Monday, September 21, 2009

Nathan Ybanez Hearing - Thursday, February 26, 2009

The mood in the courtroom this morning seems lighter somehow as proceedings are about to get underway. A comment is made by the prosecution about “ready to be done with this”, and there is an air of not excitement, but…I don’t know. Just different somehow. Nathan is already present, but he looks the same. Pensive, subdued. Chad Williams goes over and pats him on the shoulder, asking how he is and how he slept, his affinity for Nathan apparent. I personally can’t imagine being stuck in a courtroom like this day after day – what a soul robbing and exhausting experience this has been for me and I’ve only been doing it for four days. I realize how incredibly lucky Nathan is to have even made it this far, to finally be getting his 35c hearing; most never see this day. So I try to dwell on the light at the end of the tunnel and look ahead for him. This is all for him and getting him a new trial and ultimately someday, freedom. I would do and have done much worse for friends. Sitting on a courtroom bench typing for 6 hours everyday is the least I can do.

Mike Gallagher, his Tommy Lee Jones appearance even more grizzled this morning, looks a bit tired but as set and determined as ever. It has been obvious all week that he has brought his A game and has been working Nathan’s case from every angle.

The judge enters, we all rise, and proceedings begin once again with Roger Ybanez taking the stand. The judge advises him that he is still under oath (not that that matters, of course) and he takes a seat.

Mike begins by asking if there were any difficulties with Nathan while the family was living in Omaha. Roger twice denies there was until Mike shows him transcripts of a journal Roger found of Nathan’s while Roger was packing up the family belongings in which Nathan wrote how he didn’t want to leave Omaha, he hated his parents and wished they would die, and also talked about killing himself. Roger claims he did not know about any of this while they were in Omaha and only found out through the journal as they were leaving.

Mike then asks Roger if there was any attempt on the part of him or Julie to get Nathan any help or counseling for Nathan based on what they found in the journal? No, Roger replies, his mother just “talked to him”. Even though Roger and Julie claimed to be “very upset and distressed” over what they saw in the journal, they did nothing except talk to him about it. They then burned the journal.

I didn’t catch the question that Mike asks here, but Roger again states at this time that Nathan was not able to understand the consequences of his actions after the murder and during the trial.

Roger is then asked if he ever challenged Nathan to a fight? Roger: Yes. Mike: When? Roger: When he was 16. Mike: Did he fight you? Roger: No. Mike: Why not? Roger: Because I suppose he was afraid.

Mike asks Roger if he ever got verbally abusive with Nathan in front of a high school counselor on one occasion. Roger replies yes. Roger states that he only said, “What the hell are you doing?” to Nathan in front of the counselor. Mike then pulls the report and points out that Roger really said, “What the fuck are you doing?” and the counselor then asked him to leave.

Mike then asks Roger if at a counseling session once, did the mediator ask him to stop verbally abusing and belittling Nathan? Yes, Roger replies. Mike: Did Nathan ever attack you? Roger: No. Mike: But you attacked him? Roger: Well, I wouldn’t say I attacked him (Of course you wouldn’t, dirtball. The word “attack” isn’t in the vocabulary of an abuser).

Mike: Who is Camilla Mottl? Roger: Julie’s friend. Mike: You knew her? Roger: Yes. Mike: She visited your home? Roger: She may have. Mike: But Julie would have had plenty of opportunity to speak with her freely on many occasions? Roger: Yes. Mike: Would you say she was someone that would have had knowledge of things that were going on in your household? Roger: Yes.

Mike: During the time period right before and after you moved out of the apartment, was there another woman in your life? Roger: No, there was no other woman.

Mr. Sears, prosecutor for the State, takes over with his cross. Roger talks about how he moved out of the apartment because he and Julie felt that if he left there would be less “volatility”, (his word) in the household. He moved out around Valentine’s Day, 1998. The murder occurred in June of 1998. Sears: How many times did you come to the apartment? Roger: Three to four times. Sears: How many times did you see Nathan during this time period? Roger: The same. After I moved out, he seemed to settle down. Some of his old patterns returned such as drinking, drugs, skipping school, curfew issues, but he was much better.

When asked to describe Julie’s style of parenting, Roger reported that she was a talker, not a yeller or a curser.

Mr. Sears once again establishes that Julie asked Roger to be the bad cop, the enforcer, scare Nathan straight, lay down the law, put some fear into him, on the night of the choking incident. Roger still denies doing anything damaging , and still denies the choking. He states Nathan was scared and said he would start to behave, but then the prosecution tries to establish that within a few minutes of this happening Nathan ran out of the house and ran away, breaking household rules within minutes (yeah without even bothering to pack or dress, he was only wearing his underwear. That’s how I would run away if I was a teenager, I want to be seen by everyone walking along the street in my underwear).

Sending Nathan off to military school was then discussed, along with all the things Nathan was going to have to give up when he went. Roger remembers Nathan as saying he didn’t think he could do that. Sears: Did he get angry or fly off the handle? Roger: No? Sears: Did he strike you or Julie? Roger: No.

The prosecution goes back to the journal that Roger found in which Nathan expressed that he hated his parents and wished they would die. Sears asks if Roger ever read anything about abuse, Germany, etc. No, Roger replied.

The high school counselor incident is brought up and gone over again.

The details of the night Roger went to the police station are gone over again.

The prosecution then moves on to the day of Nathan’s arrest and how Roger came to hire an attorney for Nathan. Roger states that he met with a public defender, decided he wanted more, and eventually hired Craig Truman because he was told by a friend that Craig was one of the top criminal defenders in the Denver area. Roger then admits that he paid most of the money to Mr. Truman personally, but that a little came from his mother. (Oh really? Hmm, how interesting. That blows a hole in one of the prosecution’s major points of earlier in the week). Sears: Did Craig represent YOU in any way? Roger: No. Sears: Did you run out of money at some point? Roger: Yes. Sears: Did you go talk to Craig? Roger: I wrote him a letter. Sears: When was this? Roger: Sometime after the preliminary hearing, in the fall. Sears: Did you tell him that you would maybe pay him some money in the future when you could? Roger: No, I told him I couldn’t give him anymore money at all and that if he wanted to get Nathan a public defender then I would understand. Sears: But Craig said he would stay on, is that correct? Roger: Yes. Sears: Did Craig continue to consult you after that regarding Nathan’s case? Roger: No, it was mostly chit chat after that.

Sears then directs the questioning around when exactly Nathan started to change. Roger states that in May of 1998 they found pot in Nathan’s room and he was not made to go back to Colorado Christian Academy because Nathan had been labeled a rat (Roger called the parents of the kid that had given Nathan the pot) and Nathan was afraid of getting beat up. It was later on that summer when he met Brett Baker and Erik Jensen at the local pizza parlor when all of the other stuff really came into play.

When Mr. Sears asked Roger what the difference between juvenile and adult court was, the defense objects and it is sustained, since there is no foundation that Roger knows anything about either. Sears gets his question answered in another way after Roger states that it was his feeling that in juvenile court he felt that Nathan would have a better grasp of what was going on and be able to understand it. Adult court, Roger stated, was much more serious.

Sears asks Roger if Julie ever threatened or abused Nathan. No, Roger replies, not in front of me. Sears then asks about the threat that Erik Jensen made to Julie to kill her. How did Nathan react when told one of his friends had threatened to kill his mother? Roger stated that Nathan didn’t believe it.

Sears: You were the primary disciplinarian in the family, weren’t you Mr. Ybanez? Roger: Yes. Sears: Where on Nathan’s body did you spank him? Roger: On his read end. Sears: Did you ever strike Nathan on his back? Roger: No (lie alert here, plenty of them coming up!!) Sears: Did you cause those marks on Nathan’s back? Roger: No, I did not. Sears: Did Karen Maestas come and visit you? Roger: Yes. Sears: Did she ask you to have pictures taken of your own back in order to preserve them? Roger: Yes. Sears: Was there ever a comparison made between the marks on your back with the marks on Nathan’s back? Roger: Yes, Julie did. The exhibits of the pictures of Roger’s back are then entered with the court.

Sears then goes over the subject of the journal again. Roger “can’t remember” if Nathan ever talked about suicide in the journal, even though yesterday he said otherwise. Julie talked to Nathan on her own about the journal, and even though Roger won’t admit that the subject of suicide was in the journal, Julie was so upset about whatever was in the journal that she asked the police to come to the apartment and help her.

Sears: Did you ever knock Nathan’s head up against a bed post? Roger: No. Sears: Other than the incident where you pushed Nathan up against the wall, did you ever in any other way physically touch Nathan? Roger: No. Sears: Did you ever strike Julie? Roger: Yes, once when I was 19. Roger: Did you ever threaten her? Roger: No. Sears: Did you ever wield any weapons against her? Roger: No.

Mr. Sears then goes to Roger’s upbringing as the prosecution did yesterday, and the incidents surrounding his sister Maria’s murder. Their intent, of course, being to establish that no abuse occurred in Roger’s household growing up and that Roger’s father had nothing to do with his sister’s murder. Roger is only too happy to accommodate him. The judge then states that we will take our morning recess.

We return from the break and questioning by the prosecution of Roger resumes. The incident where Nathan was being taken off to military school in the middle of the night was covered. After being caught by the police at an underage drinking party, Nathan’s parents (mainly Julie) made the decision that Nathan had to immediately be sent away to such a school. The police were then called for a civil assist in case there was any trouble with Nathan or he resisted going. The police followed the family car for awhile, but after they peeled off, Nathan started kicking the back door and window of the car. Roger pulled over and that’s when the incident where Roger challenged him to a fight took place. Whatever was said outside of the car, even though a fight never took place, whatever was said was enough for Nathan to behave for the rest of a twelve hour car ride. Boy, that must have been some father/son talk! No threats, no nothing, eh? Okey dokey, whatever you say.

The rest of the questioning is along these same lines, in which the prosecution just wants to portray Roger as a fine, caring, concerned, firm father and disciplinarian. Nathan was just SO out of control, we were at our wit’s end, we didn’t know what to do, nothing was working, blah, blah, blah. The prosecution then asks Roger, if as a lay person, he believes that anything ever happened in the household or occurred during Nathan’s upbringing that contributed to him killing his mother? There is an objection by the defense, but the judge allows it only under the understanding that this witness is not an expert. Roger replies no.

Mike cross examines, based on this last question. Mike: Based on the fact that Nathan had never been violent towards anyone ever in his life, your first thought after finding out that Julie was dead was “he must have flipped”, right? Roger: Yes. Mike: Then your next thought was, “he must have been with someone else, right?” Roger: Yes. Mike: And right away you put your finger on Erik Jensen, isn’t that right? Roger: Yes. Mike: But Craig Truman never asked you about any of this during the trial? Roger: No.

The marks on both Nathan’s and Roger’s backs were then briefly brought up again. Mike just wanted to confirm that neither Nathan nor Roger were born with these marks. Roger replies no. The prosecution and the defense then rest in their examination of this witness and Mr. Scumbag is permitted to step down.

Dr. Daniel Fisher is then sworn in. He is a board certified adult psychiatrist and is employed by Centennial Peaks Hospital in Louisville, CO. Mike: At some point did you have a patient named Nathan Ybanez? Dr. Fisher: Yes, he did, and he is then asked to point Nathan out in the courtroom which he does. Dr. Fisher was Nathan’s attending doctor while Nathan was at Centennial Peaks. Mike: Were you aware afterwards when Nathan killed his mother that this was a former patient of yours? Dr. Fisher: Yes. Mike: Did you think that someone might contact you? Dr. Fisher: Yes, I thought it was highly likely. Mike: And DID anyone contact you? Dr. Fisher: No. Mike: Craig Truman never contacted you or made an attempt to get Nathan’s patient file from you? Dr. Fisher: No.

Dr. Fisher then discusses what types of therapies are covered at Centennial Peaks such as drug dependence, family issues, etc. His education is discussed. He attended, among other universities, the University of Michigan, but I decide not to hold this against him since he’s on our side. Without going into his whole resume, the prosecution rises and concurs that this witness can be certified as an expert in his field to speed things along.

Dr. Fisher is directed to an exhibit which shows Nathan’s medical record during his stay at Centennial Peaks. Mike asks if this record would have been available by the time of his trial. Dr. Fisher replies yes.

Mike asks Dr. Fisher to explain the procedure when someone is admitted to Centennial Peaks and Dr. Fisher goes over this. Mike then asks if there was a specific incident in the Ybanez household that triggered Nathan being taken to Centennial Peaks. Dr. Fisher replied yes. Mike: Would smoking pot by yourself be enough to get you admitted? Dr. Fisher: No. Mike then directs Dr. Fisher to the discharge summary of Nathan, as written by Dr. Fisher. Mike then jumps ahead a little bit and wants to just confirm that Dr. Fisher has not seen Nathan since 1997 (except on TV after the murder), and no one has shown Dr. Fisher any trial transcripts and Dr. Fisher has no knowledge of this case other than the two days he spent with Nathan back in 1997. Dr. Fisher confirms that this is true.

Dr. Fisher then reads the discharge summary out loud since he apparently has horrible handwriting and Mike cannot read what Dr. Fisher wrote so long ago. Sometimes neither can Dr. Fisher but he reads that Nathan had been smoking pot daily, his grades were failing, he had run away 3 times, and there had been the choking incident between Nathan and his father. Mike points out that the discharge summary states that the violence between Nathan and his father was described by Nathan as his father choking him and jumping up and down on his stereo and smashing it, while Roger describes it as only “a few smacks”, and Julies describes it as a “backhand”. Nathan’s complaints in the document were, “I don’t want to live with my parents anymore, I don’t respect the way they are acting”. The descriptions from Julie, Roger, and Nathan describing the choking incident all vary. Mike asks why this is. Dr. Fisher replies that he takes everything from everyone with a big grain of salt and took these descriptions to mean that the truth lay somewhere in between. He thought the mother was perhaps trying to mitigate what the father had actually done so that he wouldn’t be charged with child abuse.

Dr. Fisher summarized in his discharge summary that Nathan was a 15 year old juvenile with no prior psychiatric problems. Marijuana use, running away, a family fight, mood changes, decreased energy, isolation, history of suicidal ideation at 12 yrs old, doesn’t get along with father. Father distant and punitive, mother emotional and controlling.

Mike goes into depth over all of Dr. Fisher’s reports in order to clarify that there was documentation by psychiatric professionals that there was abuse in the home, Nathan didn’t want to live there anymore, and that other people had called Social Services about the violence in the home. Dr. Fisher concurs with all of this.
When Mike asks Dr. Fisher what his hope was that Social Services would get involved with this family after Dr. Fisher called CPS (Child Protective Services), Dr. Fisher expressed that it was his hope that CPS would get involved in “an intrusive way with a positive outcome”, as opposed to what some counties do, “thanks for the call but this doesn’t meet our criteria for abuse, click”. Dr. Fisher then states that given what subsequently occurred (Julie’s murder) it was obvious that intervention by CPS had been necessary.

Dr. Fisher was asked if some of Nathan’s problems were contributed to by the family moving so much. Yes, he replies.

After our lunch break, Mike wants Dr. Fisher to talk a little about Nathan’s psychiatric symptoms. In the 2 days he was with Dr. Fisher, there were no obvious indicators or symptoms from Nathan, nothing flagrant. He was quiet and guarded the whole time he was there. Therefore, Dr. Fisher had to rely on reports from the family.

Dr. Fisher then defines for the court the difference between Oppositional Defiance Disorder and Conduct Disorder. Oppositional Defiance Disorder is an opposition to and defiance of authority figures. Conduct Disorder is much more serious. Since a juvenile cannot be classified as a psychopath this is the closest definition of it to abhorrent behavior for juveniles that there is. The defense then has no further questions and rests.

Prosecutor Sears begins his cross. He establishes that Dr. Fisher treats primarily adults and not children, and that in the time Dr. Fisher has last seen Nathan he has probably seen 5,000 to 10,000 patients. Dr. Fisher states that he recognizes Nathan and remembers him, but other than that he is relying 99% on the past written transcripts today. Sears establishes that had Dr. Fisher known of a serious threat to either Nathan or others, Dr. Fisher would not have let Nathan go home. Dr. Fisher also states that he recommended family therapy, as it was obvious that there was some sort of family-wide dynamic going on. Sears has a few more unimportant questions for Dr. Fisher and then he rests as well.

We take a short afternoon break and I am late coming back in, so I miss the introduction of the next witness by the prosecution, a one Dr. Hanson. He met with Nathan on July 1, 1998, shortly after the murder. He administered three psychological tests to Nathan, including an IQ test. Prosecutor Rosenthal is the one questioning this witness and she seems to want Dr. Hanson to make some sort of diagnosis from these tests, after he has already stated that you cannot make a diagnosis of an individual simply from psychological tests. The prosecution nevertheless desires to put us all to sleep by going over each test and its results ad nauseam.

By the time the defense gets to cross examine, it is almost 4 pm. So much for us wrapping things up today, I think to myself. Mike Gallagher establishes with Dr. Hanson that these psychological tests merely form hypothesis and not diagnosis and Dr. Hanson affirms that this is so. Expecting many more questions, I am surprised when the defense rests.

The next , and last, witness I soon learn, is also called by the prosecution. Dr. Richard Pounds, a forensic psychiatrist like Dr. Spiegle. He works in Pueblo, CO for the Department of Corrections. He was provided over 4200 pages of documents in this case, including Dr. Spiegle’s report. Mr. Sears asks if Dr. Pounds had any problems with Dr. Spiegle’s report. Of course he did and explains why. First and foremost he did not see a diagnosis in Dr. Spiegle’s report. He also thought it unethical that Dr. Spiegle and Nathan were having correspondence in the form of letters between them. This brought up boundary issues in his opinion, and blah and blah. This witness is clearly here to rebut Dr. Spiegle’s findings and argue against what Dr. Spiegle’s assessment of Nathan was so I quickly lose interest in his testimony. The prosecution is again just doing their job and I’m getting more than a little weary of it by now.

I had seen Dr. Pounds before the break sitting across the aisle in the courtroom and I had thought, “who the hell is THIS guy and who let him in here?” He had a bit of a wild eyed stare and looked like he was in need of some psychiatric tests himself. His hair hung way below his shoulders, his bangs covered his eyes, and his beard was too thick and bushy. He did, in fact, resemble a chubby bush. Dude, here’s a tip: I know people aren’t supposed to judge others by their appearance, but in your profession particularly people would take you a lot more seriously if you got some clothes that fit you, cut or at least pulled back your Bob Seger haircut from the 70’s so we can see your eyes, and learn how to not walk like a Heffalump. Granted, you work around inmates all day and perhaps want to blend in, but come on. Really? You’re a forensic psychiatrist?

His overall opinion of this case was that this was a deliberate act on Nathan’s part. There was no pattern of abuse in Nathan’s household, and it sounded to Dr. Pounds as if the parents were trying to rein in Nathan’s behavior. It was his opinion that Nathan showed a lack of concern for others, rules, and laws. It is was also Dr. Pound’s assertion (although he never spent any time with Nathan personally) that Nathan had Conduct Disorder and not Oppositional Defiance Disorder. It was also his opinion, of course, that Dr. Spiegle’s theory that Nathan had acted impulsively, was bullshit (my word, not his).

Chad Williams then takes over for the defense and asks Dr. Pounds if choking your child, slapping your child, verbally abusing your child, or throwing your child up against the wall is ever appropriate behavior when disciplining your child? Dr. Pounds replies no. That’s all Chad has and the defense rests. Again I am surprised that the defense doesn’t have more.

The prosecution rises again and asks another question of Dr. Pounds regarding if Nathan was abused by his father then why did he kill his mother. The defense objects as being speculative, the prosecution rephrases, and I don’t even remember what Dr. Pounds said, it was not significant.

The State then announces that it rests their case and has no further witnesses. The defense rises and states that it also rests. I have been typing away over in the corner, oblivious. Suddenly there is silence in the courtroom and I look up, stunned. I realize that the hearing has come to a sudden and uneventful end. That’s it, it’s over just like that.

Since this is not a trial, there are no closing arguments. Instead the defense and prosecution rise and request of the judge that they be allowed time to view the transcripts from this hearing before they file their responsive briefs and come back before the judge. Judge Hopf grants this request and I then find out that the responsive briefs will be filed 40 days after both counsels have received and read the transcript from this hearing. I will call and find out from the county clerk on Monday how long it takes to type the transcript and when it will be ready. I will then have some further idea of when court will reconvene to listen to the responsive briefs, so stay tuned to the blog. I imagine another court date may be set for late April or May. Then we have to wait, I would imagine, another 30 or so days for the judge to make her decision. So we’re talking June or July possibly before we get her decision. The wheels of justice do indeed grind slowly.

I sit and slowly gather my things as the defense and prosecution mill about, not wanting to leave Nathan. I get Nathan’s friend Julie’s email address and telephone number and tell her I will be in touch. She does not ask for mine. Nathan stands up finally and the deputy leads him the few feet to the door which will take him back to his holding cell. He finally shoots me a glance and is gone. I am instantly flooded with emotion and quickly leave the courtroom before I am overcome. I was not expecting such an abrupt end to the hearing, but didn’t really know what else I HAD expected. It is over and there is nothing left for me to do but go home.

Back home with my family, we go out to dinner as I am exhausted and don’t feel like cooking. My nephew is also visiting and we want to make him try sushi. Even though I wasn’t able to spend much time with him this week due to the hearing, he came with me a few days and actually thanked me for the court experience. He said he learned a lot. I looked into his 23 year old face and saw all the hope and promise of a bright future that I hope will someday be realized by another young man. I then proposed a toast. “To Nathan”, I said.

1 comment:

  1. Dear Eli
    My name is Pia, and I'm from Copenhagen, Denmark. I've tried to follow Nathan's case, but it is quite difficult since the only thing I can do is to read the news. Therefore I was really happy to find this page:) Could you tell me whether there is any news concerning his case? I would really like to know. I fell so sorry for him and for Erik as well...

    Best wishes