A Matter Over Mind
The Supreme Court Is Poised to Review the Insanity Defense, an Issue That Has Confounded Courts, Psychiatrists and Lawyers
Posted Apr 22, 2006 3:39 AM CDT
By John Gibeaut
The 911 calls began coming just before 5 a.m. on June 21, 2000, from a residential neighborhood in Flagstaff, Ariz. The callers complained of a pickup repeatedly circling the block, blasting music.
Flagstaff police officer Jeff Moritz was dispatched to the area. Moments later, the sounds of at least a half dozen gunshots pierced the predawn air. By the time the next officers arrived, the neighbors had emerged from their homes and were standing around someone lying in the street.
It was Moritz. One of the shots had struck the young officer and father through the armhole of his bulletproof vest, severing his aorta. He probably died within 30 seconds of being hit.
By day’s end, 17-year-old Eric Michael Clark was in custody. In a bench trial three years later, a judge rejected Clark’s insanity defense, convicted him of first-degree murder and sent him to prison for 25 years to life.
No one disputes that Clark shot Moritz. And no one denies that Clark, now 23, suffered from paranoid schizophrenia at the time. Nor does anyone say Clark should walk the streets anytime in the foreseeable future. The only question is whether Clark belongs in prison or a mental health facility.
The U.S. Supreme Court may help to answer the question after it hears Clark’s challenge to Arizona’s stripped down insanity defense, which Clark says denied him a fair trial by not taking full account of his mental illness.
The case, Clark v. Arizona, No. 05-5966, marks the first time the justices will directly consider whether defendants have a constitutional right to claim insanity as a defense. Oral arguments are scheduled for April 19.
For David and Terry Clark, their son’s criminal conviction represented the ultimate contradiction in terms. With one breath, the judge acknowledged Eric Clark’s mental illness. With the next, he declared Clark rational and guilty.
“The judge said he was psychotic and delusional, yet he knew what he was doing,” David Clark says. “If you look up those words in the dictionary, they don’t even go together in the same sentence.”
Dan and Janis Moritz couldn’t disagree more. They say Clark knew exactly what he was doing when he gunned down their son.
“I think a lot of people are mentally ill, but that certainly shouldn’t excuse them of responsibility for what they choose to do,” says Dan Moritz, a psychologist with experience in evaluating criminal defendants’ competency to stand trial. “I believe child molesters are mentally ill. I believe rapists are mentally ill. They punish them severely, and they should.”
Making Illness Replace Intent
When the justices take up Clark’s case, they will delve into an area that not only provokes public outrage at occasional acquittals in high-profile cases but also has long confounded judges, lawyers and jurors.
In a double-edged due process attack on Arizona’s system, Clark wants the justices to relax restrictions the state places on the insanity defense, which accounts for mental illness with a “guilty except insane” verdict.
But in a more contentious aspect of the case, Clark also says the trial judge unfairly refused to consider evidence of his mental illness to rebut the criminal intent required for his first-degree murder conviction. Clark says he was so crazy that he believed he was shooting an alien, not a police officer, and thus lacked the intent element the state needed to prove its case.
Arizona prosecutors recognize the insanity defense as legitimate but are expected to argue that the Constitution gives the states wide leeway in defining its limits. “It’s a policy question for the legislature as to how a given state will handle that,” says Randall M. Howe, chief appeals counsel for the Arizona Attorney General’s Office. “The question is in what fashion and to what degree does a legal system have to take this into account.”
Clark wants the Supreme Court to do two things.
First, he wants the justices to establish the historically accepted M’Naghten rule as the constitutional minimum test for insanity. In M’Naghten’s modern form, a defendant who pleads insanity must prove that at the time of the offense he or she was suffering from a mental disease or disability, such as retardation, so severely as not to know either “the nature and quality of the act” or whether it was right or wrong.
Like other states, Arizona boiled M’Naghten down to its second prong--knowledge of right and wrong--in reaction to John Hinckley’s successful insanity defense in the 1981 assassination attempt on President Ronald Reagan.
Second, in the part of the case most closely watched by lawyers in the field, Clark asks the justices to allow him to use his mental illness to prove he was so sick at the time that he lacked the criminal intent, or mens rea, required for first degree murder. A victory on intent could give other mentally ill defendants an important new strategy to decrease their criminal responsibility. Even if he prevails on that issue, Clark still could be convicted on a reduced charge requiring a less culpable mental state, such as recklessness.
By collapsing M’Naghten into a single prong and by foreclosing the use of psychiatric evidence to rebut mens rea, Arizona became one of only five states post-Hinckley that make it doubly hard for mentally ill defendants to win, Clark argues.
The last time the high court visited mens rea, however, it rejected voluntary intoxication as a rebuttal from a murder defendant who argued he couldn’t form intent because he got so drunk that he blacked out before shooting two people. Montana v. Egelhoff, 518 U.S. 37 (1996). The strong policy considerations behind the decision speak for themselves. But while the defendant in Egelhoff drank himself into a blackout, Eric Clark didn’t choose schizophrenia. The disease chose him.
“Those same policy arguments don’t apply if you have a mental illness over which you have no control,” says Richard J. Bonnie, director of the University of Virginia Institute of Law, Psychiatry and Public Policy. Bonnie consulted on an amicus brief supporting Clark filed by the American Psychiatric Association, the American Psychological Association, and the American Academy of Psychiatry and the Law.
A Son Disappears
As judges and lawyers argue over what’s fair and what’s not under the Constitution, the Moritz and Clark families, not surprisingly, view fairness largely in terms of results. Dan and Janis Moritz say the system was eminently fair. David and Terry Clark say it stinks. Both couples plan to attend the Supreme Court arguments.
The shooting cast a pall over normally sunny Flagstaff, a community of 53,000 along Route 66 at the foot of northern Arizona’s San Francisco Peaks. At 7,000 feet, Flagstaff is one of the highest cities in the United States and lies within a two-hour drive of some of the West’s great natural wonders, such as the Grand Canyon, the Petrified Forest and the Painted Desert.
Moritz, 30, was the first Flagstaff police officer ever killed in the line of duty. He had joined the force four years earlier. He and his wife, Stacie, already had one young son; she learned she was pregnant with a second son after he died. Like the rest of the city, the shooting emotionally overwhelmed the police department, which has 99 sworn officers and 53 civilian employees.
Like Moritz, Clark grew up in Flagstaff. Clark’s parents recall how their son’s behavior rapidly turned bizarre beginning about 18 months before the confrontation with Moritz. They have moved to Tucson since the shooting, where David works as a financial consultant and Terry is a school nurse.
They recall a gregarious boy and good student who excelled in football and baseball. As a high school freshman and sophomore, he was named a member of the homecoming court. He had tons of friends--especially girls.
“They loved him,” Clark’s mother says. “He was generally a nice, good, easygoing kid.” The changes were gradual at first. Clark slowly withdrew and became isolated from his friends. He lost interest in sports. He began to experience severe mood swings that ranged from anger to sobbing. His eyes grew wider and his pupils became dilated. His reddened face carried a blank expression.
“It was like he was looking straight through you,” Terry Clark wrote in a log documenting the changes for Eric’s defense team. “He could change his mood like turning a faucet on and off.”
It wasn’t long before Eric Clark started to speak about strange beliefs.
“It started with the water,” David says. Terry explains: “He thought it contained lead. He thought he was going to be poisoned, and we couldn’t convince him otherwise.” Then came the aliens. Clark believed that Flagstaff had been invaded by them, and that he and the city were in danger. Though he still recognized David and Terry as his parents, he also believed they were aliens.
“But he couldn’t tell us who they were or why we would be in danger,” David says. He recalls his son’s matter-of-fact response when he asked Eric how he knew his parents were aliens: “He said, ‘Bring me some tools and I’ll show you.’ ”
It only got worse. Clark’s personal hygiene began to leave something to be desired. He quit going to school. He once rigged what appeared to be a crude burglar alarm by stringing fishing line with bells through the interior of his car. On another occasion, his parents found him sleeping with a large-caliber handgun.
Though they had considered mental illness, the Clarks say they mostly suspected drugs and initially didn’t pursue the possibility of hospitalizing Eric. After all, Eric’s marijuana use had become an issue in itself. And when he was arrested on a drunken driving charge two months before the slaying, the state trooper who stopped him also found 40 doses of LSD in his car. (At the time of his murder arrest, Clark tested positive only for marijuana. Doctors diagnosed the schizophrenia after he was jailed in the killing.)
Still, the trooper who made the DUI bust called David Clark to the station and told him a story that in retrospect sounded ominously prescient. While handcuffed in the backseat of the patrol car, Clark tried to escape by somehow wriggling partway through a small opening in the partition between the front and rear sections. The trooper said a passing motorist had to help him stuff Clark back into the backseat.
“He said, ‘You know, I think your son is dangerous,’ ” David remembers. “He said, ‘If you have any guns, get them out of the house.’ ”
At her wits’ end, Terry went to her lawyer’s office on June 20, 2000, to discuss having Eric civilly committed to a psychiatric hospital against his will. It was too late. The next day, David and Terry learned just how dangerous their son was when the police arrived at their home after his fatal encounter with Officer Moritz. Though they’ve learned much about mental illness and the law since June 2000, the law was not first in their thoughts at the time.
“I personally was so distraught in disbelief that he had killed someone that I didn’t care about the law,” David says. “I didn’t know if I was going to live through it.”
‘No One Gets in Trouble Up Here’
Jeff Moritz was the first of Janis and Dan’s three sons. Six feet tall and athletic, he loved the outdoors. Like many other area natives, he hunted, fished, skied and kayaked. He also would try just about anything at least once, including bull riding and skydiving.
Like Eric, Jeff was also loved by the girls. But Stacie was the one, and the couple married in November 1998. He intended to get an engineering degree while he worked as a police officer.
“He wanted to stay in Flagstaff,” says Janis Moritz, a medical technician. “He liked people. I think he liked the brotherhood of the police department.”
As Dan and Janis reflect on the past while seated at their dining room table, Dan recalls Jeff telling him he wasn’t worried about the dangers of police work, especially in sleepy little Flagstaff.
“He said, ‘This is not L.A., or even Phoenix,’ ” Dan remembers. “ ‘No one gets in trouble up here.’ ”
Jeff’s parents also say their son wasn’t the type of cop who just went to work and arrested people. They say he hated calls to roust homeless people from the trash bins where they searched for food.
“So anytime he was dispatched to get someone out of a Dumpster, he’d stop at Burger King or McDonald’s first and pick them up something to eat,” Dan says.
It wasn’t long before insanity became Clark’s only realistic hope to extract himself from the mess he was in. Though Clark’s chances for a quick release from a mental facility likely were no better than his getting out of the 25-year minimum he’s now serving in prison, Dan and Janis say the possibility still infuriates them.
“That made me really angry--the thought that he could be out after doing this,” Janis says. Though all the doctors who examined Clark agreed he wasn’t feigning mental illness, the Moritzes remain skeptical.
“If he had the option of getting out, I think he could pull himself together really quick,” Dan says. “He’d certainly have reason to.”
The Moritzes and the Clarks would have to wait more than three years to learn whether they would get justice. Eric initially was found incompetent to stand trial, a lesser standard than insanity, requiring only that the defendant appreciate the nature of the charge, be able to assist in his or her defense and behave appropriately in court. Eric landed in a state hospital until 2003, when a judge found his competency had been restored. Meanwhile, mental health experts for the defense and the prosecution agreed that he suffered from paranoid schizophrenia, and that he was actively psychotic at the time of the shooting.
As the case headed for trial in August 2003, David and Terry were confident Eric would be found guilty except insane. Clark also hoped to negate mens rea with expert testimony that he believed he was shooting an alien.
The attorney general’s office tried the case to ease a potential conflict created when Stacie Moritz unsuccessfully sued local prosecutors for failing to lock up Clark in the drunken-driving case. Prosecutors didn’t seek the death penalty, partly because of the mental-health issues and Clark’s age at the time of the shooting. The decision suited the Moritzes just fine.
“I would much rather see him in prison,” Dan says. “Prison is worse than death. He gets to stay alive, dwell on what he did and suffer the consequences.”
The Facts, the Law, the Ruling
Coconino County Superior Court Judge H. Jeffrey Coker cut Clark’s case in half when he refused to consider the mens rea evidence. But because he tried the case without a jury, Coker did agree to consider as part of Clark’s affirmative insanity defense evidence compiled during the three years of competency proceedings. He also heard live anecdotal and expert testimony on the affirmative defense.
“We stipulated going in that Judge Coker could consider all that, even though it might not have been admissible to a jury,” says Assistant Attorney General David A. Powell, the trial prosecutor. “The facts were the facts. The law is the law. We just threw it all out there.”
But defense lawyers say the exclusion of Clark’s mens rea evidence hurt big-time. The state’s evidence on intent wasn’t just powerful. It was a classic blueprint for first degree murder. It included:
• Clark’s statements to a witness that he had planned to kill a police officer, and that he would set a trap for the officer by creating a disturbance.
• Pulling the pickup over for a uniformed officer driving a marked police car with its emergency lights and siren operating.
• Firing all six shots from the .22-caliber revolver used in the slaying, then disposing of the weapon.
• Fleeing the scene and hiding from police to avoid capture.
Though the mental health professionals agreed Clark was insane, the state’s expert nonetheless concluded he knew killing the officer was wrong.
“From all this, the court must conclude that, while the defendant was affected by his mental illness, it did not ... distort his perception of reality so severely that he did not know his actions were wrong,” Coker wrote in a special verdict detailing his reasons for convicting Clark and rejecting his insanity defense. The judge, however, did not make a specific finding on whether the state had proved mens rea.
So what’s unfair about that? Nothing, as far as the Moritzes are concerned. They lost their son to a bullet, and he doesn’t get another chance.
“I don’t know what the problem is or why he thinks he didn’t get a fair trial,” Janis says of Clark. “I think he’s right where he ought to be, and he can get out in 25 years. I think that’s a lenient sentence. It’s a difficult situation, but I think they should draw the line to protect society, not insane people.”
From the Clarks’ viewpoint, the law couldn’t have treated their son any more shabbily. While schizophrenia has no cure, patients can control it through medication. Though Eric is medicated in prison, his parents say he’s not getting the kind of intensive counseling and therapy he needs to cope with his condition. They say the state can’t punish the schizophrenia out of him.
“We lost our son as we knew him to the schizophrenia,” Terry says. “And then we lost him again to the system.”
The Evolving Insanity Defense
The insanity defense evolved from the taboo against holding the mentally ill responsible for acts that otherwise would be crimes if committed by a sane person.
Though it traces its roots back to biblical times, the defense began to emerge in its modern form in the 1843 case of Daniel M’Naghten, found insane by a trial court for mistakenly killing the secretary of British Prime Minister Robert Peel in an assassination attempt on Peel. The House of Lords then went on to set the parameters for the insanity defense that dominated Anglo American jurisprudence for more than a century: To prevail, a defendant must have a mental illness or condition, such as retardation, so severe that he or she did not understand the “nature and quality of the act” or did not know it was wrong.
In the United States, the defense started to change in 1962 as some states began adopting the approach of the Model Penal Code developed by the American Law Institute. The code expanded the M’Naghten rule beyond the defendant’s understanding of the act to the inability “to conform his conduct to the requirements of the law.”
But demands for abolition arose in 1982 after John Hinckley was found not guilty by reason of insanity in his assassination attempt on President Reagan. The defense survived, partly at the ABA’s urging. Still, many jurisdictions lopped off the Model Penal Code’s conduct prong and reduced the M’Naghten rule to the defendant’s understanding of right and wrong. The ABA and the American Psychiatric Association played key roles in supporting that position.
The burden of proof post Hinckley also shifted from prosecutors to defendants in most states, including Arizona. A handful of states, including Arizona, raised the standard of proof for defendants from a preponderance of evidence to clear and convincing evidence. And Arizona was among about a dozen states that replaced “not guilty by reason of insanity” verdict language with variations of “guilty except insane,” a change regarded as largely semantic because treatment still remained favored over punishment. Only three states--Idaho, Montana and Utah--flat-out abolished the defense.
Meanwhile, the use of mental illness to rebut mens rea, or criminal intent, developed separately. The issue of intent figures to dominate convicted cop-killer Eric Clark’s U.S. Supreme Court challenge to the way Arizona deals with the insanity defense and the admission of psychiatric evidence.
Though the common law acknowledged mens rea, intent didn’t emerge as a distinct element of a crime that prosecutors must prove beyond a reasonable doubt until the mid-20th century, with the advent of modern codes and Supreme Court decisions addressing the issue.
Intent is especially significant in homicide cases because it helps separate different kinds of killings by degree, ranging from negligence for manslaughter to premeditation for first-degree murder. Clark’s first degree murder conviction was based on his “intentionally or knowingly” killing a police officer in the line of duty.
Diminished Capacity Evidence
About half the states and the federal courts let defendants admit evidence of mental illness to rebut mens rea. This is sometimes called a diminished-capacity defense. The ABA and major mental health organizations also endorse the approach. Indeed, though they abolished the insanity defense, Idaho, Montana and Utah still admit psychiatric evidence against mens rea.
A successful insanity defense shields a defendant from criminal responsibility and usually results in confinement to a mental hospital. On the other hand, an attack on mens rea seeks acquittal, at least on the most serious charges. A defendant, Clark included, still could be convicted on a lesser charge that requires a state of mind lower than intent, perhaps recklessness or negligence.
However, evidence for an insanity defense sometimes may overlap with evidence used to rebut mens rea. So courts in states that allow psychiatric evidence to negate mens rea face the delicate task of separating the part that goes directly to the defendant’s ability to form intent from the evidence that merely explains or excuses his or her actions. University of Florida law and psychiatry professor Christopher Slobogin envisions big trouble arising from the intent issue. Though Slobogin says he believes the Constitution requires psychiatric evidence to defeat mens rea, a victory for Clark could further agitate already muddy waters.
“A lot of these so-called mens rea or diminished capacity defenses turn out to be mini insanity defenses,” Slobogin says. “It can open up a can of worms. I think it will lead to major headaches for the courts and confusion for fact-finders. If I were a judge, I’d open up that can and toss most of the worms out.”
A divided Arizona Supreme Court tossed out all the worms when it denied first degree murder and child abuse defendant Shelly Kay Mott’s attempt to use battered woman syndrome to fight mens rea. Mott was charged in the death of her 21⁄2 year old daughter at her boyfriend’s hands. State v. Mott, 931 P.2d 1046 (1997). Though critics say he confused apples with oranges, trial Judge H. Jeffrey Coker held that Mott controlled in rejecting Clark’s bid to use his mental illness in rebuttal to the state’s evidence. Though the case remains good law in Arizona, a federal judge in a later unreported decision ordered Mott’s release on a writ of habeas corpus after holding she was denied the right to present a complete defense. Mott v. Stewart, No. 98-CV-239 (D. Ariz. 2002). Rather than gamble on appeal, prosecutors dropped the murder charge and accepted a guilty plea to a reduced child abuse count.
Despite complaints that mens rea evidence only confuses jurors, Clark’s lawyer, David Goldberg, maintains that judges can effectively filter out the garbage.
“They’re going to have to draw a line here,” Goldberg says. “Unless it’s irrelevant, it’s admissible. There’s no valid reason to keep this stuff out.”
While the debate focuses on the mentally ill, the law also covers the mentally retarded. So the retarded clients represented by University of New Mexico law professor James W. Ellis also have a stake in the outcome. Ellis argued Atkins v. Virginia, the 2002 decision in which the justices banned executions of retarded murderers. 536 U.S. 304. He wrote an amicus brief supporting Clark for the American Association on Mental Retardation and several similar organizations.
“Whichever way it goes, it’s going to affect my clients,” Ellis says. “In the real world, I don’t know a lot of [retarded] defendants who have succeeded based on mens rea. Mens rea for them is the key issue.”
John Gibeaut is a senior writer for the ABA Journal.