Holmes: Why the Prosecution is Waiting to Decide Whether to Seek the Death Penalty

August 4, 2012

James Eagan Holmes has been charged with 24 counts of Murder in the First Degree and 116 counts of attempted murder for killing 12 people and wounding 58 during a shooting spree inside a movie theater at the midnight showing of the new Batman film, Dark Knight Rising.

Facts are difficult to come by because the Court “has issued a gag order on lawyers and law enforcement, sealing the court file and barring the University of Colorado, Denver from releasing public records relating to Holmes’ year there as a neuroscience graduate student.”

I have written two articles about the case here and here reviewing the potential civil liability of the University of Colorado to the victims of the shooting spree for the alleged failure of its employees, psychiatrist Dr. Lynne Fenton and the members of the university’s threat assessment team to warn the police about a possible threat to harm people that Mr. Holmes may have expressed to Dr. Fenton on or about the day that he formally withdrew in early June as a student in a Ph.D. program in neuroscience.

Probably due to the Court’s gag order, the school has not yet disclosed the specifics of Mr. Holmes’s statement to Dr. Fenton. All that we know so far is that she attempted to convene the mental health clinic’s threat assessment team to review what he said, but the team declined to do so because he had withdrawn from the school.

As I explained in my two articles, given the restrictive and limiting language in the Colorado statute, I believe it is unlikely that the university will be held liable to the victims of the shooting for failing to warn the police about Mr. Holmes. We will have to wait and see what Mr. Holmes said to Dr. Fenton before we can definitively wrap up this discussion.

Now I want to discuss a different subject in the case; namely, the death penalty. The prosecution has charged Mr. Holmes with two murder counts per homicide victim. The two charges contain different elements and basically allege two different ways to commit the same offense. CBS News explains:

Holmes is facing two separate charges for each person killed or injured. The second charge for each alleges that in killing or injuring, Holmes evidenced “an attitude of universal malice manifesting extreme indifference to the value of human life generally.”

The prosecution announced shortly after filing charges against Mr. Holmes, that it has not yet decided whether it will seek the death penalty, if Mr. Holmes is convicted of murder.

Translated into the language we speak, that means it is waiting for the defense to complete its mitigation investigation and submit its report to the prosecution to consider in determining whether to file a notice that it will seek the death penalty.

Mitigation evidence is any evidence about the defendant or the crime he committed that in fairness or in mercy calls for a sentence of less than death.

Mr. Holmes appears to suffer from a serious mental illness, possibly a type of schizophrenia. The defense likely has assembled a team of mental health experts who are testing and evaluating his competency to stand trial and well as his mental functioning. No doubt they have been reaching far back into his life collecting all existing school, medical and mental health records.

Mitigation investigation has developed into an art form as well as a necessary and highly specialized skill over the course of the past 30 years. The most common reason for appellate court reversals of death sentences has been ineffective assistance of defense counsel for failing to conduct a thorough mitigation investigation.

A diagnosis of schizophrenia would be powerful mitigating evidence, even if it did not establish legal insanity, because schizophrenia is a debilitating mental disease over which a person has little or no control. Therefore, traditional arguments for the death penalty that are based on the idea of holding people accountable for their actions by sentencing them to death, lose power in the face of evidence that the person is delusional, not like others, and incapable of making responsible decisions on a regular basis. Most people recognize that there is something fundamentally unfair about sentencing someone to death who lacked the capacity to make rational decisions.

Mr. Holmes may also satisfy the test for legal insanity. That is, that he suffers from a mental disease or defect such that he cannot distinguish between right and wrong and conform his conduct to the requirements of law. Insanity is another mitigating factor.

Regardless of his mental condition, however, he committed horrific acts that required sufficient capacity to plan and carry out a moderately complicated scheme.

When the prosecution receives the defense mitigation report, it will submit it to its own panel of mental health experts for review and comment.

Eventually, both sides will meet and engage in serious discussions regarding whether a mentally ill man should be executed or spend the rest of his life in prison without possibility of parole.

Whether the prosecution ultimately decides to file the notice that it will seek the death penalty will depend on the outcome of those discussions and the thoroughness and quality of the defense mitigation report.

Is Anders Behring Breivik Insane?

May 8, 2012


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Image by Oslo Politidistrikt’s Photostream

I. Introduction

Anders Behring Breivik has admitted to killing 77 people in Norway on July 22, 2011. He detonated a home-made fertilizer bomb that he placed in a parked vehicle next to several government buildings in downtown Oslo killing 8 people. Then he took a ferry to an island where he shot and killed 69 people, mostly teenagers, at a camp operated by the Worker’s Youth League of Norway’s Labour Party. He said he deliberately killed all of these people to protect the white race from multicultural infection by immigrants, principally Muslims.

He is on trial and the legal issue the court must decide is whether he was insane at the time of the offense.

If the court determines that he was insane, he will be placed in a secure mental health facility for an indeterminate period of time, subject to periodic reviews of his mental health to determine if he is safe to be released.

If the court determines that he is not insane, he will be sentenced to prison for a period of not more than 21 years. However, that sentence may be extended in 5 year increments, until such time as he is deemed safe to be released.

In neither case will he likely be released.

Norway does not have a death penalty.

Wkipedia reports:

Breivik was diagnosed with paranoid schizophrenia by the court-appointed psychiatrists. According to their report, Breivik acted compulsively based on a delusional thought universe. Among other things, he alluded to himself as a future regent of Norway pending a takeover by a Templar-like organization. Imagining himself as regent, his ideas included organizing Norwegians in reservations and using them in breeding projects. Other psychiatrists disagree that he is psychotic or schizophrenic, and on 13 January 2012, after much public pressure, the Oslo district court ordered a second expert panel to evaluate Breivik’s mental state. On 10 April 2012 the second psychiatric evaluation was published with the conclusion that Breivik was not psychotic during the attacks and he was not psychotic during their evaluation; rather he is an extreme narcissist.

(footnotes omitted)

Breivik claims he is not insane. He insists that he should be acquitted and released or convicted and sentenced to death.

To get a sense of his mental state, what he was thinking, and why he did what he did, please read the Wikipedia day-by-day trial summary of his five day testimony and the day-by-day trial coverage by the BBC.

(Caution: His testimony is graphic, chilling, and possibly disorienting)

Insanity is a legal definition and, therefore, a creature of legislative invention. It is not a recognized mental illness. Whether a person is insane when they commit a crime, depends on the statutory definition in effect in the jurisdiction where the crime was committed.

II. The United States

Several rules have been applied in the United States, although today, the M’Naughten test prevails in most jurisdictions.

A. M’Naughten Test

A majority of the states in the United States follow the M’Naughten Rule, which is based on a common law English case and requires proof of two elements, a cognitive and a volitional element:

Whether at the time that he committed the offense, the defendant

1. Was suffering from a mental disease or defect, such that he could not distinguish between right and wrong, (the cognitive element) and

2.. Conform his conduct to the requirements of law (the volitional element).

I do not believe there is any question that Breivik would be found sane in a jurisdiction applying the M’Naughten Rule because, regardless whether he was suffering from a mental disease or defect, he has admitted that he knew killing was wrong.

B. Irresistible Impulse Test

The irresistible-impulse test is a modification of the M’Naughten Test that retains the first prong (i.e., suffering from a mental disease or defect) but no longer requires that the defendant be unable to tell right from wrong, if, due to an irresistible impulse, he is unable to conform his conduct to the requirements of law. In other words, although he can distinguish between right and wrong, his mental illness eliminates his ability to choose how to act and his crime is the sole product of his mental illness. Alabama was the first state to adopt it in 1887.

C. Durham Test

The Durham test, which was developed in the 1950s, is similar to the irresistible impulse test. Under this test, a defendant is insane, if his crime was the product of his mental illness. That is, but for his mental illness, he would not have committed the crime.

The first team of mental health experts diagnosed Breivik as a paranoid schizophrenic acting “compulsively based on a delusional thought universe.” This diagnosis appears to satisfy both the irresistible-impulse and Durham tests.

D. Substantial Capacity Test

In 1962 a committee of judges, lawyers and professors selected by the American Law Institute developed the Model Penal Code (MPC) in an effort to rewrite and standardize the criminal laws in the United States. Since then, most states have adopted most, if not all of its provisions. Regarding the insanity defense, the Committee invented a new rule called the substantial-capacity test. According to Wikipedia,

Under the MPC standard, which represents the modern trend, a defendant is not responsible for criminal conduct “if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” The test thus takes into account both the cognitive and volitional capacity of insanity.

Since the public outrage that followed John Hinckley’s insanity acquittal for his attempted assassination of President Ronald Reagan, most jurisdictions in the United States now follow the M’Naughten test and place the burden of proving insanity on the defendant

I think Breivik would be found insane under the MPC substantial-capacity test, although there is certainly a legitimate argument that, despite his mental illness, he retained both the capacity to know that what he was doing was unlawful (the cognitive element) and the capacity or ability to decide not to do it (the volitional element). The outcome under this test ultimately depends on what constitutes “substantial” capacity.

III. Norwegian Law

Whether a defendant is insane under Norwegian law depends on whether he was psychotic while committing the crime. That means the defendant has lost contact with reality to the point that he no longer was in control of his own actions. This test eliminates the volitional element of insanity and focuses entirely on the cognitive element.

IV. The Breivik Issue

Many people have disagreed with the first psychiatric report in the Breivik case (diagnosis of paranoid schizophrenia) because his conduct demonstrated a considerable capacity and ability to premeditate over a lengthy period of time and carry-out a complicated scheme to commit mass murder. They ask whether a person who suffers from paranoid schizophrenia could do what he has admitted and boasted of doing.

Due to this concern, the court appointed a second panel to evaluate Breivik and it concluded that he was not insane. Rather than a paranoid schizophrenic, this panel concluded that he suffers from a narcissistic personality disorder, which is not a mental illness.

V. Does Breivik Suffer From Paranoid Schizophrenia With Double Bookkeeping?

While it is generally true that a person who suffers from paranoid schizophrenia would not be capable of the premeditation and planning exhibited by Breivik, there is a condition called “double bookkeeping” in which the patient lives in two worlds at the same time, the delusional world and the real world. Both worlds seem equally real to the patient who has no difficulty believing that other people do not see all that he sees or hear all that he hears. This condition was first identified by Bleuler.

If I were a judge in the Breivik case, I would be inclined to conclude that he is delusional and psychotic, particularly because he is so insistent that he is sane, as opposed to claiming insanity and attempting to act crazy to support his claim. At the same time, the vast majority of paranoid schizophrenics are incapable of his planning and actions. His ordinary or sane thinking seems narcissistic, so I am inclined to think he suffers from the relatively rare form of paranoid schizophrenia called double bookkeeping in which he suffers from both paranoid delusional thinking and a narcissistic personality disorder.

I would ask both teams of psychiatrists to comment on the possibility that I raise before making a decision, although I would be leaning toward a finding of insanity.

No matter the outcome of the debate, I doubt Breivik will ever be deemed safe to be released. However, the development of insanity law will likely be affected.

Finally, the quiet elegant dignity of the Norwegian people while according Mr. Breivik his right to due process of law is one of the most amazing and inspirational events I have ever witnessed.

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