The Kickham Comment - Boston Criminal Attorney Blog
Now that the verdict is in on this case, the predictable debate over the insanity defense has followed in the vox populi. A number of media outlets have asked for my legal opinion on this verdict, and I’m proud to say that in the past 24 hours, I’ve appeared as a legal analyst on WGBH-TV’s Greater Boston with Emily Rooney, WBZ-AM Radio 1030’s Night Side With Dan Rea, as well as given interviews to New England Cable News and The Boston Herald.
Attorneys, editorial writers, bloggers and persons famous and unknown have opined about this case, this defense, and the verdict. Unscientific polls taken by some media (primarily the conservative talk radio show set,) have shown overwhelming support for the jury’s Guilty verdict. That’s understandable. Given that some of my statements to the media may have been received a little out of context, I’d like to put my position in writing for the record, here. For brief revisit of the insanity defense, see my previous post on this case.
A verdict of Not Guilty By Reason of Insanity does NOT mean that the defendant is released back into society, as though the verdict were simply “Not Guilty.” Essentially all defendants found Not Guilty By Reason of Insanity are committed to the state psychiatric hospital (Bridgewater State Hospital,) where they spend decades if not their entire lives behind bars and barbed wire. Also, a state “psychiatric hospital” is anything but a “hospital”, in the conventional sense of the word: It is the state prison for the criminally insane- surrounded by barbed wire, armed guards, searchlights, and everything you’d expect in a prison setting. While these defendants have a legal right to have their incarceration reviewed periodically, they are almost never released back into society. That’s just the practical reality.
Now that those issues are out of the way, some clarifications about where I stand on this defense: Some of my comments in the press seem to give the impression that I’m a strong advocate of the insanity defense; somem indicate that I believe that in this particular case, John Odgren should have been found Not Guilty By Reason of Insanity. Let me be clear: Neither is true. 1) As a Massachusetts murder defense attorney, I am not an advocate of using the insanity defense, for the primary reason that it almost never succeeds. 2) I believe that in this particular case, the evidence submitted into the record warranted a finding of a straight “Guilty” finding. What I said to the media, is that I believe that, when no other plea options are otherwise available, and when the evidence warrants it, a defense attorney should use the insanity defense and argue it vigorously. In the Odgren case, I think Odgren’s defense lawyer (Jonathan Shapiro) had no choice: One needn’t be a lawyer to see the limited options he had here: Odgren was found over the victim (James Alenson,) murder weapon in hand, his hands and clothes soaked in blood, admitting to all around him that he committed the murder.
The only other possible option that Odgren’s lawyer might have had (and I don’t know whether he had this optiuon or not,) was to attempt to negotiate a plea agreement with the office of Middlesex County District Attorney Gerald Leone, to reduce the charge to a lesser offense, such as Murder In the Second Degree, etc. The benefit of such a possibility, is that if the District attorney were willing to agree to a plea bargain for perhaps Murder Two, a life sentence would be imposed, but the defendant would have the possibility of parole in 15 years (an additional benefit is that the victim’s family would be spared the ordeal of a trial, re-living the events of the murder.) However, a jury verdict of Guilty on a charge of Murder One caries a life sentence, with no possibility of parole, ever. The possibility of a potential plea deal, however, exists only if the District Attorney is willing to offer the plea. In this case, we don’t know whether District Attorney Gerald Leone was willing to go that route. My guess is, he wasn’t. Speaking practically, he would have had little reason to: The evidence against Odgren was overwhelming, and the success record on the insanity defense in Massachusetts is almost zero. So from the Commonwealth’s perspective, why entertain a plea agreement?
That likely scenario (i.e., where no plea bargain was possible,) left Odgren’s lawyer with no choice. When I told the Boston Herald on April 29 2010 that Odgren’s lawyer “followed his conscience” in arguing this defense, I meant that his lawyer was making the best he could of the only defense option he was probably left with – the insanity defense. (And if I’m wrong about that, and the District Attorney was willing to offer a plea of Murder Two but Odgren’s lawyer rejected it, then I would characterize that decision as foolhardy.) I did not mean that I felt that an insanity defense was the one I would have chosen, if I had the option of negotiating a plea agreement. I did not mean that it is my opinion that the insanity defense is something that should be used often, or lightly. Nor did I intent to communicate that I felt Odgren was, in fact, legally insane at the time of this murder. I don’t feel the insanity defense should be used, unless there is no other legal option possible – largely because the success rate on this defense is so low. And importantly here, as a Norfolk County Massachusetts criminal defense lawyer, I don’t believe that John Odgren was legally insane at the time he committed this murder.
I believe that Odgren had several emotional problems, and apparently suffers from a mild form of Apserger’s Syndrome – but based on the evidence offered into the trial record, I don’t think he was, legally, insane at the time of the murder. Hence, I believe that the jury’s Guilty finding was, on a purely legal level, justified. A number of evidentiary factors cause me to arrive at this conclusion – most notably the following:
• Odgren had told several people prior to this killing that he knew how to plan the “perfect murder.”
• He had planned out the murder well in advance, choosing the particular bathroom in the high school and had planned an escape route (which became foiled when the victim stumbled out of the bathroom and out into the school hallway. There was also a witness in one of the bathroom stalls.)
• He exhibited consciousness of guilt immediately after the attack, telling people he shouldn’t have stabbed the victim.
• In tape-recorded phone conversations Odgren had with family members and friends from the jail before trial, he boasted of different stories he had given to police officers at the crime scene, and to police investigators afterward.
• He also boasted about knowing his Miranda rights when he was arrested.
The sum of these evidentiary factors lead me to conclude that, while Odgren clearly has emotional problems, he was nonetheless aware of what he was doing, was aware of the wrongfulness of his actions, and he exhibited considerable consciousness of guilt both before and after the murder. None of these factors supports a finding of Not Guilty By Reason of Insanity. Nonetheless, the jury did have the option of returning a finding of Murder In The Second Degree, and considering the plethora of Odgren’s emotional problems (which, while they did not render him legally insane, nonetheless left him a very disturbed individual,) and his young age at the time of this offense (16), I believe the jury should have opted for Murder Two. While this murder was barbaric, horrid and without any justification whatsoever, I believe there did exist facts that should have mitigated the jury’s verdict down to Murder Two. Again, while Odgren would have been eligible for parole after 15 years, an almost certain bet is that he would have spent at least twenty years in state prison (meaning he would be almost forty years old by the time he was released, in approximately 2030.) As for the immediate, I believe that Odgren should be transferred to Bridgewater State Hospital to serve his term and receive treatment for his emotional infirmities. Cedar Junction (Walpole) State Prison is not the appropriate facility for this 19 year-old boy. I don’t think that is liberal thinking, and I don’t think it’s conservative. I think it’s simply humane.
This case, which legally merited a Guilty finding, contrasts sharply with the John Salvi abortion shootings case in 1996, where the insanity defense was advanced (with no success.) In that very different case, the defendant was patently, clearly insane. (See my previous post.) Yet, that jury found him sane and guilty, and he was sentenced to life without possibility of parole, in a prison populated with some of the most violent, savage inmates imaginable. Salvi hung himself shortly afterward. Let me be clear: The world lost nothing great when John Salvi killed himself. But I think something of our humaneness was lost, in throwing a clearly insane man into a prison filled with sane but savage inmates. The goal of our criminal courts and the juries within them, is not to deliver vengeance – it is to deliver justice. And I submit that it is not just to throw an insane man into a prison filled with sane men who are some of the most violent criminals imaginable.
To repeat, I don’t ‘advocate’ the insanity defense. I simply believe that, when the evidence warrants it – as the evidence did in the John Salvi case and has in other cases – juries should be more open to considering it, and judges should be more open to more realistically instructing juries on what happens to a defendant who is so convicted: That the defendant will not walk free, but instead in all likelihood spend decades if not his entire life in a state mental hospital/prison. The public needs to know this, and more juries need to hear this, before they make their deliberations.