(UPDATE: No verdict on Friday; the jurors continue deliberating Monday.)
By Tracy Record
West Seattle Blog editor

Seven women and five men are now deciding the fate of the two defendants on trial for the murder of Steve Bushaw, a West Seattle native shot to death in the middle of California SW on Super Bowl Sunday 2009.

Before the case went to those jurors on Wednesday afternoon, they were the audience for impassioned arguments from the three lawyers in the case – King County Senior Deputy Prosecuting Attorney Jeff Baird, defendant Brandon Chaney‘s lawyer Jim Roe, and defendant Bryce Huber‘s lawyer Tony Savage.

All three are veterans, decades in their profession, countless cases. Yet for them, for the jurors, for King County Superior Court Judge Joan DuBuque and her staff, for the defendants, for their families, for the victim’s families, for those who have observed, this trial has consumed the final month of the summer of 2011.

As each lawyer in turn faced the jurors on Wednesday to make his last pitch, the spectators in the courtroom sat as rapt as the jury, listening, watching. Who would deliver the knockout blow? Who would tie together the complex evidence – from cell-phone records to relationships involving key yet uncharged figures in the case – to render the most believable version of, this is what really happened in the weeks, days, hours, minutes before gunfire in the middle of California SW cut short a man’s life at just 26?

For the jury, of course, the task was different – simply, did the prosecution prove “beyond a reasonable doubt” that Chaney and Huber are guilty of murder, though two other men have pleaded guilty to firing the deadly shots?

The day began with the official instructions to the jurors:

The instructions were crafted by Judge DuBuque after the lawyers submitted requests/proposals for wording they hoped would be included. Each juror held a copy while she read the instructions aloud. They of course included the solemn reminder that “a charge is only an accusation” – that a defendant is presumed innocent until proven guilty – and that now, based on what “facts you decide have been proved,” they will decide if anyone has been proven guilty “beyond a reasonable doubt.”

“As jurors, you are officers of the court,” the judge intoned, a fact underscored each time her bailiff called “All rise” for the jurors’ entrance or exit from the courtroom, the same respect afforded the judge herself. Reasonable doubt was explained. It was noted that no defendant is required to testify – an apparent reference to Huber, who was not called to the stand – and that the jurors “must decide the case of each defendant separately,” tricky when they have been tried together.

The definition of first-degree murder – with which both defendants are charged – was read, and the concept of accomplices’ potential guilt was noted. There was the housekeeping – a presiding juror must be chosen; the agreement must be unanimous. And even though it could be considered to nullify the concept of a closing argument, there was this admonition: “Lawyers’ statements are not evidence; witnesses’ statements and exhibits are the evidence.”

And then, the lawyers began.

First Baird, a compact 58-year-old man with a huge, clear voice, describing one scene from the night of the murder even more personally than he had done in his opening statement more than three weeks earlier:

“At 10:45 pm on February 1st, 2009, Ron and Meg Bushaw were sitting in their family room when their son came in. He said to his parents, ‘I’m going to The Junction to have a beer with Bryce.’ Those are the last words they ever heard him say. An hour later, on the floor of a bar in The Junction, (two police officers) tried to stop a young man from bleeding to death from gunshots to his leg and chest. He was conscious … he said, ‘two black guys shot me while I was crossing the street.’ He didn’t know if it was accidental, he had no idea … but you do now. You know a whole lot more than Steve Bushaw ever did … You know the forces that set that murder in motion. You know this was a premeditated murder, and that Mr. Chaney and Mr. Huber were involved.”

Baird waxed philosophical: “The criminal law is a living instrument, an experiment … to balance the safety of our citizens with their individual freedoms and individual rights … an effort to codify morality.” He brought in a visual aid to re-introduce a section of the jury instructions, explaining what is needed for the jury “to convict,” printed in black, on an easel-size white tablet, with key words underlined in red – including “proof beyond a reasonable doubt” and “premeditated.”

“I don’t think there’s much dispute that the killing of Steve Bushaw was premeditated,” Baird offered. “Two men waited for Mr. Bushaw. When they saw him, they approached him, and both men began firing at him.”

He made points that clearly seemed to be prospective pre-emptive strikes against points the defense might subsequently make. And yet, he suggested to them, “you’re going to have huge unresolved questions about this case forever – why would these young men do this? Even if they were convinced Steve Bushaw was involved in (the January 19th home-invasion robbery that factored into the alleged murder motive), why would they do something not just cruel and deliberate, but senseless and stupid? The temptation is to say they couldn’t have. But they did. One was a longshoreman, one was a barber, one just got (a new job in Texas), one worked for Costco. And they killed a young man that night and threw away years of their own lives.”

He acknowledged that the man with the new job in Texas, who came to Seattle just for that night, John Sylve, “is the one who caused the death of Steve Bushaw.” But that didn’t let Chaney or Huber off the hook, Baird contended, bringing in another large white sheet of paper, with the jury-instruction section addressing the concept of an accomplice, saying an accomplice is as guilty as the person who “directly committed” the crime.

He went back to the inference that the jury might not consider the defendants to fit the murderous type. “It would be surprising if you didn’t feel sympathy for the defendants, young men who appeared to have a future before them … it’s almost unfathomable, the indifference with which they seemed to disregard their own future. Of course you could have sympathy for Mr. Bushaw, but you could almost have prejudice – if he hadn’t gone to buy marijuana from (the home-invasion-robbery victim), he’d be alive now. That may very well be true. Here’s a guy that never finished high school, still living with his parents, smoking marijuana, and you may say to yourselves, look at the defendants, I’d be pleased to have them as neighbors, by all appearances … or you may be prejudiced against them as well, they never told anyone the truth about what happened that night. I want to remind you they are not being prosecuted for lying, they are being prosecuted for murder.”

Acknowledging that phone records are “very tedious business,” Baird turned to them as key evidence in the case. And he suggested three witnesses in the case may have “approached the ideal of truthfulness,” the bouncer nicknamed “Tony” who was outside Talarico’s at the time of the shooting, a friend of Huber’s named Joy who saw him not long after the shooting, and Chaney’s girlfriend Jamerica.

Baird recalled Tony as someone always on alert – “always in bouncer mode” – who spotted shooters Sylve and Danny O’Neal right away, because they “were waiting” before they intercepted Bushaw and, “without any warning, shot him.”

Then, the prosecutor said, when Bushaw made his way into Talarico’s and said he had been shot, people there “had no idea how badly he was injured.” So, he wondered, “what did Bryce Huber think?” suggesting the answer was “‘He might live’.”

Back to the actual shooting, Baird noted two guns were involved, a .38 and a 9-millimeter. “Mr. Bushaw was not armed. No gun in his car. No gun on his person.” Yet, “there’s evidence they continued to shoot at him as he ran into Talarico’s. In fact, they sent rounds into Talarico’s. That’s consistent with (Tony’s) testimony. Consistent with John Sylve’s.”

Another thing he suggested was consistent – “lack of empathy, lack of remorse.” When eventually questioned, Baird noted, Huber was most adamant “Steve Bushaw is not my friend.”

Anticipating the defense would argue that the shooting was mostly John Sylve’s fault, Baird reminded the jury that Danny O’Neal – who did not testify – fired his gun too. “Did two of them suddenly go crazy? Were they the only two people who committed a cold-blooded murder that day?” He also sought to blunt the expected defense attack on Sylve’s believability, and on his plea bargain. Again: “Did he tell the truth? I say he did, and the truth was ugly.”

Next, he took on Chaney’s testimony: “Everything he said was plausible; taken as a whole, completely implausible.” Here the phone records re-emerged, calls Chaney took, apparently from Huber, while in the parked car near the breezeway through which others from the car had headed from Talarico’s, and through which they would soon return. Baird called into question Chaney’s claim to have gotten lost “for 20 minutes or so,” noting that at the time of the home-invasion robbery (in which Chaney too was beaten) two weeks earlier, he lived in West Seattle, and should have been familiar with The Junction, “even if he didn’t know where Talarico’s was.”

Mentioning the alleged pre-shooting rendezvous at the Junction 7-11, and Chaney’s call to his girlfriend at 11:23, Baird continued, “So then something happened, about which (Chaney) knew nothing in advance? The story has some problems. Huber wasn’t alone when he made those calls.” He noted the testimony of the women who were with Huber that night, suggesting he got to West Seattle in 11 pm. “Hmm. But Chaney said he got to 7-11 before Huber. What was Huber doing for those 20 minutes then? Was he lost too? … In Chaney’s story, Mr. Huber disappears for 20 minutes. It’s not just (him) who disappears, it’s Cara and Jennifer who disappear. Where are they? … They’re pretty clear about what happened before the murder, before their friend Mr. Huber left Talarico’s. They went in, had drinks, listed to karaoke. Mr. Huber made some calls. (He) was waiting for Steve Bushaw at Talarico’s. Mr. Bushaw wasn’t shot as soon as he arrived … time passed. They sat there briefly, Mr. Huber made the last of his phone calls on Cara’s phone, left it with her, and took Bushaw out for a smoke. … They go out in the street. But Steve Bushaw is not shot as soon as he leaves Talarico’s. He’s not shot walking out. He’s shot going back in … Time passed. (He and Huber) got into Bushaw’s car (parked outside Poggie Tavern). Time passed. Too much time. Too much time for (Chaney’s) 9-minute phone call to Jamerica. Mr. Bushaw was not shot as soon as they got into the car. (Tony the bouncer) said the men were waiting. He could see it. Mr. Huber was waiting. Mr. Sylve was waiting. Mr. O’Neal was waiting. Mr. Chaney was waiting … waiting for the murder. … Time passed. There was a commotion outside Talarico’s. The music was turned off. There was an announcement there had been a shooting. Huber never came back (inside).”

The prosecutor went back to the phone records, of who called who, in the hours afterward, and Huber’s reported nervousness, even, according to one witness, “surveilling” his own home, saying he thought someone might be after him. “Is it a coincidence that (witness) Joy told you that, and John Sylve told you that? You think they got together and put together a story? … Steve Bushaw died knowing a small fraction of what you know about his death. All he knew is, he was crossing the street, and two guys came up and shot him. If one person came up and shot someone on the street, it doesn’t affect us so much. We can say it’s an aberration. When two people are involved, when three or four or five are involved, it’s almost too much to bear. If only, if only it was Sylve by himself, shooting somebody. Or, if only Sylve and O’Neal … we could live with it a lot easier, we would think more of our society … rather than the truth, which is that this is a premeditated murder, and the defendants are guilty. Thank you.”

That was the conclusion of Baird’s closing argument, two hours after he began (punctuated by the courtroom’s traditional midmorning break).

Next up: Chaney’s lawyer, 59-year-old Jim Roe, a towering man, bald-headed, with perhaps the most dramatic speaking style of the three lawyers in this trial, sometimes acquiring a mocking or skeptical tone when questioning witnesses, at times folksy, at times imposing. The main point with which he began was a reiteration of the fact the two defendants’ cases are separate while being “tried as one … It’s a difficult thing.”

Roe recalled that “the prosecution spoke of a moral sense … I suggest that the court here and I will speak to you of proof … The prosecution wants faith without proof. I will argue you must have proof. Proof, not just innuendo.” Proof, he declared, “enough to send a person to prison, not just for a day or two …” He quickly built to a crescendo, almost shouting, “Proof! Beyond a reasonable doubt! And nothing less!”

After lingering on that, and the separateness of the cases, with the instruction that “out of court statements” by one defendant cannot be used against the other, he moved toward a central theme: Discrediting confessed triggerman John Sylve. Roe noted, “The state has already conceded that John Sylve lied … In this case, ladies and gentlemen, I would contend that Sylve was not the accomplice. He was the primary … the man who killed, the angry person who came in and shot in cold blood as the government has conceded, hardly any motive, just for the thrill of it. … (Was) John Sylve going out on some walk in the woods by himself, going up to Steve Bushaw and shooting him in the armpit as the man turned, I suspect, and killing him? O’Neal shot his gun, but there’s no evidence that O’Neal actually hit Steve Bushaw. Sylve is no accomplice, he is the guilty party, and in order to gain what I call the ‘sweetheart deal’ – you don’t know the full extent of it … he was given an order to wrap up the case for the government. A deal to plead out to murder two, a lesser charge.”

Roe’s voice took on a tone of incredulity, heard earlier in the trial during some witness questioning. “And in this case, the guy who did the killing got murder 2, while my client is on trial for murder 1. That’s the coldhearted truth.”

After the daily hour-and-a-half lunch break, Roe resumed, first returning to the phone records, describing them as “strong forensic evidence.” He said, “The state wants you to look at them. I want you to look at them too.”

Roe sketched a different scenario, mostly working backward from 11:41 pm on February 1st, 2009, when he said the 911 call was made about the shooting. (The Seattle Fire log has it as the last dispatch of the night, “assault with weapons,” 11:43 pm.)

He mentioned a 10:04 pm call from Chaney to Huber, and calls Sylve made to Yakima. He said Chaney’s phone bounced off a cell tower near O’Neal’s residence at 10:09 pm. Two minutes later, Sylve called Mitchell. After a few more calls were mentioned, Roe contended that Chaney was already “on the road” before Huber got a call from Steve Bushaw. He contended there could have been “no such arrangement at O’Neal’s apartment” as had been previously described, including the scene that Roe recalled Sylve had described in his testimony, with bullets being wiped off. “He made it up. He made it up. … Mr. Sylve’s testimony is a lie, to get a better resolution.”

At 10:50 pm, Roe continued, “We have Huber using (friend Cara’s) phone, getting a call from Chaney. Then at 10:59, Chaney (saying) ‘I made the wrong turn’. At 11:13 pm, Bushaw calling Huber – they’re not together yet, are they? My client is talking to (girlfriend) Jamerica at 11:23, while at the same time, Bushaw is calling Huber at 11:23. They still are not together. There’s been no meeting yet. At 11:26, Huber was called again by Bushaw. … You can tell by the phone records who’s with whom and who’s not.”

In his analysis, “there isn’t time to make any resolution or deal to come up with some conspiracy.” He seemed to echo a phrase prosecutor Baird had used multiple times during his closing argument. “It needs the passage of time, and the passage of time, and time passing, to come up with all the time to do the thing John Sylve claims they did. It’s not there. John Sylve is lying. As you know, he also lied about Mr. O’Neal having two guns.” At this point, he showed a wire basket full of small yellow envelopes. “We have the shells” – that show bullets from two guns in all, not three.

Roe kept hammering on the contention that Sylve was lying. “He lies not just to police – my client did, too – he lies to his lawyer. Wow! … This is a man who took pride in coming up close, to ask (Bushaw) for a light, and then to kill him. There’s a pride, a glory in that, that he could get right on top of him – how close did he get? No, this is an angry man. That’s the mindset of a man desperate to be something he’s not. … This is a man who has a gun, though he’s a felon so he’s not supposed to have a gun. … John Sylve can’t be trusted, and if he can’t be trusted, the government has no case.” He testified that he fell trying to get back to the car after the shooting; Roe pulled out a map of the area, wondering aloud if he had fallen, maybe lingered, “enjoy(ing the) scene? Who knows, he’s the last one through the breezeway.”

He recounted Chaney saying that as the other men ran back to the car, he asked, “What did you guys do?” Roe asked the jury, “What would you do? We would all like to say we would go to police, but it’s terrifying. These are not sophisticated people. My client hopes it goes away, he knows he’s done nothing wrong, he does what most of us do when we get into trouble- hole up and wait for it to pass.”

Rewinding back even earlier that evening, Roe noted that Chaney picked Sylve up just before 9 pm and went to his barber shop. “So in 15, 20, 30 minutes, this plan was put together? In this time Sylve has agreed to kill a man in cold blood, for a man he has not seen in 10 years [the home-invasion-robbery victim]? Sylve and O’Neal were not even on the same side of the car,” a reference to the alleged original plan for a drive-by shooting. “Sylve made it up.” And he repeated a few versions of that.

“The case against Brandon Chaney has not been proven. You don’t like the fact that Steve Bushaw got killed. It’s shocking, it’s in a public street … Is (the evidence) good enough to convict a man of murder? Is this good enough?” He listed potential types of evidence that was never presented – no video cameras from any scene along the way, for example. “The government’s case rests entirely on John Sylve. The government said you’ll have lots of questions till the day you die. If you have lots of questions – the proof isn’t there.”

He concluded in an emotional hush – so husky, quiet, almost cracking, that your reporter here could not heard the exact words, just a few phrases – “I ask you to go through all the evidence” and “This is about my client’s life.”

Then, it was the turn of Tony Savage, who has said the least during the trial, not calling a single witness in his client Bryce Huber’s defense. He is by far the most senior of the three veteran lawyers at the trial, 81 years old, walking slowly, hunched, but no slowness in his work, sharp in voice and arguments, dryly humorous at moments. A podium was brought in for him to stand at as he made his closing argument.

“I am not going to be with you as long as you may fear,” Savage began. “You have your notes and memories, I have mine … the evidence you are to consider is the testimony and the exhibits.” Self-mockingly, he cautioned, “Watch out for the lawyers!”

He called attention first to various details from the testimony, including one that no one had pointed out previously – while Huber’s ex-girlfriend Stephanie had testified that he told her he was out on the patio at Talarico’s that night, it doesn’t have a patio. She also had testified that he mentioned going outside with Bushaw after “the car drove up.” Savage scoffed, “No car drove up.” (The car in which the two shooters, Sylve and O’Neal, were riding with another man, and with Chaney at the wheel, by all accounts parked behind the businesses across the street from Talarico’s.)

As had Roe on Chaney’s behalf, Savage sought to discredit Sylve’s testimony. He noted that Sylve had a work history including the Army Corps of Engineers and Microsoft – “this is an intelligent man … Mr. Sylve sees the writing on the wall. He takes the deal. He gets to plead guilty to a lesser charge, second-degree murder with a gun enhancement. He isn’t sentenced, yet. He has to testify truthfully. Does anyone think Mr. Sylve would have got his deal if he came in here and swore Huber had nothing to do with it?”

He then brought in a different side of Sylve’s background, saying he “stole cars for a chop shop with (the home-invasion-robbery victim) over in Yakima, with (that man) dealing with stolen computers … Sylve would lie to anybody at any time, any place, about anything, if it was in his best interest.” He quoted Sylve’s version of what happened immediately before the shooting – that Huber and Bushaw got out of Bushaw’s car (in front of Poggie Tavern) and started walking acros the street, Sylve getting close to Bushaw, asking him for a light, and then, Sylve said, Huber “peeled away so he would not be in the line of fire” – but, Savage said, “Tony” the bouncer did not see Huber: “An impartial witness, with no ax to grind. … The evidence is always going to come back to Sylve. Who says Huber and Bushaw came out of the bar together? Sylve and no one else. Who says they went to the car to smoke? Sylve. Who says they exited the car together? Mr. Sylve. Who says Huber was on California when the shooting occurred? Sylve.”

He continued, “So let’s say Huber is up to his elbows in this plot … He brings two women to the bar with him, takes them to the table where he is supposedly making calls, and he has Bushaw come in and sit down and meet the ladies. So they can get a good look at the man he intends to lay out in the next few minutes? If you are going to do this, why in the world would you go about creating additional witnesses? … When you get down to it, what you got is Mr. Sylve, and that’s it.”

Savage then noted that a not-guilty verdict “doesn’t mean you prefer the defendants … what a verdict of not guilty means is, Mr. Baird, you’re a fine guy, fine prosecutor, we’ve listened to (everything), and this just isn’t good enough. It’s not (Baird’s) fault, it’s not (Detective) Cooper’s fault, it just doesn’t get you there, it just isn’t good enough.”

That’s how he ended, with the final word going to prosecutor Baird, in rebuttal. He complimented the jurors for being “attentive, careful, and patient through this trial … I know you will do the right thing.”

He took on the defense lawyers’ contention that there was no time to hatch a plan: “it sounds like Chaney’s lawyer has given up trying to cover a 20-minute gap with a 9-minute call … so now, apparently the phone-record argument is ‘they didn’t have time to premeditate’. Really? How much time does that take? They’re not charged with a conspiracy that took months to unfold. They’re not charged with committing a murder intelligently.”

Regarding Roe’s point that the two shooters were on opposite sides of the car, supposedly counter to the claim they were at one point considering a drive-by shooting,’ Baird said to the jury, “I’m guessing he’s never done a drive-by and you haven’t either. But if you don’t know where the target is, wouldn’t you want to have a shooter on each side? ”

As for the timeline in the moments around the shooting, Baird recalled testimony that Huber had said he went out for a smoke and police showed up, so he couldn’t get back into the club (where the girls he’d come with had been left behind). He then wondered aloud if Roe is “representing Danny O’Neal” in addition to Brandon Chaney, because, “he wants to pretend O’Neal never existed, saying that Sylve was doing the shooting, and – yeah, the other guy was there. Well, we know what (O’Neal) did. He didn’t kill Mr. Bushaw. He tried. He fired (at him, at the restaurant). That’s a pretty good effort. (But) they’re trying to pretend Sylve shot all by himself. It’s obvious why they are doing that. If you believe Chaney, there was no plan whatsoever, if you believe Sylve did it. But Danny O’Neal did the same thing at the same time. Both of them started firing at Mr. Bushaw at the same time. So, wow, they just go crazy, the two of them together, what a coincidence! There’s no plan, they’re both shooting out of the blue? that’s what happened? Mr. Chaney took a trip with Mr. O’Neal to Yakima, after Mr. O’Neal and Sylve blazed away at a man in the street and killed him. It didn’t sound like he was worried there might be another temporary insanity and that he might go crazy and shoot (Chaney) … not at all. He knew exactly why O’Neal did what he did. He knew exactly why Sylve did what he did. But he decided not to have anything (further) to do with Mr.Huber. Why? Because Mr. Huber led Mr. Bushaw to his death.”

And he challenged the contention that Sylve’s testimony was the only testimony to take into consideration, and therefore, if he wasn’t believable, there was no case. “Who said he was out smoking? Huber. (Friends Cara and Jennifer) – we’re supposed to forget about them? About Stephanie’s testimony? Who met (with) him while he was a fugitive, laying low? Do we forget about Joy, and the night she spent (at Huber’s place)? Do we forget about the clipping he had on the home-invasion robbery? And the one thing he denied: ‘Steve Bushaw is not my friend’.”

He suggested that if jurors felt Chaney and Huber also deserved “a deal,” they could certainly decline to convict them of the firearm enhancement (which would add 5 years to their sentence if they were found guilty of it). Or, “if you think there’s a reasonable doubt, walk them out of here.”

And at 3:38 pm Wednesday, the case was in the jury’s hands. The woman and man who were “alternate jurors” were separated from the other 12 for the first time in three-plus weeks and sent home, told that they will not be deliberating, but that if one of the jurors becomes ill or otherwise unable to continue, they’ll be summoned.

That left seven women and five men to decide whether Huber and Chaney are guilty or not guilty. As we finish this story, there’s a little more than one hour left in the court day; though the trial has been in recess on previous Fridays, Judge DuBuque had said that would change if needed during deliberations, so if there is no verdict today, the jury will continue its work tomorrow.