Monday, September 21, 2009

Nathan Ybanez Hearing - Wednesday, February 25, 2009

Promptly at 8:45 this morning, Nathan is brought into the courtroom from his holding cell and the proceeding resumes. So far, we all seem to be holding up well and those of us in the courtroom have developed our little routines of bathroom breaks, lunch, stretching, and butt rubbing from the excruciating pain we are experiencing from sitting on those tortuous courtroom benches. The attorneys, for their part, ignore us. It is hard to know how Nathan is doing, as his role consists only of merely sitting and observing, although this morning I heard Nathan humorously comment on the massive necklace of balls that one of his attorneys was wearing. This is the first I have heard Nathan audibly speak all week.

We pick up where we left off yesterday evening with the continued questioning of Dr. Spiegle. It seemed important to the prosecution to make sure Dr. Spiegle heard all of Craig Truman’s testimony yesterday, as Ms. Rosenthal went back over practically every question that Mr. Truman was asked. There were also questions directed at Dr. Spiegle as to Nathan’s competency, where the actual money came from to pay Mr. Truman, what was the definition of deliberation, were typical 16 year olds able to follow rules and establish right from wrong, and what is the difference between fantasy and deliberation in terms of thinking about an act hours before you do it? The prosecution then discusses how circumstantial evidence is used. They are trying to establish and confirm that Nathan deliberated over and planned to kill his mother hours before he did it.

Suddenly the prosecution pulls a doozy and requests that Nathan be required to take off his shirt and allow Dr. Spiegle to identify the marks he saw so long ago. This takes the defense by surprise and they request that it be done in chambers to maintain Nathan’s physical privacy. The judge suggests doing it during the morning break when the public leaves the courtroom. Ms. Rosenthal wants it done now because she claims she is almost finished. Judge Hopf relents and we are asked to leave the courtroom while Nathan is subjected to this inspection.

Ms. Rosenthal asks Dr. Spiegle to confirm that he is currently on the board of The Pendulum Foundation, how many meetings he has attended,and how much he has been paid by Pendulum. The prosecution reports that he was paid $19,500 and Dr. Spiegle doesn’t dispute it, although he states that it was a long time ago and he doesn’t do his own bookwork. The prosecution then rests in their questioning of this witness.

The defense redirects with a few questions, approaching the witness and showing Dr. Spiegle a document from Centennial Peaks regarding Nathan’s suicidal ideations long before the murder of his mother. Dr. Spiegle is then asked if it is his opinion that Nathan killed his mother on impulse; Dr. Spiegle again replies yes. Chad Williams goes over other factors Dr. Spiegle used to form this opinion.

The defense also questions Dr. Spiegle about Nathan’s repeated abuse and Craig Truman’s testimony that if Roger Ybanez was the principal intimidator and abuser that really didn’t matter because Nathan killed his mother. The prosecution objects to Dr. Spiegle testifying about something Mr. Truman testified about on the grounds that he is a psychiatrist and not a legal expert. The judge asks the defense to rephrase the question in the context of the witness’s area of expertise and the defense is allowed to continue. One got the underlying inkling that there had been previously established waters of testimony that neither the prosecution nor the defense would wade into (such as Nathan’s sexual abuse by both parents). Dr. Spiegle picks up the elephant in the room with his 5 foot self and only addresses issues of intimacy where emotions are concerned, not physical intimacy or abuse.

Dr. Spiegle went on to elaborate that he is of the expert opinion that Nathan killed his mother because of the lost fantasy Nathan had of wanting his mother to protect him from the abuse of his father, her unreasonable demands and emotional needs, statements of her not wanting him, feeling unloved and emotionally abused by his mother, and how his buildup of unresolved rage, combined with his physical and emotional abuse, did not result in a deliberative act of murder. Dr. Spiegle stated that it was Nathan’s perception, as made clear from his mother, that Nathan was only present to meet her needs, she was not there to meet his, the child. All of this resulted in Nathan’s disinhibited rage.

The defense points out and Dr. Spiegle testifies to, the fact that Nathan was re-traumatized over and over again when he was returned home to his parents time and time again after running away 3 times, asking the police, friends, his friends’ parents, and Centennial Peaks for help. He possessed a sense a hopelessness that no one was ever going to help him, protect him, or render any relief from his situation.
The defense then asked Dr. Spiegle if mental abuse is any less important than physical abuse. Dr. Spiegle replied that it was not.

Prosecution re-directs examination with various questions regarding what Dr. Spiegle knew or didn’t know regarding Julie Ybanez being concerned with Nathan’s well being, skipping school, using drugs and alcohol, and seeking counseling for him, again pushing the pablum that Julie Ybanez was Super Mom.

The prosecution then asks about the various psychiatric tests that Nathan underwent, both by Dr. Spiegle and while at Centennial Peaks. The prosecution pointed to test results that said Nathan was hedonistic, self-centered, and used individuals for his own needs with no regard to their feelings. When asked by the prosecution if Dr. Spiegel thought Nathan was indeed hedonistic and self-centered Dr. Spiegel replied that you can’t just look at the results of a psychiatric test and determine that yes or no, an individual is this or that, you have to look at the individual circumstances of that person’s environment.

The prosecution, in wrapping up, tries to back Dr. Spiegle into a corner by again stating that because Nathan “planned” his mother’s murder for 10 to 12 hours beforehand, did that not make it deliberate, or was it still just a fantasy even though he acted upon it? Dr. Spiegle stuck to his expert opinion that because of everything that had been building in Nathan over years and years, Nathan feeling trapped and feeling that his mother had quashed his plan to run away the night of the murder, Nathan’s only way out in his frenzied mind was for something to end, for him to either kill himself or his mother, or else it was never going to stop. He could not cope any longer.

The prosecution finally rests in their questioning of Dr. Spiegle and the defense only redirects one last time with 2 more questions, one of which is objected to by the prosecution and subsequently withdrawn, the other question is merely to confirm that Nathan did indeed have suicidal ideations long before Julie Ybanez was killed.

Jim Aber, an attorney, is the next witness to take the stand. He is a criminal defense attorney who has been practicing law since 1982. He handles only felonies at this juncture in his career, although previously he had been a public defender for 26 years. His other basic relevant resume items are then gone over. Mr. Aber has tried over 100 cases in his career, including homicide and capital cases, and a number of high profile cases here in Colorado (Corey Zorn, Albert Petrosky, Samuel Quintana). He has been involved in about 10 direct file cases of juveniles.

Mr. Aber has reviewed most of the documents concerning Nathan, his trial, and those of Erik Jensen as well. He is very well versed in all and brings no notes with him for testimony today. His opinion is that Nathan did not receive effective counsel. He was initially shocked after reading the transcripts that a whole murder trial, including jury selection, motions filed (one), and witnesses called, took a total of 3 days. A big huge red flag to Mr. Aber was the lack of any investigation at all by Craig Truman. Erik Jensen’s murder trial took seven days in comparison to Nathan’s three, although Mr. Aber considered that to be too short a period of time to conduct an effective murder trial as well. Mr. Aber also noted that Mr. Truman made absolutely no objections, not a single one, during Nathan’s trial. Mr. Aber also agreed with Marcy Glenn’s previous testimony and further agreed that there is absolutely no ambiguity as to whether or not Mr. Truman was operating under a conflict of interest. His opinion was that this was not a waivable conflict.

Mr. Aber then goes down the extensive laundry list, in chronological order, of all the events of the previous trial in which Craig Truman committed egregious, unthinkable, irresponsible legal acts in his “representation” of Nathan. He also outlines what WOULD have comprised an effective legal defense for Nathan in order to establish to a jury that this was NOT a premeditated, deliberate act of murder. NEVER, he opined again, does evidence in a murder case take one day. A typical murder trial takes weeks, sometimes months; never days.

I am rolling like a pig in mud at this point, reveling in his every word and wanting to run across a daisy filled field in a white cotton dress to kiss this man while Julie Andrews sings the title track from The Sound of Music. I refrain physically, going there in my mind instead to take my thoughts away from my aching ass momentarily.

After his chronological dissertation, the prosecution takes over the questioning of Mr. Aber. She makes a feeble attempt to get Mr. Aber to agree to any of her points; he is incredibly sharp and dodges every kickball she throws at his brick wall. He ain’t playin. He gives up nothing and his credibility and testimony remain intact.

Inexplicably to me, however, when asked by Ms. Rosenthal what she thought Mr. Truman’s reputation in the legal community was, Mr. Aber said he thought Mr. Truman had a good reputation, although he was probably more well liked by prosecutors than defense attorneys. He also said he considered Mr. Truman a friend. Wha…..??? Now, see, this is what I don’t get about attorneys. How is it that you can get up on a witness stand or oppose counsel in court, rip each other a new one, and then at the end of the day slap each other on the back and go drinking? Relationships with me are just a tad more black and white. If I would want to scratch your eyeballs out in a courtroom, I’m pretty sure I would want to do it after hours as well. But go figure, that’s just personally how I roll.

Ms. Rosenthal, for her part, must be wearing down. Her questioning of Mr. Aber lacks her usual snotty tone and doesn’t last as long as I thought it would or should have, given her attention to detail. Mr. Aber just wasn’t serving her purposes and she had no further use for him. She ends her questioning at 2:50 pm.

The defense cross-examines with only 2 questions, getting Mr. Aber to reiterate his point that if a defense attorney is faced with as insurmountable of a conflict of interest as Mr. Truman was, then the conviction of his client cannot stand. Mr. Aber steps from the witness stand and we take our afternoon break. Up next, I overhear, Roger Ybanez is to take the stand.

After the break, Nathan’s friend Julie returns and comes to sit close to me and be closer to Nathan. We had spoken the day before and she is a lovely person. I imagine that she has moved closer to Nathan as if to offer herself as a human shield between Nathan and his father, sensing his apprehension. It is obvious now as Nathan is brought back in from his holding cell, that he is purposely trying not to show any emotion. For the first time, he looks nervous, his eyes blinking rapidly.

Roger Ybanez finally walks into the room and sits in the front row behind the prosecution. I recognize him immediately from the pictures that appeared in the Rolling Stone article. He is older now of course and looks like a cross between Ferdinand Marcos and Mao Se Tung. I would find out shortly that his personality resembled them as well. Living in Rail Rock, Texas now, I wondered how the defense had managed to find him and serve him with the subpoena.

I had fully thought that Nathan would not even want to acknowledge his father in the room, but he seemed curious to look at him, sending surreptitious glances his way. I suppose after not seeing the man who is your father for 10 years, a glance or two is not out of order. The judge enters the courtroom, Roger Ybanez is sworn in (“do you swear under penalty of perjury that the testimony you are about to give shall be the truth and nothing but the truth, so help you God “– HA! Yeah, SURE judge, whatever you say) and takes the stand.

Mr. Gallagher affirms to Roger Ybanez that other than his brief introduction out in the hall, he and Roger have never spoken before, nor has Roger Ybanez ever met or spoken to any other member of Nathan’s defense team. Mr. Gallagher then begins to review past facts of the trial. When asked if Mr. Truman asked Roger to intervene with Nathan when Mr. Truman complained to Roger that Nathan wasn’t cooperating with him, Roger replied yes. This happened about 3 or 4 times. Really? So essentially, go to the jail Roger and bully Nathan further and tell him to cooperate, even though you’re a prosecution witness. Really? Alrighty then.

Mr. Gallagher then affirms the 3 pronged role Roger Ybanez played during Nathan’s trial. He was a victim of the crime because his wife had been murdered, correct? Yes, Roger replied. And were you not also acting as a guardian to Nathan? Yes, Roger replied. And were you not also a witness for the prosecution? Yes, Roger replied.

Mr. Gallagher then confirms that when Roger found out his wife was dead and that Nathan was involved, he stated to the police, “I don’t know if I want to see him or not, I’ll probably beat the shit out of him”. Roger claims not to remember, as he was pretty upset. Mr. Gallagher then shows him a police report document where Roger did in fact make this statement. When Nathan was brought into the room at the police station, Roger then stated, “You’re a sick fuck, I can’t stay in here with you” and left. Roger then admits he made these statements, but only because he has to because they appear on the police statement.

I am watching Nathan while his father is on the stand. When all of the other witnesses have testified, Nathan has sat basically looking down, at the table, or at the computer screen where the transcript is flashing by. When his father takes the stand, Nathan looks at him for much of his testimony. Roger never once looks at him.

Mr. Gallagher is going down his list, checking off his points one by one. He asks Roger if Mr. Truman ever discussed with him any ethical problems with Roger having hired Mr. Truman and also being a witness for the prosecution. No, replied Roger. Was anyone else besides yourself acting as a guardian for Nathan? No, replied Roger. Roger also admits that Nathan was not able to comprehend what was going on after his arrest and during the subsequent trial.

Roger is then forced by the defense to admit that he also made the statement Nathan “must have lost it” when finding out that Nathan was responsible for his wife’s death. He admitted that Nathan had never struck his mother or been violent with her in any way in all of his 16 years and stated that he would have also admitted such had he been asked at Nathan’s trial but was never asked. Mike Gallagher then asked Roger about the threat that Erik Jensen had made to Julie Ybanez that he was going to kill her when Nathan was not even present at the time. Roger said Julie had told him this and had been very distraught at the time and took the threat very seriously.

Mike (I CAN call you Mike now can’t I after spending the last three days with you?) questions Roger about the amount of stress in the household in the previous months leading up to Julie’s death and of the physical altercation that Roger and Nathan had in which he choked Nathan. Roger admits that there was alot of stress in the household and tries repeatedly to attribute it solely to Nathan's problems. Mike doesn't let him and is quick to point out that there were other things as well that were contributing to his and Julie's arguments (it was widely thought at the time that Roger was having an affair, although for the life of me I'm always amazed when these dirtbag abuser men keep finding women who want to be with men like this). Roger states that he does not ever remember talking to anyone at nor going to Centennial Peaks Hospital and STILL, to this day, will not admit to choking Nathan. He said, “I told Craig Truman that I threw Nathan up against a wall and had him around his neck”. Oh, OK. But you didn’t choke him. You were merely lovingly holding him around his neck and by your definition that’s not choking. Really?

Mike’s line of questioning then went to how Nathan was before the family came to Denver. Roger admitted that Nathan was a very unemotional kid and very rarely cried, to the point that his wife thought something was seriously wrong with Nathan. He had a very flat, unresponsive way of dealing with everything and it was very difficult to engage him. Roger denies knowing that Nathan wanted to commit suicide around this time when they were living in Omaha, Nebraska and Nathan was 11. Mike again gets out an exhibit that points to this fact. Roger then replies, “well I don’t know that Nathan ever talked about suicide, but he did write something in a book where he talked about ending his life”. Which……….is…….the………..definition………..of…………….suicide………..right??????? Seriously, is this guy for real?

Mike then questions Roger about Social Serivces being called regarding physical violence in the Ybanez household. Roger admits that several people called Social Services, but an investigation was never launched. Roger was also asked about Centennial Peaks, why the family never returned for counseling after only going a few times, why Nathan was never taken back to Centennial Peaks for a recommended complete psychological workup, why Julie Ybanez complained to Roger about his lack of involvement in the family counseling, and exactly why Nathan was brought to Centennial Peaks in the first place. It wasn’t just for drugs, but it was also because of the incident where Roger choked him, smashed stuff in Nathan’s room, and Nathan ran out of the house in fear wearing nothing but his underwear.

Mike goes into more specific items of abuse with Roger. He asks Roger if he remembers when they were living in Germany and a caregiver beat Nathan and locked him in a closet for a long period of time. Roger replied that the caregiver did not beat Nathan, but did lock him in the closet. Mike asks Roger if he considered the treatment of Nathan by the caregiver to be inappropriate. Roger replies yes. (Why? Because you didn't get a piece of the action?) Mike then asks Roger if he had ever been verbally abusive to both Julie and Nathan. He admitted he had been and that Julie had asked him to stop. He admitted to slapping Nathan and various other things, but always claimed “it was just that one time”. He admitted knowing that Nathan slept with a baseball bat, probably because Nathan was afraid of him after the choking incident in which Julie had asked him to “scare some sense into him” in order to get him to change his behavior. Yeah, cause that’s how that works, dumbass.

The judge then allows questioning from the defense, under strenuous objection from the prosecution which is subsequently overruled, about Roger Ybanez’s upbringing and abuse by his own father. Roger offers that his father used to “spank” him, but only up until he was in the 7th grade. He also states that he had a sister who was "allegedly" or "supposedly" being molested by Roger’s father. She moved out of the house to live with a foster family and was subsequently murdered years later when she became older. And who was the prime suspect in her murder, Mike asks? Roger replies his father was, although he was never brought to trial for it.

For those of you out there who read the article in Rolling Stone, we all know Roger was lying through his forked tongue at this point. His father used to regularly beat him to within an inch of his life, starting when he was as young as two, and the only reason his father was never brought to trial for the murder of his sister was because he had already begun suffering from an advanced state of dementia brought on by his alcoholism. The police officer who investigated the case, along with Roger’s mother, both state unequivocally they have no doubt that Bernie Ybanez killed his daughter and buried her in a shallow grave alongside a lonely country road.

Mike establishes with Roger that Roger pretty much moved out of the apartment and split with Julie soon after the choking incident with Nathan. At this point, we have come right to 5 pm and it is useless to begin another topic. Roger’s testimony will continue tomorrow. Court adjorns.

As I am packing up my things, I am close enough to Nathan and his attorneys to hear Chad Williams ask Nathan how he is holding up. Nathan replies that today was pretty nerve wracking. Ya think? I have a feeling that tomorrow will be more of the same. I know it is tough on Nathan to go through this hearing and have all of this re-hashed once more, but the testimony of his father is proving to be very effective for the defense and the prosecution knows it. I can’t wait to see what the morning brings. Good night all.

No comments:

Post a Comment