, would the bar’s records enable investigators to determine the time sequence? Would that be relevant if known? None of these questions have come up at the trial as yet.
Reavis informed the court that Ferrer is a member of Arcata’s LGBT community and “that’s how this [Anderson-Jordet] tirade all started. Mr. Ferrer was accosted for his visual appearance.” (LGBT, or LGBTQIA, is the acronym for diverse sexual orientations: lesbian, gay, bisexual, transgender, queer, intersex, asexual and/or ally.)
Reavis’ supposition is rooted, of course, in Anderson-Jordet’s alleged use of the word “faggot,” which prosecutor Rees has not disputed.
But it is impossible for Reavis or anyone else to know if Anderson-Jordet reacted specifically to Ferrer’s make-up and apparel with rising feelings of anger and repugnance. Impossible to know if the slurs he allegedly uttered stemmed from the settled belief of a bigot or from a drunken muddle.
Impossible, because the deepest essences of personal experience, the flux and oscillation of inner events in the cleavage between the conscious and unconscious, are beyond human reach, never mind the reach of the criminal justice system.