Can an individual be insane yet have the intelligence and the executive function needed to meticulously plan and execute a mass killing? Jury selection began recently for the murder trial of James Holmes. Holmes freely admits he opened fire in a packed Colorado movie theater, though he is pleading not guilty by reason of insanity. However, the prosecution is adamant—they are going for the death penalty.
 
Theodore Kaczynski, the Unabomber, was diagnosed with paranoid schizophrenia and spent two decades committing crimes before he was caught. Brilliant and gifted John Nash, portrayed in A Beautiful Mind, also diagnosed with paranoid schizophrenia, won a Nobel Peace Prize while ill. One thing is clear: it is possible to be very intelligent and still suffer from serious mental illness. Holmes' attorney admits his client was the shooter, but he claims Holmes was in the middle of a psychotic episode when he committed the massacre.
 
Judge Carlos Samour is overseeing jury selection, and it's expected to last months. In order to gather potential jurors for this controversial case, 9,000 summonses were sent out to nearby residents. To give an example of how extensive this is, 1,300 potential jurors filled out questionnaires for the trial of Dzhokhar Tsarnaev for the 2013 Boston Marathon bombings.  
 
Let’s analyze, but first a disclaimer: I have neither seen nor evaluated Mr. Holmes. There's no denying Holmes is very intelligent. At the time of the murders, he was a highly functioning doctoral neuroscience student. He was also under the care of university psychiatrist Lynne Fenton. What triggered his psychotic break is, at this time, unknown. His psychiatrist no doubt knew he was ill, and allegedly he shared homicidal thoughts with her. After he stopped his therapy, he began to send her threatening text messages. She warned a campus police officer that he was a public threat, but failed to file an order for protective custody, warn any targeted victims or inform the police. Holmes mailed her a journal, full of details about how he was going to kill others, but allegedly that laid in the mailroom, unopened for days. How much she knew and when she knew it is at this time unclear.
 
In order to break patient confidentiality there must be a specific, credible threat against others, in which case the psychiatrist has a duty to give warning. In the precedent-setting 1976 Tarasoff vs Regents of the University of California, a patient confided to his therapist that he intended to kill a certain woman. After the patient murdered the woman, her family sued, but the psychotherapist insisted he wasn’t required to warn anyone who was not his patient and he was bound by patient confidentiality. California's Supreme Court disagreed and determined if the patient posed a danger, it was his duty to exercise precaution and warn the potential victim of that danger. True, Dr. Fenton mentioned her concerns with Holmes to campus police, but was that enough?
 
The debate over which is more important—patient confidentiality or the duty of a clinician to inform targets of a patient's murderous intent was settled in the Tarasoff case but it goes even further. Ewing v. Goldstein takes it even further. Gene Colello sought therapy from David Goldstein after his girlfriend dumped him and began dating Keith Ewing. Colello confided to his father he was thinking about harming Ewing. The father told Goldstein, but no action was taken. Ultimately, Colello murdered Ewing before committing suicide.
 
The parents sued Goldstein for wrongful death based on the therapist's failure to warn their son. Goldstein claimed he was not subject to liability because the father told him of the threat rather than his patient. The court found Goldstein did not fulfill his duty to protect by either initiating an involuntary commitment for Colello or by warning the victim. The court also made it clear that communications by a third party indicating threat or harm is equal to those same statements being made by the patient, himself. So it will be interesting to see how that plays out in the James Holmes’ case.
 
Clearly the biggest issue now is the sanity of Holmes at the time of the murder. Before examining that, a quick explanation here as to the difference between competence and sanity. Competency is concerned with the here and now; the time after arrest and before trial. Can the defendant understand the criminal proceedings? Can he aid his attorneys in his own defense? Does he understand the charges filed against him? If a defendant is found incompetent, there is no trial.
 
In that case the defendant will be held (sometimes indefinitely) until such time that he becomes competent at which point a trial will be scheduled. Different states have different means of assessing a defendant's competence to stand trial, but typically both the defense and prosecution choose their own psychiatrist/psychologist to evaluate the defendant's mental state. This is primarily a clinical decision, though the judge will rule if the two doctors disagree, and will sometimes request a third opinion.
 
From 1976 to 1977, 24-year-old David Berkowitz, aka "Son of Sam" went on a killing spree in New York City. He confessed to six murders, providing a plethora of crime details that left no doubt to authorities they had their killer. He also described why he killed his victims—his neighbor's barking dog told him when and who to kill. A psychiatric evaluation found him paranoid and delusional yet he was deemed fit to stand trial by the court, i.e. “competent”. Berkowitz plead guilty, and was sentenced to 365 years in prison. He also ordered his attorneys not to file an appeal to the court's decision. Years later, Berkowitz claimed he made up the stories on his neighbor's dog. To this date those in legal circles still debate Berkowitz’s mental status.
 
Insanity deals with the defendant's mind set at the time the crime was committed. Did he know what he was doing? Did he know right from wrong? Did he realizes he was committing a crime? In order for an insanity plea to be accepted, it must be proven that the defendant suffered from a psychiatric condition, typically psychosis, at the time of the crime which impaired his ability to know right from wrong and to understand he was committing a crime. Again, this must be at the time the crime was committed. This mental condition can be permanent or temporary, but a persistent psychiatric condition, as would appear to be the case here, is much easier to prove. Holmes' mental health report has been completed and delivered to the court and is currently being reviewed by both the prosecution and the defense. To date this is being kept from the public.
 
Insanity is a legal term. Not Guilty By Reason Of Insanity (NGRI) defenses are rarely successful -- the percentage of all defendants found NGRI stands at less than 1 percent.  A well-known NGRI defendant is Lorena Bobbitt, who, in 1993, chopped her husband's penis off and threw it out the car window. Jurors acquitted Bobbitt when they agreed with the defense that she acted on "irresistible impulse" which was caused by severe stress from abuse by her husband. She was committed to a mental hospital. Five weeks after her trial, she was released from the hospital. Bobbitt eventually founded Lorena's Red Wagon, which helps prevent domestic violence. John Hinckley was another high profile NGRI case for his 1981 assassination attempt of President Ronald Regan.
 
Andrea Yates is probably the most high profile NGRI case. Found guilty after only three and a half hours of deliberations during her 2002 capital murder trial for drowning her children, an appeals court in 2006 overturned that verdict, opening the opportunity for a second trial. The second jury deemed Yates was psychotic before, during and after the children’s deaths.
 
Temporary psychotic episodes can be caused by intense anger, severe stress, substance abuse and the post-partum state which was the case with Yates. Her history of postpartum depression with psychosis was well-documented, and it was ordered she should never be left alone with her children. Despite that warning, after her husband left for work and before her mother-in-law arrived, Yates methodically drowned each of her five children in the family bathtub. Najres Modarresi also shocked her Houston community after she buried her infant son alive during a psychotic episode.
 
At the time of his arrest, Holmes was detached and stared at the police headquarters wall, eyebrows twitching. He claimed to be the Joker, a fictitious villain. When an officer put bags over his hands to preserve gunpowder residue, he pretended the bags were puppets. Marissa Randazzo, a U.S. Secret Service psychologist, said there were different possibilities as to what was going on at that time. "One is that he is in the middle of a psychotic episode which is quite possible. ...The other….. and we've seen some of this behavior in the past couple months -- might suggest mania. Meaning hyperactivity, hyper energy………. not sleeping for days." Her third possibility is that Holmes is faking it. All of these are valid explanations but severe mania can cause psychosis much like schizophrenia, so in either of these cases insanity is very possible. We will need more information from the trial to make any informed decisions.
 
Prosecutors are seeking the death penalty, saying Holmes acted with prediction and consideration as he plotted and executed his attack. Opening statements are expected to begin in early June. Holmes' parents, Robert and Arlene, denounce the trial, insisting their son is "not a monster", but rather suffers from severe mental illness and should be institutionalized, not incarcerated. District Attorney George Brauchler, however, has consulted with survivors and family members and is adamant that "justice is death."
 
This case has rekindled the debate regarding the death penalty, gun control and executing the mentally ill. Mental evaluations are being questioned, bringing court delays and clashing attorneys. There seems to be a growing sense of decency in America when it comes to how the courts treat those with severe mentally illness The question for society as a whole is: If Holmes was indeed psychotic, yet not enough to qualify for NGRI, would anything be gained by putting this schizophrenic defendant to death?
 

About the Author

Dr. Dale Archer

Dale Archer, M.D., is a clinical psychiatrist and the author of Better Than Normal: How What Makes You Different Can Make You Exceptional.

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