Commentary: A Rush to Judgment on Sanity?

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The 1957 classic movie, 12 Angry Men, depicts what most of the jurors thought would be an open and shut case, where a guilty verdict would result in the death sentence for the defendant, a Puerto Rican youth accused of killing his father.

Indeed, 11 of the 12 jurors were ready to go home, but Juror 8 stated that he had doubts about the case and wanted to give the defendant a fair hearing. As it turns out in the movie, there were serious holes in the case which raised substantial questions about the police investigation and, indeed, the competency of the defense.

The more the jurors looked into the evidence, the more the evidence fell apart, until one by one the jurors changed their minds.

Despite the jury committing what would amount in real life to juror misconduct, the lesson here is about a rush to judgment without exploring the facts.

On Friday it was understandable that the jury could quickly come back with a guilty verdict – after all, the defense did not deny that Daniel Marsh killed Oliver Northup and Claudia Maupin. However, given the complexity of the psychological issues, the gravity of the situation, and the conflicting views of medical and psychological experts, that the jury could deliberate for as little time as they did is appalling.

The Vanguard spoke to Lisa Rea, President and Founder of the Restorative Justice International, a Davis resident. She is a fierce advocate for victims.

She told me that, in 2001, she sat through the sanity hearing for Scott Thorpe, who had been found guilty of mass murder in Nevada City. This included the killing of the daughter of Nick and Amanda Wilcox, for whom Laura’s Law is named.

She said this particular sanity hearing lasted a number of days, and that ultimately the offender was found to be not sane. She said this “made perfect sense to all of us who were present during the hearing.”

She said that Mr. Thorpe was sent to Napa State Hospital, which she said “is not just a hospital but a prison for the mentally ill who commit violent crimes.” She said, “It seems that it is where Marsh should be sent.”

Ms. Rea wrote an op-ed at the time, that was published by The Union in Grass Valley; unfortunately we were unable to locate the publication online.

The lengthy trial and the shocking nature of the Daniel Marsh crime to this small community seem to have played a role here in the quick rush to judgment. The jury had to listen to weeks of horrifying and disturbing testimony – which leads us to wonder if there are services available to the jurors for post-traumatic stress.

The long trial, the potential loss of income and general disruption to jurors’ lives may have played a role in the quick verdicts both on the guilt phase (which is more understandable) and the insanity phase.

However, as we noted during the Talamantes trial and the ultimate 25-to-life sentencing for the killing of Talamantes’ daughter last year, there are misperceptions by everyone as to what an insanity finding really means.

The Vanguard was told that the DA’s office in the Talamantes case was opposed to the insanity plea because they believed that Ms. Talamantes would go to a state hospital for a short period of time and then be released. This is inconsistent with current policy.

NGI (Not Guilty by Reason of Insanity) is covered under Penal Code §1026 and the inmates are handled under CONREP, the Forensic Conditional Release Program which is a statewide system of mental health treatment services.

According to their state page, “Most individuals in the CONREP program have experienced lengthy state hospitalizations. Once psychiatric symptoms have been stabilized and they are considered no longer to be a danger, the state hospital medical director recommends eligible inpatients to the courts for outpatient treatment under CONREP.”

Mr. Marsh, if he had been confined under CONREP, would likely have stayed in a facility as long as he will be sentenced to prison – perhaps even for the rest of his life, depending on the severity of his conditions.

As Lisa Rea implicitly notes, there are misperceptions about not guilty by reason of insanity. Mr. Marsh will not get the kind of treatment that he needs in prison. A facility like Napa State Hospital is not just a hospital, but rather a prison for the mentally ill who have committed violent crimes – mentally ill is clearly what Mr. Marsh is, whether he meets the legal definition of insanity or not.

That said, while I believe Mr. Marsh would be better suited for confinement at Napa than in a prison, I am also not convinced he fits the very technical legal definition of insanity.

Under the law, not guilty by reason of insanity has limited application under the 1843 McNaughton case, the first widespread legal standard for insanity. What has transpired is the use of the “McNaughton rule,” where the defense has to prove that “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 story of the Scott Thorpe killings and the Wilcox family, however, reminds us that, while this is a time for great pain for both the community and the victim’s family, there is opportunity for both healing and putting the pain and hardship aside to pursue a better outcome.

Lisa Rea also told me that she got to know the Wilcox family at the hearing and, years later, they would meet face to face with the man who killed their daughter in a victim-offender reconciliation program.

We were able to find a piece written in 2011 in the Restorative Justice online, where she wrote, “I was at the hearing of Scott Thorpe as the court decided his sanity. The court’s decision would then dictate where Thorpe would be sentenced.  The Wilcoxes took a position against the death penalty from the beginning which was shared with the local district attorney. There were other victims that day who died at the hands of Thorpe; the Wilcoxes’ position represented their own personal opinion on the death penalty.  It was the first time I had attended such a hearing and it had an impact on me and how I viewed both the offender and the victims’ family members as well as the family of the offender.”

The Wilcoxes became staunch advocates for preventing firearms from getting into the hands of mentally-ill individuals, and state legislators used the tragedy to pass new legislation to allow the court more power in ordering involuntary outpatient treatment for those individuals with serious mental illness.

Laura’s Law was passed in 2003 by the state and it allows the court to order involuntary outpatient treatment for those individuals with serious mental illnesses with a history of violent behavior. From 2003 to 2013, only Nevada County had fully implemented the law. However, in 2013, Yolo County committed $100,000 to a pilot program creating four slots for outpatient treatment.

In June of this year, by a 4-1 vote, the Yolo County Board of Supervisors made Yolo County one of the only places in California to fully implement the law.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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94 thoughts on “Commentary: A Rush to Judgment on Sanity?”

  1. PhilColeman

    Determination of the mental health of a person–by highly trained professionals–is hardly an exact science, or close to it. Mental health professionals will all readily acknowledge that the profession is also an art, an intuitive-base judgment combining the left-brain/right-brain analyses.

    I’ve talked to many esteemed mental health pros on this topic, and this is the ONE thing on which they agree.

    Now, we add the very tricky element of time. In the instant case, we now ask these same experts to historically assess the defendant’s state of mind a year or so earlier, not now. As a lay person, I think I’d be just as comfortable if they used a Ouija Board, the chances of accuracy would be about the same.

    Small wonder we always have differing opinions on the mental health condition in criminal trials with this as an element.

    Back to the case at hand, we now ask a lay panel of jurors to determine the sanity of a defendant. Presumably, none of them have any professional training in mental health (they’d be excluded during selection process). Pardon the pun, but this is insane!

    We have a parade of certified mental health experts give opinions that always contradict each other. Confusion reigns. Then we anoint a panel of twelve people to render the final conclusive judgment, a body of our “peers” who know nothing about mental health.

    That entire process just seems a little bit crazy to me. I’m off to see my mental health therapist.

    1. Rich RifkinWDE 73

      It seems to me Phil–not that I am proffering expert opinion, but I know a bit based on some challenging experiences in my life with a family member who was a delusional psychotic when not medicated–that there is a spectrum of insanity. You write that “Determination of the mental health of a person–by highly trained professionals–is hardly an exact science, or close to it.” That’s probably true in many cases. But there are also plenty where it’s far clearer, far more obvious.

      Usually, if you have a person who has been diagnosed with a disease like schizophrenia, and that person has a history of hearing voices, and there is a pattern of behavior over time which adds to the picture, it’s not “intuitive-based” to determine his insanity, especially if the crime itself fits his pattern of irrational thoughts. If you think of the case of Jared Lee Loughner, who shot 19 people, killing six and seriously wounding, among others, Rep. Gabbie Giffords, determining that he was insane at the time he committed his horrific crime was not a close call.

      On the other hand, in a case like that of Daniel Marsh, where he was not delusional, did not hear voices and was not suffering from psychosis, it might* be harder to say if he was insane at the time he committed his horrible crimes. In other words, there was far less reason to believe Marsh did not understand right from wrong. But on the other hand, perhaps his moral development, where one learns right from wrong, was impaired by disease and/or his upbringing, and it becomes a judgment call as to whether he should be held accountable.

      *Might be? It’s possible nearly 100% of qualified psychiatric professionals would reach the same conclusion on Marsh’s sanity or insanity. However, in a courtroom, where half are paid by the defense and the other half paid by the prosecution, it appears to be far less clear to trained scientists, given the 50-50 nature of a trial.

      1. Frankly

        So how would the alternative work? Only the prosecution gets to select an expert? Only the defense? Both? (oh wait, that is what we do now.) How about the judge selects the expert? But then is he/she a conservative tough on crime judge, or a liberal activist Rose Bird type? Because the risk that one PHD/MD will get it wrong at least 50% of the time for cases like this, maybe the judge should always select two PHD/MDs… but then how would conflicts be settled?

        Or maybe the county needs a sitting psych doctor like we have a coroner. But again, liberal or conservative? Tough on crime like the Texas DA, or like the let-em-go-free Vermont fluffball judges?

        Or maybe a psych panel… maybe 12 of them with one alternate. But since these 13 PHD/MDs would benefit from the full testimony and presentation of evidence, why not just make them the jurors?

        And then the outcomes would be more accurate.

        Right.

        Not.

  2. DavisBurns

    The jury only had to determine if Marsh was legally sane which wasn’t hard to do. I don’t understand how he will be sent to Napa State or is that just a statement that it is for prisoners with mental illness and he could be sent there?

    1. Elizabeth Bowler

      Marsh cannot be sent to Napa as he was found to be sane at the time of the crime. He would have been sent to Napa State Hospital or another state forensic psychiatric hospital if he had been found to be insane. Mentally ill prisoners are also not sent to Napa, but instead receive psychiatric treatment within a prison setting.

  3. justme

    While anyone who has read my posts know that I am not liberal AT ALL… I think this article is one of the few instances where I completely agree with David… I doubt any of the jurors were psychologists or had training in mental disorders. Having said that, I believe that the guilty/not guilty portion should be handled by the jury while the sane/not sane portion should be handled by professionals. If both sides had their own professionals who could work together to come to a finding, I would be much more comfortable with it…. I simply know I am not a doctor and would not like being put in a position deciding someones sanity…

    1. Tia Will

      ryankelly

      “and did not know right from wrong when he carefully planned, carried out, and then hid evidence of, the murder.”

      I would agree with you if this was the argument that were being made. But it is not my reason for believing that there is a strong possibility that he did not know right from wrong at the only time that mattered, namely when he was actually committing the act”. The planning is not relevant and neither is how he felt afterwards or how he feels about the act now. The point is his mental state at the time of the act. There are three pieces of evidence that point towards the explanation of him being in a dissociative state at the time.
      1. He had mentioned to several providers that he had “out of body” type experiences
      2. He was witnessed by a neutral party having episodes in which he was not responsive
      3. He stated is his confession that when he entered the bedroom he was aware that “it was too late to turn back”.
      When you consider these as possible indications of times when Daniel was not in control, it may well be that he was unable to tell right from wrong at the only time that matters under the law, namely when committing the acts.

    2. Robert Canning

      Technically the experts are not supposed to tell the jury or judge whether they believe the defendant was insane or sane at the time of the crime. They are supposed to provide testimony to help the jury or judge make that determination. In reality, they often do.

      In some states (I’m not sure which ones) the sanity and guilt phases are quite separate and involve empaneling separate juries. The number in defendants in the U.S. who are found not guilty by reason of insanity is very, very small. It is a defense that is mounted rarely and is successful even more rarely.

  4. ryankelly

    His defense was that he was mentally ill with inappropriate mental health treatment exacerbating his condition until he was in a disassociated state and did not know right from wrong when he carefully planned, carried out, and then hid evidence of, the murder. He then planned another one and attempted to carry it out. That he is mentally ill, that’s a certainty. But I believe that he did know that what he was doing was wrong. I do believe that he is now sorry that he is convicted and is facing a lengthy prison sentence, but evidence that he enjoyed murdering the couple asleep in their home is chilling. This is a real tough one. With his young age, him being found legally insane would be much easier to swallow. I am having a really hard time with caring what happens to him or in what manner he is removed from the community. I agree that professionals should determine his placement, but without any plan to return him to our community.

    1. tj

      “Evidence that Daniel enjoyed murdering” is a faulty understanding of his mental illness. No doubt, whether Daniel understands it or not, what he enjoyed was relief from years of overwhelming and terrible thoughts in his head. I believe when he ventured out a 2nd time, he soon realized that killing didn’t put the thoughts to rest for any significant length of time, so he went home.

      “He hid the evidence” but kept it at home, which was not a reasonable plan at all, and then talked to his so called “friends” about what he’d done; also not a reasonable thing to do.

      I too believe the jury made its decision too rapidly and I get the impression the jurors were swayed by the DA’s experts who really were not impartial and at least in one case not qualified to testify.

      It would be very hard for jurors not to be influenced by headlines, and/or news flashes on the TV. Too bad this case wasn’t moved to another county.

      I’ve never had an answer to the question of whether the PD objected to Daniel being tried as an adult.

      1. Rich RifkinWDE 73

        I’ve never had an answer to the question of whether the PD objected to Daniel being tried as an adult.

        They have no right whatsoever to object.

        The police, the DA and the judge HAVE NO CHOICE in whether a 15-year-old homicide suspect is tried as an adult. State law ALWAYS REQUIRES serious violent felonies for suspects aged 14 and over to be tried in general (adult) court. There is no exception, once the suspect is indicted for murder and deemed fit for trial.

        1. DavisVoter

          I thought we went over this already and decided that the law provides for automatic trial as an adult when murder with special circumstances is charged, and I thought you agreed that the prosecutor has discretion to charge or not charge special circumstances.

          Maybe I’m remembering this wrong?

        2. Tia Will

          Rich or anyone else who knows –

          On what was the decision to draw the line at 14 to try murders as adults ?
          This is not the age cut off for any other major right or duty within out society that I can think of. So why that age ?

          1. Rich RifkinWDE 73

            I don’t know specifically why age 14 was chosen. It was done by way of a ballot initiative, Prop 21 (2000), which the voters approved rather overwhelmingly, 2:1 I think. Prop 21 regarded youth crimes, and much of it was intended to “crack down on violent street gangs.” Perhaps it was the case that there were some high-profile cases in the news at that time where some gang members, age 14 to 17, were tried for murder in the juvenile courts, and as the authors of the proposition believed they deserved an adult punishment.

      2. Antoinnette

        tj…..I looked up the motions filed, didn’t see any for that?

        Probably due to the law, but unsure? I would need to double check with Ron.

        As for his appeal for a new trial, I am pretty sure defense has more than just a short deliberation time in mind for his motion.

        November 12, we will know more.

  5. Anon

    Frankly I am appalled at the criticism of the jury for not deliberating long enough in the sanity phase of the trial. I suspect the jurors did not buy the defense’s arguments based on the evidence presented and their own common sense. Is the Vanguard trying to argue that Daniel Marsh was LEGALLY INSANE at the time of the killings? If not, then the jury came to the right conclusion, and I see no reason to fault them because they supposedly didn’t make their decision in the politically correct time frame deemed proper by the DV.

    1. David Greenwald Post author

      “Is the Vanguard trying to argue that Daniel Marsh was LEGALLY INSANE at the time of the killings?”

      As I wrote in the article: ” I am also not convinced he fits the very technical legal definition of insanity.”

    2. David Greenwald Post author

      You have a case where experts in the field both in the court and that I have talked to disagree with each other on whether or not he met the legal standard, a group of layman could evidently do it in less than an hour. The problem with the may not have bought the defense’s arguments thesis is that the people evaluating the medical and psychological testimony had no particular training in that. They didn’t evaluate the defendant themselves, they saw conflicting testimony and they basically had to weigh the opinion of conflicting experts and based on what? They don’t know, what they don’t know and that’s frightening.

      If you have cancer, you have two doctors who give you very different diagnoses and treatment options, would you allow a group of 12 lay people to evaluate those options and decide which one makes the most sense? That’s what you’re asking to do here.

      1. Anon

        Unlike the DV, the jury used their common sense, and didn’t overthink the issue. In other words the jury did not allow defense experts to distract them from the real issues. IMO, the DV has allowed the defense to lead it down side paths of distraction/obfuscation. That is the job of the defense, to try and confuse jurors to create reasonable doubt. The jurors in this case were not the least bit confused, and saw right through the defense’s ruse.

        1. Tia Will

          Anon

          “he jury used their common sense,”

          The problem with “common sense” is that it is so very often wrong. I will again use the example of epileptics.
          It was once widely believed that seizures were obvious evidence of possession by evil spirits. The common sense of the day clearly indicated the the individual was possessed and that the evil spirit had to be exorcised. Unfortunately, common sense was in error. It turns out there was a completely different explanation than common sense dictated, it just hadn’t been discovered yet. None of us, not you, not me, not those twelve jurors has the least idea of what was actually transpiring in Daniels head and to pretend that we know what he did and did not know is the height of arrogance. In response to your question of whether anyone believes that he did not know right from wrong at the time of his actions, I believe that is a real possibility.

          After all, we cannot all agree on right and wrong in this circumstance which to me means that at least in the question of the disposition of this case, “right and wrong” are not always as clear to us as we would like to pretend they are. Do we have so little imagination that we cannot conceive that when we have so very much disagreement about what is right and what is wrong in this case, that Daniel at his age and with his obvious pathology might not have had difficulty sorting right from wrong in the same way that we attempt to ?

          1. David Greenwald Post author

            My problem is that the jury is making a decision that will put a now 17 year old away for effectively the rest of his life, the jury should have taken more than an hour to make that decision. I don’t see how that’s an issue of PC, it just seems due diligence. Maybe if they had looked longer, common sense would have started to crumble. In the literature on wrongful convictions – it is amazing how many times the jury deliberated for very brief periods of time when there was evidence in front of them that should have caused them to be more skeptical of the prosecutions case and could have saved an individual years.

          2. Don Shor

            You really didn’t answer my question. In the absence of any further resources available to the jurors in the jury room, if they find they are basically unanimous at the outset what do you want them to do? What should their “more than an hour to make that decision” comprise of? Rehashing how they agree on it? There is no “due diligence” they can employ once that door closes. Due diligence implies research, data, expert opinion. They are in a room with each other and have only their thoughts and impressions and opinions.
            David, you wanted a different outcome, and now you’re insulting the jurors because you didn’t get it. That’s blunt, but it’s the only conclusion I can come to here.

          3. David Greenwald Post author

            Don: Except that I stated both in the article and the comments that I was skeptical that Marsh fit the definition of legal insanity. So that precludes your comment.

            What should they do if they agree? They aren’t even supposed to form a judgment until they weigh the evidence in the jury room. So the first thing they should do is go over all of the testimony to make sure that their initial impression is borne out – given the mounds of testimony, a careful examination should have at least taken a few hours.

          4. Don Shor

            “Go over all the testimony” how? If they took notes, they have their notes. That’s it. There is no way to do a “careful examination.”

          5. David Greenwald Post author

            Don are you intentionally trying to be obtuse here? There are several ways to go over testimony. One of course is to have the clerk read back from the transcript verbatim. But two years ago Robb Davis was on the jury of a case we covered, and he came over to my office following the verdict and walked me through their discussion and how they weighed the evidence. It took him longer to explain their decision to me than it did for the Marsh jury to render its verdict.

          6. Don Shor

            If there is unanimity going in, there would be little point in going over the testimony point by point. I’m not being obtuse, David. You’re insulting the jurors. This was their full-time job for days on end. They came to conclusions as the trial progressed, and it is clear they found themselves in agreement on this issue. If they are in agreement, what purpose would it serve to have the clerk read back verbatim testimony that they have already heard? The point of that is to clarify things people have questions or confusion about.
            I have been on two jury trials; I know how and why we reviewed the evidence. It was to arrive at a conclusion for those who either were undecided or to discuss points of disagreement. Or, if what the jury has to do is complex, it may be to come to a conclusion by consensus within that context. We had a manslaughter case involving partial negligence; something like that can require a great deal of debate. This clearly didn’t.

          7. David Greenwald Post author

            I’m sorry but this was a decision that will impact someone for the rest of their lives, they should have spent more than an hour on it.

          8. Don Shor

            David! Spent more than an hour doing WHAT?!? Every juror knows that their decision will “impact someone for the rest of there lives.” Seriously.

          9. Anon

            Common sense was not at play in regard to determining whether someone was possessed by evil spirits because of epilepsy, but superstition.

            “Common sense is a basic ability to perceive, understand, and judge things, which is shared by (“common to”) nearly all people, and can be reasonably expected of nearly all people without any need for debate.[1] The everyday understanding of what common sense is derives from philosophical discussion, involving several European languages. Related words in other languages include Latin sensus communis, Greek κοινὴ αἲσθησις (koinē aísthēsis), and French bon sens, but these are not straightforward translations in all contexts. Similarly in English, there are different shades of meaning, implying more or less education and wisdom: “good sense” is sometimes seen as equivalent to “common sense”, and sometimes not.[2]
            “Common sense” has at least two specifically philosophical meanings. One is a capability of the animal soul (Greek psukhē) proposed by Aristotle, which enables different individual senses to collectively perceive characteristics such as movement and size, which are common to all things, and which help people and other animals to distinguish and identify things. It is distinct from basic sensory perception and from human rational thinking, but works with both. The second special use of the term is Roman-influenced and is used for the natural human sensitivity for other humans and the community.[3] Just like the everyday meaning, both of these refer to a type of basic awareness and ability to judge which most people are expected to share naturally, even if they can not explain why.”

        2. Frankly

          I agree. I think David might not have any experience on a jury. Laypeople (ignoring the derogatory inference) that serve would absolutely take their role seriously. It would be stressful beyond understanding to have to sit and listen to all the evidence and the rules and then decide the fate of a young man. I am sure that most of the jurors have sons, nephews, grandkids, cousins, etc… all about Daniel Marsh’s age. They would be emotionally connecting him with the people they know and fretting about their decision on his future.

          With all due respect David, you don’t seem to get the judicial process of being tried by your peers. It is the best alternative because it demands real facts, real human intellect… and it blends it with real human emotions.

          Your point is that these peers are not trained medical professionals. My next question… have you ever seen a real shrink? I haven’t, but I have worked with several for family and friends… and here is a point to consider… they are just as likely to be screwed up as the average population. Thank God for juries to help mitigate the too narrow consideration of these professionals.

          1. David Greenwald Post author

            While I have not been a journey, I have talked to a lot of jurors – hundreds – sometimes the jury is very dedicated, sits down, goes over the facts, wants to get it right, even when I disagree with the verdict I can respect it. Other times, I have heard jurors complain that the other jurors didn’t want to discuss things and just wanted to render the most convenient verdict and go home. That’s where I’m troubled especially when a very complex case is boiled down to less than an hour.

          2. David Greenwald Post author

            How do you know this? Were you in the courtroom? Did you personally evaluate Marsh? Do you have a PhD in psychology or an MD in psychiatry? You think they got it right, I think based on what I’ve seen that it probably doesn’t fit the legal definition of insanity, but I certainly not comfortable making a decision to send a 17 year old to prison for life based on what I know. How many times has a jury thought they had it right, rendered a quick decision, and turned out to be wrong?

          3. Anon

            Huh? Are you now arguing David, that the jury should have found Daniel Marsh not guilty by reason of insanity? My understanding was that you believe the jury got it right, but are just ticked they did not spend the politically correct time in your world view to come to that conclusion, which as Don has repeatedly pointed out, makes no logical sense.

  6. hpierce

    It seems apparent to me, that at this point, there are those who have no problem with the jury’s determination in the sanity phase, OR they would have a serious problem with their determination whether it came 15 minutes or 15 weeks into deliberation.

    I opine that the length of deliberations is irrelevant and nothing to be “appalled” about by the ‘vox populi’.

    Or, is it ‘appalling’ that there won’t be many days/weeks of blogging on the topic before ‘moving on’?

    Maybe Mr Harrington will demand a referendum. That could keep the creative juices flowing.

    Arguments for and against what “should have been done”, or “what should be done” in the process (and the life events leading to the charges), are certainly valid conversations to be had, and probably important moving forward, but the ‘length time of deliberations’ is not apparently reasonably pertinent.

  7. DurantFan

    The rush to judgement concerning the sanity of this still young and truly troubled individual for a serious crime he committed when he was ONLY 15 will be the basis of an appeal and ultimately for an expensive retrial

    1. hpierce

      So… if they deliberated for 15 weeks, came to the same conclusion, the appeal would either not be filed, and/or upheld, resulting in a retrial of the sanity phase alone? Basis for your conviction of what WILL happen?

    2. Robin W.

      I don’t understand what legal issue you think will result in a reversal on appeal and a retrial. In what way do you believe the process in this trial did not comport with the law?

  8. Robin W.

    Criticism of the jury for doing exactly what they were instructed to do does not make sense here — especially criticism coming from anyone who did not sit in the courtroom with them all day for every day of trial, hear all the evidence, watch the demeanor of all the witnesses, watch the defendant’s demeanor in the videotaped confession, and listen to the judge’s instructions about what the law is and what the jury should consider.

    What David – and many others – seem really to object to is our legal standard for insanity, and the law permitting the state to try adolescents as adults in certain circumstances (although the arguments that are being made on this site about brain maturation would apply to a 24 year old murderer as well). This is not the fault of the jury.

    1. Rich RifkinWDE 73

      What David – and many others – seem really to object to is our legal standard for insanity,

      In cases where a person is a delusional, paranoid psychotic who is not voluntarily being treated by a psychiatrist, I think civil libertarians, like Dave Greenwald, are far too reticent to consider someone legally insane and by extension in need of court supervision or even complete legal restraint.

      I don’t think that in the case of Daniel Marsh, he had symptoms of psychosis. But he apparently did express to his psychiatrist that he had some sort of fantasies of killing people. Maybe, in a case like that, before a patient acts on such fantasies, his doctor should be required to report to the court what he knows, and the court should order more medical professionals to examine him and determine, if possible, if he is a threat.

      One thing I know about our prisons and jails is that they are loaded with inmates who are seriously mentally ill. Those people make up about 20% of inmates at any given time, and (because they are usually repeat offenders) 40% to 50% over the course of a year. What those figures tell me is that we are not approaching the seriously mentally ill correctly. We need to force a lot more of them into psychiatric treatment (via orders such as Laura’s Law) or lock them up in psychiatric hospitals until they are no longer psychotic and someone is managing their care on the outside. A second thing I think we need to do, once a person who is seriously mentally ill has committed a crime is remove them from the general prison population. They need to be locked in a psychiatric ward as long as they are sick and especially if they can get better from treatment.

      and the law permitting the state to try adolescents as adults in certain circumstances

      This may sound pedantic, but the law does not “permit” someone like Marsh to be tried as an adult. The law requires it in all such cases, if the alleged murderer is age 14 or higher.

      1. Frankly

        I agree. Do you know of any orgnanizations working on this? I had my staff dump a bunch of ice water on me for the ALS challeng and then gave them money. I donate to breast cancer and Parkinsons and kids and veterans, horses and dogs I donate to a lot of things, but I cannot find really anything out there working on reforming our mental health system. It needs to be a cause. Maybe more important than plastic bag bans. You think?

          1. Rich RifkinWDE 73

            The percentages I stated are based on BJS numbers. For males the percentage with serious mental illness is supposedly about 16-18%; for females it is about 24-25%.

            I am sure you know the California numbers better than I do. However, I think the 10% figure represents just those receiving psychotropic meds. There are, I presume, some inmates not helped by psychotropics who are nonetheless seriously mentally ill.

      2. Robert Canning

        The proportion of inmates in CDCR who receive mental health services is about 28%. The proportion of inmates who have serious mental disorders (ongoing psychosis, depression, or other symptoms that seriously impair their ability to function in prison) is much less – probably around ten percent or so.

        I do not believe that “forcing” many of these folks into treatment is necessarily the way to do. Even in prison inmates with mental health problems (except when they are dangerous to themselves or others) cannot be forced to take medications. Inmates can refuse treatment, just as patients in the community can. I don’t believe the heavy-handed approach you suggest would result in better outcomes.

        I think you are also confounding criminality and mental illness. There is good research out there that suggests that criminal behavior by the mentally ill is typically not caused by the mental illness but rather criminal thinking and associations. Simply treating the mental illness would not prevent the criminal behavior because it’s not the product of the disorder.

        Rich, what you seem to be suggesting is a return to the 1940’s and 50’s where the mentally ill had few civil rights and and due process did not exist for them. Having services in the community for mentally ill persons is, it seems to me, more humane and compassionate than locking them up. Remember, most interpersonal violence in this country is due to things other than mental illness. The research is clear that if we eliminated mental illness as a cause of violence, it would only be reduced by about five percent.

        And what penal code section requires the DA to try the Daniel Marsh’s of the world as adults? I’m not familiar with that section of the code.

        1. Rich RifkinWDE 73

          Section 1192.7 of the Penal Code. Here is the specific language the requirement relies on:

          SEC. 18. Section 602 of the Welfare and Institutions Code is amended to read:

          602. (b) Any person who is alleged, when he or she was 14 years of age or older, to have committed one of the following offenses shall be prosecuted under the general law in a court of criminal jurisdiction:

          (1) Murder, as described in Section 187 of the Penal Code, if one of the circumstances enumerated in subdivision (a) of Section 190.2 of the Penal Code is alleged by the prosecutor, and the prosecutor alleges that the minor personally killed the victim.

          1. Robert Canning

            The percent of CDCR inmates on psychotropics is about 18% the last time I looked.

            Thanks for the code sections. It seems odd that they reference the Welfare Code. I guess it is because a juvenile.

    2. David Greenwald Post author

      While I made it clear that I questions both the rigidity and the usefulness of the legal standard, my bigger beef here is that you have a case where experts in the field both in the court and that I have talked to disagree with each other on whether or not he met the legal standard, a group of layman could evidently do it in less than an hour. I have a big problem with that. And that is the fault of the jury. They don’t know what they don’t know and that scares me.

      1. Anon

        The problem here is this was a case of a war of the experts. The jury used their common sense and saw right through the distraction put on by the defense – yes it was a purposeful attempt to distract and obfuscate to create reasonable doubt. IMO the jurors saw the situation more clearly and with better insight than the experts. Yes, I am saying the so-called “experts” are not so “expert”. After all, and what you seem to be forgetting, is that the “experts” were PAID for their testimony. The jurors perfectly well understood what the definition of legal insanity was, and determined correctly that Daniel Marsh did not meet that standard because 1) he pre-planned the murder; 2) he tried to evade capture after the murder. Those two facts taken together will almost certainly negate any attempt to try to argue legal insanity every time. It boggles my mind that the DV would find fault with the jury ostensibly because they did not deliberate for the politically correct time, while finding no fault with the actual verdict. This is precisely why we have a jury system of peers – everyday people who look at things from a very practical point of view.

        1. David Greenwald Post author

          I’m sorry, I fundamentally do not buy the notion that a group of laypeople can find the commonsense within an hour in a such a highly complex case. I don’t buy it.

          1. Anon

            Because you are too easily swayed by the notion that paid psychiatric experts know more than lay people.

          2. Don Shor

            I’m not sure what you want here, David. My guess is that they were weighing the evidence about his sanity as the trial went along. That they did much of their ‘deliberating’ on the issue as they listened to the testimony. It is not uncommon for a jury, once the door closes and the foreman is selected, to take a quick poll to see where people stand on the case. If that poll is unanimous from the outset, what more do you want them to do? They can’t ask for any more information. They can’t ask for clarifications. They can ask to have testimony read again, but that’s about it. They have all their evidence, and it is clear to me they were in agreement immediately.
            You focus in your essay on the possible sentencing and outcomes. That wasn’t their task. They may consider those things if they wish, but it isn’t their specific job. Their job was to determine sanity at the time of the action. The sentence, the possible outcome, is the judge’s job.
            So really: if they are in agreement from the outset of this phase of deliberations, and there is nothing more they can bring to the decision in the way of expertise or analysis or perspective, what exactly is it that you want? I found this piece very disrespectful of the jurors. Your notion that they wanted to get back to their lives and not forego any more income is really out of line.

        2. Robert Canning

          Again, your bias against using expert testimony belies the usefulness of it for the trier’s of fact and makes the situation into something it is not. The jury doesn’t have or not have “common sense” – the defense did not provide evidence that was convincing. But this notion that there is something called “common sense” that the jury “has” doesn’t really tell us much about anything.

          1. Anon

            You are arguing the jury doesn’t use their “common sense” to come to a verdict? Really?

            To Don: Spot on!

      2. hpierce

        If the experts who have studied such matters for years cannot agree, then I must assume that the only outcome that you could accept, no matter what the length of deliberation, is a hung jury. After all, if the experts can’t agree…

    3. Elizabeth Bowler

      “What David – and many others – seem really to object to is our legal standard for insanity…”

      I really don’t have any problem with the legal standard for insanity, but I have a big problem with the fact that California does not have a diminished capacity defense thanks to the 1979 Dan White case and the so-called “Twinkie defense”. Because of the outrage over the verdict of voluntary manslaughter, the voters of California overwhelmingly passed a Proposition in 1982 abolishing diminished capacity as a defense, leaving California with only the extremely limited and rigid “insanity” defense for psychiatric cases. Individuals like Talamantes and Marsh are suffering the consequences of the 1982 voter revenge. Unless and until the law changes, we will continue to see many more cases like this.

      1. Anon

        Are you trying to argue diminished capacity? In what way? Daniel had the capacity to pre-plan the murders; he had the capacity to do whatever was necessary to evade capture.

        1. Tia Will

          Anon

          I am happy to address the issue of diminished capacity. What adolescents frequently display is very poor impulse control. This does not mean that they cannot plan, and cannot execute those plans. What it may mean is that they do not have the ability to control their urges in the same way that an adult does. Our society accepts this as the rationale for many limitations based on age. We don’t let 14 year olds drive cars, not because we believe that they could not master the details of how a car works, or maybe even after being taught how , put an engine together.
          We do not let them drive because we do not believe that they do not have the maturity necessary to handle the urge to speed, the judgement to know when another car is to close, or to manage the emotional sense of power that driving gives to some people. We likewise do not allow them to act on other impulses such as drinking or marrying or joining the military. Why ? Because we realize that they do not have the same degree of control over their actions as do adults. I feel that youth actually represents in and of itself a “diminished capacity” for self control. Now add to that the obvious pathology that Daniel experienced and I find it incredible that given his age and his obviously troubled mental state, anyone would have any difficulty understanding how this would constitute
          “diminished capacity”.

          1. Anon

            Dimished capacity: “The diminished capacity plea is based in the belief that certain people, because of mental impairment or disease, are simply incapable of reaching the mental state required to commit a particular crime. In the example of murder and manslaughter, a diminished capacity defense contends that a certain defendant is incapable of intending to cause a death, and therefore must have at most caused such a death recklessly. Thus, a successful plea of diminished capacity in a murder trial would likely result in the charge being reduced to manslaughter.”
            Do you really want to argue that Daniel March was incapable of intending to cause the death of his victims? The evidence does not support that conclusion.

          2. Elizabeth Bowler

            Malice aforethought is the mental state required for murder in the first degree, and yes, it could certainly be argued that because of multiple factors: mental illness, brain damage, underdeveloped brain because of his status as a juvenile, profound debilitating side effects from psychiatric medications; that he could not form the required mental state of malice aforethought.

        2. Elizabeth Bowler

          Diminished capacity refers to the ability to form the necessary mental elements for the crime under consideration. It does not refer to behavior before or after the crime. In the Marsh case, it could be argued that because he was a 15 year old brain damaged juvenile who was inappropriately and improperly prescribed psychiatric medications that were contraindicated both for his age and diagnosis, and that were causing him to have severe psychiatric side effects including intrusive thoughts, agitation, hostility and abnormal mood, that he could not possibly have the necessary mens rea required for the crime of murder in the first degree.

  9. Biddlin

    I am morally disturbed by the prospects for Daniel Marsh. I am sure that the facts of the case are consonant with the jury’s decisions. I feel fairly certain the judge is deeply troubled, at this point. As should have been obvious from the outset, there is no “good” outcome here, save the possibility that some parent, teacher, counselor, pediatrician, social worker, preacher , cop or friend will take the next Daniel’s “symptoms” more seriously and act now, instead of hoping it gets better or just not giving a damn. Some kids slip through the cracks. In some ways, I think Daniel was probably pushed down into them. This case has shown the light on the execrable condition of mental health and family counseling services and the abysmal communication among medical professionals.
    “The jury had to listen to weeks of horrifying and disturbing testimony – which leads us to wonder if there are services available to the jurors for post-traumatic stress.”
    I certainly hope so.
    If, as I suspect, Daniel is without empathy and compassion, due to some native, organic or genetic component, he still was not predestined to commit these or any other crimes. Most people with such a disorder learn coping mechanisms for dealing with their aggravations and aggression and become functioning members of the community. I don’t know how to apply the term “culpability” here, in other than a legal sense. His actions demonstrate that, to a high level, I think.
    Many will be deeply affected whatever the final sentence may be. I most sincerely hope that there is healing for all involved.
    ;>)/

    1. Anon

      You are assuming that there is always some “cure” for a mental defect. Nice thought, but naive IMO. I believe there are probably some mentally ill people who, no matter how much professional and family help is given, are not “curable” nor can they be meaningfully “helped”. I am not implying that we as a society should not try and assist these poor souls. But I do believe society has to accept that mental health services and supportive family cannot necessarily work miracles in every case. And I very much suspect Daniel Marsh is one of those cases, much as Jeffrey Dahmer was, based on what I know of their situations. There are many similarities in each of these two cases.

      1. Tia Will

        Anon

        “You are assuming that there is always some “cure” for a mental defect. ”

        I do not believe that anyone is making this assumption. I think most people posting here are well aware that we have no “cure” for such mental disturbance at this point in time. However, medical knowledge in virtually all areas has expanded rapidly during the last 30 years and there is no way of knowing what progress will be made in Daniels lifetime. I believe that the best outcome would be for Daniel to be confined in the facility most able to address his needs. That would be, according to an expert with experience in both settings ( something all the rest of us lack) a state mental hospital.

  10. Anon

    Tia: “But it is not my reason for believing that there is a strong possibility that he did not know right from wrong at the only time that mattered, namely when he was actually committing the act”. The planning is not relevant and neither is how he felt afterwards or how he feels about the act now. The point is his mental state at the time of the act.”

    The planning is very much relevant in determining whether a defendant is insane at the time s/he killed another human being, as is his/her actions afterward. It is much more difficult to swallow the notion that someone is suddenly insane at the time of a murder absent provocation, if they managed to plan the murder ahead of time, and made every effort to evade capture after the fact.

    I feel as if, on this blog, I am wandering into the land of Alice Through the Looking Glass. The jurors used their common sense, and did not allow expert testimony by the defense to distract them from the clear evidence that this kid knew exactly what he was doing. Do any of you honestly think Daniel Marsh was LEGALLY INSANE at the time of the murders? That he did not know right from wrong, or understand the nature and quality of his acts?

    Also, think about the case of Hinkley, the attempted assassin of President Ronald Reagan. After being placed in a mental facility, he was allowed out on weekends to visit his family unsupervised. When the public found out about it, and raised a huge stink, Hinkley was no longer allowed such visits. But it just goes to show how psychiatrists often make very poor decisions, because they get too wrapped up in sympathy for the patient, and don’t always exercise common sense. Would anyone ever want Daniel Marsh to be let out into society unsupervised? Think it can’t happen if he were sent to a mental institution? Think again.

    1. Robert Canning

      I don’t think it’s a matter of the jury’s “common sense” (whatever that is). The experts are brought in to assist the jury with their deliberations. The prosecution’s experts did and the defense’s did not.

      Psychiatrists and psychologists can make the opposite error of what you suggest – they can lose their empathy for the patient and become too estranged and err on that side of things.

      I have met killers who I would not want out on the street again, and I have met ones who I would let babysit my children. I think it is difficult at this stage of things to predict, as you do, what Daniel will be like in 30+ years.

    2. Tia Will

      Anon

      Interesting that you should reference Alice Through The Looking Glass as that is exactly how I feel about living in a society that decries the lack of compassion that Daniel demonstrated for his victims but then is willing to subject him to a lifetime of the same kind of despicable acts from those who are older and larger than he is. What kind of society chooses to send a boy, not a man into a situation in which he will doubtless experience rape, torture beatings ….. What moral principle brings us to the point where we condemn Daniel for this kind of depravity but then are willing, even eager in some cases to see this inflicted on him ?

      At least we are in agreement that Daniel was deeply disturbed. I haven’t heard anyone posting that he was not ill. How do we defend to ourselves in our minds our own willingness to send a young man who will be as defenseless as were his victims into the barbaric situation of our prisons doing it cooly, dispassionately and with the only reason given being that we are too afraid that at “some point in time” someone “might” decide to let hime out despite the extremely low likely hood of that occurring as expressed by those who actually work in the field. Daniel had certainly lost his moral compass. I am appalled that our community seems to have thrown ours away.

        1. Frankly

          Well, did you listen when your President told you that “government is not a loving institution”?

          And there is not less help these days except for mental health needs. And the reason there is not enough help in that area, is because of all the trillions being spent to help anyone with a hand out.

          1. Tia Will

            Frankly

            ““government is not a loving institution”?”

            I believe that he was making a statement of fact…not a statement of what should or could be. While I do not believe that institutions can experience love ( just as corporations are not people), I do not believe that institutions including the government cannot adopt practices that lead to compassionate outcomes. This should be a priority in designing any process or institution.

      1. tribeUSA

        Yes, although I agree society needs to be protected from him (perhaps lifetime incarceration), this whole thing makes me feel very sad, and I feel bad for Daniel–it appears he did reach out for help several times in the past, but did not find the help he needed. It must be frightening to have horrible thoughts that you can’t control, and out-of-body experiences (presumably of a nightmarish nature for Daniel, though I think for most people that have them, e.g. near-death experiences, out-of-body experiences are usually quite pleasant). I confess to being able to relate to having had thoughts outside of my control during several psyilocibin (magic mushrooms) adventures during & shortly after my undergraduate days; but I just went with the flow of the experiences which were quite pleasant and interesting; including the very strange thoughts and thinking patterns (somewhat dreamlike). Ironically under the influence of such psychedelics, attempts to control thoughts are not only futile but generally lead to bad experiences; you just have to let go! So though my personal experiences were pleasant, I have first hand experience of a (temporary!) shift in brain chemistry that resulted in uncontrollable thoughts; certainly am glad they weren’t nightmarish. I can imagine how frightening it must be to have uncontrollable thoughts that are horrible under ‘ordinary’ consciousness; when you don’t know any way to prevent such episodes from re-occurring in the near future. (Don’t worry about me, I haven’t ingested magic mushrooms in decades!)

  11. Dave Hart

    First of all, I must say I’m grateful to the jurors who had to sit through this horrendous trial.

    I’m a believer in restorative justice and I also have no faith that punishment, per se, helps anyone, offender, victim or society. Revenge is tragic.

    I also don’t think Charles Manson or any of his crew should ever set foot outside of a controlled facility. Not because I want to punish them, but because there is no way to ever know if they would want to “do it again.” When someone does something this horrendous, it goes so far beyond what science can explain that we simply have to put people in a place where it shall not happen again. I think the jury got it as right as they could get it.

    1. Davis Progressive

      i don’t think criticizing is insulting. i’ve talked to a lot of juries in my 30 years as an attorney and there are good ones and bad ones.

  12. Biddlin

    From the Jury Foreman:
    “We were incredibly impressed with the entire system, starting with Judge Reed, both sets of lawyers — we thought they did a fantastic job here…All those groups worked together, I think, to provide a great set of evidence for us and make our decision easier…”
    ;>)/

    1. Davis Progressive

      that proves next to nothing. he was impressed with the lawyers, but that doesn’t mean they did their job properly. if i were a defense attorney – as i once was – i’d not be happy for a 50 minute verdict, half of which is spent filling out the paperwork.

        1. Davis Progressive

          i guess. let me know if you’re willing to let your neighbor operate on you, fly your plane, fill your teeth etc.

          i went to law school and have practiced law for over 30 years. the psychologists have to get their phd, the psychiatrists get their medical degree. to act like a jury of lay people can know better is ludicrous.

          1. Biddlin

            To act like anyone can “know” is ludicrous. The professionals are pretty clear on that. that jury of”lay people” contained at least one UCD grad(the foreman) and I would imagine others with degrees and certifications. The three juries on which I’ve served have had a very broad section of the community represented, including some very highly educated retirees. Obviously your practice doesn’t reflect what my experience does. You don’t like the system, do what everyone else in Davis does and start an initiative campaign to change it, though I’d advise being a lot more respectful of your neighbours IQ and judgement, when you’re trying to convince them to sign your petition. Good luck with abolishing a system that is envied by most of the people in this world, but Davisites are always ahead of the curve, aren’t they? lol
            By the way, I fly with my neighbour out of Sac Exec,literally across the road from me, often and lived next door to my dentist for twenty years, so I must wonder what kind of nefarious neighbours you have that you distrust so much.
            ;>)/

          2. Frankly

            Good post Biddlin. I think our friend DP might have been a bit of a fish out of water working as a Deputy DA… seems he is more wired as a defense attorney.

            I have sat on five juries over the last 30 years and you are correct… in each case there was a very broad spectrum of people from difference backgrounds, education, socioeconomic, gender, age… you name it.

            While sitting and listening to testimony and evidence you are moving to a point of decision. Only when there are jurors that are not moved to the point of decision, or when they are moved to points of conflicting decisions, will there be a need for lengthy deliberations.

            I bet you could put 12 PHDs in the room instead of 12 lay people and maybe it would have taken them longer to deliberate, but my money would be on there being an increased probability of the final outcome being wrong.

          3. Davis Progressive

            well frankly, i’m not a deputy da and never have been. i spent the first 20 years of my career as a defense attorney. i’m not going to get specific about what i do at the attorney general’s office, but leave it at the idea that i’m not a typical prosecutor and that’s by design.

  13. Frankly

    While I have not been a journey, I have talked to a lot of jurors – hundreds – sometimes the jury is very dedicated, sits down, goes over the facts, wants to get it right, even when I disagree with the verdict I can respect it. Other times, I have heard jurors complain that the other jurors didn’t want to discuss things and just wanted to render the most convenient verdict and go home.

    Certainly you will get a difference mix of jurors each time. But the vetting process gives equal power to each side to select people well suited for participation. The judge too helps ensure a reasonable jury pool and keeps an eye on them during proceedings.

    Those jurors that are not yet decided and want to debate points and facts cannot be bullied by other jurors.

    Deliberations start with the selection of a foreman/woman and typically before any discussions take place there is a roll-call vote to see where the collective and individual opinions are. Do you think he is guilty or not guilty or are you still undecided? My guess is that the initial poll was unanimous. The same was probably true on the question of sanity.

    These 13 people sat through all the testimony and heard all the evidence. The prosecution did its job. The defense did its job. Apparently the “right decision” was more clear in the heads of these jurors than it was in your head. Maybe if you had been one of the jurors you would have been the one to force more discussion. Or maybe your head would have been more clear and you would have agreed with their majority opinion.

    But here is another point you seem to gloss over. More discussion does not equal better optimize result. In fact, it is just as likely that more discussion ends up frustrating jurors and injects stronger personal emotions into their opinions.

    A 30 minute correct decision is always better than a 3 or 30-day wrong decision. And a 3-day or 30-day right decision is not any better than a 30-minute right decision… in fact, in consideration of time-value-money, the 30-minute right decision should be the judicial gold standard.

  14. Tia Will

    Anon

    “Common sense was not at play in regard to determining whether someone was possessed by evil spirits because of epilepsy, but superstition.

    “Common sense is a basic ability to perceive, understand, and judge things, which is shared by (“common to”) nearly all people, and can be reasonably expected of nearly all people without any need for debate”

    Your definitions of “common sense” are based on the popular beliefs of the majority of people at any given time. This says nothing at all about whether or not those beliefs are based on superstition, religious faith, scientific evidence or any combination thereof. The definition also says nothing about whether the belief in question corresponds in any way to reality, whether it would hold up cross culturally, or whether the belief will hold up over time as more scientific knowledge accumulates. There is no contradiction whatsoever in saying that believing that people with epilepsy were possessed was based on superstition or was a manifestation of the “common sense” of the time.

    Today’s “common sense” may very well become tomorrow’s “superstition” as we learn more about the functioning of the human brain.

  15. Tia Will

    “Evidence that Daniel enjoyed murdering”

    I had another thought about why Daniels “enjoyment” of the event should not be interpreted as providing evidence that this was deliberate on his part, or that he was “sane” or that it proves malice. However, not understanding the point, unless specifically discussed and explained to the jury would unduly bias them against him. I think that this point will speak to both the potential lack of effective defense and the value of thoughtful deliberation amongst jurors.

    It seems clear from testimony given that Daniel was in a lot of psychologic pain for which he was seeking help, having directly expressed a desire to get better.
    Many people, children, adolescents and adults who are in pain will attempt self medication or techniques to reduce that pain. We are all familiar with this reason for the over use of alcohol, the over use of prescription pain killers, and use of illegal drugs. However, there are some means of attempted pain reduction that all may not be aware of and scenarios in which pain in itself may be enough to make a person perform acts outside their ability to control. I would like to present a couple.

    1) Most of us in the medical or allied profession have met patients who inflict self injury through cutting. While the cutting can be anywhere on the body, in young women it is typically down the forearms in rows. Row after row of shallow scars.
    One medical rationale for this bizarre behavior is that it may cause the release of endorphins thus producing reduction in pain. This would seem to be supported by the reason presented by the many, many young women I have spoken with who have done this. Their stated reason for the “cutting” is always some variant of trying to feel better. Some will be highly sophisticated like the young woman who told me that she was “trying to release endorphins but it didn’t work so I stopped” to the more typical “I just wanted to feel better”. Typically the pain that they are trying to escape is psychological, not physical. In the testimony provided, Daniel provided many clues that his behaviors ( drugs, alcohol, video game playing, and viewing violent or gruesome sites on the internet) were likely attempts to “feel better”. Just because he could explain them articulately does not mean that he was in control of the behavior.

    2. A word about “self control” and impulsivity. I provide an example that will resonate with many women who have given birth. As a doctor, I have been hit and kicked many times in my career, sometimes hard enough to bruise. We would probably all agree that it is “wrong” to hit or kick the doctor that is trying to help you and that virtually all our patients would “know” that it is wrong.
    But circumstances matter. In the setting of Labor and Delivery, we encounter many, many women whose pain makes their physical actions beyond their control until it can be lessened either through relaxation techniques or medication. Uncontrolled arm and leg movements not infrequently collide with the unwary doctor or nurse who doesn’t see it coming or doesn’t move fast enough. We could probably all agree that this would represent not insanity, but clearly diminished capacity. Unfortunately our law does not allow for this defense. This is a fault of the law, not of the jurors.

    So how does this relate to the issue of deliberation. To me it matters because while the jurors all may have made their individual decisions, they likely made them for different reasons. Part of the value of deliberation is to see things through the eyes of others who have heard the same evidence. I sit on a major decision making team of 10 individuals. It has not been an unusual occurrence that we all come in to a meeting thinking that we are backing a certain decision but frequently we have different reasons. In taking the opportunity to discuss our understanding and reasoning it has been fairly common that someone else sees a flaw in our reasoning. This will then lead to further discussion and allows for the possibility ,which has happened on occasion, that we end up deciding in a completely different direction that we first thought at the beginning of the meeting. There is often value in taking the time for full reflection and discussion thus arriving at a completely different decision than would have been reached if we had simply “straw polled” at the beginning of the meeting. While I am not arguing for a minimum acceptable time limit, I do think that a jury deciding the life long fate of any individual should engage in a process of careful deliberation even if they “think” they are in full agreement.
    I have no idea if this was done to the complete satisfaction of all jurors or not, but I do believe that it should have been.

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