A LAW DIRTY HARRY WOULD LOVEIT COULD MAKE IT EASIER FOR EVERYONE TO GET AWAY WITH MURDER
Roberta had seen a lawyer about a divorce before this, but had never followed through on it. "I loved David," Roberta said later. "He was basically a nice man."
ROBERTA KORZEP has remained steadfast on a central issue of David's violent death: "That's the maddest I had ever seen him. I thought he was going to try and strangle me again and probably kill me."
The fatal clash started minutes after the Korzeps got home from their Valentine's Day night out. Roberta's version of what happened:
She had undressed to her underwear and was ready for bed when David started in on her. He swore at her, grabbed her by the hair and tried to pull her toward the bed.
"I just thought, `Here we go again,'" she recalled. "This time, I didn't even know why he was mad."
Roberta left the room and David slammed the door behind her. She reopened it and slammed it shut again, saying she could play that game, too. The door-slamming contest went on once or twice more. Roberta then walked to the kitchen to eat an orange and calm down.
David suddenly appeared in the kitchen. His eyes were bulging and his jaw was jutting out. "He started calling me names again and then he hit me right there," Roberta said, pointing to her cheek. "We have this little knife thing, and I just grabbed it and I just hit him with it."
Roberta had stabbed David in the abdomen. David retreated toward the bedroom. She followed after him, knife still in hand, after she noticed a spot of blood on his shirt.
(This, prosecutors argue, was not what a frightened person would do.)
"I followed him to see if I had stabbed him or something," Roberta said. "It happened so fast. I didn't know whether I had or not."
David then told Roberta, "You really think you're funny now, don't you?" He stepped toward her. She ran out of the house. Still in her underwear, she knocked frantically on her neighbor Mary Gooding's door. Gooding saw a hysterical woman holding a knife.
"Mary," Roberta told her, "you have to go over and help me because David is crazy again and he is hitting me, and I think I stabbed him."
Mary looked at the knife, which wasn't bloody, and said, "No, you probably didn't." She suggested they call the police, but Roberta said no. "She didn't want to do that because David was a big city official and he would have been really mad..."
Roberta called David's friend, Jerry Ambrose, the president of the Yuma Kiwanis Club. Not knowing the urgency of the situation, Jerry and his wife took their time coming over.
It was past 2 a.m. and almost an hour since the stabbing. Roberta, Mary Gooding and the Ambroses entered the Korzeps' home, not knowing what to expect.
David Korzep was facedown in the hall between the kitchen and the master bedroom. He was unconscious and barely breathing. Roberta cradled David's head in her arms until the Yuma police showed up. "I was telling him to wake up," Roberta said. "He was cold and white-looking."
David Korzep's stab wound had lacerated his aorta and vena cava, the two main blood vessels. His spleen had been ruptured. He was a dead man.
ARIZONANS OF ALL stripes endorse the concept of shooting first and asking questions later when protecting self and property.
But that hasn't always been allowed by law. As recently as the Sixties, the right to use deadly force against an unarmed trespasser was not permitted in Arizona. In a 1967 Sierra Vista murder case, for instance, the court upheld the conviction of a man who shot to death an intruder-his girlfriend's ex-husband.
"The statute does not give a person carte blanche to shoot another simply because that other person is committing an act which might be considered a felony," the high court wrote. "Rather, it is necessary that the act reasonably create a fear of great bodily injury."
In the mid-Seventies, however, the Arizona Criminal Code Commission recommended a new crime-justification law to complement the existing self-defense laws. The commission was not recommending an all-encompassing Make My Day law. It wanted to allow deadly force to prevent only a few "imminent" life-threatening crimes, such as murder.
But the Arizona State Legislature in 1977 and succeeding years went well beyond that. The lawmakers deleted the word "imminent" from the proposed law, then tacked on a new set of crimes that would justify the use of deadly force. (Besides murder, the crimes include armed robbery, arson of an occupied building, burglary, kidnaping, manslaughter, aggravated assault, child molestation, rape and sexual conduct with a minor.)
Many of the crimes had little or nothing to do with the threat to a person's life-which had been the original intention of the commission-but the law sailed through the legislature with hardly a peep of protest.
In 1983 state lawmakers went even further. Under pressure from citizens angry and frightened about brazen residential burglaries, the legislators enacted another major change in the Make My Day law.
The legislature redefined it as a home-protection law. It declared, "A person's home, its contents and the residents therein shall be totally respected and protected in Arizona..."
It's ironic that a crime-prevention statute honed by conservative law-and-order types has brought them into conflict with Arizona's prosecutors. "I think in their zeal to do something good," says Korzep-case prosecutor Phil Hall, "the legislature never tried to reconcile the self-defense law with the crime-prevention law. But it creates some real problems for prosecutors."
Under self-defense, a person can kill only when it is "immediately necessary" to protect himself or a third person from being killed.
Under the Make My Day law, however, Judge Gerber says, "A parent apparently may kill one of the parties to teenage sexual experimentation in the name of preventing the commission of the crime"-in this case, sexual conduct with a minor.
The judge concedes such a nightmare case hasn't seen its way to the Court of Appeals. "But it will," he predicts. "We get all these bizarre things sooner or later."
Gerber is in a unique position to analyze all this: He was on the Arizona Criminal Code Commission when it crafted the original crime-prevention law. And Gerber authored the opinion, issued last Christmas Eve, that returned the Korzep case to square one. He and his two colleagues didn't necessarily want to do that: They were just following the law, the Make My Day law.
PROSECUTOR PHIL HALL had some serious decisions to make before taking the Roberta Korzep case to a grand jury in 1987.
"Her lawyer wanted me to instruct the grand jury on the crime-prevention law," says Hall, "but I didn't think it applied." He acknowledges he had given the instruction to grand juries in past cases "when it was a close call and no indictment might be the proper disposition."
But in Roberta Korzep's case, Hall instructed the grand jury only on Arizona's self-defense laws, which are much more difficult for defendants to use for justification than the Make My Day law.
"Self-defense justifies the threat or use of physical force only while the apparent danger continues," Hall told the panel. "The right to use physical force ends when the apparent danger ends."
The first Korzep grand jury was fraught with woes unrelated to the Make My Day issue. The main problem was hearsay.
A Yuma police detective testified that a pathologist had concluded Roberta's version of the fatal events was a lie, because David would have collapsed a few steps after Roberta stabbed him.
Through the detective, the jury also heard the pathologist's opinion that Roberta possibly had ruptured David's spleen by kicking him after she stabbed him.
The grand jury indicted Roberta Korzep on a charge of second-degree murder. Before trial, however, her attorney successfully argued to the Court of Appeals that the panel shouldn't have been allowed to hear the detective's hearsay testimony. (The pathologist backed off the kicking-the-spleen theory at Roberta's trial, and hedged on the timing of David's collapse.)
A second grand jury considered the case anew in 1988, and indicted Roberta on manslaughter, a less-serious crime than second-degree murder, but one that may carry a mandatory prison term.
After a weeklong trial in May 1988, the 12-person trial jury heard closing arguments. Roberta's attorney, Mike Donovan, implored the panel to try to "crawl inside" Roberta's whole experience with David, not just the moment she stabbed him. Prosecutor Phil Hall countered that Roberta had stabbed David simply because she was angry at him.
The attorneys' behind-the-scenes debate with Judge Keddie about jury instructions was as important in this case as their closing arguments. The question at hand was, would the judge allow the jury to consider the Make My Day law, the much tamer self-defense laws? Or both?
Mike Donovan argued that Roberta had stabbed her husband to stop an aggravated assault. That, he said, meant an instruction on the Make My Day law was proper. Phil Hall naturally disagreed, saying the panel should be allowed to consider Roberta Korzep's guilt or innocence only under the self-defense laws.
Judge Keddie agreed with Donovan that there was enough evidence for a jury to believe an aggravated assault had been about to happen. But the judge refused to give the instruction: "I think [it] is the prevention of crimes against others, rather than the individual."
The jury then took just 45 minutes to convict Roberta Korzep of manslaughter.
"We didn't have much direction to go on," says jury foreman Jim Hall. "Based on the self-defense law we were read, we felt we had no choice but to convict her."
In 1989 the Arizona Court of Appeals upheld her conviction, interpreting the Make My Day law yet another way. The court, led by Judge Joe Contreras, somehow concluded the law didn't apply to Roberta because she lived in the same house as David.
But the Arizona Supreme Court in October 1990 unanimously overturned Roberta Korzep's conviction.
"Judge Keddie specifically found sufficient evidence for the jury to believe that David was about to commit aggravated assault upon Roberta," the high court said. "A criminal defendant is entitled to have the jury instructed on self-defense when there is the slightest evidence of justification for the defensive act. This standard also applies to the [crime-prevention] defense."
The Supreme Court shipped the Korzep case back to Yuma, where defense attorney Mike Donovan asked Judge Keddie last year to dismiss it or order a grand jury to reconsider it. The judge refused both requests, and Donovan again took the matter to another division of the Court of Appeals.
Last Christmas Eve, that appellate court issued the case's latest ruling, taking the rare step of remanding the case to the Yuma County grand jury. It hasn't been determined whether prosecutors will have to instruct the panel on both the law of self-defense and the Make My Day law.
Judge Gerber, who wrote the appellate court's opinion, extended his sympathy "to any trial judge who may eventually need to compose a jury instruction" on the Make My Day law.
ROBERTA KORZEP is remarried and living a new life while her landmark case bounces around the courts. No one, not even the prosecutor who is fighting to bring her back to trial, sees her as a threat to society.
And last year, the Arizona State Legislature added another after-the-fact declaration of purpose to its crime- prevention law.
"[We] are alarmed by the increasing number of injuries and fatalities caused to victims of domestic violence," it read in part. "A person should be entitled to safe and peaceful enjoyment within the home, even from residents of the same household."
That's music to the ears of Mike Donovan, Roberta Korzep's attorney:
"Why this statute has been so dormant without being demanded by defense lawyers, especially in spousal-abuse cases, is a mystery to me.
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