Red Mist and the Irresistible Defense of "Losing It".

Abstract

Let’s say I was asked to assist the defense in the criminal trial. How would I approach it? You’ve got to be kidding, I thought. But everyone is entitled to a defense, so keep an open mind. “Junior” said he didn’t intend for his father to die. He wasn’t himself. There was no mental illness before this (unless you count daddy problems and a soupçon of entitlement), no intoxication, and no mental status changes now. It was a one-off faux pas. There was the narcissistic injury of disinheritance followed by feeling indignant rage, grabbing a dagger, and stabbing the old man. He said he didn’t know what he was doing until the stabbing. Hmm. . . Was he cognitively (M’Naughten) insane, losing a sense of wrongfulness in the moment? No, calling anger a mental disease wouldn’t fly. But he said two other things: he was maddened, and he saw red. Maybe he’s saying he couldn’t help himself. Is that a thing, psychiatrically or legally? As it turns out, loss of self-control is on the books in many jurisdictions, a form of short-lived volitional insanity. It’s in the Model Penal Code (MPC) standard; two bites of the apple (cognitive or volitional). Still, was it a mental disease? Or maybe he can say he was provoked by extreme and unexpected cruelty, not insanity but mitigation. No, a dagger in the heart was not a reasonable response. Maybe there’s another option: extreme emotional distress (EED), a kind of mitigation without a standard provocation. I can’t get “mad” and “seeing red” out of my head, I ruminated as I pondered how to respond to the request for service. Can anger excuse or mitigate homicide? Or is it a square peg searching for a round (loop)hole? Three options swirled in my consciousness: insanity, the heat of passion, and EED. What, if anything, could I say that would not readily be apparent to jurors? I continued to reflect on madness, anger, mental disease, reasonableness, excuses, and mitigating factors. The reverie took me to ancient Rome, British and American law, fiction, tabloid journalism, and feminist legal analysis. Dr. Weiss is Clinical Professor of Psychiatry, Perelman School of Medicine, University of Pennsylvania, Philadelphia, PA. Address correspondence to: Kenneth J. Weiss, MD. E-mail: kenweiss@upenn.edu.