Monday, 8 December 2014

Is the murderer, Magnotta insane or not? (Part 1)                        

When I was studying criminology at the University of Toronto for five years in the early 1970s, one of the six courses I took was abnormal psychology. That course was nine months in length. Years later, I was a group counsellor for a year working with mentally ill prisoners. I am not a psychologist or a psychiatrist but I do have a fair understanding of various forms of mental illnesses.

This two-part series is about a heinous murder that took place in Canada a few years ago. The murderer is currently being tried for that crime. Part 1 of this serious has been presented to you for the purpose of giving you some background information about insanity and faking insanity to escape the consequences that follows a criminal act. Part 2 will describe in detail what the murderer did to his victim after he murdered him and how his lawyer told the jury that his client was insane when he committed the murder and what prosecutor’s psychiatric doctor’s witness’ response was when he testified that the murderer was sane all the time.

In order to understand the evidence of the psychologists and psychiatrists that were testifying before this murderer’s jury, Part 1 of this series is a primer on insanity. I have tried to make it easy to follow.

Since the last third of the last century; there has been collaboration between abnormal psychology and criminal law. In recent years there has been a shift in the focus of clinical psychology and psychiatry from investigating neurotic and schizophrenic conditions to studying legal issues generally and criminal behavior specifically.

There is a problem facing juries when confronted with opposite views of psychologists and psychiatrists when hearing their contrary testimony. Further, jurors have to follow the instructions of the judges who may have only understood a little of what they themselves heard in the testimony of these experts especially when the testimony they heard was very complex. 

Then to expect ordinary lay persons in which some may not have passed out of high school to understand fully what these experts were saying and then decide which testimony they should accept is pushing the boundaries of criminal judgment to its extremities. And all this occurs after the jurors have suffered from a long trial in which they have been shockingly subjected to gruesome graphic photos and heard the same kind of evidence battering their eardrums.

The real task of the psychologist and psychiatrist examining a suspect before trial is to determine the truth of his mental condition at the time the crime was committed. That isn’t always an easy task because the examination being conducted could be months or even years after the crime was committed. The suspect might be insane or sane when the crime was committed but which is he now during the examination, insane or sane?

When someone commits a horrific, inexplicable crime, we naturally wonder whether he’s mentally ill after all because who but a crazy person could do such a thing? But when a killer acts crazy after his arrest, we also might wonder whether he’s preparing a not-guilty defence by reason of insanity for his trial.

Experts have been debating that question or sanity or insanity since the creation of the insanity defense in the mid-19th century. To avoid the noose or the guillotine, criminals of that era would fake symptoms from the then-emerging field of psychology. It soon became a cat-and-mouse game with criminals acting out their understanding of insane behaviors, and alienists (the era’s term for psychologists) who would write studies on how to detect those “malingerers.” Most techniques relied on was by the experience and powers of observation of the examining psychologists and psychiatrists when they were looking for inconsistencies in symptoms being shown to them.

The first step that an examining psychologist or psychiatrist is to do is conduct a thorough review of the suspect’s history. Mental illness doesn’t develop overnight, so it’s important to know if the person has been hospitalized or treated for similar symptoms in the past. The investigators also review the crime-scene report. If the suspect has hidden the weapon, washed off his fingerprints, or taken other steps to elude the police, it’s a sign of clear thinking—not insanity.

Then comes one or more long, rambling interviews—the longer the better, because after a few hours, some suspects begin to lose track of their symptoms or grow weary of the con. Most malingerers don’t read the psychological literature,” says Tali Walters, a Boston forensic psychologist, so they present a Hollywood version of how a crazy person acts. Unfortunately, what they see on the screen isn’t always a true version of insanity. It is make-believe insanity, just as the suspect is trying to do.

For example, some suspects claim to hear voices in their head that they’re powerless to resist, a commonly dramatized depiction of schizophrenia. Unlike what we see in the movies, most auditory hallucinations are benign; they seem to originate outside the head (not inside), and rarely presumed by those really sick to come from aliens or other non-human beings. Only a small percentage are really command hallucinations and even fewer command them to commit a violent act. Furthermore, genuine schizophrenics find strategies to ignore these voices, or even make peace with them. They learn that certain acts such as muting the voices; while others, who are watching TV stories involving insanity encourage the voices they can’t seem to resist by commenting on what they are saying.

So if a suspect says he feels compelled to obey alien voices inside his head telling him to kill, there’s a good chance he’s feigning. Case in point: David Berkowitz, aka “Son of Sam,” who shot six people in a three-year murder spree in New York. Berkowitz claimed that he was following the commands of a demon-possessed Labrador retriever, but later admitted it was a hoax. He was easily found out to be faking because a dog is not a typical auditory] hallucination.

Malingerers often exaggerate their symptoms and ignore common, subtle signs such as the blunting of a mentally ill patient’s emotions. Some fakers say one thing and do another. They might feign confusion to the psychiatrist but later converse easily with cell-mates, or claim to be paranoid while sitting at ease. Some combine symptoms from different conditions, such as hallucinations of schizophrenia and obscene outbursts found in Tourette’s syndrome. The forensic psychologist may suggest an outrageous delusion during the interview, such as, “Do you believe cars are part of an organized religion?” Fakers might latch onto this bait and perhaps even run with it. Real schizophrenics would say no.

At some point the examiner leads the discussion to the crime which sets another trip-wire for deceivers. No matter how delusional the suspect claims to be, the crime scene must fit the hallucinations he describes. It’s hard to believe a suspect who says he was slashing wildly with a kitchen knife against an army of aliens when he actually left a single stab wound in his mother’s chest. Another clue is a cover story that conveniently mixes delusion and reality.

There are also standardized tests that trip up malingerers. A preliminary, 10-minute test, called M-FAST (Miller Forensic Assessment of Symptoms Test), presents a series 25 questions that describe phony and real symptoms. It’s almost impossible to pick the right combinations if you’re not mentally ill or a highly trained forensic psychologist. A more thorough series of questions, called SIRS (Structured Interview of Reported Symptoms) takes about an hour.

There’s even a test for faking amnesia, which is among the most common of feigned mental illnesses. Contrary to popular belief, people with amnesia don’t  completely lose their ability to remember things. So forensic psychologists give a memory test that’s so easy that even a person with amnesia could pass it. They show a series of letters, numbers, and shapes for a few seconds and then ask him to draw them on a blank sheet of paper. Even people with amnesia caused by brain damage can reproduce most of the symbols. So if a suspect deliberately draws them wrongly, the examiner knows that he is faking his illness.

On the night of September 4, 2012, the Parti Québécois won the Quebec general election, with a minority government. Party leader Pauline Marois was partway through her victory speech to her supporters, gathered at the Métropolis in downtown Montreal, when a masked man (Richard Henry Bain) approached the building and opened fire with a semi-automatic rifle, killing one stage technician and injuring another. Initial eyewitness reports claimed the rifle was an AK-47 assault rifle, which is similar in appearance to the semiautomatic CZ-858. The man opened fire, killing Denis Blanchette, a 48-year-old male stage technician. His 27-year-old colleague, Dave Courage, was critically wounded. The man then attempted to set fire to the building with a Molotov cocktail, but was quickly tackled and apprehended by Montreal police in a nearby alley. Bain is currently facing 16 charges, including one first-degree murder and three of attempted murder; the remnant charges are related to arson and weapons violations.

In several of his multiple court hearings, Bain claimed that Jesus Christ is his lawyer, but despite losing his legal aid lawyer, he is currently looking for a new lawyer as well as reading up on the Criminal Code so that he can represent himself. 

Testifying at his own bail hearing, he claimed that he had overdosed on medication on or about the time of the shooting and therefore has no memory of the shooting. He is obviously attempting to get a final verdict of not being responsible for his crimes because at the time, he was insane.

Surveys show that of the roughly 60,000 “competency to stand trial” cases in the United States, forensic psychologists have concluded that each year, anywhere from 8 percent to 17 percent of the suspects are found to be faking their mental illnesses.

Today, less than 1 percent of felony defendants raise an insanity defense, and a tiny fraction of those succeed. One good reason for not going for that defence is when the crimes the defendant is being charged with is so minor, he would be released from prison much sooner that when he is (if ever) released from a hospital for the insane.

What constitutes insanity? 

Section 16 (1) in the Criminal Code of Canada describes the defence of insanity when it states:  No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.  

The term, insanity is a social and legal term rather than a medical one and someone suffering from insanity is presumed to be rendered incapable of fully understanding his or her actions at the time that person committed his crime. A jury cannot properly return a verdict of guilty of the offence charged if, upon the whole evidence, from whichever side it comes, (prosecution or defence) they have a reasonable doubt whether, at the time of the murder, the defendant was mentally incompetent (insane, severely retarded or brain injured) to distinguish between right and wrong, or to understand the nature of the act he was committing. However, if the jury concludes that the defendant was mentally competent at the time of the murder, then he can be convicted of the crime. 

The law as it was laid down in the famous McNaghten Case (an English case where that man attempted to shoot Queen Victoria) states that in order to establish the defence of insanity, that defence must be clearly proven to the satisfaction of the jury. It has always been for more than a hundred years, the law in England and that it has been so presented as the law re the defence of insanity to juries almost everywhere in English-speaking countries.

First, it must be determined whether or not upon the evidence bearing upon the actual perpetration of the offence, the defendant can be found ‘beyond reasonable doubt, guilty. Obviously if it is established that he didn’t commit the crime, then there is no need to raise the defence of insanity. If on the other hand, it is established that he did commit the crime, either by evidence submitted or by a plea of guilty, it is incumbent upon the defendant in order to negative his responsibility for an act that is criminal, to prove to the satisfaction of the jury or the judge without a jury that he was insane at the time he committed the act and not just weird.

A jury being instructed by the trial judge that a finding of insanity would only be proper if they should be satisfied to the exclusion of all reasonable doubt, would in fact be an improper instruction. The proper instruction would be a decision arrived based upon a substantial preponderance in the weight of evidence given with respect to the defence’s evidence of insanity.

Reasonable doubt is the standard used to determine the guilt or innocence of the defendant on trial with respect to the evidence submitted that he actually committed the crime or didn’t commit the crime.  Such a decision is presumed to be arrived at by reasonably-minded jurors who have no personal animosity against the defendant. (See my lengthy article on Reasonable Doubt in my blog dated November 24, 2014)   

A jury must be provided with an explanation of the expression “reasonable doubt”.  This expression, which is composed of words commonly used in everyday speech, has a specific meaning in the legal context. The trial judge must explain to the jury that the standard of proof beyond a  reasonable  doubt  is inextricably intertwined with the presumption of innocence; the basic premise which is fundamental to all criminal trials and that the burden of proof rests on the prosecution throughout the trial and never shifts to the defendant. The lawyer for the defendant can tell the jury in his summation that the judge or the jury should give his client the benefit of reasonable doubt. The jury should be instructed by the judge that a reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. 

There is one case that took place in Canada many years ago in which a famous abortionist was definitely guilty of running an abortion clinic. However the jury found him not guilty because they believed he had the right to operate an abortion clinic even though the law in Canada at that time made it an offence for anyone to operate an abortion clinic. Every time he was charged, the juries found him not guilty. Finally the government stopped charging him.

A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than simply proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty.  Such a standard of proof is impossibly high.  Certain references to the required standard of proof should be avoided. 

A reasonable doubt should not be described as an ordinary expression which has no special meaning in the criminal law context, and jurors should not be invited to apply to the determination of guilt in a criminal trial the same standard of proof that they would apply to the decisions they are required to make in their everyday lives, or even to the most important of these decisions. Nor is it helpful to describe proof beyond a reasonable doubt simply as proof to a “moral certainty”. As well, the word “doubt” should not be qualified other than by way of the adjective “reasonable”.  To instruct a jury that a “reasonable doubt” is a “haunting” doubt, a “substantial” doubt or a “serious” doubt may have the effect of misleading the jury. 

Lastly, it is only after proper instructions have been given as to the meaning of the expression “beyond a reasonable doubt” that jurors may be advised that they can convict if they are “certain” or “sure” that the defendant is guilty or acquit if they are “certain” or “sure” that he is innocent. The model charge set out in the reasons may be useful but any charge which is consistent with these principles will suffice regardless of the particular words used by the trial judge.

Preponderance of the weight of the evidence is the standard used in civil cases but in criminal trials, it is the standard only used by the jury in determining whether or not the defendant was incompetent in mind when he committed the crime. Simply put, it is like placing the evidence and testimony on a scale and weighing them. If the scale tips in favour of the defendant, then the jury must declare that he is not guilty by reason of a mental defect such as insanity.

One of the common explanations of insanity raised in trials is schizophrenia. This is a descriptive term for a group of psychotic disorders characterized by gross distortions of reality, withdrawal from social interaction and the disorganization and fragmentation of perception, thought and emotion. Often schizophrenia develops slowly and many times, beginning in childhood. A schizophrenic may have a gradual disinterest in his surrounding world, a desire to be reclusive, and may suffer from constant daydreaming. 

A schizophrenic may be unable to cope with the great mass of incoming sensory information to which he is exposed. For many schizophrenics, they suffer from delusions that are beliefs that they have maintained despite their logical absurdity or objective evidence showing that they lack any foundation in reality. They often hallucinate without any stimuli bringing on the hallucinations. Thus he may hear voices telling him what to do. Sometimes these voices are imagined friends or enemies who he is afraid of and who is persecuting him. Sometimes schizophrenics experience extreme excitement and may harm themselves or others. 

Despite extensive research learning, on schizophrenia, the causes aren’t quite clear. There can be psychological cases such as faulty learning processes while in the early stages of childhood, or biological factors such as biochemical or neurophysiological processes in the defendant’s brain. 

Researchers in 2010 in the European Union began attempting to unravel the causes of schizophrenia and related psychotic disorders by examining the role that genes and different environments play in the onset of these conditions. Epidemiologists, psychologists, psychiatrists, neuroscientists, pharmacologists, biostatisticians, and geneticists all played a role in this unique large-scale project.  Their findings will be published in 2015. 

Researchers from the Washington University School of Medicine analyzed the DNA of 4,000 people who were previously diagnosed with schizophrenia. After their analysis, they concluded that what we have traditionally considered to be one disorder may in fact be eight separate, distinct genetic disorders. Furthermore, the researchers suggested that these eight different disorders can combine into clusters, each of which may carry different risk profiles for schizophrenia. In some patients with hallucinations or delusions, for example, the researchers matched distinct genetic features to patients’ symptoms, demonstrating that specific genetic variations interacted to create a 95 percent certainty of schizophrenia. This means that a person can be born a schizophrenic but its onset doesn’t occur until they are older.

What I believe cannot be done is for doctors to explain just how far the symptoms of schizophrenia has affected the minds of schizophrenics’ ability to decide what the nature and quality of the act or omission or of knowing that what they did was wrong.  

I hope that this primer on insanity will assist you in understanding what was being presented by the psychologists and psychiatrists at Luca Magnotta’s trial for murder.

In Part 2, I will tell you of the terrible heinous crime committed in Canada I referred to at the beginning of this article. This killer is on trial for murder for killing and butchering his victim and video-taping the crime and placing it on the internet. During his trial, his lawyer argued that his client was insane when he committed the crime. The prosecutor on the other hand argued that he was sane when he committed the crime. One of them is wrong but which one is wrong? 

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