Archive for April, 2013

Meeting Louise

Posted: April 29, 2013 in Uncategorized


I never know what is going to happen when I go to sleep. Since David’s death, my dream life has become as vivid as my waking life. They are bizarre, imaginative dreams. Some redeeming; some disturbing. The last dream I had was about Max. Doctors had discovered that there was something wrong with him and that an operation would correct the problem. After the surgery, presumably, he wouldn’t continue to be violent.

This is my wish for Max: that his future would be that he was no longer violent. This is my wish for his past, as well: that he would not have been violent and that my brother would still be alive.

The dream before that one was that David’s murder was not just conducted by Max. In the dream, there was a film being made in New Orleans (land of the birth of conspiracies). David had been involved in helping with the production of the film. I was watching the still-unfinished film, and I saw that my mother’s prized antique baker’s rack had been used; too, her Dzigurski painting was being used as a prop. In real life, both of those items had been taken from our parents’ home by David upon my mother’s death; and now they both reside in my own home; they are a legacy, from my mother to my brother to me, passed down as though they were blood linking us together in death as we were in life.

Watching the film (in my dream) revealed evidence that Max had killed David, but he had done it at the bidding of powerful forces that had ordered him to do it.

Both dreams indicate to me the same meaning; they both say the same thing in different ways. They said that the murder wasn’t entirely Max’s fault. Max was the agent of death, but that hidden forces were responsible for the deed as much as were Max’s own hands that he had used to bludgeon David to death.

This idea – that there are hidden forces that propel us to do acts that our rational minds would never allow – is, of course, the basic premise of Freudian psychoanalysis, out of which the entire field of psychotherapy and much of psychology has grown. It has also become an essential part of the groundwork of our modern criminal justice system. We cannot be found guilty of a crime if we remain blissfully ignorant of the wrongfulness of our act. (Great Britain takes the concept even a step farther; no mother can be found guilty of murder for the first year of her infant’s life, though she may have killed her child.)

Aside from the pain of losing my brother’s company in this lifetime – the mourning that his loss has propelled me into — the question of Max’s culpability has been the most difficult issue that I have struggled with. Coming to know how I think and feel about this issue has been important for me personally; but it has also been important throughout the criminal investigation and proceedings in the determination of the legal consequences for Max. To what extent can Max be held responsible for his act of murder?  What magnitude of damage could be attributed to genes, or early environmental experiences? To what degree is he a product of a failed upbringing? What might be the relevance of legally prescribed psychotropic and medical drugs that Max had taken from a young age? In short, how culpable should a 19 year old teenager be held for his actions, and for how long?

Various research studies have documented that there is a genetic/constitutional component to criminal behavior. Brain-imaging techniques have given us a wealth of information about these factors in criminals: Researchers have accurately predicted who is most likely to commit a crime after release from prison; anti-social behavior has been linked to low presence of an enzyme (MAOA) that results in a smaller amygdala – the emotional center of the brain; impulsive murderers have been shown to have lower functioning of the prefrontal cortex—the “guardian angel” that keeps the brakes on impulsive, disinhibited behavior and volatile emotions. (Serial murderers, on the other hand, do not show this damage, as they need a strong pre-frontal brain to be able to regulate their behavior carefully in order to escape detection for a long time.)

And, we know, too, that early environment plays a role. While we know nothing about Max’s genetic history, we do know that he spent the first five years of his life in a Russian orphanage. He was almost five when he was adopted; his sister, Tatiana, adopted at the same time, was three; both were adopted by a middle-class New Orleans couple.

It is well known that the Russian orphanages are outrageously terrible places. Many of the children who come out of these institutions are severely emotionally and cognitively damaged. A few years ago, a mother put her adopted child on an airplane to Russia, sending him back as though he were a pre-stamped return package. So – yes – I do understand this. But genes do not always rule, and sometimes the negative effects of difficult and damaging early years can be ameliorated or even undone by better later years.

When assistant District Attorney Ernie Chen asked me if I would be willing to speak to a social worker who had studied Max’s case, I agreed with interest.

The social worker was John Muggivan, and as well as being a social worker, he is a former priest.  John Muggivan is also a man not unfamiliar with murder. He co-authored a book about a murder in Ireland. In New Orleans, where he currently resides, he has been called to assist in Capital 1 (death penalty) cases. His usefulness in these cases is because he has training in Mitigation. Mitigation is a relatively new profession, started in Texas, but now spread to Louisiana, the two most gung-ho death penalty states in the country. Mitigation (as opposed to Mediation which has an entirely different meaning) comes into play only in a Capital 1 offense. In the state of Louisiana, a Capital 1 offense is reserved for the killing of a police officer, or for a heinous murder involving killing the very young, or the elderly, defined as over the age of 65. My brother was 67 when he was killed. The DA’s office could have charged Max with a Capital 1 offense. With that possibility looming, Max’s parents hired John Muggivan to study Max’s psychiatric/medical/criminal records and to meet with Max in order to prepare a defense for the possible eventuality and outcome of a trial. The worse case scenario (for both myself – a death penalty opponent — as well as for Max and his family) would be that Max would be found guilty, and that he would receive the death sentence. Muggivan’s job then would have been to show the jury mitigating circumstances in order to save the life of his client.

After a few back and forth brief emails, Muggivan and I began a series of lengthy dialogues, both phone conversations as well as emails. These dialogues with Muggivan were extremely helpful to me. I was reeling from the loss of my brother. I was overwhelmed with not understanding how this fate had come to be my brother’s final destiny on this earth. I was confused, wounded, and uncomprehending.  Muggivan was sympathetic, smart, and had a keen eye and ear for nuances. He also had some original theories about the meaning of growing up gay in the South.

David was gay. I knew he was gay for as long as I have memory. Being gay was no picnic in the south. I remember one time David and three of his friends were driving around the city. David was not yet 17 at this time. The car was stopped by the police; the car was searched, and gay adult porn was found in the truck of the car. All four were arrested. David had supportive parents to call; the rest didn’t. David got out of jail that night; without parental intervention, the other teenagers were sent off to Mandeville to a psychiatric facility for an indefinite period of time (an early 1960’s southern-way of forcibly imprisoning them without the need for criminal prosecution).

Within the course of my conversations with Muggivan, it became clear to me that Max had been a troubled kid, and had grown into an even more troubled teenager who had spent a lot of time – in fact, most of his teenage years — in facilities, state homes, and rehab centers. But I also had the impression that he was not a “thrown-away” kid. His parents were clearly devoted to him and his sister, and had gone to great lengths to try to get both of them what they felt were appropriate therapies.

It was soon established between Muggivan and me that Max’s parents and I had a mutual interest in meeting each other.

The leading question I had – the information that I would be looking for in my proposed meeting with Max’s parents, Louise and Don – was: who is Max? Why had Max become who he had become? And what had happened in this family that might have been related to Max becoming a person capable of unprovoked murder. Friends have asked me about this interest of mine; some consider my desire to understand Max to be an almost morbid interest. My only defense to the inquiry is that essential to whom I am, fundamental to my identity is my need to understand human motivation, human urges and impulses, and the thoughts and feelings that accompany these. It has been my life’s work as a professional mental health practitioner. And, even with this devastating emotional experience I have lived through on a personal level, the sudden and dreadful loss of my brother, I cannot turn away from this aspect of who I am.

My other motivation for wanting to meet Max’s parents was that I thought there could be a healing. As I had come to think about it — a meeting of grief (mine) and guilt (theirs) — that would soothe each of us. I had come to feel compassion for this family, and the plight that has befallen them because of Max’s actions. My sympathy was most especially extended out toward Louise, as she and I shared the common bond of motherhood. I understood from listening to Muggivan speak about Max’s history, as well as talking to those who were involved in the criminal case against him, that Louise and Don had tried – tried mightily – to show up for their two adopted children: to care for them, to help them in their specific challenges of growing up in this new land with a new language wherein they found themselves plopped down.

In Jefferson Parish, an outlying parish from New Orleans proper, and where David resided when he was killed (in his own home, in his own bed), the desire of the family of the victim – in this case, the victim’s closest surviving relative was myself – carries great weight in terms of determining the sentence for a plea bargain. A plea bargain is an agreement between perpetrator, victim or family of victim, DA’s office and judge. Its advantage is that it avoids a trial, which is, at best, an unpredictable affair that is both emotionally draining for all as well as costly to the state. Ernie Chen indicated that the DA’s office would take into serious consideration whatever my recommendation would be for Max’s penalty. If I wanted to avoid a trial, then a plea bargain would be offered. Ernie told me that the DA’s office would want to see a minimum sentence of 30 years, but if I felt strongly about shortening that time, or lengthening that time, my opinion would count. Ernie explained that if Max were sentenced to 30 years, he would come up for parole in 26 years. At that time, I will be 92.

For Louise, 26 years would be far better than the possible outcome of a guilty verdict through a trial that held the possibility of a sentence of life without parole, and thus, no chance of Louise ever seeing her son again except through bars.

In discussing the parameters of a possible meeting with Max’s parents, I specifically asked Muggivan whether or not Don and Louise were angry with either me or David. He said no – no one was angry – there was no place for anger. I felt relieved – because I envisioned that Louise and Don could have blamed David for Max’s plight: they could have come to feel, as many perpetrators and their loved ones do, that the crime committed was not of the making of the perpetrator, but was provoked by the victim, and thus, there comes to be a lack of accountability for the crime. Muggivan assured me that this position was not how Max’s parents felt.

Muggivan explained to me that previously, when he had been hired as a Mitigator, he always met the family of the victim across the aisle of a courtroom. He, and the victim’s family, remained on opposite sides of a legal process. It was in the best interest of both sides, as he put it, to “demonize” the opposing side. He explained that he has often had the urge to reach out to the family on the other side of the aisle, but that the technicalities and inevitabilities of the process have prohibited him from doing that. His interest in putting me together with Max’s parents was in order to prevent this mutual demonization. I felt it to be a worthy cause, and I very much wanted to participate in it.

I flew down to New Orleans on the weekend of Jazz Fest for the meeting. Muggivan picked me up from where I was staying – my cousin Dvosha’s house. The Hoppens’ house is not far from Dvosha’s. When I first walked into their house, I saw that there was a slight edge of artsy-ness to it. It had some unusual design features, and I attributed this to Louise’s history of being in the theatrical arts in NYC for a time earlier in her life. Louise greeted me at the door, and we shook hands. She is a pleasant looking woman, with a nice and engaging face. Her husband Don was not present. He had taken Tatiana out of the house so that she would not be privy to hearing any part of our conversation.

We all sat in the living room. It was night, and dark. But the room itself was darkish – and I had the feeling that it was dark during the day as well. Muggivan started the conversation by pointing out that as far as he knew what we were doing had never been done before. People who should have been sworn enemies — the aggrieved and the aggrieved upon – were meeting to see if there could be some common ground, some healing, It was inspiring to hear him say this. He believed strongly that the dialogue we were about to embark upon could be meaningful to all of us, and he felt privileged, if not also with some trepidation, to finally be a part of this process that he had been instrumental in setting up.

Louise began the conversation by expressing her sorrow at my loss. Truthfully, her words felt a bit perfunctory. Of course she had to say that. But I appreciated that she said it, even if she did not feel it. Even at that early moment of our meeting, I felt from her a kind of hollowness, perhaps a state of emotional shock, and that the damage to her and her future life was going to be ultimately more profound than my own loss – even though it was my brother who was dead, and her son who was still solidly alive.

I started our conversation by telling Louise that I, too, had an adopted child – and that I had developed a theory about adopted children. As

I explained to her, I think that all adopted children – no matter how healthy and responsive their adopted family has been – nevertheless still live with a life-long wound around the issue of separation. I explained that I had seen it in my daughter when she was young, and that while she had largely outgrown her fear of being away from me, I still felt that it could continue to resurface, under stressful circumstances, as a painful and difficult issue for her.

We talked about the early history of her children. She said that when they came, Tatiana was actually in far worse shape than Max. She was referring to serious and never-ending tantrums that had left her exhausted. As Louise and I began to talk, she pointed to the computer sitting against one of the walls, and commented that Tatiana was being home-schooled and that her computer in the corner was where she did her on-line courses. To me, the darkness of the room, and the space in which Tatiana worked, was not irrelevant. It felt as though if I had spent any significant time in that room during the day that I would begin to feel an oppressive air around me.

When the conversation turned to Max, Louise reported (upon Muggivan’s prodding) that Max used to jump on her lap – endlessly – forever it seemed to her. It more than exhausted her; it gave her bruises. (OK – here we have the first piece of information that this is a self-sacrificing woman – who does not want to put limits on her son – even when it is to her detriment and physical discomfort. I know it is easy to next-day-quarterback – but I feel I NEED to be looking at what went wrong here – so terribly wrong here -not just from the first five years in an orphanage, but from all the later years as well.)

Louise described that Max is artistically talented, plays the trumpet, and likes to write poetry and short novels. She described him as charming, polite and respectful. Indeed, this description accorded with not only David’s previous descriptions to me of Max, but also with how David’s neighbors, who had seen and spoken to Max during the time of his living with David, had described him.

I have seen Max’s FB page with postings before the murder, and indeed, as Louise indicated, his drawings are imaginative and skillful. His FB also revealed (assuming that this posting reflects his own words) that he is capable of being thoughtful, and envisioned himself as a caring person: