Slowly, so very slowly, Kim Donaldson awkwardly points out the letters on her homemade alphabet board.
"I.d.o.n.t.k.n.o.w.w.h.y.I. c.a.n.t.g.o.t.o.c.o.u.r.t."
Her mother stands over her, shoving on her reading glasses to follow the clumsy hand movements of her 22-year-old daughter. "This time you will, dear, this time you will."
It's the kind of promise a mother will make, even knowing it might never happen. But June Sianez makes her daughter lots of promises these days. She promises to always have a home for Kim when she's not in a rehabilitation center. She promises to raise Kim's three-year-old darling of a daughter. She promises to fight the insurance company to cover the astronomical medical bills. But most of all, she promises she'll never stop helping Kim get some measure of justice.
And Kim knows exactly what justice she wants. It's one of the few things she knows for sure. She doesn't know if she'll ever walk on her own again. She doesn't know if she'll ever feed herself without help again. She doesn't know if she'll ever be able to lift her daughter again.
Her gnarled hand points out one letter at a time on the cardboard sheet with oversize letters of the alphabet: "I.w.a.n.t.h.i.m.i.n.j.a.i.l."
In a weak moment--and June Sianez doesn't allow herself many of those, hasn't for two years--this mother who watches over her brain-damaged daughter admits all this would be far easier to take if he had just paid for destroying her beautiful girl.
"He got up in court and said he loved Kim and would never hurt her," Mrs. Sianez says. From the nearby couch, Kim makes grunting noises that force everyone's attention. As painful as it is to watch, it would be insulting to look away as she crooks her head and concentrates on forcing out the words she thinks are so important the alphabet board won't do. She wants to say this out loud.
Few understand the painful sounds that pass for speech from Kim Donaldson these days. It takes so terribly long for her to will her vocal chords to make sounds. But when she finally spits these words out, there's enough strength behind them that even a visitor gets it.
"THAT LIAR." DAVID CARRIZOZA IS SOMEWHERE in the army these days. For all Kim's attorneys know, he could be in Saudi Arabia. They still haven't been able to find him, but they've got his army post office number now and that means it will only be a matter of time before they track him down. When they do, they'll finally serve the legal papers they filed in April in the case of Kim Lorraine Donaldson v. David A. Carrizoza. It's a civil case that seeks not less than $3 million for her "special and general damages" and not less than $3 million in punitive damages.
The suit charges that on July 17, 1988, David Carrizoza--live-in boyfriend to Kim and father of her child--"intentionally and with malice assaulted and beat the plaintiff until she was senseless. As a direct result of the assault and beating, the plaintiff was rendered comatose and suffered serious and extensive injuries, including serious brain injuries which resulted in her almost total disability.
"As a further direct result . . . the plaintiff has incurred substantial medical expenses and will continue to incur substantial medical expenses for the balance of her life.
"As a further direct result, the plaintiff has incurred a substantial loss of income and will continue to lose income for the foreseeable future.
"As a further result, the plaintiff has incurred substantial pain, suffering, emotional upset and other intangible losses and will continue to incur those . . . for the foreseeable future."
Attorney Charles Rausch knows the first question everyone will ask is the obvious: What the hell is this issue doing in a civil case? Where's the county attorney to file criminal charges against this guy? And then he'll tell you the pitiful story and will explain that this is the only avenue left for Kim.
David Carrizoza was arrested.
He was charged with aggravated assault and faced the possibility of five to fifteen years in prison.
He went to trial.
In March 1989, David Carrizoza was found innocent.
A juror later told the press, "We all felt that, yes, he was the one who actually beat her up. But due to--I have to say--the incompetence of the police, getting the evidence and everything, we couldn't pin him down."
Avondale police officers had taken the stand to recount how David claimed Kim arrived at their trailer door that night after a dance, beaten to a pulp. He told them he'd carried her to the bedroom and then gone for help. They testified they saw scratches and blood on Carrizoza and immediately concluded he was lying. But they never tape-recorded his statements and never photographed his scratches. Nor did they take photos of the entrance to the trailer, which surely would have been covered in blood if Kim had entered in a condition so horrible she was near death.
Officers recounted that blood was splattered on three walls and the ceiling inside the small Avondale trailer Kim and David shared. But the small crime- scene pictures didn't clearly show the blood and the police hadn't taken the actual paneling or ceiling tiles. Blowups of the pictures that more clearly showed the blood weren't even made until after the jury was already deliberating. Even worse, police hadn't tested several of the splatters to prove it was Kim's blood--or if it was blood at all.
From the stand, the jury heard about the wooden coffee table. Police testified they were immediately suspicious this table had been used as a weapon to bash in Kim's head. They noted it had obviously been washed off before they'd arrived that night. There were still pools of blood clearly visible around the table, they testified. But they didn't take the table as evidence and they never had it tested to see if bits of Kim's skin and bone were embedded in its rough surface.
Nobody got on the stand as an expert in blood splatters to testify how the trailer could have been in such a state.
Nobody got on the stand to explain the vicious bites eventually found on Kim's back and buttocks--bites never tested to see if they were made by Carrizoza or not.
Nobody got on the stand to call Carrizoza a liar for testifying that he never had hit Kim during their four-year relationship. In fact, to the family's dismay, prosecutor Richard Baldwin agreed with Carrizoza's defense attorney that any prior incidents would not be brought up.
Nobody stressed how serious and permanent Kim's injuries were, leaving the jury, as the Avondale newspaper put it, "to consider this a relatively common sense of alleged spouse abuse, at worst. For all they knew, Ms. Donaldson might be home washing dishes as they deliberated."
Nobody got on the stand to tell what twenty-year-old Kim Donaldson was like before that night. How she was the vivacious baby of the family of six who loved dancing and once wanted to be a model, or that she wore too much eye make-up to suit her mother and never was much of a cook. Nobody mentioned she celebrated her coming-of-age birthday in a hospital bed, barely aware that her family was trying to make it a celebration.
The jury never heard a word from Kim. They never laid their eyes on her. The prosecutor told the court that, based on a November examination by a doctor, Kim was unable to communicate and couldn't identify a picture of David Carrizoza. The court never heard that a month after that examination, Kim spoke her first clumsy words, and by the time the trial started, was using a pointer board to spell out words--a communication device never offered by the prosecutor's doctor. In fact, Kim's progress was "remarkable" by the time of trial, acccording to her therapists. And she explains now she couldn't identify the picture or much of anything else because she had such trouble seeing.
The case was long over and legally resolved before anyone heard Kim Donaldson say--either in her mumbled voice or in the tedious process of her pointer board--that she remembers two things clearly that night: She remembers walking into her trailer unharmed, and she remembers seeing a portrait of her daughter hanging on the trailer wall just before she blacked out.
"I HAD A WEAK CASE," admits Albert Flores, who successfully defended Carrizoza against the charges. "I had to do what I could. I had to be a little more flamboyant, I had to be louder, I had to be more persuasive. You definitely could walk away thinking David probably did it, but under our system of justice, that's not sufficient. The lesson here is if you want to prosecute someone, you should have evidence to convince a jury beyond a reasonable doubt."
Flores knows why he won the case: "I think the prosecutor did the best he could with what he had to work with. But, as I portrayed at the trial, I thought the evidence was botched. There could have been a lot more done on the part of the police. They were convinced they had a slam-dunk case. David Carrizoza was their only suspect. They ruled out everyone else. I think they were myopic. I don't think they did a half-assed job. I think they did what they thought they had to do to convict someone they thought was guilty, but they ruled everything else out. I don't think you should ever do that in an investigation."
Flores was hired immediately by the Carrizoza family as David sat in the county jail facing murder charges if, as everyone expected, Kim died. Somehow, to the astonishment of her doctors, she hung on. Somehow, to the amazement of every therapist who's come to know her over the past two years, she's relearning the things she first learned when she was her toddler's age.
Flores admits he knew he had an uphill battle in front of him. How do you defend someone who appears to be so obviously guilty? But from the very first day he started his own investigation, Flores knew police were so overconfident, they were subverting their own case.
"I told the family I expected we'd have to hire a blood-splatter expert to counter the prosecutor's expert," he remembers. "Experts can tell you from blood splatters the force and velocity [of flying blood]. I told them it would cost from $5,000 to $7,000. But I went out to the scene right away and there was nothing that showed much of anything. For the kind of beating she took, I didn't think there was enough splatter evidence to unequivocally say the beating took place in that room. Then I went to the police and talked to the investigating officer and asked, `What do you have on splatter evidence?' and he told me they didn't have any. He said they had a beach ball with blood on it, but it appeared the ball had been moved and could have rolled into blood. So I called David's family and told him to forget it, we didn't need a splatter expert."
The day before the trial began, the police investigator told prosecutor Dick Baldwin he wanted to submit the beach ball as evidence and claimed he was expert enough to testify about the splatters on the ball. Flores immediately objected that this evidence had not been produced earlier and the officer hardly qualified as an expert. "The judge rightfully excluded that evidence," Flores says. "The rules of evidence say you disclose what you've got--you don't have a trial by ambush."
And then Flores did what any good defense attorney would do. He got up in front of the jury in his closing arguments and asked them why the state never bothered to call a splatter expert to explain "the most important piece of evidence that they could possibly have gathered to show a struggle of violent beating inside a trailer."
While he was at the trailer, Flores and his own private investigator--a former cop--studied the driveway. They photographed what they saw. They showed the photos to the jury. In the dirt was something that could have been dried blood. But police said they'd seen no blood on the driveway or entrance to the trailer the night of the attack. If there was blood now, they tried to argue, somebody had to put it there. "Why didn't you take a photograph of the driveway?" Flores asked during the trial. "Because there was nothing there," the officer responded. Flores posed a hypothetical: Say you're investigating a traffic accident and the guy says he didn't stop because there was no stop sign there. And you go out and sure enough, there's no stop sign. Wouldn't you take a photo to prove there was no stop sign? The officer tried to plead "that's different," but couldn't explain to the jury, as Flores insisted he do, how that was different.
Nor can Flores understand why police didn't test the blood they found on the ceiling tiles and on the drapes. "Why didn't they just cut the curtain or take the tiles?" he still wonders. Without sampling the blood there was no way of saying whose it was or how long it had been there. There was no way of tying that blood to this crime. Flores succeeded in keeping pictures of the ceiling and drapes away from the jury.
He also showed the jury that police reports on the incident weren't accurate. A crucial piece of testimony was expected from a neighbor in the trailer park, Jerry Miles. Police said Miles told them that night that he'd seen Kim get out of a car and walk into the trailer and later heard pounding and grunting noises from inside the trailer. But on the stand, Miles said he'd never seen Kim; hehad only heard a car door slam. Flores said he talked to Miles just days after the attack. "He told me he'd never told police he'd seen Kim that night," Flores recounts.
Flores still can't understand why the prosecutor never had the bite marks tested. "That's a good question. It's one of the very first things I would have done," he says. And he made a major point of that to the jury: "Ladies and gentlemen, we are no longer in the Dark Ages. Why weren't those bite marks processed? Think about it. Just a thought, but the thought remains that there was an important, unequivocal piece of evidence, if properly processed, that could have, one way or the other, dispelled the notion or confirmed the notion . . . that this man committed the crime. It wasn't done, period."
Again and again, the defense attorney punched holes in the prosecutor's case.
He so successfully bludgeoned the defense that even some of the seemingly absurd defense arguments held sway. For instance, Flores cast doubt on the veracity of Carol Bufler, who said--and had witnesses backing her up--that she drove Kim home, unharmed, just an hour before paramedics were called at 3:30 a.m. Flores hinted this woman might have been responsible for the gruesome damage done to Kim. (Baldwin tried to ward off this suspicion while Bufler was on the stand. He asked her directly if she ever hit Kim. The question was so ridiculous, Carol repeated it in astonishment and then flatly answered, "No.")
As Kim's civil attorney Charles Rausch puts it, "If I were the defense attorney, I very well may have raised that defense, but it was something that shouldn't have been believed. I think the prosecutor just assumed the jury wouldn't buy that," and didn't vigorously counter it.
"IT'S TOUGH TO MAKE A CASE when you don't have an eyewitness," says Paul Ahler, the supervisor of the criminal division in the county attorney's office. "Obviously, the state felt this man was guilty and we felt there was sufficient evidence to believe he did this to her. But whenever you don't have an eyewitness, there will be cases when you do everything you can and come up short."
Ahler freely admits his office was not satisfied with the evidence gathered by the Avondale police. "Unless you've got a prosecutor at the scene, you rely on the police or the investigating agency," he explains. "But the photographs didn't really depict the blood officers indicated was on the walls and the curtains. And some blood samples weren't taken. We got in evidence about blood on the walls and drapes and ceiling, but it would have been more convincing if we had photos depicting the blood more clearly."
Attorney Dianne Post, who heads the Arizona Coalition Against Domestic Violence, isn't at all satisfied with those answers. "The county attorney's office has its own investigating arm. If it's not satisfied with the evidence, it can demand police go back and do a better job. When the police reports and the evidence came in, the county attorney should have seen it wasn't enough. They didn't. This wasn't a case where an attorney pulled a file and walked into the courtroom."
Given those problems, it was obvious the state had to carefully tie all the circumstantial evidence neatly together to show that Carrizoza's story didn't hold up, Post notes. She acknowledges it's not the easiest job in the world, but it's also not the hardest. Lots of cases are won by showing beyond a reasonable doubt that no other explanation exists. And this case should have been a piece of cake, considering the overwhelming circumstantial evidence available, she adds. But as she reviews the trial transcripts, she keeps shaking her head at the fragmented and unconvincing picture Baldwin tried to paint. Avondale's West Valley View, which covered the trial, editorialized that Baldwin had "made a relatively lackadaisical presentation" of the evidence available. (Baldwin did not respond to requests by New Times for an interview.)
Post, who has been helping Kim and her family in their continuing legal battles, says there's a scary lesson in this case. "The county attorney's office desperately needs training and information on how to prosecute domestic violence cases," she says. Post has never been impressed with Maricopa County's approach to these cases. A couple of years ago, when then-County Attorney Tom Collins announced he wasn't going to prosecute domestic violence cases anymore, Post sued the county. As part of the settlement of the lawsuit, the county promised to review its procedures on handling these cases. Myrna Parker, chief assistant to the county attorney, says those new procedures are in their final review stage and among the requirements is new training for prosecutors in domestic violence.
As unprepared and uncompelling as the prosecution was, the exact opposite was happening on the other side of the courtroom. Defense attorney Flores has gotten nothing but high marks for his vigorous and polished representation of David Carrizoza.
There's an important thing Flores wants people to remember about David Carrizoza: "David never wavered in saying he didn't do it. At one point, the county offered a deal that he'd plead guilty and get seven years' flat time. He was looking at the possibility of fifteen years [if convicted]. But he said no, because he didn't do it."
TWO QUESTIONS ARE ALWAYS asked whenever anyone examines the case against David Carrizoza: Why didn't the county wait for trial until Kim was able to testify and why didn't it present witnesses to try to show David had previously been violent toward Kim?
"There's a seven-year statute of limitations on this crime," Post notes. "They knew the police had done a lousy job collecting evidence. They knew they needed an eyewitness. The doctors said Kim was improving so quickly. Why didn't they wait? David wasn't going anywhere."
Attorney Rausch says he's "especially critical" of this "rush to a conclusion: They didn't have to charge him now and certainly didn't have to rush to court."
Ahler notes that although his office had up to seven years to file charges against Carrizoza, once the charges were filed, the "speedy trial" rule kicked in and that requires the trial begin within four months. "We had gotten three continuances in hopes her condition would improve," Ahler says. "But when the doctors were unable to tell us she'd have a significant improvement and with her family pushing for a trial, we decided to go ahead." But Ahler acknowledges there was another alternative: Dismiss the charges without prejudice, meaning they could be refiled when Kim was able to testify. But that option was rejected. He says the county thought it had enough to win the case.
"The prosecutor wanted her to testify; my client wanted her to testify," Flores notes. "We didn't oppose the continuances because David said he hadn't done this to her and when Kim could testify, she'd say that. Her therapists and doctors said they did not believe she was mentally competent to testify. The prosecutor and I went down three times to see her. The last time we went because we heard rumblings that she was saying, `David did it.' Sure enough, that's what she told us. But by then, her family had been with her constantly and I wasn't sure what they'd told her. So I asked her some questions. I asked her who David was and she couldn't tell me. I showed her some pictures, including a picture of David, and she couldn't identify anyone. She had only a faint recollection of her daughter. No court in the land would have let her testify. Even today, a defense attorney could make a good case that she has no recollection of what happened. What she says now is not remembered but something that is just ingrained."
Ahler agrees that was a basic problem at the time of the trial and remained a problem as the county sought other ways to punish David Carrizoza. Their one hope, Ahler reveals, was that when Kim could finally testify, the county could show that Carrizoza lied when he got on the stand and swore he didn't beat her. "After the acquittal, we talked to Kim a number of times," Ahler recalls. "We had additional tests done. We hired head-trauma experts to see if we could possibly try him on a perjury charge. But the only way to make additional charges was to have her testify. And our expert said there was no way he could give an expert opinion that she could have reliable recall [of the beating]. I'm not sure a judge would even let us put her on the stand. I'm sure a defense attorney would have immediately challenged her competency."
Kim admits today that she has no memory of the actual attack. Like a smashed tape recorder, her mind no longer plays the images of being struck. But the pieces she does remember leave her with the inescapable conclusion that the man she loved left her in this condition.
She remembers coming home.
She remembers her daughter's portrait.
Then everything went blank. She didn't come out of her coma for four months.
"At first I didn't know," she says now, pointing out the letters. She verbally finishes the rest. "Now. I. Know."
Kim's family knew for a long time that violence was part of her life. They knew their daughter sometimes had to wear sunglasses to work to cover a black eye. More than once, she arrived home in the middle of the night, seeking shelter. "David always came after her and convinced her to come back," recalls Kim's sister Denise. As Kim's mom tells these stories--noting the family once tried to get Kim to move out of state to get away from David--Kim interrupts with a commanding grunt. She uses one gnarled hand to make a hump over her stomach as everyone in the room asks in unison if she means he hit her when she was pregnant. Kim nods vigorously.
Kim's brother Keith was there one night when he says David hit Kim. Both Kim's mother and sister insist they told prosecutor Baldwin all about these previous displays of violence. "He wasn't interested," Sianez claims. "Before the trial even started, he agreed with David's attorney not to let any evidence on previous attacks into evidence. Can you believe that?" Flores doesn't see the "deal" as any sinister plot, complaining, "That's another bad rap Baldwin has gotten over this case." As Flores explains, "When I took this case, I inquired about any previous record of domestic violence. There were no police reports. I did make a motion on `let's keep out any prior acts' and Dick [Baldwin] said, `We don't have any.' The only time we heard about previous acts was after David Carrizoza testified. One of Kim's sisters walked into the hallway and started screaming at Dick that David had hit Kim one time before that. She said their brother was present. The sister said the brother wanted to testify, but he'd been sitting through the whole trial and the rules of evidence don't allow [him to testify at that point]. The prosecutor gave me no advance notice of any prior acts, so they couldn't introduce any evidence on it." (The rules of evidence say both sides must disclose all information they've gathered, both pro and con.)
June Sianez says the only way the prosecutor wouldn't know about the prior assault was if he wasn't listening to the family. "Every time I tried to bring up facts about David, Baldwin told me he had made an agreement with Flores [not to raise previous acts]," recalls sister Denise. "I look at him, `Since when can you make an agreement like that?' It made me blow up. I told him, `You had no right because that is crucial.'"
Denise says she told Baldwin that Kim had told her about a beating. June Sianez says her daughter acknowledged David hit her. But neither of them could testify because they hadn't witnessed anything, they only had "hearsay" from Kim. But Keith had seen a blow. Could one previous blow have been enough to make the jury believe David Carrizoza wascapable of an unmerciful beating?
"Considering what he said on the stand, I think it was important," Kim's mother says.
David Carrizoza acknowledged on the stand that he and Kim had fought during their four-year relationship. The ordinary stuff for two kids who don't have much. They lived off her salary from clerking at the Walgreen's across the street from the government-subsidized trailer they shared. He picked up a few bucks now and then umpiring softball games for the county parks department. He admitted sometimes he was drunk during their arguments; sometimes she was; sometimes they both were. But when he was asked if he ever struck Kim, his answer was plain: "No, I never hit her." When arguments got heated, he testified, "One of us would walk out of the house and end up going to a relative's." He normally went to his mom's house; Kim often went to one of her sisters.
Three more times he was asked by his attorney if he ever struck Kim. Each time he denied hitting her. Ever.
As he told the story of that night, he and Kim bowled a couple games and then went to a dance at St. John Vianney church in Goodyear, where they danced and drank enough that he considered them both drunk. He went outside at one point and ran into an old friend, Carol Bufler. Kim apparently thought he was flirting with the woman. "Kim came running. She knocked Carol down," David testified. "I ended up pulling Kim away . . . and tried to talk to her . . . I tried to explain to her what was going on, but she was very angry . . . very jealous. She got angry at me and went after me, striking me, hitting me a couple times in my face. So I grabbed her arms to hold her so she wouldn't hit me no more and tell her to calm down."
Carrizoza said he walked home, fell asleep on the bed and was awakened by a pounding noise. "I walked into the living room . . . and found Kim lying on the floor. She was lying face first by the couch and the coffee table. I moved aside the coffee table and turned Kim over. I saw lots of blood and I saw Kim beaten up. I screamed out to her, `Kim, wake up. Who did this to you?' I kept screaming that to her. She was just moaning and groaning." (Police testified that the night of the beating, Carrizoza told them he was sleeping on the couch and opened the front door after hearing the pounding to find Kim on the stoop. He told them he'd immediately carried her to the bedroom. At trial, Carrizoza denied ever telling the police that story.)
Carrizoza testified he ran for a tumbler of water and poured it on her as she slumped between the couch and the coffee table, hoping the water would revive her. He got a second glass of water. Then he took her into the bathroom and poured more water on her. Then he carried her to the bedroom and tried to get her to drink from a tumbler. (Police say the night of the beating, they found Kim in the bedroom. She and the mattress underneath her were drenched. They said Carrizoza suggested she got wet walking home through an irrigated field. When pressed, he said he'd poured three glasses of water on her while she lay in bed. He had no explanation for the wet coffee table in the living room, which police said looked as though someone had tried to wash it off.)
Carrizoza testified that he realized he had to get help and ran to a neighbor's house to use the phone.
The first person David called was his mother. "She was always there to help us and I knew I needed to get some help," he testified. "I told her I found Kim beaten up. She should get over here and help me."
The neighbor testified that he looked at Carrizoza and inquired, "Don't you want to call the police? Don't you want to call somebody that can help?" He remembers Carrizoza answering, "Oh, yeah. Maybe I should."
Baldwin's cross-examination of David Carrizoza is nothing to brag about. He asked about some of the inconsistencies between his testimony and police reports, but not all of them. And the inconsistencies were considerable. Virtually everything David Carrizoza told police officers that night--and two officers made out reports on what he had said--was different from what he testified on the stand.
Baldwin stressed that to the jury in his closing arguments: "The interesting thing . . . is he contradicts the police officers at every important turn. Where was he standing? What happened inside? How did she get wet? Every important point. The police officers are wrong. He never said that. Well, can you see Officer Taylor writing his report? `Well, let's see, what shall I say first? That sounds good. I'll put that down. Then I'll come into court and testify that's what he told me.' That's not the way it happened, ladies and gentlemen. Officer Taylor got it right. Mr. Carrizoza has had the benefit of a certain amount of time and the benefit of hearing all of the witnesses they have in this case . . . If you take these circumstances . . . there is only one conclusion left, that David Carrizoza brutally assaulted Kim Donaldson in the trailer and has concocted this story to escape responsibility. Don't let him do that."
But such pleas couldn't overcome the jury's dismay over the flimsy evidence. Nowhere was Baldwin's lack of evidence more apparent than in his few questions about the coffee table.
"Did you wipe off the coffee table in the living room?" he asked. "No, sir," Carrizoza answered. "Never touched it?" "I just pushed it to the side." "Never took any water and cleaned it up that night?" "No."
But Baldwin couldn't prove the table had been dripping wet that night because there were no photos. Baldwin couldn't prove it was the possible weapon used to bash Kim's head because it had never been confiscated as evidence. In fact, Baldwin well knew that the coffee table had been taken away, not by police, but by David Carrizoza's mother. While Kim still lay in a coma, David's mother filed a civil claim demanding all the contents of the trailer. June Sianez couldn't have cared less at that moment about who owned what in the trailer where her daughter paid the rent. She didn't need the hassle of David's mother going into court for the pitiful few belongings the two had. She gave back everything. Including the coffee table.
Denise remembers warning her mother that the coffee table might be needed as evidence. June Sianez thought if the police needed the table, they'd have taken it long ago. After all, she knew her other daughters were constantly calling the police to be sure they'd collected all the evidence they needed. Later she'd remember how many times the girls were assured that the police had the case sewn up. "All I was worried about in those days was Kim. We didn't think she was going to live. I said, `Just give her everything and be done with it.'"
But police reports show that officers suspected the table had been used in the beating from the first moments they were inside the trailer. "Upon entering the living room with Mr. Carrizoza, I observed several items knocked over and out of place," Officer Bruce Taylor wrote in his report that night. "I also observed a very large bloodstain on the carpet in the northwest corner of the living room between a couch and a large, round coffee table. It was also observed by this officer that the surface of the coffee table was wet, as if it had just been washed."
Detective John Tauscher arrived on the scene soon after Kim was air-evac'd to Saint Joseph's Hospital. His report from that night says the first thing of importance he saw was "a large pool of blood on the carpeting [by the coffee table], and there were also indications that the coffee table had blood splatter and had been attempted to be wiped off by persons unknown." He noticed the living room carpet was "extremely wet" and it appeared "someone had attempted to clean stains of some type off the carpeting. In the wet area of the carpeting in the living room, there were still areas pinkish in color, indicating that there may have been pools of blood in those areas." He also saw "blood splatter clearly visible on three of the walls" of the living room.
But time and again, those police reports were challenged by Flores because the supporting evidence to back them up--samples, photographs, lab reports, the coffee table--were either unconvincing or absent altogether.
There was one other crucial point missing from the prosecution because the coffee table was overlooked. Since police had produced no "weapon," then it was logical to suggest somebody had pummeled Kim with fists, Flores argued. And David Carrizoza's fists weren't swelled and bloody that night. Ergo, he couldn't possibly have done this.
The point was so artfully made that Flores succeeded in diverting attention from a pivotal prosecution witness. Dr. Andrew Shetter of Barrow Neurological Institute testified that Kim could not have walked after the beating she received. Dr. Shetter noted Kim's head was so bashed, the brain's stem was damaged. When she arrived at the hospital that night, "she wasn't in any state that would even be close to allowing her to walk," he testified. But Flores' cross-examination of Dr. Shetter focused on a far different perspective: Yes, the doctor acknowledged under questioning, these wounds could have been caused by fists. He couldn't say what condition that would leave the fists, but Flores didn't need a doctor to cement the obvious point.
Baldwin didn't even mention Dr. Shetter's testimony in his closing arguments to the jury.
But the most critical element absent from the trial was Kim Donaldson. "I moved to exclude her from the trial," Flores recounts. "It was clear she couldn't understand what was going on, couldn't contribute anything. The only purpose for her being there would be to prejudice the jury." The judge agreed and Kim never entered the courtroom.
"Kim was virtually ignored in the trial," complains Charles Rausch, who's handling the civil lawsuit. "This is a classic example of the need for Rule 39."
Rule 39 is how lawyers refer to the new "victims' rights" rules implemented by the Arizona Supreme Court in the summer of 1989--just weeks after David Carrizoza walked free.
The new rules give crime victims extensive rights to be informed and consulted on criminal charges.
For Kim Donaldson, Rule 39 would have allowed her to have her own attorney looking out for her rights and interests during the trial. The attorney couldn't have argued in court, but her family feels it would have given them added clout with a county attorney they claim was curt and uncaring.
Maybe if Kim had had her own advocate, sometime during the trial the jury would have heard her clear response to Carrizoza's claim that she arrived home beaten nearly to death: "NO WAY. NO WAY."
THE SIGNATURE LOOKS LIKE the scrawl of a child, not the handwriting of a grown woman with a daughter of her own. But that scrawl was the best Kim Donaldson could do in mid-1989 when she filed complaints against the Avondale Police Department and the Maricopa County Attorney's office.
The complaints, charging each office with incompetence, are the required first step for a lawsuit. Filing them made Kim and her family feel better, but they were futile gestures. Both offices have immunity for their official actions. You simply can't sue a prosecutor who doesn't win a conviction, and you can't sue police for messing up evidence.
Even when messing up creates a public stir. As the West Valley View pointed out at this time, this was the third case in as many years the Avondale police had botched. "People are getting killed, or as good as killed, in Avondale," the paper complained in an editorial. "Has the city council ever called for an accounting by the police chief of why no one was ever brought to trial [in the two earlier cases]? Will they ask now for an explanation of why no one will (apparently) ever be convicted of destroying Kim Donaldson's life?"
Avondale Police Chief John C. Lopez retired shortly after the Carrizoza case. He later ran for mayor but was soundly defeated. The new chief C.J. Stewart tells New Times he doesn't think it would be "appropriate" to comment on how the Carrizoza case was handled. But he stresses that since he took over the job, he's made substantial changes. "I've realigned the department and we have a better case-management system in place so we can track cases better," he says.
All that's left for Kim Donaldson is the civil suit she filed in April. And that may be just as futile as her complaints against the county and the police. Even her attorney admits that. "There's not much hope we'll collect anything--I don't know if he has anything for us to collect," acknowledges attorney Charles Rausch. "But Kim was very upset with the results of the criminal case and she wants to have her day in court. She wants to preserve her right to pursue him and she had two years from the time of the assault to file any civil suit."
The time had nearly run out by the time Kim found Rausch. Dianne Post helped, placing an ad in Arizona Attorney magazine, pleading for someone to represent Kim. Rausch answered the ad, agreeing to take the case for free. "She has a reason to sue him and I think it's a good reason. Maybe at least he'll help support her," he says.
You'll hear nothing but complaints from Rausch about how the criminal case was handled. "They should have had her there. You don't try a case like this without the victim. Medically, she was very close to getting ready to testify at the time of the trial--weeks at best, months at worst."
Medical reports show the progress Kim was making in those months prior to trial was "remarkable."
She was transferred from Saint Joseph's to the Synergos Neurological Center on September 13, 1988. At that time, she was operating at Level Two of a cognitive scale that goes from one to eight, One being "no response," and Eight being "physically independent." By mid-December, she'd progressed to a Level Four; by April of 1989--a month after the trial--she was at Level Seven. As hopeful as that progression was, nobody thought Kim Donaldson would ever come back to the woman she was the night of the beating.
But she insists those who said she knew nothing, could identify no one, were wrong. "I couldn't see the picture," she spells out to explain why she couldn't identify the photo of David. "I had no alphabet board," she spells out to explain why she couldn't communicate. She does remember trying to use deaf hand signals--a skill she and her sister developed when they were in high school--and remembers her frustration that nobody understood what her gnarled hands were trying to say.
In Kim's mind, going to court must mean Carrizoza will go to jail. She doesn't understand--and nobody is about to tell her--that jail is no longer an option. You can't be tried twice for the same crime.
Her mother throws a pleading look at a visitor as Kim spells out the words. "I have to go by what my daughter wants," June Sianez explains. "She can talk for herself. Looking at Kim, I don't blame her one bit. I'm right beside her all the way."
Like her daughter, Sianez is calm most of the time. She can recite the most gruesome of details about her daughter's injuries, maybe because she's told the story so often, maybe because she's seen so much improvement. An outsider will look at Kim and think how tragic as she struggles with even the simplest things; Kim's mom looks at her and thinks how wonderful she can do even these simple things.
There's only one thing that sets off both mother and daughter. And that's any discussion of David Carrizoza. The family is so afraid of him that, after the trial, it got court orders demanding he keep his distance.
It would be such a relief, Sianez says, if all this could be over, even though she knows it never will be. For now, she'd be satisfied if there was money to take care of Kim's astonishing medical bills. Saint Joseph's alone billed over $272,000. June Sianez isn't even sure how many thousands were spent at the rehabilitation centers, but she knows there's at least a $25,000 bill waiting to be paid. She worries it could be a lot more. "My husband is on social security and I work seasonal at the potato plant in Tolleson," she explains. "We can't even afford to pay the deductible on the insurance. And now they're saying they're not going to cover all the bills."
Kim's living at home now, rather than in a rehabilitation center, because the insurance has cut off benefits. Mrs. Sianez is hoping AHCCCS will eventually kick in. Then Kim could get more help to build back more of a life.
But Sianez knows she'll be the one primarily raising Ashley for the foreseeable future. "As soon as she's in school, I'm going to get a job," she says. Of course, then there'd have to be a full-time nurse to care for Kim. Whichever way she looks, Sianez knows life will never again be the same.
At Kim's urging, she brings out a K mart portrait of Kim and Ashley taken just months before the beating. "This girl was gorgeous," Mrs. Sianez says, and then quickly corrects herself. "She's still very pretty." In a combination of sign language and grunts that only her mother could understand, Kim insists another picture be shown. "Oh, Kim, you don't want to show that one," Sianez pleads. But Kim is adamant.
"She wants you to see this picture of her in the hospital when she was still in a coma. She says she's proud of how far she's come.
