Mental case

With John Salvi found sane and Richard Rosenthal's future at stake, what does the indanity defense really mean?

by Tim Sandler

The day a jury rejected John Salvi's claim that insanity drove him to gun down two women working in Brookline abortion clinics, defense attorneys across the state ruminated on the seeming impossibility of proving that even their most mentally deranged clients should be found not guilty by reason of insanity (NGI).

Boston attorney Norman Zalkind was one of them.

"Jurors have been to some extent brainwashed by the media that there's something wrong with having a crazy person found not guilty," Zalkind said at the time. "There are people that really aren't responsible for what they do. I think Salvi was one."

And for the past two weeks, Zalkind has faced the same obstacles confronted by Salvi's lawyer, J.W. Carney Jr. Zalkind is invoking the insanity defense in the murder trial of former John Hancock executive Richard Rosenthal, who beat his wife to death with a rock at their suburban Framingham home and skewered her heart and lungs on a stick. Zalkind argues that Rosenthal's belief that his wife was inhabited by aliens led him to the brutal murder. The prosecution calls that argument a subterfuge, and portrays Rosenthal as a high-functioning adult who had abused his wife and planned the attack.

On the surface, it seems logical that anyone who committed such a monstrous crime would, at least in layman's terms, be considered insane. And though there are no hard-and-fast psychiatric definitions of insanity, there is a legal one.

In theory, to prove that Rosenthal's actions were the product of his own free will -- and not of insanity -- Middlesex County assistant DA Martin Murphy must show that Rosenthal realized what he was doing was legally and morally wrong, and was able to control his actions.

And though that may be the legal standard, experts say jurors often bring their own standards into the deliberation room -- standards that perhaps have less to do with the letter of the law than with the moral outrage the crime evokes, and with the often fallacious impression that the NGI defense is an insidious attempt by criminals and their lawyers to avoid a prison sentence.

"Even when it's appropriate, the jury won't buy it," says Jack Levin, director of the Program for the Study of Violence and Conflict at Northeastern University. "Jurors feel the same way the public feels: that is, any murderer who pleads NGI will get off, will serve a short sentence in an institution for the criminally insane, and will get out."

It's a sentiment fueled in part by the media, in part by tough-on-crime pols and prosecutors who try to make hay of the highest-profile cases by calling for the abolition of the NGI defense. Governor William Weld did just that during the Salvi trial when he appeared earlier this year on NBC's Today and proposed a new "guilty but insane" verdict: after a defendant was discharged from a high-security mental institution, he would be imprisoned.

Carney, who appeared on the show with Weld, argued then, as he does now, that Weld and like-minded politicians are ignoring a fundamental principle of the American criminal-justice system: that only criminals should be treated as criminals, and that people who are mentally incapacitated, be they retarded, senile, or insane, should be treated differently.

For all the huffing about the insanity defense, statistics show (and experts agree) that the defense is rarely used and rarely successful. Thus, changing the law, as Weld and other have proposed, would have little effect on the criminal-justice system.

One thing those prosecutors and pols don't say is that 90 percent of NGI cases are plea-bargained, which means the prosecution, the defense, and the court all simply agree the defendant is insane before the case even reaches a courtroom. It's the headline-grabbing cases, like Rosenthal's, that prosecutors most often choose to bring to trial. And more than anything else, the media attention lavished on such cases -- and the attendant grandstanding by politicians -- succeeds in leaving a lasting negative impression with the public, and, hence, with would-be jurors.

Dr. Paul Appelbaum is chairman of the psychiatry department at the UMass Medical Center and author of Almost a Revolution: Mental Health Law and the Limits of Change (Oxford University Press, 1994). He says that the more sensational the case, the less the chance that jurors will stay focused on the finer points of jurisprudence.

"Juries are less likely to award an insanity verdict in notorious cases," he says. "The more heinous the crime, the crazier the defendant has to be before an insanity verdict will come in."

Indeed, in such cases, jurors resist the idea that a defendant deserves anything less than life in prison or the death penalty. Thus, we've got "sane" serial killer David Berkowitz (a/k/a Son of Sam), who shot six people to death in New York City after he claimed to have taken demonic orders through a dog, and "sane" Milwaukee necrophiliac/cannibal Jeffrey Dahmer.

Appelbaum and others assert that myths about the insanity defense have lowered the threshold for the prosecution's burden to prove someone was not insane when he/she committed a crime.

So now, perhaps more important than scoring points in his duel with the prosecution's psychiatric experts, Zalkind must put forth a case so strong that the 13-woman, three-man Middlesex County jury stays focused on the legal aspects of the case, and abandons the popular myths about NGI.

MYTH #1: The insanity defense is commonly used.

According to Appelbaum, studies have shown that legislators and the public, when asked how frequently the insanity defense is invoked in felony cases, say it's used up to 60 percent of the time.

"In fact," Appelbaum notes, "the best research available shows the insanity defense is used in less than one percent of felony cases."

Most defense attorneys, aware of the institutional bias against NGI defendants, use the insanity defense only as a last resort. One reason: a popular prosecution tactic in NGI trials, including the Rosenthal case, is to demonstrate that the accused planned the homicide and committed it in a methodical way. The idea is to demonstrate that the defendant couldn't be insane because he or she had the mental capacity to plan an attack -- and, though that may not be a psychiatrically sound argument, it works.

"There are cases of psychotics who plan their attacks believing the voices of demons have directed them to take the life of someone," Levin says. "They're insane, but that doesn't seem to make a difference with the jury. In many cases the jury is simply too angry to consider NGI."

MYTH #2: The insanity defense is usually successful.

In his book, Before and After Hinckley: Evaluating Insanity Defense Reform (New York Guilford Press, 1993), Henry Steadman conducted the most thorough research ever done about the insanity defense in the United States.

Stedman's findings showed not only that about one percent of defendants use the insanity defense, but that only one-quarter of that one percent are actually found NGI.

In Massachusetts, there are only 46 NGI patients being held in Bridgewater State Hospital, the state's sole maximum-security psychiatric institution. Compare that to the 16,000 felons incarcerated in state prisons.

Despite those figures, most Americans continue to believe that felons in large numbers conspire with defense attorneys to avoid criminal responsibility. Why? Blame it on those rare, high-profile cases of successful insanity defenses, such as penis-pruner Lorena Bobbitt and would-be presidential assassin John Hinckley, that dominate the crime news and prompt changes in the insanity-defense laws.

The Hinckley case created what Appelbaum calls a "multi-year spasm" of laws restricting the use and definition of "not guilty by reason of insanity." Following the Hinckley verdict, eight states changed their laws so that a defendant's inability to control his or her behavior would no longer be grounds for an insanity defense. That now holds true for about half of the states in the country. Massachusetts is not among them. Yet.

MYTH #3: Defendants found not guilty by reason of insanity will quickly return to the community.

Don't tell that to John Hinckley. Hinckley remains in a maximum-security mental institution in Washington, DC. Had he been found guilty on all criminal charges against him in 1982, received the maximum sentence for each, and never been paroled, he would be back on the street by now.

"The truth is that most individuals found insane will spend a longer period in a maximum-security mental institution than they would have spent in prison had they been found guilty," says Carney, who before becoming a private defense attorney was both a prosecutor and public defender.

In Massachusetts, the Department of Corrections, which runs Bridgewater State Hospital, has no statistics readily available to compare sentences at Bridgewater to those in the state's prison system. But it's clear from statistics that the department does keep that those who have committed murder and have been found NGI are confined to Bridgewater for long periods of time; many were admitted back in the 1970s.

Under state law, after someone is committed to Bridgewater after being found NGI, a judge conducts an annual review of the case to determine whether he or she is still mentally ill and a danger to society. And, Carney says, judges don't take any chances -- particularly when it comes to murder. "It is extraordinarily unusual," he says, "when a person charged with murder and found insane is released before he is a doddering old man incapable of hurting anyone."

That's not to say that felons found NGI aren't released at some point, just as most prisoners doing time will eventually be released. But the truth, says UMass's Appelbaum, is that those released from mental institutions have a much lower rate of recidivism than those released from prison. Nationwide, the average recidivism rate for felons released from mental institutions is about 25 percent. It's about 66 percent for felons released from a penitentiary.

Despite the lack of evidence to support the common myths about the insanity defense, Americans, by and large, still see it as a threat to justice. Perhaps disillusioned by pervasive crime -- and, in some cases, the valid perception that criminals are returning to the streets from prison with alarming speed -- their sympathy for mentally ill criminals is scant.

And if, by chance, Richard Rosenthal is found NGI, it will undoubtedly renew cries for changes in the law. Levin is among those who sees such rabid reactions as wasted breath.

"It's really a false issue," he says, "and we should move on to something that's more important."

Tim Sandler can be reached at tsandler[a]phx.com.