(Photo by JIM WATSON/AFP/Getty Images)
Every diminished capacity criminal defense sounds crazy and dangerous when people first hear it. Congressman Daniel Sickles once gunned down Francis Scott Key’s son, Phillip Key, in broad daylight, across the street from the White House. He was acquitted claiming “temporary insanity,” a defense never successfully tried before, because Key and his wife were having an affair. More recently, PTSD as a criminal defense was once mocked, then there was hand-wringing about “abuse” of the classification, and it’s now a widely accepted diminished capacity defense.
Not all diminished capacity defenses gain such acceptance. Dan White was convicted of voluntary manslaughter after he assassinated Harvey Milk and San Francisco Mayor George Moscone, despite arguing depression and offering his consumption of Twinkies as evidence of his depression. David Berkowitz, the “Son of Sam,” argued that a dog told him to kill the eight people in the summer of 1976. He later recanted his dog story, admitting that he was just trying to get an insanity plea going.
Ultimately, I think the new Trump Defense needs to end up in the latter dustbin. “MAGA bomber” Cesar Sayoc argued that his pipe-bombing terrorism was because of messages he received from watching Fox News and listening to Donald Trump. That mitigation was rejected, and Sayoc was sentenced to 20 years. Now, Curt Brockway, who was arrested and charged for assaulting a 13-year-old and breaking his skull because the kid didn’t remove his hat during the National Anthem, is arguing that Trump’s rhetoric contributed to the assault. From CBS:
The president’s “rhetoric” contributed to Curt Brockway’s disposition when he grabbed the boy by the throat and slammed him to the ground, fracturing his skull, at the Mineral County fairgrounds Saturday, attorney Lance Jasper told The Missoulian…
“His commander in chief is telling people that if they kneel, they should be fired, or if they burn a flag, they should be punished,” Jasper said. “He certainly didn’t understand it was a crime.”…
“Trump never necessarily says go hurt somebody, but the message is absolutely clear,” Jasper said. “I am certain of the fact that (Brockway) was doing what he believed he was told to do, essentially, by the president. … Everyone should learn to dial it down a little bit, from the president to Mineral County.”
This is a bad argument. To the extent that we think Trump’s rhetoric had something to do with Brockway’s attack (and I believe it does), then the right answer is to change the standards so we can charge Donald Trump with incitement (though there are problems with that). Supporting a violent president is not mitigation for carrying out violent acts.
BUT… Brockway’s attorney is not wrong. Almost every day, and certainly at every rally, Donald Trump exhorts his followers to violence. As Michael Cohen said in open Congressional testimony, the president “speaks in code.” You’re supposed to know what he wants done, without him directly telling you to do it. And there are more than enough weak-minded sycophants (like Cohen, actually) to carry out his wink-and-nod orders. I do believe that Brockway was doing what he believed he was told to do. “Trump Derangement Syndrome” is not a thing on the left. But on the right, you absolutely see violent individuals who believe that their violence is justified and welcomed by the President of the United States.
What makes a diminished capacity defense stick, however, is not whether the criminal believed he was justified. What makes it stick is whether the criminal could no longer distinguish “right from wrong.” Brockway knew that assaulting a 13-year-old was wrong. The MAGA bomber knew that BOMBING PEOPLE was wrong. The El Paso shooter knew that shooting people was wrong. They just also believed that their wrong actions were justified, based on everything that Donald Trump says. That’s why their crimes cannot be mitigated, despite the president’s rhetoric.
Trump hasn’t (yet) managed to change the legal or moral boundaries of acceptable behavior. He just makes illegal and immoral behaviors feel normal. That’s not a criminal defense. That’s a social cancer.
Attorney for Montana man who threw teen in national anthem attack says Trump rhetoric to blame [CBS News]
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.