After watching a video clip of a local musician being “beaten to a pulp” outside a liquor store in downtown Juneau this past summer, a Juneau judge says he doesn’t buy the argument that the assault was in self-defense, as a defense attorney maintained.
A prosecutor played the video for Judge Philip Pallenberg in Juneau Superior Court on Thursday during Darrin D. Austin’s sentencing hearing.
The video shows C Scott Fry, a well-known bassist and a fixture of the downtown music scene, starting the fight, but “none of that in any way, I think, justifies what came after,” Pallenberg said.
“He wasn’t defending himself in my view,” the judge said of Austin. “He was retaliating or responding to what Mr. Fry apparently … initiated.”
Pallenberg sentenced Austin to serve four years in jail for the June 6, 2015, assault in front of Percy’s Liquor Store. Austin has been in custody since his June 10 arrest.
Security cameras at the Walter Soboleff building captured the incident on Front Street. The video played in court showed Fry approach Austin in the early hours of the morning, forcefully shove him into the wall, and yank his shirt collar, pulling him to the ground. Both men fell on the sidewalk — Austin on top of Fry. The general consensus among the attorneys and judge was that Fry hit his head on either the sidewalk or a lightpole at that point, knocking himself unconscious.
After that, though, the video shows that Fry did not move at all, and Austin began beating him. Austin was seen punching Fry in the face and repeatedly stomping on his face and kicking him while Fry lay on the ground.
Assistant District Attorney Angie Kemp said Austin had “multiple opportunities” to walk away during the assault, which lasted about two minutes, but instead he chose to stay and continue beating Fry. Kemp said it was “exceptionally fortunate” that seconds after Austin walked away and off-camera, a police officer driving downtown noticed Fry on the ground, which led to him receiving immediate medical assistance.
Defense attorney Eve Soutiere, of the Office of Public Advocacy, argued that Austin was the victim in the case and that he did “what any of us would have done” after being attacked in the street.
“Had this been a case where he attacked Mr. Fry for no good reason, I don’t think I could make these arguments at all,” she said, requesting two years of prison and four years probation. “But (Austin) was the victim of an assault. Mr. Austin was doing what any of us would have done and protecting himself.”
She added, “This attack could have gone very badly for Mr. Austin, had he been on the bottom of the pile and had he hit the lightpole. We could be here for an assault case where Mr. Fry was the defendant.”
Pallenberg agreed that could have been the case, but that Austin’s reaction to Fry’s provocation was disproportionate.
“And I’m not going to defend what Mr. Fry did — he was out of line,” Pallenberg said. “But none of it could possibly justify what came after.”
He said of the self-defense claim: “I don’t think there’s a basis for saying that Mr. Austin was doing that because he was frightened of being hurt or terrified of Mr. Fry. Mr. Fry, as I said, was lying unconscious on the sidewalk, being beaten to a pulp.”
As to what led up to the incident, Pallenberg said, “We’ll never know.” Neither Austin nor Fry remember it. Austin told police he was “black-out drunk,” and police reports indicated his blood-alcohol level was 0.171 percent. Fry’s blood alcohol content was 0.187 percent and he sustained a brain injury as a result of the incident.
Fry, who did not appear at Thursday’s hearing, testified earlier before a grand jury that he only knew Austin from an incident two years prior when Austin was trespassing at the Alaskan Hotel and Bar, where Fry works. He said he doesn’t remember why he started the fight.
Austin averted his eyes when the video played in the courtroom on Thursday, and apologized when given the chance to speak.
“I just wish I could have stayed sober and this wouldn’t have happened,” he said. “I’ve made a lot of mistakes in my life, which (if I had been) sober, I wouldn’t be here. I just wish I could have stayed sober for my children, which I should have because once I lost them, I just lost myself. I couldn’t watch that movie, the video, so I wish I could say sorry to him, but what happened happened. I couldn’t stop myself. I can’t remember still.”
The judge ordered that Austin, who previously pled guilty to felony assault in connection to the case, pay restitution to cover Fry’s medical bills. The amount has not yet been determined. ADA Kemp said the bills are in the hundreds of thousands of dollars, since Fry wasn’t insured at the time.
In addition to the brain injury, Fry also sustained broken ribs, nose and eye socket, and multiple facial fractures. He told the Empire previously he had to relearn how to walk and talk. He was released from a rehabilitative center late last year and has since returned to Juneau. He said he’s also relearning how to play the guitar.
