Would It Be Crazy To Prosecute Hinckley?

When the medical examiner announced that the death of Ronald Reagan’s press secretary, James Brady, 73, was a homicide, he opened a national wound.  He was shot in 1981, 33 years ago, by John Hinckley, who was trying to assassinate Reagan to impress actress Jodie Foster.

Hinckley was tried for attempted murder and found not guilty by reason of insanity.  But that was attempted murder. Now that the medical examiner has concluded that Brady’s death was homicide, a new crime exists, and raises the question of whether Hinckley should be tried for it.  In the interim, Hinckley’s sanity has improved.

Hinckley, 59, has been confined to St. Elizabeths Hospital in Washington and has received psychiatric treatment since his acquittal in 1982. Since 1999, he has been allowed outside the facility, with his unsupervised visits to his mother’s home in Williamsburg, Va., gradually expanded to 17 days.

The legal question of whether Hinckley can be convicted of murder is tricky.  Eugene Volokh does an interesting analysis for the legal issues/stumbling blocks to conviction.

Had Hinckley been convicted of the attempted murder, or acquitted of the attempt, he might be vulnerable to indictment for murder.  There is no double jeopardy for an offense for which he was neither accused nor tried, even though he was tried for a lesser included offense stemming from the same “transaction.”   As murder is a different offense than attempted murder, he has never been put at risk of a murder conviction. No jeopardy attached.

But Hinckley was neither convicted nor acquitted; he was found not guilty by reason of insanity.  Eugene contends that this rare finding precludes conviction for murder:

The jury determined by a valid and final judgment that Hinckley was insane, and thus couldn’t be liable for attempted murder. This judgment is binding on the government, and since the insanity defense applies the same way for murder as for attempted murder, it means that Hinckley would now be conclusively presumed to have been insane for purposes of any murder prosecution as well. He would have an ironclad defense to the murder charge, and thus any case against him couldn’t proceed. For a similar case, see United States v. Oppenheimer (1916), though there the defense was the statute of limitations rather than insanity.

This appears to be the correct outcome, but then, that doesn’t suffice to answer the question.  First, correct outcomes aren’t necessarily the outcomes produced by the criminal justice system. Second, that the law suggests Hinckley has a solid defense doesn’t preclude the government from indicting him and trying to prosecute him for murder.

For many, this makes no sense. If the law says he can’t be convicted, then how is it possible that he be charged and prosecuted?  And how is it possible that he could, conceivably, be convicted despite the law?  Welcome to trenches, things often work in ways that sanitary and sound legal analysis says they shouldn’t.

Eugene’s analysis applies to the back end, to conviction, rather than prosecution. They can charge anybody with anything. What becomes of it afterward is up to a judge.  With shocking normalcy, people have arguments, defenses, challenges, to either substance or process that should, in a perfect legal world, prevail.  After hearing it, the judge says “meh” and the case goes to the jury.  The defendant can argue it again a few years later when it comes before an appellate court, and may well win. Or may not, if the appellate court says “meh” too.

But there are larger, more preliminary questions that the legal analysis of outcome.  The first is the ME’s finding of homicide.

“But if it is accurate, it doesn’t come as any surprise to any of us,” [Gail Hoffman, a spokesperson for the Brady family] said. “Jim Brady suffered immensely after being shot. It’s just a fact.”

And no doubt that’s true, but it’s not the relevant inquiry.  Certainly, being shot by Hinckley caused suffering that followed Jim Brady throughout the rest of his life.  No doubt that the bullet, and the consequences of the bullet, affected every day of his life, and to his death.  But was the shot in 1981 the proximate cause of death in 2014?

That’s a huge stretch. People die, whether they were shot or not. Jim Brady lived for another 33 years, and during that time endured that same factors that happen to the rest of us. He was, perhaps, more vulnerable to factors that affected his health than others because he was shot, but that isn’t proximate cause.

But the homicide finding also serves to inflame the prosecutorial machinery.  We have a man who has died from the bullet of a known assassin, who became an icon for gun control.  For a prosecutor, this is like dangling red meat in his face, and failure to prosecute will enrage a portion of society who demands “justice” for Jim Brady.

For the prosecutor, failure to prosecute exposes him to criticism.  As he’s got all the details needed to go for indictment, let a judge toss the case so that the criticism will be heaped on the law, not the prosecutor.  The prosecutor can do his job, try to make a killer pay and appease those who demand that Hinckley finally be convicted of his crime, and if the law gets in the way, then “the law is a ass.”  But the prosecutor isn’t.

Yet this would be wrong on every level.  Politically, the attempted assassination of Ronald Reagan is a matter of history now, and the nation has moved well beyond it.  To reopen this would serve no purpose. It won’t bring Jim Brady back to life, to health.  It won’t protect society from the likes of John Hinckley, whose act was borne of mental illness, not some amorphous evil that must be crushed.  And it serves only to bring the law into further disrepute, regardless of whether the case proceeds or is snuffed out based on collateral estoppel of the insanity finding.

Either way, people will believe that the fix was in, the law either manipulated through technicality, or incapable of serving society, based upon which flavor of “justice” people prefer.  The nuanced rationale for dismissing a murder charge will challenge most people’s reasoning, and there will be cries to “fix” the law, because few really care much that a person is crazy when they commit an act of violence.  We’ve grown simple, that any harm that happens demands a criminal to punish.

The shooting of Jim Brady happened a long time ago. John Hinckley is no one deserving of any particular sympathy, but also not deserving of hatred for suffering from mental illness.  The issue of gun control will flare up in the midst of any discussion of what should become of this case, even though much has changed since 1981.

And as sad as it may be that Jim Brady took a bullet meant for Ronald Reagan, the last 33 years of his life shouldn’t be reduced to a doomed legal battle that helps no one.  The nation dealt with this shooting long ago.  Let Jim Brady rest in peace, and let John Hinckley heal as best he can.  The rest of us have enough current problems to address that we don’t need to dredge up ancient history to engage in that old street fight yet again.

16 thoughts on “Would It Be Crazy To Prosecute Hinckley?

    1. SHG Post author

      So you didn’t read Eugene’s post, which explain that the common law “year and day” rule has long since been altered by statute in most jurisdictions? Common law rules aren’t repealed, as only statutes are repealed, but the criminal common law has essentially been completely replaced by statutory law.

    2. Dan

      I was wondering the same thing. What you describe is the old common-law rule, which can be adjusted by statute from state to state (in California, for example, it’s three years and a day). But I’d still think we’re well outside any rational window on that.

      1. SHG Post author

        “Rational window”? Is that near the picture window in the living room? We’re talking law. There’s nothing rational involved.

  1. art

    Is the finding of insanity a “final judgement” in the sense of once judged insane always insane? We have many examples of people being restored to sanity. Maybe a tumor was applying pressure to the brain an it is removed, or a medication and therapy work, etc. According to his doctors Hinckly is c;early “better” since he is allowed to go out into society. If he commits a murder while on furlough, does he now have a permanent “get out of jail free” card where he can only be sent back to his hospital? There is very little precedent in this area and I think that an ambitious prosecutor looking for national name recognition has a fair chance of arguing that the finding of insanity only applied to “that time” and since Brady’s death happened “now” that the issue of Hinckly’s sanity today is open.

    1. SHG Post author

      A finding is a determination of fact. A “final judgment” is entirely different.

      The jury found, as a matter of fact, that he was insane at the time he committed the act, as that is a required finding to return a verdict of not guilty by reason of insanity. That he may be better afterward is irrelevant to how he was at the time, and the mental state that matters is what existed at the time he committed that act.

      The finding only applies to this act. It does not apply to anything else he does.

      1. JimBill

        IANAL but I’m wondering if there is some confusion on the ideas of “not guilty by reason of insanity” and the inabilty to defend oneself or help council. I know some defendants are found unable to defend themselves at the time of trial but eventually overcome whatever there problem was. Whereas a defendant found insane at the time of the crime may be perfectly sane at the time of trial even though he may never be convicted.

  2. John Barleycorn

    More important Stuff to do “addressing current” (current, really???) problems?

    It takes a lot of effort to prevent the further disrepute of sanitary legal analysis esteemed one.

    P.S. I don’t know why but this post brought up memories of John Bayard Anderson. I wonder if Jim Brady voted for him? Ancient history is never meh esteemed one.

  3. John

    You write: “After hearing it, the judge says “meh” and the case goes to the jury. The defendant can argue it again a few years later when it comes before an appellate court, and may well win. Or may not, if the appellate court says “meh” too.”

    Actually, denial of a motion to dismiss for double jeopardy is a collateral order that can be appealed immediately.

    1. SHG Post author

      I stand corrected:

      Although it is true that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds lacks the finality traditionally considered indispensable to appellate review, we conclude that such orders fall within the “small class of cases” that Cohen [v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949)] has placed beyond the confines of the final-judgment rule.

      Abney v. United States, 431 U.S. 651, 659 (1977).

    1. SHG Post author

      Not at all. I’ve never promoted the idea of anyone being harmed, and I’m appalled that’s where your mind went.

  4. UltravioletAdmin

    It serves no purpose when he’s already spent effectively a life sentence in prison. Heck in most countries he’s served two effective life sentences.

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