Did you shoot Denise Lee?

Defense attorneys who specialize in death penalty cases are an interesting lot. I admire them greatly. In most cases, they defend really evil murderers. Few of their clients are innocent except under the law until they are convicted. A death-penalty lawyer fights primarily to save clients from execution, not to win an acquittal. (Undoubtedly, this was Mark Geragos’s biggest failure in the Scott Peterson trial.)

In the Michael King trial, TruTV named the woman who is his lead attorney and noted that she was on the defense team in the murder trial of Joseph Smith, who kidnapped, raped, and murdered young Carlie Brucia. Unfortunately, I did not write down her name, and now, no matter how hard I try, I cannot find a single reference to her name on the Net. (I wrote down the second attorney’s name on the King defense team, though: Jerry Meisner.)

Mr. Meisner is the one who made a bold move in the trial yesterday, when he accused a prosecution witness of being the real killer. That was the first time I heard a defense attorney use an affirmative accusation of someone else. (This morning in his closing argument, the prosecutor attempted to assert that this placed a burden of proof on the defense. I believe the defense objected.)

Trial lawyers no doubt insure themselves against slander and libel so they can sometimes point a finger at someone other than their clients. (Perry Mason comes to mind.)

As I have said before, to rely on reasonable doubt, a defense must tell a coherent, alternative story of the crime. In the King case – despite overwhelming evidence – the defense team has told a story in which one or two other individuals “aided and abetted” the murder and may even have pulled the trigger.

It’s hard to believe the jury will accept this alternative narration, but it is already clear that they are taking it seriously. In addition, in the event of a conviction, the defense will be able to complain that the state had two suspects in the crime testify against the defendant.

“Cruel and Unusual Punishment”

Good lawyers wouldn’t have to specialize in defending the most heinous criminals if this country did not allow the death penalty. These talented defenders would be able to apply their skills to defending the wrongfully accused.

The death penalty ought to be abolished.

I don’t want to repeat all the usual arguments here. Instead I want to talk about the language of the law.

I’m not going to argue that the death penalty is unconstitutional. In the 18th century, when the framers of the Constitution and Bill of Rights prohibited “cruel and unusual punishment,” they did not intend to include capital punishment in that set of punishments.

In the 18th century “cruel punishment” meant any punishment that inflicted a permanent, physical injury on a criminal. Such punishments were clearly cruel, because they forced a criminal to endure a lifetime’s punishment, even after he “paid his debt to society.” A permanent injury by definition meant that a criminal could pay off his debt but still would have to suffer. So the Bill of Rights made sure thieves could not have a hand cut off. No one could be whipped for blasphemy.

If the Founding Fathers made any mistake, it was in not recognizing that execution was cruel, because it inflicted an irreversible physical injury. Remember, the Founding Fathers believed in a Supreme Being and an afterlife, a theological perspective that not everyone now shares, a perspective of which the law purports to be independent. In the 18th century, few people had any doubt that an executed person’s soul would survive death and would be judged by the Almighty. By executing a guilty man, the state did nothing more than hasten the individual’s “final judgment.”

In the 18th century “unusual” did not mean what it means today. It did not mean “bizarre.” “Unusual” meant “not usual, not standard.” In other words, the Founding Fathers intended to prohibit punishments unique to an individual. It was their intent that punishments should “fit the crime,” not the criminal. So, if one murderer is punished by execution, all murderers must be punished by execution and vice versa.

The Founding Fathers placed criminal law under the control of the states. They made it clear that state criminal law must conform to the principles of the federal Constitution. But they failed to realize that a “usual punishment” in one state could be prohibited in another state. That means that those of us who live in capital-punishment states, such as Illinois, have fewer rights than our fellows in states such as Kansas. Not only are murder suspects subject to execution, but law-biding citizens are forced to bear the heavy tax burden of the capital-punishment system in our state. And because I oppose the death penalty, I am excluded from any jury in a capital murder case.

In the 18th century, no one could imagine the range of degrees of murder and manslaughter that we have today. No on could imagine that a fetus’s death could result in a capital murder charge. No one imagined that fifty states could have such a wide range of laws and attitudes toward capital punishment. No one imagined that the age or IQ of a murderer could determine whether or not he was eligible for the death penalty.

If the Founding Fathers made any mistake, it was in not recognizing that execution was cruel and unusual, because an innocent man could be mistakenly executed, because a state could make execution the usual punishment for any crime it wished, because a draconian government could make execution a universal punishment for all crimes, and because it inflicts an irreversible injury.

Death-Penalty-Qualified Attorneys

Apparently in Florida an attorney must be specially qualified to handle the defense in a death penalty case. I’ll have to do some research to learn what these qualifications are. For now I can only commend Michael King’s attorneys for their willingness to take on his case. I imagine they are subject to a great deal of public animus simply because they oppose the death penalty.

A TruTV commentator said yesterday that inadequacy of counsel is most common reason for successful appeals in death-penalty verdicts—yet another logical contradiction in the law. Wouldn’t defendants in such cases be better off with unqualified attorneys, then? Can the State of Florida force a defendant to hire a competent lawyer?

The Shakespearean Equivalent of the Castillo Case

One of Shakespeare’s tragedies reminds me of the story of Alvaro Castillo. Here’s the plot:

  • A melancholy young man (depressed, that is) is troubled by his parents’ behavior. He’s torn between hating and loving his mother.
  • He recently flunked out of college (as opposed to the National Guard) and has begun to put on weight. He no longer has any friends. At one point he becomes convinced that two young men he knows are homosexual, and he shuns them. He seems to have turned against everyone, including his girlfriend, who soon goes insane and commits suicide by drowning herself.
  • The young man has thoughts of suicide: “To be or not to be,” he worries. “To die, to sleep, perchance to dream, no more; and by a sleep to say we end the heart-ache, and the thousand natural shocks that flesh is heir to, — ’tis a consummation devoutly to be wish’d.” He thinks of suicide and death in terms of sexual imagery.
  • He obtains a weapon, a sword. He kills an innocent elderly man with the sword under a paranoid delusion that someone is lying in wait for him.
  • In the end, he goes on a killing rampage and succeeds not only in killing his stepfather but also committing “suicide by cop” (in a manner of speaking).

This, of course, is Hamlet.

The Castillo murder and shooting rampage are not new stories. No more than any of the school shootings before  or after Columbine were. You can find these themes in ancient Greek literature as well as in the Old Testament.

That’s why I can’t help but wonder if there were any English majors on the Castillo jury.

The Scourge of God

One of the issues that the prosecution and its experts raised was Alvaro Castillo’s seemingly contradictory statements about his religious beliefs. On the one hand, Castillo repeatedly asked for forgiveness. On the other, he said the killings he planned were “sacrifices.” The prosecution and its psychiatrists took these statements to be proof that Castillo was fabricating the notion that he was performing God’s will by sacrificing innocents.

A competent English major would have recognized these statements as being in the literary tradition of “the scourge of God.” It was a favorite motif in Renaissance literature (when Shakespeare wrote).

By “scourge” is meant two things: 1) literally a whip and 2) a person who purges society of evil through violence and sacrificing himself. In the Middle Ages, penitential Christians would literally scourge themselves (beat themselves with whips) to purify their souls of sin. During the Reformation this sort of self-flagellation grew into disfavor. Simultaneously the rise of humanism made it possible for playwrights to conceive of heroic human beings who could purge society of its sins by violently sacrificing evil-doers and the innocent alike (because, of course, there are no truly innocent human beings – we are all sinners). These heroic characters derive from Biblical figures such as Samson, who literally pulled vengeance down on the heads of the society of evil-doers.

Every devout Christian learns about this theme, whether or not they learn to call it “the scourge of God.” The essence of religious sacrifice in Christian tradition is that both good and sinful people must sometimes be sacrificed for the greater good.

Hamlet was Shakespeare’s version of “the scourge of God.” Christopher Marlowe’s Tamburlaine was his version of "the scourge of God.”

In my humble opinion, as a literary scholar of the Renaissance, this is “the logic” in Alvaro Castillo’s statements that he was planning to sacrifice people for their own good and was sorry for what he had done.

I’m not saying that I feel this justifies Castillo’s crimes. I’m not saying that modern Christians hold this notion. And I’m certainly not claiming that Castillo’s remarks reflect reasonable theology.

This way of thinking is completely insane, in my opinion. It proves to me that Castillo did not know the difference between right and wrong.

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Michael King — It seems almost as if he might have done this before . . . .

At the Florida trial of Michael King for abducting, raping, and murdering Denise Lee, her detective father commented that he was proud of his daughter for protecting her babies and for alerting authorities to what was happening so that King could never do it again. He also said something to the effect that King might even have done it before. And this is what I wonder, too.

King’s crime was so brazen that it cries out as an MO (modus operandi). Surely Florida authorities are at this moment combing through their cold-case files for similar abductions.

  • Sidebar: The murder of Laci Peterson comes to mind, too. Since 2002 we’ve heard of many such abductions and also murders in which a fetus was cut from the mother’s womb. Frankly, that’s what worries me most about Scott Peterson’s death sentence.

As I understand it, King stalked his victim to her home in the middle of the afternoon, where she was caring for two infant children. Her husband returned home shortly after that to find his babies alone and his wife’s purse sitting in the kitchen or some other ordinary place. He called 9-1-1 and his police-detective father-in-law immediately.

  • Sidebar: Also chilling to me was a remark by TruTV’s Jean Casarez that King was a plumber. With apologies to all good plumbers everywhere, I never like to be alone at home with a plumber. And now I have a rational explanation for my phobia: I wonder if King’s victim came to his attention during work he did in her home. I have heard no mention of this. Quite the opposite, I’ve heard his choice of victim called “random.” The randomness is what frightens most commentators.

The jury may be thinking the same thing (not about plumbers) about the way King seemed to have things well in hand, to be following a well-rehearsed script, to have no concerns that anyone would care that he had a woman held captive in the foot well of his car’s backseat—even when she screamed and pounded on the window.

My experience on a criminal jury also had me wondering if the defendant had done it before. In fact, I was convinced he had done it before.

During the trial it was proved to me beyond a reasonable doubt that the defendant had been trolling for child victims in a neighborhood on Chicago’s south side (far from his own neighborhood). Like King, he was totally brazen. He was driving a pickup truck, which he left with its motor running in a busy street, while he chased a girl into a railroad viaduct. He didn’t have a chance to abduct the girl, though. Good Samaritans performed a citizen’s arrest.

This fact was incredibly puzzling to me and to my fellow jurors. We knew we were not supposed “to speculate” about such things, and we did not do so during deliberations. Unfortunately, we also understood the judge’s instructions to apply the law (as stated by the judge) to the charges, one of which was a kidnapping charge.

Had the defendant been charged with “attempted kidnapping,” we could have found him guilty because of that running motor. But he was not charged with attempted kidnapping, only aggravated kidnapping. After four hours of discussing whether it is kidnapping when a rapist pushes his victim off a sidewalk, we found him not guilty of that crime.

The judge later scolded us when one juror asked why the charge hadn’t been “attempted kidnapping.” She said, “There’s no such thing as attempted kidnapping.” Having studied the Illinois criminal statutes since then, I am puzzled by that statement. Surely kidnapping doesn’t have to be successful to be charged as a crime.

I suspect, instead, that the judge and prosecutor were simply being “too clever by half.” The judge intentionally misstated the kidnapping statute in her jury instructions to make it seem that pushing someone off a sidewalk constitutes kidnapping under the law, because she thought (mistakenly) that we wouldn’t understand the significance of the running motor. Or maybe she didn’t think a “dog that didn’t bark” was sufficient evidence for a conviction. But – let’s face it – the only reason a man would leave his motor running while he chased a victim was because he expected to snatch her off the street and throw her into the truck.

My point is that some sex crimes are never isolated instances. Sex-crime offenders seem to live lives of increasing violence. When a criminal reaches the point he feels free to commit his crime in broad daylight and in public, you just know he must have done it before.

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I heard the screams, not happy screams . . . .

Today in the Michael King murder trial a good-Samaritan witness, Jane Kowalski, testified about hearing screams coming from the backseat of the car next to her on the road. This is at least the second witness who testified to hearing kidnap-victim Denise Lee’s screams for help coming from King’s car.

Think about this: King was entirely unconcerned that he would be caught in the act. He did not bind his victim. He did not gag his victim. He did not render her unconscious as he drove through a populous area during rush hour. His only response to his victim’s screams and pounding on his car’s window was to remove his right hand from the steering wheel and repeatedly push her down into the foot well of the backseat.

Assuming King wanted to get away with his crime, this behavior is unfathomable, isn’t it? His defense is not claiming insanity.

In my opinion, the reason King felt he could do this so blatantly is that society and especially law enforcement and the courts do not consider domestic violence to be a serious crime. When a couple is involved in domestic violence, the woman’s cries for help are ignored. King knew that, just as every abusive man knows it.

Few people report signs of domestic violence to the police. When neighbors hear screams, they shut their ears. When someone calls the police, the police approach the scene warily or not at all. As soon as the police knock on the door, the screams stop. The police counsel the couple to kiss and make up.

I was once in a hotel room and heard a violent fight next door. I could hear screams and a fist hitting flesh. Furniture banged up against the wall. It was loud enough to penetrate the soundproofed walls and loud enough for me to tell a man was hitting a woman.

I can’t remember whether I called the front desk, but I do remember calling the cops. Within a few minutes I heard the knocks on the door of the next room. The sounds of struggle stopped. I heard voices in the hall and then the cops went away.

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Kidnapping, Murder, and Domestic Disputes

At lunch just now I tuned into TruTV’s coverage of the Michael King murder trial in time to hear King’s cousin testify that he heard a woman’s voice emanating from King’s car and saying, “Call the cops.” The cousin’s first response, he said, was to think it was “a domestic” dispute – “a girlfriend.” When he looked again at King’s car, his cousin saw a woman’s silhouette in the vehicle and saw King push the figure down.

I have only one comment: This is what is wrong with the way American law deals with domestic violence.

Who failed Alvaro Castillo? His doctors or the law?

Lawyers have the luxury of blaming other people for the ills of the world, because they make no claims to provide any benefit from their own services.

Yesterday on TruTV I heard a legal commentator say that America’s mental-health providers need to do a better job identifying and treating people like Alvaro Castillo to prevent school shootings. Apparently even Judge Allen Baddour blamed the situation on a system that did not “get [him] the help [he] needed.”

In this non-lawyer’s opinion these are outrageous remarks and completely wrong-headed. (BTW: I hope defense attorney Williams will appeal this verdict successfully.)

I can argue that in fact it was the law and the lawyers who failed Alvaro Castillo and all the other school shooters of the 20th and 21st centuries (to paraphrase Alvaro). And I will.

University Hospitals and Medical Researchers Under Legal Siege

Dr. Karen Graham and Dr. Nicole Wolfe of the University of North Carolina testified against Alvaro Castillo’s claim of insanity under the law. Not surprisingly. After all, the defendant was first treated at a UNC clinic and then discharged because he did not qualify for their treatment program, which focuses on some other sort of mental disorders. (I think they said the Oasis Clinic specializes in early-onset psychosis.) Then, when a second clinic’s doctors tried to convince the UNC doctors that Castillo actually did have early-onset psychosis, the UNC clinic refused to take him back.

This situation has mega-law-suit written all over it. Everything the UNC doctors said on the stand sound to me (a non-lawyer, non-psychologist) like CYA.

But I sympathize with them, and I understand what’s going on these days at university teaching hospitals.

  • Sidebar: I have been tangentially involved in hospital services since the early 1980s (I didn’t realize it until just this moment, because my involvement is so tangential.) In the early 80s I worked for a software company that specialized in hospital financial systems. There I learned the impact of lawyers on a hospital’s financial viability. In addition, through my association with the University of Chicago, I have been an innocent bystander in the university hospital’s ongoing battle with the communities surrounding the campus over its emergency room, which was once the leading trauma center on the south side of Chicago. And very recently I had to deal with “end-of-life issues” at two hospitals, one private and one government.

I suppose very few people understand that most hospitals in this country are private, non-profit organizations. Despite hospitals’ public necessity, the government owns and runs few hospitals.

The reason most hospitals are private rather than public is that the public cannot afford to support hospitals (as we are learning through the current health-care debate). But private hospitals are also very expensive, and they have to protect themselves from financial ruin by being selective of which services they provide (they specialize in certain areas) and by reserving the right to refuse to treat any given patient.

University hospitals (even state-owned university hospitals such as North Carolina’s) have an added burden. Their mission is to train health-care practitioners (“teaching hospitals”) and conduct medical research. Both of these endeavors are “risky” and therefore costly.

As institutions of higher learning they must staff their hospitals with faculty members and students, as well as provide health care first and foremost to the university community. As research institutions, they must compete (both nationally and internationally) for federal grants, private endowments (such as from pharmaceutical companies), and other charitable sources of funding. Their research activities are carefully scrutinized by these sources, as well as by the public. (As an example, consider how a university’s research into stem cell technology is conducted in the public spotlight.)

The potential for law suits against a university hospital is enormous. It happens all the time. Payouts impact the financial viability not only of the hospital, but the entire university—and in this case the entire State of North Carolina.

I am convinced that the UNC doctors who testified against Alvaro Castillo did so to avoid lawsuits against the university. Ultimately, it was tort lawyers who failed Alvaro Castillo, not the NC health-care system.

Laws of Gun Ownership

If I understand the situation correctly, in April of 2006 Alvaro Castillo attempted suicide and voluntarily entered the UNC hospital. He was released after a week and then was treated at the UNC Oasis Clinic by Dr. Graham. Shortly thereafter Castillo legally purchased firearms.

The law is at fault here, too. The law in North Carolina concerning who is eligible to purchase firearms is apparently filled with loopholes. Because Castillo entered the hospital voluntarily, he was technically eligible to buy guns: the NC law does not consider voluntary hospitalization to be “commitment” to a hospital. This stupidity is classic legalese.

Laws against Involuntary Hospitalization

Second, it is the law that makes involuntary hospitalization impossible. In the mid-1970s the ACLU, among other civil-rights groups, argued successfully before the U.S. Supreme Court that involuntary hospitalization is a violation of the civil rights of the mentally ill. Now, a person may only be hospitalized involuntarily for a very short time, after which he may choose to check himself out, as did Alvaro Castillo. He wasn’t kicked out of the hospital.

Laws and Regulations Driving Insurers Out of the Mental Health Market

In all the discussion of health-care reform I have not once heard anyone mention mental health. I have no idea whether it is included in any of the reform plans. However, I do know that as things now stand mental health care is incredibly costly and often not available at all.

Under Medicare/Medicaid only psychiatric care seems to be covered. Counseling and therapy by psychologists does not seem to be covered. This, I take it, is because government-funded health care covers only “necessary” and “appropriate” non-experimental treatment. Under the law, psychiatry is deemed to be medicine, while psychology is deemed to be quackery. (IMHO, exactly the opposite is true.) In other words, under government-funded health care you can take a pill but you can’t talk about your feelings.

A person who by reason of youth or income is ineligible for Medicare/Medicaid must pay for his own mental-health care. If he has private insurance, there are severe coverage limits on the amount and nature of the treatments and drugs he may receive.

Mental-health professionals, as with all doctors, must follow treatment guidelines provided by the insurers. This means that therapists, for example, cannot innovate or even adapt treatments to the needs of individual patients in some cases.

Insurance companies, for example, allow mental-health providers to lobotomize a patient or administer shock therapy but not to administer drugs not yet approved by the FDA. The FDA, in turn, forces pharmaceutical companies to conduct lengthy studies of drugs in use around the world b
efore they can be used in this country.

Excessive regulations and the threat of lawsuits not only drive up mental-health-care costs, they actually dictate treatment plans.

Laws against Family Guardianship

Our nation’s laws have difficulty with the notion that some people are better off as wards of a responsible guardian. In addition, our laws have no way of determining when the guardians themselves are the problem, not the solution.

Consider the plight of children: parents are free to abuse and neglect their children until the abuse and neglect becomes impossible for them to hide. By then, of course, it’s too late.

Consider the plight of spouses and domestic partners of criminals and the mentally ill or sociopathic: what goes on behind closed doors is sacred to Americans. No one will open the door, often even when they hear screams of the tortured.

Consider the plight of the elderly who have dementia: an old person can live in squalor, eat dog food, and give his money away to con artists. If a caregiver tries to intervene, only a judge can decide to do anything to help the old person.

Don’t believe me? Here’s a specific law that prevents the adult children of parents on Social Security from helping their parents with anything, including preparing their taxes for them:

Imagine that your elderly mother doesn’t open all her mail, especially envelopes that look like they might be bills or legal matters. As a result, she doesn’t open her annual letter from the SSA with her W2 form in it. When you try to do her income taxes for her several months later, the W2 form is missing. If you call the SSA and ask them to send you a duplicate W2, they will tell you that they cannot do that. Your mother must call them herself and request the duplicate. In addition, they will only be able to send the duplicate to her address (which is hundreds of miles away from you) where she will promptly not open it and lose it again. The only thing they can advise you is to have her name you as her personal representative for SSA purposes. To do that, she has to fill out a form, which they can mail to her–if she personally requests it. In addition, thereafter you will be the one who actually receives all her SSA transactions, including her checks, which you will then have to deposit in your bank account and then transfer to her bank account for her to live on.

A Man’s Home Is His Castle Mentality (Legal Misinterpretation of Privacy Rights)

First, notice that they never say, “A woman’s home is her castle.”

Western society is still medieval in many ways. Once upon a time, a castle was a sovereignty, a legal entity unto itself. Inside a castle’s walls, the lord was master. Every life was “suffered” to live by his will alone. Everything inside the castle’s walls was the lord’s private property. Even a king could not tell his vassal lords what to do inside the lords’ castles.

Private Property: This is the essence of the law established by the Magna Carta, from which our Constitution is ultimately derived.

Even now, our laws still acknowledge that private property is fundamental to liberty, because private property is our shield from government interference in our private lives. And I am a great believer in this principle.

But the problem is that this castle mentality is hierarchical in and of itself.

Even now (when we imagine that women have equal rights with men) within the walls of a home one person is the “head of the household” (if you don’t believe me, take a look at last year’s 1040).

Granted, the head of the household’s rights have been considerably restricted since the year 1215. But the fundamental principle that one’s private property is one’s to do with as one chooses, remains the same. (I used the word “one” intentionally, because it is always one person who is in charge. Admit it.)

The consequence of this hierarchical household structure is that an evil head of the household can do a great deal of harm to his family.

This is another way the law failed Alvaro Castillo. The law enabled his father to terrorize his whole family. No one intervened soon enough to save Alvaro, because no one was permitted to intervene behind the closed doors of the Castillo family.

Toward the end of the Castillo tragedy, the mental-health practitioners who were treating Alvaro did not know he had purchased firearms, because the law required them to respect Alvaro’s privacy (he was over 18) and required them not to reveal anything about his treatment to his parents. So they could not even call his parents to see whether or not he was telling them the truth during his sessions with them.

This is not a failing of the health-care system. This is a failing of the law.

The Letter of the Law: Laws Are Nothing But Strings of Letters

The problem with the law is that the law is nothing but words, and the people who write these words do not write well.

Castillo Jury – What are they thinking?

If people could read minds, we would all know what the jurors in the Alvaro Castillo trial are thinking right now. Of course, we can’t. And neither can the jury ever really know what Alvaro Castillo was thinking on August 30, 2006, when he shot his father, videotaped the aftermath, and then went to Orange High School nearby and fired into the building.

According to TruTV/CNN reporter, Beth Karas, today the jury requested a replay of two videos made by and of Castillo that day, apparently in their attempt to discern whether or not he knew right from wrong when he committed these crimes. They also asked to take with them into their deliberations copies of several psychiatric reports. So, we know that one thing the jury is thinking is that they had better examine the evidence very carefully before reaching a verdict.

As I said yesterday, the jury heard a none-too-veiled threat from the prosecutor that a not-guilty-by-reason-of-insanity verdict would be viewed critically by “the state,” meaning not only the prosecutor who represents the state but also the entire population of the State of North Carolina. Any juror who did not take that warning to heart is foolish. The fact is that juries are universally condemned when they find a verdict that flies in the face of public opinion.

Ms. Karas also noted today that the highly educated jury (six graduate degrees among them) had chosen as foreperson someone who had once worked in a state crime lab.

This also tells me that the jury is concerned about how the verdict will ultimately be received.

At first I thought this choice of foreperson indicated a law-and-order sort of jury personality. While this may be the case, I soon realized that the choice might also be evidence that the jury felt threatened yesterday.

If you are concerned that a not-guilty verdict of any sort will subject you to public outrage, what better choice of a person to stand up in court and read the verdict than someone well-versed in the criminal justice system?

The more I think about what the prosecutor said to the jury yesterday, the more foolish I think it was. He had no need to antagonize an intelligent jury in that way. My guess is that he has underestimated these people.

While we’re talking about closing arguments in the Castillo trial . . . .

In his first closing statement this morning, the prosecutor (who had generally earned my respect by then) said something to the jury that did not sit well with me. This is not an exact quote. I wasn’t able to pick up a pen to transcribe what he said exactly.

  • In voir dire I asked you to promise not to make your decision because of sympathy for any individual and to promise to follow the law. If you keep your two promises, the state will have no “qualms” about your verdict.

“Qualms” is in quotes, because he did use that exact word.

What are “qualms”? According to www.Dictionary.com, qualms are: “a sudden sensation or onset of faintness or illness, esp. of nausea.” I could argue that the prosecutor misused the term. What he really meant to say was he would have no disagreement with the verdict or no sense that any jury nullification had occurred. In other words, he would not think the jury broke its solemn oath.

To me, a layman, the prosecutor seemed to threaten the jury in the Castillo case that they would be frowned upon if they found the defendant not guilty by reason of insanity.

A day or two ago, this same prosecutor tried to introduce into Dr. Wolfe’s testimony a reference to an old insanity defense that was successful. Apparently the jury in that case was vilified by the press and public after that trial. The defense objected to the reference on the grounds such testimony was prejudicial to the defendant, and the judge upheld the objection. However, in my opinion as a former juror, it was more than prejudicial to the defendant; it was another attempt to warn the jury that they would be condemned in the court of public opinion if they did not condemn Alvaro Castillo.

I think it ought to be illegal to threaten a jury, especially in a courtroom, and I think the NC Bar Association ought to censure this prosecutor. (This is just my opinion, and as you know I am not a lawyer.)

It’s no trivial matter to have the courage to serve on a high-profile jury and then to vote your conscience even when you know the public won’t like it. 

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Alvaro Castillo’s Crime and Punishment

In Dostoyevsky’s novel, Crime and Punishment, a student named Rashkolnikov plans a murder and then goes through with it. In the novel, Dostoyevsky analyzes the way the human mind justifies its actions and also what the nature of punishment is.

I’m not suggesting there’s a close parallel between Rashkolnikov and Castillo. However, the issue of guilt and due punishment is uppermost in my mind as I wait for the jury’s verdict in the Castillo case. I plan to write an article about punishment in the Castillo case, but first I want to analyze the essence of an “insane” crime.

The Law v Reality

Does anyone believe that the law of innocence by “reason of insanity” (a lovely phrase) is well-conceived?

Why should some mass murderers be entitled to hide behind the insanity defense while others are not? By definition aren’t all mass murderers mentally ill in some way?

I suppose a “selective” murderer might need to prove his motivation, because a selective murderer has chosen to kill a certain person for a certain “reason.”

Alvaro Castillo is not a mass murderer only because his gun jammed. (Isn’t it odd that the prosecution seems to think this defendant can make a better case for insanity when killing his father than he can for planning a Columbine-style shooting? To me this is but one of several such logical flaws in this prosecution.)

The Meaning of the Standards

Please read the article, “The Insanity Defense and Diminished Capacity,” on Cornell University’s Law School website for a clear discussion of the insanity defense from a lawyer’s perspective. I am not a lawyer, just a former English professor. What I am interested in is what the words of the law really mean.

The above article explains the McNaughton Rule: "at the time of committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong." (1843)

Let’s parse this.

The defense must first prove a defect of reason caused by a disease of the mind. Next, the defense must prove that because of this defect the defendant either 1) did not “know” the “nature and quality” of what he was doing, or 2) even if he did know he did not “know” it “was wrong.”

But even science cannot definitively prove a person has a mental disease. The American Psychological Association’s “bible” (the DSM-IV) does not even use the word “disease” to describe mental problems and aberrations. So, a lay jury cannot possibly decide whether or not the first requirement for the insanity defense exists.

Let’s assume that all the expert witnesses in a trial agree that the defendant has “a defect of reason caused by a disease of the mind,” the jury is still forced to determine whether either the first or both of the additional requirements were true in the defendant’s mind several months or years ago when the crimes occurred.

In addition, the jury is forced to define the terms “to know,” “nature and quality” of an act, and “wrong.”

Take the case of Naveed Haq: Even though he was a Moslem who terrorized a Jewish Center because it was a Jewish community group, since he had a prior history of psychiatric treatments he was able to prove he had a “defect of reason caused by a disease of the mind.” Of course, the Taliban in Afghanistan hold the same beliefs, but they are not considered to have diseased minds under American law.

In the Castillo case, too, it is fairly clear that the defendant had a “defect of reason,” but there seems to be some disagreement among the experts as to whether or not it resulted from “a disease of the mind.” Even so, I believe all the experts testified that science does not consider any such defects to be result of “disease of the mind,” because science does not use the word “disease” in a psychological context.

The Jury’s Dilemma

In a trial involving an insanity defense both sides concede whodunit and what crimes were committed. The jury is not asked to judge the quality of the state’s evidence against a fellow citizen. Instead the jury is asked to read the defendant’s mind – something even trained psychiatrists and psychologists cannot do.

All the lawyers in the courtroom understand that in most trials the issue of “intent” to commit a crime must be proven, even though the jury often struggles with the issue of intent during deliberations: was the killing provoked but accidental? Was the killing premeditated? Was it murder or was it manslaughter?

But in an insanity case, not even the lawyers in the room know what insanity is or can define terms such as “right” and “wrong” and “the quality and nature” of the acts. When expert witnesses (psychologists and psychiatrists) testify about the defendant’s personality test results and prior behaviors and then characterize the defendant’s state of mind “at the time of the incident” even they do not agree about diagnoses or how to evaluate the defendant’s acts in light of the standards expressed in the law.

Did Alvaro Castillo know the nature and quality of his acts? On the one hand, he clearly knew what he was doing was outrageous and illegal (the “nature,” I suppose) but did he know the “quality”? I can’t even begin to define the term “quality” in the context of patricide or a school shooting. So, perhaps he did not know the quality of his acts, any more than I do.

Did Alvaro Castillo know that what he was doing was “wrong”? Well, I suppose he knew it was a sin, since he was a devout Christian. But what a Christian calls a sin is not necessarily what the law calls “wrong.” (It may be a sin, for example, for someone to take the Lord’s name in vain, but it is not illegal or necessarily wrong.)  And he also thought that God wanted him to do these things, just the way God told Abraham to sacrifice his son. The Ten Commandments say, “Thou shalt not kill,” but the Bible also makes it clear that it was Abraham’s duty to follow God’s instructions to kill his son.

I am not a relativist, and I do not wish to argue that one person’s right and wrong is another person’s wrong and right, and that’s all there is to it. But it does seem as if the law assumes that a jury of one’s peers will certainly know the difference between right and wrong and all will agree on what these are.

The absurdity of the McNaughton Rule’s standard of knowing the difference between right and wrong is as absurd as the “irresistible impulse” standard, because everyone who commits a crime does so within a mental construct of what is right and wrong. A sociopath (so clearly described on the stand by Dr. Ballard) recognizes no distinction between right and wrong. A drug addict under the influence recognizes little other than the irresistible impulse that drives him. Everyone acts out of self-interest, and self-interest is by definition always right, just as altruism by definition is always right. But self-interest often conflicts with altruism: for example, it is not wrong to refuse to run back into a burning building to rescue someone else.

So, the question is: Did Alvaro Castillo consider his acts t
o have been either self-interested or altruistic?

Did Castillo Lie or Did He Compartmentalize?

Today we may hear closing arguments in the Alvaro Castillo trial. As a “word-a-phile” I hope the defense will point out the origins of the word “schizophrenia.” It is from the Greek “skhizein” for “split” and “phrenos” for “mind.”

So, the question is: Did Castillo lie to psychiatrists at UNC when he denied feeling suicidal or homicidal? Or was he simply “of half a mind” to kill someone?