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Friday, September 6,2013

Troubled Waters, continued

By Cecelia Gilboy and Joel Dyer

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The jurors

The jurors in the Waters case faced a daunting challenge. They would only be allowed to hear part of the evidence. And the only witnesses were the two survivors, who told very different accounts of how blood was shed that October night.

It’s difficult to ever second-guess a jury. Jurors do incredibly hard work and most come to the right verdicts.

But the question remains: Why did this jury find reasonable doubt regarding murder, reasonable doubt regarding attempted murder, but no reasonable doubt regarding assault in the first degree?

After interviewing several of the jurors in this case, not one of them could articulate their decision as to why they removed reasonable doubt from the assault charge.

Statements that should have had no bearing on the situation made their way into the attempts at explanation.

One person talked about how her kids go to the Pearl Street Mall and how she’s afraid for them to be around homeless people. Another noted that Waters actually looked better after being in jail for two years than he did when he was on the street. Still another said that her decision was based on Giampino’s testimony, and then she said that she hadn’t believed a word Giampino had said.

The supposed kick in the face to Giampino by Waters, long after the fight had stopped and while Giampino was lying on the ground talking to 911, was another deciding factor for more than one juror. The prosecutor had repeatedly stressed the cruel nature of the kick during the trial.

But BW asked why they believed that the late-arriving kick story was real, considering that Giampino had told police that it occurred in the shed, and then that it occurred outside, and later changed his story to a slash instead of a kick. They didn’t recall having ever heard that the story had changed.

They should have. It could have changed the outcome for Waters.

Jurors also seemed confused about the assault charge. Some thought that the only assault Waters had committed was the late kick. They thought it wouldn’t carry much of a sentence, if any. But they should have known better.

The charge was using a deadly weapon to inflict serious injury, and it carried a minimum sentence of 10 years. The type of assault Waters was charged with was for the exact same actions he was taking that prompted the murder and attempted murder charges — charges the jury said might have been in self-defense.

Had all the jurors fully understood the assault charges, reasonable doubt might have been a given.

When asked if they would have still voted guilty had they known that Waters would be sentenced to 25 years for the assault charge, some said they would have changed their vote.

When asked if their guilty vote would have been different if they had known the things about Giampino and Rasnick that they didn’t get to hear, even more said they would have changed their vote.

It is admittedly unfair to retry a case after the fact with new information outside the boundaries of a courtroom. But Waters doesn’t seem to have another option.

Waters’ character

Waters isn’t like the other men in the shed that night. He doesn’t have a secret life that needs to be hidden from a jury.

Sure, he’s homeless, but it wasn’t always that way, and it isn’t because he has some hidden demon.

Contrast what BW found when people in the homeless community were interviewed about Waters with what was said previously about Rasnick and Giampino.

“I always found him [Waters] kind of quiet,” says Steve Thombleson, who began working for the Bridge House organization 13 years ago. “He’s not a guy who’s gonna start fights. … He was a good guy who was down on his luck.”

“Eddie was never, ever violent,” agrees Dwarf. “I didn’t even know he drank. If there was any kind of conflict, he’d just take off his guitar strap, get up, and walk away.”

“Every single night I knew him, between 8 and 8:30, he would call his kids,” LeSeur of The Bridge House says. “I mean, every, single, night. The only time I ever saw him get close to mad, it was because he’d lent someone his phone, and they didn’t come back ’til 8:15, so he only had a few minutes to talk to his kids.”

LeSuer says he was worried about Waters on Oct. 27, 2011. “I saw that Turtle had a bottle. I knew what he was like when he drank. I was like, ‘Eddie, what are you doing, hanging out with them?’” Nelson, of The Bridge House, remembers Waters’ determination to be there for daughter Rebekah’s birthday. “He was looking for a present for her,” Nelson recalls. “He was like, ‘I don’t care how much I have to busk on the mall, I have to see my daughter on her birthday.’” Police also interviewed more than 20 people in the homeless community about Waters. The responses from those who knew him were consistent.

Officer Jenny Paddock’s report states, “Those that know Waters … were all surprised to learn that Waters was the suspect.” They described Waters as a “gentleman,” “always a really nice guy,” “always in a good mood and helped everyone,” “polite,” “the nicest guy I’ve ever met” who would “give you the shirt off his back” and “wouldn’t hurt a fly.”

Several homeless people who knew Waters told police he had no drug or alcohol problems, had no problems with anyone. They also expressed that they did not believe Waters would attack anyone without good reason, like being “backed into a corner.”

Contrast what Waters’ family told BW about him with what Rasnick and Giampino’s families said about them.

Marsha and the kids live in Aurora, so while she and Waters were still working things out, he stayed in Boulder, where he had a regular sleeping spot by the creek.

On Oct. 28, 2011, Waters was going to play his guitar on the Pearl Street Mall just long enough to get the tip money he needed to take the bus back home to Marsha Mahnken and the kids.

“I was gonna ask him to stay,” Mahnken says. “I made a very big mistake divorcing the man that I will always love. ... We were meant to be together forever and I hurt him so much by divorcing him. He was the love of my life and will always be the man I love forever.”

Waters was one day away from being off of the street and back in his home. They were one day away from being a family again.

“The kids really miss him, especially his daughters,” says Donna Garcia, Mahnken’s mother, after a day of babysitting them. “The 11-year-old [Rebekah] is always talking about him. She’s always saying, ‘I miss my Poppa.’” Now Rebekah is 12. “They’re growing up fast,” Waters writes from prison. “Tomorrow, the 24th of August, is my daughter’s birthday. She’ll be 12, and again I can’t be there. … I’m missing my kids’ childhood.”

He didn’t want to miss any of it — even while he and Mahnken were having problems.

“He called every night to say good night to them,” Mahnken says.

The calls were heartbreaking. “He would say, I wish I was home,” says Rebekah, “and I would say I wished he was home too, and then we would both start crying.”

“He would always call to say good night and how he loves us and misses us,” says 15-year-old Matthew.

On Oct. 27, 2011, Eddie Waters just wanted a warm place to sleep on his last night on the street. He wanted to get up and catch the bus home to his wife and kids and go trick-or-treating.

Waters didn’t have a motive for attacking Rasnick and Giampino. If anything, he had an anti-motive for attacking them.

He just wanted to go home, and he never made it.

But hopefully that will change as his case moves through the appeals process.

Respond: letters@boulderweekly.com

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