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The Defense's Sentencing Recommendation for Kip Kinkel (excerpted)

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At the conclusion of the sentencing hearing, attorney Mark Sabitt presented the defense's recommendation that Kip Kinkel receive less than the minimum sentence of 25 years. In his presentation, he argued that the minimum sentence was appropriate because of Kip's young age, mental illness and neurological impairments. Sabitt also responds to statements made in the state's sentencing recommendation, presented by Kent Mortimore, that Kip was not mentally ill and that he had been planning the massacre for some time.
I would speak briefly to Mr. Mortimore's comments from yesterday ... Mr. Mortimore discussed ... his conception [that] we never would have won the mental disease [defense] had we had gone to trial ... . Based on what I have seen, it would have been a slam dunk. I mean, they have presented nothing. ...

Mr. Mortimore went on to state this is the most violent crime in Lane County history. He analogized to Conan Hale. He analogized to the Dari Mart killings. Neither of those cases involved youthful offenders. It's a much different case. He went on to analogize to Timothy McVeigh, Ted Bundy and Jeffrey Dahmer, and that's just ludicrous. This case is not similar on its facts to either of those cases. Again, those weren't juvenile offenders. The facts of this case are horrific enough without trying to glorify them with other cases that simply don't analogize.

He described our mental defense as disingenuous. We're not running a mental defense here. We're not seeking to have you send him to the state hospital based on mental disease or defect. We're seeking to have you understand his conduct and to apply that understanding to your discretion in this case, based on his youthfulness and his mental disease and his neurologic dysfunction.

Mr. Mortimore alluded to a number of facts that indicated this was volitional conduct. Our experts were very clear and it went unrebutted that ordered conduct is not atypical of a psychotic episode. Whatever the diagnosis is -- and there is some confusion about the diagnosis; I will get to that -- but the bottom line is, any diagnosis within the schizophrenic hierarchy is attended by psychotic symptoms. And what the experts are looking at is his psychosis in terms of the criminal incident, and they're very clear that ordered conduct is part and parcel of psychosis. And it's got nothing to do with volition. ...

The concealment with the trench coat, the concealed knife and taped bullets to the chest, the fact that he drove the car, the fact that he waved off his friends, the fact that he chose what was described as an accurate weapon -- which I would submit was not the best killing weapon he had in his arsenal -- all of these in his opinion were described as evidence of his cognitive function not being affected.

And with all due respect to Mr. Mortimore, his opinion doesn't equate to the expert opinion that the court heard. All of these facts are on the nature of ordered behavior, which was explained by the doctors as consistent with their diagnoses. If the state had some different analysis on it which could be endorsed by expert testimony, they failed to present that to this court.

He got to his discussion in a laundry list of students who claimed to have heard Mr. Kinkel make statements about blowing up the school or going to the school with guns or shooting people. We agreed earlier that the presentence report would be the summary of the evidence for the court from the prosecution, and then subsequent to that agreement -- or to that assertion by the prosecution, I should say, they indicated to the court they would call some witnesses at sentencing. And so essentially what you have in evidence from the prosecution is the presentence report [prepared by Mr. Spears] and the few witnesses they called in the half a day prior to the time we put on our witnesses.

And I would submit to you the large majority of the witnesses who were on the laundry list of people who claim to have heard statements from Mr. Kinkel were not included in the presentence report and simply weren't presented to this court. And it's facts not in evidence, and it's facts you can't consider in terms of measuring your discretion in this case.

I would outline briefly the procedure Mr. Spears used in pulling his report together. And he did a grand job. It's a long report. He had a lot of information to sort through. ... Certainly he had the [DA] reports regarding any of the statements by the young people that were summarized by Mr. Mortimore. In addition to that, he had correspondence with my office, and myself and Mr. Mullen supplied him with a thick file of our own investigative reports, many of those which followed up on prosecution reports about what witness statements were in the case. And Mr. Spears read through all of that and synthesized what he thought was credible and presented that to the court in his summary in the PSI.

A number of witnesses Mr. Mortimore alluded to yesterday as endorsing the notion that Mr. Kinkel made threats about going to the school and shooting or claimed to have some affinity with the Unabomber -- and the court heard the statements; I don't need to go through them all -- just simply aren't in the PSI and are not in evidence before this court. And that whole litany shouldn't be considered by the court. ...

Mr. Mortimore alludes to the fact there's no unanimity of diagnosis among our doctors. ... To the contrary, every expert that looks at this young man comes up with an opinion that is convergent. And that's not just experts retained by the defense. ...

Mr. Mortimore alludes to the fact that he has absolute moral detachment from the criminal conduct. He talks about his talking on the phone, about his telling his mother he loved her, about his reading the morning paper, about his eating cereal, and eating lunch later in the presence of Detective Warthen. The doctors spoke to all of this ordered conduct, and they indicated that it is consistent with a psychotic episode. There is nothing inconsistent about it. ...

Mr. Mortimore indicates Dr. Sack says a precise diagnosis is impossible. Well, I believe technically that's true. What Dr. Sack says is he endorses Dr. Bolstad's validity analysis, which is forty or fifty pages of a detailed diagnosis or a detailed analysis of both the research as well as the facts of this case, and kind of an analysis regarding other cases he's worked on and how they compare to this case. And what he comes up with is a conclusion that it's ninety-five plus percent certain that he's not malingering. ...

Again, each one of the diagnoses which are expressed by the doc -- and it varies, from emergent schizophrenia, paranoid type, tempered by some kind of manic depressive episodes, or certainly depressive episodes over a period of time, or bipolar features to the paranoid schizophrenia ... Everybody agrees it's in its incipient phase. He's prodromal. He's emergent. What is clear is each one of those diagnoses is ... characterized by a psychotic feature to it. And so it really doesn't matter what the diagnosis is in terms of looking at the conduct in this case. What matters is, each one of them is characterized by a psychotic feature, and what the docs looked at in terms of explaining the conduct was the psychosis in the case. ...

Mr. Mortimore alludes to the difference between Dr. Hicks and Dr. Bolstad in their reports about hearing voices. Dr. Hicks explained the defendant never described to him that he heard voices. And Dr. Hicks did say that, but Dr. Hicks also said that the family came to him for family counseling; they didn't come to him for a psych eval. They certainly didn't come to him for a forensic eval. Kip was very guarded throughout those sessions, and I think Dr. Hicks explained he didn't find it surprising that they never got into a discussion of voices. ...

Mr. Mortimore ... He refers to the diary and the front page that describes, "Hate drives me." Let's be clear this isn't a diary; it's one page. ... I would submit to the court -- and I think the doctors discuss this amply -- that the thoughts in that writing, which admittedly are troubling, are consistent with his delusions and consistent with their diagnosis. ...

He claims there's no corroboration of him having heard voices. What he failed to describe or failed to bring to the court's recollection is the report from Mr. Rowan's class. This was a month prior to the incident. Earlier he shouted out in class a statement about having heard voices. And we could offer alternative explanations about that, but I would submit to the court that it's corroborative of his claim of hearing voices.

I would also submit to the court that there is a note that is left at the scene of the folks' residence that certainly is not whole cloth based on his meetings with his doctors or his attorneys after the time he is arrested, that the biggest word on the page is "voices," and it's clear that he attributes some of the aspects of his conduct at least to the voices in his head. ...

Mr. Mortimore indicates he knew when he said he would kill people. I would submit to the court he was crying out for help in the only way that was socially acceptable for him. He made a joke of it with his friends, and that's the only way he could discuss it with anybody.

Mr. Mortimore looked briefly at an analysis of the models for criminal justice, and he discussed briefly reformation and whether there was any hope for reformation in this case and what correctional model was appropriate for this case.

And I would like to look at that in a little more detail. Traditionally, the justifications under criminal law for incarceration are retribution, deterrence, and reformation.

Retribution is what these victims demand, and justifiably so. ... There's no question these victims have a right to retribution in some fashion, as does society. But given the lesser culpability of children for bad actions, their capacity for growth, and society's special obligation to its children, isn't twenty-five years enough in the way of a payback?

Moreover, we can't ignore the mental illness. We can't ignore the neurologic defects and the other aspects that are particular to this case. I would submit to the court, revenge is a consideration the court should have in measuring its discretion in this case, but it's only one consideration the court should have.

Deterrence certainly -- certainly there's some sense the court should do what it can to deter other juveniles from this course of conduct. One wonders if a fifteen-year-old who considers a similar act will be deterred by an appreciation of between a twenty-five year sentence and a two-hundred year sentence. I would submit it's unlikely that any fifteen-year-old who is considering a homicidal act will be deterred any more by two hundred years than he will by a twenty-five year penalty. ...

Finally, if we look to reformation, undoubtedly this is the most important justification for punishment for a juvenile offender. ... Isn't this the bottom line for this court's analysis? If we can reform this offender with predictability and certainty, aren't his needs and society's needs best served by going about it this way? The doctors are clear there's no guarantees. They could not guarantee reformation to this court, nor could they guarantee for any citizen in this courtroom that their conduct could be predicted at some later date. All they can offer is the positive prognosis their training and experience dictates.

There is nothing to the contrary on the record before this court. If the state had experts with poor prognosis opinion, they failed to present them. Anything they have presented has been speculative. Conjecture doesn't substitute for reasoned professional judgment. And again, Bolstad, Sack, Konkol, Lewis, Cohn -- and Sherman, begrudgingly -- all spoke to their hope with respect to reform for this offender. ...

There are at least three reasons why you shouldn't do what the government and Mr. Spears are asking you to do in this case. This offender is mentally ill, and he was mentally ill at the time of his conduct; he's neurologically impaired; and he's a child who was only fifteen years old at the time of this conduct.

I would submit to the court there is clear and compelling evidence of mental illness that is unrebutted by the state. It's supported by the state's own test data. I would ask the court again, where are the state's experts? They had three experts who did -- two full evals of the defendant, and one did at least a partial eval. It's Dr. Suckow, Dr. Johnson, and Dr. Deitz. We never saw one page of one report from any of these doctors. We've never heard one word of testimony from these doctors about their conclusions. ...

The state seemed to change horses on the mental illness issue many times throughout the hearing. I'm still not clear on what their position is on mental illness. They seem to argue at one point that he is not mentally ill. They seem to argue at another point that if he is mentally ill, it's irrelevant. ... And then they seem to argue again that yes, he's mentally ill, and because he is mentally ill he can't be treated and he's a danger to society, so the court can't ever release him. My first question is, what's their theory? If they had evidence to support any theory, they didn't present it. ...

The neurologic impairment, Dr. Konkol -- obviously a brilliant doctor -- the state didn't ask a single question in cross-examination of this doctor. He testified that Mr. Kinkel's neurological defect rises to the level of a mental defect, that his impairment affected his, quote/unquote, executive function, his ability to make well-reasoned choices to reflect in a rational way an alternative prior to acting, his ability to appreciate the ramifications of his conduct. ... He concluded his prefrontal lobes are damaged. These are the focus of the human ability to plan, to prioritize, to sequence, to order, and to interdirect. The neurologic dysfunction, coupled with the mental illness, makes Mr. Kinkel more susceptible to a psychotic episode.

I would submit to the court, even in the absence of a mental disease, the defect is something you should consider in terms of how volitional his conduct was and the nature of his conduct and what we can do in terms of reformation with this offender in measuring your discretion at sentencing. ...

Finally, the court must consider the defendant's age at the time of the offenses. ... There are many reasons why the consequences for a fifteen-year-old should not be the same as an adult who committed several criminal acts. ... Under federal law, the Eighth Amendment standard for cruel and unusual punishment looks to evolving standards of human decency that mark the process of a maturing society. The Oregon corollary looks to whether the statute shocks the conscience of fair-minded people as applied.

I would submit to you, Judge, if you do what the state advocated in this case, it violates both provisions. ... I would submit to you that in a civilized society, we don't lock away our fifteen-year-old offenders without hope. Children are and should be judged by different standards from those imposed upon adults. ... To say that a fifteen-year-old offender should spend two hundred years in prison is Draconian. Although it seems to be authorized by our statutes, it's unconstitutionally cruel and unusual as applied in this case. ... The court must consider Kip's lack of judgment due to his youthfulness in measuring its discretion in sentencing in this case, and I would read you a short quote from the U.S. Supreme Court in Eddings v Oklahoma where Justice Powell wrote:

"Adolescents, particularly in the early and middle teen years, are more vulnerable, more impulsive, less self-disciplined than adults. Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment because adolescents may have less capacity to control their conduct and to think in long-range terms than adults.

"Moreover, youth crime, as such, is not exclusively the offender's fault. Offenses by the young also represent a failure of the family, school, and the social system, which share responsibility for the development of American youth."

... We agree, Judge, you have an awesome responsibility in sentencing this young man, and the nation is looking at what you're doing and this community is looking at what you're doing, as is the state. And I'm glad it's you and not me.

Without hope, there is no justice. In a civilized society, we cannot lock up our mentally ill, neurologically impaired fifteen-year-old offenders and throw away the key without a hope for the future. It's the wrong result for this young man. It's the wrong result for this community. ...

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