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ANALYSIS: Details of Dewey's death may be key in Fairbanks trial

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Detroit Lakes, 56501
Detroit Lakes Minnesota 511 Washington Avenue 56501

CROOKSTON - As the murder trial of Thomas Fairbanks approaches, a key issue appears to be whether when and how his alleged victim -- Mahnomen County Sheriff's Deputy Christopher Dewey -- died might affect how the jury decides the case.

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Minnesota District Judge Jeff Remick said Friday he plans for opening arguments to begin Tuesday afternoon once a jury is seated.

As of Friday, 13 jurors had been chosen, two or three short of the total Remick has aimed at including alternates for a 12-member jury. Jury selection resumes today. Questions from attorneys, in-court discussions and court filings give observers a look at what issues will be raised during the trial, expected to last into September.

Fairbanks, 34, is charged with first-degree murder of a peace officer, which carries the stiffest penalty in Minnesota law: a mandatory sentence of life in prison without parole. Dewey was shot Feb. 18, 2009, responding to a call in Mahnomen. In an ensuing standoff, Fairbanks and his admitted accomplice, Daniel Vernier, holed up in a residence for hours before being arrested. Fairbanks also faces charges of first-degree assault on a peace officer -- involving allegedly shooting the same handgun toward 10 officers from various agencies during the standoff - as well as assault on several other peoples, vehicle theft and failing to assist Dewey after he was shot in the head and abdomen.

Dewey went through months of surgery and treatment, improving for a time, then failing. Complications reportedly from Botox injections given him for pain last summer led to his death Aug. 9, 2010, while in hospice care in the home of his wife's parents near the Twin Cities.

Based on court filings and what attorneys have said in court, it appears the defense has concerns whether the jury should be able to contemplate whether Dewey's death was caused by factors related to his care, rather than the gunshots.

During the interviews of potential jurors the past two weeks, the two prosecutors have asked people what they know about hospice care, "health-care directives," and "do not resuscitate" orders, all issues connected to families making end-of-life decisions for loved ones.

State District Judge Jeff Remick issued a ruling just last week in the case, sparked by attorneys arguing in court about what the jury should be told to consider about the "causation" of Dewey's death.

Proecutors Eric Schieferdecker and John Gross asked Remick to include language used in a Minnesota Supreme Court ruling issued Aug. 3, rejecting an appeal in a 2007 murder case. In the 2007 case, Dameon Gatson was convicted of getting another man to punch his girlfriend, who was six months pregnant, to kill the couple's unborn child. The baby was born prematurely after the attack and lived for a few days before the mother agreed that life support be discontinued.

In appealing his conviction this summer, Gatson argued that the discontinuation of the life support for the infant amounted to a "superseding intervening cause of death;" in other words, despite the punches, the baby still could be alive if life support had been continued. But the state Supreme Court, citing a previous similar case, denied Gatson's appeal, affirming the lower court's ruling that the "medical intervention here, including the removal of life support, was a foreseeable consequence" of the assault on the baby's mother, so the blame still goes to Gatson and his accomplice, the puncher.

Generally, courts have seen end-of-life decisions in such cases, including unplugging life support machines, as part of the range of medical care and decisions available to physicians and families and not as changing the legal facts of a homicidal attack and its effects.

It appears Fairbanks' attorneys have raised this issue in pre-trial discussions and motions because of the obvious parallels to Dewey's death.

Historically, English common law for centuries said that no death that happened at least "a year and a day" after an assault could be called a murder.

But in recent decades, mostly because of improving medical practices, the law in America -- including in Minnesota - as well as Great Britain, more or less has expunged the "year and a day," principle.

But the law still allows arguments to be made about what causes a death in a murder case involving medical care before a death occurs.

Dewey lived for 18 months after being shot.

Remick ruled last week, in a gloss on an earlier ruling he made on this issue, that he will instruct the jury this way on the "causation" question in Fairbanks' trial: that the prosecution will have to prove Fairbanks' "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. And, further, if this chain of causation is found to exist, it is not broken by any treatment or lack of treatment administered to (Dewey) by the doctors in this case."

The defense team, Ed Hellekson from Brainerd, Minn., and Jim Austad from St. Cloud, Minn., also have fought to be able to include evidence of Fairbanks being intoxicated before, during and after Dewey was shot.

State law says intoxication itself is not a defense in a murder case, but that evidence of intoxication can be used in an attempt to show a defendant was unable to form intent, which could lead to a lesser charge than first-degree murder.

Both the defense attorneys, and prosecutors -- Schieferdecker from Bemidji and Gross from St. Paul both are assistant attorney generals for the state, asked by Mahnomen County to handle the case -- have asked potential jurors what they know about prescription medications and getting drunk, including how they judge if someone is drunk, and whether they believe people who say they got so intoxicated they can't remember things they did. The first day of jury selection, in fact, was postponed a day as the attorneys argued before Judge Remick about what could be said before the jury about pills and booze. Hellekson and Austad implored Remick for latitude because, they said, intoxication was central to Fairbanks' defense.

According to statements in court, Fairbanks and his accomplice, Daniel Vernier, were drinking for hours in the casino in Mahnomen before the shooting.

Vernier shortly after the standoff gave investigators a handgun he said Fairbanks used in shooting Dewey, and described how Fairbanks had ingested a handful of prescription pills after the shooting.

Vernier initially was charged in the shootings but as part of a deal, pleaded guilty to one charge of failing to assist Dewey after he was shot. Vernier was sentenced to two years in prison and promised to testify against Fairbanks.

But his role in the trial appears to have become more problematic. On Aug. 1, Vernier -- who was released from prison earlier this year to serve some time on home release -- appeared in court here and was advised by Judge Remick of the possible jeopardy he might put himself in while testifying. Federal authorities may use anything he says in court to bring other charges against him, Remick told Vernier, so he should listen to the two attorneys, one from the state, one from the U.S. attorney's office, assigned to represent him.

In the early hours of Aug. 2, Vernier was arrested in St. Cloud, charged with domestic assault against a woman with whom he has children. He remains in the Stearns County jail on the charge, and attorneys in Fairbanks' trial have raised questions about exactly when and under what conditions he might testify in the trial.

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