Posing as “Amy”, creepy Michael John Anderson lured Katherine Olson to his house with a phony Craig’s list ad for a babysitter, then shot and killed her. The reason, Anderson confessed later, was that he wanted to know what it felt like to kill. At oral argument, Anderson’s counsel insisted to a befuddled Court that premeditation can only take place after someone has made up his mind to commit murder. Meanwhile, the state’s attorney touted the liberality of the M’Naghton standard. Everything about this case has seemed off-kilter and wrong somehow, like a poorly dubbed late night diva. It is a hard case if ever there was one. The good news, I suppose, is that the decision in State v. Anderson breaks no new ground; it may even suggest a way forward on the vexing distinction between intentional and premeditated murder. But it adds to the accretion of unhelpful case law that covers Minnesota’s mental illness defense.
There are two types of people in the world
After he was charged for Olson’s murder, Anderson was diagnosed with Asperger’s disorder. The DSM describes Asperger’s as a form of autism that is characterized by “severe and sustained impairment in social interaction . . . and the development of restricted, repetitive patterns of behavior, interests and activities.” Anderson elected not to assert a mental illness defense — presumably, he was unable to muster a favorable 20.02 opinion — but nonetheless complained on appeal that he should have been permitted at trial to present psychiatric testimony about his Asperger’s disorder.
Anderson made three arguments. First, he contended that the jury needed information about his Asperger’s to make sense of his “physical . . . condition,” including his odd mannerisms, lack of coordination [oops! the gun went off], and inability to show remorse. The Court does not dismiss out-of-hand that expert evidence of mental illness might be admissible in some theoretical case to show one or more of these things, but Anderson’s offer of proof came up short. Anderson next presented a diminished capacity argument, albeit in disguise. He argued that “he does not have normal brain function, and by excluding psychiatric testimony, the jurors inferred intent and premeditation based on an irrebuttable presumption that his brain was normal.” Minnesota criminal defense lawyers have been hurling themselves against this rock (or one like it) for years now, to no avail. The Court cites the usual suspects — Bouwman, Provost, Brom — in support of its rule barring psychiatric opinion testimony from the guilt phase of a criminal trial. Finally, Anderson argued that the evidence should have come in under one of the so-called “Provost exceptions” to the above rule. I would spend more time talking about the Provost exceptions if only they were ever used. They have never been overruled, but they have been not-applied to the point of extinction. Needless to say, they were not applied to Mr. Anderson.
Though Anderson’s is not a particularly strong mental illness case, the Court’s attitude is telling nonetheless. The Anderson Court quotes Bouwman as follows: “The law recognizes no degree of sanity. Applying socially and morally acceptable standards a line has been drawn — on one side are the legally sane, on the other side are the legally insane.” Our contemporary Court has left off acknowledging what the Bouwman Court felt impelled to add, that categorical legal constructs of sanity have a fundamentally flawed relationship to psychiatric reality. The 1982 Bouwman Court quoted the 1945 D.C. Circuit: “[T]o the psychiatrist mental cases are a series of imperceptible gradations from the mild psychopath to the extreme psychotic, whereas criminal law allows for no gradations.” The Provost Court tried to negotiate the discrepancy between legal construct and psychiatric reality with its exceptions, now dormant. Such subtlety as once existed in the case law is gone.
How many inklings can dance on the head of a pin?
The Court has not, however, left off wrestling with the line between intentional and premeditated murder. CRIMJIG 11.02 says that “premeditation” means that a defendant “considered, planned, prepared for, or determined” to commit the act before he actually did so. The instruction continues: “It is not necessary that premeditation exist for any specific length of time.” Citing Minnesota case law, Anderson asked for a special instruction specifying that some “appreciable time” must pass between the contemplation and commission of the murder. The trial court gave the pattern instruction, and declined to add the language of Anderson’s proposed instruction. During deliberation, the jury send back a note asking whether “considered, planned, prepared for, or determined” all “have to be true to determine premeditation or can one of these items determine it? For example, if the defendant ‘considered’ committing the act is this considered premeditation?” What quantum of forethought converts idea into premeditation?
Justice Dietzen and the majority adjudged the pattern instruction adequate. Joined by Justice Page, Justice Paul Anderson concurred to express his reservations. “The more I have contemplated the wording of CRIMJIG 11.02, the more concerned I have become that even though the instruction may be an accurate statement of the law, it may also be misleading and confusing[.]” The problem, he writes, is the word “any” in “any specific length of time.” It means something, as in: Have you any money? But it can also mean nothing: She did not know any member who was at the event. It is indeterminate. “Any” also gives trouble, argues Justice Anderson, when measured against the case law requirement of “appreciable time.” He concludes with a “strong[ ] recommend[ation]” that the Committee on Criminal Jury Instruction guides of the Minnesota District Judges Association revise this instruction.”