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.

....................................................

This blog is public and can be forwarded at will.

There is no fixed schedule for these posts. If you would like to receive a notice of each new posting, please fill out the form at <"http://eepurl.com/gf7fS9">.