TOM DAVIES: The Verdict — The System Failed

Like our entire community, I awoke last week to the horrible news of the death of Fargo Police Officer Jason Moszer, killed in the line of duty. I realized more than ever why I love Fargo and Upper Midwest living. Communities and police agencies jointly took to the airwaves to rally around the family of the fallen officer.

The honor paid to him, like the service that law enforcement provides, cannot be overstated. “To Serve and Protect” is their motto; to serve and protect is how Officer Moszer gave his life.

Our citizens are showing his family and his colleagues genuine gratitude for what they do. I hope that, in the face of all of the negative national media reporting, our citizens will continue to show their appreciation.

Jason Moszer did everything expected of him ― and more. Such cannot be said about the criminal justice system he served. A tragedy like this that might have been avoided had the criminal justice system worked as it should have long before this incident began.

My information for this story has been gleaned from WDAY-TV. KFGO, The Forum, the Grand Forks Herald, the comments of the sister of the teenager Schumacher murdered in 1988 and the North Dakota Supreme Court website. If you want to read the case I’m discussing in the original, it is entitled “State-v-Schumacher, 452 N.W.2d 345 (N.D. 1990).”

This article is in no way intended to add to the suffering of the survivors of the shooter, Marcus Schumacher. They also need community support in their efforts to understand and recover from what happened. My intention is to share my opinion that the system failed miserably in handling Schumacher’s life in the courts.

In October 1988, Schumacher was charged with murder in the death of Maynard Clauthier, 17, and the attempted murder of Bradley Boswell, 21. It should be noted that young Mr. Clauthier, who had no known police record, was Native American.

Here are the general facts. On Oct. 9, 1988, Schumacher had been drinking heavily. He is alleged to have said something to a female on the street that caused Clauthier and Boswell to (in my words) “defend her honor.”

Schumacher was a member of the National Guard. During the trial, he testified he had training in first aid, civil disturbances, shooting at night and a lot of training in the use of weapons.

The two victims, Clauthier and Boswell, followed Schumacher to his car. When he got in, they rapped on his window, and he rolled the window down with a gun in his hand. As Clauthier said, “Don’t shoot,” Schumacher pulled the trigger, and then shot Boswell as well.

He was in a secure vehicle. There was no mention of any weapons in possession of his victims. He could have simply driven away, but he didn’t. During the trial, he said he “panicked.”

With the facts as known, a plea agreement was entered, with Schumacher pleading guilty to reduced charges of reckless endangerment and manslaughter. He got a two-year sentence for shooting Boswell and 10 years for killing Clauthier.

As I read the facts of this case (and remember, it’s my opinion), there was no reason to reduce the charge from murder to manslaughter in the Clauthier case. Boswell, the survivor, testified as to what happened. That testimony would have supported a murder conviction. According to Clauthier’s sister, the family was given no reason for the reduction in charges ― and probably for good cause.

Schumacher had been trained as a police officer as well as a guardsman. He should have been held to that high standard. But he wasn’t.

Sometimes plea agreements are entered into because the prosecution feels a good conviction is better than a trial with the possible adverse outcome. That was not a factor in this case, however, because it did go to trial.

On technical legal grounds, Schumacher was allowed to withdraw his guilty plea and was retried. (You can read the details for yourself in the case file.)

In the second trial, he was convicted of negligent homicide in the case of Clauthier and found not guilty of either attempted murder or aggravated assault in the shooting of Boswell. Schumacher and Boswell were white. Clauthier was Indian. The 12-person jury was all white. The killer’s new sentence ― five years in the state penitentiary. He went on to be released one year early for good behavior.

Native American leaders, it was reported at the time, were outraged at the verdict. Based on everything that was made public, they had every reason to be. Had it been the 17-year-old Indian boy who’d shot the white guardsman, you can bet your income on what would have happened.

The system failed Officer Moszer and the community: State law allows a felon to regain the ownership and use of a weapon after 10 years, even when the felony involved the use of a weapon. If a weapon is used in the commission of a felony, whether or not one is injured or killed, I believe that person should be banned for life from ever owning, possessing or using. But that will require a change in state law.

The second system failure: In January 2012, Schumacher was charged with simple assault and disorderly conduct after he pushed his wife during a fight in their home. WDAY has reported that the fight also involved one of his children. He pled guilty to the charge disorderly conduct and received a year of probation.

The third system failure: On his 2012 charge, if the criminal justice system had researched Schumacher’s past criminal history, there should have been no dismissal of the simple assault charge. That would have given the court and the prosecutor one more hook to prompt them to require counseling, no alcohol use, no weapons and “supervised” probation.

Would this have changed the outcome of what Marcus Schumacher ultimately did last week? Possibly, but we’ll never know because those plea agreements once again came into play.

If the system had worked … if the individuals in court had been something more than names … if they had been looked at individually, instead of as a bunch of people running through the criminal justice system … possibly, just possibly, all parties involved in the recent shootings ― both Officer Moszer and Marcus Schumacher ― might be alive today.

It’s easy to second-guess a scenario when one doesn’t have access to all of the facts. But in this case, if I did, methinks my conclusions and comments would remain the same. Amen.

4 thoughts on “TOM DAVIES: The Verdict — The System Failed”

  • Therese February 18, 2016 at 11:15 am

    Thanks Judge for your thoughtful analysis of this dreadful case.

  • Thomas A. Davies February 18, 2016 at 2:36 pm

    You’re entirely welcome. I’m glad you liked it.

  • Lisa February 20, 2016 at 8:25 am

    Thanks Judge Davies for a great article. Time for the system to reflect so we can move on to better judgment.

    1. Thomas A. Davies February 20, 2016 at 12:38 pm

      Thanks for your kind remarks


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