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The Insanity Defense – Part 3:Loyalty,Truth and Justice in the Psychiatrist-Defendant Relationship?

In part two I explored the ethical relationship between the psychiatrist and the court system. Now I will revisit the hired gun side of the psychiatrist, defendant, and attorney relationship.

If a psychiatrist has been hired by the defense, should the psychiatrist say what the defense wants him to? Should the defense psychiatrist accept the role of a hired gun? For instance, a doctor (let us call the Doctor A), might say he has been hired by the defense, and knows the prosecution will find a psychiatrist (whom we’ll call Doctor B) who doesn’t believe the insanity defense is applicable in this case.

Doctor B will say the defense was totally responsible. Doctor A’s job is to be an advocate for the defense because he is a hired gun; therefore his job is to give the best case he can to say the defendant was not responsible at the time of the crime. Does that mean he has to lie or twist the facts? He is there as an advocate for the defendant, and if he has experience as a hired gun for defense cases, he knows why he has been hired and what is expected of him. Or, should he lean towards a higher form of truth, realizing he is there to serve justice? If he finds he believed the defendant was sane, and knew what he was doing at the time of the crime, should he then say that in court?

This is a conflicting decision to make, as it throws the questions of loyalty verses truth and justice against each other. When a psychiatrist goes into the courtroom, he swears to tell the truth, the whole truth, and nothing but the truth. The court system however, does not always allow the truth to come out. He is obligated to answer the questions that are posed to him. If someone does not ask him the right questions, it is out of order for him to volunteer information the court ought to know in order to make a reasonable and just decision. He could be found in contempt of court for presenting information no one has asked to comment on, but that happens to be the most important for the decision.

Given this situation, should the psychiatrist or the expert witness wash their hands of the case, knowing the truth may not be presented? Would it be ethical for the defense psychiatrist, after he has testified on his client’s behalf, to offer a statement to the court, which would help the prosecution’s case because he felt there were some important issues that should be brought out?

In this case, one can only file a “friend of the court” petition with the consent of the parties being defended. It would be doubtful that the defense would consent to having an “off the record” supplementary statement filed by the psychiatrist, saying in effect that while he testified for the defense, he personally believes the defendant is guilty. This would not normally be allowed in court. The courts are mechanisms for dispute resolution and follow their own rules. Thus, injustice is sometimes what comes out of the court, and both the prosecution and the defense would likely agree with this point.

The public may have a jaundiced view of the insanity defense. Sometimes political pressure helps create an atmosphere where the best and right decision cannot be made. On many occasions a defendant will decide not to accept an insanity defense or other psychiatric defense for fear he will have to spend more time in an institution than he would if he pled guilty to a crime.

Many people would agree that given the choice of pleading guilty or walking out of the courtroom on probation, or pleading innocent and running the risk of going to jail, it would be advisable to enter a guilty plea even though you are innocent. Experienced psychiatrists are aware of this when they evaluate patients who are under the belief that if they are innocent, they should plead innocent. Part of the psychiatrist’s job is to explain to the attorneys that the defendant may not be mentally ill – they just don’t understand the court system.

We regularly read, regarding ethical issues, that it is unethical for a lawyer to enter a guilty plea on behalf of his client who is incompetent. Likewise, it is unethical for a lawyer to enter a guilty plea for his client if he knows his client is not guilty. In reality, though, if somebody questions his client’s competence, he will be obligated to have his client spend 30 days in confinement, awaiting a determination of whether he is competent. If he is found incompetent, he will spend 90 days in a state hospital waiting to be released. If however, he enters a guilty plea to begin with, regardless of the fact that he is incompetent to enter a guilty plea, the client on many occasions will walk out the same day.

One could question why the general public complains about the insanity defense undermining public justice, when what often happens is the undermining of justice in the American legal system.

By: Peter Sabbagh


NYCrime Stories latest micro-novel – A vampire did it!

NYCrimeStories NYCrimeStories NYCrimeStories second micro-novel is titled -A vampire did it! Read it on Twitter now, or in a couple of weeks on Resource for Social Media.

A psychological crime micro-novel by NYCity Crime Stories – Head Count

Ajay Kumar was born in Mumbai, India on August 1, 1961, and he is the oldest son in a family of four. He lived in India until the age of 10, when he and his father moved to NYC, leaving his mother and other members of his family behind. His father relocated America for employment purposes, living initially in the Bronx, and finally Brooklyn, where Ajay attended High School before enlisting in the US Army.

Ajay’s military records were marked by an increasing series of infractions leading to his not so honorable discharge 3 years later. His military record reflected infractions such as, selling Marijuana on base, disorderly conduct, threatening a superior officer, striking a superior officer, and resisting arrest. Despite three courts martial, and three punishments, he did not respond well to rehabilitation. A rehabilitation report did show that he reduced his misconduct, generally blamed other people and situations, and that he accepted little responsibility for his actions, believing instead that he was a victim.

Following his discharge from the military, Ajay worked as a mail room clerk for CBS TV located in midtown Manhattan, and lived with his father in Brooklyn. Ajay began his position at CBS in February, and in May was let go. His employment record noted that he came in late, and that he failed to deliver a $250.00 check which was later found in his desk at work. He held several jobs following his termination from CBS, one as a clerk at an express mail company, a phone solicitor for a financial services company, and in the evenings as a waiter at the Jackson Diner in Queens.

After working late one night, Ajay made a surprising discovery. It happened by accident when he paid a visit to his father’s apartment, he found his father Arun and David Hunter (a friend of Arun’s) nude, and watching TV together in the living room. Following this incident he and his father rarely spoke. Several months later, Arun returned to India to accept a lucrative engineering job offer with Infosys, a large information technology company located in Bangalore.Ajay then moved in with his Aunt Geeta and Uncle Sanjev in the predominantly Indian district known as Jackson Heights, Queens. Ajay’s Uncle Sanjev worked in Jackson Heights at the well known Indian restaurant, the Jackson Diner. Sanjev and Geeta looked after Ajay, since he had no other close relatives in American following his father’s return to India.

One day after Ajay returned home from work, Ajay’s Aunt Geeta informed him about his Father’s medical condition; Arun and his father’s boy friend David Hunter had been diagnosed with AIDS. Ajay’s Aunt Geeta also told him that she believed David Hunter was also having an affair with her husband Sanjev, and that she thought he could also have the HIV virus; Sanjev met David through Ajay’s father.

Following this news, Ajay became more introverted and insecure and began to immerse himself into the study and cultural practice of Hinduism, his religion of birth. He spent most of his free time at a Hindu Temple in Flushing, Queens, and followed Hinduisms cultural practices faithfully. He engaged in religious rituals on a daily basis, performed daily chores such as worshiping at the dawn after bathing (at his home made shrine, and lit a lamp and offered foodstuffs before the images of deities), recited from religious scripts, sang devotional hymns, meditated, chanted mantras, and recited scriptures. Ajay also believed in the efficacy of sacrifice and concept of merit, gained through the performance of charity or good works, which will accumulate over time and reduce sufferings in the next world.

After living with Aunt Geeta for several months, Ajay was asked to leave her home because he and his Uncle Sanjev were arguing almost every night about his father, Arun’s gay live style choices. Ajay was very insecure about his own identity, and found his father’s life style choices difficult to accept. Without a place to stay, Ajay decided to sleep at a Manhattan homeless shelter, his low salary was not sufficient to pay the rent for an apartment, and he had no close friends to share an apartment with. Following several weeks at the shelter, Ajay became restless with the shelter’s lack of privacy, and asked David Hunter if he could stay for a short time with him at his apartment in Queens. David agreed, and Ajay relocated to David’s apartment on a Friday night. David, ED (David’s friend from the apartment building) and Sanjev were all at the apartment having dinner when Ajay arrived with his belongings. After dinner Ed left, and David and Sanjev remained in the apartment together watching Television. After several hours Ajay left David’s apartment, and drove into Manhattan to go bar hopping.

At approximately 11PM, Ajay was traveling Eastbound on 42nd Street when he ran a red light at the intersection of Seventh Avenue, then struck a car along its rear right side; several bystanders were injured. When the EMS team arrived, Ajay was still sitting in the car. The injured were quickly treated, although Ajay refused treatment and tossed a bottle of beer at the EMS specialist who attempted to examine him. When the police arrived he immediately was placed under arrest, and Ajay was handcuffed so that the EMS team could check him for injuries. Ajay was read his Miranda Rights and taken to the Midtown Manhattan Precinct. A breathalyzer was administered at the Precinct. Ajay was found to have a blood alcohol level of point 1.1 %. Ajay was then hand cuffed, and Officer Price requested his identification. Ajay handed his wallet and envelope containing some papers to Officer Price. Price began looking through Ajay’s papers to verify his name and address. He found several credit cards and forms of ID. One ID was David Hunter’s Merrill Lynch ID, and a credit Card with David’s name on it. Officer Price asked Ajay why he was carrying David Hunter’s identification cards. Ajay replied that “they are my friend’s cards; I was taking care of him while he was home sick.”

Later that night, Officer Price attempted to verify Ajay’s story regarding David Hunter’s ID and credit card. Price was unable to confirm his story, because Ajay stated he did not remember David Hunter’s exact address or phone number. Price then called the Merrill Lynch office in Manhattan and verified David’s employment. He spoke to a night security guard and was able to verify David’s employment by instructing the guard to look up his name in the company personnel directory; he was then told to call the Personnel Manager in the morning for any additional information. Officer Price began a routine computer check of Motor Vehicle Bureau records for stolen vehicles; the vehicle was not reported stolen.  Although the next day an updated MVB report confirmed that the taxi involved in the accident was listed as stolen. Price also looked up David Hunter’s telephone number with the police departments online research service, and called his apartment, but no one answered. At the police automobile impound center, pictures of the stolen vehicle were then taken by Officer Rodrigo’s, and the car was vouchered and impounded. Rodrigo also contacted the owner of the taxi and requested that he come down to identify the automobile.

Officer Price then called Ajay’s Aunt Geeta. Geeta firmly told Price that she did not want to get involved with Ajay; and said that he was asked to leave her home several weeks ago. Geeta gave Officer Price David Hunter’s phone number, stating that Ajay was staying with him, and that Ajay’s Uncle Sanjev and David are good friends. While Price was trying to confirm if Ajay was illegally in possession of David’s credit card, Ajay was fingerprinted and transported to the NYC Metropolitan Correctional Center.

Price was not able to contact David Hunter by telephone, so he called the local police precinct in David’s Neighborhood, and asked them to send a police car over to investigate David’s story. The car accident was now being investigated by the Manhattan District Attorney’s office, and Officer Price made a statement regarding the case to the Assistant District Attorney in charge. Price also appeared at the Manhattan Grand Jury to testify regarding the facts of the case.

Officers Schwartz and Murphy of the Jackson Height’s Queens Precinct were assigned to Ajay’s DWI case, and were busy investigating the ownership of the credit cards found on Ajay the night of his arrest. They also went over to David Hunter’s apartment in Jackson Heights the day following his arrest to confirm his story. The request to question David had been made by Manhattan Police Officer Price the night Ajay was arrested. There was also a second independently made call to the local Jackson Heights, Queens Precinct by Ed, a friend of Hunter’s; Ed was worried about David, because David had not answered his calls for the past 12 hours.

When Officers Schwartz and Murphy arrived at David Hunter’s apartment building, they found Ed waiting for them outside the front door of the lobby. Ed showed the two Officers to apartment 7A, David Hunter’s apartment. Officer Schwartz asked Murphy if he remembered to bring the search warrant, Murphy replied yes, and Schwartz knocked on David’s door, but there was no response. He then knocked on the door of Apt 7B; once in the apartment he walked onto the terrace of 7B, and climbed onto the terrace of 7A. Murphy slid the terrace door open (it was unlocked), and entered David Hunter’s apartment. Officer Murphy immediately spotted the arms of a man on the floor in the bedroom; Murphy investigated the bedroom while Schwartz walked into the living room after hearing a voice coming from a television. Once in the living room, he noticed a chair with a high back in front of the television; he walked closer to the chair to see if someone was sitting in it, and discovered a man that had been decapitated. He then glanced down to the victim’s waist and discovered that there were two heads sitting on the victims lap facing the TV set. Murphy entered the living room and slowly said “the man in the bedroom was decapitated,” Schwartz replied, “we need a head count.”

Later that day forensics established that the two heads found in David’s apartment belonged with the two torsos the apartment. David Hunter was confirmed beheaded sitting in a chair in front of a TV, and Sanjev was identified as the man beheaded in the bedroom. The apartment did not show signs of disarray or that there had been a struggle between the murderer and the victims, and no weapons were found except for a knife sharpener in the bedroom where Sanjev was lying.

When Officer Price returned to work the next day, he found a message on his desk from Assistant District Attorney Carmine of the Queens DA’s Office. The message said that Ajay (defendant) was wanted for questioning about a crime in Queens County. Later that day, Ajay was questioned about the double murder case in Queens. Ajay made taped statement to Detective Lewis, and Assistant District Attorney Carmine of the Queens DA’s Office. He said that he knew both victims, and that he chose to stay at David’s apartment rather than at a shelter in NYC. He also said that his Aunt asked him to leave her apartment, and that he believed David and Sanjev had AIDS. He also felt homosexuality was an abnormal act, and not in keeping with his religious and cultural beliefs.

Ajay then raised his voice and shouted “the two men attempted to seduce me with drugs and alcohol”; “they tried to seduce me that night and wanted to get me high, forcing me to smoke marijuana and drink vodka.” This apparently made Ajay angry enough to kill them both. He believed killing them would stop the sexual threats and his fear of possibly contracting AIDS. At the police interview, Ajay also made a statement on video tape that he wanted to stop his Uncle’s relationship with David, because Sanjev was married to his Aunt Geeta, and all three men including his Father had AIDS. When Detective Lewis asked Ajay how he murdered the two men, Ajay replied, “I took a knife and stabbed David Hunter in the side of the neck while he was sitting in a chair in front of the TV, and stabbed Sanjev in the heart while he was lying face up sleeping in David’s bedroom.” Lewis asked him what he did next, and Ajay replied that he began to dismember the two bodies with a kitchen knife, leaving one body in the bedroom and the other in the chair with each head on the lap of David’s torso. “I positioned the two heads facing the TV, the same way that David Hunter and my father were facing when I discovered them nude in my fathers apartment.” I then took David Hunter’s credit card and Merrill Lynch ID, ran out of the apartment through the terrace door to a 711 two blocks away. While outside the store I noticed a taxi with the engine running and the driver inside the store, I stole the car and drove into Manhattan.”

Ajay’s received legal representation by Steve Sunstein, a Legal Aid appointed. Sunstein immediately notified the DA’s Office that Sanjev (Defendant) would be filing an Insanity Defense. Ajay wholeheartedly objected to using an insanity defense strategy and insisted that his actions at David’s apartment were in self-defense, and that he would not go to a mental hospital. Ajay also claimed that he did not recall some of the events that took place at David Hunter’s apartment, nor did he remember his tape recorded statement to the District Attorney.

Because of the extreme nature of the crime both attorneys agreed that Ajay should be examined by two mental health (as required in an insanity defense) specialists employed by the Queens County Correctional Facility.

Dr Albert, a Board Certified Psychiatrist was the first medial professional to examine Ajay. At the examination, Dr Albert found Ajay alert and cooperative. He also did not find signs of memory loss at the time of the examination, and believed that his memory was functioning normally. He asked Ajay if he knew what crime he was charged with, and he replied, “Murder 2, that is what my attorney told me.” He also did not appear to be hallucinating or delusional. Ajay did state that in the past he has heard voices. During the examination Ajay’s only apparent focus was on the legal issues of is case and is religion. He also requested a Ganish, the elephant-deity (lord of success and destroyer of evils, and obstacles). Following the examination, Dr Albert found Ajay fit to proceed (capable to stand trial), mentally competent at the time of the examination and crime, and ready to be tried in court for the alleged crimes.

The second evaluation of Ajay was by Dr Thakar, psychologist. It took place one day after Dr Albert’s examination. At the examination Ajay stated that he did not want to use the Insanity Defense, and that he was not crazy at the time of the crime. He was only defending himself at David Hunters apartment that night. “They tried to get me drunk and rape me,” he said to the psychologist. He also said that if he was found guilty, he did not want to be transferred to a mental hospital with all of the “crazy people”. “It was self-defense,” Ajay repeated, “I was physically held down and forced to take drugs, and drink alcohol by the two men that night, it was a life or death situation.” Ajay did not know what type of drugs he was allegedly forced to ingest, and reminded Dr Thakar that he did not remember making a police confession. On completion of Ajay’s examination,Dr Thakar found him to be manipulating and exploitative in his social relationships, and someone that needs to be at the center of attention. Dr Thakar also suggested that Ajay appears not to have suffered from a psychotic disorder. He may have abused drugs and possibly alcohol, but there was insufficient evidence to make this claim. At the conclusion of her evaluation she found Ajay fit to proceed to trial.

The trial venue for Ajay’s Murder trial was in Queens County, which is where the two murders took place. The car accident was a separate case in the jurisdiction of the Manhattan District Attorney.Queens County Assistant District Attorney, Mark Feldman requested Ajay to be examined by their (independent) Psychiatrist, Dr Berman. Dr Berman is known as a “hired gun”, or an independent examiner hired to support the DA’s position.

The normally ethical practice of psychiatry can sometimes be put into an ethical conflict when an independent psychiatric examiner is hired by the DA, or Defense Attorney to support a position in an insanity case. It is sometimes believed that the Prosecution will request a particular independent Doctor “hired gun”, to support their position in a legal case, and the defense will do the same. Once an independent “hired gun”, is asked to examine a Defendant, an experienced Doctor will ask the Defense or Prosecution what they want the patient examined for, and what the psychiatric legal issue is surrounding the case. A medical examiner with less experience as a “hired gun” will conduct this type of psychiatric examination, and make an evaluation shortly following the interview without initial strategic questioning to their client (DA or Defense Attorney) as to their motive. Ethically speaking, if a psychiatrist or psychologist hired to support an insanity defense discovers that following his or her examination a defendant is malingering (not really suffering from mental disease), is it their duty to continue to stay on the case? Or should they remove them self as a “hired gun” (advocate), of the case and possibly inform the other side.

Dr Berman’s examination of Ajay found that he was oriented to time and place, his statements were logical, goal oriented and relevant at the examination. Ajay also denied ever experiencing auditory or visual hallucinations, and no paranoid behavior was exhibited. Dr Berman determined that Ajay did harbor homicidal ideas towards the two victims’ found in the apartment beheaded, and appeared to have an antisocial personality. At the end of his examination Dr Berman concluded that Ajay was fit to proceed to trial.

During the trial several arrest related issues were contested, the first was if the arrest of Ajay (defendant) was technically proper. At trial, it was confirmed that Ajay was properly identified by several witnesses on the scene, and that he was in fact the person that ran the red light that caused the accident. The offer’s experience also came into question, and based on the officer’s extensive experience on the police force (10 years), witnesses, and follow-up breathalyzer test finding Ajay intoxicated at the time of arrest, Ajay was found responsible for the accident; and that there was sufficient information and evidence for probable cause to make his arrest.

The second issue raised by Ajay’s Attorney was if the tape recorded statement was properly taken. Ajay waived his right to have an attorney present, and the prosecution noted that there were moments during the confession when Ajay took charge of the interview, and offered additional information about the details of the crime, as if he was proud if the outcome. The prosecution further suggested that Ajay appeared to enjoy the fact that he was the center of attention during portions of the taped interview, which is evident by listening to the tape. Ajay also seemed to be without fear of the Assistant District Attorney Carmine, or detective during the confession process.

The third point argued at trial was that Ajay and his defense attorney did not request an expert independent medical witness to examine or appear on his behalf at trial, this was because of Ajay’s deep fear of being sent to a psychiatric institution. This defense (or lack of one) paved the way for Ajay to be tried for the double murder crime based on his argument of self-defense. Finally, three psychiatric evaluations found Ajay without a mental disease at the time of the crime.
At trial, Ajay agreed (against the wishes of his Attorney) to be questioned by Assistant District Attorney Carmine. One of the most damaging pieces of evidence used against Ajay was the taped confession following his arrest. He stated that after decapitating the two victims he carried the heads of David and Sanjev into the shower to clean them, and admired them as if they were trophies. He then returned to the living room and placed the victims’ heads on David Hunter’s lap facing the TV.

The jury was sequestered and deliberated over night. They returned the following day with a verdict, Ajay was found guilty on 2 counts of premeditated murder and criminal possession of a weapon. The confession statement, medical examinations, Ajay’s unwillingness to use an insanity defense as a  strategy, and the confirmation of the body identifications made it clear, beyond a reasonable doubt that Ajay was responsible for the crime.Ajay was sentenced to 25 years to life for the killing of David and Sanjev.

By: Peter Sabbagh