Latest / rationally BASED / Episode 38 | Conservatives Are Getting the Lindsay Clancy Case WRONG

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Episode 38 | Conservatives Are Getting the Lindsay Clancy Case WRONG · rationally BASED

0:00
SPEAKER_01: Welcome back to Rationally Based, a podcast about law and politics on the edge.
0:05
SPEAKER_01: I'm your host, Elon Worman, a law professor at the University of Minnesota Law School.
0:08
SPEAKER_03: I'm Catherine Johnson with Center of the American Experiment.
0:11
SPEAKER_02: And I'm Joshua Kleinfeld, Rouse Professor of Law at the Scalia Law School.
0:17
SPEAKER_02: Catherine, what's on deck?
0:19
SPEAKER_03: Well, we're talking about insanity today.
0:22
SPEAKER_03: Everyone in America has heard about Lindsay Clancy, a mother who admitted to murdering her three children in cold blood.
0:29
SPEAKER_03: And if not for one lone holdout, she was almost acquitted.
0:33
SPEAKER_03: The jurors who wanted to acquit thought she was insane.
0:37
SPEAKER_03: Well, no crap, she's insane.
0:39
SPEAKER_03: She killed her kids.
0:40
SPEAKER_03: What seems insane to me is that our justice system apparently lets you plead insanity.
0:45
SPEAKER_03: And if you convince a jury you're crazy, they'll call you not guilty for doing the heinous crime you even admitted to doing.
0:52
SPEAKER_03: But maybe I'm missing something here.
0:53
SPEAKER_03: We're gonna talk about it.
0:55
SPEAKER_03: First, the legitimate role of the insanity defense, but also its abuses.
0:59
SPEAKER_03: Second, we'll get into the legitimate role of the jury, but also its shortcomings.
1:03
SPEAKER_03: And finally, what is this whole conversation really about?
1:06
SPEAKER_03: Maybe it's gender.
1:08
SPEAKER_01: I thought you were about to say all of America has gone insane, which maybe also is true.
1:12
SPEAKER_01: So let's dive in.
1:27
SPEAKER_01: All right.
1:28
SPEAKER_01: Well, before we get started, I just want our audience to please hit that like and subscribe button.
1:33
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1:36
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1:38
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1:41
SPEAKER_01: Okay, I thought I would set this up.
1:44
SPEAKER_01: Why are we doing this episode?
1:46
SPEAKER_01: Well, because obviously this uh Clancy trial has taken America by storm.
1:51
SPEAKER_01: And there's been a lot of commentary on the juries.
1:54
SPEAKER_01: Should we get rid of juries and only have intelligent people on juries?
1:57
SPEAKER_01: What about the insanity defense?
1:58
SPEAKER_01: The insanity defense is crazy.
2:00
SPEAKER_01: And quite frankly, we have here on the Rationally Based podcast the leading expert on these issues.
2:06
SPEAKER_01: We have Joshua Kleinfeld, who is a criminal law professor.
2:11
SPEAKER_01: For decades, he taught criminal law at Northwestern University, now at George Mason University.
2:16
SPEAKER_01: He's also a legal philosopher.
2:18
SPEAKER_01: I teach constitutional law.
2:19
SPEAKER_01: We are also pretty far right, you know, relatively speaking, I would say, as people of, you know, our audience knows.
2:27
SPEAKER_01: And so we really have something, I think, to contribute here.
2:30
SPEAKER_01: We have uh Josh's expertise and we are aligned with the people who are making sort of these criticisms, but maybe some of these criticisms, criticisms are misplaced.
2:39
SPEAKER_01: Maybe the problem isn't the jury, maybe the problem isn't the insanity defense, maybe the problem is something else.
2:46
SPEAKER_01: Maybe those are just microcosms of other bigger problems in American society.
2:50
SPEAKER_01: So that's why we are doing this podcast.
2:52
SPEAKER_01: Let me just, with that set up, Josh, where are we going today?
2:57
SPEAKER_02: Well, I think we should start big picture.
2:59
SPEAKER_02: I've been teaching and writing about criminal law for 15 years, not decades, Elon.
3:04
SPEAKER_02: Um not that old, but 15 years is a long time.
3:06
SPEAKER_02: And I've been part of the conservative movement my whole life.
3:09
SPEAKER_02: In fact, I was part of the new right before anyone called it Mega or America First or the New Right.
3:15
SPEAKER_02: Or I remember arguing new right positions against my dad, who was a Reaganite Republican in the 1990s.
3:22
SPEAKER_02: So this is this is my whole thing.
3:25
SPEAKER_02: And I want to say something big picture about this case.
3:27
SPEAKER_02: The case is incredibly controversial.
3:29
SPEAKER_02: And right-wing commentators, podcasts, you know, um uh ex blogs are kind of a thing of the past, but Substacks are going nuts.
3:39
SPEAKER_02: They're going for all sorts, they're calling rather for all sorts of radical surgery to criminal law, like get rid of the insanity defense, get rid of the jury.
3:48
SPEAKER_02: What we have here is a case of reasonable, conservative rage that is utterly misfiring.
3:55
SPEAKER_02: The problem is not the jury system.
3:57
SPEAKER_02: The problem is not the insanity defense.
4:00
SPEAKER_02: The problem is a certain kind of gender-based identity politics and weaponized moralism that the new rightly objects to and that this case has come to symbolize.
4:12
SPEAKER_02: But we in the conservative movement have to see clearly what the real issue is, or what's going to happen is we're either going to totally fail to address and to fix the real problem, or we're gonna break a lot of other things that don't need to be broken because they actually are good for us.
4:29
SPEAKER_02: So, like, let me make an analogy.
4:31
SPEAKER_02: Do you remember last year when De Carlos Brown stabbed Ukrainian refugee Irna Zarutska, I might mess up her name, uh, on a on the train, on a subway train.
4:44
SPEAKER_02: Um, and he had been arrested 14 times before that incident.
4:50
SPEAKER_02: Imagine someone came on and said, there's the De Carlos Brown case is just terrible.
4:55
SPEAKER_02: The problem is knives.
4:57
SPEAKER_02: We need to ban knives.
4:58
SPEAKER_02: We need to get rid of knives.
4:59
SPEAKER_02: Well, we'd all say that's idiotic, right?
5:01
SPEAKER_02: The problem is a person who was arrested 14 times and was clearly like psychopathically insane and murderous was on the streets and he got another victim, right?
5:12
SPEAKER_02: That's the problem, not knives.
5:14
SPEAKER_02: That would be a total misfire.
5:16
SPEAKER_02: We are in the same situation.
5:17
SPEAKER_02: The conservative world, the new right world is shooting at juries and shooting at the insanity defense, and it's a huge mistake.
5:25
SPEAKER_02: And this has happened before because criminal cases regularly become identity politics battlegrounds, and the facts get just swallowed up as the case becomes a symbol.
5:36
SPEAKER_02: So think about like O.J.
5:38
SPEAKER_02: Simpson or Rodney King, or a case that I found out recently that a lot of people have forgotten, but I sure haven't forgotten the case of Lorena Bobbitt, which also was a criminal case that had uh uh uh became national story because of feminist uh reactions to it.
5:54
SPEAKER_02: Um that was a case where a woman who had been abused by her husband cut off his penis when he was sleeping, and um uh the country lined up on either the side of the husband or the side of the wife.
6:05
SPEAKER_02: Okay, so what I'm trying to do in this episode, what I want to emphasize in this episode is we need to move from shooting at the jury trial, shooting at the insanity defense, to seeing that a certain kind of weaponized moralism and gender identity politics are the real target.
6:24
SPEAKER_03: And I think you're obviously right, Josh, about a lot of that.
6:27
SPEAKER_03: But from my perspective, I think this case really calls into question our entire justice system.
6:34
SPEAKER_03: And it's brought up concerns for me that I've never had before.
6:37
SPEAKER_03: I've never been afraid to defend the justice system we have here in America full force, totally.
6:43
SPEAKER_03: It's the best in the world.
6:45
SPEAKER_03: I've always been there.
6:46
SPEAKER_03: And this case for me really brought a lot of questions about the credibility of that system to, I think, the forefront of my mind.
6:53
SPEAKER_03: And I think it's doing that for a lot of people.
6:54
SPEAKER_03: So I think it's a very good thing to talk about.
6:57
SPEAKER_03: I also think clearly the insanity defense is problematic and needs to be reformed.
7:02
SPEAKER_03: Maybe you disagree, but we can talk about it.
7:04
SPEAKER_03: I'm also excited to talk about juries and gender because obviously my people are extremely unwell.
7:10
SPEAKER_03: The women of America need some sort of help or intervention or something.
7:14
SPEAKER_03: Uh, they've collectively lost their minds.
7:16
SPEAKER_03: So I'm excited to get into that too.
7:18
SPEAKER_01: Yeah, it and it's why we're having this episode, right?
7:21
SPEAKER_01: The insanity, the insanity defense allowed what happened to happen.
7:26
SPEAKER_01: The existence of a jury allowed what happened to happen.
7:29
SPEAKER_01: But the insanity defense exists in other situations and is perfectly okay in those other situations, usually.
7:36
SPEAKER_01: You know, the juries exist and are usually okay in ordinary situations.
7:40
SPEAKER_01: So in this case, maybe they're just tools that happen to be used by, you know, this um these sort of I mean, I will get into it.
7:49
SPEAKER_01: This, what did you call it, Josh?
7:50
SPEAKER_01: The the this gendered weaponized moralizing.
7:52
SPEAKER_02: Uh so I'll have you under weaponized, is a term I'm trying to enter into the lexicon.
7:57
SPEAKER_02: So here's my moment.
7:58
SPEAKER_02: Weaponized moralism.
7:59
SPEAKER_02: Weaponized, we've heard, of course, weaponized empathy.
8:02
SPEAKER_02: That's good.
8:03
SPEAKER_02: I think what's going on is more moralistic and it's more bullying, and weaponized moralism is a good term for it.
8:09
SPEAKER_02: So that's the way saying insanity, uh the insanity defense allowed this to happen is like saying knives allowed De Carlos whatever to um stab his victim.
8:22
SPEAKER_02: I guess, yeah.
8:24
SPEAKER_02: Knives allowed it to happen, but that still doesn't make it the problem.
8:28
SPEAKER_01: So, okay, so just so our listeners know where we're going, I think our diagnose, and we we're doing this episode also because we had really passionate debates about this over the last few weeks.
8:38
SPEAKER_01: So the debate America's been having, we had internally.
8:41
SPEAKER_01: And I think we actually more or less came to a resolution and agreement in our minds over this.
8:47
SPEAKER_01: And so we want to bring that to all of you.
8:49
SPEAKER_01: Okay.
8:50
SPEAKER_01: So uh we'll talk about the insanity defense, we'll talk about juries, and then we'll talk about what we really think is going on.
8:56
SPEAKER_01: But Catherine, like, do we need any more facts here?
8:59
SPEAKER_01: Um I we're let's presume everyone knows most of what happened, but can you just give us a high level in case there are any uninitiated listeners?
9:06
SPEAKER_03: Yeah, most of the key facts I wanted to point out were just that Lindsay Clancy strangled her three children to death, a five-year-old, a three-year-old, and an eight-month-old.
9:14
SPEAKER_03: She did it systematically.
9:16
SPEAKER_03: She sent her husband out of the house on a pretext to run some errands.
9:20
SPEAKER_03: Um, so she kind of set up the situation to allow her to commit this crime, and she strangled them one by one in her basement with an exercise band.
9:29
SPEAKER_03: She then slid her wrist, jumped out a second-story window, and became paralyzed from the waist down.
9:35
SPEAKER_03: Her lawyer claims that was a suicide attempt.
9:37
SPEAKER_03: The prosecution questioned the sincerity of this attempt, as I heard Med Walsh put it, which made me laugh.
9:42
SPEAKER_03: Suddenly she forgot to kill a human being when it came to herself.
9:45
SPEAKER_03: So we'll get into that a little bit too.
9:47
SPEAKER_03: But she was eventually charged with three counts of first-degree murder, and she pled not guilty by reason of insanity.
9:54
SPEAKER_03: Finally, they had a long three and a half years of preparation.
9:57
SPEAKER_03: The case came to trial, and they got a jury of nine women and three men.
10:02
SPEAKER_03: And her lawyer argued that she was insane based on postpartum psychosis.
10:06
SPEAKER_03: One important note, she was never given this diagnosis before the trial by a doctor.
10:11
SPEAKER_03: It was given to her after, excuse me, before the killings by a doctor is given to her after the killings, and was done so by experts retained by her defense team.
10:20
SPEAKER_03: So the prosecution argues that this was all planned.
10:22
SPEAKER_03: Uh, they focused on the fact that she sent her husband away on those errands for a specific amount of time, and then she killed her kids in a very organized and methodical fashion.
10:31
SPEAKER_03: They didn't deny that she had clearly some mental health struggles.
10:34
SPEAKER_03: She'd gone to the doctor many times, gotten many medications, but they maintained that she knew right from wrong.
10:41
SPEAKER_03: And they found the claim of her hearing a voice that told her to kill her children to be unconvincing and unusual.
10:48
SPEAKER_03: In the end, the jury was deadlocked and a mistrial was called.
10:52
SPEAKER_03: Reportedly, there was one holdout, and it was one of the three men.
10:57
SPEAKER_01: And this is important just for the, again, uninitiated.
11:00
SPEAKER_01: You need all 12 unanimously to convict someone, for example.
11:04
SPEAKER_01: If you're convicted, you can still have an appeal because there could still be legal errors or uh, you know, judgments notwithstanding the verdict and so on.
11:11
SPEAKER_01: You need unanimous also to acquit.
11:13
SPEAKER_01: And once you acquit, you're done because there's double jeopardy.
11:15
SPEAKER_01: You cannot bring a retrial.
11:17
SPEAKER_01: But all it takes is one juror to disagree with the rest, and you get what's called the mistrial, and the government has the opportunity.
11:23
SPEAKER_01: Double jeopardy doesn't attach.
11:24
SPEAKER_01: They have the opportunity to bring another lawsuit.
11:26
SPEAKER_01: So that's why the mistrial happened.
11:28
SPEAKER_01: Okay, let me start with sort of our first really substantive topic.
11:32
SPEAKER_01: We're going to insanity.
11:33
SPEAKER_01: What is the insanity defense?
11:35
SPEAKER_01: Why do we have it?
11:36
SPEAKER_01: So let me set this up by um, I guess actually, we're gonna show a clip uh from Matt Walsh, a commentator um I like uh very much, generally smart.
11:46
SPEAKER_01: And he said something that I initially was like, hey, yeah, maybe I actually agree with this.
11:51
SPEAKER_01: Maybe the insanity defense is crazy.
11:52
SPEAKER_01: But then on further reflection, maybe he's wrong about this.
11:56
SPEAKER_01: So we generally agree with him though.
11:57
SPEAKER_01: I generally agree with him though.
11:58
SPEAKER_01: I won't speak for others here.
11:59
SPEAKER_01: So let's listen to what he says.
12:01
SPEAKER_00: The insanity defense should not exist in the law.
12:03
SPEAKER_00: There are a lot of conceptual problems with it, a lot of problems in principle.
12:07
SPEAKER_00: But even if you think that in principle it it makes sense or you can make an argument for it, the fact is that it has been abused.
12:15
SPEAKER_00: At a minimum, we can say it has been abused horrifically for decades, and a lot of people have died because of it.
12:21
SPEAKER_00: And so it just should not exist anymore.
12:23
SPEAKER_00: How can a person be not guilty of doing something that they did?
12:27
SPEAKER_00: I mean, even if I accept the premise that he was insane and not in control of his faculties, he still did it.
12:33
SPEAKER_00: I mean, it was a thing that happened, somebody did it, and no one else did it but him, just as a factual matter.
12:40
SPEAKER_00: For as long as courts have existed, not guilty has always meant that the person accused of doing something didn't do it.
12:48
SPEAKER_00: But a ruling that says, yeah, you did it, and we all know you did it for 100% certainty, but you're not guilty of doing it, makes no sense.
12:56
SPEAKER_00: If this was something innocuous, like if you walk up to an insane person who's wearing a red shirt and you go, You put on a red shirt this morning, it wouldn't make any sense for somebody else to run up and say, No, he no, he didn't.
13:07
SPEAKER_00: He's insane.
13:08
SPEAKER_00: He didn't put on a red shirt.
13:09
SPEAKER_00: Well, no, but he might be insane, but he did put on a red shirt.
13:12
SPEAKER_00: I mean, that that's a thing that happened.
13:13
SPEAKER_00: It's a thing that happened.
13:14
SPEAKER_00: He is guilty of putting on a red shirt.
13:16
SPEAKER_00: That's what guilt means.
13:17
SPEAKER_00: Now, if you want to argue that he did the thing, but his guilt is mitigated because of other factors, well, we already have that kind of distinction built into the system.
13:27
SPEAKER_00: That is why we have degrees of murder.
13:30
SPEAKER_00: It's why we have manslaughter, it's why we have all these other distinctions that are already in the system.
13:36
SPEAKER_00: It's also why we have a judge who's in charge of sentencing and is supposed to weigh mitigating factors.
13:41
SPEAKER_00: But the question of whether he did it, whether he's guilty of doing it, is one of objective reality.
13:46
SPEAKER_00: And the objective reality is that he did the thing.
13:49
SPEAKER_00: He is guilty.
13:51
SPEAKER_01: Okay.
13:52
SPEAKER_01: So I think actually toward the end, he was starting to make some sense here.
13:55
SPEAKER_01: Um, but let me try to make uh okay, Josh does it think he made some sense.
13:59
SPEAKER_03: But hey, I was with him.
14:00
SPEAKER_03: I was with him.
14:01
SPEAKER_03: I have I'm excited to get the response.
14:03
SPEAKER_01: That made up zero sense legally.
14:06
SPEAKER_01: Okay, let me let well let me try to make the best case for Matt Walsh's position here because there is something about it, right?
14:13
SPEAKER_01: So they were insane.
14:15
SPEAKER_01: And I know you're gonna explain to our audience about mens rea, how you know you have mental states are part of crimes, and I and I want you to do that, but let me set this up.
14:23
SPEAKER_01: Put Men's Rea aside for a moment.
14:25
SPEAKER_01: Why shouldn't they be punished for the following reason?
14:28
SPEAKER_01: Okay, they have by committing this a murder, a killing, have torn at the fabric of society.
14:35
SPEAKER_01: It's not, and no one else did it, just they did it, right?
14:38
SPEAKER_01: And they owe a debt to society in a way.
14:41
SPEAKER_01: Someone has to repay that debt, and you repay that debt by serving time in jail, sitting in a jail cell, submitting to an execution or something like that.
14:51
SPEAKER_01: So let me give you an example.
14:53
SPEAKER_01: Let me give you three examples and ask you to kind of break those down for us.
14:56
SPEAKER_01: Suppose a crazy, wild 25-year-old man is doing donuts, going 80 miles an hour on some city street, no intention to kill anybody, he's got a good heart, he's just being a little crazy and reckless, and he slams into a mother and daughter and they died.
15:10
SPEAKER_01: Why shouldn't he be put away for the rest of his life?
15:13
SPEAKER_01: I mean, the mother and daughter died.
15:15
SPEAKER_01: He has taken away lives, he has torn at the fabric of society.
15:19
SPEAKER_01: And like, I get maybe it's not as evil as premeditated murder or something, but like it, like, in a sense, I don't, I almost don't care, right?
15:28
SPEAKER_01: I'm trying to make the best argument here.
15:30
SPEAKER_01: You've taken a life, you've torn at the fabric of society, you owe a debt to the society.
15:34
SPEAKER_01: Now, suppose, example two, somebody is drugged and forced behind the wheel of a car, and the same thing ends up happening involuntary intoxication.
15:43
SPEAKER_01: That person didn't tear at the fabric of society.
15:46
SPEAKER_01: That person isn't responsible because someone else is the person who intoxicated that person, who involuntarily intoxicated that person and put them behind the wheel of the car, the whoever committed that crime also committed in effect the murder and the killing.
15:59
SPEAKER_01: And that person should be punished just the same.
16:01
SPEAKER_01: The person who administered the drugs involuntarily.
16:05
SPEAKER_01: Now, a person who is mad insane, you know, this is an example that we've been talking about, you know, kills someone, but is like, oh, you know, I think Josh, this is an example you and I have talked about.
16:15
SPEAKER_01: He was just thought he was just chopping wood, and it's like, no, you're chopping a human to bits.
16:19
SPEAKER_01: You know, he didn't know sort of what he was doing.
16:22
SPEAKER_01: Well, no one else can that can that can't be attributed to anybody else.
16:26
SPEAKER_01: You are the only person responsible in a sense for those acts.
16:30
SPEAKER_01: Why should you be treated any differently than the the person doing the donuts, the person who administered the drugs to the person who then killed someone?
16:40
SPEAKER_01: Why should that third case be treated differently?
16:43
SPEAKER_01: Okay, go.
16:44
SPEAKER_02: You Josh, what do you think?
16:46
SPEAKER_02: Well, so let me start off with your three examples, which are interesting, and then back up to the big picture.
16:52
SPEAKER_02: Because I think when you see the big picture, and if I could have a chance to chat with Matt Walsh about the big picture, you'd see that these ideas are part of a larger fabric that makes a lot of sense.
17:03
SPEAKER_02: So let's start with the guy doing donuts.
17:05
SPEAKER_02: The guy doing donuts who kills a mother and daughter in your example is guilty of killing another human being with what in law is called extreme recklessness, even what criminal law calls a depraved heart, right?
17:18
SPEAKER_02: Like if you're turning donuts in the middle of the street and there are people around, what you're exhibiting is an indifference to the possibility that someone might be killed.
17:27
SPEAKER_02: So in most jurisdictions, killing with extreme recklessness or killing with a depraved heart is murder.
17:34
SPEAKER_02: In some jurisdictions, that is manslaughter.
17:38
SPEAKER_02: In zero jurisdictions, is that not a serious felony?
17:42
SPEAKER_02: So the way you are setting up the hypo or the example, it's almost as if he was getting off.
17:47
SPEAKER_02: Why should he get off?
17:48
SPEAKER_02: He doesn't get off.
17:49
SPEAKER_02: The criminal law makes a distinction between him and a guy who lies in wait with a gun because he's aiming at the mother and daughter because he hates them and wants to kill them.
17:57
SPEAKER_02: Yeah, that guy is even worse and gets even harsher punishment.
18:00
SPEAKER_02: But actually, they both have committed one of the most serious felonies known to mankind, and they go to prison for an extremely long time or they're executed.
18:09
SPEAKER_02: Okay, take your next example.
18:11
SPEAKER_02: The guy who is drugged against his will, right?
18:14
SPEAKER_02: Involuntary intoxication, we call it.
18:16
SPEAKER_02: Someone like injects you with something.
18:18
SPEAKER_02: Well, in criminal law, he didn't do anything wrong.
18:21
SPEAKER_02: The guilt for the crime flows upwards to the person who injected him.
18:25
SPEAKER_02: And that's precisely because he had no mental involvement and no moral culpability.
18:31
SPEAKER_02: His body was essentially used as an instrument of another person's crime, just as much as if I like pushed you into Catherine because I wanted Catherine to like fall down the stairs and she did, and she was injured, right?
18:42
SPEAKER_02: And I was prosecuted.
18:43
SPEAKER_02: You wouldn't be prosecuted.
18:45
SPEAKER_02: I just pushed you.
18:45
SPEAKER_02: Your body was just the instrument.
18:47
SPEAKER_02: It was my intent to harm the victim.
18:51
SPEAKER_02: So that also is perfectly sensible.
18:54
SPEAKER_02: And now take the person who is totally mad and sane in a way that we would all agree about, right?
18:58
SPEAKER_02: This is not Lindsay Clancy where we have disagreements.
19:01
SPEAKER_02: This is like a person thinks he is chopping down a tree and he's like getting some firewood, but he's actually chopping a person because he's totally out of touch with reality.
19:11
SPEAKER_02: Well, that person lacks what in criminal law is called a vicious will.
19:16
SPEAKER_02: He lacks any sort of wrongful moral state.
19:19
SPEAKER_02: He's just not evil.
19:20
SPEAKER_02: And that's what criminal condemnation really means.
19:23
SPEAKER_02: You are evil or you have done something evil.
19:26
SPEAKER_02: And frankly, the guy who thinks he's chopping down a tree and he is chopping a person, but he has no idea that he's doing it, who is that floridly insane that he's completely out of touch with the world, he's not evil.
19:40
SPEAKER_02: Now, does that mean he walks?
19:42
SPEAKER_02: There is no jurisdiction in America, in the world that I'm aware of, where he walks.
19:48
SPEAKER_02: He goes into a mental hospital where he is incapacitated against his will and held, usually for extremely long periods of time, usually for life, after he's found insane.
20:00
SPEAKER_02: So he doesn't go free, right?
20:04
SPEAKER_02: A criminal conviction is condemning someone for wrongdoing and punishing them for wrongdoing.
20:10
SPEAKER_02: And the person who thinks he's chopping down a tree is not a wrongdoer.
20:14
SPEAKER_02: So there's a logical fabric here, and the insanity defense fits into this fabric.
20:18
SPEAKER_02: So let's just back up for a moment and look at the big picture.
20:22
SPEAKER_02: So here's where I want to start for our audience in particular.
20:25
SPEAKER_02: The insanity defense is not some left-wing invention, and it is not some modern soft-on crime movement.
20:33
SPEAKER_02: It is a truly ancient part of Western civilization.
20:37
SPEAKER_02: In the common law, the term madness, quote, madness, has been a complete defense since the 14th century, right?
20:46
SPEAKER_02: 600 years.
20:47
SPEAKER_02: That's before there was anything known as the soft-on crime movement or the left.
20:51
SPEAKER_02: The Talmud in the third century says if an imbecile or insane person injures others, they are exempt from punishment because they lack awareness and are not responsible for their actions.
21:03
SPEAKER_02: In the New Testament, you know, Jesus in in Matthew, I think it is, says, he who lusts after someone with um, if you have lust in your heart, it's as though you have committed adultery, right?
21:15
SPEAKER_02: So he too is focusing on mental states for assessing moral blame.
21:20
SPEAKER_02: And in the Old Testament, it doesn't speak explicitly to um uh insanity, but in in Deuteronomy, God spares the Israelites' children from punishment because in the English translation, they do not yet know good from bad.
21:37
SPEAKER_02: And in Leviticus, there's a distinction between people who sin unintentionally or through ignorance.
21:42
SPEAKER_02: So this is part of our biblical tradition.
21:45
SPEAKER_02: This is part of our ancient Anglo American common law heritage.
21:49
SPEAKER_02: Why?
21:50
SPEAKER_02: Because for criminal law, except for very minor tickets like speeding tickets, we always require two things what's called actus reus and mensre, a bad act.
22:00
SPEAKER_02: And an evil intent behind the bad act.
22:03
SPEAKER_02: You know, if you step on a crack and break your mother's back because of some bizarre chaos theory chain of physical events, you are not the same as the person who takes a baseball bat to their mother, right?
22:15
SPEAKER_02: Common law calls this a vicious will and required it of every single crime.
22:20
SPEAKER_02: In fact, originally the very word felony traditionally meant you committed an evil act with an evil state of mind.
22:28
SPEAKER_02: You committed the wrongful act with a vicious will.
22:32
SPEAKER_02: They would say these phrases like you had to commit the felony feloniously.
22:36
SPEAKER_02: So that combo of the evil act with the intentional state of mind or the evil state of mind runs like a red thread throughout all of criminal law history.
22:44
SPEAKER_02: So why does that matter for insanity?
22:47
SPEAKER_02: Because in certain states of insanity, I don't mean states like American states, I mean when you're in a really florid uh state of total madness and insanity, you just don't have a vicious will.
22:59
SPEAKER_02: Like if you're out of touch with reality and you think God told you to do something, or you think the person you're chopping is actually a tree or an evil demon, you don't have a vicious will.
23:09
SPEAKER_02: It doesn't mean you walk, you get locked up in a mental institution.
23:13
SPEAKER_02: Typically, not uncommonly, by the way, you get locked up in a mental institution for longer than the relevant prison sentence.
23:19
SPEAKER_02: That happens all the time.
23:21
SPEAKER_02: But they don't get condemned as criminals because criminal law is about a vicious will, and in states of really florid insanity, you don't have it.
23:29
SPEAKER_02: So, Ilan, you referred to retribution, deterrence, incapacitation, and rehabilitation, the four traditional grounds of punishment.
23:36
SPEAKER_02: Well, an insane person who didn't know what he's doing, you can't have retributive punishment because he's not a wrongdoer.
23:42
SPEAKER_02: You punish someone retributively for their wrongdoing, and he wasn't a wrongdoer because he didn't know he what he was doing.
23:49
SPEAKER_02: And you he can't be deterred because he's insane.
23:52
SPEAKER_02: And deterred completely insane people.
23:55
SPEAKER_02: Like if you think you're chopping a tree, you can't be deterred because you don't know that it's wrong to chop a tree.
24:00
SPEAKER_02: And incapacitation, well, that's exactly what we do.
24:03
SPEAKER_02: So so that's the big picture.
24:06
SPEAKER_02: That's the ancient and current moral and legal framework.
24:10
SPEAKER_02: And so you can imagine what I'm thinking as I'm hearing Matt Walsh, who is sort of pontificating without apparently knowing any of this.
24:17
SPEAKER_02: He's like, she did it.
24:18
SPEAKER_02: Well, what's it?
24:19
SPEAKER_02: Did she do the, you know, did anyone who is considered insane do the act with the relevant mental state?
24:27
SPEAKER_02: And getting rid of the insanity defense is not like just like replacing the curtains in your living room.
24:33
SPEAKER_02: This is an ancient part of Western civilization.
24:35
SPEAKER_02: And those of us who are conservative should be very, very slow to tear apart ancient parts of our civilization because we're mad about one particular case that happened like last week.
24:48
SPEAKER_03: So Josh.
24:49
SPEAKER_03: I wonder if maybe one of the things, I was just gonna say, I wonder if maybe one of the things that um is a point of like disagreement or or a lack of, I don't know, we're not on the same page, is I feel like you didn't mention, Josh, the deterrence, like you mentioned deterrence, but you didn't mention because they're a danger to society.
25:06
SPEAKER_03: To me, that seems like the number one reason we're locking people up or putting people away.
25:10
SPEAKER_03: And the man who thinks humans are wood and can chop them down is a much bigger danger to society than almost anyone else.
25:17
SPEAKER_03: I mean, I'm I totally agree.
25:19
SPEAKER_02: And you know who else agrees?
25:21
SPEAKER_02: The law, right?
25:22
SPEAKER_02: So here's what we do: if someone is a danger to society because they want to hurt other people and they're really evil, we criminally condemn them and put them in prison.
25:32
SPEAKER_02: And if someone is a danger to society because they're totally insane and think that like humans are trees, we put them in a mental institution.
25:40
SPEAKER_02: And in both cases, we hold them for as long as we have to to make the rest of the human race safe.
25:45
SPEAKER_02: So actually, Catherine, keep going.
25:49
SPEAKER_01: Go ahead.
25:50
SPEAKER_03: Well, no, I think that that's there, if that's true, I think that that's good.
25:54
SPEAKER_03: And I think there are maybe my idea is that that isn't always the case.
25:59
SPEAKER_03: Why is it that people then really go after the insanity defense?
26:02
SPEAKER_03: Why does Lindsay Clancy want the insanity defense if you're not getting a much better deal?
26:06
SPEAKER_03: And so I think there has to be a reason it's better to be institutionalized in a place with a nice bed where uh, you know, if you're a female, there aren't other few weird females locked in the same room as you.
26:17
SPEAKER_03: Like, you know, there's pluses.
26:19
SPEAKER_03: So I think that we have to acknowledge that there is a plus to being institutionalized in maybe what I think is probably a cushier or at least higher security kind of situation than going to gen pop prison, right?
26:34
SPEAKER_03: The point I actually wanted to make here was about the insanity defense in 2026, because everything you've said so far, Josh, I totally make sense.
26:43
SPEAKER_03: I'm tracking with, but one of the problems that I see here is that as a society, we've gone so far to normalize and then also like medicalize mental health struggles so that now practically everyone sees themselves as someone with a mental health struggle and could maybe qualify for this insanity defense.
27:03
SPEAKER_03: I mean, you saw a lot of people talking about postpartum depression in this conversation.
27:07
SPEAKER_03: One in eight women experience postpartum depression.
27:10
SPEAKER_03: Something like 10 to 15% of all women are on antidepressants.
27:14
SPEAKER_03: Do we all of a sudden have a populace that thinks there's a huge number of people that qualify for this insanity defense?
27:22
SPEAKER_03: So I think the historical background is very interesting, but maybe the issue is in 2026, we've gotten to a place where everyone thinks the insanity defense applies to them and they wear it as a badge of honor.
27:34
SPEAKER_01: So, Josh, I I want to follow up on this uh uh the cushy thing, it's not just the it's cushier.
27:40
SPEAKER_01: For people who aren't actually insane, but have successfully invoked the defense.
27:45
SPEAKER_01: What could be their motivation?
27:47
SPEAKER_01: Could their motivation be that they have more chance of convincing some doctors in a hospital that they are now sane and that they are now better, because in fact they were never insane to begin with.
27:58
SPEAKER_01: And so after some period of time elapses, they can now pretend to be better and convince if that happens, if the doctors generally believe, hey, you were acquitted because you're insane, so you're not guilty by a reason of insanity, but you really have no indications anymore of postpartum psychosis.
28:17
SPEAKER_01: It's now been years since you had kids and killed them.
28:20
SPEAKER_01: It's now been years since you had a demonic voice in your head.
28:23
SPEAKER_01: In fact, you only had a voice in your head once, but it told you to kill your kids.
28:26
SPEAKER_01: We'll come back to that, right?
28:28
SPEAKER_01: And so at some point the doctors are gonna be like, hey, you actually are not insane.
28:32
SPEAKER_01: You don't act insane, but it's done.
28:34
SPEAKER_01: You were acquitted, right?
28:35
SPEAKER_01: I mean, there's a mistrial in this case, but you were acquitted.
28:38
SPEAKER_01: Is that person gonna be let off the street in five years?
28:41
SPEAKER_01: I guess is is is my first question to you.
28:43
SPEAKER_01: Like, who makes that decision?
28:45
SPEAKER_01: And then I do want to follow up on Catherine's point, because Josh, in talking to you about this generally, I think your view is mental health, mental illness is not the same thing as insanity.
28:54
SPEAKER_01: And so I want to break down what in the insanity defense is.
28:57
SPEAKER_01: But first, do you have a reaction to the point about you know, faking it?
29:02
SPEAKER_01: Isn't that why they try try this, or who decides to let them go when they can be let go?
29:07
SPEAKER_02: Yes, okay.
29:08
SPEAKER_02: So there's actually a lot I agree with you and Catherine here.
29:11
SPEAKER_02: I I do think, you know, if it were me, I'd rather be in a mental institution than a prison.
29:18
SPEAKER_02: I'll tell you an interesting factoid about that, actually.
29:20
SPEAKER_02: You know how we had um it's it's said that in the 90s and early 2000s we had the rise of mass incarceration.
29:27
SPEAKER_02: We have to overcome mass incarceration, right?
29:30
SPEAKER_02: Here's an interesting fact at the peak of mass incarceration, which was the late 90s, the the most Americans imprisoned ever, we actually had, if you add up the number of beds in mental institutions and prisons, you add them together, it's the same number of beds from 1950 to 1997 to 2000 to whatever.
29:49
SPEAKER_02: Uh, it's the same number of people who are held.
29:52
SPEAKER_02: We just moved beds from mental hospitals into prisons in the 1990s.
29:57
SPEAKER_02: But actually, our rates of involuntary uh incarceration did not change.
30:02
SPEAKER_02: Incarceration isn't the word there.
30:03
SPEAKER_02: Involuntary uh commitment did not change.
30:07
SPEAKER_02: Um and I agree with you that when you go into a mental hospital and you've been adjudged insane, the people who are in charge of letting you out are the the doctors.
30:20
SPEAKER_02: And if you can persuade them that you're no longer insane, um you can come out.
30:26
SPEAKER_02: And that could happen sooner than you would come out with a prison sentence.
30:30
SPEAKER_02: Now, I think you are much too likely to think someone is faking it successfully, and they sort of fake it for long enough to get it to get the insanity defense.
30:39
SPEAKER_02: Like, you think you could fake it?
30:41
SPEAKER_02: Do you think you're such a good actor that you could pretend to be insane and and convince everyone, your family, your friends, the the um Josh?
30:50
SPEAKER_02: I think that's what let me finish.
30:52
SPEAKER_02: Let me finish.
30:52
SPEAKER_01: A bunch of psychiatrists, it's ridiculous.
30:55
SPEAKER_01: It's ridiculous.
30:57
SPEAKER_01: That's what I was gonna say, Josh.
30:58
SPEAKER_01: I think Lindsay Clancy did it.
30:59
SPEAKER_01: I think she faked it.
31:00
SPEAKER_01: I think she faked it.
31:01
SPEAKER_02: Maybe, maybe, but um, she she did cut a wrist, jump out a window, get paralyzed.
31:07
SPEAKER_02: Maybe she faked it, maybe she's not, didn't.
31:09
SPEAKER_02: I am not a juror.
31:10
SPEAKER_02: I did not hear the evidence.
31:11
SPEAKER_02: I'm not gonna claim to know.
31:12
SPEAKER_02: But I'll tell you this: the average American thinks, wait a minute, I have I actually wrote down these numbers and I want to get them right.
31:19
SPEAKER_02: Um so give me a second.
31:21
SPEAKER_02: Okay.
31:22
SPEAKER_02: The average American believes that 37% of criminal defendants plead insanity and 16% succeed.
31:28
SPEAKER_02: That's one in six.
31:29
SPEAKER_02: The average American thinks one in six criminal defendants plead insanity and get acquitted for that reason.
31:34
SPEAKER_02: Here are the real numbers.
31:36
SPEAKER_02: The real numbers.
31:37
SPEAKER_02: One in a hundred to one in two hundred plead insanity, and five percent to twenty five percent of them succeed, which means at a maximum, it's one in four hundred criminal defendants.
31:50
SPEAKER_02: And at a minimum, it's like one in 10,000.
31:52
SPEAKER_02: I think the real number is something like one in a thousand.
31:54
SPEAKER_02: So if you think everybody just fakes it, right?
31:58
SPEAKER_02: They just fake it and they get off.
31:59
SPEAKER_02: No, no, it is really hard.
32:02
SPEAKER_02: None of us are great actors.
32:03
SPEAKER_02: I do not believe that you could convince me and Elon or Katherine, that you could convince everyone in your life and a bunch of doctors that you're hearing voices, they would see right through it, you would not be able to keep it up, and you would not get acquitted, just like those other 399 criminal defendants who actually go to prison where they would just as soon get acquitted.
32:22
SPEAKER_03: I hope you're right, Josh, but I do think there's a couple people in my life who would maybe be like, wow, that connects some dots for me, you know.
32:27
SPEAKER_03: So, anyway, carry on.
32:29
SPEAKER_02: Um, okay, before we go.
32:30
SPEAKER_02: Can I say something else?
32:31
SPEAKER_02: I'm I'm sorry, just one more point.
32:33
SPEAKER_02: Here's why I think you're even more right than you said, Elon.
32:36
SPEAKER_02: Why I I extra agree with you in a way.
32:38
SPEAKER_02: People's insanity is often very focused.
32:41
SPEAKER_02: They, it's very rare that someone thinks they're cutting down a tree and they're cutting down a person.
32:46
SPEAKER_02: It's more like they have this persistent delusion that people are following them, or that, I don't know, someone is persecuting them or something like that.
32:55
SPEAKER_02: And it's insane, but it's focused.
32:58
SPEAKER_02: And then, and also a lot of people go in and out of sanity, right?
33:02
SPEAKER_02: With medication, maybe, or with treatment, or with time.
33:05
SPEAKER_02: And so there's a real possibility of people who have done terrible things going into treatment, and the doctors say you've resolved the particular issue, or or it's it was a thing of the past and coming out, and it's not being faked, but it is temporary or focused in a way that doesn't persist.
33:25
SPEAKER_02: And that's that could be a problem.
33:27
SPEAKER_01: Okay, so I think point number one is that to make here is that mental illness is not the same thing as insanity, right?
33:35
SPEAKER_01: Now, I do we don't have to talk about this now, actually, but flag that like there is something unseemly.
33:41
SPEAKER_01: Catherine mentioned this at the beginning, like that there were experts on both sides, right?
33:45
SPEAKER_01: There is something really unseemly about a battle of experts when it comes to the death of three children.
33:50
SPEAKER_01: Like, was she insane?
33:51
SPEAKER_01: Was she not insane?
33:52
SPEAKER_01: Is postpartum psychosis insanity or something else?
33:55
SPEAKER_01: You know, it's just like so, like, okay, let's talk about this now since I just started talking about this.
34:01
SPEAKER_01: Uh, when I was in litigation, we had a battle of experts.
34:05
SPEAKER_01: I'll tell you a quick story.
34:07
SPEAKER_01: Uh, we had a, I was representing a generic drug company uh against a brand drug company, and the brand's expert literally said before the patentability date, the it's called the priority date of the patent, literally gave a speech saying this thing would be obvious to do, which means it's not patentable.
34:23
SPEAKER_01: You can't patent something obvious.
34:25
SPEAKER_01: And the brand hired him to testify that it was not obvious.
34:29
SPEAKER_01: And, you know, uh I remember the partner on the case was like, would it surprise you if you said the exact opposite two weeks before the date of the priority of the patent?
34:38
SPEAKER_01: And he's like, No, it wouldn't surprise me.
34:40
SPEAKER_01: Totally embarrassed the guy.
34:42
SPEAKER_01: Out in the hallway, he literally told one of the partners, you know, this is just a game, right?
34:47
SPEAKER_01: And it's like, you know, we could destroy you right now, but we're not gonna do that because we're professionals.
34:51
SPEAKER_01: Okay.
34:51
SPEAKER_01: But like, there is something in civil litigation about a battle of experts that it's just like you kind of know they're hired guns.
34:57
SPEAKER_01: Now, look, I've used experts before who genuinely are experts, they genuinely know what they're talking about.
35:02
SPEAKER_01: But you know, there's always that appearance.
35:04
SPEAKER_01: There is something unseemly about leaving this to psychiatric experts, like this question of whether someone's insane or not.
35:11
SPEAKER_01: Like, and that makes it that it troubles me because that seems to expand potentially the universe of things the jury is convinced to think is insane.
35:19
SPEAKER_01: Okay, Josh is covering.
35:21
SPEAKER_03: We just had an episode, Elon, on how this junk science, like transgenderism, gender-affirming care, they've been calling it science and settled science.
35:29
SPEAKER_03: You could get any number of experts to say that this is the way we save kids' lives, and they are totally wrong.
35:34
SPEAKER_03: But maybe you could convince a jury because they are the experts, but it was junk.
35:38
SPEAKER_01: Exactly.
35:39
SPEAKER_01: Josh, you seem frustrated.
35:41
SPEAKER_01: I'm take take it away.
35:43
SPEAKER_02: I am, I am you're I'm just boiling.
35:47
SPEAKER_02: And and I'm boiling because I have okay, okay.
35:51
SPEAKER_02: Let me start here.
35:53
SPEAKER_02: All right, wait.
35:54
SPEAKER_02: First, deep breath.
35:55
SPEAKER_02: Deep breath.
35:56
SPEAKER_02: Okay, go.
36:00
SPEAKER_02: Um, there are zero cases because it's a rule of American law in which psychiatrists decide whether a person is insane uh for purposes of criminal conviction.
36:10
SPEAKER_02: It is always the decision of a judge or a jury.
36:15
SPEAKER_02: The psychiatrists can testify.
36:17
SPEAKER_02: And yes, there is a battle of experts that can be unseemly, though often they genuinely disagree because there is real disagreement in psychiatry and psychology.
36:25
SPEAKER_02: So they testify, hopefully they're telling the truth, that's what perjury is for.
36:29
SPEAKER_02: Uh, hopefully it's not just a game to them, that's what integrity is for.
36:33
SPEAKER_02: But at the end of the day, none of them ever make the decision.
36:37
SPEAKER_02: They submit their opinions to the jury, ideally, and sometimes to a judge, and that person makes the decision.
36:43
SPEAKER_02: So I just want to get that out there.
36:44
SPEAKER_02: And then the second thing is being insane in criminal law is not the same as having a mental illness, according to psychiatrists.
36:52
SPEAKER_02: In criminal law, there's a rule.
36:54
SPEAKER_02: You've got to have a mental illness, and it has to be so severe as to block moral responsibility for your actions.
37:01
SPEAKER_02: So the jury has to make first a credibility judgment.
37:05
SPEAKER_02: Does this person have a mental illness?
37:07
SPEAKER_02: And second, is it so severe as to block moral responsibility for what they did?
37:12
SPEAKER_02: Lots of people are depressed.
37:14
SPEAKER_02: It is not enough to block moral responsibility.
37:17
SPEAKER_02: Lots of people are anxious.
37:19
SPEAKER_02: It is not enough to block moral responsibility.
37:21
SPEAKER_02: A lot of people have ADHD.
37:23
SPEAKER_02: That's a mental illness that does not get you off the hook for committing crimes.
37:27
SPEAKER_02: The law has developed tests for whether someone is insane enough to not have responsibility for their actions.
37:34
SPEAKER_02: And they go by different names, the McNaughton test, the ALI test.
37:37
SPEAKER_02: I'll get into them in a second.
37:39
SPEAKER_02: But here's the big takeaways from this test.
37:41
SPEAKER_02: Number one, there is no perfect test.
37:44
SPEAKER_02: Lawyers and psychologists and citizens have been working on this for 500 years.
37:50
SPEAKER_02: And the question of what is a mental illness so severe that a person can't be seen as morally responsible has no easy answer.
37:57
SPEAKER_02: And don't expect a perfect test.
37:59
SPEAKER_02: There isn't any.
38:00
SPEAKER_02: Second, all of the tests are pretty tough.
38:03
SPEAKER_02: The vast majority of mental illnesses don't count under any of the tests.
38:08
SPEAKER_02: And third, again, people getting, as I mentioned before, people getting the benefit of these tests is pretty rare.
38:15
SPEAKER_02: You know, people think it's one in six, it's one in 400 at most.
38:19
SPEAKER_02: So what are the tests?
38:20
SPEAKER_02: I'm going to simplify here just for speed.
38:23
SPEAKER_02: But the most common is called the McNaughton test.
38:26
SPEAKER_02: And that means you either don't understand the nature of what you're doing or you don't understand the difference between right and wrong.
38:33
SPEAKER_02: So don't understand the nature of what you're doing.
38:35
SPEAKER_02: That's like you're, you think you're chopping a person.
38:38
SPEAKER_02: That's a tree chopping.
38:38
SPEAKER_02: The tree chopping example.
38:40
SPEAKER_02: Uh, not knowing the difference between right and wrong is maybe you hallucinate that God is telling you to kill someone because that someone is uh is a satanic demon or something like that, right?
38:50
SPEAKER_02: So you think what you're doing is right when in fact it's wrong.
38:53
SPEAKER_02: And that's close to what Lindsay's defense was, right?
38:57
SPEAKER_02: Well, it was one of her claims.
38:58
SPEAKER_02: She's her lawyer sort of fitted that in there.
39:00
SPEAKER_02: In practice, it means you need people who are deeply out of touch with reality.
39:04
SPEAKER_02: The McNaughton defense means that Clancy would count only if you buy the whole voice of God thing, not otherwise.
39:13
SPEAKER_02: Then the second most common test is called the ALI test.
39:16
SPEAKER_02: And it's sort of McNaughton plus.
39:18
SPEAKER_02: It still includes the people who are out of touch with reality, but it adds another category.
39:23
SPEAKER_02: People who, due to mental illness, cannot conform their conduct to the law.
39:28
SPEAKER_02: What is sometimes called the irresistible impulse test.
39:32
SPEAKER_02: So some people who are um floridly insane describe the feeling of an alien force inhabiting their body.
39:39
SPEAKER_02: I was reading about Andrew Goldstein, the New York subway killer.
39:42
SPEAKER_02: He pushed a woman onto the subway tracks and killed her.
39:45
SPEAKER_02: And he explained what it was like for him waiting on the platform.
39:50
SPEAKER_02: And he said, I quote it, um, the train is almost there.
39:54
SPEAKER_02: And I said, Oh no, it happened.
39:56
SPEAKER_02: You know, I go into the fit again.
39:58
SPEAKER_02: Like I've done this in the past, and I pushed the woman, not meaning to push her on the tracks, but I shoved her, not knowing which direction I was going, coming or going.
40:06
SPEAKER_02: And then she fell onto the track and I went into shock horror, right?
40:10
SPEAKER_02: So assuming you think he's telling the truth, that would be an example of an irresistible impulse.
40:16
SPEAKER_02: His body moved without his mind agreeing to the movement.
40:19
SPEAKER_02: And sometimes people describe this feeling of like something is moving my hands and I can't control it.
40:25
SPEAKER_02: So this this ALI test with the irresistible impulse component, that's the standard in Massachusetts where Clancy committed her acts.
40:33
SPEAKER_02: So should she get it?
40:35
SPEAKER_02: Well, that depends on what you make of whether she was in the fit of an irresistible impulse.
40:41
SPEAKER_02: Usually irresistible impulses are sudden.
40:43
SPEAKER_02: You know, you feel like someone else is inhabiting your body, is controlling your hands.
40:48
SPEAKER_02: Um, it it's like a seizure almost, or like a uh, I'm not sure postpartum psychosis would qualify.
40:56
SPEAKER_02: It seems more like that's extreme distress, but you know, we could talk about it.
41:01
SPEAKER_02: And then the final test is called the product of mental illness test.
41:05
SPEAKER_02: And that's simply that's the most lenient.
41:07
SPEAKER_02: It simply says if your behavior was the product of mental illness, that is, you would not have done it but for mental illness, then you are legally insane.
41:15
SPEAKER_02: And Clancy would definitely win on that standard, but only one state uses that standard, and it ain't Massachusetts, it's New Hampshire.
41:23
SPEAKER_02: So it exists- which is one state too many.
41:27
SPEAKER_01: Okay.
41:28
SPEAKER_01: That's insane.
41:28
SPEAKER_01: So takeaway number one.
41:30
SPEAKER_01: I think it's a bad standard.
41:31
SPEAKER_01: New Hampshire, get rid of that.
41:32
SPEAKER_01: That's crazy.
41:33
SPEAKER_01: But okay, not relevant here.
41:34
SPEAKER_01: Josh, before we go on, so this is super interesting.
41:37
SPEAKER_01: I how different is the irresistible impulse test from the McNaughton test, which deals with, again, this cognitive and moral uh like lack of understanding, right?
41:46
SPEAKER_01: Because a violent person could just say, I have an irresistible compulsion.
41:51
SPEAKER_01: I can't help myself.
41:52
SPEAKER_01: I know it's wrong, but I'm just violent.
41:54
SPEAKER_01: And I just get disgratification from killing kittens and killing kids and torturing people and whatever.
42:01
SPEAKER_01: And it's just like that person would never be let off, right?
42:04
SPEAKER_02: Never, never.
42:05
SPEAKER_02: I've never seen a case like that.
42:06
SPEAKER_02: I've never even heard of a case like that.
42:08
SPEAKER_02: And I've practiced criminal law.
42:09
SPEAKER_02: Like, that's not how irresistible impulse works.
42:12
SPEAKER_02: It doesn't mean I'm just a really mean, bad person, and I like hurting people, so I have an irresistible impulse.
42:18
SPEAKER_02: It means that you can't control what your body is doing.
42:22
SPEAKER_01: Okay, so I do.
42:23
SPEAKER_01: In those situations, you'd say you just wouldn't be convinced.
42:26
SPEAKER_01: You'd be like, you you know it's wrong.
42:28
SPEAKER_01: You literally could control it.
42:31
SPEAKER_01: And but there are people who just say, no, I just I just can't resist.
42:34
SPEAKER_02: I mean, Ilan, it's so ridiculous.
42:36
SPEAKER_02: I think the lawyer would get would get rule 11 sanctions for bringing that up.
42:40
SPEAKER_02: I I don't know.
42:40
SPEAKER_02: I mean, rule 11 sanctions are pretty lenient, but but rule 11 sanctions, Catherine, is um uh when you bring up an argument so frivolous in court that you get punished as a lawyer.
42:50
SPEAKER_01: I've read all sorts of stuff about like brain chemistry makes some people particularly violent.
42:54
SPEAKER_01: So is brain chemistry enough?
42:55
SPEAKER_01: Like I'm not hearing voices.
42:57
SPEAKER_01: No, I understand it's wrong.
42:59
SPEAKER_01: No one's telling me to do it in my brain.
43:01
SPEAKER_01: I just have a brain chemistry that makes me violent.
43:04
SPEAKER_01: People don't make those arguments?
43:05
SPEAKER_02: Is brought up all the time.
43:07
SPEAKER_02: It almost never works, but that isn't rule 11 sanctionable.
43:10
SPEAKER_02: It's just a bad argument.
43:11
SPEAKER_01: Okay, so but that's so if that's true, then I don't see the difference between irresistible impulse and the McNaughton test.
43:19
SPEAKER_02: Um Well, so with McNaughton, you basically have to show that you are due to mental illness suffering under some sort of delusion.
43:29
SPEAKER_02: Like you think God spoke to you and told you to do something.
43:32
SPEAKER_02: Or you um have you seen that movie, A Beautiful Mind?
43:37
SPEAKER_02: Yeah.
43:37
SPEAKER_02: John Nash would probably qualify under the McNaughton standard.
43:41
SPEAKER_02: He had all those hallucinations.
43:42
SPEAKER_02: He saw the little girl who didn't exist, and he thought all these people were talking to him and telling him that he was codebreaking for the US government, but he wasn't, right?
43:51
SPEAKER_02: He was schizophrenic and he was experiencing hallucinations and delusions.
43:54
SPEAKER_02: He would qualify under the McNaughton test.
43:57
SPEAKER_02: But he actually was not out of physical.
44:00
SPEAKER_02: Control.
44:00
SPEAKER_02: Like there was a volitional relationship to his own body, right?
44:04
SPEAKER_01: No, no, but John Red.
44:06
SPEAKER_01: For clarity for our audience, I agree that you could you could qualify as like not being aware of reality.
44:12
SPEAKER_01: And that's not the same thing as irresistible impulse.
44:14
SPEAKER_01: But anybody who has an irresistible impulse of the kind that would obviate guilt also would, you know, wouldn't be aware of reality.
44:23
SPEAKER_01: Like the alien.
44:24
SPEAKER_02: No, take Andrew Goldstein.
44:26
SPEAKER_02: He said, I pushed her, and I was like, shock, horror.
44:30
SPEAKER_02: I can't, what did I just do?
44:32
SPEAKER_02: I'll quote him again.
44:32
SPEAKER_02: Listen, listen to it.
44:34
SPEAKER_02: Um the train is almost there, and I said, Oh no, it happened.
44:38
SPEAKER_02: I think it's interesting.
44:39
SPEAKER_02: He almost flips into the past tense like he already did it.
44:42
SPEAKER_02: You know, I go into the fit again and I push the woman, not meaning to push her, but I shoved her and then she fell onto the track and I went into shock horror.
44:52
SPEAKER_02: Right.
44:53
SPEAKER_02: He knew that it was what he was doing.
44:55
SPEAKER_02: He knew he was pushing an innocent woman to her death.
44:57
SPEAKER_02: He thought it was an awful thing to do, and he could not control himself.
45:02
SPEAKER_03: How do we know, though, that he's based on that statement, he's not just saying these things and you know, like we we never can get inside someone's brain, obviously.
45:12
SPEAKER_03: But so how do we do it in these cases where we know he's crazy?
45:16
SPEAKER_03: But how do we know?
45:17
SPEAKER_03: Couldn't someone just say that they had that impulse?
45:19
SPEAKER_01: Josh, let me take let me let me let me start.
45:21
SPEAKER_01: Let me take this and start because it's so just so everyone understands, I think from the what we are just our discussion, insanity is not the same thing as mental illness.
45:29
SPEAKER_01: Okay, that's point number one, and except in New Hampshire, which is insane, but whatever.
45:33
SPEAKER_01: Okay.
45:34
SPEAKER_01: There's a separate question of burden of proof and evidentiary standards.
45:38
SPEAKER_01: And this was at play in Massachusetts.
45:40
SPEAKER_01: And this is super interesting discussion.
45:42
SPEAKER_01: So let me set it up.
45:44
SPEAKER_01: Even if insanity is a valid defense, right?
45:46
SPEAKER_01: As Catherine just said, how is this something you prove?
45:50
SPEAKER_01: And something that it's interesting.
45:52
SPEAKER_01: Now, I'll get back to De Carlos Brown and the Arena Zarutska, because he really did have a documented history of like hallucinations and saying things, and I get it.
45:59
SPEAKER_01: But when it comes to voices commanding you to do things, I find it interesting that a lot of these cases, and I know it's true that some people do things that are self-harming.
46:08
SPEAKER_01: And I know Josh, we've talked about this offline, but like it's amazing that a lot of these people say, Oh, a voice told me to kill the little white girl.
46:17
SPEAKER_01: No one told you to kill the six foot seven jacked football player, right?
46:21
SPEAKER_01: Oh, Lindsay Clancy was only told to kill her children, not her husband.
46:26
SPEAKER_01: And the voice only told her to do it when no one was there to stop her, right?
46:30
SPEAKER_01: I mean, so it's a question of proof, right?
46:33
SPEAKER_01: I think is what you would say.
46:34
SPEAKER_01: It's a question of the if that's true, then it's not plausible, and the jury should just find it not persuasive, a not persuasive story, right?
46:41
SPEAKER_01: But there are two ways you can go about this.
46:43
SPEAKER_01: One is the insanity defense could be just that a defense.
46:47
SPEAKER_01: It's an affirmative defense.
46:48
SPEAKER_01: In other words, the government doesn't have the burden to prove that you were not mentally ill.
46:54
SPEAKER_01: It's your burden to prove it as an affirmative defense.
46:57
SPEAKER_01: My understanding is this is the majority rule.
47:00
SPEAKER_01: So, but it was not the rule in Massachusetts.
47:02
SPEAKER_01: So, how would it work out?
47:04
SPEAKER_01: The government would show, did you do the act in question?
47:06
SPEAKER_01: Yes, Lindsay Clancy admitted to killing the children.
47:08
SPEAKER_01: Did you intentionally kill them?
47:11
SPEAKER_01: Yes, she did intentionally kill them.
47:13
SPEAKER_01: Now, maybe willful is tricky.
47:15
SPEAKER_01: You know, if it's willful murder, is that part of the element of the offense?
47:18
SPEAKER_01: But anyway, so you can prove intentional murder at least, which is almost as serious as willful murder.
47:23
SPEAKER_01: Okay.
47:23
SPEAKER_01: Then she would have to come back and say, through either preponderance of the evidence or clear and convincing evidence, actually, although I did intend to kill them, I was insane.
47:33
SPEAKER_01: I was hearing voices, someone told me to do that.
47:35
SPEAKER_01: It was not willful murder.
47:37
SPEAKER_01: I am not morally culpable to do it.
47:39
SPEAKER_01: And she has to prove it.
47:41
SPEAKER_01: And that makes some degree of sense because, as Catherine said, how do you know?
47:44
SPEAKER_01: How do you know what's going on in their head?
47:46
SPEAKER_01: They should have to prove it through corroborating evidence and testimony and a pattern and history of doing those things, right?
47:53
SPEAKER_01: Now, the alternative minority view is the Massachusetts view, which is it is part of the element of the offense, which means the government has to prove beyond a reasonable doubt that you were not actually hearing a voice or that you were not insane.
48:07
SPEAKER_01: And that seems super crazy to me because how do you prove a negative, first of all, and certainly how do you prove it beyond a reasonable doubt?
48:14
SPEAKER_01: Now, don't get me wrong, I think even under that test, I do not think I would have had a reasonable doubt, and we'll get into the evidence as I understand it in the Clancy trial in a moment.
48:22
SPEAKER_01: But what do you think about affirmative defense versus uh using it as an element of the offense?
48:30
SPEAKER_02: Yeah, I I I think um I think the defendant should have to prove by a preponderance of the evidence that they're insane.
48:38
SPEAKER_02: Um, I I don't think the government should have to prove that they're not insane.
48:43
SPEAKER_02: And I do think it because uh people can falsely claim to be insane, to be hearing voices, and it can be exceedingly difficult to disprove that claim on the part of the state.
48:56
SPEAKER_02: But do remember that if it were really easy to claim, you know, oh, I got caught shoplifting a bunch of expensive watches.
49:05
SPEAKER_02: Well, I was hearing voices and uh and they told me to do it.
49:09
SPEAKER_02: If that were easy, the numbers wouldn't be one in 400, right?
49:14
SPEAKER_02: So why are the numbers that way?
49:16
SPEAKER_02: Well, just remember, lawyers prove mental states all the time.
49:20
SPEAKER_02: This is not weird.
49:22
SPEAKER_02: This is not some sort of sorcery.
49:23
SPEAKER_02: There's this very, you know, I see it with my criminal law students all the time.
49:27
SPEAKER_02: There's this very natural impulse to say, well, how can you ever prove anything that's in someone's head, right?
49:33
SPEAKER_02: That's impossible, right?
49:34
SPEAKER_02: So um, it must be that people can just lie about it and get away with it 100% of the time, right?
49:41
SPEAKER_02: No, no.
49:42
SPEAKER_02: I mean, Elon, how do I know that you are against birthright citizenship?
49:48
SPEAKER_02: Right?
49:49
SPEAKER_02: Why I would I if if if it were if you were charged with being against birthright citizenship, I would have no reasonable doubt that you are against birthright citizenship.
49:57
SPEAKER_02: How do I know?
49:58
SPEAKER_02: Well, as a matter of law, as a legal matter.
50:02
SPEAKER_02: How do I know what yours in your head about birthright citizenship?
50:05
SPEAKER_02: How about the fact that you like wrote a bunch of articles and gave a bunch of speeches and we did a podcast together about it, right?
50:12
SPEAKER_02: And so, like, of course you're against birthright citizenship.
50:16
SPEAKER_02: I had a case um where an older gang member instructed a younger gang member as almost part of an initiation that the younger gang member was playing video games with his friend, and the older gang member was texting the younger one over Facebook Messenger and said, do him in the alley.
50:33
SPEAKER_02: And the younger one took his friend out into the alley and had him kneel and shot him in the head.
50:40
SPEAKER_02: And um, you know, one thing about murder is you probably don't want to plan it out on Facebook Messenger, like not a good idea from just a criminal defense standpoint, not to be cynical.
50:54
SPEAKER_02: But, you know, would you have a reasonable doubt about his intent to kill?
50:59
SPEAKER_02: He engaged in a conversation about his intent to kill, and then he acted on it in the obvious way.
51:06
SPEAKER_02: And there is no what about what if you catch a guy shoplifting?
51:09
SPEAKER_02: Um uh he's he's leaving the store, his, his, his pockets are full of expensive watches, and the security guard stops him and he's like, Oh, I thought I had already purchased them.
51:20
SPEAKER_02: Oh, yeah, you thought you had purchased like 25 watches that are worth thousands of dollars and they're in your pocket.
51:27
SPEAKER_02: Nobody buys that, right?
51:29
SPEAKER_02: Hearing voices, I see people on the street where I have no reasonable doubt.
51:34
SPEAKER_02: That is, I am persuaded beyond a reasonable doubt, that they're crazy.
51:39
SPEAKER_02: I see them on the street.
51:40
SPEAKER_02: It bothers me actually.
51:41
SPEAKER_02: I don't like all those crazy people on the street.
51:43
SPEAKER_02: And by the way, you're convinced beyond a reasonable doubt that they're crazy too.
51:47
SPEAKER_02: So, you know, could some people fake it?
51:49
SPEAKER_02: Sure, it's not easy.
51:51
SPEAKER_02: You'd have to sort of successfully fake it for a really long period of time with a whole lot of people, some of whom know you and some of whom have seen a lot of fakes before.
51:59
SPEAKER_02: But this whole like instinct we have that like mental states are impossible to prove, it's just weird, right?
52:07
SPEAKER_02: It's like in any concrete case, in any concrete individual case, we all make inferences about what's in one another's head all the time, and we prove it in court all the time, and it's not a problem.
52:19
SPEAKER_02: But somehow when it's put in the abstract, people have this reaction where it's like it's unprovable.
52:25
SPEAKER_01: Okay, so maybe the problem is the jury, and which is why I kind of want to move on to that.
52:29
SPEAKER_01: And let me explain why I think maybe the problem is the jury.
52:31
SPEAKER_01: Now, look, with the obvious caveat, none of us was there and hurt every minute of testimony.
52:37
SPEAKER_01: But like I try to research this and and and the arguments on both sides and the testimony for both sides before I talk about it.
52:45
SPEAKER_01: And here's what, you know, I why I understand that uh, you know, the jury either clearly messed this up because um the the concern that Catherine and I are raising about, well, how do you prove it?
52:56
SPEAKER_01: And you say, well, you prove things all the time, uh, and you can disprove those claims all the time.
53:01
SPEAKER_01: Well, the jury really flubbed it in this case, right?
53:04
SPEAKER_01: And so here's an example of where they flubbed it, and here's why, and here's why.
53:07
SPEAKER_01: And let me make the argument why.
53:09
SPEAKER_01: The only time she ever heard a voice was when she was told to kill her children.
53:15
SPEAKER_01: Now you could say, well, oftentimes, you know, that happens.
53:18
SPEAKER_01: Okay, but she sp and the defense did not deny this.
53:22
SPEAKER_01: She specifically sent her husband out on a particular errand that would take a particular amount of time before she heard the voice.
53:31
SPEAKER_01: So she was plan.
53:32
SPEAKER_01: So you combine those two, and she had never heard the voice before or since.
53:35
SPEAKER_01: Okay, so she created the conditions to allow this to happen and then claims the reason she did it after creating the conditions to allow it to happen is because she heard a voice.
53:44
SPEAKER_01: It is totally implaus.
53:46
SPEAKER_01: She, in my view, she would clearly lose on an affirmative defense.
53:49
SPEAKER_01: But even if the state had to bur at the burden of proof, right?
53:52
SPEAKER_01: The her only evidence is that she said she heard a voice.
53:56
SPEAKER_01: And if that's enough to create a reasonable doubt, then it's a get out of jail free card.
53:59
SPEAKER_01: So the jury couldn't have gotten that thing right, or that the 11 jurors couldn't have uh gotten it right.
54:05
SPEAKER_01: Don't get me wrong, is it still possible that she heard a voice?
54:08
SPEAKER_01: Of course it's possible.
54:10
SPEAKER_01: Just like it's possible that the sun might not come up tomorrow for some crazy Armageddon reason.
54:15
SPEAKER_01: It wouldn't be a reasonable doubt in the law because it's the only real evidence, you know, that at uh especially when you add up the planning uh part of it where she didn't hear the voice.
54:26
SPEAKER_01: So compare again, we talked about De Carlos Brown, the the killer of Irina Zarutzka.
54:31
SPEAKER_01: He had a years-long documented history of schizophrenia, of hearing voices.
54:37
SPEAKER_01: He claimed multiple times that he was being controlled by some man-made device in his body.
54:42
SPEAKER_01: There are years of this.
54:43
SPEAKER_01: It doesn't follow that he was under the influence of that delusion when he killed um Irina Zarutska.
54:49
SPEAKER_01: But the point is, if he makes that claim, he's got a ton of corroborating evidence, right?
54:55
SPEAKER_01: And here there just wasn't any.
54:57
SPEAKER_01: And so it seems to me that the jury has flubbed it.
54:59
SPEAKER_01: And Catherine, you and I, I think saw Matt Walsh again on the jury basically saying, you know, here the jury's a problem, you know, it used to be intelligent jurors, and and so we had a, you know, I don't know.
55:12
SPEAKER_01: So if Catherine, you want to end up with the right.
55:14
SPEAKER_03: I think the point I would make maybe, and I don't know what Matt Walsh was, but you we've been debating this now for 55 minutes and going back and forth and talking about the these different facets, whatever.
55:24
SPEAKER_03: And I'm mostly here with you as a normal person, but falling off at parts.
55:28
SPEAKER_03: So should I be able to serve on a jury when I'm like, what is that about probable cause?
55:33
SPEAKER_03: Like, I mean, do we have the kind of populace right now in America that is fit to serve on juries when we're asking them them these kind of difficult, really hard questions with these kind of crazy laws in place like the one in Massachusetts?
55:50
SPEAKER_02: So, Josh, is jury are the juries the problem?
55:53
SPEAKER_02: I I think once again, you know, you know, do I think this jury messed up?
55:59
SPEAKER_02: And did here's what I think.
56:00
SPEAKER_02: I think this jury basically said she may, she was, she was under a huge amount of stress and we should sympathize with her.
56:07
SPEAKER_02: And she sought help and she didn't get it, so it's not her fault.
56:10
SPEAKER_02: I think that's what they did.
56:11
SPEAKER_02: I don't think they really like scrutinized whether she was subject to an irresistible impulse.
56:16
SPEAKER_02: Does that so yeah, the jury screwed up?
56:18
SPEAKER_02: Does that mean the insanity defense as an institution, as a thing, is a bad thing?
56:23
SPEAKER_02: No.
56:23
SPEAKER_02: Does that mean the jury system is a bad thing?
56:26
SPEAKER_02: No, again, wrong target.
56:29
SPEAKER_02: And any populist in the true sense, like someone who loves, what is a populist?
56:33
SPEAKER_02: Properly understood.
56:34
SPEAKER_02: It's someone who loves the voice of we the people and is skeptical of elite control, right?
56:40
SPEAKER_02: Anyone who thinks that should love juries.
56:42
SPEAKER_02: They're one of the most democratic things in literally the history of mankind and certainly in our country.
56:47
SPEAKER_02: And any conservative in the true sense, what is a true conservative?
56:51
SPEAKER_02: It's someone who believes in what Western and American civilization has built over the centuries and wants to keep it from being torn down.
56:59
SPEAKER_02: Anyone like that should love juries, which are even just as almost as ancient as the insanity defense.
57:05
SPEAKER_02: Actually, it's kind of a tough call because juries go back to like the 12th century.
57:08
SPEAKER_02: So juries are ancient.
57:10
SPEAKER_02: They are hugely democratic, they're the most popular element in our criminal justice system.
57:16
SPEAKER_02: Without them, you are always being judged and sentenced by elites, right?
57:22
SPEAKER_02: There's a judge who is a highly educated member of the official class, indeed member of the government, who has exclusive control over your liberty.
57:31
SPEAKER_02: With the jury, there's this block in place.
57:34
SPEAKER_02: Before the government gets to, which is to say, before the power holders, before the elite in many cases, gets to take away your liberty or take away your money or stain you with a criminal condemnation.
57:46
SPEAKER_02: There's a group of 12 fellow citizens who have to give that the green light.
57:51
SPEAKER_02: And that is a tremendous popular check on the power of government.
57:55
SPEAKER_02: It's traditionally the bulwark of democracy.
57:58
SPEAKER_02: It has faded in modern times.
58:00
SPEAKER_02: But it is weird, weird to hear the populist movement, you know, the new right types, the America first types, turn against the jury, right?
58:11
SPEAKER_02: And they use old Woodrow Wilson style arguments, right?
58:14
SPEAKER_02: These very elitist arguments that we've heard for like a hundred years and more.
58:18
SPEAKER_02: Ordinary people are too stupid to serve on juries.
58:20
SPEAKER_02: Or there should be a better class of people.
58:22
SPEAKER_02: Well, what do they want?
58:23
SPEAKER_02: Do they want only PhDs to make the decision about human liberty?
58:28
SPEAKER_02: Frankly, as a populist, I do not think PhDs would do a better job of it.
58:33
SPEAKER_02: Boy, would they be bad when it comes to charge gender issues of criminal justice, right?
58:39
SPEAKER_02: You think they'll be better?
58:40
SPEAKER_02: Or how about purely elite control through judges?
58:43
SPEAKER_02: Do you think district judges are so fair?
58:45
SPEAKER_02: Is that the history of our podcast that we've been talking about?
58:48
SPEAKER_02: These the wonderful sense of justice among district judges?
58:51
SPEAKER_02: The jury is flawed.
58:52
SPEAKER_02: It is less flawed than the alternatives.
58:55
SPEAKER_02: And I feel like our movement is getting things not just wrong, but backwards, right?
59:01
SPEAKER_02: So, like if the wrong guy wins in Minnesota, if El Said becomes a senator, I am not going to turn against elections.
59:09
SPEAKER_02: I'm going to be really concerned about what's going on in the culture of Minnesota, but I am not going to turn against elections.
59:16
SPEAKER_02: And, you know, that's Michigan, by the way.
59:19
SPEAKER_02: Michigan, I'm sorry.
59:20
SPEAKER_02: I got mixed up.
59:21
SPEAKER_02: I'm sorry to stain your fair state, right?
59:24
SPEAKER_02: But um plenty stained already.
59:25
SPEAKER_02: It's okay.
59:27
SPEAKER_02: Um, but I'm not going to turn against elections, right?
59:31
SPEAKER_02: So we populists and we conservatives, we should love juries.
59:34
SPEAKER_02: And we should talk about the real problem, which is what's going on in the culture of America, that you have 11 people who are ready to acquit because they're just sympathetic.
59:45
SPEAKER_03: Yeah, I t I definitely agree on this issue.
59:47
SPEAKER_03: And I think the elitism point and the the thing we saw, you know, like look at what we saw in COVID with, you know, trusting the experts and the doctors are always right.
59:56
SPEAKER_03: If those are the kind of people that we have serving on juries, certainly that would not be any fairer.
1:00:00
SPEAKER_03: But there obviously is a problem with the people we have serving on these juries.
1:00:05
SPEAKER_03: And I think, I don't know, maybe it's a shared values thing.
1:00:08
SPEAKER_03: Because one of the things I saw in the women who were on the jury is they talked about compassion over and over in these clips and having compassion for Lindsay and how they didn't like the prosecution because the pro prosecution didn't have enough compassion for Lindsay Clancy.
1:00:23
SPEAKER_03: Well, that makes no sense.
1:00:25
SPEAKER_03: Of course they didn't have compassion for Lindsay Clancy, but that's what they keyed in on, these women.
1:00:29
SPEAKER_03: And so maybe the problem is that these values that we used to share back when, you know, our country was founded, like maybe justice, are not so much a part of our society now.
1:00:41
SPEAKER_03: And that's the core problem.
1:00:43
SPEAKER_03: Although that seems like a much bigger problem to fix to me than just the jury system.
1:00:48
SPEAKER_03: So I think that's where a lot of people are as well.
1:00:51
SPEAKER_03: Clearly, our people have a problem, our women in particular, I think I can say.
1:00:54
SPEAKER_03: But how do you fix that?
1:00:56
SPEAKER_03: I don't know.
1:00:57
SPEAKER_01: Let me amplify this point and then send it back to you, Josh, because maybe uh we are coalescing around the proposition uh that juries are just a microcosm of the greater society, and it's the greater society's problems that were reflected in the jury.
1:01:13
SPEAKER_01: But there is something to be said that like juries, as Catherine was suggesting, really work less well.
1:01:20
SPEAKER_01: I want to be careful what I say in a society that is not, because I want to be accurate, not because I'm afraid of you know the consequences, but because juries really depend on a degree of homogeneity of views.
1:01:31
SPEAKER_01: Okay.
1:01:32
SPEAKER_01: And let me give an example that I thought someday we might talk about on this podcast.
1:01:38
SPEAKER_01: Um, race and racial compositions on juries.
1:01:42
SPEAKER_01: Uh, there have been some interesting studies which raise uh and history that raise the question if juries can work in a heterogeneous, um, multiracial society where there is minimal assimilation.
1:01:55
SPEAKER_01: Okay, let me put it that way.
1:01:56
SPEAKER_01: Let me give you some examples.
1:01:58
SPEAKER_01: In the South, during Reconstruction, it was very difficult to get KKK members convicted because white people wouldn't convict them.
1:02:06
SPEAKER_01: Okay, so what ended up happening is they required that that they take an oath that white people basically couldn't take.
1:02:12
SPEAKER_01: And so finally you got black jurors who were able to convict.
1:02:14
SPEAKER_01: Okay, interesting.
1:02:15
SPEAKER_03: That's crazy, by the way.
1:02:16
SPEAKER_03: I didn't know that story.
1:02:17
SPEAKER_01: Yeah.
1:02:18
SPEAKER_01: And then Jim Crow sort of reversed, right?
1:02:20
SPEAKER_01: Jim Crow, um, you had uh not reversed, Jim Crow was worse because they they um didn't try the Reconstruction Oath thing.
1:02:29
SPEAKER_01: And so you had white juries who effectively never convicted a white person who had committed a crime like a lynching against a black person.
1:02:37
SPEAKER_01: Okay.
1:02:37
SPEAKER_03: So there's a precedent for kind of finagling with the jury system.
1:02:40
SPEAKER_03: Is that what you're saying?
1:02:42
SPEAKER_01: Uh yes.
1:02:43
SPEAKER_01: Uh taking oaths that you hadn't ever tried to suppress civil rights.
1:02:48
SPEAKER_01: And that turns out that the white people wouldn't do it because they were all clansmen.
1:02:52
SPEAKER_01: So um fascinating.
1:02:54
SPEAKER_01: Uh, but like another example, which this is super interesting, and I found this, and it's true, the study exists, and it was buried.
1:03:01
SPEAKER_01: It was done by the University of College London.
1:03:04
SPEAKER_01: Okay.
1:03:05
SPEAKER_01: The study, it's it sounds like I don't, I don't know their motives, but it sounds like they went to out to prove that white jurors were were racially discriminating against uh defendants of color.
1:03:16
SPEAKER_01: And what they found was astounding.
1:03:17
SPEAKER_01: It turned out that that in fact white jurors were more lenient to defendants of color than they were to white defendants, and that um jurors of color were insanely disproportionately likely to convict a white defendant and to acquit a juror of color.
1:03:36
SPEAKER_01: Basically, this ethnicity.
1:03:37
SPEAKER_01: A defendant of color.
1:03:38
SPEAKER_01: Uh defendant of color, correct.
1:03:40
SPEAKER_01: And so it turns out what they proved was actually that the white jurors were not the ones discriminating, but it was the jurors of color who were discriminating.
1:03:47
SPEAKER_01: This was buried, but I found the study and it the data is there.
1:03:50
SPEAKER_01: I mean, it's crazy.
1:03:51
SPEAKER_01: So look, the jury survived all of these systems.
1:03:54
SPEAKER_01: The jury survived Jim Crow, the jury survived the Reconstruction period.
1:03:59
SPEAKER_01: I think what I'm suggesting is the jury is a reflection of the community.
1:04:03
SPEAKER_01: And if the community has certain problems, like ethnic tribalism, because of you know a degree of immigration without the requisite assimilation, then maybe the jury can't work.
1:04:12
SPEAKER_01: If the jury, you know, if we have these sicknesses in our body politics about compassion and this feminization, I guess I'm trying to move on to that sort of topic.
1:04:20
SPEAKER_01: What again, Josh, what did you call it?
1:04:22
SPEAKER_01: More if I can't remember what it's called, you need a better name for it.
1:04:24
SPEAKER_01: Weaponized moralization.
1:04:26
SPEAKER_02: Story of my life.
1:04:27
SPEAKER_02: Weaponized moralism.
1:04:29
SPEAKER_01: Weaponized moralism.
1:04:31
SPEAKER_01: I like it.
1:04:31
SPEAKER_01: I like it.
1:04:32
SPEAKER_01: Then it's not the jury problem.
1:04:34
SPEAKER_01: It's the jury's a microcosm of these other problems.
1:04:36
SPEAKER_01: But those other problems make it difficult for the juries to function, right?
1:04:39
SPEAKER_02: So I think now we are really getting there.
1:04:42
SPEAKER_02: And and we are coalescing, and it's it's um and and that's what I mean by not misfiring, but really seeing the the target as what it is and clarifying what that is.
1:04:53
SPEAKER_02: You know, if you have a culture where white Southerners hammer black defendants and won't convict KKK members, or where women hammer men and forgive women, or where blacks hammer whites and forgive blacks, or vice versa, like all basic principles of justice are lost, that's the real problem, right?
1:05:12
SPEAKER_02: And it won't be fixed by transferring power to elites because guess what?
1:05:16
SPEAKER_02: Elites are almost always worse, right?
1:05:20
SPEAKER_02: Elites are almost always worse about these identity politics issues.
1:05:23
SPEAKER_02: You gotta deal with that sickness in the culture, and the sickness has a name.
1:05:27
SPEAKER_02: The name is identity politics.
1:05:30
SPEAKER_02: Being on the side of your group, right or wrong, is the core consequence of identity politics, right?
1:05:37
SPEAKER_02: So um I be let me tell a little story about this.
1:05:41
SPEAKER_02: I grew up in the northern part of Alaska, uh, Fairbanks, Alaska.
1:05:45
SPEAKER_02: And Fairbanks, Alaska um has a funny kind of politics where there are fewer black white tensions than in a lot of America, but there are greater ethnic tensions between Native Alaskans, that is, Eskimos and Athabascans, and sort of Everybody else.
1:06:00
SPEAKER_02: And those tensions are quite severe.
1:06:02
SPEAKER_02: And I remember when I was a teenager, there was this horrible case where a young boy was cut to pieces and uh and and and murdered.
1:06:15
SPEAKER_02: And uh a group of Native boys were accused of the crime, sort of a gang kind of crime or a mob kind of crime.
1:06:23
SPEAKER_02: And um it became intensely controversial, and everybody was lining up on the side of their tribe and against the other tribe, and the natives variously said it was justified or he didn't do it because and those are logically inconsistent, but who cares, right?
1:06:38
SPEAKER_02: We're on his side, we're on his side.
1:06:40
SPEAKER_02: So he didn't do it and it's justified at the same time.
1:06:43
SPEAKER_02: And all the whites were on the other side and we're like, how can the natives say that?
1:06:46
SPEAKER_02: And you had, guess when else, when else we saw that?
1:06:49
SPEAKER_02: The OJ Simpson case, right?
1:06:51
SPEAKER_02: When there was this, you know, among black America, there was this uh sympathy for him and a lot of support for him, and that manifested in saying he didn't do it, but it also manifested in saying, well, she was a white woman anyway, and it also manifested in about half a dozen other ways.
1:07:09
SPEAKER_02: And then the white community was outraged at the black and the black, at the white, right?
1:07:13
SPEAKER_02: So, like when you have tribal politics, when you have identity politics, yeah, your country is really messed up.
1:07:20
SPEAKER_02: And that's why the enemy of all is tribal politics.
1:07:24
SPEAKER_02: The enemy of all is identity politics.
1:07:26
SPEAKER_02: We should hate that, we should fight it, we should do everything we can to overcome it.
1:07:30
SPEAKER_02: Um, but we shouldn't think the problem is fundamentally the jury or the insanity defense.
1:07:35
SPEAKER_02: It's this tribal politics that, you know, break women from men and black from white and native from everyone else.
1:07:42
SPEAKER_02: And honestly, the I think this was the beginning of me becoming a member of the new right, this anti-identity politics guy, because I saw as a teenager how vicious it is between the native community and the non-native community in Alaska.
1:07:56
SPEAKER_02: And it was like, it was like a little preview of what was to come in all of America.
1:08:01
SPEAKER_02: Like, I'm like, imagine some Russian kid who gets like beaten up by a gang of Marxists in 1900.
1:08:09
SPEAKER_02: And like the Soviet, the Russian revolution with Lenin isn't happening until 1917.
1:08:13
SPEAKER_02: But but from 1900 on, he's like, the problem is the the Marxists, the Marxists are coming, the Marxists are coming.
1:08:20
SPEAKER_02: And everybody's like, no, the Marxists are just some fringe movement.
1:08:24
SPEAKER_02: It's not the Marxists, it's the, you know, it the problem is Germany or something.
1:08:28
SPEAKER_02: And it problem is the Marxists.
1:08:31
SPEAKER_02: So I just got an early preview of that because of my peculiar upbringing.
1:08:35
SPEAKER_01: So let's let's wrap this up.
1:08:36
SPEAKER_01: We're running out of time, and we had a few other clips we wanted to show, but let's just sort of describe them.
1:08:40
SPEAKER_01: Let me describe them and get your final thoughts uh and then we'll wrap it up.
1:08:44
SPEAKER_01: You know, there's this juror, uh Paula Devlin, I can't remember exactly her name, who's like doing this media tour.
1:08:50
SPEAKER_01: And, you know, she kind of reflects the problems that were on the jury, right?
1:08:53
SPEAKER_01: She basically says, like, oh, the holdout just couldn't get over the fact that she viciously killed her children, as if he should get over the fact that she viciously killed her children.
1:09:02
SPEAKER_01: And then there was another one, Catherine.
1:09:03
SPEAKER_01: What did she say?
1:09:04
SPEAKER_01: She or it was a different juror who said something about um uh this will ensure that women can get the help that they need.
1:09:11
SPEAKER_03: Yeah, she said that they knew that this was a big moment for women, basically, when they were deliberating and that what they decided could make a change for women.
1:09:20
SPEAKER_03: And that, yeah, they just wanted Lindsay to get the help she needs.
1:09:22
SPEAKER_02: Yeah, so Catherine, so if you and then poor Lindsay, never mentioning Cora and Dawson and the kids who are dead, never even, you know, the compassion.
1:09:31
SPEAKER_02: What a what what kind of compassion is it that extends to her but is equally hardening your heart to them?
1:09:37
SPEAKER_02: And and so, you know, that that's that's what identity politics does.
1:09:42
SPEAKER_02: That's the evil of identity politics.
1:09:45
SPEAKER_02: I mean, so this I I've watched those clips.
1:09:47
SPEAKER_02: The subtext of those clips are we are a group of women who understand and sympathized with this woman's pain, and by extension, all women's pain.
1:09:57
SPEAKER_02: And so we wanted to quit.
1:09:58
SPEAKER_02: And they also talk about the holdout, who is male, and they say this bad, arrogant man lacked compassion for what poor Lindsay was going through.
1:10:06
SPEAKER_02: And we did our best to shame him into agreeing with us, but he just wouldn't do it, and what an awful person.
1:10:14
SPEAKER_02: In other words, if you can't get over a woman killing her kids, you're a sexist.
1:10:19
SPEAKER_02: If you don't buy that she's insane, or don't understand that we've already, we've all agreed to treat her as insane for the sake of all women, you're a sexist, which includes no indications of sympathy for the three dead children, just the mother, not even a mention of them in any of the clips, except the one Elon referred to, where she where one of the jurors actually said, the man was so arrogant, he was such a bad human being, he lacked compassion because he just couldn't get over the vicious killing of the kids.
1:10:49
SPEAKER_02: And she even said, vicious killing of the kids.
1:10:51
SPEAKER_02: Why couldn't he get over that?
1:10:52
SPEAKER_02: What a bad human being that he couldn't get over that.
1:10:55
SPEAKER_02: So here's my point: I believe in compassion, I believe in biblical compassion.
1:11:01
SPEAKER_02: This is fake compassion because it's really just self-dealing.
1:11:06
SPEAKER_02: These are a group of people who sympathize with the mother because she's like them.
1:11:11
SPEAKER_02: They get stressed, they get anxious, they have a hard time.
1:11:14
SPEAKER_02: Like they sympathize with her because they see themselves in her and her in them.
1:11:18
SPEAKER_02: It's like me saying I'm a hero of compassion because I sympathize with other Jewish conservative law professors, like all three of us or something like that, right?
1:11:27
SPEAKER_02: Um uh newsflash, that's not that's not compassion, that's self-interest.
1:11:33
SPEAKER_02: And it's also fake compassion because it involves hardening the heart at least as much as softening it, right?
1:11:40
SPEAKER_02: So soften your hearts to women, harden your hearts to children.
1:11:44
SPEAKER_02: Soften your heart to women, harden your heart to men.
1:11:48
SPEAKER_02: Uh soften your heart to criminal offenders, harden your heart to crime victims.
1:11:54
SPEAKER_02: Sympathize with Palestinians, hardened to Jews.
1:11:58
SPEAKER_02: Sympathize with black people, hardened to Asian and white people.
1:12:01
SPEAKER_02: Right?
1:12:02
SPEAKER_02: If you look at so much woke compassion, so-called compassion, there's this there's this darkness running through it.
1:12:10
SPEAKER_02: Because it's actually not love for all human humanity, right?
1:12:13
SPEAKER_02: It's love for some humans at the expense of others.
1:12:17
SPEAKER_02: There's always, always some hardening, some hatred, some indifference to another group of people who are also being harmed.
1:12:29
SPEAKER_02: And this is one more thing about this.
1:12:31
SPEAKER_02: What they describe in the jury room sounds like a kind of bullying that is all too familiar in the woke era.
1:12:38
SPEAKER_02: And we need a name for it.
1:12:40
SPEAKER_02: And that's why I came up with this name, which apparently you guys can't remember.
1:12:43
SPEAKER_02: Weaponized moralism.
1:12:44
SPEAKER_02: Weaponized moralism is when a group of people get together to say, you're a bad person because you disagree with what we caring people think.
1:12:54
SPEAKER_02: And because you're a bad person for disagreeing with what caring people think, we're gonna punish you socially and if we can professionally.
1:13:02
SPEAKER_02: We're gonna ostracize you.
1:13:04
SPEAKER_02: We're gonna see if we can get you fired.
1:13:05
SPEAKER_02: And that's justified.
1:13:06
SPEAKER_02: That makes us good people because your views show you are uncaring.
1:13:11
SPEAKER_02: So you're actually aiming at harm to show that you're caring.
1:13:15
SPEAKER_02: And it's imposing social costs for political disagreement.
1:13:18
SPEAKER_02: And among many other problems, that is despotic.
1:13:22
SPEAKER_02: And it creates a society in which no matter what the formal law says, we are all profoundly unfree.
1:13:30
SPEAKER_02: And I think we feel that lack of freedom every day.
1:13:33
SPEAKER_02: So is that a problem?
1:13:34
SPEAKER_02: It's a huge problem.
1:13:35
SPEAKER_02: Is identity politics a problem?
1:13:37
SPEAKER_02: It is the problem of our time.
1:13:39
SPEAKER_02: But none of that is about juries and none of that is about the insanity defense.
1:13:43
SPEAKER_02: It is about gender politics, it's about weaponized moralism.
1:13:47
SPEAKER_02: Catherine, last word goes to you.
1:13:49
SPEAKER_03: Feminism in particular, I think that maybe I'm the one on this podcast who can say what, of course, everyone's thinking, which is that women have a particular issue here in this gender politics that you're correctly identifying, Josh.
1:14:04
SPEAKER_03: And I think feminism has sold women of America this idea that they should have no consequences to literally any actions.
1:14:13
SPEAKER_03: Obviously, this is most commonly seen when it comes to sex.
1:14:16
SPEAKER_03: The modern feminist movement says abortion on demand and up until birth, or even if you live here in Minnesota after birth, should be legal and allowed and even celebrated.
1:14:26
SPEAKER_03: The birth control pill is pushed on young, young girls so early so that they know there are no consequences for any of their actions revolving around sex.
1:14:35
SPEAKER_03: But even if you think about other movements that have existed within feminism lately, like the body positivity movement, there's no consequence for being overweight.
1:14:44
SPEAKER_03: Well, of course there is, but the feminists don't care.
1:14:47
SPEAKER_03: They just say there should be no consequences.
1:14:49
SPEAKER_03: And so I think we have a whole, a whole number of women in America that have bought into this idea that no matter what they do, because they are a woman, because they are female, and because they're feminists, they should not face consequences for their actions.
1:15:03
SPEAKER_03: And that is a huge problem.
1:15:05
SPEAKER_01: That is a super interesting thread connecting all those ideas.
1:15:08
SPEAKER_01: I love this discussion.
1:15:10
SPEAKER_01: I think, although, as we started off saying in this episode, this led to really heated debates among the three of us in the lead up to this episode.
1:15:17
SPEAKER_01: I think we've coalesced around some very interesting uh conclusions.
1:15:20
SPEAKER_01: And I think we agree a lot more now than that we disagree.
1:15:22
SPEAKER_01: And we do think that we've, or at least we hope that we've diagnosed the problem uh in a in a helpful uh way that others may not have to our audience.
1:15:30
SPEAKER_01: We hope you like this.
1:15:31
SPEAKER_01: Don't forget to hit that like and subscribe button.
1:15:33
SPEAKER_01: Thank you as always for the see this.