Abuse of Discretion: Life Without Parole in WA for Doormat Burning
This post is authored by Steven Darby McDonald, who is serving life without parole for a Robbery 2, a Robbery 1, and a conviction for burning a door mat. He denies setting the doormat on fire. Copies of original trial transcripts, investigator reports, court filings, media reports and other sources that he provided to me indicate questionable handling of evidence by the Mount Vernon Police Department. There is also an indication that testimony may have been excised from the Superior Court trial transcripts. I find the comment of the appeal court judge, which I verified in the transcript, that "prisoners now have two rights, the right to go to jail and the right to stay there until their term is up" to be prejudicial. An active campaign seeks to remove low-violence crimes from the state's 3-Strikes list. Please consider joining the RAPID RESPONSE for that campaign.
DATELINE MOUNT VERNON WASHINGTON: A crime took place in a downtown motel in Mount Vernon Washington on February 4, 1996. A door mat was burned. Damages were hard to calculate, but an estimate might be determined on the basis of this description in a Washington Supreme Court decision:
"The State charged McDonald with first and second degree arson. The first degree arson charge was based upon the defendant setting fire to the welcome mat outside a motel room, which destroyed the mat and discolored the door before being extinguished." (1)
According to the hotel's manager, Mrs. Stevens, the damage was non-existent except for having to repaint the door, which she decided to do at the end of the season. Further, she told investigator Kevin Steward that she was not going to file a loss-restitution statement seeking damages because "she had been taught that honesty is the best medicine." (2)
Photo above: Steven Darby McDonald
The accused arsonist was 42 year old Steven Darby McDonald, who had no history of prior door mat burnings, and who called 911 to report that the door mat was burning and then pulled it from harm's way so that the motel room door would not ignite. (3)
The other people who were partying with Mr. McDonald in his room that evening, who he had met at Max Dales, a lounge next door to the hotel, had exchanged heated words with his neighbor, Mrs. Clark, throughout the evening about the noise coming from his room. All fled from the scene as soon as they heard sirens from the fire trucks, leaving Mr. McDonald home alone.
You may think that Mr. McDonald deserved to receive some kind of reward or at the very least, a polite thank you for calling 911 to report the fire. But not so in the City of Mount Vernon, where they had never had a three-strike arrest and conviction, and were out looking to get one. Instead, he was charged with First Degree Arson and sentenced to a mandatory life sentence without the possibility of parole based on this crime and prior convictions of Robbery 1 and Robbery 2.
This is the exact same sentence that Terry Nichols received for his participation in murdering over 250 people in the Oklahoma City bombing; Gary Ridgeway received for murdering 49 women in the Green River murders; Robert Yates received for murdering a dozen prostitutes; Jeffrey Dahmer received for murdering and devouring dozens of young men, etc., etc.
With the advent of real-life crime drama TV shows like CSI and Law and Order, which allegedly depict real-life law and justice scenarios, you may think that Mr. McDonald would have had the benefit of a full panoply of Constitutional rights and would have had no trouble proving his innocence. But these shows only create a false sense of reality. They always portray the accused as receiving his fair share in an impartial judicial setting, one in which police officers are honest and do not lie and the evidence is not tainted.
Sometimes nothing is further from the truth.
Unable to obtain private counsel due to being mentally challenged and receiving 100% disability payments from the Social Security Administration, Mr. McDonald had to accept the appointment of a public defender. After discovering that the defender was leaking confidential defense strategies to the prosecution, he sued him in civil court and then moved to sever their attorney-client relationship. Honorable Michael Moynihan, the judge who conducted the hearing on removing the attorney from the case, commented on his attitude toward defendants like Mr. McDonald:
"We just finished a great judge's conference over in Wenatchee, and Mr. Whitebread, if you have ever had the opportunity to hear Mr. Whitebread talk about the Constitution, prisoners now have two rights, the right to go to jail and the right to stay there until their term is up... I don't consider the fact (that the defendant) has filed a lawsuit against anybody at this point prejudicial to anybody involved." (4)
In State v. McDonald, the Washington Supreme Court reversed Judge Moynihan's decision and allowed the removal of his defense attorney. However, it did not acknowledge the unconstitutionality of this "Whitebread Doctrine" cited by the judge in support of his decision: that prisoners have no rights.
The claimed damage to the door of the motel room by fire was the sole basis for the imposition of the mandatory life sentence on Mr. McDonald. As the trial proceedings continued, Mr. McDonald attempted to have a defense expert appointed to examine the door for fire damage that the state claimed. Each request was denied by the court in the first jury trial. This prohibited the defense from investigating the most critical piece of evidence. By the time of the second trial, it was too late to examine the door, as it was not in the same condition as in 1996. There is no way to refute the state's claims that the door was on fire and the surface actually burned. This, along with damage to the dwelling and a fire inside a dwelling, are the requisites element of the crime of arson. If the door had not been on fire and burning, then there was no way for the fire to be inside the building when the door opened, negating first degree arson. Yet now all this vital information is forever lost by the state's applications of its "Whitebread Doctrine of Law."
Many other things took place during pretrial investigation of this case and during the trial itself that defy logic -- except the logic advanced by Mr. McDonald, which was that he was being set up for this conviction by two unscrupulous police officers so that they could become Skagit county's first officers to obtain a three-strike conviction.
The state claimed at trial that Mr. McDonald had been driven to a gas station by an undercover informant, unknown at the time, named Barry Leo Campbell, and that he purchased gasoline and returned to his hotel room and poured it on his neighbor's door mat.
But both on-duty gas station attendants, Lester McFarland and Richard Thuran, were asked to view photographs several months after the incident and neither identified Mr. McDonald or informant Campbell.
The cab driver, Mr. Campbell, along with another cab driver who was claimed to be in the car at the time, Gerold Hackley, both initially described the man who they drove to get gasoline as "in his early 20s with blond hair to his collar, scruffily dressed with facial hair." Overlooked by everyone is that the correct description of Mr. McDonald was that he was "42 years old, with a military flat top haircut, neatly dressed, with no facial hair. (5)
Campbell and Hackley were not shown photographs of Mr. McDonald for 6 and 7 months after the incident, a delay which could have been anticipated to cause misidentification. They viewed the photomontage on two different days. Each picked out a person who matched their verbal description of a scruffily dressed person with blond hair to his collar. Although Mr. Campbell said that he recognized Mr. McDonald from being in the jail, he did not identify his photograph as the suspect. (6)
One of the more glaring "nuisances" ignored by the police under the two Constitutional rights principle enunciated in the State of Washington's "Whitebread Doctrine of Law" was that, according to both gas station attendants, the person who arrived by cab and purchased the gasoline had "cut and bleeding knuckles." (7) When Mr. McDonald was arrested one hour after the incident, according to officer Lindberg who swabbed his hands with cotton looking or traces of petroleum hydrocarbons, "you had no injuries on your hands." (8) The samples taken from Mr. McDonald's hands returned negative for the presence of petroleum hydrocarbons. (9)
Other state witness credibility concerns centered on the fact that informant Campbell admitted to shooting up heroin in his cab the evening that he claimed that he picked up Mr. McDonald and that later that morning he had broken into a home and stolen three SKS rifles, which the state chose to charge as only misdemeanor offenses instead of the mandatory five year charges. Informant Campbell also admitted to being arrested by officer Chad Clark close to the time Mr. McDonald was going to trial as well, and booking him into the Skagit County Jail for an outstanding warrant. Now his arrest and his booking and the outstanding warrant have all disappeared from the jail's computer.
Officer Clark was interviewed about this and stated that he felt that the Skagit county Task Force had removed this information to sanitize informant Campbell's image as a confidential informant. (10) The Whitebread Doctrine prohibited the release of this information as it would have shown what the state had really done to arrange Mr. McDonald's conviction. The trial court prohibited Mr. McDonald from inquiring into these facts or into any incentives that Mr. Campbell received for taking an oath and going before the jury. (11)
Numerous other inconsistencies existed, all tending to exculpate Mr. McDonald, and all kept from the jury by the trial court. Some of these consisted of the following.
In response to Mr. McDonald's 911 call, the first to arrive on the scene were Arson Investigator Mark Malone and Fire Chief Dennis Hofstead. They interviewed Mr. McDonald about the fire and asked for his permission to enter his room and search for collateral fires, which he immediately provided.
Several minutes later, Officer Pete Lindberg arrived on the scene. Officer Lindberg then took identification from Mr. McDonald and called it in for a background check, learning that he had two prior felonies, which started the ball rolling. He next returned to the room. Although, as he admitted at trial, Officer Lindberg had no arson investigation experience in his 13-year history of being a police officer, he asked that Malone and Hofstead stop their investigations and sent them out of the room. At trial, Officer Lindberg explained that the reason for this was that "It was a crime scene and I did not want them to contaminate it." But Malone and Hofstead, as they testified at trial, are "first responders trained not to contaminate or destroy a crime scene, but to search and investigate it thoroughly." (12)
Officer Lindberg next told Mr. McDonald to turn around and "cuff up because you are being arrested for first degree arson." He informed Mr. McDonald that "you and your entire room smell like gasoline."
While both fire experts were still present and now investigating outside Mr. McDonald's room, Lindberg's partner Detective Tobin Ruxton, entered it alone and collected Mr. McDonald's parka and related clothing items and a bucket that Mr. McDonald was filling with water to extinguish the fire. At trial he attested that all these items were impregnated with the odor of gasoline.
(According to the trial testimony of the two on-scene fire investigators), Officer Lindberg did not notify them that he detected the presence of vapors on Mr. McDonald and in his room and Detective Ruxton did not notify them that he detected a gasoline odor on Mr. McDonald's belongings. Fire investigators notified of this critical evidence would have collected samples and properly packaged it. Lindberg admitted at trial that he improperly packaged this evidence and that he waited over two months to send it to the crime laboratory. When questioned about these actions, he simply replied, "I have no explanation." The crime laboratory found no evidence of gasoline on the items. Officer Lindberg claimed that, in that time between the collection of the evidence and its testing the gasoline must have evaporated. These omissions allowed Officer Lindberg to testify to the presence of fumes - leaving no way for Mr. McDonald to refute Lindberg's and Ruxton's trial testimony of only their detection of gasoline vapors. According to their trial testimony and the contents of their official reports of the incident., neither fire investigator detected the presence of gasoline vapors on Mr. McDonald's or in his room. The significance of these omissions and discrepancies eluded the jury's attention.
The prosecution, on the other hand, was trying everything imaginable to prohibit the jury from hearing the truth. They tried to block the introduction of trial exhibit #45, which was a 9 x 12 color photograph of the motel room door that was taken the day after the fire when Mrs. Stevens, the hotel manager, had wiped off the black rubbery soot that had stuck to the surface of the door from the burning rubber door mat. This photograph accurately shows that the surface of the door had never been on fire. The court overruled the prosecutor's request.
Next they attempted to block Mr. McDonald's arson expert's future trial testimony that only superficial damage occurred to the surface of the door; that the heat from the door mat only caused the paint to blister, never igniting the surface to cause sustained burning. Mr. McDonald had secured the services of internationally renowned arson expert John D. DeHaan, Ph.D. The court again overruled the prosecution's request and Dr. DeHaan testified on February 5, 2002.
Mr. McDonald remembers that Dr. DeHaan testified that the surface of the motel room door had not been on fire. In an 8/2/04 affidavit, Dr. DeHaan confirms that he testified at trial about the extent of damage to the door at trial in response to extensive questions. However, that testimony later did not appear in the verbatim reports of that trial. DeHaan writes in the 8/2 affidavit: "As I now review the "Verbatim Report of Proceedings, Vol VI (Skagit County Cause #96-1-00064-6) of February 5, 2002... I can find no mention of the questions I recall being asked during the proceedings."
All trial testimony is required to appear in the Verbatim Reports of Proceedings. It is clear that the most important piece of exculpatory evidence that Mr. McDonald had to support his innocence, his defense expert's trial testimony that the door he was accused of setting on fire never had been on fire, was simply removed from the record. Subsequently, the attorney who Mr. McDonald hired for appeal informed him that this issue could not now be raised on direct appeal, as it did not appear in the trial proceedings. It would have to be presented on collateral review.
Mr. McDonald therefore requested that his attorney, Sheryl Gordon McCloud, obtain color copies of trial exhibit #45, to send to Dr. DeHaan in California so that he could then prepare a legally sufficient affidavit reconstructing his missing trial testimony based specifically on reference points in this exhibit which showed that the wood grains on the surface of the door and veneer were not charred.
Despite these exhibits being public records under RC 36.23.030 and RCW 23.067, the court refused to allow copies of these documents to be made and released to Mr. McDonald. The only alternative was for Dr. DeHaan to fly to Seattle from California to view these public records in court chambers, an option that Mr. McDonald could not afford to pay.
Mr. McDonald tried one more time to obtain color copies of trial exhibit #45 to present on appeal via Habeas Corpus review in United States District Court, Western District of Washington. He sent certified requests to the Skagit County Court Clerk, who also refused to make color copies of this public record or inclusion on appeal and to send to Dr. DeHaan so that he could prepare a legally sufficient affidavit. He pointed out to the court all these obstacles he has had to endure, and that the State Courts had denied him relief because he had not had a proper affidavit because they refused to release color copies of the public records. (13)
Several years after McDonald was convicted, Mrs. Clarke called the prison at Walla Walla and spoke to his counselor and had him relay a message to Mr. McDonald. She told him to tell Mr. McDonald that if he wanted her to change her "story" about what had happened, all he had to do was to "buy her a new van." His classification officer called him to his office, said McDonald, and relayed the message, saying that in his 25 years of being in corrections he had never had a phone call like that. And if Mr. McDonald wanted him to ever give a statement concerning these facts, that he would be more than happy to do so. On retrial, Mr. McDonald reminded Mrs. Clark about what she had said to his counselor several years ago about buying her a new van. She admitted to making these comments on the witness stand. (14)
The above facts constitute an overview of the living nightmare that Mr. McDonald has had to endure. Each claim set forth is fully supported by the records and files of the case. If anyone would like to try and dispute these facts, please write to me with any details.
More on the "Whitebread Doctrine"
The public was hoodwinked by the avarice of the political action committees into enacting Three Strikes legislation based on the "fronting" of 6 or 8 horrific and despicable crimes. But there are over 60 possible strikeable offenses, including out of state offenses that are not strikeable in this state but, because of special criteria defined by the legislature, can be counted as strikes here. Prisons are cash cows in generating millions of dollars in tax revenues and as economic stimulus in revitalizing depressed communities. In order to create this expansion and growth more bodies are required to be produced, and these are simply produced by expanding the dragnet of reasons to keep people imprisoned. This sentencing structure has no deterrent effect on the ratio of crime per capita, and certainly nothing to do with rehabilitation. Yet new prisons are still being built every few years, further supporting the fact it is not a deterrent.
Who else suffers from this sentence besides the defendant? The citizens. It is these individuals who are called upon to make fair and impartial decisions based on all the facts when sitting on a jury. And it is these same citizens who are being taken advantage of when serving on a jury because our legislature has enacted laws that prohibit them from knowing the possible consequence of their decisions. Many of these people who unknowingly comprised a Three Strike jury panel have expressed shock and outrage after learning that their guilty verdicts had resulted in a mandatory life sentence without the possibility of parole for a criminal defendant who stole half a rack of beer, swiped a purse from the trunk of a car, attempted to grab a wallet, or was involved in a self defense fight in jail.
These citizens have gone on record saying that they felt "betrayed" by their elected officials and judicial system for taking advantage of them and allowing them to be used as the fall guys to inflict the mortal wound without knowing all the facts. They have gone on record stating that they were "upset" at learning that their guilty verdict had sent a young man to prison for the rest of his life because of his commission of a trivial offense, and now they had to shoulder the burden of "their guilt" for the rest of their lives. To ameliorate their feelings of shame, they have struck up a relationship with the prisoner, and begun a letter writing campaign to help free him or to reverse this proess.
Deep in the background obscured in the shadows, lurks the true culprit, the Washington State Legislature, whose actions carefully orchestrated these events so that it would appear that this is a public policy decision made by the citizens of the state. And that their findings of guilt at trial add the reqired degree of legitimacy to the Three Strike conviction process. Yet what's strangely ignored is that the defendant's fate has already been predetermined behind the jurors' backs. They are the ones who are imposing the sentence, not the judge. All he does is read it to the defendant.
Many people not familiar with the criminal justice system, its slang terms and how it works, are not aware that the jury box is commonly referred to as the "sucker box." The term "squares" as in someone not in the know, not hip, also is a veiled reference to the dimensions of the box and to who sit in it. The reasons for these terms derive from the fact that the people who make up the jury are usually common everyday folks who never have had a brush with the law or any experience with the workings of the criminal justice system. Both the prosecution and the defense know this and both are eagerly waiting to exploit these weaknesses for their own gain. In the past you have always heard that it was only the defense doing all the deceiving. Now with this wealth of information in your possession, sit down at your computer and see who's not telling the truth. Every statement made in this letter is 100% accurate and verifiable, including all references to examples concerning the Three Strikes sentences mentioned above.
In conclusion, if you think that there is only one Steven Darby McDonald in the state of Washington's prison system, you are mistaken. Many others exist who are too illiterate to know how to file complaints or who have just given up altogether because their pleas for assistance with egregious Constitutional errors which occurred during their Three Strike sentencing process have fallen on deaf ears. Thee consist of their attorneys' failure at sentencing to alert the court that their prior predicate felonies have washed out (i.e. expired for use as enhancement factors); or failed to insist on a comparability analysis with their predicate felonies if they are from out of state convictions (i.e., a determination by the court to ensure the elements of the foreign offenses are identical to their Washington counterpart); or to bring the court's attention to the fact that their foreign felony conviction is not legally or factually comparable to its Washington counterpart. These types of sentencing errors are totally ignored by the courts, as they know these individuals are destitute and that no one will care about their patently illegal sentencing enhancements, which have increased their sentences from 60 months to a mandatory life sentence without the possibility of parole.
These horrific abuses are in conjunction with the admitted erosion of our constitutional rights by the justices of the state behind closed doors in secret ceremonies referred to as "judicial conferences." Back in the 1940s and 1950s, thee types of "instructions" were referred to as sedition. It's just a matter of time until it's your turn for something as trivial as a door mat set on fire and you are struck out. Then you too can sit back and watch your life pass right before your eyes, in horrified silence, knowing that you honestly do not deserve this fate and there's nothing you can do about it.
4/21/08 (c) Steven Darby McDonald.
Steven McDonald alleges serious mishandling of his case. Before considering the piece for publication, I verified to my satisfaction that the public record supported the credibility of the allegations, at least on their face, and I've made an effort to provide the reader with a summary of that material. These documents were provided to me by Mr. McDonald, along with additional supporting materials. I compiled this footnote section not as proof of the allegations, but to demonstrate why it appears to me that they meet a first-step fact check.
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