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Wednesday, December 19, 2007 - Page updated at 12:00 AM

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Paying for a crime she can't remember

Seattle Times staff reporter

Some people think Cleora Swirtz should just be happy she's not in jail.

A Snohomish County jury convicted her earlier this year of vehicular homicide for the 2004 car accident in which her boyfriend, Randall Frank, was killed. Police said she was driving more than 100 mph when she struck a tree; prosecutors said she was reckless.

The judge gave Swirtz 480 hours of community service, a $9,000 fine and no prison time.

But Swirtz, 25, doesn't think the conviction — or sentence — was fair for an accident she can't remember and can't explain.

She doesn't want to be branded as her boyfriend's killer, marked as a felon, denied her right to vote and her chance to work in health care. She's used her life savings, about $7,000, to hire an attorney who has filed an appeal to overturn the conviction.

Swirtz, who was in a coma for more than a month, cannot imagine that she would intentionally have driven that fast. She is convinced that whatever happened must have been beyond her control.

In the appeal, Swirtz's attorney is arguing that brain injury and amnesia she suffered as a result of the crash made her unable to meaningfully assist in her defense.

The night of the crash

On the night of Feb. 27, 2004, Swirtz's mother later told her, Swirtz had picked Frank up at a bus stop in Seattle and they had stopped at her mother's home in Marysville to change clothes. She and Frank were headed to a friend's house to play the video game "Dance Dance Revolution."

According to charging papers, Swirtz was driving on 99th Avenue Northeast in Arlington just before 10 p.m. when she lost control of her father's 2000 Pontiac Sunfire, spun across the centerline and struck a tree at 102 mph.

There were no witnesses, police said.

Swirtz and Frank were airlifted to Harborview Medical Center in Seattle. He was dead when they arrived.

It took doctors hours to stabilize Swirtz, who had suffered head and brain injuries, broken ribs and massive blood loss. It was days before her family knew whether she would survive and months before they knew what that survival would look like.

When Swirtz regained consciousness more than a month later, she couldn't talk, and the first thing she remembers was trying to write, "Where's Randy?"

"It was the weirdest thing," she said. "I remember all my dreams. I had no idea that I had been in a car accident. No idea that my boyfriend was dead. I felt like I was in a deep sleep and I wanted to wake up so hard, but I couldn't."

Life as a felon

Swirtz lives alone in a subsidized apartment in Marysville.

She still bears some of the effects of the accident. She says she carries a list so she doesn't forget things she was told a few minutes earlier, and the former cross-country athlete can no longer run.

Because she lost her driver's license as part of her sentence, she rises at 5 a.m. to take the bus to her job as a legal receptionist in Everett. After work three nights a week, she helps elderly residents at her apartment complex as part of her community-service obligation.

Her felony — the only criminal conviction she's ever had — prevents her from pursuing a career in elder health care, something she's been interested in for most of her life.

She also works all day on Saturdays doing community service at Goodwill Industries. And she's slowly paying off the fines.

At this rate, she says, she will have done everything the court told her to by spring. "I feel this incredible need to try to get out from under this," she said. "I want to have my name cleared, but if that doesn't happen I want my court obligations over."

Pleas for leniency

Two weeks before Christmas 2004, Swirtz's mother saw her daughter's name in the newspaper. Despite pleas for leniency from Frank's family, Snohomish County prosecutors had charged Swirtz with vehicular homicide.

"Ruining her life by giving her a record for something that was simply an accident just doesn't seem right to me," Frank's sister, Robin Harms of Aitkin, Minn., wrote to prosecutors. "I know that if he was alive he would have been on her side."

Prosecutors conceded that blood tests drawn at Harborview tested negative for drugs and alcohol in both Frank and Swirtz.

"From what I recall, she was driving when the car crashed. She was the cause, and her passenger died," said Joan Cavagnaro, Snohomish County chief deputy prosecutor. "We believed the crime was there and that it was provable and we proceeded."

Prosecutors initially said they would seek a 2 ½-year prison sentence, Swirtz recalls. Later, she was offered a chance to plead guilty in exchange for a promise of no jail time.

But Swirtz refused and pressed on to trial. "I didn't feel I could plead guilty to something I don't remember. I wanted a jury of my peers."

Her public defender, Marybeth Dingledy, argued that Swirtz was not competent to stand trial. Under law, defendants are deemed competent to stand trial when they are able to understand the charges filed against them and able to assist in their defense.

Competency is more frequently an issue when a defendant has mental illness, but Dingledy says competency can be affected by a mental defect.

Experts for the state and the defense agreed that Swirtz had suffered a brain injury and amnesia as a result of the accident, Dingledy wrote in court documents.

Dingledy said that Swirtz could not assist in her defense because she could not explain what happened right before the accident.

Dingledy also argued at trial that there is substantial anecdotal evidence about Swirtz's vehicle model being subject to incidents of sudden unexplained acceleration, and she said that the car's black-box data recorder, which listed Swirtz's speed at the time of the accident at 102 mph, was inconsistent with the engine's recorded rpms.

Jurors deliberated for about a day before returning a guilty verdict. Two of them, however, took the unusual step of writing to the judge to urge mercy.

"At this time I would like to ask you to be as lenient, as the law allows, in her sentence," wrote one juror.

Attorney David Zuckerman said he is investigating several potential appeal arguments, including the issue of her competency, which he believes was wrongly determined in trial court, and the question of whether prosecutors produced evidence of recklessness.

"It's hard to imagine how she can help her attorney if she is the only witness and she can't say what happened," he said.

He said appeals courts have ruled that speed alone is not enough to prove recklessness and the case is missing all the usual hallmarks of evidence.

"For example, typically there is either strong evidence of intoxication or clear evidence of some sort of reckless conduct ... two cars drag-racing each other down a busy street ... a car bobbing and weaving between traffic in a crowded area ... . We don't seem to have any clear evidence of reckless conduct here," he said.

Swirtz said she believes losing the love of her life and suffering physical injuries was punishment enough for an accident she doesn't remember.

"I just don't believe, inside of me, that I was reckless, " she said. "I would never have endangered mine or my boyfriend's life like that. That's not me."

Christine Clarridge: 206-464-8983 or cclarridge@seattletimes.com

Copyright © 2007 The Seattle Times Company

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