On the evening of July 17, 1974, Charles Decker, 23, from Massachusetts, picked up two hitchhiking girls for a joyride in his convertible. The carefree mood was soon shattered when the man unaccountably attacked the girls with a stonemason’s hammer, fracturing their skulls. Then, just as abruptly, he drove them to safety and turned himself in to the police. (He was dubbed the Crocodile Man because of a brain dysfunction that caused him to react to his environment with the uneasy viciousness of a crocodile.) At his trial two years later he successfully pleaded not guilty by reason of insanity. In a novel defence his lawyer argued that he suffered from a rare dysfunction of the limbic (lower brain) system, which, under certain circumstances, caused him to act with uncontrollable violence. Drawing on recent and only partially understood discoveries about the chemistry of the
Psychiatrists had diagnosed a necrophiliac cannibal from Texas as having an antisocial personality
brain, an expert medical witness attributed his criminal insanity to physical causes rather than traditional psychological ones. Although the trial attracted little publicity, historian André Mayer and law professor Michael Wheeler argue in their book, The Crocodile Man, that the court's decision could have broader implications for the insanity defence than more celebrated cases, like that of President Ronald Reagan's assailant, John Hinckley Jr., for instance. Mayer, 36, explained his theories to Maclean’s senior writer Gillian MacKay, who met with the author in Boston.
Maclean’s: One of the big criticisms of the insanity defence is that it has not been applied consistently. For instance, Arthur Bremer, who shot George Wallace in 1972, had much in common with John Hinckley Jr., who shot President Reagan, yet it took a jury only 90 minutes to reject Bremer's insanity plea and find him guilty.
Mayer: You can see that there was a direct class advantage in the HinckleyBremer contrast. Bremer was a ne’erdo-well from a marginal background.
Hinckley is the son of wealthy, socially prominent parents. I think it was easier to look at Hinckley and say that his crime must be an aberration. Also, of course, his parents spent half a million dollars on his defence.
Maclean’s: How important is money? Mayer: The amount of money you can
lay out makes a big difference. One of the interesting points arising out of the Crocodile Man case is that the physiological defences are even more expensive than traditional psychiatric ones, and therefore even less accessible. Any laboratory test or anything involving a neurosurgeon is going to be a lot more expensive than using a psychiatrist. Psychiatry is one of the cheapest branches of medicine.
Maclean’s: How about Patty Hearst, who pleaded insanity but was found guilty?
Mayer: In the Patty Hearst case there
was widespread feeling within the California legal community that she should not have been tried at all because she was acting under duress at the time of the bank robbery, etc. However, it seems that the district attorney was under tremendous political pressure to prosecute her. I do not know if we have had a trial in the past 100 years as political in all of its aspects as that case. Her kidnapping by the Symbionese Liberation Army was a political act, and her crimes had a political dimension. When she came to trial a lot of radicals were predicting that she would get off be-
cause she was rich, whereas her poor, black cohorts would be sent to prison. Others were particularly bothered by the spectre of the children of the rich turning against the system. So, it was political all the way. I think she probably should not have been tried. Her situation was an extension of the Stockholm syndrome* in which people who are held hostage come to identify very strongly with their captors. It seems to me that Patty Hearst had been held
*Named after an August, 1973, bank-hostage incident in Sweden when a female bank teller fell in love with one of her male captors.
prisoner for so long and subjected to such abuse that it is very hard to say with any assurance that she was acting of her own free will, even when she was standing in the bank with a gun. Maclean’s: The John Hinckley Jr. trial was also highly political in that he attempted to kill President Reagan, and yet he was acquitted on grounds of insanity. How do you explain that?
Mayer: In the Hinckley trial the strength of the defence case is indicated by the fact that they got an acquittal, even though the jury very clearly knew that there was going to be a great public outcry against it. I think the key to Hinckley’s success was that the jury felt that if he had received better psychiatric care, he would not have done it. They were probably very much affected by the fact that the psychiatrist had advised his parents to keep him out of the house, and so on. I suppose one perfectly valid definition of insanity is: would this person have committed the crime if he had received adequate care? In this case the jury undoubtedly felt that the psychiatrist had made a terrible mistake.
Maclean’s: You speculate that physiological explanations of criminal insanity will become more common in the courtroom. Why?
Mayer: Because of the rapid breakthroughs now being made in our understanding of how the brain works, particularly its biochemistry. In understanding insanity, we have seen the pendulum swing very far to both sides—to the physical side in the 19th century, to the psychological side in the 20th century. Now a sort of equilibrium is being established. In our Crocodile Man case the violence was deemed to be a direct result of physical causes. For the most part, however, we are seeing an increased belief that neither physical nor psychiatric causes by themselves explain violent behavior. The growing opinion is that some individuals have physical predispositions to criminality that may or may not develop, depending on their social situation, personal experiences, and so on.
Maclean’s: So if someone has a lesion on his brain or a kink in his chromosomes, it will not necessarily absolve him of responsibility for his actions?
Mayer: Not at all. For one thing, the scientific evidence itself is far from clearcut. All the conflicting testimony from doctors in the Decker case shows that even relatively hard science is softer than you might think when you try to pin it down in court. And for jurors, the physiological testimony will be harder to handle than traditional psychiatric evidence because it is even more technical.
Maclean’s: Some critics of the insanity defence have called for these cases to be
tried by expert tribunals rather than by juries because the evidence is so complex. Do you agree?
Mayer: No. We are going to have problems with increasingly complex and expensive defences that are incomprehensible to juries, and, in some cases, there may be a need for pretrial tribunals to thrash out the expert evidence in advance of the trial and present it to the jury in a clearer, more useful form. There are growing signs that the psychiatrists will be pushing for this as well. They would, for the most part, prefer an impartial nonadversary process to the present system in which experts have to be attacked on the witness stand. But the question is not, what is the physical condition of the defendant’s brain? The questions are, what is his degree of responsibility for his acts, and, what must we do to protect society and the rights of the individual defendant? Flawed as it is, there is really no better mechanism than a jury to weigh all those factors.
Maclean’s: In general, those nonscientijic considerations have tended to work against the insanity defence. For instance, has not all the publicity about criminals being released too quickly led juries to reject the defence?
Mayer: There is no question about it. Even people who you could tell were stark raving mad, even if you met them at a cocktail party, are being found guilty. We mentioned in our book the case of the necrophiliac cannibal in Texas who was diagnosed by psychiatrists as hav-
ing an “antisocial” personality. The jury rejected the insanity plea and found him guilty. I guess they wanted something more between him and the public than a definition of antisocial personality.
Maclean’s: Are these fears justified? Mayer: Yes. Nowadays people who successfully pleaded insanity are released from institutions much faster than those serving ordinary criminal sentences. In many jurisdictions there is little practical control over the criminally insane once they have been acquitted. Here in Massachusetts the mental hospital simply has to inform the district attorney that the patient is being released, and usually that is that. And there is no evidence to show that psychiatrists can tell when people who have committed violent acts have been cured. At the same time, I think the public perception is worse than the reality. When Hinckley was acquitted you had a lot of people saying that Hinckley could be walking the streets in 50 days. Of course there was never a chance in the world of that happening. But the fact that it was even theoretically possible made people more ready to feel that he got away with something. That damaged the credibility of the insanity defence, even though there is every reason to believe that Hinckley will be behind bars for many years to come. Maclean’s: Will there now be a backlash against the insanity defence?
Mayer: If there is another well-publicized trial involving the insanity de-
fence soon, it will be that much harder for the jury to find the defendant insane; the judge may be much tougher, and so on.
Maclean’s: How hard is it to win these cases?
Mayer: The insanity plea is really a plea of last resort. It is very hard to win. In California, for example, I believe that the success rate is about five per cent. In addition, there is a very serious stigma attached to being found criminally insane.
Maclean’s: Is there reason to hope that physical kinds of insanity will prove more susceptible to cure than psychological ones? If so, will juries be more willing to accept the defence?
Mayer: Eventually there may be cures, but not at this point. In the interim, however, I think juries may be prone, however misguidedly, to consider physical insanity more curable because it is a physical problem. This may help to reverse the current trend toward rejection of the insanity defence.
Maclean’s: Is that not somewhat dangerous in itself? For example, a big factor in Charles Decker’s suspended sentence was the possibility of a cure. Yet there has been no cure, and in fact he has had two minor scrapes with the police since then.
Mayer: While he has not been cured, his violence has been more or less controlled. At any rate, he has not beaten up any more people with hammers. Even though the doctor feels that his physical condition has further deteriorated, the controls he was placed under—most importantly the ban on his drinking—have prevented a recurrence of criminal violence.
Maclean’s: Could the cures or controls themselves pose any problems? I am thinking of the psychosurgery advocated by some brain surgeons to cure behavioral deviants.
Mayer: There is a lot of evidence to suggest that there is a real danger here. If you read about the use of lobotomy in the United States in the 1940s, it was then considered more appropriate to perform lobotomies on women and blacks because they were not about to use any of the higher mental functions anyway. Recently, however, there was a case of a man who went to court to prevent psychosurgery to alter his behavioral patterns, and he won. The principal question is that of informed consent, whether or not an individual who has been diagnosed as insane knows what he is doing when he authorizes drastic medical treatment. And we are talking about individuals who do not, on the whole, have a lot of people on their side. There are not many powerful groups or even family members who are going to take risks to defend the rights of the criminally insane.^
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