Rabbi Victor Koltun
When it comes to crime, where's the line between insanity and knowing malice?
The topic raises debate — and hackles — whenever it's broached, whether the subject is John Hinckley Jr., Jared Loughner or the murder suspect next door. The vast majority of people with mental illness, even severe mental illness, are not violent or criminal, but those who are charged with crimes challenge the legal system.
Competency has been at issue for three men currently facing murder charges in Orange County. Each has, at some point during his case, been found not competent, and there's a potential for an insanity plea in one or two of the cases.
Thomas Martin, charged with killing his 90-year-old father, Lester Martin, over Thanksgiving 2009 at their Town of Wallkill home, has spent much of the past 21/2 years under psychiatric care. This spring, he was found competent, and his case is moving forward.
Richard Brown, 68, of Middletown, is charged with killing his neighbor, Arthur Twyman; Brown was recently deemed incompetent and was sent to the Mid-Hudson Forensic Psychiatric Center for treatment until psychiatrists can stabilize him.
Victor Koltun, a Brooklyn rabbi charged with orchestrating a murder-for-hire plot that ended with the deaths of former police Officer Frank Piscopo and his nephew Gerald Piscopo, has spent some time at Mid-Hudson as well. He was found competent in May, but challenged the decision. He's slated for a competency hearing in August.
Goshen defense lawyer Joseph Brown is representing both Martin and Richard Brown (no relation). He hasn't yet filed a formal notice of intent to present a psychiatric defense in either case, but "there's loads of time," he said.
The process is demanding
"You have to have a doctor, a psychiatrist, come in and testify that at the time the event took place, the defendant was suffering from mental disease or defect and that he couldn't arrive at a decision (of) right or wrong," Brown said. And unless prosecutors concur, "a jury has to hear all the evidence."
Usually, he said, the defendants spend a significant amount of time awaiting trial in secure mental health facilities.
"It's sad. They're tough cases," he said.
Despite Koltun's competency issues, his lawyer, Paul Brite, said an insanity defense is "not on the horizon."
These cases are tough on crime victims, too, particularly in borderline competency cases such as Koltun's. In March, a psychiatrist opined that while Koltun does have an underlying bipolar disorder diagnosis, he was faking or exaggerating many of his symptoms.
"It's 18 months now, and all he keeps doing is (going) back and forth to the hospital," said Debbie Piscopo, Gerald Piscopo's mother, on Thursday. "The doctors are finding him competent. He keeps claiming he's incompetent. I think he's playing the system. Our family just wants it over and done with."
Different legal questions
Competency and insanity are separate legal issues.
To be competent, a defendant must be able to understand the legal proceedings and to assist a lawyer in the defense.
"You can be found not fit to proceed at one moment, and you can still be found responsible for a crime," said Dr. N.G. Berrill, executive director of the New York Center for Neuropsychology & Forensic Behavioral Science and an adjunct professor of psychology at the John Jay College of Criminal Justice. "The two of them share a relationship, but the one doesn't predict the other."
The competency process is governed in New York by Section 730 of the state Criminal Procedure Law, and it's known well enough to have become part of street slang and part of the arsenal of defendants who think they can use it to delay or avoid trial.
"It's well-noted in all of the psychiatric literature," said Ulster County District Attorney Holley Carnwright, "how commonly people will falsify their conduct in an attempt to work out an insanity plea. It happens all the time."
Still, each case must be weighed.
Sullivan County District Attorney Jim Farrell said he's seeing more and more claims of mental illness, including in rapes and in inmate assaults on correction officers.
"We see a lot of malingering because it helps them," Farrell said.
The idea that lots of people successfully fake mental illness is one of the most popular misconceptions about competency and the insanity defense, said Berrill. Psychiatrists use a battery of tests to identify the malingerers, and people who are faking generally don't know enough about the illnesses to be convincing.
"They depict an almost comical version," Berrill said. Unobtrusive observation in those cases often reveals "someone who, when they meet with a clinician, acts 'crazy' and says 'crazy' things, but then you see them playing cards and they're winning."
Sifting out malingerers is a crucial skill for forensic psychiatrists, said Dr. Debra Warner, an associate professor of forensic psychology and Los Angeles International Affairs Liaison for The Chicago School of Professional Psychology.
Along with testing, she said, "I ask people who are interacting with them. I use a lot of court records. I use a lot of history" to make determinations.
Illness alone doesn't shape fate
Once defendants are found to be competent, they can — if they've got the expert to back it up — try to prove an insanity defense. Because insanity is an "affirmative defense," the defense must prove it by preponderance of evidence.
"People forget," Warner said. "You have to be insane at the time of the event."
Insanity defenses aren't common. Out of 357 charged or suspected murder cases in Orange, Ulster and Sullivan counties since 1988, an insanity defense has been mounted just a handful of times. Eight defendants were found by verdict or plea to be not responsible. In each of those cases the defendant was profoundly ill and floridly psychotic at the time of the killing.
"We have the opportunity, as prosecutors, to have the defendant examined by our own independent psychiatric expert,'" Farrell said. "They cannot refuse."
If the experts agree that the defendant was too sick at the time of the act to be held responsible, Farrell said, that's when prosecutors begin to consider a not-responsible plea. If the People's expert disagrees, then the case will go to trial.
In judging how to proceed, Farrell and Carnwright said, they'll look at what the defendant did immediately after the crime. Did he or she hide the weapon or try to establish an alibi? Did he or she clean up afterwards or take other actions to conceal the crime?
"That clearly shows a consciousness of right from wrong," Farrell said.
There are three ways a psychiatric defense can be successful, Carnwright said. A defendant can be found not responsible, in which case he or she will be committed to a psychiatric hospital until he or she is no longer a danger. A defendant can successfully claim that illness mitigated his or her responsibility and be convicted of a lesser charge, such as manslaughter instead of murder; the penalty is jail or prison. Very rarely, jurors find that a defendant was unable to form intent to commit a crime — temporarily insane — and in that case, a defendant may walk free.
That was the verdict that in 1981 allowed Robert Nolan to walk free after killing his wife and her paramour in Sullivan County. In 1998, Nolan killed his second wife and himself in New Jersey.
While the psychiatric community views insanity defenses as humane and necessary, Berrill said, the general public takes a dim view of the disposition.
"We live in a society where free will is at the core of our belief system," he said, and the "not responsible" concept is at odds with that. "When it's a physical illness and not a mental illness, you can have a picture of it. You can't have a picture of schizophrenia or bipolar disorder. It's ephemeral."
Some states, including Pennsylvania, have a "guilty but insane" disposition, where the defendant is hospitalized until stable and then serves a prison sentence.
"I think that takes the pound of flesh," Berrill said. "I don't love it. I think it's a bit unfair."
Carnwright said his ideal for handling mentally ill defendants would be facilities that address both penal and mental health needs: those secure but with rehabilitation and treatment.
"We simply don't have that in New York state," he said. "I don't think we have that anywhere."
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