Fear now given more weight in self-defense claims
The seeds were sown for Gail Gerlach’s manslaughter acquittal in part by a Spokane murder conviction overturned more than 30 years ago.
In August 1972, Yvonne Wanrow shot and killed William Wesler, a known sex offender she believed had attempted to victimize her son and, it was alleged, gave a venereal disease to a 7-year-old girl some months prior. A jury found Wanrow guilty of second-degree murder, a decision that was thrown out five years later by the Washington state Supreme Court.
The ruling was tossed, in part, because of Wanrow’s fear, and the court’s insufficient instruction for jurors to decide if that fear was reasonable.
“All of these facts and circumstances should have been placed before the jury, to the end that they could put themselves in the place of” Wanrow, the Supreme Court ruled in its 6-3 decision striking down the murder conviction.
Wesler startled Wanrow, who was armed with a pistol and on crutches during an altercation in the home where she was staying. She fired a single, fatal shot. The verdict should have been predicated in part upon “our nation’s long and unfortunate history of sex discrimination,” according to the Supreme Court’s majority opinion, and the fact that Wanrow was confronted by a man much larger than she. The jury instructions did not enable these considerations, the court ruled.
It is this perception of fear that has factored in self-defense decisions since, including George Zimmerman’s shooting of Trayvon Martin in Florida, which was mentioned during jury selection in the Gerlach trial.
Jay Olsen’s fear also played a part in his acquittal of an assault charge by a Spokane jury after the off-duty police officer fired at Shonto Pete as he ran away. Olson believed Pete was trying to steal his truck and said he thought he saw a gun in Pete’s hand when he fired. Both men were drunk.
Gerlach, who shot and killed Brendon Kaluza-Graham as the 25-year-old sped away from Gerlach’s Spokane home in Gerlach’s SUV, told jurors repeatedly he feared for his life in the moments before he fired. Gerlach said Kaluza-Graham pointed at him with what he thought was a gun at the time and now believes to have been a key fob.
Gerlach’s defense attorneys David Stevens and Richard Lee built their case on Gerlach’s fear.
“He scared the (expletive) out of me,” Gerlach can be heard saying in the 911 recording of the incident.
“Right at the beginning of the tape, if you listen to it, you can hear he’s traumatized,” Stevens said last week.
But Kaluza-Graham’s family, a week after the not-guilty verdict, say they’re confused and frightened by what the verdict means.
‘(Gerlach) was the white hat, and Brendon was the black hat’
Ann Kaluza, the grandmother who raised Brendon Kaluza-Graham, teaches at an elementary school in Spokane. A few days after the verdict was read and she appeared in tears on television calling her grandson a “sacrificial lamb,” one of Kaluza’s students said she’d seen her teacher on TV. The girl asked why Kaluza was videotaped.
“Her grandson stole a car,” Kaluza said another girl told the student, before she could answer. “That was the first thing that came out of her mouth, not ‘Her grandson was killed.’ ”
Kaluza said the jury’s decision that the homicide was justified because of Gerlach’s fear sends a dangerous message to the community.
“All along, I’d said the verdict in this trial is not going to change my life considerably,” Kaluza said, choking back tears that still fall a week after a jury acquitted Gerlach. “We’ve lost Brendon. But there was an interesting message to the community that the verdict was going to give.”
Aunts and uncles, grandparents and other relatives of Kaluza-Graham filled the benches of Spokane County courtrooms from pretrial motions through the acquittal April 10. They said they saw testimony that changed as time passed and a jury swayed by a single narrative that didn’t jibe with the evidence presented.
“There’s only two people, maybe three, that know the truth, and one of them is gone,” said Bob Graham, Kaluza-Graham’s grandfather.
Gerlach’s attorneys said in opening statements the case would hinge upon the credibility of their client. Judge Annette Plese instructed jurors before their deliberations they were the sole judges of a witness’s believability.
Sharon Gerlach dismissed many of the statements longtime Spokane police Detective Ben Estes wrote in a report of his interviews about three hours after the shooting occurred. She said Estes either did not remember or misquoted her when she allegedly said she’d seen the driver possibly give her and her husband the finger as he drove away from their home.
“A lot of the details were missing,” Kaluza-Graham’s great-aunt, Rose Kelly, said of the trial. “A lot of the people commenting online don’t know any of the facts of the case. They’re just giving an emotional response.”
The narrative that emerged from news coverage and public statements cast the verdict as a license for people to protect their property with gunfire, even though that wasn’t the issue the jury was asked to decide, Ann Kaluza said. As a consequence of that narrative, her grandson – whom she remembers as a smiling, well-dressed young man who loved baseball – became a static character.
“The press, the media, public opinion – (Gerlach) was the white hat, and Brendon was the black hat,” Kaluza said.
Self-defense ‘from the get-go’
Defense attorney Stevens said the prosecution lost sight of what the 911 tape relayed to the jury: that fear gripped Gail Gerlach in the moments before and directly after the shooting.
“Right from the get-go, when you listen to that tape, there’s a self-defense case,” Stevens said.
With the burden of proving Gerlach’s perception of a threat incorrect, prosecutor Deric Martin laid out a version of events that the defense team then picked apart.
One by one, the defense team called into question statements of fact laid out by the prosecution, including where Gerlach was standing, how far the SUV was away when he fired and what concerned him more in the moments following the shooting.
“We stipulated to almost all of the evidence,” Stevens said, meaning the defense did not object to evidence being presented but asked jurors to draw specific conclusions from that evidence.
That included testimony from neighbor Joseph Bercier, who supported the defense case that Gerlach and his wife were frightened with his testimony that he saw Kaluza-Graham’s arms raised and a green item, perhaps a bucket, flying from the SUV prior to the shooting.
Other witnesses said there was no green bucket found on Lee Street, and the prosecutor pointed to inaccurate statements Bercier made directly after the shooting.
Stevens said Bercier’s testimony and the 911 tape were key elements of the defense case.
New verdict, old case law
The decision not to convict Gerlach was not one that shattered courtroom norms.
“No new case law was created by this case,” defense attorney Stevens said.
Instead, it reflects the shifting attitudes toward self-defense that were written into how juries weigh evidence. That process started almost 40 years ago with the Wanrow decision and others made around the same time.
“Washington state used to be a very objective state when it came to weighing evidence in self-defense cases,” said longtime Spokane attorney Paul Wasson, who has represented criminal defendants in trial and appellate courtrooms. “Now, they’re asked to look through the eyes of the person being attacked.”
After her conviction was overturned, Wanrow later pleaded guilty to manslaughter in Wesler’s death and served a total of seven years in prison.
The family of Kaluza-Graham has said they are pondering civil action in the case, and Gerlach has said nothing about the trial other than the brief public statement he gave after the verdict was read.
Pete, who was shot by off-duty officer Olsen, had his civil case against the city thrown out in federal court after a judge ruled Olsen was acting as a private citizen, not a police officer, when he fired. The Trayvon Martin family received a settlement of $1 million from the subdivision where George Zimmermann fired.
In spite of what she called a disappointing and frightening verdict, Ann Kaluza said she had no regrets that the case was taken to trial.
“If it had never gotten charged, I would have felt much worse,” she said.
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