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They called themselves "NBK," short for "Natural Born Killers," a group of teenagers who planned a Columbine-style attack on their suburban high school to get back at students who had picked on them.
Joseph Nee, the son of a Boston police officer and 18 at the time of the crime, was convicted of conspiracy to commit murder and served nine months in prison.
Now 24, he is appealing the conviction on the argument of "renunciation," that he had abandoned the group's plot to blow up Marshfield High School and shoot everyone on a hit list of students, teachers and emergency workers. He argues that he also helped thwart the attack, planned for the sixth anniversary of the 1999 Columbine school killings.
The Supreme Judicial Court will hear arguments Tuesday.
Massachusetts does not recognize renunciation as a defense to conspiracy. And prosecutors note that under state law, conspiracy only takes two or more people to agree to break the law.
"It's clear, in Massachusetts, that renunciation is not an available defense to the crime of conspiracy," said Plymouth District Attorney Tim Cruz, whose office prosecuted Nee.
Nee and two other boys went to Marshfield police in September 2004, telling them that Tobin Kerns had compiled a hit list and planned an attack for the following April to coincide with the anniversary of Colorado's Columbine High School attack that left 15 people dead.
Kerns, then 16, was arrested after a search at his home turned up computer files on bomb building, a list of weapons and ammunition, and diagrams of the school that included plans for padlocking exits to prevent escape. Nee was charged three weeks later as a coconspirator. The two other boys were given immunity and testified against Nee and Kerns.
Kerns testified at Nee's trial that Nee came up with the plan. He said Nee went to police to get back at him four days after he and Nee got into a scuffle over Kerns' girlfriend.
But Nee said that Kerns was the mastermind and that he went to police because he was afraid Kerns might hurt someone.
Prosecutors said Kerns and Nee were equal participants in the plan.
During Nee's trial, his lawyer asked the judge to consider the defenses of abandonment and renunciation. The judge refused, saying it was up to the state Appeals Court or the Supreme Judicial Court to adopt the Model Penal Code, a legal text developed by the American Law Institute that recognizes renunciation as a defense to conspiracy.
Prosecutors argue that even if Massachusetts were to adopt the code, Nee's actions do not meet the definition of renunciation. They say the defense requires that a person, after conspiring to commit a crime, "thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose."
Cruz said that when Nee went to police, all he did was point the finger at Kerns.
"He at no time acknowledged his own criminal purpose, let alone completely and voluntarily renounced it," Cruz said.
But Nee's lawyers say he not only renounced the crime, but stopped it by reporting Kerns to police.
"Joe Nee went to the police when he thought the principal actor was actually going through with this plan," said attorney Frances Robinson. "The Marshfield police had no other information at all from any source."
Nee's lawyers argue that several other states allow renunciation, abandonment or withdrawal as a defense to conspiracy, including New Jersey, Pennsylvania, and Texas. But prosecutors say those states require a conspirator to tell his coconspirators he is withdrawing from the plan and to tell law enforcement about the plan and his participation in it - things they say Nee never did.
Boston College Law School professor Michael Cassidy said the state's conspiracy law is broader than laws in most other states because it does not require a direct act.
"If you and I met and talked about robbing a bank and never did anything toward robbing a bank, that would be a conspiracy," Cassidy said. "Many states require an overt act."
Nee was acquitted of charges of anarchy and the threatened use of deadly weapons at a school.
Kerns was convicted of conspiracy to commit murder and threatening to use deadly weapons. He served a 10-month sentence.
Robinson said Nee is currently working in construction and has not had any other arrests. She said he is appealing his conviction because he wants to clear his name.
"He will walk around for the rest of his life with a conviction of conspiracy to commit mass murder. That's a pretty bad stigma," Robinson said.
This program aired on September 6, 2010. The audio for this program is not available.
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