By Stephen J. Lee, Forum Communications Co., Published September 01 2011
Jury in deputy murder case asks to listen to audio recording from day of shootingCROOKSTON, Minn. – Only 45 minutes after the jury resumed deliberations this morning in the trial of Thomas Lee Fairbanks, it asked to return to the court room to listen to a 10-minute audio recording of law enforcement officers during the 2009 standoff.
On the recording, some of the dozens of officers from several agencies who responded to the shooting of Mahomen County Sheriff’s Deputy Christopher Dewey Feb. 18, 2009, in Mahnomen, Minn., could be heard talking about hearing a gunshot fired from Fairbanks’ trailer home.
The recording was done from about 9:10 a.m. - or about two hours after Fairbanks shot Dewey outside a house across the street - when several officers on the perimeter of the standoff testified they heard a gunshot from Fairbanks’ home.
On the recording, as jurors tilted their heads to hear, one officer could be heard saying he heard a gunshot come out of the south side of the home in front of him and then a bullet, apparently, hit a house behind where he was stationed during the standoff.
It’s part of the evidence the prosecution says proves Fairbanks shot toward law enforcement officers, elements of most of the 12 charges he faces.
The defense argued no evidence was found of a bullet hole or fragments near the house behind where the officer stood, nor any hole on the south side of Fairbanks’ house.
After listening to the recording, the jury returned to its deliberation room.
The jury deliberated three hours Wednesday night and less than an hour today before asking to hear the recording again, a recording it heard during the trial.
It might indicate where the jury is at in deciding the multiple charges against Fairbanks that involve a few key decisions for the five women and seven men on the jury.
The big one is whether Fairbanks, 34, committed first-degree murder of a peace officer when, he admits, he shot Dewey once in the head and twice in the torso about 7:04 a.m. Feb. 18, 2009, causing his death on Aug. 9, 2010.
The autopsy physician said Dewey died of complications from the gunshot wound to his head, which destroyed nearly a third of his brain.
State District Judge Jeff Remick told the jury that to find Fairbanks guilty of the charge, it must find that his “act had a substantial part in bringing about the death” of Dewey.
“It is not necessary that (Fairbanks’) act be the sole cause of death so long as (his) act starts a chain of events which results in or substantially contributes to the death.”
Based on state supreme court decisions, one as recent as Aug. 2, Remick said such a “chain of causation” . . “is not broken by any treatment or lack of treatment administered to (Dewey) by the doctors in this case.”
Remick told the jury that in deciding on first-degree murder, it also must decide whether Fairbanks had “an intent to kill,” Dewey; that is, whether he “acted with the purpose of causing death, or believed that the act would have that result.”
It’s not necessary for Fairbanks’ act to be premeditated in order for him to be guilty of first-degree murder, Remick said.
This charge carries a mandatory sentence of life in prison without parole.
If the jury finds Fairbanks not guilty of first-degree murder, it must consider the “lesser included charge,” added Wednesday at the defense’s request: second-degree murder by causing the death of Dewey, “without intent to effect the death,” while committing the felony of assaulting Dewey.
The sentence on this charge is “not more than 40 years in prison.”
The defense actually asked the jury to convict Fairbanks of this charge, saying he takes responsibility for shooting Dewey, but that he was too intoxicated to form the intent required in first-degree murder.
The prosecution, meanwhile, argued that firing three shots, one of them to the head, demonstrates the intent to kill and that Fairbanks was “not too drunk to think.”
If the jury finds Fairbanks guilty of the first-degree murder of Dewey, the remaining 11 lesser charges he faces might seem less than relevant, since he would be in prison for life.
But if the jury instead finds him guilty - or not guilty - of the second-degree murder charge, the list of charges alleging he assaulted law enforcement officers during the ensuing nine-hour standoff could become significant.
Fairbanks is charged with eight counts of first-degree assault on a peace officer, which allege he fired the same handgun multiple times from inside his house toward 12 officers from several agencies.
Each count carries a minimum mandatory sentence of 10 years in prison.
He also faces two counts of second-degree assault on two White Earth Indian Reservation conservation officers; because they are not sworn peace officers under the state definition, it’s a lesser charge.
No one was hit by the alleged gunshots. Several officers reported hearing three shots from Fairbanks’ trailer home within two hours of Dewey being shot; two about 8:20 a.m. and one about 9:10 a.m.
Others didn’t hear shots, or heard only one.
Evidence from inside the home indicated bullet holes and spent bullet fragments.
But the defense argues nearly all such gunshots were fired before Dewey was shot, while Fairbanks and his accomplice, Daniel Vernier, were drinking. Vernier testified Fairbanks shot multiple times in the two hours before Dewey was shot, including once very near Vernier.
But Vernier testified Fairbanks fired only one shot during the standoff when officers were in the area.
The defense argued there is little evidence that the gunshot was directed by Fairbanks toward any law enforcement officers, and may well have been the bullet that left a hole in the roof of Fairbanks’ home, just one of many drunken acts by Fairbanks that day. The defense also argued that Fairbanks’ intoxication got worse after he shot Dewey, because he and Vernier testified Fairbanks crushed about 15 prescription pain pills and “snorted” and “ate” them.
The prosecution argues that investigators’ crime-scene diagrams show the trajectory of several bullet holes in Fairbanks’ home show they went toward where officers were stationed during the standoff.
But simply firing the handgun at all, or even holding it, was a crime for Fairbanks, the prosecution argues. Convicted of three felonies 10 years ago, Fairbanks was not eligible to possess or use a firearm, and he is charged with that count.
Fairbanks also is charged with failing to assist Dewey after he was shot. The prosecution argues that if it had been an accidental shooting, Fairbanks would have helped Dewey.
He’s also charged with attempting to steal Dewey’s squad car after the shooting.
The jury began deliberating about 9 a.m. this morning after spending last night in a Crookston motel.