The 11 men and one woman in the jury box avoided the intense stare of the young man sitting in the dock. As the Crown Attorney read his confession, Bruce Hamill’s expression never changed. The court heard how on a gloomy March morning he waited in the shadows of an Ottawa schoolyard for the caretaker, Betty Wentzlaff, his 58-year-old neighbor. When she started to climb the steps the 21-year-old grabbed her and plunged his knife 36 times into her stomach and abdomen. Afterward he felt like buying some potato chips. “She made my mother mad,” he told police. “She was mean, rude and very insulting.”
No one doubted that Hamill had, as Crown Attorney Andrejs Berzins put it, “some emotional problems.” On his lawyer Scott Milloy’s advice, Hamill pleaded not guilty to first degree murder by reason of insanity, successfully shifting the focus of the case from whether he had murdered Betty Wentzlaff to whether he had known what he was doing while he murdered her. During the week-long trial in January, six psychiatrists armed with plastic brains and medical opinions took the stand to argue Hamill’s criminal responsibility.
It is called the battle of the experts and the participants—lawyers, judges, doctors
and jury—agree that no one wins. The practice of pitting one doctor against another in court—and making lawyers, judges and juries muddle through their medical lingo—seems to satisfy no one, least of all the experts, who get pulled apart on the stand trying to fit psychiatric opinion into a legal straitjacket. The opposition lawyer’s task is to demean the expert witness, says forensic psychiatrist Selwyn Smith, who testified in the Hamill trial. “If you’re used to this procedure you don’t take it personally. His job is to break down the thrust of your evidence.” In two reports now before parliament, the Law Reform Commission of Canada concludes that oral medical testimony is “time-consuming and expensive and should be avoided wherever possible.” But it’s more than a matter of time and money. Critics of the legal system wonder whether justice can be served when a scientific opinion can be bought, then tailored or obscured for the defense or prosecution.
In the Hamill case, the four doctors for the defense did agree that Hamill suffered from an explosive personality disorder and damage to the temporal lobe of the brain, the part that controls emotion. But whether that disorder sparked Hamill’s
crime was another question. Smith said it had, another psychiatrist thought the accused had suffered a seizure, and a neurologist argued there was no way of proving either. The two psychiatrists for the prosecution didn’t even buy the temporal lobe theory. One of them said Hamill simply had “a case of fast fists” and that his reasons for the murder were maybe no more peculiar than any motive for killing.
As usual, the experts conducted a trial within a trial and left the jury virtually nothing to do but vote on which witness performed best. Those who favor the adversarial system believe cross-examination will bring out the vital points and disperse all clouds of confusion. But even the lawyers become frustrated trying to sort out the grey areas of psychiatry. “I’m expected to cross-examine an expert in his own field,” says Berzins, Hamill’s prosecutor. “Yet I don’t know anything about psychiatry.” He lost the case: Hamill was found not guilty by reason of insanity.
The Law Reform Commission has been pushing for action on these issues since it presented two highly critical reports, Evidence and Mental Disorder In The Criminal Process, to parliament two years ago. So far, the federal justice department has done nothing more than set up two study groups. Presumably—since no action seems forthcoming—the groups are still grappling with the commission’s argument that the Criminal Code is “poorly organized and articulated” on the subject of mental illness. Under Section 16, offenders are considered legally insane only if they are “incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong.” But psychiatrists believe that the distinction between insanity and criminal responsibility is diagnostically irrelevant: there’s no such thing as clear-cut “insanity.” The expert witness is often expected to play both lawyer and jury when, according to the law, the 12 people in the jury box should be left to decide the defendant’s criminal responsibility.
In an attempt to salvage the role of the jury in such cases, the Law Reform Commission recommends that the question of incompetency be resolved by a board of at least three persons before the trial begins. Tanner Elton, who wrote Mental Disorder In The Criminal Process, also produced a working paper for the commission which suggests that the psychiatric community supply lists of experts from which one can be chosen at random—to get rid of bias for or against the offender once and for all. Similar systems are already under way in some parts of the United States and Europe.
Although psychiatrists admit there are some “hired guns for sale” and lawyers confess they “shop around,” both groups say bartering for expert witnesses is more subtle. Dr. Jerry Cooper, a veteran of 30 murder trials on the Toronto expert witness circuit last year, says that while all lawyers shop for opinions, psychiatrists would be crazy to sell to the highest bidder. (“After all,” he says, “most criminal cases are handled by Legal Aid—and that’s only $40 an hour in Ontario.”) And, says Smith, forensic psychiatrists value their professional reputation. “When I go into the witness box J am not arguing for either side ...
I become an advocate for my opinion.”
As psychiatrists and lawyers await word from the government about revamping the system, most agree informally about three essential changes: defining the word “expert,” specifying the nature of psychiatric reports so that there’s a standard basis for judgment in each case, and sharing all expert evidence before the trial begins. Many also agree that until the prison system can treat, instead of harbor, the mentally ill offender, psychiatrists and lawyers will be at one another’s throats, hurting the person on trial and the judicial process. Elton says that what a psychiatrist hears in the courtroom is: Can you treat him and do you want him? “He knows that if the accused is found guilty he goes into the penitentiary system and if he is found insane he gets treatment. That’s a tough choice for someone who is first and foremost a doctor.” PAULETTE BOURGEOIS
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