Sneak Previews of Forthcoming Books : Witness for the Prosecution

F<i> rom "Alone With the Devil: Famous Cases of a Courtroom Psychiatrist," to be published in May by Doubleday. Markman examined Manson Family members Tex Watson and Leslie Van Houten for their trials. </i>

‘Though I wanted to see the Tate-LaBianca murderers punished, I had to advise the prosecution that in my opinion there was evidence of diminished capacity.’

THE LAW makes fine distinctions between types of killings, and the mental states required for each type have sophisticated differences. From the mid 1960s through the 1970s, the distinctions in California were even more refined than most. At the time of the Manson trial, in California, case law stated that first-degree murder required not only a state of mind capable of premeditation, deliberation and harboring malice but also one that was able to meaningfully and maturely reflect on the gravity of the act.

Though, as a citizen, I wanted to see the Tate-LaBianca murderers punished, as much as anyone did, I had to advise the prosecution that in my opinion there was evidence of diminished capacity, at least according to California law at the time.

When Leslie Van Houten and Tex Watson and the others committed the crimes, their brains were literally pickled in drugs. They were taking all kinds--LSD, amphetamines, pot, downers and others. A person taking the kinds of drugs the family did would almost automatically have lacked the mental capacity to meaningfully and maturely premeditate, deliberate and reflect upon the gravity of the act. Therefore, if this psychiatric information had been carried over into the legal decision, a first-degree murder conviction would not have been possible. In Leslie’s case, I further believed that she was so spaced out that she might have also lacked the mental capacity to harbor malice. Without malice having been established, she could be found guilty of only manslaughter.

In the meantime, the defense team had learned of my opinion. The law requires that the prosecution inform the defense of any and all evidence, pro or con, that it gathers. Failure to do so is a reversible error, which means that an appeals court could throw out the conviction and order a retrial. So I met with the defense team and told them what I thought, and they decided to put me on the witness stand.

I was troubled because I knew that my testimony could increase the likelihood that the killings would go insufficiently punished.

If you want to carry through on the logic, what person who kills another person can meaningfully and maturely reflect upon the gravity of the act? The greatest thinkers of every age in human history have labored over “meaningfully” reflecting upon the gravity of death. Were we to demand the same level of philosophical and psychological maturity of every killer?

The courts at that time were.

Knowing my opinion, the prosecution naturally didn’t want to use me in court. They were going for first-degree murder convictions and didn’t want a psychiatrist on the witness stand who was going to say that the defendants were not mentally capable of committing first-degree murder. However, I suggested that they charge them with first-degree murder committed during the course of another felony, in this case robbery.

Leslie and her companions had stolen some food and household articles from the LaBianca home. The law said that a killing committed during the course of a robbery did not require malice or deliberation and premeditation to be first-degree murder. I advised the prosecution that the defendants most certainly did have the mental capacity for robbery; that is, to permanently deprive an owner of property.

But the prosecution chose not to go that route at Leslie’s second trial. They wanted to hit hard and win on pure first-degree murder.

Perhaps they were encouraged by the result in Tex Watson’s trial. In that case, I had examined him and told his attorney that in my opinion, despite his drug-induced haze, Tex had the mental capacity to harbor malice but lacked the ability to meaningfully and maturely reflect on the gravity of his crimes. This would have reduced his level of responsibility from first- to second-degree murder. I testified to that effect--but the jury did not let my testimony sway them. Watson was found guilty of first-degree murder and sentenced to death.

But in Leslie’s second trial it didn’t work out that way. As a matter of fact, the jury almost set her free! Half the jury wanted to convict her of manslaughter. Since she had already served enough time in prison for manslaughter, she would have walked out of the courtroom a free woman. But the other half was just as adamant about convicting her of murder. So, lacking the unanimous verdict that is required, we got a hung jury.

For the third trial, the prosecutor decided to go for murder in the course of a robbery. The defense, of course, knew the prosecutor’s plans. I advised the defense attorneys not to use me. I would continue to say that Leslie did not have the mental capacity to harbor malice or meaningfully or maturely reflect. But if asked whether she had the mental capacity for robbery, I would answer yes.

Leslie’s attorneys decided to take the gamble anyway. They put me on the stand as a defense witness. When the prosecutor’s chance to cross-examine me came up, sure enough, I was asked the question, “Did Leslie Van Houten have the mental capacity to commit robbery?” I answered yes.

Leslie was convicted of first-degree murder.

In 1980, the “meaningful and mature” rule that allowed many murderers to go free with little or no punishment, and almost did the same for some of the Manson Family murderers, was rescinded by the “victim’s bill of rights.” Murderers no longer have to be philosophers. Today, the testimony I gave them would not have diminished their capacity or legal responsibility one bit.

Copyright 1989 by Ronald Markman MD and Dominick Bosco.