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November 18, 2005

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Kirston Fortune, UT Law Communications, (512) 471.7330.

COMMENTARY

Dix: Texas needs to change how it defines insanity

George E. Dix, UNIVERSITY OF TEXAS SCHOOL OF LAW
Published with the author's permission;
Austin American-Statesman, November 18, 2005

Texas must again confront whether Andrea Yates is criminally responsible for the deaths of her five children. This second look at her case should make clear that the Texas Legislature needs to clarify the standard for determining whether the Texas mother and other mentally ill people are not guilty by reason of insanity.

In the 1980s, Texas narrowed the insanity defense by barring defendants from seeking acquittal because their mental illnesses somehow prevented them from controlling themselves. Few responsible experts advocate a return to this easily abused approach.

Texas now, like many states, requires a defendant claiming insanity to prove to a jury he or she did not, at the time of the crime, "know" that the conduct constituting the crime was "wrong." Unlike many states, we do not tell juries what the law means by "know" or "wrong."

No one questions that Yates was seriously mentally ill when she drowned her children in the bathtub of her Houston-area home. Her illness dramatically affected how she perceived this horrific act. Almost certainly, she psychotically believed that her children would suffer eternal damnation unless she quickly ended their young lives. Her belief that she was ensuring her children's salvation prevented her from having a meaningful appreciation of just how incredibly morally wrong her actions actually were.

The jury in Yates' first trial, however, undoubtedly concluded that she understood in some limited sense that authorities would regard her actions as legally wrong. She took precautions against being interrupted as she carried out her plan. She notified authorities when she completed it.

Did she know what she did was wrong? This depends on how one defines "know" and "wrong." Yet we demanded that Yates' jury resolve her case without guiding them on what the law means by these critical terms.

This uncertainty permitted Dr. Park Dietz, a skillful and appealing witness, to adopt his own version of what the terms mean. On that basis, he persuasively but inaccurately assured the jury that despite her illness, Yates knew her actions were wrong and so was legally sane.

This abuse of the imprecise insanity standard occurs in many of the relatively few criminal trials in which insanity is raised. It distorts the trials, and as a result the insanity defense cannot serve its intended purpose.

The insanity defense should identify those people who have done terrible things but under such a misunderstanding of the surrounding circumstances that they were not morally to blame for having done so.

We can and do protect ourselves from these people by imposing treatment and either confinement or supervision until - and if - they are no longer dangerous. We do not, however, label them simply guilty of morally reprehensible criminal conduct.

If the terms "know" and "wrong" are defined as Dietz was permitted to define them, the insanity defense is simply meaningless. Any jury that takes the legal standard seriously will have to find the defendant guilty even when there is overwhelming evidence that the defendant lacked moral responsibility for the conduct.

In the last legislative session, a number of lawyers, mental health professionals and concerned citizens urged Texas lawmakers to consider a simple clarification of the legal standard for insanity. "Know" would be changed to "appreciate." "Wrong" would be defined as either legally wrong or morally wrong.

This change would not make insanity cases like Yates simple ones. But it would tell juries that they must not reject defendants' claims of insanity simply because the defendants retained some minimal ability to intellectually understand that their conduct was against the law.

If Yates were to be retried under the Texas standard as it should be amended, the instructions given to jurors would focus their attention on the real - although difficult - issue: Did Yates, as result of her serious mental illness, have such a distorted perception of the meaning of her conduct that she did not meaningfully appreciate that it was morally wrong?

Instead, Yates will be retried for a technical reason: Dietz inaccurately told jurors that the TV show "Law & Order" had shown an episode that might have suggested to Yates that she could kill her children but escape punishment by pretending to be insane.

The real error in Yates' first trial, however, was the use of the state's vague insanity standard. This permitted Dietz to testify in a way that deflected the jurors' attention from the real but difficult issue in the case.

This defect undoubtedly distorts the trials of numerous other defendants. Most of them are less high profile than Yates. We need to do justice for her, but we also cannot forget less visible defendants.

The last Legislature inexplicably refused to acknowledge that Yates' conviction demanded reform of Texas' insanity test. But our need to again consider her case clearly shows we must adopt the reforms that lawmakers rejected out of hand.

Dix teaches Texas criminal law and procedure at The University of Texas at Austin.