Seriously, where were these judges when I was practicing law?

In the real world, evidence can be suppressed when it is seized illegally. But in the real world, judges hate suppressing evidence and do it infrequently. No make that very infrequently. In comic books, TV, and the movies; judges seem willing to suppress evidence if it’s a day that ends in Y.

Same is true with the mental health docket. In the real world, juries don’t like the insanity defense and virtually never find criminal defendants not guilty by reason of insanity. And even that may be an overstatement.

Before the trial of John Hinkley, the man who was obsessed with Jodie Foster and tried to assassinate President Reagan, the insanity defense was used in approximately two percent of criminal trials. And it failed 75 percent of the time. After John Hinkley was found not guilty by reason of insanity, 83 percent of those Americans polled thought justice had not been done. As a result of the Hinkley trial, the United States Congress and two-thirds of the states rewrote their insanity defense statutes to make it more difficult to assert a defense used only two percent of the time and rejected 75 percent of the time. Another eight states rewrote their laws and changed Not Guilty by Reason of Insanity to guilty but insane. Oh, and Idaho, Montana, and Utah abolished the insanity defense completely. That’s how unpopular the insanity defense is with both juries and with judges.

Even though most insanity trials are tried to a judge instead of to a jury, judges don’t like finding defendant’s NGRI any better than do juries. For one thing, that 83 percent of the people that were outraged by the Hinkley verdict; they weren’t just people, they were voters. Voters who were stand to be equally outraged anytime a defendant is found NGRI. Judges don’t like upsetting 83 percent of the people the judges want voting for them by finding defendants insane willy nilly. Or Chilly Willy. Or even Willy Nelson. That 75 percent figure I quoted earlier; that was for all trials – jury trials and bench trials.

For the record, judges don’t much appreciate the legal subsets of criminal insanity, either. Things such as competence to stand trial. Makes judges look soft on crime. Which brings us, at last, to the reason I called you all in today. It was the story “Herded Limits” which can be found in Legends of the Dark Knight 100 Page Super Spectacular # 4.

(By the way, if, like me, you’re wondering about that title – no, not Legends of the Dark Knight 100 Page Super Spectacular; that title is a little cumbersome but perfectly understandable – “Herded Limits” is an anagram for “Riddle me this.” I know, I Googled it. Not important to our discussion, but nice to know.)

The Riddler was facing prosecution for attempting to steal some gold. I said attempted because he didn’t succeed. Why? Because Riddler sent the Batman a riddle, Batman solved the riddle, and Batman captured the Riddler. Seriously, do you even have to ask why a Riddler plan failed? The why of his failures are pretty much a given.

But before Riddler faced prosecution he had to go through a hearing to determine whether he was competent to stand trial. Now I give this story credit, it stated that Riddler had been diagnosed with Obsessive-Compulsive Disorder or OCD, which it then correctly defined as, “repetitive behaviors … that the person feels driven to perform in response to an obsession or according to rules that must be applied rigidly.” That’s a quote directly out of the fourth edition of the Diagnostic and Statistical Manuel of Mental Disorders – or DSM-IV, as it’s called for short by the medical field. (Though for future reference, this reference is up to the fifth edition, or DSM-V, now.) The story noted that Riddler’s ODC didn’t manifest itself in the usual ways such as repeated hand washing or counting or all the other things you used to see Adrian Monk do. Riddler’s OCD manifested in his compulsion to inform the Batman of his impending crimes by giving Batman a series of puzzles which contained clues to his planned activities. Because Riddler had OCD, the court had to rule whether he was mentally competent to stand trial.

I give the story credit again, not only did it correctly define OCD, it correctly identified the standards a court must find are met in order to find a defendant incompetent to stand trial. The judge must rule that the defendant’s mental illness affects his or her mental processes so as to either render him or her incapable of understanding the nature of the charges brought against him or her, or renders him or her incapable of assisting in his or her defense. In “Herded Limits,” the judge ruled that the Riddler met those standards and was incompetent to stand trial. He remanded Riddler to Arkham Asylum until such time as treatment could render Riddler competent to stand trial. So the story got the law completely right. But the judge in the story got the law completely wrong.

The judge seemed to be operating under the misapprehension that if someone who’s been apprehended is mentally ill, he’s automatically incompetent to stand trial. But that ain’t necessarily so. In fact, it begs the question you’re begging me to answer: When is someone incompetent?

Say the Riddler suffered from delusions and killed someone he thought was the devil, he might not understand the nature of the murder charges brought against him, because it’s not against the law to kill the Devil. Of, if the Riddler’s delusions made him think his lawyer was the Devil, the Riddler might be reluctant to talk to his lawyer. In either of those admittedly simplified cases, the Riddler would be incompetent to stand trial.

But neither is true of the Riddler. The Riddler has a compulsion to inform Batman of his impending crimes. How does this affliction render him incapable of understanding the nature of the charges against him? The Riddler knew he was going to commit crimes. He even challenged Batman with the task of stopping him from committing the crimes. This compulsion to give advance warning indicates that Riddler would know the nature of the charges being brought against him quite well. He was charged with doing the thing he said he was going to do.

In the same way, the fact that Riddler is compelled to inform Batman when he’s about to commit a crime doesn’t mean he can’t assist in his own defense. To be competent, a defendant must be able to communicate with his attorney, understand and process information, and be able to make decisions regarding his case. Riddler consistently shows, through his riddles, that he can communicate. If anything, he communicates too much. His riddles shows that he can understand and process information so well that he can take information and process it into elaborate puzzles. This combined with his genius-level intelligence indicate that he could make decisions regarding his case.

Nothing, absolutely nothing in Riddler’s rather particularized OCD indicates that he is incompetent to stand trial. I simply cannot understand how 27 different psychiatrists, according to the story, could evaluate Riddler and find he was incompetent to stand trial. I can’t understand how the judges who presided over Riddler’s cases, however many that was, could find he was incompetent to stand trial, either. The judges were more likely to find the 27 psychiatrists incompetent for their erroneous opinions about the Riddler.

But judge after judge has found Riddler incompetent to stand trial and sentenced him to Arkham to be treated until he can be restored to competence. (Really? Arkham? Riddler hasn’t been declared criminally insane only incompetent to stand trial. Judges don’t send a man whose crimes are “rarely violent” and who has been ruled incompetent to the maximum security asylum for the criminally insane. Cleveland, which is a much smaller city than Gotham City, has several institutions for treating defendants in its mental health docket. We don’t normally send people ruled incompetent to the super-max asylum to rub shoulders with all the violent offenders who have been found to be criminally insane. We send them to the lesser institutions. But, I digress.)

Gotham City has seen judge after judge find the Riddler incompetent to stand trial under facts where no judge in the real world would likely find a defendant incompetent. So I repeat the question I posed at the beginning of this column: Where were these judges when I was practicing law? If I had been able to appear before them, I would never have lost a case.