Stephen J. Lee, Forum Communications Co., Published August 18 2011
Dewey’s wife gives emotional testimony in Fairbanks' murder trial
She was the first witness in the trial of Thomas Fairbanks, 34, charged with first-degree murder in the Feb. 18, 2009, shooting of Mahnomen County Sheriff’s Deputy Christopher Dewey, who died Aug. 9, 2010, in hospice care at the age of 27.
Fairbanks also faces several assault charges and other lesser charges stemming from the nine-hour standoff after the shooting.
But the charge of murdering a peace officer carries a mandatory sentence of life in prison without parole, a fact that is driving most of the activity by attorneys from both sides.
Defense attorney Ed Hellekson acknowledged his client had shot Dewey in his opening argument before the jury, but said it wasn’t first-degree murder because Fairbanks was too intoxicated to form criminal intent.
The prosecution is just as intent to show Fairbanks was drunk, but not that drunk.
Cause of death
Prosecutor Eric Schieferdecker called Emily Dewey as his first witness in part to address what appears to be a singular topic expected to be raised at the trial: whether the circumstances of Dewey’s death in hospice could be seen as part of the cause of his death, and not only the gunshot wounds.
In his opening argument, Schieferdecker told the jury that the physician who performed the autopsy on Dewey’s body Aug. 10, 2010, determined his death was caused by complications from his gunshot wounds.
Emily Dewey was a prime caregiver for her husband as he at first progressed in treatment after the shooting, then as he began to decline by late 2009.
He underwent 11 surgeries, but kept suffering from complications and pain, largely because the damage to his brain wrecked the autonomic system governing much of his body, Schieferdecker told the jury. He showed a photo of Dewey’s brain at his autopsy, showing nearly half of it simply gone from damage of the gunshot.
In a court document this spring, the defense called Dewey’s death “euthanasia” as part of an argument that it wasn’t caused by the gunshots. Defense attorneys wanted to know if they could ask the jury to consider that Dewey’s medical care and the end-of-life decisions by his family played a role in his death.
State District Judge Jeff Remick ruled that, according to state law and court precedent, hospice care decisions did not interrupt the “chain of causation” begun by the gunshot to Dewey’s head.
As a response, the prosecution had asked would-be jurors, during 11 days of jury selection, what they knew about hospice care and other end-of-life decisions, including “do-not-resuscitate” orders.
At the trial, during a description of how close Dewey and his wife, Emily, were in their three years of marriage, Schieferdecker said they shared their “hopes and dreams,” including Dewey’s “wish that he not be kept alive by machine” if he ever was seriously ill.
Dewey had been a big man, 6 feet tall and 250 pounds, Schieferdecker said. At his death, he weighed 125 pounds.
He asked Emily Dewey what it was like toward the end of her husband’s life.
“I had seen the light go out of his eyes for months,” she said, wiping tears from her eyes, her voice breaking. She did a lot of “praying and soul-searching,” she said, after being told last summer of one more possible way to treat the latest infection in her husband’s ravaged body. It would involve a massive regimen of antibiotics and painful therapy with not much long-term hope.
She and Christopher had met in high school in Cambridge and married in 2007.
By early 2010, he could no longer talk or move. He could eat only through a feeding tube into his intestine. His body was covered with pressure sores and he was in pain all the time.
Last July, she talked to Dewey’s mother about whether they should “put him through yet another painful hospitalization and procedure,” she said. Both agreed it wasn’t the way.
Instead, they took him home from a care center to Emily’s parents’ home and provided hospice care, mostly pain medications administered by Emily, she testified. In little more than two weeks, he died.
Fairbanks’ defense attorneys Jim Austad and Ed Hellekson did not cross-examine Emily Dewey.
Schieferdecker’s opening argument was interrupted Wednesday morning when a juror fainted, causing a several-hour recess as the judge consulted with attorneys from both sides on how to proceed.
In the dramatic moment, the college student fell over the arm of her chair, with her head behind the adjacent chair, nearly to the ground. Other jurors and court officials rushed to help her and she was soon sitting up, drinking a cup of water.
She was taken in a wheelchair out of the Polk County Justice Center to Riverview Health Center for a physician’s examination.
Judge Remick told the courtroom after lunch that the woman – “who will be fine” – was dismissed from the jury, meaning the panel now is at 15, including three alternates.
Just before the woman fainted, Schieferdecker had shown graphic photos of his wounds and described his decline in early 2010.
Dewey was “a man with the bladder of a newborn, he had to wear a catheter … he had blood clots in both legs … he showed signs of stress on his heart from infections. … He couldn’t go to the bathroom, couldn’t move and was unable to communicate,” Schieferdecker said.
Emily Dewey seemingly could interpret her husband’s facial expressions, and by early March 2010, “Emily felt Deputy Dewey began to give up,” Schieferdecker said. “He was in constant pain.”
A key aspect of the case is how intoxicated Fairbanks was when Dewey was shot.
The defense says evidence will show he was too intoxicated to form the intent necessary for first-degree murder. In his opening, defense attorney Ed Hellekson, told the jury that Fairbanks and his accomplice, Daniel Vernier, will testify that Fairbanks had been drinking and taking prescription drugs for hours before Dewey was shot.
Hellekson showed jurors security video from the Shooting Star Casino in Mahnomen of Fairbanks driving a Chevy Blazer out of the parking lot after hours of drinking and gambling, turning several “donuts” on the snowy parking lot, appearing to be a very drunk driver. Casino security, in fact, called the White Earth tribal police to report the Blazer as being driven by a drunken driver, Hellekson said.
This was about three hours before Dewey, responding to a 911 call of two drunken men knocking on a woman’s door, was shot.
Fairbanks and Vernier, as well as the woman who witnessed the shooting, will testify that Vernier tried to punch Dewey, who then “went for his gun,” before being shot, Hellekson said.
Fairbanks will testify that “he went for his gun and I went for mine,” Hellekson said. About 10 hours after Dewey was shot, Fairbanks surrendered after a standoff in his trailer home.
The key point, Hellekson told the jury: “Was he intoxicated at the time he shot Deputy Dewey? Did he form the intent to kill?”
Fairbanks will “take responsibility” on the witness stand for some of the charges against him, Hellekson said, which include assault on peace officers, theft of a vehicle and failing to assist Dewey after he was shot.
But not for first-degree murder of a peace officer, which carries a mandatory sentence of life in prison without parole, he said.
First-degree murder in Minnesota requires intent. If the jury is allowed to consider lesser charges than first-degree murder, the lack of intent argument could lead to a lesser penalty if Fairbanks is convicted.
“The key,” Hellekson said, is “that Mr. Fairbanks was so intoxicated he could not form intent.”
Hellekson’s opening went about 100 minutes.
Schieferdecker had ended his opening argument, which was about 70 minutes long, by telling the jurors that when Fairbanks shot Dewey, “he was too drunk to drive, but he was not too drunk to think, or to form criminal intent.”
The prosecution’s case continues this morning.
Stephen J. Lee writes for the Grand Forks Herald