August 31 TEXAS: Psychologist: Van Alstyne not mentally retarded A psychologist testified Tuesday he would not diagnose convicted capital murderer Gregory Van Alstyne as being mentally retarded, but said Van Alstyne most likely suffers from a conduct disorder or anti-personality disorder. The prosecution and defense spent a full day Tuesday quizzing David Egerton, a psychologist, about his report on Van Alstyne. Prosecutors are attempting to show that Van Alstyne, 39, is not mentally retarded and should face execution for his 1992 conviction in the 1990 beating and stabbing death of James Atkinson, a 42-year-old pizza delivery man. But defense attorneys have submitted reports and affidavits they say indicate Van Alstyne is mentally retarded and should not face the death penalty under a Supreme Court ruling barring execution of the mentally retarded. About 2 years ago, a Texas appeals court sent the case back to an Amarillo court for review in the wake of the Supreme Court's ruling. Under questioning from Assistant 47th District Attorney Pat Murphy, Egerton said a variety of factors, such as Van Alstyne's criminal background, alcohol abuse and his ability to adapt to different situations, support a possible diagnosis of conduct disorder or anti-personality disorder rather than mental retardation. "I would not make that diagnosis," Egerton said of defense reports indicating that Van Alstyne is mentally retarded. Egerton also testified he tends to discount some information in defense affidavits from Van Alstyne's relatives, who contended Van Alstyne struggled in school and may have suffered developmental problems in early childhood. The defendant's relatives, Egerton said, might have exaggerated Van Alstyne's problems to help keep him off death row. "That would be my conclusion," Egerton said. But David Dow, one of Van Alstyne's attorneys, noted that Van Alstyne's mother testified in 1992 - long before the Supreme Court's ruling - about her son's learning difficulties and claimed he suffered from a lack of oxygen during childbirth, both of which are possible indicators of mental retardation. Egerton said the 1992 testimony from Van Alstyne's mother corroborates some information in affidavits the defense cites as evidence that Van Alstyne is mentally retarded. Egerton said Dow IQ tests indicate that Van Alstyne could be mildly mentally retarded, but he said Van Alstyne did not meet other criteria needed to establish a mental retardation diagnosis. Egerton, however, acknowledged that some information used to support his findings regarding Van Alstyne later proved to be false. The psychologist said he now believes Van Alstyne never worked as a truck driver or construction worker, as indicated in his report. "Do you know that statement in your report to be erroneous?" Dow asked Egerton. "That is correct," Egerton said. Testimony in the case is expected to conclude today in 181st District Judge John Board's court. (source: The Amarillo Globe-News) ************************** Peitas man charged with capital murder In McAllen, police revealed Monday that human remains believed to be those of Roberto Cabada were found Friday during a search at a property two miles south of State Highway 107 on Giles Road. Law enforcement was tight-lipped last week at the property, where heavy earth-moving machinery and a suburban-sized water pump fueled rumors that police were digging or dredging up a body. McAllen police, the Texas Rangers, the FBI and deputies from the Hidalgo County Sheriffs Department executed a search warrant on the property. Cabada, a then-45-year-old McAllen resident, was reported missing in August 2003, said Sgt. Joel Morales, a spokesman for the McAllen Police Department. According to Monitor archives, Cabada was last seen on Aug. 13, 2003, on the 1400 block of Beaumont Street in McAllen. Three days later, his black 2001 Chevrolet Blazer was found abandoned at the Ramada Inn in Pharr. Property owner Roberto Zamora Jr., 50, of Peitas, was arrested and charged with capital murder Saturday. McAllen Municipal Court Judge Robert Salazar set his bond at $1 million. Capital murder can result in the death penalty. "No motive has been established at this point," Morales said. But Cabada may have stolen some marijuana from somebody, he said. The Texas Department of Public Safety Texas Rangers developed investigative leads and obtained the search warrant on the property, Morales said. Multiple calls to Sgt. Israel Pacheco of the Texas Rangers went unreturned by press time. An autopsy has been ordered on the body. Morales said he did not know what method investigators used to determine that the remains were probably that of Cabada. Others may be charged in connection with the death, he said. The joint investigation between the McAllen police and the Texas Rangers is ongoing. (source: The Monitor) ******************************** Gunman is guilty in lovers lane murder On the same day that lover's lane slaying victim Tommy Garcia Jr. would have celebrated his 21st birthday, jurors found his killer guilty of capital murder. Juan Edwardo Castillo, 24, faces life in prison or execution for being the triggerman in the Dec. 3, 2003 robbery and fatal shooting of the 19-year-old budding South Side rap artist known to his family and friends as J.R. "He got his birthday wish," Garcia's mother, Joyce Garza, said after the verdict was read, her tear-filled eyes looking skyward. Outside the 186th District Court, where the trial has been going on since Aug. 23, the two sides of Garcia's extended family broke down into each other's arms, sobbing. "I hope that he gets the punishment that he deserves," said Garcia's father, Tommy Garcia Sr. "We were all hoping for this moment to happen. It's not going to bring my son back, but he got the justice he needed." The punishment phase of the trial begins at 9:15 a.m. today. Evidence showed that Garcia was shot seven times and left for dead in the 9700 block of Clamp Avenue in what witnesses described as a robbery that turned deadly. The plot, according to the testimony of two accomplices, was for Castillo's girlfriend, Debra Espinosa, to lure Garcia to a sparsely populated stretch of the road described by neighbors as a lovers lane. Espinosa, 28, testified that she had known Garcia since he was 15. She said she used drugs with Garcia and sometimes had sex with him. Espinosa testified her part in the plot was to call one of her several friends known to carry cash and drugs, and up a robbery by Castillo and a second accomplice identified as Francisco Martinez Gonzales, 35. Gonzales' girlfriend, identified in testimony as Teresa Quintero, was the one who dropped the two men off in advance of the crime and was to be the driver of the getaway car. Espinosa testified she and Garcia were pulled out of his 1994 Camaro by two gunmen wearing ski masks. Almost immediately, Garcia was shot by Castillo. Then Castillo pumped 6 more rounds into his victim. Gonzales testified he fled the scene on foot, ditching his ski mask and gun along the way. He was arrested almost immediately. Espinosa testified she went to the closest house to summon help. She then fled and walked about a mile to her sister's home. Castillo is believed to have fled in the getaway car with Quintero. Prior to Castillo's trial, Espinosa and Gonzales entered guilty pleas to lesser charges in the case and agreed to testify against the other defendants in exchange for reduced sentences. Espinosa pleaded guilty on Aug. 8 to aggravated robbery and Gonzales pleaded guilty on May 3 to murder. Each agreed to sentences of 40 years in prison and each would have to serve at least 20 years before becoming eligible for parole. (source: San Antonio Express-News) MASSACHUSETTS: DA in rift with feds over death penalty For months, Suffolk District Attorney Daniel Conley worked alongside DEA and ATF officials to secure murder indictments against 2 Dorchester gangbangers who allegedly killed a rival in 2001. But now, with the death penalty hanging over the heads of Darryl Green and Branden Morris in a trial due to start in weeks, Conley says he may not cooperate with the feds again should a similar case arise in the future. "I believe that life in prison without the possibility of parole is proper in this case,'' Conley said yesterday, hours after a federal District Judge Nancy Gertner denied arguments by the defendants to have the death penalty removed as possible punishment if they are found guilty. Conley acknowledged he is powerless to prevent the Drug Enforcment Administration or the Bureau of Alcohol, Tobacco and Firearms or another federal authority from going after local gangbangers who push drugs on the community. But he said he can limit the amount of cooperation local authorities extend to the feds. "We'll have to consider in the future whether we'll seek to incorporate them in any murder investigation that may go the same route," Conley said. Green, 28, and Morris, 22, are charged with killing Terrell Gethers during the annual Caribbean festival in 2001. The defendants allegedly belonged to the Esmond Street Crew, a gang heavy into crack-cocaine distribution. Gethers allegedly belonged to the rival Franklin Hill Giants. DEA and ATF agents, with Boston police, conducted an undercover investigation against the Esmond Street Crew, Conley said. In securing the death penalty as possible punishment against Green and Morris, the feds, Conley said, are undermining his efforts in crime-ridden communities because many ministers and activists who help authorities are against capital punishment. The Rev. William Dickerson of the Greater Love Tabernacle in Dorchester said, "My heart goes out to the Gethers family . . . But I also think that the death penalty is flawed in this country and I believe a person experiences much more pain if they (have to live and) deal with the fact they took another human life." (source: The Boston Herald) OKLAHOMA: Death row inmate gets new trial from appeal A death row inmate convicted of killing an Ada woman in 1982 won a new trial from the Court of Criminal Appeals on Monday. The court ordered the new trial for Glen Dale Gore because he was not allowed to present evidence that others -- including two who were convicted of the same slaying and later freed after DNA testing -- might have committed the crime. Gore was convicted and sentenced to death in 2003 for killing Debra Sue Carter, 21, in Ada. She was raped and strangled. Gore was tried about 4 years after Ronald Williamson and Dennis Fritz, who were convicted of Carter's murder, were released from prison after DNA testing. During his trial, Gore tried unsuccessfully to present evidence that others, including Williamson and Fritz, might have committed the crime. Williamson originally had been sentenced to death. Fritz was sentenced to life in prison. Williamson died last year from liver disease. Both spent 12 years in prison before being released. The Court of Criminal Appeals said results of DNA testing showed that sperm found on the victim was not Williamson's or Fritz's. Subsequent DNA testing of Gore showed his sperm was found on the victim, the court said. Gore claimed that the trial judge's ruling that he couldn't submit evidence that others might have committed the crime denied him due process and the right to put on a defense. In ordering a new trial, the Court of Criminal Appeals said, "As early as 1915, this court held that a defendant may show, by any legal evidence, that some other person committed the crime with which he is charged, and that he is innocent of any participation in it." Chris Ross, assistant district attorney in Ada, said the district attorney's office will prosecute Gore again. Gloyd McCoy, who was Gore's attorney on the appeal, said he was pleased with the result of the appeal and happy that Gore gets another chance at a new trial. He said Gore will be assigned a state public defender. (source: The Oklahoman) ILLINOIS: Nicarico case evidence goes to a 2nd grand jury -- 1st panel investigating Dugan is dimissed at end of 3 months A new grand jury examining evidence against Brian Dugan in the 1983 kidnapping, rape and murder of Jeanine Nicarico is expected to be impaneled Wednesday, a day after the 1st grand jury considering the case was released. It remains unclear whether the release of the grand jury signals that the case is stalling against Dugan, now serving 2 life sentences and 155 years in prison for two rape-murders and a series of assaults. DuPage County State's Atty. Joseph Birkett, who has suggested for nearly three years that Dugan's indictment is imminent, said Tuesday that passing the case to a new grand jury is a somewhat common practice. The measure demonstrates a deliberate and thorough consideration of the evidence, Birkett said, an approach he said prosecutors must take to prepare for a rigorous challenge from Dugan's attorneys. "I was hopeful we could get this done with this grand jury, but that's the way it is," Birkett said. "We have spent thousands of hours on this case and, during that time, things happen. Witnesses get delayed. Other things get delayed." Jeanine Nicarico, 10, of Naperville Township was home ill from school on Feb. 25, 1983, when she was abducted. Her body was found 2 days later next to the Illinois Prairie Path between Naperville and Aurora. Dugan's name surfaced in connection with the case in November 1985, while he was pleading to the kidnap and murder of a 7-year-old girl from Somonauk and the rape and murder of a 27-year-old woman from Geneva. Dugan agreed to implicate himself in the Nicarico crime if prosecutors did not pursue the death penalty. Prosecutors refused and said Dugan was lying in part to become "a prison hero." 2 men were convicted of the crime and sentenced to death, but their convictions were overturned, as were subsequent convictions, and both were released. As early as 1989, scientific testing began pointing to Dugan. In 1995, more sophisticated evaluations showed that Dugan's DNA is a precise match for a specimen found on Jeanine's body. In November 2002, Birkett announced that new DNA testing established with "scientific certainty" that Dugan was involved in the crime. Prosecutors began presenting evidence against Dugan to the grand jury in July, about a month after jurors had been impaneled. The jury's term was to expire Tuesday, after its standard 3-month term. A judge's order could have extended that period. Thomas McCulloch, Dugan's attorney, said Tuesday that he was somewhat perplexed by the grand jury's release without issuing Dugan's indictment. "It seemed a little strange, to be honest," McCulloch said, "but that's a part of the game that I don't get to participate in." McCulloch said prosecutors have not spoken with him about the grand jury's progress. "All deliberate speed seems to fit their approach," McCulloch said. He added that he last communicated with Dugan "about 6 or 8 months" ago by mail. After routine orientation, new jurors will be given transcripts from the previous jury's work, then begin hearing testimony, probably next week, a DuPage County Circuit Court spokesman said. Birkett said testimony from the previous grand jury can be given to the next grand jury in transcripts or be summarized by prosecutors. "People shouldn't read anything into this," he said. "The duty of the grand jury is to both investigate and indict, and both of those functions are at work." (source: Chicago Tribune) INDIANA: Matheney execution preparations begin----He would be 1rd St. Joseph County resident executed Now that an execution date is set for Alan Matheney, there are many things the Indiana State Prison staff must take care of before Sept. 28. Unless there is an order to delay it, that is the day Matheney is slated to be killed by lethal injection for the March 1989 murder of his ex-wife, Lisa Bianco, in Mishawaka. Barry Nothstine, supervisor of administrative services at the Indiana State Prison, laid out the following procedures in a telephone interview Tuesday from his office at the Michigan City prison. Matheney will be asked if he has a will or wishes to prepare one. Matheney will be asked if he has a spiritual adviser or if he wants one. If he wants, the prison will supply one. Matheney must say about four days in advance what he wants to eat for his final meal. The final meal is now served about 36 hours before execution, he said, because of the affect of food with the drugs used in the execution. Matheney must decide if he wishes an autopsy performed on his body, and if not, he will have to sign a waiver form acknowledging that decision. For the final 7 days before an execution, an inmate may choose 10 friends and relatives to visit with, up to every day if he wishes. For that final week, the prison waives the usual rules that allows someone to visit only once every 14 days. Matheney also may select up to 10 people he would like to witness his execution. Indiana is the only state that allows inmates to do that, according to Nothstine. Those names must be submitted some time in advance to allow the prison to do background checks on those individuals, Nothstine said. Matheney will soon be moved to a cell right in front of corrections officers so he can be watched at all times. Matheney will be asked who should be contacted about funeral arrangements. If his family is unable to take care of it, a prison chaplain will conduct a graveside service at the prison cemetery. "They take pride in that," Nothstine said of the chaplains who perform the services. If family members later want to visit an offender's grave site at the cemetery, prison officials will make arrangements for that. If Matheney's execution takes place, he will be the 3rd offender from St. Joseph County to receive capital punishment from the state for a murder conviction, and the 1st county resident in more than 75 years, according to Nothstine. Matheney would be the 5th inmate put to death this year, the most since 1938, when 8 inmates were executed. A man from St. Joseph County named Harry Jones, 27, was executed by hanging on May 7, 1897, Nothstine said. And a man named John Grzyb, also known as John Hall, was put to death in the electric chair April 10, 1928. Although from St. Joseph County, Hall, 20, was convicted and sentenced in 1926 in Elkhart County, records show. Matheney, 54, a former Granger resident, was convicted and sentenced in 1990 in Lake County on a change of venue from St. Joseph County. Indiana's method of execution was hanging until the law was changed in 1913 to use the electric chair. In 1995, the state legislature replaced the electric chair with lethal injection. One other St. Joseph County resident is among the 29 inmates currently on death row. That is Wayne Kubsch, 37, of Mishawaka, who was resentenced to die after a new trial earlier this year. He was convicted of the 1998 murders of his wife, her former husband and their 10-year-old son. (source: South Bend Tribune) USA: Psychiatric Times August 2005 Vol. XXII Issue 9 In his acclaimed biography of Justice Benjamin Cardozo, Harvard Law Professor Andrew Kaufman devotes part of a chapter to a lurid murder case in which Cardozo, then serving on New York's highest court, wrote an opinion interpreting the classic M'Naghten formulation of the insanity defense (Kaufman, 1998; People v Schmidt, 216 N.Y. 324). The case decided in 1915 is a classic cautionary tale for forensic psychiatrists and, with the wisdom of hindsight, one might even suggest that it is also a cautionary tale for the great justice. Hans Schmidt, whose clerical credentials were never authenticated, was serving as a Roman Catholic priest in New York City. An immigrant from Germany, Schmidt was a charismatic figure in the German Catholic community. He was, however, something of a mountebank and apparently engaged in counterfeiting U.S. currency as well as having an affair with an unfortunate and uneducated woman, Anna Aumuller, who was a servant in the parish house of his New York church. Aumuller, also an immigrant, had at least 1 previous pregnancy by Schmidt and returned to Europe to obtain an abortion. It was a subsequent late trimester abortion in New York City that led to her death. Parts of her dismembered body were discovered in the Hudson River and with them the manufacturers' tag on the pillowcase that had been used as wrapping. The tag led the police to a blood-stained apartment, to her identity and to the "priest" Hans Schmidt. Although the police did not at first suspect him, his reaction and their interrogation, unhindered in those days by any Miranda warning, led to a confession. The sordid details of the case reported in the New York newspapers of that time have been spelled out in Richard Polenberg's historical account The World of Benjamin Cardozo: Personal Values and the Judicial Process (1997). It suffices for our purposes to note that Schmidt at first took full responsibility for killing Aumuller and dismembering her body but claimed to be insane. God, he said, had appeared to him and ordered him to kill the poor woman as a sacrificial offering. The trial would pit two teams of noted psychiatric experts against each other: the famous Smith Ely Jelliffe and William Alanson White for the defense and New York University/Bellevue Professors William Mabon and Carlos F. MacDonald for the prosecution. Both sides, according to Polenberg, claimed to have foolproof "objective" tests to support their forensic opinions. The New York newspapers gave the trial and the "battle of the experts" front page coverage. Headlines asked the crucial question, was Schmidt "shamming"? The defense psychiatrists in 30 hours of interviewing found "no signs of shamming." Jelliffe's expert pronouncement was, "A man cannot sham insanity such as [Schmidt] has - It is a product of nature, not a product of artifice." Schmidt, along with his supposed delusions and hallucinations, had told a strange and perverse story of being sexually aroused by blood all of his life. During their examination of him, Jelliffe and a colleague, who happened to have a blood blister on his finger, decided to test this part of the story. Pricking the blister with a pin, the finger with a drop of blood on it was presented to Schmidt who went appropriately berserk with what the psychiatrists considered physiological manifestations--dilated pupils and so forth--that could not possibly be faked. At trial, with total certitude, they advanced a diagnosis of the paranoid type of dementia praecox. The prosecution's experts had their own "objective" test set out 30 years before in the classic textbook Insanity, Its Classification, Diagnosis, and Treatment; a Manual for Students and Practitioners of Medicine (Spitzka, 1883). During their examinations they proposed "bogus symptoms" to Schmidt and when he claimed to have them he had fallen into their trap. They angrily confronted the defendant and berated him for pretending to be insane. The judgment of history is that Schmidt was malingering and after he was condemned to death at his second trial (the first was a hung jury), Schmidt wanted everyone to know what had actually happened. He signed an affidavit stating that his confession was false and his insanity feigned. Aumuller, who was six months pregnant, died of a botched abortion, according to the new account, and several accomplices were involved. Schmidt apparently was so confident of his powers of persuasion that he had assured his confederates that he would be found insane and shipped back to Germany. To protect them from the legal consequences of the criminal abortion he had proposed to take sole responsibility. Although the confederates never confessed, the evidence emphasized by Polenberg (1997) seems to support this new confession. For example, pathologists testified that Aumuller's body had been dismembered by someone with surgical knowledge and the findings at autopsy were more compatible with a hemorrhaging uterus than the throat-slitting murder to which Schmidt had originally confessed. If the famous defense psychiatrists Jelliffe and White had been wrong, there can be no question (at least in my mind) that they fully believed every word of their testimony. They spoke honestly, they thought they had "objective" evidence, and no lawyer twisted their words or their testimony. They, of course, had no specialized training in forensic psychiatry, but their certitude was not unlike what one encounters in the testimony of fully trained forensic psychiatrists in cases like Sirhan Sirhan, John Hinckley and the recent Texas trial of Andrea Yates. In the glare of the public spotlight and the pressures of the adversarial system, forensic experts seem to become more dogmatic and more convinced about their own clinical judgments; direct contradiction by the forensic experts for the other side only seems to strengthen their certitude. This in my view is what has often happened in notorious forensic cases that come to public attention (see Stone, 1984). The ethical guidelines developed for forensic psychiatrists that emphasize honesty will not protect trained practitioners from the pitfall of their own hubris. If the distinguished experts were chagrined, one can imagine how Schmidt felt when he was condemned to death. His lawyers, of course, appealed the verdict on two grounds that are relevant to this account. As one might expect, they argued that the affidavit and evidence about the botched abortion, newly brought to light, required a new trial. And although this argument acknowledged that Schmidt had been "shamming" insanity, in their other grounds for appeal his lawyers asserted that the trial judge had given the jury mistaken instructions on the last clause of the M'Naghten rule: that the accused did not "know that the act was wrong." This is a subject that has vexed law and psychiatry scholars for decades. Does wrong mean legally wrong or morally wrong? Killing on order from God might be legally wrong but the accused person might believe it was not morally wrong. It was this broader moral reading that Schmidt's lawyer faulted the judge for not including in his instructions to the jury and that would be the issue about which Cardozo memorably wrote. It may sound strange to the modern reader that Cardozo would send Schmidt to his death for first-degree murder despite what he himself considered plausible evidence of a botched abortion that a jury had not heard. His opinion is written so as to suggest that the applicable law of New York's criminal procedures, and the traditional legal maxim that "no man shall be permitted to profit by his own wrong," left Cardozo no other choice. Those who know Cardozo's reputation as a judge adept at getting beyond the strict letter of the law may wonder at his judicial restraint in this case. But Cardozo was intransigent. Schmidt had tried to commit "fraud" on the law and now he wanted a second chance in the halls of justice. Schmidt's lawyers had not produced new evidence, they were now offering information that the defendant had knowingly concealed at trial. Cardozo saw nothing wrong in rejecting that ground for the appeal and upholding the death penalty. If, as many legal scholars would like to believe, justice is a search for the truth, it seems a particular injustice to order the execution of a man who, though a charlatan and a mountebank, might not be guilty of a capital offense. As to the second ground for appeal, Cardozo concluded that since Schmidt and his lawyers now conceded that he was sane, the jury had in fact reached the right decision on the insanity defense. Although the issue was moot, he nonetheless seized the opportunity to opine in dicta about the moral significance of M'Naghten, its legal history and how judges should understand it. Polenberg wrote: Cardozo offered an emotionally charged hypothetical, a mother kills her infant child to whom she has been devotedly attached. She knows the nature and quality of the act, she knows the law condemns it; but she is inspired by an insane delusion that God has appeared to her and ordained the sacrifice. Cardozo continued, "It would be a mockery to say she knew her act was wrong." A mockery perhaps to Cardozo but not to the states that in recent decades have either abolished the insanity defense or given the narrowest possible reading to the right/wrong language. There are many reasons why in recent years the insanity defense has been given a narrow construction in the United States. Part of it is a reaction to the verdict in the historic Hinckley trial and the consensus among lawyers and psychiatrists that a carefully worded and limited rule would be less likely to produce conflicting expert testimony and controversial verdicts (American Psychiatric Association, 1985). There is reason to believe that these reforms have been effective. Psychiatric diagnosis certainly has greater reliability since the development of DSM-III and its successors. But expert testimony goes beyond diagnosis, and disagreement can and still occur on the crucial questions. At the trial of Yates, recently overturned on other grounds, forensic psychiatrists were dealing with a fact situation much like the "highly charged hypothetical" that Cardozo had imagined (Yates v State of Texas, 2005 WL 20416). Yates was obviously psychotic. The forensic psychiatrists on both sides agreed that she was not "shamming." Although God had not appeared to her, it was her religious "delusions" that led her to drown her five children in the bathtub. She may well have believed that what she was doing was not morally wrong. But the state of Texas had no interest in the moral considerations that Cardozo advocated. They wanted forensic psychiatrists to go beyond the diagnosis and offer expert opinion on whether Yates knew right from wrong. It was on that narrow issue that the new generation of trained and eminent forensic psychiatrists disagreed. The prosecution's expert was convinced that Yates knew right from wrong. The defense expert was equally convinced she did not. When the law asks psychiatrists such narrow questions, it does so on the commonsense assumption that there is a common reality, a world of black and white, right and wrong. But is that assumption correct and did Yates' psychotic experience of reality correspond in any meaningful way to that assumed legal reality? My own belief is that no forensic psychiatrist can objectively answer the law's narrow question yes or no. There is no "truth" of the matter. Our science cannot yet map the psychotic experience of reality or measure its correspondence to the reality of the law's simplifying assumptions. The narrow right-from-wrong question may seem clear and obvious, but it is premised on assumptions that neither science nor philosophy can verify. Cardozo, famous for the eloquence of his opinions, was like many other jurists, eager to clarify the meaning and scope of the insanity defense. But as one recent law review student note pointed out, with the wisdom of hindsight, the opinion in Schmidt no longer makes sense legally or psychiatrically (Hawthorne, 2000). One might conclude that Cardozo, like Jelliffe and White, suffered from his own hubris. Perhaps, but I would suggest that there is also a larger lesson to be learned. I believe that the law's effort to formulate the right question about criminal responsibility and psychiatry's efforts to answer it are equally misguided. After centuries of efforts on the part of great legal scholars, jurists and philosophers to define the precise question they want answered, might it be time to acknowledge that such a definition is beyond the reach of legal reason? And if the legal question is unaskable, psychiatrists, even the best trained forensic psychiatrists, should recognize that it may be unanswerable. Neither law nor psychiatry has yet found a way to draw a bright line between mad and bad. There is now great interest in the possibility that new neuroscience will answer the law's questions. This new enthusiasm is based on the assumption that law and science speak the same language. I believe that anyone who has thought seriously about either law or science would suggest that there is no good reason to believe that such an assumption is true. Dr. Stone is the Touroff-Glueck Professor of Law and Psychiatry in the faculty of law and the faculty of medicine at Harvard University. References American Psychiatric Association (1985), Insanity Defense Position Statement. Available at: www.psych.org/public_info/libr_publ/position.cfm. Accessed July 1, 2005. Hawthorne C (2000), "Deific Decree": The Short, Happy Life of a Pseudo-Doctrine. Loyola of Los Angeles Law Review 33(4):1755-1810. Kaufman AL (1998), Cardozo. Cambridge, Mass.: Harvard University Press. People v. Schmidt, Court of Appeals of New York, 216 N.Y. 324 (1915). Polenberg R (1997), The World of Benjamin Cardozo: Personal Values and the Judicial Process. Cambridge, Mass.: Harvard University Press. Spitzka EC (1883), Insanity: Its Classification, Diagnosis, and Treatment; a Manual for Students and Practitioners of Medicine. New York: Bermingham & Co. Stone AA (1984), Law, Psychiatry, and Morality: Essays and Analysis. Washington, D.C.: American Psychiatric Press. Yates v State of Texas WL 20416 (Tex.App.-Hous. [1 Dist.]) (2005). (source: Psychiatric Times August 2005 Vol. XXII Issue 9)
