How an alcoholism defense works under the ALI insanity test

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How an Alcoholism Defense Works Under the AL1 Insanity Test Herbert Fingarette*

To what extent is a chronic alcoholic criminally responsible for an offense committed while drunk? In this paper I am specifically concerned with a much narrower and more practical version of this question, one of special current interest: What are the prospects under the AL1 Model Penal Code insanity test for a successful insanity defense based primarily on chronic alcoholism?’ Even more specifically, I will examine this question with detailed reference to a recent trial on the issue: Peo. v. Duffy. 2 My object is to place the facts about alcoholism, in their relation to the legal criteria of criminal insanity, into the context of actual trial process. My answer - based not only on the trial outcome but on analysis of its general implications - is that, if genuinely and well contested, the prospects of such a defense succeeding are systematically poor. This answer goes counter to common informal opinion. Commentators have hailed the advent of the AL1 test as promising a new flexibility and hospitableness toward defenses based on impairment of volition because of alcoholism, other addictions, and even certain “personality disorders” such as sexual psy-

*Professor of Philosophy, University of California, Santa Barbara, California 93106. I wish to express my sincerest gratitude to Mr. Craig A. Smith, Deputy District Attorney in the County of Santa Barbara, California, for his cooperation, aid, patience, and insights extended to me during the period of trial preparation, the trial itself, and in subsequent “post mortems.” I also wish to thank Mr. Patrick L. McMahon, judge pro tern in People Y. Duffv; subsequent to the trial he provided me with very helpful discussion of the trial issues and commented on a preliminary draft of this paper. The jury members whom I interviewed gave freely of their time, patience, and cooperation, and these interviews added an absolutely essential dimension to this paper. Mr. Jerry D. Whatley, the attorney for the defense, was kind enough to give me comment on the preliminary draft of this paper. Leslie Fingarette was my assistant sina qua non throughout: my alter ego present throughout the trial, recording secretary at the trial and in the jury interviews, typist, editor, and sounding board. Of course none of these persons is responsible for the content of the paper as presented here; it represents my own understanding of the facts, issues, and their significance. ’ I have elsewhere examined other specific versions of the general question. See: Fingarette, ‘The Perils of Powell: In Search of a Factual Foundation for the ‘Disease Concept of Alcoholism,“’ 83 HARVARD LAW REVIEW 793 (1970); Fingarette, “Addiction and Criminal Responsibility,” 84 YALE LAW JOURNAL 413 (1975); Fingarette and Hasse, MENTAL DISABILITIES AND CRIMINAL RESPONSIBILITY, University of California Press, 1979. In this paper I am not concerned, for example, with these other defenses based on “involuntariness,” on diminished mental capacity, or on absence of specific intent. I am here only concerned with the completely exculpatory defense based on insanity as defined in the American Law Institute Model Penal Code, Sec. 4.01 (1962) Proposed Official Draft, and as adopted in Drew (see Note 5, infra). ‘Number 125326, March 1979, Superior Court of California, Santa Barbara County. 299

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chopathy.3 This expectation of increased promise of success under the AL1 test was certainly evident in California this past year4’ when the AL1 test was substituted for M’Naghten. ’ One’s impulse may well be to search the literature to see what the actual history of the matter in other jurisdictions has been: After all, there is no dearth of criminal offenses committed by alcoholics and drug addicts, and the ALI insanity test is into its second decade of fairly widespread adoption.6 Moreover the insanity plea ought to have increasing attractiveness because of the increasing limitations on the length of involuntary commitment for the mentally i11.7 Surprisingly, however, there is little in print directly on the specific topic at issue in this paper - alcoholism as a mental disease establishing insanity. And there is nothing that examines the issue in depth and in relation to the actualities of the criminal trial, as is done in the present paper. With this dearth of information in mind, and with a sense of the variety and importance of the questions for the scholar, the practising lawyer, and the forensic psychiatrist, I observed and actively studied the trial of Peo. v. Duffy in March, 1979.’ Duffy was charged with drunk driving and also driving without a valid driver’s license. He admitted the offenses but entered a plea of insanity on the basis of his chronic alcoholism. The case was perhaps the first of its kind to come to trial in California since the decision in Drew, in which the California Supreme Court had abandoned M’Naghten and adopted the AL1 test.’

‘See, for example, spanning a decade, Jones, S. H., “Chronic Alcoholism as a Factor in Criminal Responsibility,” 42 CONNECTICUT BAR JOURNAL 446, 460-161 (1968); Comment, “Criminal Law: Alcoholism as a Defense to Crime,” 61 MINNESOTA LAW REVIEW 901.914-915 (1977). And see Note 4, infra. ‘At a seminar sponsored by Forensic Trial Seminar in Los Angeles on February 3, 1979, a panel of experienced trial attorneys, jurists, legal scholars and forensic psychiatrists, this new breadth of opportunity under the ALI test was a repeated major theme. One panelist predicted, for this and other reasons, a “river of litigation.” ‘In Peo. v. Drew, 22 Cal. 3d 333 (1978). The form of the AL1 test adopted by the California Supreme Court was: “A person is legally insane if, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. The California law had not previously expanded M’Naghten to include a provision for “irresistible impulse.” Consequently the adoption of the AL1 formula significantly expanded the scope of insanity by its reference to “capacity . . to conform his conduct. . .” 6The cases in which the AL1 insanity test was adopted are: U.S. v. Brawner, 471 F. 2d 969 (D.C. Cir. 1972), Wade v. U.S., 426 F. 2d 64 (9th Cir. 1970) (en bane), Blake v. U.S., 407 F. 2d 908 (5th Cir. 1969) (en bane), U.S. v. Smith, 404 F. 2d 720 (6th Cir. 1968). U.S. v. Chandler, 393 F. 2d 920 (4th Cir. 1968) (en bane), U.S. v. Shapiro, 383 F. 2d 680 (7th Cir. 1967) (en bane), U.S. v. Feeman, 357 F. 2d 606 (2d Cir. 1966), Wion v. U.S., 325 F. 2d 420 (10th Cir. 1963), Bethea v. U.S.. 365 A. 2d 64 (D.C. 1976), State v. Pendry, 227 S.E. 2d 210 (w. Va. 1976). Schade v. State, 512 P. 2d 907 (Alaska 1973) State v. White, 456 P. 2d 797 (Idaho 1969), Hill v. State, 251 N.E. 2d 429(Ind. 1969) Commonwealth v. McHoul, 226 N.E. 2d 556 (Mass. 1967), State v. Shoffner, 143 N.W. 2d 458 (Wis. 1966), Terry v. Commonwealth,. 371 S.W. 2d 862 (Ky. 1963). ‘For a review of materials on this topic up to about 1974, see Brooks, A., LAW, PSYCHIATRY, AND THE MENTAL HEALTH SYSTEM, Little, Brown & Co., 1974, pp. 367-399. Current litigation and legislation on the topic are covered in the MENTAL DISABILITY REPORTER published bimonthly by the American Bar Assn. “See Note 2, supra. ‘See Note 5, supra.

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Because the trial proceeded under new fundamental law, the professional participants were alert to the possibilities and ready to deal in fundamentals. I was personally able to observe almost all of the trial, and I received detailed reports on the brief segments I missed. I consulted informally and at some length with the Prosecutor before the trial, during the trial, and after the trial. I spoke briefly with the judge after the trial. Shortly after the trial, I interviewed fully and at substantial length the five jurors, including the forewoman, who were vocal and influential, and who represented the opposing viewpoints during the deliberations.” Duffy was found sane. I want to bring out fundamental strategies and problems faced by counsel on both sides, and show why the jury’s verdict was, in the very nature of such a case, the outcome that one should typically expect in a well conducted trial where the issue is chronic alcoholism uncomplicated by other independent mental disorders or highly special circumstances that introduce issues extraneous to alcoholism per se. Of course the “pure” case is rarely found; and a certain amount of decent luck with the jury selection or development of testimony is always in order. But my thesis that the Prosecution should win is meant in the sense that in the ideally conducted trial on this issue it has the facts and the law in its favor, and that in a rather broad spectrum of real-life cases that would come to trial it has a very good prospect of winning. The odds are systematically with the prosecution, though of course the “breaks” might happen to go against it. A. The Law and the Facts in Summary In essence, an AL1 insanity defense based on chronic alcoholism is on its face plausible and can be simply expressed as follows: Alcoholism, or drug dependence, is a medically recognized disease. It is, specifically, a disease that affects the mind, and even more particularly the will. The alcoholic frequently - and uncontrollably - drinks to the point of -severe intoxication. Intoxication makes the person mentally befuddled, lacking capacity for prudent judgment or even for understanding what is going on, and the drunken person may also be so beset by desires or impulses as to lack adequate capacity to inhibit them. This can be roughly paraphrased in the AL1 language: It is as a result of mental disease that the alcoholic offender lacks substantial capacity to appreciate the criminality (or wrongfulness) of the act, or lacks substantial capacity to con-

“The Prosecutor was Craig A. Smith, Deputy District Attorney. Patiick L. McMahon was judge pro tempore. Jerry D. Whatley was Defense counsel. In assessing the significance of this case as a useful portent, it may be helpful to note that the Defense counsel is a highly experienced trial lawyer, and the judge pro tern is an attorney responsible for the research assistance to the bench of the Superior Court in Santa Barbara. The Prosecutor had not ever before tried a case in which psychiatric-testimony and the insanity issue were central. The jury consisted of 8 women and 4 men. In terms of social-occupational status they could be characterized as follows: fireman, PBX operator, clerk-typist, department store salesperson, employee in soft drink beverage machine company, accountant, executive’s secretary, college student in management training in a drug store chain, advertising writer, wife of an administrative officer in a university, wife of a workmen’s compensation judge, housewife whose acquaintances and relations meluded a number of attorneys.

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form conduct to the requirements of law. And this, under the AL1 test, is insanity. Such rough and sweeping argument needs to be tailored more precisely. The judge in Duffv gave the jury at the very outset of the trial an elaborate set of instructions on legal insanity, J’ these were based on the AL1 test as adapted to a defense based on chronic alcoholism. The principal elements of these lengthy instructions can be synthesized into a single complex formula. The Defense had the burden of proving, by a preponderance of the evidence, that the conditions fulfilling this formula existed. The judge informed the jury that defendant was legally insane at the time of offense : I. a. If he had a temporary or permanent mental disease or defect, b. And if this mental disease or defect was caused by the long continued use of alcohol, c. And if such mental disease or defect was settled, i.e., was not merely the temporary result of recent use of alcohol but existed even when the recent effects of alcohol had worn off, II. a. And if this settled mental disease results in b. A lack of substantial capacity, when committing the offense, either: (1) to appreciate the criminality of his conduct, or (2) to conform his conduct to the requirements of law. It may be reported at once that the Prosecution stressed the requirement that all the major elements in this complex definition Ia, b, c, IIa, b - be conjointly present. i2 It is a notable fact - indeed it is to me one of the most notable facts I have to report - that the jury in its deliberations did not lose sight of the heavy and complex logical burden on the Defense; they laid out what they saw as the main elements of it on the blackboard,13 tabulated the relevant testimony under the headings, checked for conjoint presence of all - or as one juror put it, “all the ‘ands’ ” - and they explicitly held the Defense to the burden of proof. It was against this background of legal definition presented by the judge to the jury at the outset of the trial that the jury then heard the testimony. Since the offenses had been admitted, the trial testimony was entirely addressed to the insanity issue.i4 ‘iThe judge’s jury instructions on insanity are reproduced verbatim in the Appendix to this paper. The elaboration of the ALI concepts to apply to alcoholism are essentially drawn from Peo. v. Kelly, 10 mental disease due to Cal. 3d 565 (1974). The essential ideas in Kelly - that there must be a “settled” long continued use of alcohol - are not pecubar to California but are quite widely recognized. See, e.g., Annotation, 8 A.L.R. 3d 1236,1265-1268. “Though the judge included the standard, unadorned ALI instruction on insanity, the Defense case rested on the alcoholism issue, and so the elaborated version of ALI as applied to alcoholism was for practical purposes what the jury used. ‘“The jury’s analysis was not exactly as I have outlined the concepts here. I never did see or learn exactly the wording and structure of their blackboard outline. But from the oral reports I concluded that they had in fact a reasonably adequate understanding of what the main elements and their interrelations were. If there was some fuzziness on this score, I would say it was in connection with the ambiguities discussed in the text at the beginning of Section C infra. “California law provides for a separate trial on the insanity issue, and since Duffy had admitted committing the offenses, there was no trial on the guilt issue.

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Duffy had been a heavy drinker for the past 25 or 30 years, being at present 45 years old. He had a “rap sheet” with about 20 alcohol-related arrests, this being his fourth arrest over a period of four years for drunk driving. He had been on Probation, had been in jail, in alcohol rehabilitation residences; and except when under some such restrictive conditions, he was usually seen by his acquaintances either drunk or acutely sick from prior drinking. There was never any doubt in anyone’s mind -jury included - that Duffy was a severe chronic alcoholic. A clinical psychologist stated that Duffy suffered from alchohol-caused permanent brain damage. This psychologist, and two of the psychiatrists who testified, emphasized Duffy’s impaired memory and impaired reasoning ability. One of these psychiatrists was emphatic about labelling these impairments as “dementia,” a condition diagnostic of alcoholism. Duffy was also diagnosed as having a “passive-dependent, passive-aggressive personality disorder.” On the other hand, the third psychiatrist, called to testify by the Prosecution, said Duffy was not mentally disordered when sober, though possibly “functionally psychotic” when drunk. The two psychiatrists testifying for Defense said that Duffy had poor judgment, and could not control his drinking because his free will was “inoperative” in that regard. But the third psychiatrist said that Duffy when sober had adequate judgment, and had ability to exercise self-control (though with difficulty) at least in regard to taking the “first drink.” This psychiatrist’s opinion was that, under the court’s dehnitions, Duffy was legally sane. The other two psychiatrists were firmly of the contrary opinion. Duffy was owner or partner in several businesses relating to construction and real estate, and was apparently comfortably off for funds. His driver’s license had been suspended for prior drunk driving offenses; when he was sober he never drove but instead arranged to be driven when necessary. In the early evening of the day of his arrest, Duffy had been at his business partner’s house. She testified that in the midst of heating himself some stew he became angry (for reasons she never specified), stormed out of the house, and sat in a car parked a short distance away. After sitting there angrily shouting to himself for about a half hour (her guess-timate based on personal observation of only a few moments), he and the car were gone. At midnight he was stopped by a police officer who saw him driving about 10 miles an hour, and weaving. Duffy saw the officer’s red light and stopped in the middle of an intersection, then Duffy pulled over to a curb. He urged the officer to forget the whole thing, arguing that he was only a couple of blocks from home, that he would willingly leave the car parked where it was and walk the rest of the way home. Later, during interrogation at the police station, Duffy was asked whether he’d known he was driving while drunk and without a valid license. He His blood alcohol answered, “Why. do you think I was driving so carefully?” level was .30. B. Did Duffy Have a Settled Mental Disease or Defect Caused by Long-Continued Use of Alcohol? Since there was never any question about Duffy’s long continued use of alcohol, the question remaining - so far as Part I of the insanity test is concerned -

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was whether this drinking had caused Duffy to have a settled mental disease or defect. Obviously relevant to this question, and equally obviously pointing toward an affirmative answer, was the diagnosis that Duffy was a severe alcoholic, and the testimony from a majority of the experts that he was suffering dementia, brain damage, and personality disorder, that his memory and verbal reasoning were significantly impaired, and that his will was inoperative in relation to drinking. Such testimony, in its legally relevant respects, is what one can expect the Defense to produce where the defense is based solidly, and primarily, on chronic alcoholism. Here, as in many other legally relevant respects, Duffy’s case will be found to be typical, and hence a good model from which to learn about the prospects of such a defense. At this point we need to ask: What exactly did the Defense mean to propose as the “settled mental disease?” We seem to have an embarassment of riches. It is interesting that the exact nature of the legally relevant disease was never clearly resolved in the collective mind of the Duffv jury. This vagueness may have resulted from conscious strategy of the Defense; I do not know. There are, however, potential advantages to such vagueness, which can be summarized in this way: (1) Since there was testimony to the presence of several standardly diagnosable mental disorders, the overall impression that Duffy was indeed mentally sick is reenforced. This may leave the jury with the impression that to ask for further definition or to question the existence of mental disease in the face of such riches is to split hairs. (2) The brain damage diagnosis supports the claim of “settledness”; but if unhappily for the Defense the credibility of the claim of brain damage and dementia is weakened, there remain available the other diagnoses that suggest continuing disease - alcoholism and personality disorder. (3) If the personality disorder claim seems weak, there remains the alcoholism claim. (4) If the “alcoholism” claim seems too intangible or is otherwise challenged insofar as it is supposed to be a “settled mental disease,” the permanent brain damage claim seems to weaken such a challenge. There is of course a certain vicious circularity in all this, but so long as the issue is left vague, the Defense may think that better than putting all its eggs in one basket is the hope that the cumulative impression of all the diagnoses will overcome the logical gaps left by any or all the individual diagnoses. Furthermore, were the Defense to sharply define the issue in terms of “alcoholism” as the settled mental disease, this would leave it more plainly vulnerable to an expectable line of Prosecution argument against that idea, a line of argument that will be discussed shortly. The only person who did more closely define the issue as to the specific nature of the mental disease was the judge. He focussed attention, naturally enough, on “alcoholism.” He did this in effect in his reply to a question put to him by the jury halfway through their deliberations. To their question, “Is there a legal definition of “mental disease?“, he replied: Chronic alcoholism may . . . amount to a mental disease or defect. Considerable expert testimony was presented indicating that alcoholism is a mental disease or defect. The law provides no all encompass-

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ing definition of mental disease or defect to rely upon expert opinions.”

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This response almost seems to be a syllogism delivering the issue to the Defense, but, in the upshot, the jury was more impressed with its authority to decide than it was with the apparent implication that in making the decision they were to rely upon the experts. The jury’s attitude here is no accident; it connects up with their eventual reluctance for a variety of reasons to give primacy to the experts’ opinions. The Prosecution relied on three basic strategies to defeat the Defense claim that there was “settled mental disease.” Each of these strategies is in the nature of things likely to be available to any Prosecutor in a case of this type. Each in its way had a decisive impact on the Duffv jury, and is likely to do so with any thoughtful jury.

The First Line of Attack on ‘Mental Disease”. Duffys Behavior When Alcohol-Free The Defense had emphasized the overall impression produced by Duffy’s daily behavior and life-patterns: hopeless drunkenness, long since out of control. The Prosecutor, however, focussed on the detail of specific situations or on careful analysis of certain aspects of Duffy’s life-patterns. On such close examination, the testimony seemed to reveal a person who, when alcohol free, had for practical purposes an essentially intact mind and control over his drinking. Thus Duffy turned up alcohol free, or at least not drunk, for most of his interviews and for his testing. The clinical reports of his comportment, and the more everyday language characterizations of him by these experts, portrayed a man who showed at the time no gross signs of mental disorder, no clinically confirmable brain damage or dementia. He cooperated adequately, and he gave each interviewer a fairly detailed life-history, which to each seemed credible.16 Similar testimony as to his mental condition when alcohol free was received in connection with other situations in the past few years. That he was, even when sober, a person with a quick temper, often irritable, inclined to “take the easy way out,” was generally agreed. All this, of course, strongly suggests - at least on its face - the absence of settled mental disease, that is, absence of mental disorder after the effects of recent use of alcohol had worn off. “See Appendix, section B. This statement to the jury was twice read to the jury by the judge, once at the outset of his response, and then immediately again so that they would have adequate opportunity to understand it. I6 It should be noted that the Prosecution’s development of this kind of testimony amounts as a practical matter to getting the Defense psychiatrists to testify also for the Prosecution. Even though they said Duffy was insane, their testimony that he was rational in the interviews was powerful evidence that when sober he was nor mentally disordered. This implies that even had the Prosecution faced unanimous expert opinion in favor of insanity, it could have effectively turned the authority of the experts against the “insanity” being “settled” by focussing on what the psychiatrists actually saw, as against their conclusory inferences.

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Of course the Defense will produce expert opinion of a more medical-theoretical kind to buttress the thesis that there is mental disease at work even at moments when the alcoholic shows no clinically manifest signs. But this reliance on medical doctrine, theory, and inference produced its own problems for the Defense, as we shall see. We can pause to note here that this evidence of the alcoholic’s adequate coping ability when alcohol free is quite typical of what the Prosecution can be expected to produce where the defense is based primarily on chronic alcoholism, and where there is no other independently identifiable mental disorder such as schizophrenia. Even though alcoholics have difficulties, crises, disruptions in their life, by far the preponderance of alcoholics maintain occupational and family roles. This means that at least a goodly proportion of the time they are coping with life with at least minimal adequacy. Often they are undetected as being chronic alcoholics by their associates or even by examining physicians.17 There may be some mental deficit even when sober, and this may in various ways lower the quality of life; but this does not preclude minimally adequate ability to manage ordinary and familiar tasks. What of the distinctive feature of alcoholism - the impairment of will, or “loss of control” over drinking? Isn’t this persuasive as to the existence of mental disease even when alcohol free? Again the Prosecution asked the jury to give closer inspection to specific situations and to details of behavior. A number of these, closely examined, seemed to belie the global impression of uncontrolled drinking and the expert opinions affirming this lack of control. Typical of the testimony was: (1) The report of the Probation officer that Duffy came to the scheduled probation interviews showing no evidence of being under the influence; (2) the reports that Duffy turned up sober, or at least not drunk, for a number of his inter-

“It has been reported that about 5 percent of alcoholics are derelicts, and of course not all skid-row derelicts are alcoholics. Rouse, B.A. and J.A. Ewing, editors, DRINKING, Nelson-Hall, 1978, Ch. 18 at p. 359. Follman summarizes available statistics to the effect that the incidence of alcoholism rises as one goes up the scale of management and executive positions, that about half the alcoholics are employed workers in industry, that in a variety of major industries and services anywhere from 4 to 10 per cent are alcoholics, that about 6 percent of federal employees are alcoholics. Follman, J.F., ALCOHOLICS AND BUSINESS, American Management Assns., 1976, pp. 78-80. The latest report of federal Alcohol, Drug Abuse and Mental Health Administration estimates that about 10 per cent of the adult male population in the U.S. are “problem drinkers” (including alcoholics), and probably more than 3 per cent of the adult women. About 19 per cent of the 14-17 year old age group are problem drinkers, though the pattern tends to differ from that of the adult groups. (p. 8) The same report reviews the veritable explosion of programs for dealing with employee-alcoholics in both the private business sector and in the public employee sector. (Ch. X). ALCOHOL AND HEALTH, Third Special, Report to the U.S. Congress, June 1978, U.S. Dept. of Health, Education and Welfare, U.S. Govt. Printing Office. All these statistics are imprecise, but the general drift is clear enough in relation to the thesis of the text above: By far the great preponderance of alcoholics maintain relevant social and occupational roles; that is, they are not socially and occupational incompetents alienated from their otherwise to be expected social context. With respect to physicians’ misdiagnoses, see the results of the study by R.W. Jones and A.R. Helrich that suggests the possibility that “an astonishing number of alcoholics are being seen by physicians and treated for other of Alcoholism by Physidiseases or symptoms, but are not being recognized as alcoholics. ” “Treatment cians in Private Practice, A National Survey.” 33 QUARTERLY JOURNAL OF STUDIES ON ALCOHOLISM 117, 120 (1972).

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views with the experts in this trial; (3) the report that Duffy, when required by Probation to do so, took Antabuse regularly for several months, and drank no alcohol during that period; (4) the reports that for varying stretches of time Duffy lived in alcoholism rehabilitation residences and obeyed the rules, including the rule of complete abstention. In all these cases Duffy had an intelligible reason to control his drinking, and he did. And equally relevant was the testimony that on a number of occasions Duffy’s beginning to drink coincided with his having become very angry at someone or something, or his feeling physically unwell and believing (correctly) that a drink or two would make him feel better, or simply his belief that he “could get away with it,” i.e., could drink and yet escape getting into any difficulties over it. Such testimony strongly suggested that when he really wanted to, when his comfort, convenience, or liberty were obviously at stake, he controlled his drinking or refrained from drinking as circumstance suggested. Again we should take note that this pattern of behavioral evidence bearing on “loss of control” is typical of what is reported in the recent literature and what may be expected in the case of a chronic alcoholic.‘s That is, the so-called “loss of control” turns out in the actual detail of conduct not to be an openand-shut affair. There will almost always be available a good deal of evidence of occasions where the alcoholic either showed control of drinking, doing so for intelligible reasons, or else started to drink where, again, the motivation seems intelligible. What such evidence works against is the idea of a “disease” that involves some almost mechanical and automatic “trigger” that is beyond the meaningful control of the mind and will. Finally, in regard to Duffy’s behavior and life-patterns, the Prosecutor emphasized that Duffy was in fact the apparently prosperous owner or partner in several businesses. The weight of this fact, as over against the Defense claim of a settled mental disease, was heavy indeed in the eyes of the jury. And pertinent to our own more general inquiry is the fact that Duffy is not unique or rare in this respect. When we talk, for example, about the enormous number of alcoholics in business, industry, the professions and government, we may have before our attention the image of people in trouble - but we should not forget that they are also people stiZ2in business, industry, the professions and government. In this regard Duffy is again the type, not the exception.

“See, for example, the recent Pattison, Sobell, and Sobell book citing 57 studies over the past I5 years (mostly during the past 7 or 8 years) demonstrating the truth of this thesis, including its truth in regard to skid-row chronic drunks. Pattison, E. Mansell, Sobell, Mark B. and Sobell, Linda C., EMERGING CONCEPTS OF ALCOHOL DEPENDENCE, Springer Pub. Co., 1977, pp. 98-101. Mark Keller, one of the leading authorities on alcoholism, and still a defender of the usefulness of the “‘loss-ofcontrol” language states: “ nearly all the alcoholics I have known . _have told me that even during the severest stage of their active alcoholism, they had a drink or two or three on many occasions and stopped without further drinking, until on some other occasion, days or weeks later, they did not stop. Some could take a drink or two daily for days or weeks without going off on a bout. Indeed the alcoholics who never could take a single drink without it starting a bout seemed rather to be exceptions. . ” (p. 156) Keller adds, sometimes, the loss-of-control symptom happens to be in remission. . It may be a prolonged remission. . ” (p. 163) Keller, M. “On the Loss-of-Control Phenomenon in Alcoholism.” 67 BRITISH JOURNAL OF ADDICTION 153 (1972). ‘I

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The ProsecutionS Second Line of Attack on “Mental Disease”. The Clash of Expert Opinion The judge had told the jury that there was “considerable expert testimony that chronic alcoholism is a mental disease,” and that in this regard the law “permits juries to rely upon expert opinions.“lg But “considerable expert testimony” was not enough to counter the Prosecution’s demonstration that there was also considerable clash of expert opinion as well as some lack of credibility of the experts on this issue. The clinical psychologist, when asked if alcoholism is a mental disease, replied: “I don’t know - it’s a fact.” The psychiatrist called by the Prosecution gave it as his opinion that Duffy was not mentally disordered when sober, though possibly “functionally psychotic” when drunk. And this same psychiatrist said Duffy’s “first drink” was voluntary (though difficult for Duffy to forego if he thought he could get away with it). This clash of opinion was plainly - as it typically is - a clash of interpretations of essentially the same basic data. It is not an unfamiliar feature of psychiatric testimony generally in contested trials. Its significance was not lost on the jury. The experts tend to cancel each other out in the jury’s mind. It is not only that in general one can expect clash of expert psychiatric opinion in the trial; what is important here is that the clash is even more likely to be manifest where the issue is, specifically, alcoholism. Indeed it appears that in addition to the two psychiatrists and the psychologist actually called by the defense, two other psychiatrists (as well as a specialist in EEG examination) had been consulted by the Defense, but had not been called to testify. As we will note more fully later, the controversies over “loss of control” and alcoholism as “disease” are rooted more in basic philosophical differences than in straightforward scientific judgment-calls on borderline cases. Furthermore the Prosecution is likely to be able to intensify the loss of credibility of expert opinion by reason of clashes of opinion or suspect reasoning in regard to more specific issues. Thus the two psychiatrists who thought Duffy insane testified they had been much influenced by the report of brain damage from the clinical psychologist, and had reached their own firm conclusions only after seeing that report. But the psychologist’s report also said Duffy had good judgment when sober and that his emotional life was not out of control; the psychiatrists did not hesitate to reject the psychologist’s opinion on this score. Of course there were reasons they could give for being ready to rely on his report in so selective a manner - but the impression of experts disagreeing, even while each of them honored the credentials of all the others, remains potent. The Prosecutor also launched attacks on the credibility of particular elements within each expert’s report. For example, the psychologist gave the Prosecutor an example of a test question on which he had scored Duffy down in “verbal abstraction” ability; and the psychologist said that this impairment was in turn a basis for inferring brain damage. The illustrative question was: “How are a dog and a lion alike?” Duffy’s answer: “They have four legs.” The psychologist’s correct answer: “They are animals.” Of course the psychologist had 19See Appendix,

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to agree that Duffy’s answer was both relevant and correct; the Prosecutor showed his amazement that someone who answered “four legs” could be diagnosed as therefore having brain damage. The jury members knew this was a Prosecution “tactic,” a gimmick. Nevertheless, the tactic was telling; if that sort of material was what the psychologist offered them in order to explain and make plausible his tests and inferences, jury members felt it was he, and not Duffy, who flunked the test. The Prosecutor also stressed the absence of any “direct” evidence of substantial brain damage - by which he implicitly meant either EEG abnormality, or tissue pathology, or even behavioral evidence of gross mental malfunction when sober. And there were still other attacks of the kind by the Prosecution.2o Some of them had more effect on the jury than others, but the cumulative impact was substantial. The third of the three main lines of Prosecution strategy was most specifically linked to the issue of alcoholism per se. While its impact was indirect, it was very important indeed when related to the Prosecution’s first line of strategy directed to show that Duffy’s behavior, when sober, showed no gross mental disorder. The Prosecution’s Third Line of Attack on “Mental Disease”: The Basic Medical-Scientific Status of “The Disease of Alcoholism ” The Prosecutor introduced several lines of questioning designed to reveal the currently inadequate state of basic scientific knowledge about alcoholism. In the first place, the experts evidenced a certain reluctance to give a flat and aftirmative answer to the direct question as to whether “alcoholism” is a “mental disease.” The clinical psychologist answered, “I don’t know - it’s a fact.” The psychiatrists, in turn, spoke preferably of “mental disorder,” and then when pressed suggested that the difference between “mental disorder” and “mental disease” was a matter of mere “semantics,” a “fine” line of little or no practical interest. Nevertheless some of the jury members picked up this hesitation and qualification, and they thought it significant. There was also expert testimony acknowledging that there are a number of different definitions of “alcoholism” in use. Then there was more substantive attack. The psychiatrists acknowledged under cross-examination that the specific causes of an alcoholic’s continuing to drink are not scientifically identified as yet: There are a great many different theories at many different levels of explanation, but none are proved. In this context, one of the psychiatrists who was pro-Insanity acknowledged that, at bottom, his conclusions about Duffy were his “personal opinion,” “specula*‘For example, on cross-examination the clinical psychologist acknowledged that he did not know the reliability coefficient of the Wechsler-Bellevue test, which he had used, and that he could not deny-the Prosecution’s assertion that at least one segment of that test has been shown to have a reliability coefticient of less than .60. Neither psychiatrist knew the reliability coefficient of the test, and each seemed at least momentarily taken aback to learn (from the Prosecutor) that the psychologist, on whose report they relied heavily, had not known this. One psychiatrist acknowledged that a coefficient of less than .60 was unsatisfactory. But then each psychiatrist went on to affirm his general confidence in the clinical psychologist’s professional competence and reliability.

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tion.” The other psychiatrist would not use that language; he claimed to use a “holistic” theory - which he explained as embracing all the various competing theories. However, he testified that the “holistic” theory had not been proved, that it had not even been tested, indeed that he could not conceive how it ever could be tested. Testimony along these lines, however uncomfortable for the professional person giving the testimony, is to be expected from conscientious Defense witnesses examined by able Prosecution. It is the fact that theories of “alcoholism” abound and have their ardent advocates, but that none has proved itself to the scientific community, and that most leading authorities achnowledge this.2’ It is the fact that the scientific and scholarly literature over the past decade or so has increasingly contained authoritative criticism in regard to each major aspect of the so-called “disease concept of alcoholism.” This is not the place to offer detailed review or discussion;22 certainly I do not intend to make flat claims here as to where the ultimate truth lies. It suffices for present purposes to say that while a .conscientious professional may personally adhere to one or another theory, doctrine, or opinion, this can be no more than opinion, and on any basic issue relating to the “disease concept of alcoholism” there will be respectable opinion that differs. In particular, the centerpiece concept of the “disease concept,” the idea that there is “loss of control” over drinking, has been subject to increasing conceptual and experimental criticism. 23 It has become a matter of deep controversy in the field, and has now been so revised and redefined by its proponents as to empty out much or all of the meaning that originally gave it its bite.24 “For a review and discussion in detail, see Fingarette, H., “The Perils of Powell: In Search of a Factual Foundation for the ‘Disease Concept of Alcoholism, ’ ” cited in Note 1, supru; and also Fingarette, H. and A.F. Hasse, MENTAL DISABILITIES AND CRIMINAL RESPONSIBILITY, Part IV. The First Special Report, 1971, of the Dept. of HEW to Congress states at the very outset of its chapter on “Theories About the Causes of Alcoholism”: ‘The causes of alcoholism are unknown, although the number of theories that have been advanced are as numerous as the professions and scientific disciplines concerned with the problem.” (p. 61, ALCOHOL AND HEALTH, U.S. Govt. Printing Office). The Second Special Report, 1974, which “focused on advances in knowledge gained in the interim” could add nothing material in regard to this fundamental generalization. And the recent Third Special Report, 1978, which was designed to “incorporate the most significant findings of recent research in the field of alcoholism” is notable in that - except for a brief and inconclusive discussion of recent genetic research - this most recent Report omits any discussion at all of the question of causation of alcoholism. Moreover it is silent on the crucial and controversial problems of diagnosis, except for a few paragraphs introduced with the remark, “Unfortunately, most diagnostic tests now known are based on secondary effects, lack specificity, and depend on circumstantial evidence. The most specific tests measure changes that occur in only 15 to 20 per cent of alcoholics. . . .” (p. 36). ‘%In addition to the items cited in Note 21, supra, the reader is referred to the forthcoming comprehensive and analytical review of the literature on the disease concept of alcoholism that will appear in Vol. VII of RESEARCH ADVANCES IN ALCOHOL AND DRUG PROBLEMS, edited by F. B. Glaser. This volume, to appear in 1980, will include three papers on the topic: one on the medical-aspects, by Benjamin Kissin, one on the sociological aspects, by Robin Room, and one on the legal and philosophical aspects, by Herbert Fingarette. “See Note 18, mpra. %In addition to the remarks of Mark Keller, quoted in Note 18, supru, see also the recent statement by M.M. Glatt, a leading advocate of “loss-ofcontrol” terminology. He acknowledges that “most alcoholics do not necessarily end up drunk each time they have one or two drinks” (p. 140), that whether or not the drinking continues depends on the “dynamic interaction” of physiological, psychological, and current

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The Prosecutor developed this testimony on the unsatisfactory state of scientific knowledge about alcoholism, and - as I remarked earlier - its impact was indirect because, like most juries, the Duffv jury was reluctant to rely positively on argument about abstract, theoretical, or “philosophical” issues. None of the jurors mentioned to me this line of Prosecution attack as a specific reason for rejecting the experts’ opinions. Jurors expressed genuine respect for the psychiatrists, all of whom were men of long experience in general and forensic psychiatry. Theoretical argument was not likely in itself to outweigh the sincere opinions of professionals such as these. On the other hand, this left the experts’ opinions having that status and no more - they were opinions, inferential, based on very limited exposure to Duffy. In the eyes of the jury - even those who initially favored an Insanity verdict - the really “hard” evidence was the behavioral evidence supporting the Prosecution thesis.25 Finally, it deserves mention that the issue of “mental disease” is intrinsically incoherent and thus is an underlying source of confusion in jury thinking (and legal doctrine). The phrase has for decades had no authorized role in medical psychiatric diagnoses. There are diagnostic criteria for specific conditions such as latent schizophrenic, paranoid schizophrenic, obsessive-compulsive neurotic, adjustment reaction, inadequate personality, and alcoholic - .but there are no criteria for classifying some or all of these as “mental disease.” The phrase simply does not appear as a diagnostic term. 26 That simple truth is again and again swept under the rug. With the limited exception of the unsatisfactory legal definition given in McDonald,27 the phrase “mental disease” has no legal definition, either. social context, of mood, company, setting, manner of drinking, etc. @. 141). “Alcoholism Disease Concept and Loss of Control Revisited.” 71 BRITISH JOURNAL OF ADDICTION 135 (1976). This “multidimensional, ” “multifactorial” approach, lacking specific quantifiers or even specific nonquantitied relationships, amount - operationally - to a heuristic proposal as to the categories in terms of which it is proposed that the therapist or researcher should develop specific hypotheses and data; it is nof a proposition giving definite content to a specific assertion about the behavior of the alcoholic. “Loss-of-control” comes here to mean, vaguely, that those labelled “alcoholics” will, on the whole, predictably drink to the point of intoxication, or drink more continuously or heavily, than most people. “Loss of control”is by this point a phrase that does nothing to explain why those who are labelled “alcoholics” drink; it is merely another label for the characteristics on the basis of which these people were classified as alcoholics in the first place. ” “When an English jury has to choose between a plain fact, on the surface, and a long explanation under the surface, it always takes the fact, in preference to the explanation.” (p. 408, The Woman in Whire, by Wilkie Collins.) The 20th century American jury seems no different ln this respect than the 19th century English jury. a6For a systematic discussion, see Ch. 1, “The Concept of Mental Disease,” in Fingarette, H., THE MEANING OF CRIMINAL INSANITY, University of California Press, 1972, 1974. *‘McDonald v. U.S., 312 F. 2d 847 (DC. Cir. 1962). The court proposed, at p. 851, that the jury should be told “a mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.‘* This definition amounts, in substance, to the AL1 insanity formula with the single significant change that instead of “mental disease” the McDonald formula uses “abnormal condition of mind.” Of course such a definition is then in substance redundant - if the mental or emotional processes are substantially affected (i.e., impaired, as one must take this to mean), or if behavior controls are substantially impaired, then the condition of mind is perforce abnormal. Thus McDonald and the AL1 formulas pose a dilemma: either the independent notion of “mental disease” is used - unfortunately a concept empty of medical meaning - or

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This lack of authoritative criteria for using the phrase means that when. as often, there is expert disagreement as to whether a defendant does have a “mental disease,” this disagreement has a very different significance from usual disagreement among experts in a trial. The usual situation is that experts have more or less agreed criteria for using certain terms - e.g., “cancer,” “fracture,” - but they disagree as to whether the particular case in “manic-depressive” hand conforms to the criteria. This may even be the case in connection with where the diagnostic criteria may be vague enough, or applied “alcoholism,” with sufficiently different emphases or interpretations, to generate disagreement as to whether a particular individual is an alcoholic. But when it comes to the question whether, in turn, alcoholism is a mental disease, the disagreements have a very different logical status just because of the absence of either legal or psychiatric criteria for using the term. The decision is then not a difficult borderline one but one that has no content to begin with. It becomes entirely indefinite as to what it is that the expert - or the jury - is supposed to be judging. In strict logic, there is nothing to judge. Everyone is left free to put whatever meaning into the phrase that they are inclined, and no one can know for sure what the other person means. It is true that the law sometimes expects the jury to use everyday intuitive criteria, vague though these be; the jury apply, without explicit and determinate legal definition, concepts like “negligent,” or “due care,” or “reasonable man.” But “mental disease” looks like a medical term, not a common sense everyday term; and of course, it is intended to look like one. The natural implication is that the criteria for its use are known in medicine, not in layman’s intuitions. While the participants in the trial will typically not be conscious of this underlying conceptual confusion, the confusion is there nevertheless, and it does its work. When at last the Duffv jury entered its deliberations, one of the principal issues it explicitly defined for itself was: Did Duffy have a “settled mental disease,” or were any mental impairments that he manifested the result of a “temporary mental condition produced by recent use of alcoho1”?28 One of the jurors - the last holdout for an Insanity verdict - tried to square the medical opinion with the behavioral evidence: He argued from heartfelt conviction that Duffy’s alcoholism was a mental disease that was settled, that it existed continuously even though its manifestations were only periodic. This view, of course, expressed the very spirit and core of the idea that alcoholism is a disease. The jurors for Sanity, who saw this as inference and unproved theory, replied by arguing that theories and personal beliefs about alcoholism should not be the basis for decision. Jurors, they said, should base their verdict only on the evidence presented in the trial; and they then stressed that when the Defense offered theory and inference against the Prosecution’s “hard” evidence about Duffy’s manifest mental abilities when sober, the Defense had at best the notion is abandoned and we are left with the hopelessly vague requirement of “abnormal” mind, emotion, or behavior control. This, as we argue in MENTAL DISABILITIES AND CRIMINAL RESPONSIBILITY, is a deadend approach; and we there propose a coherent and realistic alternative, the “Disability of Mind doctrine.” “The Prosecutor, throughout his entire final argument to the jury, stood beside a display stand on which there was nothing but a set of very large block printed letters: TMCPRUA.

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failed to carry its burden of proof. Finally, all but this one of the jurors seemed positively persuaded that the Prosecution thesis was correct. The final holdout for Insanity felt in conscience obliged at last to give in on the “mental disease” issue on the procedural basis that the Defense could not fairly be said to have carried the burden of proving its case. C. If There Was a Lack of Substantial Capacity, Did it Result From Mental Disease or Defect? The AL1 test postulates that the mental disease must result in certain specified mental impairment of function. The relationship of “resulting from” is crucial. I turn to this crucial link now; then I will conclude with comment on the mental impairment issue - the “lack of substantial capacity.” “Lack of capacity”’ must “result” from the mental disease: this word “result” looks logically simple, but it, and its analogues have been a source of difficulty even in the classical insanity defense. 29 In a defense based on alcoholism, however, the problems are compounded. When we think of the classical insanity defense, where what is at issue is, e.g., schizophrenia, psychotic depression, paranoid psychosis, this underlying condition, usually taken to be the legally relevant “mental disease,” is directly manifest in the defendant’s impaired understanding or lessened self-control when committing the offense. The AL1 test was formulated with such a defense in mind. This is evident once one appreciates that under the AL1 alcoholism defense the linkage is quite indirect. This introduces significant new logical complexity, ambiguity - and therefore almost inevitable confusion.30 This confusion was present in Duffy. One principal source of confusion lies in the ambiguity as to the “loss of selfcontrol.” In Duffy, typically of any such case, there were several different contexts where lack of self-control was at issue:

‘9The problems encountered with “product,” the word used in Durham v. U.S., 214 F. 2d 862 (1954) are reviewed at pp. 289-291 in LaFave, Wayne R. and Austin W. Scott, CRIMINAL LAW, West Pub. Co., 1972, and see also Goldstein, Abraham S., THE INSANITY DEFENSE, Yale University Press, 1967, Ch. 6, and Fingarette, H., THE MEANING OF CRIMINAL INSANITY, pp. 246-249. The problems arising from the word “product” and from analogous words like “result” were not so explicitly confronted in the history of M’Naghten. The latter test merely spoke of the “defect of reason” as being “from” disease of the mind. However the issue was present in substance in the requirement, always recognized in common law, that there must be “a meaningful relationship between the mental disease and the incident charged.” U.S. v. Brawner, 471 F. 2d 969, 983 (D.C. Cir. 1972). For a systematic discussion of this relationship. see especially Ch. 2 in MENTAL DISABILITIES AND CRIMINAL RESPONSIBILITY. “The exception to this proposition is, arguably, the AL1 insanity defense as it would apply where a homeless person is charged simply with public drunkenness. Here, the Defense could argue that being drunk is the direct manifestation of the underlying disease of alcoholism, and being in a public place when drunk is, for the homeless defendant, an involuntary condition of his existence, whether drunk or sober. It may be, therefore. that the circumstances are more promising for the Defense in such a case. But, aside from the improbability of an insanity defense in such a case, the facts are not so open and shut as common opinion has it. If one were genuinely developing a case in depth, one would find that “skid-row” alcoholics, if not otherwise mentally disordered, will have manifested more control over their drinking and drinking-circumstances than is popularly thought. See, for example, the summary citations and comment on loss of control in Pattison. Sobell and Sobell, note 18, supru.

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1. Lack of substantial

2. Lack of substantial when sober; 3. Lack of substantial driving without

FINGARETTE

capacity to control drinking; capacity to refrain from driving with a suspended

license

capacity to refrain from driving when drunk (and from a valid license when drunk).

Lack of capacity to refrain, when sober, from driving without a license (#2) was never claimed by the Defense. The contrary was solidly established; Duffy never drove when sober. This seems to support the view that Duffy’s driving when drunk and without a license was a direct result of being drunk, not a direct result of “the disease of alcoholism.” Of course the Defense thesis was that Duffy’s driving when drunk and without a license was indirectly but nevertheless probably a result of the disease of alcoholism, which caused him to drink uncontrollably, which in turn caused him to get drunk, which in turn caused him to lose self-control in regard to driving. The Defense did not sharply delineate these different forms of loss of selfcontrol and the complex linkage among them. The effect of such logical vagueness here is that evidence of lack of control in any one of these respects will tend to fuse with and seem to buttress claims to loss of control in the other respects. The Prosecutor never defined the linkages clearly, either, but he did emphasrze the familiar and direct linkage between being drunk and being less inhibited, less prudent. This, of course, had the impact of strengthening the sense that whatever lack of mental capacity Duffy showed when drunk was merely the familiar result of drunkenness - and, by implication, that the driving was not with enough specificity a “result” of “disease.” The Prosecutor challenged the tightness of the link between “disease” and the ultimate lack of mental capacity at the time of the offense by specific analysis of other possible links. Each candidate for “mental disease” was in turn examined: The Prosecutor asked: Does “dementia” always result in uncontrolled drinking? The experts testified, in cross-examination, that many persons with dementia are not alcoholics, and many diagnosed as alcoholic do not have settled dementia. Does “passive-aggressive personality disorder” always result in uncontrolled drinking? There were analogous answers acknowledging a loose linkage, with no known statistical frequency. The only remaining candidate was “alcoholism.” Here the first step in the claimed linkage was, of. course, disease-caused uncontrolled drinking. Does always result in uncontrolled drinking? This question takes us “alcoholism” back to the earlier discussion3r in which we saw how the experts’ theories and opinions about alcoholism were undermined as “opinion” and “speculation” while the behavioral evidence showed Duffy on a number of different occasions keeping himself sober when he felt he had good reason to do so. The plausible prediction that in the long run Duffy would drink to excess, being alcoholic, was countered by the idea that on specific occasions, where it was plainly to his interest as he saw it, he did control his drinking. The upshot of the “linkage” issue is that once again theory, inference, opinion, and global overviews, on which the claim of linkage resulted, had to be weighed ‘aIn the text, from about Note 15 to Note 26,

supra.

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against the evidence of Duffy’s behavior on particular, well defined occasions, and the common sense import of his maintaining successful business affairs. On this issue, some jurors seemed persuaded by the Prosecution; some were insufficiently persuaded by the Defense. D. Did the Defendant, when Committing the Offense, Lack Substantial Capacity Either to Appreciate the Criminality of his Conduct or to Conform his Conduct to the Requirements of Law?

Paradoxically, on this issue the Defense case is typically weaker than in intoxication cases generally where chronic alcoholism is not the issue. At the time of the offense - as is typical in such cases - Duffy was heavily intoxicated. His blood alcohol level when tested after the arrest was .30. With that level a moderate social drinker might lack substantial capacity to engage in any conduct at all. However, as we noted earlier, ” the alcoholic has usually managed to maintain occupational, social, and family roles to some substantial extent. This is possible in the first instance because of the alcoholic’s ability to remain sober, or reasonably so, in many contexts. But a second, familiar, and perhaps equally important factor in the alcoholic’s ability to get along is the built-up resistance to chemical effects of alcohol - i.e., tolerance for alcohol. And a third important factor is the development of skill in “handling” liquor, so that even when intoxicated the ability to cope is better maintained, and the deficiencies better hidden from notice and corrected for. Of course even an alcoholic can get so drunk as to be virtually or actually comatose. But then that person will not, as Duffy did, get into a car and drive it. Except for the offense of merely being drunk in public, the general rule is that the alcoholic offender was doing something, i.e., able to engage in some kind of purposeful conduct. Duffy was no exception to this general rule. There were two principal segments of testimony about his behavior when drunk. These had a crucial impact in the deliberations of the jurors. In the first place, Duffy was in a very drunken condition when he appeared for his interview with a court appointed psychiatrist (the one who was called to testify by the Prosecutor). This psychiatrist emphasized that Duffy seemed to be at about a .30 level - the same as when arrested. Duffy came to this interview on time; and significantly, had been driven there by his partner. True, Duffy’s speech was slurred, he showed poor motor coordination, and in general was obviously very drunk. And yet - Duffy knew where he was, why he was there, who the psychiatrist was; Duffy generally responded appropriately, and he gave a long and detailed life history that seemed essentially credible and correct. Duffy apparently waited for his driver to re-appear, as previously arranged, after the interview was over. The importance of this testimony in the minds of the jurors can hardly be exaggerated. As the Summary of Testimony has already indicated, Duffy’s responses to the arresting officer seemed to show that he knew he was violating the law, that “See text at Note 17, supra.

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he had been trying to drive specially carefully, and that he had thought he could get away with it since he was only a few blocks from home. He offered to leave the car and walk home - thus indicating awareness that he had been breaking the law, that he knew what would conform to law, and that he was now genuinely prepared to conform to the law if he could be allowed to escape any penalty for his having just been in the course of violating it. Of course the Defense invited the psychiatrists testifying in favor of Insanity to comment on Duffy’s remarks to the arrestihg officer; predictably they replied that this was merely the superficial verbal skill of a “veteran” in dealing with the police. Duffy, they said, did not genuinely “appreciate” that he was acting criminally. The Prosecution did not offer any direct challenge to such comments, apparently correctly estimating that Duffy’s words and attitudes at the time would be eloquent to the jury. The Prosecutor did not question that liquor had a mentally debilitating effect on Duffy; instead he stressed, first, that this impairment was strictly typical of intoxication, and, secondly, that in Duffy’s case any such lack of capacity was significantly less than it would-be with a normally moderate drinker who on occasion got very drunk. Both propositions are plausible to a lay jury; they conformed to the evidence, and in truth are typically true of alcoholics. On a more theoretical level two further comments need to be made. A number of AL1 jurisdictions - California now being one of them - have adopted that version which speaks of the “criminality” of conduct rather than its “wrongfulness.” The use of “criminality” places a greater burden on the Defense. The case for lack of appreciation that an act is criminal - i.e., against the law - will rarely be viable for practical purposes unless the defendant is almost totally confused or idiotic. Appreciating “wrongfulness,” however, can be arguably held to constitute a significant task beyond the capacity of many mentally disabled offenders. The word “appreciation” as applied to the moral notion “wrongfulness” can suggest a rather complex and even subtle kind of judgment. In Duffy, however, the Prosecutor did not rely on this nuance but stressed to the jury that the law does not demand of us either wisdom or insight - or even sobriety; the law asks only a fundamental awareness that it’s wrong to rob, to assault, to rape, to bum, to drive when you’re drunk. A jury, looking at matters in that light, is not too easily going to agree that a defendant like Duffy is without any criminal culpability. The Defense in Duffv did try a more fundamental attack on this issue. Defense counsel argued to the jury at one point that if Duffy had an uncontrollable urge to do anything that would violate any law - be it the law he was charged with violating or be it any other law - then Duffy met the condition as specified in the AL1 test. More specifically, the Defense argued that since Duffy had been on probation with a condition requiring abstinence, his uncontrollable urge to drink was relevant and sufficient as a “lack of substantial capacity to conform his conduct to the requirements of law.” Either of these two versions would greatly expand the scope of the AL1 test in regard to “lack of capacity.” As a matter of legal precedent it has been emphatically a feature of the common law on criminal insanity, ever since M’Naghten, that the mental impairments present at the time of the offense

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must be specifically linked to the criminality or wrongfulness of that act.33 The AL1 formula, unlike M’Naghten, fails to make this requirement verbally explicit. Matters are complicated in the alcoholism defense because thereis a crucially relevant intervening act - getting drunk. The AL1 formula at least verbally leaves it open that all the crucial conduct under discussion, and all the laws appertaining thereto, are included within the meaning of the phrases, “his conbuilt in this ini duct” and “requirements of law.” However, long precedent, stance on very good reason, would seem to require the narrower scope and very specific reference: The nonconforming conduct, whose criminality is to be appreciated, must be the specific offense charged and the law making it an offense. Conclusion There was one overall pattern in Duffy that was determinative of the outcome on the major specific issues and finally in the ultimate verdict. The pattern consisted of the two-sided contrast that has been noted in one way or another in the preceding discussion. On one hand there was the global impression of a life history: Duffy’s life in recent years centered on drinking, getting drunk, staying drunk, getting sick from it, going to jail or to recovery homes for a while, and then starting the whole thing over. To this overview of Duffy’s life were added the opinions of experts that Duffy was legally insane, that he couldn’t control his drinking, getting drunk, or driving when drunk - opinions based on data from limited interviews and test sessions, and arrived at by inferences employing medical doctrines and theories. A juror who was almost until the end for Insanity said (quoting one of the psychiatrists) “Duffy failed the test of life.” On the other hand there were the focussed and detailed portraits of Duffy, in this or that particular situation, drunk or sober, acting and speaking in ways that seemed to show he could and did respond intelligibly to considerations of his own comfort, convenience, profit, and liberty. When sober, and even on specific well reported occasions when he was drunk, he had basically intact memory and contact with reality, observing the rules and keeping commitments he had made. On the whole he had prospered financially over the years. It was not that anyone could deny the profoundly self-destructive features of his drinking; rather it was that this evidence seemed to show that his drinking was not some automatic, uncontrollably triggered behavior, and that it did not incapacitate him as severely as first impressions or global impressions might have suggested. A juror who was pro-Sanity from the first remarked in the deliberations that Duffy “was crazy like a fox.” It is true that in formulating the central issue this way, and often in the course of so framing the discussion throughout this paper, I have produced analytical clarity at the expense of verisimilitude to the often stop-and-go, backing and filling, and topic-switching so characteristic of the examination of witnesses in a trial. And yet so far as the deliberations of the jury were concerned, this “=See note 29,

supra.

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analysis of the evidence is not an analytical artefact. All the jurors interviewed characterized this contrast in the patterns of evidence as central. One juror (initially pro-Insanity) saw it as a contrast between “abstract,” “opinion” testimony, and “concrete, ” “factual” evidence. Another (initially pro-Sanity) expressed it as “psychology,” “theory,” “ opinion” versus “hard, concrete facts.” One (pro-Insanity juror) contrasted the characterization of Duffy as “a good historian” (i.e., in giving a full and correct life history, even when he was drunk), with the overall pattern of drinking that seemed to suggest a mental disease. An initially pro-Sanity juror contrasted “theories” with “realities.” This remarkable degree of agreement anong these jurors, taken together with their individually differing language in expressing the point, seems to show that there was in fact a substantive meeting of the minds on the issues. Perhaps I may add that my assistant, who observed the entire trial, responded along similar lines as to the basic nature and force of the testimony; she concluded that the Prosecution case deserved to win, and predicted that in fact it would. I myself, in my own personal analysis of the basic issues, had predicted prior to the commencement of trial that the verdict would hang on whether the jury responded in terms of global impressions of behavior, generalized conclusions by experts, and unmanageably complex law, or responded in terms of specific, analytical reasoning directed to Duffy’s behavior in individualized life-situations assessed in the light of the specific elements of the legal definitions. I was right, as it turned out, about the central pattern. As the trial went on, however, I came increasingly to believe that global impressions, authoritative opinion, and the confusing complexity of the law would lead the jury to an Insanity verdict. I believed a hung jury to be the best the Prosecution could look for. In this, of course, I was wrong. The jury was analytical; they laid out the main points of testimony under relevant headings on a blackboard. They developed an analytical scheme expressing the legal definition of insanity. They listened patiently to the opposition, each urging the others to explain their views. They started their deliberations with a secret ballot showing seven favoring Sanity, five favoring Insanity. Half-way through, the count on a second ballot was nine to three. Then eventually two more jurors moved from the Insanity to the Sanity group;.and finally the last juror came over. Of those I interviewed, none who changed from Insanity to Sanity expressed or implied any sense of having been overtly or subtly coerced; the changeovers were fully behind their change, explained them rationally, and gave no indication that others on the jury had shifted views for other than legitimate kinds of reasons. I found some evidence of what I considered inadequate understanding of certain issues, but this was surprisingly little and in no case did it seem to have any material effect on the main line of reasoning or the verdict. One may wonder whether this real-life jury, which was so responsibly analytical and reasonable in the course of its deliberations, might not, being human, have also been influenced by other less legitimate factors. I gained the impression - I had no “hard evidence,” only impressions and speculations of some of those I spoke with - that the Defense could not have got a verdict in this case because at least one juror was for practical purposes unmovably of the opinion that Duffy was Sane. There was no impropriety of

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conduct here; indeed this juror said very little and had no noticeable effect on the course of the deliberations. Still, one got the subjective impression that, had the swing of opinion in the jury been toward Insanity, this juror might not have been persuadable. Jurors did remark to me - either favorably or unfavorably - on certain stylisms and mannerisms of one or other of the attorneys. These remarks were always accompanied by the prompt disclaimer that such reactions were not allowed to influence the deliberations. I was persuaded that this was essentially true: the prompt disclaimer showed that all were aware of the issue, and the discussion of the substantive deliberations never revealed to me, whether by odd gaps in the logic or by turns of phrase or nuances, that the personality of the lawyers had any significant impact on the verdict. There was one instance where I had the impression that a juror was as a matter of psychological fact unusually favorably impressed by the views of a certain expert witness, and was impressed because of associations that extended outside the bounds of what went on in the trial. (These associations had been acknowledged in the initial examination of the jurors prior to seating them as such.) But while this juror was, in my opinion, subjectively influenced this way, the very same juror eventually changed sides on the basis of argument and evidence, and was able to summarize that argument and evidence for me in an intelligent and understanding way. One minor witness had a certain trivial but noticeable mannerism on the witness stand; it was odd enough, though not bizarre, to cause comment by some jurors. The question of Duffy’s fate if he should be found Insane was broached in the course of jury deliberations, and was promptly ruled out of bounds by the forewoman before substantive discussion could proceed.34 The question as to what impact an Insanity verdict in this case would have generally in cases of drunken offenders was broached. Again the forewoman promptly ruled it out of order. It is, of course, impossible to say with certainty what background role such considerations as these may have played in the private thinking of individual jurors. On the other hand, the cogent analyses of the evidence that were produced, logically adequate in their own terms, suggest strongly that such background considerations, though they may have influenced initial inclinations, never were enough to decisively outweigh the weight of legitimate evidence and analysis in the course of jury deliberations. Perhaps this jury was better than many.3s My conclusion is that - granted

M Defense counsel feared prior to the trial that the jury’s beliefs about sentencing and disposition might tacitly but crucially affect the outcome. He believed this to have been the case after the trial was over (in spite of the jury interview material in this paper). The sense of his view is that no one approves of drunk driving; hence juries are reluctant to come in with a verdict containing the words “not guilty,” no matter that the words are qualified by “insane,” and no judge (in a trial without a jury) would want to be first to “acquit” a drunken offender because of his habitual drunkenness. Counsel felt that the principal requirement if the defense is to have a fair chance at a verdict is that the jury be informed that an NGI verdict is followed by hospital confinement, not immediate freedom. Such an instruction to the jury is prohibited in California (as in most jurisdictions). “In her extensive experimental studies of “‘juries” asked to deliberate and render insanity verdicts after hearing recordings of trials, Rita Simon concluded that the ‘jurors’ were “very conscious of their responsibility,” and spent “most of their time reviewing the record” in fullest detail. THE JURY AND

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FINGARETTE

juries are not all of a mold - the case for the Prosecution is strongly enough rooted in the facts, the law, and the constraints of trial process to allow expectation that, as a general rule, the Defense will not get a verdict of insanity, under the AL1 test, if that Defense is in form and substance based simply on chronic alcoholism and is seriously and well contested by the Prosecution.36 Appendix “Defendant

A: The Instructions in this

case

has

on Insanity

admitted

driving

a motor

vehicle

at a time

his license

was re-

voked. He has also admitted driving a vehicle while under the influence of intoxicating liquor. It is now your function to determine the issue raised by defendant’s plea of not guilty by reason of insanity. Such plea now places before you the issue as to whether he was legally sane or legally insane at the time of the commission of the crime. This is the sole issue for you to determine in this proceeding. Although you may consider evidence of his mental condition before and after the time of the commission of the crime, such evidence is to be considered for the purpose of throwing light upon his mental condition as it was when the crime was committed. Mental illness and mental abnormality in whatever form they may appear are not necessarily the same as legal insanity. A person may be mentally ill or mentally abnormal and yet not be legally insane. A person is legally insane if, as a result of a mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. If you find that the defendant had substantial capacity to appreciate the criminality of

THE DEFENSE OF INSANITY. Little, Brown & Co., 1967, pp. 218-219. This result is confirmed in the studies of actual juries by Morris, Grant H., et al, “Whither Tbous Goest? An Inquiry Into Jurors’ Perceptions of the Consequences of a Successful Insanity Defense.” 14 SAN DIEGO LAW REVIEW 1059, 1076,

1077. It is not only consistent with the behavior and attitude of the real-life jury in Duffy, it is consistent with the general run of informal reports I have heard or read. 36Some final caveats: I have been concerned in this paper with the way the alcoholism defense works when genuinely and well contested under the AL1 insanity definition. If, as is no doubt at times the case. defense and prosecution explicitly or tacitly plea-bargain an insanity plea, then of course there is no obstacle in the law per se to a verdict on the basis of alcoholism. The question at issue in this paper is: How strong a case, given the facts of alcoholism and the way they must be proved to relate to the offense, can the Defense expect to make? I should stress again that I am dealing here with an insanity defense based in form and in substance on alcoholism; where other independently identifiable “mental diseases” are proved to exist, then that fact may suffice under ALI, and an alcohol-related condition might then add probative weight to the defense case. See Singer’s discussion of insanity acquitta!s in New Jersey, especially at p. 416. Singer, Anne C., “Insanity Acquittal in the Seventies: Observations and Empirical Analysis of One Jurisdiction.” 2 MENTAL DISABILITY LAW REPORTER 406 (1978). Special and powerful sympathy factors, or special and powerful factors arousing jury antipathy, may of course affect the outcome, as could the presence of exceptionally persuasive or biassed jurors. These are among the “breaks” and special circumstances that can change the course of any trial, and my thesis is intended to be interpreted within this context. Finally, it should be mentioned that, from Defense counsel’s standpoint in Duffy, the outcome was in substance a victory for Duffy. Duffy would almost certainly have had a brief hearing and then been sent to jail if his case had been handled in the usual way. Instead, Duffy’s claims received an extensive ahing, and in the upshot he was allowed to remain on probation under very strict conditions (residence in an alcohol rehabilitation home, Antabuse, etc.) with special arrangements for immediately putting him in jail for infraction of the conditions. Of course in this paper I have not been concerned with sentencing but with findings as to guilt.

ALCOHOLISM

DEFENSE

UNDER THE ALI INSANITY

TEST

321

his conduct or to conform his conduct to the requirements of the law, you will find that he was legally sane. However, if you find that as a result of mental disease or mental defect the defendant lacked substantial capacity to appreciate the criminality of his conduct or that he lacked substantial capacity to conform his conduct to the requirements of law, you will find that he is legally insane. The word criminality as used in this instruction means an act or conduct which constitutes a crime. The defendant has the burden of proving his legal insanity at the time of the commission of the crimes by a preponderance of the evidence. By a preponderance of evidence is meant that such evidence as when weighed with that opposed to it has more convincing force and a greater probability of truth. In the event the evidence is evenly balanced so that you are unable to say that the evidence on either side of an issue preponderates then your finding upon that issue must be against the party who had the burden of proving it. In determining whether an issue has been proved by a preponderance of the evidence, you should consider all of the evidence bearing upon that issue regardless of who produced it, whether it was produced by a witness called by [Defense counsel] or a witness called by [the Prosecution.] A person is legally insane if as a result of a mental disease or defect, either temporary or permanent, caused by the long continued use of alcohol, even after the effects of recent use of alcohol have worn off, if he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Legal insanity must be settled insanity and not merely a temporary mental condition produced by the recent use of alcohol. When the evidence shows at times the defendant was legally insane and at other times he was legally sane, he has the burden of proving by a preponderance of the evidence that he was legally insane at the time of the commission of the offenses. Uncontrollable or irresistible impulse itself is not legal insanity unless as a result of mental disease or mental defect a person lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. A normal person who is not suffering from any mental disease or defect and who drinks, becomes intoxicated and then commits a crime which he would not have committed if he were sober is not legally insane because he was drunk at that time. If, however, a person has become a chronic alcoholic due to the long continued consumption of alcoholic beverages and if by reason of this cause he has a temporary or permanent mental disease or defect and the mental disease or defect is not merely a temporary mental condition produced by recent use of alcohol and if by reason of the temporary or perrnanent mental disease or defect caused by long continuous use of alcohol he commits an offense at a time when he lacks substantial capacity to either appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, he is legally insane. If a person has a temporary or permanent mental disease or defect caused by the long continued use of alcohol, his act of continuing to drink and in becoming drunk may be a manifestation of that temporary or permanent mental disease or defect itself. Thus, if you find that the defendant suffered from a mental disease or defect, temporary or permanent, and the mental disease or defect was a substantial factor causing defendant to drink, to become intoxicated, and then drive and if you find that at the time he put the vehicle into motion, he lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, he is legally insane. These instructions are applicable to each of the offenses to which defendant entered a plea of not guilty by reason of insanity. In this instruction, I used the phrase ‘cause’ or the word ‘cause.’ A cause of a given act is a cause in which the natural and continuous sequence of events causes an act to occur and without that particular cause the act would not have occurred.”

322

Appendix Questions

HERBERT

FINGARETTE

B: The Judge’s Response to the Jury’s During Their Deliberations

“The question presented: Legally, has alcoholism been determined to be a mental disease or is that for us to determine?” [The judge replied:] “A mental disease or defect is a mental abnormality. Chronic alcoholism may so impair one’s mental processes so as to amount to a mental disease or defect. “Considerable expert testimony was presented indicating that chronic alcoholism is a mental disease or defect. The law provides no all encompassing definition of mental disease or defect and instead permits juries to rely upon expert opinions.”