The Kickham Comment - Boston Criminal Attorney Blog

In my last entry, I spoke about how the evidence in the 1996 John Salvi murder case was overflowing with expert testimony that Salvi was insane at the time of the abortion clinic murders that he committed. Despite this, many observers wished there existed a death penalty in Massachusetts. To those who said this, (including non-attorney friends of mine) I argued that it was patently clear from both expert and non-expert testimony in that trial, that John Salvi was mentally ill, and hence that he should not be found “Guilty,” but instead “Not Guilty By Reason Of Insanity.” Yet, when people hear those first two words in an emotionally charged case such as the Salvi case, and now in the Odgren case, too many just can’t seem to handle it. Some just ‘blow up.’ The truth is, they can’t grasp this verdict. They don’t understand it. They think it means the defendant is freed from his handcuffs, to walk out of the courthouse. While the truth is far from this, at least the average person wasn’t instructed on this fact, as was the John Salvi jury. They knew the difference, which is:

A verdict of “Not Guilty By Reason Of Insanity” doesn’t mean the defendant didn’t commit the act. It doesn’t mean that he or she won’t be incarcerated for either a very, very long time or possibly life. The truth: The defendant will be locked away in a state correctional facility – it will just have a different sign on the front of it: A state hospital for the criminally insane. All this verdict means is that – legally – the defendant cannot be held to the same standard of judgment that a sane person would be held to (say, a gang member or mobster who killed for money).

But if anyone needs an example of just how resistant people are to the first two words in a verdict of “Not Guilty By Reason Of Insanity”, consider this: The jury in the John Salvi case knew the difference between this verdict, and a straight “Guilty” verdict. The knew the consequences of both. They knew that Salvi would not be released if they returned a verdict of Not Guilty By Reason Of Insanity – they knew he would be locked away. And yet they still judged this man as though he were entirely sane. Verdict: Guilty. Result: Life in prison in Cedar Junction state prison (formerly, and still, called “Walpole State Prison”) –housing the most violent, sadistic criminals the state has ever seen.

In my previous entry on this case, I made the point that when a jury returns a verdict that a defendant is found to be “Not Guilty By Reason Of Insanity”, that defendant is not released to the public, but is incarcerated in a state correctional facility for the criminally insane. When trying a case like this, the end purpose of justice should not be revenge. It should be two-fold: 1) Protecting the public from such a dangerous person, and 2) Treating that person. When sane defendants kill, and they are not legally determined to be “mentally ill,” they should be punished. That means locked up, and the rest of us made safe from them. Aside from “punishment”, many would say that is “vengeance.”. I think that is true.

But if this young boy in fact was prevented from controlling his thoughts or actions due to a medical condition, then justice is not served through vengeance. It would not be served by throwing him into the general population of a state prison – a hell few who have not seen such can understand.

I made this argument to friends of mine in the John Salvi case here in Massachusetts,12 years ago. (That case involved a man who went on a shooting spree at two abortion clinics in the Boston area, killing two women, while claiming that “Saint Paul and other saints” told him to “punish the wicked”). Prosecutors charged Salvi with First Degree Murder. Evidence in the case made clear that Salvi had suffered from schizophrenia since he was approximately 17 (he was in his mid-20’s at the time of the crime). He lived secluded alone in a trash-strewn, filth-ridden apartment – the equivalent of a garbage dump – the walls filled with his own written rantings on religion, and quotes from scripture about “sinners.” Witness after witness in his trial testified on the stand to observing years of his mental instability, his deranged behavior, and his non-sensical religious rantings. These witness included parishioners at a church who, recently before these murders, witnessed Salvi charge the altar, take over the lectern from a priest giving a sermon, and rant non-sensically about abortion and “sinners.” At that incident, Salvi was carried out of the church forcibly, legs and hands flailing. At his murder trial for the abortion killings, his defense lawyer produced expert psychiatrists in the field of schizophrenia, who testified unequivocally that Salvi was mentally ill, and that he lacked the necessary mental capacity to understand the criminal nature of his acts, and that he lacked the mental capacity to conform his actions to the rule of law.

But faced with a crime this incomprehensible, all of us – singularly the jury selected for this case – must ask: What makes people act this way? What could drive a 17-year old boy to murder another student, in cold blood, – and this is the key – for no apparent reason whatsoever? There seem to be very few answers, but, legally, one must be chosen.

Among them:

1) Odgren is (ongoingly) mentally ill. This is as opposed to the claim that didn’t understand the nature of his act, at the moment he committed it.

In my last entry that discussed the Lincoln, Massachusetts high school student accused of First Degree Murder in the killing of another student at Lincoln-Sudbury High School, I discussed John Odgren’s attorney’s reported plans to raise a defense of “Diminished Mental Capacity”. However, that’s a pretty general defense, and if it is ever going to succeed in any kind of trial like this one, the particulars of how and why the defendant could not understand that his acts were criminal, all have to be produced. If a defense attorney wants to win, he or she can’t just ‘claim’ a general defense like this. The specifics have to be ‘filled in.’ Odgren’s defense attorney reportedly plans to accomplish that here, by specifically claiming that his client suffers from “Asperger’s Syndrome” – a mild form of autism that some observers in the medical community assert is associated with thoughts of weapons and violence. Odgren’s defense intends to show that because he suffers from this disorder, he lacked the necessary mental capacity to premeditate the act or understand the criminality of his act – and hence, he cannot be guilty of the crime for which he is formally charged, Murder in the First Degree.

“What’s the big deal?” some might say. If the jury doesn’t find him guilty of First Degree Murder, they can find him guilty of Second Degree, or perhaps Third Degree Murder. Possibly, but the problem is, young John Odgren hasn’t been charged with those crimes – he’s only been indicted (so far) for First Degree Murder. His lawyer is trying to get that indictment thrown out, but so far, it hasn’t been. Were Odgren to remain indicted and charged only for First Degree Murder, and if his attorney could, through this defense theory, establish reasonable doubt in the minds of sufficient jurors that Odgren lacked the necessary ability to understand the criminality of his act, then he might be acquitted of the charge of Murder in the First Degree.

That seems to enrage a lot of people. Frankly, many people are tired of seeing high-profile defendants accused of horrific crimes, acquitted on the basis of “theoretical” or specious defenses. I understand how such people might feel. Their attitude: “Lock ’em up, and throw away the key.”

Welcome to my first blog post on this site. It’s my hope that readers will find my thoughts, opinions, musings and postings to be educational, informative, and, sometimes hopefully, provocative toward a better criminal justice system in Massachusetts, and in other states.

For this first entry, I’d like to comment about a case soon to be tried in Cambridge, Middlesex County, involving charges of First Degree Murder against John Odgren, a 17-year-old boy at Lincoln-Sudbury Regional High School here in Massachusetts. My first blog on this case will discuss what his anticipated defense is, and why he is entitled to it. A second blog, later, will discuss arguments, pro and con, for what are called “Professional Juries.”

Unlike many cases involving violent crimes in high schools, the high school in this case is nothing like so many of the underfunded, crowded, urban high schools in cities across the United States, where violence is sadly no stranger. It’s a highly-rated public high school, in an upscale town, surrounded by well-to-do, wealthy communities. And unlike many such youthful defendants accused of violent crime in schools, this defendant is anything but a gang member or local ‘tough’. He is a bespeckled, slight, and dimunitive student: To look at him, he resembles either Harry Potter or the proverbial “98-Pound Weakling.”