The Race To Execute A Racist

Printed January 11, 2017 in the Danbury Newstimes

Newstimes

You only die once. So why are both federal and state prosecutors separately trying to kill the 22-year-old man who, in July 2015, went on a racist rampage killing nine people in a church in Charleston? Jurors in a federal court in the southern city on Tuesday made one of the most important and difficult decisions of their lives. The decision came at the end of the penalty phase in the man’s trial (DSR) where the jury’s choice was either execution or a “life without parole” sentence.

CHARLESTON, SC - JUNE 19: Kearston Farr comforts her daughter, Taliyah Farr,5, as they stand in front of the Emanuel African Methodist Episcopal Church after a mass shooting at the church that killed nine people of June 19, 2015. A 21-year-old white gunman is suspected of killing nine people during a prayer meeting in the church, which is one of the nation's oldest black churches in Charleston. (Photo by Joe Raedle/Getty Images)

CHARLESTON, SC – JUNE 19: Kearston Farr comforts her daughter, Taliyah Farr,5,in front of the church that where nine people were murdered. (Photo by Joe Raedle/Getty Images)

 

Mass murder rampages are always horrific. This one differs from other rampages where victims are usually chosen more randomly. The victims in the 2012 Sandy Hook Elementary School rampage, for example, only had in common that they were affiliated in some way with the school, where first grade children, teachers and school administrators were all killed. In that tragedy, the shooter’s motives were never realized, and there is no requirement that it is.

The South Carolina rampager had a motive. He wanted to punish African Americans for perceived injustices he imagined they perpetrated upon whites. A grotesque feature of his murderous scheme is that he sat and prayed in the African Methodist Episcopal Church with his victims just before he killed them.

The sentencing hearing occurring now is a federal capital murder trial. Federal murder cases used to be rare. According the Death Penalty Information Center, in the nearly 30 years since 1988 only three federal defendants have been executed. Today there are 62 inmates now on federal death row, including the man convicted in the 2013 Boston marathon massacre. Federal capital murder trials were unusual because homicide in the U.S. legal system is typically a state or local crime; investigated by state or local police and prosecuted by state or local prosecutors.

Not all states allow for the death penalty, but South Carolina is one of the 31 states that does. In fact, South Carolina state officials have also indicted the man on nine murder counts and will begin a second capital murder trial just as soon as the federal trial is over.

Putting an offender on trial twice for the same offense may look like a violation of the “double jeopardy” clause of the Fifth Amendment of the U.S. Constitution, but it’s not. That’s because the U.S. and South Carolina are separate legal entities and the “dual sovereignty” doctrine allows prosecutions for the same offense by both governments. The fact that both can put DSR on trial doesn’t mean it’s a good idea. Victims will go through the traumatic experience of witnessing the trial, some testifying a second time. Trials, particularly capital trials, with a very lengthy appellate process, are a considerable expense for taxpayers to endure even once.

Some penalties can co-exist after separate federal and state trials. A prison sentence for years, fines or restitution orders can all co-exist. The most likely sentences in these two cases, though, are either life without parole, or death and both, obviously, can only be carried out once.

Why is the U.S. Justice Department pursuing DSR? In charging him, Attorney General Loretta Lynch pointed to the racial hostility nature of the massacre and the existence of federal hate and racial bias crimes as a rationale for moving forward. The explanation for duplicate capital murder trials is unsatisfactory. It’s true that charging bias and hate crimes serve a cathartic purpose for a badly traumatized African American community, and go to the heart of the offenses. How important is it for the crimes charged to expose the motivations of the mass murderer?

When the evidence is put on, the upcoming South Carolina state murder trial will expose the same motivations the federal trial did. Isn’t it enough for DSR to be only once charged with nine counts of murder, followed by one just sentence? Perhaps the Justice Department and the President are hedging their bets, not willing to take any chances of a failed state prosecution and the effect it would have on the nation.

Most rampagers are suicidal and most rampages end with the rampager taking their own life or being gunned down by police. This rampager is no different. He fully expected to be confronted by police either inside or outside the Church. His federal sentencing hearing is a spectacle. Why broadcast his bigotry a second time? If it’s death he wants, it’s likely that’s what he’ll get.

Regardless of the outcome of both trials, one thing is certain. He will only die once and no number of trials will restore the lives of his innocent victims.

Editor’s note: DSR is Dylann S. Roof. Diamond intentionally minimized the exposure given to him, following a protocol advocated by NO Notoriety, a group of murder survivors who believe infamy is one of the goals of rampage murderers.

Jim Diamond practiced criminal law in Danbury for 25 years. Today he teaches at the University Of Arizona College Of Law.

 

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When The Courtroom Lets You Down: Conviction Tossed for Man Who Bullied Tyler Clementi

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Tyler Clementi

We expect a lot from the courts, and probably far too much. They are asked to tackle complex social quagmires like race and abortion, resolve historic corporate disputes, cure addictions, mediate longstanding family battles, place children in loving homes and more. In New Jersey this week the limitations of criminal courts were again made apparent.   Criminal convictions were dismissed there by an appellate court against Dharun Ravi. Ravi is the Rutgers University student who, in 2010 videotaped his roommate, Tyler Clementi making out with another man in the college dorm room Clementi and Ravi shared. Ravi showed other students the video and Clementi tragically committed suicide by jumping to his death from the George Washington Bridge.

Ravi was arrested, tried and convicted on bias intimidation, invasion of privacy and other criminal charges. Interestingly, Ravi was not charged in court with causing Clementi’s death. In charging Ravi, Middlesex County N.J. prosecutors had noble objectives—Ravi acted terribly and clearly contributed to Clementi’s profound sadness and embarrassment to the point he could no longer bear it. Death, for him, was preferable.

Public outrage led prosecutors to do what prosecutors do: make arrests. But New Jersey prosecutors couldn’t charge Ravi with manslaughter since the state law requires evidence—proof—that the Ravi caused Clementi’s death under circumstances “manifesting extreme indifference to human life.” Legally proving Ravi caused Clementi’s death was a steep mountain to climb. Ravi was the cause of Clementi’s state of mind, no doubt. His cruel, demeaning and mean spirited actions, for which there is no conceivable justification, deserve the wrath of a modern society. But was Clementi’s reaction a foreseeable one? Courts wrestle often with the concept of what a person “should have known” when deciding whom to hold accountable for crimes or civil torts.  

Indian-born Dharun Ravi, 20, could face 10 years in prison and be deported after he's finished serving his time for charges of bias intimidation and invasion of privacy in a case that exploded into the headlines when Ravi's roommate committed suicide.

Dharon Ravi In Court

 The bias intimidation charges the Middlesex County prosecutor charged were, like many bias crimes states have enacted, tools to confront violence fueled by modern day racial or gender discrimination. These crimes, often referred to as “hate crimes” run into legal trouble when they punish hateful opinions rather than conduct (as unpopular opinions are rigorously protected by the First Amendment) or when it becomes impossible for courts to determine exactly what motivated the bad actor. The New Jersey bias intimidation law has come under recent scrutiny for the latter problem.

Middlesex County prosecutors have to decide now whether to take another appeal or re-try Ravi. The New Jersey Appellate Court was not pleased with the task of having to reverse Ravi’s convictions. In doing so, though, they acknowledged the inherent limitations of courts to resolve social woes. They said, in part: 

From a societal perspective, this case has exposed some of the latent dangers concealed by the seemingly magical powers of the internet. The implications associated with the misuse of technological advances lies beyond the court’s competency to address.

 Clementi’s parents might have had an easier time holding Ravi or the University responsible in a civil court rather than a criminal court had they chosen to file a “wrongful death” suit as civil courts have a lower standard for establishing causal connections.   To their credit the parents, instead, established a charitable foundation in their son’s name.   The Tyler Clementi Foundation will do more to combat discrimination than legislation can or can the adversarial jousting of litigation. Sometimes it’s better for lawyers to recognize the institutional limitations of the law to fix what is obviously broken.  

What I Learned On My Summer Vacation (AKA Never Bring Bananas On A Boat)

Simple lessons learned about fishing, beaches and ice cream while on vacation in Little Compton, Rhode Island: Rhode Islanders like their traditions and old habits die hard (AKA Never bring bananas on a boat). #rhody #fishingtrips, #sunandsand

Here is my blog at Pattyj.com

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Parents of Mass Shooters Say They’re Sorry: It’s The Least They Can Do

He didn’t say much, but he wasted no time. The day after Sediqque M’s son committed a brutal massacre at an Orlando nightclub, leaving an astounding 49 people dead, the father of the murderer immediately surfaced and apologized:

I am really sorry and have expressed this to the people of the United States, especially in this holy month of Ramadan. What he has done has shocked me … I ask God for help and guidance.

 He added:

Those people who lost their loved ones, they are my family. I am as sad and as mad as you guys are. I’m very, very mad.

 I don’t know anything about the man’s politics, what kind of father he was, if he made other inflammatory statements, took questionable actions. The man deserves credit, though, for immediately coming forward. It’s not how the parents of rampage shooters used to act.

What will the reaction be from surviving victims, or those struggling to survive devastating injuries? What about the reaction from the scores of grieving family members of those young men and women whose lives his son tragically cut short?

Some will simply ignore him as inconsequential and meaningless as they cope with despair. Others may react with anger. Still others might find some quiet measure of appreciation, if not now, eventually. The victims, the survivors, in fact the world, cries out with one simple question: Why? What did my son or daughter, my sister or brother, do to deserve this? Why did your son take them away from me? What were their last words? What made your son act in this barbaric fashion?

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One thing Sediqque’s expression of sorrow, shock and anger was not: it was not silence. Silence was the default position taken by the parents of rampaging murderers in the past. The disbelief expressed by Sediqque is common. It is common that parents of rampagers cannot fathom their children could be capable of the unimaginable carnage they unleash.  Parents are blindsided by the event and are simultaneously engulfed with an international media tidal wave. Police in arrive in SWAT gear and forcibly remove them from their homes, interrogate them as suspects: what did they know about their children’s plans and how did they obtain their weapons? The media camp out on their lawns, visit their employers, family members and friends. The images of their children and themselves are plastered on the television, newspapers and web and in infamy.

If their child is dead, as if so often the case, the parents, too, are in mourning. They have to figure out what to do with the dead body. Funerals and burials are difficult, or impossible, in fear of vandalism. The parents are blamed, vilified, and hated. They receive death threats.

Expecting lawsuits and even possible arrest, parents huddle with lawyers. Lawyers advise silence. Statements made could be used against parents in big multimillion dollar lawsuits, which in the United States will, no doubt follow. Statements might be used by criminal prosecutors looking to charge somebody, anybody, with “aiding and abetting,” accomplice criminal liability, or failure to prevent a crime, something called “misprision.”  For lawyers, silence helps shield clients.

Parental apologies seem to have started in the age of Columbine. Prior to Columbine, parents often maintained silence, as did the parents of the 14-year-old boy who, in 1997 killed 3 classmates in a school prayer circle at Heath High School in West Paducah, Kentucky.  And in the late 1999 when the parents of mass shooters made a statement, it came after a few days and great deliberation with attorneys. The statements were typically written and released by parents’ attorneys.  An example is the brief and statement released by the lawyer for the parents of one of the Columbine High School murderers:

“Wayne and Kathy…have been devastated by what their son…did.” They continue to grieve for all of the victims and their families. “Hopefully, there will come a time when they feel they are ready to speak publicly about their son and the horrible acts that he committed. But now is just not that time.”

Sediqque’s brief but immediate apology is more common now. It’s how most parents now react. In 2013, for example, a mother held an impromptu press conference in her Brooklyn, N.Y. apartment the day after her son murdered twelve innocent people at the Navy Yard in Washington D.C. She stood in her living room and with clergy standing beside her, read a brief apology, concluding that she was now was glad in her son’s death he could “no longer do harm to anyone.”  Her words were preferable to the deafening silence of bygone eras. There are countless examples of the newer trend.

A second development, much rarer but even more remarkable, is that parents of shooters conducting private meetings with parents of victims. One such meeting occurred in 2013 following the Sandy Hook elementary school tragedy where the father of the shooter met privately with grieving parents of one of his six-year-old victims. Another such meeting between parents occurred between two fathers in 2014 near Los Angeles, California. The meetings offer the slightest possibility of making sense of the senseless.

Experts like psychiatrist Aaron Lazare say apologies are “a validation of another person’s feelings, intuition, and perception,” and, when sincere, are an important component of the healing process. The apology, he wrote in 2004, “is a method of social healing that has grown in importance as our way of living together on this planet undergoes radical change.” Radical change, indeed.

The meetings, the prompt expressions of apology and remorse like the one uttered by Sediqque don’t bring back the dead.  But they just might help the living live another day.

With Scalia’s Passing Criminal Suspects Lost An Unexpected Ally

Criminal suspects recently lost an unexpected ally. Heralded as one of the most outspoken conservative jurists and legal scholars in history, Supreme Court Justice Antonin Scalia was also known to side with the Court’s liberal bloc on a number of legal issues expanding the rights of criminal suspects. Scalia’s profound skepticism about the powers of government along with his fervent advocacy of what he perceived as the original intentions of the constitution’s founders created a perfect storm to occasionally count his vote in a way that favored criminal defendants.

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Scalia’s distrust of government was most visible in the landmark Fourth Amendment search and seizure decision he authored in 2001: Kyllo v. U.S. In Kyllo, federal law enforcement agents believed an Oregon man was growing quantities of marijuana in his home. The agent obtained a thermal imaging device that allowed him to determine unusual heat levels in the building. Commanding a narrow 5-4 majority, Scalia wrote a decision that eliminated the critical thermal imaging evidence, finding that the search did not meet constitutional standards. The search could not meet the rule that mandates judges review search warrants before allowing an invasion of privacy into the sanctity of the home.

The justice said the Fourth Amendment’s time honored protections needed to adapt to new technology: “It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology,” Scalia wrote.

In 2004, Justice Scalia authored two more groundbreaking important opinions vindicating criminal defendants’ rights. Crawford v. Washington interpreted the Sixth Amendment’s Confrontation Clause to exclude reliable testimonial hearsay unless the defendant had been able to cross-examine the evidence. In Blakely v. Washington he required juries and not judges find, beyond a reasonable doubt, all facts that trigger sentences above ordinary sentencing-guidelines ranges.

As with many other justices, it’s hard to pigeon hole Scalia’s criminal law and procedure beliefs as either pro prosecution or pro-defense, liberal or conservative. He was a vocal critic of parts of the “criminal procedure revolution” of the 1960’s that expanded the of the rights of criminal defendants such as Miranda v. Arizona (restricting coerced confessions) which he called a “milestone of judicial overreaching” and Gideon v. Wainwright (the indigent right to counsel) and was of the belief that capital punishment was constitutional. Yet, Scalia mounted a long-term battle against criminal laws he felt were unconstitutionally vague. For example, his efforts to have the Armed Career Criminal Act struck down was ultimately successful in 2015 and he often weighed in against other criminal laws he felt criminal laws were so vague as not to give the citizens adequate notice of what conduct was illegal.  He authored the landmark decision that struck down a St. Paul hate crime ban as conflicting with the First Amendment’s protection of freedom of expression.

It’s fair to say Antonin Scalia will be better remembered for his decisions on the second amendment and an individual right to bear arms, in support of religious expression, his positions on cultural issues such as abortion, race, gender, and sexual orientation. He will be remembered for his scholarship along with the colorful language of his prose and the often scathing tone in a history of thirty years of dissents. Yet Scalia’s conservatism was not monolithic and his insistence on keeping the probing nose of the police and government out of your business, of your home as your castle, and his devotion to a fair criminal trial, too, will punctuate his legacy.

Should People Who Fail To Stop Rampage Shooters Be Arrested?

NewstimesThis column first appeared in The Danbury Newstimes November 22, 2015

For nearly two months Joey Meek sat in solitary confinement in a South Carolina jail cell. Meek, twenty-one years old, is a friend of Dylann Roof, the accused rampage murderer facing capital murder charges for the nine racially motivated murders committed this summer at the AME Baptist Church in Charleston.

 

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Dylann Roof

In September, Meek was indicted on federal felony charges. The United States Attorney, a federal prosecutor, says Meek had actual knowledge of Roof’s murderous plans and failed to take any action to warn authorities. That charge, “Misprision of A Felony,” is a fairly rare and archaic crime.  The second charge filed against Meek is that he made a false statement to the F.B.I. The federal prosecutor says, after the massacre, when the F.B.I asked Meek if he knew the specifics of Roof’s plans to shoot people at the Church, Meek said he did not. For those two charges Meek, himself, faces two serious federal felonies, many potential years in federal prison and sat in solitary confinement unable to make bond until last week.  Meek was released recently on a reduced bond while his case continues to work its way through the federal court.

A few family member of the victims of Roof’s massacre opposed reduction of Meek’s bond and his pre-trial release by federal Magistrate Shiva Hodge. In effect, Meek has become a scapegoat for the anger and rage that Roof, no doubt, deserves. But how much blame should be focused on Meek? Meek, a childhood friend of Roof, let Roof sleep on the floor of the Lexington, South Carolina trailer he lived in.

To Meek’s credit, after seeing news reports of the church tragedy, upon seeing Roof’s picture on television and recognizing him, Meek immediately called the police. When interviewed he told the F.B.I that in the days preceding the massacre he was with Roof when Roof got drunk and went on a racial tirade, saying he was going to “do something crazy.” Joey Meeks and his girlfriend took away and hid Roof’s gun from him. They returned the gun to Roof the next day, claiming they didn’t take his drunken rant seriously.

In opposing Meek’s bond reduction and release it is easy to sympathize with the emotional response of the victims; if anything could have been done to spare the lives of their fathers, mothers, brothers and sisters they believe it should have been done. But is Meek the right target of their anger and frustration?

Joey Meek is hardly the first non-shooter to be arrested in the aftermath of a rampage shooting. Police often make arrests of people they claim gave any help to the rampager. What makes the arrest of Joey Meek so unusual is that his isn’t an arrest for assisting a rampager but failing to take action to prevent it. There are always warning signs before rampage massacres are committed, warnings sometimes signaled to family members, friends, school officials, police or mental health care givers. Knowing when to take the warnings seriously is a significant challenge, even for trained, skilled professionals. For non-professionals it’s even trickier. For a twenty-one year old high school dropout should it be criminal?

In the wake of the rampage shooting epidemic, several states like Connecticut, Indiana, Texas and California have passed laws to allow for expedited seizure of guns from people who pose a threat to public safety. But even where those laws exist, somebody has to become aware of the threat and know when to take it seriously. If they report the danger the case quickly goes to court where a judge holds a restraining order hearing, but the threat has to meet legal standards for action to be taken against the purported dangerous person.

Mental health scholars confirm the difficulty in predicting violent behavior. “On the face of it,” says Dr. Jeffrey Swanson, a medical sociologist at the Duke University School of Medicine, “a mass shooting is the product of a disordered mental process. You don’t have to be a psychiatrist: what normal person would go out and shoot a bunch of strangers? But the risk factors for a mass shooting are shared by a lot of people who aren’t going to do it. If you paint the picture of a young, isolated, delusional young man ― that probably describes thousands of other young men.”

Fueling the emotions expressed by family members towards Meek, Morris or Jourdain–anybody associated with a rampage or rampager–is not simply a desire to see somebody punished. They often cry out for any scintilla of information of how or why their loved ones died. They cry out in pain to make sense of a senseless killing. Having a conversation with somebody like Meek would be a positive step toward the individual or community healing that needs to occur after a mass murder rampage.

The United States Attorney prosecuting Meek may be pursuing a strategy of applying pressure on Meek to get him to help state and federal prosecutors make their cases in court against Roof, who faces the possibility of capital punishment. Arresting, prosecuting or imprisoning Meek makes any conversation or contribution to community healing much less likely.

Even Mass Murders Have Mothers and Fathers

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This column first appeared in The Arizona Daily Star on September 8, 2015.

Mass Murderers are no different than you and me: at some point everyone had a mother and a father. And, as difficult as it is to imagine, if somehow our lives took an awful turn and we did something truly heinous we’d like to hope our parents would be in our corner doing anything and everything they could for us.

Last month in Centennial, Colorado a jury faced one of the most onerous tasks society asks of its citizens. The townspeople in Colorado had to decide whether it was life or death for James Holmes, deciding upon a sentence of life without a chance of parole release, or upon the death penalty.  That same jury of 12 found Holmes guilty of 24 counts of first-degree murder and 140 counts of attempted murder for the July 2012 killing of 12 innocent people and injuries to 70 more. Holmes opened fire at the Aurora, Colorado movie theater showing of The Dark Knight Rises.

Following the guilty verdict the jury heard evidence during the sentencing phase of the trial. Among the many witnesses called to the stand were both of Holmes’ parents, Robert and Arlene Holmes. With that one glaring exception of having a son who went on a monstrous, blood curdling rampage, Robert and Arlene aren’t too different from the rest of the population of American parents. The father, Robert, is a senior scientist at FICO, the company that calculates consumer credit scores. He is a mathematician with degrees from some of the finest institutions in the U.S., Stanford, Berkeley and U.C.L.A.   The mother, Arlene, is a registered nurse. The couple have a home in suburban San Diego, California, where they attend a local Lutheran church.

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Robert and Arlene Holmes Appearing In Court

Robert Holmes came to court nearly every day to attend his son’s trial. He sat in a courtroom where he was probably not particularly welcomed with open arms. He sat among the dozens of grieving survivors of the innocent people his son murdered, other parents, children, brothers and sisters. He sat among the scarred and the severely wounded. Yet, he came. When called he took the stand to try to save his son’s life. He told of his son’s near idyllic early childhood in Castroville, California. James did exceptionally well in school, played soccer was always surrounded by a pack of friends. The elder Holmes told of a history of mental illness in his own family, but never suspected his son had an illness. Although it does not appear that James Holmes wants a relationship with his father at this time, Robert Holmes was asked if he still loved James, as if to suggest that the enormity of the bloodshed caused by the son had changed the way a father felt about his child. “Yes, I do,” he said. “Why?” asked James’ lawyer. “Because he’s my son,” he answered.

One of the parents sitting in the courtroom with Robert and Arlene Holmes was Ashley Moser. The prosecutors saved her heart wrenching testimony for last, and strategically, it’ s easy to understand why they did. Moser, eight weeks pregnant, was watching the movie with her six-year old daughter, Veronica when James Holmes’ massacre took place. Moser reached for her daughter’s hand, but she felt it slip away. Of the 76 shots fired by Holmes from 3 guns, Moser was struck three times, and fell on top of her daughter. Veronica was struck by four bullets and was killed, and Moser suffered a miscarriage. Left paralyzed for life, a bullet still lodged in her back, she moved about the courtroom in a wheelchair, testifying in the courtroom as James Holmes and his family watched and listened.

Holmes’ mother testified on her son’s behalf. Looking back on things, Arlene Holmes said she could now see how her son changed when he became an adolescent, after they moved from Northern California to San Diego. Once a fast and athletic soccer player he then became uncoordinated and spent most of his free time playing cards and video games. She took him for counseling when he became depressed, but she never suspected he was mentally ill. He isolated himself but didn’t get into trouble and got good grades, she said. “I thought I had a good kid,” she testified.

I remember a client I once represented whose mother also thought she had a good kid, stuck with her son after he committed a vicious stranger-abduction rape. After he was convicted and sentenced to consecutive sentences totaling thirty-five years she said something only a naïve but loving mother could say. “Thirty-five years? That’s a murder sentence and he didn’t kill her.” Parents defend children, even when they commit atrocities.

By the time James Holmes was twenty-four and committed a murderous rampage, his parents had no idea he was suffering from schizophrenia or was homicidal. Yet several witnesses on both the prosecution and defense sides agreed that at the time of the murders their son suffered from schizophrenia and was mentally ill. Prior to the trial nobody ever disclosed Holmes’ condition to the parents. Obviously, Holmes spiraled downward and spiraled fast.

With a different verdict Holmes would be facing execution now. Holmes gets to live the rest of his days in a Colorado prison. His father says he will visit him. “Jimmy was always really an excellent kid,” the father testified. We’d all like to think our parents would continue to stand by us like that, even in the face of temptation to join the justifiably angry public, the victims who so often and understandably cannot do anything but express anger and frequent hatred at their children.

Holmes’ father still calls his son Jimmy. Just like my Dad always did.