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Saturday, December 17, 2011

Not Guilty by Reason of Insanity or Cold-Blooded First Degree Murder, and Psychiatric Treatment or Death by Lethal Injection: Three Confounding Case Studies: Stephen Morgan, Joshua Komisarjevsky, and David Messinger

The three-judge panel found Stephen Morgan not guilty by reason of insanity in the murder of Johanna Justin-Jinich today at 12:30 p.m. (Friday, December 16, 2011).  I was in the courtroom for final arguments from 10 to 11 a.m. and then hung around the courthouse until the verdict came in.

The chief judge of the panel, Susan Handy, announced the verdict from the bench, flanked by the other two judges.  First she announced that the prosecutor had proven, beyond a reasonable doubt,  that Morgan was guilty of murder, guilty of killing Johanna because she was jewish, and guilty of illegal possession of a hand gun.  At this, the young red-haired woman whom I believe to be Johanna's sister shook her head in satisfaction and agreement.

Morgan's family was sitting on the other side of the spectators' benches.  Morgan's two sisters were sitting with their right hands to their mouths, tensely awaiting the decision on the insanity defense.

"We the panel also find that the defense has sustained its burden of proving, by a fair preponderance of the evidence, that Morgan was unable at the time of the offenses to appreciate the wrongfullnes of his actions or to conform his conduct to the requirements of the law," intoned Judge Handy, as the other judges sat to her left, staring straight ahead, with eyes down, expressionless.   Therefore, she went on, Morgan will be committed to the custody of the PSRB, the Psychiatric Security Review Board, for evaluation and treatment.  "A hearing will be held after 60 days to hear evidence and argument about the conditions and terms of his confinement at Whiting Forensic Institute at Connecticut Valley Hospital in Middletown.  He will not be going back to Garner Correctional."

With that verdict, Morgan's two sisters, and his brother, began to cry.  They were obviously tears of joy that their brother will be serving time, and getting proper psychiatric care,  in a psychiatric facility rather than a prison.

Johanna's immediate family, her father, mother, and other relatives, other than her sister, had returned to Colorado, so they distributed a statment thanking the court system, the prosecutor, and the court marshals for being so kind and helpful to them in making their stay in Middletown safe and comfortable.

Stephen Morgan himself showed no sign of any reaction to the verdict.

Tim Liston, the prosecutor, remained cool, calm, and collected.  He turned and walked over to Johanna's sister.  They shook hands and Tim said a few things to the sister which I could not hear.  It was obvious from their body language that Johanna's sister was very comfortable with Tim.  She knew he had done the best job a prosecutor could do to present her sister's case to the world.  Tim then turned away to pack up his papers and files in order to leave the courtroom.

Stephen Morgan's father, the tall, bald, red-faced Irish-American retired businessman walked forward to try to reach Richard Brown, his son's lead defense lawer, to thank him, but Brown made a facial expression and said to Mr. Morgan, "Let's meet across the hallway to talk."  On the other side of the corridor outside the courtoom, on the third floor of the courthouse at One Court Street in Middletown, is a small conference room where the Morgan family met privately during breaks throughout the trial.  Before taking the stairs down to get to the first floor and exit the building, I walked down the corridor and looked into the conference room through the tall rectangular window in each of the cherry wooden doors of the conference rooms, to catch a glimpse of the Morgan family, hoping I'd see a bit of emotion.  I didn't want to seem to be invading their privacy, so I only saw into the room for a few seconds.  Mrs. Morgan, Stephen's mother, was sitting down and one of his sisters was standing.  I couldn't discern what was going on there emotionally.

Afterwards, I followed the TV and newspaper reporters outside to the front steps of the courthouse, where Richard Brown, the lead defense lawyer, gave a little press conference.  He stood with his back to the building, facing City Hall across Court Street.  Six or seven reporters and 5 or 6 still and TV cameramen stood in a semi-circle facing the courthouse steps as Attorney Brown strode down the steps and into the waiting media.  Brown was reserved, calm, and serious in his demeanor and answers to the questions.

He expressed the Morgan family's positive reaction to the verdict, which means that their son will get proper psychiatric treatment at the state hospital.  He also said what a tragedy this is for Johanna's family.  "Nobody 'won' today.  This was a tragic loss of a vibrant, intelligent, happy human being.  No words can express the sadness the Morgan family feels about the horrible thing their son did.   He also explained that Morgan is likely to remain in the custody of the PSRB "indefiinitely."  Brown also said that to this point, Johanna's family has not wanted to speak with the Morgan family about the case because their grief is too raw, still, and they need time and space to mourn Johanna's passing in their own way.  There was no cocky gloating by Brown.  He was very matter-of-fact about it all and was appropriately low-key and serious.

After the press lost interest in asking more questions and the news conference ended, I walked with Brown back to the parking lot.  There was no need for me to introduce myself as he clearly remembered talking with me after the October court appearance, following which I had explained my past as a trial lawyer and he told me what I've reported in an earlier blog post.

Yesterday, in talking with Brown, I compared the insanity defense outcome in Morgan's case with the verdict of death in the Joshua Komisarjevsky case.  I asked if he agreed with the defense strategy in Komisarjevsky of requesting a jury trial rather than a three-judge panel, given the egregious nature of the crimes charged and the lack of an insantity defense.  "Do you agree with the idea that a three-judge panel would have been more psychologically open to giving Komisarjevsky life than a jury, assuming the judges had credited all the evidence that Komisarjevsky had such a horrible childhood.  Brown shared my concern about that choice, of jury versus judge trial.  "Whenever you have a stranger killing another stanger, it's almost impossible to get the insantity defense, especially from a jury.  But here, the state's own psychiatric evaluation agreed with the defense's assessment, that Morgan was a paranoid scizophrenic and thought that Johanna was out to hurt him."

Why, I asked Brown, did Tim Liston go forward with the prosecution, calling 38 witnesses from all over the country, putting into evidence over 100 exhibits, going through all that sturm and drang when the outcome was so clear once the State's psychiatrist issued a report agreeing with the defense psychiatrist that Morgan suffered from paranoid schizophrenic delusions when he killed Johanna?  "I don't know," Brown said, somewhat puzzled himself, "but at least this way Johanna's family knows as much of the story of what happened, and why it happened, as they could have learned without a trial."

What should we make of the capital punishment ordered by the jury for the murderer Joshua Komisarjevsky (the death penalty), but the non-capital punishment of the killers David Messenger and Stephen Morgan?  All three of the crimes were horrific. Why were two of the killers going for medical treatment (Messenger and Morgan), but Komisarjevsky has been sentenced to die?  And after only ten years in psychiatric confinement at Whiting Forensic Institution, David Messenger is making serious progress in getting permission from the PSRB to be released into society.  What's going on?  Is this fair?

In the case of Komisarjevsky, he clearly suffered from depression, anxiety, and post traumatic stress disorder, probably the result of the sexual abuse he suffered growing up and the lack of any psychiatric care or attention because of his adoptive family's distrust of the modern psychiatric establishment.  The problem in his case is that because his adoptive parents never sought the psychiatric care which Joshua Komisarjevsky clearly needed, there were no pre-murder psychiatric reports for the prosecution to be able to go to Dr. Petit and appeal for him to agree that the prosecutor could accept the defense offer to put Komisarjevsky away in prison for the rest of his natural life.  Alternatively, such pre-murder reports would have enabled the defense to consider mounting an insanity defense; and the reports would have made it somewhat easier to appeal to the jury to spare Joshua's life.  I do continue to wonder why Komisarjevsky's lawyers did not waive a jury trial and seek to save their client's life by making the appeal to judges to spare his life, since the facts of the crime itself (rape, arson, murder) have no jury appeal.  When I next see Jeremiah Donovan, Komisarjevsky's lead defense counsel, I'll have to ask him why they felt they'd do better with jurors than judges.

Stephen Morgan's is the easiest case to understand why he was acquitted by reason of insanity.  The psychiatrists for both prosecution and defense agreed Morgan was suffering from paranoid schizophrenia at the time he killed Johanna.  Also, he had pre-kiling psychiatric treatment, essentially throughout his life, culminating in a report of a diagnosis of paranoid schizophrenia when he was at the University of Colorado at Boulder in 2007 or 2008, more than a year or so before Morgan killed Johanna.

David Messenger is the hard case to understand.  David was a successful engineer who lived with his pregnant wife and 8-year-old son in eastern Connecticut.  He had no history of any psychiatric illness or treatment.  David heard voices which told him that his wife was going to harm their son if he didn't kill her.  He beat his pregnant wife to death with a 2 by 4 board, right in front of their son.

Psychiatrists for both the prosecution and the defense concluded that David had suffered a severe, one-time psychotic break.  Temporary insanity, the hardest things for laypeople (including me) to understand.  But the prosecutor was moved by the agreement of both forensic psychiatrists that David was insane, so there was no trial, just a stipuation by both sides that David should spend a long time at Whiting Forensic Institute, and no time in prison.  Now, 10 years later, the psychiatrists gave testimony to the PSRB that David is, in their view, ready to be released from Whiting Forensic into the community.

It does not make sense to me that Joshua Komisarjevsky, who demonstrably had a childhood and upbringing which severely compromised his ability to find pleasure and balance in ordinary human interaction, has been ordered by the jury to die by lethal injection, yet David Messenger, who had no evidence of a bad upbringing, nor any evidence of pre-killing psychiatric disorders or treatment, may be released back into the community after only 10 years.

I got to know David Messenger personally because he gradually got permission to be escorted outside the mental hospital and his locked building, under the supervision of an aide who had to be near him at all times.
My good friend and former minister, John Hall, struck up a friendship with David and eventually invited him to First Church, my former church.  David eventually joined the church and has now ingratiated him into the lives of some of the church members.  David is a very intelligent man, but somewhat guarded when asked for details of what it was like for him at the moment he lost control and killed his pregnant wife with a 2 by 4.
I don't wish David ill, in any way, but I do wonder about a system of justice in which a young man like Joshua Komisarjevsky gets the death penalty, where there's lots of evidence he had all kinds of psychiatric problems before he killed his victims, yet David Messenger, who had no evidence at all of pre-killing mental illness or treatment, may be released from confinement after only 10 years.

It is such considerations as these, and others, which lead me to question the morality and justice of the death penalty.  My reptilian brain says "Fry the bastards," but my cerebral cortex and, I hope, the best part of my spirit, replies, "Now just hold that thought there a minute, serpent, while we think this one through a bit more."  Go figure.


  1. Bob--
    Good observations--and apt comparisons. David's case is anomalous, to be sure--and hinges on the idea of an episodic psychotic event--for which there is neither precedent nor sequel. Want to talk about this sometime? Let me know.

  2. Good report, Bob.
    After all the abuse David Messenger has suffered from the press, I prefer not to hold him up as someone who has gotten off lightly (as you seem to be doing; correct me if I'm wrong).
    As for your statement that Dave is "guarded when asked for the details" of what it was like to kill his wife, that statement is problematic for reasons I am willing to discuss privately. But back to the main point -- I think these 3 cases are quite different, and rather than compare them with each other in order to justify one and condemn the other, I would rather compare them to the thousands of other cases that our various state courts deal with, often with results we should abhor if we claim to live in a fair and humane society.
    What I appreciate most about your statement is that you seem to have come around to opposing the death penalty, whereas I remember you speaking in favor of it for many years when we discussed such matters at First Church. In those discussions, one of the most persuasive and powerful reasons given (by me and others) for opposing the death penalty is that it is not and cannot be administered in a way that affords equal protection under the law. So, have you joined the ranks of those who oppose the death penalty here in Connecticut?

  3. Dear Karl,
    Thanks for reading "Bobs blog" and posting your Comment. Thanks for your invitation to talk about David Messinger's case, especially the psychological aspects, about which you certainly have professional knowledge and experience which would help a layperson like me understand David's one-time psychotic break. Please understand that I am not claiming he did not have such a condition which "caused" the killing. Rather, it strikes me as one more reason to oppose putting some killers to death and not others (Messinger and Morgan, life; Komisarjevsky, death), despite the fact that some of those ordered put to death seem to be more clearly psychologically-damaged individuals, by history (Komisarjevsky) than others (Messinger).
    Let's be in touch in the near future to go for a walk to discuss this in greater depth.
    All best,


  4. Dear John,
    I also thank you for reading the blog and Commenting.
    David's killing of his wife (I use the term "killing" carefully, since he was not considered to have "murdered" her by our legal system, given the insanity defense, but even insane defendants commit homicide when they unlawfully cause the death of an innocent) was especially heinous, in my view, because he did it while she was pregnant, in front of their young child, and with his own hands using a 2 by 4.
    Because David had no history of psychiatric "illness," and as I understand it, is not now thought by his psychiatrists to have any psychiatric "disorder," it is harder for some laypersons, including myself, to understand how a psychotic break such as he is said to have had could have struck him momentarily and temporarily. I'm not saying it's not possible or probable that that's exactly what happened, but it is not the usual turn of events, at least in my own experience of the world.
    Compared to Joshua Komisarjevsky, both Stephen Morgan and David Messinger "got off lightly" (your words to characterize your interpretation of my observations), despite the fact that all three committed pretty egregious homicides. These are the kinds of disparity which weigh in my mind as reasons to oppose giving the death penalty to anyone. That said, if I lost a loved one to cold-blooded homicide, I might well react just as Dr. Petit and David Messinger's former sister-in-law have acted--angry and on the warpath for their loved ones' killer.
    I did not make my meaning clear to you. I actually was comparing the outcomes of all three of the cases in order to condemn the use of capital punishment in all cases and not in order "to justify the one and condemn the other," as you suggest in your Comment.
    You correctly report my ambivalence about the death penalty. For a while I have opposed it in Connecticut, and everywhere, in part on procedural grounds. It is applied more to blacks than whites, it is sometimes ordered in cases where the defendant turns out in hindsight to have been innocent (DNA testing), and the frequency of its application varies by jurisdiction (e.g. lots of executions in Texas and few in states like Connecticut).
    Now I am also opposed to it on broader grounds. It seems to me uncivilized for the state to take a life in response to a usually-flawed human being taking another life. It may be more expensive to seek the death penalty and then to try to carry out the sentence than simply to keep the convicted murderer in prison for the rest of his or her life.
    Finally, the three cases I've written about, Morgan, Messinger, and Komisarjevsky, and the disparate treatment given people who in important ways are similarly situated psychologically, lead me to wonder if death is ever an appropriate sentence for any state to carry out.
    So yes, I now agree with those who argue that the death penalty in Connecticut should be eliminated, through the stroke of the governor's pen approving appropriate repeal legislation, since the same result cannot be achieved by lethal injection.
    All best wishes,


  5. I post as Anonymous only because I work with people who are committed under the PSRB.

    While folks so committed are acquitted, they are, nevertheless, sentenced. The linguistic jumping game refers then to acquitees and not sentenced but "committed".

    Your comparison between the cases might also benefit from two people who may have lacked the financial resources to hire the best forensic specialists available - and with attendant battery of law clerks, expert witnesses and the like.

    Although resources are certainly provided to people with public defense teams, my supposition is that they still can't compete with dream team assemblages.

    As for Rev. Hall's observation that one of the three has been subject to special scrutiny by the media, one might wonder what he was thinking (strategically) some years back, when he agreed to participate in a series of lengthy interviews with the Hartford Courant's Kathy Megan. The article series did not hesitate to provide details that might otherwise have been forgotten had he remained quiet.

    Just saying....

  6. Dear Anonymous (12-20-11 at 4:19 p.m.),
    Thanks for your Comment. Actually, Komisarjevsky, the only one of the three to face a capital prosecution and now, a jury verdict of death by lethal injection, had a kind of dream team defense. He had three special public defenders, Jeremiah Donovan, Walter Bansley, and Todd Bussert (I think that was the young lawyer's name). Jeremiah and Walter are senior private defense attorneys with excellent backgrounds and track records. Jerry went to Harvard Law School and I've seen him try other cases; he's one of the best around.
    Walter had the case in which a Marine was tried for murdering another Marine. The case was celebrated in the press and became the story behind the movie, "A Few Good Men." Both he and Jerry are in their sixties and have practice criminal law for many years.
    They hired excellent forensic psychologists and psychiatrists to evaluate Komisarjevsky's mental health history and determined, and testified, that he suffered from untreated depression.
    I watched a fair amount of the actual trial in New Haven Superior Court, both the guilt phase and then the penalty phase. The defense team put on six weeks of evidence to try to humanize Komisarjevsky and make the jury fully aware of his entire life history, which included much sexual abuse, undiagnosed depression, and a refusal of his adoptive parents to get him the psychiatric help he needed.
    This evidence was not put on to exonerate him but to try to persuade the jury to save his life and sentence him to life in prison without possiblity of parole.
    The problem in the Komisarjevsky case was not a lack of defense resources or talent but a lack of pre-murder psychiatric treatment, making it hard to try to put on a defense of insanity, a heinous crime including sexual assaults on two of the victims, and a jury sitting in a courthouse not many miles from where the crime occurred, with all the attendant publicity.
    The defense did an excellent job of withstanding the hatred directed their way because they took on the thankless task of making sure the state did justice in the case to both defendants. The lawyers for Komisarjevsky also did as good a job as anybody could have done of trying to humanize the young man for the jury.
    I see no reason to believe that Johnnie Cochran (OJ defense attorney; "If the shoe don't fit, you must acquit!") could have saved Komisarjevsky. Komisarjevsky didn't get the death penalty because he lacked a dream team. He committed a heinous crime against a prominent Connecticut doctor and he had no pre-accident psychiatric history, although he pretty clearly had serious mental illness from the time he was young, following his being anally raped by an older boy living with his family.
    As for David Messenger, I agree it was poor strategy on his part to give those interviews to the Hartford Courant a few years back.
    All best,

    Bob Dutcher

  7. How can one say that Komisarjevsky had no psychiatric history. He was treated at Elmcrest for 15 days while a teen. Sometimes lady justice is blind. Oh...and if Dr. Petit had not kept this issue and himself in the public eye..who knows what would have happened?

  8. Dear Anonymous (12-21-11 at 6:48 p.m.),
    Thanks for your Comment. No question, Komisarjevsky was at Elmcrest for 15 days while a teen. 15 days out of his entire life. The problem is, his adoptive parents lacked faith in modern psychiatric treatment, so there was no ongoing treatment for the next 16 or 17 years, despite the fact he had been sexally abused as a child and had ongoing problems with mood control. The religious "treatment" his adoptive parents got for him just made his psychological problems more acute. Komisarjevsky was clearly a damaged person who had no pragmatic guidance from his adoptive parents and was left to his own devices to self-medicate his mood disorder with drugs, self-cutting, and elevating his mood by engaging in illicit, "exciting" activities, like burglarizing houses at night whent the residents were sleeping.
    I have no criticism of Dr. Petit. He has suffered a grievous loss, under unimaginably horrible circumstances.
    My main point is the shocking irony that a man with NO prior psychiatric history (Messenger) gets the benefit of the insanity defense but the man with a multitude of pre-murder serious psychological problems is now on death row. These are, of course, complex cases, legally, morally, and psychologically, so I do not expect to persuade anybody of my point of view without writing a much lengthier essay about why I have the views I do.
    Thanks, also, for taking the time to read "Bobs blog."
    Happy Holidays,

    Bob Dutcher

  9. Hello Bob -- thanks for writing your blog - always find it interesting -- always read it. I work in the mental health field -- in fact, for a time, I worked at Elmcrest. Many folks suffer, under the skin, with untreated emotional disorders, ptsd, neglect, etc. I don't make excuses for those who step over the line of civil and acceptable social behavior. I don't applaud those who don't. I don't make excuses because of 'conditions'. We all come to the planet with lessons to learn, challenges to face, problems to overcome. I hardly know anyone who couldn't qualify under some code in the DSM-TR. In general, I have to say I disagree with capitol punishment, though I acknowledge how satisfying it might be for the family of a victim (and I DO get that). Instead, I can't think of a more permanent punishment than life without any possibility of parole -- and with prisoner rights recreation, access to libraries, computers, television, appeals etc. Now that is a lonely existence that forces 'THOUGHT' and, just maybe, some true penance. We don't have to see it -- it just needs to happen. Let God or the universe judge. What are your thoughts?

  10. Good morning, Anonymous (12-22-11 at 5:47 p.m.),
    Thank you very much for your substantive Comment. And thank you for reading "Bobs blog."
    I've thought deeply about this subject. During the Komisarjevsky trial, I posted a lot of Comments on, especially following the article reporting the death penalty verdict by the jury. My online moniker was "Intrigued Lawyer."
    Most of the Commenters following the penalty phase were convinced that there was NO QUESTION that Komisarjevsky should and would get the death penalty. They saw the trial as a farce and pointless. How, they wrote, could anyone think otherwise? How gleeful we would be, they Commented, to pull the switch and let the lethal poisons enter Joshua's veins in the execution chamber. They viewed him as "vermin," to be exterminated the way he killed Dr. Petit's daughters and wife. They predicted the jury would make a decision quickly, since there was no alternative to the jury ordering Komisarjevsky killed by the State.
    I made it clear, in all of my responses and comments, that I made no judgment about Dr. Petit wanting Komisarjevsky and Hayes to get the death penalty. How do I know how I would react under similar, unthinkable circumstances. I had only compassion for him, but also hoped, as I've written on "Bobs blog," that Dr. Petit is able, as Job was, in the Old Testament tale, to move from a focus on the horror of life to a search for love in the face of tragedy. Again, whether he is capable of achieving that transition, whether I would in similar circumstances, is unknown. But Job shows it's possible. Elie Wiesel shows it's possible.
    Consider Elie Wiesel. He survived the Nazi death camps. He lost family members. He looked evil in the face and, in his novel "Night," he wrote that his faith in God went up in smoke from the chimneys of Auschwitz. But somewhere along the line out of the death camps, Wiesel regained his faith.
    When Wiesel spoke at my alma mater, Wesleyan, earlier this year, about the death penalty, he said the State should NEVER kill anyone in retaliation for murder. Hard labor, yes. Imprisonment for life, yes. But never capital punishment. Death is not the solution for death, he intoned.
    The Commenters argued from the Old Testament, "an eye for an eye, a tooth for a tooth." That, I suggested, was an argument for proportionality in sentencing. While it can also be seen as a justification for capital punishment, that principle must be reconciled with the even older principle that "Thou shalt not kill." In that Commandment, there is no exception for capital punishment by the State.
    Now we are humans, not Gods. We live a mortal life of pleasure, pain, and woe. Our souls are more complex than the Ten Commandments may acknowledge. So we make exceptions to the blanket rule: killing in self-defense is fine; killing in warfare is fine, even celebrated; it's okay for the United States to invade Iraq without justification and cause the death of hundreds of thousands of people, thousands of soldiers, and countless maimed people; it was okay for the United States to unleash the atomic bomb on the world, and the world's subsequent history, at Hiroshima and Nagasaki, because the end justified the means; it was okay for America to firebomb Dresden and Tokyo, because the end justified the means.
    In the Komisarjevsky case, the reported that the jurors were in tears because they wanted to find a way to save Joshua's damaged life and still give Dr. Petit the satisfaction of seeing Joshua killed. They could not, so they decided on death.

    (Continued in next Comment, due to length limitations of the blog program)

  11. (above Comment is continued here)

    The jury took four days to weigh the evidence and reach a verdict. This infuriated the angry, enraged mob of Commenters on the Comments section. How, they raged, could the jury be so stupid? How, they ranted, could our justice system be so dysfunctional? How nice, they vented, it would be to pull the switch, to fire up Old Sparky, to see Joshua treated like a bitch by the other prisoners in Somers?
    Appalled by their reptilian reaction, which, I Commented, mirrored the reptilian reaction of Joshua Komisarjevsky during the Chestire Home Invasion, I suggested they might, instead, take a different approach. If Lady Justice determines that Joshua must be killed by the State, then let him be killed by the State, by all of us, but we then should ask for God's forgiveness for our own act of killing a creature of God, In Cold Blood. The executioner who pulls the switch to release the killing brew into Joshua's veins will, I hoped, do so with difficulty, with reluctance, and with tears of sadness running down his cheeks. That, I suggested, was the only proper way to possibly reconcile the legal duty to kill the young man with the moral responsibility to refrain from all killing, no exceptions.
    The problem with Wiesel's recommendation (death, never; hard labor, forever), and yours, is that we have another moral principle in play in America: the Constitution. The 8th Amendment (no cruel or unusual punishment) has been interpreted in a way which would prohibit some forms of "hard labor" "no recreation, no library access, no computers, no television, no appeals, etc.", as you suggest.
    You have raised some VERY interesting and challenging issues. That's why my response has been so long. We've only scratched the surface of this fascinating and enormously complex subject.
    I'll leave you with this thought. Our dialogue calls to mind this Zen koan:


    I do hope you'll make more Comments on the blog about this or any other issue.

    Happy Holidays,

    Bob Dutcher