Troubled Waters

On April 23, Charles Edward Waters, a homeless man best known around Boulder for playing his guitar on the Pearl Street Mall for tips, was, for all intents and purposes, sentenced to spend the rest of his life in prison.

It’s just the math. Waters, Eddie to his friends, family and the other members of Boulder’s homeless community, is 57 years old, and District Court Judge Thomas Mulvahill sentenced him to 25 years for assault. Based on the mortuary tables for men who have lived on the street and those who get sent to prison, Waters will have to get lucky if he’s going to beat the odds and breathe free air again. And luck is something that’s been in short supply the last couple of years for this husband and father of three.

As you may recall from the daily newspaper coverage spanning the past two years, Waters’ case was hardly low-profile. The prosecutor claimed that Waters stabbed two men several times with his pocketknife, killing one and injuring the other severely. That part of the story is true. It’s something that Waters has never denied. He immediately told the first officer on the scene that he had stabbed the two men in self-defense and then told her that the knife he had used was in his pocket.

Despite his adamant claim that he had acted in self-defense, believing the men were trying to kill him for some unknown reason and that they seemed to be under the influence of drugs at the time he says they attacked, Waters was listed as the suspect in an Oct. 27 altercation, and the two men who had been stabbed were listed as victim one and victim two on every police report filed on this case, including those prepared immediately after the incident.

Had Waters been standing in his own home or apartment on that day when the police arrived, it’s likely that he would have been considered the victim, but he wasn’t, because he was homeless.

So even though the law allows any of us, at any time, anywhere, to take any measure we deem necessary to protect ourselves if we believe that our lives are being threatened, including taking another person’s life, with no witnesses needed aside from those involved in the altercation, and no ownership of property needed to invoke the “make my day” law, Waters was instantly deemed the aggressor.

The Boulder County district attorney’s office charged him with murder in the second degree, criminal attempt to commit murder in the first degree and assault in the first degree. The fact that Waters never disputed that he had stabbed the two men made the DA’s decision to charge him with such crimes pretty simple, legally speaking, that is.

For a prosecutor who had no witnesses aside from the two men who survived the deadly altercation, and with those two survivors pointing the finger of guilt at each other, it must have made more sense to charge the homeless man with the knife who admitted that he stabbed the other two than to consider charging a dead man and his wounded counterpart with some lesser crime like assault or attempted robbery.

The latter scenario would have resulted in allowing Waters, a homeless man who had just admitted to stabbing two people, to simply walk back to his spot on the Pearl Street Mall as if nothing had happened, a free man.

It is an understatement to say that such a decision to turn Waters loose would have been controversial in a town whose affluent citizens are at best uneasy about, or at worst terrified of, the area’s homeless population.

But that is pretty much what we believe should have happened in the case of Waters, because as the jury would acknowledge later, there was a preponderance of reasonable doubt in this case. Several members of the jury believed it was possible that Waters may have been acting in self-defense.

The system almost worked … almost.

After a five-month-long BW investigation of information presented at trial as well as much more that the jury never heard, it is our opinion that the legal system failed Waters for a variety of reasons.

We believe it failed him because in Boulder, the system is prejudiced against homeless people. That’s not a surprise. Research shows that persons unemployed or making $5,000 per year or less who wind up being represented by courtappointed attorneys because they can’t afford to hire their own counsel are far more likely to be convicted than their wealthier counterparts using private lawyers. And the sentences of the poor are generally 20 percent longer than they are for those who can afford to hire an attorney.

We also believe the system failed Waters because the court would not allow information critical to his claim of self-defense to be presented to the jury. And finally, we think it failed him because in our adversarial system of justice, a system that pits prosecutor against defense in an all-out war for victory for their side as opposed to the pursuit of anything resembling justice, technicalities of procedure can too often trump the pursuit of truth, and all too often the side with the most resources and best relationships within the system wins.

It’s not enough to say that it’s a good system that works well most of the time, not if you are someone spending the rest of your life in prison because you were the exception to “most of the time.”

The DA’s office did what it needed to do to win. That’s its job. Unfortunately, winning and justice are not synonymous.

In fact, from a purely legal standpoint, the DA lost the Waters case for the most part, and we believe it should have lost it entirely. The jury didn’t find Waters guilty of murder, because it hung six-to-six on that charge. Six people on the jury believed that there was ample reasonable doubt. Six people, according to jurors we have interviewed, believed that Waters could well have been acting in self-defense.

As for the DA’s charge of attempted murder, same thing: reasonable doubt, could have been acting in self-defense, hung jury. The only difference this time is that only three jurors believed there was reasonable doubt.

It stands to reason that if a good number of jurors believed it was possible that Waters may have been acting in self-defense on the murder charge and the attempted murder charge, then of course the same reasonable doubt would have applied to the assault charge as well. How could it not?

If you have reasonable doubt about murder and attempted murder because you believe that the person accused may have been acting in his own self-defense, how can you then suspend that doubt and render a guilty verdict that states that Waters’ exact same actions in the exact same fight at the exact same time could not possibly have been in self-defense, but instead were intended as an assault with a weapon designed to inflict severe harm on someone for no reason?

It makes no sense. The same reasonable doubt should have applied to all three charges, because all three charges stemmed from the exact same actions at the exact same time.

Having spoken with a number of the jurors involved with this case, there are a couple of possible explanations for why this conflicting verdict on the assault charge was rendered. We will discuss those later in this article.

What made this case a challenge from the very beginning is that the crime was so senseless. The jury was presented with virtually no motives or explanation for why Eddie Waters, a man who was considered a peaceful, gentle person by all who knew him, a man who avoided conflict, a man with no history of violence, would suddenly decide to start stabbing people he hardly knew.

Why would he do it? Why at that moment? Eddie Waters was finally getting a long-overdue break. He was leaving the very next day to reunite with his wife and three kids, kids whom he called every single night even though the tough economic times had put him on the streets. And even though he was on the streets, he never panhandled, instead opting to play his guitar for tips because he believed it was important to earn his own way.

Waters was on his way home, back to his wife of more than 20 years. He was excited about getting to go trick-or-treating with his children for the first time in way too long. Oct. 29, 2011, was to be the best day of his life in more than two years. Why would he suddenly decide to attack and kill people?

And then there is the other side of the equation. If Waters’ claim that he acted in self-defense that night is true, then wouldn’t there have to be a motive, or at least an explanation, for why he was attacked out of the blue by two fellow homeless men? What could have possibly motivated their senseless attack if Waters’ version of events is to be believed?

The jury certainly never heard a plausible explanation for why Waters might have been attacked that night.

But it wasn’t because there wasn’t one. It was just that the jury wasn’t allowed to hear it. Technicalities can trump justice in our system.

In his letters from prison, Waters pleads, “I want to go home. I don’t belong here. My kids need a father, and I need them. If you can help me please do. I don’t have any resources or legal knowledge. I don’t know what to do.”

Waters understands that his life is hanging by a thread, he just doesn’t know how to stop it from snapping.

He has no voice. He has been deemed our society’s lowest of the low, a homeless man who has now been thrown into the world of the forgotten, the hellhole of prison. It is the place Waters will most likely spend the rest of his life unless someone comes forward to champion his cause.

All of us have a responsibility to make that happen. The court documents in this case read, “People of the State of Colorado vs. Charles Edward Waters.” That means that all of us are responsible for having put him in prison. If we were wrong to do so, then all of us share the responsibility for getting him back out again.

What happened? The undisputed facts

The following description of what happened on the night that Charles “Eddie” Waters, Michael Giampino and Johnny “Turtle” Rasnick, all homeless at the time, walked together from the Pearl Street Mall to a shed located near 3100 Pearl Parkway to sleep for the night is a composite description taken from the 64 various police reports that were filed pertaining to this case.

This section is titled “the undisputed facts” because it is limited to only what the police saw and discovered upon their arrival. It contains a few elements of Waters’, Giampino’s and Rasnick’s statements to police at the scene, but only in so far as their stories corroborate one another on the events of that night.

Discrepancies between Waters’ and Giampino’s accounts of that night will be examined subsequently. Before he died, Johnny Rasnick spoke only a few words, and his statements as reported by police appear below.

The fact that an open 911 call from a cell phone was recorded is substantive to the outcome of this case and will also be dealt with later on. Quote marks depict direct statements taken from one of the police reports.

At 12:48 a.m. on the morning of Oct. 28, 2011, Boulder police officers Stephanie Ragland, Benjamin Graff, Ryan Bemis, Amie Roth — who was in training — and Gary Stevens, among others, responded to the area of 3100 Pearl Parkway to investigate a 911 hang-up. While the officers were en route to the area, police dispatch was advising them about what had been heard during the 911 call before it was disconnected. It was described as “a lot of loud noise and yelling in the background, and included the comment, ‘Don’t kill me.’” Dispatch also informed the officers that they heard various voices saying, “Please open the door,” “You just tried to kill me,” and “I’m going to stomp your head into the concrete.” The dispatcher also heard the statement “Johnny, you’re fucked up,” repeatedly. In addition, dispatch heard, “They made me so scared I had to do this” and “Just please don’t kill me.”

Then the line went dead.

The officers arrived in the area approximately six minutes later. Dispatch did not have an exact location, so they searched the area and eventually arrived at several abandoned sheds.

As the officers continued their search, dispatch informed them that they were back on the line with a 911 call in the area with someone named Mike. According to the police reports, “Mike told them he was near a shed.” Dispatch also advised they heard someone say, “He’s 28 and can’t talk because they will hear him.”

Eventually the officers came to a shed. They saw one man standing near the shed and two other men lying on the ground. Ragland went to the man standing up. It was Waters. Bemis went to assist the man about 20 feet from the shed, who turned out to be Giampino. Stevens went to the aid of the man on the ground near the doorway of the shed, Johnny Rasnick.

According to the report filed later that day by Ragland, “I observed that Waters had blood on his face, and there was blood on the ground in the area. I requested that Pridemark [ambulance service] respond to my location. … Waters immediately told me he had a knife in his pocket. I told Waters to sit down. I asked him where the knife was. He told me it was in his front left pocket. I reached into his pocket and removed the knife and placed it inside my right pocket. I asked Waters what happened.” (Waters’ response is in the next section.)

Bemis’ report states, “The male I contacted was later identified as Michael Giampino. Michael was laying on his right side with his right hand above his head and his knees pulled up to his stomach. Michael’s cell phone was on the ground next to him. Michael asked if he could answer 911. I looked at Michael’s phone on the ground and saw the phone call was still active. I told Michael to tell dispatch that we were with him. Michael told dispatch officers were with him and hung up the phone. Michael stated he was in severe pain and was having difficulty breathing. … While waiting for the ambulance I asked Michael what happened.” (Giampino’s response is in the next section)

According to a report filed by Stevens, “I contacted a male party lying along side the shed at its entrance door. He was holding onto what looked to be some type of drainpipe lying on the ground also. The white male would not provide a name and was in obvious pain.

“I asked the male I was with, John Doe [Johnny Rasnick], his name and he refused to give his name. Doe said that he was stabbed. At one point, he said he was stabbed in the liver. [Rasnick] smelled like he had been drinking an alcoholic beverage. He had slurred speech at times.”

Eventually all three men were transported to Boulder Community Hospital.

Rasnick had been stabbed twice, once in the right upper chest and once in the shin. He was immediately taken into surgery due to internal bleeding. He survived the operation and was recovering when it was discovered that he was still bleeding internally. He was taken back into surgery. He died during the second procedure.

Giampino had six stab wounds. He had a slash on the right side of his face 3 to 4 inches long, two slashes on the right side of his neck, one stab wound in his lower abdomen, and two on his upper back.

Waters had swelling on his face and nose from blows and a scraped area on his neck. He refused medical treatment, saying it would be a waste of money.

The police secured the crime scene at the shed and documented all of the items found: backpacks, blankets, bicycles, Waters’ guitar, etc. They recorded where blood was found, which was literally everywhere inside and outside the shed, on bicycles, and on all of the clothes, blankets and backpacks belonging to the three men.

But such evidence would not prove critical to the case.

The only evidence that seemed to matter at the time was that Waters had admitted that he had stabbed the other two men.

His explanation that he had done so in self-defense and that the other two men were acting crazy, like they were on some kind of drugs, didn’t appear to carry any weight with the police that night or in the days to come, as evidenced by the fact that Waters was described as the suspect in custody and Giampino and Rasnick were described as the victims within the first 23 minutes of the police arriving at the bloody scene.

In addition, Boulder Police failed to ever do a toxicology screen on either Rasnick or Giampino, a test that would have detected drugs in their system if they were present. It would prove to be a critical oversight, at least critical for Waters.

The presuppositions of Waters’ guilt never seemed to change for a second, from the time that police arrived at the shed until he heard the door of his prison cell slam behind him.

In the end, this case would turn on only two things. First, which one of the only two witnesses to the events that night, Waters or Giampino, would the police, the DA’s office and ultimately the jury believe? And second, what would the jury be allowed to hear about the three men involved in the altercation at the shed that night?

One death, several versions of what happened

According to court transcripts, on April 23, Catrina Weigel, deputy district attorney and lead prosecutor in the Waters case, appeared before Judge Thomas Mulvahill at Waters’ sentencing hearing and made the following statement:

“Mr. Giampino has told the same story from day one about what happened in that shed. He was interviewed by police officers, and he gave a version of events that stayed consistent. In May of 2012 he gave a statement to the district attorney’s office that again was similar.

“And the same in the details in July, he came and gave a deposition. Again, his facts remained consistent. And then in December ultimately he came to trial and again told the exact same story about what had happened that night.”

So what should we make of prosecutor Weigel’s claim that Giampino’s story of the crime was always consistent, virtually the same each time it was told?

After an examination of various reports and transcripts, it appears to be an overstatement at best.

An examination of the police reports filed by Officer Bemis, who attended to Giampino and first questioned him at the crime scene; Officer Brian Scott, who interviewed Giampino at Boulder Community Hospital at 11 a.m. the morning of Oct. 28; Detective Ruth Christopher, who interviewed Giampino on Oct. 29 at Boulder Community Hospital and on Nov. 15 at the police station; and finally the transcript of the actual testimony of Giampino at Waters’ trial, reveal an array of apparent contradictions and inconsistencies.

The following are examples of only some of the different conflicting statements about what happened that night, statements that are attributed to Giampino by the reports mentioned above.

When originally questioned by Bemis, Giampino claimed that he was asleep in the shed with a man he didn’t know when a gibberish-speaking Waters entered the shed and started stabbing them both. Then, in a later interview, he said that all three men had come to the shed together to sleep out of the cold, and that he and Rasnick had left the shed, gone to Target to bum a cigarette, only to come back to find Waters sleeping alone.

At one point, he told officers that he came to Boulder to look for work. Then, he testified that he came to Boulder to hang out with friends, because it looked like a beautiful place.

As to how he ended up staying in Boulder after his friends returned to New York, he told officers that his friends had left when they ran out of money, but he had wanted to stay. But in court he admitted that his friends had abandoned him, ditched him in Boulder and gone home to New York without him, leaving him to fend for himself on the street.

He also testified that he had known he would face jail time if he had returned to New York, because he had violated his probation. He chose not to mention this to police in Boulder, according to his testimony.

At first, according to police reports, Giampino said he didn’t know Rasnick. Then, later he said he’d met him days earlier, that he knew his name was Johnny, that he was from Detroit and had five kids.

He initially told officers he had met up with Rasnick on the night of Oct. 27 just after dark. Then he changed his story to say that he had really been drinking with Rasnick most of the day.

He told police that he wasn’t drunk. He testified that he was only “minutely” buzzed. But according to a test he was given following the altercation, his blood alcohol limit was a whopping .203, more than two and a half times the .08 legal definition of intoxication in Colorado. According to some experts in the field, a blood alcohol level of .2 is considered the stage of confusion and disorientation.

Also on the day of the altercation, Giampino texted his friends, who were on their way back to New York.

“Having a really good time on Pearl with Turtle,” Giampino texted. “He’s got 3 gallons of vodka, hopefully this doesn’t get me in jail lol.”

At one point, he told officers he had been hanging out with Rasnick all day and was drinking alcohol that Rasnick had in his backpack. He later testifies that Rasnick had two bottles of vodka. He then changed that to Rasnick had one bottle of vodka.

As for the text to his friends, he later testified he had been lying in his text messages from that day. He claims he’d only told Jackie (one of his friends who abandoned him in Boulder) about the surplus of vodka and its potential to land him in jail in order to make her jealous.

Giampino also sent a text to Jackie that read, “I just did some shrooms lol and smoked a lot of weed.” This text, too, was only a lie intended to make Jackie jealous, he testified.

We can’t know for sure if the text claiming that Giampino had taken mushrooms, a powerful hallucinogenic drug, is true or just fiction, as he later claimed. We can’t know for sure, because, according to trial transcripts, the Boulder Police never screened the men for drugs. Police reports do note Waters’ claim that the men seemed to be on something more intoxicating than alcohol when they attacked him.

The same DA who told the judge and jury how Giampino’s story had been consistent, despite the serious inconsistencies already listed, told the jury Giampino hadn’t really taken the hallucinogenic drugs that he had told people he had taken that day.

But the reply from Giampino’s friends didn’t read like they were jealous. Jackie didn’t text back, “Wow, lucky you, I wish I had some ’shrooms too.” No, the response to Giampino’s claim he was doing mushrooms read, “What happened to you trying to straighten your life out. You’re disappointing me so much.”

Giampino had also texted her he’d smoked a “lot of weed.” But Giampino had told officers he didn’t smoke weed that day. When Officer Scott had first asked about the group’s drug use, Giampino said that only Rasnick and Waters had smoked pot — there had been no other drug use by the group. But in his trial testimony, Giampino changed his story and said he had smoked pot with Rasnick, and was only assuming that Waters had smoked pot even though he had not seen him do so.

Giampino first told officers he thought Waters appeared drunk throughout the night. Then he tells another officer he didn’t think Waters had drunk much that night.

In Scott’s report, Giampino says Rasnick told him he was hurt. But in his testimony, Giampino says he didn’t know Rasnick had been hurt until he was at the hospital.

Giampino told Scott that he and Rasnick had left the shed to go bum cigarettes and were gone 20 to 30 minutes. He later changed that timeframe to being gone two hours when he was describing events to Detective Christopher.

He told Scott that Waters had stabbed him in the back while he was attempting to retrieve his iPod from his backpack. He told Christopher he was laying down when Waters stabbed him. In his version to Christopher, he never mentioned an iPod at all.

Giampino originally told police he had one knife. Later he said he had two knives, one pocketknife and one utility tool with a knife. He also testified that the two knives were in his backpack and that he never took them out of the backpack that night. But the knives had been found in Giampino’s pants pocket when he got to the hospital.

During the trial, the DA argued that only Giampino knew that events were being monitored by 911 dispatch after Giampino had hit his emergency button placing the call. The DA told the jury that the fact that Rasnick could be heard on the 911 call tape saying some of the same things as Giampino is proof that Giampino wasn’t just making up statements that he thought might help to exonerate him later by virtue of the fact that he knew he is being recorded. The DA told the jury this despite her knowledge of the police report filed by Christopher wherein the detective says that Giampino told her he had “leaned over and whispered” to Rasnick that he had 911 on the phone.

The DA stresses the fact that Waters kicked Giampino in the face. She uses this to show the brutality of the attack, that after the fight, when Giampino was on the ground, Waters allegedly walked over and kicked him in the face.

But when Officer Bemis first arrived on the scene, Giampino told him that Waters kicked his face inside the shed, before the stabbing. He then tells Officer Scott it happened outside the shed — but it could’ve been a kick or a slash, he wasn’t sure.

Giampino’s story about a wrestling match that he claims took place earlier in the day between Rasnick and Waters also had inconsistencies. That wrestling match became the DA’s motive to explain why Waters would attack Giampino and Rasnick that night. We’ll talk more about the wrestling match in the next section.

These are just some of the inconsistent statements that were offered by the prosecution’s only witness, Giampino.

Waters’ account

Weigel’s statement that Giampino’s version of the events that occurred at the shed on Oct. 28 was always consistent might have seemed more accurate had it been associated with Waters’ statements about what happened that night.

Though he didn’t testify at his own trial, Waters’ version of events has been gleaned from the police reports of Officer Ragland and Detective Christopher, statements made during a psychological evaluation conducted by Dr. Lavita Nadkarni, Waters’ own statements at his sentencing hearing, Waters’ own recollection of events that he wrote down for his defense on Dec. 10, 2012, and letters he has sent from prison.

When officers arrived, Waters was standing near the shed, in between Rasnick and Giampino, who were approximately 20 feet apart, lying on the ground.

Waters claims that after the fight ended he was waiting for police to arrive. He says he believed that Giampino and Rasnick would go to jail for trying to kill him.

When the first officer made contact with Waters, he immediately told her he had a knife in his pocket. She asked him to sit. He sat. He told her which pocket the knife was in. She removed it.

He also told her he had acted in self-defense. According to Ragland’s report, Waters said, “He was sleeping and they [Giampino and Rasnick] attacked him. He told me he had to defend himself. He told me they tried to ‘choke him out.’”

When Ragland asked for more details, Waters again told her he had been acting in self-defense, and then said, “I plead the fifth.”

In the summary he wrote on Dec. 10, 2012, a copy of which was obtained by BW from Waters’ ex-wife Marsha Mahnken, Waters explains his answer to officer Ragland:

“They started to ask me questions, something told me to shut up — I said I’m not saying anything, I want a lawyer!”

But as the officer drove him to the hospital, he reiterated the story he had told her when she arrived.

Ragland’s report states, “While I was en route, Waters started uttering statements freely, saying, ‘All I was trying to do was sleep. They attacked me and I’m the one getting in trouble.’” In his letters from prison and the handwritten summary from December 2012, Waters explains what he says happened that night in more detail. Waters had been playing his guitar on the mall, like always, when he’d run into Rasnick. They weren’t really friends, but Rasnick had sometimes hung around on the mall while Waters was playing his guitar for tips.

The two had had a bit of a falling out before that day at the shed. Waters told BW in a letter he wrote from prison that Rasnick was not drinking much at first when he would sit near where Waters was playing. But as time went by, he says Rasnick drank more and was becoming increasingly aggressive to people who stopped to hear him playing. According to Waters, Rasnick would rush at people, aggressively panhandling, and scare them away from Waters’ area. Waters finally told Rasnick he couldn’t be around him anymore. He says that Rasnick was angry at being told to stay away. Waters says he felt sorry for Rasnick and would still say hello to him and ask him how he was doing when he saw him. He says he believed that Rasnick was no longer angry at him for telling him to stay away when he played.

On Oct. 27, 2011, Waters writes, he ran into Rasnick on the Pearl Street Mall. Rasnick was accompanied by Giampino, who Waters says he didn’t know. “Johnny introduced us,” Waters writes. “He seemed okay. Johnny invited me to the shed because it was a bit chilly and the ground was wet from snowing the day before. So I went. I knew they had a few drinks in them. Hell, most homeless people drink to ease their pain and sorrows. But they’re not trying to kill anyone! I thought they were harmless. They gave me no clue that they wanted to hurt me.”

Waters’ version of events that night is not without its own contradictions, although his claim that he was choked out and then had to fight for his life has always been consistent. Waters initially told police officers, first at the scene and later at the jail, that he had been asleep when he was attacked by Rasnick and Giampino and “choked out.”

In his summary of the events from December 2012, Waters doesn’t say he was asleep when the attack occurred. He writes that Rasnick kept sliding the door to the shed off its tracks so it wouldn’t close. For the third time Waters got up to put the door back on the track so he could close it. But this time, Waters claims, Rasnick came from behind him and threw his arm around his neck, the bend of his elbow at the Adams apple, and choked him out. This, according to Waters, explains why there were no “finger marks” on his neck, something that the prosecution said would have been present had he been choked.

When Waters came to, he says, he was disoriented and lying on the floor of the shed. He says he didn’t know how long he had been unconscious. He says he could hear Rasnick laughing about how quickly he’d choked Waters out, how limp Waters’ 150-pound body had gone as he swung him around like a ragdoll. Then he says he overheard Rasnick’s next plan: to kill him and dump him in the creek. According to Waters, Giampino just laughed at the suggestion.

Panicked, Waters says, he rolled onto his side and Giampino pointed out that he was awake again. According to Waters, Rasnick turned and kicked him in the face. Giampino joined in, stomping and kicking, Waters says. “My hand got stomped,” he writes. “Johnny [Rasnick] was trying to stomp my head. Giampino was kicking. There was no misunderstanding, they were going to kill me.

“I pulled my knife out, stabbed out at Johnny’s leg. He stopped kicking. Then Giampino leaned down like he was going to stab me in my belly so I started slashing and stabbing at him — I don’t know if I got him or not — it was very dark — same with Johnny, I was so scared and amped up with fear.

“Giampino and Rasnick had to have went into a drug and alcoholic dementia,” Waters writes from prison, reiterating the belief he had shared with Officer Ragland at the time of the incident. “I don’t know what else to call it. They had me trapped in the shed. My thoughts said, get outside. My brain was going on instinct to live. … They go outside, I try to leave. They’re waiting for me and attack again.”

Waters writes that Giampino charged him from the side as he came outside. He claims that Giampino was leaning down, so he had no choice but to stab his back.

Waters writes that Giampino dropped to his knees, but he was still too close, so he kicked him. “Johnny tried to grab me around the throat again from behind — before he could lock his grip on me — I twisted from left to right and stuck him — he let go.” Waters says he then backed away.

When he was about 30 feet away, he says he saw Giampino using his phone. He says he was glad the cops had been called.

“I hate what happened that night,” Waters writes in a letter from prison. “I wish it never happened. It never would have happened if they hadn’t attacked me and kept coming after me.” In his summary from December 2012, Waters says Rasnick and Giampino attacked him a total of three times. He made the same claim of being attacked three times before the judge at his sentencing hearing on April 23.

Motive

So why does one person kill another? To do something so heinous, so outrageous to another human being must surely require a reason, a motive, at least an explanation that could possibly make sense of a senseless act.

One of the difficulties facing the prosecution in the Waters case from the beginning was the clear lack of a motive for why Waters, a man with no history of violence, a man known for his kindness and gentlemanly ways in his community, a man loved and respected by his wife and kids, would suddenly do something so completely out of character as to attack two other men with a knife.

In the end, the prosecutor was left to argue a nonsensical motive in the Waters case.

In her closing arguments, prosecutor Weigel told the jury, “When Mr. Rasnick was boasting and bragging about being the winner of that wrestling match, that’s just what put [Waters] over the top in terms of his hostility and feeling disrespected by Mr. Rasnick.”

That’s it? The prosecution wanted the jury to believe that the thing that caused Waters to suddenly attack two men with a knife, killing one and pretty seriously injuring the other, was his inability to cope with hearing another man boast about bettering him in a wrestling match earlier in the day?

It was a weak argument under any circumstances, but it was made even weaker by the truth of the matter: It never happened, at least not according to the prosecution’s only witness, Giampino.

The whole story of a wrestling match — which Waters denies ever took place — came to light during Officer Brian Scott’s interview with Giampino at the hospital. Scott’s police report, dated Oct. 28, 2011, reads, “I also asked if there had been anything done to ‘Eddie’ by himself or ‘Turtle’ when they returned from looking for a cigarette to provoke a fight.

“While initially saying nothing had happened, [Giampino] later stated that ‘Turtle’ and ‘Eddie’ had been involved in a wrestling match earlier in the evening. He did not think this was serious though, as the two had been ‘laughing’ while they did this.

“As I asked about the wrestling match, Giampino stated that ‘Turtle’ had gotten ‘weird’ after the wrestling match.

“When I asked how, he responded that ‘Turtle’ had been bragging about beating ‘Eddie’ and that he ‘wouldn’t shut up about it.’ I asked if ‘Turtle’ had been doing this to ‘Eddie’ after they arrived at the shed. Giampino stated he had not. Giampino did state that ‘Turtle’ had been bragging so much about beating ‘Eddie’ while the two [Giampino and Rasnick] looked for a cigarette that this had been the reason the two returned to the shed. ‘Turtle’ was continually stating ‘did you see it’ and ‘I got him good’ to the point that he told ‘Turtle’ he wanted to go back and go to sleep.”

So the bragging that allegedly drove Waters to kill Rasnick and try to kill Giampino, according to the deputy DA, most likely didn’t happen in front of Waters, according to her own key witness.

Not only did Giampino say that Rasnick’s boasting took place in front of him while the two were away from the shed walking to Target to bum cigarettes — not in front of Waters, as Weigel implied to the jury — he also described the wrestling as a playful moment wherein Waters and Rasnick were laughing and nobody got hurt or upset. Only the prosecution’s own witness, Giampino, was apparently bothered by Rasnick’s bragging.

Waters’ own stated motive for why he says he stabbed the men seems more believable: “They were trying to kill me. I had to do it in self-defense.”

The defense argued that the motive behind why Rasnick and Giampino had attacked Waters was because Rasnick was still bitter over having been told by Waters that he couldn’t sit with him on the Pearl Street Mall because he was scaring away Waters’ guitar tips.

It seemed almost as weak as the prosecution’s wrestling match theory, and according to jurors we spoke with, both motive theories left them with no real sense of why the deadly altercation had ever come about.

Sometimes there are motives for violence. And sometimes there is only an explanation. In the case of Waters, it is possible that the information that the jury needed to more fully understand what happened on the evening of Oct. 27, 2011, was contained in the court documents pertaining to the information that the jury was never allowed to hear.

What the jury didn’t know

During Waters’ sentencing hearing, Weigel, the deputy DA, told the judge, “The defendant, in the materials that he submitted to the court, is asked by the evaluator why would the victims do this to him, why would Johnny Rasnick and Michael Giampino choke him, kick him and ultimately say that they should kill him and dump him in the creek.

“He’s asked ‘Why would they do this?’ And he says that he was targeted because maybe Johnny Rasnick may have been mad at him for not hanging out with him on a consistent basis. He hurt his feelings and he was pissed off and felt rejected, which seems a pretty lame excuse for why somebody would try to kill him.”

This coming from the deputy DA who just argued that Waters killed Rasnick and stabbed Giampino because Rasnick had bragged about winning a wrestling match.

Weigel continued, “Now, there’s no explanation for why Michael Giampino, total stranger to the defendant, total stranger to Colorado, to Boulder, would come and target the defendant in this case, it just does not make sense.”

The truth is, nothing in the Waters case seems to make sense. There is no easy, logical explanation for what happened at the shed that night. But had the jury been given access to all, or at least some, things in the backgrounds of Rasnick and Giampino that the defense team wanted to present but, in some cases, was not allowed to by the court, then things might have turned out different for Waters.

In a police report dated Nov. 18, 2011, filed by Detective Christopher, Rasnick’s exwife told police that “Johnny was … taking medication for bi-polar disorder. Johnny had a problem with alcohol and different kinds of drugs.”

The report also states, “Johnny ended up in Colorado a couple of years ago because he entered a drug treatment program called Teen Challenge Program. [His ex-wife] described it as a year-long Christian based program for drug and alcohol addictions. Johnny was eventually kicked out of the program. Johnny remained in Colorado.

“[Rasnick’s ex-wife] told me,” Christopher’s report continues, “she had been married to Johnny for 16 years and they have three daughters. She provided me with some background information about their relationship. The entire time they were together there was some type of abuse. When he wasn’t physically abusive he was verbally abusive. This extended to the girls … [She] filed for divorce and Johnny lost his job shortly after that.”

She had not had any contact with Rasnick in almost three years, according to the report.

Christopher’s report on Rasnick’s ex-wife and children seems in sharp contrast to what Weigel presented at Waters’ sentencing hearing regarding the Rasnick family. At the hearing, when Weigel asked the judge for a particularly harsh sentence for Waters’ conviction for assault, the prosecutor told the judge that Rasnick “had children who were very much impacted by his death. The Rasnick family was very impacted by what happened to him. They had wanted to come to court … but they just couldn’t take time off from work and couldn’t afford it. You do know the sentence that they would like to see in this case.”

The police also questioned members of Boulder’s homeless community about Rasnick. All of the following comments are quotes from a police report dated Oct. 29, 2011, filed by Officer Jenny Paddock.

“Michael Judge … described Turtle [Rasnick] as a guy who used to be pretty cool until he took some acid and now describes him as a ‘wing nut’ who was running around in a bathrobe he had given him with satanic drawings all over him and stealing things from stores… Officer Colvin recalled some complaints about Rasnick with satanic markings on him over the summer on the Mall and at Circle K. Rasnick was also arrested for shoplift at Circle K (11-12236).”

He had a tattoo of a skull, according to police reports, but the satanic markings were temporary drawings.

“[Mike Gonzalez] described ‘Turtle’ as being a sloppy drunk who would call both of them [Waters and Gonzalez] names and insult them, both when they were playing [music] together and when they were just sitting and talking. Gonzalez said that Turtle would get drunk a lot and this would happen frequently.”

“[Daniel] Armstrong said that Turtle was a bad drunk who gets really violent when he drinks.”

The following quotes are from interviews with people in the homeless community regarding Rasnick and were conducted by Boulder Weekly.

“That big drunk guy, he was always passed out on the mall,” says Jefferson LeSeur, who works at local shelter The Bridge House. “I hated Turtle.”

“He wasn’t decent to women,” says Samantha Nelson, who is now completing her internship at the Bridge House. “He was always grabbing inappropriately. He even grabbed a lady cop.”

“He was a hardcore A-camper,” says Steve Thombleson, who has worked for the organization since 2000. “Yeah, as in alcoholic. He was pretty much always drunk.”

“I heard of Turtle a lot,” says a homeless man known as Dwarf. “Always drunk and starting fights.”

On the night that Waters claims that Rasnick attacked him at the shed, Rasnick’s blood alcohol level, according to police reports, was above .30, nearly four times Colorado’s definition of intoxication, .08. According to experts, a blood alcohol level of .30 or above is considered to be a stupor.

As for Giampino, the jury was told that he was convicted of felony robbery in 2004.

But before he ever came to Colorado, Giampino’s rap sheet already included 10 crimes, including criminal possession of a weapon, larceny, robbery with the use/threatened use of a dangerous instrument, possession of contraband in prison, menacing, aggravated unlicensed operation of a motor vehicle (alcohol), criminal contempt, resisting arrest and another untitled conviction in 2011.

These convictions were not admissible in court.

In 2012, Giampino was also arrested for criminal possession of stolen property, according to the police blotter in the Babylon Village in Babylon, New York. He’d also been arrested in 2011, as soon as he returned to New York from Boulder, according to his testimony.

Giampino’s dad had spoken to Detective Christopher on Nov. 1, 2011, while Giampino was still in the hospital.

According to Christopher’s police report, “He told me that Michael [Giampino] left New York because there were active warrants for his arrest. He said that Michael is bi-polar and has multiple personalities. Michael chooses not to take any medication. Michael is estranged from most of his family.”

In addition to the revelations by Giampino’s father, Waters’ defense attorney, Eric Zale, came into some additional information along the same line.

According to a motion dated September 14, 2012, the defense is said to have “obtained in error” a “document known as ‘advisement to defendant.”

According to the motion, the defense claims “the document shows that Mr. Giampino admitted during an interview with a probation officer that when he drinks he gets violent.” The motion went on to say, “defense counsel no longer has a copy, and thus this is a paraphrase as counsel is reyling on independent recollection of the contents of the document.”

The problem for Zale was that the document he received accidentally was in violation of privilege based on New York statutes. As a result, the DA’s office and the judge would not allow the information to be presented to the jury even though, as Zale argued, it “is clearly exculpatory” for Waters and should have been allowed because of that.

On Nov. 15, 2011, Giampino’s dad spoke to Christopher again, this time saying, “Michael is currently in jail. He has issues with his probation, family court and some new criminal charges.”

It wasn’t easy for the DA’s office to get Giampino back to Colorado to testify against Waters, who had been in jail since the night of the altercation. On Nov. 20, 2012, Giampino told the DA’s office that he’d been robbed and had checked himself into a hospital for depression. He told them they would have to give him money for a new ID so he could travel to Colorado.

Giampino reportedly getting into yet another altercation upon returning to New York is an example of something that Waters’ defense attorney wanted to bring up to the jury, but the judge did not allow him to do so.

According to trial transcripts of various, somewhat vague discussions at the bench between the judge, defense attorney Zale and prosecutor Weigel, out of hearing range of the jury, it seemed that Zale was asking the judge to allow him the opportunity to make a case to the jury that Giampino was “a serial victim,” that he got into scrapes and then used his phone’s preprogrammed emergency call button as a means to get items of value from police departments such as money, clothes, etc. Zale told the judge during Giampino’s testimony he had hoped to introduce this line of questioning — especially in connection with the “emergency button” Giampino had programmed on his phone so he could dial 911 without looking at it.

“And as a result of running to the police and gaining things, I believe that that’s the strategy,” said Zale.

But the judge refused to allow it.

“The other incidents, specifically the four that you mentioned previously, are not relevant,” the judge told the public defender, still speaking out of earshot of the jury.

Zale may not have been able to present his argument to the jury, but getting things from the police did seem to apply in the Waters’ case. Boulder police not only sent him money for a new ID, but they also paid for his travel and hotel. They gave him a per diem to spend in Boulder.

Weigel told the jury, “[Giampino] came out here voluntarily. And again, that’s because he’s the victim in this case and he wants to make right what happened.”

There was at least some evidence that justice wasn’t the only thing driving Giampino to return to Boulder to testify against Waters, as the prosecutor insinuated. The perks of coming back to testify might have also played a role.

Consider these posts on Giampino’s Facebook page at the time he came back to testify against Waters. (The posts were not corrected for spelling or grammar.)

“i have a hotel reserved for five days,” says a post that appeared on his Facebook page on Dec. 2, 2012, a few days before he testified. “im goign to go have a blast out here and have as much fun as i can and ima start that right now lol” Another Dec. 2, 2012, post on his page reads, “livin it up in boulder colorado.”

“Nice to relaxe for the first time in a while,” reads another status posted on Giampino’s Facebook account that same day.

A Dec. 5 status on his Facebook wall reads: “off to court to take the stand today yayyyy…. i have to wait till next week to hear the verdict but im sure i allready know what it is lol” In Boulder, Giampino was “living it up” on the tab of the DA. In New York, he’d been literally starving.

A status posted on his Facebook page a couple months earlier reads:

“im so hungry that i dont care about getting in trouble right now at least jail will give me food but……. TRADEING SUBS FOR FOOD right now please im so hungry i got robbed the other day and they stole my entire wallet… even my foodstamp card… ill hook up up with as much as ur fucking heart desires.”

We can’t say what “subs” are for certain in this instance. But according to The Guardian, “Suboxone is a heroin substitute. … There is a significant number of people who see it and its bedfellow, Subutex, as a dealing opportunity. The drug [is] often referred to in the U.S. as ‘the rich man’s methadone’ because it is so expensive, but more commonly known as ‘sub.’”

What is more clear is that Giampino seemed desperate even for food, so coming back to Boulder might have seemed like an opportunity to eat, drink and spend a per diem. Justice seemed a secondary issue, at least on Facebook.

The jury never heard that people had told police that Rasnick was taking medication for bi-polar disorder. That he was said to get violent when he drank. That he was allegedly physically abusive to his family. Reports that he had drug problems. Accounts that he had been known to paint satanic symbols on his body while wearing a bathrobe while being disruptive in local stores and on the mall.

And likewise, the jury was not allowed to hear that a document from New York stated that Giampino had told a probation officer he got violent when he drank. Giampino’s own father had told police that Giampino was bipolar and had multiple personalties and that he refused to take medication for those problems.

Would it have made a difference had the jury heard such things, considering that both Giampino and Rasnick had excessively high blood alcohol levels at the time of the attack, and both were said to become violent when drunk? It certainly might have.

It could have been enough to persuade just one juror to have believed that the same reasonable doubt that existed on the murder charge and the attempted murder charge existed on the assault charge as well.

So what was the jury thinking when it found Waters guilty of assault?

This story is continued here.