Judgment Ridge: The True Story Behind the Dartmouth Murders (52 page)

“Robert! Anything to say?” one photographer shouted before Robert had finished climbing out of the back seat, his feet in leg irons and his hands in cuffs. The photographers needed Robert to look their way, but he padded toward the door. “Robert—give us a look!” another shouted desperately. “We want to see your face!”

Robert gave them nothing; he shuffled into the building, his back to the crowd.

J
udge Smith opened Robert’s hearing with a string of questions he was required by law to ask a defendant who was changing his plea. The

sixty-three-year-old judge had a reputation as a no-nonsense arbiter.

He had once worked as an estate tax examiner for the IRS, and in court he projected the image of jurist as judicial accountant. No flights of rhetorical or legal fancy from him. No extended intellectual repar-tee with counsel over obscure legal hypotheticals.

Except for the voices of the judge and defendant, the capacity-filled courtroom was stone silent. Judge Smith was making sure Robert knew exactly what he was doing—that he was making a competent and informed decision. He told Robert about the legal rights available to all criminal defendants—rights Robert was abandoning by pleading guilty.

“Do you remember what those rights are?”

“Do you want me to list them?” Robert’s voice sounded incredulous, as though Judge Smith was making a nuisance of himself. But the judge wouldn’t rise to the bait.

“Only if you can.”

Robert’s brow furrowed. “I have a right to be . . . ” He paused. “I have a right to a fair trial, to be represented by counsel. I have a right to a trial by a jury.”

The exchange resembled a quick civics lesson on the Bill of Rights. When Robert’s voice trailed off because he was unable to recall the other rights he was waiving, the judge filled in the rest. It was like checking off items on a grocery list.

“Do you give up all these rights?” the judge asked. “Yes, I do.”

Perfunctory and brief, the robotic colloquy hardly reflected the dramatic consequences: Robert would live every remaining day of his life and then die in a state prison. That fact wasn’t lost on Robert’s lawyers. As Judge Smith and Robert finished, Richard Guerriero, who’d been standing next to Robert, turned to the judge. “I have to tell the court that Robert’s decision to plead guilty is against our advice,” he said.

U
ntil the moment Robert changed his plea, prosecutors, the pub-lic, and the press had been gearing up for a murder trial at which

Robert’s attorneys were planning to argue he was not guilty by reason of insanity.

That approach had come as an autumn surprise of sorts, filed for the first time the last day of November, or nearly nine months after Robert’s arrest. Ordinarily a defendant notifies the court of an insanity claim within ten days or so of arraignment. Explaining Robert’s long delay, Guerriero told Judge Smith, “the indications of mental illness were difficult to recognize because of Robert’s intelligence and his particular personality.” A recent psychiatric evaluation, the public defender said, had discovered that Robert suffered from a “severe men-tal defect or disease and that his acts were the direct result of the men-tal defect or disease.”

Guerriero did not identify the specific diagnosis or the psychiatrist hired to assess Robert, but the defense team had tapped into the big leagues. Dr. Dorothy Otnow Lewis was a well-known professor of psychiatry at Yale University and New York University School of Medicine who also practiced at New York’s Bellevue Hospital (the same hospital, coincidentally, where Dr. Eric Manheimer, the Zantops’ close friend, served as medical director).

Lewis, a diminutive, dark-haired woman in her early sixties, had spent years studying the minds of killers—examining up to two hundred murderers by her own count—and she’d testified for the defense as an expert witness in numerous insanity cases. Included on her ros-ter were some of the nation’s highest-profile murderers; she examined Mark David Chapman, for example, the man who shot John Lennon. Lewis met for hours with Ted Bundy the day before the charming se-rial killer’s execution; at the end of the long chat Bundy planted a kiss on her cheek. Lewis returned the gesture of affection, giving Bundy a hug and a kiss. She would later enjoy telling others about the moment—she was the last person to kiss Ted Bundy—and eventually recounted it in a 1998 memoir.

To Lewis, most criminals were themselves victims. She was outspoken in her belief that most murderers suffered from some toxic blend of physical and emotional abuse, brain injuries, and mental illness—to such an extent, she usually concluded, that the killers were

not criminally responsible for their homicidal conduct. She told writer Malcolm Gladwell in a 1997 interview that when she examined a killer she was on the lookout mainly for signs of childhood abuse and bodily scars.

Lewis and a clinical social worker interviewed Robert on Saturday, November 10, at the Grafton County Jail. She conducted tests and, as she always did, got Robert talking about his childhood, his family, and his feelings. The next day, Lewis was in Chelsea, where she took over Dan Sedon’s law office on Main Street to conduct interviews with the Tullochs. She spoke with Mike, Diane, Kienan, and Becky. She learned about Mike’s alcoholism, depression, and his long-ago suicide attempt. She learned about Julie’s brain condition and possible manic tendencies. Lewis didn’t find that Robert had been physically abused as a child. She did, however, report to Guerriero that she found a fam-ily predisposition for mental illness and said Robert suffered from a severe psychiatric condition.

Lewis diagnosed Robert as bipolar, a condition that used to be referred to as manic-depression. Full-blown, the illness is not subtle: a person with bipolar disorder swings between extended stretches of mania and major depression. Manic phases feature hyperactivity, sleeplessness, and a feeling of almost unrestrained and inexpressible euphoria, like being high for days on end, fueled by a seemingly endless supply of energy. The bouts of depression are at the other extreme, featuring a deep, inconsolable, crippling anguish that impairs the ability to perform basic tasks of daily life.

Using Lewis as his expert, and the bipolar diagnosis as Robert’s mental illness, Guerriero’s defense strategy would have revolved around an argument that Robert was hostage to an extreme, manic episode—one that tipped over into psychosis—when he butchered the Zantops.

In Chelsea, the new twist in the case caught people by surprise, and a fair amount of skepticism took hold. It wasn’t as if anyone could recall a time when Robert was running around town for days on end, unable to sleep, soaring down Main Street in a high-energy trance. Nor could anyone recall Robert missing school for any stretch of time

because he was so depressed he couldn’t get out of bed. “He was certainly very bright and mentally complex, but I never saw an insane side to him,” said John O’Brien, his debate coach. In his confession, Jim was pointedly asked about Robert’s moods and mental state, and each answer he gave revealed that during all their time together Jim had never seen any symptoms of bipolar disorder. Pressed further, Jim said Robert wasn’t delusional, wasn’t suicidal, and never mentioned hearing voices in his head. He said Robert knew exactly what he was doing. “He knew what his goals were. He knew that he was killing people and afterwards he knew that he had killed somebody.”

Most saw the new defense, coming so late, as the legal equivalent of a quarterback throwing a “Hail Mary” pass, lobbing the ball into the end zone and hoping for the best as time runs out. But Guerriero and Keshen understood that New Hampshire’s insanity doctrine actually offered Robert some hope—at least in theory. New Hampshire insanity law was unique. The statute said, “A person who is insane at the time he acts is not criminally responsible for his conduct.” That’s plain enough and not unlike the wording that appeared in other states’ laws. What made New Hampshire different was that, unlike in most states, its statute didn’t define insanity. It didn’t spell out any particular legal test or definition juries must follow. A jury could consider expert and nonexpert testimony and weigh the evidence as it saw fit. “There are all tests because there are no tests,” noted one New Hampshire legal expert. In sum, each New Hampshire jury was free to devise its own insanity standard.

Every other state had rules. For example, many had the “right-wrong” test, where the jury’s task was to determine whether the defendant could tell right from wrong at the time of the crime—or, to phrase it another way, whether the defendant had the ability to appreciate the wrongfulness of his actions. Another common test is often called the “volitional test” or the “irresistible-impulse test.” Juries are instructed to decide whether insanity—voices in the defendant’s head, for example—prevented the defendant from controlling himself and conforming to the law.

In the absence of such tests, New Hampshire’s law was a blank

slate. Expansive rather than restrictive, in theory it could result in a jury’s generous interpretation of whether someone’s conduct constituted legal insanity. A jury could find that a moody, brooding, arrogant, grandiose, at times exuberant, allegedly bipolar teenager was not criminally responsible when he killed two people with a SOG SEAL 2000 combat knife.

But for all the insanity law’s theoretical elasticity, courtroom reality was another matter entirely. To succeed, Robert would have to break a long losing streak. The insanity defense had never been successful at a murder trial in New Hampshire when the case had gone to the jury, according to veteran criminal-law practitioners.

In that sense, New Hampshire was like every other jurisdiction in the United States—insanity defenses were long shots. With his trial a month away, Robert was reminded of that hard fact of legal life. On March 12, 2002, a jury in Houston took fewer than four hours to convict Andrea Yates of murdering her five children. The gruesome trial had been the talk of the nation. Yates, who had a well-documented history of mental illness, said she drowned the kids to save them from Satan. Many pundits commented that if anyone was insane it was a mother who killed her own children. Even prosecutors agreed Yates was psychotic, but they argued she was still criminally responsible, because she was aware that killing was wrong. The jury agreed.

The significance of that case wasn’t lost on Robert: If someone as sick as Andrea Yates couldn’t succeed with an insanity defense, how could he? The Yates verdict added to the already growing doubts he was having during the winter about going to trial and claiming he was not criminally responsible for the murders because he was bipolar.

First, there were family matters. Initially he and his parents had cooperated with the insanity defense. But that changed quickly. Why are you doing this to us? Diane asked Robert at one point—or words to that effect—during one of their many conversations early in 2002. She and Mike had begun to understand the reality of what an insanity defense would look like at trial. They would most likely have to testify, and their family’s troubles would be exposed for all to see. Their beloved privacy, already tattered since Robert’s arrest, would be

stripped away completely. Diane, especially, was worried a trial would leave her family shattered. She shared her concerns with Robert.

Jim’s deal with prosecutors in December had also shaken Robert. “That was a whack,” said jail Superintendent Glenn Libby, recalling Robert’s reaction to the news. Privately Robert may have felt devastated by Jim’s betrayal, but after he got over the initial shock he told his jailers and friends he didn’t hold it against Jim. Robert understood, however, that Jim’s cooperation was a powerful new element to the prosecution’s already strong case.

Indeed, on March 6 Robert was arraigned on a new charge of conspiracy that prosecutors had obtained based on Jim’s information. The indictment disclosed the boys’ prior attempts against the Pattis in Vershire and Franklin Sanders in Rochester. In their motion to add the conspiracy count to the murder charges, prosecutors argued that the prior acts and the fact that Robert and Jim eventually fled proved they understood their crimes. “All of the acts . . . are properly admissible in the murder trial as evidence of flight, concealment of the crime, consciousness of guilt, requisite mental state at the time of the murders, and premeditation and deliberation.” The new conspiracy charge was intended as a legal checkmate to the insanity argument, a counter-move to the defense claim that Robert was in a psychotic state and insane when he slashed and killed the Zantops.

More and more Robert saw his case as a loser, so what was the point? He’d thought about pleading guilty as far back as the spring, mentioning that option in the letter he sent to a person close to his jailhouse pal Chief. So it wasn’t as if he’d always been gung-ho to have his day in court. Now the state had Jim’s testimony to bring life to the mountain of physical evidence.

Early in the new year, then, Robert and his family began talking about Robert simply folding. “There was just too much evidence, too much premeditation, to overcome with an insanity defense,” one Tulloch insider explained. “It was like, ‘Yeah, like, I can’t win, so fuck it.’ ” Robert’s lawyers, Guerriero and Keshen, made clear to the Tullochs they weren’t happy with Robert’s thinking. Though they often accept settlements in the interest of their clients, criminal lawyers are

programmed for battle—go to trial, challenge the state’s case, hope for at worst a conviction on a lesser count, appeal a loss. Do all that and more when the client is a seventeen-year-old boy facing life in prison. “Robert stepped off that treadmill, the lawyer mindset,” the source said. “He saw there was no way out.”

The last thing Robert wanted was to go to trial and be the freak at the center of a three-ring circus. “He saw the trial as a benefit to oth-ers, not to him or his family. It would be a dog-and-pony show for the government,” the insider said. Robert had grown to despise prosecutor Kelly Ayotte, the source said, and he “didn’t want to give her a chance to grandstand.” By pleading guilty, he took all that away.