By this standard, if, when the defendant was slashing his victim’s throat, he thought he was slicing a cucumber, he’s not guilty by reason of insanity. If the defendant thought that he was Abraham Lincoln and that his victim was John Wilkes Booth, he could be found guilty anyway, because you can’t go around killing people just because they’re out to get you—unless, of course, he thought John Wilkes Booth was at that moment pulling a gun on him, and that he was acting in self-defense. If the defendant killed his girlfriend because she left him for another man, and he knew that’s what he was doing, and knew it was wrong, but was no more able to stop the action than a moviegoer at a movie or a dreamer in a dream, he’s not guilty by reason of insanity. If he thought he was obeying the command of his neighbor’s dog, he’s guilty—you can’t do everything a dog tells you to—unless he thought the dog was God and obeying his commands could never be wrongful, in which case he’s not guilty.
Noting that the insanity test “asks the jury to wrestle with such unfamiliar, if not incomprehensible, concepts,” former Chief Judge Bazelon of the United States Court of Appeals, District of Columbia Circuit, wrote, “The best hope for our … test is that jurors will regularly conclude that no one—including the experts—can provide a meaningful answer to the questions posed by the … test. And in their search for some semblance of an intelligible standard, they may be forced to consider whether it would be just to hold the defendant responsible for his action.”8
No matter what definition a judge reads to them, what juries always ultimately decide is whether the defendant ought to be held responsible. “Not guilty by reason of insanity” means “not held responsible for his act,” nothing more or less than that. One can argue about criteria which have led juries to make that decision, or which should lead juries to make that decision, but it is that decision itself which defines “insanity.” You are insane if you are not responsible; you are not responsible if the jury decides not to hold you responsible; if the jury decides not to hold you responsible, you are insane.
That’s the real basis on which lawyers usually argue insanity cases. I listened to the closing arguments at the insanity murder trial of a man who garroted a prostitute, and I didn’t hear much talk about “emotional processes” or “behavior controls.” The defense counsel insisted that his client was “bats,” “batty,” “sick as a bedbug.” “You have to rely on your common sense,” he told the jury. “He was sick, he was out of control, he couldn’t help what he did.”
The prosecutor retorted, “He’s perverted. He’s not normal. He’s sick. But he’s not crazy…. He’s accountable.”
Insanity, like, for instance, self-defense or duress, is an “affirmative defense.” That means the defendant is presumed to have been sane, not to have acted in self-defense, and not to have been forced by another to commit the crime, so that the prosecution ordinarily doesn’t have to introduce evidence on those points to prove its case. Rather, the defendant has the burden of introducing some evidence of insanity, self-defense, or duress in order to raise the issue.
Once the defendant has raised the issue of insanity, in the federal courts and those of half the states, the burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant was sane. In the local courts of the District of Columbia and half the states, the burden remains on the defendant to prove insanity “by the preponderance of the evidence,” that is, to prove that, more likely than not, he was insane at the time of the offense.
This distinction in the burden of proof may have influenced the outcome of the Hinckley trial. The jurors weren’t positive that Hinckley was sane, so, following the instructions of the federal court judge, they returned a verdict of not guilty by reason of insanity. Had they been listening to instructions across the street in D.C. superior court, if the jurors were not convinced that Hinckley was, more likely than not, insane, they might have convicted him.
A widely proposed post-Hinckley reform would put the burden of proof of insanity on the defendant in jurisdictions where this is not already so. The suggestion has a certain appeal, because the elusive presence of “sanity” is peculiarly difficult for the government to prove beyond a reasonable doubt. On the other hand, even in jurisdictions where the defendant has the burden of proving insanity, juries are always instructed that the defendant does not have to prove he is not guilty; the government still has to prove that he is guilty beyond a reasonable doubt—which means that he was sane at the time of the offense, beyond a reasonable doubt.
It’s to be expected that a certain amount of confusion surrounds the issue of insanity. There’s no general agreement about what mental illness is, or what constitutes responsibility, so it should surprise no one that we are unable to state with precision how these two vague concepts interact. No matter how the line is drawn between sanity and insanity, there will always be close cases that could teeter-totter on either side of it.
A more pernicious “reform” being tried out in several states is the replacement of the N.G.I. verdict with a verdict of “guilty but insane” or “guilty but mentally ill,” under which the convicted person would be sentenced as an ordinary criminal, but would get psychiatric treatment while serving his time. As defined in one bill before Congress, “a defendant is guilty but mentally ill if his actions constitute all necessary elements of the offense charged other than the requisite state of mind, and he lacked the requisite state of mind as a result of mental disease or defect.”9
Such legislation represents a radical departure from Anglo-American legal tradition, which for centuries has required that to convict someone of a crime, the prosecution must prove not only that he did a particular act—such as pulling a trigger—but that he did it with a particular state of mind. As Supreme Court Justice Felix Frankfurter wrote, “a muscular contraction resulting in a homicide does not constitute murder.”10 For a killing to be murder, it must be done with “malice,” that is, a vicious and wicked state of mind. This mental state is as much an element of the crime of murder as the physical killing itself.
“Guilty but mentally ill” is an irrelevancy if the defendant, despite mental problems, was sane. It is a semantic attempt to hide a logical contradiction if the defendant was insane: “Guilty but insane” is a contradiction in terms, because insane means not capable of forming a criminal intent, not responsible, and, therefore, not guilty. Lawmakers would do well to remember that the verdict of not guilty by reason of insanity doesn’t “let off” guilty people; it provides a means of locking up dangerous people who are not guilty of a crime.
It is impossible to devise a system which will result in all the innocent going free and all the guilty being punished. To ensure that most of the innocent go free, you have to let a certain number of the guilty go free. To punish all the guilty, you’d have to punish a certain number of the innocent. That is the choice. You’ll never hit it on the nose. And if you revise the system to deal with the rare case, you throw the whole thing out of whack.
The “guilty but insane” law would start to tilt the entire system against the defendant. Considering the rarity of insanity cases, one wonders whether that isn’t exactly what the “reformers” want. They don’t want any “guilty” people “getting off.” They don’t recall, or they choose to forget, what John Adams said.
Do you remember what John Adams said? If not, please turn to page vii.
Most of the tiny number of people who are found not guilty by reason of insanity under present laws never go before a jury at all. They are so clearly nuts—a word forensic psychiatrists use interchangeably with “insane”—that the prosecution doesn’t contest the N.G.I. plea. If you find yourself in front of a jury with an N.G.I. case, you’re in trouble.
If the crime appears “rational” and comprehensible—like a love-triangle murder—a jury will doubt that the defendant was crazy. If the crime appears utterly deranged—like the torture-murder of a stranger—a jury will be disinclined to accept an insanity defense because they a
re afraid the defendant will get back on the street. Your best shot at a successful insanity defense should be with a crime that’s weird enough to be crazy, but not so bizarre as to be horrifying. The ax-man of the drive-in movies is not going to be found not guilty by reason of anything.
We had to build a strong case to show that Howard Robbins really was nuts, not only to convince a jury but to convince him. I needed his permission to present a defense of insanity, and he was dead-set against it. (A judge can interpose a defense of insanity for an unwilling defendant, but rarely does.)
Howard had told me that his “girlfriend,” named Lois, could testify that Sheila was tremendously jealous about their impending marriage (and therefore likely to try to do him dirt by this “frameup”), so I asked a student investigator, Amy Strader, to talk to Lois, a neighbor of Howard’s.
“He used to be all right until a couple of years ago, when he broke up with his girlfriend Sheila,” Lois, a slender twenty-one-year-old waitress at a fast-food shop, told Amy. “After that, he really went off. Somewhere around that time he came to my front door at four in the morning and asked my mother to let him out the back door. Let him in the front door so he can go out the back door!
“He told folks we was going to get maried, but there was nothing between us,” Lois continued. “You know, I’d be sitting there on the porch. I’d have male company, and Howard would come up the steps and just stand there, staring. I’d say, ‘What you want, boy?’ and he’d say ‘You!’ then laugh and smile. I’d be real rude and just say, ‘Get the hell off my porch! Get out of here, boy!’ But he was always just coming back. Howard was real gentle. He didn’t seem like what he is.
“That boy needs help,” Lois concluded. “He should be locked up for good. St. E’s or something maybe could help. But I was never afraid of him. I don’t know why. I guess ’cause he just seemed normal.”
“I had Lois interviewed, like you asked me to,” I told Howard at the jail. He looked at me with just the hint of a smile on his face. “She says you were never going to get married. She says she was never even your girlfriend.”
Howard’s expression did not change. “Well, it’s easy to figure out why she’d say that,” he said. “She must be afraid of what Sheila would do to her if she admitted we was getting married, especially after she already shot David. That’s obvious.
“Me and Sheila were ‘brutal’—that means even closer than getting married,” he went on, assuming a for-background-only tone. “We were engaged once, but Sheila decided not to get married. But we were both too hip to let that bother us. We even saw the Parliament Funkadelic at the Capital Centre together. There is no way the police can avoid it in their own mind that Sheila shot David, and herself. It’s real easy for two people to get shot by the same gun.”
“Yeah, I can see that,” I said. “But the problem is, Howard, Lois is not going to testify that Sheila had any reason to put a false charge on you.”
“Well, you see, that don’t make no difference,” Howard said, turning his palms up, “because there’s no way this case is ever going to make it to court. It’ll be dropped way before that. Because it just don’t make sense. How can the D.A. say I shot Sheila for ‘no reason’?” he demanded, leaning forward into his argument. “Anyone would shoot someone if they was being harassed. And if it was for ‘no reason,’ how can he turn around and say it’s first-degree murder ’cause I planned it ahead? How can you plan something without a reason?” He arched his eyebrows quizzically. “That’s crazy. That makes all of God’s creation a cartoon. The D.A. can’t have it both ways, but that’s what he said. The stenographer got it down. It’s cold turkey for him.” Howard settled back in his chair.
“It may not make any sense, Howard, but that doesn’t mean you’re not going to be tried and convicted and sent to Lorton for twenty years if you don’t let me put on an insanity defense.”
He dismissed my argument with a wave of the hand. “I’m not worried about these charges. Can you show me any difference between a parking ticket and a murder charge? The police, they’ll shoot you dead over a parking ticket if you ain’t done nothing, if you don’t do exactly what they want. And I’d rather spend the rest of my life at Lorton than spend one day in St. Elizabeths.”
After humoring him, listening, listening, listening, nodding, agreeing, I decided to say, and said, “Listen to me, Howard. I’ll look you in the eye and say this, and if you want to fire me for it, go ahead: If you would rather spend the rest of your life in Lorton prison than one day at St. Elizabeths, you’re nuts.”
“I’ll tell you three things,” Howard retorted. “I don’t want to go to Lorton, I don’t want to go to St. Elizabeths, and I’m not nuts.”
§4-21
“I hope I didn’t keep you waiting,” Howard Robbins’s mother said, with a bashful smile, as she walked into my office the day before his arraignment.
“Not at all,” I said. “No problem.”
She settled into one of the two banged-up wooden chairs facing my desk. She could just fit into it. I’d never thought of her as fat—she was a handsome woman. I was thinking she must have been lovely when she was young. She left her coat on, and lay her briefcase-sized pocketbook on her lap.
I poured my fifth cup of black instant coffee of the afternoon, returned one last phone call, and switched my phone so it would ring at a remote, probably unattended, secretarial outpost.
I had asked her to come in because she might be a better witness than any psychiatrist to Howard’s present incompetence, as well as his insanity at the time of the shooting.
“How has Howard been acting lately?” I asked. She’d visited him at least twice a week for the two months he’d been in jail.
“When I visit, he talks about last year when we had the police take him to St. Elizabeths after he punched me. He talks about it every time. I’ve had only one pleasant visit.” She smiled ruefully. “That was last week. He talked about other things. He talked about war. He sounded almost sensible.
“He talks about that time he went to St. Elizabeths like it was yesterday. He says, ‘Who called the police on me?’ He’s accusing me. It makes me very uncomfortable. It upsets me now, just talking about it.” She was afraid of her son, and she loved him, and she was mystified.
“Before he went to jail, he used to knock on my bedroom door at twelve or one at night, rubbing his head, asking me, ‘Was it you, Mama? Did you call the police on me?’ It’d look like he was sort of in a daze. Then he’d go back to his room. It was frightening. I put a lock on my bedroom door…. We have locks on every door in the house,” she added quietly, telling herself for the thousandth time what her life had become.
“He insists he’s in jail for only one reason—that I sent him to the hospital back then, and they think he’s crazy.” She shook her head. “Sounds like thunder,” she said as the skies collided outside. It began to rain, hard. The leaves would be fully out in a few days.
I relayed a psychiatrist’s advice about convincing a jury that Howard was ill, not evil. If it responds to medication, it must be an illness. If it runs in the family, it sounds like an illness. “Has anyone else in the family had problems like Howard’s?”
Mrs. Robbins told me that she had one daughter who “took sick when she was thirteen. She had whooping cough and contracted pneumonia. She suffered brain damage and spent from age thirteen to forty in St. Elizabeths. Now she’s in a foster home.
“Then, of course, Howard’s sister Aileen is an alcoholic. If she drinks, she’ll do awful things, then ask the next morning, ‘What did I do last night?’ Howard’s the same way, except that he won’t believe you when you tell him what he did.
“When he first started hearing and seeing bees and giant flies—that was twelve years ago. We took him to St. Elizabeths, but they let him come home.” Her eyes drifted back to the past, to the point where Howard’s help and hope were lost, and hers. Finally her sorrow spilled out in tears. She sobbed for just a moment, then collected h
erself. “He really did see giant insects,” she said. “He should have been committed. Then he started hearing Sheila’s voice about five years ago. He’d known her all his life. First he knew her sister. Her sister had his child.”
“Is it really his child?” I asked.
“Oh, yes. He looks just like Howard. Howard loves that little boy.
“Two years ago, when he said Sheila hit him in the head with a shoe and broke a bottle over his leg—there were no marks on him—the voices got much worse. He’d say to me, ‘You don’t hear them? Don’t tell me I’m crazy! She tells me to have sex with my sister, tells me to have sex with my grandmother, and all these dirty things. She sees me all the time, even when I’m trying to take a bath.’ Finally I’d tell him, ‘Yes, Howard, yes, I hear them,’ because he’d get so upset. One time he was crying, and I was holding his hand. He said, ‘All the girls think I’m a freak. When I try to have sex, Sheila gets between us, and I can’t function.’”
“Did he say she’d get physically between them?”
“Physically. She’d push them apart. He said it was more than three years since he had sex.
“All last summer, people would laugh at him because he’d dress so strangely. When he’d go to the playground to play basketball by himself, kids would throw stones at him and call him ‘crazy Howard.’ He asked me, ‘Should I get them, Mama, or should I see who their mother is, and talk to their mother? Because I don’t want to hurt them.’
“Howard says he doesn’t want to go to St. Elizabeths, because he wants people to respect him, not call him crazy. He says if he goes anywhere, he’d rather go to Lorton. He says he could get a job, get married, and have children when he gets out of Lorton. But if he comes from St. E’s, he’ll always be labeled crazy. And you can’t disagree or he’ll get up and leave.”
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 21
