INSANITY? THEM OR US?

 Earlier this month, one Brian Kohlberger was arrested and charged with the stabbing-murder of four students in Moscow, Idaho.When it came time to enter a plea, Kohlberger elected to "stand silent" and the judge entered a not guilty plea on his behalf. A criminal law expert familiar with the matter reports that Kohlberger's lawyers are expected to argue that their client was not competent to stand trial, or is not guilty by reason of insanity. Perhaps both.

Kohlberger is just the latest defendant charged with killing someone to assert that he was insane at the time of his criminal conduct. 

The insanity plea is used not only to determine guilt or innocence, but is often employed in trials wherein the jury, having found the defendant guilty of murder, must reconvene and decide whether they can unanimously vote for the death penalty.

Ethan Crumbly, age 15 was given a semiautomatic pistol for Christmas by his parents. When warned by his high school about their son’s potentially dangerous behavior, their response was to warn him to be careful and not get caught. They even instructed him not to use the web for purchases of ammunition. Crumbly killed four students and wounded six others. The jury rejected the death penalty on the ground of a version of the insanity plea.

Perhaps the most famous mass shooting within the last few years occurred at the Marjorie Stoneham Douglas high school where the killer took the lives of 17 people. A juror refused to vote for the death penalty on the ground of the killer”s “incompetence.”

In the mass shooting murder at the Aurora movie theatre in 2015, the defendant shot dead 12 people. At trial, he asserted an insanity plea. The jurors found him guilty of multiple murder, but then adopted his insanity allegation and refused to vote for the death penalty.

On June 17, 2015 one Dylan Roof attended a Bible study session at a church. Roof was white, the group was Black, and Roof killed nine with a semiautomatic pistol and walked out of the building. Upon being apprehended, Roof explained, “They were Black and I was white and somebody had to do it.” A federal jury convicted him and voted for the death penalty. In one of the numerous subsequent appeals, his lawyers asserted that Roof had a  “delusion" that he was going to be rescued by white nationalists.  Despite the unanimous vote for death, eight years later Roof is still alive in a federal prison. More appeals may follow.

I guess the Roof argument about “delusions of forthcoming white nationalist assistance” should help free some of the Proud Boys and Oath Keepers now in jail for their conduct on the January 6 insurrection, huh?

In October 2018, one Robert Bowers, age 50, went to a service at the Tree of Life Synagogue in Pittsburgh, killed 11 congregants and wounded six others. Bowers was an extreme right-wing radio  personality and a vicious anti-Semite. He owned 21 guns and on the day of his murderous assault he had three semiautomatic handguns and an AR 15.  Five years later, Bowers is actually being tried for those murders. Surprise, surprise, Bowers’ defense is he had a major mental illness at the time he killed those Jews.

I have already written (see my blog dated May 12) about the forthcoming criminal proceeding against the former Marine Daniel Penny who choked to death the homeless person Jordan Neely in a subway confrontation. While the details of that attack are yet to be fleshed out, it is now been reported that Penny is willing to take the unusual step of testifying before the Grand Jury that will decide whether or not to indict him. Neely, you will recall, had been arrested 42 times, four of which were for assault, had spent a year in jail, was sentenced by a judge to spend 15 months in a mental rehabilitation facility in the city, but decided to walk out the unlocked front door after thirteen days.

I am not a psychiatrist but have no doubt that Neely had severe mental issues with which the city and the judicial system were totally unable to cope. 

And now, just last week we have the report of a 39-year-old man charged with "shoving a woman's head against a moving subway train in an apparently random attack that left the woman critically injured." Two days later, the doer was arrested at a homeless shelter in Queens though City service records show he had been assigned to a shelter in the Bronx. 

The victim's injuries are severe and included a fracture of the spine, scalp lacerations and damage to four major blood vessels. She is reported to be currently paralyzed from the neck down and at risk of a stroke or death. Clearly the totally random attack is the result of mental illness of one sort or another and no doubt that condition will play a major role in the judicial proceedings to follow.

The foregoing is hardly a comprehensive report on the use of the insanity plea in criminal proceedings. Though lawyers assert that “not guilty by reason of insanity" is a plea that most often fails, the most prominent one that succeeded in my lifetime arose out of a March 1981attempt to assassinate the President of the United States. One John Hinckley Jr. opened fire with a handgun using explosive bullets aiming to kill President Ronald Reagan.  

Why? Because Mr. Hinckley had an unrequited love affair with the actress Jodie Foster who did not answer his letters and he believed that if he killed the President of the United States she would come to know and love him. 

The President was wounded, spent 12 days in the hospital, and survived. James Brady, who was walking next to the President was not so lucky and his wounds led to his death.

Hinckley was defended at trial by a distinguished D.C. law firm. There was no question about the sufficiency of the evidence beyond a reasonable doubt that Hinckley had attempted to assassinate the president and did wound him, and kill Brady. Yet the jury was persuaded that he was “Not guilty by reason of insanity’ and was institutionalized. After some 20+ years of treatment, his caretakers were persuaded Hinkley was at least partially cured and was allowed to leave the hospital and spend time with his mother at her home. In 2016 the medical team concluded that they had cured him and he was released, full-time, no restrictions, scrubbed clean of any criminal liability because he was no longer “insane" under legal doctrine.

Attention to the foregoing incidents leads me to cogitate upon the subject of the “insanity” plea, which is viable in 47 states. To avoid a  technical disquisition, the plea is in the nature of what lawyers call an "affirmative defense." In other words, while the prosecution bears the burden of proof to persuade a jury beyond a reasonable doubt that the defendant did the criminal acts set out in the indictment, the defendant can shield himself from the penal consequences of that otherwise criminal conduct by proving that when he did the deed he really didn't know it was wrong to do so. In other words he lacked the mental acuity to distinguish right from wrong. 

In contrast to the prosecutor's burden of proof of guilt beyond a reasonable doubt, a defendant's insanity defense succeeds in most states if he can prove his mental disorder by a preponderance of evidence. 

Why do we imprison criminals? The law libraries contain lengthy philosophical discussions about the purposes of incarceration. The common justifications are rehabilitation, punishment, deterrence, and public safety by removing the bad guy from society in order to protect the rest of us from the defendant’s antisocial conduct. 

But really, does it make any difference whether the racist Roof was legally nuts when he attended a prayer session and shot unarmed churchgoers? Was Robert Bowers’ 2018 hatred of Jews, resulting in his slaughtering nine of them at the Tree of Life Synagogue, to be simply washed away if he now knows what he did was “wrong?” In other words, if today he knows the difference between right and wrong,  is he no longer legally "insane" and entitled to go free?

Is it really okay that after trying to kill the President and successfully killing somebody else in the effort, that John Hinckley Jr. walks among us as a free man or that Dylan Roof and Robert Bowers should be freed if a lawyer persuades the legal and medical establishments that though those killers didn't know it was wrong to murder all those people at the time, they know it now, and therefore should be able to be free to go to the local pub, down a few with Mr. Hinckley, and then go to the movies, perhaps sitting right behind you?

Is it fair to ask who is crazy, them or us?

A bientot.

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MOUSE BRAGG ROARS AGAIN

The other day I was downtown with a friend who lives on the West Side of Manhattan just across town from my East Side apartment. She said she was hopping on the subway to go home and I said, "Oh boy, not me. Not ever again. I don't trust it for a moment,” and hailed a cab.

I have, without hesitation, been a regular and confident passenger on the New York City subway system for the last 75 years. I have literally traveled on the subway lines from terminus to terminus. but I am now turning in my Senior Citizen Transit Card.

Last week a troubled young person named Jordan Neely was killed on the F train in a contretemps with a former Marine named Daniel Penny. These are the circumstances I have been able to scrape together from the media.

The decedent had an extraordinary arrest record – he has been taken away in handcuffs some 42 times. On four of those occasions he had been accused of assault. One of those assaults involved his walking up to a 65-year-old woman in a grocery store and, without provocation, punching her in the face. She suffered minor injuries, but then he did it again to a 67 year old woman in another store and this time the victim suffered major physical injuries.

Neely was known by the authorities to be a deranged person, and the result of this assault arrest was that he came before a judge who sent him to a home for deranged people and told him that he if he “behaved himself" for the next 15 months, the charges against him would be dropped. Neely spent four nights in the home and then walked out of the unlocked front door. Hooray for New York City's care of the mentally disabled. 

On being informed of Neely's walkabout, the judge issued a bench warrant for his arrest. Apparently, the authorities made no effort to look for him.

Neely did not escape to Mexico; he took a subway ride on the F train. While we do not yet have all the facts, this is what has been reported in the press so far.

In the subway car, Neely became extremely aggressive. He frightened the passengers by telling them "I don't mind going to jail and getting life in prison. I am ready to die."  

A law enforcement officer who has knowledge of the case told NBC news that an eyewitness reported Neely threatening,“I'll hurt anyone on this train.” 

Several people in the car were so frightened they called 911 and one of the callers said he thought Neely was armed.

In a social media report one scribe wrote Neely  had once tried to push him onto the tracks, at the same station.

So what we have here is an astounding failure of New York City's care of the mentally ill – literally a turnstile approach, in which the   judiciary is an active participant.

What happened next is tragic. With no social worker or law enforcement officer in the car, Neely was physically restrained by three male passengers: a former Marine named Daniel Penny and two other as-yet unidentified males.  Penny’s problem was that he restrained Neely by putting his arm around his neck instead of his head, while the other two men tried to restrain Neely's legs and arms. Penny was questioned by police at the scene and released.

But New York is New York. Neely was black and Penny was white. When the Coroner opined Neely was killed by the chokehold, there were demonstrations and accusations about racism and three days later District Attorney Mouse Bragg had Penny arrested and charged with manslaughter.

But now the matter goes to the Grand Jury and  the entire legal community knows that the DA almost always gets what he wants there. History supports the old saw, ”The Grand Jury will indict a ham sandwich if that's what the District Attorney tells it to do." 

But if Mouse Bragg plays this one straight and puts all the facts in front of the Grand Jury, this case could possibly be the exception. Indeed, a very cynical conspiracist could cobble together a scheme for just such a result, which gets Bragg off the hook. Could the Mouse do such a thing? If he feared losing Mark Pomerantz's serious case against Trump, what's the likelihood Bragg doesn't fear losing this one at trial?

I have reported here only those facts I could scrape from the media. Perhaps either side has facts that make indictment and conviction more or less likely. I have no idea. 

But I do know enough to come to three basic conclusions:

One. New York City's Health Department's system for managing the mentally ill and homeless is a disgrace.

Two. New York City's judicial system for  managing mentally ill dangerous felons is a disgrace.

Three. I am never riding the New York City subway system again.

A bientot.

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THE CARLSON TEXT

Much has been made in the media of the Tucker Carlson text about his observation of a J6 video showing "three white men" beating up “an Antifa kid". The media have focused on two aspects of Carlson's screed: i) the text demonstrates Carlson is a racist, and ii) if the text were published to the jury, it would severely injure Fox's position in the Dominion case that was about to be tried. 

So that you will know what I'm talking about, let me refresh your recollection: In his January 7 text to a Fox producer, Carlson said, among other things:

"A group of Trump guys surrounded an Antifa kid and started pounding the living shit out of him. It was three against one, at least. Jumping a guy like that is dishonorable obviously. It's not how white men fight. Yet suddenly I found myself rooting for the mob against the man, hoping they'd hit him harder, kill him. I really wanted them to hurt the kid. I could taste it."

Then Carlson's brain switched channels and examined the thoughts he had just expressed:

"Then somewhere deep in my brain, an alarm went off: this isn't good for me I am becoming something I don't want to be. The creep is a human being. Much as I despise what he says and does, much as I am sure I’d hate him personally if I knew him, I shouldn't gloat over his suffering .…”

It was essentially these excerpts that gave the Fox Board and management pause and led them to conclude that because of his obvious racism, Carlson was such a detriment to the forthcoming Dominion jury trial, that he was  “more of a problem than an asset."

But I suggest the media missed the boat. It was not simply Carlson's racism that panicked the Board and the management. That was already common knowledge. Anyone who had seen Carlson's shows knew that he was a racist. Indeed, Fox kept him on because racism is Fox's chief commodity, and it's what keeps Fox in the lead in the viewership contest. 

I suggest what the Carlson text shows, and the Board and the management finally realized, is that Carlson is a thug. It's not just that three against one is not "how white men fight". It's the balance of that paragraph that raises the hair on the back of your neck:

"Yet suddenly I found myself rooting for the mob against the man hoping they would hit him harder, kill him. I really wanted to hurt the kid. I could taste it."

These were the thoughts of the crocodile brain of Fox's leading money-making anchor. Yes, he does go on to say that when he realized what he wanted, what he was hoping for, set off an alarm in his brain: perhaps on odd-numbered days the Antifa “creep” (Carlson said he hated him even though he didn’t know him) was, after all, a human being and not just croc chum.

But lawsuit or not, no sentient manager could take the risk of employing, indeed making company flag-bearer, a creature who on the flip side of his brain would enjoy watching men beat somebody to death for no reason other than, at best, political disagreement. You would not want to meet such a person in the supermarket, and, one would think, you would not want to put your brand label on such a person who spoke to 3 million of your customers every night. 

In my judgment that is what blew the minds of the Fox Board and led the management to conclude that Carlson was quote “more of a problem than an asset." That problem was far greater than his racism or his referring to women in "crude and misogynistic terms." 

The real risk was that the public would see the Board and the management as being like-minded. The croc-mind risk was too great and Carlson had to go. Instantly.

Second, how could it be that, as the Times reports, the Fox Board first learned of the Carlson Crocodile Text one day before jury selection?

Fox was represented at this trial by two reputable law firms, and I'm sure that means, given the stakes, there were a dozen lawyers involved on the Fox team. Nobody told the client what was in the discovery? Nobody told the management about the existence of the croc-text until the day before jury selection?  Hardly likely. The text was the subject of testimony in Carlson’s pre-trial deposition, weeks, if not months before trial. I practiced law for 50 years and I never heard of a sentient lawyer keep important stuff secret from his client.

Did you see any discussion of this issue in the press? I didn't, Given the identity of the parties and the subject matter, this case was high on my list of interesting items in the news and I saw no reporting suggesting i) that outside lawyers kept it from their client, or ii) inside counsel hid it from management, or iii) that senior management consciously hid it from the Board. The press has neglected to pay any attention to the issue.

One of the reasons corporations have Boards of Directors is to watch out for gross management failure, such as this one, but the Board can only do that when it knows the truth – a commodity not held in high regard at Fox.

When the Board learned of the croc-text, it immediately hired an outside law firm to investigate Carlson. But now that croc-brain is gone, what happens to that inquiry? If I were a member of the Board I would keep the outside counsel on the job and just change the mission: the new issue is how did the breakdown in communication inside Fox occur? The question is hardly moot. While the Dominion suit is over, there are other litigations, some or all of which involve Fox management's handling bad stuff, i.e. Smartmatic ($2.6 Biilion,) Grossberg, possible shareholder derivative suits, and who knows what else?

Hooray for Fox. The country may be facing an economic recession, but not for the lawyers who have anything to do with Rupert Murdock’s entity.

Wahoo!

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