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Friday, October 20, 2000 - Page updated at 12:00 AM

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Mistrial in David case

Seattle Times Snohomish County bureau

EVERETT - A Snohomish County Superior Court jury failed to reach a verdict yesterday on whether Victor David battered his wife for years aboard a sailboat they shared with their seven dogs. The judge declared a mistrial.

After nearly four weeks of testimony by 61 witnesses and three days' deliberation, the jurors split 7-5 in favor of acquitting David of the second-degree assault of Linda David, 52, jurors said.

Jim Townsend, Snohomish County's chief criminal deputy prosecutor, said there was "a substantial likelihood" that David would be retried on the assault charge and that he would make a decision next week.

A retrial date of Dec. 11 was set yesterday; however, it's unlikely a second trial could begin then, in part because finding an unbiased jury might necessitate a change of venue.

The jury found David, a Canadian, guilty of being an alien in possession of a firearm.

Sentencing was scheduled for Dec. 11.

Saying there were no grounds for an exceptional sentence for possessing the handgun, prosecutors said they would recommend a standard sentence of up to one year in jail. David has already spent more than a year in jail awaiting trial.

David, 60, remains in custody at the Snohomish County Jail in lieu of $150,000 bail.

"Justice has yet to be served in this matter," David said as he was being led from the courthouse back to the jail.

"I want to talk to `Frontline,' " he said, referring to the PBS news program.

David was accused of beating his wife for years aboard a squalid sailboat moored near Tacoma and then Everett, until she was rescued in January 1997 after a social worker set out to see if she was dead or alive.

Linda David was emaciated, crippled, blind and incoherent when found covered in filth in the bow of the boat, surrounded by seven German shepherds and a cat named Sweet Pea that also lived aboard. Prosecutors said David kept his wife in a floating dungeon to use as a "punching bag" and a meal ticket.

For years, the state had been paying David to care for his wife after he said she had multiple sclerosis (MS).

Because social workers failed to act on numerous doctors' reports that it appeared Linda David was being physically abused - and stopped checking on her for three years before she was removed from the boat - the state in September paid nearly $9 million to avoid a civil trial and settle a lawsuit brought on her behalf.

But the criminal case proved more difficult. In particular, said jurors Kami Cramer and Ann Flynn, was the instruction that jurors could only consider assaults that might have occurred between September 1993 and January 1997 - based on the statute of limitations for assault.

Doctors testifying for prosecutors Kathy Patterson and Jo Vanderlee said retinal hemorrhages and a broken bone in Linda David's left forearm had occurred during that time and that the injuries were from abuse.

Two witnesses testified that her face, which became distorted by scar tissue, had been normal when they saw her in 1993 and 1994 and that she was not blind then.

But Bryan Hershman, David's defense lawyer, rebutted that testimony with his own witnesses who said that Linda David had always looked the same.

Doctors conceded on cross-examination that the injuries could possibly have occurred in other ways. Retinal hemorrhages, for instance, can be caused by a hard sneeze.

The jurors were selected in part because they said they had not heard previous news accounts of the case. They did not know that David wasn't arrested for more than two years after Linda David was removed from the boat. They knew little about the civil suit and were not aware, they said, that David was in custody during the trial.

Of the seven jurors who thought David ought to be acquitted, several thought he had beaten his wife but the state had not proved it beyond a reasonable doubt.

"I'm not saying he was innocent by any stretch of the imagination," said Cramer, 36, of Arlington. "But there was nothing black and white in this case. It was all fuzz."

Some jurors believed Linda David's injuries, including glaucoma, cataracts, broken bones and cauliflower ears, were the result of repeated falls, as Hershman argued.

But Nathan Broadbent, 49, of Snohomish, said, "The number of injuries she sustained convinced me . . . all of them together pointed to spousal abuse."

Still, Broadbent said that he could see why other jurors saw it differently and that he could see "good parts" in Victor David.

Victor David did not testify. Jurors said Linda David's sometimes barely intelligible testimony, in which she said both that her husband had hit her and that he "wasn't into hitting," got "mixed reviews." Some jurors believed she had been coached, Cramer said.

Prosecutors had said the largely circumstantial case relying on medical experts and a brain-damaged victim would be a tough one.

Although David's assault charge would have brought a standard sentence of three to nine months, they said they would have argued for the maximum 10-year sentence.

They marshaled an array of witnesses, including neurologists, radiologists, ophthalmologists and general practitioners who testified that Linda David's brain damage, blindness, scars and deformed ears and nose were from being repeatedly abused.

A review of Linda David's medical records beginning in 1979 showed her dramatic decline and Victor David's varying explanations for her disabilities.

For some time, he told doctors his wife's disabilities had started after she'd had a kidney stone removed. But years later, he said her problems were caused by falls on the boat. Asked what might have caused his wife's cauliflower ears, Victor David said, "The walls."

Hershman gave David a vigorous defense.

For nearly a day, he grilled a young social worker who he said had implanted memories of abuse in Linda David.

Despite doctors' testimony that Linda David had never had MS, Hershman frequently said that she had a neurological disease, balance problems, and no ability to catch herself when she fell. He said she fell constantly.

Most second-degree-assault trials last two or three days and are relatively uncomplicated by pretrial motions and legal wrangling. But Victor David's trial continued four weeks, twice the time of many murder trials.

David, who repeatedly said his troubles were the result of a drug-trafficking conspiracy by law enforcement and the state Department of Social and Health Services - and who for several months was ruled mentally incompetent to stand trial - was composed throughout the trial.

He often whispered suggestions to Hershman about private hearings he wanted with the judge or lines of inquiry he thought should be pressed. "Not gonna happen," Hershman could be heard telling David on several occasions.

Hershman was the third lawyer to represent David.

Hershman swiftly got David taken off medications he had been given at Western State Hospital; David responded by cooperating with Hershman and was soon deemed competent to stand trial.

"Half of me is very happy," Hershman said yesterday. The other half, he said, wasn't so happy "at the prospect of having to do it again."

Manny Gonzales contributed to this report.

Nancy Montgomery's phone message number is 425-745-7803. Her e-mail address is:

nmontgomery@seattletimes.com.

Copyright (c) 2000 Seattle Times Company, All Rights Reserved.

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