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Disorders In The Court

THE BALTIMORE SUN

Hamlet: Was't Hamlet wrong'd Laertes? Never Hamlet:

If Hamlet from himself be ta'en away,

And when he's not himself does wrong Laertes,

Then Hamlet does it not, Hamlet denies it. Who does it, then? His madness ...- Hamlet, Act V, Scene II

Lee Boyd Malvo hopes to go where Patty Hearst, David Berkowitz, Jack Ruby and Andrea Yates could not.

Each of those other high-profile defendants pleaded insanity as a defense against grave criminal charges. Each of them failed. Instead of the hospital ward they sought, every one of them ended up in a prison cell.

Unless the 18-year-old Malvo is able to break from the norms in forensic psychiatry, he will follow them to a penitentiary, although his particular cell might well be located on Virginia's death row.

While there is much mystique and also much public skepticism about the insanity defense, what is most noteworthy is that as a defense strategy, it is neither common nor notably successful. In the words of Jonas Rappeport, a retired forensic psychiatrist from Baltimore and an eminent figure in the profession, "The plea is usually used when you ain't got anything better."

The numbers alone give any defense lawyer pause. According to national surveys, insanity is raised as a defense in only 1 percent of all criminal cases, and succeeds in only a quarter of those. If those odds aren't long enough, in the vast majority of cases in which a defendant wins with an insanity plea, the prosecution concedes to the defense's assertion that a severe mental illness was the cause of the act in question.

In other words, only rarely does an insanity defense prevail and almost never when the prosecutor stands in opposition. And in contested trials, a jury is less likely to be persuaded by an insanity defense than a judge.

That historic record helps put into perspective the enormous risk Malvo undertakes in staking his life to an insanity defense. Except in his case, it could be worse than that.

The opening statement by Craig Cooley, one of Malvo's lawyers, confirmed what had been anticipated. In pleading insanity, Malvo's defense team will make the case that the teen-ager had undergone a process of "indoctrination" by John Allen Muhammad, who was convicted of capital murder Monday. Cooley characterized Malvo as young, malleable and vulnerable and ultimately unable to resist the dynamic, powerful and ultimately murderous father-figure.

"John Muhammad changed him," Cooley told the jury in Chesapeake, Va., last week, "he indoctrinated, he made him his child soldier."

That version of what happened might be plausible and might even prove convincing. The problem for Malvo, however, is that "indoctrination" is not a concept that is generally recognized in psychiatry and, a number of experts say, has never proven to be the foundation in a defense built on insanity.

"To the best of my knowledge," says Michael Perlin, an authority on the insanity defense at New York Law School, "[indoctrination] has never been successful in an insanity defense case, although some judges have allowed defendants to try to make the case."

Most notably, Patty Hearst used "indoctrination" in her 1976 trial for bank robbery, saying that she was essentially brainwashed by her Symbionese Liberation Army captors. Her defense argued that she was a victim of the "Stockholm Syndrome," that as a result of intense stress, abuse, dependence and isolation, she ultimately identified with her captors and lost independent will and judgment. The jury did not buy it and convicted her.

The insanity defense arose out of the conviction that people should not be held accountable for acts that, because of mental impairment, were beyond their ability to understand or control. By common agreement, the present-day insanity defense in the United States originated in a killing in London in the mid-19th century. A Scottish woodcutter named Daniel M'Naghten, believing the government had selected him for special persecution, shot the secretary to Prime Minister Robert Peel, believing he was the prime minister. The secretary died.

M'Naghten was judged not guilty by reason of insanity, a verdict that so aroused the British public that the House of Lords established a basis for future insanity defenses. Known as the M'Naghten Rule, it says that an accused cannot be held criminally responsible if, at the time of committing the act, he or she was operating under such a defect of reason as to not appreciate "the nature and quality" of the act or to not perceive that it was wrong.

Most states, including Virginia, incorporate the basic tenets of the M'Naghten Rule with notable amplifications that reflect a more nuanced understanding of mental illness. In Virginia, to make the case that a defendant is "not criminally responsible," the defense must first of all prove that the accused suffered from a mental disease or defect (such as mental retardation). After that, the defense must provide evidence that at the moment of the crime, the defendant did not understand what he or she was doing, or could not distinguish between right and wrong, or was not able to control himself or herself.

Psychiatrists' handbook

The first order of business for Malvo's defense will be to establish that he was suffering from a serious mental illness. That could prove an insurmountable test for the defense because "indoctrination" is not a generally recognized psychiatric description. The word appears nowhere in the Diagnostic and Statistical Manual of Mental Disorders or, in accepted shorthand, "the DSM," the weighty manual published by the American Psychiatric Association that is the basis for almost all psychiatric diagnoses. The manual describes more than 300 mental illnesses, including schizophrenia, various psychoses, bi-polar disorders and depression - all of which usually figure in successful insanity pleas.

But "indoctrination" is not there. And that may hamper Malvo's case.

"Essentially the standard says that to offer a mental health issue as a defense, it has to be accepted by the scientific community as a legitimate diagnosis," says Raymond Patterson, a forensic psychiatrist from Prince George's County with many years experience in criminal cases, "and 'indoctrination' is not a diagnosis consistent with medicine."

In Rappeport's opinion, should Malvo win with an insanity defense built solely on indoctrination, "I would think it would be a huge breakthrough in the nation."

The defense seems to be counting on just that breakthrough. In his opening statement, Cooley made it clear he would not claim Malvo suffered from schizophrenia (the diagnosis most common in successful insanity pleas) and did not indicate that the defense would assert any other condition but "indoctrination." But without evidence of a diagnosis consistent with delusional thinking, experts have a hard time seeing how a successful insanity defense can be mounted for him.

Several thought it possible the defense could bolster its case for indoctrination by introducing evidence that Malvo exhibited a "dependent personality disorder," described in the DSM as "a pervasive and excessive need to be taken care of that leads to submissive and clinging behavior and fears of separation." But that disorder probably would not be nearly enough to convince a jury that Malvo was so deranged during the killing spree that he couldn't control himself or understand what he was doing.

"Traditionally, law and juries require more serious disorders than that," says Christopher Slobogin, a leading scholar on the insanity defense at the Levin College of Law at the University of Florida.

Another exotic possibility is folie a deux or "folly of two," a psychiatric term for a shared psychotic disorder. Under that theory, Muhammad himself would have been psychotic and, as a result of their relationship, imposed his delusions on the more submissive Malvo. Last year in Florida, a psychologist testified that a young mother who threw her 8-year-old son to his death suffered from a folie a deux. According to the testimony, she shared the religious delusions of the child's father, believing that the baby would rise from the dead. She was found not guilty by reason of insanity.

For that defense to be persuasive in Malvo's case, it may be necessary to prove Muhammad was severely mentally ill himself. Muhammad didn't make that argument in his own trial. And, in any case, the prosecutors are portraying the pair as so deliberate in their execution of the crimes and in avoiding detection, it may be hard to convince the jury that they were delusional.

Yet another possibility is something akin to the battered spouse syndrome, which has been raised successfully in criminal cases. The syndrome is not in the DSM, but it has gained a measure of recognition in courts. No evidence has yet surfaced that Muhammad was terrorizing Malvo, but even more importantly, the syndrome is more in keeping with an argument for self-defense than insanity. Battered spouse (or child) syndrome might explain why Malvo killed Muhammad, if he had, not why he killed perfect strangers.

Looks normal

Aside from diagnosis, Malvo has one other problem not easily dismissed or overcome. He doesn't look crazy, or at least not the version of crazy that meets the expectations of most laymen.

"We only tend to find insanity when a person meets our visual image of insanity," says Perlin. "Is he trembling? Is he drooling at the mouth? That's what people expect to see in an insanity defendant. The more the person on the stand looks like you and me, the less chance a jury will accept the idea that insanity made him commit the crime." Surveys have found that the more serious the crime, the more insistent jurors are that a defendant comport to their visual image of crazy.

John Hinckley, who wounded President Reagan in 1981, is the exception that must give Malvo's lawyers some hope. He was a defendant in a high-profile case that shocked the public. The prosecutor vigorously contested his insanity argument. It was a jury trial. And although Hinckley was diagnosed as suffering psychosis, he behaved appropriately in the courtroom during his trial and did not look abnormal, according to contemporary accounts. Despite all that, Hinckley prevailed with an insanity defense.

(Coincidentally, Hinckley was back in a Washington federal court this week, asking to be allowed unescorted trips from St. Elizabeth's Hospital, where he has been a patient since his trial in 1982.)

Many onlookers do not expect the same for Malvo, but they also suspect that his lawyers don't either. They believe that his insanity defense is intended less to get him a verdict of "not guilty by reason of insanity" than to spare him a death sentence. The jury might well convict him, but might still find it impossible not to sympathize with him.

"He's not an orphan, but his mother gave him up," says Christiane Tellefsen, director of the division of forensic psychiatry at the University of Maryland School of Medicine. "There's an attenuated family there. He's foreign. He's vulnerable. He casts a somewhat empathetic picture to the world."

If there was hardship, neglect and want in Malvo's life, the insanity defense gives his lawyers the best opportunity to drive those points home to a jury. Instead of combating the prosecution's contention that Malvo was involved in the sniper killings, the defense will instead concentrate on a young man who could not fend off the influences of an older, charismatic and evil man.

"Given the apparent strength of the prosecutor's case, the insanity defense looks like the best way to try to save his life," says Slobogin. "It gives them two bites of the apple in building a case of mitigation. It doesn't make sense for them to wait until the sentencing phase to get this testimony in front of the jury."

It is a high-risk venture. The defense concedes Malvo's involvement in these awful crimes while also banking on generating enough sympathy for him that the jury will spare his life. It is a desperate gamble, but, after Muhammad's guilty verdict, it may be the only chance he has.

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