Irving Pinsky’s phone has been ringing off the hook. Some callers are wishing him well. But 50 or so folks want him dead, or so they say.
Even his brother and sister lawyers in the Connecticut Trial Lawyers Association have turned their backs on him. The New Haven lawyer has become a pariah because he tried to sue the state on behalf of a client’s minor child, a child who went to school one day and then endured the sounds of the slaughter of classmates and teachers over her school’s public address system.
I confess to surprise when I learned that Pinsky had filed a claim on behalf of a child in Newtown. He went to the Connecticut Claims Commission, and sought $100 million on behalf of the child. It was national news. The anonymous flotsam and jetsam of online comments skewered Pinsky as little more than a shyster: “Whatcha gonna do with one-third of all that dough, Irving?”
Lawyer bashing is a popular sport — until you need one. Then you expect your lawyer to extend his neck on your behalf. Personal injury lawyers typically work on a contingency fee, taking a percentage of what they win as their compensation for taking your case.
What surprised me about the Pinsky claim was that he chose the wrong forum.
The state’s Claims Commission is a very medieval sort of entity. It has the power to grant or to withhold permission from a party to sue the state. Such permission is needed because the state enjoys sovereign immunity. In other words, you cannot sue the state without its permission.
Consider life to be analogous to a board game. You and I are tokens; the rule of law define what moves we can make on life’s board, and what we can do to one another. An immunity removes a token from the board, taking it out of play. Sovereign immunity declares that the state is beyond reach — it cannot be sued.
However, justice sometimes requires that the state submit to suit so that a party can recover damages. The Claims Commission can grant permission to sue the state; the General Assembly can also do so. Thus, Charla Nash’s attempt to get permission to sue the state of Connecticut after being mauled by her friend’s chimpanzee, Travis, in 2009.
To gain permission to sue the state, you still need a decent theory of liability. In other words, you need some legal doctrine that could hold the state at fault, if only it could be sued.
In the Newtown case, there simply is no such theory. Pinsky maintains the state failed to provide a safe environment. That’s a threadbare claim. In fact, civil rights lawyers know a sad fact — the state does not have a general duty to protect its citizens. Put another way, the state, unlike a private entity, say McDonald’s, cannot be sued simply because someone is injured on the state’s premises.
But here’s the rub, the thing Pinsky missed in the Newtown case: The school is not a state entity; it is a municipal entity. As paradoxical as it sounds, municipalities do not enjoy broad sovereign immunity. You can sue a municipality without permission of the Claims Commission — you can go right to court. (I realize this sounds horribly, perhaps even maddeningly, complex, but such is the law.)
To prevail in a claim against a town, you need to prove that as a result of some act or omission, the town exposed an identifiable person to the foreseeable risk of harm. This thorny legal doctrine took shape in Connecticut in 1982, in a case involving a person killed by a drunken driver. A police officer stopped a drunken driver and permitted the driver to go about his way. Shortly thereafter, the driver killed another motorist in an accident. The estate of the dead person filed suit: If the police officer had arrested the drunken driver, there would have been no accident. Hence, both the town — Stonington — and the officer should be liable for negligence.
Our Supreme Court thought otherwise, ruling that neither the officer nor the town owed a duty of care to the driver eventually killed. In order to have such a duty, there must be a foreseeable party facing imminent, or near, risk of harm. The dead driver was not an identifiable victim when the drunken driver was set free, the court concluded. It is a hard result, but it is the law.
Pinsky’s client may well have a claim against the Newtown schools. As I understand it, a student was sitting in a classroom when horrible events were broadcast over the school’s public address system. Clearly, the school owed a duty of care to the student. Just as clearly, the school exposed the children to sounds too terrifying to imagine. Those sounds surely caused trauma and harm.
Is this a legally viable claim? Fortunately, there is no case like it in state law. It is, as lawyers sometimes say, an unsettled — and the rest of us might say, an unsettling — question.
Pinsky is guilty of grandstanding. Claiming he wanted $100 million in damages was the foolish sort of thing lawyers seeking headlines engage in far too often. Juries decide damages. Telegraphing a jaw-dropping sum serves no point.
But the legal issue Pinsky raised is potentially significant, a fact the Connecticut Trial Lawyers Association ignored when it blasted Pinsky in a press release for being insensitive in the timing of his suit.
The trial lawyer’s club is typically on the front line of claims for money damages, and it defends its prerogative to seek them on behalf of clients with broad appeals to justice and accountability. Did it attack Pinsky merely because he was artless in raising this claim?
Pinsky withdrew his claim almost immediately, but the legal issues arising from the Newtown killings will reverberate in the courts for years to come. Pinsky merely had the misfortune to get there first, picking the wrong forum, at the wrong time.
Reprinted courtesy of the Journal Register Co.
Not by a long shot. Although we are on the cusp of a potentially transforming understanding of the relationship between minds and bodies, we’re hardly better off than we were in Plato’s day when it comes to understanding what makes the human psyche tick.
It all starts with the mysterious relationship between minds and bodies. We’ve decoded the genome, the sum of our genetic parts. Today, scientists are busily decoding the genetic structure of Adam Lanza. Will a quirky mutation, or an unusual sequence in genes, explain why he snapped and killed 27 people, including 20 children, in Newtown? Is there a mass murderer gene?
I doubt it, and, even if there were, finding it would prove a useless tool.
Put in its simplest turns, we don’t know how to cross the great chasm between biological structure and function, and human volition. Study my brain all you like. Map its contours, watch each neuron fire its seemingly infinite set of impulses across the billions of synapses that make me who I am. Do all that and you will still not capture my mind, my sense of self, and the desires, habits, indeed, the very will that define me. Philosophy, and its weaker cousin, the law, are still trapped in a crippling sense of dualism: even if you believe that matter is all there is, you still cannot give a complete account of mind.
Historians of science speak of paradigm shifts, great changes in the very manner in which we conceive the nature of reality. The next great paradigm shift will go the Galileo, the Newtown, the Einstein, who will better conceive, better explain, how brains create minds. We’re not there yet. We’re not even close. Consider the chemistry of a mood: what equation defines the comfort I experience when I hear my wife’s familiar footfall on the stairs in the morning? Try as we might, we can only understand the moment that has passed; the future always looks as though it is something we can choose. We’re still debating free-will versus determinism, although science suggests things aren’t really that simple.
This is especially true where law and mental health intersect.
The truth is the law is a dismal failure when it comes to mental health. It gets most extreme cases right, but fails at almost everything else. Consider the following: You can be competent to face criminal prosecution but legally insane. It’s all a matter of what standards you apply.
A person is competent to stand trial so long as they understand the nature of the charges against them and can assist, however ineptly, in their own defense. My office recently made a competency motion in the case of a client whose behavior was patently self-destructive. The client’s examination rated him competent: He knew our names. He knew what the role of the various players were in the criminal proceeding. He knew what the accusations against him alleged. He was more than a potted plant.
But is he sane? The law distinguishes between cognitive and behavioral insanity. You are cognitively insane if you don’t have any idea what you are doing. The object you stab with a knife is not, as you suspect, a bag of potatoes -- it is your next door neighbor. Hallucinations typify cognitive insanity.
The behavioral variant of insanity is more nuanced. You are insane if you simply cannot control your conduct to conform to the requirements of law. It’s more than a mere lack of self-control, although just how much more is hard to say. Judges and juries almost never find folks not guilty by reason of insanity on this ground. After all, don’t we all lose control from time to time? Who hasn’t said: “The devil made me do it”?
A person can be competent to stand trial but helpless to control his conduct to the requirements of the law -- you can be competent but insane, as crazy as that sounds.
But insanity and competency are the easy cases, I say. The courts are filled each day with defendants. Few are incompetent, and almost no one is deemed insane. But many of the folks facing charges have committed acts of violence against themselves, in the form of narcotics addiction; violence against others in the form of murder, assault and rape; or transgressions against property. Not many of these folks engage in the cool cost-benefit analysis of rational actors bargaining in the law’s shadows. Most, I suspect, labor under character disorders of one sort or another, some are merely depressed, others are warped by narcissism, sociopathy, or borderline disorders. The American Psychiatric Association periodically publishes a manual of all the ways a person can be mentally ill. It’s a daunting array.
The law fails utterly to account for personality disorders. They almost never amount to a defense; they are at best mitigating factors at sentencing, unless the crime is shocking enough, in which case revulsion and anger eliminate the psychiatrist’s subtle distinctions.
Expecting the law to identify those about to snap is a pipe dream. There is no such thing as prophylactic criminal justice. In most cases, most of the time, the law refuses to address the mental health needs of those charged with crimes, preferring the comfortable, if quaint, assumption that we’re all rational actors making intelligent decisions about our life’s course.
The chilling truth about the criminal law is that any one of us is capable of crime. Freud knew this. In his Civilization and Its Discontents, written a century ago, he wrote of the dark, aggressive instincts that fuel us all in ways we scarcely care to admit. The hard and unforgiving work of civilization channels, or sublimates, these instincts to public use. But anyone can fail; indeed, most of us do in small, forgivable ways all the time.
We are fascinated with evil not because it is foreign, but because it defines us, each and everyone. All the mental health services in the world will not eliminate crime, and it will not drive evil from the world. We have seen the devil, and he us, each of us.
Reprinted courtesy of the Journal Register Company