Tag Archive for Minnesota

Mistakes Were Made

Buschkopf and Lucas mugs

The first mistake Carlene Buschkopf made was deciding that killing her husband, Theodore, for the insurance money was a good idea.
 
The second, and the one that ultimately took her down, was involving a near-stranger in the plot. Carlene and her lover, Arthur Lucas, would never have succeeded with their plan anyway, but Lucas really messed it up when he expected his alibi witness, a casual bar friend who did not like him, to stand up to a police interrogation. Not only did Judy Baker tell investigators everything she knew, she agreed to help the Winona, Minnesota, police put the case closed stamp on this murder for money.
 
There were plenty of other poor choices that feature prominently in this stupid crime. How stupid, you ask? Carlene was so deep in debt that the insurance policy she hoped to collect would not even bring her head above water. As for mistakes, they range from the common getting caught in a lie by police to the amateurish bungling of the first attempt to kill Ted Buschkopf.
 
The final proof that the gods looked down in anger on the conspirators is a fine example of irony. The second plan called for Carlene to be wounded in a random attack that killed her husband in the cheap hotel where they were living. To the conspirators the plan sounded good, but their poor execution ended up tacking on an extra attempted murder charge for good measure.
 
If investigators hear “a robber killed my husband but not me even though I was in bed beside him,” they start making wagers about how many hours are left until the wife confesses. That is not to say it is a crime most often perpetrated by a woman. It will only take a couple of clicks around the Register to find a surprising number of attempts at this crime with the most dire consequences. One man was double-crossed and died at the hand of his hired gunman. Three people — two men and a woman –are on death row, another two women will die behind prison walls and at least one spent the better part of her life in prison. Even these statistics pale in comparison to the murders where the spouse has an alibi, but that is a story for another day.
 
In 1983, Carlene, 33 years old at the time, was the manager of a failed restaurant that Lucas, 45, owned. The Buschkopfs were drowning in debt and were going down for the third time. They were borrowing money from Ted’s parents just to survive. In June, 1983, the Buschkopfs’ land contract on their home was cancelled and the couple was subsequently evicted from the apartment they had rented. On the day of the shooting, July 25, 1983, the Buschkopfs owed $50,000 on a signature note, were facing a tax lien of $4,700 and many judgments and creditors’ claims.
 
Testimony at Carlene’s trial showed on the day of the shooting, besides the clothes on her back, the only thing Carlene owned was half a pack of cigarettes.
 
Naturally the situation created troubles for the couple and that is how Carlene came to be Arthur’s lover.
 
“I always wanted a hug and kiss in life,” she testified at her trial. “Money never meant nothing to me. That’s why Art Lucas meant something to me.”
 
Lucas was in no better shape: He owed more than $82,000 in connection with his business by the day of the shooting, was obliged on additional debts of over $6,000, and was behind on his rent.
 
Things were looking up, or so the conspirators thought: Ten days earlier, Ted, 32, changed his life insurance policies to make Carlene the primary beneficiary. The value of the life insurance was $80,000 — barely enough to make a dent in the debts. Prosecutors presented evidence at Lucas’s trial that he and Carlene planned to use the money to reopen the bankrupt eatery.
 
Carlene and Arthur had been planning Ted’s murder for some time before the actual event, investigators said, and tried several times to kill him.
 
The most interesting attempt is what became known at the trial as “The Shive Road Incident.”
 
Enlisting the help of some friends, Carlene offered Patricia Balk and her boyfriend Peter Fraley a quarter of the insurance proceeds for their help.
 
One night shortly before the shooting while they were out driving, Carlene asked her husband to take a back road for a change. There they came across Balk lying in the middle of the road and a van parked nearby. Ted stopped the car and went over to Balk, assuming she was hurt. As he was bending down to render aid, Lucas and Peter Fraley left the van, intending to knock Ted out with a baseball bat. Their brilliant plan was to place Ted’s unconscious body in his car and leave it on some railroad tracks, where a train would finish the job.
 
Fraley changed his mind at the last moment, and according to testimony at Lucas’s trial, put the bat in Ted’s car. Lucas, however, was not ready to give up. He took the bat and hit Ted over the head.
 
At that point the plot fully collapsed. Rather than rendering Ted unconscious, the blow merely stunned him and his attackers fled in the van. The next day at work, Ted, an engineer at a plumbing company, told a coworker of the incident and showed him the lump on the back of his head. Ted put it down to a failed robbery attempt, not considering the fact he and Carlene were off the beaten path and not a lucrative spot for highway robbers.
 
Two days later the conspirators tried again and this time they would have more success (so to speak).
 
Early on the morning of July 26, a guest at a Winona motel called the manager after hearing someone moaning and calling for help. The manager summoned police, who arrived moments later to find Carlene lying in the doorway of a motel room, clutching her stomach and claiming to have been coshed over the head as well.
 
In the bed police found Ted, unconscious from a .22-caliber bullet wound to the head. When medical personnel arrived, they found that Carlene had been shot in the lower back and had a knot on her head. The bullet had traveled into Carlene’s abdomen and surgery was necessary to remove it. The knock to the head would have been aggravated assault, but even though Carlene agreed to be shot and the shooter did not want to kill her, it is still attempted murder because it involved a potentially lethal weapon.
 
Ted never regained consciousness and died in mid-August, but by that time the entire plot had unraveled. Both Carlene and Arthur were advised while they were already in jail that the charges had been upped from attempted murder to first degree murder.
 
At her trial for killing her husband, Carlene told her version of what happened that morning.
 
“I was hit on the head,” she told the jury. “Well, I tried to get my head up but there was a pillow on my head. I laid there and then I heard a wrestle in the room. I didn’t actually see anything.”
 
She claimed that a man’s voice told her to stay still and when she called out for Ted, “I heard like a kid’s pop gun.”
 
Trying to save her own skin, Carlene threw Balk and Fraley under the bus, claiming the entire crime was their idea and that she and Lucas were merely pawns. She said Balk and Fraley frequently threatened her before the shooting and that Balk was trying to extort blood from a stone because of her affair with Lucas. That blackmail, she claimed, was why Lucas’s restaurant folded in the first place. He was making the payments from his daily receipts. She also claimed that “If I didn’t, they would kill me,” and said on the night of the Shive Road incident, Fraley had threatened her with a gun.
 
Facing the very serious charges of conspiracy to commit murder for hire, attempted murder for hire, and attempted murder for the shooting for Carlene, both Balk and Fraley claimed it was they who had been threatened if they did not cooperate.
 
But what really broke the case wide open was the evidence provided by Judy Baker, a bartender at the place where Lucas liked to run up his tab trying to drown his sorrows.
 
Lucas wamted to use Baker as his alibi, telling police that on the night of the shooting he had been at the bar with Baker and had accompanied her home. At first, Baker made the ill-fated decision to provide the excuse Lucas needed, but when her story failed to match his, she admitted she was lying. Then it all came out.
 
She said she first met Lucas in May of that year. Some time in June of 1983 he began telling her of the financial problems he and Carlene were having. In mid-July Carlene, whom Baker knew by sight only, visited Baker at her home. Carlene also told Baker of marital and financial problems during the visit, but said she hoped to have those problems taken care of soon.
 
Sometime during the week of July 10, Lucas told Baker that he and Carlene had a plan to get out of their financial problems by “getting rid” of somebody, but that previous attempts to carry out the plan had failed. He also told her that the motive to get rid of this person was to collect insurance money. On July 23, he asked Baker to help him with an alibi and offered her $1,000 if she would be seen with him on a particular evening.
 
Two days later, on July 25, he called her at the bar where she worked, again asked for her help, and said he would be coming by the bar. She hung up and said to a co-worker, “Oh, God, that man is coming up here.” He arrived around 7:30 and asked to spend the night with her. She agreed, but said she never saw him again after he left around 9 p.m.
 
She received two phone calls from Lucas, however. She said he called her at about 6:30 on the morning of July 26, and said “It’s happened, it’s over, it’s done.” He went on to tell her that she should tell the police he had been with her between 5:15 and 5:30 a.m. that morning.
 
While her little white lie could have made her part of the conspiracy and subject to charge as an accessory, she managed to escape with a stern talking-to about the importance of being honest when talking to the police and a little request. Police asked Baker to make some phone calls to Carlene and Lucas where they each made incriminating statements. In one, Lucas admitted being at the scene of the crime, but he minimized his participation by denying that he fired any shots. His sole purpose for being there, he said on the tape, was to dispose of the gun.
 
Carlene and Lucas were both arrested on Aug. 1, 1983 and subsequently convicted at separate trials and sentenced to life in prison. For their role in the crime, Balk and Fraley each received three years.
 
In 1984 Carlene walked away from the women’s prison where she was doing time and managed to stay on the lam for a week. At a 1992 parole hearing, prison officials said that she was “not a model prisoner” and had apparently become involved in an on-going feud with another inmate.
 
She died of a lung disease in 2010. Lucas, now in his 70s, remains behind bars.

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.”