Killers in the Family Page 11
On Wednesday, July 16, 2008, Fishburn pulled out his breathing tube, which had apparently been bothering him, and, to everyone’s surprise, began breathing on his own. Several of the therapists who worked with Fishburn said that he continued to show very good progress.
But just one day later, on Thursday, July 17, 2008, a week after the shooting, surgeons had to rush Fishburn back into the operating room to remove liquids from his brain that had pooled there after his original surgery.
Yet still, Jason Fishburn persevered and hung on, defying the odds by living. Every day he seemed to get just a little bit better. Just over two weeks after the shooting Fishburn spoke his first words: “Oh my God, I want to go fishing,” he told his family. He also told his wife that he loved her. Later, he recited the alphabet and counted for the therapists who had been working with him. Despite this progress, however, he had memory problems surrounding the incident that had landed him in the hospital. He didn’t know why he was there.
“A couple weeks after the incident Jason looked at me and wanted to talk,” said Dennis Fishburn. “He said, ‘Dad, tell me what happened.’ He wanted to know how he got there, and so I told him, ‘Jason, you were chasing a homicide suspect, and you went between two homes, and he shot you. One of them was in the head, and you are in very critical condition. So you need to fight.’ That was a very tough moment.”
“His memory wasn’t very good, so he would keep asking us what had happened, and we’d have to keep telling him,” agreed Tonya. “We’d have to keep telling him why he was in the hospital. I’m sure it was a really frustrating time for him. I mean you wake up and you don’t remember anything, just that you’re in a hospital; you’re in a hospital and you can’t move part of your body.”
Finally, on July 28, 2008, after Fishburn had been in the intensive care unit for over two weeks, the doctors at Wishard Memorial Hospital decided that he was well enough to be transferred to a rehabilitation center. The doctors had had to rebuild Fishburn’s skull with a prosthetic because of the damage from the gunfire and surgery, but remarkably, it had worked without any serious complications. Fishburn had surpassed all of their expectations, first for survival and then for recovery, but he still had a long road ahead of him; even though he had survived the massive head wound, he had lost much of the feeling in his right side and couldn’t use his right arm or leg. He would need a lot of professional rehabilitative therapy before he would be self-sufficient and mobile. But no amount of rehabilitation therapy would ever get him back to his pre-shooting state. He had suffered too much damage.
His family, though, believed that God had a plan. “We kept encouraging him,” said Dennis. “We told him that a whole lot of people were praying for him. We told him that he was going to make it through this.”
Since Officer Fishburn had been shot in the line of duty, the Indianapolis Metropolitan Police Department paid for all of his care and had him transferred to the Rehabilitation Hospital of Indiana, one of the top hospitals in the state for rehabilitation therapy. Nine weeks after his admittance there, the hospital released Fishburn to go home, something the doctors at Wishard Memorial Hospital would have thought impossible the night the officer was brought in. While Fishburn was still not functioning close to a hundred percent, the rehab therapists felt that they had done all they could for him as an inpatient. Although Fishburn required a brace on his right leg in order to walk, he refused assistance when leaving the facility. He told staff that he wanted to do it on his own—and then walked, very slowly, to the waiting car. As Fishburn left the hospital, his supervisor at the shooting scene several months earlier, Sergeant Rick Snyder, got on the police radio and said that one of his officers was still unaccounted for. Fishburn then got on the police radio and marked back into service, telling the dispatcher that he was going home.
Officer Fishburn’s fight, however, wasn’t over yet. He still needed to do a lot of work once he returned home in order to regain his physical strength and movement. It took day after day and month after month of intense physical therapy. And while he made significant improvement, he was still far from where he’d been before July 10, 2008. Fishburn longed to return to work as a police officer, a job he loved, and he knew he had a long, long way to go. But still he was determined to do it.
“Jason’s recovery was really long,” said Tonya. “He had a lot of physical therapy. He was in ICU for almost three weeks, and then he spent another nine weeks at the Rehabilitation Hospital. And even after that, for seven or eight months, he went to outpatient physical therapy three or four days a week.”
The administration of the Indianapolis Metropolitan Police Department kept in contact with the Fishburn family and received regular updates on Jason’s improvement. A year after the shooting, Indianapolis chief of police Michael Spears sent a letter to all employees of the Indianapolis Metropolitan Police Department, reminding them of Officer Fishburn’s sacrifice and making sure he wasn’t forgotten about.
The Indianapolis Metropolitan Police Department awarded Jason Fishburn a Purple Heart and also its highest award for valor: the Medal of Honor. The night the Rehabilitation Hospital of Indiana released Fishburn, he and his family attended an Indiana Fever WNBA basketball game. The audience gave him a standing ovation when he was introduced. Fishburn also became a finalist for the All-Star Award, given by the popular television program America’s Most Wanted. And at ceremonies for National Police Week, held in April 2009 in Washington DC, Fishburn stepped forward to add a red carnation to the wreath for fallen police officers, the carnation meant to represent all disabled officers. Organizers held the ceremony at the memorial for police officers killed in the line of duty, a fate Fishburn had thankfully avoided.
Fishburn’s condition kept improving, going against all of the dire predictions the doctors had made when they first saw him at Wishard Memorial Hospital. While he could walk with the help of a leg brace, he still couldn’t use his right arm. Since he was right-handed before the shooting, Fishburn had to teach himself to write with his left hand. But still, he wanted to try to return to police work. It was a job he had loved. And he improved so much that by May 18, 2009, he was able to return to work at the police department. The department assigned him to a light-duty position at the Training Academy, and he started off working four hours a day, four days a week, performing mostly administrative tasks.
“What we’re trying to do is get him acclimated back into a work environment and assist him in his rehabilitation process,” Indianapolis Metropolitan Police Department spokesperson Sergeant Paul Thompson told the news media.
“I think Jason is a miracle,” says his wife Tonya. “He’s a survivor. When he was at the hospital they were trying to prepare us for the worst, that he might not live, or that he might be comatose forever. But he surpassed all of their expectations in his recovery. I think that says a lot about his determination. As soon as he got out of the hospital he was ready to go back to work.”
Dennis Fishburn also weighed in on how everything that happened to Jason affected his family. “In some ways this has been a blessing. I know that’s hard to understand, but we’ve come through the deepest, darkest despair and abyss of life that can be imagined. You’ve got a son, not knowing if he is going to live or die, and to see the great miracle, to see God make his decision for Jason to pull through, it was all very miraculous.
“Jason has done everything to pay it forward,” Dennis continued. “Since the shooting Jason has done a lot of community work. He works at a church food distribution center, goes out with the church missionaries, and visits with people who need help. He also does everything he can to keep his body in shape. He works out regularly at the YMCA. But sometimes still, even after witnessing it all, you can’t help but wonder why one person lives and another dies. Jason’s wound was the type most people don’t survive. We have all thought about it a lot, and prayed about it a lot. We decided that there has to be a reason that Jason su
rvived from this terrible, ugly mess. We believe that God’s hand was there when Jason was shot, and that God prepared him for this great miracle. Jason obviously has something really important left to do.”
Fishburn himself had one thing he wanted to say about everything he went through, and how it affected his outlook on life: “Don’t live in the past,” he said. “You’ve got to just move on.”
Part of this moving on, of course, included bringing closure to the shooting incident. And so, once Fishburn had been released from outpatient therapy and returned to work at the police department, he decided that he wanted to attend the trial of the man who had shot him. Although he still couldn’t recall any of the events of the day he was shot, or even remember anything at all about going to work that day, Fishburn made the decision that he not only wanted to attend the trial of Brian Reese, but that he also wanted to testify at it. And so, in November 2009, when the court scheduled Brian Reese to stand trial for the shooting incident, Fishburn stood ready to testify.
NINE
On July 31, 2008 (more than a year before the trial would begin and three days after Officer Jason Fishburn had been admitted to the Rehabilitation Hospital of Indiana), the Marion County Prosecutor’s Office formally charged Brian Reese for the shooting of Officer Jason Fishburn. They charged him with attempted murder, carrying a handgun without a license, and resisting arrest. The Prosecutor’s Office also said that it had not yet decided whether to seek the death penalty in the three murders Brian had also been accused of.
Brian Reese’s trial for the attempted murder of Officer Jason Fishburn finally began on Monday, November 2, 2009. Fishburn had hung on to life so tenuously, and had made such a slow, yet remarkable, recovery, that the case had been in the Indianapolis news constantly. He’d become a local hero, and there had been dozens of newspaper articles and television news segments about the incident.
Due to the extensive pretrial publicity this case had received, Reese’s attorney, public defender David Shircliff, didn’t feel confident that they’d be able to find an unbiased jury of individuals in Indianapolis or the surrounding area who hadn’t already heard story after story about the incident. Consequently, he filed for a change of venue and a judge ordered the trial moved to Valparaiso, Indiana, a small town of about 30,000 people, around 160 miles northwest of Indianapolis, near Chicago and Lake Michigan. Since the news in Valparaiso comes mainly from Chicago, not Indianapolis, most of the residents living there didn’t know about the crime. Judge Lisa Borges of Indianapolis would preside at the trial, while Marion County prosecutor Carl Brizzi, assisted by deputy prosecutors Denise Robinson and Mark Hollingsworth, would handle the prosecution. Shircliff, the defense attorney, would be assisted by attorneys Laura Pitts and Jeffrey Neel.
For any victims of a serious crime, particularly those in which the victims have been seriously injured and permanently disabled, the trial of the person accused of committing that crime against them can be extremely emotional. The trauma of the trial can at times be nearly as bad as the trauma of the crime itself; the crime must be relived and talked about extensively. Victims who have often worked very hard to put the crime out of their thoughts and get on with their lives must now go through the whole thing again from the start. “I think there will be tender moments, some shedding of tears,” Dennis Fishburn told a reporter for the Indy Channel. He said they could “expect an emotional rollercoaster as they relived tragic events in the courtroom.”
Soon after his arrest, pictures of Brian Reese looking disheveled and angry had appeared over and over in the Indianapolis-area news media. But he cleaned up considerably for court; he didn’t look anything like the scruffy man with the scowl in the mug shot taken right after his arrest. This was not unusual. Naturally, defense attorneys want their clients to play well to the jury, and so typically encourage their clients to look their best for court. Even Jason’s father was taken aback by the change. “Reese looked very clean-cut during the trial,” he said.
The first morning of the trial was spent selecting a jury. Prospective jurors underwent extensive questioning to be certain that they didn’t know anything about the case or have any preconceived notions about it. As with the motivation behind the move from Indianapolis, the attorneys didn’t want a jury full of people who’d already made their minds up about what had occurred.
Brian Reese’s defense attorney David Shircliff had made this part of his questioning during voir dire, the process of questioning potential jurors for the purpose of finding those who can judge a case fairly. If during voir dire a person does show a problem that could affect his or her objectivity, that person can be removed from consideration as a juror. But while voir dire is meant to construct a jury that can be fair and impartial to both sides, the prosecutor and defense attorney actually use it for the opposite reason. What both really want is to get a jury that will be sympathetic to their side.
“Attorneys select jurors whom they will be able to persuade, not jurors who will be fair and impartial to both sides,” said attorney Marni Becker-Avin in an article in the “Trial Techniques Committee newsletter,” put out by the American Bar Association.
Fortunately, out of this group of potential jurors in Valparaiso, plenty of them hadn’t heard about the case and felt that they could be unbiased, so the selection did not take long. Later that day, the judge swore in a jury of seven men and five women, with two women selected as alternate jurors, to be used in the event that any of the regular jurors could not complete the trial for some reason.
Even though the change to Valparaiso was a move made to benefit the defense, Detective Sergeant Jeff Breedlove, the homicide detective assigned to the case, felt it probably worked out just as well for the prosecution. He felt that the people in Porter County would likely be less sympathetic to Brian Reese’s story. “They brought in about fifty potential jurors and I liked them all,” he said. “I told the prosecutor that I’d take any twelve of them.”
Shircliff also apparently felt that the selection of jurors had gone as well as possible for the defense. “All I can do is assume the jurors answered honestly, and I think they did,” Shircliff told a reporter from WTHR Television. “The ones that are on the jury, I believe, said they could be fair and consider that the only intent for shooting a gun is not always to kill someone. It’s possible you can shoot a gun without having that intent.”
However, even after the jury had been selected, the defense attorney still faced a serious obstacle in this case: There was virtually no hope for a not guilty verdict. The defense could not deny that Brian Reese had shot Officer Fishburn. There were numerous witnesses who had seen Brian running with the revolver in his hand, witnesses who had heard the gunshots that struck Fishburn, and witnesses who had seen Brian running from the scene of the shooting. In addition, Brian had pointed the same gun Fishburn had been shot with at other police officers just before they shot him. The defense had no choice but to admit the shooting. Shircliff could only argue about Brian’s intent when he did it. If the defense could convince the jury that Brian hadn’t intended to kill Fishburn when he fired the gun at him, that he hadn’t wanted to murder the police officer but only scare him, Brian’s sentence would be much less severe. It was the defense’s strategy to have the jury convict Brian of a lesser crime than attempted murder, such as aggravated battery.
The case, though difficult for the defense, wouldn’t be a total slam dunk for the prosecution, either. The prosecution, of course, wanted a guilty verdict on the attempted murder charge but knew that it was not going to be an easy thing to get. “If you pull the trigger of a gun and someone dies as a result, that’s murder, whether you intended that to happen or not,” Marion County prosecutor Carl Brizzi told a reporter for WTHR. “With attempt murder you have to show intent to kill. That crime in Indiana is probably the most difficult crime to prove.”
Deputy prosecutor Denise Robinson agreed. “Attempt Murder is the only specific in
tent crime in Indiana,” she said. “In an attempt murder case, the prosecution is required to prove beyond a reasonable doubt that the defendant specifically intended to kill the victim. In my opinion, that makes attempt murder one of the most, if not the most, difficult charges to prove in this state.”
By the time the prosecution and the defense had finished choosing a jury, it was already late afternoon, so Judge Lisa Borges decided there would be no testimony that day. Instead, she welcomed the jury and gave them their instructions about not talking to anyone about the case or watching or reading any news media stories about it. She also told the jurors that if during the trial they had a question they wanted to ask a witness, to write the question down and give it to the bailiff. The judge would read the question and then, if appropriate, she would ask the witness the question. She scheduled the testimony to begin the next day, Tuesday, November 3, 2009.
On Tuesday, before any testimony started, both sides got to give opening statements. The prosecution went first and told the jury that they would prove that Brian Reese had shot Officer Jason Fishburn with the intent to kill him. The defense then gave their opening statement, in which they said that what had happened on July 10, 2008, was simply a tragic accident, and that there had been no intent to kill Officer Fishburn.
Following the opening statements, the first witness the prosecution put on the stand was Officer Fishburn. He still had no recollection of the events of the day he was shot, but the prosecution wanted the jury to see and hear about the injuries he had suffered. Fishburn couldn’t use his right arm, he walked only with the aid of a brace on his right leg, and he had difficulty with his speech. The prosecution wanted the jury to see that the injuries Fishburn had suffered weren’t minor wounds that would heal over time, but lifelong disabilities. He told the jury about his memory lapse and that he presently worked at the Indianapolis Metropolitan Police Department Training Academy. Prosecutor Carl Brizzi asked him if he knew he was a police officer on July 10, 2008, and that he had been shot. He said yes.