Little solace in police account of son’s death

Published 9:00 pm Friday, February 20, 2004

How do you talk to your dead son?

Ralph Lowery shivered in his car in the dark parking lot of an Oklahoma supermarket and did just that as Christmas neared in 1999.

The Snohomish man wept. He told his boy he loved him. He raged at God.

"Why did you do this?" Ralph screamed at the sky. "Why did you do this?"

For the second time that year, Ralph mourned the loss of a son. In April, Josh, who wasn’t yet 20, died after he dropped a loaded handgun at the Super-H Warehouse Foods where he worked in Durant, Okla.

Now Damon, Ralph’s eldest son, was dead after a struggle with police in Portland, Ore. Damon, 29, had died in circumstances that raised painful questions about the police and his own actions.

Josh’s death was tragic, but an accident.

Ralph dealt with his grief over Josh the only way that made sense to him. He followed his heart.

He got up one morning, climbed into his car and drove nonstop halfway across the country. He arrived late at night in the southern Oklahoma town where Josh had died. The store was closed. Ralph kept a vigil until daybreak, alone except for memories.

Oklahoma was a state Ralph already associated with pain and despair. Few of his neighbors knew that almost a half-century earlier Ralph had spent most of his teenage years imprisoned there at hard labor for auto theft. Even so, Ralph felt Josh needed him, so he went to his dead son.

Returning home, he saw statues of two boys placed by his wife, Carol, beneath a magnolia tree in their backyard. Cast in concrete, the statues were too soft-featured and innocent to depict Ralph’s sons in life, yet somehow they captured their spirits.

Carol suggested the ornamental garden taking shape behind their home should be a place to remember Ralph’s dead sons. Toiling to make that vision reality would be one focus of Ralph’s life over the next four years. The other would be trying to learn the truth surrounding Damon’s death.

It was Damon’s mother, Carol Marsall of Lynnwood, who insisted on the investigation. She called Ralph, asking his help to find out what had happened to their son.

They had endured a bitter divorce years before. Although they now could talk, Ralph and his ex-wife were most comfortable leading separate lives. He agreed to accompany her to Oregon, but their shared loss just seemed to add to the silence during the long drive to Portland.

"I thought, initially, we’d see a few people, we’d read some reports, we’d come back home and we would grieve," Ralph said.

They’d arranged to meet with the emergency room doctor who was on duty the morning Damon was brought in by an ambulance. He said Damon had arrived without a pulse. The doctor said one tragic aspect of Damon’s death was that the deep gash to his neck would have been survivable with medical attention.

Damon’s parents went to the state medical examiner’s office. No death certificate had been issued. Authorities still hadn’t determined what happened.

Dr. Nikolas Hartshorne, the forensic pathologist who had conducted Damon’s autopsy, told the grieving parents Damon had died from a cut to his throat. Significantly, he also told them the wound shouldn’t have been fatal. He said one of the officers had seen Damon cutting himself with shards of broken glass.

The gash also could have occurred as he went through the window. Hartshorne wasn’t certain enough about how the cut was inflicted to decide whether it was an accident, a suicide or something else. He ruled the manner of Damon’s death as undetermined.

It wasn’t until after the Portland Police Bureau’s internal investigation was completed and submitted to a grand jury for review that Ralph began to better grasp how Damon had died.

Police repeatedly had fired on Damon with a 12-gauge shotgun loaded with bags of metal shot known as bean bag rounds. The projectiles, used as an alternative to shotgun shells, usually pack enough punch that a single round will drop a man. Damon was hit at least 10 times.

Ralph knew what it felt like to be shot at. Did Damon believe he was dying when the shotgun roared?

Police used metal batons, striking Damon more than two dozen times. How had he endured the agony? Did his boy’s teeth rattle as Ralph’s had when he was clubbed in prison years before?

Police used pepper spray. It causes eyes to swell shut and makes it hard to breathe. Investigators determined that up to six cans had been used on Damon — 70 times the amount police trainers recommend to control a suspect.

Ralph imagined himself as his son had been, handcuffed, hobbled and hogtied, unable to see, struggling to breathe, the pepper spray running into his cuts.

The grand jury heard the evidence in secret, and ruled that the police hadn’t engaged in criminal conduct in Damon’s death.

That answer wasn’t enough. It explained nothing. Ralph and Damon’s mother pored over police reports, witness statements and transcripts of interviews with officers. They made regular trips to Portland, tracking down anyone who might have information.

Ralph was troubled by the amount of force used by police, but he didn’t blame them for Damon’s death. All of the reports said their son was alive and struggling as he was loaded into the ambulance.

Ralph came to believe the ambulance crews were somehow responsible. After all, he reasoned, the doctors said Damon’s neck injury should have been survivable. There was contradictory paperwork on whether ambulance crews attempted lifesaving efforts.

Ralph and his ex-wife tried to find someone to help them sue the ambulance company. In 2001, they saw an article about a case won by two young Seattle lawyers. Their client was a woman shot in the back during a traffic stop by Oregon state troopers. The jury awarded $8 million. But money was irrelevant to Damon’s parents. They hoped to spare another family their pain.

Attorneys Ed Budge and Erik Heipt agreed to look at records from Damon’s case. It wasn’t long before Ralph and Carol Marsall were summoned to the lawyers’ offices.

Heipt said there appeared to be a good case against Portland police, that the level of force they had used on Damon raised questions.

Wait, Ralph said. What about the ambulance crew? Damon had been alive when the police passed him along, right?

Heipt said that wasn’t so.

Damon died while in police custody, the lawyer said, and there was evidence to prove it.