Monday, November 30, 2009

Legal Update

I am feeling practical today. The last few days have been very emotional, so this is a welcome break. Given my collected state of mind, it seems like a good time to update everyone on the status of the court case. I’m sure after my entry on how I felt seeing David Cook for the first time, you all wondered about what that court event was and what is happening next, but at the time I wrote that entry I wasn’t up to explaining it all.

One of the things I am realizing in talking with some of you lately is that there are some misperceptions in your information, which is likely my fault. I have told so many people so many things that I don’t know who I have told anything to. So in the interests of a clean slate, I will try to start from the beginning and not assume you all know what has gone on. But first, a note to the lawyers and lawyers-to-be in the family: I am sure I will not get terminology correct as I write about this. I am going to do my best to explain things I don’t fully understand myself, and to do it in plain English, which is NOT how it is explained to me, so if I’m not perfectly technically correct, bear with me.

By way of context, it may help to understand how things usually work, and how this case is different. In most felony cases in this state, a defendant is not charged until two things happen. First, the police investigate the incident, and if they believe a crime has been committed, they send the results of the investigation to the DA. Next, the DA takes the case to a grand jury. If the grand jury agrees the defendant should be tried for a crime, they return an indictment for a specific charge. An arrest warrant is issued, and the defendant is arrested and appears in court for an arraignment. During this arraignment the defendant is charged with the crime, enters a plea, and bail is set.

In this case, things happened out of order. David Cook was arrested the day after the accident and charged with manslaughter, before the police investigation was done or a grand jury was convened. The decision to do this was made because the police were very confident that he had committed a crime, and because they felt he was a flight risk. By charging him, they ensured he could not leave town without forfeiting his bail. He appeared before a judge two days after the accident, and pled not guilty. Bail was set at $50,000, and he made bail with the help of a bondsman. He spent just a few hours in jail before being released, and has been out of jail ever since.

For the next several months, the police investigation was conducted, and in August, the results were sent to the county DA. The DA took the case to the grand jury in October, and the grand jury agreed that he should face trial, and returned an indictment of manslaughter. If they had not done so, all charges would have been dropped. This is a second degree felony, and I am told it carries a sentence of 2 to 20 years.

Once he was indicted, an arraignment was scheduled. Keep in mind that normally this is when he is formally charged, enters a plea, and bail is set, but in this case, all that had happened months earlier. That means that in this case, the only real surprise would have been if he appeared at the arraignment and changed his plea. Barring that, the arraignment was little more than a formality.

The arraignment was the event at which I saw him. I am learning that Law & Order bears little resemblance to reality - the arraignment was nothing like TV, so I will try to give you a picture of what happened. The courtroom setting did look quite a bit like TV. You enter through double doors at the back of the room. There is a center aisle with four long rows of benches on both sides, and a swinging wooden gate that you pass through to enter the lawyer’s areas. There are tables for the prosecution and defense in this area, one on either side of the aisle (prosecution on the left, defense on the right – opposite how it is always shown on TV). The judge sits in the front right corner of the room, and the court clerk sits at the front center of the room. The jury box is in the front left corner, and prisoners are brought in through a door near the judge’s bench. There was no judge at all for the time I was there. David Cook’s arraignment was scheduled for 8 a.m. that day – and so were the arraignments of thirty other people. Another thirty were scheduled at 8:30. That should give you some idea of how much actual time goes into any one case.

There were three District Attorneys seated at the prosecution table. In the area immediately behind them were rolling carts full of files. There were dozens of people in the spectator area, mainly defendants out on bail, including David Cook. At the appointed time, all the defendants’ attorneys formed a single file line that started at the front of the table with the three DAs, and coiled through the front center of the area back toward the judge’s bench. The DAs have their backs to the spectators, but the defense attorneys face the spectators. As they reached the head of the line, they spoke to whatever DA was available, and told the DA what defendant they represent. The DA retrieved the case file from the rolling bins, and there was a quick and very quiet conference between the defense and the DA. The defense attorney did not necessarily speak with the actual DA assigned to the case – in this case, he talked to another DA. Spectators cannot generally hear what is said, partly because the attorneys talk quietly, and partly because there are so many conversations going on simultaneously – conversations between the attorneys, conversations in the spectator area among all the people waiting, conversations between the court clerks at the very front of the room. Also, doors are opening and closing, people are walking in and out, etc. At any rate, the two lawyers confer, and provided that they agree on next steps, both sign a piece of paper indicating when the next court date will be. The defense attorney takes the paper to the front of the room and registers it with the court clerk, then walks into the spectator area and updates the client on what happened. The only time the judge gets involved at this stage is if the DA and the defense counsel cannot reach resolution on the current issues in the case.

In this case, there was no change to the plea, so the hearing was a non-event. The only way I even knew the players was that the victims’ assistance counselor had described the DA to me, so I knew who he was. I have seen David Cook’s mugshot, and I know his attorney’s name and saw his picture on his website. I had actually printed pictures of David Cook and his attorney in case I needed them, but I didn’t – I knew them both instantly. I could not hear much, but I could tell that the only event of any significance was that the DA did not have the case file at all (doesn’t give you a lot of confidence in the system does it?). The defense attorney explained the case situation and waited while they searched for the file. I could tell from watching the DA’s body language they didn’t have it. I heard the defense attorney ask if the DA knew if there was a particular item in the file (I couldn’t hear what), and the DA said he didn’t know, but that the defense counsel should leave a blank DVD and if it was in the file they would give him a copy. Then they compared calendars and agreed on the next court date. I couldn’t hear what they said, but I found out later in the day it is set for January 19. Then the defense attorney went and spoke with David Cook and a man I’m sure is his father, and they all left. None of them, including the DA, ever knew I was there. And why would they? I’m just the invisible spectator who loves the invisible victim.

This is exactly what the DA’s office had told me to expect – a quiet conversation, and another court date in 60 days. What I have now learned is that these hearings are almost always a quiet conversation in a crowded courtroom with no judge participation. Unlike Law & Order, where each hearing has a purpose that has significant impact on the case, in real life the purpose of these sessions is very different. In layman’s terms, they are essentially the system’s way of forcing two sets of busy attorneys to talk to each other. By establishing a series of these sessions, both sides are forced to talk about the case at regular intervals. They should be talking to each other between sessions also, but at a minimum they are conferring during the sessions. While in court, they update each other on their readiness for trial, discuss any requests for evidence sharing, address any procedural issues, and in general talk about whatever needs to be discussed to move the case toward trial. Generally, there is not a need for the judge unless they cannot reach agreement, in which case they will request a conference with the judge.

I am told that in less serious cases, there are generally three of these sessions. The first is the arraignment. The next is scheduled for 60 days later, and in that second session, a third is scheduled for 30 days later. In that third session, a trial date is usually set for some future date. In a case this serious however, there are generally at least two additional sessions, 30 days apart. Assuming that estimated timeline holds, that would indicate that after the January session, there would be another in February, in March and in April, and then the trial would be scheduled.

I am told that at some point there may be a discussion of a plea bargain. I have been assured that before holding any plea discussions the DA’s office will contact me so that we can weigh in on the matter. I asked if that might happen before the Jan. 19 court date, and was told it is highly unlikely anything would happen before then, I think because the defense has not yet had the opportunity to see the evidence, so they cannot yet judge whether or not they should try to plea. Important note: Because this is a public forum, I am intentionally not sharing any specific information about the evidence. If I have already told you something about the evidence, please do not reference it if you post a reply to the blog. If you have questions about the evidence, email or call me and I will answer privately.

The hardest thing about all this is that I had this mental TV picture of going to these hearings and being able to follow along as one prosecutor, one defense attorney, and one defendant appear before a judge, and talk out loud for all to hear. And on TV, when the hearing ends, the DA turns to the victim’s family, and comments on what happened, or reassures them he will get the guy, or SOMETHING. Because it doesn’t happen that way, David Cook knows right away what happened, and I don’t, which is terribly frustrating. I have to leave the courtroom, call the victim’s assistance counselor, and have her chase down what happened. That can take a while because the DA is still back in court, and the court clerk records don’t get updated instantly. Even then, all I know is that the next date has been set – I don’t know what HAPPENED in there. I don’t know what the defense asked for, what the prosecutor told them, or anything else. So I have developed an alternative strategy – a little unorthodox perhaps, but not illegal. I will not reveal it here (again due to the public forum), but suffice it to say that I am determined to find a way to get more information than the system wants to give me, and I will keep trying new approaches to get what I want. If they won’t provide it easily, I will just get creative. I’ll keep you posted.

Wednesday, November 25, 2009

Gratitude

It’s the day before the next hard day, and on this Thanksgiving Eve, I am feeling a strange mixture of sadness and gratitude.

Fall has been tough to watch. Watching the leaves fall outside my window has made me realize that Kirk has already missed one full season. Spring was half happy, because I still had him, and half so mind-numbingly horrible that I never noticed when it became summer. But now I am more aware of the world around me, and seeing fall arrive makes me realize he has missed his first full phase of nature – a summer he never saw, never fished, never complained about bad off-season TV. Thinking about him missing fall is worse. It was his favorite season – the season of beauty, comfortable temperatures, football, and hunting. There are men in camo everywhere, and they make me want to cry – especially the big ones. He was like a little kid at this time of the year – getting all his gear out, taking inventory of what he needed (i.e., what he had lost from last year!), then being cheap with himself and not wanting to buy anything. Researching and planning where to hunt, where to sit. Walking the woods before opening day of each season (turkey, deer with a bow, gun season) to get the lay of the land, look for animal sign, find a good tree for his tree stand. And then shortly before opening day, the time would arrive when I came home from work to find him sitting on the living room floor, dressed in camo from head to toe, not moving. I would say hello and he would act surprised that I had seen him – because he was “invisible” in his camo. The same joke for nearly 30 years – the kids and I all know that Dad’s invisible when he has his camo on.

In my opinion, of all the hunting paraphernalia the head gear was the worst. Depending on the weather and what he was hunting for, he would choose from a variety of options. For bird hunting on warmer days, there was the camo hat that had a narrow brim around the bottom and a chin string. Sounds innocuous I know, but it was the stupidest looking hat you ever saw – and it made his face look huge and triangular. He never believed (or maybe cared) that it looked ridiculous. And how about the camo face net? Used for turkey hunting, it stretched over his entire face except for his eyes, and looked just plain freaky. Then there was the blaze orange Elmer Fudd hat – you know, the kind with the ear flaps? Used for deer hunting on a cold day. And the head gear I hated most of all – the gruesome leather face mask, for super cold days. It was heavy leather, with an elastic strap that ran around the back of his head, and small holes cut in it for eyes, nose and mouth. I am positive it was straight from the set of a horror movie.

His very favorite day of the year was Thanksgiving (followed closely by Groundhog’s Day). In Kirk world, Thanksgiving is the best life has to offer. Family. Incredible food, which he prepared and served with pride and love. Hunting. Football, with a guaranteed Cowboys game on the docket. No work. All the things he valued the most in his life, ALL IN THE SAME DAY. He loved it.

This first Thanksgiving without him, after much deliberation, we have decided to not ignore how Thanksgiving would have been if Kirk were still here. We are not creating all new traditions. Instead, we are passing the mantle. Erika has decided that she will be the food preparer, and that Kirk’s mom will be her teacher. They both arrived yesterday, and have been plotting and planning for weeks. Matt and his girlfriend Jodie are here also, and Erika’s new boyfriend will arrive Thanksgiving morning. The menu will be just like Kirk would have made it, except we are adding green bean casserole as a nod to Jodie’s traditions.

I have been sad as this day approaches, and know I will be sad once I am in it. More than anything though, I actually feel thankful. This has taken me by surprise – I would have expected to feel decidedly UNthankful this year of all years. Instead, I find myself hyper-aware of what I have to feel grateful for. The list is long, but here goes:

Matt and Erika: I could not have asked for better children to have during the most awful time of my life. Despite their own grief, they have from the very first shocking minute been more concerned for me than they are for themselves, and focus more on my needs than their own. I’m not sure this is good for them in the long run, but they are unwilling to even consider the possibility that sometimes I should take care of them rather than the other way around. The list of ways they have helped me is endless. Matt spoke from his heart and gave the best eulogy anyone could have given at the funeral. He picked the burial spot where both Kirk and I will eventually lie, and helped me figure out the words that will mark the stone and tell people for centuries who we were to each other. He (along with Kirk’s Dad and his wife, Sandy) care for Kirk’s grave when I cannot. He worries about me, like when he wanted me to choose a new car that would have OnStar in case anything happens and I am alone and need help. Most importantly of all, he can see things from a perspective that I cannot, and at times explains that viewpoint to me in a way that completely shifts how I feel, and makes me feel a thousand times better, or helps me resolve something I desperately need to resolve. He is not someone who shares his deepest thoughts often, but when he gives them to me, I am astonished at the wisdom and insight that someone so young carries inside.

Erika was incredible in that first week also. She was the one who went with me the first time I saw him after the accident. When we walked in the room, he was there, in the casket, across what seemed like the longest room I had ever been in. It was a shock, seeing him lying there – I had wanted so very badly to see him, but when the moment arrived, I couldn’t breathe, or move. The walk across that room toward him was the longest walk of my life, but she hung on to me and helped me one slow horrible step at a time. She was the one who figured out why he didn't look like Kirk, and what could be done about it, and got the funeral director to fix it so he seemd more like the Kirk we needed to see. Over the next few days, she kept me focused when my mind was so numb and shocked I literally couldn’t make even the smallest decision on my own. Since returning from the funeral, she calls me every single day without fail. She worries about me if she doesn’t reach me, and I don’t call back quickly. She makes me laugh, she plans the vacations we will take, she distracts me when I need it, she talks through things with me when I need that instead. She is my daily caretaker, my cheerleader, the voice on the phone I look forward to at the end of each day. I love these two children more than life, and am so grateful they are mine.

My Family: I don’t even know where to begin. You all have helped me more than you can possibly know. You visit me, you call me, you support me, you write me, you worry about what I eat, you read this blog religiously. You anticipate the challenges for me I do not even see yet (like the Christmas gift buying list, which used to be organized by couples, and you changed to individuals so I do not stand alone and spouseless on the list). Each of you has a specific talent that is unique to you, and that fits just right into one of my needs. My Dad sends me emails of thanks and love that make me feel watched over and cared about. My Mom seems to understand my feelings and emotions in a way that I would not have expected from someone who has not experienced this, and also did me a big favor (which I will not mention in detail but she knows what it is) that removed a lot of stress in the first few months. Dorothy sends me notes of support and caring that always lift me up and make me happy when they arrive in the mail. Of my sisters, Amanda is the “doer” – she and her husband drove all the way here recently, and by the time they left they had taken care of all the things I needed help with and didn’t want to ask the neighbors for (I must have used the phrase “we will need a ladder for this” a dozen times, and found that we never did thanks to Clifford’s long arms and legs!). She also texts me for no reason other than to say she loves me, or even “Good Night, Lis.” Lauren is the philosopher, and like Matt, she helps me see things in a new light because of her view on life and the world. She also NEVER asks how I am doing – instead she uses the phrase “I’m just calling to check in.” SO much better than the unanswerable “how are you doing” question. Susan gave us the gifts of two new Kirk stories at the funeral – the story of how he bought my wedding rings, and the story of how he used to read to the kids when they were little. She gave us wonderful memories and laughter that day, and I will never ever forget it. She also was the person who was due to visit when I suddenly discovered I needed to not have a visit for a while, and was completely unfazed when I asked her not to come. I don’t think I know anyone else who could have so completely understood and accepted my request, and made me feel so completely okay telling her. And Jennifer, who arrived faster than seemed humanly possibly after the accident, and more than perhaps anyone else got me through the most terrible days of my life. She was my secretary, my planner, my interpreter and go-between, my shoulder, my therapist, my fiercest protector, my constant companion for almost the first full month. She has an instinct about what I need and how to respond – or not respond – that never fails. I don’t know if this is because she is the sister most like me (and within our family, our husbands are most alike), or perhaps because of the bond we developed when she was very ill a few years ago and I stayed with and helped her. Regardless of the reason, I am incredibly grateful for everything she has done, and continues to do, for me. And finally, the nieces, nephews, aunts, uncles, etc., who have each helped me in their own way.

Kirk’s Family: From you, I appreciate not just your love and support, but the complete lack of drama. I have met so many people who during their deepest grieving, have had in-law issues over money, or how they expressed their grief, or disagreements over decisions, but you have all been okay with the things I say, do or feel, even though I am sure at times it must not be what you would have expected. You never ever have expected me to be or feel anything other than what I am. You do not judge me harshly if I am sometimes not as distraught as you might expect. You trust me to handle the legal and insurance situations on behalf of all of us. You call me, write me, visit me, send me birthday cards and gifts, keep tabs on me. You still consider me yours, and I am grateful for it, because I still consider you mine.

Our Friends: The list of friends who have helped and made a difference is endless. Friends from every walk of our lives – childhood, Perkins, Sysco, Palmer, E-Z-GO, Valeo, Hansford, Hamlin, Brockport – the list goes on and on. Friends who drove and flew across many states to be with us for the funeral, and friends that still live back home – you made the programs, you organized and served food at the “wake,” you spoke at his funeral, you carried him to his grave. You gave us the best gift of all when you told us story after story about him that we never knew. You email, send cards and gifts, and call me still. And no mention of gratitude I feel for our friends is complete without specific mention of Nancy R. Bonk. Our husbands were best friends for years, so Nancy has been my friend for virtually my entire adulthood. But in the past seven months, our friendship has gone to a place it had never been before. She gets what I am feeling and thinking in a way that almost no one else does, and instinctively knows how to respond. Kirk really loved Nancy, and I know he would be pleased to see what has happened between her and me. The change and growth in our relationship is something I genuinely treasure, and it ranks high on my list of “thank yous” this season.

Our Neighbors and My Co-Workers Here: They have been unbelievable also. They were there when I learned I had lost him, and they have been there ever since. Because of them, magic happens – soup appears, light bulbs and air filters get changed, mail and newspapers are brought to my door, garbage cans are returned to their rightful place, my garage door gets closed if I accidentally leave it open, the dogs get rounded up and brought home when the landscaper forgets to close the fence, my boat gets towed where it needs to go, sprinkler settings are changed with the seasons, my house is cared for when I am away, the closet door that needed planing now opens properly, the septic system always has chlorine in it. They still invite me to “couples” dinners, they find grief resources for me. They pulled me into their fold when I needed it most, and seem to plan to keep me.

The Strangers Who Read this Blog: You are the biggest surprise of all, and one of the most welcome. I am astonished when I hear from one of you who has been quietly reading without my knowledge (thank you and welcome to Katie, the latest stranger to send me a note). You too help me more than you realize. I am not sure why, but I feel so comforted to hear that you are there. No matter how much I write I am only telling you the tiniest bits of who Kirk was, but I still love that you listen.


What I am most thankful for from everyone on this long list is that you help me keep him alive. For a long time my greatest fear was that he would be forgotten, but thanks to all of you, I am slowly realizing that I am not the only one who will not let that happen. I am incredibly lucky to be blessed with people who love and care for me, Kirk, and our children so very much.

And on this day before Thanksgiving, I am grateful for Kirk. I hesitate to type these next words, because they feel so wrong in a way, but here it is - I am the luckiest person on earth. He wouldn’t have been the right husband for everyone, but he was absolutely the best husband for me. One of the things I think about a lot now is how fortunate my kids are to have been witness to our marriage. Until this happened, I had a general idea of what they thought of us as a couple. But now I know more from them what their memories of us are, and I have a whole new appreciation for the value they will get from having watched us. They did not see a fairy tale – they saw something real, and imperfect, yet still strong and committed. They saw two people who didn’t always agree, and at times got angry, but who always managed to get through it. Two people who genuinely liked, delighted in, and cared for each other. Two people who remained publicly affectionate and didn’t fall into the trap of living side by side rather than together. Two people who never, ever painted each other with the “wife as ball and chain” or “husband as lazy and in need of nagging” stereotypes. We were two people who loved each other openly and completely, for everyone to see, and hopefully for our children to emulate someday.

I have not mentioned this to most of you yet, but I am having some changes made to the stone on our graves. The front will be unchanged. But if you go there, walk around to the back. Soon there will be new words. Words I struggled to get right – right for the past, and right for the future. Words that will say who we were to each other - words that will be timeless. Here they are:

Their love, deep and true,
Was strengthened by life,
And is undiminished by death.

Happy Thanksgiving, my love.

Tuesday, November 17, 2009

Loss of Feeling

I saw him today. The person who killed Kirk – I saw him for the first time. There was an arraignment, and I went, and he was there. Cleaned up now – no more mullet, decent pants and sport coat. But the face was unmistakable – still young, still pudgy, still blank. I was very nervous ahead of time about seeing him. I thought I would be overwhelmed. With anger, or sadness, or both. That maybe I would want to hit him. Or confront him, to make sure he knows how he has hurt us. Or to look in his eyes and ask why – what is the TRUTH of that day?

But incredibly, I felt nothing at all. Just empty, and lonely, and a little sick to my stomach. But no emotion toward him whatsoever. I couldn’t believe it – I was (and still am) shocked at myself.

What is wrong with me? How could I see the person who killed – KILLED – the person I loved so much, lived with every day, was supposed to grow old with, and feel no feelings? I have let Kirk down again. I know what you are all thinking reading this. You are protesting, composing the email you will send me or message you will leave me – “don’t feel that way,” or “you haven’t failed him.” I think I have though. It has to be a failure to be unable to muster up any emotion toward a person I should feel so much about. If someone had killed me, I know Kirk would be so angry for me, for him, for the kids, for everyone else. But I had nothing. I haven’t felt anger at this person for so long, but I thought seeing him would trigger it. I don’t understand myself.

As I sat in the car afterward, I tried to sort out my feelings – or lack thereof. At first, my analytical nature kicked in – feebly - as I tried to figure it out. Maybe I am numb. Or still in denial. Or unable to connect this harmless looking person with the awful thing that he did. But I gave up – I have no energy anymore for analysis. I just know I didn’t feel anything. Except for when I was in the hall afterward and had to choose whether to walk within two feet of him, or hang back. I started toward him, but turned back after a few steps. I couldn’t do it – come so close to him. It was like there was a field surrounding him I couldn’t bring myself to enter. I don’t know what I thought would happen – that I would shove him? Give away my presence, let on who I was? Start to cry? All I know is that there was no way I was getting so close to the person who sent Kirk so far away.

When I left the courthouse, I drove for a while, not going anywhere in particular. I ended up sitting in parking lot thinking some more. As I sat there, I realized that nearly two years ago I sat in the same parking lot. It was the day before I interviewed for my job here, and I had arrived a day early so I could look at the area. I pulled into the parking lot to look at a map, and while I was looking, Kirk called me. I remember the call – he got online and was looking at the area also, and we talked about where I should go to look around. Our goal was to try to see what the neighborhoods in the area were like. We were hoping to find an area near the water, so we would have easy access with the boat. Kirk realized that I was just a couple of miles from a lake, and got excited because it looked like there was a neighborhood with easy water access, so he asked me to go there. I did, and we talked the whole way, only to find that the “neighborhood” he saw on the map was part run down trailer park and part crazy religious compound. We laughed and talked about which one we would fit better in, and decided the trailer park was the place for us. It made me sad and happy today to sit in the spot where we had a happy, normal conversation, about the promise of a new phase of our lives.

I apologize for disappearing on all of you for so long. I know it has worried you. It’s not just the blog I have been neglecting – it’s the estate attorneys, the financial planners, the tombstone company, the insurance companies. I owe them all answers, and I have ignored them all. I have been busy, but that wasn’t really why. I think it is mostly that I have been so empty. Sad at times, but mostly just empty, almost devoid of feeling, and not thinking much either – I just haven’t been able to summon up the energy for it. No feeling and thinking means nothing to say, no need to write. Today seems to have caused a crack in that though. Soon after I left the courthouse I discovered I seem to be “feeling” a little again. Weird to say, but I hope if feeling is coming back that it’s sadness. I’m not ready to be done with the sadness yet.

As I start writing again, here is what I most want to say. I LOVE KIRK. When I don’t write, there is no one to say it to, and now that I am writing again it feels like it’s all that wants to come out of my fingers. I LOVE KIRK I LOVE KIRK I LOVE KIRK. You are the only audience that makes me feel like I can say it as much as I want, so I hope you’re still out there.

Enough for tonight – I will be back soon.