- The Washington Times - Thursday, January 20, 2005

In April in these pages, in a piece titled “God and the Devil in Texas,” I pointed up the differences between the cases of Andrea Yates and Deanna Laney, two Texas mothers who had killed their children under the delusion that they had been commanded to act — Mrs. Laney by God, Mrs. Yates by Satan. I voiced the possibility that the nature of the sources of the commands might well have played a part in the outcomes, and that this was insufficient grounds to distinguish the two cases: Laney was found legally insane, Yates criminally responsible.

As Oliver Wendell Holmes observed a century ago, great cases like hard cases make bad law. George Dix, professor of law at the University of Texas, was persuaded that Yates’ conviction was reversed on Jan. 6 primarily because “it’s such a difficult and screwed-up case.” This is not to say that the error upon which the appellate court relied for its decision was non-existent or even insubstantial. But as every student of appellate practice knows, error alone, even serious error, does not ensure a reversal. The school of Legal Realism contends that appellate results are almost always arrived at before and independent of the critical determination of prejudice: Does the error undermine faith in the outcome at trial?

The error in the Yates matter was the false assertion by psychiatrist Park Dietz — the only one of seven mental health experts at trial who believed that Mrs. Yates was legally sane — that a “Law and Order” episode portrayed a mother successfully using the same defense. As it turned out, no such episode had ever been aired. Clearly, this was error, compounded by prosecution reliance on it during closing argument at the guilt phase, the implication being that Mrs. Yates had planned her crime with the intent of evading punishment by means of an insanity defense. While the false testimony of Dr. Dietz reinforced this possibility, the jury could well have reached the same conclusion without it. So we are again left with the problem of deciding when criminal conduct should fall within the domain of the insanity defense.

What condition of mind is such that a criminal act, even the taking of a human life, should not be punished within the normal bounds of the justice system? Some sociological thinkers believe that all crime is pathological in nature, so that all offenders should be treated rather than punished, or that society — rather than the perpetrator — bears primary responsibility. Accepting as we do notions of free will and individual responsibility, our system of justice rejects these notions. But there remains the sense that some crimes are so bizarre, some defendants so severely debilitated, that it would be unjust to apply the usual rules in these cases. The practical problem is, and always has been, deciding where to draw the line.

Determining what constitutes a mental disease or defect sufficient to preclude criminal responsibility is difficult at best: Psychotic disorders like schizophrenia usually qualify, while personality disorders like psychopathy do not. What type of crime should qualify? Results vary greatly, with clearly disordered offenders like Jeffrey Dahmer and “the son of Sam” — who committed very bizarre offenses — being found legally sane. Perhaps the answer lies in the aspect of the insanity defense which is traditionally given the least attention: the link between the act and the illness. While it is settled that a “but for” test always applies when insanity is raised — i.e., the illness was a “legal cause” of the offense, in that without it the crime would not have occurred — this is not enough. Something akin to “proximate cause,” an intimate and direct link between illness and crime, is required, at least to convince a jury.

Perhaps this is the best we can do short of dispensing with the defense altogether. We leave it to the jury to consider all aspects of the case and the defendant and to decide whether the crime “makes sense” under any worldly scenario imaginable. Questions of motive (was Mrs. Yates simply tired of the tedium of her life?), alternatives (could Dahmer have sublimated his urges or sought help?), the history of the offender (were there previous incidents of lawbreaking?), subjective impressions of the defendant — all undoubtedly play a part.

Ultimately, the issue of sanity, like all issues of mental state — inextricably included in every criminal case — involves an attempt to peer into the mind of another person at a prior time. While the average juror can conclude with some certainty that an unimpaired robber had the required intent to steal by means of force, can the same juror possibly determine whether a mother who has killed her children knew right from wrong? Can we even clarify the meaning of the terms?

At USC law school, I was taught some of the law surrounding mental-health issues by a recognized expert in the field who held a degree in psychology as well as law. Essentially, he contended, the challenge was to recognize “crazy” behavior and thinking and to align our systemic responses in some rational way. Attempting to accomplish this in a general rule, applicable to all imaginable scenarios, is enough to drive anyone crazy.

Frederick Grab is a former California deputy attorney general.

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