1 2 POINT – Why is NGRI important

10 And David arose, and fled that day for fear of Saul, and went to Achish the king of Gath.11 And the servants of Achish said to him, Is not this David the king of the land? did they not sing one to another of him in dances, saying, Saul hath slain his thousands, and David his ten thousands?12 And David laid up these words in his heart, and was greatly afraid of Achish the king of Gath. 13 And he changed his behavior before them, and feigned himself mad in their hands, and scrabbled on the doors of the gate, and let his spittle fall down upon his beard. 14 Then said Achish to his servants, Lo, ye see the man is mad: why then have ye brought him to me? 15 Have I need of mad-men, that ye have brought this man to play the mad-man in my presence? shall this man come into my house?

3 Raphael - Plato and Aristotle, from The School of Athens

POINT – Articulation of Culpability

4 POINT – Organized the law Compared insane individuals to children as far as culpability – a practice that has continued even today

Roman Law &

534 AD Eastern Roman Empire 'Justinian Code' to 'there can be no natural bad guy, nor can there incorrigible child' theory as the basis to establish the child can not be premeditated crimes provisions, and according to This requirement: Male 14 years old, female 12 years as the age of criminal responsibility phase.

It is reported that Roman law also distinguishes between the age of responsibility in several stages: the behavior of children under the age of 7 years of age is not considered an offense; 7-year-old reached the age of 14 are considered to determine its ability to distinguish whether the age of responsibility; full 14 year-old criminal adults. [4]

5 Point - Developed Parts of Crime Gather up information from country side Common Law vs. Justinian Code Set in motion Stare decisis - presidents

12th century medieval England, lords began granting pardons to those who were obviously “mad.”

In the 13th century, English common law evolved to require both the presence of a criminal act (actus rea) and the presence of a guilty mind (mens rea),

TRANSITION – This allowed for president to be set – and since Trials set President they become important in CR.

In 1154, Henry II became the first Plantagenet king – started Common Law These decisions would be recorded and filed. In time, a rule, known as stare decisis (also commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the

6 law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another.

Once judges began to regard each other's decisions to be binding precedent, the pre-Norman system of local customs and law varying in each locality was replaced by a system that was (at least in theory, though not always in practice) common throughout the whole country, hence the name "common law.”

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6 POINT – Could this person be Criminally Responsible

This grim lunatic, with his clawing hands and lousy hair, was known as Mad Ned. He had a house, but there was no furniture in it. Mouthing, mumbling, with nauseous antics and unmeaning words, he was a butt and amusement to some, a terror to others, a source of scandal and apprehension to his family. He was noted for saying "abominable, wicked and distracted things" and of making wild accusations as, for example, that Lord Onslow had misbehaved himself with an innkeeper's wife, after the drinking of many bottles of wine.

By day, by night, at all times, Arnold was tormented by "Lord Onslow in his Belly." He could neither sleep nor eat. He was beset in the wickedest way by "the Buggs, the Bollies and the Bolleroyes."

Transition – Now lets look at his action that day Actions that Day

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7 He was "a Marksman 7 ' who always "aimed at the Head" of rabbits, in the ordinary course of things. On the day of the shooting he had gone to the shop of a Mr. Smith where he usually bought his powder and shot, having previously borrowed a gun. So far there was nothing out of the ordinary. What was very much out of the ordinary was Arnold's request for shot of the largest size, a request which he had never made before.

Most fortunately for his Lordship, the largest size was out of stock, and Arnold had to be content with No. 2, described as "Rabbit Shot." He went off, thus provided, and then, to make sure that the gun was neither foul nor damp, that the flint, the pan and the trigger were acting properly, he fired a charge. After this he made enquiries as to the whereabouts of Lord Onslow.

Approaching Lord Onslow and his huntsmen, Mr. Flutter and Mr. Fawks, on foot was a man upon whom the hand of God lay heavily. His name was Edward Arnold,

The face of this man was white and wild; he was carrying a musket, and he was carrying it very oddly the hammer

8 cocked and the muzzle pointing forward.

No one seems to have paid much attention to him except Mr. Flutter. This gentleman, noticing the ghastly paleness and the surly resolution of Mr. Arnold, asked him why he was carrying his gun so improperly, and what were his intentions. At this moment, Flutter was on the left of Onslow, riding level, and Fawks was a little way behind on the right.

White as chalk and with a madman's fanatical stare, Mr. Arnold was now passing on the side of Flutter when he suddenly wheeled, brought his gun to the shoulder, fired a charge of heavy shot at Onslow, and fairly blew him off his horse.

" He never before shot a Lord in the Shoulder. He can ask better Questions when he holds up his Head; but if his Guilt makes him hold it down, I can't help it."

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8 POINT – Describe the incident - Wild Beast Test -Medical Testimony - Convicted and sentenced to die - Saved by Lord Onslow -Good and Evil to Right and Wrong

Transition – A different standard set

Approaching Lord Onslow and his huntsmen, Mr. Flutter and Mr. Fawks, on foot was a man upon whom the hand of God lay heavily. His name was Edward Arnold,

The face of this man was white and wild; he was carrying a musket, and he was carrying it very oddly the hammer cocked and the muzzle pointing forward.

9 No one seems to have paid much attention to him except Mr. Flutter. This gentleman, noticing the ghastly paleness and the surly resolution of Mr. Arnold, asked him why he was carrying his gun so improperly, and what were his intentions. At this moment, Flutter was on the left of Onslow, riding level, and Fawks was a little way behind on the right.

White as chalk and with a madman's fanatical stare, Mr. Arnold was now passing on the side of Flutter when he suddenly wheeled, brought his gun to the shoulder, fired a charge of heavy shot at Onslow, and fairly blew him off his horse.

" He never before shot a Lord in the Shoulder. He can ask better Questions when he holds up his Head; but if his Guilt makes him hold it down, I can't help it." http://www.archive.org/stream/onslowfamily1528013344mbp/onslowfamily1528013344mbp _djvu.txt

Justice Robert Tracy

Edward Arnold

Arnold shot and wounded Lord Onslow. He was sentenced to death but Lord Onslow secured a reprieve to life in prison

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9 POINTS – Product Test Defense – Severe Head Injuries

Lord Thomas Erskine, in his opinion, "No such madness ever existed in the world (referring to total insanity). Reason is not driven from her seat, but distraction sits down upon it along with her."

HADFIELD shot at King George III as he entered the Royal Box at the Drury Lane Theatre. He believed God was going to destroy the world, but he thought he could prevent if by sacrificing his own life.

Hadfield's early years are unknown but he was severely injured at the Battle of Tourcoing in 1794. Before being captured by the French, he was struck eight times on the head with a sabre, the wounds being prominent for the rest of his life. After return to England, he became involved in a millennialist movement and came to believe that the Second Coming of Jesus Christ would be advanced if he himself were killed by the British government. He therefore resolved to attempt the assassination of the King and bring about his own judicial execution.

10 TRANSITION – Lead to NGRI being detained after acquittal. Acquitted but sent to Bethlehem Hospital (Beldam)

On the evening of 15 May 1800, at the Theatre Royal, Drury Lane, during the playing of the national anthem, Hadfield fired a pistol at the King standing in the royal box. Hadfield missed his target, though it is unclear whether he simply intended to signal an attempt, then addressed the King, announcing "God bless your royal highness; I like you very well; you are a good fellow.”

The Court set a new standard for insanity, flowing from a delusion rather than lacking all understanding like the wild beast test. The flowing from a delusion foreshadows the Durham rule in the U.S. in 1954.

Lord Thomas Erskine, in his opinion, "No such madness ever existed in the world (referring to total insanity). Reason is not driven from her seat, but distraction sits down upon it along with her."

James Hadfield was tried for high treason and was defended by Thomas Erskine, the leading barrister of that era. Hadfield pleaded insanity but the standard of the day for a successful plea was that the defendant must be "lost to all sense … incapable of forming a judgment upon the consequences of the act which he is about to do".

Hadfield's planning of the shooting appeared to contradict such a claim. Erskine chose to challenge the insanity test, instead contending that delusion "unaccompanied by frenzy or raving madness [was] the true character of insanity". Two surgeons and a physician testified that the delusions were the consequence of his earlier head injuries.

The judge, Lloyd Kenyon, 1st Baron Kenyon, at this point halted the trial declaring that the verdict "was clearly an acquittal" but "the prisoner, for his own sake, and for the sake of society at large, must not be discharged".

10 Standard for insanity, flowing from a delusion (“Offspring of a delusion”) rather than lacking all understanding like the wild beast test

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10 Hadfield's acquittal caused a public uproar and Parliament speedily passed the Criminal Lunatics Act 1800 to provide for the indefinite detention of insane defendants. Hadfield was detained in Bethlem Royal Hospital for the rest of his life save for a short period when he escaped. He was recaptured at Dover attempting to flee to France and was briefly held at Newgate Prison before being transferred to the new insane asylum Bethlehem Hospital (or Bedlam, as it was known). He died there of tuberculosis in 1841.

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11 Points – Acquitted Detained at Beldam – Irresistible Impulse Test

1840 - During Victoria's first pregnancy in 1840, in the first few months of the marriage, 18- year-old Edward Oxford attempted to assassinate her while she was riding in a carriage with Prince Albert on her way to visit her mother.

Edward Oxford Trial (England 1840)

Oxford committed the first of seven attempted assassinations of Queen Victoria.

The Court gave the jury the charge: “If some controlling disease was, in truth, the acting power within him which he could not resist, then he will not be responsible.” This is an historical precedent for the irresistible impulse test. Forerunner for irresistible impulse or the “policeman at the elbow test”

12 On 29 May 1842, Victoria was riding in a carriage along The Mall, London, when John Francis aimed a pistol at her but did not fire.

On 3 July, two days after Francis's death sentence was commuted to transportation for life, John William Bean also fired a pistol at the Queen, but it was loaded only with paper and tobacco.

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12 20Jan 1843 shot Edward Drummond (secretary to Robert Peel, Prime Minister)

POINT – Right Wrong Test - Tried to Kill Prime minister Mr. Peel - Dream Team of Layers - Alexander Cockburn - Issac Ray’s Book important - The Treatise on the Medical Jurisprudence of Insanity - Has been the standard ever since in England

McNaughtan was a Scottish woodturner who felt persecuted for several years. He stalked the Prime Minister, Sir Robert Peel, but mistook his secretary, Edward Drummond, for him who he shot and killed.

“The Tories in my native city have compelled me to do this. They follow, persecute me wherever I go, and have entirely destroyed my peace of mind... It can be proved by evidence. That is all I have to say.”

When M'Naghten was arrested, a bank receipt for £750 (about $120,000 today) was found on him. M'Naghten's trial for the "wilful murder of Mr Drummond" took place at the Central Criminal Court, Old Bailey, Friday and Saturday, 2-3 March, 1843.

All experts agreed that he was insane.

TRANSITION Queen Victoria not happy. Put questions to the Court of Common Pleas.

When M'Naghten was arrested, a bank receipt for £750 was found on him. His father successfully applied to the court to have the money released to finance his defence, and for the case to be adjourned for evidence relating to M'Naghten's state of mind to be gathered. A date was set for Friday 3 March.[3] The speed and efficiency with which M'Naghten's defence was organized suggests that a number of powerful people in law and medicine were waiting for an opportunity to bring about changes in the law on criminal insanity.[6]

M'Naghten's trial for the "wilful murder of Mr Drummond" took place at the Central Criminal Court, Old Bailey, Friday and Saturday, 2–3 March 1843, before Chief Justice Tindal, Justice Williams and Justice Coleridge. When asked to plead guilty or not guilty, M'Naghten had said "I was driven to desperation by persecution" and, when pressed, "I am guilty of firing", which was taken as a "not guilty" plea.[4]

M'Naghten's defence team was led by one of London's best-known barristers, Alexander Cockburn. The case was prosecuted by the solicitor-general, Sir William Follett (the attorney-general being busy in Lancaster prosecuting Feargus O'Connor and 57 other Chartists following the plug riots).[3]

13 Both prosecution and defence based their case on what constituted a legal defence of insanity.[3]

Both sides agreed that M'Naghten suffered from delusions of persecution. The prosecution argued that, in spite of his "partial insanity" he was a responsible agent, capable of distinguishing right from wrong, and conscious that he was committing a crime.[4] Witnesses, including his landlady and his anatomy lecturer were produced to testify that M'Naghten appeared generally sane.[4]

Cockburn opened his defence by acknowledging that there were difficulties in the practical application of the principle of English law that held an insane person exempt from legal responsibility and legal punishment. He went on to say that M'Naghten's delusions had led to a break down of moral sense and loss of self-control, which, according to medical experts, had left him in a state where he was no longer a "reasonable and responsible being".

He quoted extensively from Scottish jurist Baron Hume, and American psychiatrist Isaac Ray. Witnesses were produced from Glasgow to give evidence about M'Naghten's odd behaviour and complaints of persecution.

The defence then called on a number of medical witnesses, including Dr Edward Monro, Sir Alexander Morison, and Dr Forbes Winslow, who testified that M'Naghten's delusions had deprived him of "all restraint over his actions".[4]

When the prosecution declined to produce any medical witnesses to counter this evidence, the trial was halted. Follet then made a brief, apologetic closing speech which he concluded with the words "I cannot press for a verdict against the prisoner...". Chief Justice Tindal, in his summing up, stressed that the medical evidence was all on one side, and reminded the jury that if they found the prisoner not guilty on the ground of insanity, proper care would be taken of him. The jury, without retiring, duly returned a verdict of not guilty on the ground of insanity.[4]

The Treatise on the Medical Jurisprudence of Insanity was very influential and was deployed effectively by defense lawyer Sir Alexander Cockburn in the English trial of Daniel M'Naghten in 1843.

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13 POINT – Queen Victoria had already 2 assignation attempts - Court of Common Pleas.

TRANSITION – Resulted in M’naghten test

1st. What is the law respecting alleged crimes committed by persons afflicted with insane delusion, in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?

2d. What are the proper questions to be submitted to the jury, when.. a. person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?

14 3d. In what terms ought the question. to be left to the jury, as to the prisoner's state of mind at the time when the act was committed?

4th. If a person under an insane delusion, as to existing facts, commits an offence in consequence thereof, is he thereby excused?

5th. Can a medical man conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act, that he was acting. contrary to law, or whether he was labouring under any and what delusion at the time

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14 POINT -Has been the standard ever since in England -cognitive test -Not volitional -Not Product

TRANSITION – Off to North America

Daniel McNaughtan Trial (England 1843)

McNaughtan was a Scottish woodturner who felt persecuted for several years. He stalked the Prime Minister, Sir Robert Peel, but mistook his secretary, Edward Drummond, for him who he shot and killed.

The Court held “To establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a

15 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 that he did not know he was doing what was wrong…”

The McNaughtan test is a combination of the wild beast test (nature and quality) and Spigurnel’s right-wrong test.

The McNaughtan test is a cognitive test and does not have a volitional prong (i.e. irresistible impulse test).

Following the 1981 John Hinckley insanity verdict many jurisdictions including the Federal Court system abandoned the volitional prong of insanity and returned to a standard similar to the original McNaughtan standard.

Cognition (e.g. ill)

Nature and quality of act

Wrongfulness of specific act (Legal vs. moral wrong)

The judges response was “To establish a defence on the ground of insanity it must be clearly proved, that, at the time of committing the act, the party accused was labouring 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 that what he was doing was wrong.”

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15 Sanityin the USA

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16 Richard Lawrence, an unemployed house painter, approached Jackson as he left a congressional funeral held in the House chamber of the Capitol building and shot at him, but his gun misfired.

Lawrence was most likely a mentally unstable individual with no connections to Jackson's political rivals, but Jackson was convinced that Lawrence had been hired by his Whig Party opponents to assassinate him. At the time, Jackson's Democrats and the Whigs were locked in battle over Jackson's attempt to dismantle the Bank of the United States. His vice president, Martin Van Buren, was also wary and thereafter carried two loaded pistols with him when visiting the Senate.

Jackson's suspicions were never proven and Lawrence spent the rest of his life in a mental institution. A century later, Smithsonian Institute researchers conducted a study of Lawrence's derringers, during which both guns discharged properly on the test's first try. It was later determined that the odds of both guns misfiring during the assassination attempt were one in 125,000.

On January 30, 1835, President Andrew Jackson attended a congressional funeral in

17 the Capitol building. As he exited, Richard Lawrence, an unemployed house painter, pointed a pistol at Jackson and fired. The percussion cap exploded, but the bullet did not discharge. The enraged Jackson raised his cane to throttle his attacker, who fired again. The second weapon also misfired and the 67 year-old president escaped unharmed.

The deranged Lawrence believed Jackson had conspired to keep him poor and out of work.

Jackson was convinced that Lawrence was hired by his political enemies, the Whigs, to stop his plan to destroy the Bank of the United States. Lawrence spent the rest of his life in jails and asylums.

http://americanhistory.si.edu/presidency/3d1c.html

When Jackson was leaving the Capitol out of the East Portico after the funeral of South Carolina Representative Warren R. Davis, Richard Lawrence, an unemployed and deranged housepainter from England, either burst from a crowd or stepped out from hiding behind a column and aimed a pistol at Jackson, which misfired. Lawrence then pulled out a second pistol, which also misfired. It has been postulated that moisture from the humid weather contributed to the double misfiring.[50] Lawrence was then restrained, with legend saying that Jackson attacked Lawrence with his cane, prompting his aides to restrain him. Others present, including David Crockett, restrained and disarmed Lawrence.

Richard Lawrence gave the doctors several reasons for the shooting. He had recently lost his job painting houses and somehow blamed Jackson. He claimed that with the President dead, "money would be more plenty" (a reference to Jackson's struggle with the Bank of the United States) and that he "could not rise until the President fell." Finally, he informed his interrogators that he was a deposed English King—specifically, Richard III, dead since 1485—and that Jackson was merely his clerk. He was deemed insane, institutionalized, and never punished for his assassination attempt. http://en.wikipedia.org/wiki/Andrew_Jackson

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17 Issac Ray’s Book important - The Treatise on the Medical Jurisprudence of Insanity

Justice Charles Doe Legal fact whether or not a defendant suffered from a disease of the mind and whether or not the proscribed behavior was a product of that disease. “If [the alleged crime] was the offspring or product of mental disease in the defendant, [then] he was not guilty by reason of insanity.”

Issac Ray was very influential on this decision.

One of the founding members of the Association of Medical Superintendents of American Institutions for the Insane, he served as President from 1855 to 1859 - Later to be know as the APA

Later adopted by judge Bazelon

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18 In response to criticisms of M'Naghten, some legal commentators began to suggest expanding the definition of insanity to include more than a cognitive element. Such a test would encompass not only whether defendants know right from wrong but also whether they could control their impulses to commit wrong-doing.

The irresistible impulse test was first adopted by the Alabama Supreme Court in the 1887 case of Parsons v. State. The Alabama Court stated that even though the defendant could tell right from wrong, he was subject to "the DURESS of such mental disease [that] he had... lost the power to choose between right and wrong" and that "his free agency was at the time destroyed," and thus, "the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely.”

In so finding, the court assigned responsibility for the crime to the mental illness despite the defendant's ability to distinguish right from wrong.

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19 Model Penal Code 1955 (Also known as ALI)

Often referred to as a two prong test

Test of Insanity becomes a combination of McNaughtan and Irresistible Impulse Test. Was used in the majority of US jurisdictions prior to the John Hinckley case.

ALI is American law institute

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20 1882 – Right wrong test 1929 – Impulse prong added – Smith v.U

Durham v U.S. (D.C. Circuit of Appeals 1954) http://law.justia.com/cases/federal/appellate-courts/F2/214/862/314341/

The Court adopted a more liberal insanity standard: “The accused is not criminally responsible if his unlawful act is the product of mental disease or defect.” This became known as the “product test.”

It led to an increase in NGRI acquittals 14 fold. It was only copied in Maine and the Virgin Islands.

Ipse dixit statements from doctors ( i.e. unproven assertion) Insanity acquittals went up 14% Politically unpopular

21 Eventually abandoned in U.S. v. Brawner 1972 Still used in New Hampshire

Washington v. United States was an attempt to fix problems with Durham case • U.S. Court of Appeals, D.C., 1967 • Prohibited "ultimate issue" testimony by experts • Experts could not discuss product in Durham

FACT ABOUT Durham’s Case http://law.justia.com/cases/federal/appellate-courts/F2/214/862/314341/ Monte Durham was convicted of housebreaking,1 by the District Court sitting without a jury. The only defense asserted at the trial was that Durham was of unsound mind at the time of the offense. We are now urged to reverse the conviction (1) because the trial court did not correctly apply existing rules governing the burden of proof on the defense of insanity, and (2) because existing tests of criminal responsibility are obsolete and should be superseded.2

Durham has a long history of imprisonment and hospitalization. In 1945, at the age of 17, he was discharged from the Navy after a psychiatric examination had shown that he suffered "from a profound personality disorder which renders him unfit for Naval service." In 1947 he pleaded guilty to violating the National Motor Theft Act3 and was placed on probation for one to three years. He attempted suicide, was taken to Gallinger Hospital for observation, and was transferred to St. Elizabeths Hospital, from which he was discharged after two months. In January of 1948, as a result of a conviction in the District of Columbia Municipal Court for passing bad checks, the District Court revoked his probation and he commenced service of his Motor Theft sentence. His conduct within the first few days in jail led to a lunacy inquiry in the Municipal Court where a jury found him to be of unsound mind. Upon commitment to St. Elizabeths, he was diagnosed as suffering from "psychosis with psychopathic personality." After 15 months of treatment, he was discharged in July 1949 as "recovered" and was returned to jail to serve the balance of his sentence. In June 1950 he was conditionally released. He violated the conditions by leaving the District. When he learned of a warrant for his arrest as a parole violator, he fled to the "South and Midwest obtaining money by passing a number of bad checks." After he was found and returned to the District, the Parole Board referred him to the District Court for a

21 lunacy inquisition, wherein a jury again found him to be of unsound mind. He was readmitted to St. Elizabeths in February 1951. This time the diagnosis was "without mental disorder, psychopathic personality." He was discharged for the third time in May 1951. The house-breaking which is the subject of the present appeal took place two months later, on July 13, 1951.

According to his mother and the psychiatrist who examined him in September 1951, he suffered from hallucinations immediately after his May 1951 discharge from St. Elizabeths. Following the present indictment, in October 1951, he was adjudged of unsound mind in proceedings under § 4244 of Title 18 U.S.C., upon the affidavits of two psychiatrists that he suffered from "psychosis with psychopathic personality." He was committed to St. Elizabeths for the fourth time and given subshock insulin therapy. This commitment lasted 16 months — until February 1953 — when he was released to the custody of the District Jail on the certificate of Dr. Silk, Acting Superintendent of St. Elizabeths, that he was "mentally competent to stand trial and * * * able to consult with counsel to properly assist in his own defense.”

He was thereupon brought before the court on the charge involved here. The prosecutor told the court:

So I take this attitude, in view of the fact that he has been over there [St. Elizabeths] a couple of times and these cases that were charged against him were dropped, I don't think I should take the responsibility of dropping these cases against him; then Saint Elizabeths would let him out on the street, and if that man committed a murder next week then it is my responsibility. So we decided to go to trial on one case, that is the case where we found him right in the house, and let him bring in the defense, if he wants to, of unsound mind at the time the crime was committed, and then Your Honor will find him on that, and in your decision send him back to Saint Elizabeths Hospital, and then if they let him out on the street it is their responsibility."6Shortly thereafter, when the question arose whether Durham could be considered competent to stand trial merely on the basis of Dr. Silk's ex parte statement, the court said to defense counsel:7"I am going to ask you this, Mr. Ahern: I have taken the position that if once

21 a person has been found of unsound mind after a lunacy hearing, an ex parte certificate of the superintendent of Saint Elizabeths is not sufficient to set aside that finding and I have held another lunacy hearing. That has been my custom. However, if you want to waive that you may do it, if you admit that he is now of sound mind."8The court accepted counsel's waiver on behalf of Durham, although it had been informed by the prosecutor that a letter from Durham claimed need of further hospitalization, and by defense counsel that "* * * the defendant does say that even today he thinks he does need hospitalization; he told me that this morning."4 Upon being so informed, the court said, "Of course, if I hold he is not mentally competent to stand trial I send him back to Saint Elizabeths Hospital and they will send him back again in two or three months."5 In this atmosphere Durham's trial commenced.9His conviction followed the trial court's rejection of the defense of insanity in these words:10"I don't think it has been established that the defendant was of unsound mind as of July 13, 1951, in the sense that he didn't know the difference between right and wrong or that even if he did, he was subject to an irresistible impulse by reason of the derangement of mind.11"While, of course, the burden of proof on the issue of mental capacity to commit a crime is upon the Government, just as it is on every other issue, nevertheless, the Court finds that there is not sufficient to contradict the usual presumption of [sic] the usual inference of sanity.12"There is no testimony concerning the mental state of the defendant as of July 13, 1951, and therefore the usual presumption of sanity governs.13"While if there was some testimony as to his mental state as of that date to the effect that he was incompetent on that date, the burden of proof would be on the Government to overcome it. There has been no such testimony, and the usual presumption of sanity prevails.14* * * * * *15"Mr. Ahern, I think you have done very well by your client and defended him very ably, but I think under the circumstances there is nothing that anybody could have done." [Emphasis supplied.]16We think this reflects error requiring reversal.17In Tatum v. United States we said, "When lack of mental capacity is raised as a defense to a charge of crime, the law accepts the general experience of mankind and presumes that all people, including those accused of crime, are sane."6 So long as this presumption prevails, the prosecution is not required to prove the defendant's sanity. But "as soon as `some evidence of mental disorder is introduced, * * * sanity, like any other fact, must be proved as part of the prosecution's case beyond a reasonable doubt.'"7 Here it appears that the trial judge recognized this rule but failed to find "some evidence." We hold that the court erred and that the requirement of "some evidence" was satisfied.818In Tatum we held that requirement satisfied by considerably less than is present here. Tatum claimed lack of memory concerning the critical events and three lay witnesses testified that he appeared to be in "more or less of a trance," or "abnormal," but two psychiatrists testified that he was of "sound mind" both at the time of examination and at the time of the crime. Here, the psychiatric testimony was unequivocal that Durham was of unsound mind at the time of the crime. Dr. Gilbert, the only expert witness heard,9 so stated at least four times.

21 This crucial testimony is set out in the margin.10 Intensive questioning by the court failed to produce any retraction of Dr. Gilbert's testimony that the "period of insanity would have embraced the date July 13, 1951." And though the prosecution sought unsuccessfully in its cross- and recross-examination of Dr. Gilbert to establish that Durham was a malingerer who feigned insanity whenever he was trapped for his misdeeds, it failed to present any expert testimony to support this theory. In addition to Dr. Gilbert's testimony, there was testimony by Durham's mother to the effect that in the interval between his discharge from St. Elizabeths in May 1951, and the crime "he seemed afraid of people" and had urged her to put steel bars on his bed-room windows.19Apparently the trial judge regarded this psychiatric testimony as "no testimony" on two grounds: (1) it did not adequately cover Durham's condition on July 13, 1951, the date of the offense; and (2) it was not directed to Durham's capacity to distinguish between right and wrong. We are unable to agree that for either of these reasons the psychiatric testimony could properly be considered "no testimony."20(1) Following Dr. Gilbert's testimony that the condition in which he found Durham on September 3, 1951 was progressive and did not "arrive overnight," Dr. Gilbert responded to a series of questions by the court:21"Q. [Court]. Then is it reasonable to assume that it is not possible to determine how far this state of unsound mind had progressed by July 13th? Isn't that so? A. [Dr. Gilbert]. As to the seriousness of the symptoms as compared with them and the time I observed him, that's true, except that his travels were based, according to his statement to me, on certain of the symptoms and his leaving Washington, his giving up his job and work and leaving the work that he had tried to do.22"Q. But you can't tell, can you, how far those symptoms had progressed and become worse by the 13th of July? A. No, not how far they were, that is correct." [Emphasis supplied.]23Thereafter, when the prosecutor on recross asked Dr. Gilbert whether he would change his opinion concerning Durham's mental condition on July 13, 1951, if he knew that Durham had been released from St. Elizabeths just two months before as being of sound mind, the court interrupted to say: "Just a minute. The Doctor testified in answer to my question that he doesn't know and he can't express a definite opinion as to his mental condition on the 13th of July." This, we think, overlooks the witness' unequivocal testimony on direct and cross- examination,11 and misconceives what he had said in response to questioning by the court, namely, that certain symptoms of mental disorder ante-dated the crime, although it was impossible to say how far they had progressed.24Moreover, any conclusion that there was "no testimony" regarding Durham's mental condition at the time of the crime disregards the testimony of his mother. Her account of his behavior after his discharge from St. Elizabeths in May 1951 was directly pertinent to the issue of his sanity at the time of the crime.25(2) On re-direct examination, Dr. Gilbert was asked whether he would say that Durham "knew the difference between right and wrong on July 13, 1951; that is, his ability to distinguish between what was right and what was wrong." He replied: "As I have stated before, if the question of the right and wrong were

21 propounded to him he could give you the right answer." Then the court interrupted to ask:26"The Court. No, I don't think that is the question, Doctor — not whether he could give a right answer to a question, but whether he, himself, knew the difference between right and wrong in connection with governing his own actions. * * * If you are unable to answer, why, you can say so; I mean, if you are unable to form an opinion.27"The Witness. I can only answer this way: That I can't tell how much the abnormal thinking and the abnormal experiences in the form of hallucinations and delusions — delusions of persecution — had to do with his anti-social behavior.28"I don't know how anyone can answer that question categorically, except as one's experience leads him to know that most mental cases can give you a categorical answer of right and wrong, but what influence these symptoms have on abnormal behavior or anti-social behavior —29"The Court. Well, your answer is that you are unable to form an opinion, is that it?30"The Witness. I would say that that is essentially true, for the reasons that I have given."31Later, when defense counsel sought elaboration from Dr. Gilbert on his answers relating to the "right and wrong" test, the court cut off the questioning with the admonition that "you have answered the question, Doctor."32The inability of the expert to give categorical assurance that Durham was unable to distinguish between right and wrong did not destroy the effect of his previous testimony that the period of Durham's "insanity" embraced July 13, 1951. It is plain from our decision in Tatum that this previous testimony was adequate to prevent the presumption of sanity from becoming conclusive and to place the burden of proving sanity upon the Government. None of the testimony before the court in Tatum was couched in terms of "right and wrong."33Finally, even assuming arguendo that the court, contrary to the plain meaning of its words, recognized that the prosecution had the burden of proving Durham's sanity, there would still be a fatal error. For once the issue of insanity is raised by the introduction of "some evidence," so that the presumption of sanity is no longer absolute, it is incumbent upon the trier of fact to weigh and consider "the whole evidence, including that supplied by the presumption of sanity * * *" on the issue of "the capacity in law of the accused to commit" the crime.12 Here, manifestly, the court as the trier of fact did not and could not weigh "the whole evidence," for it found there was "no testimony concerning the mental state" of Durham.34For the foregoing reasons, the judgment is reversed and the case is remanded for a new trial.35It has been ably argued by counsel for Durham that the existing tests in the District of Columbia for determining criminal responsibility, i. e., the so-called right-wrong test supplemented by the irresistible impulse test, are not satisfactory criteria for determining criminal responsibility. We are urged to adopt a different test to be applied on the retrial of this case. This contention has behind it nearly a century of agitation for reform.36A.

21 The right-wrong test, approved in this jurisdiction in 1882,13 was the exclusive test of criminal responsibility in the District of Columbia until 1929 when we approved the irresistible impulse test as a supplementary test in Smith v. United States.14

The right-wrong test has its roots in England. There, by the first quarter of the eighteenth century, an accused escaped punishment if he could not distinguish "good and evil," i. e., if he "doth not know what he is doing, no more than * * * a wild beast."15 Later in the same century, the "wild beast" test was abandoned and "right and wrong" was substituted for "good and evil."16 And toward the middle of the nineteenth century, the House of Lords in the famous M'Naghten case17 restated what had become the accepted "right-wrong" test18 in a form which has since been followed, not only in England19 but in most American jurisdictions20 as an exclusive test of criminal responsibility:37"* * * the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring 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 he was doing what was wrong."2138

As early as 1838, Isaac Ray, one of the founders of the American Psychiatric Association, in his now classic Medical Jurisprudence of Insanity, called knowledge of right and wrong a "fallacious" test of criminal responsibility.22 This view has long since been substantiated by enormous developments in knowledge of mental life.23

In 1928 Mr. Justice Cardozo said to the New York Academy of Medicine: "Everyone concedes that the present [legal] definition of insanity has little relation to the truths of mental life."2439Medico-legal writers in large number,25

The Report of the Royal Commission on Capital Punishment 1949-1953,26 and The Preliminary Report by the Committee on Forensic Psychiatry of the Group for the Advancement of Psychiatry27 present convincing evidence that the right-and-wrong test is "based on an entirely obsolete and misleading conception of the nature of insanity."28 The science of psychiatry now recognizes that a man is an integrated personality and that reason, which is only one element in that personality, is not the

21 sole determinant of his conduct. The right-wrong test, which considers knowledge or reason alone, is therefore an inadequate guide to mental responsibility for criminal behavior.

As Professor Sheldon Glueck of the Harvard Law School points out in discussing the right-wrong tests, which he calls the knowledge tests:40"It is evident that the knowledge tests unscientifically abstract out of the mental make-up but one phase or element of mental life, the cognitive, which, in this era of dynamic psychology, is beginning to be regarded as not the most important factor in conduct and its disorders. In brief, these tests proceed upon the following questionable assumptions of an outworn era in psychiatry: (1) that lack of knowledge of the `nature or quality' of an act (assuming the meaning of such terms to be clear), or incapacity to know right from wrong, is the sole or even the most important symptom of mental disorder; (2) that such knowledge is the sole instigator and guide of conduct, or at least the most important element therein, and consequently should be the sole criterion of responsibility when insanity is involved; and (3) that the capacity of knowing right from wrong can be completely intact and functioning perfectly even though a defendant is otherwise demonstrably of disordered mind."294

1Nine years ago we said:42"The modern science of psychology * * * does not conceive that there is a separate little man in the top of one's head called reason whose function it is to guide another unruly little man called instinct, emotion, or impulse in the way he should go."3043By its misleading emphasis on the cognitive, the right- wrong test requires court and jury to rely upon what is, scientifically speaking, inadequate, and most often, invalid31 and irrelevant testimony in determining criminal responsibility.3244The fundamental objection to the right-wrong test, however, is not that criminal irresponsibility is made to rest upon an inadequate, invalid or indeterminable symptom or manifestation, but that it is made to rest upon any particular symptom.33 In attempting to define insanity in terms of a symptom, the courts have assumed an impossible role,34 not merely one for which they have no special competence.35 As the Royal Commission emphasizes, it is dangerous "to abstract particular mental faculties, and to lay it down that unless these particular faculties are destroyed or gravely impaired, an accused person, whatever the nature of his mental disease, must be held to be criminally responsible * * *."36

21 In this field of law as in others, the fact finder should be free to consider all information advanced by relevant scientific disciplines.3745Despite demands in the name of scientific advances, this court refused to alter the right-wrong test at the turn of the century.38 But in 1929, we reconsidered in response to "the cry of scientific experts" and added the irresistible impulse test as a supplementary test for determining criminal responsibility. Without "hesitation" we declared, in Smith v. United States, "it to be the law of this District that, in cases where insanity is interposed as a defense, and the facts are sufficient to call for the application of the rule of irresistible impulse, the jury should be so charged."39 We said:46"* * * The modern doctrine is that the degree of insanity which will relieve the accused of the consequences of a criminal act must be such as to create in his mind an uncontrollable impulse to commit the offense charged. This impulse must be such as to override the reason and judgment and obliterate the sense of right and wrong to the extent that the accused is deprived of the power to choose between right and wrong. The mere ability to distinguish right from wrong is no longer the correct test either in civil or criminal cases, where the defense of insanity is interposed. The accepted rule in this day and age, with the great advancement in medical science as an enlightening influence on this subject, is that the accused must be capable, not only of distinguishing between right and wrong, but that he was not impelled to do the act by an irresistible impulse, which means before it will justify a verdict of acquittal that his reasoning powers were so far dethroned by his diseased mental condition as to deprive him of the will power to resist the insane impulse to perpetrate the deed, though knowing it to be wrong."4047As we have already indicated, this has since been the test in the District.48Although the Smith case did not abandon the right-wrong test, it did liberate the fact finder from exclusive reliance upon that discredited criterion by allowing the jury to inquire also whether the accused suffered from an undefined "diseased mental condition [which] deprive[d] him of the will power to resist the insane impulse * * *."41 The term "irresistible impulse," however, carries the misleading implication that "diseased mental condition[s]" produce only sudden, momentary or spontaneous inclinations to commit unlawful acts.4249As the Royal Commission found:50"* * * In many cases * * * this is not true at all. The sufferer from [melancholia, for example] experiences a change of mood which alters the whole of his existence. He may believe, for instance, that a future of such degradation and misery awaits both him and his family that death for all is a less dreadful alternative. Even the thought that the acts he contemplates are murder and suicide pales into insignificance in contrast with what he otherwise expects. The criminal act, in such circumstances, may be the reverse of impulsive. It may be coolly and carefully prepared; yet it is still the act of a madman. This is merely an illustration; similar states of mind are likely to lie behind the criminal act when murders are committed by persons suffering from schizophrenia or paranoid psychoses due to disease of the brain."4351We find that as an exclusive criterion the right-wrong test is inadequate in that (a) it does not take sufficient account of psychic realities and

21 scientific knowledge, and (b) it is based upon one symptom and so cannot validly be applied in all circumstances. We find that the "irresistible impulse" test is also inadequate in that it gives no recognition to mental illness characterized by brooding and reflection and so relegates acts caused by such illness to the application of the inadequate right-wrong test. We conclude that a broader test should be adopted.4452B. In the District of Columbia, the formulation of tests of criminal responsibility is entrusted to the courts45 and, in adopting a new test, we invoke our inherent power to make the change prospectively.4653The rule we now hold must be applied on the retrial of this case and in future cases is not unlike that followed by the New Hampshire court since 1870.47 It is simply that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.4854We use "disease" in the sense of a condition which is considered capable of either improving or deteriorating. We use "defect" in the sense of a condition which is not considered capable of either improving or deteriorating and which may be either congenital, or the result of injury, or the residual effect of a physical or mental disease.55Whenever there is "some evidence" that the accused suffered from a diseased or defective mental condition at the time the unlawful act was committed, the trial court must provide the jury with guides for determining whether the accused can be held criminally responsible. We do not, and indeed could not, formulate an instruction which would be either appropriate or binding in all cases. But under the rule now announced, any instruction should in some way convey to the jury the sense and substance of the following: If you the jury believe beyond a reasonable doubt that the accused was not suffering from a diseased or defective mental condition at the time he committed the criminal act charged, you may find him guilty. If you believe he was suffering from a diseased or defective mental condition when he committed the act, but believe beyond a reasonable doubt that the act was not the product of such mental abnormality, you may find him guilty. Unless you believe beyond a reasonable doubt either that he was not suffering from a diseased or defective mental condition, or that the act was not the product of such abnormality, you must find the accused not guilty by reason of insanity. Thus your task would not be completed upon finding, if you did find, that the accused suffered from a mental disease or defect. He would still be responsible for his unlawful act if there was no causal connection between such mental abnormality and the act.49 These questions must be determined by you from the facts which you find to be fairly deducible from the testimony and the evidence in this case.5056The questions of fact under the test we now lay down are as capable of determination by the jury as, for example, the questions juries must determine upon a claim of total disability under a policy of insurance where the state of medical knowledge concerning the disease involved, and its effects, is obscure or in conflict. In such cases, the jury is not required to depend on arbitrarily selected "symptoms, phases or manifestations"51 of the disease as criteria for determining the ultimate questions of fact upon which the claim depends. Similarly, upon a claim of criminal irresponsibility, the jury will not be

21 required to rely on such symptoms as criteria for determining the ultimate question of fact upon which such claim depends. Testimony as to such "symptoms, phases or manifestations," along with other relevant evidence, will go to the jury upon the ultimate questions of fact which it alone can finally determine. Whatever the state of psychiatry, the psychiatrist will be permitted to carry out his principal court function which, as we noted in Holloway v. U. S., "is to inform the jury of the character of [the accused's] mental disease [or defect]."52 The jury's range of inquiry will not be limited to, but may include, for example, whether an accused, who suffered from a mental disease or defect did not know the difference between right and wrong, acted under the compulsion of an irresistible impulse, or had "been deprived of or lost the power of his will * * *."5357Finally, in leaving the determination of the ultimate question of fact to the jury, we permit it to perform its traditional function which, as we said in Holloway, is to apply "our inherited ideas of moral responsibility to individuals prosecuted for crime * * *."54 Juries will continue to make moral judgments, still operating under the fundamental precept that "Our collective conscience does not allow punishment where it cannot impose blame."55 But in making such judgments, they will be guided by wider horizons of knowledge concerning mental life. The question will be simply whether the accused acted because of a mental disorder, and not whether he displayed particular symptoms which medical science has long recognized do not necessarily, or even typically, accompany even the most serious mental disorder.5658The legal and moral traditions of the western world require that those who, of their own free will and with evil intent (sometimes called mens rea), commit acts which violate the law, shall be criminally responsible for those acts. Our traditions also require that where such acts stem from and are the product of a mental disease or defect as those terms are used herein, moral blame shall not attach, and hence there will not be criminal responsibility.57 The rule we state in this opinion is designed to meet these requirements.59Reversed and remanded for a new trial.

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21 Over the Next 18 years the DC court backpedaled.

McDonald v. United States Defined mental illness ‘includes any abnormal condition of the mind which substantially affects mental or emotional processes and which substantially impairs behavior control.'

Washington The transcript in this case illustrates that they (psychiatrists) may have served more to confuse the jury than to guide it. Also, testimony in terms of ‘mental disease or defect’ seems to leave the psychiatrist too free to testify according to his judgment about the defendant's criminal responsibility.FN26

The Brawner rule

United States v. Brawner, 471 F.2d 969 (1972) by the United States Court of Appeals for the District of Columbia Circuit, set aside the Durham ruling arguing the ruling’s requirement that a crime must be a “product of mental disease or defect” placed the question of guilt on expert witnesses and diminished the jury’s role in determining guilt.

Under this proposal, juries are allowed to decide the "insanity question" as they see fit. Basing its ruling on the American Law Institute’s (ALI) Model Penal Code, the court ruled

22 that for a defendant not to be criminally guilty for a crime the defendant, “(i) lacks substantial capacity to appreciate that his conduct is wrongful, or (ii) lacks substantial capacity to conform his conduct to the law.” It is noteworthy that this case was (1) decided by the U.S. Court of Appeals for the District of Columbia circuit and not the United States Supreme Court, and is thus not a national precedent, and (2) not based on constitutional arguments and was thus superseded by Congress in 1984 with the Insanity Defense Reform Act of 1984.

Cases Leading up to Brawner McDonald v. United States (D.C. 1962) – Defined Mental illness Washington v. U.S., (D.C.1967) – Could not answer the Ultimate Question U.S. v. Brawner (D.C. 1972) – Product test abandoned and ALI used

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22 Dr. Park Dietz, a thirty-three years old member of the Harvard Medical School faculty at the time of the Hinckley trial, presented five days of expert psychiatric testimony for the prosecution. All observers agree that Dietz was a star. Dietz's precise answers, presented in a "high, prim" voice, were memorable and effective--not surprising for someone who had appeared as a forensic psychiatrist for the prosecution in over one hundred cases. http://law2.umkc.edu/faculty/projects/ftrials/hinckley/hinckleykeyfigures.htm

Assassination attempt of Reagan on March 30, 1981, as the culmination of an effort to impress actress, Jodie Foster. Found NGRI on June 21, 1982.

Led to the Insanity Defense Reform Act of 1984. Watched Taxi Driver in 1976. Stalked Foster while she was at Yale. To this end, he trailed President Jimmy Carter from state to state, but was arrested in Nashville, Tennessee on a firearms charge.

The test, also called the Product Test. The Brawner Rule, from the case of United States v. Brawner, 471 F.2d 969 (1972) by the United States Court of Appeals for the District of Columbia Circuit, set aside the Durham ruling and applied that for a defendant not to be criminally guilty for a crime the defendant, “(i) lacks substantial capacity to appreciate that his conduct is wrongful, or (ii) lacks substantial capacity to conform his conduct to the law.”

Before Hinckley, the burden of proof in federal cases was on the prosecution to prove beyond a reasonable doubt that a defendant was sane. The post-Hinckley reform legislation

23 shifted the burden to the defendant to prove with clear and convincing evidence that he was legally insane at the time of the crime. According to an eight-state study the insanity defense is used in less than 1% of all court cases and is only successful in 26% of cases. Of those cases that were successful, 90% of defendants had been previously diagnosed with mental illness.

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23 Before the Hinckley verdict, a majority of states had the burden of proof rest with the state; that is, the prosecutor had to prove that the defendant was not insane. After the Hinckley verdict, the vast majority of states required the defense to prove that the defendant was indeed insane. In states where the burden is on the defense to prove insanity, the defense is required to show either by clear and convincing evidence or by a preponderance of the evidence that the defendant is insane. In states where the burden is still on prosecutors to prove sanity, they are required to prove it beyond a reasonable doubt.

Federal Insanity Defense Reform Act of 1984 Was passed due to the public outcry following John Hinckley being found NGRI after he attempted to assassinate President Reagan. It changes the Federal Insanity standard from the ALI to a McNaughtan standard. It also shifts the burden of proof to the defendant by clear and convincing. In effect, it makes it harder to be found NGRI.

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24 .

24 Most States also changed the Burden of Proof from the State to the defendant burden of proving… is cast upon the accused Alabama

Every person over 14 years of age charged with crime is presumed to be responsible for his acts, and the burden of proving that he is irresponsible is cast upon the accused. The defense of insanity in all criminal prosecutions shall be clearly proved to the reasonable satisfaction of the jury. - §15-16-2

Reasonable suspicion is a low standard of proof in the U.S. to determine whether a brief investigative stop or search by a police officer or any government agent is warranted

Probable cause is a relatively low standard of evidence, which is used in the United States to

25 determine whether a search, or an arrest, is warranted. It is also used by grand juries to determine whether to issue an indictment.

Courts vary when determining what constitutes a "fair probability," some say 30%, others 40%, others 51%.

Preponderance of the evidence, also known as balance of probabilities

Clear and convincing evidence is a higher level of burden of persuasion than a "Preponderance of the Evidence", and is employed intra adjudicatively in Administrative Court determinations, as well as in civil and criminal procedure in the United States.

This is the highest standard used as the burden of proof in Anglo-American jurisprudence and typically only applies in criminal proceedings.

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25 Alabama Rule

13A-3-1

Mental disease or defect. (a) It is an affirmative defense to a prosecution for any crime that, at the time of the commission of the acts constituting the offense, the defendant, as a result of severe mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

(b) "Severe mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(c) The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

(Acts 1977, No. 607, p. 812, §501; Acts 1988, No. 88-654, p. 1051, §2.)

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26 M’Naghten’s Case (1843) – Right wrong Durham v. U.S., (D.C. 1954) – Product Test McDonald v. United States (D.C. 1962) – Defined Mental illness Washington v. U.S., (D.C.1967) – Could not answer the Ultimate Question U.S. v. Brawner (D.C. 1972) – Product test abandoned and ALI used Frendak v. U.S. (D.C. 1979) – Could not Impose insanity on a person

Jones v. U.S. (1983) - Could hold some one if they were mentally ill or dangerous U.S. v. Torniero, (1984) - Foucha v. Louisiana, (1992) – Had to release patient if they did not meet civil commitment criteria – could just be dangerous Clark v. Arizona (2006) – said states didn’t have to have diminished capacity

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27 Insanity Pendulum

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28 Criminal Herbicide

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29 Does he have an insanity defense?

Auburn discovered the poisoning after taking soil samples on Jan. 28, a day after a man called a syndicated radio show based in Birmingham saying he had used the herbicide on the trees.

"The weekend after the Iron Bowl, I went to Auburn, Ala., because I live 30 miles away, and I poisoned the Toomer's trees," the caller told The Paul Finebaum Radio Show, saying he was at the Iron Bowl

.Calling himself "Al from Dadeville," he said he used Spike 80DF, also known as tebuthiuron, and the trees "definitely will die." The caller signed off with, "Roll Damn Tide.”

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