By Helan B. Park

Recently, a young man stabbed a sixty-six year old woman to death. The suspect was carjacking the woman’s Mercedes Benz in broad daylight, nearly high noon, in front of a busy shopping mall. She had surrendered the vehicle without struggle, but she was slain by the young man because he stated that "She didn’t take me seriously." Some Good Samaritans who witnessed the incident caught the suspect and he was immediately arrested. This case bothers me how brazen, bold and stupid this slaying is. Why didn’t he just take the car? Why did he have to stab this elderly lady to death? It seems so senseless and I am outraged. This would be categorized as a felony murder, where a suspect in this type of case when found guilty can face the death penalty.

Just this morning on my morning commute to work I heard on the radio a quick re-cap of the murder. The mother of the suspect was interviewed and it was revealed that the suspect has had a history of psychiatric hospitalizations, one as recently as this month. Suddenly, we have a different type of case on our hands. It is not your straightforward murder case at all. I predict that the defense will use this to steer this case away from a death penalty sentence.

We have the black letter law. It applies to all citizens of this State and County. Those laws are intended to keep order and peace among the people. We assume that most cognizant people will abide by these laws, and most of them never see the inside of a jail cell. Unfortunately, we have citizens in our community who break the laws because of alleged diminished mental capacity. Diminished mental capacity can be generalized into three types of groups. First, you have the people who are somewhat aware of "good" and "bad" but that because of biophysical or hormonal reasons, they tend to exhibit violent and illegal behavior. Sometimes these people will suffer not because of any organic reasons, but because of some traumatic social and external circumstances that can push even a reasonable person to murderous rage. Perhaps our suspect in the carjacking is in this category. Second, there are some people who suffer diminished mental capacity from old age, disease and other degenerative disorders. Third, there are people who are born with diminished mental capacity, and they are categorized as being mentally retarded.

An illustration of the second category would be someone with Alzheimer’s disease. I was working in arraignment court a few years ago when the judge called the next case on calendar. An old, fragile wisp of a woman in her seventies with snowy white hair gingerly made her way to the front of the courtroom. Her face was flushed and she looked really confused. I don’t think she even knew her own name. She was caught by supermarket surveillance tape shop lifting a whole cart of groceries. I believe she was dropped off by her caretaker at the market to do her grocery shopping. I believe that because of her disease she completely forgot that she had not paid for the items in her cart and simply proceeded to exit the supermarket. It would have been one thing if she put an item in her coat or purse, thereby concealing the item, but she just walked out with a whole cart brimming with food. Concealing the items would have been evidence of "mens rea" or a guilty mind. It was obvious that this woman had not formed any criminal intent in her actions. She obviously did not intend to steal the food. But her actions alone landed her a day in court! In the interest of justice I quickly requested that the court dismiss the action.

Finally, in the third category I had an experience where the District Attorney was applying for a conservatorship for a young man who was no immediate physical threat or harm to anyone. In fact, the young man was a very sweet and loving person in his twenties but with the mental capacity of a five-year old. There was no violent crime involved in this case. He was charged with sexually molesting his younger cousins. One day a parent found the cousins exhibiting strange behavior with their neighborhood friends. The boys had pulled down their pants and were playing with each other’s private parts. When confronted by the mother, the cousins stated that the young retarded man had shown them how to "play." The young man was not charged with the criminal charges, but rather the District Attorney applied for what is called conservatorship. It is where the individual is sometimes placed in a facility or hospital or it can be merely appointing a third party to periodically check in on the individual to make sure that he/she is not further "inadvertently" harming others. Here, in this case although the man had a healthy body with all the sexual hormones of man in his twenties, he had only the mental capacity of a mere child.

In review of the different types of diminished mental capacities, it definitely blurs the bright line between the law and its application. Our community has to sit back and think, "Why do we have these laws to begin with?" Is it to deter people from acting upon criminal impulses? Do we believe that the threat of punishment through incarceration will stop people from harming others? If this is the case, then it would not apply to our three categories of diminished mental capacity. These people may not have the ability to form that specific criminal intent or malice aforethought. Some people may consider prison as punishment. Because these criminals broke the law, now they will be punished. That is called retribution. Lastly, some may consider prison a way to keep the bad people from harming the good law abiding citizens. So it could be considered a form of protection for the community to keep the criminals away from the public...However way you see the need for prison, keep in mind we have the gray area in between. Is the community willing to accept that perhaps there are times where the punishment doesn’t fit the crime?


Helan Bang Park has been a Los Angeles Deputy District Attorney since 1996. Ms. Bang was born in Los Angeles to immigrant parents and grew up in the sleepy suburbs of Simi Valley. She graduated from U.C. Berkeley with a degree in Political Science-Economy. In 1995 Ms. Bang graduated from Lewis and Clark Law School in Portland, Oregon. As a law student, she clerked for the United States Attorney’s Office and worked in a legal clinic for lower income families. Upon graduation from law school, Ms. Bang moved back to her native Los Angeles and began her career as a prosecutor for Ventura County District Attorney’s Office. On her free time, she swims competitively and coaches swimming to children. Ms. Bang is also involved with her church at Young Nak English Ministry.