Episode 38 | Conservatives Are Getting the Lindsay Clancy Case WRONG

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Welcome back to Rationally Based, a podcast about law and politics on the edge.
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I'm your host, Elon Worman, a law professor at the University of Minnesota Law School.
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I'm Catherine Johnson with Center of the American Experiment.
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And I'm Joshua Kleinfeld, Rouse Professor of Law at the Scalia Law School.
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Catherine, what's on deck?
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Well, we're talking about insanity today.
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Everyone in America has heard about Lindsay Clancy, a mother who admitted to murdering her three children in cold blood.
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And if not for one lone holdout, she was almost acquitted.
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The jurors who wanted to acquit thought she was insane.
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Well, no crap, she's insane.
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She killed her kids.
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What seems insane to me is that our justice system apparently lets you plead insanity.
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And if you convince a jury you're crazy, they'll call you not guilty for doing the heinous crime you even admitted to doing.
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But maybe I'm missing something here.
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We're gonna talk about it.
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First, the legitimate role of the insanity defense, but also its abuses.
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Second, we'll get into the legitimate role of the jury, but also its shortcomings.
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And finally, what is this whole conversation really about?
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Maybe it's gender.
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I thought you were about to say all of America has gone insane, which maybe also is true.
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So let's dive in.
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All right.
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Well, before we get started, I just want our audience to please hit that like and subscribe button.
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Okay, I thought I would set this up.
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Why are we doing this episode?
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Well, because obviously this uh Clancy trial has taken America by storm.
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And there's been a lot of commentary on the juries.
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Should we get rid of juries and only have intelligent people on juries?
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What about the insanity defense?
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The insanity defense is crazy.
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And quite frankly, we have here on the Rationally Based podcast the leading expert on these issues.
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We have Joshua Kleinfeld, who is a criminal law professor.
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For decades, he taught criminal law at Northwestern University, now at George Mason University.
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He's also a legal philosopher.
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I teach constitutional law.
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We are also pretty far right, you know, relatively speaking, I would say, as people of, you know, our audience knows.
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And so we really have something, I think, to contribute here.
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We have uh Josh's expertise and we are aligned with the people who are making sort of these criticisms, but maybe some of these criticisms, criticisms are misplaced.
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Maybe the problem isn't the jury, maybe the problem isn't the insanity defense, maybe the problem is something else.
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Maybe those are just microcosms of other bigger problems in American society.
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So that's why we are doing this podcast.
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Let me just, with that set up, Josh, where are we going today?
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Well, I think we should start big picture.
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I've been teaching and writing about criminal law for 15 years, not decades, Elon.
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Um not that old, but 15 years is a long time.
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And I've been part of the conservative movement my whole life.
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In fact, I was part of the new right before anyone called it Mega or America First or the New Right.
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Or I remember arguing new right positions against my dad, who was a Reaganite Republican in the 1990s.
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So this is this is my whole thing.
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And I want to say something big picture about this case.
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The case is incredibly controversial.
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And right-wing commentators, podcasts, you know, um uh ex blogs are kind of a thing of the past, but Substacks are going nuts.
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They're going for all sorts, they're calling rather for all sorts of radical surgery to criminal law, like get rid of the insanity defense, get rid of the jury.
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What we have here is a case of reasonable, conservative rage that is utterly misfiring.
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The problem is not the jury system.
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The problem is not the insanity defense.
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The problem is a certain kind of gender-based identity politics and weaponized moralism that the new rightly objects to and that this case has come to symbolize.
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But we in the conservative movement have to see clearly what the real issue is, or what's going to happen is we're either going to totally fail to address and to fix the real problem, or we're gonna break a lot of other things that don't need to be broken because they actually are good for us.
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So, like, let me make an analogy.
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Do you remember last year when De Carlos Brown stabbed Ukrainian refugee Irna Zarutska, I might mess up her name, uh, on a on the train, on a subway train.
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Um, and he had been arrested 14 times before that incident.
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Imagine someone came on and said, there's the De Carlos Brown case is just terrible.
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The problem is knives.
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We need to ban knives.
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We need to get rid of knives.
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Well, we'd all say that's idiotic, right?
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The problem is a person who was arrested 14 times and was clearly like psychopathically insane and murderous was on the streets and he got another victim, right?
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That's the problem, not knives.
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That would be a total misfire.
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We are in the same situation.
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The conservative world, the new right world is shooting at juries and shooting at the insanity defense, and it's a huge mistake.
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And this has happened before because criminal cases regularly become identity politics battlegrounds, and the facts get just swallowed up as the case becomes a symbol.
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So think about like O.J.
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Simpson or Rodney King, or a case that I found out recently that a lot of people have forgotten, but I sure haven't forgotten the case of Lorena Bobbitt, which also was a criminal case that had uh uh uh became national story because of feminist uh reactions to it.
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Um that was a case where a woman who had been abused by her husband cut off his penis when he was sleeping, and um uh the country lined up on either the side of the husband or the side of the wife.
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Okay, so what I'm trying to do in this episode, what I want to emphasize in this episode is we need to move from shooting at the jury trial, shooting at the insanity defense, to seeing that a certain kind of weaponized moralism and gender identity politics are the real target.
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And I think you're obviously right, Josh, about a lot of that.
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But from my perspective, I think this case really calls into question our entire justice system.
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And it's brought up concerns for me that I've never had before.
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I've never been afraid to defend the justice system we have here in America full force, totally.
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It's the best in the world.
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I've always been there.
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And this case for me really brought a lot of questions about the credibility of that system to, I think, the forefront of my mind.
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And I think it's doing that for a lot of people.
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So I think it's a very good thing to talk about.
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I also think clearly the insanity defense is problematic and needs to be reformed.
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Maybe you disagree, but we can talk about it.
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I'm also excited to talk about juries and gender because obviously my people are extremely unwell.
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The women of America need some sort of help or intervention or something.
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Uh, they've collectively lost their minds.
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So I'm excited to get into that too.
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Yeah, it and it's why we're having this episode, right?
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The insanity, the insanity defense allowed what happened to happen.
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The existence of a jury allowed what happened to happen.
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But the insanity defense exists in other situations and is perfectly okay in those other situations, usually.
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You know, the juries exist and are usually okay in ordinary situations.
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So in this case, maybe they're just tools that happen to be used by, you know, this um these sort of I mean, I will get into it.
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This, what did you call it, Josh?
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The the this gendered weaponized moralizing.
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Uh so I'll have you under weaponized, is a term I'm trying to enter into the lexicon.
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So here's my moment.
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Weaponized moralism.
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Weaponized, we've heard, of course, weaponized empathy.
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That's good.
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I think what's going on is more moralistic and it's more bullying, and weaponized moralism is a good term for it.
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So that's the way saying insanity, uh the insanity defense allowed this to happen is like saying knives allowed De Carlos whatever to um stab his victim.
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I guess, yeah.
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Knives allowed it to happen, but that still doesn't make it the problem.
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So, okay, so just so our listeners know where we're going, I think our diagnose, and we we're doing this episode also because we had really passionate debates about this over the last few weeks.
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So the debate America's been having, we had internally.
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And I think we actually more or less came to a resolution and agreement in our minds over this.
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And so we want to bring that to all of you.
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Okay.
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So uh we'll talk about the insanity defense, we'll talk about juries, and then we'll talk about what we really think is going on.
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But Catherine, like, do we need any more facts here?
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Um I we're let's presume everyone knows most of what happened, but can you just give us a high level in case there are any uninitiated listeners?
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Yeah, most of the key facts I wanted to point out were just that Lindsay Clancy strangled her three children to death, a five-year-old, a three-year-old, and an eight-month-old.
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She did it systematically.
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She sent her husband out of the house on a pretext to run some errands.
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Um, so she kind of set up the situation to allow her to commit this crime, and she strangled them one by one in her basement with an exercise band.
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She then slid her wrist, jumped out a second-story window, and became paralyzed from the waist down.
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Her lawyer claims that was a suicide attempt.
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The prosecution questioned the sincerity of this attempt, as I heard Med Walsh put it, which made me laugh.
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Suddenly she forgot to kill a human being when it came to herself.
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So we'll get into that a little bit too.
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But she was eventually charged with three counts of first-degree murder, and she pled not guilty by reason of insanity.
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Finally, they had a long three and a half years of preparation.
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The case came to trial, and they got a jury of nine women and three men.
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And her lawyer argued that she was insane based on postpartum psychosis.
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One important note, she was never given this diagnosis before the trial by a doctor.
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It was given to her after, excuse me, before the killings by a doctor is given to her after the killings, and was done so by experts retained by her defense team.
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So the prosecution argues that this was all planned.
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Uh, they focused on the fact that she sent her husband away on those errands for a specific amount of time, and then she killed her kids in a very organized and methodical fashion.
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They didn't deny that she had clearly some mental health struggles.
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She'd gone to the doctor many times, gotten many medications, but they maintained that she knew right from wrong.
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And they found the claim of her hearing a voice that told her to kill her children to be unconvincing and unusual.
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In the end, the jury was deadlocked and a mistrial was called.
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Reportedly, there was one holdout, and it was one of the three men.
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And this is important just for the, again, uninitiated.
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You need all 12 unanimously to convict someone, for example.
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If you're convicted, you can still have an appeal because there could still be legal errors or uh, you know, judgments notwithstanding the verdict and so on.
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You need unanimous also to acquit.
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And once you acquit, you're done because there's double jeopardy.
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You cannot bring a retrial.
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But all it takes is one juror to disagree with the rest, and you get what's called the mistrial, and the government has the opportunity.
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Double jeopardy doesn't attach.
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They have the opportunity to bring another lawsuit.
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So that's why the mistrial happened.
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Okay, let me start with sort of our first really substantive topic.
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We're going to insanity.
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What is the insanity defense?
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Why do we have it?
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So let me set this up by um, I guess actually, we're gonna show a clip uh from Matt Walsh, a commentator um I like uh very much, generally smart.
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And he said something that I initially was like, hey, yeah, maybe I actually agree with this.
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Maybe the insanity defense is crazy.
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But then on further reflection, maybe he's wrong about this.
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So we generally agree with him though.
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I generally agree with him though.
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I won't speak for others here.
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So let's listen to what he says.
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The insanity defense should not exist in the law.
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There are a lot of conceptual problems with it, a lot of problems in principle.
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But even if you think that in principle it it makes sense or you can make an argument for it, the fact is that it has been abused.
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At a minimum, we can say it has been abused horrifically for decades, and a lot of people have died because of it.
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And so it just should not exist anymore.
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How can a person be not guilty of doing something that they did?
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I mean, even if I accept the premise that he was insane and not in control of his faculties, he still did it.
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I mean, it was a thing that happened, somebody did it, and no one else did it but him, just as a factual matter.
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For as long as courts have existed, not guilty has always meant that the person accused of doing something didn't do it.
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But a ruling that says, yeah, you did it, and we all know you did it for 100% certainty, but you're not guilty of doing it, makes no sense.
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If this was something innocuous, like if you walk up to an insane person who's wearing a red shirt and you go, You put on a red shirt this morning, it wouldn't make any sense for somebody else to run up and say, No, he no, he didn't.
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He's insane.
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He didn't put on a red shirt.
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Well, no, but he might be insane, but he did put on a red shirt.
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I mean, that that's a thing that happened.
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It's a thing that happened.
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He is guilty of putting on a red shirt.
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That's what guilt means.
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Now, if you want to argue that he did the thing, but his guilt is mitigated because of other factors, well, we already have that kind of distinction built into the system.
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That is why we have degrees of murder.
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It's why we have manslaughter, it's why we have all these other distinctions that are already in the system.
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It's also why we have a judge who's in charge of sentencing and is supposed to weigh mitigating factors.
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But the question of whether he did it, whether he's guilty of doing it, is one of objective reality.
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And the objective reality is that he did the thing.
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He is guilty.
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Okay.
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So I think actually toward the end, he was starting to make some sense here.
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Um, but let me try to make uh okay, Josh does it think he made some sense.
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But hey, I was with him.
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I was with him.
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I have I'm excited to get the response.
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That made up zero sense legally.
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Okay, let me let well let me try to make the best case for Matt Walsh's position here because there is something about it, right?
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So they were insane.
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And I know you're gonna explain to our audience about mens rea, how you know you have mental states are part of crimes, and I and I want you to do that, but let me set this up.
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Put Men's Rea aside for a moment.
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Why shouldn't they be punished for the following reason?
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Okay, they have by committing this a murder, a killing, have torn at the fabric of society.
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It's not, and no one else did it, just they did it, right?
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And they owe a debt to society in a way.
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Someone has to repay that debt, and you repay that debt by serving time in jail, sitting in a jail cell, submitting to an execution or something like that.
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So let me give you an example.
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Let me give you three examples and ask you to kind of break those down for us.
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Suppose a crazy, wild 25-year-old man is doing donuts, going 80 miles an hour on some city street, no intention to kill anybody, he's got a good heart, he's just being a little crazy and reckless, and he slams into a mother and daughter and they died.
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Why shouldn't he be put away for the rest of his life?
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I mean, the mother and daughter died.
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He has taken away lives, he has torn at the fabric of society.
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And like, I get maybe it's not as evil as premeditated murder or something, but like it, like, in a sense, I don't, I almost don't care, right?
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I'm trying to make the best argument here.
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You've taken a life, you've torn at the fabric of society, you owe a debt to the society.
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Now, suppose, example two, somebody is drugged and forced behind the wheel of a car, and the same thing ends up happening involuntary intoxication.
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That person didn't tear at the fabric of society.
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That person isn't responsible because someone else is the person who intoxicated that person, who involuntarily intoxicated that person and put them behind the wheel of the car, the whoever committed that crime also committed in effect the murder and the killing.
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And that person should be punished just the same.
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The person who administered the drugs involuntarily.
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Now, a person who is mad insane, you know, this is an example that we've been talking about, you know, kills someone, but is like, oh, you know, I think Josh, this is an example you and I have talked about.
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He was just thought he was just chopping wood, and it's like, no, you're chopping a human to bits.
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You know, he didn't know sort of what he was doing.
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Well, no one else can that can that can't be attributed to anybody else.
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You are the only person responsible in a sense for those acts.
00:16:30.480 --> 00:16:39.840
Why should you be treated any differently than the the person doing the donuts, the person who administered the drugs to the person who then killed someone?
00:16:40.000 --> 00:16:43.200
Why should that third case be treated differently?
00:16:43.519 --> 00:16:44.559
Okay, go.
00:16:44.720 --> 00:16:46.159
You Josh, what do you think?
00:16:46.399 --> 00:16:51.919
Well, so let me start off with your three examples, which are interesting, and then back up to the big picture.
00:16:52.080 --> 00:17:02.960
Because I think when you see the big picture, and if I could have a chance to chat with Matt Walsh about the big picture, you'd see that these ideas are part of a larger fabric that makes a lot of sense.
00:17:03.120 --> 00:17:05.279
So let's start with the guy doing donuts.
00:17:05.440 --> 00:17:18.400
The guy doing donuts who kills a mother and daughter in your example is guilty of killing another human being with what in law is called extreme recklessness, even what criminal law calls a depraved heart, right?
00:17:18.480 --> 00:17:27.200
Like if you're turning donuts in the middle of the street and there are people around, what you're exhibiting is an indifference to the possibility that someone might be killed.
00:17:27.359 --> 00:17:34.079
So in most jurisdictions, killing with extreme recklessness or killing with a depraved heart is murder.
00:17:34.480 --> 00:17:38.000
In some jurisdictions, that is manslaughter.
00:17:38.240 --> 00:17:42.240
In zero jurisdictions, is that not a serious felony?
00:17:42.559 --> 00:17:47.359
So the way you are setting up the hypo or the example, it's almost as if he was getting off.
00:17:47.440 --> 00:17:48.160
Why should he get off?
00:17:48.240 --> 00:17:49.119
He doesn't get off.
00:17:49.279 --> 00:17:57.359
The criminal law makes a distinction between him and a guy who lies in wait with a gun because he's aiming at the mother and daughter because he hates them and wants to kill them.
00:17:57.440 --> 00:18:00.640
Yeah, that guy is even worse and gets even harsher punishment.
00:18:00.799 --> 00:18:09.519
But actually, they both have committed one of the most serious felonies known to mankind, and they go to prison for an extremely long time or they're executed.
00:18:09.839 --> 00:18:11.680
Okay, take your next example.
00:18:11.839 --> 00:18:14.640
The guy who is drugged against his will, right?
00:18:14.799 --> 00:18:16.640
Involuntary intoxication, we call it.
00:18:16.720 --> 00:18:18.400
Someone like injects you with something.
00:18:18.559 --> 00:18:21.440
Well, in criminal law, he didn't do anything wrong.
00:18:21.920 --> 00:18:25.680
The guilt for the crime flows upwards to the person who injected him.
00:18:25.839 --> 00:18:31.599
And that's precisely because he had no mental involvement and no moral culpability.
00:18:31.759 --> 00:18:42.640
His body was essentially used as an instrument of another person's crime, just as much as if I like pushed you into Catherine because I wanted Catherine to like fall down the stairs and she did, and she was injured, right?
00:18:42.720 --> 00:18:43.759
And I was prosecuted.
00:18:43.920 --> 00:18:44.960
You wouldn't be prosecuted.
00:18:45.039 --> 00:18:45.759
I just pushed you.
00:18:45.839 --> 00:18:47.359
Your body was just the instrument.
00:18:47.519 --> 00:18:50.799
It was my intent to harm the victim.
00:18:51.440 --> 00:18:53.839
So that also is perfectly sensible.
00:18:54.079 --> 00:18:58.799
And now take the person who is totally mad and sane in a way that we would all agree about, right?
00:18:58.880 --> 00:19:01.759
This is not Lindsay Clancy where we have disagreements.
00:19:01.920 --> 00:19:11.200
This is like a person thinks he is chopping down a tree and he's like getting some firewood, but he's actually chopping a person because he's totally out of touch with reality.
00:19:11.440 --> 00:19:16.319
Well, that person lacks what in criminal law is called a vicious will.
00:19:16.559 --> 00:19:19.200
He lacks any sort of wrongful moral state.
00:19:19.279 --> 00:19:20.799
He's just not evil.
00:19:20.960 --> 00:19:23.599
And that's what criminal condemnation really means.
00:19:23.759 --> 00:19:26.240
You are evil or you have done something evil.
00:19:26.400 --> 00:19:40.559
And frankly, the guy who thinks he's chopping down a tree and he is chopping a person, but he has no idea that he's doing it, who is that floridly insane that he's completely out of touch with the world, he's not evil.
00:19:40.720 --> 00:19:42.319
Now, does that mean he walks?
00:19:42.480 --> 00:19:47.680
There is no jurisdiction in America, in the world that I'm aware of, where he walks.
00:19:48.000 --> 00:20:00.720
He goes into a mental hospital where he is incapacitated against his will and held, usually for extremely long periods of time, usually for life, after he's found insane.
00:20:00.880 --> 00:20:03.359
So he doesn't go free, right?
00:20:04.079 --> 00:20:10.079
A criminal conviction is condemning someone for wrongdoing and punishing them for wrongdoing.
00:20:10.160 --> 00:20:13.920
And the person who thinks he's chopping down a tree is not a wrongdoer.
00:20:14.079 --> 00:20:18.480
So there's a logical fabric here, and the insanity defense fits into this fabric.
00:20:18.559 --> 00:20:21.839
So let's just back up for a moment and look at the big picture.
00:20:22.079 --> 00:20:25.039
So here's where I want to start for our audience in particular.
00:20:25.279 --> 00:20:33.039
The insanity defense is not some left-wing invention, and it is not some modern soft-on crime movement.
00:20:33.200 --> 00:20:36.960
It is a truly ancient part of Western civilization.
00:20:37.200 --> 00:20:46.000
In the common law, the term madness, quote, madness, has been a complete defense since the 14th century, right?
00:20:46.240 --> 00:20:47.200
600 years.
00:20:47.279 --> 00:20:51.599
That's before there was anything known as the soft-on crime movement or the left.
00:20:51.920 --> 00:21:03.440
The Talmud in the third century says if an imbecile or insane person injures others, they are exempt from punishment because they lack awareness and are not responsible for their actions.
00:21:03.680 --> 00:21:15.680
In the New Testament, you know, Jesus in in Matthew, I think it is, says, he who lusts after someone with um, if you have lust in your heart, it's as though you have committed adultery, right?
00:21:15.839 --> 00:21:20.640
So he too is focusing on mental states for assessing moral blame.
00:21:20.799 --> 00:21:36.960
And in the Old Testament, it doesn't speak explicitly to um uh insanity, but in in Deuteronomy, God spares the Israelites' children from punishment because in the English translation, they do not yet know good from bad.
00:21:37.279 --> 00:21:42.640
And in Leviticus, there's a distinction between people who sin unintentionally or through ignorance.
00:21:42.720 --> 00:21:45.119
So this is part of our biblical tradition.
00:21:45.279 --> 00:21:49.119
This is part of our ancient Anglo American common law heritage.
00:21:49.440 --> 00:21:50.000
Why?
00:21:50.240 --> 00:21:59.759
Because for criminal law, except for very minor tickets like speeding tickets, we always require two things what's called actus reus and mensre, a bad act.
00:22:00.240 --> 00:22:03.359
And an evil intent behind the bad act.
00:22:03.920 --> 00:22:15.680
You know, if you step on a crack and break your mother's back because of some bizarre chaos theory chain of physical events, you are not the same as the person who takes a baseball bat to their mother, right?
00:22:15.920 --> 00:22:20.559
Common law calls this a vicious will and required it of every single crime.
00:22:20.720 --> 00:22:28.720
In fact, originally the very word felony traditionally meant you committed an evil act with an evil state of mind.
00:22:28.960 --> 00:22:31.680
You committed the wrongful act with a vicious will.
00:22:32.240 --> 00:22:36.160
They would say these phrases like you had to commit the felony feloniously.
00:22:36.400 --> 00:22:44.880
So that combo of the evil act with the intentional state of mind or the evil state of mind runs like a red thread throughout all of criminal law history.
00:22:44.960 --> 00:22:47.039
So why does that matter for insanity?
00:22:47.519 --> 00:22:59.039
Because in certain states of insanity, I don't mean states like American states, I mean when you're in a really florid uh state of total madness and insanity, you just don't have a vicious will.
00:22:59.200 --> 00:23:09.519
Like if you're out of touch with reality and you think God told you to do something, or you think the person you're chopping is actually a tree or an evil demon, you don't have a vicious will.
00:23:09.680 --> 00:23:13.200
It doesn't mean you walk, you get locked up in a mental institution.
00:23:13.279 --> 00:23:19.519
Typically, not uncommonly, by the way, you get locked up in a mental institution for longer than the relevant prison sentence.
00:23:19.599 --> 00:23:21.039
That happens all the time.
00:23:21.279 --> 00:23:29.119
But they don't get condemned as criminals because criminal law is about a vicious will, and in states of really florid insanity, you don't have it.
00:23:29.440 --> 00:23:36.319
So, Ilan, you referred to retribution, deterrence, incapacitation, and rehabilitation, the four traditional grounds of punishment.
00:23:36.559 --> 00:23:42.000
Well, an insane person who didn't know what he's doing, you can't have retributive punishment because he's not a wrongdoer.
00:23:42.079 --> 00:23:48.799
You punish someone retributively for their wrongdoing, and he wasn't a wrongdoer because he didn't know he what he was doing.
00:23:49.119 --> 00:23:52.319
And you he can't be deterred because he's insane.
00:23:52.480 --> 00:23:55.039
And deterred completely insane people.
00:23:55.119 --> 00:24:00.480
Like if you think you're chopping a tree, you can't be deterred because you don't know that it's wrong to chop a tree.
00:24:00.880 --> 00:24:03.599
And incapacitation, well, that's exactly what we do.
00:24:03.680 --> 00:24:05.920
So so that's the big picture.
00:24:06.079 --> 00:24:10.240
That's the ancient and current moral and legal framework.
00:24:10.400 --> 00:24:17.440
And so you can imagine what I'm thinking as I'm hearing Matt Walsh, who is sort of pontificating without apparently knowing any of this.
00:24:17.519 --> 00:24:18.480
He's like, she did it.
00:24:18.640 --> 00:24:19.680
Well, what's it?
00:24:19.920 --> 00:24:26.880
Did she do the, you know, did anyone who is considered insane do the act with the relevant mental state?
00:24:27.119 --> 00:24:32.960
And getting rid of the insanity defense is not like just like replacing the curtains in your living room.
00:24:33.039 --> 00:24:35.599
This is an ancient part of Western civilization.
00:24:35.759 --> 00:24:47.920
And those of us who are conservative should be very, very slow to tear apart ancient parts of our civilization because we're mad about one particular case that happened like last week.
00:24:48.400 --> 00:24:48.799
So Josh.
00:24:49.119 --> 00:25:06.160
I wonder if maybe one of the things, I was just gonna say, I wonder if maybe one of the things that um is a point of like disagreement or or a lack of, I don't know, we're not on the same page, is I feel like you didn't mention, Josh, the deterrence, like you mentioned deterrence, but you didn't mention because they're a danger to society.
00:25:06.400 --> 00:25:10.400
To me, that seems like the number one reason we're locking people up or putting people away.
00:25:10.559 --> 00:25:17.839
And the man who thinks humans are wood and can chop them down is a much bigger danger to society than almost anyone else.
00:25:17.920 --> 00:25:19.599
I mean, I'm I totally agree.
00:25:19.680 --> 00:25:21.039
And you know who else agrees?
00:25:21.279 --> 00:25:22.559
The law, right?
00:25:22.720 --> 00:25:32.400
So here's what we do: if someone is a danger to society because they want to hurt other people and they're really evil, we criminally condemn them and put them in prison.
00:25:32.559 --> 00:25:40.160
And if someone is a danger to society because they're totally insane and think that like humans are trees, we put them in a mental institution.
00:25:40.240 --> 00:25:45.519
And in both cases, we hold them for as long as we have to to make the rest of the human race safe.
00:25:45.759 --> 00:25:48.720
So actually, Catherine, keep going.
00:25:49.039 --> 00:25:49.519
Go ahead.
00:25:50.079 --> 00:25:54.400
Well, no, I think that that's there, if that's true, I think that that's good.
00:25:54.559 --> 00:25:59.039
And I think there are maybe my idea is that that isn't always the case.
00:25:59.200 --> 00:26:02.559
Why is it that people then really go after the insanity defense?
00:26:02.640 --> 00:26:06.799
Why does Lindsay Clancy want the insanity defense if you're not getting a much better deal?
00:26:06.960 --> 00:26:17.759
And so I think there has to be a reason it's better to be institutionalized in a place with a nice bed where uh, you know, if you're a female, there aren't other few weird females locked in the same room as you.
00:26:17.920 --> 00:26:19.680
Like, you know, there's pluses.
00:26:19.839 --> 00:26:33.599
So I think that we have to acknowledge that there is a plus to being institutionalized in maybe what I think is probably a cushier or at least higher security kind of situation than going to gen pop prison, right?
00:26:34.240 --> 00:26:43.119
The point I actually wanted to make here was about the insanity defense in 2026, because everything you've said so far, Josh, I totally make sense.
00:26:43.200 --> 00:27:03.519
I'm tracking with, but one of the problems that I see here is that as a society, we've gone so far to normalize and then also like medicalize mental health struggles so that now practically everyone sees themselves as someone with a mental health struggle and could maybe qualify for this insanity defense.
00:27:03.680 --> 00:27:07.279
I mean, you saw a lot of people talking about postpartum depression in this conversation.
00:27:07.440 --> 00:27:10.480
One in eight women experience postpartum depression.
00:27:10.720 --> 00:27:14.400
Something like 10 to 15% of all women are on antidepressants.
00:27:14.640 --> 00:27:22.240
Do we all of a sudden have a populace that thinks there's a huge number of people that qualify for this insanity defense?
00:27:22.400 --> 00:27:33.680
So I think the historical background is very interesting, but maybe the issue is in 2026, we've gotten to a place where everyone thinks the insanity defense applies to them and they wear it as a badge of honor.
00:27:34.160 --> 00:27:40.160
So, Josh, I I want to follow up on this uh uh the cushy thing, it's not just the it's cushier.
00:27:40.400 --> 00:27:45.359
For people who aren't actually insane, but have successfully invoked the defense.
00:27:45.680 --> 00:27:47.119
What could be their motivation?
00:27:47.279 --> 00:27:58.319
Could their motivation be that they have more chance of convincing some doctors in a hospital that they are now sane and that they are now better, because in fact they were never insane to begin with.
00:27:58.559 --> 00:28:17.599
And so after some period of time elapses, they can now pretend to be better and convince if that happens, if the doctors generally believe, hey, you were acquitted because you're insane, so you're not guilty by a reason of insanity, but you really have no indications anymore of postpartum psychosis.
00:28:17.680 --> 00:28:20.160
It's now been years since you had kids and killed them.
00:28:20.319 --> 00:28:23.599
It's now been years since you had a demonic voice in your head.
00:28:23.759 --> 00:28:26.720
In fact, you only had a voice in your head once, but it told you to kill your kids.
00:28:26.880 --> 00:28:28.000
We'll come back to that, right?
00:28:28.160 --> 00:28:32.480
And so at some point the doctors are gonna be like, hey, you actually are not insane.
00:28:32.559 --> 00:28:34.160
You don't act insane, but it's done.
00:28:34.240 --> 00:28:35.519
You were acquitted, right?
00:28:35.599 --> 00:28:38.240
I mean, there's a mistrial in this case, but you were acquitted.
00:28:38.400 --> 00:28:41.119
Is that person gonna be let off the street in five years?
00:28:41.359 --> 00:28:43.359
I guess is is is my first question to you.
00:28:43.440 --> 00:28:45.200
Like, who makes that decision?
00:28:45.440 --> 00:28:53.920
And then I do want to follow up on Catherine's point, because Josh, in talking to you about this generally, I think your view is mental health, mental illness is not the same thing as insanity.
00:28:54.000 --> 00:28:57.599
And so I want to break down what in the insanity defense is.
00:28:57.759 --> 00:29:02.400
But first, do you have a reaction to the point about you know, faking it?
00:29:02.640 --> 00:29:07.119
Isn't that why they try try this, or who decides to let them go when they can be let go?
00:29:07.440 --> 00:29:08.000
Yes, okay.
00:29:08.079 --> 00:29:11.359
So there's actually a lot I agree with you and Catherine here.
00:29:11.440 --> 00:29:18.240
I I do think, you know, if it were me, I'd rather be in a mental institution than a prison.
00:29:18.319 --> 00:29:20.799
I'll tell you an interesting factoid about that, actually.
00:29:20.960 --> 00:29:27.519
You know how we had um it's it's said that in the 90s and early 2000s we had the rise of mass incarceration.
00:29:27.680 --> 00:29:30.000
We have to overcome mass incarceration, right?
00:29:30.160 --> 00:29:49.599
Here's an interesting fact at the peak of mass incarceration, which was the late 90s, the the most Americans imprisoned ever, we actually had, if you add up the number of beds in mental institutions and prisons, you add them together, it's the same number of beds from 1950 to 1997 to 2000 to whatever.
00:29:49.759 --> 00:29:52.400
Uh, it's the same number of people who are held.
00:29:52.640 --> 00:29:57.039
We just moved beds from mental hospitals into prisons in the 1990s.
00:29:57.279 --> 00:30:01.920
But actually, our rates of involuntary uh incarceration did not change.
00:30:02.079 --> 00:30:03.440
Incarceration isn't the word there.
00:30:03.680 --> 00:30:06.880
Involuntary uh commitment did not change.
00:30:07.680 --> 00:30:20.799
Um and I agree with you that when you go into a mental hospital and you've been adjudged insane, the people who are in charge of letting you out are the the doctors.
00:30:20.960 --> 00:30:26.720
And if you can persuade them that you're no longer insane, um you can come out.
00:30:26.880 --> 00:30:30.559
And that could happen sooner than you would come out with a prison sentence.
00:30:30.640 --> 00:30:39.519
Now, I think you are much too likely to think someone is faking it successfully, and they sort of fake it for long enough to get it to get the insanity defense.
00:30:39.680 --> 00:30:41.279
Like, you think you could fake it?
00:30:41.440 --> 00:30:50.720
Do you think you're such a good actor that you could pretend to be insane and and convince everyone, your family, your friends, the the um Josh?
00:30:50.799 --> 00:30:52.240
I think that's what let me finish.
00:30:52.319 --> 00:30:52.720
Let me finish.
00:30:52.960 --> 00:30:55.599
A bunch of psychiatrists, it's ridiculous.
00:30:55.839 --> 00:30:56.480
It's ridiculous.
00:30:57.519 --> 00:30:58.559
That's what I was gonna say, Josh.
00:30:58.640 --> 00:30:59.839
I think Lindsay Clancy did it.
00:30:59.920 --> 00:31:00.720
I think she faked it.
00:31:00.880 --> 00:31:01.519
I think she faked it.
00:31:01.759 --> 00:31:07.200
Maybe, maybe, but um, she she did cut a wrist, jump out a window, get paralyzed.
00:31:07.279 --> 00:31:09.119
Maybe she faked it, maybe she's not, didn't.
00:31:09.200 --> 00:31:10.079
I am not a juror.
00:31:10.160 --> 00:31:11.279
I did not hear the evidence.
00:31:11.359 --> 00:31:12.640
I'm not gonna claim to know.
00:31:12.720 --> 00:31:19.839
But I'll tell you this: the average American thinks, wait a minute, I have I actually wrote down these numbers and I want to get them right.
00:31:19.920 --> 00:31:21.200
Um so give me a second.
00:31:21.599 --> 00:31:21.920
Okay.
00:31:22.079 --> 00:31:28.559
The average American believes that 37% of criminal defendants plead insanity and 16% succeed.
00:31:28.799 --> 00:31:29.839
That's one in six.
00:31:29.920 --> 00:31:34.720
The average American thinks one in six criminal defendants plead insanity and get acquitted for that reason.
00:31:34.880 --> 00:31:35.920
Here are the real numbers.
00:31:36.160 --> 00:31:37.200
The real numbers.
00:31:37.440 --> 00:31:49.839
One in a hundred to one in two hundred plead insanity, and five percent to twenty five percent of them succeed, which means at a maximum, it's one in four hundred criminal defendants.
00:31:50.000 --> 00:31:52.079
And at a minimum, it's like one in 10,000.
00:31:52.160 --> 00:31:54.640
I think the real number is something like one in a thousand.
00:31:54.799 --> 00:31:57.920
So if you think everybody just fakes it, right?
00:31:58.000 --> 00:31:59.599
They just fake it and they get off.
00:31:59.839 --> 00:32:01.920
No, no, it is really hard.
00:32:02.079 --> 00:32:03.599
None of us are great actors.
00:32:03.839 --> 00:32:22.160
I do not believe that you could convince me and Elon or Katherine, that you could convince everyone in your life and a bunch of doctors that you're hearing voices, they would see right through it, you would not be able to keep it up, and you would not get acquitted, just like those other 399 criminal defendants who actually go to prison where they would just as soon get acquitted.
00:32:22.400 --> 00:32:27.279
I hope you're right, Josh, but I do think there's a couple people in my life who would maybe be like, wow, that connects some dots for me, you know.
00:32:27.359 --> 00:32:28.880
So, anyway, carry on.
00:32:29.279 --> 00:32:30.559
Um, okay, before we go.
00:32:30.799 --> 00:32:31.519
Can I say something else?
00:32:31.599 --> 00:32:32.960
I'm I'm sorry, just one more point.
00:32:33.119 --> 00:32:36.079
Here's why I think you're even more right than you said, Elon.
00:32:36.160 --> 00:32:38.480
Why I I extra agree with you in a way.
00:32:38.720 --> 00:32:41.759
People's insanity is often very focused.
00:32:41.920 --> 00:32:45.920
They, it's very rare that someone thinks they're cutting down a tree and they're cutting down a person.
00:32:46.160 --> 00:32:55.440
It's more like they have this persistent delusion that people are following them, or that, I don't know, someone is persecuting them or something like that.
00:32:55.680 --> 00:32:58.400
And it's insane, but it's focused.
00:32:58.640 --> 00:33:02.319
And then, and also a lot of people go in and out of sanity, right?
00:33:02.480 --> 00:33:05.359
With medication, maybe, or with treatment, or with time.
00:33:05.839 --> 00:33:25.359
And so there's a real possibility of people who have done terrible things going into treatment, and the doctors say you've resolved the particular issue, or or it's it was a thing of the past and coming out, and it's not being faked, but it is temporary or focused in a way that doesn't persist.
00:33:25.519 --> 00:33:27.039
And that's that could be a problem.
00:33:27.359 --> 00:33:35.519
Okay, so I think point number one is that to make here is that mental illness is not the same thing as insanity, right?
00:33:35.680 --> 00:33:41.599
Now, I do we don't have to talk about this now, actually, but flag that like there is something unseemly.
00:33:41.839 --> 00:33:45.440
Catherine mentioned this at the beginning, like that there were experts on both sides, right?
00:33:45.599 --> 00:33:50.240
There is something really unseemly about a battle of experts when it comes to the death of three children.
00:33:50.319 --> 00:33:51.359
Like, was she insane?
00:33:51.519 --> 00:33:52.240
Was she not insane?
00:33:52.319 --> 00:33:55.279
Is postpartum psychosis insanity or something else?
00:33:55.359 --> 00:34:00.880
You know, it's just like so, like, okay, let's talk about this now since I just started talking about this.
00:34:01.039 --> 00:34:05.759
Uh, when I was in litigation, we had a battle of experts.
00:34:05.839 --> 00:34:06.960
I'll tell you a quick story.
00:34:07.039 --> 00:34:23.440
Uh, we had a, I was representing a generic drug company uh against a brand drug company, and the brand's expert literally said before the patentability date, the it's called the priority date of the patent, literally gave a speech saying this thing would be obvious to do, which means it's not patentable.
00:34:23.519 --> 00:34:24.880
You can't patent something obvious.
00:34:25.039 --> 00:34:28.960
And the brand hired him to testify that it was not obvious.
00:34:29.199 --> 00:34:38.639
And, you know, uh I remember the partner on the case was like, would it surprise you if you said the exact opposite two weeks before the date of the priority of the patent?
00:34:38.719 --> 00:34:40.320
And he's like, No, it wouldn't surprise me.
00:34:40.559 --> 00:34:41.920
Totally embarrassed the guy.
00:34:42.159 --> 00:34:47.119
Out in the hallway, he literally told one of the partners, you know, this is just a game, right?
00:34:47.280 --> 00:34:51.119
And it's like, you know, we could destroy you right now, but we're not gonna do that because we're professionals.
00:34:51.280 --> 00:34:51.519
Okay.
00:34:51.679 --> 00:34:57.760
But like, there is something in civil litigation about a battle of experts that it's just like you kind of know they're hired guns.
00:34:57.840 --> 00:35:02.400
Now, look, I've used experts before who genuinely are experts, they genuinely know what they're talking about.
00:35:02.559 --> 00:35:04.559
But you know, there's always that appearance.
00:35:04.719 --> 00:35:11.679
There is something unseemly about leaving this to psychiatric experts, like this question of whether someone's insane or not.
00:35:11.840 --> 00:35:19.519
Like, and that makes it that it troubles me because that seems to expand potentially the universe of things the jury is convinced to think is insane.
00:35:19.599 --> 00:35:20.559
Okay, Josh is covering.
00:35:21.440 --> 00:35:29.440
We just had an episode, Elon, on how this junk science, like transgenderism, gender-affirming care, they've been calling it science and settled science.
00:35:29.519 --> 00:35:34.800
You could get any number of experts to say that this is the way we save kids' lives, and they are totally wrong.
00:35:34.880 --> 00:35:38.400
But maybe you could convince a jury because they are the experts, but it was junk.
00:35:38.800 --> 00:35:39.199
Exactly.
00:35:39.360 --> 00:35:41.199
Josh, you seem frustrated.
00:35:41.920 --> 00:35:43.519
I'm take take it away.
00:35:43.760 --> 00:35:47.840
I am, I am you're I'm just boiling.
00:35:47.920 --> 00:35:51.679
And and I'm boiling because I have okay, okay.
00:35:51.760 --> 00:35:52.639
Let me start here.
00:35:53.360 --> 00:35:54.000
All right, wait.
00:35:54.079 --> 00:35:54.960
First, deep breath.
00:35:55.280 --> 00:35:55.920
Deep breath.
00:35:56.880 --> 00:35:57.840
Okay, go.
00:36:00.159 --> 00:36:09.519
Um, there are zero cases because it's a rule of American law in which psychiatrists decide whether a person is insane uh for purposes of criminal conviction.
00:36:10.000 --> 00:36:14.400
It is always the decision of a judge or a jury.
00:36:15.039 --> 00:36:17.360
The psychiatrists can testify.
00:36:17.679 --> 00:36:25.440
And yes, there is a battle of experts that can be unseemly, though often they genuinely disagree because there is real disagreement in psychiatry and psychology.
00:36:25.599 --> 00:36:29.679
So they testify, hopefully they're telling the truth, that's what perjury is for.
00:36:29.840 --> 00:36:33.199
Uh, hopefully it's not just a game to them, that's what integrity is for.
00:36:33.360 --> 00:36:37.039
But at the end of the day, none of them ever make the decision.
00:36:37.199 --> 00:36:43.440
They submit their opinions to the jury, ideally, and sometimes to a judge, and that person makes the decision.
00:36:43.599 --> 00:36:44.880
So I just want to get that out there.
00:36:44.960 --> 00:36:52.480
And then the second thing is being insane in criminal law is not the same as having a mental illness, according to psychiatrists.
00:36:52.719 --> 00:36:54.559
In criminal law, there's a rule.
00:36:54.719 --> 00:37:01.679
You've got to have a mental illness, and it has to be so severe as to block moral responsibility for your actions.
00:37:01.920 --> 00:37:04.880
So the jury has to make first a credibility judgment.
00:37:05.039 --> 00:37:06.880
Does this person have a mental illness?
00:37:07.039 --> 00:37:12.000
And second, is it so severe as to block moral responsibility for what they did?
00:37:12.880 --> 00:37:14.559
Lots of people are depressed.
00:37:14.719 --> 00:37:17.360
It is not enough to block moral responsibility.
00:37:17.519 --> 00:37:19.039
Lots of people are anxious.
00:37:19.119 --> 00:37:21.679
It is not enough to block moral responsibility.
00:37:21.760 --> 00:37:23.199
A lot of people have ADHD.
00:37:23.280 --> 00:37:26.960
That's a mental illness that does not get you off the hook for committing crimes.
00:37:27.199 --> 00:37:34.719
The law has developed tests for whether someone is insane enough to not have responsibility for their actions.
00:37:34.800 --> 00:37:37.679
And they go by different names, the McNaughton test, the ALI test.
00:37:37.920 --> 00:37:39.039
I'll get into them in a second.
00:37:39.119 --> 00:37:41.519
But here's the big takeaways from this test.
00:37:41.760 --> 00:37:44.400
Number one, there is no perfect test.
00:37:44.800 --> 00:37:49.840
Lawyers and psychologists and citizens have been working on this for 500 years.
00:37:50.159 --> 00:37:57.440
And the question of what is a mental illness so severe that a person can't be seen as morally responsible has no easy answer.
00:37:57.599 --> 00:37:59.280
And don't expect a perfect test.
00:37:59.440 --> 00:38:00.400
There isn't any.
00:38:00.639 --> 00:38:03.519
Second, all of the tests are pretty tough.
00:38:03.760 --> 00:38:08.079
The vast majority of mental illnesses don't count under any of the tests.
00:38:08.559 --> 00:38:15.280
And third, again, people getting, as I mentioned before, people getting the benefit of these tests is pretty rare.
00:38:15.440 --> 00:38:19.280
You know, people think it's one in six, it's one in 400 at most.
00:38:19.760 --> 00:38:20.800
So what are the tests?
00:38:20.880 --> 00:38:23.119
I'm going to simplify here just for speed.
00:38:23.280 --> 00:38:26.159
But the most common is called the McNaughton test.
00:38:26.320 --> 00:38:33.039
And that means you either don't understand the nature of what you're doing or you don't understand the difference between right and wrong.
00:38:33.199 --> 00:38:34.960
So don't understand the nature of what you're doing.
00:38:35.039 --> 00:38:38.000
That's like you're, you think you're chopping a person.
00:38:38.079 --> 00:38:38.719
That's a tree chopping.
00:38:38.960 --> 00:38:40.320
The tree chopping example.
00:38:40.639 --> 00:38:50.719
Uh, not knowing the difference between right and wrong is maybe you hallucinate that God is telling you to kill someone because that someone is uh is a satanic demon or something like that, right?
00:38:50.880 --> 00:38:53.599
So you think what you're doing is right when in fact it's wrong.
00:38:53.920 --> 00:38:56.719
And that's close to what Lindsay's defense was, right?
00:38:57.199 --> 00:38:58.400
Well, it was one of her claims.
00:38:58.559 --> 00:39:00.559
She's her lawyer sort of fitted that in there.
00:39:00.800 --> 00:39:04.400
In practice, it means you need people who are deeply out of touch with reality.
00:39:04.480 --> 00:39:12.960
The McNaughton defense means that Clancy would count only if you buy the whole voice of God thing, not otherwise.
00:39:13.280 --> 00:39:16.320
Then the second most common test is called the ALI test.
00:39:16.639 --> 00:39:18.239
And it's sort of McNaughton plus.
00:39:18.559 --> 00:39:23.039
It still includes the people who are out of touch with reality, but it adds another category.
00:39:23.280 --> 00:39:28.239
People who, due to mental illness, cannot conform their conduct to the law.
00:39:28.400 --> 00:39:31.679
What is sometimes called the irresistible impulse test.
00:39:32.079 --> 00:39:39.039
So some people who are um floridly insane describe the feeling of an alien force inhabiting their body.
00:39:39.280 --> 00:39:42.800
I was reading about Andrew Goldstein, the New York subway killer.
00:39:42.880 --> 00:39:45.599
He pushed a woman onto the subway tracks and killed her.
00:39:45.760 --> 00:39:50.079
And he explained what it was like for him waiting on the platform.
00:39:50.239 --> 00:39:54.800
And he said, I quote it, um, the train is almost there.
00:39:54.880 --> 00:39:56.639
And I said, Oh no, it happened.
00:39:56.800 --> 00:39:58.400
You know, I go into the fit again.
00:39:58.480 --> 00:40:05.840
Like I've done this in the past, and I pushed the woman, not meaning to push her on the tracks, but I shoved her, not knowing which direction I was going, coming or going.
00:40:06.000 --> 00:40:10.400
And then she fell onto the track and I went into shock horror, right?
00:40:10.800 --> 00:40:15.920
So assuming you think he's telling the truth, that would be an example of an irresistible impulse.
00:40:16.079 --> 00:40:19.199
His body moved without his mind agreeing to the movement.
00:40:19.360 --> 00:40:24.800
And sometimes people describe this feeling of like something is moving my hands and I can't control it.
00:40:25.119 --> 00:40:33.679
So this this ALI test with the irresistible impulse component, that's the standard in Massachusetts where Clancy committed her acts.
00:40:33.840 --> 00:40:35.280
So should she get it?
00:40:35.519 --> 00:40:41.199
Well, that depends on what you make of whether she was in the fit of an irresistible impulse.
00:40:41.360 --> 00:40:43.760
Usually irresistible impulses are sudden.
00:40:43.920 --> 00:40:48.320
You know, you feel like someone else is inhabiting your body, is controlling your hands.
00:40:48.480 --> 00:40:56.480
Um, it it's like a seizure almost, or like a uh, I'm not sure postpartum psychosis would qualify.
00:40:56.639 --> 00:41:01.519
It seems more like that's extreme distress, but you know, we could talk about it.
00:41:01.679 --> 00:41:05.679
And then the final test is called the product of mental illness test.
00:41:05.840 --> 00:41:07.519
And that's simply that's the most lenient.
00:41:07.599 --> 00:41:15.679
It simply says if your behavior was the product of mental illness, that is, you would not have done it but for mental illness, then you are legally insane.
00:41:15.840 --> 00:41:23.679
And Clancy would definitely win on that standard, but only one state uses that standard, and it ain't Massachusetts, it's New Hampshire.
00:41:23.920 --> 00:41:27.280
So it exists- which is one state too many.
00:41:27.440 --> 00:41:27.599
Okay.
00:41:28.000 --> 00:41:28.559
That's insane.
00:41:28.800 --> 00:41:29.760
So takeaway number one.
00:41:30.000 --> 00:41:31.039
I think it's a bad standard.
00:41:31.280 --> 00:41:32.559
New Hampshire, get rid of that.
00:41:32.639 --> 00:41:33.119
That's crazy.
00:41:33.199 --> 00:41:34.320
But okay, not relevant here.
00:41:34.480 --> 00:41:37.119
Josh, before we go on, so this is super interesting.
00:41:37.280 --> 00:41:46.880
I how different is the irresistible impulse test from the McNaughton test, which deals with, again, this cognitive and moral uh like lack of understanding, right?
00:41:46.960 --> 00:41:51.039
Because a violent person could just say, I have an irresistible compulsion.
00:41:51.119 --> 00:41:52.000
I can't help myself.
00:41:52.159 --> 00:41:54.400
I know it's wrong, but I'm just violent.
00:41:54.639 --> 00:42:01.119
And I just get disgratification from killing kittens and killing kids and torturing people and whatever.
00:42:01.280 --> 00:42:04.480
And it's just like that person would never be let off, right?
00:42:04.800 --> 00:42:05.440
Never, never.
00:42:05.599 --> 00:42:06.719
I've never seen a case like that.
00:42:06.800 --> 00:42:08.159
I've never even heard of a case like that.
00:42:08.239 --> 00:42:09.679
And I've practiced criminal law.
00:42:09.840 --> 00:42:12.400
Like, that's not how irresistible impulse works.
00:42:12.480 --> 00:42:18.320
It doesn't mean I'm just a really mean, bad person, and I like hurting people, so I have an irresistible impulse.
00:42:18.480 --> 00:42:22.239
It means that you can't control what your body is doing.
00:42:22.639 --> 00:42:23.679
Okay, so I do.
00:42:23.920 --> 00:42:26.719
In those situations, you'd say you just wouldn't be convinced.
00:42:26.800 --> 00:42:28.480
You'd be like, you you know it's wrong.
00:42:28.639 --> 00:42:30.800
You literally could control it.
00:42:31.039 --> 00:42:34.000
And but there are people who just say, no, I just I just can't resist.
00:42:34.400 --> 00:42:36.000
I mean, Ilan, it's so ridiculous.
00:42:36.079 --> 00:42:39.920
I think the lawyer would get would get rule 11 sanctions for bringing that up.
00:42:40.079 --> 00:42:40.719
I I don't know.
00:42:40.800 --> 00:42:49.760
I mean, rule 11 sanctions are pretty lenient, but but rule 11 sanctions, Catherine, is um uh when you bring up an argument so frivolous in court that you get punished as a lawyer.
00:42:50.719 --> 00:42:54.400
I've read all sorts of stuff about like brain chemistry makes some people particularly violent.
00:42:54.480 --> 00:42:55.760
So is brain chemistry enough?
00:42:55.840 --> 00:42:57.280
Like I'm not hearing voices.
00:42:57.440 --> 00:42:59.039
No, I understand it's wrong.
00:42:59.199 --> 00:43:01.440
No one's telling me to do it in my brain.
00:43:01.679 --> 00:43:03.840
I just have a brain chemistry that makes me violent.
00:43:04.400 --> 00:43:05.360
People don't make those arguments?
00:43:05.840 --> 00:43:06.960
Is brought up all the time.
00:43:07.039 --> 00:43:10.159
It almost never works, but that isn't rule 11 sanctionable.
00:43:10.239 --> 00:43:11.519
It's just a bad argument.
00:43:11.840 --> 00:43:18.000
Okay, so but that's so if that's true, then I don't see the difference between irresistible impulse and the McNaughton test.
00:43:19.760 --> 00:43:29.039
Um Well, so with McNaughton, you basically have to show that you are due to mental illness suffering under some sort of delusion.
00:43:29.199 --> 00:43:32.320
Like you think God spoke to you and told you to do something.
00:43:32.480 --> 00:43:36.800
Or you um have you seen that movie, A Beautiful Mind?
00:43:37.039 --> 00:43:37.440
Yeah.
00:43:37.760 --> 00:43:40.960
John Nash would probably qualify under the McNaughton standard.
00:43:41.039 --> 00:43:42.400
He had all those hallucinations.
00:43:42.480 --> 00:43:51.039
He saw the little girl who didn't exist, and he thought all these people were talking to him and telling him that he was codebreaking for the US government, but he wasn't, right?
00:43:51.119 --> 00:43:54.719
He was schizophrenic and he was experiencing hallucinations and delusions.
00:43:54.800 --> 00:43:57.199
He would qualify under the McNaughton test.
00:43:57.440 --> 00:43:59.679
But he actually was not out of physical.
00:44:00.400 --> 00:44:00.639
Control.
00:44:00.719 --> 00:44:03.679
Like there was a volitional relationship to his own body, right?
00:44:04.000 --> 00:44:05.840
No, no, but John Red.
00:44:06.639 --> 00:44:12.239
For clarity for our audience, I agree that you could you could qualify as like not being aware of reality.
00:44:12.400 --> 00:44:14.639
And that's not the same thing as irresistible impulse.
00:44:14.800 --> 00:44:23.360
But anybody who has an irresistible impulse of the kind that would obviate guilt also would, you know, wouldn't be aware of reality.
00:44:23.440 --> 00:44:24.000
Like the alien.
00:44:24.480 --> 00:44:25.840
No, take Andrew Goldstein.
00:44:26.079 --> 00:44:29.920
He said, I pushed her, and I was like, shock, horror.
00:44:30.400 --> 00:44:31.679
I can't, what did I just do?
00:44:32.000 --> 00:44:32.719
I'll quote him again.
00:44:32.800 --> 00:44:34.000
Listen, listen to it.
00:44:34.239 --> 00:44:38.320
Um the train is almost there, and I said, Oh no, it happened.
00:44:38.400 --> 00:44:39.039
I think it's interesting.
00:44:39.119 --> 00:44:42.159
He almost flips into the past tense like he already did it.
00:44:42.400 --> 00:44:52.159
You know, I go into the fit again and I push the woman, not meaning to push her, but I shoved her and then she fell onto the track and I went into shock horror.
00:44:52.400 --> 00:44:52.719
Right.
00:44:53.119 --> 00:44:55.119
He knew that it was what he was doing.
00:44:55.199 --> 00:44:57.599
He knew he was pushing an innocent woman to her death.
00:44:57.840 --> 00:45:02.079
He thought it was an awful thing to do, and he could not control himself.
00:45:02.639 --> 00:45:12.559
How do we know, though, that he's based on that statement, he's not just saying these things and you know, like we we never can get inside someone's brain, obviously.
00:45:12.639 --> 00:45:16.159
But so how do we do it in these cases where we know he's crazy?
00:45:16.400 --> 00:45:17.360
But how do we know?
00:45:17.519 --> 00:45:19.360
Couldn't someone just say that they had that impulse?
00:45:19.679 --> 00:45:21.599
Josh, let me take let me let me let me start.
00:45:21.679 --> 00:45:29.360
Let me take this and start because it's so just so everyone understands, I think from the what we are just our discussion, insanity is not the same thing as mental illness.
00:45:29.440 --> 00:45:33.519
Okay, that's point number one, and except in New Hampshire, which is insane, but whatever.
00:45:33.679 --> 00:45:33.920
Okay.
00:45:34.480 --> 00:45:38.800
There's a separate question of burden of proof and evidentiary standards.
00:45:38.880 --> 00:45:40.800
And this was at play in Massachusetts.
00:45:40.880 --> 00:45:42.800
And this is super interesting discussion.
00:45:42.880 --> 00:45:44.000
So let me set it up.
00:45:44.320 --> 00:45:46.719
Even if insanity is a valid defense, right?
00:45:46.880 --> 00:45:50.079
As Catherine just said, how is this something you prove?
00:45:50.239 --> 00:45:51.840
And something that it's interesting.
00:45:52.000 --> 00:45:59.679
Now, I'll get back to De Carlos Brown and the Arena Zarutska, because he really did have a documented history of like hallucinations and saying things, and I get it.
00:45:59.920 --> 00:46:08.239
But when it comes to voices commanding you to do things, I find it interesting that a lot of these cases, and I know it's true that some people do things that are self-harming.
00:46:08.320 --> 00:46:17.519
And I know Josh, we've talked about this offline, but like it's amazing that a lot of these people say, Oh, a voice told me to kill the little white girl.
00:46:17.679 --> 00:46:21.199
No one told you to kill the six foot seven jacked football player, right?
00:46:21.360 --> 00:46:26.320
Oh, Lindsay Clancy was only told to kill her children, not her husband.
00:46:26.480 --> 00:46:30.480
And the voice only told her to do it when no one was there to stop her, right?
00:46:30.559 --> 00:46:33.519
I mean, so it's a question of proof, right?
00:46:33.599 --> 00:46:34.559
I think is what you would say.
00:46:34.639 --> 00:46:41.039
It's a question of the if that's true, then it's not plausible, and the jury should just find it not persuasive, a not persuasive story, right?
00:46:41.199 --> 00:46:43.039
But there are two ways you can go about this.
00:46:43.280 --> 00:46:47.119
One is the insanity defense could be just that a defense.
00:46:47.199 --> 00:46:48.719
It's an affirmative defense.
00:46:48.960 --> 00:46:54.239
In other words, the government doesn't have the burden to prove that you were not mentally ill.
00:46:54.400 --> 00:46:57.360
It's your burden to prove it as an affirmative defense.
00:46:57.519 --> 00:46:59.920
My understanding is this is the majority rule.
00:47:00.079 --> 00:47:02.159
So, but it was not the rule in Massachusetts.
00:47:02.400 --> 00:47:03.840
So, how would it work out?
00:47:04.000 --> 00:47:06.159
The government would show, did you do the act in question?
00:47:06.239 --> 00:47:08.719
Yes, Lindsay Clancy admitted to killing the children.
00:47:08.960 --> 00:47:11.199
Did you intentionally kill them?
00:47:11.360 --> 00:47:13.119
Yes, she did intentionally kill them.
00:47:13.280 --> 00:47:15.199
Now, maybe willful is tricky.
00:47:15.280 --> 00:47:18.239
You know, if it's willful murder, is that part of the element of the offense?
00:47:18.320 --> 00:47:23.119
But anyway, so you can prove intentional murder at least, which is almost as serious as willful murder.
00:47:23.199 --> 00:47:23.519
Okay.
00:47:23.760 --> 00:47:33.679
Then she would have to come back and say, through either preponderance of the evidence or clear and convincing evidence, actually, although I did intend to kill them, I was insane.
00:47:33.760 --> 00:47:35.599
I was hearing voices, someone told me to do that.
00:47:35.679 --> 00:47:36.960
It was not willful murder.
00:47:37.119 --> 00:47:38.960
I am not morally culpable to do it.
00:47:39.199 --> 00:47:40.880
And she has to prove it.
00:47:41.119 --> 00:47:44.239
And that makes some degree of sense because, as Catherine said, how do you know?
00:47:44.400 --> 00:47:46.079
How do you know what's going on in their head?
00:47:46.239 --> 00:47:52.719
They should have to prove it through corroborating evidence and testimony and a pattern and history of doing those things, right?
00:47:53.440 --> 00:48:07.360
Now, the alternative minority view is the Massachusetts view, which is it is part of the element of the offense, which means the government has to prove beyond a reasonable doubt that you were not actually hearing a voice or that you were not insane.
00:48:07.440 --> 00:48:14.159
And that seems super crazy to me because how do you prove a negative, first of all, and certainly how do you prove it beyond a reasonable doubt?
00:48:14.320 --> 00:48:22.719
Now, don't get me wrong, I think even under that test, I do not think I would have had a reasonable doubt, and we'll get into the evidence as I understand it in the Clancy trial in a moment.
00:48:22.800 --> 00:48:29.599
But what do you think about affirmative defense versus uh using it as an element of the offense?
00:48:30.320 --> 00:48:38.320
Yeah, I I I think um I think the defendant should have to prove by a preponderance of the evidence that they're insane.
00:48:38.880 --> 00:48:42.880
Um, I I don't think the government should have to prove that they're not insane.
00:48:43.199 --> 00:48:56.239
And I do think it because uh people can falsely claim to be insane, to be hearing voices, and it can be exceedingly difficult to disprove that claim on the part of the state.
00:48:56.559 --> 00:49:05.760
But do remember that if it were really easy to claim, you know, oh, I got caught shoplifting a bunch of expensive watches.
00:49:05.920 --> 00:49:09.679
Well, I was hearing voices and uh and they told me to do it.
00:49:09.840 --> 00:49:13.840
If that were easy, the numbers wouldn't be one in 400, right?
00:49:14.639 --> 00:49:16.400
So why are the numbers that way?
00:49:16.559 --> 00:49:20.559
Well, just remember, lawyers prove mental states all the time.
00:49:20.800 --> 00:49:21.920
This is not weird.
00:49:22.000 --> 00:49:23.519
This is not some sort of sorcery.
00:49:23.599 --> 00:49:27.039
There's this very, you know, I see it with my criminal law students all the time.
00:49:27.199 --> 00:49:33.039
There's this very natural impulse to say, well, how can you ever prove anything that's in someone's head, right?
00:49:33.119 --> 00:49:34.559
That's impossible, right?
00:49:34.719 --> 00:49:40.880
So um, it must be that people can just lie about it and get away with it 100% of the time, right?
00:49:41.199 --> 00:49:42.079
No, no.
00:49:42.559 --> 00:49:48.559
I mean, Elon, how do I know that you are against birthright citizenship?
00:49:48.800 --> 00:49:49.119
Right?
00:49:49.199 --> 00:49:57.599
Why I would I if if if it were if you were charged with being against birthright citizenship, I would have no reasonable doubt that you are against birthright citizenship.
00:49:57.679 --> 00:49:58.079
How do I know?
00:49:58.320 --> 00:50:01.440
Well, as a matter of law, as a legal matter.
00:50:02.559 --> 00:50:05.840
How do I know what yours in your head about birthright citizenship?
00:50:05.920 --> 00:50:12.000
How about the fact that you like wrote a bunch of articles and gave a bunch of speeches and we did a podcast together about it, right?
00:50:12.159 --> 00:50:15.760
And so, like, of course you're against birthright citizenship.
00:50:16.000 --> 00:50:33.519
I had a case um where an older gang member instructed a younger gang member as almost part of an initiation that the younger gang member was playing video games with his friend, and the older gang member was texting the younger one over Facebook Messenger and said, do him in the alley.
00:50:33.760 --> 00:50:40.480
And the younger one took his friend out into the alley and had him kneel and shot him in the head.
00:50:40.719 --> 00:50:53.920
And um, you know, one thing about murder is you probably don't want to plan it out on Facebook Messenger, like not a good idea from just a criminal defense standpoint, not to be cynical.
00:50:54.159 --> 00:50:59.280
But, you know, would you have a reasonable doubt about his intent to kill?
00:50:59.840 --> 00:51:06.239
He engaged in a conversation about his intent to kill, and then he acted on it in the obvious way.
00:51:06.400 --> 00:51:09.280
And there is no what about what if you catch a guy shoplifting?
00:51:09.440 --> 00:51:20.719
Um uh he's he's leaving the store, his, his, his pockets are full of expensive watches, and the security guard stops him and he's like, Oh, I thought I had already purchased them.
00:51:20.800 --> 00:51:26.639
Oh, yeah, you thought you had purchased like 25 watches that are worth thousands of dollars and they're in your pocket.
00:51:27.039 --> 00:51:28.800
Nobody buys that, right?
00:51:29.760 --> 00:51:34.719
Hearing voices, I see people on the street where I have no reasonable doubt.
00:51:34.880 --> 00:51:39.199
That is, I am persuaded beyond a reasonable doubt, that they're crazy.
00:51:39.360 --> 00:51:40.400
I see them on the street.
00:51:40.480 --> 00:51:41.360
It bothers me actually.
00:51:41.440 --> 00:51:43.199
I don't like all those crazy people on the street.
00:51:43.280 --> 00:51:47.199
And by the way, you're convinced beyond a reasonable doubt that they're crazy too.
00:51:47.440 --> 00:51:49.599
So, you know, could some people fake it?
00:51:49.679 --> 00:51:51.119
Sure, it's not easy.
00:51:51.280 --> 00:51:59.199
You'd have to sort of successfully fake it for a really long period of time with a whole lot of people, some of whom know you and some of whom have seen a lot of fakes before.
00:51:59.519 --> 00:52:07.679
But this whole like instinct we have that like mental states are impossible to prove, it's just weird, right?
00:52:07.840 --> 00:52:19.199
It's like in any concrete case, in any concrete individual case, we all make inferences about what's in one another's head all the time, and we prove it in court all the time, and it's not a problem.
00:52:19.440 --> 00:52:24.880
But somehow when it's put in the abstract, people have this reaction where it's like it's unprovable.
00:52:25.119 --> 00:52:29.519
Okay, so maybe the problem is the jury, and which is why I kind of want to move on to that.
00:52:29.599 --> 00:52:31.760
And let me explain why I think maybe the problem is the jury.
00:52:31.920 --> 00:52:37.760
Now, look, with the obvious caveat, none of us was there and hurt every minute of testimony.
00:52:37.920 --> 00:52:45.119
But like I try to research this and and and the arguments on both sides and the testimony for both sides before I talk about it.
00:52:45.280 --> 00:52:56.880
And here's what, you know, I why I understand that uh, you know, the jury either clearly messed this up because um the the concern that Catherine and I are raising about, well, how do you prove it?
00:52:56.960 --> 00:53:01.360
And you say, well, you prove things all the time, uh, and you can disprove those claims all the time.
00:53:01.599 --> 00:53:03.920
Well, the jury really flubbed it in this case, right?
00:53:04.079 --> 00:53:07.039
And so here's an example of where they flubbed it, and here's why, and here's why.
00:53:07.119 --> 00:53:09.039
And let me make the argument why.
00:53:09.360 --> 00:53:15.280
The only time she ever heard a voice was when she was told to kill her children.
00:53:15.440 --> 00:53:18.239
Now you could say, well, oftentimes, you know, that happens.
00:53:18.480 --> 00:53:22.320
Okay, but she sp and the defense did not deny this.
00:53:22.480 --> 00:53:30.880
She specifically sent her husband out on a particular errand that would take a particular amount of time before she heard the voice.
00:53:31.119 --> 00:53:32.000
So she was plan.
00:53:32.559 --> 00:53:35.599
So you combine those two, and she had never heard the voice before or since.
00:53:35.679 --> 00:53:44.559
Okay, so she created the conditions to allow this to happen and then claims the reason she did it after creating the conditions to allow it to happen is because she heard a voice.
00:53:44.719 --> 00:53:46.159
It is totally implaus.
00:53:46.320 --> 00:53:49.360
She, in my view, she would clearly lose on an affirmative defense.
00:53:49.519 --> 00:53:52.719
But even if the state had to bur at the burden of proof, right?
00:53:52.880 --> 00:53:56.000
The her only evidence is that she said she heard a voice.
00:53:56.239 --> 00:53:59.679
And if that's enough to create a reasonable doubt, then it's a get out of jail free card.
00:53:59.760 --> 00:54:04.880
So the jury couldn't have gotten that thing right, or that the 11 jurors couldn't have uh gotten it right.
00:54:05.039 --> 00:54:08.559
Don't get me wrong, is it still possible that she heard a voice?
00:54:08.800 --> 00:54:10.000
Of course it's possible.
00:54:10.079 --> 00:54:14.960
Just like it's possible that the sun might not come up tomorrow for some crazy Armageddon reason.
00:54:15.119 --> 00:54:25.840
It wouldn't be a reasonable doubt in the law because it's the only real evidence, you know, that at uh especially when you add up the planning uh part of it where she didn't hear the voice.
00:54:26.000 --> 00:54:30.880
So compare again, we talked about De Carlos Brown, the the killer of Irina Zarutzka.
00:54:31.119 --> 00:54:37.280
He had a years-long documented history of schizophrenia, of hearing voices.
00:54:37.440 --> 00:54:42.239
He claimed multiple times that he was being controlled by some man-made device in his body.
00:54:42.320 --> 00:54:43.519
There are years of this.
00:54:43.679 --> 00:54:49.760
It doesn't follow that he was under the influence of that delusion when he killed um Irina Zarutska.
00:54:49.920 --> 00:54:55.039
But the point is, if he makes that claim, he's got a ton of corroborating evidence, right?
00:54:55.199 --> 00:54:57.039
And here there just wasn't any.
00:54:57.119 --> 00:54:59.679
And so it seems to me that the jury has flubbed it.
00:54:59.920 --> 00:55:12.800
And Catherine, you and I, I think saw Matt Walsh again on the jury basically saying, you know, here the jury's a problem, you know, it used to be intelligent jurors, and and so we had a, you know, I don't know.
00:55:12.880 --> 00:55:14.239
So if Catherine, you want to end up with the right.
00:55:14.719 --> 00:55:24.880
I think the point I would make maybe, and I don't know what Matt Walsh was, but you we've been debating this now for 55 minutes and going back and forth and talking about the these different facets, whatever.
00:55:24.960 --> 00:55:28.480
And I'm mostly here with you as a normal person, but falling off at parts.
00:55:28.639 --> 00:55:33.760
So should I be able to serve on a jury when I'm like, what is that about probable cause?
00:55:33.920 --> 00:55:49.679
Like, I mean, do we have the kind of populace right now in America that is fit to serve on juries when we're asking them them these kind of difficult, really hard questions with these kind of crazy laws in place like the one in Massachusetts?
00:55:50.480 --> 00:55:52.880
So, Josh, is jury are the juries the problem?
00:55:53.599 --> 00:55:58.960
I I think once again, you know, you know, do I think this jury messed up?
00:55:59.119 --> 00:56:00.559
And did here's what I think.
00:56:00.719 --> 00:56:07.119
I think this jury basically said she may, she was, she was under a huge amount of stress and we should sympathize with her.
00:56:07.360 --> 00:56:10.639
And she sought help and she didn't get it, so it's not her fault.
00:56:10.719 --> 00:56:11.599
I think that's what they did.
00:56:11.679 --> 00:56:16.239
I don't think they really like scrutinized whether she was subject to an irresistible impulse.
00:56:16.400 --> 00:56:18.719
Does that so yeah, the jury screwed up?
00:56:18.880 --> 00:56:23.039
Does that mean the insanity defense as an institution, as a thing, is a bad thing?
00:56:23.199 --> 00:56:23.440
No.
00:56:23.599 --> 00:56:26.559
Does that mean the jury system is a bad thing?
00:56:26.880 --> 00:56:28.880
No, again, wrong target.
00:56:29.039 --> 00:56:33.360
And any populist in the true sense, like someone who loves, what is a populist?
00:56:33.519 --> 00:56:34.480
Properly understood.
00:56:34.719 --> 00:56:40.000
It's someone who loves the voice of we the people and is skeptical of elite control, right?
00:56:40.320 --> 00:56:42.480
Anyone who thinks that should love juries.
00:56:42.559 --> 00:56:47.679
They're one of the most democratic things in literally the history of mankind and certainly in our country.
00:56:47.920 --> 00:56:51.519
And any conservative in the true sense, what is a true conservative?
00:56:51.679 --> 00:56:59.199
It's someone who believes in what Western and American civilization has built over the centuries and wants to keep it from being torn down.
00:56:59.440 --> 00:57:05.119
Anyone like that should love juries, which are even just as almost as ancient as the insanity defense.
00:57:05.199 --> 00:57:08.559
Actually, it's kind of a tough call because juries go back to like the 12th century.
00:57:08.800 --> 00:57:10.400
So juries are ancient.
00:57:10.559 --> 00:57:15.679
They are hugely democratic, they're the most popular element in our criminal justice system.
00:57:16.000 --> 00:57:21.679
Without them, you are always being judged and sentenced by elites, right?
00:57:22.239 --> 00:57:31.199
There's a judge who is a highly educated member of the official class, indeed member of the government, who has exclusive control over your liberty.
00:57:31.440 --> 00:57:34.400
With the jury, there's this block in place.
00:57:34.639 --> 00:57:46.719
Before the government gets to, which is to say, before the power holders, before the elite in many cases, gets to take away your liberty or take away your money or stain you with a criminal condemnation.
00:57:46.880 --> 00:57:51.760
There's a group of 12 fellow citizens who have to give that the green light.
00:57:51.920 --> 00:57:55.599
And that is a tremendous popular check on the power of government.
00:57:55.760 --> 00:57:58.400
It's traditionally the bulwark of democracy.
00:57:58.559 --> 00:58:00.480
It has faded in modern times.
00:58:00.639 --> 00:58:10.960
But it is weird, weird to hear the populist movement, you know, the new right types, the America first types, turn against the jury, right?
00:58:11.360 --> 00:58:14.480
And they use old Woodrow Wilson style arguments, right?
00:58:14.559 --> 00:58:17.760
These very elitist arguments that we've heard for like a hundred years and more.
00:58:18.000 --> 00:58:20.719
Ordinary people are too stupid to serve on juries.
00:58:20.800 --> 00:58:22.480
Or there should be a better class of people.
00:58:22.639 --> 00:58:23.440
Well, what do they want?
00:58:23.599 --> 00:58:28.000
Do they want only PhDs to make the decision about human liberty?
00:58:28.239 --> 00:58:33.440
Frankly, as a populist, I do not think PhDs would do a better job of it.
00:58:33.760 --> 00:58:39.360
Boy, would they be bad when it comes to charge gender issues of criminal justice, right?
00:58:39.440 --> 00:58:40.639
You think they'll be better?
00:58:40.800 --> 00:58:43.119
Or how about purely elite control through judges?
00:58:43.519 --> 00:58:45.760
Do you think district judges are so fair?
00:58:45.840 --> 00:58:48.239
Is that the history of our podcast that we've been talking about?
00:58:48.320 --> 00:58:51.199
These the wonderful sense of justice among district judges?
00:58:51.360 --> 00:58:52.559
The jury is flawed.
00:58:52.800 --> 00:58:55.760
It is less flawed than the alternatives.
00:58:55.920 --> 00:59:01.519
And I feel like our movement is getting things not just wrong, but backwards, right?
00:59:01.679 --> 00:59:09.280
So, like if the wrong guy wins in Minnesota, if El Said becomes a senator, I am not going to turn against elections.
00:59:09.440 --> 00:59:15.840
I'm going to be really concerned about what's going on in the culture of Minnesota, but I am not going to turn against elections.
00:59:16.079 --> 00:59:18.800
And, you know, that's Michigan, by the way.
00:59:19.760 --> 00:59:20.559
Michigan, I'm sorry.
00:59:20.800 --> 00:59:21.519
I got mixed up.
00:59:21.679 --> 00:59:23.920
I'm sorry to stain your fair state, right?
00:59:24.079 --> 00:59:25.679
But um plenty stained already.
00:59:25.760 --> 00:59:26.159
It's okay.
00:59:27.519 --> 00:59:30.960
Um, but I'm not going to turn against elections, right?
00:59:31.119 --> 00:59:34.719
So we populists and we conservatives, we should love juries.
00:59:34.880 --> 00:59:45.039
And we should talk about the real problem, which is what's going on in the culture of America, that you have 11 people who are ready to acquit because they're just sympathetic.
00:59:45.519 --> 00:59:47.760
Yeah, I t I definitely agree on this issue.
00:59:47.920 --> 00:59:55.920
And I think the elitism point and the the thing we saw, you know, like look at what we saw in COVID with, you know, trusting the experts and the doctors are always right.
00:59:56.000 --> 01:00:00.719
If those are the kind of people that we have serving on juries, certainly that would not be any fairer.
01:00:00.800 --> 01:00:05.440
But there obviously is a problem with the people we have serving on these juries.
01:00:05.519 --> 01:00:08.159
And I think, I don't know, maybe it's a shared values thing.
01:00:08.239 --> 01:00:23.519
Because one of the things I saw in the women who were on the jury is they talked about compassion over and over in these clips and having compassion for Lindsay and how they didn't like the prosecution because the pro prosecution didn't have enough compassion for Lindsay Clancy.
01:00:23.760 --> 01:00:24.880
Well, that makes no sense.
01:00:25.039 --> 01:00:29.280
Of course they didn't have compassion for Lindsay Clancy, but that's what they keyed in on, these women.
01:00:29.519 --> 01:00:40.880
And so maybe the problem is that these values that we used to share back when, you know, our country was founded, like maybe justice, are not so much a part of our society now.
01:00:41.199 --> 01:00:42.880
And that's the core problem.
01:00:43.039 --> 01:00:48.239
Although that seems like a much bigger problem to fix to me than just the jury system.
01:00:48.400 --> 01:00:50.880
So I think that's where a lot of people are as well.
01:00:51.039 --> 01:00:54.719
Clearly, our people have a problem, our women in particular, I think I can say.
01:00:54.960 --> 01:00:56.480
But how do you fix that?
01:00:56.639 --> 01:00:57.360
I don't know.
01:00:57.760 --> 01:01:13.039
Let me amplify this point and then send it back to you, Josh, because maybe uh we are coalescing around the proposition uh that juries are just a microcosm of the greater society, and it's the greater society's problems that were reflected in the jury.
01:01:13.199 --> 01:01:20.079
But there is something to be said that like juries, as Catherine was suggesting, really work less well.
01:01:20.239 --> 01:01:31.679
I want to be careful what I say in a society that is not, because I want to be accurate, not because I'm afraid of you know the consequences, but because juries really depend on a degree of homogeneity of views.
01:01:31.840 --> 01:01:32.159
Okay.
01:01:32.400 --> 01:01:38.400
And let me give an example that I thought someday we might talk about on this podcast.
01:01:38.960 --> 01:01:42.800
Um, race and racial compositions on juries.
01:01:42.880 --> 01:01:55.360
Uh, there have been some interesting studies which raise uh and history that raise the question if juries can work in a heterogeneous, um, multiracial society where there is minimal assimilation.
01:01:55.519 --> 01:01:56.800
Okay, let me put it that way.
01:01:56.880 --> 01:01:58.400
Let me give you some examples.
01:01:58.639 --> 01:02:05.920
In the South, during Reconstruction, it was very difficult to get KKK members convicted because white people wouldn't convict them.
01:02:06.079 --> 01:02:12.239
Okay, so what ended up happening is they required that that they take an oath that white people basically couldn't take.
01:02:12.320 --> 01:02:14.559
And so finally you got black jurors who were able to convict.
01:02:14.639 --> 01:02:15.119
Okay, interesting.
01:02:15.440 --> 01:02:16.480
That's crazy, by the way.
01:02:16.559 --> 01:02:17.440
I didn't know that story.
01:02:17.679 --> 01:02:17.920
Yeah.
01:02:18.159 --> 01:02:20.239
And then Jim Crow sort of reversed, right?
01:02:20.400 --> 01:02:29.280
Jim Crow, um, you had uh not reversed, Jim Crow was worse because they they um didn't try the Reconstruction Oath thing.
01:02:29.440 --> 01:02:36.880
And so you had white juries who effectively never convicted a white person who had committed a crime like a lynching against a black person.
01:02:37.039 --> 01:02:37.360
Okay.
01:02:37.760 --> 01:02:40.880
So there's a precedent for kind of finagling with the jury system.
01:02:40.960 --> 01:02:41.519
Is that what you're saying?
01:02:42.320 --> 01:02:43.440
Uh yes.
01:02:43.679 --> 01:02:48.719
Uh taking oaths that you hadn't ever tried to suppress civil rights.
01:02:48.960 --> 01:02:52.480
And that turns out that the white people wouldn't do it because they were all clansmen.
01:02:52.639 --> 01:02:54.719
So um fascinating.
01:02:54.800 --> 01:03:01.599
Uh, but like another example, which this is super interesting, and I found this, and it's true, the study exists, and it was buried.
01:03:01.760 --> 01:03:04.000
It was done by the University of College London.
01:03:04.239 --> 01:03:04.559
Okay.
01:03:05.039 --> 01:03:15.840
The study, it's it sounds like I don't, I don't know their motives, but it sounds like they went to out to prove that white jurors were were racially discriminating against uh defendants of color.
01:03:16.000 --> 01:03:17.519
And what they found was astounding.
01:03:17.679 --> 01:03:36.159
It turned out that that in fact white jurors were more lenient to defendants of color than they were to white defendants, and that um jurors of color were insanely disproportionately likely to convict a white defendant and to acquit a juror of color.
01:03:36.320 --> 01:03:37.599
Basically, this ethnicity.
01:03:37.679 --> 01:03:38.639
A defendant of color.
01:03:38.960 --> 01:03:40.400
Uh defendant of color, correct.
01:03:40.559 --> 01:03:46.880
And so it turns out what they proved was actually that the white jurors were not the ones discriminating, but it was the jurors of color who were discriminating.
01:03:47.039 --> 01:03:50.480
This was buried, but I found the study and it the data is there.
01:03:50.559 --> 01:03:51.360
I mean, it's crazy.
01:03:51.519 --> 01:03:54.719
So look, the jury survived all of these systems.
01:03:54.880 --> 01:03:58.880
The jury survived Jim Crow, the jury survived the Reconstruction period.
01:03:59.119 --> 01:04:02.880
I think what I'm suggesting is the jury is a reflection of the community.
01:04:03.039 --> 01:04:12.079
And if the community has certain problems, like ethnic tribalism, because of you know a degree of immigration without the requisite assimilation, then maybe the jury can't work.
01:04:12.239 --> 01:04:20.239
If the jury, you know, if we have these sicknesses in our body politics about compassion and this feminization, I guess I'm trying to move on to that sort of topic.
01:04:20.400 --> 01:04:22.000
What again, Josh, what did you call it?
01:04:22.159 --> 01:04:24.639
More if I can't remember what it's called, you need a better name for it.
01:04:24.800 --> 01:04:26.000
Weaponized moralization.
01:04:26.400 --> 01:04:27.679
Story of my life.
01:04:27.920 --> 01:04:29.360
Weaponized moralism.
01:04:29.760 --> 01:04:30.719
Weaponized moralism.
01:04:31.039 --> 01:04:31.519
I like it.
01:04:31.599 --> 01:04:32.239
I like it.
01:04:32.480 --> 01:04:34.000
Then it's not the jury problem.
01:04:34.079 --> 01:04:36.559
It's the jury's a microcosm of these other problems.
01:04:36.719 --> 01:04:39.679
But those other problems make it difficult for the juries to function, right?
01:04:39.760 --> 01:04:42.800
So I think now we are really getting there.
01:04:42.880 --> 01:04:52.960
And and we are coalescing, and it's it's um and and that's what I mean by not misfiring, but really seeing the the target as what it is and clarifying what that is.
01:04:53.119 --> 01:05:12.400
You know, if you have a culture where white Southerners hammer black defendants and won't convict KKK members, or where women hammer men and forgive women, or where blacks hammer whites and forgive blacks, or vice versa, like all basic principles of justice are lost, that's the real problem, right?
01:05:12.559 --> 01:05:16.239
And it won't be fixed by transferring power to elites because guess what?
01:05:16.719 --> 01:05:19.679
Elites are almost always worse, right?
01:05:20.000 --> 01:05:23.280
Elites are almost always worse about these identity politics issues.
01:05:23.360 --> 01:05:27.679
You gotta deal with that sickness in the culture, and the sickness has a name.
01:05:27.920 --> 01:05:30.159
The name is identity politics.
01:05:30.400 --> 01:05:36.960
Being on the side of your group, right or wrong, is the core consequence of identity politics, right?
01:05:37.199 --> 01:05:40.800
So um I be let me tell a little story about this.
01:05:41.199 --> 01:05:45.119
I grew up in the northern part of Alaska, uh, Fairbanks, Alaska.
01:05:45.199 --> 01:06:00.800
And Fairbanks, Alaska um has a funny kind of politics where there are fewer black white tensions than in a lot of America, but there are greater ethnic tensions between Native Alaskans, that is, Eskimos and Athabascans, and sort of Everybody else.
01:06:00.880 --> 01:06:02.239
And those tensions are quite severe.
01:06:02.320 --> 01:06:15.440
And I remember when I was a teenager, there was this horrible case where a young boy was cut to pieces and uh and and and murdered.
01:06:15.679 --> 01:06:22.880
And uh a group of Native boys were accused of the crime, sort of a gang kind of crime or a mob kind of crime.
01:06:23.199 --> 01:06:38.800
And um it became intensely controversial, and everybody was lining up on the side of their tribe and against the other tribe, and the natives variously said it was justified or he didn't do it because and those are logically inconsistent, but who cares, right?
01:06:38.880 --> 01:06:40.400
We're on his side, we're on his side.
01:06:40.480 --> 01:06:43.039
So he didn't do it and it's justified at the same time.
01:06:43.199 --> 01:06:45.920
And all the whites were on the other side and we're like, how can the natives say that?
01:06:46.000 --> 01:06:48.719
And you had, guess when else, when else we saw that?
01:06:49.039 --> 01:06:51.360
The OJ Simpson case, right?
01:06:51.840 --> 01:07:08.960
When there was this, you know, among black America, there was this uh sympathy for him and a lot of support for him, and that manifested in saying he didn't do it, but it also manifested in saying, well, she was a white woman anyway, and it also manifested in about half a dozen other ways.
01:07:09.039 --> 01:07:12.719
And then the white community was outraged at the black and the black, at the white, right?
01:07:13.039 --> 01:07:20.320
So, like when you have tribal politics, when you have identity politics, yeah, your country is really messed up.
01:07:20.480 --> 01:07:23.840
And that's why the enemy of all is tribal politics.
01:07:24.000 --> 01:07:25.920
The enemy of all is identity politics.
01:07:26.079 --> 01:07:30.400
We should hate that, we should fight it, we should do everything we can to overcome it.
01:07:30.719 --> 01:07:35.679
Um, but we shouldn't think the problem is fundamentally the jury or the insanity defense.
01:07:35.760 --> 01:07:41.760
It's this tribal politics that, you know, break women from men and black from white and native from everyone else.
01:07:42.079 --> 01:07:56.559
And honestly, the I think this was the beginning of me becoming a member of the new right, this anti-identity politics guy, because I saw as a teenager how vicious it is between the native community and the non-native community in Alaska.
01:07:56.639 --> 01:08:01.119
And it was like, it was like a little preview of what was to come in all of America.
01:08:01.280 --> 01:08:09.360
Like, I'm like, imagine some Russian kid who gets like beaten up by a gang of Marxists in 1900.
01:08:09.440 --> 01:08:13.760
And like the Soviet, the Russian revolution with Lenin isn't happening until 1917.
01:08:13.840 --> 01:08:20.000
But but from 1900 on, he's like, the problem is the the Marxists, the Marxists are coming, the Marxists are coming.
01:08:20.159 --> 01:08:23.920
And everybody's like, no, the Marxists are just some fringe movement.
01:08:24.000 --> 01:08:28.800
It's not the Marxists, it's the, you know, it the problem is Germany or something.
01:08:28.960 --> 01:08:31.199
And it problem is the Marxists.
01:08:31.279 --> 01:08:35.359
So I just got an early preview of that because of my peculiar upbringing.
01:08:35.520 --> 01:08:36.720
So let's let's wrap this up.
01:08:36.800 --> 01:08:40.720
We're running out of time, and we had a few other clips we wanted to show, but let's just sort of describe them.
01:08:40.880 --> 01:08:43.920
Let me describe them and get your final thoughts uh and then we'll wrap it up.
01:08:44.000 --> 01:08:50.560
You know, there's this juror, uh Paula Devlin, I can't remember exactly her name, who's like doing this media tour.
01:08:50.640 --> 01:08:53.760
And, you know, she kind of reflects the problems that were on the jury, right?
01:08:53.840 --> 01:09:02.000
She basically says, like, oh, the holdout just couldn't get over the fact that she viciously killed her children, as if he should get over the fact that she viciously killed her children.
01:09:02.079 --> 01:09:03.439
And then there was another one, Catherine.
01:09:03.520 --> 01:09:04.319
What did she say?
01:09:04.399 --> 01:09:10.640
She or it was a different juror who said something about um uh this will ensure that women can get the help that they need.
01:09:11.439 --> 01:09:19.920
Yeah, she said that they knew that this was a big moment for women, basically, when they were deliberating and that what they decided could make a change for women.
01:09:20.000 --> 01:09:22.159
And that, yeah, they just wanted Lindsay to get the help she needs.
01:09:22.399 --> 01:09:31.279
Yeah, so Catherine, so if you and then poor Lindsay, never mentioning Cora and Dawson and the kids who are dead, never even, you know, the compassion.
01:09:31.520 --> 01:09:37.760
What a what what kind of compassion is it that extends to her but is equally hardening your heart to them?
01:09:37.920 --> 01:09:42.399
And and so, you know, that that's that's what identity politics does.
01:09:42.479 --> 01:09:44.800
That's the evil of identity politics.
01:09:45.039 --> 01:09:47.680
I mean, so this I I've watched those clips.
01:09:47.840 --> 01:09:57.199
The subtext of those clips are we are a group of women who understand and sympathized with this woman's pain, and by extension, all women's pain.
01:09:57.359 --> 01:09:58.720
And so we wanted to quit.
01:09:58.880 --> 01:10:06.800
And they also talk about the holdout, who is male, and they say this bad, arrogant man lacked compassion for what poor Lindsay was going through.
01:10:06.880 --> 01:10:14.000
And we did our best to shame him into agreeing with us, but he just wouldn't do it, and what an awful person.
01:10:14.800 --> 01:10:18.960
In other words, if you can't get over a woman killing her kids, you're a sexist.
01:10:19.199 --> 01:10:49.039
If you don't buy that she's insane, or don't understand that we've already, we've all agreed to treat her as insane for the sake of all women, you're a sexist, which includes no indications of sympathy for the three dead children, just the mother, not even a mention of them in any of the clips, except the one Elon referred to, where she where one of the jurors actually said, the man was so arrogant, he was such a bad human being, he lacked compassion because he just couldn't get over the vicious killing of the kids.
01:10:49.119 --> 01:10:51.279
And she even said, vicious killing of the kids.
01:10:51.439 --> 01:10:52.640
Why couldn't he get over that?
01:10:52.800 --> 01:10:55.119
What a bad human being that he couldn't get over that.
01:10:55.279 --> 01:11:00.960
So here's my point: I believe in compassion, I believe in biblical compassion.
01:11:01.600 --> 01:11:06.159
This is fake compassion because it's really just self-dealing.
01:11:06.560 --> 01:11:11.119
These are a group of people who sympathize with the mother because she's like them.
01:11:11.279 --> 01:11:14.159
They get stressed, they get anxious, they have a hard time.
01:11:14.319 --> 01:11:18.319
Like they sympathize with her because they see themselves in her and her in them.
01:11:18.479 --> 01:11:27.119
It's like me saying I'm a hero of compassion because I sympathize with other Jewish conservative law professors, like all three of us or something like that, right?
01:11:27.359 --> 01:11:33.039
Um uh newsflash, that's not that's not compassion, that's self-interest.
01:11:33.199 --> 01:11:39.920
And it's also fake compassion because it involves hardening the heart at least as much as softening it, right?
01:11:40.159 --> 01:11:44.000
So soften your hearts to women, harden your hearts to children.
01:11:44.239 --> 01:11:47.680
Soften your heart to women, harden your heart to men.
01:11:48.159 --> 01:11:54.159
Uh soften your heart to criminal offenders, harden your heart to crime victims.
01:11:54.399 --> 01:11:58.000
Sympathize with Palestinians, hardened to Jews.
01:11:58.159 --> 01:12:01.760
Sympathize with black people, hardened to Asian and white people.
01:12:01.920 --> 01:12:02.159
Right?
01:12:02.239 --> 01:12:10.239
If you look at so much woke compassion, so-called compassion, there's this there's this darkness running through it.
01:12:10.640 --> 01:12:13.760
Because it's actually not love for all human humanity, right?
01:12:13.920 --> 01:12:17.680
It's love for some humans at the expense of others.
01:12:17.840 --> 01:12:28.880
There's always, always some hardening, some hatred, some indifference to another group of people who are also being harmed.
01:12:29.119 --> 01:12:31.760
And this is one more thing about this.
01:12:31.920 --> 01:12:38.720
What they describe in the jury room sounds like a kind of bullying that is all too familiar in the woke era.
01:12:38.800 --> 01:12:39.920
And we need a name for it.
01:12:40.000 --> 01:12:43.199
And that's why I came up with this name, which apparently you guys can't remember.
01:12:43.439 --> 01:12:44.800
Weaponized moralism.
01:12:44.960 --> 01:12:53.840
Weaponized moralism is when a group of people get together to say, you're a bad person because you disagree with what we caring people think.
01:12:54.000 --> 01:13:02.079
And because you're a bad person for disagreeing with what caring people think, we're gonna punish you socially and if we can professionally.
01:13:02.319 --> 01:13:03.920
We're gonna ostracize you.
01:13:04.079 --> 01:13:05.359
We're gonna see if we can get you fired.
01:13:05.439 --> 01:13:06.239
And that's justified.
01:13:06.319 --> 01:13:10.880
That makes us good people because your views show you are uncaring.
01:13:11.279 --> 01:13:15.600
So you're actually aiming at harm to show that you're caring.
01:13:15.680 --> 01:13:18.640
And it's imposing social costs for political disagreement.
01:13:18.720 --> 01:13:22.399
And among many other problems, that is despotic.
01:13:22.560 --> 01:13:29.760
And it creates a society in which no matter what the formal law says, we are all profoundly unfree.
01:13:30.000 --> 01:13:32.960
And I think we feel that lack of freedom every day.
01:13:33.119 --> 01:13:34.079
So is that a problem?
01:13:34.239 --> 01:13:35.359
It's a huge problem.
01:13:35.520 --> 01:13:37.199
Is identity politics a problem?
01:13:37.359 --> 01:13:39.520
It is the problem of our time.
01:13:39.760 --> 01:13:43.680
But none of that is about juries and none of that is about the insanity defense.
01:13:43.760 --> 01:13:46.800
It is about gender politics, it's about weaponized moralism.
01:13:47.119 --> 01:13:49.119
Catherine, last word goes to you.
01:13:49.920 --> 01:14:04.079
Feminism in particular, I think that maybe I'm the one on this podcast who can say what, of course, everyone's thinking, which is that women have a particular issue here in this gender politics that you're correctly identifying, Josh.
01:14:04.239 --> 01:14:12.800
And I think feminism has sold women of America this idea that they should have no consequences to literally any actions.
01:14:13.039 --> 01:14:16.159
Obviously, this is most commonly seen when it comes to sex.
01:14:16.319 --> 01:14:26.239
The modern feminist movement says abortion on demand and up until birth, or even if you live here in Minnesota after birth, should be legal and allowed and even celebrated.
01:14:26.399 --> 01:14:34.960
The birth control pill is pushed on young, young girls so early so that they know there are no consequences for any of their actions revolving around sex.
01:14:35.119 --> 01:14:43.920
But even if you think about other movements that have existed within feminism lately, like the body positivity movement, there's no consequence for being overweight.
01:14:44.239 --> 01:14:46.880
Well, of course there is, but the feminists don't care.
01:14:47.039 --> 01:14:49.359
They just say there should be no consequences.
01:14:49.520 --> 01:15:03.279
And so I think we have a whole, a whole number of women in America that have bought into this idea that no matter what they do, because they are a woman, because they are female, and because they're feminists, they should not face consequences for their actions.
01:15:03.439 --> 01:15:05.039
And that is a huge problem.
01:15:05.359 --> 01:15:08.720
That is a super interesting thread connecting all those ideas.
01:15:08.960 --> 01:15:10.319
I love this discussion.
01:15:10.479 --> 01:15:17.199
I think, although, as we started off saying in this episode, this led to really heated debates among the three of us in the lead up to this episode.
01:15:17.359 --> 01:15:20.479
I think we've coalesced around some very interesting uh conclusions.
01:15:20.560 --> 01:15:22.800
And I think we agree a lot more now than that we disagree.
01:15:22.880 --> 01:15:30.479
And we do think that we've, or at least we hope that we've diagnosed the problem uh in a in a helpful uh way that others may not have to our audience.
01:15:30.560 --> 01:15:31.199
We hope you like this.
01:15:31.279 --> 01:15:33.439
Don't forget to hit that like and subscribe button.
01:15:33.600 --> 01:15:35.359
Thank you as always for the see this.