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Thursday, December 8, 2011

Arbitrary Application of the Death Penalty---Evidence of Pre-Murder Mental Health Treatment Avoids the Death Penalty but Not Evidence of Untreated Pre-Murder Mental Health Problems---Compare State vs. Stephen Morgan with State vs. Joshua Komisarjevsky

My hunch is this--where there is credible evidence that a cold-blooded murderer received psychiatric treatment for serious mental health problems before the crime, prosecutors do not seek the death penalty.  But a defendant who had an equally long history of pre-murder serious mental illness may well face the ultimate blood-penalty if he came from a family which did not believe in modern mental health treatment and never sought such help for the defendant.

This prosecutorial dynamic is being played out in two of the murder cases currently on trial in Connecticut.  Both cases involve brutal, senseless, cold-blooded murders of wonderful young women, but only one of the defendants is under serious threat of execution.  Both men are in their early 30's, but the one who does not face capital punishment came from a well-off, modern-thinking family which early-on in their son's life realized he had mental health challenges and sought appropriate psychiatric treatment.  The other man had the misfortune to have been adopted by evangelical Christian parents who were very loving of him in their own way, but their understanding of their Christian faith was incompatible with the modern faith in the efficacy of modern psychiatry; hence, his serious mental health challenges went untreated by modern psychiatry.

Stephen Morgan is on trial for the murder of Johanna Justin-Jinich, a Wesleyan University junior, in the college bookstore.  Morgan's lawyer has now conceded in open court that State's Attorney Tim Liston has proven that Morgan murdered Johanna in cold blood with a 9mm automatic handgun.  The question now is whether the defense can prove that Morgan was legally insane when he fired seven bullets into Johanna.  If so, Morgan will be treated at Connecticut Valley Mental Hospital and could be released from the hospital once his mental health has been restored.  If not, Morgan will go to state's prison for a very long time, with only hit-or-miss psychiatric treatment.

Joshua Komisarjevsky is on trial for his life.  The jury found him guilty of murder, rape, arson, and kidnapping Dr. William Petit's wife and two daughters.  The question the jury is now deliberating is whether the evidence of Komisarjevsky's severe developmental and psychological problems, for which his adoptive parents never sought psychiatric treatment, amount to mitigating factors which offset the aggravated nature of the crime itself.  The legal algorithm is extremely complex (and well-explained in The Courant's coverage of the case).  Essentially, if the jury finds there were mitigating factors in Komisarjevsky's life, or in his role in the crime itself, and the aggravated nature of the crime does not outweigh the mitigating factors, then the jury must sentence him to life in prison.  But if they find the aggravating factors outweigh any mitigating factors, they must return a verdict of death by lethal injection.

In Morgan's case, the uncontroverted evidence so far elicited by the defense shows that Morgan was a troubled child, whose parents took reasonable measures of getting him appropriate professional help. Mr. and Mrs. Morgan had their young Stephen evaluated by psychiatrists as early as age 6, took him out of the public school and put him in a private school in Marblehead, Massachusetts.  Stephen did well in the structured environment of the Navy, where he served honorably for four years.  He went to the University of Colorado and in 2007 and 2008, the year before he shot Johanna to death, he referred himself to the psychiatric service at the school.  The doctors there diagnosed Morgan as schizophrenic.  This long history was well-documented in written reports, so there was no hint that it was a fiction conjured up by lawyers, or the defendant himself, to save his neck from the gallows.  (I use the archaic noun "gallows" because that is what the bloggers on the Hartford Courant's website articles would like to happen to both Morgan and Komisarjevsky.  These crimes stir the blood-lust of many people.  Their bloodthirsty cries for vengeance call to mind the "furies" which the ancient Greeks recognized needed to be transformed into the modern rational legal system for responding to cold-blooded murder.)

A forensic psychologist, Dr. Madelon Baranoski, did extensive psychological testing on Morgan in the months following the killing.  She is affiliated with the Yale School of Medicine and its Law and Psychiatry program.  Dr. Baranoski testified yesterday that Morgan had an IQ of 86 and is a paranoid schizophrenic.  He suffers from anxiety disorder.  His thinking is disordered and scattered.  As he has throughout the trial, Stephen Morgan rocks in his chair, at the defense table, during this testimony.  He seems to be paying very close attention to every word which emanates from the animated mouth of Dr. Baranoski.

Down in New Haven, Joshua Komisarjevsky has been diagnosed by psychiatrists and psychologists with mood disorder, depression, an inability to regulate his feelings when they become intense, and an inability to feel anything at times, leading him to cut himself to feel something.  But all of these evaluations were performed after he murdered the Petit women.  His evangelical Christian adoptive parents never got him any psychological or psychiatric help, despite clear signs he needed it.  Instead, they hoped that keeping Joshua in Christian church groups and putting him through exoricism ceremonies to try to force the Devil from his soul was a better way to deal with his mental and emotional problems than modern psychiatric treatment and medication.

The State's Attorney in Morgan's case decided not to seek the death penalty.  Now that the evidence about Morgan's pre-killing and  long-standing psychological problems, and pre-killing diagnosis of paranoid schizophrenia, has been revealed, it's easy to understand why State's Attorney Tim Liston decided not to seek the death penalty.

On the other hand, Michael Dearington, the New Haven Judicial District's State's Attorney, IS seeking the death penalty for Joshua Komisarjevsky.  And Dr. Petit seems desperate to see that Joshua is executed by the State.  While Komisarjevsky's crimes are more heinous than Morgan's, the effect on the victims' families is the same.  Three loved ones are dead in the case of Komisarjevsky and one is dead in the case of Morgan.

Why did Tim Liston not seek the death penalty for Stephen Morgan but Michael Dearington did seek death for Joshua Komisarjevsky?

I suspect it's largely because Stephen Morgan's family wisely sought psychiatric treatment for him from an early age, culiminating in the diagnosis of paranoid schizophrenia just a year or so before he killed Johanna.

But Joshua Komisarjevsky got no such treatment.  His psychiatric demons were never treated with the tools of modern psychiatry.
Instead, his parents chose the "Christian" option of excorcism and church fellowship.  Joshua Komisarjevsky was a lost soul, in a troubled family.  His adoptive parents were loving, kind, Christians, but they had no faith in the value of modern psychiatry.

Faced with Morgan's extensive pre-killing psychological treament, and his pre-killing diagnosis of schizophrenia, Tim Liston, the Middlesex County State's Attorney, recognized that Morgan had a documented history of severe mental illness, such that the death penalty would be an inappropriate outcome to the case.

On the other hand, Komasarjevsky did not have the benefit of such medical treament throughout his formative years.  Dr. Petit is understandably furious at what Komisarjevsky did to destroy the doctor's family.  State's Attorney Dearington makes his own decisions about whether to seek the death penalty, but the feelings of the affected famkly are also considered.  And with no evidence of pre-crime serious psychological disturbance, it was probably impossible to get Dr. Petit to agree to let the defendant live, rather than die, by not seeking the death penalty.

The murder of Johanna Justin-Jinich was clearly pre-meditated.  Johanna was jewish.  Stephen Morgan expressed anti-semitic hatred in a journal found in his car after the killing.  Morgan shot her at close range.  He had been stalking her for months and was angry at her for, in his mind, rejecting a relationship with him.  He disguised himself with a long wig.  He escaped the police dragnet in and around the bookstore.  Absent his long history of pre-murder documented psychiatric treatment, the State's Attorney probably would have sought the death penalty for him.

Joshua Komisarjevsky had no history of violent crime.  He had no animus towards Dr. Petit's family.  The crimes he committed were not directed at people he wanted to hurt for a long time.  The murders were impulsive, "crazy," and not pre-meditated in the way Stephen Morgan's murder of Johanna was pre-meditated over a very long time.

But Joshua Komisarjevsky had the misfortune, unlike Stephen Morgan, of being born to biological parents who didn't want him and raised by adoptive parents who were religious "nuts," at least by modern secular standards.  Those accidents of fate, over which no one has any control, mean that Komisarjevsky may be killed by the State but Morgan will at worst be imprisoned.  That seems arbitrary to me and not the basis for the state to consider killing one of the men but not the other.

There are lots of problems with the death penalty,  but some aspects which make it seem tailored to certain criminal offenses.  I suspect American society will be struggling with the pros and cons of the gallows for some time to come.


  1. what an amazing time we live in to have the 'opportunity' to compare and contrast the penalty phases of two of the most heinous crimes to have been committed in the state in a long time, if ever before.

    thanks, Bob, for the well written analysis. Sounds as if you really love certain aspects of the law, if not all aspects of practicing it1

  2. Dear Anonymous (December 8, 2011 posting),
    Thanks for your Comment. You subtly, and correctly I believe, put "opportunity" in quotation marks. I agree it's fascinating to be able to contemplate in real time the legal aftermath of horrific crimes but obviously tragic that they ever happened at all. I wonder if Fyodor Dostoyevsky lived at a time of any similar murder trials in Russia which inspired him to write "Crime and Punishment." Of the two murderers, I suspect Joshua Komisarjevsky, who committed the somewhat more heinous crime than Stephen Morgan, could be the basis for a Raskolnikov character in a novel about the Chesire Home Invasion Killings. Komisarjevsky's paternal grandfather was born in Russia and was a famous theater director; his paternal grandmother was a dancer from California. More importantly, from what I've read in the press about him, Joshua Komisarjevsky is a quite intelligent young man. For example, just the other day, the Courant reported that while he awaits the jury's verdict on his fate, life or death by lethal injection, he's reading a book about the fall of the Roman Empire, and drawing.
    It would take the skill of a novelist to write a book of fiction, imagining the shift in the mind of Komisarjevsky from committing a burglary to the mens rea (conscious mental state) in which he sexually assaulted a girl just two years older than his own daughter, whom he had tucked in bed earlier that evening, and aided and abetted Stephen Hayes, the older co-defendat, in burning down the Petit suburban home and thereby killing Dr. Petit's wife and two daughters.
    I hope someday to be able to meet with Joshua Komisarjevsk in prison, to take the measure of the man. Jerry Donovan, his lead defense attorney, is a friend of mine and perhaps one day he can help open that door for me.
    Anonymous, you correctly discern I still love the law. But after making payroll at my law firm for 35 years, which became a relentless and soul-eroding necessity, I had to leave it all behind. Fortunately, I can continue to indulge my affection for the trial process by attending and writing about the most high-profile trials, the ones with the richest psychological significance.
    Thanks, also, for taking valuable time from your probably busy day to read "Bobs blog" and file your Comment.

    All best wishes,

    Bob Dutcher