The Supreme Court and the insanity defense.

The law, lawyers, and the court.
July 6 2006 12:14 PM

Crazy Law

The Supreme Court beats up on the insanity defense.

Supreme Court Justice David Souter 
Click image to expand.
Supreme Court Justice David Souter

The psychiatrists who testified in the case of Eric Clark agreed that he was a paranoid schizophrenic, and actively psychotic, when he shot and killed a police officer in Flagstaff, Ariz. Clark had previously been hospitalized for his mental illness. After his release, he retreated to one room in his house, rigged up a fishing line with beads and wind chimes to warn of intruders, and said that aliens were trying to capture and kill him. In the two days before the shooting, which took place in 2000 when he was 17, his parents frantically—and fruitlessly—called mental-health facilities and a lawyer in an effort to get him recommitted.

Yet the Arizona courts found that Clark "intentionally or knowingly" killed a police officer, convicted him of first-degree murder, and sentenced him to 25 years to life. Last week, the Supreme Court affirmed his conviction. The justices rejected the argument that Clark's right to a fair trial was violated because he wasn't allowed to offer evidence of his mental illness to counter the state's claim that he had killed the officer knowingly and on purpose.

How did we get to a place where a clearly crazy teenager's craziness is irrelevant to disproving the prosecution's theory that he committed murder? Several states have gotten so frustrated with psychiatric testimony that they're ready to toss the experts entirely or cordon off their testimony so that it has little impact. Some of the dissatisfaction is understandable: Experts testifying for the prosecution and the defense often agree on a diagnosis—and then clash over whether a defendant's schizophrenia or bipolar disorder or manic depression meant that he didn't know what he was doing and so shouldn't be held legally responsible. But the answer isn't to get rid of the shrinks or put them in a little box. It's to ask them for what they're most competent to offer and then tell juries to do the rest.

If punishment is for the morally blameworthy, then the crucial question is whether Eric Clark really understood that he was killing a fellow human being. The traditional insanity defense—the 19th-century M'Naghten test—lets a defendant try to prove that he didn't know right from wrong or the "nature and quality of the act he was doing" because of "a defect of reason, from disease of the mind." M'Naghten is old and hoary, and Arizona uses only the part of the test about distinguishing right from wrong. There are more enlightened phrasings, like the test written by the American Law Institute. But the wording of the insanity defense isn't necessarily as important as letting defendants challenge the prosecution's theory that they committed first-degree murder in the first place. Arizona blocks this testimony (as do Delaware, Georgia, Louisiana, and Ohio, according to Clark's brief). These states take from defendants the best chance they have to sow the seeds for reasonable doubt of their guilt.

The crime of murder has long been defined as requiring a deliberate knowledge component (remember the old phrase "malice aforethought"?). To prove murder, the prosecutors in Clark's case argued that he lured the officer he shot to his death. They thus introduced evidence that he'd talked about wanting to kill cops, circled the block with music blaring just before the shooting, and run from police and hid his gun afterward. According to Arizona law, Clark couldn't explain that his schizophrenia lay at the root of all these actions. For example, as Clark's expert testified during the insanity-defense phase of his trial, schizophrenics often play music loudly to drown out the voices in their heads and not to lure police officers to their cars. But in the first phase of the trial, the judge hearing the case (Clark waived his right to a jury) couldn't consider that evidence in deciding whether the prosecution had proved first-degree murder.

In dissent, Justice Anthony Kennedy explained why this is a problem:

The central theory of Clark's defense was that his schizophrenia made him delusional. He lived in a universe where the delusions were so dominant, the theory was, that he had no intent to shoot a police officer or knowledge he was doing so. It is one thing to say he acted with intent or knowledge to pull the trigger. It is quite another to say he pulled the trigger to kill someone he knew to be a human being and a police officer. If the trier of fact were to find Clark's evidence sufficient to discount the case made by the State, which has the burden to prove knowledge or intent as an element of the offense, Clark would not be guilty of first-degree murder under Arizona law.

But in his majority opinion, Justice David Souter breezed by the flaws in Arizona's approach. Could this really be the same justice who passionately battled with Justice Antonin Scalia over the danger of executing the innocent last month? It's hard to square Souter's solicitude for the hypothetically innocent in that case with his lack of sympathy here for a teenager with serious mental illness. And Justice Stephen Breyer, as well as the court's reliable conservatives, signed on to most of Souter's opinion. Et tu, Breyer?

I can't really account for why Souter and Breyer went over to the dark side. But the insanity defense has been a hated stepchild of American criminal law since John Hinckley's 1982 trial for shooting President Ronald Reagan. Hinckley's acquittal on the basis of his mental illness somehow convinced a lot of smart people that "abolishing the insanity defense would rid the streets of dangerous people and reduce violent crime," Lincoln Caplan (whom I worked for at Legal Affairs magazine) writes in his book The Insanity Defense and the Trial of John W. Hinckley Jr. Never mind that the insanity defense succeeds in one-quarter of 1 percent of cases, even though more than 10 percent of the prison population is mentally ill on any given day. In response to the Hinckley acquittal, several states tightened their laws to make the insanity defense harder to prove and adopted the paradoxical verdict of "guilty but mentally ill."

Though I feel funny saying so, my grandfather Judge David L. Bazelon had an indirect hand in all this. In 1954, as part of a panel of the D.C. Circuit, he reversed the conviction of a housebreaker named Monte Durham and in the process adopted a relatively broad test for insanity that comes from New Hampshire: An "accused is not criminally responsible if his unlawful act was the product of mental disease or some mental defect." The idea was to expand the scope of psychiatric testimony beyond whether a defendant could tell right from wrong to the full extent of his mental illness.

My grandfather believed in psychiatry and thought experts would be able to say with certainty whether a criminal act had medical roots. He was disappointed. Psychiatrists for the prosecution and the defense regularly split over whether a defendant's mental illness caused him to commit his crime. In 1972, the D.C. Circuit changed course and my grandfather decried the warring experts. He wanted psychiatrists to go on offering diagnoses and descriptions of mental illness. But he also wanted the jury to understand that no one has a "meaningful answer" to whether a person's craziness causes him to commit a crime. The court should "tell the truth," he wrote, "that the jury, not the experts, must judge the defendant's blameworthiness" and decide simply "whether it would be just to hold the defendant responsible for his action."

Expert testimony, the core of my grandfather's critique, is still giving the courts fits. In his majority opinion, Souter wrote that the two experts in Clark's case "agree that Clark was schizophrenic, but they come to opposite conclusions on whether the mental disease in his particular case left him bereft of cognitive or moral capacity. Evidence of mental disease, then, can easily mislead."

That wouldn't be the case, though, if the psychiatrists had stuck to the facts about which there was medical consensus—Clark's schizophrenia and its attendant symptoms. The experts would testify as they're equipped to. And the jury would have to figure out for itself the ultimate questions of moral blameworthiness and guilt for which there is rarely a single answer. None of this will help Eric Clark. But someday, a court or legislature will try again on the insanity defense and get closer to getting it right.

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