Ask a psychiatrist if someone is legally insane and you will be told: “Insanity is a legal term. I can express only an opinion as to whether someone is psychotic, someone who is suffering from a mental disorder so severe that thoughts and emotions are impaired to a point where contact is lost with external reality.”
Not that you can ask a psychiatrist to express an opinion on a defendant’s psychosis when he is testifying under oath. Thanks to John W. Hinckley, Jr., that’s a matter for a jury to decide. The psychiatrist can describe only symptoms. In 1981, Hinckley and a defective exploding cartridge came an inch or so from assassinating President Ronald Reagan and disabled White House Press Secretary James S. Brady for life. When a jury of morons acquitted him as not guilty by reason of insanity (NGRI) public outrage resulted in that change to the law of insanity defense, and others. Previously, when a defendant entered a plea of NGRI it was up to the prosecution to prove beyond a reasonable doubt that the defendant was sane at the time of the crime. Now, it’s up to the defendant to prove his insanity by “clear and convincing evidence” — a standard lower than “beyond a reasonable doubt” and similar to the standard of proof used in civil cases: a “preponderance of the evidence.”
Coauthor Joe Rehyansky has spent most of his 37-year legal career in military assignments and civilian jobs directly or indirectly related to criminal law matters. The new standards have been a boon to prosecutors and have sharply curtailed the shameless abuses of the insanity defense.
Where does that leave the Muslim terrorist Major Nidal M. Hasan?
Will he raise the insanity defense? Given his “religious” beliefs and the heinous and bizarre nature of his crimes, we believe that no other tactic is available to the defense. His civilian defense counsel, John P. Galligan, has said: “Based on the evidence thus far, his mental status must be raised. Anybody who allegedly engages in conduct that is completely contradictory to his lifestyle and military career — an insanity defense has to be considered.”
His statement is contradictory to the facts. Hasan’s actions were entirely consistent with “his lifestyle and military career.”
Galligan is a retired Army JAGC officer with whom Rehyansky had a slight acquaintance in the mid-‘80s when they were both assigned to the U.S. Army Legal Services Agency in Falls Church, Virginia. He remembers Galligan principally from a day of mandatory M-16 qualification on a rifle range. He opened fire on the “Ready!” command.
Just what is required for a defendant to be considered sane and competent to stand trial? It is the same in both military and civilian courts and is deceptively simple. In order to be convicted, the accused must have been both sane at the time of the crime and competent to assist in his own defense at trial. A constellation of complications arises when one attempts to zero in on a workable definition of legal insanity.
The insanity defense, like most of our jurisprudence, is descended from the British system, where insanity was a matter in mitigation, but not a defense, as early as the 13th century. In the 14th century insanity, defined as “absolute madness,” was recognized as a complete defense. Since then we have been through the “Wild Beast Test” of 1723 (one of our favorites) and now employ a variation of the M’Naughton Rule first introduced in 1843. It required that an organic disease of the brain be present and that the defendant suffer from a total mental incapacity.
Through numerous iterations of the United States Manual for Courts-Martial, beginning as early as 1921, the U.S. military applied the M’Naughton rule but without the requirement for organic brain disease, while total deprivation of mental responsibility remained the standard. In 1969 the Manual provided for the “irresistible impulse” as an alternative to total deprivation of mental responsibility. In 1977 the military adopted the American Law Institute standard of lack of substantial — not necessarily total — mental capacity.
Back to Hinckley. His NGRI verdict precipitated the 1984 Insanity Defense Reform Act and, for almost 26 years, the law has consisted of the changes mentioned above, plus complete mental impairment — “severe” mental disease or defect with the accused “unable to appreciate” the wrongfulness of his crime.
The run-up to Hasan’s trial and probable use of the insanity defense might end here were it not for the recent prominence of deranged evangelical Christian zealots who, for instance, murder their children so they can go to heaven without having first to endure the horrors of imminent Armageddon, Muslim “honor killings,” and jihadists like Hasan who claim to believe that they are obeying Allah’s command. Thus, we are confronted with the “religious insanity defense,” which has actually been around for quite a while but lacked the prominence now given it by recent history.
Benjamin N. Cardozo (1870 – 1938) was an Associate Justice of the U.S. Supreme Court from 1932 until his death. He came up with the “deific decree” standard: a sincere belief that God mandated a killing is per se an insane delusion. Fortunately, his standard was a minority view during his tenure and it has since been reduced to a minor footnote in the history of the insanity defense.
Caleb Moore is a former Assistant U.S. Attorney now on the faculty of Southwestern Law School. We found his recent Internet posting (we refuse to use the nonword “blog”) very helpful. In U.S. v. Ballard (1944), Justice William O. Douglas, writing for the majority, held that courts are not allowed to find that a person’s religious beliefs are false, but that is a far cry from settling the issue of religious insanity as a permissible defense. Most courts now allow it, although there is a split of opinions given that the U.S. Supreme Court has, as far as we can determine, not addressed the specific issue. (Our guess is that when they do, they will allow its use by the defense and then leave it up to the jury, the finder of facts, to determine its validity on a case-by-case basis.)
Moore’s posting includes excerpts from Commonwealth v. Robidoux (Mass. 2007) which held that religious beliefs cannot be the basis for an insanity defense. “The bizarre or inexplicable nature of a crime alone does not provide a foundation for an insanity defense.”
We can find no military case that has ruled on the admissibility of the religious insanity defense. Even if the military judge at Hasan’s trial allows it, will he agree to use it? According to Moore that would require the accused to say, in effect: “I acted under the belief that God ordered this action, and that I would be martyred . . . . I now renounce that belief and see it as an insane delusion. I deserve treatment, not punishment.”
Would Dr. Hasan allow his counsel to portray him as delusional? If he does, the plea would require him to renounce some or all of the Islamic doctrine. And there’s the biggest rub in the case.
If he is a standard-issue, off-the-shelf, violent neurotic, perhaps he would renounce Islam. But his writings, Internet communications, oral statements and, of course, his actions, are those of a dedicated and remorseless fanatic. By the time his trial begins it will be up to him to decide how he wants to portray himself.
This is a Hobson’s Choice not only for Hasan but also all the politically-correct people who knew of his sociopathic behavior but failed to take action to protect their fellow soldiers. Every one of them — and all the apologists for radical Islam — will be waiting with bated breath for Hasan’s plea.
If he pleads insanity, he has to renounce whatever parts of Islam “compelled” him to murder. If he avoids the insanity plea he is — to use the appropriate judicial term — toast.
Can you be sane under American law and still be a homicidal jihadist? Of course. And if he pleads insanity, it will be a huge ideological victory for everyone who is fighting Islamofascism.