James Holmes and the Insanity Defense
March 12, 2013 3:25 PM Subscribe
Today, Arapahoe County District Judge William Sylvester ordered psychiatric analysis of Dark Knight Rises mass-shooting suspect James Holmes. Holmes will enter a plea tomorrow and is expected to plea Not Guilty by reason of Insanity. Judge Sylvester's court order could involve use of both narco analysis (read: truth serum) and a polygraph test.
• The M'Naghten Rule
Like most U.S. States, Colorado follows a version of the M'Naghten Rule, which states under its original description that:
Colorado's modified version of MNaghten adds the Irresistible Impulse test, which allows for a defense of insanity if the finders of fact determine that the defendant could not have controlled their actions at the time.
In general, the burden of proof for M'Naghten is on the party relying on it, but in Colorado, the burden is on the State.
• Fifth Amendment Issues
The Fifth Amendment protects defendants from self-incrimination. This means, for instance, that a defendant may not be compelled to testify at a criminal trial. It is also the basis for Miranda rights, which provide you not only with the right to remain silent but also the right to be informed of these rights. As you might imagine, a defendant who is ordered to be put on drugs lowering their inhibition so that they may be more pliable to be interviewed by state actors could easily have a claim of violation of his Fifth Amendment rights, as they would be absolutely unable to give informed consent to the interview.
So how is the Court allowed to do this, then?
Because the statements made in the analysis under the court order almost certainly will not be admitted at trial, and certainly not as evidence towards the question of whether Holmes in fact committed the crime.
Insanity is an Affirmative Defense, meaning that because the defense posits facts not argued by the Plaintiff (in this case, the prosecution) the burden of proof shifts away from the "Reasonable Doubt" standard towards the more lenient (again to the prosecution, in this instance) "Preponderance of the Evidence" standard (usually.) Because, however, Colorado's version of M'Naghten places the burden of proof on the State, the State needs to do it's own investigation in order to argue the issue. Not surprisingly, that means psychoanalysis. But the law is fairly clear that such evidence would be admissible only to the question of Holmes' sanity (as judged by the MNaghten standard + Irresistible Impulse) and no other purpose. Such evidence, as it relates to the insanity defense, would most likely come in the form of expert testimony by psychoanalysts from both sides.
• Polygraph
In general, the Polygraph test works the same way. It is considered by most courts to be not reliable enough to overcome the substantial bias inherent in its results, and thus results are not admissible. (Though for Defendants, a willingness to take a Polygraph may be admissible to show innocence.) However, the state's psychoanalist may have use for one in determining his or her opinion on Holmes' sanity, and the actual results and questions involved would almost certainly not be admissible as evidence themselves.
• The M'Naghten Rule
Like most U.S. States, Colorado follows a version of the M'Naghten Rule, which states under its original description that:
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.This is in comparison to the Durham test, which is broader and states that the crime must have been the "product of the mental defect" in order for insanity to be determined.
Colorado's modified version of MNaghten adds the Irresistible Impulse test, which allows for a defense of insanity if the finders of fact determine that the defendant could not have controlled their actions at the time.
In general, the burden of proof for M'Naghten is on the party relying on it, but in Colorado, the burden is on the State.
• Fifth Amendment Issues
The Fifth Amendment protects defendants from self-incrimination. This means, for instance, that a defendant may not be compelled to testify at a criminal trial. It is also the basis for Miranda rights, which provide you not only with the right to remain silent but also the right to be informed of these rights. As you might imagine, a defendant who is ordered to be put on drugs lowering their inhibition so that they may be more pliable to be interviewed by state actors could easily have a claim of violation of his Fifth Amendment rights, as they would be absolutely unable to give informed consent to the interview.
So how is the Court allowed to do this, then?
Because the statements made in the analysis under the court order almost certainly will not be admitted at trial, and certainly not as evidence towards the question of whether Holmes in fact committed the crime.
Insanity is an Affirmative Defense, meaning that because the defense posits facts not argued by the Plaintiff (in this case, the prosecution) the burden of proof shifts away from the "Reasonable Doubt" standard towards the more lenient (again to the prosecution, in this instance) "Preponderance of the Evidence" standard (usually.) Because, however, Colorado's version of M'Naghten places the burden of proof on the State, the State needs to do it's own investigation in order to argue the issue. Not surprisingly, that means psychoanalysis. But the law is fairly clear that such evidence would be admissible only to the question of Holmes' sanity (as judged by the MNaghten standard + Irresistible Impulse) and no other purpose. Such evidence, as it relates to the insanity defense, would most likely come in the form of expert testimony by psychoanalysts from both sides.
• Polygraph
In general, the Polygraph test works the same way. It is considered by most courts to be not reliable enough to overcome the substantial bias inherent in its results, and thus results are not admissible. (Though for Defendants, a willingness to take a Polygraph may be admissible to show innocence.) However, the state's psychoanalist may have use for one in determining his or her opinion on Holmes' sanity, and the actual results and questions involved would almost certainly not be admissible as evidence themselves.
A truth serum and a polygraph test?
From the outside, the US legal system looks so quaint sometimes. I don't know what it looks like from the inside, though...
posted by sour cream at 3:38 PM on March 12, 2013 [10 favorites]
From the outside, the US legal system looks so quaint sometimes. I don't know what it looks like from the inside, though...
posted by sour cream at 3:38 PM on March 12, 2013 [10 favorites]
Great post, but the use of the word "psychoanalysis" here makes me think that Holmes is going to be put on the couch for several years to determine the ultimately Oedipal roots of his derangement. Tell me about your mother, Herr Holmes...
posted by Keter at 3:38 PM on March 12, 2013 [4 favorites]
posted by Keter at 3:38 PM on March 12, 2013 [4 favorites]
It's tangential, but I should have clarified that the Durham test is a "but-for" test, as in "but for this mental defect, the crime would not have been committed," which, as you might imagine, would probably be easier to show in this case ("but for mental defect nobody would have committed this crime...") than for the defense to show (even with the burden on the state) that Holmes' mental defect was such that he had no understanding of his actions or that they were wrong, or that he was uncontrollably compelled to commit them.
posted by Navelgazer at 3:43 PM on March 12, 2013
posted by Navelgazer at 3:43 PM on March 12, 2013
The M'Naghten Rule
Although I actually researched this rule for a psych class in collitch, I didn't know that was the proper spelling, as all the references I read used the "McNaughton" spelling. So I learned one that thing from your post as well. Thanks!
posted by Mental Wimp at 3:46 PM on March 12, 2013 [1 favorite]
Although I actually researched this rule for a psych class in collitch, I didn't know that was the proper spelling, as all the references I read used the "McNaughton" spelling. So I learned one that thing from your post as well. Thanks!
posted by Mental Wimp at 3:46 PM on March 12, 2013 [1 favorite]
Mental Wimp - I misspelled it when googling for links!
posted by Navelgazer at 3:47 PM on March 12, 2013
posted by Navelgazer at 3:47 PM on March 12, 2013
A truth serum and a polygraph test?
I believe he may also be tested for buoyancy.
posted by indubitable at 3:49 PM on March 12, 2013 [77 favorites]
I believe he may also be tested for buoyancy.
posted by indubitable at 3:49 PM on March 12, 2013 [77 favorites]
there's something nicely kafkaesque about giving someone mind-altering drugs to determine if they are sane.
I still don't understand why narco-analysis is on the menu, except that it makes it sound like the whole thing is going on in Victorian London.
posted by ennui.bz at 3:54 PM on March 12, 2013 [13 favorites]
I still don't understand why narco-analysis is on the menu, except that it makes it sound like the whole thing is going on in Victorian London.
posted by ennui.bz at 3:54 PM on March 12, 2013 [13 favorites]
M'Naghten sounds like the name of a minor Ringwraith.
posted by thatwhichfalls at 3:55 PM on March 12, 2013 [5 favorites]
posted by thatwhichfalls at 3:55 PM on March 12, 2013 [5 favorites]
What sort of whacky-shithole planet are we on where the ostensibly educated members of the judiciary consider polygraph and narcoanalysis valid tools while the rest of the medical and empirical communities seems to've long ago discarded this nonsense.
Also, what the heck?
"Academic studies have shown that the technique has involved the use of sodium amytal and pentothal, sometimes called truth serum."
What the hell is this? An initiation rite performed by a secretive cult?! Is there not a standard procedure?
"In addition to barbiturates, [the US Military] tried cannabis (“Truth Drug”), mescaline (“Project Chatter”), a combination of stimulants and barbiturates, one injected into each arm, (“Twilight Zone”), and LSD (“Operation Artichoke” and “Operation Third Chance”) (Bowden, 2003 and Lee, 2002). None of these drugs were successful at encouraging prisoners of war to reveal their “truths”. Marijuana caused “great loquacity and hilarity” (Lee, 2002), mescaline caused hallucinations, the barbiturate/stimulant combination encouraged unintelligible speech (Lee, 2002) and the LSD caused such frightening hallucinations that one person committed suicide and many others repeatedly injured themselves (Bowden, 2003). After these disasters, barbiturates were tried again without much success. Finally, in 1963, the Supreme Court ruled that “serum-induced” confession was a form of torture and therefore unconstitutional." --Lie detection: Historical, neuropsychiatric and legal dimensions
posted by Matt Oneiros at 3:59 PM on March 12, 2013 [12 favorites]
Also, what the heck?
"Academic studies have shown that the technique has involved the use of sodium amytal and pentothal, sometimes called truth serum."
What the hell is this? An initiation rite performed by a secretive cult?! Is there not a standard procedure?
"In addition to barbiturates, [the US Military] tried cannabis (“Truth Drug”), mescaline (“Project Chatter”), a combination of stimulants and barbiturates, one injected into each arm, (“Twilight Zone”), and LSD (“Operation Artichoke” and “Operation Third Chance”) (Bowden, 2003 and Lee, 2002). None of these drugs were successful at encouraging prisoners of war to reveal their “truths”. Marijuana caused “great loquacity and hilarity” (Lee, 2002), mescaline caused hallucinations, the barbiturate/stimulant combination encouraged unintelligible speech (Lee, 2002) and the LSD caused such frightening hallucinations that one person committed suicide and many others repeatedly injured themselves (Bowden, 2003). After these disasters, barbiturates were tried again without much success. Finally, in 1963, the Supreme Court ruled that “serum-induced” confession was a form of torture and therefore unconstitutional." --Lie detection: Historical, neuropsychiatric and legal dimensions
posted by Matt Oneiros at 3:59 PM on March 12, 2013 [12 favorites]
Good post! Here in Canada, as in most of the US, statements made to a polygraph examiner are admissible, but the results of the test itself is not.
posted by sfred at 4:00 PM on March 12, 2013
posted by sfred at 4:00 PM on March 12, 2013
Right. I'd imagine that the statements made in this case (if a polygraph were to be used) would not be admissible, as the statements are involuntary. I am not a psychologist (and am barely a law talking guy, to be honest) but I can picture uses for both a polygraph and inhibition-lowering sedatives for a psychoanalyst when interviewing a presumably hostile subject.
posted by Navelgazer at 4:04 PM on March 12, 2013
posted by Navelgazer at 4:04 PM on March 12, 2013
In general, the burden of proof for M'Naghten is on the party relying on it, but in Colorado, the burden is on the State.
Just to be clear... the state is drugging him to prove that he WASN'T insane?
posted by desjardins at 4:04 PM on March 12, 2013 [1 favorite]
Just to be clear... the state is drugging him to prove that he WASN'T insane?
posted by desjardins at 4:04 PM on March 12, 2013 [1 favorite]
I suspect the reason this unusual (and possibly useless) requirement is Holmes' background. A highly rated grad student in a field which might aid in faking the insanity claim.
posted by shnarg at 4:06 PM on March 12, 2013
posted by shnarg at 4:06 PM on March 12, 2013
desjardins: that's my reading on it, yes.
posted by Navelgazer at 4:11 PM on March 12, 2013
posted by Navelgazer at 4:11 PM on March 12, 2013
But that's crazy. No pun intended. Why has Colorado reversed the burden of proof like this?
posted by His thoughts were red thoughts at 4:14 PM on March 12, 2013
posted by His thoughts were red thoughts at 4:14 PM on March 12, 2013
The only person I would ever trust to use Veritaserum responsibly is Albus Dumbledore. Why would the prosecution try to put that on the table? Why would the judge go for it?
posted by brina at 4:18 PM on March 12, 2013 [6 favorites]
posted by brina at 4:18 PM on March 12, 2013 [6 favorites]
His thoughts were red thoughts: this is all conjecture, but insanity defenses are rare for a reason. Because, if a defendant is successful in their insanity plea, they are submitted to a psychiatric hospital rather than sentenced, there is no limit to the "time served," and that time can be as hellish if not more so than time spent in prison. In general, defense attorneys know to only use the defense in cases of life-sentences or capital crimes (such as this one) because it is, in reality, worse than going to jail in many ways.
So my guess is that colorado decided that in most cases of a defendant pleading insanity, it would be best to presume that the defendant wasn't lying about it and make the burden of proof be on the rebuttal. Perhaps there was also a determination made that psychiatric care was money better spent than imprisonment, if the defendant pushes for it.
posted by Navelgazer at 4:20 PM on March 12, 2013 [7 favorites]
So my guess is that colorado decided that in most cases of a defendant pleading insanity, it would be best to presume that the defendant wasn't lying about it and make the burden of proof be on the rebuttal. Perhaps there was also a determination made that psychiatric care was money better spent than imprisonment, if the defendant pushes for it.
posted by Navelgazer at 4:20 PM on March 12, 2013 [7 favorites]
and brina: presumably because it's not being used to gain a confession, but rather just to put Holmes into a more talkative state for his mental evaluation. Likewise the polygraph, while synonymous with "lie detector" in most of our imaginations, is at its most basic a tool for gauging physical reactions to questioning, which could be useful in that respect as well.
posted by Navelgazer at 4:21 PM on March 12, 2013 [6 favorites]
posted by Navelgazer at 4:21 PM on March 12, 2013 [6 favorites]
Thanks, Navelgazer.
posted by His thoughts were red thoughts at 4:24 PM on March 12, 2013
posted by His thoughts were red thoughts at 4:24 PM on March 12, 2013
The problem this procedure is trying to address (leaving aside whether it is a good solution or not) is that it is difficult to assess the subjective mental state of a person who does not want to cooperate with that assessment. For example, a criminal defendant might refuse to speak to doctors or simply say that they don't remember anything/don't know who they are/etc. When you have someone like that, and you need to determine whether they are fit to stand trial and/or responsible for their own conduct, you need some way to test their internal mental state. So how do you do that? It's a difficult medial and philosophical issue. This is a probably ham-handed way to get at that problem. But it's probably better than just junking the whole concept of not guilty by reason of insanity / unfit to stand trial, which would be another option that even less enlightened people might come up with.
posted by Mid at 4:33 PM on March 12, 2013 [1 favorite]
posted by Mid at 4:33 PM on March 12, 2013 [1 favorite]
Based on my personal work with mentally ill people in the tech and non-profit industries. it sounds as though they cannot keep him medicated and cannot find a remedy. they probably will find nothing.
something that has recently happened in France is that a psychiatrist was jailed after one of her patients went off their medication and killed a man. I do think this kind of law should be on the books in the USA. particularly since psychiatry is mainly based on drugs today.
posted by parmanparman at 4:33 PM on March 12, 2013 [1 favorite]
something that has recently happened in France is that a psychiatrist was jailed after one of her patients went off their medication and killed a man. I do think this kind of law should be on the books in the USA. particularly since psychiatry is mainly based on drugs today.
posted by parmanparman at 4:33 PM on March 12, 2013 [1 favorite]
mescaline caused hallucinations
And who could have predicted THAT?
posted by flaterik at 4:33 PM on March 12, 2013 [2 favorites]
And who could have predicted THAT?
posted by flaterik at 4:33 PM on March 12, 2013 [2 favorites]
Damnit! I misread Arapahoe as Arpaio, and then saw "psychiatric evaluation" and was like OMG! Then I saw "Dark Knight" and was all like ... Oh.
posted by symbioid at 4:36 PM on March 12, 2013 [2 favorites]
posted by symbioid at 4:36 PM on March 12, 2013 [2 favorites]
From the outside, the US legal system looks so quaint sometimes. I don't know what it looks like from the inside, though...
It looks like a pretty, pretty butterfly. Or a beast. Next card.
posted by It's Raining Florence Henderson at 4:37 PM on March 12, 2013 [13 favorites]
It looks like a pretty, pretty butterfly. Or a beast. Next card.
posted by It's Raining Florence Henderson at 4:37 PM on March 12, 2013 [13 favorites]
Holmes had the glazed look of high-dose Haldol in his early court appearances. If they've still got him on antipsychotics, they're more likely to put him to sleep with a barbiturate than to get him talking. And yes, the whole notion of a truth serum was antiquated forty years ago—no reputable clinician, in the US or elsewhere, would tell you otherwise. Though I suppose the US legal system has never been real keen on the whole evidence-based practice thing.
posted by dephlogisticated at 5:20 PM on March 12, 2013 [1 favorite]
posted by dephlogisticated at 5:20 PM on March 12, 2013 [1 favorite]
I do think this kind of law should be on the books in the USA. particularly since psychiatry is mainly based on drugs today.
Are you saying that psychiatrists should be criminally liable for their patient's drug regimen compliance?
posted by karlos at 5:23 PM on March 12, 2013 [6 favorites]
Are you saying that psychiatrists should be criminally liable for their patient's drug regimen compliance?
posted by karlos at 5:23 PM on March 12, 2013 [6 favorites]
a psychiatrist was jailed after one of her patients went off their medication and killed a man.
Parmanparman: do you have any more info on this? A link? Just curious (yes, my google finger is broken. Honest!)
posted by miette at 5:40 PM on March 12, 2013
Parmanparman: do you have any more info on this? A link? Just curious (yes, my google finger is broken. Honest!)
posted by miette at 5:40 PM on March 12, 2013
So first, based on considerable use of "could be" in the article, it seems like using drugs and a polygraph are only possible forms of analysis, probably specified in a law from an older time. In that sense the article is making a mountain out of a molehill.
That said, I don't really know much about polygraphs except that I have heard of people in the legal profession who don't believe in them using them to the extent they're permitted because a lot of people find it persuasive. They shouldn't be admissible, and allowing them at all - "we won't hold not taking it against you, but it's better if you did" - gives them an unfortunate legitimacy.
I have followed a little more closely some speech-processing lie detectors. This blurb from the company in the article is interesting:
I buy a hundred dollar piece of software and it's garbage I'll be angry. If I buy a fifteen thousand dollar piece of software with someone else's money and it's garbage I might be angry, but I'd definitely be embarrassed enough to avoid mentioning the software in public. Either way the company selling it has money to spend on upkeep and advertising, so they can keep spreading their snake oil until it's called out in a big way. And given how news is happy to pass on anything that sounds interesting and disinclined to fact-check things that sound like science, it's hard to be optimistic about that.
posted by 23 at 6:08 PM on March 12, 2013 [2 favorites]
That said, I don't really know much about polygraphs except that I have heard of people in the legal profession who don't believe in them using them to the extent they're permitted because a lot of people find it persuasive. They shouldn't be admissible, and allowing them at all - "we won't hold not taking it against you, but it's better if you did" - gives them an unfortunate legitimacy.
I have followed a little more closely some speech-processing lie detectors. This blurb from the company in the article is interesting:
Elite will "PAIR" with businesses and organizations to thoroughly and accurately assess their personnel; both existing and potential new hires. Our system helps to analyze the likelihood of character flaws that could result in an individual being deceptive, committing fraud, internal theft, or possibly extortion against the company or it's members. From elder care facilities to top level government agencies, as well as an business organization that wishes to minimize it's exposure to loss of any kind can now test individuals with maximum effect.This is setting off woo detectors already, and sounds like 19th-century profiling based on the size of your insole or the lumps on your head - scientifically demonstrable criminal tendencies for any given test set. The problem is some people believe it, and some of them have budgets. Based on the Language Log article, the software costs a lot of money.
I buy a hundred dollar piece of software and it's garbage I'll be angry. If I buy a fifteen thousand dollar piece of software with someone else's money and it's garbage I might be angry, but I'd definitely be embarrassed enough to avoid mentioning the software in public. Either way the company selling it has money to spend on upkeep and advertising, so they can keep spreading their snake oil until it's called out in a big way. And given how news is happy to pass on anything that sounds interesting and disinclined to fact-check things that sound like science, it's hard to be optimistic about that.
posted by 23 at 6:08 PM on March 12, 2013 [2 favorites]
Here's the French case referred to.
At least in the coverage I can find, it's not about taking or not taking medication, which would sound ridiculous to me. It's about the psychiatrist not reporting him as dangerous, which seems like a much trickier subject (reporting requirements vs chilling effects and all that).
posted by wildcrdj at 6:12 PM on March 12, 2013
At least in the coverage I can find, it's not about taking or not taking medication, which would sound ridiculous to me. It's about the psychiatrist not reporting him as dangerous, which seems like a much trickier subject (reporting requirements vs chilling effects and all that).
posted by wildcrdj at 6:12 PM on March 12, 2013
By my understanding the "we won't hold not taking a polygraph against you" thing means just that - it won't ever come up in trial, because it absolutely cannot. In fact, it's hard for me to imagine a quicker Fifth Amendment appeal than a case where a defendant was convicted and the state was allowed to admit evidence that a defendant had not submitted to a polygraph. For so many reasons.
posted by Navelgazer at 6:14 PM on March 12, 2013
posted by Navelgazer at 6:14 PM on March 12, 2013
the fun thing about legal standards relating to determinations of mental health is that they're *completely made up by people who don't know anything about mental health*. or medicine. or science.
posted by facetious at 6:19 PM on March 12, 2013 [3 favorites]
posted by facetious at 6:19 PM on March 12, 2013 [3 favorites]
Ok, here's where I'm just confused about the judge's ruling: she recommended 2 psychological/psychiatric tests that allegedly detect truth/lies in order to assess, not the truth of anything Holmes has said or will say, but whether he's insane. Even if "truth serum" and polygraphs worked for lie detection, which they don't (ask just about any clinical or experimental psychologist), they don't show if someone has any kind of mental disorder. For probably that reason, neither is part of any kind of clinical assessment that a psychiatrist or clinical psychologist/neuropsychologist would give a potential patient to determine if they have a mental disorder.
posted by inara at 6:19 PM on March 12, 2013 [3 favorites]
posted by inara at 6:19 PM on March 12, 2013 [3 favorites]
could we get an edit? I'm reasonably confident the use of "psychoanalysis" is incorrect and misleading. The judge ordered psychiatric evaluation, not psychoanalysis. I mean it's an easy and understandable error, but the poster's aim seems to encompass comprehensive accuracy.
posted by mwhybark at 6:26 PM on March 12, 2013 [1 favorite]
posted by mwhybark at 6:26 PM on March 12, 2013 [1 favorite]
Thank you, mwhybark. I made an error there and agree.
posted by Navelgazer at 6:27 PM on March 12, 2013 [1 favorite]
posted by Navelgazer at 6:27 PM on March 12, 2013 [1 favorite]
The narco-analysis will use a serum developed by Doctor Jonathan Crane and it will be administered under the supervision of prison administrator Hugo Strange.
We know he did it. This will just be an excuse to get him to say whatever the cops want under psychological torture to replace whatever the real causes/underlying motivations of the shooting were with 'the Devil made me do it'. And if he's just an irredeemable sociopathic than there's no need to examine our mental health system or societal institutions.
posted by Charlemagne In Sweatpants at 6:32 PM on March 12, 2013 [2 favorites]
We know he did it. This will just be an excuse to get him to say whatever the cops want under psychological torture to replace whatever the real causes/underlying motivations of the shooting were with 'the Devil made me do it'. And if he's just an irredeemable sociopathic than there's no need to examine our mental health system or societal institutions.
posted by Charlemagne In Sweatpants at 6:32 PM on March 12, 2013 [2 favorites]
Tipping points: Of life, death and psychological data
In Thomas's case, the government insists that he is not insane enough to be spared, despite chronic auditory hallucinations, delusions, and treatment for paranoid schizophrenia.
posted by Charlemagne In Sweatpants at 6:38 PM on March 12, 2013 [1 favorite]
In Thomas's case, the government insists that he is not insane enough to be spared, despite chronic auditory hallucinations, delusions, and treatment for paranoid schizophrenia.
posted by Charlemagne In Sweatpants at 6:38 PM on March 12, 2013 [1 favorite]
From the outside, the US legal system looks so quaint sometimes. I don't know what it looks like from the inside, though...
It looks like a pretty, pretty butterfly. Or a beast. Next card.
A dog with its head split open.
posted by Joey Michaels at 6:57 PM on March 12, 2013 [5 favorites]
It looks like a pretty, pretty butterfly. Or a beast. Next card.
A dog with its head split open.
posted by Joey Michaels at 6:57 PM on March 12, 2013 [5 favorites]
Mod note: Edited the 'psychoanalysis' above the fold to avoid confusing new readers, but left the ones below the fold so we can preserve the comment thread intact. Carry on.
posted by LobsterMitten (staff) at 7:06 PM on March 12, 2013 [3 favorites]
posted by LobsterMitten (staff) at 7:06 PM on March 12, 2013 [3 favorites]
Mods, thank you for the fixes.
posted by Navelgazer at 7:08 PM on March 12, 2013
posted by Navelgazer at 7:08 PM on March 12, 2013
where the ostensibly educated members of the judiciary consider polygraph a valid tool
Not just the judiciary, the polygraph is in regular use for the higher levels of security clearance in the US and NATO countries' "Intelligence Community". You can find jobs listed on www.clearancejobs.com that are listed as "TS/SCI + SSBI with poly", and there are probably upwards of 15,000-20,000 federal employees in the WA DC area that are subject to possible polygraph exams as part of their TS/SCI clearances.
posted by thewalrus at 7:29 PM on March 12, 2013
Not just the judiciary, the polygraph is in regular use for the higher levels of security clearance in the US and NATO countries' "Intelligence Community". You can find jobs listed on www.clearancejobs.com that are listed as "TS/SCI + SSBI with poly", and there are probably upwards of 15,000-20,000 federal employees in the WA DC area that are subject to possible polygraph exams as part of their TS/SCI clearances.
posted by thewalrus at 7:29 PM on March 12, 2013
I took a polygraph for a job once. It was an absurd farce. The examiner dropped heavy references to his training by the FBI and The Agency (CIA?).
Anyway the test is only as good as the interrogator. Which is to say it's a prop and the whole thing is a farce. He just used it to launch a plan of attack based on crude stereotypes of my demographic to attempt to get me to admit to having done stuff. It was so breath-takingly offensive and off the mark I burst out laughing. Then he got really, truly angry and started to yell at me, saying that the machine already told him the truth and I just needed to admit to it, otherwise I would be in even bigger trouble for lying.
Once that bridge of absurdity and lies was crossed you can never go back. These days I know how the game works. Security theatre is what we do best here.
I mean, at least forensic psychiatry (which I assume is the reference to psychoanalysis) admits its faults up front. The jihadists who run liar detector tests on the other hand, really believe it's the shining path.
When even the American court system refuses to let these things be admissible as evidence, well. What more do you need to know?
posted by hobo gitano de queretaro at 8:06 PM on March 12, 2013 [1 favorite]
Anyway the test is only as good as the interrogator. Which is to say it's a prop and the whole thing is a farce. He just used it to launch a plan of attack based on crude stereotypes of my demographic to attempt to get me to admit to having done stuff. It was so breath-takingly offensive and off the mark I burst out laughing. Then he got really, truly angry and started to yell at me, saying that the machine already told him the truth and I just needed to admit to it, otherwise I would be in even bigger trouble for lying.
Once that bridge of absurdity and lies was crossed you can never go back. These days I know how the game works. Security theatre is what we do best here.
I mean, at least forensic psychiatry (which I assume is the reference to psychoanalysis) admits its faults up front. The jihadists who run liar detector tests on the other hand, really believe it's the shining path.
When even the American court system refuses to let these things be admissible as evidence, well. What more do you need to know?
posted by hobo gitano de queretaro at 8:06 PM on March 12, 2013 [1 favorite]
wildcrdj: "Here's the French case referred to.
At least in the coverage I can find, it's not about taking or not taking medication, which would sound ridiculous to me. It's about the psychiatrist not reporting him as dangerous, which seems like a much trickier subject (reporting requirements vs chilling effects and all that)."
Seems to be along the same lines as Tarasoff v. Regents of the University of California (which Wikipedia says "has since been adopted by most states in the U.S. and is widely influential in jurisdictions outside the U.S. as well"), in which the court held that "mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient".
posted by Lexica at 8:17 PM on March 12, 2013
At least in the coverage I can find, it's not about taking or not taking medication, which would sound ridiculous to me. It's about the psychiatrist not reporting him as dangerous, which seems like a much trickier subject (reporting requirements vs chilling effects and all that)."
Seems to be along the same lines as Tarasoff v. Regents of the University of California (which Wikipedia says "has since been adopted by most states in the U.S. and is widely influential in jurisdictions outside the U.S. as well"), in which the court held that "mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient".
posted by Lexica at 8:17 PM on March 12, 2013
I believe the purpose of narcoanalysis in cases like this is not to detect whether or not he committed the crime, nor to detect insanity itself, but to determine whether or not he is malingering. The results of the narcoanalysis could possibly lend weight to the insanity defense if no malingering is detected, or to the prosecution if it is. Either way, it is not likely to be the definitive piece of evidence, but one part of the analysis/presentation each case will present about his mental state at the time of the crime.
posted by freejinn at 8:40 PM on March 12, 2013
posted by freejinn at 8:40 PM on March 12, 2013
If the burden of proof is on the State, can't the defense just refuse to allow him to be given the drugs? Wouldn't it be a breach of medical ethics to force him to take them?
posted by Joe in Australia at 9:27 PM on March 12, 2013
posted by Joe in Australia at 9:27 PM on March 12, 2013
The examiner dropped heavy references to his training by the FBI and The Agency (CIA?)
Agreed. "...and the LSD caused such frightening hallucinations that one person committed suicide and many others repeatedly injured themselves (Bowden, 2003).
Set and setting. LSD is very much not like what I was told by both the authorities and the popular media. However, I can imagine a naive/primed mind to freak out under stress especially if they didn't understand that they were undergoing a temporary (12 hours, extreme-end typical maximum) neurotransmitter regulation imbalance...
... that happens to feel really really stupidly good, and cranks pareidolia way up to 8 (for me, psilocybin goes to 3 or 4). I enjoyed the high from LSD quite a bit more than I did from MDMA, more upwelling versus being hurried along.
There's a famous video on youtube (here) where British Army dudes were unknowingly dosed with LSD. They didn't get "frightening hallucinations" or tried to suicide. They just kind of slacked off and lost focus.
posted by porpoise at 10:46 PM on March 12, 2013 [1 favorite]
Agreed. "...and the LSD caused such frightening hallucinations that one person committed suicide and many others repeatedly injured themselves (Bowden, 2003).
Set and setting. LSD is very much not like what I was told by both the authorities and the popular media. However, I can imagine a naive/primed mind to freak out under stress especially if they didn't understand that they were undergoing a temporary (12 hours, extreme-end typical maximum) neurotransmitter regulation imbalance...
... that happens to feel really really stupidly good, and cranks pareidolia way up to 8 (for me, psilocybin goes to 3 or 4). I enjoyed the high from LSD quite a bit more than I did from MDMA, more upwelling versus being hurried along.
There's a famous video on youtube (here) where British Army dudes were unknowingly dosed with LSD. They didn't get "frightening hallucinations" or tried to suicide. They just kind of slacked off and lost focus.
posted by porpoise at 10:46 PM on March 12, 2013 [1 favorite]
If the burden of proof is on the State, can't the defense just refuse to allow him to be given the drugs? Wouldn't it be a breach of medical ethics to force him to take them?
It seems to be a somewhat contentious issue. The lawyers of Jared Lee Loughner—perpetrator of the 2011 Tucson shooting—had many of the same concerns. From the Wikipedia article:
It seems to be a somewhat contentious issue. The lawyers of Jared Lee Loughner—perpetrator of the 2011 Tucson shooting—had many of the same concerns. From the Wikipedia article:
"On June 26, 2011, Judge Burns ruled that prison doctors could forcibly medicate Loughner with antipsychotic drugs in order to treat him to restore him to competency for trial.posted by dephlogisticated at 10:54 PM on March 12, 2013 [2 favorites]
But, on July 12, 2011, a three-judge federal appeals panel from the Ninth Circuit ruled that Loughner could refuse anti-psychotic medication, since he "has not been convicted of a crime, is presumptively innocent and is therefore entitled to greater constitutional protections than a convicted inmate." However, the ruling stated that it "does not preclude prison authorities from taking other measures to maintain the safety of prison personnel, other inmates and Loughner himself, including forced administration of tranquilizers".
A week after the ruling, prison medical authorities resumed forcible treatment of Loughner with the antipsychotic risperidone, this time citing Washington v. Harper and stating the purpose of treatment was the need to control the danger he posed to himself and others in prison, rather than rendering him fit for trial. Loughner's defense team submitted an emergency motion to the US Court of Appeals for the Ninth Circuit, claiming that this treatment was in violation of their ruling and seeking an immediate injunction to halt treatment. The request for an injunction was denied by the court, allowing treatment to continue pending a full hearing into the matter. Arguments began on August 30 as to the lawfulness of this treatment. In March 2012, a federal appeals court denied a request by Loughner's lawyers to halt his forced medication.
On May 24, 2012 a federal judge ordered a competency hearing for June 27 (later postponed until August 7) to determine Loughner's mental fitness to stand trial. He remained at a federal prison hospital in Missouri pending the entry of his plea. A request by Loughner's lawyers to rehear arguments on forced medication was denied on June 5, 2012."
This page goes into the legal issues facing Holmes' prior psychiatrist. Specifically, whether she can be held civilly liable for the Aurora shootings under Colorado law.
posted by dephlogisticated at 11:12 PM on March 12, 2013 [1 favorite]
"The law is very clear: a psychiatrist cannot be held civilly liable for failure to protect the public against a patient's violent behavior. And, a psychiatrist cannot be held civilly liable for failure to predict a patient's future violence.So in Colorado, the question of liability comes down to determining whether the conditions of that exception were met.
There is one exception to this protection for mental health workers. The same statute (C.R.S. 13-21-117) offers one specific scenario where a psychiatrist is not guaranteed protection from liability. A mental health worker can be held liable for damages when "the patient has communicated to the mental health care provider a serious threat of imminent physical violence against a specific person or persons."
posted by dephlogisticated at 11:12 PM on March 12, 2013 [1 favorite]
As long as he's going to be spending the rest of his life in some kind of prison-esque facility, I don't really care whether or not it's an actual prison. (But if he accidentally slipped and fell onto an electric chair, I don't think I'd shed many tears.)
posted by Green Winnebago at 12:21 AM on March 13, 2013
posted by Green Winnebago at 12:21 AM on March 13, 2013
I read the French story as a small item in the London Independent and it seemed to suggest it had to do with meds. Apols for anyone confused. Still, I do think there has to be a chain of responsibility. I have been forced to witness the downfall of a wonderful colleague twice in the last year when he came off medication with no warning. He has specialists who are more content to see him locked up than take responsibility for a patient. He would have been better treated if he had TB.
posted by parmanparman at 2:05 AM on March 13, 2013
posted by parmanparman at 2:05 AM on March 13, 2013
I've taken a polygraph. They're not that helpful, because they rely on the focus and intent of the person being polygraphed - also they assume you will have feelings of guilt over lying. If you don't have a conscience - say, the kind of thing that someone who butchered a bunch of people in a movie theater might lack - it is functionally useless.
posted by corb at 4:26 AM on March 13, 2013 [1 favorite]
posted by corb at 4:26 AM on March 13, 2013 [1 favorite]
IIRC polygraphs are also useless on people with heart arrhythmia, who are likely more common than psychopath spree killers.
posted by nicebookrack at 5:48 AM on March 13, 2013 [1 favorite]
posted by nicebookrack at 5:48 AM on March 13, 2013 [1 favorite]
Pleased there's only one death fantasy towards Holmes in this thread so far. This case is devestating, of course. But the legal wrangling here seems tortured and shockingly unfair. I do not believe this man is sane at all, and it's a shame our legal definitions of sanity are so incredibly ludicrous as to ensure help or justice for no one. I fully expect this will be a death penalty case, sadly.
posted by agregoli at 6:31 AM on March 13, 2013
posted by agregoli at 6:31 AM on March 13, 2013
Describing him as someone without a conscience is unhelpful as well, in my opinion. He could have believed he was doing what was right. His conscience, if you will, could have been urging him to do it.
What he did was horrible, but denying the likely mentally ill their humanity doesn't make sense to me.
posted by agregoli at 6:35 AM on March 13, 2013 [2 favorites]
What he did was horrible, but denying the likely mentally ill their humanity doesn't make sense to me.
posted by agregoli at 6:35 AM on March 13, 2013 [2 favorites]
Agregoli - don't be so sure re death penalty. Loughner got life in prison. So did Kaczynski.
posted by Mid at 7:12 AM on March 13, 2013
posted by Mid at 7:12 AM on March 13, 2013
Taking off my psych student hat and putting on my former lawyer hat.
Re: psychiatrists' liability for patients' violent crimes: Tarasoff and related laws are about civil liability, so a psychiatrist can get sued for patients' violent acts under certain circumstances, but to my knowledge, no U.S. state imposes criminal liability. So in the U.S., psychiatrists aren't going to get sent to jail for what their patients do. Period.
Re: Loughner being forced to take anti-psychotic medication, it sounds like that was for purposes of 1) treatment so he would be competent to stand trial and 2) the prison's interest in not having a wildly psychotic, out-of-control inmate. In either case, the purpose was treatment of an existing mental disorder, which sounds like an awful stretch to extend to truth serum for the purpose of detecting whether Holmes is faking a mental illness.
posted by inara at 7:56 AM on March 13, 2013 [3 favorites]
Re: psychiatrists' liability for patients' violent crimes: Tarasoff and related laws are about civil liability, so a psychiatrist can get sued for patients' violent acts under certain circumstances, but to my knowledge, no U.S. state imposes criminal liability. So in the U.S., psychiatrists aren't going to get sent to jail for what their patients do. Period.
Re: Loughner being forced to take anti-psychotic medication, it sounds like that was for purposes of 1) treatment so he would be competent to stand trial and 2) the prison's interest in not having a wildly psychotic, out-of-control inmate. In either case, the purpose was treatment of an existing mental disorder, which sounds like an awful stretch to extend to truth serum for the purpose of detecting whether Holmes is faking a mental illness.
posted by inara at 7:56 AM on March 13, 2013 [3 favorites]
So first, based on considerable use of "could be" in the article, it seems like using drugs and a polygraph are only possible forms of analysis, probably specified in a law from an older time. In that sense the article is making a mountain out of a molehill.
Repeated for emphasis. Though as-written, Colorado law permits these forms of analysis, the Colorado prosecutors I have spoken to know of no instances where either has been used to assess someone asserting the insanity defense.
posted by craven_morhead at 8:35 AM on March 13, 2013 [1 favorite]
Repeated for emphasis. Though as-written, Colorado law permits these forms of analysis, the Colorado prosecutors I have spoken to know of no instances where either has been used to assess someone asserting the insanity defense.
posted by craven_morhead at 8:35 AM on March 13, 2013 [1 favorite]
Shouldn't we allow a plea of "Guilty, by reason of insanity"?
posted by littlejohnnyjewel at 9:38 AM on March 13, 2013
posted by littlejohnnyjewel at 9:38 AM on March 13, 2013
Agregoli - true; are you saying that you don't expect Holmes will do the same? I would think his lawyers and family would pressure him into it with everything they have.
posted by Mid at 10:01 AM on March 13, 2013
posted by Mid at 10:01 AM on March 13, 2013
Shouldn't we allow a plea of "Guilty, by reason of insanity"?
The short answer is no. In broad strokes, our legal system is setup to punish people when they do something morally culpable, which we generally define as an action consisting of a guilty state of mind (mens rea) and a culpable, voluntary action (actus reus). The guilty state of mind doesn't need to be intentional; you can commit a crime by negligently killing someone, for example, and generally ignorance of the law is no excuse (though sometimes it is).
When we talk about being legally insane, it generally means that the defendant has a mental disease or defect that either prevents him from distinguishing right from wrong, or prevents him from conforming his conduct to the law. As the argument goes, if he falls into the former category, it would be wrong to punish him because he didn't know he was doing anything wrong at the time. If he falls into the latter category, his act was not "voluntary," and therefore we shouldn't punish him for it.
Put another way, if at the time of the crime he didn't know what he was doing or didn't know that what he was doing was wrong due to a mental defect, then punishment does not serve the purpose of correcting his actions, nor does it prevent others like him from committing similar crimes in the future.
The practical effect of a not guilty by reason of insanity verdict would be that he's involuntarily committed to a state mental hospital until he's no longer a threat to himself or others which, practically speaking, means he would likely be committed forever. It strikes me as splitting hairs as to whether that type of punishment for someone who was insane at the time of the crime is more "moral" than straight-up imprisonment, but that's the system we've come up with.
Regarding whether Holmes is likely to plead guilty, a fair bit of that depends on what the offer is from the prosecution. We'll know within the next 62 days whether the prosecution will seek the death penalty. If they seek the death penalty and extend a no-death offer, then he has an incentive to plead guilty. If they seek the death penalty and do not extend a no-death offer, he has no incentive to plead. Likewise, if they only seek life without parole and do not extend an offer of anything less, he has no incentive to plead guilty.
posted by craven_morhead at 11:50 AM on March 13, 2013 [1 favorite]
The short answer is no. In broad strokes, our legal system is setup to punish people when they do something morally culpable, which we generally define as an action consisting of a guilty state of mind (mens rea) and a culpable, voluntary action (actus reus). The guilty state of mind doesn't need to be intentional; you can commit a crime by negligently killing someone, for example, and generally ignorance of the law is no excuse (though sometimes it is).
When we talk about being legally insane, it generally means that the defendant has a mental disease or defect that either prevents him from distinguishing right from wrong, or prevents him from conforming his conduct to the law. As the argument goes, if he falls into the former category, it would be wrong to punish him because he didn't know he was doing anything wrong at the time. If he falls into the latter category, his act was not "voluntary," and therefore we shouldn't punish him for it.
Put another way, if at the time of the crime he didn't know what he was doing or didn't know that what he was doing was wrong due to a mental defect, then punishment does not serve the purpose of correcting his actions, nor does it prevent others like him from committing similar crimes in the future.
The practical effect of a not guilty by reason of insanity verdict would be that he's involuntarily committed to a state mental hospital until he's no longer a threat to himself or others which, practically speaking, means he would likely be committed forever. It strikes me as splitting hairs as to whether that type of punishment for someone who was insane at the time of the crime is more "moral" than straight-up imprisonment, but that's the system we've come up with.
Regarding whether Holmes is likely to plead guilty, a fair bit of that depends on what the offer is from the prosecution. We'll know within the next 62 days whether the prosecution will seek the death penalty. If they seek the death penalty and extend a no-death offer, then he has an incentive to plead guilty. If they seek the death penalty and do not extend a no-death offer, he has no incentive to plead. Likewise, if they only seek life without parole and do not extend an offer of anything less, he has no incentive to plead guilty.
posted by craven_morhead at 11:50 AM on March 13, 2013 [1 favorite]
More details about the Sandy Hook shooter: Adam Lanza Researched Mass Murderers, Sources Say
posted by homunculus at 6:04 PM on March 14, 2013
posted by homunculus at 6:04 PM on March 14, 2013
That article says Lanza stopped killing after some kind of reloading/jam problem. Just one more reason to ban high-capacity magazines.
posted by Mid at 8:54 AM on March 15, 2013
posted by Mid at 8:54 AM on March 15, 2013
I came across the McNaughton (M'Naghten) rule in undergraduate school, back in the dark ages of the late '60s and early '70s, while researching this guy's book, in which he argues that mental illness is a metaphorical concept and not useful for determining guilt or innocence in legal terms. He also railed against the elevated authority which psychiatrists and psychologists were granted in the legal system and in society in general. In my youthful state I found it a fascinating stance and still believe that it applies to some aspects of mental illness and legal status today. But, yes, mental illness is more than a metaphorical concept, Thomas Szasz.
posted by Mental Wimp at 2:10 PM on March 15, 2013
posted by Mental Wimp at 2:10 PM on March 15, 2013
« Older "She’s not some new age healer, she’s disruptive." | antgifs Newer »
This thread has been archived and is closed to new comments
posted by ShutterBun at 3:35 PM on March 12, 2013 [14 favorites]