remembering a writer and friend
Tomorrow is probably the last day. Shortest murder trial I’ve ever seen. Below are some key themes as reported by our note-takers at the trial.
1) the ‘age difference’ between Don and Michael—raised by the defense. They are trying to emphasize the angle that it was somehow inappropriate for a 50-something person to be friends with 25-year-olds. In cross examination of Don’s character witnesses, the defense repeatedly asked for witnesses’ ages and then made a point to say it ‘made sense’ for them to be friends due to being age-appropriate peers.
Many of us in Bloomington have all kinds of cross-generational friendships, so it’s not clear why prosecution did not want jurors to hear from these examples or perhaps even hear from other younger people who had healthy relationships with Don and other older people. Nevertheless the defense is trying everything it can to raise questions about Don’s character.
2) Jessa’s role –> raised by the defense as well as the prosecution. Griffin’s girlfriend is proving to be a key figure in this case. It is she who claims to remember seeing Don and Michael having sex at her house, in between moments when she had blacked out. Michael does not remember anything happening between himself and Don.
3) Don as a predator–> raised by the defense. Ties in to #1. In cross-examination of one of Don’s character witnesses, the defense noted that the witness said Don was not a violent person. Would her opinion change, defense wanted to know, if she knew that Don had non-consensual sex with a person half his age. The witness said Don was not capable of that, and defense reminded her about JOHN WAYNE GAYCY (and how none of Gacy’s circle was aware of his dark side either). Comparing a slain English professor to a notorious child molester and killer = CLASSY!!
4) Nobody really knew Don. –raised by defense. A *very* clever moment came when Michael was describing confronting Don at Don’s house. Michael had put his arms on Don and Don reportedly pushed him away, then Michael brandished his knife to ‘keep a distance’ between them. What the coroner says are ‘defensive wounds’ on Don’s hands, Michael says are the result of Don trying to grab the knife by the blade. Such an aggressive outburst from Don, said Michael, took him by surprise. I’m paraphrasing here–but essentially this suddenly aggressive Don was ‘not the Don I knew’ according to Michael.
In many instances Michael deliberately made a point to predict and agree with what the character witnesses would later say about Don being a good person. And in this instance he simultaneously attempted to pre-emptively invalidate those testimonies, because he was here to say that none of us could have predicted this side of Don that he saw.
5) PTSD.–> raised (but not raised) by the defense. It’s not explicit—and maybe that’s because they could not get an official diagnosis to work in their favor—but the defense is introducing all kinds of subtle post-war trauma hints, including Michael’s inability to remember anything, his “disassociation,” his training, and a well-written “insurgent” narrative designed to tug at heart strings. More on this later.
6) Michael’s inability to remember anything. Unclear who will get the most mileage out of this one. On one hand, we have a decorated marine in great physical shape whose only explanation for not being able to fend off someone twice his age and easily winded is that he was completely out of it. One minute he was having dinner with friends, the next minute he woke up with a sore butt.
Let’s be clear: Michael Griffin on the stand is not claiming to remember being assaulted at all. In fact he is claiming the opposite. “I felt drugged,” he essentially told the jury today, indirectly introducing yet another Don-as-predator possibility—Don the bartender of the evening who had control of the cocktails, we were reminded again and again without any specific accusation, just a planted seed. Then, a couple days later, the same amnesia, exactly at the most important moments, again. One minute he is arguing with Don, the next moment he realizes Don is on the ground in a pool of blood. Again, an indirect nod to PTSD, though they can’t actually come out and say it.
You’d have to be a major jerk not to feel sorry for Griffin, an emotional wreck on the stand, a guy who stands to never see his young son again, who seems genuinely remorseful for what he has done. There does seem to be some kind of larger script or strategy that he’s not always following, but if enough emotional identification is made with him it may not really matter.
In many cases this memory loss would be a sure win for the prosecution. It’s unclear, for instance, how Griffin managed to black out for both of the most important moments in this entire case, something not typically believed by jurors. There was also great discrepancy between his police interview –during which he claimed to remember being assaulted by Don and remember much of the killing–and his testimony today.
And finally, there was this bizarro exchange: The prosecution pointed out that in previous interviews, Michael remembered enough to say that during non-consensual anal sex, Don did not ejaculate in one encounter but did ejaculate in the other encounter. Today, however, Michael attributed that detail to Jessa. It was she who knew when Don did and did not ejaculate, and it was Michael who took her word for it (despite her testimony that she, too was basically unconscious).
7) ‘Alternative Lifestyles’ – Raised by defense as well as prosecution. In the early days of ‘gay panic’ a defendant would likely claim that a crisis of masculinity set him off. Such a claim is rarely so overt anymore. Here we are seeing a *little* of that –Michael says he was embarrassed to go to the police about his alleged assault due the masculine expectations of him. But mostly the defense rests on the faith that there is still enough societal bias to allow a sexual assault allegation to be enough to get someone off the hook for killing a gay man.
Still, defense attorneys are making it clear that the couple had ties to alternative communities including the LGBT community, although Jessa made *very* clear that despite the couple’s sexual encounters with other women, she was heterosexual.
Prosecutors certainly did not let jurors forget that the couple is sexually experimental. While I’d hate to see any verdict come down to bias against the sexually unconventional, it’s a strategy that probably makes sense, to remind people that this scenario would not be entirely off-limits for them as much of the public may have assumed until now. Certainly there are valid critiques of this strategy: if a woman was claiming rape, would she have ‘asked for it’ based upon her past behavior? But that analogy works the other way too: If a heterosexual had been killed two days after his alleged assault, how many defendants and defense attorneys would actually believe that incident was a viable defense?
8 ) HETEROSEXUALITY. Per the defense, Please do not view anyone involved in this case (except Don) as even the tiniest bit queer. If the couple’s past sexual behavior leaves any doubt whatsoever, please note that hours after Don allegedly assaulted Michael (after the three had coffee together), Michael and Jessa had sex FIVE TIMES, taking breathers only to lay around in bed and process what had happened with Don.
9 ) Mixed messages. Mostly from the defense. See above. Also interesting is that while Jessa and Michael are allowed to have sexual fluidity as heterosexuals, Don’s gay identity made him interested in one thing and one thing only.
At some point soon a transcript of our combined notes will follow—without commentary—for those who simply want to wade through the events of the past couple of days.
You should know that Judge Teresa Harper did agree with the defense request to provide jury instructions for the possibility of manslaughter, a lesser offense, based upon the evidence she heard. What’s interesting, however, is that the “sudden heat” she is allowing is not exactly related to the ‘sexual assault’ allegation against Don but to the alleged ‘push’ that Don gave Michael after Michael (by his own testimony) put his hands on Don at Don’s house. The prosecution argued that even if it were to accept Michael’s version of events, it was Michael himself who acknowledged touching Don first during that confrontation. But Judge Harper said the testimony indicated that Griffin was “not angry” until Belton pushed back. So that’s the incident that allegedly caused the ‘heat of passion’ from Michael.