In courtrooms, reason prevails over passion. In courtrooms, fair, principled prosecutors and sane, capable defense attorneys present their cases before wise judges and impartial juries. Right? Wrong. Maybe that’s how it’s supposed to be, but that’s not the way it is, not by a long shot. When judges, juries, lawyers, and, yes, psychiatrists set foot in a courtroom, something peculiar happens. They often park their common sense at the door.
Years ago, further back than most readers will be able to recall, we did not watch T.V.; we listened to the radio. My favorite program was “The Shadow.” The Shadow, who was “in reality Lamont Cranston, wealthy young man about town,” had the ability “to cloud men’s minds so that they cannot see him.” The concept that someone or something was powerful enough to addle people’s minds until they couldn’t see what was right under their noses intrigued me. How did he do it? Could he do it to me?
Well, courtrooms do that to people every day of the week. It’s true. Individuals of above average intelligence who ordinarily think logically and whose judgment is usually impeccable lose these powers, or at least temporarily mislay them, upon entering court. I am speaking now about what often happens to people in murder trials. Civil actions may be another story entirely. I don’t know. I am thinking especially of capital murder cases.
Capital murder trials are unlike any other criminal proceedings. They deal with life and death. With so much at stake, one would assume that only the sanest, wisest, and most experienced legal minds would be allowed to play the game. By “play” I mean judge, prosecute, or defend. Wrong again. For example, I have known some of the craziest, most immature, and least experienced individuals to be permitted to represent accused murderers in capital trials. I am not thinking about lawyers, although there are well-documented cases in which capital defendants were represented by drunk, felonious, or totally inexperienced court-appointed attorneys. I am speaking rather of capital defendants who have been allowed to represent themselves, to proceed pro se. They don’t win, at least not in the cases on which I have worked. I should modify that statement. Defendants don’t win if they wish to plead innocent. Guilty pleas are much more likely to prevail.
Capital murder trials are hard enough for seasoned jurists to handle. Everyone knows that. So you have to ask yourself, what on earth would possess a defendant in a capital murder case to represent himself? Most of the capital defendants whom I have examined who have pleaded innocent have been high as a kite, not on drugs but on their own juices or neurotransmitters, when they decided to represent themselves. Even after a death sentence has been passed, they have seemed oblivious to their plight. I think again of Ted Bundy and his cheerful words regarding execution. “Don’t worry, Doctor Lewis. It’s not gonna happen!” Those who have represented themselves and pleaded guilty have, by and large, either been depressed and eager to die or psychotic and certain they wouldn’t.
Judges should know this. They should at least ask themselves why anyone in his right mind would represent himself in such a situation. But here’s where that peculiar power of the courtroom to cloud men’s minds kicks in. Judges who, every day of the week, outside the court in their roles as fathers or husbands or whatever, easily distinguish children from grownups and crazy people from sane people, in court lose this ability to make such simple distinctions. A particularly lethal strain of this disturbance of reason filtered into the Missouri courtroom in which Heath Wilkins was tried. Heath Wilkins was a sixteen-year-old boy who stabbed to death a salesclerk in the course of an ill-conceived conveniencestore robbery. He hadn’t planned it that way—it happened. Heath, like his father and brother, had spent a good portion of his life in mental institutions. At one time he was thought to be schizophrenic. No matter. When Heath Wilkins, at sixteen, asked to dismiss his attorney, represent himself, plead guilty, and be sentenced to death, all his wishes were granted. How come?
I have to assume that in everyday life the judge who heard this case was of sound mind. I figure that under ordinary circumstances that judge would have been able to recognize the differences between Heath’s maturity, mental stability, and legal expertise and the maturity, mental stability, and legal expertise required of a defense attorney in the capital murder trial of a juvenile. The point is, he didn’t. The mysterious courtroom atmosphere that clouds men’s minds took over. From behind the bench, Heath’s incoherent muttering (and I saw the transcript of his rambling statements) sounded O.K. to the judge. He found Heath both competent and guilty and forthwith sentenced him to death.
Of course a few years later, when Heath matured, his depression lifted, and his head cleared (thanks, perhaps, to appropriate medication), he no longer wished to plead guilty and be executed. Sorry, too late. Now he was in a pickle. After several appeals and a hearing in which Jonathan and I testified before the very same judge who had sentenced Heath to death, the verdict and sentence were upheld. Today, about a decade since our testimony, an appeals court has finally overturned the verdict and sentence. But Heath is still not out of the woods. A zealous assistant D.A.—someone who obviously has breathed in a little too much of that Missouri courtroom air—has appealed to a yet higher court to reinstate the original verdict and death sentence. He must figure Heath had his chance when he was a kid and blew it. This ought to teach him a lesson.
Lawyers are not the only ones addled by courtroom ethers. Psychiatrists are not immune. Well-trained physicians—doctors who, in their everyday practices, recognize and treat properly the illogical, delusional, downright peculiar thinking of their everyday psychotic patients—also seem to suffer a sort of temporary blindness when asked by prosecutors to evaluate violent people. The very same psychotic signs and symptoms that they recognize as requiring hospitalization or at least hefty doses of Thorazine, lithium, or the like in their nonviolent patients seem to elude many psychiatrists when it comes to evaluating crazy, homicidal people. I don’t think the courtroom is completely to blame. The grotesqueness of an act or the number of homicides committed can also cloud clinical judgment.
One cannot, of course, completely ignore the income factor. A psychiatrist who depends on court referrals for a major hunk of his income will find himself out of a job if his perceptions of defendants’ mental health differ too much or too often from those of the prosecutor. The same I suppose might be said about the incomes of doctors like Jonathan and me, who frequently work with the defense. But there are important differences. First, we work with many different legal teams and therefore are not beholden to any single one of them. Second, we can be fired. If, as sometimes happens, we find nothing of significance psychiatrically or neurologically, we can be dropped. In most states, our findings, or the lack thereof, are treated as confidential. Defendants cannot be forced to incriminate themselves. Court-appointed psychiatrists, on the other hand, are expected, if not required, to make public their conclusions. Therefore, they are under greater pressure than we are to produce clinical results acceptable to their employer. In short, Jonathan and I are freer to let the chips fall where they may. Of course, no one ever hears about the cases from which we are dropped or those from which we withdraw. Once, when I flew to Florida to testify in the case of a serial killer, I discovered upon arrival, that the defense had hidden vital information from me regarding the defendant’s state of mind. I refused to take the stand. I turned around, and flew home. Needless to say, those defense attorneys never again requested my services.
More recently, I worked on the case of another notorious serial murderer. When the high-profile defendant refused to undergo procedures I recommended, I withdrew from the case. Of note, his own attorney withdrew a few months later. I have learned the hard way the wisdom of pulling out of a case if the defendant or his lawyers decline the kind of evaluation I request. Never was this lesson more painful than in the case of Arthur Shawcross.
Arthur Shawcross was preparing to go to trial in Rochester, New York, for the murder of ten women. Before I even laid eyes on the ill-proportioned, paunchy defendant, his lawyers had obtained a chromosome analysis of his cells and an MRI of his brain. They already knew that instead of the usual XY constellation of chromosomes, he had an extra Y chromosome. More important, the MRI had shown that, nestled at the very tip of his right temporal lobe, was a small, fluid-filled cyst. The brain is a very sensitive organ. The tiniest scar or tumor or cyst can, under certain circumstances, trigger abnormal electrical activity and hence seizures. Here’s another scary fact: Abnormal electrical foci at the anterior pole of the temporal lobe have been associated with bizarre, animalistic behaviors. Mr. Shawcross had cut out the vagina of one of his victims and eaten it. A highly regarded forensic psychiatrist, hired by the prosecution, ventured the opinion that he did this to remove traces of semen and thereby hide DNA evidence. I figure there must be an easier way to do that. But I am getting ahead of myself.
Arthur Shawcross had the classic signs and symptoms of temporal lobe seizures—the auras, the stereotyped behaviors for which memory was impaired, the subsequent deep sleep. For example, just prior to a homicidal episode, he would begin to sweat and his world would explode in bright, white light. Moments thereafter his hands would close around the necks of his victims. Then, amazingly, he would fall into a deep, postseizure sleep. When he awakened, the memory of his murderous behavior would be hazy and distorted.
Mr. Shawcross never denied any of the murders to me. He admitted everything. The trouble was, whenever I tried to get a complete account of what he had done, Mr. Shawcross became befuddled. He would repeatedly confuse one murder with another. Finally, in desperation, I asked, “Mr. Shawcross, do you remember what happened?”
“No. Not really.”
“Then why did you confess to the police?”
He looked at me as though I were crazy. “Because I was there!”
Several of the murders took place in his car. Following these homicides and after falling into a deep sleep, he would awaken and find a corpse on the seat beside him.
“What would you think when you found the body?” I asked.
He thought a moment or two, then responded, “Uh-oh, I must have done it again.” When he realized what he had done, he would scurry to find a place to hide the body. Sometimes, later on, he would return to the body and mutilate it.
After my very first visit to see Mr. Shawcross, it was clear to me that a sophisticated neurologic examination was needed, and I asked the Shawcross attorneys to give Jonathan a call. They refused. They said they had already chosen an eminent Harvard neurosurgeon who had seen the MRI and had recommended that a computerized EEG be performed. After the eminent neurosurgeon received the results, he would examine Mr. Shawcross. For years I had admired the neurosurgeon’s work on violence. He and a colleague of his had been among the first to document the association of seizures in the limbic system and violence. If I could not work with Jonathan, then he was probably the next best choice.
Weeks passed, months passed, and still neither the computerized EEG nor the neurologic examination by the eminent neurosurgeon materialized. Meanwhile the lawyers were pressing me to write a report. It was September and the trial was about to begin. Still the test and examination I had requested had not been done. Time was of the essence. According to the lawyers, if I were to be allowed to testify, I had best produce a psychiatric report immediately. What to do?
Over the weeks and months preceding his trial, I realized that Arthur Shawcross suffered from more than just a seizure disorder. After all, most people in the course of a temporal lobe seizure do no harm. They may pace back and forth, button and unbutton their shirts, but they certainly don’t strangle anyone. Not usually. Violence during a seizure is rare. In the course of working with Mr. Shawcross, it became clear that, as a result of early, intolerable abuse, Arthur Shawcross also experienced dissociative states. At these times he would hear his mother in his head, berating him and the women he was seeing. No one was good enough for Arty. They should die. At times he seemed to become his own mother, speaking in a high, feminine, angry voice. “He’s got to be punished!” “she” squealed, referring to her son. Once, during a session in which hypnosis was used, Mr. Shawcross relived being sodomized with a broom handle, falling to the floor, and being unable to move. In his ordinary, conscious state he had no memory of this event. Had he really been so traumatized as to induce paralysis? Material produced under hypnosis is always suspect, especially in a court of law.
Consistent with the material produced under hypnosis, medical records from childhood revealed that, at age ten, Arthur Shawcross had been hospitalized at Mercy Hospital for a paralysis from the waist down. The hospital, for want of a better explanation, discharged him with the diagnosis encephalomyelitis. I had interned on the pediatric wards of Yale–New Haven, and I knew that the young Arthur Shawcross had none of the signs or symptoms of the disease: no headache, no fever, no stiff neck. A lumbar puncture had revealed clear, perfectly normal cerebrospinal fluid with no signs of infection. What is more, the ten-year-old recovered swiftly from the paralysis and was sent home. As I pored over the almost illegible photocopy of the microfilmed record, I discovered a doctor’s note to the effect that Arthur Shawcross had been hospitalized at age nine for the very same kind of inexplicable symptoms. These episodes were definitely not the result of encephalitis. All evidence pointed to hysterical paralysis, a psychiatric disorder induced by trauma and consistent with his later dissociative states.
I had no question that Mr. Shawcross had been severely abused and suffered from dissociative episodes. Nor did the experts on dissociation with whom I consulted on the case have any doubts. Old school records alluded to suspected parental maltreatment. They described his mother as “punishing and rejecting.” In grade school, the young Arthur cowered under radiators while the other children sang songs. When he was seven years old, he frequently ran away from home. Psychological tests performed when he was in grade school revealed a seriously disturbed child, lost in a “fantasy in which he perceived himself a new person.” I also knew that a psychiatric defense, especially one based on the diagnosis of a dissociative disorder, would never fly. If for years I had doubted the very existence of the diagnosis, there was no reason to think a judge or jury would buy it. A neurologic defense, however, based not only on clinical findings but also on visible MRI evidence of brain damage, was likely to be far more convincing. Letters and phone calls flew back and forth, as I begged the Shawcross attorneys to obtain the computerized EEG and the specialized neurologic evaluation. If their neurosurgeon would not do it, then call Jonathan. Just get it done!
Here is where I made my first big mistake. I buckled and agreed to write my report in the absence of all of the data I had requested. Therefore, all I could do was describe the dissociative phenomena I saw and hint at the existence of a possible seizure disorder, while I awaited proof of it. To bolster my suspicions, I pored over the old prison records and found references there to seven seizurelike episodes that occurred long before the ten murders. Documented in the prison log were blackouts, fainting spells, episodes of falling to the floor. Once he was found in his cell unconscious. I described these in my psychiatric report. Mr. Shawcross’s mother and aunt also reported that Arthur suffered similar episodes of blacking out when he was a child. Even his wives (and he had had several) reported times when he “spaced out” or wandered off and did not know where he had been. Nonetheless, without a sophisticated neurologic evaluation by someone like Jonathan and results of a computerized EEG, the findings were only suggestive of seizures. The lawyers assured me that by the time I came to Rochester to testify, the examinations I requested would be completed.
I arrived in Rochester two days before I was to testify, only to discover that neither the neurologic examination by the eminent neurosurgeon nor the computerized EEG he had recommended had been obtained. Later I was told that moneys supposedly reserved to pay the neurosurgeon had been squandered on the services of a writer-cum-criminologist, Joel Norris. He, with the assistance of defense counsel, conducted videotaped interviews with Mr. Shawcross. Worse, prior to trial, Norris’s business partner tried to sell the videos to a local public broadcasting station. In fact, unbeknownst to me, as the trial was set to begin, the local public radio station devoted an entire program to airing these facts. They later sent me the audiotape of their program.
You would think that the exposure of such skulduggery would have given the presiding judge pause. Why, he might ask himself, would a defense attorney allow himself to get into a mess like this? How might it affect the outcome of the trial? I sure would have asked myself that if I were the judge. Well, His Honor didn’t ask himself such questions. He was not going to permit these kinds of shenanigans to slow the wheels of justice. The trial must go on. It did.
The eminent neurosurgeon would eventually find himself working with the prosecution. Without ever examining Mr. Shawcross or getting the computerized EEG that he himself had requested, he produced for the prosecutor a signed statement saying that the MRI “showed an absence of the tip of his [Shawcross’s] right temporal lobe” but that “there are no pressure effects from this.” I wonder what he meant by that. It did not mean that there were no electrophysiologic effects. It did not mean there were no behavioral effects. I know that. He knew that. Why make such a wishy-washy statement? Whom was he trying to please?
One evening about two and a half weeks into my testimony, against the express instructions of the defense attorneys, I picked up the phone and called the eminent neurosurgeon at his home. I got right to the point.
“How could you work for the prosecution when you had been retained by the defense?” I asked.
“I was never retained by the defense,” came the self-assured reply.
“How is that possible? They said that you read the MRI. They said you recommended a computerized EEG.”
“That’s true,” he agreed, then continued. “Do you know a Joel Norris?”
“The writer?”
“Yes. Well he’s always looking for free advice. He sent me the MRI and we talked on the phone.”
“You saw the lesion in the temporal lobe?”
“Of course. I told him to get a computerized EEG. I even gave him the name of the people to do it. But I was never retained by the defense.”
To my mind this was a technicality, and I said so. Didn’t the ethics of the situation preclude working for the prosecution under these circumstances? The question had crossed the neurosurgeon’s mind. When the prosecutor called upon him for assistance, he consulted a lawyer, a close relative, to check out the legality if not the ethics and propriety of furnishing information to the prosecutor after having consulted with the defense. The issue was resolved to his satisfaction when the judge in the case agreed to sign a court order requiring him to provide the prosecutor with a statement.
“But how could you say the cyst in his brain didn’t matter? You never saw the patient. You never got the computerized EEG,” I demanded.
“I never said that it didn’t matter. I said that the cyst might be significant in terms of the murders themselves, but further tests were indicated. I even told the investigator for the district attorney that whether or not the cyst caused the homicidal behaviors, it would intensify them.” But these were verbal communications. Why were they not in his report? I held the phone between my shoulder and ear and struggled to take down his words. This conversation I did not want to forget.
From the day I arrived in Rochester and discovered that the neurologic workup had not been done, I tried to speak with the judge in chambers. Surely if he knew the importance of the neurologic tests he would delay the trial until they could be completed. The judge refused to speak with me. Now, having talked with the neurosurgeon, armed with this new information, it was vital that I talk with the judge and inform him of the truth.
The next morning I again asked to speak with the judge in chambers, in the presence of the defense and prosecution, of course. This time the Shawcross lawyers assured me it had been arranged. Now the prosecutor objected. With hindsight, I can understand why, although at the time I was dumbfounded. Only then, after the judge refused to talk privately in chambers, did I take a deep breath and say in open court, “Your Honor, I have been lied to.”
If I were a judge and an expert witness made such a declaration, I would be pretty curious. Certainly I would find a few minutes, maybe cut short my lunch break, to hear what the witness had to say. After all, trials are based on a search for truth, aren’t they? The strange thing is, the judge wasn’t the least bit curious. Was it the courtroom air that had deadened his curiosity? No, it was not the air. It was as though he knew in advance whatever I had to tell him. The judge admonished me to get on with my testimony. If I really had something I thought he needed to know I should write him a letter when I got back to New Haven.
As I look back, it is clear what I should have done. I should have done what I did in Florida. When I arrived in Rochester and discovered that the neurologic evaluation I had been promised had not been done, I should have turned around and gone home. I should have refused to testify. I didn’t. I didn’t have the courage. That was my second big mistake, and I paid dearly for it.
To the best of my knowledge, I was the only doctor to testify for the defense. One exchange between me and the prosecutor that occurred during cross-examination stands out in my mind. It went something like this: “Doctor Lewis, could not the interviews with Joel Norris have affected what Mr. Shawcross told you?” At first I said no. When I learned of them, I figured they had occurred after I completed my interviews. They had not. The prosecutor smiled contemptuously as he informed me that five interviews with Norris had taken place during the months I was conducting my evaluation. Under such circumstances I had to admit there was certainly a possibility they had influenced what Mr. Shawcross told me. I did not believe they had, but I never was shown the Norris tapes. How could I be sure?
Not only did the jury not believe me, they hated me. Then again, so did the rest of Rochester. My testimony extended over a three-week period as the prosecutor relished raking me over the coals. During this period my double-locked office at Bellevue was broken into. There’s really nothing special about such a break-in; it happens all the time. Computers and videotaping equipment are constantly being ripped off. That’s why I had special locks put on my doors. The creepy thing was that in this break-in nothing was taken. My home phone and office phone also started acting up, as though the lines were crossed or someone were listening in. When I mentioned this to a friend of mine whose work involved security in the corporate world, he produced a piece of equipment with tiny red and green lights and told me how to attach it to my home phone. If the green light went on it meant the line was being tapped. It did. I was scared. I wrote to my friend and colleague, Dick Burr, informing him that if anything happened to me he should know that I had not harmed myself. Night after night during the course of my testimony I would return to my hotel, almost punch-drunk from the new information hurled at me in court, information the defense should have shared with me (e.g., the Norris interviews). I would then switch on the news and watch the man (or woman) in the street belittle me and my testimony. Jingles were written about me and played on talk radio. It was a nightmare.
The prosecution had hired one of the most highly regarded forensic psychiatrists in the nation, a man who had been a consultant to the FBI and CIA. He was a handsome, confident man who never appeared hassled. Compared to him I looked clumsy and disorganized. I looked as though the courtroom vapors had gotten to me. In truth I was angry. I had been tricked. I have learned since then that one should never take the stand angry. It wreaks havoc with one’s memory and, of course, one’s demeanor.
The highly regarded forensic psychiatrist dismissed all of Mr. Shawcross’s dissociative symptoms—his amnesias, his hallucinations, his switches of personality state—as malingering. He interpreted Mr. Shawcross’s confusion and discrepant accounts as simply lying. In fact, he even dismissed all of his childhood symptoms of psychopathology as insignificant. He concluded: “Mr. Shawcross has never suffered from any mental disease or defect as these terms are ordinarily understood, though he has suffered from less severe mental disorders.” What were these “less severe mental disorders”? By now the reader can guess. His report read: “Among criminals, the most common mental disorder is that known as antisocial personality disorder, and that is my primary diagnosis for Mr. Shawcross.”
What about the neurologic findings? By the time I took the stand, it was pretty clear that Mr. Shawcross’s attorneys were not going to produce a neurologist to present the neurologic findings. They had, however, allowed me to send the MRI to Washington, D.C., for Jonathan to review. I shall not forget our telephone conversation the afternoon he looked at the films.
“Jonathan, did you see the cyst in the temporal lobe?”
“Of course I did. But, Dorothy, what about the scars in both frontal lobes?” He circled the lesions and sent back the film. There they were, plain as day—two straight little scars, one on each side.
Given the fact no neurologist would be testifying, every chance I got I mentioned the clinical indications of a seizure disorder, and I alluded to the scars and the cyst found on the MRI. If the lawyers would not allow a neurologist to show the abnormalities to the jurors, the jurors would at least hear about them from me. I was repeatedly chastised by the judge for not responding directly to questions with a succinct yes or no. Guilty as charged.
The highly regarded forensic psychiatrist gave short shrift to the MRI findings. He also thought nothing of the blackouts and falling episodes documented in the prison chart. The sweating and bright lights? Malingering. The sleep attacks right next to the corpses? Necrophilia! In his words, “Incidental findings of XYY chromosome complement and a benign cyst below one lobe of the brain. Neither of them is of any significance with respect to Shawcross’s criminality.”
I understand it took the jury less than two hours to find Mr. Shawcross sane and guilty of the murders of ten women. It took me three years to recover from my three weeks on the stand. No one had believed a word I said. Mr. Shawcross was not insane.
The term insanity once had meaning, real meaning. The root of the word is the Latin, sanus, healthy, of sound mind. Insane meant the opposite, sick or of unsound mind. In the real world people still use the word insane the old way, as a synonym for crazy, psychotic, not in touch with reality, out of control.
In court insanity has a different meaning; I should say meanings. The legal meanings of insanity differ from state to state. New York State, where Arthur Shawcross was tried, uses a version of the M’Naughten rule, whereby a person is insane only if he does not appreciate the nature of what he is doing or does not appreciate that it is the wrong thing to do. This concept was established in England in the mid-nineteenth century. It is a definition based exclusively on rational understanding and concepts of morality and ignores all psychiatry knows about the neurophysiological, psychological, and environmental forces that influence our behaviors. It also ignores all psychiatry does not know about how to measure the appreciation of wrongfulness. Of course this legal definition of insanity renders the term useless for distinguishing the sick from the well.
About a century after M’Naughten, a group of legal scholars of the American Law Institute formulated a model penal code, containing a broader but, to my mind, more enlightened standard of insanity than M’Naughten. It suggested that a person was not responsible for a criminal act if, by reason of mental disease or defect, he either lacked substantial capacity to appreciate its wrongfulness (i.e., M’Naughten) or lacked substantial capacity to conform his behavior to the requirements of law. This second clause implicitly acknowledges that emotional states and impaired self-control can contribute to violent acts.
Since then, states have wrestled with a variety of other formulations and standards of insanity, including such oxymoronic concepts as “guilty but insane.” Civilized societies exonerate the insane from guilt. You can’t be insanely guilty or guiltily insane. At least I don’t think so. Other states have conceptualized a condition of “diminished capacity,” a recognition that all or none standards of sanity and insanity don’t do justice to the complexity of human behavior.
The more we understand about the genesis of violence, the harder it is to draw a clear line between guilt and innocence, sanity and insanity. We, as a society of thinking and feeling human beings, struggle within ourselves to cope with competing interests and motivations: the need for protection from dangerous people, sane or insane; the desire for revenge; the knowledge of the psychobiological and environmental influences on violent behavior; and the wish to adapt to evolving standards of decency and morality. Guilt was a lot easier to measure before we recognized that free will, like sanity and insanity, is a constantly fluctuating intellectual and emotional continuum and not a fixed, immutable capacity or state of mind. In response to our struggles to strike balances between what we feel we’d like to do to people who commit grotesque acts of violence no matter what their mental state, and what we think perhaps we ought to do and ought not to do, jurisdictions have swung back and forth, changing from one definition of insanity to another, then back to the first, often in response to a sensational case of the moment.
Given its etymology, the term insanity by rights should belong to the field of psychiatry, not law. Surely health is more the province of doctors than lawyers (malpractice suits to the contrary notwithstanding). Nonetheless, insanity has become a legal term. It feels as though lawyers and lawmakers whisked the term from our grasp, then batted it around and pummeled it until it took on an almost unrecognizable form. Now, those of us psychiatrists who are asked periodically to testify in court regarding a murderer’s mental state are obliged to use the idiosyncratic legal meaning insanity has acquired.
I don’t testify in court that often, maybe three or four times a year. A few years ago, by chance, three murder cases I had been working on over the course of several years all came to trial within about a six-week period, one on the West Coast, one in the deep South, and one on the East Coast. I had to work with three different definitions of insanity. When I woke up each morning I felt as though I were in a movie called If This Is New York It Must Be M’Naughten.
When angered, legislatures, like individuals, act impulsively. They pass laws that fly in the face of common sense. Under such laws, murderers who are obviously stark raving mad are not legally insane. Everyone knows that a serial killer who eats his victim, even a teensy piece of his victim, is crazy. But somehow, by adopting purely moralistic and unmeasurable definitions of insanity and forcing psychiatrists to make use of them, the legal profession forces us to reach some pretty peculiar conclusions. Was Arthur Shawcross crazy when he murdered his victims and consumed their genitalia? Of course. He had to be. Insane? Not necessarily. Not according to some forensic psychiatrists. I wouldn’t be a bit surprised if someday soon a state legislature develops a concept of crazy not insane or psychotic not insane.
My husband, who almost never testifies in court, thinks we psychiatrists should stand on principle, use our own definitions, refuse to be bullied by lawyers. I admire his idealism. But the games are played in their courts by their rules. If we question their terms too strenuously and too often, next time they just might not let us play at all.
And if they kicked people like us out of the game? So what? It would make my life and Jonathan’s a bit safer and a lot less stressful. It would also leave some pretty sick defendants high and dry.
Several months after the trial, an investigative reporter contacted me. He had been looking into the Shawcross trial and had discovered a few things he thought I ought to know. In the course of reviewing the evidence, he had come upon several letters written, unbeknownst to me, by the Shawcross lawyers to the prosecutor and to the judge. One was written months before the trial but long after we knew of the cyst and after I had requested the neurologic workup. I gathered from this letter that the prosecutor had gotten wind of the abnormal neurologic findings on the MRI and wanted to see the report. In response to this request, the Shawcross attorneys informed the prosecutor “that there is nothing contained in those records which provide a basis for a psychiatric defense” and that Dr. Lewis would “not in any way rely on them in forming her opinion.” This, of course, was not true. In a subsequent letter one of the lawyers informed the prosecutor, “it is my understanding at this time that none of these test results are pertinent to Dr. Lewis’ opinion.” This was not true. Finally, a letter sent by the defense to the prosecutor just prior to the trial—a period of time when I was pleading with the defense lawyers to obtain the neurologic examination, if not by their eminent neurosurgeon, then by Jonathan—informed the prosecutor that in my opinion none of the neurologic procedures (i.e., the MRI) “demonstrated any abnormalities or evidence of organic brain damage.” This was a lie. In retrospect it looks as though Mr. Shawcross’s attorneys had never intended to obtain either the computerized EEG or the evaluation by their eminent neurosurgeon.
There was another item the reporter thought would be of interest to me. Mr. Shawcross had been found guilty of the ten murders. He was about to stand trial in another county for an eleventh. In preparation for the upcoming trial, and undoubtedly in response to my testimony regarding the likelihood of a seizure disorder, the lawyers finally obtained the computerized EEG that I and the eminent neurosurgeon had requested. My guess is, they wanted to discredit me once and for all.
The computerized EEG report came back. It read as follows: “Conclusion: EEG/CEEG/Dynamic Brain Mapping is ABNORMAL (sic). It shows paroxysmal irritative patterns bifrontotemporal areas more on the right side.” It continued to spell out the importance of the findings: “Sharp waves/spikes=unusually pointed waves=indicate local cerebral irritation. Paroxysmal activity=are bursts of spikes, slow waves or complex of both—associated with SEIZURES (sic).”
Clearly the scars in Mr. Shawcross’s frontal lobes and the cyst in his temporal lobe affected the functioning of his brain. One rarely gets such unequivocal evidence of temporal and frontal lobe seizures, not to mention documentation of the brain lesions giving rise to them.
“Well, are they finally going to run with the neurologic defense?” I asked the reporter. I knew that the likelihood of Arthur Shawcross’s ever being found not was small. People were too afraid he might get out of a hospital and kill again. I could understand that. Nevertheless, a new trial in which the neurologic findings would finally be aired would at least teach the public about some of the ingredients that sometimes contribute to the creation of a serial killer. They would learn that serial killers are not born, they are made.
The reporter looked at his feet. Reporters rarely do that. I think he was embarrassed to give me the news. “I guess I didn’t tell you. After his lawyer got the results of the computerized EEG, he advised Mr. Shawcross to plead guilty.”
“And?”
“He did.”
Now, six years later, as I reflect on the Shawcross case from what I hope is the safety of my office, I am intrigued. I keep wondering: Why would the Shawcross lawyers want to ignore, no, hide such extraordinary data that could have helped their client’s case? Why did they cooperate so readily with the prosecutor in dismissing such potent neurologic findings? Why, when the prosecutor accused me of springing the neurologic data on him at the last minute, did the defense lawyers not “rehabilitate” me and show in the notes of my first interview my awareness of the temporal lobe cyst and the symptoms of psychomotor seizures? Why did they not produce the letters back and forth discussing the need for a neurologic exam by Jonathan? Why did they let me look so silly? It beats me.
As I think about the Shawcross brain, I think what better way to make a murderer than with an irritable focus in the temporal lobe and the transection of frontal lobe fibers? The person would be left with a limbic system gone haywire, disconnected from the modulating effects of the frontal lobes. If someone wanted to create a killer brain, that’s probably the way to do it.
Years and years ago, in the 1950s, 1960s, and 1970s, the military and the CIA were interested in that sort of thing. They were especially interested in mind control, the potential power of hypnosis, drugs, and psychosurgery to destroy memory and mold behavior. Could these methods, alone or in combination, be used to create a killer? That was their question. Reports based on CIA documents indicate that during that period civilian and military prisoners, as well as ordinary citizens, were used in these mind-brain experiments. When I tried to get hold of Mr. Shawcross’s army records, I was told that most of them, which were from the Vietnam era, were missing, burned in a fire. Unfortunately Mr. Shawcross could remember almost nothing about his army experiences except for the name of Westmoreland. It was as though his memory had been erased. He had some wild recollections of slaughtering women in Vietnam and cooking and eating their parts. No one believed him. The prosecutor, who fought the insanity defense tooth and nail, dismissed these bizarre memories as the ravings of a sane man. Since then I have seen two other serial killers with similar memory impairment for their Vietnam years. One of them has only wild, grotesque recollections—half-dreams that no one believes. Their army records have also been destroyed. In my Shawcross workup, had I stumbled on something the Powers That Be were not too eager to reveal? Is that why I was made to look so incompetent, hung out to dry?
Funny thing. According to CIA records, a man of the same name as the prosecutor’s, an uncommon name, ran a safe house in New York State in the 1960s where the CIA conducted experiments on mind control. It could, of course, be a coincidence, but I can’t help wondering whether the prosecutor and the operator of the safe house are related to each other. Maybe someday another brave investigative reporter will get curious about these cases.