Other Side of the Bench by David Seidemann


The gavel came crashing down and with it the hopes and dreams of children who wanted to go upstate for summer camp. Kids who needed a break from their parents, parents who needed a break from their children, children who just wanted to run free and breathe crisp country air will now have to contend with the heat and pizza lines of Central Avenue.

The Court ruled that the governor has the discretion and power to enact orders and to regulate behavior in the interest of public safety. Sick persons can be sent to nursing homes to get sicker, but healthy children must stay home. And so, following the spring of insanity, the summer of insanity continues.

Who would have believed that Hillary would lose in 2016? Who would have believed five months ago that Trump is in danger of losing his bid for a second term? But when the world is off-kilter, when insanity and panic rule, a rational analysis of what will better serve our country disappears into thin air. Faced with discomfort and uncertainty, people just want change, hoping that any change will stop the insanity. But that’s not the way a functioning society works, and people need to be careful what they wish for.

Then there are those who are so angry and misled by that anger that they mislead others. The merits of an issue are no longer the impetus for a decision. Rather, a person’s ideology, no matter how warped, shapes their opinion and actions. Does anyone seriously believe that Joe Biden has — or would have had six months ago — a better plan, a different plan?

Of course not, but in the summer of insanity it does not matter. One day Trump is at fault for not taking the pandemic too seriously and the next day he is at fault for shutting down the economy. Nobody has a better plan, no one has a different plan, but it does not matter. Not in this summer of insanity following the spring of insanity, which looks like it’s leading to a fall of insanity.

Harvard has already announced that fall classes will be online. But don’t worry — you still get to pay full tuition at the rate of close to $50,000 per year. It truly is insane.

The crime rate in New York is echoing the disaster of hot summers of years ago. Anyone with any sense knows it’s because of bail reform, the release of prisoners from lockup due to COVID concerns, and primarily because the mayor has made it impossible for the police to police.

Every wannabe criminal knows that there is a better chance that the officer who might arrest him will have to answer more questions about his behavior than the criminal himself will have to answer. So why not take a chance on looting a store, assaulting an elderly woman as she walks in the Bronx, or shooting a man as he holds his six-year-old daughter’s hand? Insanity. Zero personal responsibility.

Before shifting my practice to civil litigation many years ago, I practiced a fair amount of criminal law. It wasn’t for me. I was often involved in cases where the defendant, accused of a dastardly act, would want to assert the insanity defense. In a nutshell, the insanity defense allows a defendant to escape criminal liability for his or her crime if he can prove that he suffered from a mental disease that prevented him from controlling his actions or from appreciating cognitively that those actions were wrong. Like the affirmative defense of entrapment, the defense rarely works. Most people know what they’re doing — except, perhaps, in this summer of insanity.

The seminal question is whether this ability to assert the insanity defense is a right guaranteed by the Constitution or whether it is up to each jurisdiction to decide for itself whether to make this affirmative defense available to defendants charged in that jurisdiction.

In 1995, the State of Kansas abolished the insanity defense, joining three other states that have done so. In Kansas, one can no longer be found not guilty of a crime by reason of insanity. This is not to say that one’s mental capacity cannot be considered by the jury. But instead of being found not guilty because one is insane, the insanity can now be considered only as a mitigating factor in sentencing.

On March 23, 2020, the Supreme Court of the United States reviewed the Kansas statute that had abolished the insanity defense. A defendant appealed his conviction, arguing that the 1995 law was unconstitutional and that every defendant has the constitutional right to assert the insanity defense.

The Supreme Court upheld the validity of the Kansas law, and the defendant’s murder conviction remained intact. He had argued that the loss of his job and his divorce had made him so depressed that he could not appreciate the consequences of his actions when he killed his estranged wife, his wife’s grandmother, and their two teenage daughters.

To be accurate, the majority opinion did not pass judgment on the wisdom of the law, but only that each state has the right to decide for itself whether to afford that defense to the accused at trial.

Justice Breyer, in his dissent, noted that the insanity defense is well-rooted in the legal history of this country and that the fact that only a handful of states have done away with it is indicative of its importance.

The decline in quality of life in our major cities brought about by mayors and governors who prevaricate instead of lead makes it obvious, at least to this writer, that the insanity defense is alive but not well.

David Seidemann is a partner with the law firm of Seidemann and Mermelstein and serves as a professor of business law at Touro College. He can be reached at 718-692-1013 or ds@lawofficesm.com.


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