A Prayer For Peace

In 2013, while pursuing my degree in Indigenous Law, I was asked by Navajo Nation Justice and Professor Raymond Austin to preside over a peacemaking session. I did. It was instructive. This is the prayer I wrote and delivered to start the session. I cannot take all of the credit, I arranged the thoughts, but with inspiration from several Lakota, Navajo, indigenous and Jewish prayers and concepts.

 

PEACEMAKING PRAYER  

By James D. Diamond

 

Great Spirit, whose voice we hear in the thunder on the mountains.

Today as we sit together in this place let us surround this family with a canopy of peace.

Let the wisdom of our ancestors fill our minds.

Give us sharp ears to hear your voice,
and eyes to see the light and the truth and the wisdom that is hidden in the earth.

Make us wise so can understand how the lessons you taught our ancestors answer the questions of today.

Help us find kindness and compassion owed to our brothers and sisters.

We ask you to restore to strength to anyone who is in pain or who suffers.

And give us the strength not to battle each other but to conquer the monsters that dwell within ourselves.

 

 

Copyright 2013: James D. Diamond

After 15 Years, Red Lake Shooting Survivors Are Still Suffering

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The following National View Column appeared on March 20, 2020 in The Duluth News Tribune 

 

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The Cedar Creek Singers perform in Duluth at a memorial for the victims of the Red Lake school shooting. Photo: Duluth News Tribune, 2005 

by James D. Diamond 

While the world struggles to deal with a very real public health crisis, community cohesiveness, kindness, and empathy are at a premium. There is a complexity to healing, though, and the newest threat does not eliminate those in the community already suffering — many invisibly. The wounds related to the looming public health threat surrounding mass shootings, the linked suicide crisis, and post-traumatic stress still fester.

Saturday, March 21 marks the 15-year anniversary of the school shooting at Red Lake High School on the Red Lake Indian Reservation in northern Minnesota. Although occurring somewhat sequestered from the public spotlight and amidst an independent indigenous sovereign, in many ways the 2005 rampage resembled other school shootings. A suicidal male student stole his grandfather’s guns, killed his grandfather and his girlfriend, broke into his own school, and shot a teacher and teenagers before taking his own life. Sadly, it has become a common American narrative and pattern.

At Red Lake there were warning signs. There are always warning signs, which, somehow, if heeded, might prevent tragedy. The warning signs at Red Lake, each taken alone 15 years ago, were not so alarming to make him a likely mass shooter. After the fact, though, they painted a very troubling picture. Not uncommon, the shooter at Red Lake was an obviously suicidal teenager crying for help. And, he had access to guns.

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Can Hate Beget Healing? Looking Back at 2019 and for a Silver Lining in Responses to Rampage Shootings

In 2019, many lives were lost at the hands of mass shooters. These tragedies occur so frequently they have become the new normal. Nobody is surprised anymore. But, as 2019 came to a close, at least one small step was taken to address mass and school shootings—revisiting federal funding for the study of causes of gun violence.

We know so little about why men—and it is primarily men—go on shooting, mass murder rampages. As someone who spent decades teaching and practicing criminal law, my hypothesis is that the crisis is closely associated with suicide. Suicide is now the fourth-leading cause of adult deaths. Consider that in most, but not all, mass shootings, the killer expects to die in the melee in shootouts with responding police, or they actually kill themselves before the police can. Looking at the big picture, if you add in the availability of guns (powerful guns and ammo) plus the prevalent social conditions of depression, hopelessness, loneliness and isolation, bullying at schools, mental health and mental illness and intimate partner violence, the picture becomes slightly clearer.

What’s the best way to find out if mass shootings are really part of the suicide epidemic?  Medical research. Since 1996 the Center for Disease Control and the National Institute for Health were prevented by Congressional legislation from studying gun violence and causation in general. The move to cut the funding arose in response to efforts made in the early 1990s to begin treating gun violence as a public health issue. The 1996 legislation was called the “Dickey Amendment,” named after Congressman Jay Dickey of Arkansas. Dickey led the movement to add language to the 1996 federal budget that said that “[n]one of the funds made available in this title may be used, in whole or in part, to advocate or promote gun control.” Of course, medical research is not advocacy, but the language was included in every federal budget since. As a result, medical research became part of the overall gun control battle and fell victim to political gridlock. Some progress was made to clarify the intent of the research and the language in 2018, after the Parkland Marjory Stoneman High School massacre.

At the end of 2019, finally, $25 million was set aside set aside for the study.

Something else noteworthy happened in 2019. Some progress was made in how communities respond to mass shootings. It’s a subject I cover in a recent book, After The Bloodbath, Is Healing Possible In the Wake of Rampage Shootings? In the book, among other topics, I look at how a community responded on the reservation of the Red Lake Band of Chippewa Indians after a fatal shooting at Red Lake High School. Consider, in 2019, two sisters, Tana and Brooke Risley. Brooke is a student at Saugus High School in Santa Clarita, California, and Brooke is a recent graduate of the school. Last month, there was a fatal school shooting at the high school when a 16-year-old student opened fire with a .45 caliber handgun, killing two students and injuring several others before firing one last gunshot to his head. In the aftermath of the melee, Tina and Brooke created a GoFundMe campaign to raise money for the mother and sister of the shooter. Similarly, in 2005 the Tribal Council at Red Lake made efforts to support the killer’s family and help them pay for funeral costs.

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Memorials in front of Saugus High School, November 19, 2019. Photo by David Crane, Los Angeles Daily News

“It is times like this that we must band together,” wrote the Risleys, “not to support the shooter and his actions, but to support his family. It is time to spread love, support kindness … Kindness is unconditional and constant. You are kind even when you don’t need to be, even when it is not convenient to be.”

In showing compassion to the family of the Red Lake school shooter, the people in Red Lake were not looking for recognition. The same goes for the Risley sisters. These days it’s a struggle to find anything upbeat to say about the shedding of so much innocent blood. Yet, Tana and Brooke found a way to light a spark of goodness amid painful darkness. Perhaps more light will be revealed into the causes of this deadly scourge after further federal medical research.

If the sisters in Santa Clarita are the future—as well as the children of Parkland in 2018 and other brave children of 2019—perhaps there is still hope for the rest of us.

James D. Diamond is the author of the book, After The Bloodbath: Is Healing Possible in the Wake of Rampage Shootings? He is dean of Academic Affairs of the National Tribal Trial College, holds a Doctor of Juridical Science degree (S.J.D.) from the University of Arizona College of Law and is the former director of the Tribal Justice Clinic there.

 

 

20 Facts About Mass Shootings You May Not Know

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Jeffrey May at his home in Redby, MN on the Red Lake Reservation. 10 years earlier May saved countless students who were being shot by jumping the school shooter who paused to reload.  Photo: Jennifer Simonson, MPR News
  1. NASA Astronaut Mark Kelly saw mistaken TV news reporting that his wife, Gabby Giffords was killed in a mass shooting before he jumped on an airplane from Houston, TX to Tucson, Arizona.
  2. Liviu Librescu lived through a Nazi concentration camp in Romania only to be killed by the school shooter at Virginia Tech.
  3. The Marjory Douglas Parkland High School killer took an Uber to the rampage, packing his AR 15, ammunition and smoke bombs in his bag.
  4. When the UT Austin tower killer tried to take the elevator to the top of the tower to perpetrate the murders, the elevator was not working. He found a campus employee who activated the elevator for him.
  5. A significant number of mass shooters, at least 9 killed a family member first before going on a shooting rampage.
  6. While the school shooter at Red Lake High School, MN paused to reload his rifle, fellow student Jeffrey May tried to stop the attack by jumping the killer with a pencil; he was doing his math homework in study hall before the shooting.
  7. The killers at Columbine High School selected April 20th for their killing because it was Adolph Hitler’s birthday and was the anniversary of the Oklahoma City federal building tragedy.
  8. California woman Hannah Sindaha survived the Las Vegas Rte. 91 concert massacre, then a year later survived the Thousand Oaks barroom massacre. The day after Thousand Oaks she had to evacuate her home due to the Woolsey fire that claimed 3 lives.
  9. The F.B.I. does not have an official definition of a “mass shooting,” but Congress defined a “mass murder,” and changed it in 2013 from an incident with at least four fatalities to one with three.
  10. Mass shooters are male, with very few rare exceptions.
  11. Conspiracy theorists waged a campaign to convince the world the twenty children killed at the Sandy Hook Elementary School were not really killed, their coffins were empty, and their grieving parents were actors.
  12. In 1977 Stephen King wrote a novel about a fictitious high school shooting titled “Rage” under the pseudonym Richard Bachman. The book became associated with school shootings. Finally, after a copy of the book was found in the locker of Heath High School shooter Michael Carneal, King allowed the book to go out of print.
  13. There are often visible warning signs before a mass shooter acts. In one unusual case, the case of the murders at the AME Church in Charlestown, a friend of the killer was arrested and sent to prison for knowing about the planned spree and failing to take action to prevent it.
  14. The mass killer at the movie theater in Aurora, Colorado claimed he picked the midnight showing of Batman movie Dark Knight Rises for his killing, thinking there wouldn’t be children in the theater at that hour. There were. He killed a 6-year-old girl.
  15. Because he was such a prolific gambler the Mandalay Bay Hotel gave Las Vegas Route 91 concert killer a free luxury suite that usually cost nearly $600 a night and allowed him to move his luggage containing a vast arsenal in the service elevators. He killed fifty-eight and wounded more than 800 people.
  16. Christina Taylor-Green, the nine-year-old victim killed in the Tucson massacre was the granddaughter of former baseball manager and player, Dallas Green. Green managed the New Yankees and other teams in the 1970’s-1990’s.
  17. Newspaper reporters at the Capital Gazette massacre in Maryland had the difficult assignment of having to write about a shooting they themselves witnessed, one that claimed the lives of their colleagues.
  18. In preparation for the massacre the Columbine killers stored in their bedroom closets the bombs they built and used in the massacre.
  19. After a fatal shooting at Red Lake High School, which is located on the Reservation of the Red Lake Band of Chippewa Indians, the Tribe used donations to help pay for the funeral of the shooter. That payment is unprecedented.
  20. The phrase “going postal” is believed to have been originated as a result of the 1986 massacre in Edmond, Oklahoma where a postal employee went on a workplace rampage, killing fourteen and injuring 7. The employee, a former Marine, received a series of negative performance reviews and was reprimanded earlier in the day before the killings. One of the victims of the massacre was the thirty-three-year-old Mike Rockne, grandson of Knute Rockne, the legendary Notre Dame football coach.

[James D. Diamond’s 2019 book, After The Bloodbath: IS Healing Possible In The Wake of Rampage Shootings is now available from the publisher, MSU Press  from your local bookstore, and all major digital booksellers like Amazon and Barnes and Noble. ]

“Where Angels Play:” Emilie’s Shady Spot

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Children play as playground opens in New London Connecticut, November 17, 2013. Photo, YouTube

(This post was originally appeared in The Huffington Post on December 13 2017 and was updated in 2019).

They would be 13 or 14 years old now, and in the eighth grade. Maybe they’d be learning in school about American history and slavery and reading the novel Lord of the Flies. But those 20 innocent schoolchildren never made it out of first grade.

It’s been nearly seven years since the 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut. The bloodshed attributed to rampage shootings continues at a frenetic pace; to my count there have been more than 30 mass shootings since that unspeakable tragedy. While progress is being made in some related fields—school safety and neurological medical research, for example—the sheer number of incidents and innocent lives lost is so painful that whatever steps forward we are able to take get lost in a tsunami of profound sadness and regression. Sometimes it’s all we can do to brace ourselves for the next.

Rampage murders bear a striking resemblance to another American crisis—that of suicide. In most cases that’s what a rampage is. The murderers know they’ll be killed and often kill themselves before police can. That’s exactly what the Newtown killer did. Suicide is so preventable, but it is now the 10th-most common cause of death in the U.S. and, relevant to rampages, the second highest cause of death among young people. The most notable and striking difference between the rampage and most suicides is the rampager also kills many innocent people.

The motives of rampage killers like the Newtown murderer or the 2017 Las Vegas killer are unknown. Perhaps there’s something to be learned from the rare rampager who survives, like the killer in Aurora, Colorado (the 2012 “Dark Knight” theater massacre), or Tucson, Arizona (the 2011 “Congress on Your Corner” massacre).

There is persuasive evidence that rampage killers study the rampagers who came before them, even obsess about them, as the Newtown killer did. They try to outdo their predecessors and achieve a notoriety in death that was unachievable in life. On that point, I believe it would be a significant step toward progress if major news media stopped using killers’ names (as I did here), stopped publishing their pictures, ignored their rants and stopped declaring their murders as “the deadliest.” Why award bloodthirsty murderers with titles and achievements, like trophies on a mantel? The more we make these killers famous, the more we are assuring that there will be someone (or multiple someones) intent on breaking these “records” of infamy.

I went to a very moving ceremony a few years ago to honor the memory of Emilie Parker, one of the little angels murdered in Newtown. The ceremony was the opening of a playground in New London, Connecticut. It’s called “Emilie’s Shady Spot,” a lovely, playful, cheerful, pink playground, with pictures of butterflies. The playground was one of 26 built by a group of New Jersey firefighters and paid for by generous donations. Playing on the sparkling new equipment, the children were running, climbing and playing with bright smiles on their faces. I heard laughter. I fought back tears. More than 200 other people in attendance also fought back tears that morning. Sometimes it seems that’s all a person can do. Or is it? How many more playgrounds have to be built?

[James D. Diamond’s 2019 book, After The Bloodbath: IS Healing Possible In The Wake of Rampage Shootings is now available from the publisher, MSU Press  from your local bookstore, and all major digital booksellers like Amazon and Barnes and Noble. ]

Will California Execute A Native American Female Mass Shooter?

Cherie Lash-Rhoades murdered four people and critically injured two others in a 2014 shooting spree in the tribal headquarters of the Cedarville Rancheria, a small American Indian tribe in Northern California. It all happened during a meeting at the Alturas headquarters where tribal leaders were discussing the banishment of Lash-Rhoades. Lash-Rhoades was tried in Modoc County, California, and sentenced to death by Judge Candace Beason on Feb. 20, 2014, for killing her brother Rurik Davis, 50, her niece Angel Penn, 19, her nephew Glenn Calonicco, 30 and Sheila Russo, 47, the tribal administrator who handled tribal evictions.

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Cherie Lash-Rhoades 

Lash-Rhoades is awaiting execution at the Central California Women’s Facility in Chowville, California, where there are 21 women awaiting execution. But Lash-Rhoades and the other women are among the nearly 750 inmates who have been sentenced to death in California, and California has not executed any inmates since 1992. The status of the death penalty in the state is complicated by a series of voter propositions affirming it, while Gov. Gavin Newsome has imposed a moratorium on executions.

Lash-Rhoades was chairman of the small tribe, a tribe embroiled in a leadership dispute involving her own family, which led to an accusation that she had stolen more than $60,000 in tribal funds. Those allegations led to an eviction, and Lash-Rhoades came to the tribal headquarters where a hearing about the eviction was scheduled. Instead of a hearing, what followed was a harrowing murder spree.

Her conviction will be appealed to the California Supreme Court—an automatic appeal under California law. If her case is like other capital litigation, it is likely the appeal will languish for decades. California’s death row is the largest in the United States and likely the largest in the Western hemisphere.

The Cedarville Rancheria rampage killing should be viewed in the context of a disturbing move, largely on the West Coast of the U.S., where tribes are disenrolling thousands of their citizens. I wrote about the crisis in a friend of the court brief with the United States Supreme Court in the case of Aguayo v. Jewell where I explored the profound psychological impact tribal disenrollment has on native self-esteem. In that brief, I wrote: “Disenrollment thus perpetuates historical trauma by creating a loss of community, culture, tradition and identity that is associated with historical loss. Historic loss has been strongly associated with depression, post-traumatic stress disorder, and poly-drug use in Native youth.”

Disenrollment is thorny legal and political matter that poses civil rights squarely against the imperatives of native sovereignty. My colleagues Gabriel Galanda and Ryan Dreveskratch wrote a groundbreaking and expansive law review article on the subject in the Arizona Law Review: “Curing the Tribal Disenrollment Epidemic, in Search of a Remedy. 

Mass shootings on American Indian reservations are exceedingly uncommon. In light of the death penalty political turbulence in California, and its reluctance to execute anyone, is it possible it will ever execute a woman killer who is an indigenous Native American?

 

 

 

Change Is Coming for Victims of Domestic Violence on American Indian Reservations

Sexual and domestic violence in Indian country continues to be a crisis, with grave law enforcement challenges. There is progress, however. I recently published an article in the A.B.A. Criminal Justice magazine about the changes made in federal law to help Indian tribes address the problem. You can read the entire article here. Here is the section of the article detailing the Violence Against Women legal changes:

In 2013, President Obama signed into law the re-authorization of the Violence Against Women Act (VAWA), a federal statute that addresses domestic violence and other crimes against women. (Pub. L. No. 113-4, 127 Stat. 54 (2013).) When originally enacted in 1994, VAWA created new federal offenses and sanctions, provided training for federal, state and local law enforcement and courts to address these crimes, and funded a variety of community services to protect and support victims.

President Obama listens to Lisa Lyotte (Sicangu Lakota Ospaya tribe) who was raped and beaten, prior to signing the Tribal Law and Order Act on July 29, 2010. PHOTO: UPI/Kevin Dietsch

Most significantly, the amended version of VAWA recognizes that tribal courts have jurisdiction over criminal cases brought by tribes against nonmembers, including non-Indians, that arise under VAWA. Significantly, this is the first time since the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe that Congress recognized tribal courts’ criminal jurisdiction over non-Indians. (435 U.S. 191 (1978).) This change in the law represents a major change for native communities and especially native women. Native American and Alaska Native women experience sexual violence at a rate two and a half times higher than other women in the United States. (See Nat’l Inst. of Justice, U.S. Dep’t of Justice, Public Law 280 and Law Enforcement in Indian Country—Research Priorities (2005).)

The special domestic violence criminal jurisdiction recognized under the VAWA reauthorization not only provides an additional tool to address violence in Indian country, but also strengthens tribal courts and tribal sovereignty. Congress’s recognition of tribal criminal jurisdiction comes with limitations and places obligations on tribes. Tribes wishing to take advantage of VAWA’s jurisdictional provisions may need to amend tribal law and hire new judges and public defenders. Further, there remain significant limitations on who can be prosecuted in tribal courts. VAWA pilot programs and prosecutions of non-Indians in domestic violence cases have commenced in select tribal courts in the following states: Arizona, Michigan, Montana, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota and Washington, and it is extremely likely that more will follow.

Cherokee Billboard

Here is a summary of the new law’s requirements and limitations:

Limitations of the Enhanced Jurisdiction under VAWA 

Types of offenses. Under the amended statute, tribes can prosecute “domestic violence” or “dating violence” by a person who is or has been in a “dating or domestic relationship” with the victim. Tribes can also prosecute violations of protection orders that occur in Indian country as long as those protection orders were issued to prevent (1) violent or threatening acts, or (2) contact, communication or physical proximity with or to the victim.
Types of defendants. Tribes can only prosecute VAWA cases against a non-Indian defendant if he or she has one of the following connections to the tribe’s reservation or lands: (1) resides in Indian country, (2) is employed in Indian country or (3) is the spouse, intimate partner or dating partner of an Indian living in Indian country or a tribal member. The last category includes former spouses, individuals who share a child in common and individuals in
social relationships of a romantic or intimate nature. With one very limited exception, this new jurisdiction does not apply to tribes in Alaska, who under the Alaska Native Claims Settlement Act (ANCSA) are governed by 12 regional corporations. (See 43 U.S.C. §§ 1601 et seq.) These new jurisdictional rules also have very limited impact with nonrecognized tribes.

Types of victims

Tribes can only use the jurisdictional provisions of VAWA to prosecute crimes against Indian victims. This new law does not recognize tribal authority to prosecute non-Indians for violent acts against non-Indian victims.

Procedural safeguards

Tribes will need to guarantee that their criminal codes and rules of criminal procedure provide defendants with certain procedural safeguards. These include the right to a trial by an impartial jury of members of the community, from which non-Indians may not be excluded. Whenever a tribe intends to impose imprisonment, it must provide counsel/public defenders for indigent defendants. It must guarantee that proceedings are presided over by a law-trained judge. It must make publicly available the tribal criminal statutes and rules of procedure, and the criminal proceedings must be recorded. Defendants ordered detained under VAWA must be informed by the tribal court of their right to file federal habeas corpus petitions. Tribes must comply with all provisions of the Indian Civil Rights Act (ICRA) and guarantee “all other rights whose protection is necessary under the Constitution of the United States” in order to exercise this criminal jurisdiction. (See 25 U.S.C. §§ 1302, 1304.) It has not yet been established precisely what “other rights” this refers to. The guarantee of these fundamental rights may very well end up becoming the topic of future defense challenges and litigation.

Pilot programs

As a result of the new federal legislation, in February 2013 the Justice Department announced a pilot program with three initial tribes, giving them jurisdiction over non-Indians in domestic violence cases on their reservations. Those tribes were the Pascua Yaqui tribe of Arizona, the Tulalip tribes of Washington and the Umatilla tribes of Oregon. As of Feb. 20, 2014, the tribal courts in those three jurisdictions began to exert their newly
enhanced jurisdiction. In 2015, two additional tribes were approved to begin exercising special domestic violence jurisdiction as part of the pilot program: the Assiniboine and Sioux tribes of the Fort Peck Indian reservation of Montana and the Sisseton Wahpeton Oyate of the Lake Traverse reservation of North and South Dakota.

Since 2015

After 2015, another 10 began to exercise the special domestic violence jurisdiction: Little Traverse Bay Band of Odawa Indians of Michigan, Seminole Nation of Oklahoma, Eastern Band of Cherokee Indians of North Carolina, Muscogee Creek Nation of Oklahoma, Chitimacha tribe of Louisiana, Alabama-Coushatta tribe of Texas, Kickapoo tribe of Oklahoma, Nottawaseppi Huron Band of Potawatomi of Michigan, Standing Rock Sioux tribe of North Dakota and Sault Ste. Marie tribe of Chippewa Indians of Michigan. The 10 tribal courts are at varying stages of exercising the approved jurisdiction, but it is likely they will all begin prosecuting cases shortly, if they have not already done so. It is extremely likely that many more tribes will soon adopt the enhanced VAWA domestic violence jurisdiction.

For more:

Practicing Indian Law in Federal, State, and Tribal Criminal Courts and an Update on Recent Expansion of Criminal Jurisdiction Over Non-Indians

Criminal Justice, Volume 32, Number 4, Winter 2018

 

The Race to Execute a Racist

Printed January 11, 2017 in the Danbury 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, South Carolina? Jurors in a federal court there 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 murderer 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 on federal death row, including the man convicted in the 2013 Boston marathon massacre. Federal capital murder trials are 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 prosecution 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 coexist after separate federal and state trials. A prison sentence for years, fines or restitution orders can all coexist. 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.

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

 

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: silence. Silence has been 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 child’s plans and how did their child obtain 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, for fear of vandalism. The parents are blamed, vilified, 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,” as an accomplice for 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 three classmates in a school prayer circle at Heath High School in West Paducah, Kentucky. And in 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 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 today. 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 12 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 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, and there are countless examples of this newer trend.

A second development, much rarer but even more remarkable, is 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 6-year-old victims. Another such meeting between parents occurred between two fathers in 2014 near Los Angeles. Meetings such as these 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.

 

Should People Who Fail to Stop Rampage Shooters Be Arrested?

This column first appeared in The Danbury Newstimes Nov. 22, 2015

 

For nearly two months, Joey Meek sat in solitary confinement in a South Carolina jail cell. Meek, 21 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.

 

Dylann_Roof_mugshot
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 FBI. The federal prosecutor says, after the massacre, when the FBI 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 members 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’s, 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 FBI 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 Roof’s gun and hid it from him. They returned the gun to Roof the next day, saying 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 for 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 healthcare 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 21-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 toward 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.