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Friday, March 19, 2010

Terrorism With Guns Mandates Two Years, Even For ND Man In Wheelchair

Here's the Bismarck Tribune story:

Richard Starke could die in prison for what he says was a show of force to compensate for being disabled in a wheelchair.

Starke, 79, started serving a mandatory two-year sentence in mid-February after being convicted of a Class C felony charge of terrorism involving guns.

He has emphysema among other health problems and figures his lung capacity is failing so fast he could die before his sentence is served. For now, he’s in a small, green-tiled room in the prison’s infirmary.

Starke, a retired major in the U.S. Air Force, was awarded a Silver Star for bravery while flying reconnaissance missions with one shot-out engine in the Vietnam War. Now, he’s doing time because a jury believed he pulled out a small handgun and used it to threaten two young men who towed his vehicle out of a snow bank in January of 2009 and had come inside his house in Burlington to collect their towing fee.

His attorney, Michael Ward of Minot, says a one-size-fits-all mandatory sentence imposed by the Legislature in the wake of the terror attack on the World Trade Center doesn’t fit Starke’s case.

“I don’t see where this serves justice at all,” Ward said.

Ward County Assistant State’s Attorney Mark Flagstad said he did try to negotiate a lesser charge because he knew the potential outcome. “He chose to go to trial and here we are. The law doesn’t make exceptions. He screwed up and he screwed up big,” Flagstad said.

The case is being appealed to the North Dakota Supreme Court.

Starke says he never un-holstered the palm-sized, five-shot Smith and Wesson, just laid it on the kitchen table to make its presence known.

Flagstad said it happened quite differently.

Flagstad said Starke pointed the gun at the two young men and told them, “This one’s loaded, too,” after indicating a rifle leaning against the wall nearby.

“What would you do if you were looking down the barrel of a gun?” Flagstad asked. He said the tow drivers fled from the house and the police were called.

Starke said he was agitated after the tow drivers first charged him $94 to get his vehicle out of the snow, since he’d been charged $35 for the same service by a different company, and then said they’d tow it away if he didn’t pay.

He said he wrote the check and thought their business was concluded when the drivers asked to see some identification.

He said that’s when he reached for the handgun, which was on the seat of a kitchen chair at the table next to his wheelchair.

“I just put it there and then I crossed my arms (in front of me on the table). He (driver) looked at it and left with my check,” Starke said.

Starke said he never pointed the gun and says his 80-year-old female companion and care provider who was also in the kitchen told the court the same thing. “I just wanted them to get out of there. They were young and strong and I’m not. When they took my check and wouldn’t leave that told me something was going to happen,” he said.

Starke said he had the right to protect his home and the right to bear arms.

He’s been a member of the National Rifle Association since 1954 and owns a sizeable gun collection.

Gerald Olson, owner of the Minot towing service, said had the towing charge been tenfold, Starke’s reaction was still way out of line.

“There’s no reason to pull a gun. He should have taken it (dispute) to the authorities. There’s no place for firearms,” he said.

He said one of the tow drivers was his son, Dusty, 25, who was just learning the towing business. “He’s a big guy, really easygoing, not abrasive and fun to work with,” he said. The other was Landon Larsen, 22, a talented viola player for the Minot Symphony Orchestra, a good worker, a “get ’er done” kind of guy.

“They felt terribly threatened,” Olson said.

He said since the incident, he no longer allows his employees to enter a customer’s home for fear of them being trapped. He said neither his son nor Larsen will work the tow truck anymore and Larsen, that day at Starke’s, was too shaken to finish his shift. He said the state’s attorney’s office requires they get identification for checks, but he’s since quit taking checks, too.

Olson said he called the other towing company afterward and was told its bill was twice what Starke claimed. He said his towing fee was fair and included mileage plus a base fee.

He said people from Burlington have told him it’s about time something was done with Starke. Starke’s own attorney, Ward, describes him as a “wing nut,” but says the man had a perfectly clean record without as much as a speeding ticket.

Starke said he was “dumbfounded” when the 12-member jury convicted him in December. He shouted, “Traitors,” as jurors filed out of the courtroom.

Ward said given Starke’s health and age, he should have been sentenced to wear a tracking bracelet and do his lockup and medical care at home.

Mandatory sentencing for terrorism, in the wake of Sept. 11, “takes away discretion from the judge,” Ward said. “It’s an entirely different matter when it’s in his own house and he lays a gun on the table in a gesture of self-protection.”

Flagstad said as crimes become more serious, the Legislature has a duty to respond. “Guns used against people is getting into the pretty serious range,” he said.

While Starke claims he had a right to protect himself in his own home, Flagstad said it’s not that simple.

“There’s a difference between someone who did something and was allowed in the house to present a bill, and a burglar. He had other options. If he thought he was being charged too much he could pay the bill and sue,” Flagstad said.

Still, Flagstad said Starke’s was an unusual case and he “didn’t particularly enjoy doing it because of the defendant. Looking at the facts and the evidence, you know what’s going to happen (with the mandatory sentence).”

Besides the appeal, or the potential to be released to home while the appeal is pending — a defense motion Flagstad said he didn’t contest because he doesn’t believe Starke is physically capable of fleeing — the Department of Corrections also can remove Starke from prison for home placement with a tracking bracelet, Flagstad said.

Starke said he wants to go home.

“I’d rather not die here. I’d rather go home and restore my family’s honor. I’m not a criminal,” he said.

(Reach reporter Lauren Donovan at 701-784-5511 or lauren@westriv.com.)

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