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Nov. 28: Insanity defense, busy families

Posted - Nov. 28, 2010 at 9:00 a.m.



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In this Sunday Edition, experts explain the insanity defense strategy. Also, tips from a busy family and a psychologist on how to deal with the stress of racing from one extracurricular activity to another.

Segment 1: Insanity Defense

The trial of Brian David Mitchell is scheduled to resume in federal court in Salt Lake on Monday, Nov. 29. The jury has heard testimony from Elizabeth Smart and Wanda Barzee. The focus is going to shift to a battle of expert witnesses who will argue for and against the proposition that Mitchell can not be found guilty because he was insane at the time of his alleged crimes.

University of Utah law professor Daniel Medwed, attorney Greg Skordas and forensic psychologist Mark Zelig discuss the insanity defense.

Competency and insanity in the legal system differ in timing.

"Competency relates to whether or not you're mentally stable at the time of trial. Defendants have a constitutional right to participate and aid in their own defense. So competency concerns whether or not you have that capacity at the time of trial," explains Medwed. "Insanity has nothing to do with your mental state at the time of trial, instead it is retrospective, what was your mental state at the time of the crime. So the issue here is not Mitchell's competency, he's been deemed competent by Judge Kimball, the issue relates to whether or not he was insane at the time of the kidnapping."

These are not easy concepts for a jury to understand.


Insanity has nothing to do with your mental state at the time of trial, instead it is retrospective, what was your mental state at the time of the crime.

–Daniel Medwed


"Juries don't want to grasp those concepts. They are very uncomfortable with it," Skordas says. "People are uncomfortable with the notion that someone could commit a crime and in this case perhaps a violent, outrageous crime, and be found not guilty. But Congress has still said we need to acknowledge that some people don't have what we have historically called the mens rea, the mental state, to commit a crime. And in America you have to not only commit the crime but have some comprehension, some understanding that what you're doing is wrong. So in this case, in fact the defense hasn't argued for a minute that he didn't commit the act. What they're saying is that he didn't have the mental state to commit the act."

"It's something you use as a defense attorney when an expert says, 'Your client didn't know what he or she was doing.' That person, at the time the act occurred had no appreciation for the relevance, the concept of what they were doing. No appreciation that what they were doing was wrong," explains Skordas.

Psychologists and psychiatrists use science and take great care in determining a defendant's mental state.

"We have found that we need to do more than just simply ask the defendant what their version of the facts were," describes Zelig. "In addition to speaking with the defendant we look at psychological testing, we look at police reports, we even look at crime scene evidence. It's not unusual, for example, if a psychologist is posed that question, to look at the crime scene and say, does it look like the person who perpetrated this crime was confused or knew what they were doing."


People are uncomfortable with the notion that someone could commit a crime, and in this case perhaps a violent, outrageous crime, and be found not guilty.

–Greg Skordas


Zelig says only in a minority of cases where psychologists are called in to examine the defendant's mental state do they find insanity and generally when they do, everyone agrees.

"It's hard to find psychologists or psychiatrists that will endorse that, approximately on 30 percent of the time," Zelig explains. "In the great majority of cases, the experts actually agree with each other. Moreover, in the majority of the cases I've been involved with the prosecution and the defense concur. It usually isn't controversial."

Insanity defenses are very difficult to win.

"Typically defendants are on the defensive, the prosecution tries to prove guilt and the defense tries to knock down the prosecution's theory of the case. But with insanity, the defense has to play offense and prove by clear and convincing evidence, not only that the defendant was insane, but because of that insanity they were unable to know right from wrong, or to understand the nature and quality of their actions. That's a very high burden or bar to clear," explains Medwed.

Segment 2: Busy Families

No parents want their kids to be bored with nothing to do. But can parents bombard their children with too many activities? How many are too many, and how can you tell?

Martha Jackson and her twin daughters, Emma and Eliza, explain what their family does to manage the stress of being a busy family. The Jackson family includes eight busy children ranging in age from college to elementary school.

The Jacksons focus their extracurricular energy on music and dance lessons and playing sports.

"We choose activities that we think are important to our children and will help them in their future," explains Martha.

"I think we're busy but it's a manageable busy," says Eliza.

Eliza and Emma found themselves too busy and had to make some tough choices on which activities to halt.


We constantly look at our lives and see how we can make it better. We do a lot of talking and see where the children are and how they feel about things, so that we don't put too much on their plate.

–Martha Jackson


"We really love soccer but we wanted to keep up our violin and our dance so we prioritized and decided to drop soccer," explains Eliza.

"We've just had to make our choices and see what's the best decision we can make and see what we really want to do, and choose the ones that are most important to us and drop the ones that we don't really need to have in our life," Emma says.

When the family or a child feels overwhelmed the Jackson's use good communication and weekends or holidays to recharge.

"We constantly look at our lives and see how we can make it better. We do a lot of talking and see where the children are and how they feel about things, so that we don't put too much on their plate. And they are very responsible, each one of them does their own homework, they know what they need to do, they strive to get good grades," Martha explains. "If I were in charge of their lives, each one of them, I couldn't do it."

Segment 3: Tips from a Psychologist for Stressed Families

Jonathan Cox, a clinical psychologist at the University of Utah Child and Adolescent Behavioral Health Clinic, offers tips for stressed families.

There is no formula for how much stress a child or a family can handle.

"It differs for each child. Every child is different as far as how they handle and can manage stress and every family is different," explains Cox. "So it is really important for parents to get to know their child, get into their lives, talk to their children about how they're feeling about things and what their behaviors and their emotions to really get to know how each child is managing their stress."

Too much stress can be caused by parents or children or both.

"Sometimes the parents are the ones pushing it on the children, and the children push back, and sometimes the children want to do so much that the parents have to hold them back," Cox says.

Parents need to be the gatekeeper.

"One of the best things they can do is just sit down with the child, make a list of all the things that they want to do and that they have to do, and look at how much time each of those is going to take in a day," Cox describes. "If the list totals up to more than 24 hours they are not going to be able to manage it."

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