You're Wrong About
Sarah is a journalist obsessed with the past. Every week she reconsiders a person or event that's been miscast in the public imagination.
You're Wrong About
The Insanity Defense with Mackenzie Joy Brennan
What do John Hinckley Jr. and a jazz age tuberculosis patient have in common? Legal correspondent Mackenzie Joy Brennan takes Sarah through some of the strange cases that helped make—and break—the insanity defense in America. Our story includes a woman who carried her (alleged) victims’ bodies around in a suitcase, and the attempted assassination of Ronald Reagan—carried out with the intention of impressing a young Jodie Foster.
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YWA - The Insanity Defense
Sarah: Broadly speaking, if you're an American woman and you're not insane in the 1920s and thirties, then you're not aware of what's going on.
Welcome to You’re Wrong About, I'm Sarah Marshall, and this week we are of course investigating the insanity defense: the law, the myth, the legend with Mackenzie Joy Brennan. Mackenzie was last with us for our episode, Has the Supreme Court Always Been This Terrible?
Mackenzie is a lawyer and legal analyst, and would like to tell us that since we last talked, the Supreme Court has also shown us that it can get even more terrible. So we should also probably have her back on to talk about that too. But in the meantime, this episode really does have so many stories within it. A great depression era woman facing off against the electric chair, Jodie Foster, and of course, Ronald Reagan. Mackenzie is also joining us for an upcoming bonus episode. I can't wait. And if you haven't listened to our bonus episodes, you should check them out sometime.
We have had some really fun stuff lately, including a discussion of Beyond Belief - Fact or Fiction, with Chelsey Weber-Smith, and a conversation about Bigfoot, my favorite cryptid, with our inconvenient mammal correspondent, Lulu Miller.
And that's your introduction. This is a law episode; it’s a history episode. We're so happy to share these stories with you and to keep on learning about the legal world, which tries to make us feel dumb, so we don't notice what people are up to. But with a little bit of vocabulary and with a great guest like Mackenzie, we can learn to understand the world we're in. And let's go do it together.
Welcome to You’re Wrong About, the podcast where we talk about topics that you grew up hearing on Law and Order, my great joy and dream. And with me today is our legal correspondent, our comm law correspondent, I believe actually, Mackenzie Brennan, to talk to us about the insanity defense.
Mackenzie Joy: I'm so excited about this, and I'm really glad to be doing it together because it is a wild ride as the name would suggest. And a lot of angry people at different phases about too many people being insane or not enough people being insane. We’ve got to do something about it.
Sarah: We’ve got to do something about it, and we’ve got to think of the children. I'm also reminded of – and this is me quoting from memory – something I read years ago. But I swear to God that there was a political cartoon around the time of the Leopold and Loeb trial because it was a huge media trial. It was two rich teenagers who had, or close to teenagers, who had apparently decided to commit the perfect murder for fun. Definitely made a big impression on Hitchcock
Mackenzie Joy: And they always fail at it.
Sarah: They always do.
Mackenzie Joy: I feel like the Kohburger thing is the same. They’re like, this time I'm the smartest one, I'm going to get away with it. And time immemorial, they all fail.
Sarah: I guess at the time, the forensic psychiatrist was referred to as an alienist.
Mackenzie Joy: Ok, yeah.
Sarah: And obviously if you have a robust defense, especially with Clarence Darrow involved, you're going to try and get a sympathetic alienist who says, I think that they were trying to mount insanity as one of their defense tactics.
And I think that there was a cartoon at the time that showed people reading about the trial or hearing about it, and that the joke was truly something “that moment when you realize everyone's insane.”
Mackenzie Joy: Oh wow. That's great. I wonder, do you know what year that was?
Sarah: Tumblr is eternal.
Mackenzie Joy: Yeah, seriously.
Sarah: This was in the twenties, like mid-twenties, ‘24. It was like ‘27. It was a jazz age trial
Mackenzie Joy: Because that sets us up nicely.
Sarah: Okay.
Mackenzie Joy: We could start with the case that illustrated this one version of the Insanity Defense, which is the M’Naghten test. So there are stricter and less strict definitions over time and we can look at them as a spectrum.
Sarah: Let me start with a bonehead question.
Mackenzie Joy: Go for it.
Sarah: Okay. So today, right now, right? If you're watching SVU with your grandma…
Mackenzie Joy: Yeah.
Sarah: and they've got someone whose lawyer is using the insanity defense. What is the average American TV viewer's understanding of what that means, and is that approximately what the actual legal definition is?
Mackenzie Joy: Oh boy. I feel like maybe you are better qualified. I don't know. You're pretty legally savvy.
Sarah: Oh gosh.
Mackenzie Joy: I feel like knowing the law messes you up about what the average person thinks because it just rewires your brain in that way of thinking.
Sarah: Right, okay. I think I have two levels of understanding.
Mackenzie Joy: Okay.
Sarah: So I think, and I'm not confident that I'm right, but I think that the actual legal definition…
Mackenzie Joy: Legally insane rather than medically, because of course, complicate it.
Sarah: Yeah, legally insane, as opposed to all the other possible definitions, is that you lack the capacity to tell the difference between right and wrong.
But as I say that, is that true? That might just be what they say on TV, like how you have to wait 48 hours to report a missing person or whatever.
Mackenzie Joy: Which, don't go by those rules. If somebody goes missing, please try to report them because that is not every state.
Sarah: Yeah, there’s our first PSA
Mackenzie Joy: Right.
Sarah: I think that if you watched even less Law and Order than I have, then you might just think that it's some kind of boo-hoo, sob story type defense where you're just like: I'm insane. And the judge is: oh, poor baby.
Mackenzie Joy: Or do you have a diagnosis. Or were you having a crazy… did people see you being insane?
Sarah: Yeah. But I know that also across the board, there's this general American fear of someone getting off on a technicality.
Mackenzie Joy: Yes.
Sarah: And I think that is one of the ways we see that as happening. And I'm very curious about what kind of a distance we must travel between the average SVU viewer and what appears to really be going on, and also why it's going on.
Mackenzie Joy: Yeah, so I think that you're absolutely right, and I know you've brought it up in different contexts on your show, but we're in this era where this specter of evil people getting off on technicalities is looming over all of us, and these people are beyond reform. And so this is a really terrible fear.
And that world gets pretty far away from the whole founding principle of it's better that one or that a hundred guilty men go free than that one innocent be in prison. Those two conceptions are pretty far apart, and yet I think we've landed in the “oh my God, somebody's going to be let off on a technicality” world.
Sarah: Right.
Mackenzie Joy: And in regards to the insanity defense, I think your definition is, I think you're right that's what a lot of people think it is. That's what I was going to say too. And it's pretty close to the truth.
Sarah: The lack of ability to determine the difference between.
Mackenzie Joy: Yeah.
Sarah: Yeah.
Mackenzie Joy: And that's a pretty strict interpretation because if you think of it from really simple terms, anything that demonstrates trying to hide what you've done, in theory, could demonstrate that you understand, at the very least, that society sees this as wrong.
Sarah: Right, and also as a question, because I have no idea what the answer is, but what if I'm like, okay, society recognizes that it will be wrong of me to assassinate this person, but I also understand based on my delusions…
Mackenzie Joy: That I must do it.
Sarah: that they are controlling my brain, and so I have to. Right? That's a difficult area.
Mackenzie Joy: Yeah. And that's exactly what the problem – if you think it's a problem – is with this stricter definition. So, I actually was going use a case from when that was more the law of the land.
Sarah: Yeah.
Mackenzie Joy: And so we started there, but applied it in a kind of loose way. Then we came to a much looser definition. Then, and this is where we'll spend most of our time, John Hinkley Jr. tried to kill President Reagan, got off on an insanity defense…
Sarah: To get Jodi Foster's attention.
Mackenzie Joy: Which, who among us has not tried to? Yeah.
Sarah: Exactly.
Mackenzie Joy: Exactly, but then everybody was very upset that he dared serve his sentence in a mental health facility, which he ended up serving 35 years at an inpatient facility. So it's not like he was frolicking around.
Sarah: And now he posts his acoustic guitar songs on YouTube.
Mackenzie Joy: Look, we'll talk more about him, but this is a guy, he does paintings, and has a rescue cat, and writes his little acoustic songs. That is less harmful than many people that I've met.
Sarah: Right? And probably talked about in your line of work too.
Mackenzie Joy: Yeah, so we'll get to his case though.
Sarah: And of course, I'm always interested in a case where someone is able to access extremely robust legal defense, and then the public sees that happening and is like: oh my God, no, that's too much defense. We need to scale this back.
Mackenzie Joy: Totally. It's another thing that we've talked about in other contexts that oftentimes when somebody has a successful defense. And I do think this can go too far. I just was covering the Diddy trial and he had…
Sarah: OJ Simpson, too much defense. Nobody needs eight lawyers if they're one person, probably.
Mackenzie Joy: Right. You don't need more resources than the government. At that point, it's really excessive.
But Hinkley was not a wealthy man. Oh actually, the first case that we're going to look at is an example of having a lot of legal resources because this gal had her legal fees paid for by William Randolph Hearst.
Sarah: What? Okay, I want to hear about this one.
Mackenzie Joy: Yeah, right? He wanted exclusive rights to her story, so he, in exchange…
Sarah: Now, why don't we have more tabloid media offering to pay for people's legal defense? I'm sure it would be incredibly unethical, but still, but even so…
Mackenzie Joy: Exactly. Hearst blazed a lot of super cool trails that made policy makers say, okay, now we have to put this law into place because the ethics of this are so fu-k’d.
Sarah: See honey, because of me, there's a warning.
Mackenzie Joy: Exactly, like the sign put on the wall that makes you aware that someone has tried this before. So there are a lot of cases that are good early insanity defense ones, but this case, it's from Arizona – like me – and it has everything.
It's got a hot 25 year old woman with tuberculosis, lesbian affairs, and then a fugitive surrendering in a funeral home right before Halloween. This is a super fun case.
Sarah: Wow.
Mackenzie Joy: Except for the victims.
Sarah: And then Hearst.
Mackenzie Joy: And then Hearst.
Sarah: Yeah.
Mackenzie Joy: So this is Winnie Ruth Judd and in 1931…
Sarah: Wow, that is a name.
Mackenzie Joy: I know, right?
Sarah: I want to hear her country single as well.
Mackenzie Joy: I know, she could have had a rollicking career, but for the fact that she moved out to Arizona with her swell husband, Dr. Judd, because she had tuberculosis and they thought that it would dry up her lungs.
Sarah: Yeah. You do what you can.
Mackenzie Joy: Yeah.
Sarah: Yeah.
Mackenzie Joy: So they move out there, but Dr. Judd is busy being addicted to morphine. So he's not really paying attention to his wife.
Sarah: As is the style at the time.
Mackenzie Joy: Totally. I would've done the same probably if I had the access.
Sarah: Yeah.
Mackenzie Joy: So she becomes friends with these two gals, and it's a little unclear who was sleeping with whom.
Sarah: But there are gals.
Mackenzie Joy: There's also another guy in the picture. She gets really mad one night and long story short, the two gals end up dead.
Sarah: Winnie don't do that.
Mackenzie Joy: Yeah, no, you shouldn't. I'm against that. She didn't know what to do, so she chopped them up and put them in her travel trunk and hat box.
Sarah: This is one of those ones where you're like, you might initially not know what to do, but then…
Mackenzie Joy: Right?
Sarah: Certainly just a handful of minutes into it, you'll be like, oh, this is a very long process of sawing up human bodies that I've embarked on. Maybe I shouldn't be doing this.
Mackenzie Joy: I thought the same thing as I was reading about this case because it almost, to me, is proof of insanity that she's like: oh shoot, I shot people.
You know what I should do? Put their limbs in my hat box and get on a train to Los Angeles.
Sarah: No.
Mackenzie Joy: Cross state lines.
Sarah: It certainly isn’t evidence of sanity, I would say.
Mackenzie Joy: Exactly. If anything, it’s going to air on the not super stable side.
Sarah: It's just not practical.
Mackenzie Joy: It's not, because that's how she's caught. So she gets on the train and her trunk is leaking.
Sarah: And they're like, it seems like you have a box full of dripping human body parts, ma'am.
Mackenzie Joy: Yeah, on our un-air-conditioned train because trains are not air conditioned in that era.
Sarah: Oh my god.
Mackenzie Joy: So she’s got this putrid blood leaking trunk, and the porter says you have got to do something about this, you can't bring your hunting spoils in the cargo hold.
Sarah: They're like, listen, we're going to continue to not notice for a while because you are a little lady.
Mackenzie Joy: You are a cute little lady, so we'll give you some leeway. And she's like, oh, uh, I don't have the key, and then she just runs away. So she eventually gives herself up.
Sarah: She is a smoothie.
Mackenzie Joy: She is not well. There's no read of this.
Sarah: This is, to be clear, I know that this is a sad story. It's very sad. But also, what an idiot. I love it.
Mackenzie Joy: I feel like that's why she became somebody who nobody in the state of Arizona wanted to see her executed. By the time that she was released, people had been begging for her release for years.
Sarah: Yeah.
Mackenzie Joy: Because with respect, she's so dumb and frail.
Sarah: Yeah.
Mackenzie Joy: That nobody believes she did it herself. There's no way
Sarah: That she was able to do this murder herself?
Mackenzie Joy: Yeah, and chop up the people. She's a frail tubercular, 25-year-old whose motive is unclear.
Sarah: I like to believe that I'm stronger than a young woman with tuberculosis in the 1920s, but I think I would really struggle to chop up two human bodies.
Mackenzie Joy: And then bring them to the train station.
Sarah: Yeah, that too. Yeah, in a trunk.
Mackenzie Joy: Yeah, that’s heavy. I don't know if she had a buddy helping. I don't know.
But the bottom line is that the reason why I thought this would be a good case is that public opinion by the time all of the evidence came out was so in her favor. And yet she almost died. She almost was executed because there wasn't really a super clear insanity defense at trial option when she was put on trial.
And there was so much – this is an evergreen issue – but media attention, and jury tampering, and all that good stuff that comes with it.
Sarah: Oh, good. Yeah.
Mackenzie Joy: But she gets to trial because she surrenders in the funeral home and they bring her on back to Phoenix.
Sarah: Is this just a random funeral home that she runs into or does she have some kind of connection here?
Mackenzie Joy: Great question. You would think there would be a connection, but no, I think she's just kind of wandering around.
Sarah: Yeah. You’ve got to hide somewhere.
Mackenzie Joy: There's another point in her journey where she's hiding in a drain pipe, and she writes a confession letter.
Sarah: Wow.
Mackenzie Joy: One of many different variants of the confession letters. So she is messy.
Sarah: People do not fugitive the way they used to anymore.
Mackenzie Joy: Right? Or she was just one of a kind. She was not great at strategizing, but she was sure fun to watch.
Sarah: So it seems like she's this madcap tabloid gal.
Mackenzie Joy: Yeah.
Sarah: Like the Octo mom or something, and it's like we tried to execute the Octo mom. I want to make fun of her choices; I don't want her to die.
Mackenzie Joy: Right, that is a great parallel. Yeah, because I don't hate her.
Sarah: I'm sure some people would like to execute the Octo mom, but I really don't want to.
Mackenzie Joy: She's a slightly different kind of messy, but it's hard to time adjust. It's like inflation: it's like hard to do a direct parallel.
Sarah: Yeah. And that's a whole other topic is like true crime media of the 1920s and how all that things come back for that one.
Mackenzie Joy: Oh, my god, yeah. And speaking of Hearst, I'm sure the yellow journalism mixed in did not help anything.
Sarah: Yeah.
Mackenzie Joy: But there's so much more to this case that if you're interested, just look this gal up because there's super fun stuff, I say glibly. So she gets convicted and sentenced to death. And I sent you, it's really ghoulish, there's an invite.
Sarah: No…
Mackenzie Joy: And I think I sent you the file.
Sarah: Okay.
Mackenzie Joy: So this is how we celebrated the eve of Winnie Ruth Judd's execution.
Sarah: Okay. I have it. Oh boy. It it looks like a wedding invitation.
Mackenzie Joy: It's personally signed. Yeah.
Sarah: Signed by the warden.
Mackenzie Joy: So cute.
Sarah: Addressed to a Mrs., and it says in gothic font, you are respectfully invited to witness the execution of Winnie Ruth Judd at the Arizona State Prison at… literally it's like the same kerning as a wedding invitation.
Mackenzie Joy: Yep. Even like the way they do the hours.
Sarah: Yeah. At Florence between the hours of 12 and 5:00 AM, Friday, April 21st AD.
Mackenzie Joy: Yeah.
Sarah: 1933. This by the warden though.
Mackenzie Joy: Yeah.
Sarah: Come on man.
Mackenzie Joy: And he had to sign a stack of these so that it had a personal touch, I guess. Like, bananas.
Sarah: God, this is one of the things about the American legal system where we're like, yes, it is a very solemn and sacred duty to remove people who have forfeited the right to life from Earth.
And yeah, but also you do things like nickname the electric chair Old Sparky.
Mackenzie Joy: Oh my God.
Sarah: And make invitations on at least one occasion. It's not good.
Mackenzie Joy: And somebody picked out the font to this because…
Sarah: Not cute.
Mackenzie Joy: When you said gothic font, it occurred to me somebody went and decided no, this is the appropriate calligraphy style that we want.
Sarah: Yeah. I don't know what the 1933 version of Kevin is. They had Woodrow do it. They sent Woodrow down to the stationers.
Mackenzie Joy: Yeah, right, to get the block text. Yeah. So this is the 11th hour. Obviously, this poor little gal is freaking out. She's having fits of what will later be recognized as insanity. Recognized, I don't know.
Sarah: Also you're broadly speaking, if you're an American woman and you're not insane in the 1920s and thirties, then you're not aware of what's going on.
Mackenzie Joy: Yeah. Think of her circumstance: she's got an addict husband who's also a doctor.
Sarah: Who also might have chopped up her girlfriends, question mark.
Mackenzie Joy: I think the prevailing opinion is that they all were fighting over a guy and there was maybe a self-defense element, but also maybe the guy was involved in killing the girls.
Sarah: Yeah.
Mackenzie Joy: Which that I buy the most, I think, because he sounds like no good.
Sarah: Right, and there being some kind of love quadrangle happening.
Mackenzie Joy: Yes, totally. So guess who intervenes at the 11th hour?
Sarah: William Randolph Hearst?
Mackenzie Joy: No, Eleanor Roosevelt.
Sarah: Of course, God bless. What does she do?
Mackenzie Joy: So she writes in, I'm sure a lot of people have issues.
Sarah: She’s like, “No one can execute you without your permission.”
Mackenzie Joy: So cute. Love the inspo.
So she writes in to ask for clemency, but obviously the gears are already turning with the legal defense, and somebody decides that there was a lot of mess going on at her first trial. There was a lot of jury misconduct. The reason that the foreperson says that they sentenced her to death was that they thought it would make her talk.
So they really didn't want her to die. They're like, this is a strategy, but that's not really a jury's job.
Sarah: We use about the same tactic now, or we would if we could, I would say.
Mackenzie Joy: But we don't say it out loud if we do because that's not what juries are for: strategizing to get her to spill.
Sarah: Instead, you find out a juror posted something on their Facebook later on and you're like, hey.
Mackenzie Joy: Yeah, this is the really dirty equivalent of that.
So there's a lot of stuff conspiring to get this execution overturned, but what works is she's insane. So we're going to have another trial because at the time they didn't really have it so that you could assert it proactively. At least not in Arizona.
Sarah: So does that mean that there's not necessarily procedural room for insanity?
Mackenzie Joy: Yeah, exactly.
And I was thumbing through the old statutes that they have online, and it's mentioned that nobody who's insane can be executed, but there's no provision of how to assert that.
Sarah: Or of how to get an expert witness to say it, or it's just yes, in theory it would work, but we won't tell you how or anything.
Mackenzie Joy: Yeah. We shouldn't do this, but there's no way to make sure that doesn't happen in essence.
Sarah: Do you think that in essence, the spirit of American trial law can be summed up by the iconic meme: we're all trying to find the guy who did this. I feel like I run into, in these stories from history, a lot of this vibe of oh man, someone should write a law or a statute that addresses this issue.
Mackenzie Joy: A lot of buck passing. Yeah.
Sarah: Yeah.
Mackenzie Joy: And it's because they're all afraid of doing it wrong, but then nobody does it. It's the same thing we talked about with enumerating stuff in the Bill of Rights.
Sarah: Like running a leftist coffee shop. You never do it perfectly, so why bother?
Mackenzie Joy: So why bother? Truly, for many reasons.
Sarah: Because someone might yell at you one time. You couldn't survive that.
Mackenzie Joy: Yeah. So I think you're right, but also the people who make those mistakes are rarely there to answer for them.
Sarah: Right.
Mackenzie Joy: Although this is a pretty big oversight, like writing a statutory code and saying this should never happen, but not writing in the loophole. That's a problem.
Sarah: Yeah.
Mackenzie Joy: So they at least gave her the second trial all for the purpose of insanity. And this is under the M’Naghten standard. And that is what we actually have returned to a stricter version of now post-Hinkley. So we'll get to the modern iteration.
Sarah: Yeah.
Mackenzie Joy: But basically what this test is, is that somebody didn't have the mental capacity to understand their actions, like the nature of what they're doing, or didn't have the capacity to understand that what they're doing is wrong – to your definition before – or that it violates the rights of another. So that distilled is basically what you said.
Sarah: And how long have we had that around?
Mackenzie Joy: At the time it was asserted in this case, it was less than a hundred years old. It was this guy named Daniel M’Naghten in the UK, who I think tried to kill a Prime Minister's secretary because he thought that they were conspiring against him. And it was a really similar situation that's like, “Oh, we shouldn't put somebody to death if they're fully crazy, so let's devise this rule” that now is named after the would be… no, no, I think actually he succeeded at the assassination, M’Naghten did.
That’s the M’Naghten rule. It's one of multiple approaches that can be used for the insanity defense. So there's another one that's the other end of the spectrum. And this is called the Durham rule for anyone who's keeping score. But that allows you to be not guilty if whatever act – criminal act – you did was the product of mental illness. So that really covers anything. That's super easy.
Sarah: Right, especially if you include narcissism. Then we can get this whole administration off scot-free.
Mackenzie Joy: That's another thing that I think the Winnie Ruth Judd case shows is how divorced medical understanding is from what these legal definitions are, and how they do sometimes butt heads. Obviously back then because we're looking at it.
Sarah: And it seems like where the law intersects with medicine, medicine generally travels farther faster.
Mackenzie Joy: Yes.
Sarah: Because we are trying to stop science in this country, but it's harder.
Mackenzie Joy: And the goal of science is progress.
Sarah: And then the law comes scurrying afterwards, or maybe sometimes following casually afterwards.
Mackenzie Joy: It's almost like law wants to be set in stone.
Sarah: Right.
Mackenzie Joy: So it's antithetical to the whole idea of science progress.
Sarah: Do you ever feel like the idea of the American legal system, which was so appealing to me when I was younger, and now I appreciate more for its messiness maybe. But just being a young person watching Law and Order and being like, wow, isn't it amazing that we found these eternal truths, and now we're running a system based off of them.
And it's yeah, that would be nice if it happened, but it definitely didn't. You just have generations of people doing their best.
Mackenzie Joy: Yeah.
Sarah: But then when some of them refuse to let anyone revise what they said, it makes it difficult and annoying.
Mackenzie Joy: Yeah. I think the only way that it does work, when I just said what I said, which is that it's antithetical to the idea of progress. I was like, oh God, it's true, but what a terrible thing.
Sarah: Yeah.
Mackenzie Joy: So yes. I agree with you, and it's a forever cycle of being like, oh, God dammit, and then hoping that things get better.
Sarah: Right, or you know, we can try and decriminalize progress a bit.
Mackenzie Joy: Maybe, how about that?
Sarah: But it feels like it appeals to that most perfectionistic impulse within people to be like, we figured out how to handle things and we're not going to take any more comments at this time.
Mackenzie Joy: Right. Well, I guess to play devil's advocate, there are two sides of this particular issue in the extreme, because obviously look at what, for example, the current Supreme Court is doing with settled precedent. You don't want somebody, or a legal system rather, that allows you to make changes willy-nilly with every changing administration.
Sarah: Yes, that's a very good point and a very timely point.
Mackenzie Joy: It shouldn't be that easy that we can just change every X number of years because some new interest comes in. So I think that's the other side we have to avoid. But I don't know what the medium is.
Sarah: Well, I guess it all seems so easy when I'm just sitting on my couch complaining about it.
Mackenzie Joy: I know. I think we could fix it, if we did it. We would do it right.
Sarah: If we did it, we could really get this thing licked, probably, inside of a convention.
At its best, I do feel in legal history you can see this balance, or this sort of tightrope being walked, between those needs that you're describing: the need to be overly reverent for the law that you're creating, and the need to make it so flexible that anyone can come in and structurally reorganize it.
I don't know, there is something fascinating and troubling and also at – in the best of times – really profound and impressive about when it works or when people are sincerely trying to create that balance between protecting people from their worst impulses and recognizing their sovereignty, you know.
Mackenzie Joy: I would be happier if more of the stalwart folks or the regressive folks were actually reverent, because I think part of the problem is that they're not actually being true to print. Well, this gets into the last episode we did. They're just making up their own new thing and calling it reverence for the past.
Sarah: Yeah, right. They're like, I love the Constitution so much that I am wiping my ass with it. Okay, interesting.
Mackenzie Joy: Yeah, that I rewrote it. So there's a little philosophical diversion. Whatever, it's fine.
Sarah: So this is where we are in the twenties. We're in the jazz age.
Mackenzie Joy: Yeah. So Winnie is saved at the 11th hour by this insanity trial under the M’Naghten Standard, and the evidence that comes out, it's medical evidence in the early thirties, and it is very sexist, and it's a lot of doctors saying look at how she twists her handkerchief there. She won't stop twisting it; she's obsessed with her handkerchief.
Sarah: She's like Goldie Hawn in Death Becomes Her; free this woman.
Mackenzie Joy: That's pretty cool. But that truly was some evidence that they produced at trial. We were watching her in the first trial and she just wouldn't stop twisting her handkerchief. And I'm thinking: huh, my God, by this definition, I would've been toast.
Sarah: Get this woman a fidget spinner.
Mackenzie Joy: Yeah, exactly.
Sarah: It's also certainly through the seventies and eighties, and I would argue really to this day, it's amazing how often a lack of positive relationships with men is positioned as evidence that a woman is mentally unwell, and perhaps it’s the men’s fault. I don’t know. Mackenzie Joy: Maybe it's some other factor. Maybe it's your morphine addicted husband who makes your life a living hell.
Sarah: Yes, possibly.
Mackenzie Joy: So he comes on the stand, and he actually slaps her in the first trial because she was crying so hard.
Sarah: Her husband?
Mackenzie Joy: Yeah. They clearly have a very nice relationship.
Sarah: Yeah.
Mackenzie Joy: But he gives evidence of her insanity. And he says that she really wanted a baby and kept talking like she was going to have a baby. And again – to me, I'm like – what else does a woman without a child do in the early thirties?
She has no purpose. She's living here because she’s unwell. Her husband's crazy. What are you supposed to do? Talk about having a baby. I don't know.
So that's evidence, I guess, that she's unwell. They also say sometimes she laughs out of nowhere, nothing funny is happening and she just laughs out of nowhere.
Sarah: I feel like when people a hundred years ago – and also today - when people have to present evidence that a woman is mentally ill, they just kind of present evidence that she's a woman. And they're like, well, same thing really.
Mackenzie Joy: Yeah. That she reacts to things sometimes that we can't see.
Sarah: Yeah, right. Because certainly what has always struck me about women's mental illness as described in the sixties and seventies, not just legally, but by clinicians at the time, is that there's this idea of she's poorly adjusted, she's poorly adjusted to society. So she’s mentally ill.
Mackenzie Joy: Yeah, to what?
Sarah: Right. How is she supposed to adjust to this?
Mackenzie Joy: Yeah. So in this case, her husband is clearly not a partner to her if he is both an addict and working as a doctor. So he's probably not there a whole lot. If she physically can't bear children because she's too frail, but that's kind of your prescribed purpose, that’s going to take a toll on your psyche. I don't know.
Sarah: It’s a little bit funny to me to be characterizing it like this because I feel like chronic illness is such a modern term.
Mackenzie Joy: Yeah.
Sarah: We had other terms; we could say wasting disease back in the day. I guess this is the direction we're going in with healthcare in this country, but imagine all the tubercular girlies on Instagram talking about living with tuberculosis because they contracted it from drinking raw milk. It can happen at any time.
Mackenzie Joy: It’s a little community.
Sarah: She has limited spoons; she's got tuberculosis.
Mackenzie Joy: She does. And especially, she's been living in this prison where she was going to be executed. That's a culture shock, I’m sure, for anyone.
Sarah: It's been a tough time. People are sending out cute invitations to her execution.
Mackenzie Joy: And even her friends have vested interests. Hearst wanted his stories, so it's a weird time to be Winnie.
Sarah: Yeah. Hearst is nobody's friend, sadly.
Mackenzie Joy: No. So she gets reclassified and put into a mental health facility. And I think she holds the record…
Sarah: I'm sure is a great place to be.
Mackenzie Joy: I know. But I think she holds the record of the most escapes.
Sarah: Oh.
Mackenzie Joy: Yeah, she escaped like seven times in the 38 years she was there.
Sarah: I hope it was fun.
Mackenzie Joy: One time she went to San Francisco and became a nanny.
Sarah: Wow.
Mackenzie Joy: For a wealthy family for a couple years under an assumed name.
Sarah: And then they finally caught up with her and they were like, all right, back in the pokey, Winnie.
Mackenzie Joy: This is my fun connection: my aunt was the paralegal on her case when she was eventually released.
Sarah: What? Oh my god.
Mackenzie Joy: Yeah. And apparently, she was a very nice old lady, and she just wanted to live her life and be left alone.
Sarah: Yeah.
Mackenzie Joy: She died happily at 93, and she was free.
Sarah: Wow. She outlived everybody.
Mackenzie Joy: Yeah. Go Winnie Ruth Judd. Sorry to your victims also.
Sarah: Yeah. Or whatever happened.
Mackenzie Joy: Whatever the hell happened.
Sarah: Yeah. Sorry to everybody, except the warden.
Mackenzie Joy: So we thought that was a fun illustration of how little medicine is involved. It's subjective. I'm sure it can be done very well.
Sarah: Right. But it's really about what a jury can be convinced of and whether a jury or, I guess, a judge in some cases can be convinced that…
Mackenzie Joy: Yeah.
Sarah: a defendant's behavior fits this criterion. Is that about it?
Mackenzie Joy: Yeah. And to your point, resources too because some of it's money, some of it is just like legal acumen. In the Hinkley case, which we'll go to next, the prosecution, I think only called two psychiatrists because they were like this is a slam dunk. And then the defense called 27.
Sarah: Wow. That's too many psychiatrists. Honestly,
Mackenzie Joy: It’s way too many. There's probably a joke set up somewhere in there, but obviously there was an imbalance there.
Sarah: So as many psychiatrists as Jim Morrison had years of being alive. It's not a joke exactly. It's more of a fact.
Mackenzie Joy: It's just a fact. But yeah, it goes to show you that never count your chickens, I guess.
Sarah: Right? Yeah.
Mackenzie Joy: Yeah. They thought it was so obvious that he was guilty, that he wouldn't get off and then: whoops.
Sarah: Yet, sometimes. Okay, can I tell you my understanding of this story?
Mackenzie Joy: Yes, please
Sarah: Ok, because I've read a bit about this, it's part of my general Reagan research because of course Reagan is the Palpatine behind where we are now.
Mackenzie Joy: Of course. Everything. Yeah.
Sarah: And how somehow, he is alive.
That's going to happen our next election. They're be like, somehow Reagan is alive and then he's going to run for president, I guess.
Mackenzie Joy: Well, you know what? The last speech he gave right before Hinkley shot him, he ended the speech with “and make America great again.” So he is back in a sense.
Sarah: See. Okay, so I remember reading about how – and I think this is, to me, a really interesting thing about Hinkley – is that he appears to have been just around and not trying very hard to find and assassinate Reagan, or he was thinking about it, but he wasn't as far as I can remember, super dedicated.
Mackenzie Joy: No.
Sarah: And then Reagan happened to be at the Washington Hilton to talk to Teamsters or something. And Hinkley was like, uh-oh, I'm right by the Washington Hilton. I'm just going to assassinate this guy. He was at like pretty close range. So, he clearly was a much worse shot than Oswald.
Mackenzie Joy: He actually gave that as some evidence of his insanity, was the fact that he didn't aim.
Sarah: That he wasn't very good at it.
Mackenzie Joy: Well, he says that he didn't try.
Sarah: Huh.
Mackenzie Joy: That he totally could have if he wanted to.
Sarah: He was trying a lot harder than most people do to assassinate the president, to be fair. He was there with a gun.
Mackenzie Joy: Right.
Sarah: And then he kind of winged Reagan, right? Or a bullet bounced off of part of the car, and into Reagan's torso – something like that.
Mackenzie Joy: Yeah, and other people were more grievously wounded. One of the victims did eventually die of complications related to the injuries.
Sarah: Right. Because there was a police officer who he shot, right?
Mackenzie Joy: There were four people shot in total.
Sarah: Oh my God. Yeah.
Mackenzie Joy: Yeah. A metro police officer. There was a secret service agent and then – this is my soap box moment – James Brady was the White House press secretary; he was shot as well. And so I wanted to qualify everything that I say about Reagan with the fact that James Brady was the predecessor to Larry Speaks. Larry Speaks was the press secretary when the AIDS crisis started.
Now I had an uncle who died of AIDS in 1988, and his death almost certainly could have been prevented if Reagan just fucking listened. So, if I sound pointedly glib about an attempt on Reagan's life, it’s because I am.
So, should we talk about Hinkley? Yeah.
Sarah: Oh my God. Let's please talk about Hinkley. Because who is this guy who happens to be in the neighborhood and tries to pull off an assassination, and boy, does he not manage it.
Mackenzie Joy: He is a lonely straight white guy in his twenties.
Sarah: No.
Mackenzie Joy: Which is really bizarre. Yeah. And he's obsessed with a girl.
Sarah: Yeah.
Mackenzie Joy: So he watched Taxi Driver in his, I don't want to say formative years. He tried to be a musician. He literally went to New York, couldn't find a hotel room that he could afford.
The traffic was too much. So he’s like, I give up on my dream of being a musician one day. He could have used some good parenting at that point.
Sarah: And he's what, like 20 around his assassination attempt?
Mackenzie Joy: Yeah, he’s young. So he is kind of drifting around, watches Taxi Driver, and sees it like 16 times or something in the theater, and just gets hyper fixated on Jodie Foster, who at the time was a minor.
Sarah: Which is also so weird because it's a movie about a creepy, scary man.
Mackenzie Joy: Yes.
Sarah: It's a movie about a creepy, scary man who is himself fixated on Jodie Foster. And you would just think that at a certain point you'd be like: maybe I don't actually want to follow the exact same path as this guy.
Mackenzie Joy: It's like the American Psycho thing.
Sarah: Yeah.
Mackenzie Joy: Half of the audience is going to miss that this is…
Sarah: God, you're right. Because men love Taxi Driver, and they love it, where you're like, wait…
Mackenzie Joy: But do you get it?
Sarah: but do you know that this is about a man, like completely decompensating and how it's bad?
That's the thing about films; they can communicate all kinds of things, but that doesn't mean people have to understand them.
Mackenzie Joy: You'd have to be so ham-fisted to just give on a silver platter that we don't want to be Travis Bickel. That's not aspirational, my guy.
Sarah: Right. Well, you would have to have Scorsese come out at the end, be like: I'm Marty Scorsese. Remember me? I was the guy in the taxi at the beginning. I was talking to the taxi driver. Anyway, don't do this.
Mackenzie Joy: Like a John Hughes moment.
So by the time he gets obsessed with her, she is just starting at Yale. He went out to LA for a while and was doing his, you know, dirty LA Street Kid thing as he gets obsessed with her. Then he decides I have got to go back and be closer to her in New Haven.
So he moves back to the Northeast and starts calling her. And so there are some recordings of those phone calls.
Sarah: Oh my God.
Mackenzie Joy: This is why I thought of this part now. She's so firm but composed. She's like: man, is it you again? You understand I can't talk to you because I don't know you, right? She's nice, but she's rational. I think if I were a famous person in college at that time, I'd be like, fuck off bro. Leave me alone. But she's very measured.
Sarah: And I guess she has a lot of practice because she's been famous since she was at least, she was in movies as a small child.
Mackenzie Joy: I want to say like nine-ish.
Sarah: Oh yeah. She was, not that you would be known for this exactly, but I think she did a Coppertone campaign when she was like two.
Mackenzie Joy: That's adorable.
Sarah: She’s been working since she was a baby, basically.
Mackenzie Joy: But that doesn't give you the – I don’t know – the psychological strength to not unleash your rage at somebody.
Sarah: Right, yeah. You feel like she's getting her Clarice Starling practice that she's going to use in the Silence of the Lambs in years.
Mackenzie Joy: Pretty formative, but also a little hair of discomfort that is grounding in her humanity, you know.
Sarah: Right. You can tell that she's not enjoying this or she's not grandstanding or anything, but also that she's not going to back down.
Mackenzie Joy: Like she appreciates the gravity of the situation.
And I feel like with somebody who was as unstable as Hinkley was at the time, obviously he was ready and willing to take a life, and he was living in delusion land.
Sarah: Yeah.
Mackenzie Joy: It's really good that she didn't get too aggressive because I could see rejection having turned really ugly with a case like this.
Sarah: Or him deciding to show up at Yale instead.
Mackenzie Joy: That’s what I mean. Yeah.
Sarah: Okay. So he fits a type that we recognize.
Mackenzie Joy: Yeah, it is certainly a type, and I would say when I was reading about it, it was funny how much the word parasocial kept coming to mind, except that was a weirder phenomenon back then. To think that you know somebody and you have a relationship with somebody and a loyalty to them, just like totally unilaterally becomes really common down the road.
But back then, it was almost like that in and of itself was proof of insanity. And I think we slowly have gotten to a place where it's more common. I don't know what to do with that information. It just came to mind.
Sarah: You're right. And that it's become like a whole sort of form of job creation and economics.
Mackenzie Joy: Yeah.
Sarah: And I feel like there's a degree of illusion that you expect people to understand the partaking in, that some number of people won't understand and will take literally, and that's always going to be dangerous.
Mackenzie Joy: Yeah, exactly. And obviously when I say parasocial relationships are more common now, people aren't taking it to this level. That's not what I mean. He obviously went to the nth degree, but it was really funny to read all this symptomology that came out at trial and I don't know that we would all recognize that as being so common nowadays. But how about that?
Sarah: Yep.
Mackenzie Joy: And they talked about he had no close friendships, and thus nobody to ground him in reality. And I'm like, well, that also sounds really familiar.
Sarah: Yeah. Well, and we also now have, whether or not you believe in the concept of the male loneliness epidemic, there's certainly a lot of incentives to sell them propaganda about how they'll never be loved until they buy all these protein supplements, and take all these courses, and buy a course where you learn how to become a magnate from someone who shouldn't have to sell all these courses on being a magnate, if they're really a magnate.
Mackenzie Joy: If they are a magnate, a life coach without any certification, but they're going to help you.
Sarah: Alpha male podcasters. Exactly.
Mackenzie Joy: Yes.
Sarah: I hate to bring podcasts into this, but you know.
Mackenzie Joy: The podcasts don't kill people; it’s the parasocial relationships.
Sarah: Joe Rogan kills people.
Mackenzie Joy: Joe Rogan kills people; that's punchier. Yes. Okay.
So yeah, he develops this fixation. Weirdly enough, he was really upset about John Lennon getting assassinated like that. He lists that as a turning point.
Sarah: John, listen to yourself.
Mackenzie Joy: Come on.
Sarah: You're so upset about that assassination; you have to attempt America's next big assassination. The assassination of the summer, if you will.
Mackenzie Joy: Yeah. He bought Catcher in the Rye. He went to a vigil outside the Dakota after.
Sarah: Wow.
Mackenzie Joy: And then he said three months later, he did his.
So I didn't realize how proximate in time they were.
Sarah: Yeah.
Mackenzie Joy: But it really was a catalyst.
Sarah: Which, also if you’re an American, a certain number of people had to have been like, oh my God, are we doing this again? Is it 1968? Are we going to have so many assassinations now?
Mackenzie Joy: Yes, I thought the same.
And the phase of hijacking, because he also thought maybe I'll try that, and he actually went to the airport in Tennessee with a handgun.
Sarah: See, this is what I love. I love a criminal who can't get it off the ground. He's just: maybe now, or no. Or no – no parking in New York. Never mind. Never mind about the music career.
Mackenzie Joy: And just desperately influenced by trends. He’s like: oh, hijacking. Shit, maybe I'll do that.
Sarah: Yeah. Which for people who don't know, in the seventies for a while, people were hijacking planes all over the place. You don't hear about it anymore now because, you know, now the last one we remember they flew it into the World Trade Center, and it was a tragedy that changed the world forever.
But in the seventies, probably your dad could just hijack a plane for a little while, and jump out of it with a bunch of money he stole or something like that.
Mackenzie Joy: That's the best-case scenario. Very few get hurt on that one. But yeah, he just traipsed into the airport in Tennessee, and I think there was some fluky thing that ended up getting him caught. It wasn't a routine screening, and then they just fined him $50 because he said it was for target practice.
Sarah: Oh my God. They’re like, no guns in the airport. Go back to Swarthmore young man. Sorry to Swarthmore. I don't know that there's any connection. It’s just where I imagine some guy who can't get it together would go.
Mackenzie Joy: So yeah. And then ironically, I did note that Reagan's reaction to the Lennon shooting was saying like, handgun control is not the answer. So there is another little bit of irony.
Sarah: Exactly, yeah. No, this is not a classy show. Of course, now I have a mental image of Reagan being reached for comment in the hospital going handgun control is still not the answer.
Mackenzie Joy: You know what? I bet you're not far off. Truly.
Sarah: Yeah.
Mackenzie Joy: Yeah. Day of, he walks by this place, and it's pretty close quarters with everybody leaving this AFL/CIO Teamsters talk.
Sarah: Where he was like, hello, Teamsters, I'm going to ruin your life. Have fun with that.
Mackenzie Joy: Excuse me. Yeah. And he shoots four people, all of whom are associated with the president. Yeah. You got it.
Sarah: And does he just open fire on the group as Reagan is being ushered into his car, essentially?
Mackenzie Joy: Yeah. And it sounds like, because he specifically said he did not aim, and that was evidence of his lack of clarity of mind. Do you believe that?
Sarah: Do you believe that? Because I do believe that he just is: oh, what do I do now? I guess I'll shoot this gun now or something.
Mackenzie Joy: I do believe it. And I think that the lack of coherence to the whole plan, the lack of coherence to this piece makes sense.
Sarah: Yeah. And that he's just going around looking for something big to do, but it doesn't really matter what the thing is and that he hasn't thought through.
Mackenzie Joy: Yeah, because Travis Bickel had a mission.
Sarah: And then I guess we get into the question of what is the difference between insanity and poor planning?
Mackenzie Joy: And stupidity.
Sarah: Yeah, that one too.
Mackenzie Joy: Because that’s what I thought with Winnie Ruth Judd: don't put limbs in a hatbox. But also maybe you're just dumb. Sorry.
Sarah: Is this a bad choice or is this a choice of someone disconnected from reality? And that's very hard to determine with some people, honestly.
Mackenzie Joy: And what should affect culpability because if you get down to it, obviously anybody who does a crime of a certain caliber is by definition not mentally healthy.
Sarah: Yeah. That's what I think, and this gets complicated, but I think premeditated murder is by definition, if you're not motivated by a huge amount of money or something like that.
Mackenzie Joy: Or principles that are really clear; I'm thinking of Fran Ferdinand – they at least knew what they were doing and it was the plan.
Sarah: Right, murder as the crime and the motive.
Mackenzie Joy: Right.
Sarah: And then we get into this difficult thing where there's this sort of core belief, I think, in American history and American masculinity, that violence is a sane thing to do.
Mackenzie Joy: Right.
Sarah: There's times when violence is acceptable, but there's a sort of core tenet of American masculinity that violence is just a nice hobby. And I don't think that's a sane belief system, but if you ask a lot of people, they'll say that it is.
Mackenzie Joy: Yeah. It lives on that spectrum of the biggest con that men committed is convincing women that anger isn't an emotion sort of thing.
Sarah: Yeah. God, yeah.
Mackenzie Joy: That violence is about the most emotional thing you can do. And I feel like that kind of connects to our point, but it's a very mentally unhealthy thing to let violence control your action.
Sarah: Yeah.
Mackenzie Joy: And yet…
Sarah: And yet.
Mackenzie Joy: We don't say every person is legally, mentally ill for the purposes of the defense. Nor should we; that would be a crazy way to let people off. We would all be dead.
Sarah: In a manner of speaking, right.
Mackenzie Joy: Yeah.
Sarah: And then it's, with all of this, it comes down to a lot of individual choices, in a trial capacity, it seems like.
Mackenzie Joy: Yeah. But okay, so he's arrested immediately. He doesn't get shot because everybody is…
Sarah: Because he's just standing around, I presume, because he didn't think ahead.
Mackenzie Joy: Well, it's so close quarters. He thought he would get shot. He was like, I was prepared to just die. That probably would've been convenient for his mental state. He didn't have a plan in life. He was just kind of: go out in a blaze of glory.
Sarah: So really it seems like there's just a lot going on in his head and he's fastened it all to this one thing he's going to do.
Mackenzie Joy: Yeah. And I think a vacuum of other purposes and influences that then his mental illness filled with Jodi Foster.
Sarah: But also if it wasn't her, it would've been Christie McNichol. At a certain point it’s just a woman who existed and some guy came along and here we are.
Mackenzie Joy: And got obsessed with you. So they actually played Taxi Driver at the trial.
Sarah: Oh my God. How?
Mackenzie Joy: From my understanding, they played the entirety of the movie for the jury.
Sarah: That's incredible. Imagine. I guess it would be useful information, but that is a long and intense movie.
Mackenzie Joy: Yeah.
Sarah: Man.
Mackenzie Joy: And apparently a big part of it was the defense using this as evidence: watch him watch the movie.
Sarah: Wow.
Mackenzie Joy: And he was just fixated.
Sarah: Yeah. It is a good movie, to be fair. It's not like it's boring or something.
Mackenzie Joy: Right.
Sarah: Also, what a weird week to be Cybill Shepherd or something, Apparently the jury is watching that movie I did a few years ago to determine if this presidential would-be assassin is insane or not. Anyway…
Mackenzie Joy: All in a day's work, right?
Sarah: Yeah. You can't buy publicity like that.
Mackenzie Joy: No. And poor Jodie Foster. She did not have to appear in person, but she gave a deposition that was taped and that also went a ways in proving his insanity because she said in the deposition that they did not have a relationship and she did not know him. And he had a little bit of an outburst at that and had to be removed from the courtroom.
So the test that they used at that time in the DC circuit and the federal courts, which is where he was tried, was this kind of middle ground test, which is the model penal code test – again, if you're note-taking. The standard there is that at the time of the act you're suffering from mental illness and because of that lacked capacity to appreciate the wrongfulness of your conduct or lacked the capacity to conform your conduct to the law's requirements.
So it's that last piece that's a little more permissive.
Sarah: Okay.
Mackenzie Joy: That you basically can't control yourself, and you can't fit yourself into law abiding society's norms.
Sarah: Which is interesting because if you want to assassinate the president in order to impress Jody Foster, you understand that you want her to be impressed by the level of your wrongdoing.
Mackenzie Joy: Yeah, that's a great point.
Sarah: But the desire to do it also arguably shows that you don't understand the true reality of the wrongness of it. Only that it would be impressive. I do find it really interesting. Yeah.
Mackenzie Joy: Yeah. I think if they had just the M’Naghten test, which is what they ended up going back to and making a little stricter after, then it just would've been the right or wrong element. And there wouldn't have been this “or you're so mentally ill that you can't conform your conduct to legal norms.”
Sarah: Which in that case is maybe you understand all kinds of things, but you can’t implement that knowledge.
Mackenzie Joy: You just can't control yourself. Yeah.
Sarah: Yeah, which I think is more useful.
Mackenzie Joy: Yeah. It could get a little permissive if we do think about it. Imagine a world of Hinkley-esque men who are just like: I can't stop.
Sarah: I don't have to imagine it. It's on Reddit.
Mackenzie Joy: I know. Imagine if you can…
Sarah: I know it sounds over the top. You have to, draw a line somewhere and then the question of where the somewhere is ends up being a little subjective. Because I do truly believe if you look at our president 45/47, I don't think Trump actually is capable making better choices than he is right now. Right?
Mackenzie Joy: At this point, certainly not.
Sarah: Yeah, that too. And I know that he knows he's doing horrible things and is doing them on purpose and that the cruelty is the point. But also, has he ever had the capacity to be less of a horrible narcissist? I don't think so. But that doesn't mean he is not criminally liable, you know.
Mackenzie Joy: Right. And I think that brings us to a great point, which is the philosophical underpinning of the whole thing, which is: what is the goal of punishment?
Sarah: Yeah. Which is why bother having a legal system when they’re such a pain?
Mackenzie Joy: Yeah. And also what is the goal of incarceration? Because if you are found not guilty…
Sarah: Which people will disagree on, it seems.
Mackenzie Joy: Yeah. Boy, yeah. But it's not like he was walking around because of the not guilty verdict; he was incarcerated, but it was in a mental health facility. And so if that's what we're talking about the distinction for, maybe I don't mind the more permissive definition as much because does that just mean that we put the Trump-esque thinkers in a treatment facility?
Sarah: Yeah. And now they all have to play tennis with each other until they die.
Mackenzie Joy: Yeah. Let’s not release them back on the streets to do this again.
Sarah: Yeah. God imagine all of them in a secure facility forced to play Risk with each other.
Mackenzie Joy: I don't want to work there, but it would be nice in ways.
Sarah: But we could pay the people who do work there really well.
Mackenzie Joy: Lots of money.
Sarah: Tell me about this verdict. Were people thinking as this was going on: oh it'll be fine, he will definitely be convicted; he did try to kill the president after all.
Mackenzie Joy: Yep.
Sarah: Or was there a sense of, I don’t know, he does seem to have an awful lot of lawyers.
Mackenzie Joy: He didn't have that many lawyers.
Sarah: Oh, he didn't? Okay.
Mackenzie Joy: No, they just called a ton of psychiatrists.
Sarah: Oh, right, they just had 27 witnesses to make up for it.
Mackenzie Joy: Yeah. The witness balance there shows that everybody assumed this guy tried to kill the president in broad daylight.
Sarah: On camera. There’s footage of it. You can watch it right now if you wanted to.
Mackenzie Joy: Yeah, and not that a good motive would've made a difference, but why? Because Jody Foster…
Sarah: Right. What if he was like: I'm very upset about the trade deficit or something.
Mackenzie Joy: Right. Or maybe if I had done it because of AIDS. There's at least cause and effect.
Sarah: Yeah. And that's the inevitable Luigi Mangione parallel of it all, right?
Mackenzie Joy: Oh, great point. Yeah.
Sarah: To me, it makes complete sense that at this point in time we had – and I know that there's plenty of people, plenty of conservatives who are like, it's terrible; it’s terrible to be glamorizing an assassin, blah, blah, blah, blah, blah – because to everyone I know and everyone who I see online and in the sort of world that I'm in, was immediately just like: protect our boy.
Mackenzie Joy: Yeah, and where is that indignation when people die every day for no reason because of these companies? Imbalanced Republicans were super upset, obviously.
Sarah: And did this shock people? Was this like an OJ moment? Did people see it coming?
Mackenzie Joy: I don't know that I would put it to that level.
Sarah: Yeah. They didn't have it live on Oprah. Nothing's at that level.
Mackenzie Joy: Yeah. And the tricky thing here is he definitely is not, or at least at that point, he was not well. He certainly was whatever you would consider to be “insane,” to use the term of art. In that sense, it's different than OJ because it's not that anybody was saying he didn't do it.
Sarah: Right. And that it's not based on do you believe that he did it or not?
Mackenzie Joy: Yeah.
Sarah: And that cultural divide, like everyone agrees on what happened in this case. Okay.
Mackenzie Joy: Yeah. It's an affirmative defense. It's yes, I did this, but I can't be carcerally responsible for my actions. Like the punishment is a different form.
And I realized that this also, more or less coincides with the Willowbrook exposé. And I think that's not an accident.
Sarah: What is that?
Mackenzie Joy: So, Geraldo Rivera…
Sarah: Oh, boy. Yep, Geraldo: welcome, sit down.
Mackenzie Joy: Still there? Yeah. Still hanging out. Some hot pictures of him online in his seventies if anyone's looking for them.
So he did this exposé in the seventies about a mental health facility, an asylum, because it really was – this marked the end of the era of asylums – and it was called Willowbrook. And it really exposed the inhumane treatment.
Sarah: Because interestingly, the Reagan administration created policy that also deinstitutionalized a lot of people. Right? Ironically.
Mackenzie Joy: Yeah. So I think – this doesn't necessarily affect Hinkley specifically – but I'm just thinking about the shift in this country from mental health institutions to…
Sarah: Incredibly expensive places.
Mackenzie Joy: Yeah. That they don't really exist, but the people still exist who are potentially dangerous to themselves and others. So they can't be free to deal with their mental health until or unless they're better. But now we don't have places dedicated to that. The fix was fixing the institutions.
Sarah: But you don't want to go back to the past where you have people being forcibly institutionalized
Mackenzie Joy: Right.
Sarah: And ending up in abusive places that they can't leave.
Mackenzie Joy: But now we just put them in prison.
Sarah: But now it's like there is no place to go if you're a threat to yourself or your family if you can't afford it.
Mackenzie Joy: So we don't even call them mentally ill. So I feel like that coincided with the reforms after Hinkley, which basically got rid of a lot of the options of pleading some version of insanity.
So now you either can't assert it and/or there's no other facility that you can go alternatively, and I think that those kind of dovetailed and work together to create prisons as the mental health facilities.
Sarah: Yeah. And what that also means is that if you're someone who has someone who is a danger to you in your life, or who poses a threat, or who you know is stalking you or behaving threateningly toward you, it's very difficult. To know how to handle that for many reasons, but partly because if you care about that person at all, which frequently is the case, then you don't want them to go to prison as their only option. Or for something completely terrible to happen to them,
Mackenzie Joy: Or even a loved one who's having a mental health crisis that gets right to a point that you can't physically or emotionally handle it.
Sarah: Yeah, where you are not able to take care of them, but you want someone to, as opposed to the only care that exists being some form of punishment.
Mackenzie Joy: Yeah.
Sarah: It's not good.
Mackenzie Joy: It's not great. So long story short, on post-Hinkley reforms, there was a congressional act that made the standard higher and also got rid of some of the expert witness options.
And some states went even further. So if you're familiar with Aileen Wuornos, the gal who Monster was based on.
Sarah: I sure did watch cable TV growing up. Yeah.
Mackenzie Joy: Heck yeah, me too.
Sarah: Aileen Wuornos is fascinating for many reasons, but one is because when she was big in the news in the nineties, everyone was like, she's the first female serial killer. And she's actually one of the first female serial killers to become a household name because she killed men outside the home, but women have been quietly being serial killers, often killing children or their patients or the elderly or just people in their care for such a long time, and so many of them don't get caught. So, you know, that's all.
Mackenzie Joy: Hers was arguably – a lot of them were self-defense adjacent – and the point of connecting it to this, she did not plead insanity, but all these strictures that states put in place after Hinkley, and whether they're directly related or not, it's been a couple decades now, but in Florida where she was tried, if you don't plead insanity, you can't introduce any mental health evidence.
So it becomes this, damned if you do, damned if you don't. If you don't throw yourself into this trap that really would control your legal strategy and any testimony that you would give, then you can't add any evidence of what your state of mind was or what you might have been suffering.
And in her case, that was really key.
Sarah: Right. Because the story basically is that she was a survivor of a lot of sexual abuse and then was working as a sex worker and killed some number of men. And to me, one of the interesting questions has always been like: how many of them just actually did have it coming?
Because I can see a scenario where all of them did, honestly.
Mackenzie Joy: If you look at it from a sort of battered woman syndrome adjacent defense.
Sarah: Yeah.
Mackenzie Joy: That her nervous system was super heightened when it came to male sexual partners doing X, Y, Z. And here's mental health evidence of why; you couldn't do that in Florida at the time.
Sarah: Yeah, and that’s at least an interesting potential line of defense, and to not have that available to you also seems…
Mackenzie Joy: Yeah, bummer.
Sarah: I hate to use the word, but problematic.
Mackenzie Joy: Yeah, better than my word.
Sarah: I like them both. Yeah. But it's this interesting thing of you lose the ability to express the reality of the client's mental situation if you have that kind of restriction.
Mackenzie Joy: Right. It's really bizarre. And I know you have talked about junk science evidence and some of the traps adjacent to that, and I feel like this fits into that whole constellation of what you can say, what you can't say. The lack of uniformity of what rules we're working with at any place in time is really tricky.
And then, so a lot of states now have actually gotten rid of – not a lot of states – some states have gotten rid of the insanity defense altogether. There's also like an advent of this new thing that's guilty but mentally ill. Which then you still go to prison.
Sarah: That's just like when someone's like, how are you doing?
You're like, well, I feel guilty, but also mentally ill. So…that asterisk.
Mackenzie Joy: That asterisk. Yeah.
Sarah: Yeah.
Mackenzie Joy: I don’t know. So basically if you get that in your verdict, you go to prison, but then you get to see somebody for a screening to see if you need inpatient care, which I don't know at that point, maybe it's 6 of 1.
Sarah: Right. And then what kind of inpatient care are you going to get?
Mackenzie Joy: Right.
Sarah: Within the prison system, seems like the option that you're left with. This makes me think of the 1970s death penalty moratorium. And my understanding is that a big part of the rationale for that was Furman v Georgia or something like that.
Or the stated rationale was that if we have the death penalty being implemented differently for different reasons across different states and for different defendants, then how can we swear to the constitutionality of something that's being applied in such a random and arbitrary manner, and it feels like you're saying the same thing.
Mackenzie Joy: Boy, you just pulled a thread on the whole system. Yeah. And obviously if you take it a little bigger, there's the whole state's rights thing, which drives me nuts. And it is the rallying cry of every unjust cause ever.
Sarah: And states' rights historically is like code for the state's rights to be racist.
Mackenzie Joy: Yeah. Finish the sentence. For better or worse, on the insanity defense, we had both federal and state responses. So everybody was really whipped up into the same frenzy at the state and federal level. And I know you and I have talked about how infrequently those knee-jerk legislative responses tend to address the problem that they're knee jerking to.
Sarah: Yeah.
Mackenzie Joy: And I think this is a good example.
Sarah: I do understand how it would be shocking. I imagine you're a random citizen, there's been this trial of this guy who attempted on purpose to assassinate the president, and now you're hearing that he's not going to prison. And also, I'm sure are being told implicitly and also out loud by, all the news sources for whom is like a huge bombshell that maybe he'll be released at any time. We don't know. He is not going to prison. We don't have a sentencing guideline.
Mackenzie Joy: I'm sure if anybody wanted to rile up their voter base, that would be the thing to say. And so I'm sure many did say it.
Sarah: Yeah.
Mackenzie Joy: Do you want to live in this country?
Sarah: I feel like I have Pentecostal preacher cadence in the back of my head: And just the other day, I read news of a man who tried to shoot our president, and he may be out of the slammer in six weeks.
Mackenzie Joy: Absolutely. And we know those guys loved Reagan. So of course that was the word on the street. And then for the record, Hinkley was in essence incarcerated. He was not free to leave the facility, and every bit of freedom that he got back was a court hearing. So if he wanted to be allowed to go to an art therapy thing once a month, it was a whole hearing, and everybody came out of the woodwork and they were like: this guy tried to kill Reagan.
Sarah: And also, from what I remember, because this has been such a long story, but that sometime in the past 10 years, he was whatever the equivalent of parole is, and of course that was a huge story.
Mackenzie Joy: Yep.
Sarah: And the terms of his release meant that he had to stay a certain distance away from any ex-presidents. Which is funny, but then you think about the fact that he was in the custody of his mother who lived in Virginia, and you're like: there have to be a lot of presidents around actually.
Mackenzie Joy: You're absolutely right. And it actually was an issue because his mom was in like a pseudo-retirement community, if memory serves, and it abutted with a golf course, and who loves to golf? Former presidents love to golf.
So there actually was a question of oh god dammit, how do we make this work? But he was released in 2022, I want to say, and a lot of people pitched a fit about it, but he was in inpatient, essentially incarcerated for 35 years. And the fact that he now has comments turned off on his YouTube channel, but he didn't for a long while. And the fact that he fielded what I'm sure he got in the comment section and didn't lose his mind, to me is pretty good evidence that he is stabilized.
Sarah: Yeah. And also this gets into the question of, as you were saying, what is the purpose of incarceration?
Mackenzie Joy: Yeah.
Sarah: Or what's the purpose of institutionalization, in this case?
And I think that if we're going to pretend to be the country that we like pretending to be, and to have the values that we like to pretend to have, we have to at least go along with the claim that we do want people to heal if they possibly can. Do we want someone to be able to live a nice life when they're no longer a threat?
Or can that only happen when they have repaid their debt to society? And if so, how do they do it? And who is society? And is it only repaid when every single person thinks that they've suffered enough? Because it can't be that. Because there's always going to be someone somewhere who thinks it's not enough.
Mackenzie Joy: And those people are motivated by, I would say, non-utilitarian motives and things that we wouldn't want ruling our sentencing.
Sarah: Yeah. This all comes down to what we imagine government to be for, which I realize there's a lot of difference of opinion on that, but I feel like to me, this gets into the area of as cynical as I believe myself to have become, I'm really not; I'm really just a cockeyed optimist underneath.
Mackenzie Joy: Me too.
Sarah: Right? And that's a great thing to be, and I do believe that just because we know partly from being students of history that there are times when this can happen and has happened.
Mackenzie Joy: Yeah.
Sarah: That the law can, not just try and prevent things from happening, or try and contain people who pose a threat to themselves or others.
Mackenzie Joy: Yeah.
Sarah: That the law is not just an instrument of control, but can also, we can use it to try and conceptualize…
Mackenzie Joy: Better things.
Sarah: Yeah. And how to how to facilitate people potentially becoming who they can be rather than who they've been forced to become. And that you can't expect it to work all the time or even a lot of the time, but that the potential to bring out what people are capable of in the best way is also worth trying to enshrine.
Mackenzie Joy: Those are beautiful points, and I really think it's the only way to be if we want to move forward at all, because fear just rots your brain.
Sarah: Yeah.
Mackenzie Joy: Literally.
Sarah: I could do this all day and someday soon we will.
Where can people enjoy some of your work? And also since we're putting this out in August, what's a flavor of August that you recommend?
Mackenzie Joy: Find me. I'm at @mkzjoybrennan on most of the social media. I'm mostly on Instagram, and I also have a website that's mkzjoybrennan.com. And a flavor of August. See, you're asking somebody – I’m autism spectrum, and I eat about three things, so…
Sarah: What are your three things?
Mackenzie Joy: I just found these great frozen yogurt, mint chocolate chip ice cream pop things.
Sarah: Nice
Mackenzie Joy: And I ate three of them yesterday, so, I’m sure that I'll keep up until August because I'm a creature of habit.
Sarah: Some people need to be reminded of ice cream.
Mackenzie Joy: Does that answer the question or did you mean it in a fun, esoteric way and I went for ice cream?
Sarah: No I mean it however you want. I've been talking up sweet corn.
Mackenzie Joy: Okay, perfect.
Sarah: Corn is so present that it's easy to forget that you can just add a little corn.
Mackenzie Joy: Add a little corn to your life.
Sarah: Add a little corn to your life. I made ramen today, and I threw in a bunch of sweet corn
Mackenzie Joy: You’re crazy.
Sarah: My God, is that good. I am crazy.
Mackenzie Joy: Summer girls.
Sarah: I'll go to a movie on a weekday. I'm crazy.
Mackenzie Joy: Oh, man. Got to get out of here. Execution.
Sarah: That was beautiful.
Mackenzie Joy: Thank you so much. This is great.
Sarah: I’ll see you for a bonus shortly. And I can’t wait.
Mackenzie Joy: Oh heck yeah.
Sarah: And that is our episode. Thank you so much for listening, and thank you of course, to our guest, Mackenzie Joy Brennan. You can find her at @mkzjoybrennan on the social media network of your choice, and her website is mkzjoybrennan.com.
Thank you to Miranda Zickler for editing and producing. Thank you to Carolyn Kendrick for editing and producing.
We’ll see you next time.