An Insane Defense?

should we do about those of us who cannot. In July, a graduate student named James Holmes walked through the doors of the Century sixteen movie theater in Aurora, Colorado. Witnesses say Holmes fired into the air and then started shooting into the crowd. Holmes killed twelve people and injured fifty eight others. He thought the killings would boost his own quote human capital. He called this his mission, and the

mission was to kill as many people as possible. Holmes pled not guilty by reason of insanity at his trial. As we heard an episode one this season, there will be no doubt in your minds by the end of this trial that Mr Holmes is severely mentally ill. None Holmes was mentally ill, but a Colorado jury did not

think he was insane under the law. After listening to witnesses and psychiatric experts, they decided Holmes knew the difference between right and wrong at the time he committed the crime, the standard for legal insanity in Colorado and many other states. How in the world can someone who kills twelve people and injures another fifty eight and leaves a terrible tragedy in a theater at midnight? How in the world can that person be viewed as sane in any reasonable sense.

Holmes was found guilty, just like the vast majority of criminal defendants today who invoke the insanity defense. To understand why requires a journey through history. The conviction of James Holmes really begins almost two centuries ago in England. At the time, Queen Victoria and the British House of Lords could not have imagined a crime like the one committed by Holmes, But if you look close enough, their fingerprints

are all over his fate. I'm Sean Braswell. Each season on The Thread, we unravel the stories behind some of the most important lives and events in history to discover, essentially how one thing leads to another. This season, we've explored the crazy history of perhaps the most controversial defense in the criminal law not guilty by way of insanity. From James Holmes to Lorraine of Bobbitt to John Hinckley Jr. Some of history's most notorious criminal defendants are linked by

this common thread. In the last episode, we heard about the first use of the temporary insanity defense in American law, the case of Daniel Sickles. He was the New York congressman who murdered Barton Key, the son of Francis Scott Key, just yards from the White House in eighteen fifty nine. I mean literally, if it was an episode of House of Cards, you wouldn't believe it, right, but it really happened. You know, There's really nothing like it in American political history.

Sickle's legal dream team relied on an older case from another country in order to save the congressman from being hanged. In this episode, we will finish this season's thread with that case in England, where the modern insanity defense really began. We'll also dive into whether the insanity defense really makes sense, especially in light of what we know about mental illness

in the human brain. Today. We'll learn how the defense sits uncomfortably at the intersection of law and human psychology, how it challenges lawyers, judges, and juries in their pursuit of justice, and how it speaks to things that all of us hold dear, such as moral responsibility, free will, even our own sanity. Our story this season really begins in England in the nineteenth century. There are actually two English cases that ushered in today's insanity defense. Both were

attempts to murder a British leader. The first was in May of eighteen hundred, when a former soldier tried to kill King George. The third, Andrea Alden, is the author of Disorder in the Court, Morality Myth and the Insanity Defense. James Hadfield was a veteran of the Napoleonic Wars. He received some sort of head injury that was documented. At the time. We didn't have the words traumatic brain injury,

but that's basically what it was. Hadfield received eight blows to the head from a saber while fighting for his country. It was widely acknowledged that he came back from the war not the same person that he went um. Clearly what he had been through affected him and affected his personality and his behavior. Hadfield was convinced that the Second Coming of Jesus Christ depend into upon his own death that he himself needed to be killed in order to

fulfill a sacred prophecy. So his plan was to attempt to assassinate the king with the hopes that he would in the process be killed by people trying to defend the king, and then he could fulfill this prophecy somehow. And so is King George the Third in his royal entourage entered a theater in London on May hundred, Hadfield fired a pistol at the monarch. The shots missed. The King.

Hadfield was apprehended and charged with high treason, but the serious nature of Hadfield's crime meant he received a top notch legal defender. He had what was really the first kind of star defense attorney in a notable insanity defense trial, who was Thomas Erskine Um, who really kind of set the bar for making arguments about the legal standards for insanity that kind of changed the game going forward. Thomas erskine was the son of an English lord and the the

most sought after criminal defense lawyer of his air. But at the time, the causes of mental illness, including the

delusions experienced by James Hadfield we're not well understood. So at this point we still are looking at conceptions of mental illness as something either animal like or childlike, where the criminal either had the lack of ability to understand the nature of his or her actions UM, and that some of the judges would say either they had no more understanding than a wild beast or than a child. In other words, to be insane in nineteenth century England,

make you a raving mad or infantile. Hadfield's lawyer Thomas Erskine, set out to change that. He felt that the concept of having no more understanding than a child or a wild beast was UM far too narrow of a construction of what mental illness as it pertains to criminal justice UM looked like, so he argued that it needed to

be expanded to encompass more and their experiences. At trial, Erskine argued that Hadfield was insane not because he acted like a child or a wild beast, but because he was delusional at the time of the shooting he lost touch with the world around him as a result of his head injuries. To make his case, Erskine called twenty witnesses to the stand in a trial that took just six hours. These included doctors who claimed Hadfield's actions were the result of his brain injury. Hadfield was found to

be insane and not guilty of treason. Thanks to Erskine's landmark defense, Hadfield was spared execution. Instead, he was ordered to spend the rest of his life in a psychiatric hospital. The Hadfield incident could have been a small footnote in history. The King wasn't harmed after all. Instead, it laid the groundwork for an even bigger insanity case in England four decades later, one that still governs how many insanity cases

play out today. Daniel McNaughton was a lowly Scottish woodcutter, someone whose name would you usually be lost to the sands of history. Instead, his name is familiar to most lawyers and law students today, and it's synonymous with the insanity defense. And here's why. The story begins. When McNaughton decides to murder a British leader, even though the person

he shot wasn't his intended target. McNaughton um shot a man named Edward Drummond in the middle of the street in London the middle of the day, just walked up behind him and shot him. So it turned out that McNaughton believed he was shooting the Prime Minister at the time, and Edward Drummond was actually his private secretary. McNaughton claimed that the Prime Minister and his political party were persecuting him.

We would probably recognize Mr McNaughton as suffering from something like paranoid schizophrenia if we were to get him in the care of a psychiatrist today, but unfortunately at the time we didn't quite understand what that meant. Edward Drummond died from his wounds and McNaughton was charged with murder. His trial began six weeks later in London before a large crowd of spec taters, including the famous writer Charles Dickens.

McNaughton's attorney followed Thomas Erskine's defense of James Hadfield from four decades earlier. He argued his client was insane at the time of the shooting and therefore did not have the necessary criminal intent to be found guilty. He called a medical expert who examined McNaughton and testified quote the defendants moral faculties were impaired by extraordinary delusion. The defense worked, and in fact, the jury never even retired to deliberate.

They just huddled together in the jury box and came up with the decision that he could be found not guilty by reason of insanity. The British public and press were outraged. Essentially, the public felt that he had gotten away with it, um, that he had feigned insanity um, and also that he was somehow um getting off scot free. And somebody else was not too pleased with the jury's verdict.

Queen Victoria at the time had been had recently been the victim of an assassination attempt by somebody who also pled insanity, so she was creating pissed about the whole thing. A few years earlier, a deranged eighteen year old man had taken a shot at the pregnant Queen just outside Buckingham Palace. He, like McNaughton, had been found not guilty on grounds of insanity. After the McNaughton verdict, the Queen reportedly asked, how could you have been found not guilty?

He did it, didn't he? She demanded, actually that the House of Lords come together and put together some more firm standards regarding mentally ill criminal defendants, which had not previously existed. What the House of Lords came back with is what is still known to this day by lawyers as the McNaughton rules, well ultimately emerged from McNaughton is still really the foundation of every insanity defense UM standard

you will see today. At the time of the crime, the accused has to be suffering from a mental disease or defect that prevents him from knowing the difference between right and wrong. The McNaughton rules put a major legal stake into the ground in eighteen forty three when it came to whether defendant could be considered too insane to

be convicted of a crime. So, over the years from the time that the mcdatin rules were established, UM, with every new iteration of the defense, it seemed to broaden slightly UM And as we learned more about mental illness, we started to try to expand the legal definitions to be more compatible with that. You can see the trickle down effect of that McNaughton case in later insanity defenses that allowed for broader interpretations of the law. Take for example,

the story of Dan Sickles from episode five. The New York Congressman murdered a U. S attorney near the White House in eighteen fifty nine, but the aggrieved husband was found not guilty because of the temporary insanity, the first successful invocation of that defense in American history. And then in episode four, we told the story of Pittsburgh millionaire Harry Thaw, who killed the famous architects Stanford White because

White sexually assaulted Thaw's wife. Harry Thaw, like Dan Sickles, was acquitted because a jury decided he was temporarily insane at the time of the kill. Then decades later, in nine, a delusional twenty five year old loaner named John Hinckley Jr. Fired six shots at the President of the United States. Hinckley's acquittal, as we saw an episode three, resulted in a backlash against the insanity defense, and the laws in several states retreated back to a narrower standard for insanity.

Back to McNaughton Andrea Alden, but ultimately, after Hinkley, it felt like we kind of sling shotted back. Um. So ultimately what we came back to was the only one we're really comfortable with was, you know, did they know right from wrong at the time that they committed the act? So here we are on seventy six years after the case of Daniel McNaughton, and its outcome continues to influence

how many insanity cases play out today. Up next modern brain science and how it could shape future insanity defenses. When it's time to make a hire for your small business, naturally you want to find the best person for the job. Odds are that person as on linked In. Here At ausy, where we weave each season of the thread, we depend on linked in jobs to help us find the right person for our hiring needs to put top talent at

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to five hundred five hundred. That's audible dot com slash thread or text thread to five hundred five hundred and listen for a change. Insanity claims are rare these days. They are used in less than one percent of all criminal cases, according to one study, and likely for good reason. Richard Bonnie is a professor of law into Medicine at the University of Virginia. The insanity defense is always an uphill battle for the defense because all of us are

naturally skeptical about insanity claims. It can be hard for a jury to put aside the horrific nature of a criminal act in order to determine whether the accused was insane. At the time, many consider the insanity defense away for criminals to escape justice. Attitudes about the defense began to change in the nineteen eighties after John Hinckley was acquitted of shooting President Reagan almost nine out of ten Americans polled felt the insanity defense was a loophole for guilty

persons trying to escape punishment. Four states also abolished the insanity defense, and the law in one of those states, Kansas, will be considered by the U. S. Supreme Court in October after a challenge from a convicted murderer named Craig Kaylor. Back in two thousand nine, a Kansas judge slapped the death sentence on Craig Kaylor for the murders of four of his family members. Kaylor claimed he'd sunk into deep depression after his marriage collapsed, a condition that led to

him losing touch with reality. Now, the convicted murderer who did not have the option to use an insanity defense gets to make his case to the nation's highest court. But even where insanity cases can be presented, it's not easy to win them. Richard Bonnie Again, most insanity claims,

when they are litigated fail. We put tremendous weight on the skill with which the defense is presented, and it's still hard to show the accused and not know the difference between right and wrong, even for those with clear mental illnesses like James Holmes. But just knowing right from wrong is not sufficient, says Bonnie. It doesn't capture what's really governing a defendants behavior. The dominant influence on what

they are doing is the psychotic process. And that's why we would say the person is not terrible, you know, by their knowledge of the law, because now they're being you know, driven, not by their recognition of the law

at all. Bonnie argues, there's a better question to ask to get at legal insanity, the question being does the person really appreciate um, uh, you know, in an emotional sense, uh, the moral enormity or the moral significance of what they are doing, or has their delusional belief deprived them, you know, of the capacity to do that, And that's the key question. The basis of criminal law is the premise that individual humans have some measure of free will. We are rational,

self aware actors. We can control our choices in our actions and be held responsible for them when they violate social norms. On the other hand, the study of psychiatry and serious psychiatric disorders often focus on treating the ailments that prevent people from exercising choice or from controlling their actions. So if we're talking about retribution and deterrence on one hand,

and treatment and basically nurturing on the other. They don't really work together very well Andrea Olden again, And so the language and the concepts used by a psychiatrist don't map neatly onto the goals of the criminal justice system. So it's very hard for those two systems to communicate within one another. And what it has amounted to over the years as kind of a territory power struggle between

the two when it comes to insanity defense cases. In a world governed by laws and rational choices, what happens of some of us, maybe even all of us, can't actually control all of our actions. What happens if our own brain goes rogue on us. The way that James Holmes has did. The insanity defense is an attempt to take into account this possibility. But as our scientific understanding of the brain grows, so do the challenges of accommodating

the complexity of human psychology within the law. One of the reasons James Holmes wanted to be a neuroscientist was to better understand his own mental illness. The jury at his trial got a close up look at Holmes's broken mind. One of the experts at his trial performed an m r I scan of Holmes's brain and compared it to

a sample of others. She told the jury about her findings, and there were several significant differences that were noted in his brain compared to the normative sample of people los leiosany disease. The jury was shown an m r I image of the top right front portion of Holmes's brain, the part that's important to emotions, motivation, and controlling inappropriate behavior. This part of Holmes's brain was smaller than of the population.

In other words, Holmes had well below average brain volume in those areas that are important to emotions and decision making. James Holmes was not the first mash shooter to realize there was something physiologically wrong inside his brain. From the observation room twenty six floors up, a killer terrified students and others on the campus of Texas University. He was Charles Whitman, twenty four, an ex marine a dead shop.

In nineteen sixty six, Charles Whitman climbed to the top of a tower in Austin, Texas, and open fire below. On ninety minutes. Nothing could be done against him. A tumor on the brain drove him across the border line of Saturday to spread and down. Whitman killed fourteen and wounded nearly forty more. Andrea Alden in his suicide note, he said, please do a postmortem and examine my brain and find out what is wrong with me, because I'm

not myself anymore. And it turned out he had a rather large lesion on the area of his brain that would have controlled these terrible actions. Whitman's story was an extreme case, but it highlights well the biological foundations of violent antisocial behavior. Mental illness can manifest in myriad ways when our brains fail to coordinate some of the billions

of cells they control. It is a daunting thing for doctors and scientists to try to understand, and it can be even harder to communicate that challenge in a court of law. The law is kind of designed as a one size fits all, just focus on the individual and what they did, and that's it um And what psychology and neuroscience are trying to do is saying, like, no, this is a much more complex system. There's a lot more you need to understand before you can make judgments

about people's behavior. Or their thoughts or their actions. And there's a lot more we need to understand about our mental health too. Up next, we're starting to learn more about what makes psychopaths and others with severe psychiatric disorders tick, and how the rest of us are not as different from them as we would like to believe. Hello Fresh is a meal kit delivery service that shops, plans, and delivers step by step recipes and pre measured ingredients so

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off your first month of Hello Fresh. Go to Hello Fresh dot com backslash thread eight and enter the promo code thread e D. That's Hello Fresh dot com backslash thread e D in promo code thread a D. The case of Jeffrey Dahmer shocked the nation in Dahmer was accused of the murder and cannibalism of seventeen men and boys. One long time acquaintance describes Dahmer as one weird dude.

A neighbor offered a similar description. In my opinion, he appeared to me to be a geeky that I mean, a guy that stays to itself and just do weird things, unlike anyone else. Like suspicious. Damer played insanity at trial if he claimed mental diseases behind his grizzly actions. The jury in Milwaukee, Wisconsin disagreed. They found Dahmer legally, saying the question of legal insanity often comes up in cases

of serial killers and psychopaths like Dahmer. James Fallon is a professor of psychiatry and human behavior at the University of California, Irvine. Now. A psychopath, or what's called a primary psychopath, is somebody I described who has no sense of moral reasoning. They really don't consider what they're doing wrong, even though they know you think it's wrong. Fallon is

an expert on the brains and murderous psychopaths. He's found that the brains of these killers share similar traits, including a pattern of low brain function in parts of the frontal and temporal lobes of the brain, the areas associated

with self control and empathy. Many of them really don't have the capability to understand what they're doing is wrong, or they have They have these urges and impulses that are just like somebody, Um, you know, I have the self control right now not to pee in my pants, but come back in six hours, I'm gonna lose that control. I'm not gonna be able to do it. It's like that.

Fallon argues that are legal and religious notions of good and evil are outdated when it comes to understanding such urges and the brains of psychopaths and others with psychiatric disorders. If you're a neuroscientist or in psychiatry, it's hard to find somebody who's truly evil. People with the psychiatric disorders can't be evil, right because they either don't know what's

wrong or they can't even control it. So in that case, it makes the insanity defense pretty you know, odd, because you end up with very few people were culpable or capable of the of of their crimes. And the difference between those with severe psychiatric disorders and the rest of us is often more a matter of degree than kinds. As fallon, and he should know he's not only an accomplished neuroscientist, he's also a self admitted borderline psychle a path.

One time, Falin included scans of his own brain and those of family members into a study he was conducting. They were supposed to be the control group, the normal brains. Then he made an alarming discovery. Then I got to the last scan and I said, okay, guys, to the technician's very funny, you've slipped in one of these psychopathic murderers into my family's scans. Ha ha. You know, we play tricks on each other in the lab. So this was nothing new. They no, no, no, no, no, no no,

this is really somebody in your family. I said, whoever this is shouldn't be walking around an open society. It's gonna be a very dangerous person because it's got a lot of brain damage and a lot of that's very consistent with a full psychopath. And so I have to like peel off the name, uh, you know, responsibly. I had to do that, and it peeled it back and there was my name. Valin had the brain of a psychopath, but he did not become like the serial killers. He studies.

There's more to our destinies than just our brain anatomy. He argues, often something in our environment triggers our biological predisposition. The vast majority of psychopathic criminals, for example, were abused as young children. Falon was not. Still, what happens in your physical brain matters, and it's often not within your control, and whether you know the difference between right and wrong

might be irrelevant to the actions you take. Andrea Alden again, and ultimately, what it comes down to is we are now reaching the point where we understand that, um, there is no distinction between mind and body like you are your brain. Your brain is everything you know. If there are injuries to specific areas of your brain, it's going to change the way you behave possibly make you do things you never thought you would do, like commit crimes.

And the complex nature of the human brain remains a big challenge for the law and the courts to address, and the current system has trouble both identifying defendants who are legally insane and figuring out what to do with those who are convicted. There's a common belief that most defendants found not guilty by reason of insanity are quickly released. Like lorraina Bob it was, She's spent only a matter of weeks in a mental hospital after being acquitted of

cutting off her husband's penis. In reality, most defendants who are found not guilty by reason of insanity spend more time and institutions than people who are found guilty of the same charges. This is Dr William Read again, the court appointed psychiatric expert in the James Holmes case. People found not guilty by reason of insanity, they routinely spend more time off the streets than people who are found guilty of similar crimes, and particularly than people who have

bargained their played down to a lesser crime. So it's very much not someone quote getting off unquote with an insanity defense. The way that the system treats those who plead insanity stems from a broader misunderstanding of mental illness, says Andrea Alden. I think that insanity defense is so controversial because people don't understand it. People don't understand mental illness.

People are afraid of mental illness, and the stigma attached to mental illness can poison how those suffering from it are treated under the law. William read again, people with mental illness, even severe mental illness, have a perfect right to be found guilty and responsible, just as they have a right to uh marry and have kids and hold jobs and things, unless they show that they don't have

the ability to be found responsible. In facts as read, those with mental illnesses are less likely overall to be violent than people without mental illness. I am much more worried, and I think the cops are much more worried about career criminals, about drunks, about crackheads, about people who are simply mean and antisocial as they go along robbing people and mugging people and hurting people for their own gain. This is not a characteristic of the mentally ill, and

it's quite unfair to stigmatize them with that. The insanity defense focuses almost exclusively on the mindset of defendants, and that's understandable they're the ones on trial. But the determination of guilt or innocence in any given case, that determination has to go through a number of other brains as well.

The brains of the investigators and prosecutors building their case, the brains of the attorneys marshaling an argument in the courtroom, the brains of the psychiatric experts making their analyzes, the brain of the judge hearing the case, and most importantly, the brains of the jurors themselves. Each of these brains is human, fallible, prone to unconscious bias, prejudice, and mistakes.

Operating on incomplete information and imperfect science, it's hard to climb inside the brain of the accused and to understand what they were thinking at the time of a crime, whether they knew the difference between right and wrong. But it can also be difficult for lawyers, experts, judges, jurors, and the rest of us to know the difference between right and wrong, ourselves to make wise decisions about guilt and punishment. Given the complexities of human psychology, Richard Bonnie,

these are tough calls to make. We've got tough calls to make about the clinical questions, and then ultimately you have a tough call to make about how these legal formulas apply. Still, however much we improve our knowledge of the brain or the sophistication of our laws, it will not change the past. We're all with Aurora tonight. It was this night, five years ago that mother's daughters, fathers, sons,

and friends were making plans to see a movie. Just after midnight on July, residents of Aurora, Colorado, gathered to hold a late night vigil for loved ones who died at the hands of James Holmes five years earlier. The mourners huddled together holding red roses and candles. The names of those who lost their lives in the shooting were read aloud, and white balloons released. Jonathan Blunk, Alex Sander, Bike,

Jesse Childress, Gordon Cowden. In the end, no explanation of the broken brain of James Holmes or why he opened fire that dark night will bring back the dead. In aurora or undo what was done, and the criminal law is not designed to bring closure or comfort. We can only do our best to prevent future auroras and to challenge ourselves to take the time to remember what went before. Rebecca Windo, let's pause for a moment of silence. The Threat is produced by Robert Coulos, Sofia Perpetua and me

Sean braswell Chris Hoff engineered our show. Next week, we returned with a special bonus episode that tells the story of how this season of The Thread connects with our first season about the murder of the rock star John Lennon. To learn more about The Thread, visit Aussie dot com, slash the Thread all one word, and make sure to subscribe to The Thread on Apple podcasts, follow us on I Heart Radio or listen wherever you get your podcasts. Check us out at Assie dot com or on Twitter

and Facebook. If you love surprising, engaging stories from history, look no further than the flashback section of Ausi dot com. That's o z Y dot com. As always, thanks for listening.