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Dr. Drew

The Insanity Defense; Accidental Death or Murder?; Rapist of Two Unconscious Women Only Gets Two Years of Probation. Aired 7-8p ET

Aired August 24, 2016 - 19:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(END VIDEO CLIP)

[19:00:13] DREW PINSKY, DR. DREW ON CALL HOST: Tonight, the alleged teen cannibal killer is clinging to life as explosive new details emerge that

the attack that killed -- about that attack that killed the Florida couple. Take a look.

(START VIDEO CLIP)

UNIDENTIFIED MALE: His You Tube videos portray him as an all American teen living a healthy lifestyle.

AUSTIN HARROUFF, ALLEGED TEEN CANNIBAL KILLER: Looking and being healthy. That`s what makes me satisfied.

UNIDENTIFIED MALE: So how did Austin Harrouff turned into an alleged cannibal killer? Less than an hour after leaving this restaurant, police

say he attacked a married couple lounging in their garage.

Michelle Stevens died from blunt force trauma. Her husband John was fatally stabbed and beaten. And now newly-released dispatch tape confirms the

suspect was also biting off chunks of John`s face and abdomen.

UNIDENTIFIED MALE: Can fire rescue go in?

UNIDENTIFIED FEAMALE: No, sir. I`ve got this guy wrapped around him, and he`s biting him.

(END VIDEO CLIP)

PINSKY: Austin Harrouff remains presently in a critical, non-responsive state. His father says liver and lungs are in failure. Possibly caused by

an unknown chemical the son -- his son may have ingested while he was in the victim`s garage.

Joining me, Yodit Tewolde, attorney, Loni Coombs, attorney, Jena Kravitz, neuropsychologist, and via Skype, John Cardillo, radio host, former NYPD

police officer. Jena, the one thing I was thinking here is that, you know, a lot of people don`t realize that when somebody`s in a manic state,

that`s when they`re more likely to commit suicide if they have bipolar disorder. Not depressed, but manic. They will do something impulsive that

seems crazy like ingesting turpentine or something in somebody`s garage.

JENA KRAVITZ, NEUROPSYCHOLOGIST: Right. But I think the reports here, Dr. Drew, are that this young man may have had a psychotic break before or even

have a diagnosis of schizophrenia that was untreated and that can also increase the risk of suicide attempt.

PINKSY: Absolutely. In fact, the father of the suspect says the son was suicidal the day of the attack. He also says his son showed him a

pocketknife and said something bizarre, quote, "I will protect you, dad. They`re out to kill you." There you go, Jena. That`s more that

schizophrenic setting of paranoia.

KRAVITZ: And he meets all of these risk factors, right? He is a male under the age of 30. He is a high achiever. He has got a high I.Q. And

potentially, if he did ingest something after he did these brutal attacks, then he may have had some insights or some awareness of the impact of the

schizophrenia on his life.

Because oftentimes, people in psychosis or dealing with schizophrenia don`t want to live like that. And that`s why that suicide risk is higher.

PINSKY: And Loni, there is another possibility here which is that the dad is setting up an insanity defense, right?

LONI COOMBS, ATTORNEY: Absolutely. He seems to be kind of lining up the factors. He talks about how a block before his son got to the victims, he

took his shorts off. He was walking in just his underwear. He also put out there that the son severed his thumb before he got to the garage where the

victims were, saying that he was already trying to harm himself.

But the police corrected that and said actually, he cut his thumb when he was in the garage during the time he was stabbing the victims. As we know,

when you use a knife to stab people, your hand can very easily slip in the blood, and you end up cutting yourself, and the police say that`s how he

ended up severing his thumb.

PINSKY: Loni, I thought they found his shorts a half mile away or something with a lot of blood on them. That would have been before the

attack, right?

COOMBS: Right. However, the police said they have not confirmed that`s his blood. They don`t think that was his blood. So that still is up in the air.

The father saying one thing, the police are saying another thing.

PINSKY: As you said, when the police arrived, Harrouff was in his underwear, he was on top of the male victim in the driveway. He was

reportedly unfazed by three tasers, a K-9 ultimately subdued by several officers. John, good news, bad news. Good news is they didn`t have to use

lethal force. This is not another one of those stories, at least.

JOHN CARDILLO, RADIO HOST, FORMER NYPD POLICE OFFICER: Yeah, it`s not. This is only about 80 miles up the road from me, Drew. I know that P.D. and the

agency and the neighboring agency. I think we also have to think about drug use. This is a rural county. Not much to do. A lot of drug use and drugs

like Flakka, you know, synthetic methamphetamine among kids this age.

The reason they didn`t use deadly force, when I`m told, it was a confined garage. The K-9 was already on him. So they didn`t want to shoot their

dog. That`s one of their partners. And there were several deputies. A little different than the case in downtown Miami a few years back. It was a

lone police officer with a pretty aggressive assailant.

And in this case, what I was told, is that the officers are responding, the deputies could see that the victim was already deceased. In the Miami case,

the guy was groaning, he was alive. And so, they made the decision to not shoot their K-9, not fire rounds in a closed, confined garage and grab

this kid off, and the tasers didn`t work.

[19:05:00] PINSKY: Yodit, let`s say John is right and there was Flakka or N-bomb or one of these drugs that are known to cause extreme psychosis,

agitation, even report of superhuman powers, you know, been sort of implicated other face-eating scenarios. If he had taken those drugs

voluntarily, his defense also breaks down, doesn`t it?

YODIT TEWOLDE, ATTORNEY: Right. An insanity defense is -- is when a criminal conduct results from a severe illness or defect so that the person

doesn`t realize that what they are doing is wrong during the commission of the crime.

And so absent a finding that he actually does suffer from a severe illness, his defense -- defense would break down. An insanity defense is very

difficult to prove. And only about 1 percent of defendants actually use this defense and an even smaller number of cases actually succeed in using

this defense.

PINSKY: We are hearing -- we are hearing that this -- for people trying to interpret what they`re hearing about this kid being in ICU right now and

bleeding from his esophagus. He may have taken something caustic in that garage causing erosion of his esophagus. That itself is not enough to cause

persistent bleeding.

If he has liver failure, that can cause bleeding, and cause varicose veins in the esophagus that can bleed, or he could be in the final stages of

really dying from shock, which is diffuse intravascular coagulation called DIC where people bleed from all over the place.

Now, in this case, the sheriff`s office plans to charge the suspect with two counts of first-degree murder, one attempted murder for stabbing the

neighbor who intervened. So, Yodit, I didn`t quite get from you whether or not you felt an insanity defense was really a possibility or a probability

here?

TEWOLDE: Well, we don`t know all of the facts. Considering that the family is now coming out with the fact that schizophrenia is actually something

that runs in the family...

PINKSY: I heard that. Where did you hear that? I did not hear that. That`s important information. Okay. Interesting.

TEWOLDE: Right. So -- so again, since we are getting that information now, I do see that an insanity defense could be raised. The problem with an

insanity defense is it`s extremely hard to prove on the part of the defendant. And they have to prove that they suffer from a severe mental

defect. So much so that at the time of committing the crime, that individual didn`t know that what they were doing was wrong.

So, we need more facts, but as of right now, I`m not sure what to think. I mean, he`s still in the hospital. The police are not releasing any

information concerning the treatment that he is getting. So we just don`t know, but it`s going to be...

PINSKY: Believe me, he is not getting mental health treatment. He is unconscious, in shock, on a ventilator. Loni, you want to comment on this?

COOMBS: Yeah. Even if he has this mental illness, remember, he has to prove that he didn`t understand right from wrong. And one interesting fact

is when the police did come to him, he gave them a false name, even perhaps a false I.D.

So, that could be showing that he knows what he did was wrong. He was trying to avoid being caught, you know, from this. There`s also this very

weird preoccupation with trying to say and proving to people, I`m not on drugs, I`m not on drugs.

A few days before this happened, he posted on the internet, I don`t need to do drugs. When the police got there, one of the first thing he said was go

ahead and test me for drugs. You`re not going to find any in my system. That really doesn`t make sense either.

PINKSY: Next, we will hear from the alleged killer`s dad. He says he knows what prompted his son`s shocking behavior. And later, should a murder

victim`s sex history be revealed to help her killer go free? Back after this.

[19:10:00] (COMMERCIAL BREAK)

(START VIDEO CLIP)

UNIDENTIFIED FEMALE: Are either of them injured? Can you tell from where you are?

UNIDENTIFIED MALE: Yes, there`s a girl laying on the ground. He beat her up. I ran over there. I`m bleeding profusely. My wife`s looking at my back

and it appears I got punctured.

UNIDENTIFIED FEMALE: You`re stabbed in the neck, in the head. Three -- three puncture wounds.

UNIDENTIFIED MALE: That call was made by a Florida man who tried to save his neighbors from a brutal and unprovoked attack. Police say 19-year-old

Austin Harrouff was agitated when he stumbled upon John and Michelle Stevens in their garage.

Harrouff allegedly beat the couple and used a switchblade to inflict fatal injuries. A responding deputy found the suspect on top of the male victim

in his driveway. He was reportedly biting and removing pieces of the victim`s face with his teeth.

(END VIDEO CLIP)

PINSKY: The You Tube channel that appears to belong to that alleged teen cannibal killer features dozens of videos from karaoke singing to warnings

about steroid use. Take a look.

(START VIDEO CLIP)

HARROUFF: I`m going to talk to you about why I don`t do steroids and the reason is I don`t want to. You know? I don`t feel like, I don`t feel like

it be beneficial for me to do steroids. You know? It just wouldn`t because it -- it damages my health. I feel like I have to depend on it every day.

That`s a life not worth living for me, you know?

(END VIDEO CLIP)

PINSKY: Just five days after that video was posted, the deadly attack occurred. Back with Yodit, Loni, Jena, and John. Loni, is it possible those

videos will be used in some fashion during the trial?

COOMBS: Well, sure. I mean, they could be. Here`s the question. Is this a psychotic break, a mental illness, or was this caused by the drugs that he

took? We`ll know that once we get the toxicology report. So far we know he didn`t have any methamphetamine or marijuana.

PINSKY: What if it`s both?

COOMBS: Well, that makes it a very hard question for the jury. It`s up to the jury to decide. Because if you take something and then, you know,

willingly, voluntarily, and that ends up causing to you act crazy and do you something like this, then you can`t claim necessarily the insanity

defense.

Because did you that willingly. It is still part of your choices that you made. It will be up to the jury to really have to try and parse that out.

That`s very difficult to do.

PINKSY: Jena, as you know, these things are commonly what we call concomitant disorders. Somebody gets schizophrenia, does something

impulsive, schizophrenia gets worse. What`s causing what. It`s essentially impossible to ascertain many times.

[19:15:00] KRAVITZ: It`s really hard to tease out. It`s even harder at times to treat. But, Dr. Drew, those videos that we just saw, those look

manic. You don`t see people changing their accents and sort of perseverating on this drug use. I think Loni was right about that. I think

that is a certain defense mechanism that people will use when they`re actually using those things.

PINKSY: Also the grandiosity too, right? I mean, that`s not the kind of -- I don`t see kids that age normally posting videos like this. It could be

schizophrenia onset too. But I agree with you. The sort of the weird vocalizations and stuff and -- I don`t know.

It sounds manic to me. Drug tests initially showed no heroin, methamphetamine or cocaine. But you can`t detect the stuff that Jena was

talking about like the Flakka or the N-bomb. Those screening may come back within a few weeks.

But, John, you know, all this stuff, as you mentioned, law enforcements are increasingly frequently called upon to deal with this stuff, and they never

know what they`re dealing with.

CARDILLO: No, I mean, Martin County is a very peaceful place. There`s one relatively large town Stewart which is really a boating community. The rest

of the county is pretty much farmland. Southern part borders Jupiter, Florida is relative affluent.

They don`t come across -- some of these come across a guy biting someone`s flesh off. I read face. When deputies told me he was also biting the torso

and got into the body cavity from what I was told. That`s brutal stuff.

PINSKY: What do you think when you come upon something like that?

CARDILLO: What they did is what you would do. They immediately released the K-9 and then they started tasing. I think they were pretty stunned. As a

cop you see a lot of bad things. This is among the worse I ever heard. And so you kind of try to make sense of this. This is something you may go 30

years and law enforcement never encounter. So, I think this was one of those situations you don`t really train for.

PINSKY: The father of this kid did say he thought the boy had a psychotic break. But he did not believe drugs were behind the attack. John, do you

buy that?

CARDILLO: You know, I think, pretty my investigator head on. The dad -- the dad immediately seems to have jumped to my son didn`t do any of the alleged

things. He didn`t bite the victim`s face. His statements -- the dad`s statements are that of a dad, right? He`s probably in shock. Contradicting

even what the deputies put in the report they witnessed personally.

PINSKY: Yodit. Go ahead. Jena, go ahead.

KRAVITZ: You know what, Dr. Drew? Last week I was hearing, we were talking about this, and I thought this was a kid who was typically trying things.

You know, common of college age students. And this week knowing what we know now, it does look more and more like mental health.

PINSKY: Yeah. Mental health and/or drugs. Loni?

COOMBS: Well, I remember, too, this horrific behavior we are talking about where he was eating the victim. This was after another witness tried to

stop him. He stabbed that witness. That witness got away. So, he knew that police were probably on the way and he continued to stick with that victim

and eating the victim.

PINKSY: This is not what you call purposeful behavior. Yodit, police say they don`t have a motive either. Is this going to be in any difficult to

prosecute? We`re talking about the defense. But how about prosecuting this case?

TEWOLDE: Well, I mean, I definitely as a former prosecutor never go into a trial thinking a case is a slam dunk. It`s always going to be a hard

burden for the state to prove because of course they do have that burden. But with the evidence that we do have, the information that we do have, I

don`t necessarily see it being an issue since we do have a living witness, the neighbor who saw what was happening to testify against the defendant.

But, you know, before the father comes on, I do want you to ask, Dr. Drew, if any of us can ask why all of a sudden he has all these answers when this

kid showed so many signs, so many warning signs, knowing what the family history is with mental illness, according to the father, why nothing was

done to get his son some help before something like this happens?

PINSKY: And -- and Yodit, I`m so glad you wrapped it up with that point because that is the issue for me in all of these cases. There is ample

opportunity to intervene before somebody deteriorates into a profound crisis. This is as bad as somebody can get. This is where they deteriorate

into which is -- you know -- it can be very bad. These are illnesses.

The brain is not working right, whether it`s drug, schizophrenia, bipolar, some combination of these things. It`s something that can be treated. It`s

a medical disorder. It`s nothing to be ashamed of. It`s nothing to deny.

If you have family history particularly of addiction, bipolar disorder, schizophrenia, and you see a child of late high school and college age who

is behaving strangely, having changes in their personality, get them evaluated. It can go very bad.

Next up, a murderer wants his victim`s sex history exposed for everyone to look at so he can get out of prison. And later, why isn`t a teen who

assaulted two underage girls were passed out drunk. Why isn`t he going to jail? Back after this.

[19:20:00] (COMMERCIAL BREAK)

(START VIDEO CLIP)

UNIDENTIFIED MALE: This is the apartment that the defendant lived in with his girlfriend at the time back in October 2012. It`s in this apartment

that Lizzi Marriott was raped and murdered.

UNIDENTIFIED FEMALE: By strangling her and/or suffocating her.

UNIDENTIFIED MALE: It`s from that point that the defendant and McDonough dumped Lizzi Marriott`s body into the Piscataqua river.

UNIDENTIFIED FEMALE: I can tell you that they were familiar with one another and this was not a random incident.

UNIDENTIFIED MALE: We are so sad to this tragedy.

UNIDENTIFIED FEMALE: No matter what comes out, she didn`t volunteer for this.

UNIDENTIFIED FEMALE: Do you find the defendant guilty or not guilty?

UNIDENTIFIED FEMALE: Guilty.

(END VIDEO CLIP)

PINSKY: Seth Mazzaglia strangled 19-year-old Lizzi Marriott. He had sex with her after she was dead. Mazzaglia claims he accidentally killed

Marriott during what he call a consensual sex act involving restraints. Now, he`s appealing the guilty verdict.

I`m back with Yodit, Loni, Jena, and joining us, Pat Lalama, managing editor, Crime Watch Daily with Chris Henson. Pat, what is the latest?

[19:25:00] PAT LALAMA, MANAGING EDITOR, CRIME WATCH DAILY: I think this is going to be an extraordinary argument, Dr. Drew, and it`s gonna be a rabid

one, so I`m ready to duck when we get into this debate. Because it has to do with the coveted shield law which protects all women, or anyone, if you

want to argue that, from their sex lives being used as a weapon against them.

So, essentially, I`ll try to make it as simple as possible. Mazzaglia says, hey, this was a sex game. There was no really basic intent to kill this

woman. And it was consensual. And she was into it. And so if the jury had known that first go around, then I wouldn`t have had life in prison.

I think we need to open up her records to show that she did have this past. Therein lies the argument. Is there zero tolerance when it ever comes to

opening up those shield laws?

PINKSY: Yodit, release it or not?

TEWOLDE: You know what? This is really hard. Let me tell you why. Obviously, these laws were put in place to remove the barriers that kept

women from coming forward about being raped and to actually win convictions.

However, I do understand the criticisms, especially me being a defense attorney now, where it can deny a defendant`s right to a fair trial. How

can he honestly confront his accuser if he can`t get into situations or evidence which would mean her past or an accuser`s past sexual history, if

that is what is critical to his defense.

So, I understand both sides. I`m eager to see what the court is going to rule on this because it will change cases forever.

PINSKY: Loni, release or not release?

COOMBS: Do not release. This judge has gone out on a limb here. During the trial, the defense made this argument. They said this was a sex game gone

bad. We need to be able to talk about the victim`s sex life. The trial judge said no. The defense appealed it. The appellate court said look at

this again.

The trial court again said, no. It`s irrelevant to the case. It`s inadmissible. Now, goes up to the supreme court and the supreme court on

its own motion said, you know what? You need to unseal these documents even before I make a ruling on the issue.

Now, the proper way the judge should be doing this is all this information is already submitted to the judge, unredacted but under seal. The judge can

look at it in camera, in his chambers, and decide at that point, is there something here for the defense or not? If the judge rules against the

defense, you never unseal those documents.

If you unseal them now and then the judge says, you know what? this shouldn`t have ever come in, it`s too late. The victim`s privacy has

already been violated. And believe me, every victim of a violent crime, a sexual violent crime is watching this case.

PINSKY: Six weeks before the murder...

UNIDENTIFIED FEMALE: He`s not unsealing them.

UNIDENTIFIED FEMALE: That`s right.

COOMBS: That`s what he`s asking to do, is that it be revealed, that`s exactly what he`s asking to do.

UNIDENTIFIED FEMALE: No, no, no, but they`re having arguments.

LALAMA: I was just going to say, September 21st are the oral arguments, and that`s probably when you`ll hear why we think they need to be opened. Any

judge, I do agree, any high court judge should do due the diligence and look at the facts. Because the family -- you can imagine how torn apart the

family is about this matter, who wants this dragged through the public?

But, you know, they are saying anything about her sex life is unreliable. They are arguing that a lot of it isn`t even true. You have to go through a

whole process of determining when, where, why, and with who.

What I do see and I asked a lot of people today hearing the news what their thoughts about it, and a lot of people do see that it`s an interesting

argument on the part of the defense. The problem is do we open the floodgates whereby, you know, we basically rip to shreds the shield law

which is so important.

PINKSY: Here is a text, a text message this guy sent to his girlfriend before the murder, part of it, quote, "the second price is this, you

choose a friend, any of yours will do, and you offer her to me, that I may do anything I wish with her while you watch and assist in any way I might

command. Ideally this friend watches your punishment and helps, but I`ll settle for someone who I interact with directly while you watch."

Jena, it`s getting suspect.

KRAVITZ: Yeah. This is somebody who is definitely a sadist, right? This is somebody who enjoys inflicting pain, obviously. Typically, people with

these type of sadistic preferences do this because they sort of crave this feeling of power, authority, dominance, and of course that leads back to

childhood issues of feeling weak and insecure.

But, I thought what was so interesting about these messages was just how chilling they were and how serious he takes that.

PINKSY: Yes. We have more to show you. The girlfriend testified against him. She gave a rambling, confusing version of the events of what happened

when they brought this girl, Lizzi, back to the apartment. Take a look.

(START VIDEO CLIP)

[19:30:00] UNIDENTIFIED MALE: That included restraints. Correct?

KAT MCDONOUGH, KILLER`S EX-GIRLFRIEND: Yes.

UNIDENTIFIED MALE: And -- and oral sexual act. Correct?

MCDONOUGH: The second one? No.

UNIDENTIFIED MALE: Were you were on top of Miss Marriott?

MCDONOUGH: Yes, but there was also duct tape.

UNIDENTIFIED MALE: Indeed.

MCDONOUGH: Because I remember that detail because that was a detail that I hadn`t had in my initial story. That was the detail that you guys brought

up and said what about the duct tape. And I was like, duct tape? So I said that her duct tape was not -- her mouth was duct taped shut. Again, that`s

not something that actually happened.

(END VIDEO CLIP)

PINSKY: Oh, my God. Pat, I can`t -- I can`t follow any of that. That`s not a good witness.

LALAMA: Well, none of these witnesses. In fact, there were 33 witnesses. And one of them, was a very good friend. She is a tarot card reader. There

you go for characters, right? Not that I`m condemning tarot card readers. But she was called by Seth Mazzaglia to come over after it all happened.

She comes over with her boyfriend and they see the body. And they talk about calling for help, but he doesn`t and neither does she, but she

claimed on the stand that Seth, the defendant, says, oh, my God, I`ve gone too far. Oh, my God, I`ve gone too far.

Which might imply that in his mind it was just a game that went too far. And his whole argument, Dr. Drew, is that there was no intent. That this

was an accident and he could prove that it was just a game that got out of hand, that would mitigate it. It`s not a defense for what happened, but

would mitigate his life without parole.

PINKSY: All right. We`ll keep this conversation going. And later, two underage girls -- underage drinkers sexually assaulted while they were

drunk, unconscious. So why did this teen who did it, why is he not being punished? Back after this.

[19:35:00] (COMMERCIAL BREAK)

(START VIDEO CLIP)

UNIDENTIFIED MALE: He attacked, he raped, and he murdered. Without warning beforehand, with absolutely no mercy during, and with absolutely no remorse

afterwards.

UNIDENTIFIED FEMALE: It`s been nearly four years since Lizzi Marriott was raped and murdered by Seth Mazzaglia, her body dumped in the Piscataqua

river. He described his relationship to girlfriend Kat McDonough as one of master and slave and cited a particular text he sent to Kat to find a

female friend for his sexual pleasure, even mentioning that friend would die in the process.

(END VIDEO CLIP)

PINSKY: Seth Mazzaglia was found guilty of raping and murdering a 19-year- old college sophomore after his girlfriend lured her back to their apartment. He claims he accidentally killed her during a consensual sex

act. Now, he is appealing he wants the details of the victim`s past sex life made public to help him get out of prison. Back with Yodit, Loni,

Jena, and Pat.

Now, the girlfriend, Seth`s girlfriend`s posted an advertisement to sex websites looking for a sex slave. Here is part of it, quote, "my lord and I

are looking to acquire a live in slave for sexual pleasure and house work. He is the Dom of the house and the master. He is also 30 years old. I am a

nymphomaniac switch and I switch from slave/sub/domme, so you may never know what mood I`m in. That is how our household works. We also have a

cat."

Pat -- Pat, I mean -- I mean, we also have a cat.

LALAMA: Damn I`m boring (ph). I`m boring (ph). I have three cats and boring (ph) listening to that.

PINSKY: You know switch? You`re not a switch?

LALAMA: My poor husband, bang. But, you know, here is the question with all of this. And what`s missing to me, unless someone else on the panel knows

exactly how she got there, my understanding is she was a University of New Hampshire student. And I had read that she was a colleague somehow of Kat

McDonough. I`m not clear how she was lured there.

But if she was answering an ad, wouldn`t that speak to the issue of, you know, consent. But one of the things I think maybe the lawyers, I would

like to hear them discuss is, you know, the defendant is saying my right to a public trial in this particular case trumps the victim`s right to

privacy. And I think...

PINSKY: Loni wants to address. Go ahead, Loni.

COOMBS: Let me clarify this. The trial has already happened. He`s already been convicted. He is raising on appeal the issue the judge didn`t allow me

to go into this. The judge will still rule on whether that was a mistake to not admit this information.

The problem right now that everybody is up in arms about, and I`m reading from the father`s -- the father`s brief right here is that the judge

decided while this question was pending that he was going to order on its own motion that the sealed material be publicly released.

What in the world? Even the defendant wasn`t asking that. Usually that`s asked by the media. And he says, what? The public has a right to hear this.

This is a judge who still hasn`t ruled yet on whether it`s admissible or not saying, hey, I`m just going to release it to the public right now.

And everybody is saying, are you kidding me? That totally violates the whole purpose of the rape shield statute law. That`s the issue. It`s not

he`s going to have his chance to have this issue on appeal heard. That`s gonna be heard.

The question is, do we -- this point release all of the victim`s private information to the public before the judge has even made that ruling? And

that`s why people are upset.

PINSKY: I suspect there`s something there. I`ve got letters between Seth and his girlfriend. These were shown in court. You get a glimpse of that

relationship. Here`s a reenactment.

(START VIDEO CLIP)

[19:40:00] UNIDENTIFIED MALE: To my willing, I will dominate you, brutally, without mercy, leaving my marks upon you. You will be known as mine by the

way I tie you, bind you, others will watch as I command your submission, as you fall prey to my whims.

UNIDENTIFIED FEMALE: To my love, I want you to attack me. I need to be dominated. I have clothing you can tear off me, even cut off me. I`m

aroused and I want to be hit and thrown down. I really want to be tied up. Tight. I will be your submissive. Love, the willing.

(END VIDEO CLIP)

PINSKY: Now, Jena, it`s possible to evaluate those letters and not be sex negative and -- and not be pejorative and say this is potentially

dangerous.

KRAVITZ: Absolutely. You know, in a lot of these types of relationships, there are boundaries there, special words that people use when they are

hurting or they are in pain. I don`t see anything like that here. And I`m sure they had some -- some deal like that. But, I do wonder how the victim

got involved here, and -- and what her role was in wanting these things.

PINSKY: Yeah. Pat, your question is a good one. I don`t have an answer for that, how she was lured in. I find it curious that the girlfriend wasn`t

held more accountable. But there you go.

LALAMA: Well, she -- but she testified against him. She didn`t have anything directly, as you know, easy here. She lured the woman. She helped

dump the body in the river after they didn`t call 911 for a few days or do anything to get any kind of help. You know, by testifying against him,

obviously, that was a few cards in the hand of the prosecutor`s.

PINSKY: All right. Next, I got yet another controversy involving illicit sex, unconscious victims, and this time, no jail time for the guilty. Back

after this.

[19:45:00] (COMMERCIAL BREAK)

(START VIDEO CLIP)

UNIDENTIFIED MALE: David Becker had been charged with two counts of rape and one count of indecent assault stemming from a house party in April

where drinking had been going on. According to court documents, Becker allegedly penetrated the two victims with his finger while they were

unconscious.

Becker was allowed to plead guilty to a lesser charge of indecent assault and battery. While the rape charge was dropped, the D.A. still recommended

a two-year prison sentence based on the facts of the case. However, the judge after listening to both sides, sentenced Becker to probation for two

years with conditions, thus avoiding jail time.

(END VIDEO CLIP)

PINSKY: Two young women sexually assaulted while unconscious. Their attacker only gets two years of probation. Back with Yodit, Jena, and Pat,

and joining us, Judge Alex Ferrer, attorney, former circuit court judge. And Alex, help me here.

I`m so glad you joined us because it seems like there seems to be so much judicial discretion around cases like this where we are constantly looking

at them, evaluating them, and thinking why did this guy only get that and this guy seems to get something very different? It all seems to fall on the

judge`s decision. Help us.

ALEX FERRER, FORMER CIRCUIT JUDGE: That`s true. Judges have a lot of discretion when there are not minimum mandatory sentences to impose a

sentence that they feel is appropriate under the circumstances. In doing that, judges take into consideration a lot of factors.

They take into consideration the age of the individual, the priors, did they have prior incidents or is this an isolated incident? What the victim

wants? That`s another big part of it, depending on the type of crime. You know, the -- the rape or sexual battery spectrum is very wide.

You can have a person accused of sexual battery because they are 18-year- olds and they have sex with a 16-year-old girlfriend. In that particular state, age with sex with anybody under the age of 18 is considered a rape.

You can have a violent break into your house and, you know, stranger rapes a woman in her bed and they`re both may be referred to as rape, but they

are different crimes and judges treat them very differently.

So of course, they focus, you know, in that second scenario in that worst- case scenario, the judge isn`t going to give much weight to what a victim wants in that scenario.

If a victim wants to be lenient towards that, you know, horrible individual, the judge is gonna say no. We are interested in protecting

society against this individual.

PINSKY: Is there a converse where the victim wants to be aggressive and the judge goes on and says, this is a kid, things got out of control, he

identifies too strongly with the perpetrator?

FERRER: Yes, absolutely. We saw that not more than a month ago with the case of Brock Turner where he dragged that woman behind the dumpster and

the judge apparently gave a lot of weight I guess to the fact that he was a 19-year-old.

Frankly, you know, I find a lot of fault with that. I was 19, I became a police officer. I knew what I was doing. He was 19. He dragged a woman

behind a dumpster and raped her. He knew what he was doing.

PINSKY: That -- that range is what non-judges and non-attorneys I find rather confusing. And Pat, the communication between this current case,

David Becker and his victim, may have impacted the sentence, is that right?

LALAMA: Well, allow me to read to you. Here are text message exchanges between David Becker and one of the victims. Becker saying, just wanted you

to know that I really am sorry. The victim responding, don`t even worry about it. It`s all good. There`s also a victim impact statement where the

other victim said she didn`t believe jail was necessary.

One of these things that I would like to add because I think it plays a role, but I`m not a lawyer, the fact that I don`t believe -- if I`m wrong

somebody correct me. From what I read, the victims did not report this to anyone. There was a rumor going around the school that this may have

happened.

So, one of the officers, one of the campus officers approached the victims. And that`s how it all came out. Does that play a role if the victims don`t

go screaming about it and they are sort of forced to respond to this?

PINKSY: Yodit, does that have an impact?

[19:50:00] TEWOLDE: Well, I mean, victims are damned if they do and damned if they don`t. I mean, if they come forward, then they get scrutinized. If

they don`t come forward, it could be a myriad of reasons why they don`t, and one of them is getting a backlash from society.

But, I will say this. Absent a law that says that anybody who commits a rape has to go to prison. Probation will always be an option for certain

sexual crimes. So, who will be a good candidate for probation? This judge obviously has discretion and looked at several factors that the judge just

mentioned, age. This kid was 18.

Whether there was an apology made, he did, he apologized through a text. Look at the victim`s statement. The victim said they didn`t want him go in

the jail. Then you have a criminal history. He has none. Then he looks at what he`s doing with his life. He`s about to go to college.

Then was there alcohol present? I don`t know how much weight the judge would have given that. But that was the case. He saw that probation was,

you know, the proper punishment in this case.

So, who gets the benefit of probation and doesn`t? Because obviously, everyone of these cases can`t end up sending a kid to the penitentiary. I

mean, that`s just realistic.

PINSKY: Alex, do you agree?

FERRER: Yeah, actually I do agree. I agree 100 percent. The factors all have a certain amount of weight and just small things can make a big

difference. In my mind, even the fact that in this case, they were laying in bed together and it was a different situation.

Even though it`s still a criminal offense and the fact that the prosecution dropped the rape charge, those are factors that the judge is gonna look at

as well as very heavily the victim saying, I don`t want him to go to jail.

On the other end, you have the Brock Turner case where he drags this unconscious woman behind a dumpster and it`s just a different crime

altogether. He`s 19 years old, not that much of an age difference, but he`s a college student at that point.

Yeah, I can see a judge, you know, it`s not easy to be a judge. You weigh a lot of different factors and you have somebody`s life in your hands and you

also have a victim who has been traumatized. The other fact that they look at is the effect on the victim. Both physical injury and psychological

injury. All of that gets taken into account.

PINSKY: And Pat, I got to go to break. Ten seconds.

LALAMA: Quickly. David Becker had no criminal history. He was an athlete and did a lot of community service. But the flip side of that is people say

it`s an uneven playing field, that why wealthy kids seem to get that kind of consideration and others don`t.

PINSKY: That`s what we`ll talk about after the break.

[19:55:00] (COMMERCIAL BREAK)

(START VIDEO CLIP)

UNIDENTIFIED MALE: Privilege does play a factor in a system that should be blind to privilege.

UNIDENTIFIED FEMALE: We don`t hear of things like this happening with, you know, people who come from, you know, less privilege backgrounds or people

of different races.

(END VIDEO CLIP)

PINSKY: Race and privilege impacting the sentences of men convicted of sexual assault. Take a look at this recent cases in Massachusetts. David

Becker got two years probation. In California, Brock Turner got six months in jail, but only served three. Colorado, Austin Wilkerson got two years of

quote, work leave.

I`m back with Yodit, Jena, Pat, and Judge Alex. The question is -- let me ask you, Jena, first. Is this implicit bias or is this something more

explicit and something that money is buying?

KRAVITZ: It looks to be explicit. I mean, if I`m being honest here. This case and all the cases that you just mentioned are huge problem. As we

know, 80 percent at least of rape victims and sexual assault victims are not coming forward. And this is the reason why.

PINSKY: Yeah. That`s a concern. That`s why we look at this sort of -- this sort of wide sort of birth within with these judges are sort of using their

discretion. So, Alex, if these were black kids from inner city, would they have received harsher consequences?

FERRER: I don`t know. I can`t say that there`s no bias in the criminal justice system to some extent because let`s face it, nobody is grown in a

test tube. Everybody comes with their life experiences and their biases. So, certainly, it`s -- it`s possible.

But I think that the one thing that we`re missing also is when I left the bench to do Judge Alex, there were about a million felony convictions every

year. That`s counting the felony convictions. Not the ones that started as felonies and were reduced by the prosecution.

You take a sample of a million felony convictions and if you want, you`ll find white males who got lenient rape sentences and I`m sure if you`ll

look, you will find black males who got lenient rape sentences. Sometimes it`s a matter of what you`re looking for.

The sample that big, you`ll find whatever you want. But if there is bias and there`s certainly maybe, I would think it`s probably implicit. I think

that it`s probably dealing with so many African-Americans every day in our court system, you know, that judges and police officers have an internal

reaction that they`re not really focusing on.

I wouldn`t think it`s explicit except for of course the random here and there racist judge which, you know, you`re gonna have.

PINSKY: Well, no, I was thinking -- no, I was thinking, Pat, more in terms of people that have money to buy better lawyers and things.

LALAMA: That I will I think -- I`m sorry. Are you talking to me, Dr. Drew?

PINSKY: Yeah, go ahead.

LALAMA: I think that does, you know. I think across the board like the judge says, across the board, there`s some inherent problems with, you

know, you can buy a great lawyer if you`ve got money. But here is something that came to my mind, sometimes I think these judges may be look at these

young college kids or high school boys, athletes, you know, doing all the right thing, popular man on campus. Maybe they relate to them.

PINSKY: They identify. Yes, I absolutely do. Jena, do you agree with that? I believe the judge was a Stanford grad, the judge himself.

KRAVITZ: It`s the old boy`s club.

PINSKY: I don`t know if it`s a boy`s club. Alex was eluding to it. Sort of you`re not born in a test tube. You sort of -- you`re saying it`s a bias.

All right. David Becker admitted to police that he touched one of the female victims and when she didn`t protest, he said he assumed it was okay.

So, again, I know, we have to keep educating our young people about what is and is not okay. Thank you all for watching. Thank you, panel. Excellent

job. We`ll see you all next time. Stay tuned because our friend, Nancy Grace, is up next.

[20:00:00]

END