Hinckley insanity defence

I mentioned the other week that San Francisco is about to close down its cable cars for 20 months in order to restore the propulsion system and rehabilitate the whole thing, during which time the tourist trade expects to lose between 30 and 40 million dollars.

This thought has greatly depressed the local Chamber of Commerce whose professional posture, after all, is not to look depressed. Well, they had cause to perk up this week when, on the streets of San Francisco, there were over 10,000 walking variations on a type of American, male mostly, that you see in the movies only in the form of a stereotype. They wear business suits with waistcoats and button-down shirts, they sit behind large desks, they press a button and say to a chic secretary, 'You may send Mr So and So in now!' And when the caller, the client, appears, usually an unsmiling person with a fretful look, they say, 'What seems to be your problem?' They are, they were, in the movies, always recognisable as lawyers.

Well, this week the American Bar Association has been holding its annual convention, its 104th, in San Francisco and nearly 11,000 lawyers of every shape and size and every sort of obscurity and distinction have checked in. I don't suppose that the ordinary citizen thinks of a national conference of lawyers as an entertainment as absorbing as, say, the San Francisco Opera which next week will have Pavarotti and Leontyne Price. But, if Charles Dickens were alive today and, as G. K. Chesterton would have said, 'I have no doubt that he is', he would turn the occasion into a feast of reporting or perhaps a fascinating combination of 'Bleak House' and 'The Pickwick Papers'.

I don't know how it is with Bar Association meetings in London or Bonn or Melbourne but in this country it's pretty certain that the agenda will span the gamut of the political and social issues of the day and the day-to-day problems of you and me that have galloped or crept into our lives in the past year. I've mentioned before that nearly two-thirds of the men who wrote the Constitution of the United States nearly 200 years ago were lawyers and every political chamber in the United States from the United States Senate to the legislative bodies of the 50 states swarms with lawyers sitting as legislators, busy either writing new laws or finding ways of bending or circumventing the old laws.

But what keeps these 11,000 legal beavers on their toes is the larger, historical fact that once this new nation declared its independence of Britain, it proclaimed its aim to be 'life, liberty and the pursuit of happiness' and that, consequently, Americans, since the beginning, have always assumed that the good life and the bad life and everything in between – health, religion, entertainment, sport as well as property and justice – can be decided by the law. Indeed, must be decided in the law since the written constitution is there to protect the liberty of the citizen and, in the last resort, the Americans who decide what liberty is and what are infringements of it are nine lawyers at the top of the political heap – the nine justices of the United States Supreme Court.

So I considered it a slice of luck, if not a piece of cake, that I should have happened to come to San Francisco for a holiday and find that most of the burning issues the papers and the telly burn up the cables about are on the agenda of this huge conference. So more, perhaps, than in some other countries, you could get a very sharp picture of what is on the minds of the American people by attending to the goings-on of these 11,000 lawyers.

I thought back to the programmes of the Bar Association meetings of long ago, around the turn of the century anyway. They were just as concerned then, I imagine, as now with things like child labour, prison procedures, divorce, but society seemed more stable then. The institutions of the long, prosperous nineteenth century seemed settled and what came out of those meetings, at least the most distinguished papers that have lasted, are grave or brilliant discussions of equity, torts, eminent domain, corporation law and so on.

Well, just take a look at the San Francisco programme and you can see at once that these lawyers are living in a society changing in ways beyond the capacity of old laws and lawyers to cope. Before the first general meeting, there was a series of seminars. Three of the best attended reflected at once the surprising fact that even American lawyers are feeling the pinch of the recession, one reason being that some people cannot afford any longer to take their troubles to lawyers and resort instead to quack philosophers, gurus and consciousness-raising sessions. One popular seminar has the title of, 'Survival Tactics for Lawyers in the 1980s' and this seminar would also take in a contradictory risk that lawyers are increasingly subject to, the fact that some Americans will run to a lawyer with practically any grievance.

Last winter, a man in Chicago sued the city's famous football team for playing so badly that he claimed the cost of his tickets and a large sum for mental torment on the grounds of fraud and non-fulfilment of contract. Now this sound like an appealing case but it could run into judgments, overturned judgments, appeals that would absorb a ruinous amount of the lawyer's time.

Another ominous seminar was called 'Bankruptcy in the 1980s – our biggest growth industry'. Ten years ago, there were between 40 and 50 bankruptcies a week, mostly of small businesses. Nowadays there are over 450 a week of businesses both small and large and, when you think of that bank in Oklahoma or the decease of Braniff Airways, of giants. Then again, the practice of criminal law has exposed lawyers today to something not unlike the doctors' hazard of being sued for malpractice, a hazard that has increased ten-fold in the past 20 years. So, also, there was a seminar called 'How to practice criminal law and still send your kids to college'.

Well, once the convention went into general session, it brought up the big issues that are dividing Americans of many persuasions – the proposal of President Reagan to sponsor a constitutional amendment allowing prayer in the public schools, a fussy issue no doubt in any country which has a state church, but the very first item of the Bill of Rights declared, 'Congress shall make no law respecting an establishment of religion' and the opponents of this proposal see it either as the opening wedge for the entry of a state religion or as an attempt to embroil the country in the unforeseeable consequences of what one lawyer called 'forced piety'.

A problem that could only have come up today is an ethical problem that arises from the new custom of having barren wives allow a chosen woman or surrogate mother to be artificially inseminated by her husband. The issue, in every sense, can become a frightful legal headache. A Boston lawyer warned the conference that lawyers might become what he called 'legal pimps' and another described the practice as 'a dubious one of womb renting for a period of nine months'.

A related problem is one that is rending religious and non-religious groups and the problem which eventually is going to have to be decided by the Supreme Court. The question is the mighty and immensely controversial one of when does life begin? When, therefore, does an abortion amount to infanticide? It is at the root of the raging debate in this country over whether or not abortion should be forbidden as a criminal act.

Theoretically, the main business of the Bar Association's meeting is to draft a new code of legal ethics to replace the existing one which was adopted in 1969 but if there's one American event more than another that has overshadowed the general debate on ethics, it is the attempted assassination of the president 16 months ago, or rather the recent verdict of the jury which declared John Hinckley Junior to be not guilty by reason of insanity. This verdict sent Hinckley to a mental hospital for treatment where, at intervals of six months, he can ask for another examination and if declared sane, can apply for release.

Well, the verdict, it's safe to say, outraged many more people that it satisfied. Much bitter wit has been expended on the verdict, most of it at the expense of psychiatrists because the government, the prosecution, had its psychiatrists trying to prove that Hinckley was not insane, therefore knew what he was doing and the defence had its psychiatrists there to conclude that he was insane. They won, but the court was palpably the stage on which experts on psychiatry radically disagreed in a welter of technical jargon that left the reader of their testimony, and I should think the jury, too, in a daze.

What came out of it was the obvious conclusion that if you're anxious to show that a friend or whoever is not insane and you've been to a psychiatrist who says he is, then you should go to another psychiatrist who'll say he isn't.

The dean of a California law school said here the other day, 'Using psychiatrists gives the right result slightly less often than flipping a coin. A jury responds to a visceral feeling and decides that guy is so crazy, he shouldn't be turned loose.'

The Attorney General of the United States is proposing that the insanity defence should be abandoned altogether but there is a body of legal opinion that sees much mischief and injustice afoot if that should ever be done. Society would then refuse to believe that anyone, however sick, is incapable of knowing what he's doing.

However this debate comes out, there will remain the fact – the fact in law – that psychiatry, even at its best, is a form of informed speculation and that, as one lawyer put it, 'There is no expert standard on which to make moral judgements and determinations of guilt are moral judgements.'

So they are and they belong always to the jury, to the collective experience of life, 'Of', to quote G. K. Chesterton again, '12 of the ordinary people looking on.'

This transcript was typed from a recording of the original BBC broadcast (© BBC) and not copied from an original script. Because of the risk of mishearing, the BBC cannot vouch for its complete accuracy.

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