Video: Are the Bird Rock Bandits a gang?

NBC Universal Anchors and Correspondents
By Keith Morrison Correspondent
Dateline NBC
updated 6/22/2009 8:44:31 PM ET 2009-06-23T00:44:31
TRANSCRIPT

This report re-airs Dateline Sunday, June 4, 2010

There is a placewhere the hills that slope down to the rolling Pacific are a manicured green, a place from whose estates the well-to-do can see forever, from whose celebrated schools the offspring leap to their Ivy League careers, where even nature has conspired to roll out a town-sized climate sweet spot here above the storied surfin the jewel by the sea: La Jolla, Calif. The book of crime is thin here; bad things surely should happen in less rarified zip codes than this. And yet, of course, happen they do. And here he is:  the California golden boy, bursting with his possibilities, ignorant of his imminent fate.

"Surfing is my passion, even if I don’t make money off of...

His name was Emery Kauanui.

Right here in this video, he was on the cusp of his life's ambition.

Cindy Kauanui: He was incredible. He could fly through the air just like a rocket. He just enjoyed the ocean.

Here is Emery's mother, Cindy, who, you'll notice, is talking about her son in the past tense.

Cindy Kauanui: Well, he was a-- a really happy guy. He had a bright smile. He just lit up the room. He was always excited about everything and into everybody's business.

Though it was Emery's girlfriend, Jenny Grosso, who would figure so prominently in the mystery of that one terrible moment.

Jenny Grosso: He always had that-- that spirit in him that was very youthful. And he'd look at things and still be curious and amazed by them.

But that was before it happened, of course. And ultimately, "before," for Emery Kauanui, was the island of Kauai, where he grew up on world famous beaches. This is his little brother, Nigel.

Nigel Kauanui: (laugh) . We just did everything together. We were best friends, ya know? I always looked at him and I said, you know, "I don't know what I'd do if I lost you."

From the start, Emery's family saw something special in him -- and in his way with the waves.

Cindy Kauanui: He started with a little boogie board. Then he kind of graduated to learn how to surf the inside reef. And he started picking up waves a little bit. Well, then the hurricane hit the island.

Hurricane Iniki in 1992. When Emery was nine, hurricane Iniki devastated Kauai. Devastated Cindy, too. And so, no home, no job, after the storm, she picked up her sons, and left for California.

Cindy Kauanui: I just had a focus of supporting my kids and surviving. She leaned on churches, family, the Red Cross.

Nigel Kauanui: My mom came out here with nothing. You know?  But we did what we had to do. And… She made it. Founded a modeling agency for the surfer look. Which did very well.

Cindy Kauanui: And we bought a house in La Jolla. Not a mansion, mind you. Still...

Keith Morrison: Buying a house in La Jolla is a big deal.

Cindy Kauanui: Yeah, that was-- that was a huge blessing, huge blessing. A blessing, indeed. La Jolla, the place so many strive to call home.

And yes, this. In the sport that helped define young California, La Jolla's Windansea beach was like, well, say, golf's pebble beach. But La Jolla can be an insular town. And Windansea does not welcome justanybody -- which Emery learned as a teenager. Video: Emery's childhood on Kauai

Cindy Kauanui: So, when he first started surfing there, you know, being that he's Hawaiian, you know, they-- they were a little rough on him.

Keith Morrison: They don't welcome outsiders at that--

Cindy Kauanui: No, they weren't--

Keith Morrison: --beach.

Cindy Kauanui: --really welcoming.

Keith Morrison: Sure. But Emery, remember, was like a rocket on his board. And eventually, among the regulars at Windansea.

Cindy Kauanui: He proved himself after a while. They kinda, "Wow, he's really good, you know?"  He's--

Keith Morrison: So, he belongs here.

Cindy Kauanui: He kinda earned the respect. He was really, really nice in the water. And then he just got better and better and better. So, all the  photographers would go down there and wanna film them. His girlfriend Jenny was on the beach with the rest of them.                  

Jenny Grosso: He was very good-looking. He was charming. He was one of the best surfers in La Jolla. He was so good, our golden boy, as he filled his trophy case and won his prizes, that eventually the sponsors came sniffing around,talking real money.

And thus the opportunity, once just an idle dream, to make his living this way. He was going pro.

Cindy Kauanui: I mean, I remember him just crying, going, "I can't believe it. " Ya know, I was like, "Well, you deserve it. " And I was really proud of him. But this was still just anticipated success, here in lucky little La Jolla. For all his promise in the water, Emery, at 24, was still living in his mother's house, his future unsecured- which was not unlike a whole group of young La Jolla men, raised and schooled here, who now drifted unfocused down affluent avenues toward the signal event of their lives. Remarkable, really, that this place of so much promise and privilege would become the stage for what happened for the sort of occasion that can knock out dreams in an instant.

Part 2

It’s a beautiful place, La Jolla. With its preservation minded downtown, its parks, its famous waves, its beaches, its lovely homes…privileged. Wealthy. Emery Kauanui's mother Cindy found a way in, and succeeded. Now Emery - the budding pro surfer - was at the precipice of all he ever thought he wantedhere in La Jolla. But every town, rich or poor, has its best neighborhoods and some less so, some that could slide, modestly anonymous, into any town anywhere. such as the La Jolla neighborhood they call"Birdrock. "

Here is where, in elementary school back in the mid nineties, a group of little boys solidified a life-long bond. Little kid named Eric House, for example. Here's another of them: Hank Hendricks. And like most any pack, people, wolves, you name it, they gravitated to their alpha male: a strapping big kid named Seth Cravens, who happened to be the thirteenth of his parent's fourteen children. A charismatic child, said his father Bill.

Bill Cravens: He was very outgoingas a child. When anybody he would meet--   he has his very pretty eyes. And-- that has been an attraction.

Jenny Grosso, who later became Emery Kauanui's girlfriend, was friendly with Seth in middle school.

Jenny Grosso: There was a group of us, quite frequently after school and we would just hang out. You know, come eat sandwiches after school in my garage and listen to the N'Sync CD and you know, we were kids.

But Emery's younger brother Nigel saw a different side of Seth Cravens.

Nigel Kauanui: The first day I met him, he tried to fight me. Sixth grade. This guy's been a bully since he was a kid.

A bully?  Well, perspective can change the way you see a person. In those early years, the little boys bunched together at t-ball games and on their skateboards.

And at somewhere along their way, perhaps at elementary school or middle school, they gave themselves a nickname: The Birdrock Bandits. By the time the new millennium rolled around, they'd shortened that to “BRB” or, “The Vandits.”Seth Cravens and his pals were in high school by then. Popular, good looking, football players all.

Bill Craven: He always had girlfriends.

Karen Craven: He was the center of attention a lot of the times.

But at this elite La Jolla public high school, the Bandits sometimes got attention for the wrong reasons.

Dave Ponsford: They came into our school with the reputation  of gettin' in trouble and fighting and partying.

La Jolla high football coach and history teacher Dave Ponsford knew the boys all too well. He tried to rein them in but with limited success. One of the Bandits, Eric House, was an all-league player, but off the field he ran into trouble with the law, earning him a juvenile record. Other Bandits had problems too, in school and out. But of all of them in this little pack, it was Hank Hendricks who seemed to be going places. A bandit, yes, but also a stand-out guy -- the quarterback, nicknamed "The swan." Hank even grew close to Doug Flutie, the Heisman Trophy-winner and a La Jolla resident.

Dave Ponsford: I had Hank in A. P. U. S. History. He knew a lot of people, and he was comfortable with a lot of different groups.

And the alpha male, Seth Cravens?  Well. He loved playing football. But, not for nothing was his nickname "Mooseknuckle."            

Dave Ponsford: Seth was physically imposing-- but as a football player didn't have that ability to-- to just plug into what his responsibilities were. Maybe because the team he seemed to care about most was the bird rock Bandits.

Keith Morrison: He was sort of a ringleader of that group.

Dave Ponsford: He was a bit of a-- he was a bit of a leader. I think the others, with the exemption of Hank, were  a little bit more of a follower- type. And-- rather easily lead, maybe.

La Jolla high sends more than ninety percent of its students off to college -- an exceptional number. But among the five Bird Rock Bandits? Hank Hendricks made the football team at the University of New Hampshire. And the rest slouched out of their teens in full drift, living with parents, dabbling at community colleges, working odd jobs, going, apparently, nowhere.

Dave Ponsford: They never got out of La Jolla. They never got out of that, that mindset.

Seth Cravens' father fretted over his son's apparent lack of direction.

Bill Cravens: Some of the children kind of get it--  how things work. And Seth is one that just kind of didn't get it. About-- having to-- discipline yourself to get up in the morning and go to work or go to school.

Instead, Seth and friends gathered at bars and parties, andon the sand above a certain exclusive surfing spot. Remember?  Windansea. Emery's beach. But the Bandits weren't there for the rolling surf.

Jenny Grosso: And they'd just get drunk beyond-- just belligerent drunk all day long. I'd go down to, like, watch Emery surf at Windansea and thenyou just see this group of people just rushing together, and you're, like, "Oh, there's a fight again," you know. There's the Bird Rock Bandits.

But whatever others thought of them, the Bandits were deeply loyal to each other.  And especially protective of Eric House, a year younger, the "kid brother" of the group. And together they drifted about, young men who somehow failed to get away - to leave La Jolla. But then why would they leave, when so many others aspired to live here? Life was fine and fun and easy. Emery was preparing to soar . But he wasn't quite there yet, and in the meantime socialized happily at some of the very same places in which members of the Bird Rock Bandits sharp-elbowed their way around. Emery was no bandit, but, like some of the other stay-at-homes, he had also made the police blotter: Occasions when his temper - and his fists - may have outrun good judgment. It was a phase which Emery had about worn out by 2007, as he told his mother Cindy.

Cindy Kauanui: He said, "Yeah, Mom. Come fall, I'm gonna go back and get my basics and then transfer to U of H."

And if only he'd returned to Hawaii a little sooner. . . It was a Tuesday night. Late may, 2007. A local bar was having a surf event, Emery was there. So was his girlfriend Jenny. And so were the Bird Rock Bandits. Celebrating, because Hank Hendricks was home from college for a visit. Seth Cravens had emailed his buddies: "Baby tonight we rage. Swan is on a plane coming home to us so call me cuz it’s gonna get nasty."

Jenny Grosso: They're  walkin' in, like, ready to start trouble.

And here in this bar, spirits rose, and then flew beyond control. . And in their alcoholic haze, they had no idea that the clock was ticking through its last minutes down to the defining moment of all their lives.

Part 3

La Jolla, California. May  23, 2007. The La Jolla brew house was buzzing --  a video camera was there to capture it. Here was Emery Kauanui,  24 years old, no idea what was coming this very evening. Jenny Grosso was with him.

Jenny Grosso: And we're all socializing and talking. And Emory and I are dancing and we're having fun.

That's when the Bird Rock Bandits arrived. Hank Hendricks -- aka "The swan"-  was home from the University of New Hampshire. Seth Cravens had emailed his friends: "baby tonight we rage. Swan is on a plane coming home to us so call me cuz its gonna get nasty."

Jenny Grosso: The vibe became very uneasy.

Keith Morrison:  In the bar?

A snap of the finger they're walkin' in, like, ready to start trouble. But Jenny and Seth had always been friendly, if not exactly friends.

Jenny Grosso: And so Seth comes up to me. And I give him a hug. He tells me, "Oh, I smoked seven blunts today. "  I was like, "Oh, wonderful, (laughter) Seth. That's great.” But he was nice to me. And him and Emery exchanged probably like a-- a handshake or a high five. But there was no tension. It was fine. Emery spent a few moments with  Eric House, one of the Bandits -- their meeting captured here on camera. Then as the clock ticked to its awful climax, the booze, bit by bit, stripped away the tenuous civility. Tongues slurred. Balance slipped. Noise ruled. And then, it was just a garden variety mishap, really. But it was enough. Though - still - no one understood what was beginning here.

Jenny Grosso: It's really close quarters, so, I, we're bumping into people.   And then Emery's drink spills. And Eric was right there next to us. Somehow Emerys drink gets onto Eric just a little, but then all of a sudden, you just-- this uproar. And Eric saying, like, "Oh, you know, what the f?  You just spilled a drink on me. "

And Emery he apologized for it.

Jenny Grosso: He kinda made a joke out of it,he spilt it on himself. Like, it's not a big deal. It's a drink on this shirt.

It was, apparently, not the right thing to do.

Jenny Grosso: And they didn't like that at all. That was fuel in the firetape. Then Seth chimes in,"You better watch out 'cause Eric will f*ck you up. " Emery gets offended by that. And there is an exchange of-- yelling at each other.

Full bore testosterone now. Neither one would let it go. Management asked them to leave the bar.

Jenny Grosso: So we leave. And we get in the car and I'm driving him home. But all of a sudden Emery's on the phone. And this is when we're pulling up to the house. He was saying, you know, "Oh, no, I'm not gonna fight you. How are you gonna do that to me, like, in front of my chick?"  It was just after one a-m by now. They'd arrived back at Emery's house --  he was still on the phone, shouting. The noise awakened a neighbor.

Jenny called him in, made him get off the phone -- calmed him down. But now there was another problem. Jenny had driven Emery home, but her own car was still parked at the bar. But, as she walked the few blocks back to the bar to get it

Jenny Grosso: I just had an unsettling feeling. “None of this is good, these guys are really amped up. " So I start running.

Jenny took a short cut down an alley behind the bar -- and saw the Bandits huddled together, Seth talking.

Jenny Grosso:I hear Seth's voice. "Let's go, let's go f*ck him up. Let's go f*ck him up. I know where he lives. Don't call him. Don't call him. " So I start screaming. ""Seth!  No!  No!   What are you doing?  Stop!"  And he turns around and he looks at me.   He's just got this blank stare on his face. And I'm like, "No!"  And they jump into a car, and they just drive right by me.

Jenny called Emery. No answer. She dialed 911. She ran to her car and roared back to the house.             

Jenny Grosso:I turn the corner. (crying) . And then I see this-- this mob that's on top of him.

Emery was down, she said, four Bandits pummeling him. A fifth , who she didn't know,  was standing off to the side, watching.

Jenny Grosso: And I see 'em kicking and punching. And just start holding my horn down and screaming.   Stop!  Please stop!" 

She got in the middle of it then, she said, and most of them pulled back. But there was Eric House, still on the ground, on top of a dazed Emery .

Jenny Grosso:He's not fighting back. His eyes are open, but they're kinda like rolling and dazing. So I start kicking Eric as hard as I can. And they're just screaming, "you're crazy, you bitch!  Get outta here. " And I feel these hands pulling me off of Eric. it was the fifth man, the one who'd been watching,           then Eric gets off and he must have been tired ‘cause at some point he got off of him.

Several neighbors, witnessing the fight, called  911.

There’s something real crazy going on outside my house.

What happened next would make all the difference. This is what Jenny says she saw:

Jenny Grosso: Emery's up at this point. His hands are down, almost like a submissive defeat position . And he makes a comment directly to Seth. "Why the f*ck did you come to my house, and jump me in front of my house?  Like, why would you come to my house?  Why would you do that?"

The answer to Emery's question came very quickly. Seth Cravens raised his arm, clenched his fist, and foreclosed the future.

Jenny Grosso: Seth walks up to him and he gives him the hardest punch. I mean, a knockout punch. Emery-- you can see the lights go out. He falls straight back, you hear his head crack when it hits the pavement. And the blood-- just a pool of blood just pours from his head. His eyes are closed. He looks like he's dead. I'm screaming, "Emery, Emery, Emery please. "  And then I just looked at Seth. I just start screaming,  "Look what you did." 

Still it didn't stop, said Jenny; two of the others kicked Emery -- hard. Later neighbors claimed they saw Seth or one of the others check Emery's pulse. One heard someone say "I'm sorry".

The Bandits fled, save for Eric who looking for a lost tooth. Police arrived soon after. Eric was taken into custody. And ambulance was summoned for Emery. He was bleeding from the back of his head . . . But he was alive. He was rushed to the hospital. And thousands of miles away in Hawaii, Emery's mother Cindy answered the phone.

Cindy: I think God lets moms know. Because-- I felt something.

Part 4

It was 9am. May  24th, 2007. Cindy Kauanui was on business in Hawaii. The phone rang.

Cindy Kauanui: I got a call about 9 in the morning and-- it was my neighbor across the street that called me.

It was  10 hours since the punch that slammed her son Emery's head into the street back in La Jolla, California.

Cindy Kauanui: And he goes-- "something's happened. "  I just knew. "It's Emery, isn't it?"  (crying) He said, "yeah. "  I just hung up the phone. 

She rushed to the airport. It was evening in La Jolla by the time she arrived.

Cindy Kauanui: And I got to talk to him. And he was conscious. But, he couldn't keep his eyes open, you know?  He was on morphine.

Keith Morrison: What did he look like?

Cindy Kauanui: He actually looked like Emery. He didn't have any black eyes or any blood. Everything was more to the back of his head. So, I didn't see that.

Emery was able to talk - a little. He told his mother about the fight, how Seth Cravens hit him, knocked him down. She thought, he's getting better.

Cindy Kauanui: He was in stable condition at that time.

Among the Bird Rock Bandits, nothing was stable. Eric house, remember, had been arrested when police arrived in the early hours of May 24th. He was released later that day. Some of the others spent the night holed up at one of their homes, just a few blocks from Emery's. Over the next few days, the Bird Rock Bandits would compare notes on the fight, and explain to their families what happened. And wait for things to blow over. But at the hospital, it wasn't blowing over. The injury to Emery's head had caused swelling in his brain. There was an emergency operation. . . Apparently successful.

Cindy Kauanui: He was just resting,  they gave him air to, to bre--  . I could just hold-- and his hands were bandaged.  I said, "I'm not gonna let go, junior. I'm not going. I'm gonna stay right here. Not gonna leave you. "

Relief. Emery's outlook seemed promising -- Cindy Kauanui kept vigil by his bedside, waiting to hear his voice once more: but head injuries, dangerous and unpredictable, exact whatever toll they will, no matter what the doctors do.

Cindy Kauanui: But then his brain continued to swell. And so the doctor pulled me aside and he said-- "there's nothing more we can do. " Yeah, in other words he's-- he's either gonna be brain dead or, or he's gonna die. but he'd been talking.

He seemed. . . okay. Cindy refused to accept what she was told.

Cindy Kauanui: I just wanted to believe that somehow he could be healed. That somehow a miracle would happen and he could be healed. And-- and then the pastor came in and he said, "Cindy, you've had your son for 24 years. He belongs to God. And just like Abraham had to give Isaac up on the alter, you need to give your son up. You need to release him back to God. He belongs to God. You need to release him back to God. " And so he said a prayer, (crying)  and then-- he died shortly after that.

Emery Kauanui, age  24, died on May 28th, 2007. The official cause of death -- blunt force trauma to the head. The news spread quickly. Sarah Cravens is Seth's sister. He thought Emery was gonna be okay. And-- then later that day, he called and said that Emery had died.

Keith Morrison: How did he take it?

Sarah Cravens: Very hard-- he was sitting down on the floor and hunched over and just crying. And you know, that's my brother. It was very hard for him. And I know what a tender heart Seth has and how much he cares for people.

But the news of Emery's death was of interest not just to his family, or the Bird Rock Bandits.

Lt. Kevin Rooney: I received a call at about noon-- saying that there was a young man in a trauma center who had just died. And he'd been assaulted several days before.

Lieutenant Kevin Rooney heads up the San Diego police department's homicide unit. 

Lt. Kevin Rooney: We decided that it was appropriate-- to take four people into custody-- and arrest them for Emery's death.

Police arrived at Seth Cravens' home on may  29th, the day after Emery died.

Sarah Cravens: And our doorbell rang there was two detectives and two cops. They went and got Seth.

Keith Morrison: Did you see his face as he left the house?

Sarah Cravens: He just had his head down.

And around the town, the same scene played out at three other homes. The Bird Rock Bandits, La Jolla native sons, with all the advantages that bestows. And now four of them were charged with murder.

Part 5

Even as young Emery Kauanui flew through the surf to his prizes, his accolades, his potentially lucrative career, he indulged, with his mother. . . An odd fascination.

Cindy: We would talk about death.

It was idle chatter, a boy's hypothetical foolishness, when Emery talked to his mother about what to do in the event of his death.

Cindy Kauanui: And he actually told me where he would want his ashes spread.   I said, "Okay. "

And now she went about the awful business of doing just what he had asked her to do.

Cindy Kauanui: When you're a surfer, you wanna be back in the ocean 'cause it's where you spent most of your time.

There is a somber tradition among the little tribes that live to ride the surf. This, to mark an untimely death: paddle-outs, they call them. For Emery, a ceremony in California, another, full of Hawaiian tradition, in Kauai. That's Cindy right there, Emery's mom, spreading his ashes on the water. At Windansea, the locals named a break after him -- " Emery's left," for he was a "goofy foot" as they say - used his left foot to balance the board.

Cindy Kauanui: You remember every age. It's like, if I see a three year-old holding his mom's hand, "Oh, I remember when he did that. "     

Yet it was not just Emery's death that saddened Cindy. It was also the spectacle of those four young men in court, charged with his murder.

Cindy Kauanui: They were just all chained together in a row.   I just felt sad. I felt sad for them, too, because they're so young   and I think of the dishonor that they brought to their family, the shame that they brought to their parents.

But among those parents, it wasn't so much shame as apprehension, confusion, self doubt. Bill Cravens is Seth's dad.

Bill Cravens: You wanna be able to protect 'em-- you almost would like to  trade places with them. You think--  as a parent, that you're-- more capable of--   taking the blow. I think that's what happens when we have a child that is-- in-- prison or any kind of difficulty.

Seth's mom, Karen Cravens, was baffled by the murder charges. As far as she was concerned, and parents of the other Bandits, too, what happened to Emery was an accident, a fight among boys that just got out of control.

Karen Cravens: They've blown it way out of proportion. When Seth hit him, there was no murderous intent in his heart. Emery was his friend.

But there it was: the shocking news that in La Jolla of all places, four young men, middle class kids, were sitting in jail, charged with murder. 

Karen Cravens: It was such a sensational thing of five young men beating up on one, even though  the evidence was there-- to go away from that.

Wait a minute. . . Five young men? Well, in fact, one of the Bandits had so far avoided the spotlight and the law.  Hank Hendricks, the bandit who'd become a college football player, was preparing to return to his studies in New Hampshire.

Dave Ponsford: He had read in the paper about the incident. And that they were looking for another guy. And he knew it was him, he hadn't been named, because Jenny Grosso didn't know his name.

Hank was the fifth man --  he watched it happen, didn't take part, but did prevent Jenny from helping her boyfriend. And so Hank went to talk with investigators. He told his La Jolla high football coach Dave Ponsford about the conversation.

Dave Ponsford: So, he went down  and gave them his version of what happened. The police told him to-- go back to New Hampshire, and-- not worry about it. That he was not a person of interest.

So Hank headed back to college, just a witness so far as he knew. He and the rest of the Bandits unaware of the blowback their antics had aroused around the San Diego area. Many people recognized the Bird Rock Bandits' faces from all the stories in the media, and they were calling the police to report troubling incidents from weeks, months, even years earlier.

Lieutenant Kevin Rooney, of San Diego homicide.

Lt. Kevin Rooney: We started to receive two to three dozen phone calls saying a range of things that, "I know suspect so-and-so, and he's been a bully since he was in grade school," to, "I was battered two years ago.” Detectives looked at each incident, combing over what evidence was available, calling what witnesses they could find.

And what emerged seemed to go far beyond that one night's deadly rage.

Kevin Rooney: This wasn't the first time this ever happened. People suffered some pretty significant injuries as a result of some of those prior assaults.

New warrants went out, homes were searched,   and the detectives found some unusual items -- drawings with swastikas and devils. Hells angels' stickers, a knife and a pistol, and many, many references to the bird rock Bandits, or BRB for short.

In july, district attorney's investigators  filed a new court document detailing 15 other acts. It read like a road map of mayhem: criminal threats, beat-downs, brawls, sucker punches.

At parties, at the beach, seemingly at random. There were two commonalities in virtually all of the incidents:  alcohol . . . and the punches of Seth Cravens.

Kevin Rooney: The question became, were these activities consistent with a criminal street gang.

Criminal street gang. . . A label with serious implications that could mean serious prison time for the Bird Rock Bandits. Here's why:  at the end of the 80's, the Bloods and the Crips terrorized the inner cities of Southern California. . . their bloody war . . . And the violence of growing gangs of imitators inspired the state government to pass tough anti-gang laws, imposing long punitive sentences for crimes involving gangs. But a criminal gang in La Jolla? Even those who feared them had always thought the Bird Rock Bandits were a bit of a joke.

Jenny Grosso: If anyone knows La Jolla, and it's basically comparable to saying, like, you're the Beverly Hills Bandits, you know, it's-- it's laughable, really. But Prosecutor Sophia Roach thought gang charges fit the circumstances perfectly:

Asst. D.A. Sophia Roach: A gang is essentially an organization that terrorizes a community.

Keith Morrison: And those other street gangs might look at these-- you know, these Bird Rock Bandits and-- and raise their eyebrows, and--

Asst. D.A. Sophia Roach: Absolutely.

Keith Morrison:  --"Poo ," I spit on you.

Asst. D.A. Sophia Roach: I- I agree.   Every gang has an origination. They start out as small groups of people, and they evolve.

Time, the D.A.decided, to ratchet things up. With, on September 4, 2007, a legal bombshell -- three of them, actually. In the D.A.'s view, Hank Hendricks was no longer a witness, but a participant: He was indicted for murder, and called back from college. And then the indictment -- for what were now five defendants -- was  amended to add in  fifteen additional crimes from the past. And perhaps the day's biggest surprise. . . The Bird Rock Bandits, life long-friends, raised in a town of privilege and opportunity, were charged as a criminal street gang. If they were convicted, with the added enhancement of gang charges, the Bird Rock Bandits would have ten or more years of additional prison time tacked onto their sentences. All of this -- triggered by a street fight. Would any of it stick? The prosecutor had a lot to prove, and, standing in her way, one  go-for-the jugular defense attorney.

Mary Ellen Attridge: It wasn't exactly like we were dealing with the Cosa Nostra.

Part 6

Public attention is a fickle business. The wider world might never have heard of Emery Kauanui, had he met his end in some less admired little town. And a year after his death, in May, 2008, a renewed spray of headlines accompanied the proceedings that's usually a legal formality: The preliminary hearing of the young men known as the Bird Rock Bandits.Headlines for a very similar reason: The word 'gang' just didn't seem to fit La Jolla, California.

People ready to proceed, which is why, in fact, this often ignored part of the process was about to become high drama.

Asst. D.A. Sophia Roach: And essentially what we have are a pattern of gang activity.

In addition to the murder charges against the Bird Rock Banditsand the fifteen other assault-related charges, the prosecutor would be defending, right here, her ambitious attempt to add gang enhancements. That could send the Bandits away for many years.

Deputy D. A. Sophia Roach simplified, for us, the argument she made in court.

Keith Morrison: Were the Bird Rock Bandits really a gang?

Asst. D. A. Sophia Roach: Yes.

Keith Morrison: You know, gangs deal in drugs and they carry drugs around and they're tough and they're mean and they live in the inner cities  they have tattoos  these people weren't like that.

Asst. D. A. Sophia Roach: The problem is we have a stereotype in our mind about what a gang member is . But you can't do that. You have to look at objective criteria. And   they met every single component.

Keith Morrison: Like what?

Asst. D. A. Sophia Roach: They're a group of three or more people that have a common sign or symbol. They have a pattern of criminal activity. And it's that that differentiates them from a group of partiers.

Keith Morrison: But, what's the difference?  I mean, they went to bars, they got drunk, occasionally they had a few fist fights?

Asst. D. A. Sophia Roach: Occasionally?  I think it's--  it's more than occasionally.

It made a kind of sense to Emery's mother Cindy.

Cindy:  They were trying to put fear into the community. It was like a power thing, and they would go around and prey on people.

But even she wasn't sure the Bird Rock Bandits qualified as a gang. And at the Cravens' house, the news that gang charges had been added seemed somehow surreal.

Karen Cravens: It was-- hard to believe that they could even consider that possibility. And even more so when we understood the ramifications that-- that automatically adds ten years on to any sentence you're given .

The prosecutor knew the gang enhancement would not be an easy sell legally. For one thing, the judge knew just how much more violent criminal gangs can be. . . . having heard cases involving some of the worst in the state. The prosecutor offered up a gang expert who said he'd analyzed the Bird Rock Bandits.

Prosecutor: They became very active during their last year of high school when they actually started committing assault.

She said he'd looked carefully at their behavior, at their drawings and photos. "He is throwing up his hand signs representing the crew." Of course, said the expert, there are specific criteria for designating a group as a gang -- and the Bird Rock Bandits met quite a few:  a group of three or more, wearing colors, graffiti, intimidation. Maybe they weren't the worst of the gangs. But when the prosecutor asked her key question, she knew what the answer would be.

D.A.: Do you have an opinion as to whether or not the Bird Rock Bandits are in fact a criminal street gang?

Prosecutor: All the evidence that I’ve seen is enough to say in my opinion, that they are a street gang.

All of the defendants had lawyers to argue the point, of course.

MaryEllen: They are not the Crips and the Bloods, but this one?  Was, shall we say, uncommonly passionate.

Her name is Mary Ellen Attridge. Seth craven's defense attorney.

Mary Ellen: I thought it was something that I could-- creatively dismantle.

Keith Morrison: As far as the gang idea, that was ludicrous, as far as you're concerned?

Mary Ellen: Yes. It was not only--   ludicrous. But it was scary. They spent enormous amounts of hours and taxpayer dollars  to label this group a gang-- when in fact, they were just a bunch of--  -- post-adolescence from a neighborhood. It wasn't exactly like we were dealing with La Cosa Nostra.

It was at once both laughable and frightening.

And so, when investigators took the stand, they all faced the same questioning from Ms. Attridge.

Mary Ellen: Had you ever heard of the bird rock Bandits?

Officer: No.

MaryEllen: You never saw any graffitti that reflected BRB to your knowledge?

Officer: Not to my knowledge no.

Her point, of course was this:  if the Bird Rock Bandits were a gang-- had been one for years, how come nobody in law enforcement knew about them? The defense noted other contradictions as well. . . Like the fact that the so-called gang colors the Bandits wore were really just their high school t-shirts.

Mrs. Cravens: They showed a picture, and Seth has on a red t-shirt. And that was proof. They-- presented that as proof that he's part of a gang because red is their color.

And how about those hand signals the expert said they used, and were in so many of their photos?  Defense attorney Attridge found someone else who knew the same sign.

Mary Ellen: Do you recognize that man?

"He's our president."

Mary Ellen: And he's gesturing in the same way as some of the hand signs in some of the exhibits that you were shown by the prosecutor, is that right?

Correct.

Mary Ellen: In your endeavors in the gang suppression team, you never monitored the Bird Rock Bandits, is that right?

Sullivan: Never heard of them.

Even the name, Bird Rock Bandits, was about as frightening as a small school boy. . . It was an elementary school nickname now being twisted into something sinister. At least. . . That's what the defense argued. The decision - gang enhancement or not - would be up to the judge. If he said yes, it would equate the Bandits with the most hardened criminals in the state. It would add 10 years-- half their lives so far-- to any sentence they ultimately received. The arguments ended.

I have wrestled with the case a good deal   in part because the issues were tough.

The tension in the room grew palpable. . . and the judge withdrew to decide.

Part 7

La Jolla, California, long a sleepy enclave of the well to do, was shaken by the brutal beating . . and death. . Of the blossoming pro surfer, Emery Kauanui. And among those who may have been a little smug about the place, a little soul searching, as one shock followed another on their grinding way through the legal system. For a year the question hung over the town: Was it really possible that this celebrated place had produced young men capable of such wanton thuggery? Surfers marking the anniversary: It was the week in which Emery's friends marked the one year anniversary of what to them was clearly . . . the murder of a wonderful young man. But now his story sailed away out of their control, had moved to a downtown San Diego courtroom, where the judge was about to issue a crucial ruling: Let the record reflectwhether these young men, the bird rock Bandits, should actually be tried for murder. But before that could be settled,  there was another tough question: Could the Bird Rock Bandits be defined, in law, as a criminal street gang? If the answer was yes, and they were found guilty of any of the charges against them, up to ten years could be added to their sentences. Around the courtroom the families waited, hearts in their mouths. This was Judge John Einhorn: "I am going to find that people have failed to meet the burden of proof that the Bird Rock Bandits is a criminal street gang." Score one for the defense.

Mary Ellen: ‘cause the gang allegation was dismissed. So, I thought that gave us great-- momentum.

Cravens: It was relief. That's a positive move, we're heading in the right direction.

And now the question became . . . Did the D.A.Have a case at all? Remember, the defendants claimed it was just a drunken street brawl that injured Emery. Who could have predicted his death from brain injuries days later? As they waited for the judge's next rulings, the Bandits and their families allowed themselves to hope:

Cravens:And I thought he was gonna drop the whole thing.

But then. . . The other shoe dropped.

“. . . and there is sufficient evidence to hold  all five defandants responsible. . .”The judge ruled that the Bird Rock Bandits could be tried for the murder of Emery Kauanui. . . And for many other assaults, also. This case wasn't going away. So now, the bargaining began. As Emery's family and friends, out at Windansea Beach, marked his absence from their lives, the men blamed for his death were talking to the DA.

But those young tough guys without whom that ceremony would never have had to be held didn’t seem quite so tough anymore now that they were facing possible life sentences over the course of the next month. Four of them made deals.

Asst. D. A. Sophia Roach: Well, the defendants, with the  exception of Mr. Hendricks, who pled guilty to-- accessory after a felony--  pled guilty to involuntary manslaughter. They pled guilty to involvement in the death of a human being.    That is a significant charge. We were free to argue for the maximum penalty.

Which, back in court, she did.

Asst. D. A. Sophia Roach: This was a group attack. . . this was a planned attack.

For their part, the Bird Rock Bandits seemed a long way from the barroom swagger of that fateful night in May 2007. They stood before the judge like lost adolescents . . . . Bullies finally exposed.

There’s nothing more that I would like to undo what has been done. But it’s too late.

Not a day goes by where I don't think about Emery. I’m sorry for everything that happened and occurred. (choked up)

Hank Hendricks: Anything you decide to give me, judge. . . I promise to do it whole heartily and fully to the highest degree that I can (choking up).

Although there was nothing at all they could do to console Cindy, Emery's mother. . .

CindyKauanui: Emery's my treasure . . . our family is broken.

Keith Morrison: What should happen to those boys?

CindyKauanui: I'm not the judge. , but-- I just know that my prayer is that there would be justice.

Keith Morrison: What is justice?

CindyKauanui: Whoever is guilty is guilty. You can't think that you're gonna do that and get away with that. They killed a beautiful child, a beautiful human being, a human being that brought a lot of love and joy to the world. And if they have to learn their lesson in jail, spend time there to get their life right, then so be it. And then, the man with the power to decide. His options?  Anything from probation to prison terms of up to five years.

Judge: It’s so tempting for me to look at you and say the four of you had all the perks that you could possibly have growing up and that you tried to play tough guys and send you to prison, but that at least in this court’s opinion, would be inconsistent with handling cases as I do.

Because the Bird Rock Bandits did not have adult criminal records . . . The sentencing recommendations called for probation. And that's what the judge gave them-- combined with time in county jail -- varying from ninety days to three hundred twenty. In other words, for all four, a second chance. But one bandit was noticeably absent from all this:  the alpha male, Seth Cravens. The man who delivered the fatal blow. Seth had been offered a deal, too. . Voluntary manslaughter, and a prison sentence of eighteen years. But Seth Cravenssaid no.

Bill Cravens: What the government was asking was so-- so extraordinary.

KarenCravens: We wouldn't even consider it.

Mary Ellen: I can't make anybody take a plea bargain. I can give people their opportunity to take a plea bargain. I can get things as low as I can. But ultimately, it is the client that needs to sign the form and the client that needs to do the time.

Keith Morrison: Are you saying that Seth refused to sign that plea bargain?

MaryEllen: Well-- he--  obviously, did not wanna take the plea bargain. 

Keith Morrison: Did you say, "Maybe you should?"

MaryEllen: Well, obviously I'm not gonna disclose attorney client information. But-- I'm not-- somebody who's gonna browbeat other people into doing-- time that they don't wanna do.

And so now Seth would go before a jury. One young manon trial for the many misdeeds of the bird rock Bandits. . . And for the death of Emery Kauanui-against a no-holds-barred defense attorney-

Prosecutor: Mr. Cravens advanced on him, delivered a punch, and Mr. Kauanui was out. So was Mr. Cravens' use of force in that instance reasonable?  Indeed, it was.

-with  a whole different version of what happened that night.

Part 8

As the case of the remaining Bird Rock bandit built toward a confrontation in court, a perfectly reasonable question made the rounds in La Jolla neighborhoods most people assumed were placid, peaceful. How had all this happened?

DavePonsford: It was just a group of guys that liked to-- to party and fight.

But according to investigators, the Bird Rock Bandits had been posting photos on the internet of their hard partying for years. And their violent behavior had apparently gone hand in hand. So . . . Why hadn't parents or school officials -- the police -- stopped these young men before their behavior reached its horrible climax on that may night? The Bird Rock Bandits' high school football coach had been asking himself these very questions.

DavePonsford: And I think these guys have had some--  past history where they've-  have a fight and walk away and there's really no repercussions.

Had the police just assumed crime didn't happen in La Jolla?  And thus failed to spot the trouble here?

DavePonsford: There is not a large police presence. And so, the one or two officers -- that are in the area are spread pretty thin. Personally I think that's kind of allowed-- some misbehavior to go by.

Jenny Grosso, Emery's girlfriend, wondered if it didn't have more to do with the easy life in this jewel by the sea.

Jenny Grosso: They have so much time on their hands. They're in a community that's safe, so they're allowed to go roam around the community. They're a group of males who are lost and confused.

But only one man remember was on trial for murder.

Bailiff: Remain seated. Come to order. Court is now in session.

On October 27, 2008, prosecutor Sophia Roach set out to tell a bully's tale; the story, she said, of a rough customer, and a steady, brutal march toward murder.

SophiaRoach: This is a case about power, intimidation, and egregious disregard for other human beings.

Seth Cravens, the undisputed muscle of the Bird Rock Bandits, had been charged with second degree murder for delivering the punch that killed   24-year old Emery Kauanui. But he'd been hitting people - and hurting them - long before that, said the prosecutor, his acts a catalogue of thuggish behavior.

Sophia Roach: He beat Michael Johnson until he was unconscious. They tried to beat down the door. Screaming "we're gonna kill you. "act by act. . Sucker punched Mr. Pardee in the side of the head. Victim by victim. Sixteen-year-old girl having a small party: She told Mr. Cravens to leave. Punched her full force in the chest.

Prosecutor Roach reviewed the extraordinary stories of people who found themselves on the wrong end of a confrontation with Seth and friends. Then the prosecutor called the victims to the standto tell what happened when they ran afoul of the Bird Rock Bandits. This naval officer said he felt so threatened by Seth he was prepared to use his gun to defend himself.

Sorenson: He said they were gonna "f*cking kill me. "

This girl, high school age, told how Seth, unprovoked, hit her.

Libby: They hit me once in the chest and then once in the chin.

One by one, victims in the assault cases came forward to tell their storiesabout a young bully who seemed to take pleasure in hurting people.

Logan:  Mr. Cravens looked me in the face and told me he was going to effin kill me - effin kill me.

Just two weeks before Emery met his fate, said the prosecutor, Seth Cravens jumped a total stranger in front of a La Jolla bar, and pummeled the man until he bled from the ears and nose. And afterwards?  He boasted. . and posted the incident on MySpace. from MySpace:

"when r we gonna chill? I can't go to the shack for a while because i murdered someone hahahaha no biggie call me up and lets get krunk. "

All of that, said the prosecutor, was prelude to the night of May 23rd- 24th,the night Emery spilled his drink on one of the Bird Rock Bandits, and hours later paid for it with a punch from Cravens.  And a brain damaged beyond repair. It was to be the main event of Seth craven's trial. And the main witness, the girlfriend who'd lived though it.

JennyGrosso: I knew that I was gonna have to testify. And I was really scared. I was really nervous. 'Cause I knew it could go so many different ways.

Part 9

SophiaRoach: He got up and he approached Mr. Cravens. It's not just stupidity. And it's not just bad luck . Mr. Cravens knew that his conduct was dangerous. And he knew it was dangerous because he'd had incidents before where it caused tremendously serious injuries.

Prosecutor Sophia Roach was convinced Seth Cravens committed second degree murder when he punched Emery Kauanui. The case, for her, a cautionary tale of what bullies are capable of.

To prove second degree murder, the D.A.had to establish that Seth acted with something called implied malice. Not that he intended to kill Emery, but that he knew, by throwing that punch, he might kill him-- and he punched Emery anyway. Here's how she introduced the story to the jury:

SophiaRoach: Standing about four feet away from Mr. Cravens, he asked him, "How are you gonna jump me in front of my own house?"  Mr.Cravens advanced on him and delivered a punch. And Mr.Kauanui was out. He was dead four days later.

Then, the witnesses. Neighbors awakened by the shouting. . . and the punching.

It sounded like a lot blows, like a soundtrack out of a movie.

To me, it sounded like a thunk.

It was a like a scrum line. They were just wailing, four guys were just wailing. This friend arrived in mid-attack. I just thought that there was some, you know, altercation at his house.   I was just trying to get there as quick as possible.

He had talked to Emery on the phone, he said, when Emery seemed to anticipate an attack. .

He was yelling, "Hurry up and get here, get here. I've got beef at my house. " I was like, "Okay, okay, I'm on my way. I'm on my way. " And he was driven there by this woman. . . Arriving late, she said, their headlights flashed on Emery in the middle of the throng.

KarenLoftus: So, I saw Emery on the floor and everybody else was around punching, kicking and all of that. Nobody was just standing anywhere. Though she did claim she saw Emery try to defend himself.

SophiaRoach: Did he do something that caused the group to move?

KarenLoftus: Well, when he got up, he took a swing.

SophiaRoach: A swing?

KarenLoftus: Swing.

Whether he swung or not would become a big deal before the trial was over. Right now, though, the prosecution turned to science to show just how hard Seth hit Emery. In her work, the medical examiner said, she's encountered virtually every type of head trauma. But, when Seth hit Emery -- and when Emery's head hit the street  -- it was with a force not normally seen in a mere punch -- it was more like a car accident, she said, or being hit over the head with a baseball bat or tire iron. The injury graphically illustrated with photos from the inside of Emery's skull. The heart of the case, though, was Emery's sweetheart. . . Jenny Grosso. Who was there for every key event of may  23rd, a night that began with her and Emery dancing in a crowded bar. . . and ended with Emery beaten down on a darkened street.

JennyGrosso:I'm going up and I'm telling the truth and I'm telling what I saw. So, you know, flip it around, ask me 50 different ways, you're gonna get the same answer.

SophiaRoach: And how is it that you knew Mr.Kauanui?

JennyGrosso: He was my boyfriend for five and a half years, and friend.

But Jenny had also known Seth and the other Bird Rock Banditsfor as long as she'd known her own boyfriend.

Jenny Grosso: I would never call Emery a fighter. But, he would defend, you know he wouldn't sit down.

And so she told the jury she was terrified when she heard Cravens and friends planning to go to Emery's house, and when she went racing back to Emery's house, where, she said, she saw her boyfriend on the ground, one of the Bandits beating him.

Jenny Grosso: I saw House-- punching Emery in the sides of his stomach. So he was straddling on top of him. And you could just see punches coming in and on each side of Emery's stomach. . . .

It was she who watched her boyfriend stagger to his feet after that.

Jenny Grosso: And he was actually directed to Seth at this point, who was standing, I'd say, probably about five or six feet in front of him.   And he just said, "How the f*ck are you gonna jump me at my house?"  And maybe his arm's raised a little bit, kind of like what happened?

SophiaRoach: What did you see happen next?

Jenny Grosso: I just saw Seth walk up to him and he didn't say anything back. And he just gave him one extremely hard punch. And Emery just fell back immediately. It was like the lights went out in Emery and he fell back.

SophiaRoach: What was the first part of-- his body that you believe hit the ground?

JennyGrosso: i heard his head.   I heard his skull crack when it hit the pavement. And then immediately after that there was just a pool of blood that started streaming (crying) from the back of Emery's head. It just started covering the back. I thought it was dead right then and there.

Judge: Do you need a break, Miss Grosso?

JennyGrosso: No, i'm sorry. I'm fine.

Remarkably Jenny wasn't just crying for Emery.

JennyGrosso: It was really hard for me to look at him in his eyes and my heart was hurting for him at that point. You know, I'm sad for Seth, too. If I knew for sure that Seth would've walked out of that courtroom and he   would've helped people for the rest of his life. Then that's what I would've wanted. I would never want to take life away from anyone who doesn't deserve it.

Still, even after all that, that testimony and evidence, as the prosecution rested, the question hung in the air. . . Had she proved second degree murder?

Keith Morrison: Why was it a murder?

Sophia Roach: If you do an act that is so dangerous that the average person would know that it could result in death-- then you're culpable for that act.

Keith Morrison: What you're saying is any old bar brawl could be a prelude to someone falling down and getting hurt but to a murder?

Sophia Roach: We're not talking about a bar brawl. We're talking about a group of people who decided to take that drive to the victim's home when they could've gone anywhere else, and conduct a group attack. Seth Cravens had his own story of what happened that night, of course. It won't surprise you that it was a very different story.

Part 10

Keith Morrison: In battle, you're pretty aggressive?

MaryEllen:Yes, I am. And-- I think that if you were the person sitting next to me, you would want me to be.

Keith Morrison: Yes.

MaryEllen:I'm not here-- to-- to make the prosecutor feel good, certainly.

Seth Cravens' attorney Mary Ellen Attridge is aggressive and she doesn't care who knows it. And frankly, she said, Prosecutor Roach was just the sort she'd love to beat. But defending Seth Cravens, reputed town bully, would not be an easy thing to dobecause:

Mary Ellen Attridge: So this was a perfect storm of bad facts, the drinking of all parties, the fighting, the location of the blow and the hit on the back of the head.

What defense attorney Attridge needed to do was make the jury believe a whole new story of what led to all those undeniable bad facts.

Mary Ellen Attridge: Everybody wants to see every participant in black-and-white terms. They want the defendant to be-- demonized and they want the-- the victim to be canonized. And very rarely are either of those things applicable.

And as Attridge knew, Emery was no saint. He'd been arrested twice in 2004, for assault on another surfer, and  the year before for throwing a bottle at a man. In fact, the night he encountered the Bird Rock Bandits he was still on probation. Attridge considered an attempt to get Emery's record into evidence. . . And decided not to.

Mary Ellen: There's certainly a lot of information I had about this particular gentleman that I did not bring in because it was not relevant. I think that I was somewhat restrained in that regard.

Dangerous to blame the victim. Besides, she said, she didn't have to. Instead, attorney Attridge set out to turn the whole story on its head. with - right out of the gate - an astonishing claim.

Attridge: It is undisputed that what happened to Emery Kauanui was a tragedy. It was unnecessary and it was senseless. But it was not a murder. It was a case of self-defense.

Self defense? How could she sell the idea that big, tough Seth Cravens, surrounded by his buddies, was actually defending himself against a lone and much smaller person? With witnesses who would claim that Emery was no meek victim at all,but that he asked for the fight, and was going in fact after one of the Bandits.

Openingarguments: The evidence will show that Mr.Kauanui beat the living tar out of Eric house.Kauanui went over to where Seth Cravens was. And five inches away from Seth Cravens' face, mono-a-mono, he said, "What the f*ck are you doin' comin' to my house?" 

And Seth Cravens threw one punch, one punch with his left hand despite he is a right-handed person. Look at it this way, said Attridge .

Not only did Emery get right into her client's face, he had just beaten up Seth's best friend, the kid who considered Seth his protector. And, when Seth finally responded, it was with his weaker arm.  In other words, with no intent to kill. Next she told them Emery had been  drinking and smoking pot -- just like the rest of them  -- and that certainly factored in.

The blow, in combination with the use of drugs and alcohol, knocked Mr.Kauanui off his feet, and he smacked his head on the sidewalk. And that caused the injury that eventually killed him. But of course Seth wasn't just charged with throwing one-punch, one time, he was charged with years of bad acts --  she had to take those accusations on too. . . And she had a theory of how to do it.

Mary Ellen: Well, the case hit the news. It was, suddenly, a big deal, probably because of the neighborhood.

Her argument-- that those past incidents were blown out of proportion-- minor misdeeds elevated by publicity and public anger, exploited by an overzealous prosecutor.

Mary Ellen in court: When it went public this case became not a prosecution, but a runaway train.

Keith Morrison: What was it about her case that made it a runaway train?

Mary Ellen Well, first, Seth is charged with nothing. All those years he was supposedly rampaging around, she said-- nobody ever reported any trouble. And then--  the incident with Emery happens. And then the phone starts ringing. Suddenly there was public outrage in tony, influential La Jolla. Then , it's a public-relations problem. So, they started-- filing these counts. They filed the gang allegations. Like, let's just take all this mud and throw it at the wall and see what sticks. So, the runaway-train theory really was that they tried to prosecute him for things that were either-- legally unsubstantiated or un-provable.

Take note of that runaway train metaphor -- it will become quite important later. In court, Attridge tore into the prosecution's case wherever she could. Challenging key witnesses, she went after details that  contradicted the prosecutor's version of that night.There was, for example, Emery's surfer friend, Dylan Eckert. Attorney Attridge brandished a tape of his interview with police, in which he'd recounted a conversation with Emery that night. It's a poor recording, difficult to distinguish exactly what Dylan said.

But Attridge claimed she heard him use a very significant word.

MaryEllenAttridge: Do you-- dispute that you said, "i've got beef at my house, and i'm gonna kill 'em. "

Dylan Eckartt: I never said that.

MaryEllenAttridge: Okay. That was your voice on the , however, is that correct?

Dylan Eckartt: Yes.

MaryEllenAttridge: Okay. And so you're saying you never used the word kill.

Dylan Eckartt: No.

MaryEllenAttridge: What word were you using?

Dylan Eckartt: Okay, okay, okay. I said, "Okay, okay, I'll be there. "

Mary Ellen: His testimony was just absurd. Essentially he had spoken with Mr.Kauanui on the evening of the-- incident, and  Kauanui said, "I got a beef at my house and i'm gonna kill him. " I thought that was an important fact. Because it showed that Mr.Kauanui was not necessarily as quiet as a lamb. But-- arguably a participant. Eckert had also witnessed the climax of the struggle -- and claimed to see how close Emery came toward Seth - a detail defender Attridge believed was crucial.

MaryEllenAttridge: And you said they were about five inches apart, right? 

Dylan Eckartt: They were pretty close, yeah.

MaryEllenAttridge: Okay. And-- that they were both yelling, right?

Dylan Eckartt: Yes.

Remember, Jenny Grosso had testified that Seth and Emery were several feet apart. Was it really just inches?  Did her love for Emery prevent her from seeing how he provoked Seth? Was the story everybody had heard up to now, the one that had Emery as a blameless victimwrong? The attempt to paint her son as the aggressor made Cindy Kauanui angry.

Cindy: I know who my kid is. I don't need anybody to tell me that. If they wanna paint a different picture, then that's  their problem.   They need to deal with their own guilt because that's just not the kid I know. And I'm not gonna give into that. I'm not gonna give power to it.

But what would the jury believe?  Especially after the Bird Rock Bandits finally told their story of what happened that night?

Part 11

Mary Ellen: It was one punch. It was a fluke. And unfortunately, Emery died. This does not an implied-malice murder make, in my opinion.

As attorney Mary Ellen Attridge prepared to make her claim that Emery Kauanui's killing was as much his own fault as that of Seth Cravens, something very disturbing happened down at the county jail. There was another beating.

And this time, the bruised and battered victim wasHank Hendricks.  The college kid doing his ninety days in jail after copping a plea. Quick reprise, judge's sentence who attacked Hank, and why? Gossip at the jail was this: Somebody had put out the word that Hank would testifyfor the prosecution. Before Hank took his place in court, now dressed neatly in a pressed shirt and tie.

There was more than little speculation:  Would the least likely bandit testify against Seth Cravens’ version of events?

The same question held for bandit Matt Yanke, still serving time in jail. But what happened in court?  Both Bandits stood by Seth Cravens. . . And stuck to their story.

MattYanke: Emery came at Eric swinging.

Hank Hendricks: Eric was bleeding pretty profusely.

It was Emery who was the aggressor, they said,  Emery who handily beat up one of the other Bird Rock Bandits. and when Emery's girlfriend Jenny arrived to break up the fight. . . Hank said he pulled her away because. .                             

Hank Hendricks: Yeah, I said one time, "you don't know what's going on,"  she was hitting a guy who just got beat up in a fight.

MaryEllenAttridge: At that point,  what did Mr.House look like, physically?

Matt Yanke: His face had be-- had begun to start bleeding. And I could notice that he was looking on the ground for something.

Hank Hendricks: Eric started going on all fours. He was pretty disorientated. You could tell by his speech. He was saying, "I got to find my tooth-- where's my f*ckin' tooth?"  And he was-- he was feeling the concrete for his tooth.

Matt Yanke: And he was saying, "i'm done, i'm done, i'm done." 

Hank Hendricks: --Eric was saying, "you got me. You got me. It's over. It's over. "  And that, they said, was the moment Seth Cravens came to the aid of their good friend Eric.

MattYanke: He said, "get off of him. He's done. He's done. Get off of him. "

Hank Hendricks: Seth pushed Emery back towards the middle of the street and said, "it's over.”              

MaryEllenAttridge How far apart were they from one another?

Hank Hendricks: Probably started at about five or ten feet, and then got to --each other's face. Right in each other's face-- not feet apart as Jenny Grosso had claimed. And Matt Yanke saidit was Emery who moved in.

MattYanke: And then I saw Emery-- I saw Seth back away from the situation. And I saw Emery charge--     he's saying you know, a lot of stuff. "Why do you guys come over here?  Why are you guys doing this?"    He's talking at Seth, comes right to him, about inches before his face and starts to swing with his right arm. And then I saw Seth throw a left and connect  with Emery in the jaw.

This was the moment for the defense. If Emery came at Seth within inches of his face . . . If he swung his arm. . . Wasn't Seth's punch self -defense? The prosecutor had a problem. If the jury believed that version of the story. . . How could she win a conviction for second degree murder?

Judge: Cross examination.

Sophia Roach: Thank you.

She questioned both Bandits relentlessly, but neither budged from their story of the fight. So prosecutor Roach found another way to paint Cravens guilty. . . His reaction to the fatal punch.

SophiaRoach: Mr. Cravens was bragging about knocking Emery out with his left hand, wasn't he?

Hank Hendricks: Yes, it was more a surprise that he knocked him out with one punch with his left hand.

SophiaRoach: Did you describe it as bragging?

Hank Hendricks: Yes, you could take it as bragging.

Now it was time for each side to pull all those strands of testimony and evidence together and sell its version of that night . . . That fight. . . To the jury. After nine days of testimony. . . Closing arguments. For Prosecutor Roach , this whole case was about a man who simply didn't care about others -- and the pain he might inflict on them.

Roach: Everything in human experience tells us that blows to the head can be deadly. Despite that fact , Seth Cravenswas hitting victims punishing blow after punishing blow to the head.

This was it. The prosecutor's last shot at the Bird Rock bandit. She was going to drill it into everybody -- Seth Cravens had a pattern, Seth Cravens, was not a good man. Defense attorney Attridge came back at the prosecution hard. . . . Arguing that the facts of the case just didn't fit the law.

MaryEllenAttridge: Who knew that one left-handed punch could result in this death?  Mr.Cravens' left fist is not a dangerous or deadly weapon. One punch is not cruel or unusual. And importantly, there is no evidence that Mr.Cravens consciously disregarded a danger to human life.

She knew she needed some drama, a big, forceful gesture to demonstrate her point -- that Seth acted in self-defense, that the case against him was a runaway train. But no one was expecting the drama she unleashed.

MaryEllenAttridge: And I think when you consider the following fact, you will know that this prosecution has been a runaway train. And that fact is that Emery Kauanui got within five inches of Seth Cravens and said, "how the f*ck-- how the f*ck-- how the f*ck you gonna come over to my house?!"  choo, choo. Thank you.

Now what would the jury think about that?

Part 12

November  10, 2008, a year and a half after a spilled drink at a bar, and a left-handed punch that killed a budding surfing phenomenon named Emery Kauanui, a San Diego courtroom was, well, astonished.

MaryEllenAttridge: "How the f*ck-- how the f*ck-- how the f*ck you gonna come over to my house?!"  choo , choo. Thank you.

Keith Morrison: And what sort of look was on the faces of members of the jury?

MaryEllenAttridge: Well, it was kind of a universal gaping of the mouths. I mean, everywhere in the courtroom.   I think the judge was wide-eyed. It was a wild thing to do.

What was she trying to do?  Well, for one thing, said Attridge, she wanted the prosecutor to react. . . physically.                              

Mary Ellen: She had  the presence of mind, much to my chagrin, not to hit me.                  It would've been fabulous had she taken a swing.

Keith Morrison: 'ya know what she wanted?

Sophia Roach: Oh, i'm-- i'm quite sure what she wanted.

Keith Morrison: What?

Sophia Roach: It's the last thing on my mind.

Keith Morrison: She wanted 'ya to take a shot at her?

Sophia Roach: I'm sure that would've proved her point.

Keith Morrison: Was there ever--

Sophia Roach: Never--

Keith Morrison:  --just anything--

Sophia Roach: --never--

Keith Morrison: --nerve in your--

Sophia Roach: --never--

Keith Morrison: --elbow somewhere--

Sophia Roach: --entered my mind.

Keith Morrison: No?

Sophia Roach: Never occurred to me. Never. That I would get up and strike somebody. Never. Perhaps not. But now that incident joined a story the jury had to sort out on its own.

RickCree: It was something we certainly discussed.

AlfonsoCeballos: Yeah, we--

RickCree: Like wow. Believe what just happened.

But, had her defense succeeded?  Jury foreman Rick Cree.         

Rick Cree: Well, we-- we actually struggled.

The debate, said fellow jurors Kristi Olsen and Alfonso Ceballos, was intense.

Keith Morrison: There were two kind of distinctly different stories about what happened in that fight. One from the defense, one from the prosecution.                      

KristiOlsen: Everybody knew the bottom line was, a punch was thrown, and Emery fell back and hit his head and died four days later. So really what it was is just paying really close attention to all of those circumstances surrounding it.

RickCree:And nobody----disagreeing that-- that--

Kristi Olsen: Right.

RickCree: --Seth Cravens threw the punch.

Keith Morrison: Was it hard to decide whether or not that-- crossed the bar to become a murder.

Alfonso Ceballos: For me it was.

Kristi Olsen: Uh-huh.

The hang up was one troublesome legal term: implied malice. Days went by. They couldn't decide exactly what it meant.                                

Keith Morrison: It gave you a lot of trouble, - the exact definition.

Kristi Olsen: There were four --

Kristi Olsen: --four criterias (sic) had to be met.

Male voice #1: --for it to be--implied malice.  One was that at the time he acted, he knew the act was dangerous to human life. Natural consequences of the act-- was dangerous to human life.

Kristi Olsen: He intentionally committed the act.

Male voice #1: And the last one was--

Kristi Olsen: At the time he committed the act, he did it with conscious disregard for human life.

Had Seth Cravens crossed those legal lines?  They simply couldn't agree.

Keith Morrison: At one point you sent a note back and said, "we can't do this. "

Male voice: And the judge wasn't buyin' that either. Seth's parents believed the number had to be in their son's favor.

KarenCravens: And so everybody's  11 to one, okay. We just need to convince one more person.

BillCravens: --in-- in favor of-- of the defense.

Back in the jury room, they debated, argued, struggled. . Until finally, eight days after they received the case: The jury found Seth Cravens guilty of second degree murder for throwing the left handed punch that killed Emery Kauanui. Andguilty on all but three of the lesser counts.

Karen Cravens: It was an enormous shock.                         

Keith Morrison: It seemed unbelievable, the-- the whole thing.

Seth's attorney Mary ellen Attridge took it hard.              

Mary Ellen: I was just devastated. It was awful. But--    

Keith Morrison: It's shocking after what you--                   

Mary Ellen: It was shocking. It was depressing, because there is so much loss of-- of life that happened in-- in the case, ere's,  two guys in their  twenties. None of this needed to happen. And-- so,   it was a very, very difficult verdict.

Sophia Roach: These verdicts send a strong message to the community that brutality will not be tolerated.

But for Emery's mother Cindy, this was a long awaited verdict, and the next step -- sentencing -- would be the final measure of justice for her son.

Cindy Kauanui: The judge will come up with the right judgment and trusting that God will give him wisdom. And I just have to look forth, look forward. I'm not gonna live in the past.

Seth, who did not testify at his trial, finally spoke at his sentencing, if only to say how sorry he was.

SethCravens: Oh. I just want to say sorry to Emery's family. I'm so sorry that it's happened. Sorry for your guys' loss. I do pray that you guys find some kinda peace and comfort. And i'm really sorry. I'm sorry to my own family. Everybody that had to go through this with me, i'm real sorry.

His sentence? There would be no second chances for Seth --  the judge handed him 20 years to life. All the more severe considering that plea bargain he'd turned down. Before Seth was led away to serve his time, attorney Attridge tried one last request

. Video: Emery's childhood on Kauai

Attridge: And that is that Mr.Cravens would respectfully request the ability to give his parents and his-- fiancé a hug.

Judge: Can't do it. I'm sorry.

And then, the last of the Bird Rock Bandits . . . Shuffled off to prison. For those who loved Emery, Seth's sentence was not merely just -- but a warning.

JennyGrosso: I think it's a good testimony of the justice system at work. And I think that people should watch this and they should know they can't get away with these things.

Cindy Kauanui did not attend the trial. Too painful.

But she sees the waves come in at Windansea. . . Emery's beach. . . And she's glad for his years.  And she says to parents everywhere. . . Don't waste the time you have.

Cindy Kauanui: Look after your kids, listen to your kids, listen to them. 'Cause they tell you things. -- all kids have things that are-- they struggle with and fears. My son was no different.   And he struggled with a lot of things in life. But you've gotta just stay close to them.

Keith Morrison: Maybe this is a wake-up call for that.

Cindy Kauanui: It's a wake-up call for the community and a wake-up call for parents.

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