Episodic Hallucinations

An appeals court has overturned the 2002 conviction of Andrea Yates for drowning her children, citing false testimony by a prosecution witness. During the trial, psychiatrist Park Dietz described an episode of Law and Order, which he said Yates regularly watched, in which a woman successfully pleads not guilty by reason of insanity after drowning her children in a bathtub. The prosecution suggested that Yates, who likewise offered an insanity defense, had modeled her crime after the TV show. But it turns out this particular episode of Law and Order existed only in Dietz's mind.

It's hard to believe that Dietz, who served as a consultant for the show, could have mistakenly remembered an episode that was never produced. But it's also hard to believe that he thought he could get away with deliberately inventing an episode, given how easy it would be to check. It reminds me of that time on Boston Legal when the prosecutor argued that a killer imitated an episode of a popular crime drama, but then it turned out there was no such episode.

Comments

[Ken Shultz]

I have to wonder if Yates watched a similar show or a movie of the week or one of those awful made for Lifetime movies--that is, just because the show in question wasn't on Law & Order doesn't mean such a show doesn't exist and that Yates didn't watch it and model her defense as charged.

...Of course, if no such show exists, I'd like to claim a copyright on it.

[Ira Weatheral]

Does this woman really want to go free? I don't think so.

[Henry]

"It reminds me of that time on Boston Legal when the prosecutor argued that a killer imitated an episode of a popular crime drama, but then it turned out there was no such episode."

That episode was amazing.

[Gary Gunnels]

Ahh, what was the fucking attorney for the defendant doing during the trial? Because it sounds like the Court of Appeal overturned this not based not on a properly preserved objection, but plain error!!! Yates was lucky that the Circuit Court overturned the conviction because "plain error" is far harder to demonstrate. She clearly needs a new attorney.

[Gary Gunnels]

BTW, the objection is really easy in this case. You just shout out the following!

Objection!!! Facts not in evidence!!!

[Lewis]

I smell an upcoming Law and Order episode for sure now. I think they should add a twist in that the second trial gives the death penalty to the defendant!

[joe]

dank dank dank dank da dum!

do do do-dee do doo

doo do-da-lee do do do do do

dank dank do doooooo......

[B.P.]

So, was Dietz pulling a double gotcha by imitating the script of Boston Legal?

[Thomas Paine's Goiter]

Are the judges sure that they went through all of the Law and Order episodes? I mean, there are, what three different shows totalling 650 episodes?

At some point Dick Wolf had to have a lady drown her kids.

[thoreau]

What does an episode of a TV show have to do with this? I know it was about her state of mind, and I know that people on this forum have strong opinions on mental illness, but saying that she saw a TV show where somebody pleaded insanity after a similar crime wouldn't really prove anything even if such a show had existed. I'd think that evidence for or against insanity would have more to do with, oh, let's say everything else in her life.

[Ayatollah Usoe]

I think watching TV regularly could contribute to insanity.

[Isaac Bartram]

thoreau

I interpreted it as meaning that the episode was the inspiration for her bogus (according to the prosecution) defense.

Without the episode there is no impeachment of her defense. They will have to look somewhere else.

[thoreau]

Isaac-

I don't watch many crime dramas, but I'm pretty sure I've seen movies and TV shows and read stories where somebody commits murder and then pleads insanity. If they're trying to argue that her insanity plea was an act, why do they need to argue that it was inspired by a very particular TV show? There are plenty of reasons why a sane person might decide to plead insanity to get away with a crime (the most obvious one being the possibility of a lesser sentence). Pointing to a particular inspiration doesn't really help. And if she doesn't meet the legal definition of insanity, I'd think there should be lots of other evidence in her life to prove that point.

Mind you, I know little about the Yates case and have no strong opinion on it. I'm just baffled that so much could hinge on an alleged TV show.

[joe]

thoreau, the prosecution attacked her insanity defense on the grounds that she didn't act inpulsively, but planned the attacks in a way that demonstrated reason. They (the prosecutors) made the argument to the jury that her having watched this episode was evidence that she wasn't legally insane.

[Crusader Rabbit]

Life imitates art imitates life imitates art . . .

[Cletus Nelson]

I think the whole "prolifer"/"crime expert" persona has taken quite a beating over the past few years.

Does anyone remember the FBI's 1999 Project Megiddo report? From what I can recall, a bunch of academics and criminologists warned that odinists, eco-terrorists, and militias would pose the leading terrorist threat for the next decade...

Yeah right.

Then there was the DC sniper case---remember that "white male" they were all looking for at the behest of FBI profilers?

And what about that the crack team of profilers working on the Anthrax letters? Whatever happened to that Hatfill guy? Will we EVER know who wrote them?

Now Dietz, the individual many consider the nation's top expert when it comes to serial murder and the criminal mind makes an utter fool of himself on the witness stand...

Obviously these people are far from infallible and quite capable of screwing up.

[Warren]

This whole thing has me going WTF??? I mean, what are we saying? After drowning her own children she saw a TV show and then got the idea to plead insanity, ahhh but there was no such TV show so she must be insane.

[Mr. Nice Guy]

I'm still waiting for the class-action lawsuit against bathtub makers and the water utilities.

[Gimme Back My Dog]

I don't know. I could see how this testimony could be very compelling to a jury. If a guy was copping an insanity defense and then the prosecution could show that he checked out a book called "How To Fake An Insanity Defense" from a library recently and his behavior matched that suggested by the book, I would be inclined not to believe the defense.

[joe]

Warren, no, we're saying that the jury was given false information, wrongly, that may have caused them to convict when they otherwise would not have.

She may have been insane, she may have been sane, the decision needs to be made using accurate information, provided in accordance with the law and rules of evidence.

[joe]

Oops, correctin, thoreau. The prosecution did not argue only that copying the crime demonstrated sanity, but, more importantly, that copying the insanity defense demonstrated sanity.

[Ultimate Fitness Program]

Um, isn't this only going to lead with another trial at taxpayer expense, and if she's found insane, won't she still end up spending the rest of her life in one of those hospitals with straps on the bed and chickenwire in the windows? What is the point of this?

[B.P.]

The Yates case always brings up in my mind the headline from one of those faux op-eds that The Onion runs (next picture of self-satisfied looking young woman): "When I Have Children I'm not Going to Drown Them"

That was back when The Onion was still more-funny-than-not.

[Gary Gunnels]

thoreau,

The following are my notes on Rule 103 of the Federal Rules of Evidence; they are based off of the rule itself and the commentaries that follow it and my course text. I think if you read them you'll find out why this error was important:

Rule 103. Rulings on Evidence

(a) Effect of erroneous ruling: For error in a ruling that admits or denies evidence, a substantial right must be affected &

(1) Objection: ruling = admitting evidence ? requires a timely objection or motion to strike on the record ? must state the specific ground of objection (if not apparent from the context)

(2) Offer of proof: ruling = excluding evidence ? requires substance of the evidence be made known to the court by offer or apparent from the context w/in which questions were asked
a party need not renew an objection or offer of proof to preserve a claim of error for appeal

(b) Record of offer and ruling: court may add statements that show = character of the evidence, the form in which it was offered, the objection made, and the ruling thereon; may direct offer be given in Q&A form

(c) Hearing of jury: jury cases = prevent (as practicable) inadmissible evidence from being suggested to the jury by any means (as in barring offers of proof before the jury)
(d) Plain error: courts can take notice of plain error (even if not brought to their attention by counsel)

ACN:

103(a): evidence rulings cannot be assigned error unless (1) a substantial right is affected & (2) the nature of the error was called to the attention of the judge (so as to alert the judge & opposing counsel); does not change the rule w/regard to harmless error

2000 Amendment to 103(a)(2) ? Offers of Proof: applies to all rulings on evidence whether they occur at or before trial, including so-called ''in limine'' rulings

2000 Amendments ? Renewal: claim of error w/respect to a definitive ruling = preserved for review when party has satisfied the objection or offer of proof reqs of Rule 103(a) ? mere formalism otherwise ? FRCP 46 (formal exceptions unnecessary) - Case law pg. 42; however, when the trial court appears to have reserved its ruling or to have indicated that the ruling is provisional, it makes sense to require the party to bring the issue to the court's attention subsequently - Case law pg. 42; definitive? ? obligation on counsel to determine if an in limine or other evidentiary ruling is definitive or not Case law pg. 42

2000 Amendments ? Revisiting Amendments: even if ruling definitive, court may revisit it when evidence offered; if court changes or party violates ruling, objection must be made to preserve; Case law pg. 43

2000 Amendments ? Review: definitive advance ruling = reviewed in light of the facts & circumstances before court at time of the ruling; if these materially change post advance ruling, then cannot be relied for appeal unless brought to the attention court by way a renewed & timely objection, offer of proof, or motion to strike. Case law pg. 43; similarly, if the court decides that evidence is admissible based on a promised foundation & it is never provided, opponent cannot claim error unless the opponent calls that failure to the court's attention by a timely motion to strike or other suitable motion. Case law pg. 43
2000 Amendments ? FRCP 72 (a) & 28 U.S.C. Sec. 636(b)(1): Not intended to affect either, which pertain to non-dispositive pretrial rulings by magistrate judges in proceedings that are not before a magistrate judge by consent of the parties; both have a ten day limit; Case law pg. 43

2000 Amendments ? No Affect on Luce v. U.S.: Not intended to affect the rule in Luce v. United States, 469 U.S. 38 (1984) & its progeny; rule states that no renewal is needed where a definitive answer give; Luce = criminal ? must testify at trial in order to preserve a claim of error predicated upon a trial court's decision to admit the defendant's prior convictions for impeachment; extended by many lower courts to other situations: *** where the defendant's witness would be impeached with evidence offered under R. 608; *** though originally applied to R. 609, apply with full force to at least some R. 403 & 404 objections; *** where the plaintiff decided to take an adverse judgment rather than challenge an advance ruling by putting on evidence at trial, the in limine ruling would not be reviewed on appeal; *** if uncharged misconduct is ruled admissible if the defendant pursues a certain defense, the defendant must actually pursue that defense at trial in order to preserve a claim of error on appeal; ***where the trial court rules in limine that the defendant would waive his fifth amendment privilege were he to testify, the defendant must take the stand and testify in order to challenge that ruling on appeal. Case law p. 43-44

2000 Amendments ? Does Not Answer if ?Removing the Sting? Waives Right to Appeal: does not answer whether a party who objects to evidence that the court finds admissible in a definitive ruling, and who then offers the evidence to ''remove the sting'' of its anticipated prejudicial effect, thereby waives the right to appeal the trial court's ruling; case law mixed on the question; Case law p. 44

103(b): first sentence virtually verbatim of FRCP Rule 43(c); purpose = reproduce for an appellate court a true reflection of what occurred in the trial court; second sentence is partly derived from final sentence of Rule 43(c); designed = to resolve doubts as to what testimony the witness would have in fact given

103(c): supposes that a ruling which excludes evidence in a jury case is likely to be a pointless procedure if the excluded evidence nevertheless comes to the attention of the jury. Bruton v. United States, 389 U.S. 818; FRCP 43(c) = "The court may require the offer to be made out of the hearing of the jury."; judge can foreclose a particular line of testimony & counsel can protect his record without a series of questions before the jury, designed at best to waste time and at worst "to waft into the jury box" the very matter sought to be excluded
103(d): from FRCrimP 52(b); application will be more likely with respect to the admission of evidence than to exclusion, since failure to comply with normal requirements of offers of proof is likely to produce a record which simply does not disclose the error.

Case Law & Notes:

Getting Evidence In ? Foundation & Offer: Testimonial Proof: (Direct Examination) ? generally the bulk of the trial live testimony; do three things in direct: bring out background info; ?lay the foundation? to show ?personal knowledge? or for ?expert? show has special skill or training; ask ?substantive questions? getting @ the witnesses knowledge; see R. 611(c) for form of questioning (witness should do the testifying ? see pg. 20 for policy against leading questions); (Cross) ? seeks to set limits or bring out inconsistencies in the direct testimony; considered a ?bulwark of our liberty?; should practice ?subtle control? ? no badgering (advice pg. 21); leading questions seen as beneficial here (e.g., awaken conscience, expose inaccuracies & focus witness on important details); scope of direct rule: framers of Federal Rules unable to choose (see pg. 22-25 for the debate over the rule) ? debating a matter of emphasis in a flexible rule w/the Comm. deciding that default position should be to limit to direct w/the judge allowed the power to permit inquiry into additional matters; Real Evidence: refers to tangible things directly involved in the transactions or events in litigation ? existence & nature may be est. by testimonial account w/the exception of writings (see Best Evidence Doctrine for writings); getting them admitted = laying the necessary foundation ? called authenticating the evidence (generally taken care of by stipulation or by testimony of witness w/first-hand knowledge ex. pg. 27); all physical objects are normally marked for ID before being mentioned ? helps track the object even when it is excluded; Demonstrative Evidence: tangible proof that in some way makes graphic the pint to be proved ? created merely for illustrative purposes ? e.g., diagrams, maps, etc.; task of the proponent (since there are no specific rules or principles to apply) is to show that the proffered item amounts to a fair & accurate description of the matter in question (computer-aided reconstructions ? raising the ante for such foundational issues pg. 28); object will have no evidential force independent of testimony, etc. (need to make sure jury realizes this); writings: generally must be intro. @ trial; when used to prove what someone has said, must est. authenticity & that falls w/in hearsay exception

Keeping Evidence Out: Objection: (1) must be timely ? must usually be stated after the proponent has put the question before the witness (witness ?jumps the gun? = motion to strike); (2) must provide some underlying reason ? a ?ground? ? should specify what the objector seeks to exclude; Types of Objections: substantive: rest on specific FRE exclusionary principles; formal: focus on the manner of questioning ? often used as a tactical weapon to onbstruct, delay or break cadence of the opposition ? apart from objection over leading questions, they are not codified & speak to judge?s broad regulatory authority; The ?Good? Objection: timely & specific; imparts necessary info & doesn?t insult the jury; alerts opponent to a problem that he may cure; Examples of Objections: asked & answered: putting the same question to the witness when questioner has gotten a response & had reasonable opp. to expose falsehood or awaken memory/conscience; assumes facts not in evidence: imparts important info. in inquiry ? should be supported by proof; argumentative: dripping w/sarcasm; ?grandstanding?; compound: seeks more than one answer or is ambiguous ? yes or no response may have an obscure meaning; leading: telling the witness what to say; lawyer doing the testifying; misleading: question misstates the evidence; misquotes a previous witness; speculative: witnesses should speak to what they know, not what they ?guess?; categorical certainty not req?d = reasonable belief enough; ambiguous: sometimes garbled question; etc. pg. 34; non-responsive: fair answer to an open-ended question isn?t non-responsive; lawyers who ask proper questions on specific points are entitled to an answer; general objection: if overruled, not preserved for review; far from useless = loss for words ? everybody knows; Motion in Limine: ruling in advance; exists in common law tradition; advs: [brief an important issue & provide more elaborate arguments; isolate & emphasize a point (more considered ruling); may affect trial strategy (e.g., whether ? testifies); judge may be more willing to consider & rule in advance so as to avoid awkward delays at trial]; disadvs: [may annoy trial judge who will not want to make an ?advisory opinion?; dealing w/testimony from ? unheard; judge may change ruling according to FRE]; Offer of Proof: counterpart to the objection ? failing to make a common & serious problem; lawyer facing an exclusion make a formal offer of proof to preserve the point (rationale similar to that for req. objection ? see pg. 36); jury is normally excused when proffer is heard; once objection has been made ? burden of shifts to proponent to show that evidence is admissible ? may be as simple as winning argument over meaning of the R. or involve the presentation of testimony & other proof to est. facts & conditions that bring the R. into play

Consequences of Evidential Error: three main causes of error: pg. 42; our system tolerates a less than perfect world; FRE?s approach to dealing w/error: (A) appraising such error on the merits: identify errors; distinguish between those that matter from those that do not (based on two connected points) ? (1) R. 103 = must affect a ?substantial right,? meaning the essentially the outcome; (2) assurance error had the affect (a standard of proof) = courts classify evidence in four categories ? reversible error (probably did affect); harmless error (probably did not affect); plain error (warrants relief even though appellant failed to take proper steps ? only a slim hope ? must be ?obvious? & ?more serious ?[to] provide greater certainty?; some courts req. that it amount to a ?miscarriage of justice?); constitutional error (crim. cases ? normally = evidence admitted where it should have been excluded; search & seizure ? 4th; self-incrim privilege ? 5th; confrontation clause ? 6th; doesn?t req. per Champman v. Cal., 387 US 18 (1967) automatic reversal for most cases if gov?t shows beyond a reasonable doubt that error was harmless); (B) distinguishing ?harmless? from its opposite: appellant must usually convince reviewing court that other circumstances do not turn reversible into harmless error (can?t usually view in isolation); doctrines which turn the poignant into the bland = ?cumulative evidence doctrine? (likely have made the same decision ? enough evidence admitted on the same point jury would not have likely changed their mind; does not justify merely because evidence was sufficient; question is whether evidence admitted or excluded probably affected ? or would have ? the outcome); ?curative instruction doctrine? (judge may avoid reversal by instruction to the jury; ?limiting instruction? ? R. 105 ? when risk is great that admitted evidence might be improperly used as proof of a diff. point or against another party; instruction to ?disregard?; ); ?overwhelming evidence doctrine? (suggests that evidence was such as to invite a directed verdict); (C) appellate deference: one source found in evidential doctrines found in the FRE ? R. 403, 611; ?broad discretion? reviewable only for ?abuse? (e.g., strongly disagrees); another source = evidential doctrines whose application turns in the first instance on fact finding by the judge (e.g., whether the particular reqs of R. is met); (D) procedural pitfalls & adversarial gambits: courts often limit review or foreclose relief due to the trial behavior of the appellant (through their attorney) ? failing to object or offer proof (denied in the absence of ?plain error? ? seldom found in admissions & almost never found in exclusions; objection or offer on particular grounds fails to preserve on other grounds; lack of precision; sustained on the wrong ground ? appellate court can still offer that another ground would suffice); inviting error (putting questions to a witness was fairly answered but produces an otherwise excludable answer or ?relying? on evidence of opponent that otherwise might have been excluded); opening the door (where a party makes a claim, etc. that opens the door to questions otherwise not open ? e.g., ? claiming a blemish-free past opens the door to evidence of past convictions)
Obtaining Review of Evidence Points: appeal from judgment: rulings admitting or excluding; rulings on examination of witnesses; ruling on evidential devices such as presumptions & burden of persuasion almost always after judgment; generally true of privileges as well; interlocutory appeal: two main exceptions ? privilege rulings: person claims privilege & refuses to testify despite order ? cases in disarray; one approach ? depends on whether one has been held in contempt ? & breaks down further to civil or crim. contempt; another approach ? non-disclosing person a party? ? if not, can obtain review; suppression motions in crim. cases: pg. 49

[Todd Fletcher]

This seems incredible to me, but then I know nothing about the case. If the prosecution made this the center of their case then they've got to incredibly lame. OTH, maybe the judge who threw out the conviction is the lame one. Either way it's hard to imagine her getting off on appeal. Even if she does she'll probably be pummeled to death leaving the jailhouse.

[Gary Gunnels]

In this instance I am hard pressed to see how this error was material; that is how it was anything more than "harmless error."

[Coarsetad]

Gary

Yikes, I hate seeing that much of the mechanics of our legal system, in one sitting. Two sentences into that mess and my eyes started to bleed.

[Gary Gunnels]

thoreau,

Boy I screwed up that sentence:

I think if you read them you'll find out how this error could be construed as important...

[Gary Gunnels]

Coarsetad,

You're not the only one. 🙂

[Umbriel]

And how about that episode of Boston Legal where the plaintiff claimed that the defendant had stolen his old issue of Saga magazine that had the "Thunderbird Photo" in it? 😉

http://www.prairieghosts.com/tbirdaz.html

[Dan]

It boggles my mind that we even still allow an insanity defense.

Yates' brain is wired in a manner which causes her to murder children. You can call that wiring "insanity" or you can call it "evil" -- but what's the rational basis for society distinguishing between the two?

[Gary Gunnels]

Dan,

Because we expect defendants to have the proper mens rea in order to convict them. Insanity, diminished capacity, and other like defenses (when proven) take out this key component to garnering a conviction. In other words, we don't convict someone (generally) of crimes just because they did the act; they have to have had the proper mental state when committing the act in order to be convicted.

Keep in mind that the insanity defense is rarely ever successful. Indeed, those who are truly insane rarely are ever charged by the state; they go to a hearing where their capacity to stand trial is teased out and if it is found that they lack such capacity, they get sent to nutward until they do present with such capacity, they get released, etc.

[Oregon Guy]

How many people think that if a man murdered his five children under similar circumstances, there would be such eagerness to embrace an insanity defense--or there would be a similar outpouring of pity. . . Why is Paula Yates insane but Scott Peterson is a cold-blooded killer?

[Dan]

In other words, we don't convict someone (generally) of crimes just because they did the act; they have to have had the proper mental state when committing the act in order to be convicted

Yes, I understand that. What amazes me is that the courts still operate under that pseudo-mystical framework. The only reason anyone ever does anything is that their brain is structured in a way which causes them to do it.

[gaius marius]

Because we expect defendants to have the proper mens rea in order to convict them.

exactly, mr gunnels.

fwiw, mr dan, this legal recognition of insanity is very, very old -- ancient hebraic law forbade the prosecution of idiots, lunatics and children, as did greek and roman law as well as english common law. plato's laws includes an example.

an interesting essay on the ancient legal conception of madness and how our individualism has distorted our law vis-a-vis theirs.

sometimes i wonder if people realize just how we are regressing under the influence of byronic unthink, how bizarre and extreme some of our conceptions are. "who cares? -- just kill 'em!" -- frightening....

[gaius marius]

The only reason anyone ever does anything is that their brain is structured in a way which causes them to do it.

this, mr dan, obviously dismisses illness or defect as possibly exculpatory.

if you took ill of an infection in your cerebrum, killed your family as a consequence, and got better -- should you die in the chair? obviously not, imo, if you have an iota of human sympathy.

of course, not everyone here has that iota.

[Gary Gunnels]

Dan,

Well, maybe the law will eventually adopt some of the conclusions of neuro-science, however, at this point mens rea fulfills the role of punishing people based on the nature of their mental framework when they committed the crime. It appears that is what the public wants at this point; to punish based on the moral framework of one's thoughts.

[Gary Gunnels]

Dan,

Obviously I see mens rea as a device to grade the "moral" worth of a defendant; or more correctly, heinousness of their crime. We like to make sure that the more morally suspect defendants are punished more.

[Dan]

this, mr dan, obviously dismisses illness or defect as possibly exculpatory

When you can give me an objectively quantifiable definition of "mental illness", gaius, I will *consider* accepting it as an excuse.

All criminals are mentally defective, so far as society is concerned. What is the rational basis for giving some of them a pass just because they fit the arbritrary and entirely subjective label of "insane"? Crime in general very rarely profits the criminal in the long run -- virtually nobody in prison would have committed their crimes if they had actually applied rational thought to their actions before undertaking them. Why should a man who murders his wife because she cheated on him be punished differently from a person who murders his wife because God told him to? Both men are mentally defective. Both made irrational choices that did nothing but harm them in the end. Yet we condemn the first man and take pity on the second. There is NO rational reason for doing that. Both men are evil. They are just evil in different ways.

Your problem is that you still buy in to the popular myth that there is a "real" you that mental illness can get in the way of. The truth is that the way your brain operates, right now, IS the real you, right now. If your brain is wired in a way that causes you to murder, you are a murderer. If your brain is wired in a way to do things that when viewed objectively seem horribly evil to observers, well, guess what, you're evil. Why should society care WHY you are evil?

if you took ill of an infection in your cerebrum, killed your family as a consequence, and got better -- should you die in the chair?

If I killed my family I would *want* to die.

[Steve]

Dan:

I am a defense attorney, not a psychiatrist or psychologist. Nonetheless, I have seen a number of cases in which people for a variety of reasons, illness, trauma, drugs (mainly alchol), act radically differently than they normally would. Post partum depression (what Andrea Yates clearly suffered from) is a real diagnosis. Blood testing of post partum women demonstrates a hormone imbalance. sometimes, that imbalance is such that the women hallucinate (auditory or visual) and behave in ways that they do not understand. Medication can restore the hormones to their proper level so that these women begin behaving consistently with their previous behavior.

It might be analogized to a computer virus. Yes, your brain is wired to make you do certain things. But just as a computer virus can cause a computer to do things it normally would not do, so diagnosible mental illness can cause some people to do things they normally would not do.

You ask why society should "care why you are evil". Most people would believe that there is a quantitative difference between someone who intentionally kills her children and someone who kills her children because of delusions. In one sense, why is immaterial because both are "guilty", i.e., factually guilty if not legally guilty. In another sense, though, why is material because of sentencing. Generally, someone who intentionally kills her children is viewed as a worse offender, a greater danger to others, and more culpable than someone who kills because of delusions.

There have been several documented cases of people who killed while sleepwalking. They were literally unconcious at the time of the homicide and as such, they had no idea what they were doing. Should they be punished? Why or why not? If you say such a person should not be punished, what then is the difference between that and mental illness? If you say that such a person should be punished, why do you advocate strict liability crimes? Is intent ever to be considered in either guilt or punishment?

You are certainly entitled to your opinion and to espouse your opinion. I hope, though, that you do not ever prosecute a criminal case or sit as a judge. I believe that such attitudes are inappropriate for those positions.

[Kevin Carson]

Hmmm.... So pleading insanity proves that she was sane. Sounds like a good plot for a book.

[Ken Shultz]

"What is the rational basis for giving some of them a pass just because they fit the arbritrary and entirely subjective label of "insane"?

It speaks to intent.

In order to convict someone of most crimes, it is necessary to prove intent. In many cases, this is simply a function of evidence. If, for instance, I buy a gun, load it, point it at the man that slept with my wife and pull the trigger, for most juries, that's sufficient evidence to prove that I intended to murder the victim.

Insanity brings intent into question.

...At the risk of going too far, I believe self-defense brings intent into question too. The self-defense plea is essentially, I didn't want to or intend to kill the victim, but I had no choice.

[martin]

Call me naive. Am I alone in thinking that justice should strive to protect society from dangerous people rather than making it a priority to punish?
Or is it for the deterrent factor? In a case of insanity I can not see how deterrence is achieved unless by making insanity defense next to impossible a future criminal is deterred from pursuing one.
I must confess that I am much disturbed by the focus on 'punishment'. I doubt it achieves it's objective to reduce crime, but rather is used to make the punisher feel good.

"Beware of those in whom the impulse to punish is powerful.' F.Nietzsche

[martin]

Ken,
Unfortunately increasingly criminal intent either does not need to be proven or is presupposed (as in intent to distribute). One example here:
http://crimlaw.blogspot.com/2004/12/criminal-intent-in-virginia.html

[Dan]

Most people would believe that there is a quantitative difference between someone who intentionally kills her children and someone who kills her children because of delusions

Most people don't put a lot of thought into how the mind works.

For example, what exactly do you mean by "kills her children intentionally"? If you mean "her brain functioned in a manner which caused her to kill" then both women killed their children intentionally. If you mean "the second woman wouldn't have killed her children if the structure and chemistry of her brain had been different", well, neither would the *first* woman. What you, and most other people, miss is that BOTH women have something seriously wrong with their brains. It makes absolutely zero sense to hold the first woman accountable and not the second one. Religious mythology notwithstanding, nobody chooses to be evil. The only reason that either woman kills is that, from an impartial observer's point of view, both of them are fucked in the head.

And the flip side of that is what makes the insanity defense so creepy. Stop for a minute and think about what it means to be judged criminally insane. It means that people whose brains cause them to commit crimes should be locked away indefinitely and force-fed drugs until the government is convinced that they no longer wish to commit crimes.

The problem is that, as noted above, the only reason anyone ever does anything illegal is, because their brains made them do it. Why, then, should all felons not be locked up until psychiatrists can puzzle out the proper combination of drugs and treatments necessary to remove their desire to commit crimes? What is the rational case for not treating all criminals as if they were "insane"?

[Dan]

Am I alone in thinking that justice should strive to protect society from dangerous people rather than making it a priority to punish?

Getting rid of a person who starts murdering kids when her brain chemistry gets a little sketchy pretty much falls under the category of "protecting society", wouldn't you say?

I must confess that I am much disturbed by the focus on 'punishment'. I doubt it achieves it's objective to reduce crime

So your believe is that if all rape, theft, and murder were legalized, rape, theft, and murder wouldn't be any more common than they are now? That, for example, bank robbery wouldn't gain in popularity if the robbers were legally allowed to keep any money they could get away with? That doesn't seem likely to be true.

The only way that punishment could have no deterrent effect is if fear of punishment never stopped anybody from committing a crime. I know for a fact that that's not true, because there are laws that I myself only obey out of fear of punishment -- speed limits, for example, and most federal tax laws.

[Gary Gunnels]

What is the rational case for not treating all criminals as if they were "insane"?

There may not be one.

[Gary Gunnels]

Dan,

Essentially the law states that some people are of such dim mental capacity that they cannot seperate right from wrong, whereas others, though they may be screwed up in the head, do have the capacity to capture such a distinction.

[Jadagul]

Dan: think about it this way. We (in theory) have identified three brain structures that lead people to commit crimes.

First, the 'rational' structure. These people understand that they're doing something society considers wrong and is willing to punish, but think the advantage of doing whatever-it-is outweigh the risks of getting caught. They can, in theory, be deterred from breaking the law given sufficiently stiff penalties.

Second, the 'deranged' structure. These are permanently insane people who can't tell the difference between condemned acts and uncondemned acts. They're going to do more 'bad stuff,' however 'bad stuff' is defined, because they're under compulsion--physically can't stop themselves whatever the consequences--or can't tell that they're hurting people (e.g. delusional schizophrenic who doesn't realize that he's hurting actual people, or a paranoid who thinks everyone is threatening his life and so strikes out in self-defence, etc.). These people can't be deterred because they don't realize it's something we'd try to stop them from. They're dangers to society, and undeterable, and they're going to do it again, so we put them in asylums or treat them to make them safe.

Third, the temporarily insane structure. This is someone who acted illegally under a strange and extreme circumstance. To push the example to an extreme, consider if it were possible to mind-control someone completely. I force him to commit murder. I'm then caught; should he be convicted of 1st degree murder? Probably not, because he did it under an exceptional, unrepeatable circumstance, and couldn't have stopped himself.

I think those would be the justifications for treating the three circumstances differently. Whether that's the right way to treat them, or whether 3 exists at all, are different questions. But that's why the distinction makes sense in theory.

[parse]

Dan wrote: "Yes, I understand that. What amazes me is that the courts still operate under that pseudo-mystical framework. The only reason anyone ever does anything is that their brain is structured in a way which causes them to do it."

If this is true, Dan, the reason courts still operate under that pseudo-mystical framework is because people who make the decisions about how courts should work have brains that are structured in a way which causes them to operate under a pseudo-mystical framework.

[parse]

And the reason you are amazed by it, Dan, is not because it's objectively amazing, but because your brain is wired to be amazed by such a phenomenon.

Also, the conviction of people in jury trials doesn't rest ultimately with the facts of the case, but of the wiring of the brains of the people who sit on the jury--their brains are wired to acquit or convict.

If your contention is true, nothing about our legal system makes sense. But that doesn't matter, because the reason we have such a legal system is because of the collective compulsions of people whose brains are wired one way or another. (And the reason I'm responding to your arguments is because the wiring of my brain makes it inevitable that I do so.)

[It's For the Children]

My brain is wired in such a way as to respond to parse's posts with "Bravo".

[It's For the Children]

Bravo.

[Alexander deLarge]

Dan effectively endorses the approach taken by the government in "A Clockwork Orange." Oh, sure, that approach was a little primitive and has some unanticipated bad consequences in the book and movie, but I'm sure Dan would agree we can file down those rough edges and work the bugs out of the system so that soon we'll be able to both listen to Beethoven *and* avoid tolchocking old men about the gulliver or forcing the old in-out on weepy young devotchkas.

[gaius marius]

What you, and most other people, miss is that BOTH women have something seriously wrong with their brains.

mr dan, by that definition, there is something "wrong" with ALL our brains. we are ALL capable of these dysfunctions -- and don't imagine you're not -- because we are not simple rational machines.

i personally can't believe how deeply ingrained this delusion is in some people. an intelligent person should be able to see the world outside of the influence of scientism and industrialism and discover that people are not now nor have they every been simple and mechanical.

your idea is tantamount to imprisoning on the basis of outcome alone without regard to circumstance or intent. this has never been the conception of justice in any human society -- and i suspect it is only in people devoid of sympathy that it can be considered.

[gaius marius]

Your problem is that you still buy in to the popular myth that there is a "real" you that mental illness can get in the way of. The truth is that the way your brain operates, right now, IS the real you, right now.

to the contrary, mr dan -- your problem is that you apparently can't conceptualize that one's mental state is not static. i agree that there is no nous, no spirit within in the platonic sense. but i further say that there is no static mechanical condition akin to a cuckoo clock that is the self -- such that a bad gear causes permanent dysfunction.

the self is a series of subjective events (both 'physical' and 'mental') which interact with external objective events to cause yet more events, some of which are added to the conception of the self -- which is therefore ever changing.

criminality is (near as i can tell) the interaction of the subjective and objective events in a way which produces events which we define as illegal.

to claim the permanence of an condition of criminality is to claim the permanence of the subjective event set (the self) such that, should it ever encounter a similar objective set of events, will produce the same behavior. but this is false; the self is always changing.

one can, however, argue that the probability of such intersecting events is significant or insignificant. if it is significant -- say a permanently defective brain structure -- by all means pen them up. over time, with luck and the addition of subsequent events, perhaps that person can be sufficiently remediated.

but if it is insignificant -- such as illness or extreme crcumstances -- it beggars me as to why one would wish to punish except out of a misunderstanding of the self.

[joe]

'Your problem is that you still buy in to the popular myth that there is a "real" you that mental illness can get in the way of. The truth is that the way your brain operates, right now, IS the real you, right now.'

This is not true. I have mild clinical depression, and there is a noticeable difference between my real emotions, and the symptoms of the disease. My real emotional reaction to walking next to the river on nice sunny day is NOT a feeling of dread in the pit of my stomach. My real emotions are a sense of calm and an appreciation for the beauty of the scene. Sometimes, I have both at the same time. One is actually me, and one is not.

And this experience of distinguishing these feelings is not a learned, cultured reaction or an internalization of a "popular myth." I can recall noticing the "it's just going to be another day" feeling as far back as age 3 or 4, and recognizing it as something that was not really me, but something that came over me.

Which is significant, because at that age (and for some people, a lot longer) you aren't consciously aware of your emotions. If you are mad, you don't experience an awareness of being mad, you experience "My sister did such and such and she's a jerk."

[Phil]

Is now the appropriate time to bring up Phineas Gage or not?

[Dan]

If this is true, Dan, the reason courts still operate under that pseudo-mystical framework is because people who make the decisions about how courts should work have brains that are structured in a way which causes them to operate under a pseudo-mystical framework

I realize you're trying to be a smartass, but yes, that's correct. And it's surprising to me that their brains are still structured that way, this being the 21st century and all.

[Dan]

we are not simple rational machines.

I would never accuse the human brain of being either simple or inherently rational.

But the idea that our minds are something other than the product of biological machinery and the experiences that machinery records simply has no basis in reality.

but i further say that there is no static mechanical condition akin to a cuckoo clock that is the self -- such that a bad gear causes permanent dysfunction

A bad gear doesn't permanently disable a cuckoo clock -- unless you lack the knowledge of how to fix the gear. We lack the knowledge of how to fix the human brain in any reliable manner. Perhaps in ten years it will be different, and I would certainly be surprised if we hadn't completely mastered the ins and outs of the brain within a few centuries. But today, we don't.

But of course, by the time we have a good working knowledge of the human brain, we won't be talking about "insanity" anymore. We'll be discussing the manner in which people should be allowed to think, versus the manner in which they should not be allowed to think. That's what we're talking about now too, actually -- we just use other terminology for it.

[gaius marius]

We'll be discussing the manner in which people should be allowed to think, versus the manner in which they should not be allowed to think.

it's what we've been discussing since the dawn of society, mr dan -- it IS society, in no small way.

We lack the knowledge of how to fix the human brain in any reliable manner.

your use of 'fix' suggests permanence again, which is nonsensical. there is no such thing as a permanent 'fix' in any series of events. your car breaks down; you alter your car; it breaks down; you alter it. if it breaks down too frequently or is not alterable, you destroy it -- but what sane person destroys a servicable car?

it is simply no longer true that people's self is universally unalterable. 'reliable' is a very (intentionally?) vague word, but we do indeed have great capacity to take people and reduce their probability of illegal eventhood radically. unless you live under a rock, you already know this.

in any case, you are being disingenuous (again). people whose tendencies we cannot 'fix' are not that which we are discussing for insanity defenses -- these people are being remanded to psych wards for long periods regardless. your inability to separate such cases from temporary mental illness cases indicates willful argumentative obstinancy for a lack of counterpoint.

[parse]

Dan wrote: I realize you're trying to be a smartass, but yes, that's correct. And it's surprising to me that their brains are still structured that way, this being the 21st century and all.

I wasn't trying to be a smartass. But there does seem to be a paradox in your position. And I don't understand why you think this being the 21st century would prevent people's brains from being structured in one way or another. Is your point that a brain structured to produce belief in a pseudo-mystical notion is somehow more primitive than one structured to reject such a notion?

[martin]

Dan:

Huh???
Did I say somewhere that people that harm others should not be dealt with??
Your answer sounds just like the knee-jerk reaction of some lock-em-up-throw-away-the-keys type. You know, like in "Doesn't really matter if we lock up some mentally ill people or a couple of innocent ones. just as long as their punishment deters some others." Perhaps. But that could never happen to you, noooo.
I was talking about Justice, you know, that old-fashioned concept. Jeez.

[Ray Midge]

I sort of side with Dan on this one.

I understand the other side. Basically it's an argument that says legal culpability and "punishment" should depend upon whether or not the individual had "freedom" to do other than what they did. If we can't say they could have done otherwise, how can we hold them accountable? Are epileptics responsible for their thrashing, and this guilty of assault, if they hit someone during a fit?

Logical consistency and moral intuition says this is right. The problem is though, as Dan points out, science has revealed to the modern man that no one "could have done otherwise" - that free will is an illusion.

Ultimately, our system (if democratic) must punish those who seem, to us, as if they are "evil." Ms. Yates actions were evil. How do I know? Cause they feel that way. Sure evolutionary pschy. can explain why that reaction exists in me, but what of it?

So, is the criminal law supposed to reflect the sensibilities of those far removed from the crime who prize the law's "logical consistency" - punish those who had "control" (even when the lack of free will reveals this notion as logically inconsistent). Or, should it reflect the sensiblities of the family of the victim, who demand that "evil" be punished.

Juries sure seem to favor the latter. I know which foundation for criminal law I'd prefer when someone like Yates decides that it's my kids who must die to save the world.

[Isaac Bartram]

Wow, sixty-four postings and noone has mentioned Thomas Szazz.

[thoreau]

I finally found out why this non-existent TV episode is so important: Supposedly Dietz was the government's key expert witness. The facts of the crime (who, what, when, where) were not in dispute, so it all came down to her mental state. Whatever one might think of insanity defenses and mental illness, he was the government's primary expert witness.

I have no problem with setting aside a conviction when the government's primary witness is found fabricating things. I'm not saying she should be released, but as a matter of principle I have no problem reconsidering a conviction when the government's star witness is found to be making shit up.

[thoreau]

Oh, to be clear, I'm still not convinced that the TV show itself should really be considered all that pivotal to the case. But when a star witness is found to be making stuff up in even part of his testimony, he loses all credibility.

[Isaac Bartram]

It's a safe bet that she will be retried. It's also a safe bet she'll plead insanity again but the state won't have this TV thing to use to counter it.

I don't know how decisive this testimony was the first time but apparently the other psychiatrists questioned testified that she was insane (I can't remember where I read that, so I'll stand corrected if anyone contradicts me.).

Of course for the insanity defence to work it has to be shown that her insanity made it so she did not know right from wrong. It's been pretty clear she's nuts but it takes more.

[Isaac Bartram]

thoreau

My post was mostly a response to your "I'm not saying she should be released...", but also a general opinion.

[Ray Midge]

The Times had a good article on Dietz today in it's Art section. section.http://www.nytimes.com/2005/01/08/arts/television/08law.html?adxnnl=1&oref=login&adxnnlx=1105223968-3DWSuoH5spFaT+U/8dvoZg

Apparantly, he was only partly wrong. There were 3 episodes featuring mothers killing their children. One was aired three weeks before Yates killings - mother leaves newborn in dumpster. Another, "Angels", was aired five months before (and a few days after Yates killings) where the mother drowned her children and claimed insanity in that god told her to do it, and escaped punishment. In fact, in that episode, she was found guilty however.

Dietz confused the airdates of the "Dumpster" and "Angels" episodes and was wrong in how the mother got off in Angels. [Defense brought the whole L&O thing up and Dietz, when he realized he was wrong, brought it to the courts attention on his own, but by then, the verdict was in]

The problem was, prosecutors capitalized on this in closings (before Dietz knew he was wrong) saying this episode (becasue the mother got off) might have given Yates the idea she could claim "god made me do it" and get away with it - that 'maybe she's fakin' They also criticized Def. expert witnesses for not taking it into account.

The sole issue under Tex. Insanity law was "Did Yates know right from wrong" and the App. Court said this mistake and the subsequent pros. emphasis of it was sufficient to get a new trial.

Some disagree however. Some say the Tex. Appellate Court doesn't like Texas' insanity rule but didn't want to say it was unconstitutional so used this mistke as pretext to overturn the verdict. Some also wonder if Yates will even get a new trial or if she will now be found "incompetent." Not sure, myself.