Tuesday, August 17, 2004

Insane in the membrane (got no brain, going insane)

This was a question on another post which was getting too long, and it seemed a really good one, so I decided to give it its own post. Here is the question:

ALa71 said...
TWD: I actually have a law question (or B & M)...you say because OJ got off does that mean the legal system is flawed --and I say yes! Why can't the family hire a prosecutor...this has never made sense to me. This means a rich guy/gal contemplating a murder need only commit it in some backwater town with police Dept/Prosecutor that have never handled that kind of case/publicity/media swarm and hire a 'dream team' and they're off. If the 'bad guy' gets to have 'the best' shouldn't the victims family also have that option (and don't say they do in civil court -because like OJ they won't spend a day in jail or pay a dime)Also, why isn't there a 'guilty by reason of insanity' charge --why are they not guilty because they are insane...they still did it. Another blogger raised a good point -what if someone kills a bunch of kids & gets 'not guilty by reason of insanity' then when she applies to teach Sunday School and fills out the 'have you ever been convicted of a crime' so can say 'no'....seems pretty flawed to me (the layman).

Ala71: These questions go to the heart of our legal system and are very important. Many (most?) people feel the same as you do.

To start off with, my answer is only my opinion, and not based on my legal experience since I am not yet a lawyer but only a law school graduate. Here goes:

The reason the family can't hire a prosecutor is basically because the family is not considered a party to the case. Sounds strange but it really isn't. Before our legal system took shape there was a thing called a "blood debt" - if you kill my kinsman I can either kill you (or a kinsman of yours) and we are even or you can pay me off with, oh, let's say 10 sheep and 5 cows. As a result of that system, which at first seems emotionally satisfying, either another possibly innocent party is killed or murderers can buy their way out. And of course if my clan is more powerful than yours you might not be able to collect anything. The result was usually that murders were either ignored, paid off, or clan warfare resulted. This was considered justice. The entire system was based around revenge.

Our system replaces the "blood debt" by substituing the state in for the kinsmen of the victim. The state represents society, a society which has been wronged by the murder and seeks to restore order and prevent more murders, but doesn't seek revenge. The system recognizes that the victim's family can never be made whole, that there is no way to make up for their loss. It also recognizes that murdering with impunity encourages more murders. Finally there must be buy-in from the members of society. Murderers must be punished to satisfy our natural inclination toward an eye-for-an-eye or society won't support the system - it won't seem "just." Most importantly of all, it seeks to avoid punishing the innocent. Next of kin can't be relied upon to think rationally or fairly - they are too emotionally impacted by the murder. The state can.

This is all a long-drawn out way to say our society simply replaces revenge killings and clan warfare with legal procedure. It might not be what is best in the opinion of the victim's family but it is probably best for society as a whole since we don't have clan warfare and revenge killings as often as we used to. Gang warfare where the crips and the bloods constantly get back at one another by drive-by revenge killings that never stop is an example of the old system. It is better for all of us that the next of kin are removed from the process.

A rich guy does have access to better lawyers, and sometimes a court doesn't function properly as with OJ. That doesn't mean the system is flawed but indicates those charged with running the system have dropped the ball. The surprising thing is that in talking to defense lawyers, prosecutors, judges, and law professors, most of the time juries get it right. The system isn't perfect. It makes mistakes. But it usually works better than the alternative - drivebys. That doesn't mean it can't be improved though. That would cost money and the money isn't there. The system creaks along and we seem to be much safer than we were 100 years ago.

Do the rich get away with more? Yes. Should they? No. However the system works better than it used to, and much better than the blood debt days, and OJ cases are the exception to the rule, not the rule.

Now on to the insanity defense - probably the most misunderstood aspect of our legal process.

First of all, any defense lawyer will tell you that pleading insanity is a measure of desperation. Defense lawyers don't plead it unless they have absolutely no other options. Why? Because it almost never, ever, ever works. Most of the time juries simply tune out as soon as they hear the plea. They think exactly like you do - "the bastard won't try that crap with me." Every layman thinks that such pleas happen all the time, that murderers simply fake it and then walk free. It is instead rarely pled but every time it is the papers report it. Few follow up to see how the case turns out. In those cases where it is pled it usually fails. It almost always happens that way - those that plead not guilty by reason of insanity are found guilty. Is that good? No, and I'll tell you why.

Assume we have a defendant that kills somebody. They are totally crazy, and they choke what they think is a werewolf attacking them. The "werewolf" is a postman. Our system understands that a "guilty mind" is required before punishment. If an airplane loses power and crashes to the ground through no fault of the pilot, killing two people on the ground, we don't prosecute the pilot. Why? He didn't do anything to kill them. If your steering wheel fails and you careen onto a sidewalk and kill a pedestrian, you haven't committed murder. Mechanical failure is at fault. If you kill an attacker that is trying to stab you, you haven't committed murder either. Society views the death of your attacker as a positive good. Why? A six-year old that fires a gun thinking it is a toy and kills somebody - do we put them away (not talking about the people who left the gun out, I'm talking about the kid)? Of course not. Why?

In each case there was no intent to kill and no reckless disregard for the safety of others. Society can't point to anything that anybody did wrong. So what about the guy fighting the "werewolf" in his mind? What purpose would punishing him serve? It wouldn't. It would send the message that we shouldn't choke werewolves that are trying to kill us. What good would that do? It would punish the crazy guy who would never have harmed the postman if he understood what was going on. True. But to him it would be punishing him for choking a werewolf, not for killing the mailman. It doesn't seem right. He didn't even know the mailman was there.

Sadly, what probably happens is that the insane person will plead insanity and the jury will tune out and convict him. He will go to jail where he will not get the medication and therapy he needs. He will either be victimized in prison by the other inmates, or he will attack them and kill them. It is easy to say "well, inmates deserve what they get" but it could be a relative of yours in jail for smoking dope, or forgetting to file income taxes, or a 16-year old who does something stupid like steal a car and go joyriding. It could be your 16-year old who killed because he is schizophrenic, only you didn't know it until the incident and he is otherwise a great kid who simply needs chemicals for his brain to operate normally. Instead he gets raped and brutalized in prison, or he doesn't get the help he needs and goes on to kill again. Maybe he gets killed by the werewolf guy. Do all these people deserve punishment? Sure, they've broken the law. Do they deserve the death penalty or prison rape? Death for failure to file? No, but that is what they might get. Is that justice? I say no.

Worse yet, let's say that the werewolf killer is sentenced to 25 years. He behaves in prison (because maybe he is forced to take his meds) and gets paroled in 12. He is now out on the street where he stops taking his medicine, and pretty soon he is at the bus stop looking at you funny, muttering about the moon. Oops, system failure. Wish the jury had listened better while he chokes you.

If instead he were found "not guilty by reason of insanity" (which makes sense becasue he didn't have a guilty mind, just a deranged one) he doesn't walk out the door a free man. He will be institutionalized for a certain minimum period of time, and after that he will remain institutionalized until his doctors decide he no longer presents a threat to society. Notice that this is a power jail wardens don't have. The guy can tell his prison guards "I'm going to kill all those werewolves who hang out at the elementary school when I get out" and they have to let him go. The doctors don't - most people institutionalized in such a way stay in mental hospitals longer than they would have stayed in prison. They also get the help they need. And it is usually cheaper to the state to house them where they get treatment than to put them into the prison system.

Note that if a deranged person understands right from wrong and kills somebody for a reason having nothing to do with their illness then they are guilty - no insanity plea because it isn't relevant. If I think I am Blorgon of the planet Dworbula and that the govt is reading my mind with microwaves but I kill you for your wallet because I want your money, then my insanity isn't relevant to the killing and I go to jail, not a mental hospital.

But if I think I am killing a raging bear when I am shooting the old lady across the street then I don't have any guilt - I was killing a raging bear in my mind. Society shouldn't seek to punish me but should seek to protect itself from further harm. Convicting me is the worst option for doing that. Putting me in the rubber room and keeping me there until I don't present a threat is much better for me and for society.

So the "kills a bunch of kids and gets not guilty by reason of insanity" won't be teaching sunday school, at least not anytime soon. They will be in an institution until they don't present a threat anymore, in which case they don't present a threat and the kids are ok. Unless they are convicted, in which case they might be out while they are still young enough to kill again and hang around the playground waiting for an opportunity to strike.

The sad fact is that most of the people who plead insanity are insane but get convicted anyway. Society isn't safer and the insane person is punished for actions they weren't responsible for.


ALa said...

Thanks for the answer --these are things I think about a lot. Ok, how about this ...the State is still 'in charge' and not the victim's family --but on big cases there are several 'dream teams' available to do the Prosecution -a pool- that can be used. I know this would step on some toes in DA's offices around the country and I know that it could further disadvantage low-income defendants (stipulation -they can't be used when the defendant has a PD)....there must be some solution. Do lawyers in the DA's office get paid crap? Is that why everyone goes into defense or trial?
OK, I still like my "Guilty by reason of insanity" because it could satisfy both aspects. They are still guilty, but the insanity specifies that they can receive the help they need.
My counselor in college constantly tried to talk me into going to law school -I kept telling him that if you don't believe in the system you can't be a good lawyer (of course I would only ever even consider being a Prosecutor)...I thought about it –just as a stepping stone for politics, BUT , even though I don’t ‘smoke’ here, there are pictures of me ‘smoking’ in Amsterdam…oh well…

91ghost said...

...I enjoyed reading this.

leftyjones said...

Hey.... great post! Well presented logic in regards to the "why's" of how our prosecution system works.
However, I do have to point out one serious flaw in your argument.
I personally knew Blorgon of the planet Dworbula, Blorgon was a friend of mine. And you, TWD, are NO Blorgon of Dworbula.

this we'll defend said...


Cigarette Smoking Man from the X-Files said...

The one minor tweak I'd make to our current system is that ALL defense attorneys should be from a pool of public defenders. Granted, the quality of said public defenders should be more closely watched, but it should be equal to all citizens regardless of stature in the economic cliques outside the courthouse walls.

I have no beef with medical commitment for the insane--not as "punishment" to the insane, but to simply protect society from the dangers that would exist if these two-legged bombs were out on the street. I've also seen the stats on how many "insanity pleas" succeed, and to me the system has swung a little too far in the other direction in considering insane people sane when they're not. There has to be better medical determination of this and a balanced, fact-based approach, IMHO.

tim mccolgan said...

Lefty...thats a riot...straight up totally forgot the point of my post. Still ROFLMAO !!!

~Jen~ said...

Great post TWD

Frater Bovious said...

I always thought if Quayle was faster on his feet he could have, should have responded "Yes Mr. Bentsen, and you're no Marilyn Monroe."

Bigandmean said...

I think Qualye should have said; "You're right, I'm no JFK. I spend my nights at home in my own bed, don't do drugs and wasn't put in office by my father's mob connections. Thanks for the compliment".

Bigandmean said...

Good job in explaining the system. I'd be willing to bet you passed the criminal law section of the bar exam.

I'll add just some random thoughts on the criminal justice system.

OJ was unquestionaly guilty but Judge Ito was an exceptionally weak judge who was "rolled" by the defense. His first mistake was allowing cameras in the court room which added to the circus atmosphere. He was never really in charge after that.

Under our system, the defendant is found either guilty or not guilty. Confusion arises when lay people assume that not guilty always means innocent. We should have three possible findings by the jury rather than two: 1)guilty, 2)innocent and 3)probably guilty but not proven beyond a reasonable doubt.

The basic idea is that it's better to let a few guilty people beat the system than to convict just one innocent man.

It's possible to be found not guilty in a criminal case but legally liable for damages in a civil case arisng out of the same facts as was the case with OJ. This is because the burden of proof in a civil case is not as demanding as in a criminal matter.

Johnhny Cochran played the race card, Judge Ito let him get away with it, and the jury ate it up.

Sometimes juries are predisposed to ignore the Judge and the instructions given them as OJ's jury did. There were plenty of examples of "jury nullification" prior to and during the civil rights era when all white juries convicted innocent blacks or exonerated guilty whites.

A lawyer's duty is to do the best he can for his client. His duty is to require that the case against the accused be proven beyond a reasonable doubt and that his client's and therefore everyone's constitutional rights are protected.

I was appointed many years ago to represent an indigent person who was accused of rape. He had a solid alibi and the identification process was rife with violations of his constitutional rights. I filed a motion to have the case dismissed with prjudice, meaning it could never be filed again. It was dismissed, my client and I celebrated and then I discovered that he truly was guilty and according to him, WAS LIKELY TO DO IT AGAIN! He consoled me by explaining to ME that I was only doing my job. I have a conscience so i no longer do criminal cases.

It is possible to find a psychiatrist who will testify that anyone is incompetent to stand trial. There are some who don't actually practice any longer, but are professional witnesses. The basic standard in Texas, as in most states is the "right and wrong" test, ie, did the accused know the difference between right and wrong at the time of the offense. In a famous Texas case, Andrea Yeates drowned her five pre-school age chilren and pleaded not guilty by reason of insanity. She said she wanted to send them to heaven while they were still innocent rather than let them live in a sinful world and take the chance that they would go to hell. After she killed them, she called her husband and said "Come home. I've done a bad thing". The jury convicted her, reasoning that she knew the difference between ringt and wrong based upon her call to her husband. She was and in my opinion remains, incompetent but she's locked up in prison and likely will never get out.

The system isn't perfect by any means. It's better though, than anything else anybody has ever come up with. Maybe on the final jugment day, all of this will be explained to us in a way that we mortals can make some sense of.

this we'll defend said...

BigandMean: we agree completely on this one.

Andrea Yates reportedly has asked why her children don't come to visit.

Perhaps her incarceration rather than treatment is the most merciful thing. Imagine if she got treatment and was able to comprehend and understand what she has done. I would imagine she couldn't be in a worse hell than that.