Click here to return to the beginning.
The jurors
The jurors in the
Waters case faced a daunting challenge. They would only be allowed to
hear part of the evidence. And the only witnesses were the two
survivors, who told very different accounts of how blood was shed that
October night.
It’s difficult to ever second-guess a jury. Jurors do incredibly hard work and most come to the right verdicts.
But
the question remains: Why did this jury find reasonable doubt regarding
murder, reasonable doubt regarding attempted murder, but no reasonable
doubt regarding assault in the first degree?
After
interviewing several of the jurors in this case, not one of them could
articulate their decision as to why they removed reasonable doubt from
the assault charge.
Statements that should have had no bearing on the situation made their way into the attempts at explanation.
One
person talked about how her kids go to the Pearl Street Mall and how
she’s afraid for them to be around homeless people. Another noted that
Waters actually looked better after being in jail for two years than he
did when he was on the street. Still another said that her decision was
based on Giampino’s testimony, and then she said that she hadn’t
believed a word Giampino had said.
The supposed kick in the face to Giampino by Waters, long after the fight
had stopped and while Giampino was lying on the ground talking to 911,
was another deciding factor for more than one juror. The prosecutor had
repeatedly stressed the cruel nature of the kick during the trial.
But BW asked
why they believed that the late-arriving kick story was real,
considering that Giampino had told police that it occurred in the shed,
and then that it occurred outside, and later changed his story to a
slash instead of a kick. They didn’t recall having ever heard that the
story had changed.
They should have. It could have changed the outcome for Waters.
Jurors
also seemed confused about the assault charge. Some thought that the
only assault Waters had committed was the late kick. They thought it
wouldn’t carry much of a sentence, if any. But they should have known
better.
The charge was
using a deadly weapon to inflict serious injury, and it carried a
minimum sentence of 10 years. The type of assault Waters was charged
with was for the exact same actions he was taking that prompted the
murder and attempted murder charges — charges the jury said might have
been in self-defense.
Had all the jurors fully understood the assault charges, reasonable doubt might have been a given.
When
asked if they would have still voted guilty had they known that Waters
would be sentenced to 25 years for the assault charge, some said they
would have changed their vote.
When
asked if their guilty vote would have been different if they had known
the things about Giampino and Rasnick that they didn’t get to hear, even
more said they would have changed their vote.
It
is admittedly unfair to retry a case after the fact with new
information outside the boundaries of a courtroom. But Waters doesn’t
seem to have another option.
Waters’ character
Waters isn’t like the other men in the shed that night. He doesn’t have a secret life that needs to be hidden from a jury.
Sure, he’s homeless, but it wasn’t always that way, and it isn’t because he has some hidden demon.
Contrast what BW found
when people in the homeless community were interviewed about Waters
with what was said previously about Rasnick and Giampino.
“I always found him
[Waters] kind of quiet,” says Steve Thombleson, who began working for
the Bridge House organization 13 years ago. “He’s not a guy who’s gonna
start fights. … He was a good guy who was down on his luck.”
“Eddie
was never, ever violent,” agrees Dwarf. “I didn’t even know he drank.
If there was any kind of conflict, he’d just take off his guitar strap,
get up, and walk away.”
“Every
single night I knew him, between 8 and 8:30, he would call his kids,”
LeSeur of The Bridge House says. “I mean, every, single, night. The only
time I ever saw him get close to mad, it was because he’d lent someone
his phone, and they didn’t come back ’til 8:15, so he only had a few
minutes to talk to his kids.”
LeSuer
says he was worried about Waters on Oct. 27, 2011. “I saw that Turtle
had a bottle. I knew what he was like when he drank. I was like, ‘Eddie,
what are you doing, hanging out with them?’” Nelson, of The Bridge
House, remembers Waters’ determination to be there for daughter
Rebekah’s birthday. “He was looking for a present for her,” Nelson
recalls. “He was like, ‘I don’t care how much I have to busk on the
mall, I have to see my daughter on her birthday.’” Police also
interviewed more than 20 people in the homeless community about Waters.
The responses from those who knew him were consistent.
Officer
Jenny Paddock’s report states, “Those that know Waters … were all
surprised to learn that Waters was the suspect.” They described Waters
as a “gentleman,” “always a really nice guy,” “always in a good mood and
helped everyone,” “polite,” “the nicest guy I’ve ever met” who would
“give you the shirt off his back” and “wouldn’t hurt a fly.”
Several
homeless people who knew Waters told police he had no drug or alcohol
problems, had no problems with anyone. They also expressed that they did
not believe Waters would attack anyone without good reason, like being
“backed into a corner.”
Contrast what Waters’ family told BW about him with what Rasnick and Giampino’s families said about them.
Marsha and the kids live in Aurora, so while she and Waters were still working things out, he stayed in Boulder, where he had a regular sleeping spot by the creek.
On
Oct. 28, 2011, Waters was going to play his guitar on the Pearl Street
Mall just long enough to get the tip money he needed to take the bus
back home to Marsha Mahnken and the kids.
“I
was gonna ask him to stay,” Mahnken says. “I made a very big mistake
divorcing the man that I will always love. … We were meant to be
together forever and I hurt him so much by divorcing him. He was the
love of my life and will always be the man I love forever.”
Waters was one day away from being off of the street and back in his home. They were one day away from being a family again.
“The
kids really miss him, especially his daughters,” says Donna Garcia,
Mahnken’s mother, after a day of babysitting them. “The 11-year-old
[Rebekah] is always talking about him. She’s always saying, ‘I miss my
Poppa.’” Now Rebekah is 12. “They’re growing up fast,” Waters writes
from prison. “Tomorrow, the 24th of August, is my daughter’s birthday.
She’ll be 12, and again I can’t be there. … I’m missing my kids’
childhood.”
He didn’t want to miss any of it — even while he and Mahnken were having problems.
“He called every night to say good night to them,” Mahnken says.
The
calls were heartbreaking. “He would say, I wish I was home,” says
Rebekah, “and I would say I wished he was home too, and then we would
both start crying.”
“He would always call to say good night and how he loves us and misses us,” says 15-year-old Matthew.
On
Oct. 27, 2011, Eddie Waters just wanted a warm place to sleep on his
last night on the street. He wanted to get up and catch the bus home to
his wife and kids and go trick-or-treating.
Waters didn’t have a motive for attacking Rasnick and Giampino. If anything, he had an anti-motive for attacking them.
He just wanted to go home, and he never made it.
But hopefully that will change as his case moves through the appeals process.
Respond: [email protected]
