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The Insanity of the Insanity Defense

03/28/02 12:00AM By Cheryl Hanna

Twenty-one years ago this week John Hinckely Jr. shot President Reagan with the hope of impressing actress Jodi Foster. Most agreed that Hinckley wasn't entirely rational, but was he insane?

A federal jury said yes, and the verdict sparked a national debate over the insanity defense.

Now Robert Tulloch is scheduled to be tried next month for the murders of Dartmouth Professors Half and Susanne Zantop and many are again taking a hard look at the insanity defense.

It's been reported that Tulloch's attorneys plan to show that he has a genetic condition linked to an undiagnosed mental illness that caused him to kill the Zantops.

Whether or not Tulloch will be judged insane depends as much on where he is tried as it does on what the experts say about his mental condition.

Most states ask only whether a defendant knew right from wrong. This was the test that a Texas jury recently used when convicting Andrea Yeats of the first-degree murder of her five children, and that a Wisconsin jury used in 1992 when it found that Jeffrey Dahmer was sane when he murdered and cannibalized numerous young men.

In contrast, John Hinckley was convicted under a test that recognizes that a mental disease or defect may make it impossible for someone to control their actions, even if they know those actions to be wrong. The jury believed that Hinckley couldn't control himself.

If Hinkley had been tried in Wisconsin, he could well have been judged sane and punished accordingly. Dahmer, if tried in Washington D.C. in 1981, might still be in a mental hospital.

And if you tried Tulloch in Texas - no chance for acquittal.

But New Hampshire's law makes the case too hard to predict because it employs a rarely used standard. If Tulloch can prove that he suffered from a mental illness at the time of the murders then the jury is free to decide if that mental illness is responsible for his actions using whatever standard it wants.

Dostoevski, the great chronicler of the human condition, once wrote: "As profound as psychology is, it's a knife that cuts both ways."

The outcome of the case will likely hinge in part on what each side's experts say about the role any alleged mental illness played in Tulloch's actions.

What I find most troubling about this and other cases involving insanity is that the law forces people into one of two categories - sane or insane.

But the truth, no doubt, lies somewhere in between. Most people who kill don't fit so neatly into one category or the other, regardless of the test that is used.

Rather, they often occupy that gray area where illness and evil become almost indistinguishable. After all, sane people don't murder in cold blood, or do they?

This is Cheryl Hanna.

--Cheryl Hanna is a professor at Vermont Law School in South Royalton, Vermont.

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