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1990-08-29
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AZ VS. SPAN: SAD SAGA IN PHOENIX
By J. Huston, Staffwriter, The Correspondent,
P.O. Box 9283, Missoula, MT 59807. Source: New
Times, Phoenix, AZ, May 16-22, 1990.
The day began normally enough for the Span family of
Phoenix, Arizona, but April 7, 1988, soon became a living
nightmare. Two U.S. Marshals brutally terrorized a 74-year-old
man, Bill Span, his 72-year-old wife Virginia, and their children
Jerry and Darlene.
That was the day that Jerry and Darlene were charged with
resisting arrest and attacking federal officers, and the day
their mother had to be rushed to the hospital from jail where she
nearly died. Assaults by the officers on Jerry, Darlene, and
Virginia were photographed, witnessed and attested to by several
private citizens--yet the jury delivered guilty verdicts against
Jerry and Darlene. Why?
Had the jurors known that they had the right to judge the
law as well as the defendants according to that law, two innocent
victims of law enforcement brutality would not be facing a prison
sentence today. Also, five jurors would not be consumed with
guilt, and lawsuits totaling four million dollars would not be
pending against Jerry and Darlene. If the Fully Informed Jury
Amendment had been in force in Arizona, justice would have been
served and those truly guilty would have been punished.
U.S. Marshals Garry Grotewold and David Dains were trying to
track down a 69-year-old man by the name of Mickey Michael. Bill
and Virginia have a son by that name, but he is only 39 years
old. A phone number had led the marshals to the Span home.
Marshal Grotewold testified at the trial that Bill Span answered
the men's questions, allowed them to search his home and gave
directions to the family's place of business, where they might
find Mickey. Mr. Span's version was quite different.
As related by Bill's daughter Alice, she found her father on
the kitchen floor, sobbing and bruised with a knot on his head
and a swollen eye, the house torn apart. Mr. Span said he had
insisted on seeing a search warrant. At that time the hefty
Grotewold, approximately 220 pounds, pinned the frail old man
against the wall while his partner Dains searched the home. Bill
Span died two months after the incident.
Later, at the family's business, Grotewold showed a
photograph of Michael to Darlene. She acknowledged that she knew
a Mickey Michael, her brother, but that he was not the man in the
picture. About the same time Jerry Span appeared. He did not
know the man in the photo either and offered to show the picture
around and let them know if anyone knew him.
Acting as though he did not believe them, Marshal Grotewold
allegedly threatened Darlene. Jerry invited them to leave and
both turned their backs on the marshals to take care of their
customers. At that time, Jerry claims Grotewold hit him on the
back of the head, kicked him in the back and knocked him to the
ground. Meanwhile, Dains grabbed Darlene, by her hair and
slammed her face into the fence where both fell to the ground.
Marshal Grotewold claims that he was struck by Jerry between
30 and 40 times, and that Span had attempted to take possession
of his pistol 5 or 10 times. Considering that Grotewold weighs
about 90 pounds more than Jerry, this scenario is difficult to
imagine. Even less credibly, Grotewold claimed he was fearful
for his life.
One customer, who later became a defense witness, stated
that Jerry and Darlene "...had their backs turned to the marshals
when they blindsided them. Darlene and Jerry never knew what hit
them."
Due to an ongoing eminent domain dispute between the Spans
and the city, Jerry and Darlene's brother Pete Span was taking
roll-film photos of the business when the altercations began.
Their mother Virgina arrived later with a Polaroid. Pete
declared that Marshal Dains grabbed a roll of film from him and
ground it into the dirt with the heel of his boot, crushing the
canister. When the marshal went after his camera, Pete, a
marathon runner, fled. But film that could have clarified the
early part of the assault had already been destroyed.
According to witnesses, Dains and Grotewold, in their
attempt to wrest the Polaroid from Virginia, grabbed her neck and
twisted her arm behind her back, then threw her to the ground.
One witness stated later, "I'd have tried to kill them if it had
been my mother. All she was doing...was standing, watching, and
occasionally taking a picture."
Dains charged that Virginia Span had struck him over the
head with her camera, which he said he was trying to retrieve for
evidence to validate the assault charges. However, Dains never
listed scalp lacerations as an injury received during the
altercation, and hair and blood samples were never taken from the
camera as evidence for the prosecution.
In front of witnesses, to justify arresting Virginia,
Grotewold claimed that the puncture wound in his hand came from
Virginia biting him. However, as Virginia pointed out, she has
no teeth. In Grotewold's report he stated that Jerry had bitten
him. The puncture wound apparently had come from Bill Span's dog
when the two men assaulted the old man in his home.
Customers were witnesses to the confrontations, yet none was
questioned by the Phoenix police, who arrived later, nor by the
marshals. In an interview conducted by New Times, a Phoenix
weekly, all of the witnesses backed up the story as the Spans had
related it.
On February 23, 1990, U.S. Marshal Tomas Lopez wrote to the
prosecutor on the Span case acknowledging that Dains and
Grotewold both had reputations for provoking assaults. The
judge, however, would not permit the letter to be entered as
evidence on behalf of the defendants. Instead, Lopez reportedly
came under fire for writing the letter..
Judge Broomfield instructed the jury that "Federal officers
engaged in good faith and colorable performance of their duties
may not be forcibly resisted, even if the resister turns out to
be correct, that the resisted actions should not, in fact, have
been taken. The statute requires him to submit peaceably and
seek legal redress thereafter."
Given this instruction, the jury returned verdicts of guilty
against both Darlene and Jerry, even though they felt that the
marshals were the ones who initiated the assault. Several later
stated that they thought they had no alternative but to convict.
Five of them ended up signing a statement which expressed their
belief that "such a law is completely unfair and against
everything that the United States stands for."
Had even these five realized the power they held as jurors
to judge both law and fact, it is unlikely the Spans would be
preparing appeals right now, facing prison terms of up to three
years if they fail, as well as lawsuits for damages of $2 million
filed by the marshals. Instead, the Spans could be pursuing
lawsuits of their own against the men who attacked them.
Now Bill Span is dead, Virginia no longer drives or reads,
and thousands of unaffordable dollars have already been poured
into their children's legal defense.* With justice like this,
who needs tyranny?
And oh, yes. It later turned out that Darlene and Jerry's
brother Mickey Michael was indeed not the man the marshals were
looking for, after all....
_________________________________________________________________
*EDITORS' NOTE: We at FIJA know that Darlene and Jerry Span will
gladly and gratefully welcome any legal or financial assistance
sent in support of their appeal. They receive mail at P.O. Box
44970, Phoenix, AZ 85064.