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.

READ MORE 

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. ]

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

 

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—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. An appellate court there dismissed criminal convictions 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 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.
Dharun 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 offenses, 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 either legislation or the adversarial jousting of litigation can. Sometimes it’s better for lawyers to recognize the institutional limitations of the law to fix what is obviously broken.

 

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.

 

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 pigeonhole 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 1960s that expanded 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 were so vague as not to give 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, the colorful language of his prose and the often-scathing tone in a history of 30 years of dissents. 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?

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.

 

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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 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.

 

Even Mass Murderers Have Mothers and Fathers

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

In some ways, 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 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 and 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 at the time, was watching the movie with her 6-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 three 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 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 35 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 24 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.

The Images Of Rampage Killers Make A Difference

A photo can make a huge difference in forming public opinion. James E. Holmes is on trial for the rampage murders at the Aurora Colorado movie theater in July of 2012. Holmes was recently convicted of the murder of 12 people and the injuries to at least 70 others. A Centennial, Colorado jury is deliberating now on his fate and deciding whether he will face the death penalty. Holmes’ defense team have put forward an insanity defense, a defense proven extremely hard to prevail with American juries.

Many Americans have repeatedly seen several photographs of Holmes. In one set of popular photos, taken in court, Holmes has bright red died hair and a wide eyed look. He has a scary appearance. Here is one such recent court photograph of Holmes:

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James Holmes Appears In Court (Photo by RJ Sangosti/Getty)

And here is another photograph with wide circulation of James Holmes, his police mug shot. He has shorter hair, but still a somewhat frightening appearance:

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James Holmes’ mug shot. (AFP Photo / Arapahoe County Sheriff’s Office)

One wonders, though, if public opinion of Holmes would be affected if older photos of Holmes were chosen for mass exposure by the news media. You see, before going on his horrible, blood curdling rampage, Holmes appears to have led a normal suburban life. That is not to suggest that Holmes did not display evidence of mental illness; experts have been debating that in court over the last few weeks. Holmes, though, was an honors high school student and an extremely high achieving college student as well. Holmes graduated from Westview High School in the Torrey Highlands community of San Diego, where he played soccer and ran cross-country track.

Holmes studied neuroscience from The University of California/Riverside, graduating with high honors and a 3.95 GPA. He was enrolled in a PhD program.

Take a look at Holmes’  high school yearbook photo, taken just six years before his rampage. There’s a good chance you’ve never seen this photo on the evening news or your local newspaper; I know I had not:

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James E. Holmes 2006 High School Yearbook Photo (Photo courtesy of The Daily News).

What a startling difference, right? If this was the photograph plastered all over CNN, Fox, MSNBC and the New York Times, do you think America would have a different image of Holmes? How many people are aware of his high achieving childhood of relatively normal youth? What happened to this young man in the six years from his suburban California high school graduation to 2012 when he shot 70 innocent people?  The experts agree he suffered from schizophrenia.

The images are revealing.

(Note: Jim blogs about Rampage murders for the Huffington Post.)