Killing and culpability: A reader participation exercise

A TALE OF TWO HOMICIDES

INSTRUCTIONS TO READERS: Below, I present two hypothetical scenarios. After reading both, please stop. Do not read further. Consider which killer you think is more culpable. By way of background, assume that both killers are young, white, and employed, with little or no arrest histories. Assume that both victims were also white, upstanding citizens, well regarded in their communities.

Case 1: Street Brawl

The killer, age 20, was walking with a friend after leaving a party when a group of about six drunken strangers surrounded the pair. Insults and challenges were exchanged. The killer yelled at the men to back off. Instead, they continued to close in. He pulled a knife with a 3½-inch blade and waved it around. A scuffle ensued. One man was stabbed and killed.

Case 2: Avenging a Wrong

The killer, age 32, armed himself with a .44 revolver and went to the home of a former neighbor whom he had known for many years. He confronted the man over past wrongs. Words were exchanged. The killer shot the victim once in the chest. Before leaving, he waited about 30 minutes to make sure his victim was dead.

STOP. Consider: Which killer do you think is more culpable, legally and/or morally? Why? What sort of punishment do you think would be fair?

Have you formed a tentative opinion? If not, what else would you need to know before deciding? Now, I will provide a few facts about the victims. See if they are relevant to your thinking.

Case 1: Street Brawl

The victim was a member of a college fraternity that was infamous for its rowdy partying. On his MySpace page, he bragged about an earlier fight in which he and his fraternity brothers beat up a man, “grind[ing] his face into the coarse pavement of the sidewalk while several of [us] are taking turns on his ribs and dome.”

Case 2: Avenging a Wrong

The killer told police that the victim had sexually molested him from the age of 11 until his late 20s, a few years before the homicide. After the crime, other men came forward to say that the dead man had taken advantage of positions of trust to sexually molest them, too.

STOP. Do these facts alter your opinion about culpability in any way? How? Why? What degree of guilt would you infer? What do you think would be a just resolution in these cases?

Finally, let's consider community reaction. Does this change your opinions about either case?

Case 1: Street Brawl

The university town is divided. On one side are the victim’s largely well-to-do supporters, who say he was a fine young man with a good reputation who was about to graduate with honors in nuclear engineering from a prestigious university. On the other side are supporters of the working-class defendant, who say that he was just defending himself.

In a perhaps unprecedented twist, residents of the fraternity row where the crime took place have filed a class-action lawsuit against the local fraternities. Claiming that nuisance behavior has left them living under a virtual state of siege, they are seeking an injunction against the fraternities through an innovative application of a California law banning "criminal street gangs."

Case 2: Avenging a Wrong

The small town is united behind the killer. Townspeople have held rallies and affixed bumper stickers to their cars. They say he did them a service by ridding the community of a child molester. Even the victim's wife thinks punishment should be lenient.

Recognize either case yet? Of interest is the different spins they are getting. A central theme in both stories is bad moral character. But in one case it is the victim's character that is condemned, while in the other case it is the killer's.

CASE 2:

This is the case getting national and even international attention. On Feb. 8, 2009, in the small California logging town of Fort Bragg, Aaron Vargas killed 63-year-old Darrell McNeill, a former youth group leader and popular furnishings salesman. Vargas is being portrayed as a victim and his crime as understandable or even heroic. His sister is even slated to appear on Oprah Winfrey's TV show to talk about his family's "ordeal."

The facts are being spun accordingly. News account focus not on the large (.44) caliber of the gun, for example, but rather its status as an "antique Civil War replica." (Hey, it still fired.) The gap of several years between when Vargas "broke off the relationship" and when he ultimately killed the older man is largely ignored. (Where was the immediate, heat-of-the-moment provocation?)

The case resolution? A lenient plea bargain. Vargas just pleaded no contest to voluntary manslaughter. He will serve no longer than 10 years in prison, and may even get probation.

Was that what you expected, or thought fair? Why or why not?

CASE 1:

Meanwhile, 170 miles away in cosmopolitan Berkeley, Andrew Hoeft-Edenfield is on trial for first-degree murder stemming from a May 3, 2008 incident that began when the victim and a group of friends walked up to Hoeft-Edenfield and his friend and ordered them to leave fraternity row. Fueled by a deadly mixture of testosterone and alcohol, the incident "quickly escalated as Hoeft-Edenfield pulled out his knife and his friend Adam Russell began swinging an almost full bottle of Bacardi rum at the crowd," according to a news account.

While Hoeft-Edenfield claims he was defending himself from a drunken mob bent on violence when he stabbed fraternity member Christopher Wooton once in the chest, the prosecutor is trying to prejudice jurors against him by imputing his moral character.

"He has a persona, a wannabe thug or an actual thug," she told the jury in her opening statements. As visual proof, she held up his backpack with gangsta-rap-style writings such as "Thug Life," "Money, Guns, Marijuana," and "Killer Drew."

Hoeft-Edenfield's attorney countered that this depiction of her client's moral character could not be farther from the truth. Hoeft-Edenfield is "an example of what hard work can accomplish," she told the jury. A working-class young man from South Berkeley, galaxies away in social class from the elite university for which Berkeley is famous, he had overcome a learning disability, graduated from high school, gotten a job, and was attending college. The fight, she said, was "sparked by the fraternity brothers who were drunk and eager to prove they owned the street," according to a news report. "What he remembers is that he is surrounded by five or six guys, he's got guys stomping him, and all he hears is yelling."

If you were on the jury, how might you vote? Why?

In criminal responsibility evaluations, we forensic psychologists are charged with carefully dissecting an accused's state of mind at the moment of a homicide. Did he form an intent to kill? Did he know right from wrong, in that moment? Was he intoxicated? What were his motivations? These mental state inquiries are tricky enough.

Moral character is a much more elusive construct. Good and evil are never as black-and-white as partisans portray them. Yet, as these two cases illustrate, simplistic moral narratives can be constructed that either lionize or demonize a criminal defendant. These narratives then influence the decision-making of prosecutors, judges, and jurors as to the appropriate punishment, based on perceived moral blameworthiness.

It will be an interesting juxtaposition if Hoeft-Edenfield gets convicted of first-degree murder and goes to prison for a heat-of-the moment stabbing that appears to have been provoked, while a vigilante who proactively took the law into his own hands gets a light sentence for voluntary manslaughter.

If Hoeft-Edenfield is found guilty of murder, a working-class young man may want to think twice about sporting gangsta-style accessories while carrying a knife for self defense. Unless, of course, he kills a child molester. In that case, the public may applaud him.

A good yarn needs both a hero and a villain. The question is: Who gets which role?

POSTCRIPT: After a four-month trial, Hoeft-Edenfield was found guilty of second-degree murder and sentenced to 16-to-life in prison. That sentence was later overturned on appeal, and he accepted a plea bargain in which he would serve 12 years in prison with no credit for time served or good time. Meanwhile, in what the media dubbed "a crushing disappointment" to his family and supporters, Fort Bragg killer Aaron Vargas received a nine-year prison term.

Readers: I encourage you to post your reactions to this exercise in the online "comments" section of the blog.

My follow-up reports on the Hoeft-Edenfield case:

• Surprise reversal in "killing and culpability" self-defense case: Judge slams defense lawyer as inept, dishonest (May 1, 2014)
• "Killing and culpability" sentences handed down (June 16, 2010) 
• Race, class, and self defense: Berkeley fraternity case spotlighted (July 21, 2010) 

Further background on the unusual class-action lawsuit against the fraternities:

• American Lawyer: Suit Tries Gang Strategy Against Frat Boys
• Press release: "Lawsuit to curtail the culture of alcohol abuse and violence in the fraternities at UC Berkeley"

Related blog post: Vigilante justice against sex offenders (October 2007)

Photos: (1) Aaron Vargas, (2) Andrew Hoeft-Edenfield, (3) Christopher Wooton

California may expand juvenile competency law

In the landmark case of Milton Dusky, the U.S. Supreme Court held that in order to be criminally prosecuted a defendant must have a factual and rational understanding of the proceedings and a basic ability to consult with his or her attorney.

Some U.S. states have limited this due process protection to defendants who suffer from a mental illness or a developmental disability. This excludes children, who may lack rational understanding due to their natural immaturity. In the 2006 Washington state case of Swenson-Tucker, for example, an appellate court held that an 8-year-old boy was competent to stand trial despite severe deficits stemming from his age and immaturity.

In Florida, by contrast, juveniles have a statutory right to competence, and both age and developmental immaturity can be considered in deciding competence. (Florida Code, Section 985.223.)

If California Assemblyman Felipe Fuentes has his way, the Golden State will follow the Sunshine State and move into the forefront of juvenile justice trends. Assembly Bill 2212 would formalize the requirements for juvenile competency proceedings in the state, and specifically mandate consideration of developmental immaturity.

The proposed law (excerpted below) follows on the heels of a 2007 appellate case (see my blog post HERE) allowing immaturity as the basis of incompetency for an 11-year-old Sacramento boy accused of breaking into an elementary school and stealing candy bars. Two psychologists had evaluated Dante H. (2007 Cal. App. LEXIS 704) and concluded that he was not fit to stand trial.

AB 2212, as amended, Fuentes. Minors: mental competency.
The bill would require, upon declaration of a doubt as to the minor's competency, the court to order that the question of the minor's competence be determined in a hearing, as specified. The bill would require the court to appoint an expert in the field of juvenile adjudicative competency to evaluate whether the minor suffers from a mental disorder, developmental disability, or developmental immaturity and, if so, whether the condition impairs the minor's competency. The bill would require the Judicial Council to develop and adopt rules to implement these requirements. The bill would require that, if the minor is found to be incompetent by a preponderance of the evidence, all proceedings remain suspended to determine whether there is a substantial probability that the minor will attain that capacity in the foreseeable future or the court no longer retains jurisdiction. The period of time during which these proceedings would be suspended would not exceed 6 months.

A vote by the California Assembly's Public Safety Committee is scheduled for today.

Although the definition of developmental immaturity remains vague (see below text by Ivan Kruh and Thomas Grisso for an excellent discussion), most forensic psychologists who evaluate juveniles already consider their age and maturity, and this proposed law is a much-needed step toward requiring such practice.

Recommended resources:

• Evaluation of Juveniles’ Competence to Stand Trial by Ivan Kruh and Thomas Grisso (Best Practices in Forensic Mental Health Assessment series)
• Juvenile Competency Statutes: A Model for State Legislation by Kellie Johnson, Indiana Law Journal
• MacArthur Foundation's Juvenile Competence Study

Could a traffic stop land you on a sex offender registry?

"The ever-growing sex offender registry"

That's the headline on today's top story at Stateline.org, a nonpartisan online news site funded by the Pew Charitable Trusts. Reports John Gramlich:

A decade ago, when James Smith was 17, he and an accomplice forced another 17-year-old into a car with them near Green Bay, Wisconsin. The two wanted to collect drug money from a friend of the boy, and they forced him go along for the ride, making clear to him that if he didn’t, "he is going to get what is coming to him," according to the criminal complaint in the case. After the incident, Smith was convicted of a crime called "false imprisonment."

No one disputes that Smith was guilty of the crime for which he was convicted and sentenced to two years in prison. What Smith and many others watching his case found surprising was that the state of Wisconsin ordered him to register as a sex offender. Although his crime was not in any way sexual in nature, Smith's photo was posted in an online registry. He also faced restrictions in some parts of the state on how close he can live to schools, parks and other places where children commonly gather.

Last month, the highest court in Wisconsin held that Smith does, in fact, belong on the sex-offender registry. Just days earlier, the Supreme Court of Georgia came to the same conclusion in another case in which a man named Jake Rainer had been convicted on the same charge as Smith. The crime of false imprisonment, both courts found, counts as a sex offense under state law, even if nothing sexual happened.

The cases of Smith and Rainer illustrate a larger debate that is emerging in courts and legislatures around the nation: Have states gone too far in categorizing criminals as sex offenders? …

Critics argue that the court's decision implies that nearly anyone convicted of almost any crime could be added to the sex-offender registry. That’s what Ann Walsh Bradley, a Wisconsin Supreme Court justice who dissented in Smith's case, thinks. "Because traffic offenders may create a danger to the public," Bradley wrote in her dissenting opinion, "any offender found guilty of a traffic infraction could be required to register as a 'sex offender.' " …

Gramlich's provocative and fact-filled analysis continues HERE.

Credit: Stateline.org
Hat tip: Niki Delson

The curse of Kenneth Parnell

Reaching out from the grave?

In another tragic twist to the infamous case of Kenneth Parnell, the pedophile's younger kidnapping victim has died of a pulmonary embolism at the young age of 35. Timothy White, a sheriff's deputy, leaves behind a wife and two young children.

I followed this case closely when it broke in 1980, writing a critical analysis of media coverage for a journalism assignment, and in the three decades since it has remained one of the eeriest I've encountered. Now, with the sad death of "Timmy" White, who was just 5 when Parnell kidnapped him, it seems that no one escaped from Parnell's curse:

• Parnell's older victim, Steven Stayner, who lived with Parnell for seven years, died in a motorcycle crash in 1989, eight years after he escaped with little Timmy.

• Steven's brother, Cary, went on to become a serial rapist-killer of women in Yosemite National Park, crimes for which he is on San Quentin’s Death Row, awaiting eventual execution.

The wretched Parnell, meanwhile, died two years ago of natural causes. He was 76 and serving time for trying to pay his in-home caregiver in Berkeley to acquire a 4-year-old boy for him. That makes him the exception that proves the rule about sex offenders desisting in old age.

My 2008 blog post on Parnell's death is HERE, with links to more background on the case. Photo: Timmy White gets a piggyback ride from Steven Stayner at a 1980 news conference.

Hat tip: Kathleen

CCOSO offering innovative workshops in May

The California Coalition on Sex Offending has posted the details for this year's conference, taking place from May 12-14 in San Diego. Along with the usual topics one hears about at sex offender conferences, I noticed a couple of workshops on subjects that get too little attention.

Racial patterns in sex offending

Stroll through a hospital of civilly detained sex offenders and the racial patterns will jump out at you. But few in the field talk about them. Benjamin Bowser, chair of the sociology department at the California State University in Hayward, is an exception. Bowser's research on African American male sexuality is critical to a culturally nuanced understanding of sex offending. Here, in a workshop entitled "How race impacts on sex offender research, assessment and treatment," he and co-presenters Jay Adams, Ph.D. and Baltazar Villareal Jr., a therapist at Coalinga State Hospital, will discuss this topic and "offer suggestions to make treatment more meaningful and effective for minority clients." Significantly, the presenters propose that for African American and Latino men, much sex offending is NOT driven by sexually deviant paraphilias.

Vicarious traumatization and burnout

Working with child molesters can cause psychological harm. That is the conclusion of Robert Emerick, Ph.D., based on a survey of about a thousand professionals. The greater one's exposure to child molesters, the more stress a professional experiences, Emerick has concluded from professionals' scores on the "Silent Injury Questionnaire." (The anonymous questionnaire is online HERE.) At the workshop, Emerick will discuss ways to reduce the risk of these "silent injuries."

Sex Offender Management Board report

CCOSO leaders Tom Tobin and Gerry Blasingame are presenting a report on the progress of, and challenges facing, California's Sex Offender Management Board, created by the legislature in 2006 to systematize oversight of the state's sex offenders. This is an extremely timely topic, especially in the wake of the brouhaha over the Chelsea King case in San Diego.

The conference, cosponsored Alliant International University's Institute on Violence, Abuse and Trauma, will be held at the Marriott Mission Valley Hotel in San Diego; the deadline for early registration is Tax Day (April 15). Continuing Education credits are available for psychologists, attorneys, social workers, nurses, MFT's, and other licensed professionals. The complete conference brochure and registration info are online HERE.

Delusional campaign for a world without risk

Convicted sex offender Anthony Sowell seemed run-of-the-mill. He scored a low "1" on the Static-99, the popular actuarial tool designed to quantify risk for sexual recidivism. Now, he is suspected in the murders of 11 women whose remains were found at his Cleveland, Ohio home. (His publicly leaked risk evaluation is HERE.)

John Albert Gardner III, who like Oscar-winning film director Roman Polanski was convicted of molesting a 13-year-old girl, looked almost as routine. Paroling after a 5-year prison stint, he scored a "2" on the Static. Now, he stands charged with the highly publicized San Diego rape-murder of teenager Chelsea King.

While the United States crashes and burns -- jobs disappearing, home values plummeting, public school teachers begging for basic supplies like paper and pencils -- politicians are hosting emergency hearings to determine "what went wrong."

Who you gonna blame? The Static-99

The same California politicians who enthusiastically enacted a law -- the ambitiously titled Sex Offender Control and Containment Act of 2006 -- mandating the use of this scientifically flawed actuarial tool are now jumping all over prison bureaucrats for mandating its use to determine which paroling sex offenders should be most carefully monitored. Maybe they should have listened to those who have been saying all along that actuarial tools are not a panacea.

When I got a call from a news reporter exploring that angle, I found myself in the amusing position of (half-heartedly) defending the Static-99. As I tried to explain to the reporter (who then misquoted me), finding a needle in a haystack ain’t easy. At the risk of sounding perseverative: it's the statistical problem of low base rates. If only about one of every ten paroling sex offenders will reoffend sexually, picking out that one is difficult. And picking the one who will commit an exceedingly rare crime like the Chelsea King murder is virtually impossible. The hysterical masses can't seem to grasp that:

• The broad majority of men who are apprehended and prosecuted for a sex offense are never rearrested for another, and
  

• The broad majority of sex crimes are committed by men who fly below the radar because they have never been apprehended before. To catch these guys, you'd have to engage in massive over-prediction, producing an epidemic of what we call "false positives."

And that's just what the mobs are calling for. As one man in the crowd lobbying for the new "Chelsea's Law" put it, anyone who "touches a child" should automatically lose all Constitutional rights.

Be careful what you wish for. Even in a fascist police state, bad stuff will still happen. In fact, a misplaced emphasis on eliminating risk will paradoxically decrease public safety, by eliminating primary prevention programs that actually work to reduce crime. In California, prison officials told an emergency meeting of the Assembly Select Committee on Prisons and Rehabilitation Reform they would need $1 billion more each a year to return every paroled sex offender to prison on the basis of minor violations like Gardner's. That would mean taking even more pencils away from teachers in a state near bankrupted by its massive prison infrastructure.

All aboard the opportunist train

It's understandable why parents of crime victims like Chelsea King lobby for tougher laws. It's a way to deny their impotence and channel their feelings of sadness, guilt and rage.

And it's similarly easy to understand why politicians jump on the bandwagon. Powerless to fix our shattered economy and lacking the political will to tackle more complex social problems, they seize on random horrors to make themselves look good. Illusory efficacy wins votes.

And then the other opportunists jump on board. Crime Victims United used this week's hearing to lobby against early release of nonviolent prisoners. (Can you say non sequitur?)

Not to be outdone, a group of embittered forensic psychologists have jumped on the Chelsea bandwagon. Forming a secret "consortium," they have complained to the state Attorney General's Office that if they were still evaluating paroling prisoners for potential civil commitment as Sexually Violent Predators (SVP's), they would have done a better job of protecting the public. The evaluators, who are shielding their identities through an attorney, claim that the state's new contract bidding policy for SVP evaluations "results in the loss of life of untold victims" "for the sake of economic expediency." Their propaganda, aired on the incendiary Larry King Live show, conveniently omits mention of their pecuniary interest: Many of these state contractors were billing more than $1 million per year, again while school teachers begged for budget crumbs.

Cultural Myopia and moral relativism

Underlying these empty moral campaigns are a set of intertwined myths and lopsided values:

• Rare sex crimes are a significant threat to public safety. As the mob vents its impotent rage against the government and its spawn -- the mythical sexual predator -- the fact remains that the biggest killer of 15- to 24-year-olds worldwide remains motor vehicle accidents. The is followed closely by suicides, the fourth-leading killer of children over age 10 in seven developed nations.

• Only sex crimes count. Is sexual assault really all that much worse than murder, torture, or other serious crimes? Why is it treated so differently? Are legislatures assigning as much resources to combating the "pseudocommander mass murderer" or the burgeoning militia movement stoked up by its racist hatred of Obama?

• Only a certain type of sex crime counts. Many of the same angry folks who want to suspend the Constitutional rights of some accused sex criminals are busy defending others. When the Chelsea King case broke, the reaction to another breaking sex crime story was its polar opposite. Responding to news that star football quarterback Ben Roethlisberger was accused of a second rape, media pundits went wild on lying, gold-digging women who falsely accuse men of rape. In fact, some of the men who most vitriolically despise sexual predators are rapists themselves. Rape is endemic on many college campuses, with fraternity boys virtually immune from prosecution. As an excellent National Public Radio series describes, young men face few consequences for using alcohol as weapon with which to sexually assault naive young women who are then often forced to quit school. If we really want to make the world a safer place, we need to look a little closer to home. Instead of focusing on an easy bogeyman, let's put our efforts into primary prevention of rape and child molestation. And if we truly want to stop criminals from reoffending, let's not eliminate rehabilitation programs in prison!

• Science is capable of eliminating (or at least drastically reducing) risk. The search for blame has become reflexive. Whenever anything bad happens, the what-went-wrong tenor of media coverage encourages finger-pointing, public wrath, and -- ultimately -- pointless (or worse) legal tweaks by opportunist politicians. When hoodlums sneak into a zoo and taunt a tiger into attacking them, it's the zoo's fault for not building high enough fences. (Remember that 2007 case?) When a speeding truck careens over the side of a bridge, traffic engineers get blamed. "They" -- shorthand for the amorphous "government" -- can never do enough to protect their citizens from all conceivable danger.
  

It's hard to accept that random danger is a part of life. Sometimes, bad stuff just happens.