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.
|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
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
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
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
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.... 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
"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
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. ...