The following is a post from the Psychiatric Times LinkedIn page byJohn Liebert, MD CM Psychiatrist in Scottsdale, Arizona. Following his post, Mark Levy MD has added a lengthy comment

The Trial of James Holmes

“Despite that hurdle for prosecutors, legal observers say Mr. Holmes’s lawyers are facing huge obstacles. For weeks, people who lost friends and loved ones, or who were scarred or paralyzed by Mr. Holmes’s bullets have taken the witness stand and recreated the bloody chaos inside Theater 9 that July 20. Their testimony has brought members of the gallery, and sometimes jurors, to tears.

“The more horrendous the attack is, the more heinous the behavior, the less juries are willing to consider insanity,” said J. Reid Meloy, a forensic psychologist and clinical professor of psychiatry at the University of California, San Diego.”
The psychiatrist opining that, regardless of what was wrong with James Holmes, his escape and evasion plans “suggested” he knew right from wrong. So what was wrong with James Holmes? The psychiatrist knew he was on antipsychotics during his interview. As detailed in my book with this case history, Hearts of Darkness, James Holmes was the classical portrait of deterioration from Schizophrenia while a star grad student studying this very disease amidst experts in Neuroscience. From $100K worth of clinical interviews, the psychiatrist gleaned the defendant’s knowledge of right from wrong, opining prematurely from the stand that he was essentially guilty. But, his chances of escape from his chosen target, Holmes himself said, were 1%. That’s sane? Finally, what is missing here is the clear and convincing evidence that these atrocities were totally the product of his delusional thinking; hence the state should have to prove he had no loss of ego autonomy, a basic element of the insanity defense conveniently skipped over by the state. To keep the crowds with pitchforks and torches from the streets of Denver, both Holmes and the taxpayers would be as well served in this day, when public psychiatry has regressed to the Colonial era, by the submersion test for Salem witches. Tie rocks to his feet and throw him in the pond. If he floats to the surface he’s innocent. If not? Oh well. ‘
In this case the State of Colorado is making a mockery of the profession of Psychiatry and lawyers are making fools of themselves by purchasing testimony.

Click to read New York Times article on trial of James Holmes: http://www.nytimes.com/2015/05/29/us/james-holmess-notebook-and-insanity-debate-at-aurora-shooting-trial.html?_r=0

Commentary on Dr. Liebert’s Blog by forensic psychiatrist Mark I Levy MD:

Dr. Liebert, you hit the nail on the head. Your comments are equally applicable to the Texas Andrea Yates trial several years ago. When we as forensic psychiatrists are conforming to any given state’s legal definition of “insanity” and the state permits the death penalty for certain capital crimes, we are opining within the context of a legal “term of art,” not medical diagnosis, and allowing our authority to be used to persuade the trier of fact. By doing so, we forensic psychiatrists are implicitly participating in state authorized killing, something explicitly prohibited by the AMA Ethical Guidelines as adopted and expanded by the APA.

Furthermore, your comment about the missed opportunity of the defense psychiatrist to make this point, using for example your excellent comparison the Submersion Test used in Salem, is also right on the money.

The history here in important. After John Hinkley attempted to assassinate President Reagan in 1981, there was a frenzy in the Congress and all of the state legislatures across the United States to do away with the insanity defense. What happened was a typical legislative compromise where the prior standards for determining legal insanity, the M’Naghten Rules from English Common Law and the Durham Rules were bastardized, most notably removing the “irresistible impulse” arm of the M’Naghten Rules.

According to Wikipedia, The strict M’Naghten standard for the insanity defense was used until the 1950s and the Durham v. United States case. In the Durham case, the court ruled that a defendant is entitled to acquittal if the crime was the product of his mental illness (i.e., crime would not have been committed but for the disease). The test, also called the Product Test, is broader than either the M’Naghten test or the irresistible impulse test. The test has much more lenient guideline for the insanity defense, but it addressed the issue of convicting mentally ill defendants, which was allowed under the M’Naghten Rule. M’Naghten’s Case, 8 Eng.Rep. 718 (1843). However, the Durham standard drew much criticism because of its expansive definition of legal insanity.

As it stands now, in many jurisdictions, the legal definition of “insanity” as an exculpatory factor when weighing an individual’s responsibility for murder, has been so watered down and compromised so much by legislators that the jury instructions severely limit the ability to consider psychiatric factors when determining guilt or innocence in capital cases. For example, the Texas jurors who originally found Andrea Yates guilty of drowning her five children were not even allowed to be told that if she were found NGRI she would not walk home from the courtroom after the trial. Rather, she would have received a sentence of indefinite length, perhaps her entire lifetime, to a forensic psychiatric hospital. Therefore, there was no issue of “protecting the public” by finding her guilty. It took an Appellate Court to later find a technical infraction in the trial testimony to reverse this unjust conviction.

When we as forensic psychiatrists allow our knowledge, training and authority to be forced through this legal/legislative sieve of so-called “appreciating the wrongfulness of the act” (such as James Holmes’ so-called “escape” attempt, we not only serve the forces of injustice but, I believe, we compromise our professional integrity in unacceptable ways that inflict lasting harm to our profession and on the public as well.

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