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Thomas Lee Fairbanks

FAIRBANKS TRIAL: Jury selection postponed

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CROOKSTON -- Jury selection was postponed Monday afternoon as attorneys from both sides in the Thomas Fairbanks murder trial wrangled over whether the defense could introduce evidence he was intoxicated when he is alleged to have shot Mahnomen County (Minn.) Sheriff's Deputy Christopher Dewey on Feb. 18, 2009.

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It was an unexpected delay in the trial as Minnesota District Judge Jeffrey Remick had planned to have potential jurors interviewed in a Crookston courtroom.

But when defense attorneys learned they might be barred from asking potential jurors about their knowledge and views of the use and abuse of alcohol mixed with prescription and other drugs, they asked for more time to make their pre-trial case before the judge to ask such questions.

Fairbanks, 34, is charged with first-degree and second-degree murder, as well as assault charges and failing to assist Dewey after he was shot.

After a long struggle in hospitals, including months of apparent improvement in therapy, Dewey died Aug. 9, 2010, at home from his injuries.

Last fall, Fairbanks was charged with second-degree murder, then later, first-degree murder. The lesser charge of second-degree murder also remains.

Fairbanks has been in jail since the shooting. He appeared in state district court Monday wearing a blue dress shirt and dark slacks, with close-trimmed hair and glasses. The court "graciously" allowed him not to wear any leg or arm restraints during the trial, Remick said during a discussion of security measures in the courtroom.

But two deputies working as bailiffs were stationed inside the courtroom, and extra law enforcement officers were on duty in and near the Polk County Justice Center, which includes the court and the Tri-County jail. There have been hints that someone might make trouble because of the unusual nature of the case, with a law enforcement officer the victim of a murder, said a deputy on duty.

Jim Austad, a state public defender from St. Cloud, Minn., who is representing Fairbanks -- along with Ed Hellekson, a Brainerd, Minn-based state public defender -- asked the judge to not allow one of the bailiffs to sit so close to Fairbanks during the trial.

"It will look to the jury as if Mr. Fairbanks is a danger," Austad said.

Eric Schieferdecker of Bemidji, who is prosecuting Fairbanks for the state attorney general's office -- along with John Gross from the St. Paul office of the attorney general -- said having two bailiffs in the courtroom is appropriate for such a serious crime. Remick said perhaps the defense counsel could shift its table a short distance away from the nearest bailiff, but said the security would remain the same.

The case remains a Mahnomen County case, but was moved to Crookston because the defense said it couldn't get a fair trial in Mahnomen.

Fairbanks is a member of the White Earth Band of Chippewa, said a member of the defense team. Because the shooting happened on the reservation, federal authorities could have taken jurisdiction. But, according to an experienced defense attorney from Fargo not connected with the case, federal authorities likely deferred to Mahnomen County's wish to prosecute the case involving one of its own deputies, using state attorney general staff members, partly to avoid any appearance of a conflict of interest.

The key pre-trial point Monday was the defense's contention it should be able to introduce evidence of Fairbanks' need and use of prescription drugs for attention deficit disorder and anxiety, as well as "a handful of pills" he ingested, as well as alcohol, before and after Dewey was shot.

Early on the winter day in 2009, Dewey responded to a report of a drunk driver on a Mahnomen, Minn., street. As he was talking to Fairbanks and another person, prosecutors allege, Fairbanks pulled out a gun and shot him in the head and abdomen.

Fairbanks is facing the most severe state penalty: life in prison without parole. A jury finding such a penalty has to consider aggravating factors.

Therefore, Austad and Hellekson argued, they need to show how Fairbanks' intoxication affected his actions the night Dewey was shot, including his responses to law enforcement and others in the days following his arrest. It's clear the prosecution is going to use evidence of Fairbanks' "smirking" and otherwise reacting in ways "most people would not," Austad said, as part of the possible penalty phase of the trial to show aggravating factors that could send him to prison for life without parole.

"The court has already limited the third-party shooter" defense, Hellekson told Remick. "Intoxication is the last remaining defense Mr. Fairbanks has in this case."

The defense attorneys also want to question potential jurors about issues related to intoxication, they said.

"We see this as being the critical issue of this case," Hellekson told Remick.

Schieferdecker argued that Minnesota doesn't have a "diminished capacity" defense, and that mental health issues concerning Fairbanks already had been ruled out by the court. So, it appears as if the defense is using the intoxication issue as a way to get questions about Fairbanks' mental health in the back door during the trial, Schieferdecker told Remick.

The judge gave both sides until this morning to present briefs on the issue. After he rules on the issue, jury selection is slated to begin at 10:30 a.m. A pool of 150 potential jurors has been chosen, and they are scheduled to come in about 10 per day for interviews until a jury is chosen. The trial is expected to take a month.

Also Monday morning, both sides discussed how the testimony of Fairbanks' admitted accomplice will be handled.

Daniel Vernier, who was with Fairbanks the day of the shooting, appeared in court Monday. He pleaded guilty in 2009 to not rendering aid to Dewey and was sentenced to two years. He apparently is out of prison. Part of his plea agreement was that he testify at Fairbanks' trial.

But because any testimony he gives may be used by federal authorities to bring other charges against him, Remick warned him of the need to be advised by both a state public defender and a federal public defender, each assigned to represent Vernier during the trial.

Schieferdecker told the court he doesn't expect to call Vernier for at least two weeks.

Remick said he expects opening arguments to begin Aug. 10 and closing arguments to be held probably on Aug. 26, with jury deliberation to begin Aug. 29.

Reach Lee at (701) 780-1237; (800) 477-6572, ext. 237; or send email to slee@gfherald.com.

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