Chapter 7

• Jurisdiction: United States

Chapter 7 Death Penalty

"Teach Him a Lesson"

On March 30, 1978, the trial of thirty-five-year-old Howard William Flowers, who was charged with first-degree murder for the killing of Joseph Gunther, commenced in Judge Carolyn Dimmick's courtroom in the King County Courthouse. I told the jury in my opening statement that Flowers knocked Gunther, a transient, to the ground, tied him to a fence, kicked him in the head, poured wine on him, piled newspapers around his body, ignited them, and then walked away to "teach him a lesson."

For this crime Flowers could receive the death penalty. If Flowers were convicted of first-degree premeditated murder, the jury would then hear further testimony and arguments about whether the defendant should be sentenced to death, life in prison without parole, or life with the possibility of parole.

I told the jury that both Gunther and Flowers had been staying as transients at the Kay Manufacturing Corporation plant in downtown Seattle. Gunther had been living on a bed of cardboard under an abutment. Flowers, Gunther, and a third man, George Goodrie, had been drinking together before Gunther was killed.

Flowers and Goodrie decided to leave, and they left behind a bottle of whiskey. When they returned a few hours later, Flowers gave Gunther a sandwich and then began to gather belongings for a trip to Tacoma. Flowers saw that the whiskey bottle was empty and accused Gunther of drinking it, which Gunther denied. Flowers took back the sandwich, then swiped at Gunther's leg with a knife, telling him he was going to teach him a lesson. He hit the victim, then kicked him, and poured wine on Gunther's head and clothing.

Goodrie began to walk away, but when he looked back, Flowers was tying a rope around Gunther's neck. Gunther pleaded with Flowers to stop, but Flowers insisted he was going to teach Gunther a lesson. He placed papers around the victim and lit them. Flowers and Goodrie walked away.

An employee at the manufacturing company smelled smoke and pulled Gunther, who was still alive, from the burning debris. Gunther was taken to the hospital.

An arson inspector asked Gunther if he had set himself on fire. Gunther replied, "No, they beat me—they did it." He died less than an hour later in a hospital with burns on 90 percent of his body and head injuries.

The employee at the plant had seen Flowers and Goodrie in the area where he found Gunther, and he went with the police in search of them. They located Flowers and Goodrie. Goodrie originally was charged as a codefendant with Flowers, but Goodrie turned state's evidence and was to testify at the trial.

When Flowers was arrested, he gave a false name. He first denied being in the area of the murder or knowing anything about it. Later, he gave a statement saying that he had hit and kicked Gunther, but he denied setting him afire.

Wesley Holbein, the lawyer for the defendant, reserved his opening statement until the start of the defense case.

Psychiatric Examination

On April 6, 1978, following a day of trial testimony, Flowers began shouting obscenities at his lawyer Wes Holbein. Holbein said that he was concerned that the jury in the jury room could have heard the defendant's outburst. Flowers went on to tell the court that his lawyer had not been to see him in jail often enough and that his lawyer had not listened to his ideas about how to conduct his defense.

Holbein raised a question about whether Flowers could rationally assist him. Holbein said, "I'm running this case. You don't question a dentist about what kind of filling should be placed in your mouth." I pointed out to the court that there was no indication that Flowers suffered from a mental disease and that the trial should not be stopped just because the defendant didn't like the way things were going.

Judge Dimmick said that she did not have any choice but to commit Flowers for a psychiatric examination. The trial was stopped.

Sequestration and Slow Moving

In July, after Flowers had received psychiatric treatment and counseling, Superior Court Judge Horton Smith ruled that Flowers was competent, could stand trial, and a new trial date was scheduled.

The trial did not start again until October 16. This time the trial would take place in the courtroom of Judge Warren Chan. The jury was sequestered in a hotel because it was a death penalty case and there was a concern about potential jury contamination with publicity about the case. The trial would drag on and on, and, at that time it would be described as "The longest criminal trial in state history and the longest in which a jury had been sequestered."

The Honorable Robert Dixon, a King County Superior Court judge, a former renowned King County deputy prosecutor, and a person I highly respected, cornered me one day in the courthouse when no one else was around. He was probably concerned that I was the cause of the trial dragging on so long. He told me that it would be advantageous to the prosecutor if a case moved swiftly along. I could only tell him that I was trying, but that it was an unusual situation.

I told Judge Dixon that it appeared to me that Judge Chan was as skittish as a lawyer about to begin his or her first jury trial. Chan was acting out of an abundance of caution to protect the record because appellate courts scrutinize death penalty cases very closely. Consequently, as I explained to Judge Dixon, if I made an objection that under normal circumstances would be sustained and result in things moving along, that objection in Chan's court would only result in lengthy arguments, Chan overruling the objection, and a prolongation of the trial. Therefore, I sometimes did not make an objection that I would ordinarily have made, but even that did not save much time.

During the state's case-in-chief, which is the stage in a trial where the prosecutor presents evidence, Darryl Graves, my second chair (later a criminal defense attorney in Tacoma, Washington), and I presented the evidence that I had described in my opening statement. That evidence included the medical examiner's testimony as to the cause of death, Flowers' admission that he kicked Gunther, and the victim's dying declaration.

We had one piece of physical evidence tying the Flowers to the murder victim. It was a piece of yarn that was melted onto the rope found on Gunther's body. The yarn matched yarn found in the defendant's belongings. On December 18, 1975, I called a criminalist with the Washington State crime laboratory. She testified about the burning properties of materials found at the scene of the crime. The expert also testified that the yarn was melted onto the rope and that the yarn would not burn.

On cross-examination, Wesley Holbein suggested a demonstration. With the court's permission, a piece of yarn was cut from the ball of yarn that had been in the defendant's possession. Holbein held up the yarn in front of the jury, took out a lighter, put it under the yarn, and the yarn immediately burst into flames rather than melting. Having completed his cross-examination, the court asked if I had any redirect examination of the witness. I looked at the clock and noted for the court that it was approaching the noon hour, and I asked if we could pick up redirect after the lunch break.

During the lunch break, I asked the criminalist how this happened. She explained that when she had held the yarn over a Bunsen burner in the laboratory, she held the strand of yarn horizontally whereas defense counsel had held it vertically over his cigarette lighter. When we returned to court and I elicited testimony from the expert concerning the difference, and she told the jury what she had told me over the lunch hour.

Being unable to resist the temptation to one-up defense counsel, I then asked the court for permission to do a demonstration, and the court granted the request. I dangled the yarn vertically over the lighter...