A Bit of Perspective with Chism Sentencing on the Horizon

Now that the Philip Chism verdicts in the horrific 2013 rape and murder of Danvers, MA high school teacher Colleen Ritzer are in, I'm being asked to share my related thoughts beyond those I already mentioned live on FOX25 as the jury's decision was being announced (guilty Murder 1, guilty aggravated rape, guilty armed robbery; not guilty aggravated rape). Even as a former homicide prosecutor, and now long-time defense attorney who routinely defends Murder 1 charges, my first thought is I cannot imagine the intense pain, heartbreak, and profound feeling of loss the Ritzer family surely continues to experience in the wake of this terrible crime. Second, I cannot imagine the feelings of Phillip Chism's single mother, knowing her teenage son has been adjudged responsible for such incomprehensible acts and is now almost certain to spend at least the next 15 years, and likely more, of his life "behind bars." Both families will never be the same, and both families will forever be inexorably linked through what they have each lost.

As far as the trial itself is concerned, my main take-away is that these particular verdicts once again show how incredibly difficult it is to obtain not guilty verdicts in insanity cases (NGRI), even here in Massachusetts, where insanity is called "lack of criminal responsibility" and where the backdrop is slightly more favorable in light of the expanded two-pronged definition of insanity and the burden of proving that the defendant is sane resting with the prosecution. To be sure, the Commonwealth (the prosecution) did its job well and used extremely powerful evidence to its advantage, including video surveillance from newly installed hall cameras, and well-articulated findings by the two forensic psychiatric witnesses it called to establish the defendant's sanity.

In my opinion, video surveillance of Chism's movements and actions before and after the alleged rape and murder in the girl's bathroom, as well as other competent evidence regarding the same, were likely extremely helpful in convincing the jury to unanimously find that any mental disease or defect, to the extent he was suffering from one at the time of the offense conduct, was not such that he was unable to differentiate/appreciate the difference between right or wrong. This is especially likely given the captured images of him stealthily stalking his victim at a measured distance, covering his face, looking up and down the corridors as he entered, and then exited, the bathroom while wheeling a convertible trash-bin; combined with evidence of him donning gloves, diverting inquiries from a curious classmate, changing his clothing, removing the body and then covering it with leaves where he ultimately left it. All of this likely established for the jury that Chism not only knew what he was doing, but knew that what he was doing was wrong.

Moreover, testimony from the two prosecution expert witnesses opining that a.) even if Chism was dealing with some degree of mental infirmity, he nonetheless knew what he was doing and b.) he could well be faking/exaggerating ("malingering") his symptoms, not only demonstrated that the Commonwealth understood the controlling insanity standard, but also effectively bolstered their underlying contention about his state of mind. When factored with the incredibly gruesome details of the crime and the alleged defiling of the victim's body—-in most insanity cases the defendant's greatest obstacle is usually the horrific nature of the crime charged—the jury's unanimous finding that the Commonwealth had met its twin burden of establishing Chism's guilt beyond a reasonable doubt (on theories of both deliberate premeditation and extreme atrocity and cruelty regarding the Murder 1 count), and that the defendant was "sane" at the time the crimes were committed, was not surprising. Still, one is left to wonder when it comes to handicapping the success of prospective insanity claims, if not a 16 year old (albeit "man child" given his height and hulking stature) who was just 14 at the time of the offense conduct, then who?

My second take-away was how discerning the jury was, given the facts. Once they determined the Commonwealth had proven Chism sane, they could easily have returned "across the board" guilty verdicts as a way of "voicing" their revulsion for each alleged crime committed. They could also have taken the position that because his insanity claim implicitly admitted he committed the crimes—a big problem in most in insanity cases given that the prosecution starts out with one-half of its burden already met—they didn't need to go on and make sure each and every element of all the crimes charged had, in fact, been proven beyond a reasonable doubt. The question they asked about the alleged 2nd rape of Ms. Ritzer in the woods, along with their subsequent verdict of "not guilty" on that count, showed they did just that. The question of whether or not one can be found guilty of raping a deceased victim is both unpleasant and difficult for juries to consider. The answer—as Judge Lowy appropriately instructed—is one can't; unless that is, the rape and murder constitute one continuous series of acts. That the jury clearly took their time on this and at least one juror obviously struggled with it (enough to ask the judge for clarification) showed me the jury took its role extremely seriously and deliberated without passion or emotion. Having found him sane and responsible on the other three charges, they could easily have dropped a fourth guilty on him as a final "statement" and been on their way. Instead, they apparently stayed longer, struggled harder, and delivered a unanimous verdict that revealed a collective and individual conscience. Good for them!

My third take-away regards the insanity presentation by the defense. Yes, it's always easy to second guess, and Chism's team did a commendable job against a very difficult and inflammatory backdrop. Still, I couldn't help but feel their expert witness was a little too vague, general, and non-committal in terms of his diagnoses to make a particularly compelling case for insanity. (I was also surprised to hear the relatively short amount of time he actually spent with "his" patient). Yes, it's true that in Massachusetts the defense merely needs to put the defendant's mental state at the time of the offense conduct at issue; it's then up to the prosecution to rebut/prove otherwise. But still, given the horrific facts of this case, I expected more from so important a defense witness. Moreover, as someone who has handled his fair share of insanity cases, I often wonder why the second prong of our criminal responsibility analysis: ...whether the defendant was unable to conform his behavior to the dictates of the law (the modified Durham "irresistible impulse test") is so often ignored by expert defense witnesses.

To me—again at the "10,000 foot level," the Commonwealth's physical evidence was all but tailored to the argument that Chism's actions before and after the crime established he was able to differentiate/appreciate the difference between right and wrong. For that reason, I would have spent more time and effort on presenting medical and scientific evidence regarding what we know about the formation of the human brain, e.g., it is not fully developed until the age of 25—sometimes later. Moreover, it develops more slowly in adolescent males than adolescent girls; adolescent males often struggle with impulse control. I would then have tried to place all that in the context of a 14 years old, lonely, isolated, transplanted boy who, once impulsively fixated on an inexplicable plan, had no inner constraint(s) to stop himself from executing it. Again, it's easy for me to say this, and obviously the defense led with what they believed was their "best foot." Still, it does prompt me to wonder.

My last take-away goes back to my first. If not Philip Chism, then who? The reality is successful insanity defenses are few and far between no matter where they are presented. As I've stated, the crimes are often too gruesome, juries (no matter what they say during voir dire) are often too skeptical, too much of the core allegations are essentially admitted, and juries are too unwilling to "risk getting it wrong" or to allow for the possibility of a mentally ill person later being released back into society after treatment, for insanity defenses to have high success rates. Still, mental health issues are real and often are determinative in these cases. I believe firmly that persons whose criminal conduct is dictated by a substantial mental disease or defect should not be held responsible for their crimes. Moreover, it's not true there have not been successful insanity defenses in Massachusetts; there have been. Two come to mind. Commonwealth v. Angela Vazquez, a 2009 case where a mother was found lying next to one of her decomposing children, both of whom she was found to have killed (although the means of death remained unknown), and Commonwealth v. Li Rong Zhang, a 2013 case where a mother, with an extensive psychiatric history, asphyxiated her child by lighting a charcoal grill inside her apartment, while simultaneously trying to kill herself. While I doubt these verdicts suggest mothers who kill their own children have a better chance of prevailing, they might establish that many jurors own experiences as parents is such that some believe that a mother killing her own child is one of the rare instances where evidence of insanity is viscerally apparent.

And the fate of Mr. Chism? That will be decided when Judge Lowy announces his sentence on January 29. Although Chism, who will be sentenced to life in prison, could potentially be eligible for parole at the low end of the applicable parole range of 15 years (under laws in effect in 2013 for juveniles convicted of Murder 1), I think it’s far more likely judge Lowy will start his sentencing at the high end of 25 years of the then-existing parole range given the nature of the offense conduct, as well the other charges for which he also stands convicted. (Were he sentenced under current parole eligibility guidelines in MA for juveniles convicted of Murder 1 on the theory of extreme atrocity and cruelty, he wouldn’t be parole eligible until he has served 30 years.) The wild card remains how his overall sentence will be further affected by those “other charges” which not only carry up to life in prison, but can be imposed consecutively. It's also likely his automatic appeal to the Massachusetts Supreme Judicial Court will include challenges to the Judge's denial of a motion to change venue, the Judge's finding he was competent to stand trial, and the perceived inadequacy of standard instruction(s) given to the jury regarding lack of criminal responsibility. However, these last are topics for another day/discussion.