While that portion of the case was fairly cut and dried, the complicating factor was a brain ailment that the defendant, Erik Sass, suffered from which likely led two or three jurors, depending on which count, to vote to acquit.
The neurologist testified that the result of this condition is that the area of the brain where impulse control is located is impacted. In addition, the medical evidence suggests that sexual deviance may also be a symptom of the affliction.
The Judge, as we previously reported, did not allow the jury to consider whether this condition impacted intent, only whether it impacted willfulness, as the element of the crime requires the action to be willful and intentional.
The jury first emerged after a day of deliberations and announced they were unable to come to a decision. They said that the vote was 9-3 and that they did not believe further discussion would change their decision. However, Judge Timothy Fall, after listening to their concerns, determined that since they had only been in there for a day, that they ought to deliberate longer. They then came back at the end of the following day and announced their decision on Friday morning.
The Vanguard spoke briefly to the jury foreman. He said that he believed the jury should have convicted, based on Mr. Sass’ admission, which he took as evidence of his willfulness. Those who were for acquittal did not want to thoroughly discuss their perspective, but we believe that willfulness was the common element in all the counts that the jury was hung on. Ballots were taken in secret in the jury room. Most of the splits were 10-2 and 9-3, but there was a 5-7 split (convict-acquit) where the counts were not mentioned or remembered by the victim herself at the time of the testimony.
Deputy District Attorney Tiffany Susz said following the verdict that the Yolo County District Attorney’s office will re-file the case and she is pushing hard to do it within the sixty day statutory period for filing a case. There will be a hearing in late August, when a new trial will be set.
I will warn people in advance, the rest of this examines the court proceedings and some of the material may be disturbing in nature.
Erik Sass met the mother of the victim in November of 2001 just outside of Seattle. They lived with Mr. Sass for roughly two months in Seattle before they all moved to Fairfield, CA. They eventually moved to Woodland and the mother was attending medical school in Vallejo, with Mr. Sass supporting the family. In the evenings, Mr. Sass took care of the children.
In May of 2009, the mother found out about the touching. They were at church and the older kids were being told about sex education and mentioned it in front of the younger ones, including the victim. It was then that the victim mentioned to her mother that Mr. Sass had touched her, and she described an incident that occurred in March 2009.
The victim said that sometimes he would touch her and she demonstrated on her buttocks and genital area. When the mother asked the victim how long it had been happening, she said she was not sure, that perhaps it had been a year or two. She confronted Mr. Sass about the behavior, and he never denied any of it. He was then asked to move out and did so. A few days later on June 5, 2009, the mother reported it to the police.
The victim took the stand and described the incidents in great detail. They involved touching and masturbation. There was no penetration. She was extremely credible on the stand. There were times when the lawyer would ask her if Mr. Sass did a specific thing to her, and often she would say no that he had not. She was thus able to lay out very clearly what had and what had not happened to her, which is more than simply agreeing with everything that the attorney asked.
The key question in this case was the medical testimony. There was the pre-trial hearing that we previously covered where the doctor talked about the condition that was discovered on the MRI. Ms. Baldwain had already been aware that Mr. Sass suffered from memory loss and headaches, and had suspected there was something wrong. The condition had been present for years, and she did testify that his health had been deteriorating.
There was another private hearing with the doctor, mid-trial and much to the chagrin of Judge Fall, who scolded defense attorney Olaf Hedberg for “wasting the jury’s time.”
The doctor cited research that shows a link between the condition and increase in hypersexuality and pedophilia, in addition to impulse control and memory loss.
The judge distinguished between “diminished capacity” which is legally disallowed as a defense in California, and “diminished actuality” which is allowed as a defense. Judge Fall stated “I don’t get the connection yet” between what the doctor had explained and the concept of diminished actuality.
The doctor had cited articles and studies done by other persons. The defense asked “From the articles, can the conditions [of the disease] change the formation of intent?” The doctors answered “The answer is ‘Yes.'”
Judge Fall ruled that the doctor’s information does not go to the intent side of diminished actuality and said that “essentially, we are where we were a week ago.”
The defense argued, as previously stated, that Mr. Sass suffers from a progressive brain condition in the frontal area of his brain, resulting from a bacterial infection , as well as from the effects of the pressure exerted on his brain by a cyst the size of a lime that is growing and affecting normal brain function. The symptoms of memory loss, headaches, pain behind the left eye and tiredness are getting progressively worse. The sexual deviance is a more severe symptom that has developed and progressed as well. We know that it has been happening in the same time interval as the other symptoms. This is a fundamental point of the defense.
No one knows exactly when or how he got the bacterial infection in his brain or when the cyst formed, but we know that his symptoms all emerged together, with the sexual deviance being among them. The cyst rests adjacent to the sexual center in the brain. The bacterial encephalitis preferentially infects the front of the brain, though the infection may be throughout the brain. It produces fluid-filled pockets where neurons have died out. These spaces are visible and were identified by the radiologist who did the MRI scan.
It is too much of a coincidence, argued the defense and Doctor Griffith, that all this is happening to Mr. Sass near the centers that have been scientifically identified to be the centers of sexual behavior and impulsivity. As Doctor Griffith said, the best that can sometimes be said is a descriptive explanation of the condition, rather than a solid biological model. Science knows that behaviors emerge in the brain and that they have their locations, but science does not know how exactly interactions happen to create behaviors.
The fundamental problem is that the origin of behavior cannot be pinpointed at the moment. Not even in a normal person can we clearly explain how words are formed for speech, for example. So explaining how someone’s normal function is deviated to create abnormal sexuality is even harder. However, brain science up to this point has used indirect methods to ascertain relationships, such as medical events that correspond to changes in behavior.
Erik Sass testified on his own behalf. He went to Dr. Griffith in April of 2010 because he, and the mother of the victim, believed something was wrong with him. For several years his memory had gotten progressively worse. This began even before 2002, but had gotten worse and worse.
Mr. Sass was asked if he touched the victim inappropriately in a sexual way and he said “yes i did.” He said he would be with her and would “find my hand on her leg and her behind” and that he didn’t know why it was happening. That particular incident, the first he could remember, he stated to be around 2008, but said that he doesn’t trust his memory on that.
He was asked about his memory of certain events, and at one point he said that he does not trust his own memory and that if the victim says it happened, “then I believe it.”
Another interesting point is that Mr. Sass actually stopped in March of 2009 and was not discovered until June of 2009. He was apparently able to stop the behavior by avoiding being alone with the victim.
Based on what I saw, I would have convicted Mr. Sass. His defense was that the tick-borne illness and cyst on his brain impacts his impulse control, but the descriptions by the victim suggested that it was a fairly classic molestation case, complete with Mr. Sass instructing the young victim on sexual behavior and telling her of consequences (his own punishment) if she reported his behavior. Based on that there seemed to be a level of sophistication and premeditation that did not comport with the defense’s explanation.
To complicate the matter, Mr. Sass financially supported the family and, in fact, continues to do so to this day. While the mother did remove him from the home, even she seemed to sympathize with him.
We can go back and forth on the fact that Mr. Sass stopped his behavior well before he was actually caught. Does that suggest that he did have control over his impulses, or simply that he was able to avoid the temptation? Moreover, how is the temptation a manifestation of his lack of impulse control, or is there a secondary problem with the brain impacting sexual impulses?
Judge Fall, a judge and lawyer, not a doctor, had to rule on what would appear to be rather sophisticated medical information and that gives me great amounts of discomfort.
However, in the end, while this is certainly a complicated case, we have a man who has admitted to having molested a child without enough clear and compelling evidence that he was unable to act willfully. It happened over too long a period, he never sought help until after he was arrested and because of that, I tend to discount the other side stories here.
The DA’s office will retry this case and it will be interesting to see if they can craft their case in such a way that the jury will unanimously vote to convict.
—David M. Greenwald reporting