Further Thoughts on Manslaughter Plea

In my previous post, I was trying not to make a judgement, but rather to explain the legal background for any judgment of manslaughter though diminished responsibility. I'm very glad that's not a decision I have to make.

If I was making a judgement, it perhaps wouldn't be because he killed the children - because then he seems to have been on a killing spree, I think it is likely that after killing one person, the self-control which most people had was gone or certainly diminished. But the fact that the first victim was not his wife, but his father in law, sitting in a chair quietly, watching television seems to call into question his plea that it was his wife's behaviour which caused him to start the killings. If there is no evidence of any conflict between him and his father in law, it begs the question why he should suddenly fly at him rather than his wife - the more obvious first victim. And moreover, his wife was the last victim, not the first, which seems again inconsistent with his plea.

The problem of diminished responsibility - rather like that of depression (which has been the subject of a Radio 4 discussion recently) is to do with our model of rational agency. It is trying to fit into a model in which human beings are rational agents, responsible for their actions with one which takes a view that we are more at the mercy of our biology than we realise.

When Freud and Darwin enter, it gets even more complex, as instinct and unconscious motivations come into the modern picture. So that we can accept that someone can commit suicide if clinically depressed, and that people will behave in irrational ways because of emotions such as love which are (as Darwin) evolved precisely to ensure the primary function of procreation and survival of the gene pool.

But suicide also reflects this muddled view -  "while the balance of their mind is disturbed", suggesting there is a "healthy" state. And yet, as documented in a strange and very unsettling documentary by Sir Terry Pratchett, there are people who rationally take the decision to take their own life. It's just that contradicts the legal idea of rational agent where people don't do that in their proper frame of mind.

The rational agency model comes from Greek philosophy, the other one from modernity, with the enlightenment philosophy that there is really no such thing as free will, our actions are the results of chemical reactions within our brain, and we rationalise that after the event.

The most notable proponent in modern times was the philosopher Gilbert Ryle, in which he stated that there was no "Ghost in the Machine", but the basic picture goes back as far as Hume and Laplace. At its basics, if the world is strictly deterministic, in which cause follows effect, then brains must follow theoretically predicable patterns. There is no freewill, and from that, no responsibility. The most notorious statement of this was made by Richard Dawkins, but it is quite a widespread view:

Why is it that we humans find it almost impossible to accept such conclusions? Why do we vent such visceral hatred on child murderers, or on thuggish vandals, when we should simply regard them as faulty units that need fixing or replacing? Presumably because mental constructs like blame and responsibility, indeed evil and good, are built into our brains by millennia of Darwinian evolution. Assigning blame and responsibility is an aspect of the useful fiction of intentional agents that we construct in our brains as a means of short-cutting a truer analysis of what is going on in the world in which we have to live. My dangerous idea is that we shall eventually grow out of all this and even learn to laugh at it, just as we laugh at Basil Fawlty when he beats his car. But I fear it is unlikely that I shall ever reach that level of enlightenment. (1)

Nicole Vincent's paper "On the Relevance of Neuroscience to Criminal Responsibility" notes Dawkin's view among others:

Joshua Greene and Jonathan Cohen maintain that advances in neuroscience demonstrate that ''free will. is an illusion'' and so they contend that the criminal law's retributive aims should be replaced with such aims as deterrence, prevention and treatment (2004:224). Robert Sapolsky's discussion of the role that the frontal cortex plays in self-control is also a plea for ''a world of criminal justice in which there is no blame [but] only prior causes'' (2004:1794). Finally, Richard Dawkins takes an even harder stance against what he sees as ''the flawed concept of retributive'' punishment-he argues that ''as a moral principle [retribution] is incompatible with a scientific view of human behaviour'' because on his account ''a truly scientific, mechanistic view of the nervous system make[s] nonsense of the very idea of responsibility''-and so he too feels that the law's proper aims should be deterrence, prevention, treatment and perhaps removal of dangerous individuals from society, but certainly not retribution (2006). (2)

Vincent notes that "in philosophical discussions, responsibility is often talked about as if it were a single, unitary and generic concept." But she notes that - in contrast - within the criminal law, the word ''responsibility'' refers to at least six distinguishable ideas, which can be shown in Hart's famous parable about Smith the ship captain:

(1) Smith had always been an exceedingly responsible person, (2) and as captain of the ship he was responsible for the safety of his passengers and crew. However, on his last voyage he drank himself into a stupor, (3) and he was responsible for the loss of his ship and many lives. (4) Smith's defense attorney argued that the alcohol and Smith's transient depression were responsible for his misconduct, (5) but the prosecution's medical experts confirmed that Smith was fully responsible when he started drinking since he was not suffering from depression at that time. (6) Alas, his employer will probably have to take responsibility for this tragedy, since the victims' families' claims for damages far outstrip the limits of Smith's personal indemnity insurance policy.

Vincent notes that:

First, there is a claim about his virtue responsibility - Smith was normally a dependable person, someone who took his duties seriously, and who normally did the right thing. Second, there is a claim about Smith's role responsibility -  as the ship's captain Smith had certain duties to various parties, both on and off his ship. Third, there is a claim about his outcome responsibility-it is alleged that various states of affairs or outcomes, such as the loss of the ship and many of its passengers and crew, are rightly attributable to him as something that he did.  Fourth, there are two claims about causal responsibility-Smith's defense lawyer alleged that Smith's aberrant behaviour was caused by the alcohol and by his depression.  Fifth, there is a claim about Smith's capacity responsibility - since Smith was not suffering from depression at that time, the prosecution therefore argued that his mental capacities were fully intact, and hence that his moral agency was unimpaired.  And finally, the parable ends with comments about liability responsibility-about who should now do what to take due responsibility (or maybe even to be held responsible) for what has happened; in this case, the sanction of financial liability is mentioned because that is apparently one way in which responsibility might be taken, but we might also suppose that to personally take due responsibility Smith should also do other things such as apologising to the bereaved families or spending a term in prison. (2)

Vincent notes how this lead to a complex situation, in which reduced capacity, due to drugs (including prescribed medication) may lead to different evaluations depending on how the capacity is reduced:

But in law, a person's reduced capacity responsibility will often have the opposite effect on their role responsibilities - i.e. rather than expanding them.. the scope or range of a person's responsibilities might contract or shrink. This is, for instance, how we think about children and others whose mental capacity falls below the minimum threshold of fully responsible moral agency; their reduced capacity is taken as a reason to excuse them or to expect less of them, and thus subsequently to morally blame them for less. However, the relationship between capacity and role responsibility is even more complex than that, because not all instances of reduced capacity-for instance, not ones for which the person is responsible (e.g. drunkenness) - reduce the range or scope of a person's role responsibilities (2)

That neurological effects can determine behaviour is in no doubt. The case of Phineas Gage, a 25 year old railroad foreman is a case in point. In 1848, he was excavating rock when a premature explosion drove the tampering iron (1.1m long, 6 mm diameter) through his cheek and out through the vault of his skull. Amazingly he survived the ordeal, although he remained  semiconscious for a month. The result, as described by Dr Harlow, was of an extreme personality change from a pleasant man to an aggressive unpleasant one:

Dr Harlow's subsequent observations noted the bizarre change in Gage's personality. Immediately after physical recovery he described Gage as follows: "Remembers passing and past events correctly, as well before as since the injury. Intellectual manifestations feeble, being exceedingly capricious and childish, but with a will as indomitable as ever; is particularly obstinate; will not yield to restraint when it conflicts with his desires." Dr Harlow reports that Gage's employers, "who regarded him as the most efficient and capable foreman ... considered the change in his mind so marked that they could not give him his place again.... He is fitful, irreverent, indulging at times in the grossest profanity (which was not previously his custom), manifesting but little deference for his fellows, impatient of restraint or advice when it conflicts with his desires.... A child in his intellectual capacity and manifestations, he has the animal passions of a strong man.... His mind was radically changed, so decidedly that his friends and acquaintances said he was 'no longer Gage.'" (3)

David Ferrier's experimental work with animals some years later confirmed that the change in personality in Gage was due to the injury to the prefrontal cortex of the frontal lobes, affecting affect and emotion. So it is clear that neurology can play a part in determining behaviour, and this can be altered either because of injury or as a side effect of medication.

But Gale's case was an extreme in which his personality changed overnight, and for which there was a clear indicator of cause by a physical injury.  This is not the case with Damian Rzeszowski, although it appears he was on medication, and most notably recently, he claimed to have experienced hearing voices, which can be an indicator of mental breakdown,  and especially schizophrenia.

Consultant Psychiatrist Dr Dale Harrison has given evidence as to the following: "Because Damian's GP notes showed he had a short history of depression, it seemed appropriate to seek help from Broadmoor Psychiatric Hospital in the UK. On the 19th August, a team of psychiatrists from Broadmoor assessed Damian's mental state and concluded that before he killed he was suffering from a depressive illness, but doctors could not confirm any definite psychotic symptoms (hallucinations, obsessional or delusional beliefs)."

The problem is in ascertaining whether he is in fact hearing voices, heard voices at the time of the attack, and not simply saying that he is hearing voices. A study in 2004 noted that:

Auditory hallucinations are a frequent symptom in schizophrenia. While functional imaging studies have suggested the association of certain patterns of brain activity with sub-syndromes or single symptoms (e.g. positive symptoms such as hallucinations), there has been only limited evidence from structural imaging or post-mortem studies. (5)

This concluded that hearing voices was a complex phenomena, and while neurology studies using MRI can determine possible structural abnormality in the brain, that

Our results imply that auditory hallucinations are not associated with a single regional deficit. Rather, several nodes of a more complex circuitry might be involved. (5)

There are also problems with neurology due to the transient nature of most symptoms, particularly hallucinations.

The case studies from 1972 show how difficult it is to detect a fake. That year, David Rosenhan, a psychologist with a joint degree in law, called eight friends and asked them to fake their way into a mental hospital by pretending to hear voices.

The pseudopatients were to present themselves and say words along these lines: "I am hearing a voice. It is saying thud." Rosenhan specifically chose this complaint because nowhere in psychiatric literature are there any reports of any person hearing a voice that contains such obvious cartoon angst. (6)

However, while the psychiatrists were all taken in by this simple ruse, other patients were not:

The strange thing was, the other patients seemed to know that Rosenhan was normal, even while the doctors did not. One young man, coming up to Rosenhan in the dayroom, said "You're not crazy. You're a journalist or a professor." Another said, "You're checking up on the hospital." (6)

But experts are not always mislead. The case of Lionel Tate in 2005 is an example where symptoms of hearing voices were seen as a deceptive ploy. Two psychologists said the convicted killer was feigning hearing voices in his head. Tate faked mental problems after an older Broward County Jail inmate convinced the 18-year-old it would help his case:

The two psychologists, who examined Mr. Tate separately, testified at the hearing that he had been manipulative and uncooperative. One of them, Barton Jones, said Mr. Tate had appeared to be "feigning a mental disorder." The other, Trudy Block-Garfield, said, "I believe he tried to lead me to believe he was incompetent." (7)

In the case of Damian Rzeszowski, the question which must surely be asked: is there any evidence of his hearing voices - apart from his own testimony - before the killings? If there is none, it casts a doubt on his testimony, especially as he had been seen at the hospital shortly before. Why did he not mention it then?

Links
(1) http://www.freerepublic.com/focus/f-news/1723345/posts
(2) On the Relevance of Neuroscience to Criminal Responsibility, Nicole A Vincent
(3) http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1114479/
(4) http://www.angelfire.com/pro/lewiscs/humanitarian.html
(5) http://cercor.oxfordjournals.org/content/14/1/91.full
(6) http://www.thejoyofconcrete.org/students/apsych/insane/cuckoo.htm
(7) http://www.nytimes.com/2005/12/20/national/20tate.html?_r=1&ref=lioneltate