The Insanity Defense with Mackenzie Joy Brennan

What do John Hinckley Jr. and a jazz age tuberculosis patient have in common? Legal correspondent ​​Mackenzie Joy Brennan takes Sarah through some of the strange cases that helped make—and break—the insanity defense in America. Our story includes a woman who carried her (alleged) victims’ bodies around in a suitcase, and the attempted assassination of Ronald Reagan—carried out with the intention of impressing a young Jodie Foster. More Mackenzie Joy Brennan: http://www.mkzjoybrennan.com More You're Wrong About: Bonus Episodes on PatreonBuy cute merchYWA on Instagram Sarah's other show, You Are Good Support the show Learn more about your ad choices. Visit megaphone.fm/adchoices

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Sarah Marshall?

  Like broadly speaking, if you're an American woman and you're not insane in the 1920s and 30s, then like you're not aware of what's going on.

• 0:18Sarah Marshall?

  Welcome to You're Wrong About. I'm Sarah Marshall, and this week, we are, of course, investigating the insanity defense, The Law, the Myth, the Legend, with Mackenzie Joy Brennan. Mackenzie was last with us for our episode, Has the Supreme Court Always Been This Terrible? Mackenzie is a lawyer and legal analyst and would like to tell us that since we last talked, the Supreme Court has also shown us that it can get even more terrible. So we should also probably have her back on to talk about that, too. But in the meantime, this episode really does have so many stories within it. A Great Depression era

• 0:59Sarah Marshall?

  woman facing off against the electric chair, Jodie Foster, and of course, Ronald Reagan. Mackenzie is also joining us for an upcoming bonus episode. I can't wait. And if you haven't listened to our bonus episodes, you should check them out sometime. We have had some really fun stuff lately, including a discussion of Beyond Belief, Fact or Fiction, with Chelsea Weber Smith, and a conversation about Bigfoot, My Favorite Cryptid, with our inconvenient mammal correspondent, Lulu Miller. And that's your introduction. This is a law episode. It's a history

• 1:42Sarah Marshall?

  episode. We're so happy to share these stories with you and to keep on learning about the legal world, which tries to make us feel dumb, so we don't notice what people are up to. But with a little bit of vocabulary and with a great guest like Mackenzie, we can learn to understand the world we're in. And let's go do it together.

• 2:12Sarah Marshall?

  Welcome to You're Wrong About, the podcast where we talk about topics that you grew up hearing on Law and Order, my great joy and dream. And with me today is our legal correspondent, our con law correspondent, I believe, actually, Mackenzie Brennan, to talk to us about the insanity defense.

• 2:35Speaker 01

  I'm so excited about this and I'm really glad to be doing it together because it is a wild ride, as the name would suggest. And a lot of angry people at different phases about too many people being insane or not enough people being insane. We've got to do something about it.

• 2:51Sarah Marshall?

  We've got to do something about it and we've got to think of the children. I'm also reminded of, and this is me quoting from memory, something I read years ago, but I swear to God that there was a like, political cartoon around the time of the Leopold and Loeb trial, because there was, you know, it was a huge media trial. It was two rich teenagers who had, or close to teenagers, who had apparently decided to commit the perfect murder for fun. Definitely made a big impression on Hitchcock.

• 3:21Speaker 01

  And they always, always fail at it. I feel like

• 3:23Sarah Marshall?

  They always, always do.

• 3:25Speaker 01

  Cobra is the same. They're like, this time, I'm the smartest one. I'm going to get away with it. And time immemorial, they all fail.

• 3:32Sarah Marshall?

  I guess like, at the time, the forensic psychiatrist is, was referred to as an alienist.

• 3:37Speaker 01

  Okay, yeah.

• 3:37Sarah Marshall?

  Right? And obviously, if you're, you have a robust defense, especially with Clarence Darrow involved, you're going to try and get a sympathetic alienist who says, well, I mean, I think that they were trying to mount insanity as one of their defense tactics. And I think that there was a cartoon at the time that showed people reading about the trial or hearing about it, and that the joke was truly something that moment when you realize everyone's insane.

• 4:09Speaker 01

  Oh, wow. That's great. Um, I wonder, do you know what year that was?

• 4:15Sarah Marshall?

  Tumblr is eternal.

• 4:16Speaker 01

  Yeah, seriously.

• 4:17Sarah Marshall?

  This was in the twenties, like mid twenties, twenty four. It was like twenty seven. It was a jazz age trial.

• 4:23Speaker 01

  Cause that sets us up kind of nicely.

• 4:26Sarah Marshall?

  Okay.

• 4:27Speaker 01

  We could start with the case that like illustrated this one version of the insanity defense, which is the McNaughton test. So there are like stricter and less strict definitions over time. And we can look at them as a spectrum.

• 4:42Sarah Marshall?

  Well, let me start with like a bonehead question.

• 4:44Speaker 01

  Go for it.

• 4:45Sarah Marshall?

  Okay. So like today, right now, right? If you're like watching SVU with your grandma.

• 4:52Speaker 01

  Yeah.

• 4:52Sarah Marshall?

  And they've got someone whose lawyer is using the insanity defense. Like, what is the average, like, American TV viewers' understanding of what that means? And is that approximately what the actual legal definition is?

• 5:07Speaker 01

  Oh, boy. I feel like maybe you are better qualified. I don't know. You're pretty legally savvy.

• 5:14Sarah Marshall?

  Oh, gosh.

• 5:14Speaker 01

  I feel like knowing the law messes you up about what

• 5:18Sarah Marshall?

  Right.

• 5:18Speaker 01

  the average person thinks, because it just rewires your brain in that way of thinking.

• 5:24Sarah Marshall?

  Right. Okay. I think I have two levels of understanding.

• 5:27Speaker 01

  Okay.

• 5:28Sarah Marshall?

  So I think, and I'm not confident that I'm right, but I think that the actual legal definition.

• 5:34Speaker 01

  Legally insane rather than medically, because of course, complicate it.

• 5:38Sarah Marshall?

  Yeah, legal, legally insane, as right, as opposed to all the other possible definitions, is that you lack the capacity to tell the difference between right and wrong. But as I say that, I'm like, is that true? That might just be what they say on TV, like about how you have to wait forty eight hours to report a missing person or whatever.

• 5:57Speaker 01

  Which like, don't go by those rules. If somebody goes missing, please try to report them, because that is not every state.

• 6:03Sarah Marshall?

  Yeah, there's our first PSA.

• 6:05Speaker 01

  Right?

• 6:05Sarah Marshall?

  But then I think that like, there's, you know, if you're like, uh, if you've watched even less Law and Order than I have, then you might just think that it's like some kind of boo hoo, you know, sob story type defense where you're just like. I'm insane. And the judge is like, oh, poor baby.

• 6:23Speaker 01

  Or like, do you have a diagnosis? Or were you having a crazy, like, did people see you being insane?

• 6:29Sarah Marshall?

  Yeah. But I know that also, like, across the board, there is this general American fear of someone getting off on a technicality.

• 6:37Speaker 01

  Yes.

• 6:37Sarah Marshall?

  And I think that that is one of the ways that we see that as happening. And I'm very curious about what kind of a distance we must travel between the average SVU viewer and what appears to really be going on and also why it's going on.

• 6:52Speaker 01

  Yeah. So I think that you're absolutely right. And I know you've brought it up in different contexts on your show, but we're in this era where the, like, this specter of evil people getting off on technicalities is looming over all of us. And these people are beyond reform. And so this is a really terrible fear. And that world gets pretty far away from the whole founding principle of it's better that one or that 100 guilty men go free than that one innocent be in prison. Like that, those two conceptions are pretty far apart. And yet I think we've landed in the, oh, my God, somebody's going to be let off on a technicality world.

• 7:33Sarah Marshall?

  Right.

• 7:34Speaker 01

  And in regards to the insanity defense, I think your definition is, I think you're right that that's what a lot of people think it is. That's kind of what I was going to say, too. And it's pretty close to the truth.

• 7:46Sarah Marshall?

  The like, lack of ability to determine the difference between.

• 7:49Speaker 01

  Yeah.

• 7:49Sarah Marshall?

  Yeah.

• 7:50Speaker 01

  And that's a pretty strict interpretation, because if you think of it from really simple terms, anything that demonstrates trying to hide what you've done, in theory, could demonstrate that you understand at the very least that society sees this as wrong.

• 8:07Sarah Marshall?

  Right. And also, like, as a, as a question, because I have no idea what the answer is, but like, what if I'm like, okay, society recognizes that it will be wrong of me to assassinate this person, but I also understand based on my delusions.

• 8:20Speaker 01

  That I must do it.

• 8:20Sarah Marshall?

  That they are controlling my brain, and so I have to, right? I mean, that's a difficult area.

• 8:26Speaker 01

  Yeah. And that's exactly what the problem, if you think it's a problem, is with this stricter definition. So I actually was going to use a case from when that was more the law of the land.

• 8:40Sarah Marshall?

  Yeah.

• 8:40Speaker 01

  And so we, we started there. But applied it in a kind of loose way. Then we came to a much looser definition than, and this is where we'll spend most of our time, John Hinckley Jr. Tried to kill President Reagan, got off on an insanity defense.

• 8:58Sarah Marshall?

  To get Jodie Foster's attention, you know, I mean.

• 9:01Speaker 01

  Which like, who among us has not tried?

• 9:03Sarah Marshall?

  Exactly, exactly.

• 9:05Speaker 01

  But then, everybody was very upset that he dared serve his sentence in a mental health facility, which he ended up serving 35 years in an inpatient facility. So it's not like he was frolicking around.

• 9:20Sarah Marshall?

  And now he posts his acoustic guitar songs on YouTube.

• 9:24Speaker 01

  Look, like, we'll talk more about him, but this is a guy, he does paintings and has a rescue cat and writes his little acoustic songs. That is less harmful than many people that I've met. So.

• 9:39Sarah Marshall?

  Right? And probably talked about in your line of work.

• 9:43Speaker 01

  Yeah.

• 9:43Sarah Marshall?

  Yeah.

• 9:44Speaker 01

  So we'll get to his case, though.

• 9:46Sarah Marshall?

  Yeah. And of course, I'm always interested in a case where someone is able to access extremely robust legal defense. And then the public sees that happening and is like, oh, my God, no, that's too much defense. We need to scale this back.

• 10:03Speaker 01

  Totally. It's another thing that we've talked about in other contexts that oftentimes when somebody like has a successful defense. And I do think this can go too far. Like, I just was covering the Diddy trial and he had like.

• 10:17Sarah Marshall?

  OJ Simpson, too much defense. Nobody, nobody needs eight lawyers if they're one person, probably.

• 10:21Speaker 01

  You don't need more resources than the government. Like, at that point, it's really excessive. But I mean, Hinckley was not a wealthy man. I think, oh, actually, the first case that we're gonna look at is an example of having a lot of legal resources because this gal had her legal fees paid for by William Randolph Hearst.

• 10:44Sarah Marshall?

  Okay, I want to hear about this one.

• 10:46Speaker 01

  Yeah, right? He wanted exclusive rights to her story. So he, in exchange.

• 10:51Sarah Marshall?

  Now, why don't we have? More tabloid media offering to pay for people's legal defense. I'm sure it would be incredibly unethical, but still, but even so.

• 11:00Speaker 01

  Exactly. Well, Hearst blazed a lot of super cool trails that made policymakers say like, "Okay, now we have to put this law into place because the ethics of this are so fuked."

• 11:13Sarah Marshall?

  See, honey, because of me, there's a warning.

• 11:15Speaker 01

  Exactly. Like the sign put on the wall that makes you aware that someone has tried this before. So there are a lot of cases that are like good, early insanity defense ones, but like this case, it's from Arizona, like me, and it has everything. It's got a hot 25-year-old woman with tuberculosis, lesbian affairs, and then a fugitive surrendering in a funeral home right before Halloween. Like, this is a super fun case, except for the victims.

• 11:46Sarah Marshall?

  And then Hearst.

• 11:47Speaker 01

  And then Hearst.

• 11:47Sarah Marshall?

  Yeah.

• 11:48Speaker 01

  So this is Winnie Ruth Judd, and in 1931.

• 11:52Sarah Marshall?

  Wow, that is a name.

• 11:54Speaker 01

  I know, right?

• 11:55Sarah Marshall?

  I want to hear her country single as well.

• 11:57Speaker 01

  I know. She could have had a rollicking career, but for the fact that she moved out to Arizona with her erstwhile husband, Dr. Judd, because she had tuberculosis and they thought that it would dry up her lungs.

• 12:13Sarah Marshall?

  Yeah, you do what you can.

• 12:14Speaker 01

  Yeah.

• 12:15Sarah Marshall?

  Yeah.

• 12:16Speaker 01

  So they move out there, but Dr. Judd is busy being addicted to morphine, so he's not really paying attention to his wife.

• 12:23Sarah Marshall?

  As is the style at the time.

• 12:25Speaker 01

  Totally. I would have done the same probably if I had the access. But so she becomes friends with these two gals, and it's a little unclear who was sleeping with who.

• 12:34Sarah Marshall?

  Mm-hmm, but there are gals.

• 12:36Speaker 01

  There's also another guy in the picture. She gets really mad one night, and long story short, the two gals end up dead.

• 12:44Sarah Marshall?

  Winnie, don't do that.

• 12:45Speaker 01

  Yeah, no, you shouldn't. I'm against that.

• 12:49Speaker 01

  She didn't know what to do, so she chopped them up and put them in her travel trunk and hatbox.

• 12:56Sarah Marshall?

  This is one of those ones where you're like, you might initially not know what to do, but then...

• 13:00Speaker 01

  Right.

• 13:01Sarah Marshall?

  Certainly. Just a handful of minutes into it, you'll be like, oh, this is a very long process of sawing up human bodies that I've embarked on. Maybe I shouldn't be doing this.

• 13:11Speaker 01

  You know, I thought the same thing as I was reading about this case because it almost to me is proof of insanity that she's like, oh, shoot, I shot people. You know what I should do? Put their limbs in my hat box and get on a train to Los Angeles.

• 13:29Sarah Marshall?

  No.

• 13:29Speaker 01

  Like cross state lines.

• 13:31Sarah Marshall?

  It certainly isn't evidence of sanity.

• 13:33Speaker 01

  Exactly. If anything, it's going to air on the not super stable side.

• 13:39Sarah Marshall?

  It's just not practical. Yeah.

• 13:41Speaker 01

  It's not because that's how she's caught. So she gets on the train and her trunk is leaking.

• 13:46Sarah Marshall?

  And they're like, it seems like you have a box full of

• 13:49Speaker 01

  Yeah.

• 13:50Sarah Marshall?

  dripping human body parts, ma'am.

• 13:52Speaker 01

  On our un-air-conditioned train because trains are not

• 13:55Sarah Marshall?

  Oh, my God.

• 13:56Speaker 01

  air-conditioned in that era. So she's got this putrid blood leaking trunk. And the porter says, like, you, you gotta do something about this. You can't bring your hunting spoils in the cargo hold.

• 14:10Sarah Marshall?

  They're like, listen, we're gonna, we're gonna continue to not notice for, for a while because you are a little lady.

• 14:16Speaker 01

  You are a cute little lady, so we'll give you some leeway. And she's like, oh, uh, I don't have the key. And then she just runs away. So she, she eventually gives herself up.

• 14:28Sarah Marshall?

  She's a smoothie.

• 14:30Speaker 01

  She's not well. Like, there's no read of this.

• 14:34Sarah Marshall?

  This is, to be clear, like, I know that this is a sad story. It's, it's very sad, but also what an idiot. I love it.

• 14:43Speaker 01

  I feel like that's why she became somebody who, like, nobody in the state of Arizona wanted to see her executed. By the time that she was released, people had been begging for her release for years because With respect, she's so dumb and frail.

• 14:56Sarah Marshall?

  Yeah.

• 14:56Speaker 01

  That nobody believes she did it herself. Like, there's no way.

• 15:00Sarah Marshall?

  That she was able to do this murder herself?

• 15:03Speaker 01

  Yeah, and chop up the people. Like, she's a frail, tubercular 25-year-old whose motive is kind of unclear.

• 15:11Sarah Marshall?

  I like to believe that I am stronger than a young woman with tuberculosis in the 1920s, but I think I would really struggle to chop up two human bodies.

• 15:19Speaker 01

  And then bring them to the train station.

• 15:22Sarah Marshall?

  Yeah, that too. Yeah.

• 15:23Speaker 01

  Like, that's heavy. Yeah. I don't know if she had a buddy helping. I don't know. But the bottom line is that, like, the reason why I thought this would be a good case is that public opinion, by the time all of the evidence came out, was so in her favor. And yet, she almost died. She almost was executed because there wasn't really a super-clear insanity defense at trial option when she was put on trial. And there was so much, I mean, this is an evergreen issue, but like, media attention and jury tampering and all that good stuff that comes with it. But

• 16:00Sarah Marshall?

  Oh, good. Yeah.

• 16:01Speaker 01

  She gets to trial because she surrenders in the funeral home and they bring her on back to Phoenix.

• 16:08Sarah Marshall?

  Is this just a random funeral home that she runs into, or does she have some kind of connection?

• 16:15Speaker 01

  Great question. You would think there would be a connection, but no, I think she's just kind of wandering around.

• 16:19Sarah Marshall?

  Yeah, you gotta hide somewhere.

• 16:21Speaker 01

  There's another point in her journey where she's like hiding in a drainpipe and she writes a confession letter.

• 16:27Sarah Marshall?

  Wow.

• 16:27Speaker 01

  One of many different variants of the confession letter. So, like, she's messy.

• 16:32Sarah Marshall?

  People do not fugitive the way they used to anymore.

• 16:35Speaker 01

  Or she was just one of a kind. She was not great at strategizing, but she was sure fun to watch.

• 16:41Sarah Marshall?

  So she's just, it seems like she's kind of this madcap tabloid gal, you know, like the Octomom or something? And it's like, we tried to execute the Octomom. It's like, no, I think she's, I want to make fun of her choices. I don't want her to die.

• 16:55Speaker 01

  Right. That is a great parallel. Yeah, because I don't, I don't hate her.

• 17:00Sarah Marshall?

  Well, I'm sure some people would like to execute the Octomom, but I really don't want to.

• 17:05Speaker 01

  She's a slightly different kind of messy, but it's hard to time adjust. It's like inflation. It's like hard to. Do a direct parallel.

• 17:13Sarah Marshall?

  Yeah. And that's a whole other topic is like true crime media of the 1920s and how all that

• 17:18Speaker 01

  Oh, my God. Yeah.

• 17:19Sarah Marshall?

  Please come back for that one.

• 17:20Speaker 01

  And speaking of Hearst, like, I'm sure the yellow journalism mixed in did not help anything.

• 17:26Sarah Marshall?

  Yeah.

• 17:27Speaker 01

  But there's so much more to this case that like, if you're interested, just look this gal up because there's super fun stuff. I say glibly.

• 17:38Speaker 01

  So she gets convicted and sentenced to death. And I, I sent you, it's really ghoulish. There's an invite.

• 17:46Sarah Marshall?

  No.

• 17:47Speaker 01

  And I think I sent you the file.

• 17:50Speaker 01

  So this is how we celebrated the eve of Winnie Ruth Judd's execution.

• 17:55Sarah Marshall?

  Okay, I have it. Oh, boy. It, it, well, it looks like a wedding invitation.

• 18:00Speaker 01

  It's personally signed. Yeah.

• 18:03Sarah Marshall?

  Signed by the warden.

• 18:05Speaker 01

  So cute.

• 18:06Sarah Marshall?

  Addressed to a, a misses and it says in kind of Gothic font, "You are respectfully invited to witness the execution of Winnie Ruth Judd at the Arizona State Prison at Flo--" I mean, literally, it's like the same kerning as a wedding invitation.

• 18:23Speaker 01

  Yep. Even like the way they do the hours.

• 18:26Sarah Marshall?

  At Florence, between the hours of 12 and 5 a.m. Friday, April 21st, A.D.

• 18:34Speaker 01

  Yeah.

• 18:36Sarah Marshall?

  1933. I mean, this is by the warden, though.

• 18:39Speaker 01

  Yeah.

• 18:40Sarah Marshall?

  Come on, man.

• 18:41Speaker 01

  And he had to sign a stack of these so that it had a personal touch, I guess, like bananas.

• 18:46Sarah Marshall?

  God. I mean, this is the thing, this is one of the things about the American legal system where we're like, yes, it is a very solemn and sacred duty to remove people who have forfeited the right to life from earth. And it's like, yeah, but also you do things like nickname the electric chair Old Sparky and like make invitations on at least one occasion. It's not good.

• 19:08Speaker 01

  And like, somebody picked out the font to this because

• 19:11Sarah Marshall?

  It's not cute.

• 19:11Speaker 01

  When you said like Gothic font, it occurred to me like, yeah, somebody went and decided like, no, this is the appropriate

• 19:18Sarah Marshall?

  Yeah.

• 19:18Speaker 01

  calligraphy style that we want for our

• 19:21Sarah Marshall?

  They had, I don't know what the 1933 version of Kevin is. They had Woodrow do it. They sent Woodrow down to the stationers.

• 19:29Speaker 01

  To get like the block text. Yeah. So this is the 11th hour. Obviously, this poor little gal is freaking out. She's, she's having fits of what will later be recognized as insanity. Recognized? I don't know.

• 19:42Sarah Marshall?

  I mean, also, if you're like broadly speaking, if you're an American woman and you're not insane in the 1920s and 30s, then like you're not aware of what's going on.

• 19:51Speaker 01

  I mean, yeah, think of her circumstance. Like she's got an addict husband who's also a doctor.

• 19:56Sarah Marshall?

  Who also might have chopped up her girlfriends? Question mark?

• 20:00Speaker 01

  I think the prevailing opinion is that they all were fighting over a guy and there was maybe a self-defense element, but also maybe the guy was involved in killing the girls.

• 20:10Sarah Marshall?

  Yeah.

• 20:11Speaker 01

  Which that I buy the most, I think, because he sounds like no good.

• 20:15Sarah Marshall?

  Right. And there being some kind of love quadrangle.

• 20:18Speaker 01

  Yes, totally. Um, yeah. So guess who intervenes at the 11th hour?

• 20:24Sarah Marshall?

  William Randolph Hearst?

• 20:25Speaker 01

  No, Eleanor Roosevelt.

• 20:27Sarah Marshall?

  Of course. God bless. What does she do?

• 20:30Speaker 01

  So she writes in. I mean, I'm sure a lot of people have issues.

• 20:34Sarah Marshall?

  She's like, no one can execute you without your permission.

• 20:37Speaker 01

  So cute. Love the inspo. Um, so she writes in to ask for clemency, but obviously like the gears are already turning with the legal defense and somebody decides that like, there was a lot of mess going on at her first trial. There was a lot of jury misconduct. The reason that the foreperson says that they sentenced her to death was that they thought it would make her talk. So they really didn't want her to die. They're like, this is a strategy, but that's not really a jury's job.

• 21:05Sarah Marshall?

  We use about the same tactic now, or we would if we could, I would say.

• 21:09Speaker 01

  But we don't say it out loud if we do, um, because that's not what juries are for. Strategizing to like get her to spill.

• 21:18Sarah Marshall?

  Instead you like find out a juror like posted something on their Facebook later on and you're like, hey.

• 21:24Speaker 01

  Yeah, this is the really dirty equivalent of that. So like, there's a lot of stuff conspiring to get this execution overturned, but. What works is she's insane. So we're gonna have another trial because at the time they didn't really have it so that you could assert it proactively, at least not in Arizona.

• 21:44Sarah Marshall?

  Hmm. So does that mean that there's like not necessarily kind of procedural room for?

• 21:49Speaker 01

  Yeah, exactly. And I was like thumbing through the old statutes that they have online and it's mentioned that nobody who's insane can be executed, but there's no provision of how to assert that.

• 22:03Sarah Marshall?

  Or of like, how to like get like an expert witness to say it, or it's just sort of like, yes, in theory it would work, but we won't tell you how or anything.

• 22:11Speaker 01

  Yeah, like, we shouldn't do this, but there's no way to make sure that that doesn't happen in essence.

• 22:17Sarah Marshall?

  Do you, do you think that like, in essence, the spirit of American trial law can be summed up by the iconic meme, we're all trying to find the guy who did this? Where it's like, there's, I feel like I run into in, in these stories from history, a lot of this vibe of like, oh, man, someone should write like a law or a statute that addresses this issue.

• 22:43Speaker 01

  A lot of buck passing. Yeah.

• 22:44Sarah Marshall?

  Yeah.

• 22:45Speaker 01

  And it's because like, they're all afraid of doing it wrong, but then nobody does it. It's the same thing we talked about with enumerating stuff in the Bill of Rights.

• 22:52Sarah Marshall?

  Like running a leftist coffee shop. You can never do it perfectly. So why bother?

• 22:58Speaker 01

  So why bother? Truly, for many reasons.

• 23:00Sarah Marshall?

  Because someone might yell at you one time. Couldn't survive that.

• 23:04Speaker 01

  Yeah. So I think you're right. But also, like, the people who make those mistakes are rarely there to answer for them.

• 23:10Sarah Marshall?

  Right.

• 23:11Speaker 01

  Although this is a pretty big oversight, like writing a statutory code and saying like, this should never happen, but not writing in the loophole. That's a problem.

• 23:20Sarah Marshall?

  Yeah.

• 23:21Speaker 01

  So they at least gave her this second trial, all for the purpose of insanity. And this is under the McNaughton standard. And that is what we actually have returned to a stricter version of now, post Hinkley. So we'll get to the modern iteration.

• 23:38Sarah Marshall?

  Yeah.

• 23:39Speaker 01

  But basically, what this test is, is that somebody didn't have the mental capacity to understand their actions, like the nature of what they're doing, or didn't have the capacity to understand that what they're doing is wrong.

• 23:53Sarah Marshall?

  Hmm.

• 23:54Speaker 01

  To your definition before, or that it violates the rights of another. So that distilled is basically what you said.

• 24:01Sarah Marshall?

  And how long have we had that around?

• 24:03Speaker 01

  At the time it was asserted in this case, it was less than a hundred years old. It was this guy named Daniel McNaughton in the UK, who I think like tried to kill a prime minister's secretary because he thought that they were conspiring against him.

• 24:18Sarah Marshall?

  Hmm.

• 24:18Speaker 01

  And it was a really similar situation that's like, oh, we shouldn't put somebody to death if they're fully crazy, so.

• 24:26Sarah Marshall?

  Mm hmm.

• 24:27Speaker 01

  Let's devise this rule that now is named after the would be. No, no, no, I think actually he succeeded at the assassination, McNaughton did. So.

• 24:36Sarah Marshall?

  Mm hmm.

• 24:36Speaker 01

  That's the McNaughton rule. Um, it's one of multiple approaches.

• 24:41Sarah Marshall?

  Hmm.

• 24:41Speaker 01

  That can be used for the insanity defense. So there's another one that's like the other end of the spectrum. And this is called the Durham Rule for anyone who's keeping score. But that allows you to be not guilty if whatever act, criminal act you did, was the product of mental illness. So like, that really covers anything.

• 25:00Sarah Marshall?

  Right.

• 25:01Speaker 01

  That's super easy.

• 25:02Sarah Marshall?

  Especially if you include narcissism, then we can get this whole administration off scot-free.

• 25:08Speaker 01

  That's another thing that I think the Winnie Ruth Judd case shows is like how divorced medical understanding is from.

• 25:15Sarah Marshall?

  Hmm.

• 25:16Speaker 01

  What these legal definitions are and how they do sometimes butt heads. Obviously, back then, because we're looking at it.

• 25:23Sarah Marshall?

  And it seems like where the law intersects with medicine, medicine generally travels farther faster.

• 25:28Speaker 01

  Yes.

• 25:28Sarah Marshall?

  Because, you know, we are trying to stop science in this country, but it's harder.

• 25:32Speaker 01

  Yeah, and like the goal of science is progress.

• 25:34Sarah Marshall?

  And then the law sort of like comes scurrying. Afterwards, or maybe sometimes following casually afterwards.

• 25:41Speaker 01

  It's almost like law wants to be set in stone. So

• 25:45Sarah Marshall?

  Right.

• 25:46Speaker 01

  It's kind of antithetical to the whole idea of science progress.

• 25:51Sarah Marshall?

  Do you ever feel like the idea of the American legal system, which was so appealing to me when I was younger? And now I kind of like appreciate more for its messiness, maybe, but like, just like being a young person watching Law and Order and being like, wow, isn't it amazing that like, we found these eternal truths and now we're like running a system based off of them. And it's like, yeah, that would be nice if it happened, but it definitely didn't. You just kind of like have generations of people doing their best, but then when some of them refuse to let anyone revise what they said, it makes it kind of difficult and annoying.

• 26:28Speaker 01

  Yeah, like I, I think the only way that it does work, when I just said what I said, which is that it's antithetical to the idea of progress. I was like, oh God, that's like, it's true, but what a terrible thing.

• 26:40Sarah Marshall?

  Yeah.

• 26:41Speaker 01

  That's not, so I feel like, yes, um, I agree with you and it's a forever cycle of being like, oh, God damn it. And then hoping that things get better.

• 26:51Sarah Marshall?

  Right. Or we can, you know,

• 26:53Speaker 01

  Yeah.

• 26:53Sarah Marshall?

  Try and decriminalize progress a bit.

• 26:55Speaker 01

  Maybe. How about that?

• 26:57Sarah Marshall?

  But it feels like it appeals to sort of that most perfectionistic impulse within people to be like, I, we figured out how to handle things and we're not going to take any more comments at this time.

• 27:09Speaker 01

  Right. Well, and I guess like to play devil's advocate, there are, are two sides of this particular issue in the extreme because obviously look at what, for example, the current Supreme Court is doing with settled precedent. Like you don't want somebody, or a legal system rather, that allows you to make changes willy nilly with every changing administration.

• 27:35Sarah Marshall?

  Yes, that's a very, very good point and a very timely point.

• 27:41Speaker 01

  It shouldn't be that easy that we can just change every X number of years because some new interest comes in. So I think that's like the other side we have to avoid, but I don't know what the medium is.

• 27:53Sarah Marshall?

  Well, I guess it's, it all seems so easy when I'm just sitting on my couch complaining about it, you know?

• 27:58Speaker 01

  I know. I think we could fix it if if we did it.

• 28:04Sarah Marshall?

  If we did it, we could really get this thing licked, probably inside of inside of a convention. At its best, I do feel like in legal history, you can see this balance or this sort of tightrope being walked between those needs that you're describing, the need to sort of like be overly reverent for the law that you're creating and the need to make it so flexible that anyone can come in and structurally reorganize it. I don't know that there is something fascinating and troubling and also at in the best of times, really profound and impressive about when it kind of works or when people are sincerely trying to create that balance between protecting

• 28:46Sarah Marshall?

  people from their worst impulses and recognizing their sovereignty, you know?

• 28:51Speaker 01

  I would be happier if more of the stalwart folks or the regressive folks were actually reverent, because I think part of the problem is that, like,

• 29:01Sarah Marshall?

  Right.

• 29:01Speaker 01

  they're not actually being true to print. Well, this gets into the last episode we did. Yeah, I know. Like, they're just making up their own new thing and calling it reverence for the past. Yeah.

• 29:14Sarah Marshall?

  Right. They're like, I love the Constitution so much that I am wiping my ass with it. And it's like, okay, interesting.

• 29:23Speaker 01

  That I rewrote it. And yeah, so there's a little philosophical diversion. Whatever. It's fine.

• 29:33Sarah Marshall?

  So this is where we are in the 20s. We're in the the Jazz Age.

• 29:36Speaker 01

  Yeah. So Winnie Winnie is saved at the 11th hour by this insanity trial under the Mignotin standard. And the evidence that comes out, it's medical evidence in the early 30s, and it is very sexist. And it's a lot of doctors saying like, look at how she twists her handkerchief there. She won't stop twisting it like she's obsessed with her handkerchief.

• 30:02Sarah Marshall?

  She's like Goldie Hawn in Death Becomes Her. Free this woman.

• 30:07Speaker 01

  That's pretty cool. But like, that truly was some evidence that they produced a trial was like, we were watching her in the first trial and she just wouldn't stop twisting her handkerchief. And I'm, I'm thinking like,

• 30:18Sarah Marshall?

  Huh.

• 30:19Speaker 01

  My god, by this definition, I would have been toast.

• 30:23Sarah Marshall?

  Well, get this woman a fig shit spinner.

• 30:25Speaker 01

  Exactly.

• 30:26Sarah Marshall?

  It's also like, certainly through the seventies and eighties, and I would argue really like, to this day, it's amazing how often sort of a lack of positive relationships with men is positioned as, you know, evidence that a woman is mentally unwell. And it's like, perhaps it's the men's fault. I don't know.

• 30:45Speaker 01

  Maybe, maybe it's some other factor. Maybe it's your morphine addicted husband who makes your life a living hell.

• 30:51Sarah Marshall?

  That's possibly.

• 30:52Speaker 01

  And he, so he comes on the stand and he actually slaps her in the first trial because she was crying so hard that he had to-

• 31:00Sarah Marshall?

  Her husband?

• 31:01Speaker 01

  Yeah. So he, they clearly have a very nice relationship.

• 31:05Sarah Marshall?

  Yeah.

• 31:06Speaker 01

  But he gives evidence of her insanity. And he says that she really wanted a baby and kept talking like she was gonna have a baby. And again, to me, I'm like, what else does a woman without a child do in the early thirties? Like, she has no purpose. She's living here because she's unwell.

• 31:27Sarah Marshall?

  Mm hmm.

• 31:29Speaker 01

  Her husband's crazy. What are you supposed to do? Talk about having a baby? Like, that, I don't know.

• 31:34Sarah Marshall?

  Mm hmm.

• 31:35Speaker 01

  So that's evidence, I guess, that she's unwell. They also say sometimes she laughs out of nowhere. Nothing funny is happening and she just laughs out of nowhere.

• 31:44Sarah Marshall?

  I feel like when people in these, again, like in a hundred years ago, and also today, when people have to present evidence that a woman is mentally ill, they just kind of like, present evidence that she's a woman. And they're like, well, same thing, really.

• 31:59Speaker 01

  Yeah, yeah. That she reacts to things sometimes that we can't see.

• 32:03Sarah Marshall?

  Right? Because certainly what has always struck me about kind of women's mental illness as described in the sixties and seventies, I'm like, not just legally, but by clinicians at the time, is that there's this idea of like, well, she's poorly adjusted. She's poorly adjusted to society.

• 32:19Speaker 01

  So what?

• 32:20Sarah Marshall?

  So she's mentally ill. Right. And it's like, well, how, how is she supposed to adjust? To this.

• 32:27Speaker 01

  Yeah, like, so in this case, like, her husband is clearly not a partner to her if he is both an addict and working as a doctor. So like, he's probably not there a whole lot. If she physically can't bear children because she's too frail, um, but that's kind of your prescribed purpose, that's going to take a toll on your psyche. I don't know.

• 32:48Sarah Marshall?

  It's, it's a little bit funny to me to be characterizing it like this because I feel like chronic illness is such a modern term.

• 32:58Speaker 01

  Yeah.

• 32:58Sarah Marshall?

  I mean, we had other terms, we could say wasting disease back in the day, but like, I mean, I guess this is the direction we're going in with like healthcare in this country. But like, imagine all the tubercular girlies on Instagram talking about living with tuberculosis because they contracted it from drinking raw milk. It's

• 33:15Speaker 01

  A little community.

• 33:16Sarah Marshall?

  At any time.

• 33:17Speaker 01

  Yeah.

• 33:18Sarah Marshall?

  But, you know, she has, she has limited spoons. She's got tuberculosis.

• 33:22Speaker 01

  She does. And especially like, she's been living in this prison where she was going to be executed. Um, that's a culture shock, I'm sure for anyone.

• 33:32Sarah Marshall?

  It's been a tough time. People are sending out cute invitations to her execution.

• 33:38Speaker 01

  And even her friends have vested interests, like Hearst wanted his stories. So like, it's a weird time to be Winnie.

• 33:44Sarah Marshall?

  Yeah, Hearst is nobody's friend.

• 33:45Speaker 01

  No.

• 33:46Sarah Marshall?

  Sadly.

• 33:47Speaker 01

  So she gets, uh, re- reclassified and put into a mental health facility. And I think she holds the record.

• 33:54Sarah Marshall?

  Okay, I'm sure it's a great place to be.

• 33:57Speaker 01

  I know. But I think she holds the record of the most escapes.

• 34:01Sarah Marshall?

  Oh.

• 34:02Speaker 01

  She, yeah, she escaped like seven times in the 38 years she was there.

• 34:07Sarah Marshall?

  I hope it was fun.

• 34:09Speaker 01

  Well, one time she went and, and went to San Francisco and became a nanny.

• 34:14Sarah Marshall?

  Wow.

• 34:14Speaker 01

  For a wealthy family for like a couple of years under an assumed name.

• 34:20Sarah Marshall?

  And then they finally caught up with her and they were like, all right, back in the pokey Winnie.

• 34:25Speaker 01

  This is my, my fun connection is, is my aunt was the paralegal on her case when she was eventually released. So.

• 34:32Sarah Marshall?

  Oh, my God.

• 34:33Speaker 01

  Yeah. And apparently she was a very nice old lady and she just wanted to live her life and be left alone. So.

• 34:40Sarah Marshall?

  Yeah.

• 34:40Speaker 01

  She died happily at like 93 and she was free. So.

• 34:44Sarah Marshall?

  She outlived everybody.

• 34:45Speaker 01

  Yeah. Go Winnie Ruth Judd. Um, sorry to your victims also.

• 34:50Sarah Marshall?

  Yeah. Or, you know, whatever happened.

• 34:53Speaker 01

  Whatever the hell happened.

• 34:54Sarah Marshall?

  Yeah. So, sorry to everybody, except the warden.

• 34:58Speaker 01

  So we thought that was a fun illustration of how little medicine is involved.

• 35:05Sarah Marshall?

  Huh.

• 35:05Speaker 01

  Like it's subjective. I'm sure it can be done very well.

• 35:08Sarah Marshall?

  Right. But it's really about like what a jury can be convinced of and how, and whether a jury or I guess a judge in some cases can be convinced that.

• 35:18Speaker 01

  Yeah.

• 35:19Sarah Marshall?

  Um, a defendant's behavior fits this criteria. Is that about it?

• 35:23Speaker 01

  Yeah. And to your point, um, resources too, because it's some of it's money. Some of it is just like legal acumen.

• 35:30Sarah Marshall?

  Hmm.

• 35:31Speaker 01

  In the Hinkley case, which we'll go to next, the prosecution, I think only called two psychiatrists because they were like, well, this is a slam dunk. And then the defense called 27.

• 35:43Sarah Marshall?

  Wow. That's too many psychiatrists, honestly.

• 35:46Speaker 01

  It's way too many. There's probably a joke set up somewhere in there, but like, obviously there was an imbalance there.

• 35:53Sarah Marshall?

  It's as many psychiatrists as Jim Morrison had years of being alive. It's not a joke exactly. It's more of a fact.

• 36:00Speaker 01

  It's just a fact. But yeah, I mean, it goes to show you that like, never count your chickens, I guess.

• 36:08Sarah Marshall?

  Right? Yeah.

• 36:09Speaker 01

  Yeah. They thought it was so obvious that he was guilty, that he wouldn't get off and then.

• 36:14Sarah Marshall?

  And yet.

• 36:15Speaker 01

  Whoops.

• 36:15Sarah Marshall?

  Sometimes, well, okay, let me, can I tell you like my understanding of.

• 36:19Speaker 01

  Yes.

• 36:20Sarah Marshall?

  This story. Okay. Because I've read, you know, a bit about this. It's like part of my General Reagan research because of course Reagan is like the Palpatine behind where we are now.

• 36:30Speaker 01

  Everything. Yeah.

• 36:31Sarah Marshall?

  And somehow he is alive. That's gonna happen our next election year. They're gonna be like, somehow Reagan is alive. And then he's gonna run for president, I guess.

• 36:41Speaker 01

  Well, you know what? The last speech he gave right before Hinckley shot him, he ended the speech with, "And make America great again." So he is back, in a sense.

• 36:52Sarah Marshall?

  Okay, so I remember reading about how, and I think this is to me like a really interesting thing about Hinckley is that he appears to have been like just around and like not trying very hard to find and assassinate Reagan, or like he was thinking about it, but like, he wasn't, as far as I can remember, like, super dedicated. And then Reagan like happened to be at the Washington Hilton to talk to like Teamsters or something. And Hinckley was like, "Oh, I'm right by the Washington Hilton. I'm just gonna assassinate this guy." I mean, I don't, he was at like pretty close range. So, you know, he clearly was a much worse shot than Oswald.

• 37:34Speaker 01

  He actually gave that as some evidence of his insanity was the fact that he didn't aim.

• 37:40Sarah Marshall?

  That he wasn't very good at it.

• 37:41Speaker 01

  Well, he says that he didn't try. That he totally could have if he wanted to.

• 37:47Sarah Marshall?

  He was trying a lot harder than most people do to assassinate the president, to be fair. He was there with a gun, but.

• 37:54Speaker 01

  Right.

• 37:55Sarah Marshall?

  And then he like, he kind of like winged Reagan, right? Or like a bullet like bounced off of part of the car and like into Reagan's torso, something like that?

• 38:04Speaker 01

  Yeah. And other people were more grievously wounded. One of the victims did eventually die of complications related to the injuries.

• 38:15Sarah Marshall?

  Right. Because there was a police officer who he shot.

• 38:18Speaker 01

  There were four people shot in total.

• 38:20Sarah Marshall?

  Oh, my gosh. Yeah.

• 38:21Speaker 01

  Like, yeah, a metro police officer. There was a Secret Service agent. And then, this is my soapbox moment. James Brady was the White House Press Secretary. He was shot as well. And so I wanted to qualify everything that I say about Reagan with the fact that.

• 38:40Speaker 01

  James Brady was the predecessor to Larry Speaks. Larry Speaks was the press secretary when the AIDS crisis started.

• 38:47Sarah Marshall?

  Hmm.

• 38:48Speaker 01

  Now, I had an uncle who died of AIDS in 1988. And his death almost certainly could have been prevented if Reagan just fucking listened. So, so if I sound pointedly glib about an attempt on Reagan's life, it's because I am. Um, and like, this is directly correlated to the appointment of Larry Speaks. And obviously Larry Speaks was just a mouthpiece for the man himself.

• 39:15Sarah Marshall?

  Hmm.

• 39:16Speaker 01

  I sent you a little clip of Larry Speaks talking about AIDS on behalf of Reagan, which we do not have to include, but I just thought it was vile and worth sharing.

• 39:25Sarah Marshall?

  Yeah.

• 39:25Speaker 01

  Yes, just like, listen to him.

• 39:27Sarah Marshall?

  Let me, I'm gonna play this. Okay.

• 39:30Speaker 01

  Corollary. Okay.

• 39:31Sarah Marshall?

  We love a corollary here. The show can be called

• 39:33Speaker 01

  Perfect.

• 39:34Sarah Marshall?

  Corollary the Musical. Okay, I'm playing it.

• 39:38Speaker 02

  Lester's beginning to circle now. He's moving in front. Go ahead.

• 39:41Speaker 03

  The Center for Disease Control and Bladder. Reports that an estimated So, look, can I ask a question, Larry?

• 39:49Speaker 02

  You were close.

• 39:50Speaker 03

  An estimated 300,000 people have been exposed to AIDS, which has been transmitted through saliva. Will the president, as commander in chief, take steps to protect armed forces, food and medical services?

• 40:03Sarah Marshall?

  This is weaponized, good ol' boy.

• 40:05Speaker 03

  Of AIDS patients or those who run the risk of spreading AIDS? And in the same manner that they forbid typhoid fever people from being of health or food services?

• 40:15Speaker 02

  I don't know.

• 40:16Speaker 03

  Well, could you, is the president concerned about this subject, Larry?

• 40:21Speaker 02

  I haven't heard him express concern.

• 40:24Speaker 03

  Reaction here, I, you know.

• 40:26Speaker 02

  I haven't heard him express.

• 40:27Speaker 04

  It isn't only the jocks, Lester. Has he sworn off water faucets?

• 40:30Speaker 03

  No, but I mean, is he gonna do anything, Larry?

• 40:32Speaker 02

  Lester, I have not heard him express anything. I'm sorry.

• 40:34Speaker 03

  He has no, no, expressed no opinion about this epidemic?

• 40:38Sarah Marshall?

  The amount of giggling in the background.

• 40:40Speaker 01

  Mate.

• 40:40Speaker 03

  Would you ask him, Larry?

• 40:41Sarah Marshall?

  It's astounding.

• 40:43Speaker 02

  Have you been checked?

• 40:44Speaker 03

  I have one, I have one question, one follow up. Since he invited one Nobel Prize winner to come to the White House, will he invite Solzhenitsyn? When will he invite Solzhenitsyn?

• 40:55Speaker 02

  I don't know. Didn't we invite him once?

• 40:59Speaker 01

  And just like the making yucks about it's not only jocks.

• 41:02Sarah Marshall?

  Oh, my God. Yeah. It's also it's fascinating, too, that he's being asked about it in the capacity of are the armed forces afraid of AIDS patients trying to transmit AIDS to them, which is surely the most pressing concern.

• 41:17Speaker 01

  Bio weapon, although for Reagan, it was probably the the most strategic framing.

• 41:23Sarah Marshall?

  Yeah. Yeah. And even then.

• 41:26Speaker 01

  So that was the person who replaced James Brady after this shooting.

• 41:30Sarah Marshall?

  Yeah. So good job, Hinckley. One step forward and two steps back.

• 41:36Speaker 01

  Exactly. I'm gonna sound a little careless about this. So should we talk about Hinckley? Yeah.

• 41:43Sarah Marshall?

  Oh, my God. Let's please talk about Hinckley because who is this guy who happens to be in the neighborhood and tries to pull off an assassination? And boy, does he not manage it.

• 41:54Speaker 01

  He is a lonely, straight, white guy in his 20s.

• 41:57Sarah Marshall?

  No.

• 41:58Speaker 01

  Which is really bizarre. Yeah. And he's obsessed with a girl. And so he watched Taxi Driver in his, I don't want to say formative years. He tried to be a musician for like, he literally went to New York, couldn't find a hotel room that he could afford. The traffic was too much. So he's like, I give up on my dream of being a musician one day. He could have used some good parenting at that point.

• 42:28Sarah Marshall?

  And he's like, what, like 20 at this?

• 42:30Speaker 01

  Yeah.

• 42:31Sarah Marshall?

  Yeah, around his assassination attempt.

• 42:34Speaker 01

  But so he is kind of drifting around, watches Taxi Driver and sees it like 16 times or something in the theater and just gets hyper fixated on Jodie Foster, who at the time was a minor.

• 42:51Sarah Marshall?

  Which is also so weird because it's a movie about a creepy scary man.

• 42:55Speaker 01

  Yes.

• 42:56Sarah Marshall?

  At any point, it's about, and also it's a movie about a creepy scary man who is himself fixated on Jodie Foster. And you would just kind of think that at a certain point, you'd be like, hmm, maybe I don't actually want to follow the exact same path as this guy.

• 43:14Speaker 01

  It's like the American Psycho thing. It's like,

• 43:17Sarah Marshall?

  Yeah.

• 43:17Speaker 01

  half of the audience is gonna miss that this is like,

• 43:20Sarah Marshall?

  God, you're right. Because men love Taxi Driver and they love it in a way where you're like, wait, but do you, this is about a man like completely decompensating and how it's like bad. Ah, that's the thing about films, you know, it's they can say, they can communicate all kinds of things, but that doesn't mean people have to understand them.

• 43:40Speaker 01

  Well, you'd have to be so hamfisted to just like give on a silver platter that we don't want to be Travis Bickle. Like, that's not aspirational, my guy.

• 43:49Sarah Marshall?

  Right. Well, you would have to have Scorsese come out at the end and be like, hi, I'm already Scorsese. Remember me? I was the guy in the taxi at the beginning? I was talking to the taxi driver. Anyway, don't do this.

• 44:00Speaker 01

  Like a John Hughes moment. So by the time he gets obsessed with her, she is just starting at Yale. He went out to LA for a while and was doing his, you know, dirty LA street kid thing as he gets obsessed with her. Then he decides like, I gotta go back and be closer to her in New Haven. So he moves back to the Northeast and starts like calling her. And so there are some recordings of those phone calls and she's very,

• 44:32Sarah Marshall?

  Oh my God.

• 44:33Speaker 01

  This is why I thought of this part now. Like, she's so firm but composed. She's like, man, is it you again? Like, you understand I can't talk to you because I don't know you, right? Like, she's nice, but she's rational.

• 44:49Speaker 01

  I think if I were a famous person in college at that time, I'd be like, fuck off, bro. Like, leave me alone.

• 44:55Sarah Marshall?

  Yeah.

• 44:55Speaker 01

  But she's very measured.

• 44:57Sarah Marshall?

  And I guess she has a lot of practice because she's been famous like since she was at least, you know, I mean, she was, she was in movies as a small child. So she's just like,

• 45:07Speaker 01

  I want to say like nine-ish.

• 45:09Sarah Marshall?

  Yeah. She was, well, and I think she, she did like, I mean, not that you would be known for this exactly, but I think she did a Coppertone campaign when she was like two, you know, she's been working since she was a baby, basically.

• 45:21Speaker 01

  But you know, that doesn't give you the, I don't know, the psychological strength to not unleash your rage at somebody.

• 45:30Sarah Marshall?

  Right. Yeah. You feel like she's getting her like Clary Starling practice that she's going to use in the Silence of the Lambs in years and years.

• 45:38Speaker 01

  Like, pretty formative, but also like a little, a hair of discomfort that is grounding in her humanity, you know?

• 45:48Sarah Marshall?

  Right. You can tell that she's not enjoying this or she's not like, you know, grandstanding or anything, but also that she's not going to back down.

• 45:54Speaker 01

  Like, she appreciates the gravity of the situation. And I feel like with somebody who was as unstable as Hinkley was at the time, obviously, he was ready and willing to take a life and he was living in delusion land.

• 46:06Sarah Marshall?

  Yeah.

• 46:07Speaker 01

  It's really good that she didn't get too aggressive because I could see rejection having turned really ugly with a case like this.

• 46:16Sarah Marshall?

  Or, you know, him deciding to show up at Yale instead.

• 46:19Speaker 01

  That's what I mean. Yeah.

• 46:21Sarah Marshall?

  Okay. So he, so he fits a type that we recognize.

• 46:24Speaker 01

  Yeah, it is certainly a type. And I would say, when I was reading about it, it was funny how much the word parasocial kept coming to mind, except that that was, that was a weirder phenomenon back then. Like, to think that you know somebody and you have a relationship with somebody and a loyalty to them, just like totally unilaterally, becomes really common down the road. But back then, it was almost like that in and of itself was proof of insanity. And I think we slowly have gotten to a place where it's more common. I don't know what to do with that information. It just came to mind.

• 47:01Sarah Marshall?

  You're right. And then it's become like a whole sort of form of like job creation and economics.

• 47:07Speaker 01

  Yeah.

• 47:08Sarah Marshall?

  And I feel like there's sort of, there's a degree of like allusion that you expect people to understand the partaking in that some number of people won't understand and will take literally. And that's always gonna, that's always gonna be dangerous.

• 47:24Speaker 01

  Exactly. And obviously, when I say parasocial relationships are more common now, people aren't taking it to this level. That's not what I mean. He obviously went to the nth degree, but like, it was really funny to read all this symptomology that came out at trial. And I don't know that we would all recognize that as being so common nowadays, but how about that? And they talked about like, he had no close friendships and thus, nobody to ground him in reality. And I'm like, well, that also sounds really familiar.

• 47:55Sarah Marshall?

  Yeah. Well, and we also now have like, you know, whether or not you believe in the concept of the male loneliness epidemic, there's certainly a lot of incentives to sell them propaganda about how they'll never be loved until they buy all these, you know, protein supplements and take all these courses and learn how to, you know, buy a course where you learn how to become a magnate from someone who shouldn't have to sell all these courses on being a magnate if they're really a magnate.

• 48:20Speaker 01

  If they are a life coach without any certification, but like, they're gonna help you.

• 48:26Sarah Marshall?

  Alpha male podcasters, exactly. I hate to bring podcasts into this, but.

• 48:32Speaker 01

  I mean, the podcasts don't kill people. It's the parasocial relationships.

• 48:38Sarah Marshall?

  Joe Rogan kills people.

• 48:41Speaker 01

  That's punchier. Yes. Okay. So like, yeah, he develops this fixation. Weirdly enough, he was really upset about John Lennon getting assassinated. Like that, he lists that as a turning point.

• 48:56Sarah Marshall?

  John, listen to yourself. You're so upset about that assassination, you have to attempt America's next big assassination? The assassination of the summer, if you will?

• 49:06Speaker 01

  Yeah, like he bought Catcher in the Rye, he went to a vigil outside the Dakota.

• 49:11Sarah Marshall?

  Wow.

• 49:13Speaker 01

  And then he said, three months later, he did his. So I didn't realize how proximate in time he was, but it really was a catalyst.

• 49:20Sarah Marshall?

  Which also, if you're an American, you have to have, you know, a certain number of people had to have been like, oh, my God, are we doing this again? Is it 1968? Are we going to have so many assassinations now?

• 49:31Speaker 01

  Yes. I thought this, I mean, and like the phase of hijacking, because he also thought,

• 49:36Sarah Marshall?

  Right.

• 49:36Speaker 01

  He's like, maybe I'll try that. And he actually went to the airport in Tennessee with a handgun.

• 49:41Sarah Marshall?

  See, this is what I love. I love a criminal who can't get it off the ground. He's just like, maybe no, or no, uh, no parking in New York. Never mind. Never give me, never mind about the music career.

• 49:54Speaker 01

  And just like desperately influenced by trends. He's like, oh, hijacking shit, maybe I'll do that.

• 50:00Sarah Marshall?

  Yeah. Which like, for people who don't know, in the seventies, for a while, like, people were hijacking planes like all over the place. You don't hear about it anymore now, because, you know, now the last one we remember, they flew it into the World Trade Center, and it was a tragedy that changed the world forever. But in the seventies, you, probably your dad could just like hijack a plane for a little while and like, you know, jump out of it with a bunch of money he stole or something like that.

• 50:32Speaker 01

  That's the best case scenario. Very few get hurt on that one. But like, yeah, like, he just trapes into the airport in Tennessee. And I think there was some fluky thing that ended up getting him caught. Like, it wasn't a routine screening. And then they just fined him $50 because he said it was for charter practice.

• 50:51Sarah Marshall?

  They're like, no guns in the airport. Go back to Swarthmore, young man.

• 50:56Speaker 01

  Right?

• 50:57Sarah Marshall?

  Sorry to Swarthmore. I don't know that there's any connection. I just, you know, it's where I imagine some guy who can't get it together would go.

• 51:04Speaker 01

  So, yeah. And then ironically, I did note that Reagan's reaction to the London shooting was saying like handgun control is not the answer. So there is another little bit of irony.

• 51:18Sarah Marshall?

  Exact, yeah. No, this is not a classy show. Of course, now I have a mental image of Reagan being reached for comment in the hospital going handgun control is still not the answer.

• 51:29Speaker 01

  You know what? I bet you're not far off. Uh, truly. So, uh, yeah, Dayav, he walks by this place and he just, it's pretty close quarters with everybody leaving this AFL-CIO Teamster talk.

• 51:46Sarah Marshall?

  Where he was like, hello, Teamsters, I'm going to ruin your life. Have fun with that.

• 51:50Speaker 01

  Excuse me? Yeah. And he gets, he shoots four people, um, all of whom are associated with the president. So, yeah.

• 51:58Sarah Marshall?

  And does he just kind of open fire, kind of on the group as, as Reagan is being ushered into his car, essentially?

• 52:06Speaker 01

  Yeah. It, it, and it sounds like, cause he specifically said he did not aim and, um, that that was evidence of his lack of clarity of mind.

• 52:17Sarah Marshall?

  Do you believe that? Cause I, I do, I do believe that, that he just kind of is like, oh, what do I do now? I guess I'll shoot this gun now or something.

• 52:25Speaker 01

  I do believe it. And I think that like, the lack of coherence to the whole plan, the lack of coherence to this piece makes sense.

• 52:33Sarah Marshall?

  Yeah. And then he's just kind of going around looking for something big to do, but it doesn't really matter what the thing is and that he hasn't thought through.

• 52:40Speaker 01

  Yeah. Because Travis Bickle had a mission.

• 52:44Sarah Marshall?

  And then I guess we get into the question of what is the difference between insanity and poor planning?

• 52:50Speaker 01

  Well, kind of, and stupidity, like.

• 52:52Sarah Marshall?

  Yeah, that one.

• 52:53Speaker 01

  Cause that's what I thought with Winnie Ruth Judd, like, don't put limbs in a hatbox, but also maybe you're just dumb. Sorry.

• 52:59Sarah Marshall?

  Right. Like, is this a bad choice or is this a choice of someone like disconnected from reality? And that's very hard to determine with some people, honestly.

• 53:09Speaker 01

  And what should affect culpability? Because if you get down to it, like, obviously, anybody who does a crime of a certain caliber is by definition not mentally healthy.

• 53:21Sarah Marshall?

  Yeah, that's what I, I think. And I, and then, you know, this gets complicated, but I don't think that like.

• 53:26Speaker 01

  Yeah.

• 53:26Sarah Marshall?

  I think premeditated murder is like by definition, you know, if you're not motivated by like a huge amount of money or something like that.

• 53:33Speaker 01

  Or like principles that are really clearly like a.

• 53:36Sarah Marshall?

  Yeah.

• 53:36Speaker 01

  I'm thinking of like Franz Ferdinand was not necessarily.

• 53:41Speaker 01

  They at least knew what they were doing and

• 53:43Sarah Marshall?

  Right.

• 53:43Speaker 01

  It was a plan.

• 53:44Sarah Marshall?

  But yeah, that if, but murder as the sort of, as the crime and the motive.

• 53:50Speaker 01

  Right.

• 53:50Sarah Marshall?

  And then we get into this difficult thing where like, there's this sort of core belief, I think, in American history and American masculinity, that violence is a sane thing to do.

• 54:01Speaker 01

  Right, right.

• 54:01Sarah Marshall?

  There's times when violence is acceptable, but there's a sort of core tenet of American masculinity that violence is just like a nice hobby. And I don't think that that's a sane belief system, but if you ask a lot of people, they'll say that it is.

• 54:17Speaker 01

  Yeah, like it lives on that spectrum of the biggest con that men committed is, is convincing women that anger isn't an emotion sort of thing.

• 54:27Sarah Marshall?

  God, yeah.

• 54:28Speaker 01

  That violence is about the most emotional thing you can do. And I feel like that kind of connects to our point, but like, it's a very mentally unhealthy thing to let violence control your action.

• 54:39Sarah Marshall?

  Yeah.

• 54:39Speaker 01

  And yet.

• 54:40Sarah Marshall?

  And yeah.

• 54:41Speaker 01

  We don't say every person is legally mentally ill.

• 54:45Sarah Marshall?

  Right.

• 54:46Speaker 01

  For the purposes of the defense, nor should we. I mean, that would be a crazy way to let people off. We would all be dead.

• 54:52Sarah Marshall?

  In a manner of speaking, right. And then it's, you know, with any, with all of this, it comes down to a lot of individual choices kind of add in a, in a trial capacity, it seems like.

• 55:02Speaker 01

  Yeah. But so, okay, so he's arrested like immediately. He doesn't get shot because everybody is.

• 55:09Sarah Marshall?

  Because he's just standing around, I presume, because he didn't think ahead.

• 55:14Speaker 01

  Well, it's so close quarters. He, he thought he would get shot. He was like, I was prepared to just like die. Um, that probably would have been convenient for his mental state. Like he didn't have a plan in life. He was just gonna go out in a blaze of glory.

• 55:28Sarah Marshall?

  So really, it's, it, it seems like a sort of, that there's just like a, a lot going on in his head and he's fastened it all to this one thing he's gonna do.

• 55:38Speaker 01

  Yeah. And I think like a vacuum of other purposes and influences that then his mental illness filled with Jodie Foster.

• 55:48Sarah Marshall?

  But also like, if it wasn't her, it would have been Christie McNichol. It's at a certain point, you're just a woman who existed and some guy came along and here we are.

• 55:57Speaker 01

  And got obsessed with you. So they actually played Taxi Driver at the trial.

• 56:01Sarah Marshall?

  Oh my God, how?

• 56:03Speaker 01

  Like, from my understanding, they played the entirety of the movie for the jury.

• 56:09Sarah Marshall?

  That's incredible. Like, imagine you're just like trying, I mean, I guess it would be like useful information, but like, that is a long and intense movie.

• 56:20Speaker 01

  Yeah.

• 56:20Sarah Marshall?

  Man.

• 56:21Speaker 01

  And apparently, like, a big part of it was the defense using this as evidence, like, watch him watch the movie.

• 56:29Sarah Marshall?

  Wow.

• 56:30Speaker 01

  And he was just fixated.

• 56:32Sarah Marshall?

  Yeah, I mean, it is a good movie, to be fair. It's not like it's boring or something.

• 56:36Speaker 01

  Right, right. I mean.

• 56:38Sarah Marshall?

  Also, like, what a weird week to be like Sybil Shepherd or something, you know, you're like, yeah, I don't know, apparently the jury is watching that movie I did a few years ago to determine if this presidential would be assassin is insane or not. Anyway.

• 56:53Speaker 01

  All in a day's work, right?

• 56:54Sarah Marshall?

  Yeah, you can't buy publicity like that.

• 56:58Speaker 01

  No, and poor Jodie Foster, she did not have to appear in person, but she gave a deposition that was taped. And that also went a ways in proving his insanity, because she said in the deposition that they did not have a relationship, and she did not know him, and he had a little bit of an outburst at that. And had to be removed from the courtroom.

• 57:21Sarah Marshall?

  Yeah.

• 57:22Speaker 01

  But so the test that they used at that time in the DC Circuit and the federal courts, which is where he was tried, was this kind of middle ground test, which is the model penal code test, again, if you're note taking. The standard there is that at the time of the act, you're suffering from mental illness, and because of that, lacked capacity to appreciate the wrongfulness of your conduct, or lacked the capacity to conform your conduct to the law's requirements. So it's that last piece that's a little more permissive.

• 57:56Sarah Marshall?

  Okay.

• 57:56Speaker 01

  That it's like you basically can't control yourself, and you can't fit yourself into law-abiding society's norms.

• 58:03Sarah Marshall?

  Which is interesting, because if you want to assassinate the president in order to impress Jodie Foster, you understand that you want her to be impressed by the level of your wrongdoing.

• 58:14Speaker 01

  Yeah, that's a great point.

• 58:16Sarah Marshall?

  But the desire to do it also arguably shows that. You don't understand the wrong, like, I don't know, like, the true reality of the wrongness of it, only that it would be impressive. I do find it really interesting. Yeah.

• 58:30Speaker 01

  I think if they had had just the McNaughton test, which is what they ended up going back to and making a little stricter after, then it just would have been the right or wrong element. And there wouldn't have been this like, or you're so mentally ill that you can't conform your conduct to legal norms.

• 58:49Sarah Marshall?

  Right. What can that case is like, maybe you understand all kinds of things, but you can't.

• 58:54Speaker 01

  You just can't control yourself.

• 58:55Sarah Marshall?

  Implement that knowledge. Yeah. Which I think is more useful.

• 58:59Speaker 01

  Yeah, it could get a little permissive if we do think about it. Like, imagine a world of Hinkley-esque men, who are just like, I can't stop.

• 59:08Sarah Marshall?

  I don't have to imagine it. It's on Reddit.

• 59:11Speaker 01

  I know.

• 59:13Speaker 01

  Imagine if you can.

• 59:16Sarah Marshall?

  I know it sounds over the top. You have to, I guess, draw a line somewhere. And then the question of where the somewhere is ends up being a little subjective. Because I do truly believe, right, if you look at our president, forty five slash forty seven, like, I don't think Trump actually is capable of making better choices than he is right now. Right?

• 59:36Speaker 01

  At this point, certainly not. Yeah.

• 59:38Sarah Marshall?

  Well, that too. Yeah. And like, I know that he knows he's doing horrible things and is doing them on purpose and that the cruelty is the point. But also, like, has he ever had the capacity to be less of a horrible narcissist? I don't think so. But that doesn't mean he's not criminally liable, you know? So like, yeah.

• 59:57Speaker 01

  And I think that brings us to a great point, which is kind of like, the philosophical underpinning of the whole thing, which is like, what is the goal of punishment?

• 1:00:06Sarah Marshall?

  Yeah. Which is why bother having a legal system when they're such a pain?

• 1:00:10Speaker 01

  Yeah. And also, like, what is the goal of incarceration? Because if you are found not guilty.

• 1:00:15Sarah Marshall?

  Which people will disagree on, it seems.

• 1:00:18Speaker 01

  Yeah, boy, yeah. But it's not like he was walking around because of the not guilty verdict. Like, he was incarcerated.

• 1:00:27Sarah Marshall?

  Right.

• 1:00:27Speaker 01

  But it was in a mental health facility. And so it's like, If that's what we're talking about the distinction for, maybe I don't mind the more permissive definition as much because does that just mean that we put the Trump-esque thinkers in a treatment facility?

• 1:00:43Sarah Marshall?

  Yeah, and now they all have to play tennis with each other until they die.

• 1:00:47Speaker 01

  Yeah, like that's not release them back on the streets to do this again.

• 1:00:52Sarah Marshall?

  Yeah. God, imagine all of them, just like in a secure facility, forced to play Risk with each other.

• 1:00:59Speaker 01

  I mean, I don't want to work there, but it would be nice in ways.

• 1:01:05Sarah Marshall?

  But we could pay the people who do work there really well.

• 1:01:08Speaker 01

  Lots of money.

• 1:01:09Sarah Marshall?

  Tell me about this verdict because were people kind of thinking as this was going on like, oh, it'll be fine. He'll definitely be convicted. He did try to kill the president after all. Or was there a sense of like, I don't know, he does seem to have an awful lot of lawyers.

• 1:01:23Speaker 01

  He didn't have that many lawyers.

• 1:01:24Sarah Marshall?

  Oh, he didn't? Okay.

• 1:01:25Speaker 01

  No, they just called a ton of psychiatrists.

• 1:01:29Sarah Marshall?

  They, oh, right. They just had 27 witnesses to make up for it. Yeah.

• 1:01:33Speaker 01

  Like the witness balance there shows that everybody assumed, yeah, this guy tried to kill the president in broad daylight.

• 1:01:41Sarah Marshall?

  On camera, like there's footage of it. You can watch it right now if you wanted to.

• 1:01:45Speaker 01

  Yeah. And like, not that a good motive would have made a difference, but like for why? Like, because Jodie Foster?

• 1:01:54Sarah Marshall?

  Right. Like, what if he was like, well, I'm very upset about the trade deficit or something?

• 1:01:59Speaker 01

  Right. Or like, maybe if I had done it because of AIDS.

• 1:02:03Sarah Marshall?

  Yeah.

• 1:02:03Speaker 01

  There's at least cause and effect.

• 1:02:05Sarah Marshall?

  Yeah. And that's kind of the inevitable Luigi Mangione parallel of it all, right? Where like,

• 1:02:12Speaker 01

  Oh, great point. Yeah.

• 1:02:13Sarah Marshall?

  Right? To me, it's like, it makes complete sense that like, at this, at this point in time, we had, and I know that there's like, plenty of people, plenty of conservatives who are like, it's terrible. It's terrible to be glamorizing an assassin, blah, blah, blah, blah, blah. But just how like, everyone I know and everyone who I sort of see online and like in the sort of world that I'm in was immediately just like, protect our boy.

• 1:02:41Speaker 01

  And I mean, like, where is that indignation when people die every day for no reason?

• 1:02:47Sarah Marshall?

  Yeah.

• 1:02:47Speaker 01

  Because of these companies. So like, that's, yeah, imbalanced. Republicans were super upset, obviously.

• 1:02:54Sarah Marshall?

  And did this shock people? Was this like, kind of like an OJ moment? Or like, did people see it coming?

• 1:03:00Speaker 01

  I don't know that I would put it to that level.

• 1:03:02Sarah Marshall?

  Yeah, I mean, they didn't have it live on Oprah. Nothing's at that level, but.

• 1:03:07Speaker 01

  Yeah. And the tricky thing here is like, he definitely is not, or at least at that point, he, he was not well. He certainly was whatever you would consider to be quote unquote insane, to use the term of art. Like, in that sense, it's different than OJ because it's not that anybody was saying he didn't do it.

• 1:03:27Sarah Marshall?

  Right, right. And that it's not, you know, based on, do you believe that he did it or not? And that huge cultural divide, like, everyone agrees on what happened in this case. Okay.

• 1:03:37Speaker 01

  Yeah, it's an affirmative defense. It's like, yes, I did this, but I can't be carcerally responsible for my actions. Like, the punishment is a different form. And I realized that this also more or less coincides with the, uh, the Willowbrook expose. And I think that that's not an accident. So.

• 1:03:56Sarah Marshall?

  What is that?

• 1:03:58Speaker 01

  So Geraldo Rivera.

• 1:03:59Sarah Marshall?

  Oh, boy. Yep. Geraldo, welcome. Sit down.

• 1:04:03Speaker 01

  Still there. Yeah, still hanging out. Um, some hot pictures of him online in his seventies, if anyone's looking for them.

• 1:04:14Speaker 01

  But so he did this expose in the seventies about a mental health facility, an asylum, because it really was, this marked the end of the era of asylums. And it was called Willowbrook, and it really exposed the inhumane treatment.

• 1:04:31Sarah Marshall?

  Because interestingly, Reagan also, like, the Reagan administration created policy that also deinstitutionalized a lot of people, right? Ironically.

• 1:04:40Speaker 01

  Yeah. So I think this doesn't necessarily affect, you know, Hinckley specifically, but I'm just thinking about like, the shift in this country from mental health institutions to.

• 1:04:52Sarah Marshall?

  Incredibly expensive places.

• 1:04:55Speaker 01

  Yeah, like that they don't really exist, but the people still exist who are potentially dangerous to themselves and others, so they can't be. Free to deal with their mental health until or unless they're better. But now we don't have places dedicated to that. Like the fix was fixing the institutions.

• 1:05:15Sarah Marshall?

  But like, you don't want to go back to the past where you have people being forcibly institutionalized and

• 1:05:20Speaker 01

  Right.

• 1:05:21Sarah Marshall?

  ending up in abusive places that they can't leave.

• 1:05:24Speaker 01

  But now we just put them in prison.

• 1:05:25Sarah Marshall?

  Right, but now it's like, there is no place to go if you're a threat to yourself or your family. If you can't afford it.

• 1:05:32Speaker 01

  So we don't even call them mentally ill. So I feel like that, yeah, that coincided with the reforms after Hinkley, which basically got rid of a lot of the options of pleading some version of insanity. So now you either can't assert it and/or there's no other facility that you can go alternatively. And I think that those kind of dovetailed and worked together to create prisons as the mental health facility.

• 1:06:02Sarah Marshall?

  Yeah. Yeah. And what that also means is that like, if you're someone who has someone who is a danger to you in your life or who poses a threat or who, you know, is stalking you or behaving threateningly toward you. It's very difficult to know how to handle that for many reasons. But partly because if you have any, if you care about that person at all, which frequently is the case, then like, you don't want them to go to prison as their only option or for something completely terrible to happen to them.

• 1:06:38Speaker 01

  Or even a loved one, like who's having a mental health crisis that gets

• 1:06:41Sarah Marshall?

  Right.

• 1:06:42Speaker 01

  to a point that you can't physically or emotionally handle it.

• 1:06:46Sarah Marshall?

  Yeah, where you are not able to take care of them, but you want someone to, as opposed to, you know, the only care that exists being some form of punishment. It's a

• 1:06:58Speaker 01

  Yeah.

• 1:06:59Sarah Marshall?

  Yeah, it's not good.

• 1:07:01Speaker 01

  It's not great. So like, long story short, on post-Hinkley reforms, there was a congressional act that made the standard. Hire and also got rid of some of the expert witness options. And some states went even further. So if you're familiar with Eileen Wuornos, the gal who Monster was based on.

• 1:07:25Sarah Marshall?

  I sure did watch cable TV growing up. Yeah.

• 1:07:28Speaker 01

  Heck, yeah, me too.

• 1:07:29Sarah Marshall?

  Eileen Wuornos is fascinating for many reasons, but one is because when she was, you know, big in the news in the nineties, everyone was like, she's the first female serial killer. And it's like, she's actually one of the first female serial killers to, you know, become a household name because she killed men outside the home, but women have been quietly being serial killers, often killing, you know, children or their patients or the elderly or just people in their care for such a long time. And so many of them don't get caught. So, you know, that's all.

• 1:08:04Speaker 01

  Hers was arguably like, a lot of them were self-defense adjacent. And

• 1:08:11Sarah Marshall?

  Yeah.

• 1:08:11Speaker 01

  The, the point of connecting it to this, she did not plead insanity, but all these strictures that states put in place after Hinckley. And whether they're directly related or not, um, it's been a couple of decades now, but in Florida where she was tried, if you don't plead insanity, you can't introduce any mental health evidence. So it becomes this like damned if you do, damned if you don't. So it's like, if you don't, uh, throw yourself into this trap that really would control your legal strategy and any testimony that you would give. Then you can't add any evidence of what your state of mind was or what you might've been suffering. Um, and in her case, that was really key.

• 1:08:54Sarah Marshall?

  Right. Cause she, cause like the story basically is that she was a survivor of a lot of sexual abuse and then was working as a sex worker and killed, you know, some number of men. And to me, one of the interesting questions has always been like, How many of them just actually did have it coming? Cause like, I can see a scenario where all of them did, honestly.

• 1:09:17Speaker 01

  If you look at it from a sort of battered woman syndrome adjacent defense.

• 1:09:23Sarah Marshall?

  Yeah.

• 1:09:23Speaker 01

  That like, her nervous system was super heightened when it came to male sexual partners doing XYZ. And here's mental health evidence of why, like you couldn't do that in Florida at the time, so.

• 1:09:35Sarah Marshall?

  Yeah, and that's at least an interesting potential line of defense. And to not have that available to you also seems.

• 1:09:44Speaker 01

  Bummer.

• 1:09:45Sarah Marshall?

  I hate to use it, the word, but problematic, yeah.

• 1:09:49Speaker 01

  Better than my word.

• 1:09:51Sarah Marshall?

  I like them both, yeah. But it's this interesting thing of like, you let, you lose the ability to express the reality of the client's mental situation. If you have that kind of restriction.

• 1:10:02Speaker 01

  Right. It's really bizarre. And I know you have talked about like junk science evidence and some of the traps adjacent to that. And I feel like this fits into that whole constellation of what you can say, what you can't say. The lack of uniformity of what rules we're working with at any place in time is really tricky. And then, so a lot of states now have actually gotten rid of, not a lot of states. Some states have gotten rid of the insanity defense altogether. There's also like an advent of this new thing that's guilty but mentally ill, which then you still go to prison.

• 1:10:39Sarah Marshall?

  That's just like, when someone's like, how are you doing? You're like, well, I feel guilty, but also mentally ill, so.

• 1:10:45Speaker 01

  That asterisk.

• 1:10:46Sarah Marshall?

  Yeah.

• 1:10:47Speaker 01

  Yeah, I don't know. So basically, like, if you get that in your verdict, you go to prison, but then you get to see somebody for a screening to see if you need inpatient care, which I don't know, at that point, maybe it's 601.

• 1:11:02Sarah Marshall?

  Right. And then like, what kind of inpatient care are you gonna get?

• 1:11:05Speaker 01

  Right.

• 1:11:05Sarah Marshall?

  Within the prison system seems like the option that you're left with. It's also, I mean, this makes me think of this, you know, the 1970s death penalty moratorium. And my understanding is that a big part of the rationale for, was that like? Furman v. Georgia or something like that. Or the stated rationale was that we have to, like, if we have the death penalty being implemented, like differently for different reasons across different states and for different defendants than like, how can we swear to the constitutionality of something that's being applied in such a kind of random and arbitrary manner? And it feels like you're kind of saying the same thing.

• 1:11:46Speaker 01

  Boy, you just pulled a thread on the whole system. Yeah.

• 1:11:50Speaker 01

  Yeah. And obviously, if you take it a little bigger, there's the whole states' rights thing, which drives me nuts. And it is the rallying cry of like every unjust cause ever.

• 1:12:01Sarah Marshall?

  Right. And states' rights historically is like code for the states' rights to be racist.

• 1:12:07Speaker 01

  Yeah. Finish the sentence.

• 1:12:11Sarah Marshall?

  Yeah.

• 1:12:12Speaker 01

  For better or worse, on the insanity defense, we had both federal and state responses. So like, everybody was really whipped up into the same frenzy at the state and federal level. And I know you and I have talked about like, how infrequently those knee jerk legislative responses tend to address the problem that they're knee jerking to.

• 1:12:34Sarah Marshall?

  Yeah.

• 1:12:34Speaker 01

  And I think this is a good example.

• 1:12:36Sarah Marshall?

  I do understand how it would be shocking. Like, I imagine if you're like a random citizen, there's been this trial of this guy who attempted on purpose to assassinate the president. And now you're hearing that he's not going to prison. And also, I'm sure are being told implicitly and also out loud by, you know, all the news sources for whom this is like a huge bombshell that like, maybe he'll be released at any time. We don't know. He's not going to prison. We don't have a sentencing guideline.

• 1:13:07Speaker 01

  I'm sure if anybody wanted to rile up their voter base, that that would be the thing to say. And so I'm sure many did say it, that like, do you want to live in this country?

• 1:13:16Sarah Marshall?

  I feel like I have like Pentecostal preacher cadence in the back of my head, you know, like, and I, just the other day, I read news of a man who tried to shoot our president, and he may be out of the slammer in six weeks.

• 1:13:30Speaker 01

  Absolutely, and we know those guys loved Reagan. So like, of course, that was the word on the street. And then, like, for the record, Hinckley was, in essence, incarcerated. Like, he was not free to leave the facility. And every, like, bit of freedom that he got back was a court hearing. So it's like, if he wanted to be allowed to go to an art therapy thing, once a month, it was a whole hearing and everybody came out of the woodwork and were like, this guy tried to kill Reagan.

• 1:14:01Sarah Marshall?

  Well, and also, from what I remember, because this has, you know, been such a long story, but that like, sometime in the past 10 years, he was, whatever the equivalent of parole is. And of course, that was a huge story. And that the terms of his release meant that he like, had to stay a certain distance away from like, any ex-presidents. Which is funny, but then you think about the fact that he was, I think, in the custody of his mother who lived in Virginia. And you're like, well, there have to be kind of a lot of presidents around, actually.

• 1:14:30Speaker 01

  You're absolutely right. And it actually was an issue because his mom was in like, a pseudo-retirement community, if memory serves. And it abutted with like, a golf course. And who loves to golf? Former presidents love to golf. Yes. So there actually was a question of like, oh, god damn it. How do we make this work? But he was released, like, 2022, I want to say. And a lot of people pitched a fit about it. But he was inpatient, essentially incarcerated, for 35 years. And he really, like, the fact that he, he now has comments turned off on his YouTube channel, but he didn't for

• 1:15:13Speaker 01

  a long while. And the fact that he fielded what I'm sure he got in the comments section and didn't lose his mind, to me, is pretty good evidence that he is stabilized.

• 1:15:23Sarah Marshall?

  Yeah. Well, and also, it's like, and this gets into the question of, as you were saying, what is the purpose of incarceration? Or what's the purpose of institutionalization in this case? And I think that if we're going to pretend to be the country that we like pretending to be, and to have the values that we like to pretend to have, we have to at least... Go along with the claim that we do want people to heal if they possibly can. Do we want someone to be able to like, live a nice life when they are no longer a threat? Or can that only happen when they have repaid their debt to society? And if so, how do they do it? And who is society? And is it only repaid when every single person thinks that they've suffered enough?

• 1:16:06Sarah Marshall?

  Because it can't be that, because there's always going to be someone, somewhere, who thinks it's not enough.

• 1:16:11Speaker 01

  And those people are motivated by, I would say, non-utilitarian motives, and things that we wouldn't want ruling our sentencing.

• 1:16:21Sarah Marshall?

  Yeah. This all comes down to sort of what we imagine government to be for, which I realize there's a lot of difference of opinion on that. But I feel like, to me, this gets into the area of like, as cynical as I believe myself to have become, I'm really not. I'm really just a cockeyed optimist underneath, and I truly...

• 1:16:40Speaker 01

  Me too.

• 1:16:41Sarah Marshall?

  Right? And like, and that's a great thing to be. And I, and I do believe that like, just because we, you know, we know partly from being students of history that there are times when this can happen, and has happened, that the law can, you know, not just try and prevent things from happening, or try and, you know, contain people who pose a threat to themselves or others, or to sort of, you know, that the law is not just an instrument of control, but can also, we can use it to try and conceptualize...

• 1:17:12Speaker 01

  Better things.

• 1:17:13Sarah Marshall?

  Yeah. And how to, um, how to facilitate people potentially becoming who they can be, rather than who they've been forced to become. And that it's, you know, you can't expect it to work all the time, or even a lot of the time. But that the potential to bring out what people are capable of in the best way is also worth trying to, to enshrine, I think.

• 1:17:38Speaker 01

  Those are beautiful points and I really think it's the only way to be if we want to move forward at all because fear just rots your brain.

• 1:17:50Sarah Marshall?

  Yeah.

• 1:17:51Speaker 01

  Literally.

• 1:17:52Sarah Marshall?

  I could do this all day and someday soon we will. Where can people enjoy some of your work? And also, since we're putting this out in August, what's a flavor of August that you recommend?

• 1:18:04Speaker 01

  Find me, I'm at MKZJoyBrennan on most of the social media. I'm mostly on Instagram and I also have a website that's MKZJoyBrennan.com. And of flavor of August, see, you're asking somebody with like, I'm autism spectrum and I'm one who like, I eat about three things.

• 1:18:27Sarah Marshall?

  Okay, nice. What are your three things if you want to?

• 1:18:31Speaker 01

  I just found these like great frozen yogurt mint chocolate chip ice cream pop things.

• 1:18:37Sarah Marshall?

  Nice.

• 1:18:37Speaker 01

  And I ate like three of them yesterday. So I'm sure that I'll keep up until August because I'm a creature of habit.

• 1:18:44Sarah Marshall?

  Who knows? But yeah.

• 1:18:46Speaker 01

  Yeah.

• 1:18:47Sarah Marshall?

  Some people need to be reminded of ice cream.

• 1:18:49Speaker 01

  Does that answer the question? Or did you mean it in a fun esoteric way and I went for ice cream?

• 1:18:54Sarah Marshall?

  No, I mean it however you want. I mean, I've been talking up sweet corn. I think sweet corn is like-

• 1:19:01Speaker 01

  Okay, perfect.

• 1:19:01Sarah Marshall?

  Corn is so present that it's easy to forget that like you can just like add a little corn.

• 1:19:07Speaker 01

  Add a little corn to your life.

• 1:19:09Sarah Marshall?

  Add a little corn to your life. I made ramen today and I threw in a bunch of sweet corn and like-

• 1:19:13Speaker 01

  You're crazy.

• 1:19:14Sarah Marshall?

  My god, is that good. I am crazy.

• 1:19:16Speaker 01

  Summer girls.

• 1:19:17Sarah Marshall?

  I'll go to a movie on a weekday. I'm crazy.

• 1:19:20Speaker 01

  Oh, man. Gotta get out of here. Execution.

• 1:19:26Sarah Marshall?

  That was beautiful.

• 1:19:28Speaker 01

  Thank you so much. This is great.

• 1:19:30Sarah Marshall?

  For a bonus shortly and I can't wait.

• 1:19:32Speaker 01

  Oh, heck, yeah.

• 1:19:42Sarah Marshall?

  And that is our episode. Thank you so much for listening and thank you, of course, to our guest, Mackenzie Joy Brennan. You can find her at MKZ Joy Brennan on the social media network of your choice and her website is mkzjoybrennan.com. Thank you to Miranda Zickler for editing and producing. Thank you to Carolyn Kendrick for editing and producing. We'll see you next time.