The devil made them do it

Richard E. Vatz

THE STUDY OF RHETORIC and the relationship between situations and rhetoric have critical importance for understanding and criticizing some of the more invalid practices of psychiatry. None of these applications is more apt and more important than what perhaps is the most questionable extant psychiatric role in our society--support of the insanity plea.

Aristotle defined rhetoric--as interpreted by Lance Cooper, scholar of Greek and philosophy--as the study which discovers in a particular case what the available means of persuasion are. A more recent definition from another scholar in Philosophy and Rhetoric defines rhetoric as the struggle of persuaders to establish their own agenda and infuse it with their chosen spin for specific audiences, or the fight for determining for specific audiences what is salient and what the saliency means as well as its significance.

This view of rhetoric, focusing on the persuader as controlling, limiting, and depicting what the perceived situation is, rather than the situation having independent influence, accounts for the reality psychiatry has created: a world with many felonious miscreants who are not responsible for what they do. Again, if rhetoric is composed of persuaders' choices, constrained only by the extent to which an audience will accept them, then the rhetor's responsibility for what he or she chooses to make salient (his or her agenda) and the meaning he or she infuses in the chosen situation (the "spin") become that for which the persuader ethically is responsible. Therefore, citing law-breaking and claiming that it is perpetrated by unknowing, insane lawbreakers who may be prey to irresistible urges are rhetorical acts of creating perspectives, not discovering them.

There may be no better way to understand the persuasive use of rhetoric than to look at psychiatry's employment of the insanity plea. On its website, the American Psychiatric Association (APA) introduces the field of psychiatry as "science based." Richard Weaver's landmark Ethics of Rhetoric describes "science" as a god-term used persuasively to win adherents to a field that may or may not be using the conventions of scientific inquiry.

Much of psychiatry is, in actuality, an art, not a science that can be verified and conoborated. The APA's "Position Statement" on "The Insanity Defense" reveals the significant conflict within that body regarding its consensus as to the extent to which psychiatry accurately can infer people's--in this case, criminals'--state of mind when they commit a crime, or why criminals do what they do or feel what they feel. For example, the statement argues that "The American Psychiatric Association believes that the decision to release an insanity acquittee should not be made solely by psychiatrists or solely on the basis of psychiatric testimony about the patient's mental condition or predictions of future dangerousness. While this may not be the only model, such decisions should be made instead by a group similar in composition to a parole board."

The APA's website also posts questions and answers on the insanity defense. One argument made there, and repeated incessantly in formal and informal rhetoric by psychiatrists, is that it is not the case that "many criminals try to use the insanity defense to escape severe punishment." The proof adduced for this is the fact that, in only one percent or less of cases (one assumes in the criminal justice system), is the insanity plea attempted--and it is successful in just about 25% of these instances.

Such selected facts ignore several others--thus, the selectivity of all rhetoric--including the absolute number of successful insanity pleas that are used, as well as the involvement of psychiatrists in mitigating sentencing and participating in plea bargains and the rest of the criminal justice system. As further evidence that "insanity defense is rarely used successfully by malingerers," the APA points out that much of the use of the insanity plea results from agreement between the prosecution and defense, as if that proves the validity of the plea.

For those worried about defendants found mentally ill being freed to commit more crimes, the APA states: "Studies show that persons found not guilty by reason of insanity, on average, are held at least as long as--and often longer than--persons found guilty and sent to prison for similar crimes." Well, therefore, some are, and some are not.

Let's just look at two recent examples of psychiatric participation in the criminal justice system. These are not presented as representative, only as not atypical.

In June 2006, Paul Schrum, a medical supplies salesman who loved science fiction, was attending the movie, "X-Men 3: The Last Stand" at a theater near Baltimore, Md. Mujtaba R. Jabbar, a young medical student, shot and killed the 62-year-old Schrum even though he did not know him personally nor, apparently, did he know anyone else in the theater. One local newspaper quoted detectives as saying that there was no motive for the shooting. Jabbar was convicted, but was found "not criminally responsible" because psychiatrists who examined him for the state argued that he had schizophrenia and, therefore, was unable to control his behavior. The alleged inability of a defendant to control his behavior would imply that the individual did not choose to commit a killing.

In contrast to this finding, it has been revealed that Jabbar said he was motivated by anger that his life was not going well. After he killed Schrum--a father and grandfather--firing four bullets into his victim's head and chest, bullets well-aimed to kill, he warned other moviegoers to get down. Jabbar then calmly walked into the lobby where he lay down his gun and instructed the manager to call 911. There is no evidence that he was confused about what he did. In addition, he told detectives that the gun had been purchased more than a year ago and that he methodically had planned out his crime.

Where was the inability to understand what he had done and why? Why did "doctors" say that there was no motive when Jabbar clearly had stated his motive? Why was this verdict acceptable to the jury since all of the relevant principals in the case were mystified by the "scientific" diagnosis of physicians who arbitrarily decided that Jabbar was not criminally responsible due to his unverifiable "mental illness."

County prosecutor Rachel Cogen said that she "believed" that Jabbar would be in a state psychiatric facility "for an extremely long time, if not the rest of his life," but why would she believe that? She has no ability to enforce this belief. She added that prosecutors were going to seek life in prison without parole for Jabbar, but the rhetorical psychiatrists won the day--and why would they not again win the day when Jabbar comes up for a heating seeking release in the next few years?

When this author discussed this case on the Baltimore radio station WBAL, friends and relatives of Mr. Schrum called the show to voice their incredulity at the verdict. They could not understand how any reasonable jury could not have seen the premeditation and clear motivation of Jabbar in killing Schrum. This case also provides an interesting side note respecting psychiatric rhetoric and insanity. Jabbar's sister claimed following the killing that her brother's family was unable to get Jabbar involuntarily treated at a psychiatric facility because, according to one newspaper account, "doctors said he wasn't a threat to himself or others."

Of course, the finding of an individual as not dangerous is as unscientific as the finding of a killer as insane. Psychiatrists should not be expected to know who is going to be a threat, and their views should not be given credence when they say a person could not control what he or she did or did not know what he or she was doing. They simply do not know.

Heads, guilty; tails, innocent

It merely is due to psychiatric mystification when such interpretations are accepted and there are verifiable predictions, such as whether individuals will be "dangerous" or not. In actuality, psychiatrists should be presumed to be correct as often--as psychiatric critic Bruce Ennis once wrote--as if they were guessing the result of "flipping coins in the courtroom."

In early November 2006, Mark Rusch, a state district judge in Texas, ruled that Lisa Ann Diaz, who was found not guilty by reason of insanity in the 2003 drowning of her two daughters, was mentally stable and was to be freed from the confines of Big Spring State Hospital where she involuntarily resided. She was tried for the killing of daughter Briana, but not for the murder of daughter Kamryn. Usually, such a strategic choice allows the opportunity to try the second case if the disposal of the first warrants another trial, but there is no indication that the prosecutors plan to go that route.

Just two years earlier, a jury had found that Diaz failed the cognitive test for sanity since she, the jury concluded, did not know it was wrong to drown her two daughters. Contrary to the Jabbar situation, prosecutors in this case opposed the verdict, arguing that there was no credible evidence of Diaz's mental illness and, furthermore, Diaz had shown no remorse for the killings. Her attorney, understanding the rhetorical gloss he was expected to give to be consistent with psychiatrists' treatment, said that Diaz had to keep taking her medicine and continue treatment as an outpatient, adding that "as long as she continues to do that, she'll be fine." Of course, she was doing fine when she killed her children; the problem is whether the people with whom she comes into contact will be fine.

As explained by The Dallas Morning News, "In September 2003, Plano police responded to a frantic 911 call from Ms. Diaz's husband. Their two daughters--Kamryn, 3, and Briana, 5--had been drowned, wrapped in blankets and laid in a back bedroom. Ms. Diaz had 25 cuts and superficial, self-inflicted stab wounds on her neck and chest. She later said that she wanted to commit suicide to be with her daughters." Why would it be credible that Ms. Diaz wanted to kill herself when she seemed so much more adept at killing her children than she was at committing suicide? Why would anyone believe that 27 months after a woman has killed two people that, as the prosecutor allowed, the killer has made "an apparent swift recovery"? Even criminologist Richard Moran, an insanity plea supporter, averred, "It's just unusual that [Diaz] would--and I say this cynically--get better so quickly."

There are no credible studies demonstrating that psychiatrists can predict who will or will not be violent after release from psychiatric custody for killing people or being violent toward them. There apparently always will be psychiatric mystification and a majority or near-majority of citizens who will be the willing audience for such unproven and unprovable claims such as most insanity pleas constitute.

Psychiatrists hate the metaphor of Occam's Razor, a theory that abjures overcomplexity in describing phenomena. When it comes to ascertaining what motivates killers or others to violate the law, the forensic psychiatric community stands waiting and willing to lend its impossible-to-disprove, fanciful, scientific-appearing explanations to mystify juries, attorneys, judges, the general public, and, perhaps, themselves.

When a half-dozen or so Ivy League psychiatrists lent their expertise to claim "scientifically" that reputed mobster Vincent Gigante was suffering from a mental illness--in "cookie-cutter" fashion, one claimed--when he committed serial gangland crimes, no general consensus of psychiatrists appeared to say how arbitrary their colleagues' findings were. In fact, the psychiatric community was not convinced of Gigante's sanity until he came into court in 2003 and admitted that he had been faking insanity for decades to avoid jail time. Even then, there was no public confession of professional malfeasance by the psychiatrists.

With forensic psychiatry, the results are never testable; consequently, in most cases, whoever pays the piper calls the tune, a tune of mystifying, dazzling rhetoric that works to exonerate and free the guilty soul as well as the guilty perpetrators of crimes.

Richard E. Vatz, Associate Psychology Editor of USA Today, is professor of rhetoric and communication, Towson (Md.) University.

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COPYRIGHT 2008 Gale, Cengage Learning