Dorcus Allen’s fate hangs on three words: “should have known.”
Those words, and the idea that they were misused, mark the grounds of his appeal on four convictions of first-degree murder. Allen, 42, is the seventh member of the so-called Clemmons Seven, a group of friends and relatives of cop-killer Maurice Clemmons, who shot four Lakewood police officers to death on Nov. 29, 2009.
A region-wide manhunt followed the shootings. Clemmons was shot and killed by a Seattle police officer on Dec. 2, 2009.
Pierce County prosecutors couldn’t convict Clemmons’ ghost. Left with the seven people who aided the killer’s flight, the county charged them with multiple counts of rendering criminal assistance and in some instances, unlawful gun possession.
Almost four years later, the payoff from that legal strategy looks like this:
• One acquittal;
• One guilty plea;
• Two convictions upheld on appeal, but with sentences reduced; and
• Two convictions reversed on appeal.
Allen’s case is the last, and it carries the highest stakes. He’s the only member of the seven convicted of murder. A jury found him guilty in June 2011. He was sentenced to 420 years in prison.
Allen’s attorneys appealed. They got their chance to present oral arguments Tuesday at Division II of the state Court of Appeals in downtown Tacoma, in front of a three-judge panel. The arguments – 15 minutes per side – hinged on the three words: should have known.
On the day of the shootings, Allen drove Clemmons to a car wash near the coffee shop where the officers were killed. According to court records and testimony, Clemmons walked away briefly while Allen went to a convenience store to buy a cigar. Clemmons returned and told Allen to start the truck and drive. The two soon abandoned the truck. Allen hopped on a bus and eventually fled to a Federal Way motel, where police found him.
In the original criminal case, prosecutors portrayed Allen as an accomplice who knew Clemmons was likely to attack police officers. Clemmons had ranted about his hatred of cops at a Thanksgiving dinner a few days earlier, and brandished a gun.
Defense attorneys argued that Clemmons had also claimed to be Jesus Christ, and that Oprah Winfrey, LeBron James and President Barack Obama were coming to his house. Did those rants provide enough evidence to prove Allen knew what Clemmons intended to do?
Prosecutors said they did. Defense attorneys said they didn’t. The jury found Allen guilty.
Tuesday, Greg Link, Allen’s attorney, argued that prosecutors committed misconduct in their closing statement by repeatedly using the three words: should have known.
Prosecutors couldn’t prove beyond reasonable doubt that Allen knew Clemmons was on a killing mission, Link argued. Direct knowledge is the standard for a conviction. Link said prosecutors repeatedly said Allen should have known – a misstatement of law and a violation of Allen’s rights.
Link added that prosecutors knew what they were doing. They used the words in oral arguments and in a slide presentation.
“It was plainly intentional,” Link said. “They didn’t just inadvertently say something. They said it repeatedly, they said it intentionally. It’s on the opening slide and it’s on the closing slide, and it’s everywhere in between.”
Deputy prosecutor Tom Roberts spoke for the county. He said the three words represented a kind of legal shorthand, an effort to explain a tricky concept to a jury of non-lawyers.
Roberts added that defense attorneys objected to the words during the trial, and the presiding judge, Frederick Fleming, overruled the objection. Court records show that when jurors were pondering the final verdict, they asked a question about the legal definition of “knowledge.” Fleming referred them to the jury instructions, which referenced the state law that defines the term.
Appeals Court Judge Joel Penoyar zeroed in on the three words, asking Roberts whether county prosecutors deliberately invoked them to suggest that “should have known” meant the same thing as knowing.
“This isn’t an obscure point of law,” Penoyar said.
Roberts said there was no proof that the three words affected the verdict against Allen.
“The prosecutor couched this as shorthand,” Roberts said. “That was wrong, that was improper – he shouldn’t have said that. But he also argued properly, and referred to the jury instructions.”
Tuesday’s arguments ended without a decision. The panel of judges will issue a ruling at a future date. Affirming the lower court would preserve Allen’s conviction. Reversing the verdict could erase the conviction. Either outcome could lead to another round of appeals to the state Supreme Court.
Sean Robinson: 253-597-8486