Only once have I had to take the witness stand to plead the Fifth Amendment privilege against self-incrimination, and that was after I felt compelled to betray a client on death row. You see, I came into the possession of plans for a violent escape from the Northern Correctional Institution in Somers.
If the plan had worked, confederates of my client would have stormed the wooded perimeter of the facility, shot to death some guards and spirited my client away to freedom. I had unwittingly become part of the plan, a conduit for potentially deadly information.
I consulted a series of lawyers about what to do. Opinions ranged from destroying the plans to hiding them out of state to doing nothing at all. I opted to provide the plans to the commissioner of the state Department of Correction, in a rare Sunday afternoon meeting in my office. I refused to say a word about what they were or how I acquired the plans.
I then asked the court for permission to withdraw as counsel from my client’s case. Needless to say, we had a conflict. The state opposed my motion, seeing it as yet another delaying tactic. I was placed on the witness stand to explain why I needed to withdraw. Rather than answer the questions, I pleaded the Fifth. My motion to withdraw was granted.
Criminal defense lawyers defend those accused of crimes. We operate under what I call the Jimmy Hoffa Rule, meaning we can with good conscience defend against accusations for any and all acts that occur before we meet a client. Thus, you can retain me, tell me you killed Jimmy Hoffa, the former Teamsters president who went missing in 1975, and even tell me where you stashed his body. Your secrets are my secrets, and my job is to defend you, whether you actually did the dirty deed or not.
But if you come to me and ask for help in killing Hoffa, or in moving his hidden body, a line is crossed, a line that makes me a participant and potential co-defendant, rather than your lawyer.
I am reminded of all this as I follow the news coverage about Richard Matt and David Sweat, the two men who escaped earlier this month from an upstate New York prison. Candidly, I am rooting for them to make good their flight, just as I would have rooted for my client on death row had I not stumbled into the plan.
But how can you root for convicted killers?, I can hear you gasp.
The answer won’t satisfy everyone, but it suffices for me: No one is the sum of their worst moments. Some part of me is drawn every time to the side of those we condemn to lives of despair.
I realize that Matt and Sweat were convicted of horrible crimes. Sweat, 35, is sentenced to life without possibility of parole for killing a lawman; Matt, 48, is sentenced to an indeterminate term of 25 years to life for the gruesome killing of a former boss. These crimes place these men beyond the pale, just as did my death row client’s rape/murder of a bank executive.
But horrible though these crimes were, they were isolated acts. The sentences we impose on those convicted of a crime linger decade after decade, a form of existential torture that dwarfs the harm done by the killers.
Few readers of this column will have experience with prisoners condemned to decades, or a lifetime, behind bars. We come to know the condemned only by their crimes. Thus, Matt and Sweat are “murderers,” and nothing more. I watch with amusement as breathless newscasters report over and over again about the search for the “convicted killers.” Imprisonment makes the imprisoned into mere caricatures, shadowy images cast on a wall and illuminated by our fear.
I’ve made friends of several men and women serving life sentences. As the decades pass, I watch hope recede, and despair settle in. Long past the time these individuals posed threats to society, they are warehoused, forgotten and left to fend for themselves with minimal decency in penal colonies. Were any of them to escape, I’d be rooting for them to outrun the lawmen’s noose.
Thomas Hobbes, the 17th-century British philosopher, wrote “The Leviathan” to provide an explanation of how the state acquired its power. In a stateless world, life is “nasty, poor, solitary, brutish and short.” We are in war of all against all, each free to do whatever we think we must to survive. We enter civil society, and create a state, to provide for our mutual security.
One consequence of this social contract is that we surrender our right to use force against one another to the state. But there is a limit, Hobbes, the great authoritarian, noted: When the sovereign seeks to kill us, the contract is broken. We are free to strike back, lethally if necessary, to preserve our own lives.
I imagine that this is just how Matt and Sweat see themselves now — at war with a world, with a society, that has placed them among the living dead, consigning them to a warehouse of despair from which they are expected never to return. Why, candidly, ought they passively endure such treatment?
As a lawyer, I’ve sworn an oath to uphold the law. I cannot participate in unlawful conduct; I cannot advise the criminal on how best to avoid detection; I cannot assist the escapee. So I don’t.
But that does not prevent me in the still hours of an early morning from scanning news reports about the search for these men and taking satisfaction that they are still at large. Somehow, their desperate flight and determined efforts to avoid capture are a source of something approaching inspiration.
No one is the sum of their worst moments, and be damned a world that seeks to chain us to our darkest deeds.
I will always be bothered by the case of State v. Gregg Madigosky. The former Southbury resident was convicted in 2006 of the 2003 murder his wife. A psychiatrist testified that he was out of his mind at the time he killed her. Jurors rejected the psychiatric testimony. He was sentenced to 50 years behind bars.
The psychiatrist who examined Mr. Madigosky after the killing later testified that Mr. Madigosky represented a “perfect storm” of mental illness. His psychosis made it impossible for him to understand what he was doing.
Here is what is so troubling about the case. Mr. Madigosky was examined by a forensic psychiatrist hired by the defense. The doctor reviewed the man’s medical records, his employment records, he interviewed the defendant himself, and took account of the medications he was taking.
After doing all of this, the doctor reached the conclusion Madigosky was psychotic, as in out of touch with reality, the orderly world most of us wander through most of the time. The doctor wrote a report about his findings, as is customary in such cases. The defense gave the report to the state.
It takes a long time to become a psychiatrist. One first acquires an undergraduate degree, typically taking four years to do so. Then comes medical school, another four years. Then four more years of post-medical school training. After that, should one want to do specialized work in the courts, there might be a fellowship in forensic psychiatry of one or more years.
In other words, in order to earn the right to be designated an expert and to offer testimony about another person’s mental state in a courtroom, a person must complete 13 or more years of post-high school education. And let’s not forget the various licensure and board certification exams.
The opinion of a forensic psychiatrist is not mere quackery.
In Mr. Madigosky’s case, the prosecutor treated the forensic psychiatrist as little more than a stooge, however. The state pressed the doctor: Wasn’t Mr. Madigosky able to drive a car after the murder? Wasn’t he able to take his infant daughter to his parents’ house after the murder? Wasn’t he able to answer police questions hours after the murder?
If the defendant could do all this, isn’t it true, doctor, that the man was in touch with reality?
The doctor disagreed.
Juries are free to accept or to reject the testimony of an expert, however. Judges tell jurors that at the end of each trial. Experts, jurors are told, are people who because of their education, skills, training and experience know things the rest of us don’t. Experts are free to do something regular witnesses may never do — render opinions on things they observe, things like whether a defendant is in touch with the world of shared perceptions we casually call reality.
A man or woman with 13-plus years of education beyond high school is likely to be an expert in their field.
In Mr. Madigosky’s case, the state ignored the fact than an expert declared the man likely insane.
In most cases, a party in litigation presented with the report of an expert hires an expert of their own. Trials sometimes become battles of experts, with two learned men or women dueling in the glare of trial. Thus, in Mr. Madigsoky’s case, the state would be expected to hire an expert of its own, to conduct what is known as an independent medical examination, or IME for short.
But there is a danger to hiring an expert, if you are a prosecutor. Suppose your expert agrees with the defense expert? Then what? In that case, justice would require agreeing that the defendant was, in fact, insane at the time of the killing. Some prosecutors would prefer not knowing too much truth — that could interfere with getting a guilty verdict.
Better to ignore the truth than suffer an acquittal by reason of insanity, some prosecutors reason. Better to ignore the opinion of a learned expert, some prosecutors believe.
The state never hired an expert to do an IME of Mr. Madigosky. It did not want to know the truth. It wanted a conviction. Shame on the state.
Under Connecticut law, a person is not guilty of a crime if, at the time they committed the act in question, they either could not understand what they were doing was wrong, or were simply unable to control their conduct. The law recognizes even temporary insanity.
A person found not guilty by reason of insanity is not set free. They are sent to the Whiting Forensic Institute in Middletown and placed under the supervision of the Psychiatric Security Review Board, a panel that serves as a warden for the ill, determining whether, when and under what conditions a person might be permitted to live among us.
Mr. Madigosky killed his wife, and the mother of his child. I can imagine few things worse.
But the state’s treatment of Mr. Madigosky represents one of the criminal justice system’s fundamental flaws: We punish the ill, treating illness as though it is a crime. And we brazenly call it justice.
My office has been trying for almost 10 years now to get Mr. Madigosky a new trial. The state ought not to be permitted to pretend that medicine is superstition. At a minimum, the state should be required to have a person declared psychotic by a competent medical professional evaluated by an expert of the state’s choosing. It’s simply medieval to ignore the insights modern science offers on a psyche in distress.
I’ll never know what happened in the Madigosky home one horrible night in 2003. A woman was killed. Why? The killer was insane, a psychiatrist said. The state, however, cared less for the truth than it did for calling Mr. Madigosky a murderer and locking him away forever.
This is not justice. It is worse, in fact, than murder.