Killing the Mentally Ill

In 1982, American jurisprudence sustained a crushing setback from which it has yet to recover. The iconic date is June 21 of that year, when a jury in Washington, DC, found John W. Hinckley Jr., the profoundly disturbed young man who shot President Ronald Reagan and three other men, not guilty by virtue of insanity. The verdict set off a firestorm of outrage that crossed the geographical and political divide; one day after the verdict was announced, an ABC News poll heard 83 percent of respondents proclaim that “justice was not done.”

Juror Lawrence Coffey told a reporter at the time how he had lain in bed, ruminating on the evidence presented to him, and concluded, “I felt sure Hinckley wasn't in his right mind when he shot those people.” Coffey was correct (see sidebar: The Hinckley Verdict) and a great deal of human misery would have been saved if politicians from right to left had listened to voices of clarity such as his. Instead, with Reagan's incision barely healed, politicos across the country lined up to strangle the insanity defense and, in four states (Idaho, Montana, Utah and, later, Kansas) to abolish it altogether. In 1984, the federal government hopped on board with its own draconian insanity defense statute.

Modern insanity defense (“insanity” is a legal term, while “mental illness” is the proper psychiatric expression) statutes date back to the M'Naghten Rule, which found its way into Scottish law in 1843. According to the M'Naghten Rule, a person can be found not guilty by virtue of insanity if he or she was unable to tell the difference between “right and wrong” when the crime was committed.

With advances in psychiatric knowledge in the 20th century, the M'Naghten Rule became increasingly difficult to sustain, because it imputed too much insight, too much self knowledge, on the part of the defendant. The first alternative to be considered was the irresistible impulse defense; stripped of legal jargon, this defense means that defendants are deemed mentally ill because they were helpless to control their acts. The irresistible impulse defense was certainly a welcome improvement over the harsh Scottish burr of M'Naghten, but it was also vulnerable to advances in psychiatric knowledge – this time, because it perceives mentally ill persons virtually as automatons. One hundred and eighty degrees around the compass from M'Naghten, it imputed too little self-knowledge to defendants.

The humane Durham rule is important, not because so many states adopted it, but because of the impact it would eventually have. Durham states that a person cannot be found not guilty if he or she was “mentally ill” at the time of the crime. Unfortunately, the Durham rule, which enjoyed its moment in the sun in the early 1950's, was tragically vulnerable because it did not define “mental illness.”

With three competing legal standards for an insanity defense, a consensus ultimately emerged: the American Law Institute (ALI) Model Penal Code test, which draws from M'Naghten, irresistible impulse and Durham, generally with touches from the individual states. ALI-style bills prevailed across the United States, specifically in the District of Columbia, on the day that Reagan and Hinckley had their violent encounter.

States that have not entirely abolished the insanity defense have since replaced it with standards that distinguished death penalty lawyer George Kendall calls “stingy.” Today's standards require evidence of very extreme mental illness, and even then, notes Kendall, “The prosecutors have the upper hand;” under prevailing laws, the defense lawyer bears the burden of proof in trying to convince the jury that his or her client was legally insane when the crime was committed. This is clearly a serious onus for indigent defendants who can't afford a parade of high-priced experts.

Truthout spoke with James L. Knoll IV, a medical doctor, director of forensic psychiatry and associate professor of psychiatry at the State University of New York (SUNY) Upstate Medical University. “Are Americans executing the mentally ill?” we asked.

“Yes,” Knoll replied, explaining that this is the case not only because the death penalty defense is so very stringent, but also because research suggests that death row prisoners are apt to develop a mental illness, most commonly depression, while awaiting their fate. Owing to multiple levels of appeal, the typical death row inmate waits ten to 12 years before execution, a favorable appeals court ruling, or – with increasing frequency – exoneration.

Of course, the insanity defense is not reserved for capital cases – Hinckley did not kill anyone – but these are usually the most shocking. Prosecutors have the money and power of the state behind them, and there exists a cottage industry of high-priced psychiatrists and psychologists who are literally killing people with testimony that Kendall calls “junk science,” such as predictions of dangerousness that are little better than the laws of chance.

These six-figure psychiatrists, says Stephen N. Xenakis, a medical doctor and retired brigadier general, are “profit-motivated hit men who interview prisoners with the aim of building a case for which they've already drawn their conclusions.”

If Xenakis' name is not familiar to Truthout readers, it ought to be, because he is one of a handful of military officers who have been making the Pentagon unhappy by writing and speaking out against torture and rendition and working with the defense in terrorist cases.

Isn't it true, Xenakis was asked, that all forensic psychiatrists are biased toward the defense or the prosecution?

“In an adversarial system such as ours,” Xenakis acknowledged, some psychiatrists are going to prefer working with prosecutors, others with defense attorneys. But, he insisted, there is a protocol that ethical psychiatrists will follow, regardless of which side of the court room they're sitting on.

A proper evaluation may consist of three components, Xenakis explained.

The first – after examining whatever paperwork may be available – is to develop a thorough history, which could take days or weeks of interviews with the defendant. The history must garner information about the defendant's childhood, his or her psychiatric, medical, educational, and employment background, the events and person's state of mind leading up to the crime and the person's present mental state. Some defendants are rendered so mute by their illness that they cannot even work with the expert psychiatrist.

Second comes the acquisition of collateral data to give weight to the history. Such data includes psychiatric and hospital records, school, prison and military records, and so on.

Third may come psychological or neurological tests. For example, the psychiatrist may sense that the defendant is somewhat slow intellectually. The psychiatrist will then order an I.Q. test, to be performed by a qualified clinical psychologist. The score might be sufficiently low that the defense counsel can mount a defense based on mental retardation, which is usually easier to win than an insanity defense. Many other trustworthy tests are available to help confirm the clinical impression a psychiatrist gains from his or her interviews with the defendant.

Medals were not exactly handed out to the Hinckley prosecution team, but one person did come out ahead. Park Dietz, then a young Harvard professor of psychiatry who had been doing forensic consults on the side, caught the attention of prosecutors, and business picked up. Dietz was able to devote himself to consulting and testifying (for the prosecution). As his forensic work grew, he began to work in high-profile cases. Today, he presides over a 30-member consulting practice of forensic psychiatrists, psychologists and investigators (retired FBI agents). Dietz's career has been so successful that he set up a sister firm – Threat Management Group – that services private industry and public figures on issues like stalking and preventing violence in the workplace. Dietz has an ambivalent attitude toward the media. He's understandably discrete about his personal life – though, years ago, he told a reporter for his alumni magazine
that he sometimes packs a gun – but he had a long relationship as a consultant with the now-defunct cops-and-robbers show “Law and Order,” a relationship that would one day cause him major embarrassment.

The Andrea Yates case is the kind of high-profile crime with which Dietz has long been associated. Yates, a 40-year-old Texas mother, drowned all five of her children in the bathtub. The prosecution sought the death penalty and chose Dietz as their premier psychiatric witness. The defense opted for the insanity statute, and five mental health experts testified that Yates was suffering from postpartum psychosis. It seems inconceivable that anyone, let alone a psychiatrist, could regard Yates as anything other than psychotic, but Dietz testified that Yates was tired of motherhood and got the idea for the crime – including the use of the insanity defense – after watching a similar program on “Law and Order.”

Incredibly, the jury found Yates guilty, but at least spared her life. However, a subsequent search of some 260 episodes of “Law and Order” failed to reveal a single one that resembled the show that Dietz described in his testimony. Result: a three-judge panel of the First Circuit Court of Appeals in Texas overturned Yates' guilty verdict, blaming Dietz for feeding the jury “false testimony.” The court, however, could not find evidence that Dietz had committed perjury.

The Harris County prosecutors decided to try Yates a second time. Remarkably, they brought Dietz on board again as an expert witness, but this time their star psychiatrist was Michael Welner MD, associate professor of psychiatry at New York University and adjunct professor of law at Duquesne. Though about a decade younger than Dietz, Welner already had a 27-member consulting practice of his own, called The Forensic Panel. Welner's claim is that his practice offers a higher-than-usual quality of forensic consulting because members of The Forensic Panel confer among themselves. Welner calls this “peer review,” a classification for which he has been criticized because it does not correspond to the anonymous procedure of collegial evaluation of scientific articles and grant applications; he's already taken so much heat, both on and off the witness stand, that it's difficult to see why he doesn't just use a medical term like “case conference.” In fact, according to a post mortem by the Houston Chronicle, Welner – who, like Dietz, insisted that Yates was sane – did not make an engaging witness, and jurors did not buy his deployment of “peer review.”

Rick Casey of the Houston Chronicle scrutinized the tab that the Harris County district attorney's (DA) office picked up for its forensic talent. Dietz was paid $105,000 for his services in the first trial and $37,000 for his encore performance. But, as Casey writes, “Dietz looks like a bargain compared with the new hired gun brought in by the DA's office for the second trial.” Welner's fee was $242,966.74, and it would have been $8,200 more had the DA's office not refused to pay a mark-up: Welner was remunerating each of his peers $350 an hour, then deducting $75 an hour for himself, on top of his own fees. And what was the result of all this money?

Andrea Yates was found not guilty by virtue of insanity and committed to a psychiatric hospital, where she will almost certainly spend the rest of her life.

Since the storm over the Yates case ended in 2006, Welner's fees have gone up. At this writing, he is embroiled in the kidnapping trial of Brian David Mitchell in Utah, whose religious fanaticism is the basis of an insanity defense – a defense that Welner repudiates, insisting that Mitchell is faking his religiosity. The United States attorney's office (kidnapping is a federal rap) is paying Welner $640,000.

Welner is a busy man. When he is not working on a case or presiding over The Forensic Panel, he's an on-camera crime expert for ABC News. And he still finds time to do research that's gaining him a lot of attention.

Welner is one of several forensic psychiatrists who are trying to fit the concept of evil into his specialty. Specifically, he is gathering data for a “depravity scale” by seeking a consensus within the general population for defining terms by which we recognize evil – words such as “cruel,” “atrocious,” “heinous,” and “horrible.” The purpose of the depravity scale, claims Welner, is to help judges and juries to mete out punishment in a fairer, more objective way and, in particular, to identify in a scientific way crimes that Welner calls “the worst of the worst”: that is, the truly evil crimes that deserve the death penalty.

Some very senior practicing forensic psychiatrists are appalled by the introduction of “evil” into their profession. One of them is Knoll, who unleashed a scorching condemnation in the pages of the Journal of the American Academy of Psychiatry and the Law: “Embracing the term 'evil' in the lexicon and practice of psychiatry will contribute to the stigmatization of mental illness, diminish the credibility of forensic psychiatry, and corrupt forensic treatment efforts.”

Such considerations are not stopping Welner's research, nor did they deter Michael Stone MD, of Columbia University, who has already constructed a scale, also intended to scientifically measure evil, which he promoted on a cable television program. Will the use of these scales diminish the credibility of forensic psychiatry?

Truthout spoke with Richard C. Dieter JD, executive director at the Death Penalty Information Center (DPIC), an organization that seeks to meet the information needs of lawyers, academics, students and journalists. Dieter is uniquely positioned to take the pulse of death penalty developments by virtue of the questions litigators ask him and the paper flow into DPIC. Dieter told Truthout he's already getting queries from lawyers about depravity scales, and he's worried that pitching them as being scientific could have a “damning” effect on the defense.

It's easy to see how a purportedly scientific measure of evil can work to the detriment of a defendant, especially in a capital case, because Americans are suckers for science, or what they think is science. It is heart-wrenching for 12 people to gather in a locked room to decide whether a fellow human being shall live or die. A juror's decision is less onerous if the defendant can be demonized – that is, ineluctably estranged from the run of humankind – by deploying a scientific measure of evil. Dieter believes that, if these depravity scales start to gain traction, defense lawyers are going to have to learn how to “fight fire with fire.” Specifically, this means educating juries in the fundamental flaw in trying to measure evil scientifically.

“Evil,” observes Dieter, “is a subjective concept. You can wrap numbers around it, but that doesn't make it any less subjective. A depravity scale attempts to quantify the unquantifiable.”

Knoll does not have a gentler opinion than Dieter. In fact, he thinks the whole notion of measuring evil is so defective that jurors won't give it any credence, once the basic logical flaw has been carefully explained to them.

What does this say about Welner's astuteness as a researcher in forensic psychiatry, and how does it reflect on the assumptions that he brings to his role as an expert witness? “In orthodox, mainstream American forensic psychiatry,” Knoll told Truthout, “Welner is not taken seriously.”

But whether or not prosecutors deploy a rating scale, their strategy is to demonize the defendant. Whether explicitly or implicitly, they seek to portray the defendant as “evil” and therefore too dangerous to be allowed to live, lest one day he or she escape from prison or receive parole. So, although the depravity scale is a recent development, evil has always been with us in the courtroom. How does the defense attorney counter this play on jurors' fears and misconceptions?

Truthout spoke with an experienced death penalty lawyer, Lisa Greenman of the Maryland federal public defender's office and the Federal Death Penalty Resource Counsel project.

“The first goal of the defense attorney,” explains Greenman, “is to ensure that jurors' revulsion over the crime, and their entirely reasonable feelings for the victims, does not blind them to the fact that they are deciding the fate of a human being. The defense counters prosecution efforts to demonize the client by learning the client's life story and sharing it with the jury. The purpose is not to excuse the defendant's conduct, but instead to have jurors see him more fully, to know the context in which he developed and to recognize that he, like all of us, is more than the worst thing he has ever done.”

“Essentially,” Greenman says, “the jury is entitled to know that the client, though deeply damaged, is also a son, a brother, an uncle, a father, in short, a member of the human family.” For this purpose, the defense may present testimony from witnesses who have known the defendant at various points in his life, as well as from one or more experts with the kind of deep and compelling evidence that Xenakis describes.

“The second defense goal,” explains Greenman, “is to account for the jury's reasonable fear that if not sentenced to death, the client will be dangerous and might hurt others in the future. This issue is addressed by explaining thoroughly and truthfully that, having been convicted of this capital crime, there is no possibility this defendant ever will be released from prison. Upon conviction for a capital crime, there are, in most jurisdictions, only two possible sentences: death, or life without the possibility of parole. A sentence of 'life without parole' means the defendant will die in prison. The defense lawyer makes sure the jury fully understands this point, and further educates the jury about the range of measures available to prisons that will allow them to safely house even the most dangerous prisoners. Research has demonstrated that when juries understand there is no possibility of parole, they are more likely to choose this sentence rather than impose the death penalty.”

Could it be that the outrage over an attempt on Reagan's life has moderated with the passage of the years, and that the country is ready for less punitive insanity defense statutes? Truthout spoke with an attorney who is well-positioned to answer that question.

Ronald J. Tabak JD, is special counsel for pro bono affairs at the law firm of Skadden, Arps, Slate, Meagher & Flom. He has been fighting the death penalty for his entire career, including a case that he fought and won before the Supreme Court in 1984. One of his most enduring contributions is likely to be his leadership role in the American Bar Association's (ABA) effort to recruit and train lawyers to represent indigent capital defendants. So, it's no surprise that the ABA tapped him to chair a task force of attorneys, psychiatrists and psychologists to draft a policy statement on mental illness and the death penalty. The statement, intended as a guide to a more enlightened insanity defense, was adopted by the ABA, the American Psychiatric Association and the American Psychological Association a few years ago. Outcome: not a single state incorporated the policy statement in its death penalty legislation.

Truthout asked Tabak how the current insanity defense statutes in many (but certainly not all) states compare with M'Naghten, which for many years was held to embody a simplistic, if not benighted, view of mental illness. Tabak – who ordinarily speaks in a judicious, reflective way – replied without hesitation: “M'Naghten would be an improvement,” he said ruefully.