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The Historic Swings of the Insanity Defense

Brian David Mitchell's defense team claims he was insane during the time of Elizabeth Smart's kidnapping and captivity

By Jenny Brundin

Salt Lake City, UT – Dueling mental health experts are in the spotlight during the fourth week of testimony in the trial of Brain David Mitchell. He's accused of kidnapping and sexually assaulting Elizabeth Smart in June 2002. Jurors must decide whether Mitchell was insane during the 9 months he allegedly held Smart captive. How these jurors evaluate criminal responsibility for someone claiming to be insane is rooted in history. There have been several historic pendulum swings between punishing and protecting the legally insane.

If the crimes against Elizabeth Smart took place in 19th century England, jurors would be relying on something called the "wild beast test" as they evaluated whether Brian David Mitchell was insane. The case that established this standard involved a man who tried to murder a British Lord.

"The judge in that case instructed the jury that they should acquit the defendant if he didn't know what he what he was doing,' said Hank Fradella, chair of the Department of Criminal Justice at California State University Long Beach. If he acted no more than an infant than a brut or a wild beast.' The wild beast defense really looked at a level of impairment that involved a near complete deprivation of mental faculties to win an acquittal."

The insanity defense actually, goes back much further. It has roots in Muslim, Hebrew and Roman law. At times, the mind was treated as a mystery; at times, a tool of supernatural control. Over history, as views of human nature shifted, notions of when insanity should absolve criminals of responsibility for their acts shifted as well. In 1843, "the wild beast" standard shifted during the case of Daniel M'Naughton. The Scottish woodworker, while trying to kill British Prime Minister Sir Robert Peel, murdered Peel's personal secretary.

"When he was arrested he said he needed to kill the prime minister because he said,"The Tories in my city follow and persecute me wherever I go,"" Fradella said.

The jury returned the first ever verdict of not guilty by reason of insanity. They concluded that M'Naughton didn't know the difference between right and wrong. By the mid-20th century, though, courts saw that standard as too restrictive.

"That focus on knowing the difference between right and wrong really subjected the M'Naughton test for insanity to great criticism from scholars and practitioners alike because knowing right from wrong is not necessarily the same as understanding right from wrong," Fradella said.

That is, an appreciation for the consequences for one's actions. In the U.S. in the 1950s, as modern psychiatric science became more prominent, a much more liberal standard arose - called the Durham rule. It held that the defendant was not criminally responsible if the crime was a product of a mental disease or defect. Hank Fradella says there was no ability to distinguish right versus wrong as there had been under the M'Naughton test.

"Much easier for a defendant to claim well I'm mentally ill and that caused me to do something," Fradella said.

Critics worried criminals could use minor disorders as excuses for their crimes. So in the 1960s and 70s, the pendulum swung back the other way. Now, defendants had to lack the "substantial capacity" to appreciate what they were doing was wrong, or the capacity to control their behavior. That is, until the landmark case of John Hinckley. He became obsessed with the actress Jodie Foster in the film "Taxi Driver." Hinckley made several attempts to woo Foster while she was a student at Yale.

"But Hinckley was schizophrenic and he interpreted Jodie Foster's rebuffing of her advances as needing him to do something that he called a "great act" that would prove to her how much he loved her, and why should be with him," said Fradella. "And in his very distorted way of thinking, the great act that allegedly would woo Jodie Foster into loving him, was to try and kill President Ronald Reagan."

Hinckley shot Reagan as he was leaving the Washington Hilton Hotel in D.C. on March 30, 1981. Reagan, of course lived, and Hinckley was charged with attempted murder. The jury listened to weeks of conflicting testimony from psychiatrists and psychologists.

"And eventually the jury acquitted John Hinckley," Fradella said. "They found him not guilty by reason of insanity and one juror after the case said, "I felt trapped by the "substantial capacity test."' She said, "my conscience had me voting one way but the law wouldn't allow me to do that.'"

Public outrage followed the verdict, outrage that murderers were "getting off " by claiming the insanity defense. So in 1984, Congress passed the Insanity Defense Reform Act.

"And that is the version of the insanity defense that will apply in Brian Mitchell's trial," Fradella said.

Here's how Paul Cassell, law professor at the University of Utah describes it.

"The insanity defense requires the defendant to prove by clear and convincing evidence that he could not understand that what he was doing was wrong. So if he was not able to appreciate the wrongfulness of his action, then the jury should find him not guilty. But on the other hand if he understood what was going on and understood that it was wrong, then they should find him guilty."

It's a swing back to the M'Naughton right/wrong standard, but tougher. Under the new law, the standard of evidence was increased to clear and convincing and the burden of proof shifted from the prosecution to the defense.

"So Mitchell here is going to have to convince the jury that he is insane and if there's some dispute about that, he's still going to be found guilty," Cassell said.

Cassell says the question is really one of motivation. Is Mitchell being motivated by something that makes him look like he's trying to do the right thing, for example, responding to revelations from God? That's the case the defense is mounting.

"Or is he being motivated by something that makes him look like he's doing this out of his own self-interest?"

A desire for sex, drugs and alcohol, as the prosecution contends. So though the remainder of the trial will largely be a battle between psychiatric experts Cassell reminds that they won't determine Brian David Mitchell's fate.

"This is not a decision to be made by psychological experts. It's a decision to be made by 12 reasonable people about what they think the truth is here," Cassell said.

The trial is expected to go until December 10.

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