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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