ATF agent Clark acquitted

ST. THOMAS — In a stunning turn of events, the trial of William Clark ended abruptly Thursday afternoon, and Clark walked out of a Virgin Islands Superior courtroom acquitted of all the charges against him.

Clark, 35, a Bureau of Alcohol, Tobacco, Firearms and Explosives agent, was on trial for the Sept. 7, 2008, fatal shooting of Marcus Sukow, 44, outside a Mahogany Run condominium. Clark, who was charged with second-degree murder, voluntary manslaughter and two counts of using a dangerous weapon during the commission of a crime of violence, claimed he shot Sukow in self-defense. If convicted of second-degree murder, Clark faced a minimum prison sentence of five years.

After hearing arguments from both sides, Senior Sitting Judge Edgar Ross announced his decision to free Clark, based primarily on the lack of proper identification of Sukow’s body.

Minutes after Ross declared him a free man, Clark emerged from the courthouse, holding hands with his fiancee. Clark declined to comment on the outcome of his case.

After listening to four days of the prosecution’s case, jurors were denied the opportunity to hear the defense mount its argument, as Ross ruled to have all the charges against Clark dismissed on a technicality.

Several jurors raised their eyebrows, and others’ mouths dropped open in disbelief upon hearing Ross’ ruling.

“As a result of legal proceedings,” Ross told the jury, “I regrettably inform you that your services are no longer required because the court has acquitted the defendant. The community thanks you for your service. The jury is discharged.”

Two of the jurors spoke to The Daily News outside the courtroom but did not give their names. One said she was ready to acquit and agreed with Ross’ decision, while the other said he wanted to hear the defense’s side before he could make a decision.

Sukow’s parents, Janice and Dale Sukow, were floored by the turn of events.

“My mind’s dead. I don’t know what to say. It’s the most unjust thing I’ve ever seen,” Janice Sukow said, expressing anger at the decision and at Clark “That man walked away. ... He ruined not only Mark’s life, but our family. Mark has a 17-year-old daughter. I think he’s now gonna get the medal of recognition.”

Dale Sukow was equally upset. “We just can’t believe it. He could have driven off, he didn’t have to get involved, he didn’t have to do anything,” Dale Sukow said.

Marcus Sukow’s girlfriend, Marguerite Duncan, who testified at the trial as the prosecution’s key witness, was appalled at Ross’ ruling.

“This is the most ridiculous decision that I’ve ever seen a judge make,” she said.

Clark’s case came to an abrupt end quickly after the prosecution team, Assistant Attorney General Claude Walker and Assistant Attorney General Douglas Sprotte, put Henry Carr on the stand.

Carr, an attorney by profession, was a neighbor of both Clark’s and Marcus Sukow’s and was a witness to the shooting.

In recounting his version of the events, Carr said he came out of his apartment on that September morning to retrieve his sunglasses from his car. Carr saw Duncan, approached her and asked her if she needed any assistance.

At that point, according to Carr, Sukow came to Carr in a menacing manner with a flashlight in his hand, shouting racial slurs. Carr backed away because Sukow was a very large man, but Carr said he was not actually concerned for his safety at that point.

“I kept backing away until I thought I had a comfortable distance at that point,” Carr testified.

Sukow then turned his attention to Clark’s vehicle because Duncan was in Clark’s vehicle, Carr said.

“Mr. Sukow was demanding that Ms. Duncan get out of Clark’s vehicle. He was saying, ‘How could you do this to me, get out of the vehicle,’” he said. “Mr. Sukow was 5 to 6 feet at that point.”

Carr said that all of a sudden, he saw a weapon drawn.

“I was shocked that what happened led to the use of deadly force. I quite didn’t understand the brandishing of a weapon at that point in time. Mr. Clark displayed the gun. Mr. Sukow said, ‘So now you’re gonna shoot me?’” Carr testified. “Immediately after that, five shots came out in immediate succession. Mr. Sukow grabbed his chest and staggered backwards. Mr. Clark got out of his vehicle and declared himself to be a federal agent. I was stunned. Right after that, I went back to my condo unit.”

Under cross-examination by defense attorney Rudolph Acree, Carr maintained that Sukow was standing 5 to 6 feet away from Clark’s vehicle, still yelling and holding the flashlight when he went to Clark’s vehicle. A security guard had arrived on the scene but did not attempt to restrain Sukow.

“The flashlight was down as opposed to up in the air,” Carr said.

Carr said at that time, Clark did not have an area behind him to get away from Sukow because he was sitting in his truck.

Then gunshots rang out, Carr said, repeating that he heard five shots, which he believed hit Sukow in the chest.

“I believe I may have seen some blood at the time Mr. Sukow grabbed his chest,” Carr said.

After the shooting, Carr heard Clark yelling to someone to bring a towel and he saw Clark cradling Sukow’s head, giving him emergency treatment, Carr testified.

After Carr’s testimony, the prosecution rested its case.

The defense team immediately stood and filed a Rule 29 motion for judgment of acquittal.

Under the law, when a Rule 29 motion is entered: “The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.”

Defense attorney Kerry Drue, who presented the motion in the absence of the jury, argued that the government failed to present sufficient evidence to present a clear case on each of the charges.

In order to deem a homicide second-degree murder, there must be proof beyond a reasonable doubt that there was malice aforethought.

“A reasonable trier of fact cannot conclude the shooting of Marcus Sukow was with malice aforethought. A shooting in and of itself is not enough to support a murder charge,” Drue argued,  “On Sept. 7, 2008, Marcus Sukow was drunk, dangerous and destructive,” Drue said. “Other evidence of lack of murder shows that when Agent Clark drew his weapon, it was clearly in response to Marcus Sukow’s violent, aggressive conduct. Marcus Sukow never said, ‘Don’t shoot me, I’m not going to hurt you.’ He never dropped the flashlight, and he never ran away when he saw the gun.”

Drue stated that in order to prove voluntary manslaughter, the government has to prove an unlawful killing occurred during a sudden oral heated argument.

“There was no evidence that Agent Clark had a violent disposition or that Marcus Sukow and Agent Clark were arguing at the time of the shooting or that Mr. Clark showed any ill will to Marcus Sukow,” Drue said. “Everyone testified that Mr. Clark was cool and calm throughout the entire incident. In conclusion, the totality of the circumstances, Mr. Clark’s conduct after the shooting demonstrate the lack of ill will; he immediately rendered assistance and tried everything to stabilize Mr. Sukow.”

Another basis for the defense’s motion for judgment of acquittal was that the prosecution did not present evidence for every element of the charges, in particular that the person who was killed was Sukow.

“There was no identification of the autopsy, which is an element of all the charges. There was no independent evidence that the body Dr. Landron autopsied was Marcus Sukow, that Marcus Sukow was picked up, taken to the hospital, expired at the hospital and was autopsied,” Drue said.

Referring to a death certificate the prosecution offered, which was stipulated to by the government and admitted into evidence by Ross, Drue dismissed that piece of evidence as nothing but hearsay.

“The fact his name is on the death certificate is not sufficient. It could have been a mistake,” she said. “The prosecution has serious chain of custody issues. There’s no chain of custody. The prosecution failed to present any witnesses from the hospital or from the police department or EMTs that Mr. Sukow was even taken to the hospital.”

Ross agreed with Drue’s line of reasoning.

“You have not established by any eyewitness testimony that the body that Dr. Landron performed the autopsy on was the same body that was shot,” Ross said, before Walker could respond to Drue’s statements. “I’m going to give you until 1 o’clock to get the evidence and show it to the court,” he said, and adjourned the trial for an hour.

Citing several landmark cases, Walker, assisted by Garfield Bloodman, Acting Criminal Division Chief on St. Croix, argued that the prosecution proved through circumstantial evidence that it was Sukow was shot and died.

“A Medical Examiner doesn’t have to establish cause of death, but how a person died,” Bloodman said. “We can establish through the testimony of Ms. Duncan she saw him shot, followed him to the hospital, saw him die and she didn’t see him again. If you take a moment and review this case, you will see the facts we’re referring to.”

Ross responded: “I’m not concerned with the cause of death.”

Walker reasoned that witnesses who testified at the trial said they saw the defendant fatally shoot Sukow.

“We don’t have to show the defendant had any ill will to Mr. Sukow,” Walker said, referring to a precedent case, Government vs. Rosa. “Just the mere fact he used a gun, pointed it at Sukow, that is sufficient. The defense said that Sukow was drunk and destructive, it doesn’t mean he has to be shot five times by the defendant. They made much of the fact that Sukow was intoxicated. It doesn’t justify his being shot. The defendant has shown a wanton disregard for life.”

Walker insisted that Sukow was 5 to 6 feet away from Clark, giving Clark an opportunity to move away.

“But instead he opened the door, according to Mr. Carr, and shot Sukow. There was no sudden quarrel, but the statute doesn’t say the quarrel has to be between the defendant and the victim, but there was a quarrel. We’ve met the element of voluntary manslaughter. There’s more than enough evidence for the jury to take back, deliberate and decide if the defendant is guilty or innocent,” Walker said.

“To show the relevance of Dr. Landron’s testimony, it must be shown the person who was autopsied by Landron is the same person who was shot. There was no testimony by anyone that the body presented to Dr. Landron is Marcus Sukow. Consequently, Dr. Landron’s testimony is irrelevant to this case. The court will dismiss counts one and two of the information,” Ross said.

Reached Thursday night, Drue said she was at a gathering with Clark and his family and friends, and that Clark declined to comment.

“He’s taking it all in, it’s a lot to process,” Drue said.

The victim’s family friends and also were still mentally and emotionally trying to understand the judge’s reasoning.

“How could he say Mark is not dead? I went to a viewing several days after the killing. I held his hand and I told him good bye,” she said, adding that her son called her from St. Thomas every morning before he left for work.

“Marcus was not the person they painted him to be,” she said. “My phone is still under my pillow. I don’t hear it ring; all I hear is silence because Mark can’t call me anymore.”

Dale Sukow found the judge’s ruling odd because he is certain his son is dead.

“I can verify he’s dead. Lord, I can’t forget that,” he said.

On the other hand, Peter Clark, the defendant’s father, was clearly pleased at the outcome.

“Justice was finally done,” he said.

Acree indicated that the outcome was as the defense team had predicted.

“We knew while we were in the course of the case that no one had identified the decedent as the decedent,” he said. “When I saw the tape, what we knew unequivocally is that you cannot establish that the person, Mr. Sukow in this case, was the person who expired based on the evidence they presented. What the judge did was follow the law, no more, no less.”

Mark Schamel, another member of the defense team, said the case should never have gone to trial.

“The Attorney General should never have brought this case, and I put this squarely on Wilson Campbell,” he said. “It was a total use of legal force. Will Clark did exactly what he was trained to do.”

Drue, a former V.I. Attorney General, said justice has been served.

“I always thought the case was overcharged, and I think that as there was additional investigation, I think the outcome is the best outcome,” she said.

The ruling represents a blow to prosecutors who fought long and hard to bring the case to trial in the Virgin Islands.

“We wholeheartedly disagree with the judge’s ruling in this case, and we’re currently at this time reviewing our options,” said Campbell, Chief of the V.I. Justice Department Criminal Division. “We believe the prosecution in this case put on the record sufficient evidence for the matter to surpass a Rule 29, and we will take the appropriate steps at this time in order to get the case reinstated.”

Attorney General Vincent Frazer said he saw it the same way.

“Judge Ross excluded pertinent documents from evidence, thereby paving the way for the dismissal, a ruling that we would characterize as unprecedented on this issue,’ Frazer said in a written statement issued Thursday night.

“While the Department of Justice does not have a vested interest in any particular outcome, other than to seek justice, we consider the outcome of this case to be very disappointing. We stand by the position that the outcome of this case should have been decided by a jury of Virgin Islands residents, not by a single judge,” he said.

For Clark, this trial is over, but more could be coming.

The Justice Department is planning to appeal Ross’ decision, according to Frazer.

Sukow’s family will file a civil suit against Clark, according to Rachel Morrison, who is representing the family.

“The civil suit certainly will go forward, undoubtedly, and we believe that the evidence that was brought forth today, with respect to the elements of the crime and the intentional nature of the killing of Mr. Sukow, yes, the civil case will continue,” she said.

— Contact Corliss Smithen at 774-8772 ext. 302 or e-mail csmithen@dailynews.vi

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