Fernbach to be sentenced in February
Jury's verdict: guilty,
but mentally ill

Wanda English Burnett
Editor

It took the jury less than three hours to render a guilty, but mentally ill, verdict in the case of State vs. James Fernbach Jr. on Tuesday, January 18.

The 12-person jury listened intently, took extensive notes, and considered the evidence presented by both sides to come to their decision that made the prosecutor’s team believe they had thoroughly presented their case.

“There is a huge sense of relief at the verdict, I believe our community is safer because of it,” Prosecutor Ric Hertel told The Versailles Republican. “The jury’s decision of guilty, but mentally ill on both counts of Attempted Murder sends a message that they believed he was mentally ill, but still knew the difference between right and wrong,” Hertel noted. He said that was always the key question, did the defendant know right from wrong?

After the trial was concluded, one juror said they all came to the unanimous decision very quickly.
Fernbach, who shot two people outside a Batesville convenience store on April 4, 2009, did not display any emotion throughout the five-day trial. He sat calmly as witness after witness took the stand.

Jurors heard expert witnesses, medical professionals, police officers, friends, witnesses to the crimes, and the ex-wife of the defendant, along with evidence presented by both defense and state. They never heard from the defendant himself.

In closing arguments, Deputy Prosecutor Ryan King recapped the facts and evidence from the days of the trial as he passionately told the jurors, “you can do your part in righting this wrong.”

King talked about the doctors lack of preparation citing they didn’t consult what he considered important witnesses and never talked with the victims themselves. He noted that one doctor had relied only on his interview with the defendant.

“I believe the jury saw through the testimony and complete lack of investigation by the court’s two doctors,” noted Prosecutor Hertel. He said while they “may have had qualifications, their work in this case left much to be desired.”

The prosecutor went on to say when two people have been shot and the defendant is facing charges of this magnitude, he thought the doctors would have put more effort into their work.

Phillip Cruser of Westport was shot in the head sustaining life-threatening injuries. While he survived the gunshot wound, he has been left with life-long complications that has left him disabled. His wife was a victim in many ways, too. She was there, saw her husband’s head fall forward after he was shot in their truck outside the Day Nite Store, Batesville, and held his head in her hands until help could arrive. She now works outside the home and helps her husband, who was totally self-sufficient before the incident.

Benjamin Dick, 28, of Sunman, was also a victim of Fernbach’s shooting spree. After Cruser was shot, Fernback turned the gun on Dick, who was simply getting out of his vehicle to enter the store. Unlike Cruser, who didn’t have the opportunity to fight back, Dick saw what was coming and fought for his life. He wrestled with the shooter, and managed to get the gun turned away from his head and was shot in the hand.

“Our hearts and thoughts go out to the victims,” Prosecutor Hertel told The Versailles Republican. “Phil will never be the same and has constant reminders of that. Maybe this (the verdict) will bring some sort of solace.”

The prosecutor commended Batesville Police Detective Mike Benjamin who he said “always went the extra mile and led a team of police officers in this investigation from early on.”

The prosecutor had high praise for the deputy prosecutor Ryan King, and Katherine Bumgarner, a law clerk in his office for their “relentless” and “tireless” work before and throughout the trial. “I spent many nights with them reviewing the facts, the law and the doctors’ evaluations and ultimately developing a case theory and theme to this entire prosecution.” The prosecutor concluded, “They are a credit to the profession.”

In closing arguments, defense attorney Mark Jones referred briefly to the prosecutor’s side as the “dream team.” Hertel refers to them as professionals who did their jobs.

Jones defended his client with fervor even taking a passage from the famous “I have a dream” speech of Martin Luther King Jr. saying there should be equality for all. He admonished the jurors to listen to the final instruction of the judge and follow the law. He said insanity was the real issue in the case with his client never having any intent to kill.

The defense attorney said the delusional beliefs of his client were real to him. He said he (Fernbach) lived in constant fear for his life and the lives of his family. Jones told the jurors “we have a habit of judging his (Fernbach’s) conduct by our sense of reality.” He reiterated that Fernbach was insane, not operating in the same world as others. He asked the jury to find his client not guilty by reason of insanity.

In the final ten minutes of addressing the jury, Prosecutor Ric Hertel asked how you could pick a “spot in time” where a person is insane, and then be sane the rest of the day. He said, “It was a choice, he (pointed to defendant) did it.”

In the end the jury decided that Fernbach was guilty, but also allowed for his mental illness that they heard about in great detail. The Attempted Murder charge is an A Felony, punishable by 20-50 years in prison and Fernbach is facing two counts. His sentencing will be the same as it would be if he was only found guilty. That sentence will be handed down on February 15 at 2:00 p.m. in Ripley County Circuit Court.

WANDA ENGLISH BURNETT PHOTO Sheriff Tom Grills, left, escorted James Ferhbach from the courthouse Tuesday afternoon after a jury found the defendant guilty on two counts of Attempted Murder. The sheriff and deputy Dale Holbert were in the courtroom throughout the proceedings.