Disorders In The Court

By relying on an insanity plea, Lee Boyd Malvo and his lawyers have set a difficult course, if history is any judge.

November 20, 2003|By Michael Ollove | Michael Ollove,SUN STAFF

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.

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