Dylann Roof: How to make a rampage murderer

As the penalty-phase trial of young white supremacist Dylann Roof gets underway this week, reporters have asked me to explain the psychological dynamics that trigger deadly rampages like Roof’s at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina. My answer: Although the specifics such as locale and target shift, the broad contours of such spree killings remain remarkably constant. Here is my recipe of key ingredients:

1. Alienation

We humans are tribal animals. For millennia, we lived in tightly knit, cooperative societies where individuals were rarely alone. As author Sebastian Junger explores in Tribe: On Homecoming and Belonging, tribal identity motivates individuals to sacrifice for the collective good. In stark contrast, modern society deprives people of that essential sense of connection or belonging. Our current technological atomization is “deeply brutalizing to the human spirit,” writes Junger. Cast adrift, people feel meaningless and superfluous. Social alienation is producing epidemic rates of depression and suicide. But it is in spree killings that we see the ultimate expression of malignant alienation: Embracing nihilism, the killer finds meaning via symbolically destroying not just himself, but also the social order that rebuffed and humiliated him.

Mark Ames, author of the meticulously researched Going Postal, goes so far as to argue that mass shootings are a form of doomed rebellion against a toxic culture: Otherwise-normal people snap when pushed to the breaking point within decollectivized, militarized and ruthless settings. Workplace sprees occur in oppressive institutional settings rife with surveillance, mandatory unpaid overtime, and humiliating and degrading layoff rituals. Sites of school shootings, meanwhile, are often brutal places where students undergo chronic torment. The more endemic alienation becomes, the more people will snap.

2. Failure

This is perhaps obvious, but setting the stage for a spree killing is cataclysmic failure. Except in warfare, satisfied people don’t suddenly morph into killing machines. The killer has failed a life-stage transition, and his life has gone off track. Dylann Roof had a troubled childhood, marked by abuse, neglect, severe anxiety and academic failure, according to published accounts. He dropped out of high school. As a young adult, he couldn’t get a job or even a driver’s license. He coped by drinking heavily. The lives of other recent mass killers were similarly catastrophic, marked by failures on academic, vocational and/or relationship fronts. Adam Lanza (Sandy Hook) and Elliot Rodger (Isla Vista) had autism-spectrum conditions that left them incapable of forming intimate relationships. Omar Mateen (The Pulse nightclub) was a socially awkward loser: he flunked out of police training, got fired as a prison guard, and ended up doing lowly security work; his wife fled after he beat her.

3. Entitlement

Dylann Roof posing in his bedroom.

Failure alone is insufficient. The failure must be perceived as unfair. Like Roof, whose grandfather was a prominent attorney, the killer often has middle-class roots, inculcating the American mythology of success. Mass shooters often have higher aspirations than are realistic for their station in life. In Hunting Humans, pioneering anthropologist Elliott Leyton argues that the modern mass murderer tends to be especially socially conservative, class-conscious, and obsessed with power and status. Yet in our increasingly fragmented, alienating and high-stress world, a high-quality life is difficult for many a young American to achieve. Recognizing that he is on a dead-end trajectory and that his class aspirations will not be realized produces profound disappointment, personal shame and – ultimately - despair. To reduce cognitive dissonance, he needs someone to blame.

4. Projection

By the time he explodes, the spree killer has amassed an enormous reservoir of bitterness. He feels unfairly victimized. Through a scarcity lens, he perceives less deserving people as stealing away his opportunities and robbing him of his right to happiness. Those perceived as undeserving typically include lower-status or socially stigmatized groups such as people of color, women, sexual minorities or immigrants. This is the politics of resentment that Trump has milked so effectively.

Also feeding into the potent fury of many mass murderers are childhood histories of being bullied and socially rejected. In Rampage: The Social Roots of School Shootings, Katherine Newman and colleagues chronicle the tormented lives of infamous school shooters. Many were incessantly harassed, with antigay epithets a common refrain. In high school, Seung-Hui Cho (Virginia Tech) was relentlessly bullied over his social awkwardness, speech impediment and immigrant background. Dylann Roof was described as a “bug-eyed boy” with a bowl haircut who struggled academically; we can only guess at his social travails.

5. Masculinity

Spree killings are exceedingly rare (making them impossible to predict). Not every alienated, bitter loner picks up an assault rifle. But those who do are invariably male. Women are more likely to blame themselves for their misery. As journalist Jamie Bartlett reveals in The Dark Net, hundreds of thousands of young women ages 13-25 flock to the myriad “pro-cutting” and “pro-ana” (anorexia) Internet sites that have sprung up in response to demand from alienated young women.

In contrast to this turning inward, many young men regard violence against others as a way to gain status and respect. Our cultural glorification of male violence is evidenced by the enormous popularity of first-person shooter and warfare games. It is evidenced by the lack of meaningful protest over our government’s modeling of killing as a solution to problems: U.S. military drone strikes in the Middle East have ended the lives of many hundreds of civilians, with little fanfare. After all, we are the good guys, protecting the world against evil. As boys grow up, writes masculinity scholar Michael Kimmel, “they learn that they are entitled to feel like a real man, and that they have the right to annihilate anyone who challenges that sense of entitlement.”

Mass shootings are a quintessentially American theatrical production, the ultimate display of alienated hypermasculinity inside the world's leading imperial power. The production is carefully planned and staged, often accompanied by websites, online manifestos and photos that will help it propagate and endure in the cultural imagination. Embittered young men seize upon the restorative potential of violence, which enables them to extract vengeance for a litany of wrongs both real and imagined. Even more powerfully, violence offers the lure of immortality: Rack up enough dead bodies, and you become infamous. You are no longer a nobody; you are a warrior.

6. Ideology

To become a warrior, one needs a cause. There is no shortage of alienated young men like Roof, reared on a diet of masculine entitlement and believing that they have been treated unfairly. In another time, they might be like dying trees in a parched forest, standing alone and unnoticed until their eventual collapse. But in the age of the enchanted Internet, such men can simultaneously retreat from humanity yet plug into like-minded online communities where their diffuse rage can find a focus.

Elliot Rodger (Isla Vista) in pre-production selfie: "I am gorgeous"

Take Elliot Rodger, the Isla Vista killer. A flop with women despite his self-proclaimed “gorgeous” looks, he immersed himself in the misogynist realm of the “manosphere,” where “men’s rights” proponents and “pickup artists” rail against power-mad feminists who are denying men their natural-born right to supremacy (and sex). Such insular communities are like echo chambers, validating and amplifying warped ideologies. Within the manosphere, Rodger transformed himself from an invisible nobody -- a "beta male," in man-speak -- into a “true alpha male,” in his words, a heroic warrior standing up for oppressed “incels,” or involuntary celibates.

“Women are like a plague,” he repeats several times in an online manifesto. “The mere sight of them enjoying their happy lives was an insult to me, because I deserve it more than them…. They don’t deserve to have any rights. Their wickedness must be contained in order to prevent future generations from falling to degeneracy. Women are vicious, evil, barbaric animals, and they need to be treated as such.”

Like Rodger, Dylann Roof retreated into the Web. But instead of the manosphere, his search for meaning led him to the white supremacist channel. Specifically, the Council of Conservative Citizens, aka the “uptown Klan,” which devotes a lot of energy to disseminating propaganda about the menace of black-on-white crime. The atomization of culture into discreet identities has left many white men feeling abandoned and scapegoated, and racist ideology is quick to fill this vacuum. Roof eagerly soaked up the ideology of a white race under siege; like Rodger, he also grew frustrated with the preponderance of rhetoric over action. “[S]omeone has to have the bravery to take it to the real world, and I guess that has to be me,” he wrote. “I have no choice.”

Reducing the world to a stark black and white furthers the killer's self-image as a heroic warrior battling the forces of evil. In Terrorist’s Creed: Fanatical Violence and the Human Need for Meaning, fascism scholar Roger Griffin calls this “heroic doubling”: fanatics deploy violence as a call to arms to defend an idealized in-group against perceived threat by a demonized Other. Ideologically motivated killers like Roof, Rodger or the Norwegian mass murderer Anders Breivik may act alone in the moment, but they see themselves as soldiers in a larger movement. The growing popularity of online manifestos – Roof had one, too, although at four pages it paled in comparison to Rodger’s 141-page tome – attests to the narcissistic fervor with which spree killers cling to their adopted ideologies as rationale for bloodshed.

What makes the ascendancy of extremist rhetoric so dangerous is this capacity to activate the alienated loner. A direct cause-and-effect relationship is readily observable: Donald Trump spews anti-Muslim vitriol, and in short order attacks on U.S. Muslims spike. Public figures can produce random lone-wolf violence via repeatedly demonizing an out-group, while maintaining plausible disavowal of responsibility. This practice -- most well-known for its contribution to abortion clinic bombings -- has a scholarly term, "stochastic terrorism.” In Roof's case, the Council of Conservative Citizens whose ideology Roof parroted in his manifesto was quick to issue a statement deploring the massacre, even while defending Roof's racist belief system as correct.

7. Contagion

In late-18th century Germany, groups of young men could be seen strolling about in identical outfits of blue tailcoats, yellow trousers and high boots. They were imitating Werther, the romantic hero of the sensational novel The Sorrows of Young Werther, in which the idealistic protagonist kills himself over unrequited love. Blamed for a rash of copycat suicides among the impressionable and mentally ill, the novel was banned in Italy and Denmark.

This so-called Werther Fever is an early example of what we now refer to as a cultural meme – an idea, fashion or behavior transmitted like a virus from person to person, often via mass media, that takes on a life of its own as it propagates.

Seung-Hui Cho (Virginia Tech) poses in pre-production selfie

Spree killings seem to have morphed into just such a cultural meme. Especially with the spread of social media, they often go viral, tempting the next angry and alienated man with the tantalizing promise of infamy and immortality – especially if the body count is high enough.

In truth, however, this immortality is illusory, as the very ubiquity of the mass shooter meme is numbing the public; one killer’s fame lasts only for the brief interval until another pushes him aside. Dylann Roof will have his moment in the spotlight this week, and then it will be on to the next case.

Instead of just dissecting each individual act in this never-ending drama (and emphasizing singular elements such as untreated mental illness, gun accessibility, social media, violent video games, bad parenting, law enforcement failures of prediction, and the like), we might do well to regard young men like Roof as canaries in the coal mine. It is only when the air in the mine is poisonous that the canary will die.

In the award-winning TV show Mr. Robot, there are these ninja assassins who, when cornered, put a bullet in their own brain. A computer-crimes detective refers to this as “erasing their histories.” In orchestrating a dramatic last stand, mass shooters like Roof are doing precisely this, erasing their heretofore empty and meaningless lives and replacing them with a meme.

Related blog posts:

• Newtown, CT: Latest massacre brings more hand-wringing (Dec. 18, 2012) 
• Aurora massacre: To speak or not to speak? (July 22, 2012) 
• Arizona rampage: Analyzing the analyzers (Jan. 23, 2011) 
• Systems failure or black swan? New frame needed to stop memorial crime control frenzy (Oct. 19, 2010) 
• Virginia Tech: Can school shootings be prevented? (April 19, 2007) 

Dylann Roof's full manifesto is HERE; Elliot Rodger's is HERE.

What’s Wrong With “Making A Murderer”?

Making A Murderer is generating huge buzz on social media; dual petitions calling for Steven Avery’s exoneration have garnered more than 600,000 signatures to date. But after slogging through the 10-hour Netflix “documentary,” I was left feeling disturbed by the drama’s narrative and premises. Here's why:

1. The narrative is grossly misleading.

The hook to this story is protagonist Steven Avery’s prior exoneration: He served 18 years in prison for a rape of which he was ultimately exonerated by DNA evidence; just three years after his release, he was arrested for the unrelated murder and mutilation of another young woman in rural Manitowoc County, Wisconsin.

It’s an intriguing hook. But others – including the superb podcasters at Radiolab in 2013 – had already mined it. So filmmakers Moira Demos and Laura Ricciardi went for a different twist: Avery was innocent, framed by corrupt police whose reputations were tarnished by the wrongful conviction scandal.

Viewers are treated to interminable audio clips of the convicted killer proclaiming his innocence and whining about the injustice of it all. With its sympathetic focus on Avery and his socially marginal family, the documentary excludes much of the hard evidence pointing to Avery.

Perhaps the most blatant example of misinformation is the portrayal of Avery and his victim as strangers. In fact, the evidence presented at trial suggested that Avery not only knew Teresa Halbach, a photographer for Auto Trader magazine, but was targeting her. After a photo assignment at his family's auto salvage yard in which he greeted her wearing only a towel, she complained to her bosses that she was “creeped out” by him. Yet he continued to call and ask for her to be sent back out. Phone records revealed that on the day of her murder, he repeatedly called her cell phone, using *67 to block his ID. Not only was her cremated body found in his burn pit just a few steps from his trailer, but two separate witnesses testified they had seen Avery putting items into a barrel of his from which police later recovered her incinerated cell phone and camera. Avery's nephew also told police he had helped Avery hide the victim's vehicle in the salvage yard, and DNA evidence of Avery's sweat under the hood corroborated his account.

This brief list is not exhaustive; there's lots more inculpatory evidence that the series omits or glosses over.

2. It lionizes a sexual predator.

There are plenty of sympathetic characters in prison. A great many of them are unquestionably guilty. Steven Avery – innocent or guilty – is not one of them. He comes across as shallow, callous and self-absorbed, fitting the part of a cold and calculating predator.

Prisoners who served time with him during his first bid confirmed that he was not a nice guy. They told investigators that he showed them diagrams of a torture chamber he planned to build when he was released, so that he could "torture and rape and murder young women.”

There is further evidence of tremendous rage toward women. While in prison, he threatened to mutilate and kill his former wife. And despite his exoneration in the original rape for which he was convicted, prosecutors presented evidence in a pretrial affidavit of two other rapes of girls and women for which he was never prosecuted. There are also allegations that he sexually molested child relatives, including his codefendant and nephew, Brendan Dassey.

Perhaps most ominously, just three weeks before Halbach’s murder, he bought a set of leg irons and handcuffs, suggesting that the crime was premeditated and elaborately planned.

It is only if we know this background information -- excluded from the Netflix series -- that we can make proper sense of the trial judge’s admonition to Avery at his sentencing hearing:

“You are probably the most dangerous individual ever to set foot in this courtroom.”

3. Journalistic bias of this magnitude is unethical.

Filmmakers Laura Ricciardi and Moira Demos

In several drawn-out scenes, the filmmakers depict the TV news crews covering the trial as bottom-feeding hyenas, lacking any compassion or mercy as they circle and nip at the heels of the beleaguered Avery clan.

This is a clever cinematic device. It imparts the illusion that the documentarians are above the fray, more neutral and trustworthy than the media rabble. 

In reality, they are no less superficial. We get no greater clarity, and certainly no deeper analysis. The difference is merely one of perspective. Lengthy scenes in the Avery kitchen, watching Steven's mother Dolores prepare and eat her lunch, emphasize the one-sidedness of the series: Demos and Ricciardi are essentially mouthpieces for Steven Avery.

It’s not that police do not lie, or plant evidence. They do it all the time. So it's certainly possible that police planted the victim's car key in Avery’s bedroom, as the Averys claim. But framing Avery would have required much more. Police would have had to know the location of Halbach's body in order to move it to Avery's burn pit. They would have had to plant Avery's sweat under the hood of Halbach's car, where his nephew's account predicted it would be. All told, this convoluted conspiracy theory stretches credulity.

Ironically, while the filmmakers castigate police for going after Avery’s nephew (instead, they cast unsupported aspersions on the victim's male friends and relatives), Avery and his defense team had no such compunctions. Their alternate suspect list included the boy, along with other male members of the Avery clan.

Some observers, such as journalist and private investigator Ann Brocklehurst, imply that business interests may have contributed to this over-solicitude toward the Averys:

“Ma and Pa Avery are portrayed lovingly as salt-of-the-earth types. They’re never asked how they managed to raise three sons with such a long and documented history of violence.... [I]f the filmmakers had decided one of the brothers, nephews or brother-in-law likely did it, Ma and Pa might have pulled right out of the multi-year film project and left the directors empty-handed. A Shakespearian or Faulkneresque tale of a dysfunctional and dangerous family is of no use to anyone if you don’t have the legal rights to tell it.”

Journalists’ code of ethics warns reporters not to distort either facts or context, and to take special care to avoid misrepresentation or oversimplification. Intentionally or not, Demos and Ricciardi clearly violated this standard.

4. “Innocence porn” exceptionalizes criminal justice problems.

The trope of the wrongfully convicted is a time-honored sub-genre of true crime. New Yorker writer Kathryn Shultz traces it back to the late 1880s, with a popular magazine column called “The Court of Last Resort” by criminal defense lawyer turned author Erle Stanley Gardner, better known for his Perry Mason detective series. As Shultz notes, recent films and TV series in this genre have been quite successful in getting criminal cases reopened and convictions overturned: 

“Although it subsequently faded from memory, 'The Court of Last Resort' stands as the progenitor of one of today’s most popular true-crime subgenres, in which reporters, dissatisfied with the outcome of a criminal case, conduct their own extrajudicial investigations. Until recently, the standout representatives of this form were 'The Thin Blue Line,' a 1988 Errol Morris documentary about Randall Dale Adams, who was sentenced to death for the 1976 murder of a police officer; 'Paradise Lost,' a series of documentaries by Joe Berlinger and Bruce Sinofsky about three teen-agers found guilty of murdering three second-grade boys in West Memphis in 1993; and 'The Staircase,' a television miniseries by Jean-Xavier de Lestrade about the novelist Michael Peterson, found guilty of murdering his wife in 2001. Peterson has been granted a new trial. Randall Dale Adams was exonerated a year after 'The Thin Blue Line' was released. Shortly before the final 'Paradise Lost' documentary was completed, in 2011, all three of its subjects were freed from prison on the basis of DNA evidence.”

Last year’s NPR  podcast series, Serial, probing the case of a young man named Adnan Syed who had been convicted of killing his former high school girlfriend, became an overnight sensation. (And, guess what: A judge has just granted a motion for a new post-conviction review of the evidence in that case.) What with the popular success of Making A Murderer, more such cultural events can be anticipated.

But while documentaries like Serial or Making A Murderer may seem progressive in shining a spotlight on the legal system and exposing flaws therein, they may actually further a narrative of exceptionalism. In other words, miscarriages of justice are rare events caused not by systemic problems, but by ___ (fill in the blank: corrupt police, shyster attorneys, bungled evidence handling or analysis, etc.).

And only the innocents -- the exceptions to the rule -- are worthy of attention. 

5. The nephew got second billing.

Instead of hanging their tale on the threadbare hook of Avery’s prior exoneration, the filmmakers could have delved more deeply into the routine misfiring of the legal system by centralizing Avery’s nephew and codefendant, 16-year-old Brendan Dassey.

Brendan Dassey, the 16-year-old nephew

Like his uncle, Dassey may very well be guilty. But in his case, neither innocence nor deliberate corruption is essential to the narrative. Guilty or innocent, framed or not, the manner of his prosecution was rotten to the core, illustrating more common and systemic flaws in the criminal justice system.

“Innocent people don’t confess,” prosecutor Ken Kratz told the jury.

That false gospel went unchallenged because – for reasons never explained in the series – the juvenile’s defense team chose not to call a confession expert, who could have dissected Massey’s statements and explained to the jury how the detectives’ skillful manipulations produced a potentially unreliable confession.

This was a boy with a low IQ and limited education, who was interviewed by detectives on multiple occasions, for hours and hours on end, without either his mother or his attorney present. He was easily confused and misled into believing that if he confessed, all would be forgiven and he would go home. His statements were contaminated when police fed him facts, which he then regurgitated. 

Private investigator Michael O'Kelly

Dassey also had the misfortune to be initially represented by an unethical attorney who decided early on that Dassey was guilty, ignoring the boy’s protestations to the contrary. The attorney, Len Kachinsky, in turn hired a private investigator with highly confused loyalties. Indeed, the PI wrote a eugenics-laced email to the defense attorney revealing his unabashed antipathy toward his client's family:

“This [family] is truly where the devil resides in comfort. I can find no good in any member. These people are pure evil.... We need to end the gene pool here.”

Together, the loyalty-challenged attorney and investigator brow-beat a detailed confession from their client, which they promptly turned over to police. Although both the attorney and his investigator were removed from the case before trial, neither suffered any official sanction for their betrayal of their duties, or the damage caused to Dassey's case.

6. The entertainment spectacle has produced a destructive backlash.

In perhaps the most poignant moment in the series, defense attorney Dean Strang -- the show’s moral compass -- critiques the “unwarranted certitude” rampant within the criminal justice system, with everyone from police and prosecutors to defense lawyers, judges and jurors far too convinced that they are privy to The Truth.

Across the board, he mourned, the system suffers from “a tragic lack of humility.”

Steven Avery with rape victim Penny Beerntsen

Unfortunately, the filmmakers fell into that very same trap. It was apparent to many that they had naively embarked on their 10-year project wearing blinders. Penny Beerntsen, the original rape victim (whose misidentification sent Avery to prison), was one such observer. A remarkable woman who is active in the innocence movement, Beerntsen told the New Yorker that the filmmakers’ certitude troubled her:

“It was very clear from the outset that they believed Steve was innocent,” she told me. “I didn’t feel they were journalists seeking the truth. I felt like they had a foregone conclusion and were looking for a forum in which to express it.”

It is no surprise that Avery and his family have staunchly denied his guilt: He was framed once, so why not twice? After all, they point out, the $36 million judgment he was seeking for his false imprisonment could have bankrupted Manitowoc County. But for the filmmakers to fall so under the Averys’ spell that they would radically distort the facts is disconcerting. Their bias was transparent, and the excluded evidence easily available. It seems arrogant to regard the public as too gullible to do any basic fact-checking.

Predictably, a furious backlash has ensued, with social media pundits and entertainment outlets competing to debunk the series. Rather than systemic flaws in the system, the discourse has devolved into a pointless, dichotomous debate over guilt or innocence.

Worst of all from the interests of the innocence movement, some are asking the question: If Steven Avery had never been exonerated, would Teresa Halbach be alive today?

The innocence movement can counter with the fact that Avery is an extreme outlier: Of all the many hundreds of people who have been exonerated and freed from prison, only a tiny handful have reoffended with a serious offense.

But Avery is an outlier for another reason as well: He may not have raped Penny Beerntsen, but he was far from innocent even back then. Police in his rural community already had him on their radar screen, as a dangerous young man, someone who thought nothing of assaulting a female relative with a gun or dousing a cat with oil and throwing it on a bonfire to watch it burn.

The filmmakers insist that it was never their intent to manipulate their audience, nor to propel such a mass rush to judgment – in either direction. In hindsight, however, perhaps the grisly murder of Teresa Halbach was not the best choice for a documentary about innocence?

-------------------

 POSTSCRIPTS

On Aug. 12, 2016, U.S. District Court Judge William Duffin granted Brendan Dassey's petition for a writ of habeas corpus, based on the false promises that were made to him (in conjunction with other relevant factors, including his age, intellectual deficits, and the absence of a supportive adult), and ordered that he either be released or granted a new trial. The 91-page ruling is HERE. 

On June 22 2017, a three-judge panel of the 7th Circuit Court of Appeals upheld the District Court's decision. Its 128-page ruling is HERE. As of that date, Dassey remained in custody while prosecutors decided whether to appeal to the Supreme Court. New York Times reporting on that appellate ruling is HERE.

On Dec. 8, 2017, by a narrow vote of 4-3, the full 7th Circuit Court of Appeals reversed the decision of its three-judge panel. Citing the need for appellate courts to be deferential of trial courts, it held that the original trial court decision upholding Dassey's conviction was not patently erroneous or unreasonable. In a strongly worded dissent, Justice Ilana Rovner called the decision "a profound miscarriage of justice" that condoned the use of psychologically coercive techniques and condemned "an impaired teenager" to spend his life in prison. The majority decision and two dissenting opinions are HERE. They are highly recommended reading as they illuminate the current state of tension surrounding psychologically coerced confessions and especially the controversial Reid interrogation method.  

In June of 2018, the U.S. Supreme Court declined to hear Dassey's appeal, meaning Dassey will continue to serve his life sentence.

And in July of 2018, Dassey's ethically challenged attorney Len Kachinsky, who later became a judge, was charged with stalking his former court clerk. He has been suspended from practice, and faces up to five years in prison if convicted. The allegations against him are creepy enough that they might make for a good true-crime show in their own right.

Surprise reversal in "killing and culpability" self-defense case

Judge slams defense lawyer as inept, dishonest 

Four years ago, I presented a reader participation exercise, "On Killing and Culpability," featuring the case of a young working-class man who stabbed a drunken Berkeley fraternity man to death during a street brawl. Even though 20-year-old Andrew Hoeft-Edenfield only pulled out a knife after he was surrounded by a large and hostile crowd that was closing in on him, jurors rejected his self-defense claim and found him guilty of second-degree murder. In a case that later garnered national attention as part of the debate over what constitutes self defense, he was sentenced to 16 years in prison. 

Yesterday, a judge pulled no punches in overturning the conviction, which he described as a product of the defense attorney's incompetence and deceit. The ruling came in response to a state Supreme Court mandate that the case be reviewed for possible attorney misconduct.

It turns out that there was a lot more going on behind the scenes of the legal case than the public was privy to at the time.

Attorney Yolanda Huang demonstrated a "breathtaking level of disingenuousness, evasiveness and apparent dishonesty," wrote Alameda County Superior Court Judge Larry Goodman in his scathing opinion; her lack of qualifications coupled with her "unexplainable arrogance" created "a complex web of deception, misrepresentation, disloyalty, and self-interest."

Huang's son and the defendant were close friends, and Huang accepted the case pro bono. Her ultimate goal, Judge Goodman noted, was to sue the UC Berkeley fraternity system, which she believed was arrogantly undermining the safety and security of Berkeley residents.

She'll get no argument from me on that score. As revealed in a powerful Atlantic expose, tragedies such as this are endemic to the Greek system, which typically escapes culpability for the results of the drunken debauchery that many fraternities promote.

The problem was that her "apparent obsession" with the fraternity system created a profound conflict of interest: If Hoeft-Edenfield admitted culpability by accepting a plea bargain, her chances of a successful lawsuit would be greatly diminished.

Thus, as the judge meticulously delineated in his 56-page opinion, she rejected all efforts to strike a deal, despite her client's wishes to do so and despite a reasonable offer from the prosecution of a 12-year sentence in exchange for a guilty plea to manslaughter.

Her missteps were not for lack of good advice.

In remarkable testimony at a four-day evidentiary hearing last month, two defense attorneys and a prominent jury consultant testified that at a strategy session convened by Huang, they correctly forecasted that her client would be convicted if he did not take the witness stand to explain his actions on that fateful night. When Huang responded that Hoeft-Edenfield, a special education student, was too unintelligent and easily led to testify, prominent defense attorney M. Gerald Schwartzbach advised her to settle the case. Also present at that meeting were experienced homicide attorney Rebecca Young of the San Francisco Public Defender's Office and a senior litigation consultant, Lois Haney.

Judge Larry Goodman

Instead of following the sage advice of these experienced professionals, Huang -- who had never handled a murder case -- barreled ahead to trial, so confident of Hoeft-Edenfield's vindication that she failed to warn her client of the risks. Instead, "she continued to mislead [him] into thinking that the worst possible consequence of going to trial is that he would get a voluntary manslaughter conviction," even going so far as to send his parents to the jail to talk him into proceeding to trial. 

I've made the opinion available online (HERE). By way of full disclosure, I've known Judge Goodman from way back in my days as a newspaper reporter and have always found him to be a straight shooter.

The Alameda County District Attorney's Office now has 30 days to decide whether to offer Hoeft-Edenfield its original 12-year plea deal; otherwise, the case could proceed to a retrial for second-degree murder. (The jury acquitted the defendant of first-degree murder.) Meanwhile, the State Bar of California will review Judge Goodman's findings to determine whether Huang should face discipline.

* * * * *

Thanks to Henry Lee of the San Francisco Chronicle for breaking the news. My prior reports on the case include:

• Killing and culpability: A reader participation exercise (April 14, 2010) 
• Race, class, and self defense: Berkeley fraternity case spotlighted (July 21, 2010) 
• "Killing and culpability" sentences handed down (June 16, 2010)

(c) Copyright Karen Franklin 2014 - All rights reserved

Documentary explores town's polarization over transgender murder

Forensic psychologist key element in gay panic defense

For 20 minutes, Brandon McInerney sat patiently behind Larry King in their junior high school computer classroom. Then, the budding white supremacist pulled out a handgun and shot his transgender classmate twice in the back of the head. Larry died two days later, on Valentine's Day.

The 2008 murder polarized the community of Oxnard, California. The chasm widened during the highly publicized trial three years later, when a pair of private defense attorneys managed to turn the homicide into a reverse civil rights case for beleaguered heterosexuals and white people. With the help of a forensic psychologist, they were able to convince seven out of 12 jurors that Larry King had provoked his own death through his gender transgression. After the mistrial, several jurors became outspoken advocates for Brandon, wearing "Save Brandon" bracelets and raising money for his retrial.

Director Marta Cunningham

"He [Brandon] was solving a problem," explained juror Diane Michaels, an OR nurse. “Where are the civil rights of the one being taunted by another person who’s cross-dressing? He had no one he could turn to because the school was so pro-Larry King’s civil rights, but where was Brandon’s civil rights?"

"It was the high heels, the makeup, the behavior," agreed Karen McElhaney, a fellow juror and a surgical nurse, as the jurors bonded over wine and hors d'oeuvres at one of their homes.

Through such candid interviews with family members, teachers, students (including two eyewitnesses), attorneys and jurors, first-time film director Marta Cunningham explores the conflicting ideologies regarding both gender diversity and social tolerance that Larry King’s murder graphically exposed. Cunningham spent four years and collected 350 hours of footage for Valentine Road (the name of the street on which Larry is buried), a Sundance award-winner debuting on HBO. She hopes that schools will use the film as an educational tool to promote tolerance. 

Forensic psychologist blames the victim

This blog's readers will be especially interested in the role of the forensic psychologist, who helped sell the victim-blaming theme at trial. The testimony of Donald Hoagland gave the jurors an "expert" imprimatur on which to hang their hat.

 ABC News trial coverage featuring voice of 

forensic psychologist Donald Hoagland as he testifies

"What Larry was doing was an extreme form of bullying, an extreme form of sexual harassment," Donald Hoagland told the filmmaker. "Guys don’t hit on guys. Brandon was thinking he needed to get rid of Larry. He needed to save everyone from this scourge that had come upon this school."

At the trial, Hoagland testified that the cross-dressing victim's flirtation threw 14-year-old Brandon into a fit of homicidal rage. He testified that King's declaration that he was changing his name to Leticia triggered a dissociative state in which Brandon temporarily lost track of reality, according to the Ventura County Star.

The fatal flaw with that gay panic theory of the crime is that McInerney made advance plans to kill King. He announced his plan to several people the day beforehand, according to testimony during the eight-week trial, and also acquired and loaded the gun and brought it with him to school. He shot King twice in the back of the head during a first-period class.

Jurors who voted against a murder conviction said that Larry King's request to be called by a girl's name gave Brandon a "green light" to execute him. One juror even wrote to the judge after the trial to protest the "witch hunt" against the killer, citing the victim’s "long history of deviant behavior."

"They made a murder victim the cause of his own murder," marvels Detective Dan Swanson, a hate crime expert who testified at the trial.

Prosecutor Maeve Fox, who ultimately agreed to a plea deal of 21 years for Brandon, said the case exposed the deep layer of intolerance in society, an intolerance that is even carried into the jury box.

Unfortunately, the documentary gives short shrift to another central factor in community support for Brandon. A decision by the prosecutor's office to try the 14-year-old suspect as an adult led to widespread public opposition. Brandon faced 51 years to life in prison if convicted in adult court. A coalition of dozens of gay and lesbian groups even joined the chorus of pleas to try the boy as a juvenile.

Cunningham's direction is understated. Rather than hitting the viewer over the head with a message or point of view, she allows the characters to speak for themselves, interspersing their dialogue with artful sketches, news footage and school surveillance video. The resulting nuanced tale forces audience members to think for themselves about the moral implications of the tragedy.

Ultimately, Valentine Road is a sad and haunting story about two lost boys struggling for identity in a violent world. For the two boys were alike in many ways, both of them abused, neglected and lacking competent adult mentorship as they navigated the perilous journey to adulthood. Larry had been bullied since the third grade for his effeminacy; Brandon was dependent on a bullying father who physically abused him, while his methamphetamine-abusing mother was homeless. 

Yet for all its pathos the film also shines a ray of hope. Even as the defense team vigorously promoted a victim-blaming narrative, youths from the local community came together to honor Larry King and to use his death to promote a message of tolerance. One can only hope that the film will be shown far and wide, and will contribute to that worthy endeavor.

VALENTINE ROAD WILL AIR OCTOBER 24 ON HBO. IT IS ALSO AVAILABLE ON DEMAND. CLICK HERE FOR THE FULL SCHEDULE.

RELATED STORY: "The Hidden War Against Gay Teens," Alex Morris, Rolling Stone, Oct. 10, 2013

* * * * *

My prior coverage of the case: 

• What caused middle school tragedy? 14-year-old Brandon McInerney to be arraigned Thursday (June 10, 2008) 
• More on the McInerney antigay murder case: Defense may use emerging science of adolescent brain development (June 11, 2008)  
• Gay panic defense: Slain boy accused of provocation (Aug. 10, 2011) 
• Jury deadlocks in gay panic trial (Sept. 2, 2011)  
• Gay panic defendant gets 21 years (Nov. 23, 2011) 

Hat tip: John Lewis

"The best predictor of future behavior is …

… past behavior."


Past as prelude. So neat, so clean. So full of certitude. Like a fortune cookie Confucianism. Something you might hear on CSI: Special Victims Unit. A maxim cited by pop psychologist "Dr. Phil" McGraw, in one of his many self-help books.

I'm sure you have heard the mantra. It's creeping into risk assessment reports and court testimony by forensic psychologists. Sometimes, it's augmented with incendiary metaphors: The subject is "a ticking time bomb"; he is "carrying a hand grenade and it's just a matter of when he pulls the pin."

One current case of mine involves a guy with a cluster of several violent offenses a few years ago, when he was in his 20s. He was using drugs back then, and hanging around with a bad crowd. Plus, he is chronically psychotic. Not a good combination.

But if you predict future violence based on a set of risk factors like his, you will be wrong more often than not. Only about four out of ten of those individuals judged to be at moderate to high risk of future violence go on to reoffend violently, according to research. The low base rates of violent recidivism will be working against you.

Birth of a legend

So where does this idea that "the best predictor of future behavior is past behavior" come from, and does it hold any water?

Perusing psychology texts, it appears that the principle has circulated for decades. But as it gained traction, some boiled it down into a simpler, one-size-fits-all mantra. So, for example, the 2003 Complete Idiot's Guide to Psychology claims as an established "psychological fact of life" that, "when it comes to human beings, the best predictor of future behavior is past behavior." Period. End of story.

But this is a gross oversimplification. Psychological scientists who study human behavior agree that past behavior is a useful marker for future behavior. But only under certain specific conditions:

1. High-frequency, habitual behaviors are more predictive than infrequent behaviors.
2. Predictions work best over short time intervals.
3. The anticipated situation must be essentially the same as the past situation that activated the behavior.
4. The behavior must not have been extinguished by corrective or negative feedback. 
5. The person must remain essentially unchanged.
6. The person must be fairly consistent in his or her behaviors.

Here, by way of illustration, is a typical study of the phenomenon, involving college students' class attendance habits:

In a semester-long course, researcher Icek Ajzen found that a student's attendance rate for the first eight sessions correlated 0.46 with his or her attendance rate for the second eight sessions. As you can see, all the conditions are in place: Class attendance is a habitual and routinized behavior, the prediction span is very short, and there is little likelihood of meaningful changes in either the situation or the person. Yet still, the correlation is far from perfect.

Other examples from the classic studies: Frequency of exercise during a given time period is a pretty good indicator of exercise habits in the near future. Ditto for cigarette smoking and drug use.

But over longer time periods, even high frequency, habitual behaviors may undergo dramatic change. A smoker or heavy drinker might successfully quit the habit. A chronic thief might land a decent job, start a family and settle down.

As this last example suggests, researchers have also determined that the situation plays a critical role in behavior. The situation is often more determinative than individual character traits. Personality theorist Walter Mischel - frequently cited in connection with the "best predictor" maxim - suggests that behavioral consistency is best described through if-then relationships between situations and behaviors, as in: "She does A when X, but B when Y." So, a person may engage in heavy drug use when in the company of drug-using peers, but may stop using when she gets a fulfilling job and moves to the suburbs, or when she is staying with her strict grandmother.

Forensic psychologists jump aboard

It’s one thing to find a simplistic maxim where one would expect to - in an "Idiot’s Guide" or on Dr. Phil. But it is troubling to see it incorporated in forensic contexts, where the stakes are much higher.

Confusion creeps in when a risk marker is mistaken for an inevitability. It is true that people with a history of violence have a higher likelihood of committing violence in the future than do people who habitually turn the other cheek. Risk is especially acute for those with very extensive histories of violence across a range of situations. But this does not mean that everyone who has committed past acts of violence will continue to aggress forever (any more than someone with no prior violence is guaranteed to remain peaceable forever).

It's like claiming to know that because your teenage neighbor had a fender bender (or two) when he was first learning to drive, he will definitely crash his car again. He is probably at a higher risk of another collision than is his middle-aged mother, with her clean driving record. But he may or may not crash again. There are many intervening variables - whether he learned from his mistakes, the frequency and locations and times of day of his future driving, his choice of companions, the actions of other drivers on the road, the weather conditions, and so on.

The maxim also conflates all types of violence, and all types of offenders. For example, with detected recidivism among sex offenders falling somewhere between a low of about 3 percent and a high of no more than 15 percent, it's pretty hard to argue past as prelude. And if we apply the mantra to murderers, as did "Dr. Death" in Texas, we will be even further off the mark. In California over the past two decades, about 1,000 people have been paroled from prison after serving time for first- or second-degree murder. Their recidivism rate for murder?

Precisely zero, according to Nancy Mullane's Life After Murder.

The best-predictor axiom ignores such base rates, which are essential to accurate prediction. If we know the base rate of the criminal behavior we are trying to predict - whether murder or sex offending or general violence - and we know the frequency with which a person has engaged in that behavior, we can use a mathematical formula called Bayes's theorem to calculate a rough likelihood of the behavior's reoccurrence. (I recommend Nate Silver's The Signal and the Noise for great examples of the applications of this theory across a range of contexts, from poker to climatology.)

The maxim also snubs its nose at the age-crime curve, perhaps the most universal finding of a century of criminology research. As they reach their mid-30s or so, criminal offenders begin to slow down. Some mature naturally, some go through successful mentorship or treatment programs, some settle down and have families, some form mellower friendships, some simply burn out. Whatever the reasons, as research by Shadd Maruna and Sampson and Laub drives home, desistance is a virtual inevitability for all but the most die-hard minority of offenders.

This is not to say that the maxim is entirely useless. It may work fairly well under certain limited circumstances, if all of the following hold true:

1. We are predicting over a relatively short time frame.
2. The individual has a high frequency of violence.
3. The violence occurs in a variety of situations.
4. The person is faced with the same or similar situations.
5. He or she has not been deterred by negative feedback.
6. He or she has not changed in any other significant way.

But given lengthier time frames of prediction, our subject and his circumstances both undergo inevitable and often unpredictable changes, and we lose fidelity.

A ticking time bomb fails to ignite

In the case of the report I was reading this week, the mantra was a complete bust. The guy got out of jail and did great. He voluntarily sought treatment and cooperated with all terms of his supervision. By the time I saw him, he was leading a life as peaceable as a newborn lamb's. In his spare time, he even volunteered to help the needy at his local church.

If the evaluator had heeded the literature on criminal desistance, she might have seen this coming. The fellow had reached the age at which desistance becomes more the rule than the exception. He no longer associated with his old criminal peers. Perhaps most importantly, he had stopped using the drugs that had exacerbated his psychosis.

The past-as-prelude mantra fits with today's dominant, dark view of offenders as a bundle of perpetual risk factors, ticking time bombs just waiting to explode.

What it doesn't fit so well with is reality.