Wednesday, November 16, 2011
I'm working with a couple of high school students on a project related to the insanity defense, and today I gave them Russell D. Covey's terrific new article, Temporary Insanity: The Strange Life and Times of the Perfect Defense to read. The focus of their project is on how mental disorders truly impact people and their judgment and under what circumstances a defendant should be found not guilty by reason of insanity. Based upon Professor Covey's article, we had an interesting discussion about how the legal system should treat those claiming insanity and how it should treat those claiming temporary insanity.
In a certain sense, it seems easier for judges or jurors to put themselves into the shoes of a person pleading temporary insanity. Sure, the judge/juror might never have been molested as a child, but if one of the children allegedly molested by Jerry Sandusky killed him and claimed temporary insanity, it wouldn't be too difficult for the judge/juror to intuit what was basically going through the defendant's head even if the judge/juror could never truly grasp the depth and the breadth of the psychological damage done (more on this case tomorrow). And a judge/juror may never have fought in a war, but if a recent veteran charged with murder claims temporary insanity/PTSD, that judge/juror probably has a sense that war is hell (on the soldier), even if the magnitude of the soldier's suffering cannot be fully grasped. Conversely, unless a judge/juror has a history of schizophrenia, borderline personality disorder, etc. in his family, he likely has no idea what was going through the head of a defendant claiming a traditional insanity defense based upon one of these conditions.
This, of course, is not a problem unique to the insanity defense. To serve as a juror in a capital case, you must be death-qualified. But being death-qualified doesn't mean that you need any special education, training, or experience to decide between life (in prison) and death; it simply means that you must be willing to impose the death penalty based upon balancing aggravating and mitigating factors. Let's say that you're a capital juror and the defendant/murder was physically abused as a child. Let's say that she was raped. If you haven't suffered from a history or violence, would you have the ability to get inside the head of the defendant, to decide whether her life should be spared?
"Monster," of course, is the movie about Aileen Wuornos, the abused Florida woman who was dubbed America's first female serial killer. I would dispute the notion of Wuornos being a serial killer, a point poignantly made by Nick Broomfield in his documentary, "Aileen Wuornos: The Selling of a Serial Killer." I highly recommend both that doc and Broomfield's follow-up, "Aileen: Life and Death of a Serial Killer."
The site of Aileen tied up, bloody, of her attacker pouring rubbing alcohol into the gash on her head, raping her — it’s absolutely horrific. And after she shoots him to stop the attack, watching her shriek, keen, slam the hood of the car is one of the rawest I’ve ever seen on film, and perhaps the only performances I’ve seen that gave me an actual sense of what it would feel like to kill another person.
This alone proves the powerful intersection between pop culture and the law and underscores the importance of Rosenberg's project. In an earlier post, Rosenberg wrote about "The Green Mile." Well, in Blackmon v. State, 7 So.3d 397 (Ala.Crim.App. 2005), during death-qualification, two juror were struck because they indicated that "The Green Mile" had an impact on how they view the death penalty. Fictional films might distort factual reality. They might distort legal reality. They might simplify complex issues. But they matter. Indeed, Rosenberg's point is echoed by Abbe Smith in The "Monster" in All of Us: When Victims Become Perpetrators, 38 Suffolk U. L. Rev. 367 (2005).
Later, Rosenberg writes
I have no idea how I could bring myself to cause the death of another person, even if that death is sanctioned by the state, without suffering suffering extreme trauma....
This is an important point, and one which Werner Herzog, one of my favorite documentary filmmakers apparently explores in his new film, "Into The Abyss" by focusing upon the plight of a former death house captain. I certainly think that the effect of executions on the executioner is a topic that has received insufficient attention, but what about the effect on jurors who sentence defendants to death?
Based upon the work of the Innocence Project, most people know that many convictions are houses of cards built on faulty eyewitness identifications and coerced confessions. And while many might not be aware of the current public defender crisis, surely it has seeped into the public consciousness that impoverished young defendants with neophyte lawyers are receiving something less than the Platonic ideal of representation. A juror is death-qualified when he is willing to impose the death penalty. But is that juror qualified to deal with the consequences of his decision to impose death? What if a witness for the prosecution recants his testimony? What if an alibi witness appears? What if DNA evidence points to another suspect? What if this evidence comes after the execution? Is the juror qualified to deal with his choice to impose death? Is anyone qualified?