Tag Archive for appeals

What Should We Do With David?

On October 3, 1989, a Rochester, Minnesota, jury gave David Brom an unwelcome 18th birthday present: it convicted him of four counts of first-degree murder. A week later, the same jury rejected Brom’s claim that he was insane when he used 56 blows with an axe to murder his father, mother, and two siblings.
He was subsequently sentenced to three consecutive life terms (and one concurrent life term) and will be eligible for parole when he turns 70. After his sentencing, the judge reportedly retired to her chambers and wept over the tragedy of the crimes and David’s wasted life.
While extremely violent, David’s crime is not that extraordinary. What is interesting is the dual legal issues that he raised: that crimes committed by a 16-year-old do not deserve to tried in an adult court, and that Minnesota’s M’Naghten-based insanity defense is out of touch with reality and unfair to defendants who are mentally ill when they commit their crimes.
Medical records and testimony at his trial indicated that David was severely depressed at the time of his crime. A Catholic prep school sophomore, David had twice attempted suicide (the last attempt was just a few months prior to the murders), and friends reported that he talked for six months about killing his family.
For reasons never fully explained, that time came on February 18, 1988. In a gruesome crime scene, Cascade Township police who had been summoned to the home found bodies of Bernard Brom, 41, his wife, Paullette, about 40, and children Diane, 14, and Rick, 9, all in their nightclothes. The four were believed to have been slaughtered early that morning. A bloody axe was found in the basement of the home. Authorities theorized that Bernard and Rick had been attacked first, and the women coming to investigate were subsequently struck down.
The only member of the household not killed — there was another brother who did not live at home — was David Brom and he was nowhere to be found.
The elder brother had an alibi, and David’s palm prints were lifted from the murder weapon. David was arrested the next day while telephoning a friend from a pay phone at a post office. He admitted the crimes and explained that he was “having trouble with his father” over a music tape.

Which Court Has Jurisdiction?

The first issue David Brom and his attorneys had to face was a motion by the prosecutor to move the case out of the juvenile system into adult court. At the time this case was brought to the court, precedent was much more restrictive about what cases could be removed from juvenile court.
In order to refer a child for adult prosecution, Minnesota law required the trial court to find probable cause “to believe the child committed the offenses alleged in the delinquency petition” and a demonstration by clear and convincing evidence that the child is not suitable to treatment or that the public safety is not served under the provisions of law relating to juvenile courts.”
The judge hearing the state’s argument that such a heinous crime deserved adult punishment ruled that “incredibly” the statute as applied to the Brom murders precluded moving David’s case to adult court.
Judge Gerard Ring said that David didn’t have any criminal record and that psychiatric testing showed “little, if any, basis” to send him to adult court. However, Ring made his decision reluctantly, noting that he was powerless to decide otherwise and that David’s punishment for four murders would be quite minimal.
“It does not make sense that any person, if convicted of the crimes alleged in this case, should serve a sentence of less than three years,” he said. “However, the Legislature has not vested absolute discretion in me as a trial judge to decide this issue based on what my own feeling of justice should be.”
The State appealed Ring’s decision and on October 8, 1988, the Court of Appeals revered Ring’s ruling and ordered David’s case to be tried in adult court. It based its decision on a different interpretation of the 1980 law that was passed in reaction to a similar case where a child-murderer was tried in juvenile court — much to the outrage of the Legislature and its constituents.
The result was a statute that reflected a shift in attitude regarding punishment as a goal of juvenile courts.
“Prior to the amendments the stated purpose of those courts was to secure care and guidance, and to serve the welfare of the minor child,” the appeals court wrote. “(Now,) for youths charged with the commission of a crime, a more punitive approach is emphasized, and as to them the juvenile court operates to promote the public safety and reduce juvenile delinquency by maintaining the integrity of the substantive law prohibiting certain behavior and by developing individual responsibility for lawful behavior.”
A particular section of the law directly addressed David’s situation. According to statute, “a prima facie case that the public safety is not served or that the child is not suitable for treatment shall have been established if the child was at least 16 years of age at the time of the alleged offense and …(I)s alleged by delinquency petition to have committed murder in the first degree…”
The appeals court found that public safety would not be served if David’s case was heard in juvenile court.
“We conclude that the legislature intended to protect the strong and legitimate interest of the public in a fair response by the criminal justice system to a heinous crime,” the judges wrote. “There can be no doubt that the offenses here are heinous and that the only fair response of the criminal justice system, as a matter of law, must be referral.”
When the case went to trial in autumn 1989, as a result of his documented mental illness David presented an insanity defense — an affirmative defense — that added several twists to the normal trial procedure.
For cases involving insanity or diminished capacity defenses (the terms are not interchangeable), Minnesota courts conducted a bifurcated trial that first determined whether or not the defendant was guilty of committing the offense using the basic standard of reasonable doubt. If the jury found that David did commit the murders, then a second phase of the trial began to determine, by a preponderance of the evidence, if he was mentally ill at the time of the offense and therefore not criminally responsible.
Thus, in the first phase of the trial, the onus was on the state to prove guilt, and in the second half, the defense had to establish by a lower standard of proof that David was mentally ill when he committed the crimes.
An insanity defense was particularly risky strategy for David’s case. Not only is it rarely successful, it necessitated that he admit he did kill his family — making the prosecution’s job in the first phase extremely easy. Adopting an insanity argument prevented the defense from claiming that someone else committed the crimes and arguing that the state did not meet the burden of proof to convict David.
Not surprisingly, in October 1989, the jury found that David had killed his family. The case then moved to the second stage.
Because of Minnesota’s adoption of the M’Naghten Rules of measuring sanity, the deck was stacked against David. To truly understand the uphill climb David faced, a (rather lengthy) understanding of the legal-medico conflict over insanity must be explored.

The M’Naghten Rules

The facts of M’Naghten’s Case are not relevant here and there are many, many websites that interested readers can go to read about it. What is important is that in 1843, Daniel M’Naghten was found not guilty of murder by reason of insanity. That verdict set off a firestorm of protest in England and resulted in an inquiry by the House of Lords which led to the adoption of the M’Naghten Rules.
The Lord Chief Justice and 14 of the 15 other justices defined the legal measurement of insanity:
In all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved…; to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.

Prior to the adoption of the “right/wrong” M’Naghten Rules (there were other rules that dealt with specific aspects of criminal responsibility), courts used the standard of “good vs. evil.” Before that, the rule was that the defendant “doth not know what he is doing, no more than…a wild beast.”
In the 140 years between M’Naghten’s Case and the case of the People v. David Francis Brom, the M’Naghten Rule came under increasing criticism both by the medical profession and the judiciary.
The first change came in 1929 when the federal courts adopted an addition to the M’Naghten Rule: the “irresistible impulse” test. In other words, that the defendant’s “reasoning powers were so far dethroned by his diseased mental condition as to deprive him of the will power to resist the insane impulse to perpetrate the deed, though knowing it to be wrong” Smith v. United States (1929)
The issue was still unresolved, however. In 1945, the U.S. Circuit Court of Appeals for the District of Columbia pointed out the problem with M’Naghten’s and irresistible impulse rules:
The modern science of psychology…does not conceive that there is a separate little man in the top of one’s head called reason whose function is to guide another unruly little man called instinct, emotion, or impulse in the way he should go. Holloway v. United States (1945).

Less than a decade later, the advances in psychology that made the M’Naghten Rule bad jurisprudence was addressed by the Royal Commission on Forensic Psychology, which wrote that the right/wrong test was “based on an entirely obsolete and misleading conception of the nature of insanity.”
The Commission went on to argue that it was wrong of the court “to abstract particular mental faculties, and to lay it down that unless these particular faculties are destroyed or gravely impaired, an accused person, whatever the nature of his mental disease must be held to be criminally responsible.”

The Durham Rule

Like M’Naghten’s Case, the facts of the case of Monte Durham are not relevant here. Suffice to say that Durham was in and out of mental institutions and frequently when he was released, committed one crime or another. As a result in 1954, the D.C. circuit court in reversing Durham’s latest conviction, created a revised rule that it hoped would ameliorate the problem with a decision that established the Durham Rule:
The rule we now hold…is simply that an accused is not criminally responsible if his unlawful act was the product of mental disease or defect. We use “disease” in the sense of a condition which is capable of either improving or deteriorating. We use “defect” in the sense of a condition which is not considered capable of either improving or deteriorating and which may be either congenital, or the result of injury, or the residual effect of a physical or mental disease. Durham v. United States (1954).

The Durham Rule, however, was only applicable in that Circuit unless adopted by the states. In a subsequent case, the U.S. Supreme Court held “this Court has never articulated a general constitutional doctrine of mens rea , as the development of the doctrine and its adjustment to changing conditions has been thought to be the province of the States.”

What this meant to Brom

Despite the overwhelming scientific rejection of the M’Naghten Rule (even with the addition of the irresistible impulse), and the creation of the Durham Rule by the federal courts, when David Brom went on trial, Minnesota law required, for a defendant to succeed in an insanity defense, that he prove “at the time of committing the alleged criminal act [she or he] was laboring under such defect of reason, from [mental illness or deficiency] as not to know the nature of the act, or that it was wrong.”
Before going into the specifics of Brom’s “mental illness or deficiency,” it is interesting to note that the Royal Commission on Forensic Psychology questioned the irresistible impulse test’s applicability in a hypothetical case remarkably similar to Brom’s:

The sufferer from (melancholia, for example) experiences a change of mood which alters the whole of his existence. He may believe, for instance, that a future of such degradation and misery awaits both him and his family that death for all is a less dreadful alternative. Even the thought that the acts he contemplates are murder and suicide pales into insignificance in contrast with what he otherwise expects. The criminal act, in such circumstances, may be the reverse of impulsive. It may be coolly and carefully prepared; yet it is still the act of a madman. This is merely an illustration; similar states of mind are likely to lie behind the criminal act when murders are committed by persons suffering from schizophrenia or paranoid psychoses due to disease of the brain.

Remember, however, that Minnesota had not adopted either Durham or the 1929 amendment to M’Naghten of the irresistible impulse. Brom was required to meet the high (and outdated) M’Naghten standard.

The People vs. David Francis Brom, or Was Brom Insane?

Now that you, the reader are an expert in the insanity defense, here are the facts presented in Brom’s case. Bear in mind that the jurors in Brom’s case very likely knew less about the history and controversy of the Rule of M’Naghten’s than they did about the rules of Monopoly.
The defense suffered its first setback when it came up against a court rule that precluded expert psychiatric testimony in the first phase of the trial when the expert would be asked about premeditation. David’s defense counsel recognized this rule, but attempted to convince the court that the psychiatrist “would testify in essence that if we take things in an obvious but superficial manner, it would appear that the acts of David Brom were thought about intermittently for months prior to their occurrence,” he argued. “However, that ignores complicated questions with respect to the nature of his thought processes, his capacity to act otherwise, and the origins and other contributing factors that led to his preoccupation with suicide and homicide.”
The court denied this request, ruling that Minnesota precedent held that psychiatric testimony is irrelevant as to intent because “intent must almost always be inferred from the circumstances surrounding a particular crime. Such an inference is the province of the jury. The fact finder is presented with physical evidence related to a given act and asked to draw on its sensory perceptions, life experiences, and common sense to determine whether that act was indeed intentional.”
The defense rested without calling any witnesses.
The jury retired and found that he did commit the murders, prompting the court to move to phase two.
David presented expert testimony from one psychiatrist who concluded that David did not understand that killing his parents and siblings was wrong when he did so and that, therefore, he was legally insane.
“The death of his parents saved David’s life,” testified Dr. Carl Malmquist, former head of the psychiatric division of Hennepin, County Court Services. “In a strange way, they died in place of him. It made him not have to die.”
Malmquist testified that David’s depression caused him to believe that he was hopelessly trapped in an oppressive family situation.
The state offered expert testimony from four psychiatrists. Of these four witnesses, two concluded that David was not legally insane at the time he committed the murders and two did not offer an opinion as to his legal mental illness.
Years later in an interview with the Minneapolis Star-Tribune, Malmquist expanded on the difficulty in proving an insanity defense under Minnesota’s standard.
“The diagnosis is only the door opener,” he said. “You then have to demonstrate more specific symptoms, and then take it to a third level: how those symptoms specifically controlled a person’s behavior at the time. That’s what makes [an insanity defense] very difficult even if you have an [irresistible impulse] standard.”
All of the experts in David’s case agreed, however, that he suffered some form of mental illness or impairment.
It took the jury more than 20 hours of deliberation to decide that David’s mental state did not meet the state’s insanity threshold. As a result, he was found criminally responsible for his actions.
Brom was impassive during his sentencing by Olmsted County District Judge Ancy Morse, who said the case was an “extreme and monumental tragedy” caused by a “pathetically sick, depressed mind.”
In her later decision upholding the convictions, Judge Morse called upon the Legislature to revisit its outdated standard.
“Minnesota is ripe and due for change in the mental illness defense, in order to be in touch with current advances and knowledge in psychiatry and psychology,” she wrote.
Brom is serving his minimum 52-year sentence at a prison near St. Cloud, Minnesota. A biographer, Rev. Terje Hausken, later told the press that David struggles with the aftermath of his crime.
“He knows he did it, but he can’t believe he was capable of it, and neither can I,” Hausken said. “If you met him, you would instantly like him.”

Mistaken Identity

The use of DNA in criminal cases has become as ubiquitous as fingerprints and photo lineups, sometimes to the detriment of the prosecution.
The “CSI Effect,” named for the terribly popular television show that plays fast and loose with the work that real criminalists do, is a recognized phenomenon that has had an impact on some trials where juries have disregarded other evidence and complained about the lack of scientific forensic evidence.
There was a time when the average juror knew next to nothing about DNA evidence and courts were forced to decide whether or not to allow this advanced crime-fighting tool that combines statistical methodology and complex organic chemistry.
Scientific evidence is not simply admitted willy-nilly in criminal cases. Until 1993, when the United States Supreme Court decided the case of Daubert v. Merrill Dow, courts used a method called the “Frye Test.” Named for the case Frye v. United States (1923), the Frye Test required a “general acceptance” in the scientific community of any theory before it could be used in court. Daubert changed that when the U.S. Supreme Court put an end to the dueling experts by giving judges more authority to decide whether or not a scientific claim had validity. Simply put, Daubert requires a judge to look at whether a scientific test has been subjected to a rigorous review by the scientific community.
But enough legal mumbo-jumbo. Let’s get to the facts of the case that led the Sixth Circuit Court of Appeals to apply the Daubert test to DNA evidence for the first time. Oddly, the case isn’t a sexual homicide — perhaps the most common type of case involving a defendant’s DNA. Instead it involves a couple of rival motorcycle gangs and a sad case of mistaken identity.
There has never been much love lost between the Hell’s Angels Motorcycle Club and the Outlaws Motorcycle Club, two of the four largest motorcycle clubs (the others are the Pagans and the Bandidos) in the world. For much of their existence the Hell’s Angels (along with their allies, the Warlocks) and the Outlaws have been engaged in a guerrilla war with various attacks over territories occurring sporadically across the United States over the years.
The two clubs play for keeps. These are not people who simply ride big Harleys and wear leather. The Hell’s Angels, formed in the 1940s in California, and the Outlaws, a Chicago-based association, are organized, generally criminal groups that engage in drug trafficking, murder, and other types of mayhem. They consider themselves to be the 1 percent of the population that cannot or will not live by society’s rules, and because of this much of the violence they are involved in is internecine warfare among various clubs.
Occasionally, as the family and friends of David Hartlaub, a Sandusky, Ohio, record store employee, found out, their violence spills over into the other 99 percent’s world.
The mistake happened in 1988, but the event that precipitated Hartlaub’s tragic death occurred six months earlier when the Outlaws allegedly shot and wounded Hell’s Angel Cleveland Chapter President Kenneth Yates and stole his patched jacket, which, short of murder, is one of the most serious insults one gang can inflict on the other.
That incident occurred outside Joliet, Ill., Reportedly, Yates and another Hell’s Angel had planned an attack against the Outlaws using automatic weapons and other heavy artillery. The attack either never came off or was thwarted and blew back in Yates’s face. As a result, the Outlaws counterattacked and Yates was shot in the foot.
Bikers do not simply show up at the clubhouse and ask to join. Like fraternities, there is a certain amount of pledging involved. Fraternities, generally, do not require pledges to plant bombs or kill people to get a patch. The Hell’s Angels and the Outlaws require their probates and associates to prove their worth before they attain full membership, and that’s why Steven Yee, John Ray Bonds and Mark Verdi were in Sandusky on February 27, 1988.
Yee, an Ohio native, was a full-fledged member of the Hell’s Angels, and Bonds and Verdi were associates who were working their way through the probationary period. They had come to Sandusky to avenge the attack on Yates and had targeted a yellow van that they believed belonged to a member of the Outlaws MC. Bonds had been present at Yates’s shooting.
In fact, the van belonged to Hartlaub, who had absolutely no connection with the Outlaws or any other motorcycle club.
Hartlaub closed down the record store where he was employed in Sandusky in February 1988 and headed to a nearby bank to place the day’s deposit into a night drop box. Little did he know that the Hell’s Angels hit squad had been watching his van and followed him to the bank.
No one actually saw the hit, but a co-worker who followed Hartlaub to the bank came upon the scene moments later and saw Hartlaub lying on the ground. As he tried to exit the vehicle to investigate, a man described as having a “Hispanic appearance” came up to his car, pointed a handgun at his head and told him to stay put.
A second late-arriving witness was able to get a description of the shooter’s car — which she described to the police as a cream or tan color Buick, four door, dirty but in good condition.
The Hispanic man ran off in the direction of a nearby hotel. At the same time, someone in Hartlaub’s van roared away in the same direction.
Police later found the van abandoned behind the hotel with its engine running and lights on. The gun used in the shooting, a MAC-11 9-mm semi-automatic pistol fitted with a homemade silencer and a multi-round clip with a plastic garbage bag taped on to catch the spent cartridges, lay on the floor between the seats. The gun’s serial number had been obliterated; however, the FBI was later able to “raise” the serial number. The gun turned out to have been owned by a former roommate of Yee, who had owned two such guns and testified that they had been stolen from his car when it was parked outside their apartment.
Police found that the gun and the van’s carpet were splattered with blood. However, tests eliminated Hartlaub as the source of the blood. That’s where the DNA testing would eventually come into play because an analysis using DNA tests linked the blood to Bonds.
When the Buick containing Yee, Bonds, and Verdi was several blocks away from the crime scene, Verdi, who was driving, made an illegal turn and was stopped by Sandusky police. The probate, who did not have his driver’s license with him at the time, was placed in the back of the cruiser while officers determined if, in fact, he was a licensed driver. The Buick belonged to Yee.
The trio was allowed to continue on after the cops determined that Verdi was licensed. They did not talk to Bonds, who was in the back seat of the car.
Had they done so, they might have noticed that Bonds was bleeding heavily from a wound caused by a bullet that ricocheted off the van and struck him in the arm.
Thanks to an informant, federal officials learned that the Hell’s Angels were planning a retaliatory strike for Yates’s shooting. They knew Yee was a member of the biker club and that Bonds and Verdi were probates.
Putting together that tip with the traffic stop of Yee and Verdi near the scene of the crime, authorities targeted Yee and Verdi. They eventually came to believe that Bonds was the third man.
On March 9, 1988, local police, along with agents from the federal Bureau of Alcohol Tobacco and Firearms executed a search warrant on Verdi’s house in connection with an unrelated crime. During the search, officers found evidence of a “hit kit” linking Verdi to the shooting of Hartlaub.
The agents subsequently conducted a second search of Verdi’s home. They seized the items they had seen there before, as well as a MAC-11 of the same type as the murder weapon, with its serial number obliterated, a switchblade, a .45 caliber pistol, and a shirt matching the description of one worn at the crime scene by one of the gunmen.
In Yee’s car, which the agents tracked down a few days later, the agents found, among other things, spent shell casings which experts later determined came from the murder weapon, and blood in the back seat which the FBI eventually matched with John Bonds’s blood sample by DNA identification.
Agents prepared an affidavit seeking to obtain a search warrant for blood and hair samples from Bonds. These samples were the basis for evidence introduced at trial, including evidence that the DNA in Bonds’s blood matched the DNA from the blood found in the back seat of Yee’s car. Bonds was subsequently indicted, but fled before he could be brought to trial; he was a fugitive for several months before being discovered in Kentucky.
The men were eventually convicted of federal weapons charges, using the DNA evidence. They appealed the conviction and the Sixth Circuit U.S. Court of Appeals in Cincinnati upheld the use of DNA evidence in the case, marking the first appeals court decision to allow the use of such evidence in federal courts.
All three men later pleaded guilty in state court to Hartlaub’s murder and received lengthy prison terms.