Harry Kendall Thaw shot and killed Stanford White on the 25th day of
June, 1905. Although most of the Coroner's jury which first sat upon
the case considered him irrational, he was committed to the Tombs and,
having been indicted for murder, remained there over six months pending
his trial. During that time it was a matter of common knowledge that his
defence was to be that he was insane at the time of the shooting, but as
under the New York law it is not necessary specifically to enter a plea
of insanity to the indictment in order to take advantage of that defence
(which may be proven under the general plea of "not guilty"), there was
nothing officially on record to indicate this purpose. Neither was it
possible for the District Attorney to secure any evidence of Thaw's
mental condition, since he positively refused either to talk to the
prosecutor's medical representatives or to allow himself to be examined
by them. Mr. Jerome therefore was compelled to enter upon an elaborate
and expensive preparation of the case, not only upon its merits, but
upon the possible question of the criminal irresponsibility of the
defendant.
The case was moved in January, 1906, and the defence thereupon proceeded
to introduce a limited amount of testimony tending to show that Thaw was
insane when he did the shooting. While much of this evidence commended
itself but little to either the prosecutor or the jury, it was
sufficient to raise grave doubt as to whether the accused was a fit
subject for trial. The District Attorney's experts united in the opinion
that, while he knew that he was doing wrong when he shot White, he was,
nevertheless, the victim of a hopeless progressive form of insanity
called dementia praecox. In the midst of the trial, therefore, Mr.
Jerome moved for a commission to examine into the question of how far
Thaw was capable of understanding the nature of the proceedings against
him and consulting with counsel, and frankly expressed his personal
opinion in open court that Thaw was no more a proper subject for trial
than a baby. A commission was appointed which reported the prisoner was
sane enough to be tried, and the case then proceeded at great length
with the surprising result that, in spite of the District Attorney's
earlier declaration that he believed Thaw to be insane, the jury
disagreed as to his criminal responsibility, a substantial number voting
for conviction. Of course, logically, they would have been obliged
either to acquit entirely on the ground of insanity or convict of murder
in the first degree, but several voted for murder in the second degree.
A year now elapsed, during which equally elaborate preparations were
made for a second trial. The State had already spent some $25,000, and
yet its experts had never had the slightest opportunity to examine or
interrogate the defendant, for the latter had not taken the stand at the
first trial. The District Attorney still remained on record as having
declared Thaw to be insane, and his own experts were committed to the
same proposition, yet his official duty compelled him to prosecute the
defendant a second time. The first prosecution had occupied months and
delayed the trial of hundreds of other prisoners, and the next bid fair
to the do same. But at this second trial the defence introduced
enough testimony within two days to satisfy the public at large of the
unbalanced mental condition of the defendant from boyhood.
After a comparatively short period of deliberation the jury acquitted
the prisoner "on the ground of insanity," which may have meant either
one of two things: (a) that they had a reasonable doubt in their own
minds that Thew knew that he was doing wrong when he committed the
murder--something hard for the layman to believe, or (b) that, realizing
that he was undoubtedly the victim of mental disease, they refused to
follow the strict legal test.
Nearly two years had elapsed since the homicide; over a hundred thousand
dollars had been spent upon the case; every corner of the community had
been deluged with detailed accounts of unspeakable filth and depravity;
the moral tone of society had been depressed; and the only element which
had profited by this whole lamentable and unnecessary proceeding had
been the sensational press. Yet the sole reason for it all was that
the law of the land in respect to insane persons accused of crime was
hopelessly out of date.
The question of how far persons who are victims of diseased mind shall
be held criminally responsible for their acts has vexed judges, jurors,
doctors, and lawyers for the last hundred years. During that time, in
spite of the fact that the law has lagged far behind science in the
march of progress, we have blundered along expecting our juries to reach
substantial justice by dealing with each individual accused as most
appeals to their enlightened common sense.
And the fact that they have obeyed their common sense rather than the
law is the only reason why our present antiquated and unsatisfactory
test of who shall be and who shall not be held "responsible" in the
eyes of the law remains untouched upon the statute-books. Because its
inadequacy is so apparent, and because no experienced person seriously
expects juries to apply it consistently, it fairly deserves first place
in any discussion of present problems.
Thanks to human sympathy, the law governing insanity has had
comparatively few victims, but the fact remains that more than one
irresponsible insane man has swung miserably from the scaffold. But
"hard cases" do more than "make bad law," they make lawlessness. A
statute systematically violated is worse than no statute at all, and
exactly in so far as we secure a sort of justice by evading the law as
it stands, we make a laughing-stock of our procedure.
The law is, simply, that any person is to be held criminally responsible
for a deed unless he was at the time laboring under such a defect of
reason as not to know the nature and quality of his act and that it was
wrong.
This doctrine first took concrete form in 1843, when, after a person
named McNaughten, who had shot and killed a certain Mr. Drummond
under an insane delusion that the latter was Sir Robert Peel, had been
acquitted, there was such popular uneasiness over the question of what
constituted criminal responsibility that the House of Lords submitted
four questions to the fifteen judges of England asking for an opinion
on the law governing responsibility for offences committed by persons
afflicted with certain forms of insanity. It is unnecessary to set
forth at length these questions, but it is enough to say that the judges
formulated the foregoing rule as containing the issue which should
be submitted to the jury in such cases.*
* The questions propounded to the judges and their answers are here
given:
Question 1.--"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?
Answer 1.-"Assuming that your lordships' inquiries are confined to those
persons who labor under such partial delusions only, and are not in
other respects insane, we are of opinion that, notwithstanding the
accused 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 public benefit, he is, nevertheless,
punishable, according to the nature of the crime committed, if he knew
at the time of committing such crime that he was acting contrary to law,
by which expression we understand your lordships to mean the law of the
land.
Question 4:--"If a person under an insane delusion as to existing facts
commits an offence in consequence thereof, is he thereby excused?
Answer 4.--"The answer must of course depend on the nature of the
delusion; but, making the same assumption as we did before, namely, that
he labors under such partial delusion only, and is not in other respects
insane, we think he must be considered in the same situation as to
responsibility as if the facts with respect to which the delusions
exist were real. For example, if under the influence of his delusion
he supposes another man to be in the act of attempting to take away his
life, and kills the man, as he supposes in self-defence, he would
be exempt from punishment. If his delusion was that the deceased had
inflicted a serious injury to his character and fortune, and he
killed him in revenge for such supposed injury, he would be liable to
punishment.
Question 2.--"What are the proper questions to be submitted to the jury
when a person, afflicted with insane delusions respecting one or more
particular subjects or persons, is charged with the commission of a
crime (murder, for instance), and insanity is set up as a defence?
Question 3.--"In what terms ought the question to be left to the jury as
to the prisoner's state of mind when the act was committed?
Answers 2 and 3.--"As these two questions appear to us to be more
conveniently answered together, we submit our opinion to be that the
jurors ought to be told, in all cases, that every man is 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 committing the act the accused was
laboring 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." (The
remainder of the answer goes on to discuss the usual way the question
is put to the jury.)
Now, with that commendable reverence for judicial utterance which is so
characteristic of the English nation, and is so conspicuously absent
in our own country, it was assumed until recently that this solemn
pronunciamento was the last word on the question of criminal
responsibility and settled the matter once and forever. Barristers and
legislators did not trouble themselves particularly over the fact that
in 1843 the study of mental disease was in its infancy, and judges,
including those of England, probably knew even less about the subject
than they do now. In 1843 it was supposed that insanity, save of the
sort that was obviously maniacal, necessitated "delusions," and unless a
man had these delusions no one regarded him as insane. In the words of a
certain well-known judge:
"The true criterion, the true test of the absence or presence of
insanity, I take to be the absence or presence of what, used in
a certain sense of it, is comprisable in a single term, namely,
delusion.... In short, I look on delusion .... and insanity to be
almost, if not altogether, convertible terms."*
* Dew vs. Clark.
This in a certain broad sense, probably not intended by the judge who
made the statement, is nearly true, but, unfortunately, is not entirely
so.
The dense ignorance surrounding mental disease and the barbarous
treatment of the insane within a century are facts familiar to
everybody. Lunatics were supposed to be afflicted with demons or devils
which took possession of them as retribution for their sins, and
in addition to the hopelessly or maniacally insane, medical science
recognized only a so-called "partial" or delusionary insanity. Today it
would be regarded about as comprehensive to relate all mental diseases
to the old-fashioned "delusion" as to regard as insane only those who
frothed at the mouth.
But the particular individual out of whose case in 1843 arose the rule
that is in 1908 applied to all defendants indiscriminately was the
victim of a clearly defined insane delusion, and the four questions
answered by the judges of England relate only to persons who are
"afflicted with insane delusions in respect to one or more particular
subjects or persons." Nothing is said about insane persons without
delusions, or about persons with general delusions, and the judges limit
their answers even further by making them apply "to those persons who
labor under such partial delusion only and are not in other respects
insane"--a medical impossibility.
Modern authorities agree that a man cannot have insane delusions and not
be in other respects insane, for it is mental derangement which is the
cause of the delusion.
In the first place, therefore, a fundamental conception of the judges
in answering the questions was probably fallacious, and in the second,
although the test they offered was distinctly limited to persons
"afflicted with insane delusions," it has ever since been applied to all
insane persons irrespective of their symptoms.
Finally, whether the judges knew anything about insanity or not, and
whether in their answers they weighed their words very carefully or not,
the test as they laid it down is by no means clear from a medical or
even legal point of view.
Was the accused laboring under such a defect of reason as not to know
the nature and quality of the act he was doing, or not to know that it
was wrong? What did these judges mean by know?
What does the reader mean by know? What does the ordinary juryman mean
by it?
We are left in doubt as to whether the word should be given, as justice
Stephens contended it should be, a very broad and liberal interpretation
such as "able to judge calmly and reasonably of the moral or legal
character of a proposed action,"* or a limited and qualified one. There
are all grades and degrees of "knowledge," and it is more than probable
that there is a state of mind which I have heard an astute expert call
upon the witness stand "an insane knowledge," and equally obvious that
there may be "imperfect" nor "incomplete knowledge," where the victim
sees "through a glass darkly." Certainly it seems far from fair to
interpret the test of responsibility to cover a condition where the
accused may have had a hazy or dream-like realization that his act was
technically contrary to the law, and even more dangerous to make it
exclude one who was simply unable to "judge calmly and reasonably" of
his proposed action, a doctrine which could almost be invoked by any one
who committed homicide in a state of anger.
*"General View of the Criminal Law," p. 80.
Ordinarily the word is not defined at all and the befuddled juryman is
left to his own devices in determining what significance he shall attach
not only to this word but to the test as a whole.
An equally ambiguous term is the word "wrong." The judges made no
attempt to define it in 1843, and it has been variously interpreted ever
since. Now it may mean "contrary to the dictates of conscience" or, as
it is usually construed, "contrary to the law of the land"--and exactly
what it means may make a great difference to the accused on trial. If
the defendant thinks that God has directed him to kill a wicked man, he
may know that such an act will not only be contrary to law, but also in
opposition to the moral sense of the community as a whole, and yet he
may believe that it is his conscientious duty to take life. In the case
of Hadfield, who deliberately fired at George III in order to be hung,
the defendant believed himself to be the Lord Jesus Christ, and that
only by so doing could the world be saved. Applying the legal test and
translating the word "wrong" as contrary to the common morality of the
community wherein he resided or contrary to law, Hadfield ought to have
achieved his object and been given death upon the scaffold instead of
being clapped, as he was, into a lunatic asylum.
On the other hand, if the word "wrong" is judicially interpreted, it
would seem to be given an elasticity which would invite inevitable
confusion as well as abuse.
Moreover, the test in question takes no cognizance of persons who have
no power of control. The law of New York and most of the states does not
recognize "irresistible impulses," but it should admit the medical fact
that there are persons who, through no fault of their own, are born
practically without any inhibitory capacity whatever, and that there are
others whose control has been so weakened, through accident or disease,
as to render them morally irresponsible,--the so-called psychopathic
inferiors.
Most of us are only too familiar with the state of a person just
falling under the influence of an anesthetic, when all the senses seem
supernaturally acute, the reasoning powers are active and unimpaired,
and the patient is convinced that he can do as he wills, whereas, in
reality, he says and does things which later on seem impossible in their
absurdity. Such a condition is equally possible to the victim of mental
disease, where the knowledge of right and wrong has no real relevancy.
The test of irresponsibility as defined by law is hopelessly inadequate,
judged by present medical knowledge. There is no longer any pretence
that a perception of the nature and quality of an act or that it is
wrong or right is conclusive of the actual insanity of a particular
accused. In a recent murder case a distinguished alienist, testifying
for the prosecution, admitted that over seventy per cent. of the
patients under his treatment, all of whom he regarded as insane and
irresponsible, knew what they were doing and could distinguish right
from wrong.
Countless attempts have been made to reconcile this obvious anachronism
with justice and modern knowledge, but always without success, and
courts have wriggled hard in their efforts to make the test adequate
to the particular cases which they have been trying, but only with the
result of hopelessly confounding the decisions.
But, however it is construed, the test as laid down in 1843 is
insufficient in 1908. Medical science has marched on with giant strides,
while the law, so far as this subject is concerned, has never progressed
at all. It is no longer possible to determine mental responsibility by
any such artificial rule as that given by the judges to the Lords in
McNaughten's case, and which juries are supposed to apply in the courts
of today. I say "supposed," for juries do not apply it, and the reason
is simple enough--you cannot expect a juryman of intelligence to follow
a doctrine of law which he instinctively feels to be crude and which he
knows is arbitrarily applied.
No juryman believes himself capable of successfully analyzing a
prisoner's past mental condition, and he is apt to suspect that, however
sincere the experts on either side may appear, their opinions may be
even less definite than the terms in which they are expressed. The
spectacle of an equal number of intellectual-looking gentlemen, all
using good English and all wearing clean linen, reaching diametrically
opposite conclusions on precisely the same facts, is calculated to fill
the well-intentioned juror with distrust. Painful as it is to record the
fact, juries are sometimes almost as sceptical in regard to doctors as
they always are in regard to lawyers.
The usual effect of the expert testimony on one side is to neutralize
that on the other, for there is no practical way for the jury to
distinguish between experts, since the foolish ones generally look as
learned as the wise ones. The result is hopeless confusion on the part
of the juryman, an inclination to "throw it all out," and a resort to
other testimony to help him out of his difficulty. Of course he has no
individual way of telling whether the defendant "knew right from wrong,"
whatever that may mean, and so the ultimate test that he applies is
apt to be whether or not the defendant is really "queer," "nutty" or
"bughouse," or some other equally intelligible equivalent far "medically
insane."
The unfortunate consequence is that there is so general and growing a
scepticism about the plea of insanity, entirely apart from its actual
merits, that it is difficult in ordinary cases, whatever the jurors may
think or say in regard to the matter, to secure twelve men who will give
the defence fair consideration at the outset.
This is manifest in frequent expressions from talesmen such as: "I think
the defence of insanity is played out," or "I believe everybody is a
little insane, anyhow" (very popular and regarded by jurymen as witty),
or "Well, I have an idea that when a fellow can't cook up any other
defence he claims to be insane."
The result is a rather paradoxical situation: The attitude of the
ordinary jury in a homicide case, where the defence of insanity is
interposed, is usually at the outset one of distrust, and their impulse
is to brush the claim aside. This tendency is strengthened by the legal
presumption, which the prosecutor invariably calls to their attention,
that the defendant is sane. Every expert who has testified for the
defence in the ordinary "knock down and drag out" homicide case must
have felt with the prisoner's attorneys, that it was "up to them" not so
much to create a doubt of the defendant's sanity as to prove that he was
insane, if they expected consideration from the jury.
Now let us assume that the defence is meritorious and that the
prisoner's experts have created a favorable impression. Let us go even
further and assume that they have generated a reasonable doubt in the
mind of the jury as to the defendant's responsibility at the time he
committed the offence. What generally occurs? Not, as one would suppose,
an acquittal, but, in nine cases out of ten, a conviction in a lower
degree.
The only usual result of an honest claim of irresponsibility on the
ground of insanity is to lead the jury to reduce the grade of the
offence from murder in the first, entailing the death penalty, to murder
in the second degree. The jury have no intention of "taking the chance"
involved in turning the man loose on the community and their minds are
filled with the predominating fact that a human being has been killed.
They have an idea that it is as easy to get "sworn out" of a lunatic
asylum as they suppose it is to get "sworn into" one, and they know that
if the prisoner is found to be insane when sent to State's prison he
will be transferred elsewhere. They, therefore, as a rule, waste little
time upon the question of how far the defendant was irresponsible within
the legal definition when he committed the deed, but convict him
"on general principles," trusting the prison officials to remedy any
possible injustice. The jury in such cases ignore the law and decline
either to acquit or to convict in accordance with the test. Their action
becomes rather that of a lay commission condemning the prisoner to hard
labor for life on the ground that he is medically insane.
Assuming that the jury take the defence seriously, there is only one
class of cases where, in the writer's opinion, they follow the legal
test as laid down by the court--that is to say, in cases of extreme
brutality. Here they hold the prisoner to the letter of the law, and
the more abhorrent the crime (even where its nature might indicate to
a physician that the accused was the victim of some sort of mania) the
less likely they are to acquit. The writer has prosecuted perhaps a
dozen homicide and other cases where the defence was insanity. In his
own experience he has known of no acquittal. In several instances the
defendants were undoubtedly insane, but, strictly speaking, probably
vaguely knew the nature and quality of their acts and that they were
wrong. In a few of these the juries convicted of murder in the first
degree because the circumstances surrounding the homicides were so
brutal that the harshness of the technical doctrine they were required
to apply was overshadowed in their minds by their horror of the act
itself. In other cases, where either the accused appeared obviously
abnormal as he sat at the bar of justice, or the details of the crime
were less abhorrent, they convicted of murder in the second degree in
accordance with the reasoning set forth in the foregoing paragraph. The
writer seriously advances the suggestion that the more the brutality of
a homicide indicates mental derangement the less chance the defendant
has to secure an acquittal upon the plea of insanity.
And this leads us to that increasingly large body of cases where
the usual scepticism of the jury in regard to such defences is
counterbalanced by some real or imaginary element of sympathy. In cities
like New York, where the jury system is seen at its very best, where the
statistics show seventy per cent. of convictions by verdict for the year
1907, and where the sentiment of the community is against the invocation
of any law supposedly higher than that of the State, our talesmen are
unwilling to condone homicide or to act as self-constituted pardoning
bodies, for they know that an obviously lawless verdict will bring
down upon them the censure of the public and the press. This is perhaps
demonstrated by the fact that in New York County a higher percentage of
women are convicted of homicide than of men.
But the plea of insanity, with its vague test of responsibility, whose
terms the juryman may construe for himself (or which his fellow-jurors
may construe for him) offers an unlimited and fertile field for the
"reasonable" doubt and an easy excuse for the conscientious talesman who
wants to acquit if he can. Juries take the little stock in irresistible
impulses and emotional or temporary insanity save as a cloak to cover an
unrighteous acquittal.
In no other class of cases does "luck" play so large a part in the final
disposition of the prisoner. A jury is quite as likely to send an
insane man to the electric chair as to acquit a defendant who is fully
responsible for his crime.
To recapitulate from the writer's experience:
(1) The ordinary juror tends to be sceptical as to the good faith of the
defence of insanity.
(2) When once this distrust is removed by honest evidence on the part of
the defence, he usually declines to follow the legal test as laid down
by the court on the general theory that any one but an idiot or a maniac
has some knowledge of what he is doing and whether it is right or wrong.
(3) He applies the strict legal test only in cases of extreme brutality.
(4) In all other cases he follows the medical rather than the legal
test, but instead of acquitting the accused on account of his medical
irresponsibility, merely convicts in a lower degree.
The following deductions may also fairly be made from observation:
(1) That the present legal test for criminal responsibility is
admittedly vague and inadequate, affording great opportunity for
divergent expert testimony and a readily availed of excuse for the
arbitrary and sentimental actions of juries, to which is largely due
the distrust prevailing of the claim of insanity when interposed as a
defence to crime.
(2) That expert medical testimony in such cases is largely discounted by
the layman.
(3) That in no class of cases are the verdicts of jurors so apt to be
influenced solely by emotion and prejudice, or to be guided less by the
law as laid down by the court.
(4) That a new definition of criminal responsibility is necessary, based
upon present knowledge of mental disease and its causes.
(5) Lastly, that, as whatever definition may be adopted will inevitably
be difficult of application by an untutored lay jury, our procedure
should be so amended that they may be relieved wherever possible of a
task sufficiently difficult for even the most experienced and expert
alienists.
A classification of the different forms of insanity, based upon its
causes to which the case of any particular accused might be relegated,
such as has recently been urged by a distinguished young neurologist,
would not, with a few exceptions, assist us in determining his
responsibility. It would be easy to say then, as now, that lunatics or
maniacs should not be held responsible for their acts, but we should be
left where we are at present in regard to all those shadowy cases where
the accused had insane, incomplete or imperfect knowledge of what he was
doing. It would be ridiculous, for example, to lay down a general rule
that no person suffering from hysterical insanity should be punished
for his acts. Yet, even so, such a classification would instantly
remedy that anachronism in our present law which refuses to recognize
as irresponsible those born without power to control their emotions--the
psychopathic inferiors of science, and the real victims of dementia
praecox.
Of course, if the insanity under which the defendant labors bears no
relation to or connection with the deed for which he is on trial, there
would logically be no reason why his insanity on other subjects should
be any defence to his crime. For example, there is the well-known case
of the Harvard professor who was apparently sane on all other matters,
yet believed himself to be possessed of glass legs. Had this man in
wanton anger struck and killed another, his "glass leg" delusion could
not logically have availed him. If, however, he had struck and killed
one who he believed was going to shatter his legs it might have been
important. The illustration is clear enough, but its application
probably involves a mistaken premise. If he thought he had glass legs
his mind was undoubtedly deranged--whether enough or not enough to
constitute him irresponsible or beyond the effect of penal discipline
might be a difficult question. The generally accepted doctrine is, that
if a man has a delusion concerning something, which if actually existing
as he believed it to be would be no excuse for his committing the
criminal act, he is responsible and liable to punishment; but, as Bishop
well says:
"This branch of the doctrine should be cautiously received; for delusion
of any kind is strongly indicative of a generally diseased mind."
The new test to determine responsibility will recognize, as does the
law of Germany, that there can be no criminal act where the free
determination of the will is excluded by disease, and that the capacity
to distinguish between right and wrong is inconclusive. It may
perhaps have to take a general form, leaving it to a lay, or a mixed
lay-and-expert jury to say merely whether the accused had a disease
of the mind of a type recognized by science, and whether the alleged
criminal act was of such a character as would naturally flow from that
type of insanity, in which case it would seem obviously just to regard
the defendant as partially irresponsible, and perhaps entirely so.
Possibly the practical needs of the moment might be met by permitting
such a jury to determine whether the defendant had such a knowledge of
the wrongful nature and consequences of his act and such a control over
his will as to be a proper subject of punishment.* This would require
the jury to find that the defendant had some knowledge of right and
wrong and the power to choose between them. In any event, to render
the accused entirely irresponsible, his act should arise out of and
be caused solely by the diseased condition of his mind. The law, while
asserting the responsibility of many insane people, should recognize
"partial" responsibility as well.
*See State vs. Richards, 1873, Conn.
The reader may feel that little after all would be gained, but he will
observe that at any rate such a test, however imperfect, would permit
juries to do lawfully that which they now do by violating their oaths.
The writer believes that the best concrete test yet formulated and
applied by any court is that laid down in Parsons vs. The State of
Alabama (81 Ala., 577):
"1. Was the defendant at the time of the commission of the alleged
crime, as matter of fact, afflicted with a disease of the mind, so as to
be either idiotic, or otherwise insane?
"2. If such be the case, did he know right from wrong as applied to the
particular act in question? If he did not have such knowledge, he is not
legally responsible.
"3. If he did have such knowledge, he may nevertheless not be legally
responsible if the two following conditions concur:
"(1) If, by reason of the duress of such mental disease, he had so far
lost the power to choose between the right and wrong, and to avoid doing
the act in question, as that his free agency was at the time destroyed.
"(2) And if, at the same time, 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."
But whatever modification in the present test of criminal responsibility
is adopted, there must come an equally, if not even more important,
reform in the procedure in insanity cases, which to-day is as cumbersome
and out of date as the law itself. As things stand now in New York and
most other jurisdictions there are no adequate means open to the State
to find out the actual present or past mental condition of the defendant
until the trial itself, and ofttimes not even then.
In New York, in cases like Thaw's, the accused, while fully intending
to interpose the defence of insanity (which he is now permitted to do
simply under the general plea of "not guilty") may not only conceal the
fact until the trial, but may likewise successfully block every effort
of the authorities to examine him and find out his present mental
condition. He may thus keep it out of the power of the District Attorney
to secure the facts upon which to move for a commission to determine
whether or not he ought to be in an insane asylum or is a fit subject
for trial, and at the same time prevent the prosecutor from obtaining
any evidence through direct medical observation by which to meet the
claim, which may be "sprung" suddenly upon him later at the trial, that
the defendant was irresponsible.
In order that this may be clearly understood by the reader he should
fully appreciate the distinction between (1) the claim on the part of an
accused that he is at present insane, and for that reason should not be
either tried or punished for his alleged offence, and (2) the defence
that he was (irrespective of his present mental condition) insane within
the legal definition of irresponsibility at the time he committed it. No
person who is incapable of understanding the nature of the proceedings
against him or of consulting with counsel and preparing his defence can
be placed on trial at all, or, if already on trial, can continue to be
tried, and if a defendant "appears to the court to be insane," the judge
may appoint a commission to examine him and report as to his present
condition. This may be done upon the application either of the State of
the accused through his counsel.
It was such a commission to determine the accused's present mental
condition that District Attorney Jerome, upon the basis of the evidence
introduced by the defence, applied for and secured during the first
trial of Harry K. Thaw. The commission reported that Thaw was sane
enough to be tried and the court then proceeded with the original case
for the purpose of allowing the jury to say whether he knew the nature
and quality of his act and that it was wrong when he shot and killed
White.
This was a totally distinct proceeding from the interposition of the
DEFENCE that the accused was irresponsible when he committed the crime
charged against him and was not inconsistent with it.
Now supposing that the Commission had reported that Thaw was insane at
the time of examination and not a fit subject for trial, but, on
the contrary, ought to be confined in an insane asylum, the District
Attorney would have spent some twenty odd thousand dollars and a year's
time of one or more of his assistants in fruitless preparation. Yet, as
the law stands on the books to-day in New York, there is no adequate
way for the prosecution to find out whether this enormous expenditure of
time or money is necessary or not, for it cannot compel the defendant
to submit either to a physical or mental examination. To do so has been
held to be a violation of his constitutional rights and equivalent to
compelling him to give evidence against himself.
Thus when Thaw came to the bar at his first trial the State had never
had any opportunity, through an examination by its physicians, to learn
what his present condition was or past mental condition had been. The
accused, on the other hand, had had over six months to prepare his
defence and had fully availed himself of the time to submit to the most
exhaustive examinations on the part of his own experts. The defendant's
physicians came to court brimming with facts to which they could
testify; while the State's experts had only the barren opportunity for
determining the defendant's condition afforded by observing him daily in
the court room and hearing what Thaw's own doctors claimed that they
had discovered. There was no chance to rebut anything which the latter
alleged that they had observed, and their testimony, save in so far as
it was inconsistent or contradictory in itself, remained irrefutable.
There is probably no procedure which would be held constitutional
whereby a compulsory examination of the accused could be had upon the
mere application of the prosecuting authorities; but as a commission may
generally be appointed at any time after an accused has been indicted
if he "appears" to the court to be "insane," and as it is usually within
the power of the District Attorney where such is the case to bring
sufficient evidence of it to the attention of the court before the
prisoner is brought to trial, little time is actually lost and justice
is rarely defeated except in those cases (such as Thaw's) where an
attempt is to be made to prove the accused insane at the time of the
alleged crime although sane at the time of trial. Even here it would be
the simplest thing in the world to remedy the difficulty and the proper
legal steps in all jurisdictions should be taken immediately.
The two chief objects of such reforms should be, first, to relieve the
ordinary jury in as many cases as possible from the necessity of passing
upon the delicate issue of a defendant's mental condition at a previous
time, and second, where this may not be avoided, to make their task as
easy as possible by providing (a) a more scientific and definite test of
legal responsibility and (b) an opportunity for adequate examination of
defendants availing themselves of this defence.
This last and most practical reform can be easily secured by a slight
alteration in the New York Code of Criminal Procedure, which already
provides both for the entering of the specific plea of insanity and
for the introduction of the defence and the proof of insanity under the
general plea of "not guilty." At present the defendant has his choice
of openly announcing or of concealing until the trial his intention of
claiming that he was insane and so irresponsible for his crime. This is
an advantage the results of which were probably not fully contemplated
by the Legislature, and one to which an accused has no fair claim.
Fortunately, in the same section of the Code (658), which provides
that the court may appoint a Commission to inquire into the sanity of
a defendant at the time of his trial, there exists another provision,
hitherto little noticed, that:
"When a defendant PLEADS INSANITY, as prescribed in Section 336, the
court in which the indictment is pending, instead of proceeding with the
trial of the indictment, may appoint a commission of not more than three
disinterested persons to examine him and report to the court as to his
insanity at the time of the commission of the crime."
If a defendant intends to prove himself irresponsible for his offence,
why should he not be compelled to enter a specific plea to that effect?
Once he has entered that plea, the law as it stands just quoted will do
the rest. No reason has been brought to the attention of the writer why
the admission of any evidence upon the defendant's trial tending to show
that he was mentally irresponsible at the time of committing the crime
should not be made contingent upon the defence of insanity having been
specifically pleaded either at the time of his arraignment or later by
substitution for or in conjunction with the plea of "not guilty." This
would deprive him of no constitutional right whatever. There is no legal
necessity of permitting an accused to prove insanity under a general
answer of "not guilty." Then upon his own plea that he had been insane
he could instantly be committed to some place of observation where a
permanent medical board of inquiry could be given full opportunity to
examine him and study his case with a view to determining his present
and past mental condition. He would still have in prospect his regular
jury trial, but if this board found him at the present time insane,
the court could immediately commit him to an asylum pending recovery,
precisely as under the present procedure, while if they found him sane
at the present time, but reported that, in their opinion (whatever test,
"medical" or "legal," they might have applied), he was irresponsible
at the time he committed the crime, it is unlikely that any prosecutor
would bring him to trial. If, however, they reported that he was not
only sane, but had been sane at the time of his crime, it is probable
that any proposed defence of insanity would be abandoned, while if it
was still urged by the accused, the opinion of such a board would carry
far greater weight at the ultimate trial of the case than the individual
opinions of experts retained and paid by either side for that particular
occasion only, and having had only a comparatively limited opportunity
for examination. At any rate, if the court called in the services of
such a board of medical judges to assist as amici curie in determining
the defendant's condition, while their opinion would not be conclusive
upon the jury, it would at least do away with the present lamentable
necessity of learned men answering "yes" or "no" to a hypothetical
question fifty thousand words long, when the most superficial personal
examination of the accused would settle the matter definitely in
their minds. Such a procedure is in general use in Germany and other
continental countries, and is likewise substantially followed in
Massachusetts, Maine, Vermont, and New Hampshire.*
* Another equally efficacious means of dealing with the matter would
be to substitute, upon a defendant's plea of insanity, a full jury of
experts--like any "special" jury--for the ordinary petit jury.
There is good reason to hope that we may soon see in all the states
adequate provision for preliminary examination upon the plea of
insanity, and a new test of criminal responsibility consistent with
humanity and modern medical knowledge. Even then, although murderers
who indulge in popular crime will probably be acquitted on the ground of
insanity, we shall at least be spared the melancholy spectacle of juries
arbitrarily committing feeble-minded persons charged with homicide to
imprisonment at hard labor for life, and in a large measure do away with
the present unedifying exhibition of two groups of hostile experts, each
interpreting an archaic and inadequate test of criminal responsibility
in his own particular way, and each conscientiously able to reach a
diametrically opposite conclusion upon precisely the same facts.