Recently in Mental State Category

While Kent continues to provide serious coverage of serious legal stories, I feel I must alert our readers to a story from the business world that spells the end for one of the most fabled criminal defense theories of modern times.

Some here are old enough to remember that in November 1978, former police officer and San Francisco City Council member Dan White shot and killed  Mayor George Moscone and openly gay Councilman Harvey Milk.  White was charged with premeditated murder, but his lawyers miraculously convinced the jury to convict him only of manslaughter.  The theory that brought about this result became an instant icon, of sorts, with the defense bar, and was even noted by Justice Scalia years later in the oral argument in United States v. Gonzalez-Lopez (concerning the right to counsel).

Today, alas, the foundation of the theory passed into history.  The Wall Street Journal has the woeful story. 

 R.I.P.

 

 

The Wall Street Journal continues its coverage on the problems of overcriminalization and overfederalization.  Gary Fields and John Emshwiller have this article today, focusing on the mens rea problem, the state of mind required before a forbidden act is considered a crime.  They highlight the plight of Lawrence Lewis, who received a criminal conviction for diverting a backed-up sewage system to a drain he believed, mistakenly, led to the city's sewage treatment system.

The mens rea problem is also discussed in CJLF's recent brief in the Stolen Valor Act case.  We urge the Court, among other things, to interpret the statute as applying only to knowing falsehoods, and we quote the classic opinion by Justice Jackson:

"Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil.⁹ As the state codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation." Morissette v. United States, 342 U. S. 246, 251-252 (1952).

Footnote 9 quotes Justice Holmes, "Even a dog distinguishes between being stumbled over and being kicked."

The mens rea element is important for two reasons.  The first, as the article notes, is to avoid punishing and stigmatizing as criminals people such as Mr. Lewis who simply made a mistake.  The second, and also important, is to avoid diluting the moral force of the criminal law.  The stigma that rightly attaches to being a criminal needs to be reserved for people who make a choice to do evil.  If it is not so reserved, it is in danger of losing that force.

And now, for something completely different, the term mens rea appears in the first paragraph of a front-page story in a newspaper not specifically for lawyers.

Gary Fields and John Emshwiller have this story in the WSJ on watering down of the criminal intent requirements in federal criminal laws.  Their lead horror story is a Native Alaskan trapper charged with a crime for selling sea otters.  The sale would have been perfectly legal if the buyer were another Native Alaskan but, unknown to the seller, he was not.

Declining mens rea requirements are compounded by overfederalization and overcriminalization.

The criminal law draws its moral force from a societal consensus on the wrongness of the conduct.  Expanding criminal law beyond inherently wrong acts such as robbery and murder into regulatory matters needs to be done carefully.  As the story illustrates, Congress has been astonishingly sloppy at times.

F. James Sensenbrenner, a Wisconsin Republican and chairman of the House crime subcommittee, said he wants to clean up the definition of criminal intent as part of a broader revamp of the criminal-justice system. There are crimes scattered among 42 of the 51 titles of the federal code, with varying standards of criminal intent. Still others are set by court decisions.

"How the definition of mens rea is applied is going to be one of the more difficult areas to figure out a way to fix," he said.

Q:  When is a pervert not a pervert?

A:  When he says God made him do it.

That about sums it up for the defense in the notorious, and now happily over with, trial of Warren Jeffs.  Jeffs, 55, was the head of a sect (implausibly) claiming to be an offshoot of the Mormon Church.  Part of the religious "duty" incumbent on Mr. Jeffs, as church leader, was to "marry" what he referred to as "child brides."

In the language of normal people, what that means is that he picked out little girls to rape.  Today, he got a life sentence plus 20 years for raping two of them, one aged 15 and the other 12.  The story is here.

I'm going to stay far away from making any general comments about religion.  I will say that, like anything else, it can be abused and distorted.  We see this all the time in the death penalty debate, where religious hucksters like Sister Prejean cloak themselves in sanctimony to look down upon the Less Enlightened of us  --  admittedly a big majority  -- who support capital punishment.  Hey Sister, where's that ever-popular-with-liberals separation of church and state when you need it?

The distortion of religion in the Jeffs case is too blatant to need discussion, but it's not too blatant for the defense to claim that the indictment was religious "persecution:"

Jeffs claimed his religious rights were being violated. Representing himself after burning through seven high-powered attorneys, he routinely interrupted the proceedings and chose to stand silently in front of jurors for nearly half an hour during his closing arguments. He called just one defense witness, a church elder who read from Mormon scripture.

For the second time today, I have occasion to give thanks that I made my living as a thoroughly secular prosecutor.   

We all recall the Jaycee Dugard case, in which a previously convicted, but paroled, child sexual abuser kidnapped an 11 year-old girl and kept her chained in a backyard shack where he raped her for the next 18 years.

The rapist's name is Phillip Garrido, and the question is why he was ever out on parole to begin with.  Here's the answer, from an AP report:

The report says Garrido should not have been freed from prison in 1988, where he was serving a 50-year federal sentence and a five-years-to-life Nevada state sentence for a previous kidnapping and rape. [El Dorado District Attorney Vern] Pierson said the parole system relied too heavily on psychiatric advice in determining Garrido's suitability for parole.

"The failure and inadequacies of the psychiatric profession were highlighted by Phillip Garrido and his manipulation of them to his advantage," Pierson wrote.

After Garrido nabbed Dugard in 1991, Pierson said federal and state parole agents failed to investigate his history of sexual crimes and instead relied on reports from psychiatrists. This led to agents missing numerous warning signs over dozens of visits, allowing Garrido to continue holding Dugard and seeking other victims.

It would be unfair, oversold and incorrect to say that the practice of psychiatry is the midwife of crime.  But when time and again we see leniency granted on the basis, not of the criminal's demonstrated conduct in the outside world, but on gushing psychiatric reports about his supposed wonderfulness in the controlled environment of prison, you can see why I'm tempted.

P.S.  This is something to be borne in mind as we assess those soothing assurances that the thousands of criminals to be released under Plata will all be, dontcha know, harmless. 

For all of Norway's laxity in the punishment of murder, it does appear they have a reasonably sensible definition of the insanity defense.  Ian MacDougall reports for AP that it is unlikely Breivik will qualify "because he appears to have been in control of his actions, the head of the panel that will review his psychiatric evaluation told The Associated Press."

The July 22 attacks were so carefully planned and executed that it would be difficult to argue they were the work of a delusional madman, said Dr. Tarjei Rygnestad, who heads the Norwegian Board of Forensic Medicine.

In Norway, an insanity defense requires that a defendant be in a state of psychosis while committing the crime with which he or she is charged. That means the defendant has lost contact with reality to the point that he's no longer in control of his own actions.

The circumstances of the crime should, of course, be central in determining the defendant's mental state.  Too often, though, they are brushed aside, especially by defense psychiatrists.

Reading this CNN story, you might think that the Ninth Circuit has decided that the mentally incompetent Jared Loughner can permanently refuse medication and thus avoid trial indefinitely.  In fact, the order simply provides that "during the pendency of this appeal, we continue in force the stay we entered on July 1, 2011, enjoining the Bureau of Prisons from forcibly medicating Loughner with psychotropic drugs."  (Emphasis added.)

The appeal is expedited with oral argument the week of August 29 in SF.  Extensions?  Fuhgeddaboudit.

The execution of Milton Mathis, noted in yesterday's News Scan, was carried out yesterday.  The updated AP story (same link) has details.  Even though he murdered two people and paralyzed a 15-year-old girl, Mathis actually had the gall to say this:

"The system has failed me," he said. "This is what you call a miscarriage of justice. Life is not supposed to end this way ... I just ask the Lord, when I knock at the gates, you just let me in."

Mathis's life did not end that way because of the "system."  It ended that way because of the crimes he chose to commit. The miscarriages of justice are the way Travis Brown and Daniel Hibbard's lives ended and the way Melony Almaguer must spend most of her life paralyzed.

As for his retardation claim, the U.S. Court of Appeals noted:

The evidence presented to the state trial court showed Mathis to have a low range of intelligence but all above the threshold for mental retardation. Specifically, the expert's report indicated that Mathis' full scale I.Q. was 79, his verbal I.Q. was 77 and his performance I.Q. was 85. Testing performed by a psychologist for the Texas Department of Criminal Justice after his conviction reflect different results. Those results show Mathis to have a full scale I.Q. of 62, verbal I.Q. of 65 and a performance I.Q. of 60.

It is not, however, a "mystery" how scores can vary so much, as the court said.  IQ testing depends for its validity on the subject doing his best.  All you have to do to score low, if that is the result you want, is not try hard.  On the other hand, it is not possible to fake being smarter than you really are unless you cheat, which a person on the low end of the scale is not capable of doing.  So the higher score is the more reliable one.  Mathis's 79 score precludes his claim of retardation.

Deborah Sontag at the New York Times has an article titled A Schizophrenic, a Slain Work, and Troubling Questions about the murder of Stephanie Moulton by Deshawn James Chappell.  The article raises a number of issues about this sad tale of the well-intentioned and devoted mental health worker who is killed by a man with severe mental illness.  And one of those issues is the continued reduction of long-term psychiatric beds at state hospitals:

In the cuts being debated now, Mr. Patrick proposes to eliminate roughly a quarter of the 626 long-term care beds left in the state's psychiatric hospital system. This unnerves many mental health professionals.

A true measure of a mature and principled society is how well it cares for the truly sick.  Closing long-term psychiatric beds is a tragedy because not only does it deprive necessary care for those who need it but also because it leads to more cases like this sorrowful one. 

Ask most folks what a psychopath is and they will answer along the lines of "cold blooded" and "wicked to the core."  Movies like Silence of the Lambs have firmly embedded the idea of the psychopath as a highly dangerous and unrepentant offender within our cultural consciousness.  But as a scientific construct, what is psychopathy?   And should psychopaths be treated differently by the law?

The concept of psychopathy goes back to the writings of psychiatrist J.C. Prichard and his colleagues of the moral psychiatry movement during the early 19th century.  The idea that some people are fundamentally mentally unsound in matters related to moral decision making despite no other signs of mental illness is nothing new under the sun.  But the idea of psychopathy as a mental disorder has made a comeback of sorts, due largely to the work of psychologists such as Robert Hare and his contemporaries. And it should be of no surprise that given the strong penchant of psychopaths for antisocial behavior, psychopathy is frequently implicated in various criminal and civil proceedings where deprivation of liberty is at stake. 

But are psychopaths so different that they are not responsible?  That idea has gained ground in recent years as a number of prominent legal scholars and moral philosophers have weighed in on the issue.  One notable view suggests that the answer to that question is "yes" insofar as it relates to severe cases of psychopathy.  Other views also take the position that substantive criminal law should seriously consider extending excuse to psychopaths due to their deficits in emotional processing. 

In a forthcoming paper in the journal Psychology, Public Policy, and Law, a colleague and I contest this view and suggest that the law should continue to exclude psychopaths from considerations of excuse.  The issue is seminal, as some excuse proponents have begun to employ the highly seductive images of neuroscience to promote their view.  

  

Two very influential behavioral science experts, Marnie Rice & Grant Harris, have a paper that was just published in the journal, Psychology, Public Policy, and Law about the effectiveness of androgen deprivation therapy with sex offenders.  Unfortunately, the paper is embargoed for most university libraries until next week, but even a glimpse of the abstract is quite revealing:

We review the effects of androgen deprivation on the sexual behavior of human males. Although eunuchs have existed in many cultures over the last 4,000 years, there is scant detailed and specific information in the historical record about castration status and sexual behavior. From the literature on modern-day eunuchs who are not sex offenders, we conclude that androgen deprivation reduces sexual desire and behavior, including sexual intercourse. Most men, especially those who did not volunteer for the treatment, experience the side effects as extremely bothersome. Androgen deprivation therapy (ADT) receives endorsements from some clinicians who treat sex offenders, and it probably reduces sexual recidivism among men who freely request the procedure, but good evidence is sorely lacking. Men who freely request and persist with ADT are probably an especially low-risk group. Little is known about the effects of sexual or violent recidivism among sex offenders who do not freely request it. Little is known about the long term effects of ADT on sexual behavior in general, and sexual recidivism in particular, or about long-term health effects. Clearly, much more research is needed before ADT has a sufficient scientific basis to be relied upon as a principal component of sex offender treatment.

Lay people often think that physical or chemical androgen therapy is the way to go with sex offenders.  But as Rice and Harris hint, we have little data to be so confident.  More importantly, low testosterone in men is strongly associated with depression and anxiety and these psychological symptoms have been linked with general criminal recidivism as well as sexual offending.  Likewise, low androgens in men is associated with numerous physical aliments, including osteoporosis, diabetes, obesity, and cardiovascular disease. This treatment modality really isn't where we should be placing our proverbial hopes on.   

Since those who appear as defendants in criminal cases are almost always factually guilty, some method has to be devised to pry them away from any actual consequences of their acts.  One of the favorites these days is to hire some Rolodex shrink who can be counted on to testify that the defendant was "suffering" from some mysterious but dreadful-sounding "syndrome." 

If you never heard of the "syndrome" before, that's because you're a Neandethal.  Plus you're not nearly as creative as the defense bar and its well-paid entourage of Professional Excuse Writers.

All this is by way of introducing today's little nugget from MSNBC, titled, " Adults Who Claim to Have ADHD?  1 in 4 May Be Faking It."

Amid what some claim is a growing epidemic of ADHD diagnoses, a study finds that almost one in four adults who show up in doctors' offices seeking treatment may be exaggerating -- or even faking -- their symptoms.

Twenty-two percent of adults in the study who claimed they suffered from attention-deficit/hyperactivity disorder tried to skew test results to make their symptoms look worse, according to a new report based on the medical records of 268 patients and published in the journal The Clinical Neuropsychologist.

For as useful as faking symptoms might be in getting ahold of some juicy drugs, it's even more useful for the now-standard defendant stunt of portraying yourself as a victim, then making the whimpering (or, if that doesn't work, snarling) demand for "compassion." 

Yesterday the Supreme Court of Idaho released its opinion in the case of State v. Windom, 2011 WL 891318. The facts of the case are gruesome and center on the murder of Judith Windom by her mentally disturbed son.  From an early age, Ethan Windom was fascinated with serial killers and death.  He was an avid follower of the thriller, American Psycho.  For years he dreamed of committing murder and finally indulged in that fantasy on January 24, 2007, brutally killing his mother while she slept.  At trial for murder, the inevitable question arose: what's wrong with Ethan?  Four mental health experts all came to different conclusions and Ethan was convicted of Murder 2nd.  At sentencing the trial judge had to determine what was the appropriate sentence for a crime so heinous and senseless but for a defendant so young and disturbed.   The trial court elected for a fixed life term.

Legal scholars spend lots of time debating the definition and applicability of the various culpable mental states.  There's even an intriguing new paper out that suggests the influential Model Penal Code formulations might be wrong. But sometimes what constitutes depravity is just so obvious:

In 1986, appellant Paulos, f/k/a Paul Lindberg, was convicted of second-degree murder for strangling a woman to death after a sexual encounter. State v. Lindberg, 408 N.W.2d 589, 591-92 (Minn.App.1987). After killing the woman, Paulos put a cigarette lighter in her rectum and her keys in her vagina. Id. at 591. He spray painted her body green, wrapped her body in a rug, placed her body in his car, drove to a parking lot, and dumped her body beneath two trailers parked in the lot.

Paulos v. Ludeman, 2011 WL 691863 (Minn.App., 2011) 

For reasons that are unclear in the opinion, Paulos didn't serve a long prison term for this heinous crime and the state had him civilly committed 1997.  Seeking release in 2009, Paulos claimed that he posed little risk to society.  The judicial appeal panel didn't agree and neither did the Court of Appeals of Minnesota.

We don't generally do celebrity gossip stories here, but once in a while the tabloids actually touch on a genuine criminal law policy question.

TMZ reports that the necklace that Lindsay Lohan allegedly pilfered is not worth the $2500 the store claims.  "The jewelers we spoke with said the fair market value ranged between $800 and $1,000."  Imagine that, a tinsel-town jeweler overpricing the tinsel.  Who would have guessed?

Now, that value would easily be grand theft in most states, and it would have been in California until fairly recently.  You see, the $400 threshold for grand theft had not been adjusted for inflation in many years.  The legislature did raise it in 2009, though, as part of a bill to try to cut down the number of people in state prison.  Petty theft is a misdemeanor punishable by, at most, a year in county jail.  Grand theft is what we call a "wobbler" in California.  It can be punished with state prison time, in which case it is a felony conviction, but the judge has discretion to impose a lesser penalty and make it a misdemeanor.

Failure to adjust the grand theft threshold for inflation is an old problem.  [Audience: How old is it?]  This problem is so old that Sir William Blackstone complained about it in 1767.