Citing Post-Traumatic Stress Is Risky Legal Maneuver

Gov. Gray Davis’ calendar is empty today of the customary pursuits of executive office. On Friday he is expected to announce whether he will grant clemency to convicted murderer Manuel Pina Babbitt, who is set to die by lethal injection next week in the death chamber at San Quentin State Prison.

What Babbitt’s attorneys hope Davis will ponder is not Manuel Babbitt as coldhearted killer of a frail Sacramento grandmother, but Manuel Babbitt as casualty of war, a man in the grip of post-traumatic stress disorder incurred in Vietnam, which they say explains a terrible act committed nearly two decades ago.

It will be a challenge.

The successful use of the disorder claim in a criminal defense can be among the most tricky of legal maneuvers. Courts and juries often have difficulty with psychological reasons for heinous behavior--information that may explain a crime but does not help jurors figure out if a defendant is responsible for it.

At the clemency stage of a capital case--the stage where Davis, also a Vietnam veteran, and Babbitt are linked this week--such a disorder is a shot in the dark, a last-ditch effort, a Hail Mary pass.

Politics in large part is the reasoning here; governors who campaign as death penalty supporters have difficulty granting clemency in their first months in office.

What Babbitt’s attorneys are asking for is simply mercy--the purest and least political translation of clemency, they say. They figure post-traumatic stress is their best shot.

“That’s the definition of clemency--the exercise of mercy,” said Charles Patterson, Babbitt’s attorney. “If we had new evidence of innocence or evidence that a court erred, we’d be right back in court. We tried to urge [Davis] that his clemency power is far broader.”

Post-traumatic stress itself is not a defense for criminal liability, like insanity or self-protection, and there are no statistics that track the success of citing it. Understanding of the disorder, both in the psychiatrist’s office and the courtroom, has been evolving for the last 20 years.

Tactic More Likely to Work at Sentencing

Veterans and others who have committed crimes tend to have better luck referring to the ailment during the sentencing process, when they strive to explain their actions as the outgrowth of their trauma.

Still, it remains a difficult courtroom strategy, “a high-wire act where the wire is a razor blade,” said defense attorney Paul Mones, who has both won and lost cases in which post-traumatic stress has been a factor.

And during the clemency phase--a most political process these days--it is difficult to say whether emphasizing the disorder is ever persuasive. The last time a California governor granted clemency in a capital case for any reason, the Vietnam War was still in its infancy, and post-traumatic stress was known by its World War II label, battle fatigue.

“Nobody in the California governor’s office for a very long time has been auditioning for ‘Profiles in Courage,’ ” said Franklin Zimring, professor of law at UC Berkeley, referring to a book on American heroes by John F. Kennedy.

Babbitt’s is “a very appealing case if you can only wait a year and a half until Gov. Davis has four or five executions under his belt,” Zimring said. “For the purposes of having a good shot at gubernatorial clemency, this defendant’s timing is all wrong.”

Post-traumatic stress disorder has been around, experts say, for as long as humans have endured trauma. In his 1994 book “Achilles in Vietnam,” psychiatrist Jonathan Shay argued that Homer described the ailment in the ancient Greek epic “The Iliad.”

In World War I it was called shell shock; in World War II, battle fatigue or combat fatigue. The first clinical studies were done in the Korean War, and by 1980, as post-traumatic stress disorder, it had made its way into the American Psychiatric Assn.’s Diagnostic and Statistical Manual III.

Of the 3.14 million American soldiers who fought in the Vietnam War, about 30% suffered from some level of the disorder on return home. Twenty years later, according to a broad epidemiological study, about 15% of Vietnam veterans were still showing symptoms.

Terence Keane, director of the National Center for Post-Traumatic Stress Disorder run by the Department of Veterans Affairs in Boston, says veterans with the ailment usually had severe and frequent exposure to combat. Witnessing or taking part in atrocities is another key factor, along with receiving little emotional support after the war.

The most common symptoms include a constant preoccupation with the traumatic event--an obsessive mental replay during the day followed by nightmares after dark. Lack of concentration, an exaggerated startle effect, sleep disturbances, emotional numbing and anger are also frequent symptoms.

It is far more rare for a man or woman suffering from post-traumatic stress disorder--or its corollary, battered woman’s syndrome--to suffer “dissociative episodes,” flashbacks that cause a sufferer to blank out, as Babbitt says he did during the attack on 78-year-old Leah Schendel nearly 19 years ago.

On a December night in Sacramento, prosecutors say, Babbitt slashed the screen door of Schendel’s home, beat her so fiercely that her dentures were shattered and attempted to rape her. She died of a heart attack during the assault. A leather thong was tied around one ankle. Other restraints were found near her four-poster bed.

In a tape sent to Davis as part of his request for clemency, Babbitt describes walking to his brother’s home late at night after a day of drinking and smoking marijuana. The fog was reminiscent of his tour of duty in bloody Khe Sanh, he says, and the car headlights were like the lights of enemy aircraft.

These are the kinds of triggers, many experts say, that can cause a flashback or a dissociative episode in someone who suffers from post-traumatic stress. Often in such a case, they argue, a veteran will revert to combat behavior and may not recall anything about the episode.

“The next thing I remember,” Babbitt says on the tape, “‘was waking up on a lawn somewhere in Sacramento on one of those streets. That’s all I remember of that night.”

Murder ‘Doesn’t Look Like a Flashback’

During his 1982 trial--very early in the use of the post-traumatic stress defense in the courtroom--Babbitt was found sane, convicted of murder during the commission of burglary, robbery and attempted rape, and sentenced to death. He was also convicted of attempted rape in an attack just blocks away the day after Schendel died.

“Guilt phase, sanity phase, penalty phase--there was psychiatric information imparted in all three phases” of the trial, says Kit Cleland, the deputy district attorney who prosecuted Babbitt. “I think [post-traumatic stress] was brought up during the guilt phase. Part of their claim was that he didn’t have the necessary mental state to commit murder or robbery or attempted rape or burglary.”

But the attack on Schendel “in particular doesn’t look like a flashback,” Cleland said. “That’s spur-of-the-moment opportunism of a person inclined to commit a crime.”

Patterson, a Vietnam veteran and Babbitt’s attorney for the past several years, argues that his client was badly represented in his original trial. The clemency plea contains an affidavit from the original attorney about not making good use of the post-traumatic stress defense, among many other concerns.

“It is so clear that when Manny Babbitt is put under stress, and particularly if drugs or alcohol are involved, he dissociates,” Patterson said. “He’s someplace else.”

Citing the disorder can be useful during actual trials as a means of bolstering an insanity defense and has been successfully marshaled by many Vietnam veterans for that purpose, said Christopher Slobogin, professor of law at the University of Florida. Still, he said, “more have lost than have won.”

One case in which post-traumatic stress disorder was used successfully to help prove temporary insanity was the Louisiana murder trial of Charles Gean Heads, a Marine Corps veteran of combat in Vietnam.

Heads was tried twice for the shooting death of his brother-in-law. The first jury found him guilty of first-degree murder in 1978 and rejected his plea of temporary insanity. After reading about the newly codified ailment of post-traumatic stress in 1980, his defense attorney argued successfully for a second trial. At that trial in 1981, Heads was found not guilty by reason of insanity after his wartime trauma was explained.

“Not every person who can be diagnosed with post-traumatic stress disorder is suffering from its symptoms at the time they commit a crime,” Slobogin said. “Heads, if you believe his story, was in effect psychotic. He was having a flashback to the time of the trauma.”

Slobogin, who uses the Heads case in his law classes, said that “if that story is true, I can see why the jury acquitted him. He was a mentally ill person who was out of touch with reality at the time of the offense. There are other cases where you get the sense that [post-traumatic stress] is being used fraudulently.”

One recent instance in which the defense did not work was the case of Dick Keech, a Long Beach resident who was 78 when a Southern California jury found him guilty of shooting his son-in-law to death last year.

Mones, who helped represent Keech, argued that Keech fired on his son-in-law while flashing back to his days as a World War II prisoner of war.

Keech had been tortured as a prisoner of Japan. He and his daughter both had been battered by her husband, and Mones contended that Keech fired on the man apparently believing he was shooting at a Japanese prison guard.

“The danger people face in the courtroom [using post-traumatic stress as a defense] is . . . the jury will say, ‘We buy it, but yikes, what happens if we let this guy go?’ That’s why it’s used most often in the penalty phase.”

Times staff writer Dan Morain contributed to this story.