16

SECOND SHOT

As soon as Ron Zonen let Judge Gordon know that the prosecution would seek another trial of Graham Pressley, Michael Ganschow put forth arguments as to why a second trial should not take place. Ganschow said, in part, “In his opening argument the prosecutor claimed that he would establish that Graham Pressley was an agent of Jesse James Hollywood. Specifically, he expected to prove that Graham Pressley bought drugs from Jesse James Hollywood, and that he participated in the conspiracy to kidnap and kill Nicholas Markowitz at the behest of Hollywood. The district attorney said that he would establish the connection between Mr. Pressley and Mr. Hollywood through evidence of subpoenaed phone and pager records. However, at the conclusion of evidence, the connection could not be made.

“Given the irrational thinking that motivated the original kidnapping of Nick as retaliation for his brother’s drug debt, Pressley could only speculate as to what the killer had in mind and believed that he, too, was about to be killed for having witnessed the captivity of Markowitz. All of his actions were guided by this anxiety, because he had been told, ‘Keep your mouth shut, if you know what’s good for you! We know where you and your family live.’ He did not come forward and inform law enforcement of what he knew for that reason.”

In conclusion of his statements, Ganschow told Judge Gordon, “A retrial would be a severe hardship for the defendant and waste of resources. Nothing can ever repair the terrible hurt and pain the Markowitz family has endured as a result of the senseless murder of their son. But a retrial of this case is not the solution to obviate their pain.”

Lending weight to Ganschow’s arguments was a juror from the trial that had just concluded, who was a graduate student of the University of California, Santa Barbara. In a three-page letter to Judge Gordon, concerning the advisability of a new trial, the former juror was decidedly against it. He started off by saying that he did not take illegal drugs and believed that all people had to be held responsible for their actions. That being said, he explained his own theory of what might have happened on the night of August 8 and early-morning hours of August 9, 2000. This former juror believed Graham Pressley was never part of the plan to kill Nick Markowitz, and, in fact, had been surprised when Ryan Hoyt showed up with a gun at the Lemon Tree Inn and began cleaning ammunition in the bathroom. From that point on, the former juror said, 130-pound Graham Pressley did everything he could to not anger the much heavier, six-three Ryan Hoyt. Hoyt obviously had a weapon that could be used on anyone, including Pressley.

The juror expressed, As the events of the night unfolded and it became obvious that Mr. Hoyt was planning to use the gun, I believe Mr. Pressley entered a state of denial and clung to the hope that everything would turn out fine. In hindsight, that might have been irrational, but the juror said that nothing was rational about anything that had happened. On top of that, Pressley could not believe that his friend Jesse Rugge would be involved in a killing of Nick. Rugge and Pressley had been partying with Nick for the past two days, and if nothing had happened to him yet, then chances must have seemed slim to Pressley that something bad would happen now, at least according to this former juror.

The juror also said that eight out of the twelve jurors did not believe Pressley knew he was digging a grave for Nick Markowitz. In fact, the former juror said, they soon bypassed that issue and focused on Pressley’s second trip up to Lizard’s Mouth with Rugge, Nick and Hoyt. It even came up by a few jurors that Pressley might have been a prisoner of Rugge—and especially of Hoyt—on this second trip. As far as Pressley’s actions, or lack of action at the parking lot of the Lemon Tree, when Hoyt left him in the car alone, they surmised this was not part of aiding and abetting, but rather passive in nature, which did not add to the plot to kill Nick Markowitz.

As to the prosecution’s contentions that Pressley willingly showed Ryan Hoyt the trail again, on the second trip up to Lizard’s Mouth, the juror said that many believed if Pressley had shown the trail part of the way, it was because he had been threatened by Hoyt. The juror added, I believe at that point Mr. Pressley’s only reasonable course of action was to passively obey the orders of the man with the gun. Any other action would have resulted in two bodies buried at the site.

Another juror, also from the first trial, wrote to Judge Gordon, and in part of her statement, she expressed, I do not believe there is conclusive evidence of his guilt. I think a second jury will reach the same conclusion we did. Justice has been served. I do not believe that in the two and a half days he knew Mr. Markowitz, Mr. Pressley really understood what was happening.

Not all jurors from the first trial, however, agreed with this assessment. One juror wrote the judge saying that he believed Graham Pressley was guilty of first-degree murder. This juror claimed, The jury was completely dysfunctional. At best, only one or two hours of our deliberation involved any discussion of the evidence, and in fact, most jurors seemed pretty uninterested in that topic. This juror added that some of the jurors would have liked to have looked at the evidence more, but they couldn’t get a word in past the talkative jurors more interested in relating their life experiences. And then, this former juror really slammed his fellow jurors: Since Pressley hasn’t yet had a real jury, he has not yet had a real trial!

Judge Gordon took all of these statements under advisement, and in the end he decided that there were grounds for a new trial. The second trial would not have any special circumstances, as far as kidnapping went. That was no longer an issue. This second trial would solely be on a count of first-degree murder against Graham Pressley.

 

 

So, in November 2002, both Ron Zonen and Michael Ganschow were back at it once again in front of a new jury. They basically had the same opening statements, with a few new wrinkles, but the issues of the timeline and accounts of the co-conspirators were basically the same. Graham Pressley also took the stand again and he reiterated the conversation he’d had with Jesse Rugge, on the afternoon of August 8. Pressley stated, “Jesse Rugge said that he’d been offered money from Jesse Hollywood to kill Nick. Then he said, ‘But that’s not going to happen.’ He said that’s never going to happen. After that, I think all of us were a bit more at ease.”

As to why he didn’t go to the police after speaking with Natasha Adams about the situation, Pressley testified, “I basically said we shouldn’t get involved in this because we could potentially be in danger ourselves.”

When it came to why he had at first lied to detectives, Pressley answered, “I doubted they would believe me if I told them the truth. They wouldn’t have believed I was forced to dig the hole and that I thought I was going to die.”

 

 

Ron Zonen, however, kept claiming that Pressley was in on the plot to kill Nick all along, and he’d had plenty of opportunities to just walk away from the others, including Ryan Hoyt. Even if Pressley hadn’t told Nick of what was going to occur, he could have simply left the car at the Lemon Tree Inn when Hoyt went up to get Rugge and Nick, after the hole had already been dug. That he didn’t, in Zonen’s mind, proved that Pressley was on board with the scheme and knew that he was going to show Hoyt the way back up the trail to the hole that was dug near the Lizard’s Mouth.

 

 

There was once again a parade of witnesses on the stand, many of them who had been in Hoyt’s trial, Rugge’s trial and Graham Pressley’s first trial. During closing arguments Michael Ganschow told the jurors, “There is no evidence that Mr. Pressley intentionally aided Ryan Hoyt. What we really have here is a tale of two teenage boys, Nicholas Markowitz and Graham Pressley. One did not return, and was brutally murdered, and one survived.”

In his closing arguments Zonen stated, “Digging the grave of Nicholas Markowitz wasn’t the worst thing Graham Pressley did to aid the murder of Nicholas Markowitz. The most significant act was leading Nick Markowitz to his grave. Ryan Hoyt could not have found his way back to that grave site. The trail forks eleven times before reaching that spot. The reasonable explanation is that Pressley was escorting them up there to accomplish his crime. The unreasonable explanation is that he was an unwilling participant. He wasn’t acting like someone who was scared. He behaved like a full-fledged member of the enterprise. He was not experiencing fear, except perhaps the fear of getting caught.”

 

 

The jury of eight men and four women deliberated three days before coming to a verdict: a conviction of second-degree murder for Graham Pressley. Christina Pressley burst into tears and exclaimed, “Oh, my God! Why didn’t he run away? Why didn’t he leave?” It wasn’t apparent if she was talking about Nick or Graham.

The jurors quickly walked out of the courthouse, and had nothing to say to reporters about their decision. Naturally, Michael Ganschow was upset by this ruling in the second trial for his client. He said of this set of jurors, “I have no idea where they thought the evidence was. Juries do anything they damn well please! We ran into a very cold group of fish. If Mr. Pressley is sent to prison, it will be the equivalent of a death sentence. He’s a pretty boy and will be targeted by the other inmates.”

Ron Zonen, on the other hand, was pleased with the decision and told reporters, “I never believed Mr. Pressley was forced to do what he did, and it doesn’t appear that the jury believed it, either.”

Along with Zonen, Jeff Markowitz was heartened by the decision of the second trial. “My only surprise was getting twelve jurors to agree to something this monumental,” he said. “There were too many holes in Mr. Pressley’s testimony and statements to county sheriff’s detectives for jurors to acquit him of being a willing participant in the execution-style murder.”

Susan Markowitz told reporters, “I wouldn’t have wanted to be one of those jurors. It was a very tough job.” She was less pleased, however, with Judge Gordon’s ruling, that Graham Pressley would be out on bail until sentencing. Susan related, “Because Mr. Pressley was found guilty, he should be behind bars until he’s sentenced. I thought letting him be out is wrong.”

Before the sentencing of Graham Pressley, there was a full-court press by both Ganschow and Zonen to sway Judge Gordon in the matter. The defense wrote a document: “Upon a Showing of Good Cause a Person Who Is in Custody May Be Retained in Juvenile Hall After He Becomes 18 Years of Age.” The whole point of the document was to keep Pressley in juvenile hall, and not to be sent to an adult prison after sentencing. Ganschow argued that Pressley could continue his education at juvenile hall, which he had been doing over the previous year via the Internet with Santa Barbara City College while in jail. Ganschow stated, “It is in his interest to develop as an educated member of society and to build credentials toward being a productive member of society.”

To back up these contentions, Ganschow submitted letters written by various college professors, juvenile facility workers, friends and family members who knew Pressley. James Chesher, a philosophy professor at Santa Barbara City College, wrote Judge Gordon a letter stating that Pressley in his philosophy course read on issues of moral theories in Western thought. These included works by Plato, Aristotle, Hobbes and Kant.

In Pressley’s case Chesher wrote: I strongly urge that a decision be made in favor of enlightenment. The one thing that philosophers of every tradition have agreed upon is this: the single greatest cause of human suffering is ignorance, the only remedy is education. As Graham’s future unfolds, let it be shaped by education, so that he can become the man that he is struggling to be.

Ken Kuroda, an instructor at the La Posada School in the juvenile hall, wrote that he’d been working closely with Graham Pressley while Pressley was incarcerated there. Kuroda stated: The other students here look up to Graham, and Graham has been a positive role model for them. It’s not simply his hard work in academics, but more importantly he has modeled responsibility, kindness, cooperation, politeness, as well as positive proactive speech to them. Kuroda said that taking Pressley out of the juvenile hall would result in a reversion of gang leaders becoming the role models for younger boys in the facility, who currently looked to Pressley for guidance.

Along with academic instructors, Ganschow had friends of Graham Pressley and church members who knew him send letters to Judge Gordon, speaking of his good qualities. Among these was a letter by Alissa Wuertz, a missionary to Madagascar, who wrote that she had once been caught up in the fast life of drugs and other illegal activities. Since that time she had turned her life around and gone on to serve others. She wrote, Like myself, Graham Pressley has become a Christian and has experienced God’s grace and eternal forgiveness in his life. God has given Graham a second chance; I humbly ask you to do the same.

Fourteen-year-old Katie Alexander, who had transverse myelitis, which made her walk with a brace and crutches, wrote, Graham is a big help to me. I think God gave Graham to me to help me not get sad and discouraged. Please do what you can to help him stay here and be my friend.

Perhaps the strongest and most heartfelt letter came from Graham’s mother, Christina Pressley. She said that she had sat in court during both trials, and when the jury convicted Graham of a most heinous crime that he is not capable of committing, my very soul was pierced. She added that Graham now lived for two people—himself, and to make things up for Nick Markowitz.

Christina said that she wished she could bring back the events of the day when Nick and Graham had been in her car as she drove them to the Lemon Tree Inn, and she added that she would live with that guilt for the rest of her life. She was perplexed by the fact that so many adults—like John Roberts, Jack Hollywood and Michelle Lasher—had been granted immunity, when they had, in her estimation, helped Jesse James Hollywood escape punishment. She also believed that if the TEC-9 pistol had not jammed, Ryan Hoyt would have killed Jesse Rugge and her son, to get rid of all witnesses.

Christina ended by writing, Please, I beg for my son’s life. Please don’t send Graham to prison. I know that he has tremendous potential to help others. Together, with his sister, we will be on a crusade to never let Nick’s memory be forgotten.

 

 

The letters in favor of leniency for Graham Pressley were all profound and poignant, but so were the letters in favor of sending Pressley to an adult prison. Jaime Brooke Ashmore, a friend of the Markowitz family, said that people were responsible for their own actions. She wrote, One of the most amazing people I have ever known was taken out of my life and many others, for no reason. Please do not let this crime go unpunished. Graham Pressley dug and walked Nick Markowitz to his death bed. I’m sure Nick wished for mercy when being sentenced, but he didn’t get it, and Mr. Pressley doesn’t deserve it.

Caren Auchman, who was about the same age as Pressley, wrote that Graham might have just been following orders: But the Nazi soldiers in the Nuremberg trials said they killed millions of Jewish people because they were following orders. They were still guilty of murders because they did not stop it. Is this not the same case with Mr. Pressley?

As Christina Pressley’s letter, asking for leniency, had been one of the most powerful to Judge Gordon, the letters of Jeff and Susan Markowitz to the judge asking for a stern sentence were just as powerful. Jeff started his letter by saying that three thousand years in the past, Moses had given a farewell speech to the Jewish people by stating that as they entered the Promised Land, justice had to be followed with fair trials and witnesses speaking out for the accused and witnesses for the victim. In fact, Nick had read this very passage in Deuteronomy during his Bar Mitzvah.

Jeff wrote that they were all faced with a similar situation at the present time in Graham Pressley’s trial and sentencing. The jurors knew that Pressley had not pulled the trigger that ended Nick’s life, but without his participation this event would have been much harder to accomplish. In the last few hours of his life, Jeff wrote, Nick had been surrounded by pretty girls, a party atmosphere at the Lemon Tree Inn, where Pressley told him that everything would be okay. Pressley and Nick even went swimming together at the motel pool, but not once did Pressley tell Nick that Jesse James Hollywood had already offered money to Jesse Rugge to kill him. Later, when Ryan Hoyt showed up, Pressley saw a gun in a gym bag, and Hoyt cleaning a clip of ammunition, and still he did not warn Nick of impending danger.

Once Pressley had taken Hoyt up to Lizard’s Mouth, Jeff said, Pressley did not show him a spot near the rock where it would have been hard to dig a hole. Instead, he took him to a place where the ground was soft enough to dig a grave. When they got back to the Lemon Tree, Hoyt didn’t tell Pressley to come up to the room, but instead went up there himself and left the TEC-9 in the trunk of the car with Pressley. Pressley did not run away or tell anyone what was happening, he merely stayed in the car. Jeff said that even if someone was scared or stupid, no one would have stayed in that car unless they were involved.

Jeff even quoted from a transcript of Pressley’s interview with detectives, when Graham spoke with his mother:

Christina:	So you dug it (the grave) and went back to the car, and when you got to the car they took the boy?
Graham:	There were two trips up there. One trip to dig, and then we went back down and got the kid.
Christina:	That makes it worse.
Graham:	I was held at gunpoint.
Christina:	If you were held at gunpoint the whole time, why did they take you up there and make you do that, and then just let you go the next morning?

 

In fact, Jeff wrote, soon after the murder, Jesse Rugge invited Pressley to a barbecue and Pressley willingly went along. In conclusion Jeff Markowitz wrote, I have thought about what Ryan Hoyt did, and how menacing he must have looked and how heartless he was. But I ask you now, what is worse, a heartless monster or a meek-looking deceitful person that lures you to imminent danger and ultimately to your death? Which is more premeditated?

Susan Markowitz’s letter to Judge Gordon was absolutely heart-wrenching. She began by saying, I am the lost, broken and suicidal mother of kidnapped and executed Nicholas Samuel Markowitz. I am still unsure of how I am going to get through tomorrow without Nick, my only child. I was a housewife, blessed to be a stay-at-home mother. Nick, being my only child, makes me wonder if I am still a Mom. Losing two pregnancies after Nick made him that much more special. Nick was my life. I ache for him every minute of every day. The thought of him not coming home, 860 days later, still panics me.

Susan told of how Nick’s death had been so senseless and had utterly destroyed her. She used to be an outgoing person who entertained, but now she didn’t answer the phone or the doorbell. Friends and family members didn’t know what to say to her, so they avoided her, and even the ones who tried to help, she kept at arm’s length. She no longer went to Bar Mitzvahs, birthdays and weddings, because she knew how much they would make her cry and spoil the occasion for others. She said she was sentenced to her own prison, without hope of a pardon or parole.

She spoke of Nick’s best friend, who cried on each of his birthdays because of the loss of Nick. Nick had planned to make a difference in the world, and he loved drama and computers. He had a talent in drawing; he was funny and made her constantly laugh. Susan wrote that everyone made choices, every minute of every day, and Graham Pressley had chosen to participate in the kidnapping and murder of Nick. She said she knew beyond a doubt that if Darla Gacek and the others had not found Nick’s body, Graham Pressley would never have come forward to confess about himself or the others. Susan ended by writing, I beg you to give Graham Pressley the leniency he gave Nick, which is none.

 

 

In the end Judge Gordon was as lenient as Graham Pressley could have hoped for. He sentenced Pressley to five years at a California Youth Authority facility.