Trials: Do Mad Acts a Madman Make?

By Anastasia Toufexis

Jeffrey Dahmer's deeds beggar the imagination. The 31-year-old former chocolate-factory worker, who is charged with the murder of 15 young men, reportedly drugged some victims and performed crude lobotomies on them in an attempt to create zombie-like companions. He had sex with some corpses and dismembered bodies, tossing hands in a kettle and storing a severed head in the refrigerator as well as a heart to be eaten later. Who doubts that Dahmer's behavior is mad? But is he insane?

That's the vexing question that will face 12 jurors in the trial that opens this week in Milwaukee. Dahmer has pleaded guilty to the killings, but contends that he cannot be held criminally responsible because of mental illness. If found insane, he will be sent to a state mental hospital, where after a year he could begin petitioning for release; if judged sane, he will go to prison for life. The sensational trial is sure to reignite debate on the insanity defense, one of the messiest and most controversial areas of law.

To most Americans, the plea is a cop-out -- a too easy alibi that could allow monsters like Dahmer to return to the streets. In fact, the insanity defense is seldom used and rarely successful. Experts estimate the defense is raised in fewer than 1% of the 13 million criminal cases filed annually in the U.S. On those rare occasions where it succeeds, the offense is usually nonviolent, and the prosecution and defense agree that the accused is deranged. One example: a homeless person with schizophrenia who is charged with disorderly conduct.

Few defendants in homicides or assaults are acquitted on the ground of mental illness. Would-be presidential assassin John Hinckley's plea was accepted, but insanity claims by Hillside Strangler Kenneth Bianchi and mass murderer John Wayne Gacy were rebuffed. Experts predict Dahmer's bid will fail as well. "There is a point at which crimes reach such a magnitude that people don't care why someone did something," observes San Diego criminal attorney John Cotsirilos.

What makes the plea so difficult is that it is inherently confusing. "It's an attempt to explain rationally the irrational," says William Moffitt, an Alexandria, Va., defense attorney. The legal term insanity bears little resemblance to common parlance or even medical usage. Generally, the legal test is that at the time a crime was committed, the defendant was suffering from a mental defect that made him or her incapable of telling right from wrong. Some states also consider whether a defendant's mental illness impaired the ability to control one's actions. The Dahmer case is expected to hinge on this so-called irresistible-impulse defense.

Defendants over the years have advanced some bizarre arguments to assert insanity. Last year, for instance, a Florida forensic psychiatrist who was charged with bribery unsuccessfully argued that he was driven insane by his years of work with criminals. "Being a forensic psychiatrist for a long time is not a mental defect," declares Dr. Park Elliott Dietz of Newport Beach, Calif. Usually, defendants must have a defined mental illness. Moreover, it has to be directly linked to the crime. "Someone may have schizophrenia or manic-depressive illness, but that doesn't mean they didn't know what they were doing or couldn't control their conduct," explains Richard Rosner, a forensic psychiatrist at New York University school of medicine.

However, determining someone's past state of mind -- or competency to stand trial -- is an imprecise business. Psychiatrists review the accused's history, talk to relatives and friends and, most important, interview the defendant. Psychiatrist Dietz, who will serve as an expert witness for Dahmer's prosecutors, believes studying police evidence and the crime scene is also crucial. One sign that a defendant knew right from wrong: taking steps to avoid getting caught, such as hiding the victims' bodies.

Though psychiatrists claim they are adept at spotting fakers, they concede that mistakes do occur. Bianchi fooled some examiners into thinking he had a multiple-personality disorder before being unmasked. David ("Son of Sam") Berkowitz conned two psychiatrists with his tale of barking dogs conveying demonic messages to kill. Long after his trial, he admitted fabricating the story. Psychiatrists also note that attorneys sometimes withhold vital information, thus leading to incorrect conclusions about the accused's state of mind.

Murder defendants most likely to win insanity verdicts tend to have killed family members, often in a sudden outburst, and have no prior record of violence. "The jury identifies with that sort of person," explains forensic psychiatrist Emanuel Tanay of Wayne State University. Successful defendants also tend to be well educated and well funded. And it helps to be white: juries are more likely to send blacks to prison, whites to hospitals.

Such inequities outrage some experts. Psychiatrist Abraham L. Halpern of New York Medical College would like to see the insanity defense abolished: "It sends people who are not mentally ill to hospitals, while people with clear- cut psychiatric illnesses are left to deteriorate in prison without even | minimum therapy." But others believe that allowing the defense, with all its imperfections, is preferable to sentencing people who are mentally incapable of grasping their crimes to prison. Says psychiatrist Phillip Resnick of Case Western Reserve University: "By judging a person insane, we are saying they are not blameworthy, that they are not suitable for punishment." For Dahmer, that absolution seems remote.

With reporting by Georgia Pabst/Milwaukee and Elizabeth Rudulph/New York