Slate's Jurisprudence: Moussaoui's Insanity Defense

Lawyers for confessed al-Qaida conspirator Zacarias Moussaoui are trying to show the jury in the penalty phase of his conspiracy trial that their client suffers from serious mental illness. But can that strategy save him from execution? Alex Chadwick speaks with Slate legal analyst Dahlia Lithwick about the defense strategy.

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ALEX CHADWICK, host:

This is DAY TO DAY. I'm Alex Chadwick.

MADELEINE BRAND, host:

And I'm Madeleine Brand. In a few minutes, dieting for a long life but not exactly a full one.

CHADWICK: First this, the insanity defense is in the news today in two separate cases: In the death penalty trial of confessed terrorist, Zacarias Moussaoui. His lawyers say he is too mentally ill to be executed; and at the Supreme Court today, justices heard arguments on the constitutionality on Arizona's very restrictive definitions of insanity.

We're joined by Dahlia Lithwick. She's legal analyst for the online magazine Slate and DAY TO DAY.

Dahlia, welcome back. And what about this Arizona death penalty case at the Supreme Court? What are the issues here?

Ms. DAHLIA LITHWICK (Legal Analyst, Slate Magazine): The case is depressing any way you slice it, Alex. You've got Eric Clark who is a 17 year old. Everyone agrees he was schizophrenic and actively psychotic, in and out of mental hospitals. He thought his parents were aliens. He shot and killed a policeman in Flagstaff, Arizona.

Arizona happens to be one of the many states that has really limited the insanity defense in several ways. Specifically, you can't use what's called a diminished capacity defense there. And you can't--and their legal test for what insanity is, is extremely narrow.

Essentially, the question for the Supreme Court today is going to be, how narrow is too narrow to violate the Constitution? Do you have some threshold constitutional right to make some kind of insanity defense?

This is going to be really significant, because some states have abolished the insanity defense altogether, and different states have very, very narrow versions of what it is to be insane as a legal matter.

CHADWICK: So, even if you're categorically schizophrenic and psychotic, that doesn't necessarily mean you're insane?

Ms. LITHWICK: That's right. The legal test, and it's a long-standing legal test, is much narrower than that. Again, in some jurisdictions, it differs, but at least in Arizona, the legal test is, were you too sick to know right from wrong? And whether or not that's a medical test is one of the things that's fraught in this case.

CHADWICK: Well, it's an issue, too, in the trial of Zacarias Moussaoui. His lawyer's saying he's too crazy to be executed. Is this claim similar to the issue in the Supreme Court?

Ms. LITHWICK: Well, it certainly looks similar. I mean, the claim on--the defense attorneys are making is the similar illness: paranoid schizophrenic, delusional, sounds a lot like Eric Clark.

It's different in that this is not a guilt phase. This is the penalty phase, and so it's being raised by the defense, not as a sort of a legal test, it's being raised as a mitigating factor.

Essentially, the jurors are being asked to weigh these aggravating factors. It was cruel and heinous. It was premeditated. The things we know that were horrible about 9/11. They're supposed to balance that against his mitigating factor which is that Moussaoui may be nuts. He thought the government was tracking him with an electric fan they left on his car. He thinks Bush is going to exchange him in a prisoner exchange. And, you know, he was subject to abuse as a child. His sisters and father are all institutionalized.

So, it comes up in a different way, essentially, to say to the jury, have a little compassion. This guy is really sick.'

CHADWICK: Why is it, Dahlia, that so many states define insanity differently from one another?

Ms. LITHWICK: Well, it's been left up to the states traditionally, as most sort of state criminal matters are. And the Supreme Court says the states have a--sort of a very wide latitude. For instance, some states have death penalty and some states don't. So, it's deemed a traditionally--a state matter.

And it's interesting because there really is a big disjunction between what some states do and some don't. Some states use this test called the McNaughton Test that we were talking about: Were you able to know what you were doing? Were you able to discern wrong from right?

Other states use a much broader view of what criminal insanity is. And then four states, as I said, have gone ahead and abolished this insanity defense altogether. So, it really is a wide, wide range out there.

CHADWICK: And it's become, really, a political issue as opposed to a medical issue in many places in the last decades. Why is it that the insanity defense is so controversial?

Ms. LITHWICK: There was just a sea change, Alex, after the John Hinckley acquittal. In 1981, when Hinckley shot President Reagan and was acquitted by reason of insanity, there was just a national furor of feeling that he walked away from it; he got away, literally, with, you know, just faking his way through a trial.

And there was a feeling that the states needed to clamp down and the government needed to clamp down. And so everyone did, and a lot of states--extremely, extremely narrow versions of what insanity is after that. And we're witnessing the fallout of that today.

CHADWICK: Dahlia Lithwick covers the courts for the online magazine, Slate, and offers opinion and analysis here at DAY TO DAY. Dahlia, thank you, again.

Ms. LITHWICK: My pleasure.

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