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Innocent: By Reason of  Insanity
Should the Insanity Defense
be Altered or Abolished?

By Randy Heuston
(Contributing reporting by Rick Jost, Kris Jensen and Mike Briggs)

Night of Horror
Her husband worked nights, and so pretty, vivacious Debra Finley, 22, was alone in her rural Illinois City home part of the evening March 31, 1978. She did some household chores and baked a birthday cake for her mother. At about 10:30 p.m., Timothy Downey, then 16, also of Illinois City, pulled up to the Finley house in his blue Volkswagen.

Mrs. Finley later testified she first believed Downey was with her brother. The two had been in the Finley home earlier that evening, watching “The Incredible Hulk,” a television show. Then she noticed Downey was trying not to be seen.
“Immediately I knew something was wrong if he was hiding from me, so I tried to lock the living room door,” she said. “It’s a turn-type knob, and I turned it the wrong way.”

Downey would be described by is former principal at Rockridge High School as “just a big puppy dog, like a collie.” But Debra Finley testified that on the night of March 31, 1978, he was more like “a dog with rabies.”

He shoved opend the door with great force” she remembered. “He appeared full of anger as if he hated me, and there was no reason for that.”

But, she insisted at Downey’s trial, he seemed in control of himself. When she told him her husband, Richard, would be home soon, he replied: “You’re a liar; Rick’s not coming home.”

 Then Downey, later described by his mother as self-conscious of “being so big,” attacked. State’s Attorney Ed Keefe, summarizing the case against him, said he came at Mrs. Finley” with an intimidating guerrilla tactic, a juvenile imitation of the Hulk.”

She said Downey “picked me up literally by my throat,” slamming her into the bedroom, pulling at her clothes and leaping on top of her.

“I looked at him and said, ‘What the hell are you doing?’ and he said, ‘Isn’t it obvious?’”

Sometimes sobbing during her testimony, Mrs. Finley recalled how she struggled, kicking Downey away. “He was standing and glaring at me. I was trying to think of a means of escape.”

Then, she said, he forced her to her knees in the bedroom and began smashing her with a clock radio. She said he told her, “I’m going to kill you, bitch.”

She recalled: “The blows were very direct. He was very exact in what he was trying to do.”

Testimony revealed he may have attacked her again and again throughout the house, apparently stabbing her in the face with a barbecue fork as well as beating her not only with the clock radio but also with a hammer and a log rolling device.

At one point, she saw him enter the house “holding a chain saw in his hand. He was holding it as if he was trying to start it.” But it was out of gasoline.
Finally, according to the testimony in Rock Island County Circuit Court, she saw “stars” and lost consciousness, lying half nude in a pool of  blood.

“The last I recall was the horrible sound of those blows.”

At a pre-trial hearing, Richard Fisher, sheriff’s department investigator, described the house as  “in turmoil” when he arrived several hours after the attack.  Blood was spattered and smeared “on the kitchen floor, ceiling, walls, sink, stove, refrigerator, back door, the walls of the living room, the bedroom walls and on the sheets and blankets.”

After that hearing in October 1978, Judge Paul Rink decided there was sufficient evidence to have Downey tried as an adult. That meant the prosecution would have to establish the attack was premeditated.
Judge Rink had said at the hearing  he could infer from Downey’s hiding his bloodied clothes and carrying away the objects evidently used in the beating “that he knew what he was doing.” When announcing his decision to have Downey tried as an adult, Judge Rink said the offense was committed in an “aggressive and premeditated manner.”

Scales of JusticeThe Trial
When Downey’s trial opened March 8, 1979, his defense attorney, Michael J. Warner, told the jury of seven men and five women they should find Downey not guilty by reason of insanity.

Warner conceded his client was at the scene of the beating.

“Tim can remember few of the incidents concerning this,” Warner said in his opening statement. “He can remember being in the home. He can remember seeing her on the floor with blood around her. He can remember seeing blood on his hands.”

Warner said his case would show Downey suffered from mental illness. He appraised the youth as “very depressed, suicidal,” having a “poor concept of himself.”

Prosecutor Keefe told the jurors he would attempt to establish not only that Downey committed the crimes of attempted rape, attempted murder and aggravated battery but also that he did not previously display any “bizarre behavior that would indicate a mental illness.”

Two weeks of testimony included statements by psychiatrists, one of whom had been treating Downey since shortly after the attack on Mrs. Finley. Ronald Shlensky, associated with the Northwestern University Psychiatric Institute, said of Downey, “I think, when he went into that  house and attacked that woman, he was attacking some dimension of himself.”

Another Chicago psychiatrist, Meyer S. Gunther, also left doubt that Downey could understand the criminality of his behavior. “The fact he left such a glaring trail of clues indicates he was sick,” Gunther said.

The two psychiatrists said Downey was suffering from a mild brain disorder and a psychosis when he attacked Mrs. Finley. “He’s glued together by chewing gum and paper clips, and under stressful circumstances these defenses disintegrate,” Shlensky said.

A psychiatrist for the prosecution, Tom Tourlentes, associated with the Rock Island Mental Health Center, said tests he performed on Downey indicated the youth was probably sane. But Tourlentes conceded the psychiatric therapy Downey had received a Northwestern might have mitigated the degree of his mental illness.

In his summary, Keefe insisted the motive was rape and scoffed at the insanity defense as a “disease of convenience.” Keefe maintained that his contention of the youth’s sanity was supported, not by vague psychological diagnoses, but by the evidence—that Downey knew Mrs. Finley was alone, that carried away the objects he beat her with and that he changed his bloodied clothes and hid them.

In a dramatic conclusion, Keefe demanded to know how long Downey was out of touch with reality in view of  Mrs. Finley’s testimony she saw him enter  with the chain saw and then run out the door.

“How many times did he see her in that condition?” Keefe asked the spellbound jury. “How many times did he enter? Was he insane all those times?”

At 11:30 p.m. March 15, with the courthouse darkened except for the trial room, the jury offered its verdict, the product of six and a half hours of deliberation.
Innocent, by reason of insanity.

And Debra Finley wept.

As each juror was polled, she cried unashamedly in the front row. Her father, Ernest Crose, struck a chair. Some jurors held their hands to cover their faces from the small audience in the courtroom.

The next morning Mrs. Finley called the verdict a “terrible injustice.”

Keefe said Downey, who had waived his right to appear at the trial, would be kept in custody until a hearing to determine whether he needed mental treatment. But Keefe said bitterly, “I would expect him to probably be released. It’s just a guess, based on what the doctors said.

“I don’t believe he was insane,” Keefe said.

The Swelling Outcry
Judging by the reaction to the verdict—including several pungent, if off-the-record, comments in the legal community—a lot of people in the Quad-City area and beyond don’t think so either.

Perhaps indicative of the strong feelings seething around the case is the letter from Donald Briggs of Kilduff, Iowa, to the editor of the Quad-City Times. Briggs wrote:

“I was shocked and dismayed at the news of the acquittal of Tim Downey. It leaves me with very serious doubts about the competency of our system of justice.

“It is too bad, but scenes like the Downey trial are becoming more and more commonplace every day….

“How many times have we seen such crimes committed, the same verdict rendered, the offender sent to a hospital, and then released, only to commit the same crime a  short  time  later. When will we learn from the past?”

His dismay echoes that voiced throughout the nation the last several years as the insanity defense has come under increasing attack not only from ordinary citizens but also from lawyers, judges and even psychiatrists.

No less a jurist than Warren E. Burger, now Chief Justice of the United States, wrote in June 1964:

“Perhaps we should consider abolishing what is called the insanity defense…. I suggest this not as a new idea but to stimulate a serious debate on the subject.”

Indeed, the debate has been swirling, hot and heavy. Legislation has been introduced in some states, including Illinois, to modify or even abolish the psychiatric defense, and articles on the issue have proliferated in legal and psychiatric journals.

Symptomatic of the ironies and inconsistencies of the whole subject is the fact the same psychiatrist whose testimony was instrumental in Downey’s defense, Ronald Shlensky, had written an article in the Journal of Legal Medicine in May 1977 in which he called for the removal of the insanity excuse.
Shlensky wrote: “The time has now come for a narrowing of the insanity defense or its abolition altogether. Its use has degenerated to a point at which justice is compromised. The ends sought could be better attained through alternative approaches.”

The insanity defense has been attacked from almost every angle in both theory and practice, but perhaps a half dozen principal arguments  can be sorted out.
Criticisms of the theory:

  • Those taking this tack contend there is insufficient basis for singling out mental illness from other  behavioral influences, such as heredity or poverty, as grounds to excuse a person for committing a crime.
  • Opponents of the insanity defense say “insanity,” a  legal term, is difficult to define and even more difficult to interpret in terms that are both appropriate to psychiatric analysis and understandable to a jury.
  • Some critics believe there is no way psychiatrists can know the exact condition of a person’s mind at the time of the crime, let alone establish such knowledge as evidence.

And criticisms of the practice:

  • Opponents of the insanity excuse argue that it compromises justice and undercuts respect for law by substituting opinions for evidence and allowing guilty persons to receive less punishment than they deserve.
  • Once a person is acquitted on grounds of insanity, this line of criticism maintains, there are inadequate safeguards against his continuing as a threat to society.
  • Some psychiatrists and others say the present system promotes unfavorable views of the psychiatric profession and of non-violent mental patients.

The Rationale

The insanity defense originated in compassion for the mentally deranged. The conclusion was reached centuries ago that a person could not be found guilty of a crime if it happened because of circumstances beyond his control, i.e., an accident. A mental illness may deprive a person of his free will, and therefore he cannot be held accountable for his actions, the thinking goes.

But some critics claim the rationale is anachronistic, that is, no longer in tune with man’s advancing knowledge of himself.

As Shlensky wrote: “The boundary between pathological and malicious behavior has been growing more vague as man’s understanding of himself has  increased. Social ills and mental illness are now intertwined conceptually to a degree that twangs the conscience of any moral man observing the operation of our criminal justice system…. The day is approaching when any violation might be viewed as the product of aberrant psychological or social forces.”

In other words, all wickedness someday may be seen as weakness, as inability to resist external pressures of one kind or another. If that happens, the traditional concept of guilt will disintegrate and the entire criminal justice system will crumble.

However, Dr. Thomas A. Garside, a Davenport psychiatrist who testified in a highly publicized trial in Scott County, isn’t ready to buy that line of criticism. He said in an interview that singling out insanity as an excuse has been defended because mental illness “is more direct” than other behavioral influences.
“The fact is, the legal system is just about right back where it started in working on the problem of criminality,” Garside said. “I think law would be doing itself a disservice to blind itself to the expanding body of knowledge.”

Garside said humanitarian concerns cannot simply be shrugged off. “Most of the time, nobody argues with the need for some persons to get mental treatment. The lawyers and police and jailers are glad to have us (psychiatrists) intervene in a thousand little cases. It’s only on the especially brutal or highly publicized ones that our role is looked upon with suspicion.”

But the critics say that, in reality, humanitarian concern is not the principal reason for insanity defense. For instance, sometimes it comes as a result of a plea bargain.

C.R. Jeffery, in a 1967 article published in Springfield, Ill., entitled “Criminal Responsibility and Mental Disease,” said: “The impression gained from project data… is that the decision to use an insanity defense is based on factors such as the economic position of the defendant, the nature of the criminal charges, the medical facilities in the community, the legal status of the insanity pleas in the local courts, etc. In other words, the actual psychological state of the defendant may be a rather minor factor in determining whether a lawyer will use the insanity defense.”

To which Garside answers, “Well, I can’t speak for the rest of the world, but from my experience there hasn’t been abuse in that area in Scott County.” 

Stalking a Definition

The problem with definitions of insanity has a long history. In the 13th century, a Roman cleric declared a person could not be held responsible for a crime if he had no more mental ability than a “wild beast.” That crude guideline was refined a bit in the 16th century with the notions of “non compos mentis,” the alcoholic demented, “lunacy” and the “natural fool.” In the Hadfield case in 1800, an English lawyer successfully defended a man who had believed he must sacrifice himself in order to save the world. That was the origin of the delusion test of insanity, which held until 1843 and the trial of Daniel M’Naghten.

M’Naghten was a Scot who tried to shoot the prime minister of England and killed another official instead. His acquittal under the delusion test so angered Queen Victoria that she ordered up a stricter test of legal insanity. The result was the “M’Naghten rule,” which today is the test of criminal responsibility in Iowa and about half the other states.

As it is phrased in the Iowa Code, the M’Naghten test declares: “No person shall be convicted of any crime if at the time such crime is committed the person suffers from such a diseased or deranged condition of the mind so as to render the person incapable of knowing the nature and quality of the act he or she is committing or incapable of distinguishing between right and wrong in relation to the act. Insanity need not exist for any specific length of time before or after the commission of the alleged criminal act.”

After 1887 the M’Naghten rule began to be supplemented in some states with the theory of “irresistible impulse.’” It declared that, even if a person suffering from mental illness at the time of his crime knew the nature and quality of his act and knew that what he was doing was wrong, if he could not resist committing the act, he should not be held criminally responsible.

Some states have indicated the test amounts to the question, “Would the person have committed the act if there was a policeman at his elbow?”

The irresistible impulse is not spelled out per se in the revised Iowa Code. If, how, or to what extent it can be used in conjunction with the insanity defense in Iowa remains to be seen. Before the code revision it was set forth in jury instructions “not in and of itself a defense, and it is a factor only when it so operates upon a diseased mind as to destroy the defendant’s comprehension of the consequences of his act.”

A significant development occurred with the Durham Decision of 1954 in which Judge David Bazelon of the Court of Appeals in the District of Columbia opened the door to expanded testimony by psychiatrists. He said they could tell the court what they knew about the defendant as they would speak to the relatives of a sick patient. That meant the psychiatrist was no longer restricted to a single word—“yes” or “no”—with respect to the ultimate question of insanity.

The allowance of expanded testimony and an effort to more effectively integrate the M’Naghten rule and the irresistible impulse idea led to the American Law Institute Model Penal Code’s insanity test, which has been adopted in Illinois and 25 other states, as well as in all 10 federal circuits and the U.S. Military Court System.

As phrased in the Illinois code: “(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. (b) The terms ‘mental disease or mental defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

The American Law Institute’s test is said by many to be more sophisticated than the M’Naghten rule and a better framework to include psychiatric testimony. However, because of its somewhat broader nature it is thought to be more difficult for juries to get a handle on.

The distinction between the two tests is a principal point of contention in an Iowa Supreme Court appeal of one of the most highly publicized cases in recent Scott County history—the conviction, despite an insanity plea, of John Hamann for the slaying of Richard Slatttery, director of the Davenport parks system.

Hamann’s attorneys will try to establish that Iowa’s use of the M’Naghten rule puts the state out of touch with advances in the psychiatric field since the 19th century.

“The M’Naghten rule is an all or nothing,” John Carlin, a Davenport lawyer representing Hamann, told the Times.

“If you know the difference between right and wrong, that’s it. With the ALI (American Law Institute) standard, you can know the difference between right and wrong, but you have to appreciate the difference. In other words, even though you know the difference, you may not be able to conform to it.”

On the other hand, District Judge James Havercamp, who presided at the Hamann trial but declined to comment on any specific cases, believes the M’Naghten rule “is a very sensible rule because it’s something a lay person can comprehend and appreciate. And you can make a determination ordinarily from the facts and circumstances that come into evidence.”

The current Iowa test does not mean it is impossible to defend successfully by reason of insanity, Havercamp told the Times, but “it goes a long way toward prohibiting the establishment of a defense of insanity based on moral judgment or your own standard of what is right or wrong. It sort of takes justification out of the defense of insanity, and I think the other one (the ALI) sort of puts it in.”

However, some critics of the insanity defense say any distinction in definition is more in form than substance. The quibbling over which definition to use only underscores other problems with the insanity defense, they say.

Ronald Allen, a professor of law at the University of Iowa, told the Times: “It’s not at all clear that (the particular test used) makes a significant difference in the kind of evidence that can be brought forth, nor is it clear that embracing one rule over the other makes a significant difference in the outcome of cases.”

What is clear to most experts, however, is that sometimes juries have difficulty understanding psychiatrists’ testimony. Allen said: “It’s tough to educate the jury. You can’t give each of them a quick post-doctorate education in psychology and psychiatry so they can understand fully the problems of a particular defendant.”

One Hamann trial juror, who asked not to be identified, denied there was any such problem in that trial. “I just weighed what each one said. It wasn’t that tough because none of the psychiatrists really came out and said he was insane.”

How Do They Know?

Perhaps the most frontal attack on the insanity defense in concept comes in questioning whether psychiatrists can really say what a person’s state of mind was at the time of the crime.

Dr. Abraham Halpern, director of psychiatry at United Hospital in Port Chester, N.Y., wrote in the August 1977 issue of “Psychiatric Annals”: “There is neither a scientific nor an effective way in which the degree of mental disease or defect can be measured so that a defendant can be fairly and reasonably found to be lacking in criminal responsibility of that account.”

Judge Havercamp said: “I think the weakest aspect of psychiatric testimony is the inability to demonstrate the (weight) of the opinion, as opposed to other expert testimony” by a surgeon or engineer, for examples.

And in response to the Hamann appeal, the Iowa attorney general’s office wrote: “There was wide disagreement among the psychiatrists and psychologists who testified as to Hamann’s mental condition. Apparently, it is still difficult for psychology and psychiatry to provide firm conclusions about a defendant’s mental state.”

But psychiatrists deny the suggestion they testify on what they don’t know. Dr Garside said, “Actually, it’s not hard to decide in the gross cases of mental illness. In the broad picture there’s usually agreement. However, sometimes something is lost in translation. Under the rules of evidence, sometimes you can’t get the whole story in.”

He said that central to the concept of insanity is the extent to which an individual is depersonalized, detached, as it were, from his body and the decision-making process. “Our role should be to describe the influences that make it possible or likely for the defendant to detach. Then the jury should decide if he did so.”

To the suggestion that psychiatric testimony is theory that cannot be demonstrated, Garside said, “For that matter, all of science, not just behavioral science, has a theoretical structure, some of which cannot be demonstrated.”

Justice Undercut?

Does the insanity defense undermine justice and respect for law? Some critics believe it does. They cite instances of feigned insanity, which are spectacular, if admittedly rare. Halpern called to mind the case of Garrett Trapnell, a skyjacker who finally was convicted in May 1973. He had been arrested at least 20 times for major crimes between 1957 and 1972 but had spent less than two years in jail. He claimed to have “made a point of trying to fool psychiatrists and psychologists in Florida, Texas, Maryland, New York, California and Canada into believing he was a genuine ‘Dr. Jekyll and Mr. Hyde’—normally a sane, honest man, whose mind, every so often, was taken over by a sinister alter ego called ‘Gregg Ross.’”

But the notion an insanity defense is an easy exit from punishment is apparently false. As Garside pointed out, “Once you plead insanity, you give away the rest of the defense.”

Professor Allen said, “In terms of actual jury verdicts in the number of cases in which it’s raised, it’s not a very successful defense.” He said most juries are suspicious from the moment the insanity defense is introduced. The jurors know that “most people who are actually insane don’t even go to trial because they’re not competent and they’re incarcerated on the grounds of incompetency to proceed.”

The so-called “temporary” insanity is usually difficult for a jury to swallow, Allen said. “The likelihood of being presently sane but insane at an earlier point of time is something that juries are not very apt to accept.”
But if blatantly feigned insanity is not a significant problem, the legal procedure involved in the insanity defense is. Critics particularly rail at the so-called “battle of the experts,” which tends to foster the impression that the legal process is a matter of deciding between opposite “bought opinions.”

Garside said the appearance of things would be improved if attorneys didn’t insist “on psychiatrists doing the jury’s job for them. The rigid courtroom formulas tend to turn the psychiatrist into the jury even though he doesn’t want to be.” In the Hamann trial, Garside refused to testify whether Hamann knew right from wrong “because I wouldn’t be the jury.”

That is the main argument against having the psychiatrists testify outside the adversary process as “friends of the court.” That arrangement would deprive the defendant to his right to a trial by an unbiased jury. The same principle applies to the suggestion that all psychiatrists called into criminal trials be paid by the state. It is feared the state would have a vested interest against acquittal.

The insanity defense can pose some embarrassing problems to the legal system even after the trail is over. One of them confronts Ed Keefe, the prosecutor in the Downey case. He must argue that Downey needs to be confined for mental treatment.

“I’m not satisfied (with the law on insanity) because here I’m in the position now of arguing he’s insane when I advocated he was sane. The law puts me in the position of going back into it and presenting evidence to a different jury that he ought to be incarcerated in a mental institution because he’s an imminent threat to public safety. Talk about schizophrenia….”

What Safeguards?

One of the greatest fears expressed by the public is that a person acquitted of a violent crime by reason of insanity will be back on the streets in a short time to strike again. The experts differ on how real a threat that is.

Professor Allen said, “If you’re acquitted in the United States by reason of insanity, there is an extraordinarily high probability you’ll end up incarcerated—that’s not the right word for it, but that’s what it is—in a mental institution of some sort… usually you wind up in there longer than if you were convicted of a robbery or larceny.”

In fact, some critics of the insanity defense contend a major problem is over confinement, to the detriment of both the individual and society. Shlensky wrote: “Insanity, however, is a legal term…not at all synonymous with mental illness’…. certainly, one might have been insane at the time of the alleged offense and in no way dangerous now, let alone in need of mental treatment.”
Nevertheless, other critics can cite instances in which premature release had tragic consequences. For example, The New York Times of June 1, 1975, related how an ex-convict in Michigan confessed in June 1974 to seven killings. He was acquitted of one of them by reason of insanity, was granted immunity from prosecution for the remainder and was “automatically and indefinitely committed.” After two months, the Michigan Supreme Court gave him the right to a civil-commitment hearing to determine his sanity. A jury found him to be sane under the new Michigan standards, and he was released in March 1975. One month later he was arrested and charged with murder in the fatal beating of his wife.

A salient factor in the matter of post-acquittal safeguards is the inevitable conflict between the legal system and the mental health system, the first learning toward deterrence and the other toward treatment and recovery, each one wanting the last word.

That conflict broke into the spotlight in a controversy characterizing the 1976 case of People vs. Adams. In it, an Illinois appellate court ruled a trial court had no statutory authority to order that a patient who had been acquitted for insanity be returned to the court for a competency hearing before release from a state hospital. The appellate court held that the trial court had lost jurisdiction over the patient and therefore the director of the State Department or Mental Health and the superintendent of a state hospital could not be held in contempt.

Under the Gun

The most frequent targets in the barrage of insanity defense criticism are the psychiatrists. In an article in the December issue of “Human Behavior’ magazine, a doctor named Joel Fort, who testified for the prosecution in the Patty Hearst trial, said; “The courtroom behaviorists seem relatively unconcerned about the victims, their families or the protection of society in general.”

The American Civil Liberties Union took a 220-page slap at the diagnostic competence of mental health professional, especially in the courtroom. In its manual, published by Avon Press, entitled “The Rights of Mental Patients,” the ACLU claimed psychiatrists and psychologists “can be expected to agree only about 54 percent of the time, a rate of agreement only slightly better than the law of averages.” The ACLU writers said that “predictions of dangerous behavior are wrong about 95 percent of the time.”

As one would expect, the psychiatrists think they’re getting a bum rap. “We lose either way we go,” Garside said. “They (the legal system) pull us into it, restrict what we can say, and then we get criticized for complying with the structure someone else has imposed.”

Contrary to some opinions, he said, psychiatry is not opposed to punishment per se. “We know it’s often good for people with mental problems to learn to accept the consequences of their actions. Sometimes, the more you let them off the hook, the more their self-destructive behavior becomes a pattern. However, the trouble with the penal system is that it seems to give the same treatment to a wide range of problems.”

In his criticism of the insanity defense, psychiatrist Shlensky advocated more, not less, confinement of those judged insane. He wrote, “The purposes of criminal conviction—deterrence, isolation and rehabilitation—may apply all the more in the presence of limited capacity or so-called insanity.”

Garside flatly rejected the suggestion that forensic psychiatrists make misleading prediction about the potential dangerousness of persons. “We simply don’t do that. We don’t testify about the future. We certainly don’t want to be responsible.”

But how can psychiatrists present objective testimony if they are being paid by one side or the other?

They answer that the presentation of an opinion favoring one side is a justifiable part of the adversary process. Even as an attorney does what he can to present his side and attack the position of the other—and yet he shouldn’t lie or knowingly distort the truth—so the psychiatrists argue that their testimony does not need to be strictly neutral. They say their professional reputations and ethics act as a deterrent to fabricating an insanity defense.

Garside said, “Testifying in one of those trials is a very unpleasant kind of work, involving maximum stress for minimum satisfaction. The money hardly compensates.”

Changes To Be Made?

The critics of the insanity defense have offered some solutions, or at least some alternate approaches for study.

One is to divorce the findings on guilt from those on insanity, in other words, two trials, or the “bifurcated” trial.

Havercamp outlined what some experts tout as advantages for the separate trial approach: “The state is concerned an insanity issue will fog up the whole procedure. The defense, on the other hand, is worried that (especially in a widely known, brutal case) even if they have a good insanity defense, it’s not going to be given proper consideration because the jury will be overwhelmed by the brutality of the crime.”

Havercamp added, “I’m not advocating that. That’s just what some people are talking about.”

But State’s Attorney Keefe sees some problems with the bifurcated trial. “You’d never get any jury to reach a verdict when you start multiplying the issues they have to decide.”

If the jury dealt only with the first part—whether the defendant actually committed the action—and the judge handled the insanity aspect, “there are constitutional problems,” Keefe said. “That amounts to taking away somebody’s right to have the jury determine the facts.”

Two juries? Then there’s the likelihood of higher costs, both of money and time, compounded legal complexity and heightened confusion.

Another change favored is to allow only a down-graded approach, that of “diminished capacity.” That concept, a defense included in the revised Iowa Code, mitigates but doesn’t necessarily absolve from guilt. It allows conviction only to the degree where there is no doubt about the person’s mental ability. When the defense is diminished capacity or “diminished responsibility,” the state has the burden of proving the defendant had the ability to form specific intent to commit the crime.

Still other recommendations involve greater court control and review of medical treatment after the trial. One suggestion is to sentence the person to the full criminal penalty, then assign him to a mental health facility. If he is helped to recover before the sentence runs out, he would be transferred to prison. Those opposing that suggestion say the individual would have no incentive to accept therapy and improve his mental outlook if it only meant he would go to prison.

Of course, those who favor the present system say it is well established in centuries of common law that a person who is insane should not be accountable. Splitting the trial, allowing him only partial excuse or confiding him under criminal penalties all amount to depriving the defendant of that basic right, they say.

And So, A Dilemma

After most of the arguments have been explored, one is left with the conclusion that the insanity defense is a kind of illegitimate child, the offspring of two basically incompatible schools of thought, the legal system and behavioral science.

“Yes, they are very different philosophically,” Garside said. “the legal view assumes free will; psychiatry is based on determinism. The criminal justice system tries to see if there is moral guilt and the need for punishment; psychiatry looks at disordered behavior without making value judgments.”

This profound philosophical difference underlies all the debate. It is at the heart of the difficulty in getting a definition that satisfies both psychiatrist and jurors. It is the basis for criticizing the role of psychiatrists in the adversary process. And it is the reason why the legal system and the mental health system are sometimes at odds after the trial is over.

Thus, the insanity defense poses a genuine dilemma, with each side in the debate mostly sharpening the horns.

Curiously, considering that secular law and behavioral science are involved, there is a religious strain running through some of the rhetoric. Those leaning toward the legalist side may quote Sir William Blackstone of the 18th century to the effect that man’s laws are based on God’s law and then cite the Mosaic concept of eye-for-an-eye punishment. Those tilting toward the behaviorists come back and quote the same Blackstone—“A madman is punished by his madness alone; that affliction is severe enough for any human purpose”—and then point to the New Testament emphasis on love and forgiveness.

Yet there is a paradox here. The Judeo-Christian system offered an escape through the horns of the dilemma in the concepts of atonement, resurrection and divinely aided rejuvenation, thus satisfying the demands both for punishment and for compassion. But a secular society cannot admit those concepts.

The puzzle is not merely an abstract or philosophical one, but one of intense emotion and life-altering impact. It is written in the anguished look and poignant words of Debra Finley the day after the Downey verdict.

For the nearly fatal beating she received, there will be no atonement. She has only the dilemma: “We’re very disappointed, and we just hope he won’t be out to do it again to someone else—that’s the only thing that matters.

“I’ve gone through a lot, and it’s hard for me because I have to keep telling myself it wasn’t for nothing.”



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