"The devil made me do it" ... and other weird excuses.(excuses by people who commit violent crimes)

Nobody doubts he did it. That is not the issue. When Long Island police first encountered Joel Rifkin, having stopped him for a routine traffic violation, they found the body of a dead woman in the back of his truck - nineteen-year-old Tiffany Bresciani, covered with a dirty tarpaulin. It didn't take long to get the unemployed landscaper's confession, and when he talked, he left no questions unanswered. There had been seventeen murders over a two-year period, all young women, many of them prostitutes. They had been strangled, Rifkin said as he listed them matter-of-factly, noting exactly where the deaths took place and where he had dumped the bodies. The police had already found several of the corpses - decomposing in a steamer trunk in the Harlem River, in an oil drum in Coney Island Creek, in a cardboard box in the Hudson River, and crumpled in a ditch in the tony beach town of Southampton. Together, this evidence and the man's confession seemed to make an airtight case. Prosecutors wondered only how many of the killings they would have to bring to trial to make sure Rifkin spent the rest of his life in prison.

It was a shocking case by any standards, but the real shocker was still to come. In preparing for a second trial, this one for two of the slayings (the first had ended in a twenty-five-years-to-life sentence), Rifkin's then lawyer announced that the new defense strategy would be based on a theory called the adopted-child syndrome. According to the lawyer and a hired psychologist, Rifkin wasn't responsible for his actions. The serial killer couldn't help himself, probably didn't even know what he was doing, thanks to his troubled childhood. Put up for adoption when he was three days old, he never got over the trauma and, his lawyer said, he blamed his biological mother, whom he believed to be a prostitute. Torn between longing and intense hatred, the adult Rifkin sought the company of prostitutes yet fantasized about killing them. Finally, in his early thirties, he began to act on the fantasies, strangling his victims in what psychiatrists call a dazed, dissociative state.

Whatever the ultimate plea (the cases are still pending), there seems little doubt that Joel Rifkin is indeed a crazy man. Wouldn't he have to be to kill seventeen young women? Aren't many - or most - murderers probably crazy? Aren't the majority of them products of some kind of troubled upbringing?. A growing number of defense lawyers think so and are predicating their arguments on this theory. Sometimes, the pleas sound farfetched - "It was the Twinkies I ate that made me do it," claimed one California killer - but some of them seem almost convincing.

"The devil made me do it" -the devil or my mother or the drugs she took when she was pregnant or the nasty neighborhood where I grew up or maybe just the victim him/herself who did something to provoke me. "Don't blame me," the message at the heart of all of these claims goes. "Blame my background or my circumstances." It's an increasingly popular defense, says attorney Ryan Rainey of the National Center for the Prosecution of Child Abuse: "We can expect to see it more and more." We all know about the most, famous don't-blame-me defendants - Lorena Bobbitt and the Menendez brothers - but there have been scores of others in the past few years.

* Colin Ferguson, who eventually changed his plea to not guilty, initially claimed "black rage" made him do it - kill six people and wound nineteen, all of them white or Asian-American, on a Long Island Rail Road train.

* Eric Smith, fourteen, said "fetal trimethadione syndrome" was what prompted him, claiming the epilepsy drug his mother took during pregnancy produced his sadistic urge to beat a four-year-old neighbor to death.

* Daimion Osby of Fort Worth blamed "urban survival syndrome" Growing up in the inner city, hemmed in by racism, he believed he had "to kill or be killed" by the two unarmed men he gunned down in a parking lot.

* Moosa Hanoukai pointed the finger of blame at his wife, who, he said, "psychologically emasculated" him with insults - until the day he "blacked out" and battered her to death with a wrench.

* Damian Williams pinned his crime on "the mob" - the other rioters in Los Angeles who set the mood for his nearly fatal attack on truck driver Reginald Denny.

Lawyers, journalists, and ordinary citizens are struggling to make sense of these cases, indeed of this whole trend. There have been articles in legal journals, symposiums scheduled at prestigious law schools. "Judging by TV talk shows and some high-profile cases, it appears the nation has turned from punishing crimes to excusing them, " suggests a recent story in the American Bar Association's Journal. Alan M. Dershowitz, celebrity lawyer and Harvard Law School professor, has devoted an entire book to the subject: The Abuse Excuse: Cop- outs, Sob Stories and Other Evasions of Responsibility. Hardly a columnist in the country missed the chance to comment on the Bobbitt and Menendez trials. And even The New Yorker, striving always to be on top of the latest trend, has taken up the issue - in a cartoon: "No, I wasn't abused," says one king strolling alongside another, "but I cut off my father's head anyway."

Most Americans outside the legal profession seem to disapprove of "devil" defenses - in theory anyway. The overwhelming majority of pundits criticized Lorena Bobbitt and the Menendez boys for trying to evade responsibility for their crimes. And a CBS poll found that 70 percent of the public frowns on the "abuse excuse." Another survey showed that 68 percent believe the Menendezes are guilty of brutally murdering their parents. Indeed, most people today say they want the country to get tougher on crime.

Still, it's one thing to talk to a pollster, quite another to serve on a jury - and once they get in the jury room, more and more Americans seem to sympathize with defendants who claim to be victims. In most instances, as in the Rifkin case, there is no question of did they or didn't they: Most of the accused admit to their crimes or plead no contest - they just feel they shouldn't be held responsible. But juries still have a number of options, and in the famous cases at least, they are taking them. Mrs. Bobbitt, charged with "maliciously wounding" her husband, was found not guilty by reason of insanity. Both juries in the Menendez case were split up the middle - and in criminal cases, a deadlocked jury is considered a victory for the defense. Moosa Hanoukai, the "emasculated" man who killed his wife with a wrench, was found guilty of manslaughter but not murder. And L.A. rioter Damian Williams, currently appealing his conviction, expects to serve only two to four years in prison, far less than the life sentence he could have been hit with if the jury had found no extenuating circumstances.

The I'm-a-victim defense doesn't always work, of course. Fourteen- year-old Eric Smith was found guilty of murdering his toddler neighbor and sentenced to the maximum: nine years to life. Troy Matthew Gentzler, who pleaded no contest to charges of rock throwing, will spend five to ten years behind bars. And Daimion Osby's "urban survival syndrome" carried no weight in the Texas courtroom where he was convicted of murder and sentenced to life in prison.

But what exactly is operative on the numerous occasions when the oddball defense does work? Is this really a new trend - or an old one recently discovered by the media? Are criminals literally getting away with murder? Are gullible juries buying a lot of hogwash? is this the beginning of the end of all responsibility? Or is it a welcome turn - proof positive that we live in an unusually decent age with unusually compassionate jurisprudence? "For a criminal justice system to earn the characterization of civilized," Dershowitz concedes, "it must reflect differences in degrees of guilt." Still, he and other scholars are suspicious: The system may be growing more sensitive - or simply befuddled.

In some cases, surely, what we are seeing is the triumph of creative attorneys. The law has always recognized the possibility of extenuating circumstances. Not every homicide is a crime and not every killer receives the same punishment. Children are less responsible than adults, insane people less culpable than stable ones. Executioners and soldiers who kill in the line of duty are not considered murderers. Nor are people who shoot or stab someone who is in the act of trying to harm them. These are all age-old, widely recognized excuses, and the law is quite explicit about them, giving some more weight than others. In a number of cases - self-defense, for one an extenuating circumstance can fully excuse and even justify a crime. In the Western tradition, there is nothing legally or morally wrong with killing someone who is trying to kill you. In other instances, the unusual circumstances surrounding a murder are no more than mitigating factors. Consider the so-called crime of passion. In bygone times, in premodern Europe or the Wild West, the fact that a man's wife was having an affair might have absolved him or guilt for killing her. In this century, in most courts, this is no longer enough to clear a defendant. But it does generally make his crime more understandable and argue for some compassion in sentencing. As UCLA criminal-law professor Peter Arenella says, "All murders are not the same, and they never have been."

What has changed in recent years is that lawyers are stretching these categories - or trying to anyway. For nearly two decades now, feminist lawyers have been arguing that a woman acting in self-defense has to do things differently from the way i man would. A man, they say, can fight back in the moment, but a woman, weak and vulnerable, probably cannot - and she might have to wait until her, attacker is sleeping before shooting or stabbing him. Sounds reasonable, right? A lot of juries think so, and the law is gradually changing. "Instead of trying to decide what "reasonable man might do," says Leslie Wolfe, president of the Center for Women Policy Studies, "there's a whole new body of law around what a reasonable woman might do." In a few states, legislatures are rewriting the legal code. In other states, governors are intervening to force change, stepping in to commute the sentences of abused women convicted of killing boyfriends or husbands. In still others, the law is evolving on its own, as judges decide they will admit new kinds of arguments and successful defenses set precedents for the future.

Whatever the mechanism, after fifteen years of feminist lawyering, defenses based on the battered-woman syndrome are admissible in just about every venue. And what started as an argument about women has since been applied to children. After all, it would be even harder for kids to defend themselves against abusive parents. Just as in the case of battered women, it would generally be difficult for children to run away - so they might have no option but to kill their abusers. In theory, this seems very compassionate - a more understanding, more civilized law. "Understanding how a pattern of abuse can affect a person's perception may be quite useful," says University of Virginia law professor John Monahan. "These defenses can help the jury understand what it's like to be in the defendant's shoes." The problem with the new, more subtle definition of self-defense, however, is that in many cases it's murky - not at all easy to tell if the killer really needed to kill in order to defend him/herself. Under the old system, self- defense arguments kicked in only when the danger was imminent - someone coming at you with a knife or gun, say, and a plainly murderous intent. That's usually fairly clear - either it's happening or it isn't. But what about the drunken husband, quarreling with his wife, who mumbles, "I'll get you," and their falls asleep? How does she know if he really means to kill? How does she know he is going to act on his anger when he wakes up? "In some cases," says Monahan, "this defense is justified and makes sense; in other cases, not. It's very hard to judge other than on a case-by-case basis."

In effect, the new law has created a new gray area - and a lot of lawyers are taking advantage of it. A frightened nine-year-old with an abusive parent on an isolated farm without a phone is one thing: She might feel she had few options other than to sneak up on her violent father. But a rich, athletic college student like Lyle Menendez, who could easily leave or call the police, is in a very different situation. At most, in many of these cases, the killer's history of being abused could be seen as a mitigating factor - a reason, perhaps, for a reduced sentence - but only extremely rarely is it a wholesale justification for the crime. The law allows for self-defense, but it does not sanction preventive murder. "A battered woman arguing she feared for her life is not the same," says Monahan, "as the defense that claims 'my parents made me play tennis."'

In some cases, it is feminist theory that is stretching the law. In other cases, it's our view of race and poverty. Ever since the 1960s, when the civil-rights movement woke white America to the horror of racial injustice, thoughtful people have been pondering what they call the root causes of ghetto violence. Criminologist Elliott Currie is one of a group of self-described liberal experts who believe, as he puts it, "that economic inequality and stunted opportunities are fertile breeding grounds for serious crime." Maybe poor youth have no job options; maybe their only role models are criminals. Maybe rioters are different from ordinary shoplifters; maybe the answer is not punishment but prevention. This liberal fix on crime has gone in and out of fashion for the last three decades, but over the long run, it is slowly gaining in popularity and working its way into the mainstream. Even the much-contested crime bill passed last summer included nearly $7 billion earmarked for prevention - in the form of finding jobs for ghetto kids and providing mentors for gang members.

Like arguments derived from feminism, defenses based on this root- cause theory of crime can seem compassionate and reasonable - up to a point. "Creating jobs, improving inner-city schools, and more generally providing opportunities for young people from deprived backgrounds would obviously enhance the safety of our cities," says Michael Massing, a journalist currently researching a book about drugs and crime. But some people, stretching the logic as far as they can, are beginning to see a ghetto background as a kind of blanket excuse. Lawyer William Kunstler, who served as a consultant to Colin Ferguson, blamed slavery, among other things, for the Long Island Rail Road killer's rampage. And nearly half of all Americans, according to one poll, believe insane rage caused by racism is a compelling defense for committing a crime.

But to the more sober-minded, like Alan Dershowitz, this kind of thinking seems downright dangerous. "Rage," writes Dershowitz in his book, "is simply not a valid excuse for violence against members of a different race. Indeed, when rage is based on race, we have a word for it: racism. And racism - no matter how dressed up in psychiatric or psychological garb - should never be allowed to mitigate a crime, even if it helps to explain it."

In still other cases - perhaps the majority - it is science that is expanding the legal arsenal of excuses. As we learn more about what makes people crazy - about the chemical changes that go on in the brain and the way our upbringing makes us who we are - the definition of insanity grows broader and broader, and the possibilities for insanity pleas become almost limitless. Still, legal experts insist that the insanity defense is used far less often than we might think from watching the news: The media, they say, seize on every dubious ploy, the more outrageous the better. Besides, scholars caution, in the majority of cases, insanity bids simply do not work - for whatever reason, juries don't buy them. "Look at the late Jeffrey Dahmer," says UCLA professor Peter Arenella. "He kills more than a dozen men, he has sex with their dead bodies, he eats parts of those dead bodies and refrigerates other parts. He claims insanity. But the jury finds him sane. That is a typical case." Yet exaggerated or not, there is no question that the trend toward pleading insanity is rising - as the definition of insanity. itself becomes looser and looser. A killer' s prescription drugs, mother's drinking, distant father, multiple personalities, PMS, posttraumatic stress disorder, repressed memories, and situational stress - all have been used in court in recent years to bolster insanity pleas.

Traditionally, a defendant who claimed insanity had to prove he or she was so deranged as to not know the difference between right and wrong, and the cause of the derangement had to be a recognized mental illness. Today, the list of certified illnesses is growing ever longer. Given that the American Psychiatric Association currently recognizes nearly three hundred diagnoses, some 20 percent of the population can claim to suffer from a certifiable condition. And even in cases where there is no certifiable mental disease, defense lawyers are appealing to jurors' expanding empathy for ordinary hang-ups. After all, the reasoning goes, if it was the killer's careless mother who made him angry, maybe he isn't entirely responsible for the act his rage drove him to commit.

It's no hard task to grasp why jurors sometimes buy this argument. Both pop psychology and sophisticated psycho-analytic theory have drummed home the message: WE are what our past has made us. Daytime TV talk shows, celebrity confessions, psychologizing biographies, inner-child therapy - all are based on the idea that an individual' s failings, large and small, can be traced to past wounds or abuses. Charles J. Sykes, author of A Nation of Victims: The Decay of the American Character, calls this the medicalization of sin. "The bad boy," Sykes says, "becomes the misunderstood child; the brutal killer becomes a sociopath in need of therapy. In this world, guilt is little more than a hopeless archaism." Sykes and other social critics can sometimes sound a touch alarmist. But in truth, for better or worse, most of us do see the world this way.

We all find it easier to say sick than evil. "Most of us have a moral sense," claims James Q. Wilson, the noted criminologist and philosopher, "but some of us have tried to talk ourselves out of it," believing it is wrong "to be judgmental or to impose our values on other people." Most of us can't even really conceive of evil - can't imagine what it means, except for being warped in childhood. We assume that people like Rifkin and Dahmer - and Hitler - are sick, even if they do know the difference between right and wrong and are thus, by legal standards, quite sane. No wonder creative defense attorneys are finding it easier and easier to persuade juries that their clients are not responsible for their actions. These lawyers are pushing on the open door of the therapeutic culture.

The use of the devil-made-me-do-it defense is almost certainly going to increase in coming years. The more we learn from neurologists about abnormal brain function, the more evidence psychologists find that mental illness is chemical, the more some jurors are going to say that the accused could not help himself. And even if the nation were suddenly gripped by a passion for reform - a passion to restore judgmental habits and strict moral standards - it is unlikely that the larger culture is going to change dramatically anytime soon. All the scolding sermons in the world and all the personal reflection about responsibility are not going to change overnight our assumption about personality - that, like it or not, we are shaped by our past experience.

Still, as the more-optimistic experts contend, this does not necessarily mean the end of all morality - that to understand need not necessarily mean to forgive. By some definition, certainly, Joel Rifkin is a crazy man. His former lawyer may even be right: The killer's feelings about his adoption may be what gave rise to his murderous rage. And that rage may have been so bad that Rifkin thought he would explode. We all know what an urge feels like, and Rifkin's may have been unusually powerful. But does this mean we must decide he is not guilty of his crimes? Of course not. No matter how strong his urges, no matter how angry he may have felt, that is hardly a license to kill.

This, surely, is the message the law wants to send, and even today, it is a message that juries understand. As Peter Arenella explains, "Abused people serve on many juries, and jurors have loved ones who' ve been abused but transcended the experience and made a decent life. Juries know that everybody has faced difficulties. But that's not sufficient reason to excuse or mitigate a heinous crime."

The rise of the abuse excuse poses a challenge - in the best cases, a damnably hard one. Science may tell us that a given killer is abnormal; it may tell us he is close to dimwitted or barely able to control his impulses. But in the end, it is the jury, not the scientists, who must make a judgment - and that judgment is a moral, not scientific, one. We can't put the genie of science back in the bottle, can't ignore what we know about root causes or brain chemistry - but none of this knowledge tells us a thing about ethical questions of ought and should. Even those of us raised in the therapeutic culture can recognize the difference here. And if anything, the better we see ourselves, the more we know about the dark forces that drive us, the more able we may eventually be to learn to hedge and handle them.

He/She Deserved It - Novel as it looks, the devil-made-me-do-it defense is in many cases no more than a new twist on an old strategem. For centuries now, creative defense attorneys have managed to shift blame away from perpetrators by pinning it on victims - the real victims, the ones who were raped or murdered. Call it the he-deserved-it defense - or better yet, she- deserved-it, because more often than not, it is a rape victim who is said to have "asked for it": Her clothes were tight, her manner loose, her seductive message clear as neon. The strategy is as simple as it is crude: Turn the trial into a popularity contest, and concentrate your energy on character assassination.

It is a ploy with an uncertain future. Laws concerning rape cases are changing: New York legislators recently voted that in cases of sexual assault, a woman's clothing, tight or otherwise, can no longer be discussed in the courtroom, and judges in a number of other states have imposed limits on evidence having to do with victims' past psychological counseling. But in other legal areas, particularly high-profile cases, the he/she-deserved-it defense is enjoying a comeback. Harvard law professor Alan Dershowitz saw it at play in the Menendez trial and in Mrs. Bobbitt's testimony. Her "real defense," says Dershowitz, her only argument, was that "the sexist son-of-a-bitch had it coming." With this claim and the right kind of lawyering, any sympathetic defendant - particularly a frail young wife or a charming adolescent - has a shot at winning the jury's heart. And that, of course, is precisely the problem: He-deserved-it arguments have nothing to do with justice.

COPYRIGHT 1995 Hearst Corporation