With the conviction of former fashion writer Peter Braunstein, another sensational trial has come and gone in New York City. This is nothing new. But this trial left its mark not only on the pages of tabloids but also on the letter of the law. Peter Braunstein was charged with kidnapping, sexual abuse, arson, burglary and robbery. On October 31, 2005, he faked a fire, pretended to be a firefighter to gain access to a former co-worker’s apartment and then drugged her, tied her up and sexually molested her for over thirteen hours. In his defense, his attorneys offered a new twist on two old favorites in criminal law: insanity and mens rea. One courtroom observer termed their strategy the “absence of intention” defense.
In his summation, the lead defense lawyer described how the serious mental deterioration of his client destroyed his ability to act intentionally. Because of his mental illness, he attacked his victim in a vague haze or improvisational fantasy, but most importantly, he attacked without intent. Thus, Peter Braunstein lacked the mental state required by statute to be guilty of these heinous crimes (in other words, the mens rea) and deserved to be acquitted.
Why the new defense? The defense team readily admitted that they wanted the jury to consider their client’s mental illness but had ruled out the classic insanity defense as being too narrow. In New York, a person is legally insane only if he lacks substantial capacity to know or appreciate the nature and consequences of his conduct or that his conduct was wrong. This precise definition reflects the national rejection of a broad approach to mental illness. However, the law on insanity has been broad before. In the past, some standards for insanity have simply asked whether a defendant’s conduct was the result of mental illness while others incorporated the concept that mental illness can lead to irresistible impulses. States rejected these more generous tests after the uproar when John Hinckley was acquitted on grounds of insanity for the attempted assassination of President Ronald Reagan in 1981.
Under their new absence of intention defense, Braunstein’s lawyers could go beyond the confining parameters of New York’s insanity definition. They could suggest that mental illness drove their client to kidnap and molest his victim, that there was a “biological” explanation for his behavior, and that he lacked any conscious control over his actions. Trial judge Thomas Farber had little choice but to allow evidence of how mental sickness affected the ability of the defendant to form the culpable mens rea required. This, after all, was nothing more than a classic failure of proof argument, simply rooted in mental illness.
The clever cloak of mens rea enabled the defense to introduce nifty brain scans, authoritative expert testimony and disturbing journal entries penned by the defendant himself. These brain scans were positron emission tomography or PET images of Peter Braunstein’s brain taken shortly after his arrest. A well-known expert psychiatrist named Dr. Monte Buchabaum testified that the brain scans proved Peter Braunstein suffered from schizophrenia and described the inability to plan, to think ahead and to make judgements. Excerpts from the defendant’s journal entries described conversations he had had with God, spewed hatred against people in the fashion industry and promised even more violence.
All of this evidence is familiar as the evidence typically featured in an insanity hearing. Indeed, defense expert Dr. Buchabaum is famous because of his past testimony in the federal case against mobster Vincent (The Chin) Gigante who initially tried to plea insanity but ultimately admitted to faking crazinesss in order to stay out of prison.
Consideration of all this evidence and discussion about mental illness and its effect on Braunstein’s behavior was an important victory for defendants everywhere. Even though the mental illness here did not fit within the narrow parameters of the legal insanity test in New York, the jury still got to hear all about Peter Braunstein’s mental problems. Such evidence slipped through a back door that was left open, even after the deliberate rejection of a broad approach to mental illness.
In Peter Braunstein’s case, this evidence did little good in the end. Maxine Rosenthal, the lead prosecutor, reminded the jury how the law only required that the defendant behaved with purpose and how this purpose need not be long-term. Instead, in the moments when Peter Braunstein pretended to be a firefighter, put a gun to his victim, tied her up, stripped her naked and abused her, he had to have acted with conscious objective. Four hours after receiving the case, the jury returned with a resounding decision to convict on all charges except arson.
Should this back door for mental illness exist in the criminal justice system? Upon learning of his son’s fate, Alberto Braunstein, the defendant’s father, remarked that mental illness has never been recognized in this country. This is an exaggeration, but he is correct that the law has yet to come up with a satisfying approach to mental illness and crime. Current definitions of insanity seem excessively strict and the admission of evidence through creative defense strategies is appealing, at least as a way to overcome their narrowness.
However, keep in mind that the next time a more compelling case comes along and a jury agrees that mental illness drove a defendant to commit a crime, the end result will be an acquittal for lack of proof and the defendant will walk out of the courtroom. Unlike the classic insanity plea, this latest “absence of intention” defense does not result in civil commitment to a mental health facility. Is this how we want our laws to deal with mental illness and crime? Probably not. Thus, this newest twist on criminal defenses may serve the limited purposes of individual defendants seeking to avoid liability but systemically, it is yet another important reminder of how we must come to terms with mental illness and crime and how we must strive to create a more lasting, satisfying resolution.