by Burl Barer
The McNaughton rule created a presumption of sanity, unless the defense proved at the time of committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.
The McNaughton rule became the standard for insanity in the United States and the United Kingdom, and is still the standard for insanity in almost half of the states, despite obvious flaws. “They didn’t know much about any illness back then,” added Jeff Reynolds. “They knew nothing about bacteria, and it never even occurred to them to wash their hands before performing an operation. Medicine has progressed since that time. And we now understand that one’s suffering from mental illness, and even profound mental illness, such as psychosis, often leaves one unable to control her acts, even though she understands that they are wrong. ”
Realization of this fact led to what is known as the Durham rule, or “irresistible impulse.” Monte Durham, age twenty-three, was in and out of prisons and mental institutions since he was a teenager. He was convicted for housebreaking in 1953, and his attorney appealed. Although the district court judge had ruled that Durham’s attorneys had failed to prove he didn’t know the difference between right and wrong, the federal appellate judge chose to use the case to reform the McNaughton rule.
Citing leading psychiatrists and jurists of the day, the appellate judge stated that the McNaughton rule was based on “an entirely obsolete and misleading conception of the nature of insanity.” He overturned Durham’s conviction and established a new rule. The Durham rule states that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. Alcoholics, compulsive gamblers and drug addicts successfully used the defense to defeat a wide variety of crimes, as it was too broad.
In response to the criticisms of the various tests for the insanity defense, the American Law Institute (ALI) designed a new test for its Model Penal Code in 1962. Under this test a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
The Model Penal Code test is much broader than the McNaughton rule and the Durham rule. The Model Penal Code test asks whether defendants have a substantial incapacity to appreciate the criminality of their conduct or to conform their conduct to the law rather than the absolute knowledge required by McNaughton and the absolute inability to control conduct required by the irresistible impulse test.
The ALI test also requires that the mental disease or defect be a mental diagnosis. In this way it manages to incorporate elements of all three of its predecessors: the knowledge of right and wrong required by McNaughton, the prerequisite of lack of control in the irresistible impulse test, and the diagnosis of mental disease and defect required by Durham.
Such a broad-based rule received wide acceptance, and by 1982, all federal courts and a majority of state courts had adopted the ALI test. While some states have since dropped the ALI test, and it no longer applies at the federal level, eighteen states still use the ALI test in their definitions of insanity. Texas is not one of them.
In 1984, the U.S. Congress passed, and President Ronald Reagan signed, the Comprehensive Crime Control Act (CCCA). The federal insanity defense now requires the defendant to prove, by clear and convincing evidence, that at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. This is generally viewed as a return to the standard of “knowing right from wrong,” or as some term it, “a return to the ignorance of the 1800s.”
There are some states where insanity is never a defense. Idaho, Wyoming and Utah have abolished the insanity plea. In general, people who are found not guilty by reason of insanity usually spend more time in mental hospitals than they would have in prison. People who lose spend more time in prison than they would if they had not pleaded insanity. The average sentences for those defendants are 22 percent longer than those who never claimed the insanity defense. Sixty-seven percent of unsuccessful insanity pleaders went to prison, compared to 11 percent of all felony arrests.
“At the time of her arrest, and after being returned to Austin to face charges,” noted an Austin officer, “Rhonda Glover was incredibly delusional. Her grasp of reality, if it existed at all, was tenuous at best. In her mind she had been attacked by the Antichrist, defended herself and feared Joste’s Devil-worshiping associates more than she feared prosecution under the law.”
In a majority of cases, dangerous or violent behavior exhibited by persons with brain disorders is the result of neglect and inappropriate, or insufficient, treatment of their illness. Therefore, mentally ill offenders are by definition not the worst of the worst offenders.
What is exceptionally problematic is that crimes are primarily committed by criminals, and criminals share certain thought disorders common to sociopaths. Among these are traits of manipulation, dishonesty and lack of empathy. They never recognize the rights of others and see their self-serving behaviors as permissible. They feel entitled to certain things as “their right.”
“Verbal outbursts and physical punishments are normal for them,” commented UK health care professional Donna McCooke. “Based on my experience working with convicted criminals, they don’t really see others as people—they see them as either targets or accomplices—and both of those become victims. They also tend to have no sense of guilt or remorse.
They are unable to empathize with the pain of their victims, having only contempt for others’ feelings of distress and readily taking advantage of them.”
Sociopaths are not concerned about wrecking others’ lives and dreams, are oblivious or indifferent to the devastation they cause, do not accept blame themselves, but blame others, even for acts they obviously committed. Psychopaths, of course, are an even worse and more severe version and comprise a minority of sociopaths.
Most parents of children with sociopathic or psychopathic behavior are aware that something is wrong even before the child starts school, according to Dr. Robert Hare. “They are different from normal children—more difficult, willful, aggressive, and deceitful. [They are] harder to relate to or get close to. The parents are always asking themselves, ‘What next?'”
Dr. Hare, who conducts training seminars for the FBI, pinpointed certain school-age traits as prime indicators of behavior indicative of sociopathic or psychopathic conditions—some of which are also manifested by correlated mental conditions.
“As I mentioned in my book Without Conscience, these hallmarks include repetitive, casual and seemingly thoughtless lying, apparent indifference to—or inability to understand—the feelings, expectations or pain of others, defiance of parents, teachers and rules, continually [being] in trouble and unresponsive to reprimands and threats of punishment, among others.”
All the punishment or imprisonment, electric chairs and gas chambers, put together won’t bring Jimmy Joste back for a joyous reunion with family, friends and his beloved son. If determined competent enough to aid in her own defense, Rhonda Glover would stand trial in the 167th Judicial District of Travis County, Texas, for the murder of Jimmy Joste, and could possibly face the death penalty.
12
No matter what the criminal charge against you, you don’t have to prove your innocence. You are presumed innocent. The burden of proof is on the prosecution to prove guilt beyond a reasonable doubt. There is no burden of proof on the defendant. We begin with the assumption that the defendant is not guilty. That is what the American system of justice is all about.
“There is a gender bias when it comes to capital punishment, probably stronger than a race bias,” said Victor Streib, a law professor at Ohio Northern University who tracks dea
th penalty cases involving female offenders.
Women account for about one in eight murder arrests nationally, but only about one in seventy-two people on death row. Of more than seven hundred people executed in the United States since 1976, only seven have been women. Even advocates of capital punishment sometimes balk at the notion of executing women.
Considering Glover’s history of mental-health issues in the context of brain-based and/or hormonal-based conditions relative to criminal prosecution, the fact that if deemed competent to stand trial, she could possibly be sentenced to death, life or sixty years in prison is rather remarkable.
Christine English, for example, confessed to killing her boyfriend by deliberately ramming him into a utility pole with her car. She was freed, however, because she had PMS—apparently a valid excuse. Sandie Smith, a woman who murdered a coworker, was put on probation—with one condition: she must report monthly for injections of progesterone to control symptoms of PMS.
Sheryl Lynn Massip placed her six-week-old son under a car, ran over him repeatedly, then did it again to make sure he was dead. She claimed postpartum depression, and was given outpatient medical help.
“It’s like there’s something more valuable about women’s lives,” Streib said. “Women are also treated differently when they’re victims. You always hear about the women and children killed in fatal crimes.”
John Junker, a University of Washington criminal law professor, doubted that prosecutors would hesitate to charge women with aggravated murder, when warranted. “But they might be reluctant to ask for the death penalty, either because of their own attitudes about women or because of their assessment of what community attitudes might be,” he said.
Other death penalty experts insisted a gender bias did not exist, claiming the discrepancy is more due to the kinds of murders women tend to commit. “They rarely murder in the course of violent crimes against strangers,” said Elizabeth Rapaport, a University of New Mexico law professor, and one of the nation’s foremost experts on women and the death penalty. “I am not going to argue that there never has been a break cut for somebody because she’s a woman, but the huge explanation is eligibility. Women very rarely commit the kinds of murders that statutes treat as aggravated.”
Juries have traditionally been less likely to sentence women to death because of juries’ and judges’ preconceived ideas of women. In some of the older cases, noted Victor Streib, judges from the bench would say, “If you had committed this crime as a man, I would have sentenced you to death. But women are the source of all life—so how can I take your life?”
Lesbians don’t get the same breaks as straight women, research has shown. The less traditional the woman, the less special consideration she received for her femininity. In some countries, Streib said, it is illegal to execute women. Russia is one of them.
As of 2009, Texas was still executing people, but the oft-told joke that Texas has a death penalty express lane didn’t match reality. “It took a Dallas jury only fifteen minutes to convict Ronald Chambers of murder in 1976 after he robbed and shot two college students,” stated Texas journalist and author Ron Franscell. “He was sentenced to die, but more than thirty-one years and three trials later, Chambers is Texas’s longest-serving death row prisoner, and he’s been there three times longer than the U.S. average of ten-ish years between sentencing and execution. In Texas, fifteen of the three hundred ninety-one condemned inmates have been on death row more than twenty-five years.
“Yes, Texas has the death penalty,” commented Franscell, “but it also staunchly maintains the rights of defendants such as Rhonda Glover. Texans are patriots, and the Bill of Rights of the U.S. Constitution, and the Texas Constitution, guaranteed Glover certain important rights during the criminal process.”
These rights are not “legal technicalities,” as some might suggest. They are a fundamental and vital part of a democratic and truly free society, and they have existed in some form for hundreds of years. They were developed over a substantial period of history as a response to tyrannical rule and unfair court systems. Such systems were used to jail or execute those who dared oppose the government or the state-sponsored religion.
The legal concepts and basic rights about which we are speaking came to America with the early colonists in the seventeenth and eighteenth centuries. Bold, freedom-loving heroes of the American Revolution, when forming a new government, insisted that these rights be included as a part of the basic governing rules of the United States. Essentially, the same rights were also adopted as an important part of the Texas Constitution after Texas gained independence and later became a state.
These rights include the rights to an attorney, the right against self-incrimination, the right to the confrontation of witnesses, the right to a public trial by an impartial jury, the right to a presumption of innocence and the right to a grand jury indictment in felony cases.
“You also have the right to not be prosecuted if you are mentally incompetent,” remarked investigator Jeff Reynolds. “You can’t prosecute someone who can’t aid in their own defense or understand what’s going on.”
After three months of being locked up in the Travis County Jail, and not receiving any medications, Rhonda Glover was finally scheduled for mental evaluation in late October 2004.
Dr. Mary Anderson, a frequent court-appointed psychiatrist for purposes of competency evaluation, was appointed by the court to examine Rhonda Glover in October, and gave her report on November 2, 2004.
“For a competency hearing,” explained Anderson, “I gather as much information as I can from as many sources as possible. First of all, I find out what they are charged with, and then pull together what information is available, such as their medical and psychiatric records, previous diagnoses, and I check out their chart from the jail. Then I personally interview the person, perform a psychiatric interview and perform what we call a mental status examination. [This] has to do with how a person holds conversations, and how they answer certain questions, such as do they know what the date is, the year, their name, where they are, and that sort of thing.
“I evaluated Ms. Glover October 19, 2004,” Anderson testified. “It was determined that she was not on any medications, hence her condition was not the result of any inappropriate medications that could cause her symptoms. The problem I encountered in interviewing Ms. Glover,” explained Anderson, “wasn’t that she couldn’t respond to the questions, or that she didn’t make any sense at all, but rather that I couldn’t get her to focus on the topic. Her thought process was fragmented and she would go off on tangents.
“Ms. Glover has a history of being diagnosed with bipolar disorder and psychotic disorder, NOS,” Anderson explained. (NOS is the medical acronym for “not otherwise specified.”) “I reviewed various records from a hospitalization she had at Rusk State Hospital in 2003 for a couple of days. Rhonda Glover claimed that Rusk said there was nothing wrong with her, but records from Rusk Hospital indicate otherwise.
“Rusk reports that she experienced paranoid delusions,” said Anderson. “She believed that others were out to harm her, and that her significant other and the president of the United States were out to poison her.”
Anderson also commented on Glover’s previous diagnosis of bipolar disorder. “Bipolar disorder is a mood disorder and there can be psychotic symptoms that go along with that disorder, be it mania or depression. Bipolar disorder is a treatable condition, however. The records from Rusk indicate that she was there only a short period of time, and there was not enough time to completely discover the exact specific nature of her psychotic disorder, which is why it is termed Psychotic Disorder, NOS….
“Glover also has a history of substance abuse,” commented Anderson. “Glover acknowledged a past history of alcoholism. She is clearly intelligent, and when structured, she is able to give factual responses, but if you give her more time, and a little more room, she promptly regresses. Her thinking becomes more disorganized and she keeps saying th
e same things over and over. In fact, once she regresses, it becomes increasingly difficult to get her to focus on relevant issues—for example, her defense in this case.”
The court asked Anderson to explain. “She went off on a lot of tangents that were difficult to understand,” said Anderson. “She talked about having to call the police, and that the police thought she was crazy. Her significant other was involved in cannibalism and she was convinced that he was involved in murder. It was all tangential and disconnected. She was so obsessive on disconnected items, such as her neighbor finding a shoe in the snow, and how this somehow proved that her significant other was involved in cannibalism and murder, that it was impossible for her to address the important issues of how her defense should be addressed.”
Anderson showed the jury excerpts from Glover’s videotaped conversation with Austin detectives in which her delusional thoughts and fragmented thinking were blatantly obvious.
“Do you need to narrate this video,” asked Assistant District Attorney Bryan Case, “or shall we just play it as is?”
“Well, I’ve watched this tape several times, and this is just a short excerpt that will give a good example of the type of disjointed thinking that I’m talking about,” she said, and the jury watched the videotape.
When it was over, Case said, “Dr. Anderson, please tell us what we just saw.”
What they saw was Glover, in response to questions from Austin detectives, begin babbling about Cave X, the Bible, children in caves, her significant other and George W. Bush. “At some point you just go, ‘Wait a minute. What does this have to do with what they asked her?’ So you can see where it becomes hard to follow what the point is. How do these things connect? Well, if you try hard enough, you can perhaps see how some of the remarks could be related, and even if there are facts involved, it all has a delusional quality. What does the house construction have to do with what she is being asked? How is it that if we read the book of Isaiah in the Bible, we will know about her house in Austin, Texas? This is an example of a thought disorder, and that is something that is hard to explain, but when you see it, that is kind of what it looks like.”