Daniel Larson:
Good evening and welcome to this evening's Virtual Faculty in the Field Program with Professor Dan Breen. Thank you for joining us. I see the room is quickly filling up here, which is wonderful. As people are filing into the room, I just want to let you know that we'll have an opportunity to ask professor Breen any questions. You can include those questions in the Q&A box as part of your Zoom taskbar. To kick things off, we'll now pass things off to Sharon Rosenberg, Brandeis class of 2000, Senior Director of Alumni Relations to welcome professor Breen. Sharon.
Sharon Rosenberg:
Thank you Daniel. Welcome and thanks to all of you for joining us. Good evening, good afternoon, good morning to the more than 200 Brandeis alumni, parents, Brandeis National Committee members and friends who are registered for this event across geography and time zones. To introduce our speaker, Dan Breen is a lecturer in the legal studies program at Brandeis. He has been teaching at Brandeis since 1998. One of his courses is Louis Brandeis; Law, Business and Politics. He also teaches the legal boundaries of public and private life, civil liberties in America, business law and science on trial.
Sharon Rosenberg:
In 2017, he received the Louis Dembitz Brandeis Prize for excellence in teaching, which honors an individual for his or her outstanding teaching. Over the past several years, Professor Breen has gone on the road to speak to alumni, parents and Brandeis National Committee Members across the U.S. and internationally. We are thrilled that he is able to join us in this virtual space and share his thought-provoking talks with even more of us. Welcome, Professor Breen.
Dan Breen:
Well, hello everybody. I'm very glad to virtually see you all. I'm broadcasting to you live from the regal splendor of my attic here in Somerville, Massachusetts. And what I would like to do first of all is to apologize for that screen some of you saw when you tuned in, of my picture. I know that could not have been a very pleasant experience. And speaking of experiences that may not be terribly pleasant, I'm going to apologize if my sound breaks up a little. I'm not sure the internet connection is very good today, but we're going to do our best and maybe I'll try to talk just a bit slower than I often talk, so that if the sound does break up a little bit, it won't be too awful for all of you. But I'm very grateful for all of you for joining us this evening.
Dan Breen:
And what I'd like to talk about is a case that because of so much else that was going on, this was at the beginning of the great lockdown in late March of this year, 2020, didn't get a whole lot of public commentary, but that was the case of Kahler versus Kansas. And what I'd like to do as we go along, is draw some parallels between that case from late March 2020, and a much more famous case, the case as we're about to see by Dan Sickles from 1859. And as I do so, and as I go along, there'll be a couple of polling questions so you can participate with a couple of questions, and we can all hear what your opinions might be about some of what I say.
Dan Breen:
And I do want to, before I get going in earnest, assure you that it could be that some of what I say in regard to the theory I have about the relationship between Kahler and the Sickles case may not actually be correct. It may be deeply problematic. But after all, we do live in an age of miracles. We've been able to send probes to Pluto, for crying out loud. If he can do that, if he can engage in that kind of miraculous activity, it may well be possible for me to be wrong and maybe we shouldn't be surprised at that. Let's get started in earnest as I share my screen here. And with any luck, this tool is a complete disaster, but we'll begin at the beginning with our title screen and then we'll go into the case for today.
Dan Breen:
And at this might be not such a bad time to summarize that case. I have this slide, here mostly because I wanted to show off my background skills in Google slides, but it also gives you an idea of the main topic that I'll eventually be getting to. And that is what science has to say about this contentious issue, which as we'll see, has a lot to do with the insanity defense. This story starts out as too many legal stories do, with a very sad set of circumstances. In 2009, Karen Kahler asked for a divorce from her husband, Craig. They were living, I believe in Columbia, Missouri at the time. After she asked for the divorce, she moved out taking with her the couple's three children, two daughters and a son.
Dan Breen:
Karen moved to Kansas, all this, remember, in 2009, leaving Craig back in Columbia. Craig at the time, based upon what the medical professionals have to say, was suffering from severe depression. And it was in late 2009, in fact, Thanksgiving, that Craig drove from Missouri to Kansas, knowing that Karen and the kids were spending Thanksgiving with Karen's grandmother in Burlingame, Kansas. On the Friday after Thanksgiving, Craig Kahler burst into the door of the grandmother's house, found Karen, killed her, killed her grandmother, and then also killed his two daughters. The only person who escaped was the son.
Dan Breen:
There was no doubt about it, of course, that he had committed the crime, no doubt about that at any point. But what his lawyers wanted to do was raise an insanity defense. And specifically what they wanted to try to demonstrate to the jury was that it would be improper to let the criminal responsibility on Kahler because at the time of the crime, he was suffering from such severe mental illness that he could not tell right from wrong or conform his actions to standards of right and wrong. And that leads us to the first major topic for today, which has to do with what exactly these lawyers were trying to do and why this would be even an issue.
Dan Breen:
And that has to do with one of the most famous cases in the British legal tradition, and that case has to do with this man here. That's Daniel M'Naughten, who in 1843 was living as a very prosperous wood turner in Glasgow, in Scotland. According to the generally accepted version of the story, which many people think might be wrong in certain particulars, at some point in 1843, M'Naughten conceived this belief that he was being persecuted by the governing Tory Party of Great Britain, led by its prime minister, Sir Robert Peel. Eventually, these ideas of persecution led him to believe that the only way out according to the story was to kill the prime minister himself.
Dan Breen:
And so, M'Naughten left Glasgow, went to London, of course, the seat of the British government, and then began to lay in wait near Downing Street, where as we know the prime minister's residence is. One night, there's M'Naughten, waiting for Peel to emerge from Downing Street. And coming in his direction was a man that M'Naughten thought looked a great deal like Sir Robert Peel. This, remember, was the 1840s, a time when it was more difficult than it is today or would be shortly after the 1840s to actually know what people look like.
Dan Breen:
And M'Naughten sees this person coming towards him, and believing, we think, it was Sir Robert Peel, he opened fire. Unfortunately, for everybody concerned, as a matter of fact, the person who M'Naughten killed was not in fact Peel. It was a man named Edward Drummond who was a secretary to the Tory government of Great Britain. Drummond was shot. He lingered for five days but eventually died. Sir Robert Peel was not harmed at all and he would live until 1850. He would die on July 2nd, a very significant date that happens to be my birthday. And we'll see a little bit later why that's significant, in addition.
Dan Breen:
Well, once Drummond was found to be dead, M'Naughten, of course, was put on trial for homicide. And his lawyers, who were very good, M'Naughten had some money and these lawyers were quite good, argued that it would be unjust to send M'Naughten to prison, because laboring under these delusions as he was, he did not know or did not believe it to be wrong to kill sir Robert Peel, or in this case, the man he actually killed, Edward Drummond. And in fact, the jury at the Old Bailey believed this, that it would be unfair to sentence M'Naughten to jail, to prison.
Dan Breen:
And so, they ruled that in fact, he was insane at the time of the trial. And as a consequence, he didn't go to prison. Instead, he went to the Royal Bethlem Hospital. It used to be known as Bedlam, where those that should be insane were commonly kept at that point in the mid-19th century. Just to summarize, perhaps to over simplify, the M'Naughten Rule tells us this, that if a defendant is charged with a crime, we always know that the prosecution, it's their responsibility to prove that the defendant had criminal intent, that the defendant actually meant to break the law.
Dan Breen:
If you suffer under a mental illness, that means you don't know or don't appreciate that what you're doing is actually illegal, then you would lack that requisite criminal intent. And as a consequence, it would be unfair according to the M'Naughten Rule to send you to prison as a conventional criminal. You'd be, in fact, judged insane, perhaps sent to an institution, but you wouldn't go to jail under conventional criminal responsibility. An example of that would be a case where perhaps you see coming in your direction, a threatening person, but you think the person is a robot. You opened fire on the person thinking the person is a robot and you kill the robot.
Dan Breen:
Well, in your mental universe, you did not think you were killing a person, so you had no homicidal intent. You didn't mean to commit murder as conventionally defined. You meant to kill a robot. And therefore, letter A here under M'Naughten may apply to you. You did not know what you thought you were doing was actually against the law. But the more common ground for an insanity plea in the ground that applied more closely to M'Naughten is B. And under letter B in the M'Naughten Rule, you may know as the defendant that what you're doing is in fact illegal, but you are not equipped to understand that what you're doing is wrongful.
Dan Breen:
And an example of that might be the case where you're suffering under a delusion that God is speaking to you to kill a servant of the devil. And you see somebody approaching to you, identified by a voice in your head as the servant of the devil, and you open fire, and you'll kill that person. Now, that's homicide. And you knew you were killing a person, but you didn't know that doing so was wrongful. In fact, you thought you were doing the right thing. You thought you were killing a servant of the devil.
Dan Breen:
In our case here in Kansas, what Kahler's lawyers wanted to do was introduce evidence that, in fact, mental health professionals were willing to testify to that at the time under horrible circumstances in Burlingame, Kansas, when Kahler killed his wife, her grandmother and their two daughters, that not only was Kahler suffering under severe depression, he was also suffering under what the expert witnesses were prepared to say was a mixed, obsessive, compulsive, narcissistic, histrionic disorder that did not equip him, in fact, rendered it impossible for him to properly understand that what he was doing was wrongful.
Dan Breen:
His problem though, is that under Kansas law, he could not plead that element of the M'Naughten rule. Letter A would be okay if he didn't know this was illegal, he could have made a defense that basis. But Kansas, in common with four other states, had taken away the other part of the M'Naughten Rule. And instead, told defendants you can no longer issue an insanity plea on the grounds that you could not tell the wrongfulness of your action, you could not properly discern right from wrong and act accordingly.
Dan Breen:
The issue in the case is actually our first polling question, and I really hope that all of you have been able to follow me so far, and I do apologize if I've been breaking up a little bit. But maybe now if possible, we could bring up that first polling question. And as we do so, you'll get a chance to respond. At this point, here's polling question number one. I'll read it out to everybody and then maybe we can tabulate the results. Do you think it is fair or unfair for the state of Kansas to bar defendants from posing an insanity defense on the grounds that they could not appreciate the wrongfulness of their actions?
Dan Breen:
And before you vote, keep in mind that what we're not doing here, we're not saying is he guilty or innocent, Kahler. All we're saying is that is it fundamentally unfair for a Kansas to deprive a criminal defendant of the ability to plead insanity on those grounds. Keep in mind that in our system, it's usually thought of as a deprivation of due process of law if there's something fundamentally unfair about the process that convicts you, and that's why this is a relevant question, and that's what the Supreme Court had to decide in this case.
Dan Breen:
Let's see what the answers might be. Go ahead and vote if you want to. Is there a fundamental unfairness about taking away that grounds for the insanity plea in the state of Kansas? And now I guess we pause while people submit their votes. I'd be curious to see what the results will eventually be, and maybe they can be tabulated in real time. And I think if all goes according to plan, somebody will come in with at least some preliminary results. I'll just maybe pause for the time being while we do so. And it looks like we got so far, at least a working majority for unfair, 74% to 26%. I don't know if everybody could see that, but that actually is pretty close to what the dissenter said, that there was a fundamental unfairness about what Kansas did.
Dan Breen:
But those of you who voted fair happened to be in the company of the majority in this case. Let's now move on to the case itself. As I said, the Supreme Court through the pen of Justice Kagan and the usual, very close, five to four majority, determined that Kansas did not violate due process of law when it deprived defendants of that element of the M'Naughten Rule. Here's why, and then we'll get to the meat of the matter here, which is the Sickles case. Here's what Justice Kagan said. And the idea here is simply that reasonable minds can differ about what it means to be legally insane.
Dan Breen:
And so, this is what I think the opinion really amounts to these words from Justice Kagan's majority opinion. “Defining the precise relationship between criminal culpability and mental illness involves examining the workings of the brain, the purposes of criminal law, the ideas of freewill and responsibility. It is a project demanding hard choices and values in a context replete with uncertainty.” Based upon that idea, according to the majority, Kansas is free to experiment with different concepts of what the insanity defense might be or what it actually means to be criminally insane.
Dan Breen:
And in Justice Kagan's opinion, we meet with a very scholarly array of common law authorities about what insanity in our legal history has meant in the 18th century among the treatise writers who helped shape the common law tradition. But what we don't get is a reference to one of the briefs in the case from the American Psychiatric Association. What the APA said in their brief is that there actually is at least a working consensus among mental health professionals, is that some types of mental illness do compromise our ability to discern or understand or appreciate the wrongfulness of what we do.
Dan Breen:
Maybe you have general delusions of grandeur that make you think that what you do is perforce okay and right. Maybe, for example, you have delusions of persecution, which is what Great Britain said was the case with M'Naughten, which also compromises your ability to know right from wrong and conform your actions to that knowledge. But nevertheless, what we have is an opinion that certifies the legality, the constitutionality of what Kansas had done. And just before we go to the Sickles case, let me just summarize maybe what the basic state of affairs here is.
Dan Breen:
What the Supreme Court had just ruled essentially is that although Kahler may have suffered under an individual mental illness that carried with it certain delusions, certain things about reality that he didn't understand, that he couldn't appreciate. Nevertheless, that individual singular mental universe is not enough to permit an insanity plea. And instead, Kahler, without issuing such a plea, must take his chances with the jury based upon the facts of what happened in Burlingame, Kansas that afternoon. And what happened was he was convicted of murder and sentenced to death. He is now, I believe, on death row in Kansas.
Dan Breen:
Now, to me, there's something interesting about that case, but the only way to know what's so interesting about it is to compare this case with the next case. The next case on our list is a much more famous case and that case involves this man here. Now, to the extent that you know who this man is, chances are you know him from his service as you can see in the photograph in the Civil War. Now, as the slide, if you can read it, tells us Dan Sickles may or may not have been born in 1819. That's what the question mark is there for. He may have been born in 1825, but he was certainly born at some point.
Dan Breen:
And the other thing that we know is that as of the 1860s, he was serving, as you can see here, as a major general in the army of the Potomac during the Civil War. It was Dan Sickles, who on the fateful morning of the second day of the battle of Gettysburg, July 2nd, 1863, which as I hope you know by now is my birthday, feel free to make whatever arrangements you want to do on that day from here on in. On that morning of July 2nd, 1863, it was Dan Sickles who led his Third Corps off of Cemetery Ridge, into the swale between Cemetery Ridge and Confederate positions near Seminary Ridge.
Dan Breen:
And they took up positions isolated from the rest of the army, the Potomac, along the Emmetsburg Road. And because of that fateful disposition, Dan Sickles' Third Corp spent the rest of that afternoon being chewed up by General Longstreet's Corp with what almost were catastrophic consequences for the union army. But they certainly had catastrophic consequences for Dan Sickles, because among other things, as we'll see… I just have to get back to screen. He happened to be in the wrong place at the wrong time while an errant Confederate cannonball came bounding along the grass and took off his right leg. And there you see his right leg that may or may not have been born in 1819 along with Dan Sickles.
Dan Breen:
And no visit to Washington, D.C. is complete without a visit to Silver Spring and the National Museum of Health and Medicine, where if all goes well, you can see for yourself Dan Sickles' leg, which has been there for well over a century now. Sickles, having lost that leg at Gettysburg, would go on to have a very interesting career after that. But our story has nothing to do with that. It has to do with his career before that, when Dan Sickles was a young man on the make and at a very early age, studying law in New York. He came to live in the household in Manhattan of this man here, and that is Lorenzo Da Ponte, famous as a librettist for Mozart, Don Giovanni, Marriage of Figaro. These were all the work of librettos at least of Da Ponte.
Dan Breen:
And it was in that house that Sickles came to stay for a while. A remarkable man, indeed. Not only did he write those librettos, but he also presided over the founding of the first opera house in Manhattan. And Da Ponte was the first person born a Jew to be on the Columbia University faculty. And in addition to that, as if that weren't enough, he was also the first person ordained a Catholic priest to be on the Columbia University faculty. Interesting household indeed. But what made it particularly interesting for Sickles perhaps was the fact that in that household was a woman, a very young woman, that he met her actually when she was just a girl named Teresa Bagioli.
Dan Breen:
Now, Teresa Bagioli was the granddaughter of Lorenzo Da Ponte, and by the time she was 15, Dan Sickles, who by then was I think 32, decided that he wanted to marry her. And this caused some consternation in the Da Ponte household. Not only was she only 15, but also Sickles probably did date for a while, her mother while he was staying at the Da Ponte household. Despite those reasons or grounds for objections, the marriage took place. And Sickles, shortly after the marriage, having been elected to the State Assembly in Albany from his district in Manhattan, decided to go up to Albany and in the process, showed very little respect for his marriage vows, a habit that would stay with him, unfortunately, for the next couple decades.
Dan Breen:
He went up to Albany and as he went out there, he took with him a remarkable woman named Fanny White, who you see here. Fanny White was presented to people at the assembly on Dan Sickles arm, and that got Dan Sickles in trouble walking around Albany with Fanny White because Fanny White was well known to some of those assembly members as the keeper of a brothel on Mercer Street in the Soho section of Manhattan. And because of these actions, Sickles was actually officially sanctioned by the state assembly of New York.
Dan Breen:
He later, and here's our trivia question. I don't think I told you this, but there's a trivia question, and here it is. Shortly after this, Sickles was named to a diplomatic mission being headed by his friend, James Buchanan, later the president. And at first what Sickles decided to do was take Fanny White with him and not Teresa. And he actually seems to have presented Fanny White to Queen Victoria. He didn't present her, however, under her name, Fanny White. He presented her under the name of Augusta Bennett. And we think he might have chosen the name Bennett to present Fanny White under to the queen because his arch enemy back in Manhattan was none other than James Gordon Bennett, publisher of the New York Herald.
Dan Breen:
And James Gordon Bennett, famous journalist, has the distinction of being the first journalist to interview a sitting president in the White House. And who was that president? That's our trivia question. Going once, going twice. Any, you all got it. None other than Martin van Buren. Back to New York ultimately Sickles goes, and we next hear of him, for art purposes, just a few years later in 1856, in that year, 1856, Sickles, having been married to Teresa for about three years by then, was elected to Congress. And so, he decided to take Teresa with him to Washington, D.C., where he would begin his term in Congress in the December 1887 term.
Dan Breen:
And there's where they live. That's beautiful Lafayette Square in Washington, D.C. When they arrived in Washington, and this is actually important to our story, Mr. and Mrs. Sickles met a real mover and shaker in Washington. One of these people who knows everybody, and that guy set them up with a lease at one of the nicest town homes on Lafayette Square overlooking the park, known as the Stockton Mansion, and the man who did that for them, who acted in good offices to set them up at this very nice place, was that man there. And that's Philip Barton Key.
Dan Breen:
Philip Barton Key was known as the handsomest man in Washington. He's a bit older than Teresa at this time. Famous partly as the son of Francis Scott Key, the famous author of the Star Spangled Banner. But Philip Barton Key was also the nephew [inaudible 00:26:47] of the United States, and he was U.S. attorney in the District of Columbia. He was somebody everybody knew, somebody with a lot of influence, and he certainly very quickly became a friend of the family. Now we don't know exactly when it happened, but we think sometime in 1858, maybe midway through the year, Philip Barton Key began an affair with Teresa, Mrs. Sickles.
Dan Breen:
Dan Sickles, as we've already seen, had long been an unfaithful husband. We don't know if that was part of Teresa's reasoning, how much she knew about this, but we do know she was much attracted to Philip Barton Key, and the two of them began seeing each other romantically without Sickles knowing about it, of course. Now and then, Philip Barton Key would come by Lafayette Square and he would look up to the second floor window to see if Teresa was there to signal him that the coast was clear, and he could enter the house, that Dan Sickles was not there.
Dan Breen:
More often, however, as time went by, and this affair did go on for several months, maybe perhaps as much as a year. But as time went by, Teresa would meet Key at rooms that Key especially rented for them on 15th Street, near H Street, not too far from Lafayette Square. And as long as Key was there, he would lean his hand out the window, there'd be a string with a little handkerchief, and he dangled the string. And what that meant was that Teresa was free to go around the back, up the stairs to join Key in that room that he had rented.
Dan Breen:
Many people in the neighborhood seemed to know this, but we don't think that Sickles knew about this. And maybe he never would have known except for the events of one night, February 24th, 1859. Before we go any further, as I leave you in suspense, one thing that I wanted to mention about Sickles was that while he was in Manhattan, before he had this career in Washington, he was instrumental in getting the bill to help establish Central Park for the New York Assembly. And he actually wanted Central Park to go from 23rd Street all the way to the Harlem River. Imagine that if that's what Central Park became.
Dan Breen:
But before we go into some of Sickles' less reputable deeds, at least maybe that's a good thing that we should thank him for. At any rate, to continue our story, it is now February 24th, 1859. It's a Thursday night. And that meant one thing among the movers and shakers in Washington. Every Thursday night at the Willard Hotel, there was a hop. And what that meant was the ladies staying at Willard's would go downstairs to the ballroom and they would receive visitors, and there would be conversation and dancing. And that's where you typically went if you were in Congress or the government on Thursday night.
Dan Breen:
Teresa went there early, actually saw Key there, but she came home early and Sickles went to the hop after Teresa happened to first drive there. She left while he was still there. Well, while he was on his way to the hop, somebody comes out into where, hands Sickles an envelope of some sort, probably a letter in there. Sickles didn't want to read it on the way to the hop or at the hop. Once he was there for a while, he went home to Lafayette Square. By now, Teresa had retired for the evening. In the comfort of his study, Sickles took out the letter that somebody had given him and began to read, and it turned out to be a poison pen letter.
Dan Breen:
And what that meant was somebody was notifying him, known only I think as RPG, that his wife was engaged in an affair with Philip Barton Key. At some point in the letter Sickles read the following line: “Key has as much use of your wife as you do.” Now he had this allegation, what was to be done about it? It's Thursday night. Didn't confront Teresa, not that night. Instead, the next day, a Friday, Sickles got together a couple of his friends and told them to investigate this rumor. And the friends walked around 15th Street. They talked to a bunch of people. There were a few false starts, a little bit of uncertainty, but by Saturday morning, they had confirmed the story.
Dan Breen:
All day Friday, Sickles sought to lose duty as a Congressman. He gave a speech on appropriations for the Brooklyn Naval Yard, all of the while wondering what his friends were about to find out. But they told him on Saturday, “We've confirmed the rumors. There are people in the neighborhood, they've seen Teresa go up the stairs, she stays there a while.” And now Sickles is convinced that the letter writer had been telling the truth. Now what? It's Saturday. That evening, he went to confront Teresa. Teresa, at first after hearing these allegations seems to have denied them, but after 20 minutes, 20 minutes of weeping, she finally confessed that indeed she had been having an affair with Barton Key.
Dan Breen:
And at this point, rather cruelly on Saturday, Sickles had Teresa sign this detailed confession about the affair and about what her relationship was like with Barton Key. And you probably can't read a whole lot of this on the slide, but among other things, what Theresa confessed to was the layout of that apartment on 15th Street. She confessed to meeting Key occasionally at the Sickle's own house and she also said there was a bed in the room at that… a rooming house or place where people could rent rooms, on 15th Street. There was a bed in that room, and according to Teresa, "I did what was usual for a wicked woman to do in that bed."
Dan Breen:
She signed it, witnessed this by at least one of the servants, as a matter of fact. And now Sickles had a written confession. He banished Teresa from his sight. And now the question is, what is he going to do? He found out on Thursday, sends his friends to investigate on Friday, confirms it on Saturday, and on Sunday the next day, the time has come to decide what to do. He got his friends together at the house, that Stockton Mansion on Lafayette Square, and they talked about it. What are his options? And one of those friends, I think very wisely suggested, just keep this between yourselves. Why not send Teresa up to your house in Manhattan?
Dan Breen:
By now they had a very nice house in what is now Riverside Park near 91st Street in Manhattan. Why doesn't she go there? You stay in Washington, have a cooling off period and then decide what you want to do later. Not a bad suggestion, but then the other possibility raised by another one of his friends at the mansion that Sunday morning was perhaps you should challenge Key to a duel. And that wouldn't have been an outlandish proposition. In fact, just outside of Washington, D.C. in Bladensburg, Maryland, there was a famous dueling ground where among others, Stephen Decatur was actually killed in a duel years before.
Dan Breen:
And it was such a notorious dueling ground that there was a field where the duals took place along which a creek called Dueling Creek actually ran. Maybe that's where a duel could take place, but there were several reasons maybe three not to think about the dueling option. Reason number one, thinking about this, while dueling, not as common as it was 30 years before, not as accepted as it was 30 years before, this is 1859. It was more and more going out of style. The second thing though was that maybe Barton Key would not even agree to a duel even if he was challenged, because his brother had died in a duel not long before.
Dan Breen:
And maybe Barton Key would not want to bring further grief upon his family, maybe wouldn't want to risk death by agreeing to a duel. But maybe the third option could be the best from Sickles' perspective, Barton Key was known as a very good shot. If Sickles challenge Key to a duel, and if Key did accept, Sickles might not emerge in one piece from that. So maybe the dual wasn't the thing to do. They're talking about this, they're trying to work out what the options are, and it was clear, it was clear that the thing that bothered Sickles the most was the idea that other people knew about this, that this affair actually may be more common knowledge than he liked to think.
Dan Breen:
He kept saying, “The whole town knows. It is the town talk.” He kept saying, “The whole world knows.” That's what bothered him about this. And as he was complaining, one of his friends looked out the window and then down in Lafayette Square, there's Barton Key, fiddling around with his handkerchief as if maybe he was hoping Teresa would appear to let him know that the coast was clear. At this point, seeing Barton Key, Sickles sent one of his friends downstairs to keep Key where he was. The friend engaged Key in conversation.
Dan Breen:
Meanwhile, and this probably took him a few minutes, Sickles got a Derringer, got a revolver, put on an overcoat because even though it was February 27th, it was still a warm day in Washington. Why would he have an overcoat? Obviously, to conceal the guns. Down the stairs he went, out to Lafayette Square, he approached Key and then yelled at him, “Key, you scoundrel, you have dishonored my house, you must die.” And in front of about a dozen onlookers, Sickles pulled out a pistol, as we can see here. And at first, Key was standing up, the first shot, maybe it was a Derringer, hit Key in the hand. Key shuttered out in pain.
Dan Breen:
Sickles then shot again. This time he misfired. Key lunged at Sickles. Sickles pushed him away. And although I may have the sequence wrong, this is the gist of it. He then pulled out the other weapon, shot again, that hit Key in the leg. Down goes Key, and all this was within two or three feet of Key. And then you can see in this picture now Key is down on the ground and he's shouting, “Don't murder me, don't murder me, don't shoot.” Sickles did shoot, and this time he hit Key right below the heart. Key died within the hour. Sickles was apprehended and taken for the Old Stone Jail on Pennsylvania Avenue.
Dan Breen:
And when he entered the jail, he could see it was cold, despite the warmth of the day. There was paint peeling. It was obviously dilapidated. Shocked, Sickle said, “How can you keep this place in this condition?” And the jailer answered, as so many have wanted to answer if they ever actually could talk to a Congressman. The jailer said, “This is all we can afford to do on what little money you congressmen brought us year by year.” And it was in those conditions that Sickles was going to spend a bit of time, getting used to the bed bags but bedbugs at the Old Stone Jail in Washington.
Dan Breen:
Now we have a homicide, or at least we have a homicide prosecution. And here's where things maybe get interesting, because Sickles had some money, kind of like M'Naughten did. And that meant that Sickles could hire some first-class legal talent to defend him against what was now this homicide dart. But the difficulty is extreme, and the difficulty is this. The one thing everybody knew, the one thing everybody knew was that if you knew your wife was engaged in an adulterous affair, that was no excuse for murdering the adulterer, the person who your wife is engaged in the affair with.
Dan Breen:
That was not excusable homicide, not justifiable homicide. The law compelled you, and it was clear about this, not to take the law in your own hands under those circumstances. If adultery occurred and you wanted to get some legal redress as the so-called wronged husband, you sued the person, you didn't shoot them. Sickles had just shot Key. And the law was very clear that the only way you can get off after doing that was if you caught your wife in the act of adultery, and that Sickles had not done. Yeah, he knew about this on Thursday and he had almost three days to reflect on it.
Dan Breen:
The legal puzzle here is that there doesn't seem to be any way the circumstances are going to help Sickles. It's homicide, pure and simple. He saw Key, he opened fire, and 10 people saw it. What was his crack legal team going to do? And here's where resonances with the Kahler case, I think come in. And I want to know maybe what you think about these resonances after I described them. But the idea would be this, and this is what they decided to do. What they decided to do was plead to the jury that as soon as Sickles saw Key outside the window down in the square, he went into a jealous frenzy. He in fact became temporarily insane, temporarily insane.
Dan Breen:
And what that insanity consisted of was an intense knowledge of the difference between right and wrong. That the nature of that insanity, was that Sickles armed with a deep knowledge that he'd been wronged, armed with a knowledge of the higher law; right and wrong, could not conform his conduct to the law of homicide, which tells us you don't open fire under these circumstances. Pausing there for a moment, think about this strange symmetry between Kahler and Sickles. In the Kahler case, we learned that a defendant, whom expert witnesses are willing to say, lacked the customary ability to tell right from wrong and conform his conduct to legal standards.
Dan Breen:
Nevertheless, should not be able to raise that as a defense. A lack of ability to discern right from wrong should not be a defense in Kansas. That's the Kahler case. But in the Sickles case, it's the inverse symmetry that interests me. In the Sickles case, it was precisely because Sickles has such a heightened awareness of right and wrong, that he had to act as he did. That the insanity brought on by the knowledge that he'd been wrong, that right and wrong, drove him into the frenzy that led him to get the Derringer and the revolver, and go down to the square. It was the very knowledge of right and wrong that characterized his insanity on February 27, 1859.
Dan Breen:
To see what his lawyers were about to do, keep that in mind because what they were going to tell the jury in describing this insanity was simply that Sickles was doing the right thing. Let me read to you some elements of the defense. He had a bunch of his old friends helping him out, but the lawyers that were especially outstanding, one of them was a Tammany guy from Tammany Hall days named John Graham. Very eloquent attorney. And imagine you're on the jury, because pretty soon you'll get to vote on guilt and innocence here. Now you're listening to the arguments. This is John Graham facing the jury in Sickles' case. Maybe it's a good time to go to the trial here.
Dan Breen:
And according to Graham facing the jury, this is what he told the jury to do. All male, remember, “Consult the law of your heart, there is the repository of your instincts. Go by them and you will affect the will of heaven. And when you execute those instincts, you execute the will of heaven. As if God himself, ultimate right and wrong, guided Sickles' hand that fateful morning.” And not just God, second, only to God in the American Pantheon was George Washington. Here also is what John Graham said to the jury, pointing out the jury, “You are here at the foot of the federal government.
Dan Breen:
You are overshadowed by the halo of the name of Washington. Let the recollection of that name inspire you with fitting in becoming a boss. Not only would God have struck Key down, but George Washington would have as well,” at least according to John Graham. Graham was not alone on the defense team. There was also Edwin Stanton, later famous as Lincoln's Secretary of War. If you can see my cursor here, there's Stanton, and that's Sickle sitting in the defendant's box as he watched the trial. No way they're letting him testify. Lawyers are going to make the arguments themselves.
Dan Breen:
This is what Stanton said. And Stanton's idea was that in killing Key, Sickles did the right thing because he was defending Teresa from further attentions from Key. This is what Stanton said, “May the Lord who watches the home and family guide the bullet and direct the stroke that killed Key to protect the honor of Teresa and his family.” And along those same lines, another lawyer, his name was Brady, lawyer number three, actually intimated that if Sickles did not kill Key, only then should he have been punished. Here's what Brady said, “If he had done anything more or less than what became a man, I would have been willing to see him die.”
Dan Breen:
And I'll conclude with another illustration of this determination of the defense to persuade the jury that Sickles' temporary insanity consisted precisely of the ability to tell right from wrong. And since the jury should also know right from wrong, they should vote to acquit. Here's what Graham said, again, pointing to the jury, “The law of God gives you the right to protect the purity of your wives, your wives, even to the extent of killing the man who deprives you of that purity.” And the whole time the jury is hearing this, they didn't hear any evidence at all of Sickle's own habits of cheating.
Dan Breen:
The jury heard nothing about the fact that Sickles kept an apartment, actually a hotel room at Barnum's Hotel in Baltimore where he could meet women beyond his marriage ties. That evidence was excluded. But as far as the rest of the evidence, you know about as much as the jury did. The evidence is the affair was going on and Sickles did, in fact, open fire and killed Key. And the only question now for our poll is do you vote to convict or acquit? And put yourself now in the position not of somebody in 1859. You're not voting as a jury person from just before the Civil War. Just in your own person, how do you vote; guilty or not guilty?
Dan Breen:
And we'll wait for just a second because now the polling question is up. How would you vote; guilty or not guilty? And then we'll talk about the actual verdict. And again, I apologize if I've been going in and out. I know that can't be much fun for you, but I hope you've gotten the gist of it, at least so far. Let's see if we can have some results. How do we vote; guilty or not guilty? Oh my gosh. 96%. 96%. Well, well, well, well. Well, by now it's not going to surprise you probably to know that, in fact, in 1859, after hearing all this evidence, the jury, all male, and almost everybody Southern in upbringing, the jury voted to acquit.
Dan Breen:
There was some discussion, went on for a couple hours in the jury room. There was one guy who was holding out and thought probably you should vote to convict. But then that guy went to the corner, he prayed, and after his prayer, he came back to vote to acquit. The verdict was acquittal. Dan Sickles left the courtroom. We have great applause. The verdict was very popular. There was a parade in his honor as a large crowd escorted him back to Lafayette Square. Teresa, by now was in New York. And the Marine band even serenaded him to congratulate him on his victory.
Dan Breen:
Most people, at least according to the accounts that we have, who knows what was really true in the general population, but there are many accounts of people who celebrated this verdict, who did not think that Sickles should have been charged with murder and were happy when he was acquitted. What got Sickles into trouble was not actually anything he did on Lafayette Square, it wasn't killing Key. What got him in trouble was his decision to actually establish his marriage again, to attempt to reconcile with Teresa, which he did. And that's what got Sickles unpopular.
Dan Breen:
A lot of people figured that Teresa was the disgraced fallen woman and Sickles should have nothing to do with her after this. And in fact, the famous diarist, Marie Chestnut, wife of Senator Chestnut of South Carolina wrote in her diary that there was a general feeling by the end of 1859 against Sickles because “by taking Teresa back, he is condoning for a profligacy, condoning her profligacy.” At any rate, the couple did try to reconcile and they were still trying when the Civil War began, and Sickles went to raise a regiment from what he would rise to the ignominy of that second day of the Battle of Gettysburg.
Dan Breen:
Well, now it's about time to sum up because we've had our two polls and our trivia question, and what I wanted to do now is maybe give you my own take on all this. I already tried to describe that strange inverse symmetry between Kahler's inability to know right from wrong, and his inability to raise that as a defense in 2020 in Kansas. And Sickles defense, which was precisely that he knew right from wrong, and acting on that knowledge, it is [inaudible 00:52:10] consistent and that determination so he could not conform to the principles of homicide, which says, remember, you can't go around killing people because there's an allegation of adultery.
Dan Breen:
But to me there's another deeper lesson here. Maybe there's another kind of pathology at work here. And maybe what unites these two cases, to me, and again, I could be wrong, Kahler and Sickles', is in both those cases, the controlling pathology perhaps was a social pathology, not the individual disorder that Kahler was laboring under according to expert witnesses, but rather in both cases, a social pathology. And in 1859, what I mean by that was this largely Southern honor culture is deeply disturbing because it condoned the murder of somebody who you thought disgraced your family and disgraced your control over the family.
Dan Breen:
And that honor culture that your honor was what mattered. Your honor had to be avenged, and the honor of your family. That's the culture that led Preston Brooks to cane Charles Southerner within an inch of his life in May of 1856, and that's the culture, a sick culture, I think, that condoned what Sickles did in Lafayette Square. To me there was a social pathology at work in the jury room in 1859, but there's another kind of, if not pathology, at least set of illusions maybe in Kansas as of the 1990s when Kansas adopted that law that got rid of part of the M'Naughten Rule, the law that we were just talking about.
Dan Breen:
And to me, that illusion consists of a set of assumptions. One, that mental illness is somehow not to be taken seriously, is somehow of a lower order of seriousness and other kinds of illnesses. The assumption that people fake mental illnesses, that criminal defendants routinely do fake mental illnesses to get out of criminal responsibility. The assumption that mental health professionals can't tell the difference if indeed somebody is faking a mental illness, and maybe the assumption that insanity pleads are routinely permitted to make sure the guilty go free.
Dan Breen:
In fact, we know that insanity pleads take place in less than 1% of all cases and they usually do not prevail. And even if they do prevail, the defendant does not go free. The defendant is generally consigned to an institution. Each one of those assumptions is not true. And each one of those assumptions together, I think, played a role in driving Kansas to get rid of this aspect of the M'Naughten test. And if so, if not a pathology exactly, nevertheless, it's a set of illusions that I think help explain why the law was the way it was in Kansas. Many of them coming out of the… for many people on Parker, the verdict and the Hinckley case, which was also an insanity case.
Dan Breen:
That to me is what links these two cases, a social illusion in each case. And maybe the common moral, if there is one, is that what the law ought to do in a case like this, is not rely on differences of opinion out there in the world. Maybe what the law should really rely on is just what the APA in its brief hoped it would rely on. And that is at least an emerging scientific consensus, that if the American Psychiatric Association and its sister organization, the American Psychological Association, are willing to tell us that it is indeed a symptom of some mental illnesses that a defendant cannot tell right from wrong. Maybe that is the point. Maybe that is the knowledge that should underlie the law and not assumptions about what the criminal law ought to be, that maybe the general public has.
Dan Breen:
And surely over the past several weeks, we have all learned or been reinforced in our knowledge that science ought to be trusted sometimes more than it is as the foundation of policy. And I think the same can be true of the law. Perhaps science in the honor culture itself of [inaudible 00:56:55] and scientific, perhaps science ought to be what underlies what the law does with insanity rather than what the people of Kansas might like. At any rate, that's my idea at least of what might unite these two cases, and that's what I want you to think about. Maybe that's one of our takeaways.
Dan Breen:
As far as ending our presentation for today, here we see the court room again, and ultimately, Sickles would live, as I mentioned, a long time after the trial. He died when he was 94 or 89, whatever the case may be, depending upon when you think he was born. And here he is later in life without that right leg. But he would go on to die in 1914, having married a second time and having more children. He actually had a child with Teresa too. Her name was Laura. Laura had a very different fate... I mean, Teresa had a very different fate. She contracted tuberculosis. She slowly faded away and she died in 1867.
Dan Breen:
And with that, I'll conclude our presentation for today. I think there's a question and answer option here. I think you probably know how to do that, if there are any questions and answers, or maybe I might have answers. Who knows? But if there are any questions, maybe this would be your time, very briefly, to share some. And before maybe we get to that, there are events coming up, I think, and maybe somebody and my colleagues at Brandeis could talk a bit more about that. But maybe here are some links that will be helpful to you.
Dan Breen:
And it just remains, to me, to thank you all among our fabulous alumni for joining us this evening and giving me the chance to do this. I thank all of you and also there may be some of my students in the audience, and I particularly thank them, who have always inspired me during my career at Brandeis. Who have inspired me even more than ever during the past difficult several weeks when all of us and all of you have had so many adjustments to do. With that, maybe if there's a way we can entertain questions, maybe it's time to do that.
Sharon Rosenberg:
Of course. Thank you very much, Professor Breen. We are just about at 8:00 PM, for those of us here on the East Coast, and we do see a bunch of questions coming in the Q&A. We'll get to a few of them here. We'll go a few more minutes on this. One of the questions that came up was… came a little early on. It said, “How does the insanity of defense apply to crimes that did not require intent such as manslaughter?”
Dan Breen:
Oh, well, that's something maybe a criminal defense attorney could answer better than me. But it would apply to something like manslaughter because the argument could be that the reason you are carried away in the heat of passion to commit an offense was that you had a particular illness that made it more likely, perhaps more reasonable that you would fly into that passion. There are elements of manslaughter where the passion is so unreasonable that maybe the criminal penalties associated with manslaughter shouldn't apply to you. That the reason you did fly into that passion would have something to do with your pathology and then you wouldn't get the criminal penalty at all that perhaps you might get with manslaughter.
Dan Breen:
But if the plea is considered and the plea succeeds, you would spend time in a mental institution. That's probably how it could apply, especially if we think of manslaughter in its customary definition of a killing in the heat of passion.
Sharon Rosenberg:
Thank you.
Dan Breen:
Anybody else?
Sharon Rosenberg:
Yes. Another question that came in, after the trial was Sickles' defense seen as a one-off excuse? When and how did the defense spread in the USA legal system?
Dan Breen:
Wow. Oh, it spread far and wide, and it became in the 19th century, not terribly uncommon. And the basic idea was that if you committed a crime in defense of these aspects of higher law, which is essentially my favorite saying. It doesn't matter what the common law said, there's a higher law about husband, wife, and adulterers that must be observed by somebody in Sickles' position. Then that kind of evidence would get in under the guise of a temporary insanity plea. A lot of people still think it's better understood as jury nullification, but technically, it would get in to be a temporary insanity.
Dan Breen:
But what happened by the 20th century, and this is the case now, was that that kind of understanding isn't supposed to work. At least, it's not supposed to work anymore. That if you're going to use temporary insanity as a plea, then you've got to show the same kind of evidence of mental illness, that you would have to show in a conventional insanity plea. The Sickles case is often incorrectly seen as the first successful use of temporary insanity in American law. It's not the first, there were others cases that qualify for it.
Dan Breen:
But the question writer is perfectly correct to ask about the significance, because through much of the 19th century, it was still a vehicle, the temporary insanity defense or these so-called higher notions of law to get in as a way, perhaps, to excuse what the defendant did. A bit more scientifically based now in regard to temporary insanity.
Sharon Rosenberg:
Thank you. Another question. How does this relate to lynching as a social pathology?
Dan Breen:
Oh, it relates very closely, of course, and that's an excellent example. The tide of lynchings that gripped especially in the South, at least 4,000 people were destroyed extrajudicially in the South, both before and after the Civil War, but especially after the Civil War, during the reaction against reconstruction. That's an excellent example of a social pathology that describes this sense of honor, in this case, a race-based honor and are often based upon rather sick male notions as well. Part of that race-based honor, was a way to justify what in effect was an extrajudicial killing.
Dan Breen:
The only difference is that's a social pathology that takes place outside the courthouse, and this one takes place within it. But it's very similar in the case of lynching, far more gruesome and far worse, and far more murderous. But I think the principle is very relatable.
Sharon Rosenberg:
Thank you. If a defendant who is not guilty by virtue of insanity is in a mental institution, does a finding of a return to sanity allow that defendant to be set free?
Dan Breen:
It can be. Yes. Now, I'm not sure quite how the procedure works and there might be attorneys out there who can help us with this, but my understanding is you're committed to an institution or either a set number of years, or until a finding that you're no longer suffering under this illness. If there's a certification that in fact you lacked proper responsibility at the time of the crime and you're sentenced to an institution, and if you improve at that institution, and apparently the pathology that gripped you is no longer relevant, then I think what works is if there's no actual number of years you are confined there, then you petition for release.
Dan Breen:
And there's a procedure in most States where you can be released, but the procedural aspect of things, it's not something I'm as familiar with as a really unfortunately with a history of this. But that's what I think is true.
Sharon Rosenberg:
Another question. I'm curious about your thoughts on other present-day manifestations of the M'Naughten Rule, including the use of “affluenza” and “LGBTQ+ panic” defenses.
Dan Breen:
Oh, well, yeah, that's something I should probably I think about a bit more. But I haven't really thought about that, unfortunately, and I'd hate to offer an opinion without having actually thought about that a bit. But we've seen that in some recent cases. What do I think about it? I think I'd have to go back and actually contemplate that. I've had such a hard time getting caught up with my grading, especially over the past several weeks that I don't think I anticipated a question that good, unfortunately. I haven't looked at it. But thank you for the question. That is definitely something for me to contemplate.
Sharon Rosenberg:
Another question is where does one draw the line between right and wrong? If someone commits fraud, can the insanity defense apply?
Dan Breen:
Wow. Somebody commits fraud, can the insanity defense apply? Well, yes. If it's criminal fraud, there's still an element of intent there. You've got to actually mean to deprive somebody of resources through trickery or deceit. And if there's some element of your character that doesn't allow you to see the wrongfulness of that or even to know that's illegal, you can make a plea like that. Sure. It's not necessarily applicable only to homicide, it's applicable to other crimes as well. Where does the line between right and wrong find itself run? That's a very big question indeed.
Dan Breen:
But as far as your question about fraud, there's certainly wrongfulness there. And as long as there is, technically, the insanity plea could be applied. You might be somebody with delusions of grandeur. You're defrauding people and defrauding people, and you don't think it's necessarily wrong because this is something you're allowed to do and nobody else is. And I could see that as a possible defense. I think it would be largely unsuccessful. These defenses, like I said before, are typically unsuccessful, but I don't see any reason necessarily why it couldn't be raised. But that might be something again, that the criminal defense lawyers among you would know more about. But that's what I think.
Sharon Rosenberg:
Okay. And one final tonight. There's a whole bunch more coming through. I know we had just a couple of minutes left. I'm going to give you one last question here. Did Brooks merely go over to Sumner and just pummeled him with his cane over his disagreement of handling a matter of honor? And is that how matters of disagreement were often handled in the Senate at that time?
Dan Breen:
Not often. Occasionally, but not often at all. The reason that Charles Sumner was caned was that Sumner had insulted a family member of Preston Brooks, Senator Butler of South Carolina. And Sumner, knowing that Butler was a slaveholder, had compared Butler's plantation basically to a house of prostitution called slavery, a harlot. And also made fun of the way Butler talked, insulted Butler in many different ways. Upon the honor of his family and upon the honor, maybe ultimately of his state, Preston Brooks, caned Sumner.
Dan Breen:
Now the reason you cane somebody is you look down on them, you think they're not worthy of challenging to a duel. They're not a gentleman, would never accept the challenge to a duel. In order to get satisfaction, you want to show your contempt for them and then you cane to them. And sometimes gentlemen would cane people. Like I said, uncommon, it happened in the House in 1798. But it was very, very uncommon. And it was, perhaps, that uncommon aspect of it that so shocked people. But in terms of why you would cane somebody, the unusual thing about this was the place where it happened.
Dan Breen:
It happened in other contexts and in other places. And it would not have been surprising to somebody who labored under the pathology of the honor culture. The idea that somebody who would perhaps make fun of your family deserves to be caned, and Sumner was almost killed by that assault. He was never the same again, and he was not able to return to the Senate for years. It becomes a long physical recovery. And we know what the ultimate result of that kind of social pathology was. Partly, at least, the terrible war that would grip the country 1861. And I think that might be all for us.
Sharon Rosenberg:
I think that concludes our event tonight. Thank you very much, Professor Breen, for spending time with us tonight and sharing these stories and these examples. And thanks to all of you alumni, parents, Brandeis National Committee members and friends for joining us. And we will be in touch with a link to the recording when it's available. And please, join us for some other upcoming events. We continue to add events to our calendar, and be sure to check your email and look on the alumni website.