The Aggressive D.A. Who Has Charged Six Kids in Connection With Phoebe’s Death

Elizabeth Scheibel, northwestern district attorney in Massachusetts.

In her public statement at the end of March justifying the criminal charges against the six South Hadley students, District Attorney Elizabeth Scheibel described the bullying Phoebe endured as a “nearly three-month campaign” of “relentless” and “torturous” bullying. But in the police interviews there is no evidence that the bullying was an orchestrated campaign or lasted for anything like three months. Scheibel also said of the teens: “Their conduct far exceeded the limits of normal teenage relationship-related quarrels.” This is crucial to Scheibel’s decision to exercise her discretion in favor of prosecution. But I haven’t talked to a single teenager in South Hadley who agrees with the D.A. that what happened to Phoebe was much out of the ordinary. They see the taunting and ugliness Phoebe experienced as a bad case of “normal girl drama,” as several kids put it to me. And though it’s hard to say so, because nobody, rightly, wants to blame the girl who died, many kids see it as normal girl drama that Phoebe contributed to. “Each person had his own conflict with Phoebe—that’s what no one outside our school seems to understand,” says Christine, the friend of Sean’s and Austin’s. “The girls found out she’d been with the boys, and true to high-school girls, they got mad at the girl instead of the boyfriend.”

It is clear from the records that Phoebe’s psychological struggles predated her involvement with Sean, Austin, and the others. The senior boy to whom Phoebe showed her cuts told the police, “Honestly, I’m not surprised by the suicide. Phoebe had a lot of emotional problems.” He was right. Phoebe had a history of cutting and depression. She was dealing with a move across the ocean, her parents’ separation, and her father’s absence. She’d made another serious suicide attempt. According to the police interviews with a school counselor and nurse, she had gone off antidepressants before her death, and it’s not clear whether she was still in therapy. She was asking for help from older boys who seemed ill-equipped to provide it and who don’t seem to have told any adults what was wrong—not just Sean and Austin, but other boys, too. She resisted talking to her mother or an adult at school about her clashes with other kids, which psychiatrists I spoke to said is typical.

Prosecuting anyone for causing death by suicide is exceedingly rare. The American Law Institute’s Model Penal Code holds that to win a conviction for “causing suicide as criminal homicide,” the prosecution must show that the defendant purposely caused the suicide, by “force, duress or deception.” Stevenson v. State, the defendant kidnapped and raped a woman named Madge Oberholtzer. While in the defendant’s custody, she took mercury tablets and killed herself. He was convicted of second-degree murder. Law students still read this old chestnut, but mostly because the theory behind the conviction—that a rapist can be held responsible for a woman’s decision to take her own life—has been repudiated”>  Harvard law professor Alan Dershowitz says he’s never heard of a prosecutor achieving a similar goal by charging the defendants with a civil rights violation with bodily injury, as Scheibel has done in this case.   “That’s a real stretch,” he says. “People want to think that there’s always legal accountability where there should be moral accountability. But in the criminal context, you should always err against overextending the law.”

At the top of Scheibel’s National District Attorney’s Association Web profile is this anecdote:

A lawyer friend who has known her since kindergarten remembered how she beat up a bully who was picking on her younger brother, commenting, “Even in her youth she wasn’t afraid to hold her position and pursue justice as she saw it.”

Scheibel, who grew up in South Hadley and attended high school there, became the first female D.A. in Massachusetts when Gov. William Weld appointed her in 1993. (She replaced her then-boss, Judd Carhart, who presided over Sean, Ashley, and Kayla’s cases in April.) She has since won election but is stepping down in November. When she announced her decision not to run for re-election, the Republican, a local paper, commended her for serving “ably and faithfully.” But the editorial also mentioned Pottygate—an embarrassing dispute over a bathroom key between Scheibel and the Juvenile Court Clerk-Magistrate at the Hadley courthouse. Scheibel’s office convened a grand jury to investigate the taking of the key after the clerk-magistrate sent a court officer to retrieve it. The D.A.’s office had apparently taken control of the key, and of bathroom privileges, when it expanded its courthouse office space. When the Boston Globe published a story about the grand jury investigation, Scheibel subpoenaed a Globe reporter and two defense attorneys. Judge John Agostini stopped the D.A. from subpoenaing the reporters in “what amounted to a ringing condemnation of the Northwestern District Attorney’s office,” the Republican reported.)

For David Hoose, one of the Pottygate defense lawyers, the episode was part of a pattern. “There have been a number of cases in which they have shown poor judgment,” he says of Scheibel and her office. Hoose represented Jack Robison, whom Scheibel charged in 2007 with felony counts that carried a maximum 60-year sentence when at age 17 he posted videos on YouTube in which he set off explosives in a field in South Hadley. Robison, who has Asperger’s syndrome, an autism spectrum disorder, started making model rockets as a child, says his father, John Elder Robison, the author of a best-seller about his own Asperger’s. After a four-day trial in June 2009, Robison was found not guilty of all charges.  

The Phoebe Prince case is not the first time Scheibel’s office has prosecuted a South Hadley student for bullying. The D.A. stepped in after another episode of student-on-student harassment at the high school that took place in May 2009, before anyone in South Hadley had heard of Phoebe Prince. This case, too, has led to serious criminal charges against a student.

This story started at prom. Martin (his middle name), then a 17-year-old junior, brought his boyfriend as his date. Other students treated them with respect. But soon after, when Martin was in line in the school cafeteria, he felt someone come up behind him and put a hand inside the back of his pants. He felt a finger in his buttocks, he later said. Martin turned around. He saw a senior named Max Keith, whom he’d never spoken to, wildly laughing. Another student yelled, “Faggot.”

Martin was shocked. “I couldn’t believe someone would do that,” he told me. “I couldn’t believe someone would be so flat-out rude.” Neither could other students. “Every one of his friends was on my side,” Martin says. “Everyone said what he did was so fucked up he deserved to get in trouble.”

Martin quickly reported the harassment to the school administration. Principal Dan Smith suspended Max for the duration of the school year. He was not allowed to walk with his class to receive his diploma at graduation.

Martin told me he was “completely satisfied” with the school’s response. But Scheibel got involved nevertheless. Last summer, she indicted Max for indecent assault and battery, assault and battery with intent to intimidate, and a civil rights violation. Each charge carries a potential prison sentence. The most serious count, indecent assault and battery, has a maximum sentence of five years. A guilty finding would also require Max to register as a sex offender.

In May, I went to the Eastern Hampshire District Court in Belchertown, Mass., for Max’s pretrial hearing. Martin had come to give a statement that a victim advocate from the state helped him prepare—his account of what had happened in the lunch line, and what it meant to him. During a break in the judge’s docket, I went up to Max in the hallway and asked him if I could talk to him about a Facebook posting he’d written on a page in support of Sean Mulveyhill. It read: “IF sean hears about what is being posted on this with everything thats happeneing i can relate to him probably really well because i know what its like to fuck up and make a mistake an have your whole life spiral down wards on you in the blink of an eye.”

“The reason I said that to Sean was to tell a friend I understand what he’s going through and to keep his head up,” Max told me. He continued, “I did something I shouldn’t have done. It wasn’t like I planned it. I didn’t think.”

An hour or so later, Assistant District Attorney Janine Simonian summarized the evidence against Max. She also explained that Max was already on probation. He’d thrown a party at his house at which there was drinking and tried to punch a police officer called to the scene by a neighbor. When Judge Maureen Walsh asked if the facts about his harassment of Martin were true, Max said yes.

Next, Martin stood to make his statement. Afterward, he told me his legs were shaking, but the week before, he’d played the starring role in the South Hadley High spring play, and his voice stayed firm. “I never thought that in my school, the place I feel most comfortable, I’d be assaulted and humiliated like this. After the fact, I didn’t want to go to school,” he said. “I’m very nervous about my deportment in public, to not let surrounding strangers know that I’m a homosexual.” Martin ended by saying he agreed with the sentence that Simonian would propose. He hadn’t asked for a criminal prosecution, but now that it was under way, he supported it.

Max’s lawyer, A.J. O’Donald, rose. He reminded the judge of Max’s suspension: “This is not a situation in which the school turned a blind eye,” he said. He also noted that Max had written a letter of apology to Martin, which Max’s family says a friend delivered to Principal Smith because Max was not allowed on campus.   O’Donald described training Max was attending on diversity sensitivity. Then he said to the judge: “A conviction will trigger the registry. This will trail with my client every day, when he’s 30 and he has a job and kids and his life is very different than it is now.” He asked that the judge allow Max to plead guilty with a determination called “continuation without a finding,” which would allow him to forgo a formal guilty finding and the sex offender registry.

Simonian stood. She asked for a one-year sentence, with 30 days served in prison and the rest probation, and for a guilty finding that would trigger the sex offender registry for 20 years. (If Max has a clean record for the next 10 years, he can then appeal to terminate the obligation).

Max swallowed hard as Judge Walsh began to speak. “I appreciate that Mr. Keith and his parents have made an attempt to show remorse,” she said. “But Mr. Keith, there are some things that an apology doesn’t fix. Your counsel asked me to think about the effect on your record when you’re 30 years old. Now I ask you, Mr. Keith, when you’re 30, if you have a son, what would you want done if he was a victim of an act like this? An apology doesn’t give back what you took away. It never will. For the rest of time, the victim won’t feel comfortable with strangers. Because of your assault and battery on him. The Commonwealth’s recommendation is more than generous.”

Judge Walsh banged her gavel. Max and his family left to consult with his lawyer. When they came back, O’Donald announced that Max would not plead guilty.

Simonian asked for his probation to be revoked. The judge agreed. “You will be remitted into custody for seven days,” she said. A sheriff approached Max. O’Donald asked for one day for his client to get his affairs in order. Judge Walsh said no. Max put his hands behind his back and the sheriff handcuffed him. His father stared straight ahead. His sister gave a long keening moan.

Simonian turned to Martin and his mother. I heard her tell them that if the case went to trial, she would take off the table her offer to drop the other two charges. Since Max has confessed to harassing Martin, it’s not clear how he could avoid a conviction, and the sex offender registry. Kayla, Sean, Ashley, and Sharon, who all made statements to the police last winter without being read Miranda warnings, could face a similar challenge, though surely their lawyers will try to block the jury from hearing their statements if the cases go to trial. 

Coming up in Part 3: What responsibility do the South Hadley schools bear for Phoebe’s death and its aftermath?

Like Slate  and Bull-E on Facebook. Follow us on Twitter.