Insanity: Murder, Madness, and the Law

Professor Charles Patrick Ewing, an attorney and forensic psychologist, wrote Insanity: Murder, Madness, and the Law to examine one of the more controversial topics in forensic mental health. He describes how the insanity defense was proffered in regionally and nationally publicized homicide cases that took place between 1963 and 2001. He states that he wrote the book to dispel myths about the insanity defense. The cases, due to their controversial nature, had extensive public records available for review. Each case discussion contains the background of the homicide perpetrator, circumstances of the offense, insanity defense criteria used during the trial and, most instructively, excerpts from expert testimony at each trial that allow readers to appreciate how expertise can be used and, in some cases, misused.

The case histories are those of Jacob Rubenstein (Jack Ruby) who killed Lee Harvey Oswald, the assassin of President John Kennedy; Robert Torsney, a New York City police officer who killed an unarmed teenager; David Berkowitz, better known as Son of Sam, who killed six people in New York City; John Wayne Gacy who killed 30 or more young men in Chicago; Arthur Shawcross, known as the Genessee River Killer, who raped and strangled 11 women in upstate New York; Scott Panetti who killed his in-laws in Texas; Eric Smith, a 13-year-old who fatally beat and sodomized a 4-year-old boy in New York; Andrew Goldstein, who pushed an innocent bystander in front of an oncoming New York City subway train; Eric Michael Clark, who shot and killed an Arizona police officer; and Andrea Yates, who drowned her five children in Texas.

The author uses the book's preface and introduction to summarize the history of the insanity defense, to describe controversies about its use, and to review how insanity defense criteria have changed over the past century and a half. He reports that, despite public perception that the insanity defense is frequently proffered by criminal defendants, national surveys indicate that it is used in less than one percent of criminal cases and is successful in only 25 percent of those. My impression is that other surveys have reported that the rate at which forensic mental health evaluators opine that examinees meet insanity defense criteria is about 10 percent. For example, in 2009, the Ohio Department of Mental Health reported that of 1,326 cases in which an expert opinion was given about the insanity defense, 130 cases, or 9.8 percent fulfilled the legal criteria (Baker RN, Ohio Department of Mental Health, personal communication, March 30, 2010). It was surprising, therefore, to learn that Ewing reports an even lower rate in his own practice. He states on page xv of the Preface, “Out of the many hundreds of defendants I have examined for this purpose, I can count on 2 hands, give or take, the number I found actually met the legal standard for insanity.” He does not explain the discrepancy between his results and the survey data he reports.

Insanity, contends Ewing, is used as a defense against various charges and, at times, the defense is uncontested, especially when a defendant is accused of committing a nonviolent offense. Although the media publicize homicide cases in which the insanity defense is proffered to mitigate the offense, homicide, explains the author, is prevalent in about one-third of insanity defense cases. In the 10 cases presented, only Torsney and Yates were adjudicated insane. David Berkowitz rejected his attorneys' intent to raise the insanity defense. He and the seven other defendants were found guilty and sentenced to prison. Ewing correctly states that defendants found not guilty by reason of insanity frequently spend as much or more time confined in forensic mental health units or under strict court supervision than do those persons who have been found guilty of the same offense.

The case studies are of exceptionally heinous offenses that resulted in a battle of expert witnesses at trial. The author notes that in many of these cases, aggressive defense attorneys used insanity as a defense of last resort and in some cases, zealous prosecutors attempted to block an insanity verdict, despite strong evidence, by retaining an expert to refute defense counsel's position. Some of the expert testimony samples in this book are painful to read, especially when prominent experts attempt to support awkward opinions. These cases are negatively viewed by the public and reinforce myths that expert witnesses are so-called hired guns who will support or refute the insanity defense based on other than scientific reasoning.

In his epilogue, Ewing cogently categorizes some of the lessons to be learned from these cases. He reminds the reader how challenging it is for juries to wade through technical and sometimes unintelligible testimony before it can render a verdict. He also offers his opinions about which cases resulted in verdicts that seem to fit or not fit the evidence presented.

The highlight of this interesting, extensively referenced and readable book remains the fascinating cases that Ewing dissects in an illuminating fashion.

• American Academy of Psychiatry and the Law