The case of Karla Homolka and her husband Paul Bernardo is one of the most spectacular criminal cases in recent memory. The case outraged many Canadians, particularly the fact that Karla received only a 12 year sentence based on her serving as the Crown’s star witness at Bernardo’s trial. Furthermore, in recent years, the theory that it was actually Karla who committed the murders of two Canadian teens has been presented and vigorously supported by a sizeable number of individuals who have studied this case closely.
In this post, I will wade cautiously into the treacherous waters of the Karla Homolka debate and offer certain observations about the case based, in part, on my discussions with Michael D. Sellers, writer/producer of the film Karla, and further reading suggested by him, and partly on my own experience working as a private investigator for many of Southern California’s finest criminal defense attorneys during the past decade. During this time, I have worked on over 200 state and Federal criminal cases, reviewed and commented on hundreds of plea agreements, and witnessed dozens of defendants receive either lenient or very lenient sentences in Federal court. In the majority of those cases with favorable results (from the standpoint of the defense team), I have played a key role by developing strategies in mitigation which are presented to the Court in writing prior to Sentencing.
In addition, it must be stated that some of these favorable outcomes were achieved by combining the mitigating factors with the fact that the clients cooperated whole-heartedly with law enforcement and, in many instances, testified against co-defendants at trial. Strong factors in mitigation combined with effective cooperation can eliminate years, and even sometimes decades, from what would otherwise be very lengthy sentences.
A Brief Review of the Case
Paul Bernardo operated independently, as the “Scarborough Rapist,” carrying out as many as 25 rapes, and was also the apparent leader in his and Karla’s criminal activities. Together, they were responsible for the rape and murder of two teen victims, Leslie Mahaffy and Kristen French, and the rape and accidental death of Homolka’s younger sister Tammy. Opinions vary dramatically with respect to who did the actual murdering. Was it Paul, as the Crown successfully argued in its case, who murdered the girls? Was it Paul and Karla working together? Or, as some claim, was it Karla alone who did the killing? Although this question may never be definitively answered, common sense suggests that it was a team effort. After all, the video evidence clearly demonstrates that Paul and Karla were both involved in Tammy’s death, Karla giving her the knockout drops, while Paul raped her both vaginally and anally. In addition, at Paul’s behest, Karla also sexually assaulted her younger sister. In the deaths of the two teen victims, the video evidence shows that both Karla and Paul were there together at their house while they held the two courageous girls captive. Thus, from a legal standpoint, it makes little difference which one “pulled the trigger.” Paul and Karla, to a large degree, acted in unison and they are both responsible for the outcome. A good analogy would be a bank robbery in which two perpetrators go into the bank to execute the robbery while the getaway driver waits outside. If something goes awry and the robbers panic and shoot and kill two tellers, the getaway driver is also held responsible for the two homicides, which would probably be charged as 2nd Degree Murders, even though neither he nor the other two robbers initially intended for anyone to be hurt, much less killed. If Karla Homolka and Paul Bernardo had been bound over for trial here in the United States, and if neither had received major credit for cooperation, they would both likely have been charged with Conspiracy to Commit 1st Degree Murder. The one who did the actual murdering, assuming they didn’t gang up on the victim and commit the deed in unison, would be charged with 1st Degree Murder. The other partner would be charged with aiding and abetting 1st Degree Murder or some variation thereof. The fact that both girls were tortured to varying degrees prior to the slayings would likely trigger the “torture enhancement” and if Paul and Karla were both convicted of these charges in California, they would almost certainly get the death penalty.
Karla Homolka’s Plea Agreement
Many individuals, both in Canada and in the United States, feel strongly that Karla Homolka’s Plea Agreement, which called for her to serve 12 years in prison based on a reduced charge of Manslaughter was much too lenient. From a technical standpoint, Manslaughter is the appropriate charge when the defendant’s conduct does not meet the criteria of 1st or 2nd Degree Murder. To be guilty of 1st Degree Murder, the deed must have been premeditated and committed with malice aforethought (malicious intent). 2nd Degree Murder occurs when premeditation is lacking but malicious intent is present. Thus, if someone goes berserk and pulls out a gun and shoots someone, that person would typically be guilty of 2nd Degree Murder. Manslaughter is readily distinguishable from Murder I and Murder II. The key difference is that Manslaughter requires “intent to harm the victim,” not “intent to kill the victim.”
Based on the trial evidence, it seems clear that Karla played a major part in doing in Leslie Mahaffy and Kristen French. She clearly intended to harm them, but according to her testimony, she did not intend from the outset to kill them. In the case of Leslie Mahaffey, when Bernardo said, “I’ve got to kill her,” because Leslie’s mask had fallen off and she could now identify them, Karla’s response was: “Well, give her some pills or something so she doesn’t feel anything.” Then, when Paul got the pills and gave them to Leslie prior to strangling her, Karla stood by and did nothing. In the Kristen French case, Karla helped Paul capture their victim. Later, when it appeared Paul was going to finish the job on poor Kristen, Karla went and took a shower.
Based on these facts, the outrage over Karla’s plea deal on the part of the Canadian public is completely understandable. Karla’s actions were utterly horrific and are made all the worse by the fact the victims were young and incredibly vulnerable.
So the question becomes, based on this level of evidence against Karla, was the 12 year sentence reasonable? The natural and justified revulsion on the part of the citizenry toward Karla still needs to be set off against the fact that she cooperated and testified at trial, as well as the fact that she was severely abused on an ongoing basis by Bernardo. My sense is that upon weighing all the factors, the 12 year sentence would probably be viewed as more or less reasonable by many legal professionals here in the United States. It should be noted, however, that in a court of law, there is seldom such a thing as a completely fair sentence. The results are always open to interpretation and, as we all know, reasonable minds can differ.
And, off course, there is the further issue that the Crown absolutely needed Karla in order to successfully prosecute Bernardo. Without her testimony, their case against Bernardo might never have been brought to trial.
It’s important to recognize that time-honored phrases such as “the wheels of justice,” the “justice system,” and the “legal system” may convey a false sense of how the system actually works. The phrase, “wheels of justice” suggests that the system is machine-like in its scope and breadth, that it grinds away day and night, crossing all manner of terrain in its irrevocable pursuit of justice. Well, in reality, it doesn’t actually work quite that way. Sure, the system grinds away, and no doubt intends to perpetuate justice, but the fact remains that it consists not of machines but rather people, real human beings, flesh and blood with all that entails. In any criminal case, the human element plays a huge and decisive factor. And it is certainly true that this human factor sometimes results in inequities. For example, a woman, particularly an attractive woman like Karla Homolka, will often get a better deal than a man would facing the same charges. Some would say that chivalry is not dead; others might term it sexism, plain and simple. But no matter how you slice this particular onion, these are the facts. Judges, the majority of whom are male, are loathe to send a pretty woman away to prison for a protracted period of time if they can come up with an excuse not to. The statistics bear this out. And, of course, there are exceptions to this general rule.
There are several factors that influence the drafting and the signing of the plea agreement. First of all, it’s a back-and-forth process. First, the prosecution floats a proposed plea agreement to the defendant and his/her defense team. If the defense is not satisfied, it proposes changes. So then it goes back to the prosecution. Both sides negotiate. This is called “acting in good faith”; the parties, although fiercely advocating their respective positions, are required to proceed in a civil and professional manner.
There are also purely practical considerations such as the current workload faced by the participants. How much time do you want to put into this case? How many more important cases are you handling at that particular moment? But in the case of Karla Homolka and Paul Bernardo, it’s safe to assume that there was no other more critical case in all of Canada at that time. So time was not a big factor. This brings us back to my earlier point: The Crown needed Karla in order to successfully prosecute Paul Bernardo. Without her, they had no shot at obtaining the murder convictions.
Two quick observations and then we will move on to the “abuse factor” and how it may have affected Karla’s ultimate sentence.
The profound outpouring of rage and frustration on the part of the Canadian public upon learning more about the case during the course of the trial is now legendary. But it is instructive to stand back for a moment and consider what would have happened if the Crown had refused to give Karla the deal they ultimately did and she had gone to trial. Similarly to Bernardo’s trial, Karla’s proceedings would have been very much in the public eye, whether or not the media gag order was imposed. At the trial, much of the same information that came out at Bernardo’s trial would have been presented: Karla as abuse victim, Karla as good girl gone bad, Karla and her lawyers claiming that Paul Bernardo was the real criminal and that he should have been the one standing trial. Now, when one eschews emotionality and takes a hard look at this case, it becomes clear that the Crown was, to a large degree, stuck between “a rock and a hard place.” They could not afford for Karla to go to trial considering the fact that, notwithstanding her outcome, it would have inserted Paul Bernardo directly into the crosshairs of public consciousness — yet it would have done so without the Crown having sufficient evidence with which to prosecute him. So let’s say Karla went to trial and was convicted of 2nd degree murder in the cases of Leslie Mahaffey and Kristen French. The Crown would then have still needed her testimony to convict Bernardo. Suppose Karla, through her attorneys, had then refused to comply with the Crown’s needs? The public anger that would have then erupted based on the Crown’s inability to prosecute and convict Bernardo would have dwarfed the ultimate outrage over Karla’s allegedly overly-lenient Plea Agreement. Keep in mind that the legal professionals handling the case were painfully aware of all of these possibilities. They don’t want the roof to blow off. Sure, they know that they’re going to take a beating down the road when the truth comes out at the trial, but that beating, to these seasoned professionals, is more akin to a severe paddling than the pummeling they would have sustained had they been unable to take Bernardo to trial. The parties were undoubtedly very cognizant of the risks they faced. They knew that both sides had to cooperate in good faith. The larger catastrophe of Paul Bernardo escaping prosecution for the murders of Leslie Mahaffy and Kristen French had to be avoided. At all costs. It was as simple as that.
The Abuse Issue:
A further factor that influenced the decision to give Karla Homolka a moderately good deal was the physical and psychological abuse that she endured. The control exercised over her by Bernardo was considered to be Svengali-like in its nature and raises an important question: can (and should) spousal abuse be viewed as a factor in mitigation, and if so, to what degree? Keep in mind that factors in mitigation are in no way exonerative. They simply help to reduce the sentence.
There is no doubt that substantial actual physical abuse occurred. The ER examination of Homolka in January 1993 reads as follows, (Galligan report, p. 42)
On examination today, Karla is in distress, quite anxious and understandably so. Her eyes reveal raccoon’s eyes, bruising all around the orbits, large contusion to her head with what feels almost like a depressed fracture, although x-rays have ruled this out. She has a subconjunctival haemorrhage in her left eye, which was seen by Dr. Marriott, and she was re-assured. She has several bruises down the left side of her neck, along her arms, with a very large bruise in the upper right arm which is three centimetres by three. About 75% of her legs from mid-thigh down are bruised, quite dramatically and swollen to touch. She cannot move them due to pain. On the right thigh, about 3 cm. above the right knee, there is a puncture wound which she said was caused by Paul Bernardo when he punctured her with a screwdriver. On the left leg, there is a large isolated contusion about 6 inches by 3 inches, quite warm and tender.
Karla Homolka suffered one hell of a beating at the hands of Paul Bernardo. It’s hard to see how any reasonably objective observer would doubt that Paul had beaten Karla repeatedly — given his documented history of violent sexual assaults in the Scarborough rapes, his violent assaults on his girlfriend prior to Karla, and the physical evidence with Karla.
So we must ask: what role did the abuse play in affecting Karla’s eventual sentence?
The answer is the abuse became an essential element in the plea bargaining process. Karla’s attorney initially sought full immunity – with the abuse as a key bargaining chip, and the Crown had little choice other than to view the abuse as a strong factor in mitigation for the simple reason, as discussed previously, that Canadian law enforcement did not have enough evidence to arrest and convict Paul Bernardo without Karla’s ongoing cooperation.
To its credit, the Crown does not appear to have at any point considered giving Karla full immunity, and thus there seems to have been no inclination to consider the spousal abuse to be fully exonerative.
In Canada, there was relatively little reaction to the deal when it was first announced, in large part due to the fact that at that time, in July of 1993, the videotapes showing Karla’s active involvement in the sexual crimes (but not the murders) had not yet been turned over to the Crown. When the videotapes were later found and introduced at trial, a strong wave of anti-Karla sentiment began to build, and with it, the popular perception that she had simply failed to disclose the extent of her involvement to the police.
Crown officials contend, however, that Karla did fully disclose her active participation in the sexual crimes against Kristin French and Leslie Mahaffey from the moment she first approached the authorities, on February 13, 1993. The Crown, however, chose not to share those details publicly, or otherwise prepare the public for the revelations that would occur at the trial.
Physical and emotional abuse perpetrated by unstable spouses is endemic in our society. It’s impossible to accurately gauge how prevalent it truly is because so much of the time it goes unreported. Karla had literally been abused for years before she finally came forward.
An F.B.I. article entitled: “The Disturbed Mind – Compliant Victims of the Sexual Sadist” provides useful information on this topic. The article is presented as “a descriptive summary of the experiences of a sample of women who have been consensually involved with criminal sexual sadists.” The article describes “the physical, sexual, and psychological abuse” that seven female victims endured and discusses “the process by which they were transformed from independent, competent women to compliant appendages of their criminally active partners.” This is scary stuff and the article pulls no punches. The descriptions of the victims’ sufferings are truly horrific:
All the women suffered physical abuse during their relationship with the sadists. They reported being frequently beaten with fists and other blunt objects. One woman reported that her husband called his arms ‘guns’ and would periodically give her ‘body shots’ or blows to the chest and stomach. Another woman advised that her boyfriend kept her in captivity for 3 days during which he bound her from head to feet in adhesive tape. Hourly, he would stand her upright and strike her viciously in the body, knocking her over. Four of the women suffered broken bones at the hands of their ‘loved ones’.
Five of the women were whipped with leather whips, ropes or belts… Another woman was suspended by the wrists and whipped with a belt periodically over a number of years.
Four of the women were burned with matches, cigarettes or lighters… Biting, as a means of physical abuse, was reported by all of the women. Painful clamping devices were used on the nipples and labia of five of the respondents.
Six of the women reported that they were strangled manually or by ligature during sexual activities. Most reported either losing consciousness or being on the verge of doing so. Painful bondage was used on all the women…
While all the women advised that some of their injuries were visible to others, only one sought medical assistance. This woman’s husband broke her arm while forcing her to engage in anal sex.
All the women were sexually abused by the men. Three victims were forcibly penetrated by large foreign objects. One subject used a 12 cell flashlight and also a long cylindrical piece of wood. Almost invariably these items were inserted anally, so as to cause maximal suffering.
Six of the women reported anal intercourse to be their sadistic partner’s preferred mode of sexual release. Forced fellatio was also reported by all seven women…
Two of the seven women advised that they had been urinated on, and one reported being required to administer enemas to herself. Three of the women were forced to have sex with others; two were raped by friends of the sadists, and one was forced to engage in sexual acts with another woman who had been kidnapped by her husband.
All seven of the respondents agreed that the men were sexually insatiable…
When asked to describe the worst sexual abuse suffered, one woman told being hung by her wrists and whipped to the point of unconsciousness, explaining that this degree of suffering and humiliation enabled her partner to become sexually aroused for vaginal intercourse. During the whippings she was not allowed to cry, scream or plead.
The article states that the majority of the woman had been sexually, physically and/or emotionally abused as children. All seven women in the study, like Karla, were raised in middle class or upper middle class families. Karla, based on what we know about her upbringing, was not abused as a child. Nothing in her past would seem to explain her compliance with Paul Bernardo’s demands. Of course, the absence of solid evidence that Karla was abused prior to meeting Bernardo does not establish that she was not abused. We simply do not know. What we do know is that her relationship with Bernardo was progressively abusive, which may have served to gradually render her, in some respects, a “compliant victim.”
Another key difference between Karla and the women depicted in the study is that Karla, unlike the other victims, does not appear to have entered the relationship from a place of weakness or powerlessness. She was the aggressor in their initial sexual encounter; she precipitated their initial act of anal intercourse, and, in the early videos, she seems quite normal and content. Yet, as her relationship with Bernardo progressed, she became increasingly subservient. Since Karla did not seem to share the childhood abuse characteristic common to many “compliant victims of the sexual sadists,” and did not enter the relationship in a weakened state, we struggle to understand why she stuck around for as long as she did “once the game got rough.”
One glaring fact, which may at times have been overlooked in trying to unpack this thorny case, is the extent to which THE DEATH OF HER SISTER TAMMY CHANGED EVERYTHING. It probably provided Bernardo with a ten-ton bludgeon, metaphorically speaking, with which to beat Karla. If she had gone to the authorities after Tammy’s death and simply confessed, she would have been in huge trouble and would have undoubtedly received a protracted prison sentence. Furthermore, if Bernardo had gotten wind of this, he might have had time to destroy the video evidence and Karla, if she had already confessed to accidentally asphyxiating Tammy, would have ended up, at the very least, with an aggravated Manslaughter conviction.
Therefore, it is my belief that after Tammy’s untimely death, Karla “sucked it up” for a very long time. It was only after Bernardo’s abuse had escalated to such a degree that it was approaching but had not quite reached the level of suffering experienced by the female victims in the F.B.I. study (note the apparent screwdriver puncture wound and Karla’s sea of bruises from her mid-thigh on down), that Karla saved her life by going to the authorities. It was only a matter of time. Sooner or later Paul Bernardo would probably have killed her, perhaps accidentally, perhaps with malice aforethought. As a result of the stark reality of the final beating and the abject terror she must have experienced, Karla Homolka “read the tea leaves” and turned herself in. Had she not, we would be dealing with an entirely different story.
Although we will probably never know for sure if Karla killed the two Canadian schoolgirls, or if Paul killed them, or if it was a joint effort on their part, we should, in a sense, be grateful that things have turned out as they have. If Karla had not gone to the authorities, there is little doubt that Paul Bernardo would have raped and murdered more innocent victims. By turning herself in, Karla brought a halt to the carnage. No matter what we may think about her, the reality is that her decision, self-serving though it obviously was, had the practical effect of bringing the killings to an end.
posted by Patrick H. Moore on March 31, 2013
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