I tried a criminal case in 1990 (Danbury) against William Kunstler (far right) who believed no press was bad press. The movie doesn’t do him justice, predictably. Kunstler was as good a natural cross examiner as I’ve ever seen. And he was rather theatrical in our little CT trial. I learned many valuable lessons from that trial and from being opposing counsel.
The trial was so colorful, so impactful, it is a real shame Aaron Sorkin didn’t recreate it accurately. I expected more from Sorkin, don’t you?
Lessons I learned from Bill Kunstler:
The trial is not over when the case is presented to the jury. Never stop arguing, advocating. Kunstler beat me during jury deliberations on read-back strategies.
You can’t fight history. The judge was dealing with a legend and was going to give him the benefit of the doubt in every ruling.
There is no such thing as bad press. Kunstler was running out of the courtroom through the whole trial making pay-phone calls to journalists as he read the daily headlines in the NY Times.
A really good cross examiner through a skilled cross will pounce on the exposed weakness of a witness.
Take really good notes during the trial, or have somebody do it. Kunstler took exquisitely detailed notes during the jury deliberations. I asked him why he was doing that. “I once won a case on it,” he said. And his second seat, the famous Ron Kuby, helped with note taking. But not much more.
You’d be surprised how a well delivered line can have an impact on a jury. During his summation Kunstler, in a booming deep voice, warned the jury that if they convicted, ruined, this “pillar of the community” doctor on such flimsy evidence, one day they would “wake up screaming.” What a great and vivid image.
Take the long view on life. There was more at stake in the case than me, a 31 year old rookie prosecutor, winning that one case.
The month of April will be the among the most challenging months in American history. The physical, mental and emotional well-being of the nation is at hope’s edge, as our nation comes to grips with a global pandemic and dire economic consequences. For many mass shooting survivors and their communities, though, April is challenging for another reason: The five days between April 15-20 have been notoriously marked with the intentional spilling of innocent blood.
On April 15, 2013, terrorists killed six and seriously injured 280 in the Boston Marathon attack. April 16, 2007, was the school shooting at Virginia Tech University. On April 19, 1995, a mass murderer killed 168 innocent victims and seriously wounded more than 680 in the Oklahoma City bombing. And on April 20, 1999, there were the murders of 15 at Columbine High School in Colorado. The connection between the April dates is no coincidence.
Sadly, several killers sought to “outdo” the massacres that preceded their carnage and there exists a link between a series of massacres occurring in April, and the selection of massacre dates to coincide with the massacre anniversaries. It starts with April 19, 1993, the date law enforcement officials raided a compound near Waco, Texas, resulting in a lengthy standoff and 86 fatalities. Next, the two terrorists at Oklahoma City who drove a truck-bomb to the Murrah Federal Office Building selected the Waco anniversary; two years later, on April 19, 1995, they conducted a terrorist assault that killed 168 people. Then, with a goal of killing more people than the terrorists did at Oklahoma City, the two school shooters at Columbine High School picked April 19 for their massacre — postponed by an unknown reason to April 20. On April 20, 1999, the two high school boys murdered 15 innocent students and teachers, seriously injuring many more. The tragedy at Columbine, then, took on great importance for several rampagers who followed them. Killers at Sandy Hook Elementary School in Connecticut and Virginia Tech studied and obsessed over Columbine, as did many others.
How do communities, victims and survivors deal with the aftermath of mass shootings?
In my book, “After the Bloodbath: Is Healing Possible in the Wake of Rampage Shootings?,” I examine the aftermath of mass shootings and compare community and legal responses to responses in indigenous communities, with special attention devoted to restorative and therapeutic justice. I compare the aftermath of several shootings with a fatal massacre that occurred in March 2005 at the Red Lake High School on the reservation of the Red Lake Band of Chippewa Indians in northern Minnesota. For example, at Red Lake, in contrast with other massacres like Newtown, the family of the killer did not have any difficulty finding a place to bury the shooter, and the killer was given a traditional funeral and mourning rituals, which were well attended. Just as in Newtown, at Red Lake, a family member, the shooter’s grandfather, was the first victim, and like Newtown, access to the guns used could be attributed to the family member. Yet, at Red Lake the shooter’s grandfather was counted as a victim and, in contrast to many other rampages, not blamed for the killings. The grandfather was given a hero’s funeral which was very well attended.
What was most remarkable, though, was that the tribe included the killer’s family in distribution of victim compensation funds, helping to pay for his funeral expenses. In Red Lake, parents of victims thought the murderer deserved some recognition from the community so he would not, as a human being, be forgotten. A number victims’ relatives forgave the killer and considered the circumstances preceding the massacre.
There are more than 500 American Indian tribes in the United States and more than 200 tribal court systems. Indigenous peoples have a long history of restorative practices and engage in something called “peacemaking courts,” where they invite in elders, relatives and spiritual leaders and move toward restoring social bonds and healing the frayed social fabric. There are more lessons we can take from how indigenous peoples deal with mass shootings. Parents and family members of mass murderers, typically mourning as well, should be given empathy and, at a minimum, not treated as community pariahs.
While the world struggles in April to deal with the very real public health emergency, community cohesiveness, kindness and empathy are at a premium. The festering wounds associated with the still unresolved public health threat surrounding mass shootings, the linked suicide crisis, and a long list of suffering survivors will be painful throughout the month.
The following National View Column appeared on March 20, 2020 in The Duluth News Tribune
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.
From Arizona Public Media: January of 2020 marks the ninth anniversary of the mass shooting in Tucson that killed six people and injured thirteen, including then-Congresswoman Gabrielle Giffords. Emma Gibson, the tribal affairs reporter at AZPM, spoke with lawyer, professor and author James D. Diamond about his book After the Blood Bath: Is Healing Possible in the Wake of Rampage Shootings?, which compares how Indigenous and non-Indigenous communities cope with the results of mass 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.
“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.
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.
Liviu Librescu lived through a Nazi concentration camp in Romania only to be killed by the school shooter at Virginia Tech.
The Marjory Douglas Parkland High School killer took an Uber to the rampage, packing his AR 15, ammunition and smoke bombs in his bag.
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.
A significant number of mass shooters, at least 9 killed a family member first before going on a shooting rampage.
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.
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.
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.
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.
Mass shooters are male, with very few rare exceptions.
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.
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.
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.
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.
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.
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.
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.
In preparation for the massacre the Columbine killers stored in their bedroom closets the bombs they built and used in the massacre.
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.
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.
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.
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?
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.
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.
Very near to Danbury there lived a true American war hero. His name was Rob J. Lytle Jr., and you may have heard of him when his obituary turned up in local newspapers in 2010.
His widow, Lori-Ann Lytle, who lives in New Milford, broke away from custom when she included her husband’s cause of death in his obit, and in the very first sentence: suicide.
She did so with intent—not to tarnish her husband’s memory but to give his death meaning. He died after a long battle with PTS, post-traumatic stress, a sad fact that Lori-Ann included as well.
Though Lori-Ann bravely gave a name to Rob’s demon—the one that for 20 years woke him, screaming, several times a month; sidelined him with anxiety, depression and alcoholism; and ultimately led him to take his life—that newsprint paragraph wasn’t room enough to tell the real story.