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This mother is demanding a test for DNA, even if it proves her son is guilty of rape

Why she believes DNA evidence will free her son

Brandi Michalik knows her son Neven Butler is mentally ill. She believes he is innocent, and is pushing for DNA taken from the crime scene to be processed and released.
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Brandi Michalik knows her son Neven Butler is mentally ill. She believes he is innocent, and is pushing for DNA taken from the crime scene to be processed and released.

Brandi Michalik first noticed something was wrong with her teenage son, Neven Butler, after he took a serious blow to the head during football practice in fall 2016.

"They were just tackling each other, and it rang his bell," Michalik said.

Butler had played football since elementary school. He had taken knocks before, but this one was different. Afterward, he left the Highlands High School campus, but instead of going home, he walked about 10 miles to a friend's house in Roseville.

Asked why he made the long journey, Butler was unable to provide a reasonable answer, his mother said. "For him to just walk to Roseville (was) just crazy," she added.

Michalik said she doesn't know if that head injury was a coincidence or a factor, but from that point on, the round-faced kid who was known as a class clown began a decline mentally, she said.

Butler became hesitant to leave the house, then scared to be outside his room, she said. He stopped talking, his communication reduced to writing a few words at a time. Once proud of his appearance, he ignored his looks and became disheveled. At night, she could hear him laughing alone, and said he began hearing voices and hallucinating.

On Friday, Butler will face a judge to determine whether he is mentally fit to stand trial on murder, attempted rape and assault charges in the beating death of Fusako Petrus, 86, and attacks on her walking partner and a third woman in April 2017.

The charges have left Michalik devastated but defiant. She believes Butler is innocent, and is pushing for DNA taken from the crime scene to be processed and released.

She knows the results ultimately could clear her only child or seal his fate for a life behind bars. But "if I don’t do this then I am always going to wonder, 'Was that his saving grace? Was that it and I let it slip away?" she said.

So far, however, authorities have remained quiet about if there are DNA results and what they might show.

Butler's court-appointed attorney, Linda Parisi, on Thursday said she still hasn't received DNA discovery from prosecutors more than a year after Butler was arraigned in Sacramento Superior Court.

“They still haven’t done them,” Parisi said of the analysis of rape kits and other evidence taken at the scene. “Those would be significant. The DA’s office would run those but have not done so. I can’t comment on why, because I really don’t know why.”

John E.B. Myers teaches criminal law at University of the Pacific McGeorge School of Law in Sacramento. He was similarly puzzled when asked Thursday, citing statutes that compel prosecutors to turn over exculpatory evidence.

"It's bizarre to me that they wouldn't have run it already," he said. "They certainly have the obligation to turn it over. There must be some facts that we're not privy to. I would be be curious to know why it hasn't."

Sacramento County Assistant Chief Deputy District Attorney Rod Norgaard Thursday declined to discuss the details of the case. "The investigation is still ongoing, and we don't have anything to share for now while the investigation continues," he said.

Authorities allege that before dawn on April 26, 2017, Butler ambushed Petrus' younger walking partner as the two women made their way around the track at Highlands High School, where Butler was a student.

The women walked there almost every day, and Petrus was a well-known figure in the neighborhood. Petrus was walking slightly ahead of her companion and came to the woman's aid when she began screaming as the attack began, media reports said. Petrus attempted to defend her friend, hitting the attacker with her walking stick. The attacker then set upon Petrus and sexually assaulted her before beating her, causing fatal injuries, according to police accounts.

Sacramento County prosecutors say Petrus’ friend also was sexually assaulted. Prosecutors also allege Butler inflicted great bodily injury and “unjustifiable physical pain” on a 92-year-old woman in her Arden Arcade neighborhood hours after Petrus’ death.

Surveillance footage puts Butler on the school campus at the time of the attack, and the assault on the third victim was witnessed by multiple people and is not in dispute by Michalik.

Butler, 19, remains held without bail in Sacramento County Jail. He had no prior criminal record.

Sacramento County District Attorney’s prosecutors in November said they would not pursue the death penalty against Butler, then 18. Instead, prosecutors said they would seek a life sentence without the possibility of parole. Butler’s youth was a factor, prosecutors said.

But questions about Butler’s mental health also likely spared him from facing the death penalty. Both defense and prosecuting attorney have shared concerns about his state of mind. Parisi described her client’s mental health issues as “significant.”

Michalik said she tried to get Butler help when he first began to show symptoms of mental illness. She took him to their primary care physician, who sent him to a counselor. But Michalik said Butler was embarrassed and didn't want to continue going to the sessions, and she couldn't force him.

"Neven just changed, and I was like, 'I don't know what to do,'" she said.

By early 2017, Butler had begun displaying aggressive behavior. He entered Michalik's room early one morning while she was sleeping, asking if she had grounded him. Then he punched her in the head a few times.

"He was glazed over," she said. "I could tell he wasn't seeing what I was seeing. It was like he was not in the same reality as me. It was so scary."

Michalik called 911 and police took Butler to Mercy San Juan Hopsital, where medical staff placed him on a 72-hour psychiatric hold, she said. From there, a social worker helped Michalik have Butler, then 17, admitted to the juvenile ward at Sierra Vista Hospital, a mental health facility near Elk Grove.

Butler was diagnosed with schizoaffective disorder, characterized by hallucinations, delusions, impulse control and manic behavior, according to the National Alliance on Mental Illness.

While in the facility, he remained mostly silent. He was prescribed medication, but none seemed to help. Michalik was allowed to visit him one hour each day, she said.

"Usually he would be asleep, but I could sit with him," she said. "It was just important for him to know that no matter what, I’m not mad at him."

On April 16, 2017, Butler turned 18 and was moved to the adult section of the facility. On April 17, Michalik said he was discharged. He remained non-verbal and "not in his right mind," she said.

Butler began having side effects to the medications, which sent him to the emergency room three times in the next days with pain in his legs and chest and an infection in his mouth. At least once, he slept outside in the car.

Though he basically had dropped out of school, he wanted his school ID and yearbook from Highlands, and repeatedly wrote notes asking for his mother and grandparents to help him get it, she said. Michalik lives with her parents.

On the night before Petrus was attacked, Michalik said she promised to take Butler to get his yearbook if he came with her the next day to the elder care facility where she worked as a recreational aide. She said she wanted Butler out of the house to give her parents a break from caring for him.

The next morning she was about to get in the shower when Butler walked in the house. Butler sometimes walked to Highland High to have breakfast, she said. Michalik said she thought her son had misunderstood how early it was and went to the school before the cafeteria opened. She said she noticed nothing unusual about him.

"Nothing at all," she said. "No scratches, no bruises, no dirt, nothing."

Butler let them know he was hungry, and his grandmother took him to McDonald's, Michalik said. He then came with Michalik to work, but stayed in her car to sleep, she said.

A little while later, Michalik heard a scream. Butler had entered the facility and hit a 92-year-old woman.

"I took off running down the hallway," Michalik said. "I grabbed him and said, 'Neven, what are you doing?', and the same look he had when he hit me was on his face. He just looked around like he didn’t understand."

Police came and Michalik said initially there was talk of taking Butler to the hospital. But when law enforcement found Butler had been at Highlands High that morning, they arrested him.

Michalik said she knows Butler is responsible for the assault at her work, but doesn't believe Butler would have escalated to the extreme violence and sexual assault that Petrus and her companion suffered.

"Just because he’s mentally unstable does not mean he’ll do anything in the world," she said. "Hitting, hitting, hitting, you can see the connection there. But hitting, raping somebody, and continuing hitting them. ... It's not on the same level."

She understands the circumstantial evidence may be enough for many people, which she believes increases the importance of the DNA. And she wants that definitive scientific evidence now, rather than in a trial that likely will not happen for months or even years.

"Everybody is trying to paint this closed, we got the person and we are done," she said.

Currently, the California legislature is considering two bills that would address situations like Butler's and push the state to fix its backlog of rape kits, which currently number an estimated 13,615, according to the Joyful Heart Foundation, a sexual assault advocacy group that is leading a national campaign on the issue.

"Men are getting sentenced without their kits being tested," said Melissa Schwartz, spokeswoman for Joyful Heart. "DNA works both ways. We want the innocent to be exonerated, too."

The Joyful Heart Foundation, through its End the Backlog campaign, also put in a California Public Records Act request to the Sacramento County District Attorney in 2016 to request information on how it handles rape kits.

The District Attorney responded that since 2013, its lab "began testing all sexual assault evidence kits on new cases as well as all kits from 2011 and 2012 that had not been previously tested."

The group advocates that all kits should be tested within 30 days of collection, and is sponsoring two bills in California to address the rape-kit issue.

Assembly Bill 1138 from Assemblyman David Chiu, D-San Francisco, would require a statewide audit of all untested kits, providing a more accurate count of how many exist and how many years the backlog encompasses. Senate Bill 1449 from state Sen. Connie Leyva, D-Chino, would require California law enforcement agencies to test rape kits.

Rory Little, a professor of law at University of California Hastings College of the Law, said that while the year delay seemed long, there could be many reasonable reasons behind it — including a pending deal in the case that would be adversely affected by the disclosure of DNA.

"You can’t blame the mother if she thinks the son is innocent ... but often the families of the victims and the families of the defendants are kept in the dark because of the problems they can cause," Little said. "The defendant’s mom doesn't have any rights. ... The DA doesn’t have to release (evidence) to anybody unless the defense has made demands for it."

Michalik said she understands she doesn't have legal rights when it comes to her adult son and there may be strategies involving the DNA that his attorney isn't sharing. But she believes he's innocent, and that should be his defense.

"That’s someone’s whole life," she said. "They’re willing to throw a kid’s life away forever. ... I hate to say it, but I’m mad because (I wondering) 'Why can’t they go further and investigate?' If it’s nothing, it’s nothing."

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