tinguishing mind from body is indecipherable from the mind’s standpoint. While neuroscientists can increasingly draw correlations between the underlying physical substrate of our mental lives and the manner in which we report our experience of the world, there is a vast divide between our theories of cellular activity and our theories of self. In other words, while we can associate mental states with physical conditions, there is a still a great divide between mind and matter. This is especially so in the law.
Consider the case of Kenneth Heath, 61, reported this week in Guildhall, Vermont. He pleaded no contest to a count of manslaughter involving the shooting of his mother. He was initially charged with murder, but agreed to a lesser plea and, he hopes, the possibility that he will someday be released from prison while still alive.
Heath was prepared to plead not guilty by reason of insanity and proceed to trial before a jury of his peers. According to his lawyer, David Sleigh, Heath was hallucinating at the time of the killing. He thought his mother was chief of the local police department, out to get him. Heath was, to use a lay term, out of his freakin’ mind.
Sleigh reports that his client was taking a prescribed anti-smoking drug, the press report I just read does not say which one. The drug has “[v]ery well known side effects of psychotic symptoms,” Sleigh reports. The lawyer argues that Heath should never have been prescribed the medicine at all; there are serious mental health issues in Heath’s family’s history, including the suicide of his own father and his son. What’s more, Heath had mental and physical health problems that required daily care.
Juries are hostile to the insanity defense in almost every case, a phenomenon that intensified after John Hinckley shot President Ronald Reagan in 1981. After he was found not guilty by reason of mental disease or defect, many states and the federal government made the insanity defense harder to prove. A few states even abandoned the insanity defense: at the very time we are making advances in our understanding of what physiological processes make minds possible, we are ever more bold in holding defendants accountable for their actions as though acts were merely the consequence of unbounded will.
Not long ago, a Connecticut resident, Gregory Madigosky, was found guilty of the murder of his wife. One of the state’s top forensic psychiatrists examined the man on behalf of the defense, and concluded that he was insane, that is incapable of conforming his conduct to the requirements of law, at the time of the killing. The state elected not to have Mr. Madigosky evaluated by an expert of its own. At the time of trial, the state argued common sense against the defendant’s science: Mr. Madigosky was able to drive a car, to surrender to police, to discuss what he had done. Why, if he could do all this, then, of course, he was sane!
The Madigosky case troubles me. (I argued his case before the state Supreme Court and I am representing him in claims for post-conviction relief.) While our law gives juries the right to reject the testimony of experts, it seems dishonest for the state to refuse to have evaluated a defendant declared insane by a reputable expert also examined by an expert retained by the state. In the Madigsoky case, the state was presented with evidence of insanity, chose to ignore it, not even to investigate it, and then argued to the jury there was no proof of insanity.
There can be only reason why the state chooses not to have a defendant evaluated once it is presented with evidence of the defendant’s insanity. The state fears that if its expert agrees with the defendant’s expert, it will have no choice but to dispense with prosecution: It would be a rare prosecutor who would turn over exculpatory evidence of a defendant’s mental disease or defect and still argue to the jury that the experts were wrong. So the state ignores the growing scientific evidence that minds are in large part influenced by the brains that house them.
The neurosciences are in bloom. The next great paradigm shift in the sciences could well be a breakthrough that permits reframing of the mind-body problem. We are no better off than was Rene Descartes when he resorted to speculation about the pineal gland and God as the means of stitching together body and soul. We cannot conceive of being both the product of causation and free.
And yet, almost each time I turn on the television I see a new wonder drug touted with a long line of warnings about things that can wrong, among them depression and suicidal thoughts. We’re tinkering with the barrier between minds and bodies with ever-more sophisticated drugs, but the law remains anchored in a world in which all is a matter of choice.
Kenneth Heath’s case is but the latest in a growing body of cases that suggest that the law is far, far behind advances in scientific understanding of the mind. I suspect that neuroscientists know the truth about Mr. Heath’s condition the day he shot his mother. The pity is that no one in a courtroom will listen, at least not yet.
Note: Five interesting new books on the brain just reviewed on NPR. Summer reading, anyone? http://tinyurl.com/3j5fb9x