I killed someone. Am I insane?

IMG_0088In a matter of days, we will know the fate of Eddie Ray Routh who is on trial for the murder of Chris Kyle, an American war hero, and his friend, Chad Littlefield. The twelve jury members of Erath County located in Central Texas, will decide one of four verdicts:  not guilty, guilty, guilty but mentally ill, not guilty by reason of insanity.  While Routh admits to having killed Kyle and Littlefield, the defense attorney claims that Routh was insane at the time he committed the crime, and should be found not guilty by reason of insanity.

Less than one percent of defendants in criminal cases plead insanity, and only one-fourth of them are successful. The majority of those acquitted by reason of insanity are schizophrenic or suffer from bipolar disorder. The insanity defense has become the last choice, an act of desperation, giving only a glimmer of hope for the most disturbed, who, while in a confused state of mind, sometimes make an unconscious choice to commit a violent crime.

Insanity can be as mystifying as a trip to the moon. The photos, the words, the creative simulations that bring us close to flying through space or walking on the moon, seem like make believe. Traveling through the world of insanity, where neurotransmitters pop and crackle like fireworks on the fourth of July, is even more baffling. Only one percent of the population, roughly 2.5 million people, make the trip. They are so unique that we call them by a different name – schizophrenic or bipolar.  Was Eddie Ray Routh insane when he killed Chris Kyle and Chad Littlefield?

While lawyers argue in legal terms – insanity is a legal, not a medical concept – psychiatrists reason in the scientific language of behavioral and cognitive psychiatry. Psychiatrists often complain about being asked, sometimes months after the act, to determine whether a defendant knew the difference between right and wrong, to determine a moral question rather than an evaluation of the defendant’s mental competency. How could the jury be certain that Routh, or any defendant, was insane when they committed a crime?  The jury, saddled with their personal bias, is left to judgments based on the quality of counsel, the attitude of the trial judge, photos of a brutal crime, and the salesmanship of the expert witnesses. Not guilty by reason of insanity is determined by a not-so-exact science.

The United States followed England’s The McNaughtan rules from 1843 to 1953. “A person may be insane if at the time of committing of the act, the party accused was laboring under such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.”
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It was Friday, January 20,1843, when Daniel McNaughtan, a thirty-three-year-old stout Scotsman of average height, walked from Charing Cross to Downing Street. A typical afternoon in London – men, women, a few horse-drawn carriages, and the occasional stray dog moved along Downing, a street lined with two, three, and sometimes four-story brick structures – was about to change. In a sliver of a second, McNaughtan’s actions changed how the United States’ judicial system would view the insanity plea for the next one-hundred-and-ten years.

McNaughtan approached Edmund Drummond from behind, so the story goes, and pushed the muzzle of his pistol into Drummond’s back and fired. Drummond fell to the ground. While McNaughtan returned the recently-fired pistol to his breast pocket and pulled out a loaded one, a nearby policeman lunged at NcNaughtan and wrestled him to the ground, causing the second pistol to fire erratically into the air. McNaughtan was shackled and taken to jail. Drummond was treated by a physician who removed the steel ball that had lodged under the lowest left rib next to the skin’s surface. The next morning Drummond experienced breathing difficulties, and upon further examination, it was determined that the rib had been shattered, and the wound had become inflamed. In an effort to treat the inflammation, the physicians extracted a quantity of blood from Drummond’s temporal artery, and a large number of leeches were applied to his back. On Monday, two days later, his condition worsened and he was bled again. On Wednesday, Drummond died.

Friday, the day of the shooting, when McNaughtan was taken to the police station, he was asked about the identity of the person he had shot. “It is Sir Robert Peel is it not?” he replied. In his haste to right his perception of social injustice, McNaughtan had mistakenly shot Edmund Drummond, private secretary to Prime Minister Sir Robert Peel, his intended target. McNaughtan’s statement reflected the depth of his paranoia.

     “The Tories in my native city have compelled me to do this. They follow, persecute me wherever I go, and have entirely destroyed my peace of mind. They followed me to France, into Scotland, and all over England. In fact, they follow me wherever I go. I cannot sleep nor get no rest from them in consequence of the course they pursue towards me. I believe they have driven me into a consumption. I am sure I shall never be the man I was. I used to have good health and strength but I have not now. They have accused me of crimes of which I am not guilty, they do everything in their power to harass and persecute me; in fact, they wish to murder me. It can be proved by evidence. That’s all I have to say.”

On Friday, March 3, 1843, Daniel McNaughtan stood trial for the murder of Edmund Drummond. Sir William Follett, solicitor general, represented the prosecution, while Alexander Cockburn led the defense team. Chief Justice Tindal, assisted by Justice Williams and Justice Coleridge, presided at the trial.  Through a series of witnesses, Follett established a narrative that McNaughtan had killed Drummond. And the fact that Sir Robert Peel was the intended target did not lessen the crime. The murder was the result of an “ill-regulated mind,” so he said, “worked upon by morbid political feelings.” Anticipating an insanity plea, Follett told the jury that they needed to consider the defendant’s state of mind at the time he committed the crime. “If you believe that when McNaughtan fired the pistol, he was incapable of distinguishing between right and wrong…, that he did not know he was violating the law both of God and man: then undoubtedly, he is entitled to your acquittal.” Follett went on to explain that if the defendant committed the act under partial insanity, that his disease was confined to politics, then according to the “principles of the English law” the jury must bring a verdict of guilty.

Cockburn, attorney for the defense, asked the jury to show proper respect for the medical experts, and to consider the fact that past judicial treatment of the mentally ill was formed without the benefit of modern medical knowledge. “Madness is a disease of the body operating upon the mind…and a precise and accurate knowledge of this disease can only be acquired by those who have spent a lifetime in its study.” Cockburn went on to explain how the mind is divided into two separate parts: one houses the intellect – the perceptions, judgment, and reasoning; the other holds the moral faculties – the sentiments, affections, propensities, and passions. While one section might be subject to disease, the other could be healthy. One diseased section might make a man “the victim of the most fearful delusions.” The fact that the defendant was able to formulate and carry out his plan did not mean that he was sane. It was his moral side, not his intellect, that was without reason.

Cockrun called both lay and professional witnesses. The lay witnesses contended that McNaughtan suffered from delusions of persecution almost two years prior to the assassination of Drummond. The professional witnesses, led by Dr. Edward Thomas Monro, examined McNaughtan four weeks after his arrest. Monro maintained that the defendant’s moral faculties were impaired by his “extraordinary delusion.” Monro testified that for McNaughtan, everything was done by signs: that encountering a man on the street carrying an armful of straw meant that he was destined to “lie upon straw in an asylum.” The defendant received a “scowling look” from the victim as he passed on the street, another sign that aroused feelings of past persecution. Shooting Drummond gave McNaughtan much needed relief.

After several additional medical witnesses supported Monro’s diagnosis, Justice Tindal asked Follet if he had any expert witnesses to contradict the defense. When Follet answered no, Tindal said; “We feel the evidence, especially that of the last two medical gentlemen…who are strangers to both sides and only observers of the case, to be very strong, and sufficient to induce my learned brother and myself to stop the case.”

Justice Tindal told the jury that all of the medical evidence seemed to support one side, and that he questioned whether it was necessary to go through the other evidence. “If you think the prisoner capable of distinguishing between right and wrong, then he was a responsible agent and liable to all the penalties the law imposes…If not so,…then you will probably not take upon yourselves to find the prisoner guilty. If you think you ought to hear the evidence more fully…I will state it to you, and leave the case in your hands.”

The jury foreman answered, “We require no more, my Lord.”

“If you find the prisoner not guilty, on the ground of insanity…proper care will be taken of him,” Justice Tindal said.

The jury did not retire to its chambers. They huddled in a group, so the story goes, and exchanged brief whispers that McNaughtan did not know what he was doing. After retiring to their chairs, the foreman stood and addressed Justice Tindal. “We find the prisoner not guilty, on grounds of insanity.”

McNaughtan was taken to the criminal lunatic department of Bethlehem Hospital to “await the Crown’s pleasure:” the equivalent of a one-day-to-life sentence. An 8 x 10 foot stone cell, containing a trundle bed, straw mattress, chair, and small table, became his home for the next twenty-one years. Except for one incident when McNaughtan refused to eat and had to be force-fed, he was considered a model inmate-patient at Bethlehem. But his photograph taken in 1856 showed a hardened man with a chiseled face and eyes like petrified wood. In 1864, this troubled man was transferred to the new State Criminal Lunatic Asylum at Crowthorne in Berkshire, where he would reside until his death on May 3, 1865.

Immediately following the trial, the public was outraged, and feared an imaginary group of madmen might kill with impunity. They believed that McNaughtan had gotten away with murder. The Times argued that even if McNaughtan was persecuted the way he imagined, he still should have been held accountable. They further believed that “the judge in his treatment of the madman yielded to the decision of the physician, and the physician in his treatment became the judge.” The Illustrated London News added that those who passively indulge themselves in the doctrines of socialism and infidelity and thereby willingly undergo a process of mental intoxication cannot claim to be entirely without legal or moral responsibility. The Examiner questioned how the medical experts could be certain about the state of McNaughtan’s mind, while The Weekly Chronicle took the position that the defendant was insane, and that it would do little good to punish him.

Queen Victoria felt that justice had been denied. She directed Sir Robert Peel to push the legislature into requiring the judges to follow the law as laid down by the lord chancellor. In response to her concerns, the House of Lords took up the question of criminal responsibility, particularly in the area of insanity. Chancellor Lord Lyndhurst declared that no change in the laws concerning insanity was necessary. He believed that the “only course…the Lords can pursue is to lay down some general and comprehensive rule, and to leave those who administer the laws…to apply that rule.” The chancellor then suggested that the judges of the Supreme Court of Judicature be gathered to hear opinions on the law on insanity, with particular attention to the McNaughtan trial. What evolved from those hearings became known as the McNaughtan Rules, which examined three general areas of the insanity law: criminal responsibility of persons laboring under partial delusions; direction to the jury in such cases; and evidence, i.e., medical witnesses present at the trial. Stated briefly: To establish a defense on the grounds of insanity, it must be clearly proven that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know that what he was doing was wrong.

In England, the McNaughtan Rules were the test of criminal responsibility until the Homicide Act of 1957, which introduced the Scottish concept of “diminished responsibility.” The Act allowed the jury in first-degree murder cases to find a defendant guilty of the lesser crime of manslaughter, provided the defense could prove by a “balance of probabilities, that the defendant was suffering from such abnormality of mind…as substantially impaired his mental responsibility.” For the defense, the choice was clear: A not-guilty due to insanity sentence resulted in an indeterminate, possibly life stay in a mental hospital, while the lesser crime of manslaughter followed a court imposed penalty, most often of shorter duration. After the Homicide Act of 1957, and the repeal of the death penalty in 1965, the McNaughtan Rules were seldom applied in England. In the United States, however, the McNaughtan Rules were followed for over a century.
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The Durham rule (1954) “An accused is not criminally responsible if his unlawful act was the product of mental disease or defect.”
United States v. Durham 214 F.2d 862.

The first significant change came in 1954, when Monte Durham, a 23 year old man who had been in and out of prison and mental institutions for the past four years, was convicted for housebreaking. Although the defense failed to convince the judge that Durham did not know the difference between right and wrong at the time of the act, Durham’s case was appealed on a technicality, and reached the Appellate court. Citing leading psychiatrists and jurists of the day, the appellate judge – determined to right the McNaughtan rules – stated that McNaughton was based on “an entirely obsolete and misleading conception of the nature of insanity.”

Justice Leventhall, Circuit Judge for the United States Court of Appeals, expressed concerns that McNaughtan’s language on the right/wrong provision for insanity was out-dated, no longer reflecting the community’s judgment as to who ought to be held criminally liable. The Durham rule more accurately reflected the “sensibilities of the community as revised and expanded in the light of continued study of abnormal human behavior.” But critics complained that Durham lacked specificity, allowing alcoholics, compulsive gamblers, drug addicts, and the like, to successfully use the defense to avoid a variety of crimes.
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The Brawner rule (1972) A defendant is not responsible for criminal conduct where he, as a result of mental disease or defect, did not possess “substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.”

United States v. Brawner 471 F.2d 969

It was 1972, so the story goes. After a morning and afternoon of heavy drinking, Archie W. Brawner Jr., went to a party, where he was injured in a fight that broke out in the evening hours. Brawner, beaten and alone, left the party and told some friends that several men jumped him, and that someone was going to pay. Minutes later, he returned to the party, entered the apartment building, moved down the hallway, and shot several times into a metal door. One of the bullets pierced the door and hit Billy Ford, who fell to the floor and died.

At the trial, a friend testified that Brawner “looked like he was out of his mind.” Expert witnesses, called by both the defense and prosecution, agreed that Brawner suffered from a disease of “psychiatric” or” neurological” nature. But the experts could not agree on what part the mental disease or defect played in the murder of Billy Ford.

Brawner’s case was later heard by the United States Court of Appeals for the District of Columbia Circuit, which argued that the Durham rule was too restrictive, and should give more power to the juries. What became known as the Brawner rule was based in large part on the American Law Institute’s (ALI) Model Penal Code, which said that a defendant is not responsible for criminal conduct where he, as a result of mental disease or defect, did not possess “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Although subtle in appearance, the changes were significant. The substitution of the word “appreciate” for the word “know,” as used in McNaughtan, showed that a sane offender must be emotionally as well as intellectually aware of the significance of his conduct. The use of the word “substantial” was meant to respond to recent case law developments that required showing total impairment for exculpation from criminal responsibility. Brawner broadened the definition of mental impairment used in McNaughtan, including both the cognitive and emotional aspects of mental illness.
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The Insanity Defense Reform Act of 1984 (U.S.) A person accused of a crime can be judged not guilty by reason of insanity if “the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.”

March 31, 1981. Ronald Reagan, 40th President of the United States, finished a speech pushing his economic program and deploring the rising violent crime in the inner cities. Surrounded by secret service agents, metropolitan police, and white house staff, Reagan left the Washington Hilton Hotel and hurried through a light rain toward a limousine parked some twelve feet away. It was 2:25 p.m., so the story goes, when Reagan, looking very presidential with his Reaganistic smile, and a slightly cocked head that was a staple in his movies, waved to a hundred or so well-wishers standing behind a roped-off area. Reporters readied for a story; cameramen wanted that special photo; and a patchwork of people waited for a glimpse of their President. It was a scene that would be replayed countless times on the daily news, and discussed on every talk show across the nation.

It was sudden, like a flock of black birds in startled flight. Gunshots pierced the air, six of them. Bang, bang, and then a pause, followed by four successive shots fired from within the crowd. It appeared as though the President had not been hit. Secret service agents had pushed him into the car. But an eye witness, as reported by Lou Cannon of the Washington Post, said it all; “The President winced. The smile just sort of washed off his face.” Three men fell to the ground – Timothy J McCarthy, a secret service agent, Thomas Delahanty, a metropolitan policeman, and James Brady, the likeable press secretary who friends called “the bear.” While McCarthy and Delahanty each had flesh wounds, Brady took a bullet to his head. Rain washed puddles of blood down the sidewalk and onto the road. Agents pounced upon a white, blond haired man, later identified as John Hinckley, a twenty-nine year old dressed in a raincoat, blue shirt, and dark trousers, who gripped an automatic handgun while they wrestled him to the ground. Hinckley was then subdued and whisked off to jail. The President’s limousine and police cars raced to the George Washington University hospital.

President Reagan’s wound was serious: a .22 slug penetrated his chest, ricocheted off a rib, and entered his lung, resting about one inch from his heart. An eighty-minute surgery followed by   twelve days in the hospital led to a full recovery. McCarthy and Delahanty recuperated as well. But Brady was not as fortunate. The bullet seemed to explode in his head, causing permanent brain damage.

Numerous eye witnesses and a video recording left no doubt that John Hinckley was the shooter. Initial public speculation centered on whether Hinckley would spend the rest of his life in prison, or if he would be put to death. But as days passed, Hinckley’s future became less certain. His mental state began to unfold. In 1976, five years before the shooting, Hinckley became obsessed with the movie Taxi Driver, where a psychotic taxi driver, Travis Bickle (played by Robert DeNiro), contemplates political assassination and then rescues a young prostitute, Iris (played by Jodi Foster), from a pimp. Hinckely took on the mannerisms – the army fatigue jacket, the fascination with guns, and even the taste for peach brandy – of the Bickle character. Hinckley’s infatuation with Iris developed into a full-fledged imaginary love for Jodi Foster, so much that he sent her love letters and stalked her on the Yale university campus. It was later revealed that Hinckley had even stalked President Carter and planned to assassinate him to impress Jodi Foster. But each time, he was unable to follow through on his original intent. A love letter sent to Foster just hours before he carried out his assassination attempt of Ronald Reagan showed the depth of Hinckley’s mental illness.

Dear Jodi,
     There is a definite possibility that I will be killed in my attempt to get Reagan. It is for this very reason that I am writing you this letter now.
     As you well know by now I love you very much. Over the past seven months I’ve left you dozens of poems, letters and love messages in the faint hope that you could develop an interest in me. Although we talked on the phone a couple of times I never had the nerve to simply approach you and introduce myself. Besides my shyness, I honestly did not wish to bother you with my constant presence. I know the many messages left at your door and in your mailbox were a nuisance, but I felt that it was the most painless way for me to express my love for you.
     I feel very good about the fact that you a least know my name and know how I feel about you. And by hanging around your dormitory, I’ve come to realize that I’m the topic of more than a little conversation, however full of ridicule it may be. At least you know that I’ll always love you.
    Jodi, I would abandon this idea of getting Reagan in a second if I could only win your heart and live out the rest of my life with you, whether it be in total obscurity or whatever.
     I will admit to you that the reason I’m going ahead with this attempt now is because I just cannot wait any longer to impress you. I’ve got to do something now to make you understand, in no uncertain terms, that I am doing all of this for your sake! By sacrificing my freedom and possibly my life, I hope to change your mind about me. This letter is being written only an hour before I leave for the Hilton Hotel. Jodi, I’m asking you to please look into your heart and at least give me the chance, with this historical deed, to gain your respect and love.                    I love you forever,

John Hinckley

The insanity law at the time of the shooting provided that an accused was not criminally responsible for his act if, at the time of the commission of the crime, the defendant, as a result of mental disease or defect, “lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.” Vincent J. Fuller, the lead attorney for the defense, said that their challenge was to show that Hinckley did not “appreciate” the “wrongfulness” of his conduct. The psychiatrists for the prosecution concluded that Hinckley was legally sane – that he appreciated the wrongfulness of his act – at the time of the shooting, while the psychiatrists for the defense testified that Hinckley was psychotic – and legally insane – at the time of the shooting. The lead psychiatrist for the defense said that Hinckley had “an incapacity to have an ordinary emotional arousal, autistic retreat from reality, depression including suicidal features, and an inability to work or establish social bonds.” Hinckley was schizophrenic.

John Hinckley was found not guilty by reason of insanity. The public outcry was fast and furious. Less than one month after the trial, congress flexed it’s muscle and held hearings on the insanity plea. The emotional shock and anger in the attempted assassination of a popular sitting president, and the not guilty verdict, caused congressional leaders to create laws based more on polls than on common sense. What happened over the next three years were limitations of the insanity plea, requiring the use of the word “severe” mental disease, and replacing “unable to appreciate” with “lacks substantial capacity”; a shifting of the burden of proof from the prosecution to the defense; stricter procedures governing the hospitalization and release of defendants; and limiting psychiatric testimony by enacting a statute stating that “No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto. Such ultimate issues are for the trier of fact alone.”   Three states – Utah, Montana, and Idaho – abolished the insanity defense.

In 1984, Congress passed, and President Ronald Reagan signed, the Comprehensive Crime Control Act. The federal insanity defense now required the defendant to prove, by “clear and convincing evidence,” that “at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” The insanity defense seems to have made a full circle back to the McNaughtan rules of 1843: the “knowing right from wrong” standard.

Another byproduct of the debate was the “guilty but mentally ill” (GBMI) verdict, which was adopted by twelve states. (By 2000, twenty states used GBMI). While the defendant is considered guilty of the crime, he is judged to be mentally ill, and therefore entitled to mental health treatment while institutionalized. If the defendant recovers, he will spend the remainder of his sentence in prison. The National Alliance on Mental Illness (NAMI), opposes the GBMI statue because the statue punishes rather than treats the person with a serious mental illness who committed a crime as a consequence of their illness.

It can be argued that the GBMI is a compromise, possibly a copout, no longer requiring the jury to make the difficult choice between guilty or not guilty by reason of insanity. If the jury wants to hold the defendant accountable, but wants to show compassion for someone who is mentally ill, GBMI provides the illusion of justice.  Ralph Slovenko, Professor of Law and Psychiatry at the Wayne State University Law School in Detroit, said that “guilty but mentally ill is a sham. It is nothing more nor less than another guilty verdict.” According to Slovenko, the jury has the misconception that the defendant will receive special treatment for his illness. Instead, the guilty, and the guilty but mentally ill, are sent to the same prison.  The defendant remains in the mental health wing until they are well enough to survive in the general population.  Meaningful treatment is not the reality.

I killed someone.  Am I insane?

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