CrimLaw

I commend this article by Ida-Gaye Warburton in the Capital Defense Journal to you all: 16 Cap.Def.J. 2, The Commandeering of Free Will: Brainwashing as a Legitimate Defense (2003). [Yeah, I know I probably used improper citation format. I'm a practitioner and nobody cares if I cite things properly anymore. I don't think I've even seen my bluebook in the last year.]

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Selected Quotes:
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Before brainwashing can become a doctrinally acceptable criminal defense, it must be narrowly defined to complement current legal principles. The defensive postures of duress and battered woman syndrome (BWS) offer brainwashing some hope of future acceptance.

. . .

Traditional interpretations of brainwashing . . . assume a relatively passive subject under the control of all-powerful . . . external agents who use coercive and manipulative techniques. The end result is a total negation of the old self and the emplacement of a new one.

. . .

The framework of the duress defense is applicable to brainwashing. Similar to a defendant asserting duress, a brainwashed defendant acknowledges that he acted consciously, even enthusiastically, fully aware of the wrongfulness of his actions. The brainwashing defense argues that despite the existence of mens rea the defendant is morally blameless because the guilty mind with which the defendant acted was not his own. Unlike duress, however, the threat does not have to be imminent. Rather, the defendant must establish that the crime was committed while under the coercive influence.

. . .

A cursory analysis of BWS in relation to brainwashing provides several lessons because both defenses involve a person coerced to act in a manner in which he or she would not act if not under the influence of another. First, expert testimony is necessary to dispel layperson views and to explain novel concepts. Second, lay witness testimony is useful to the expert's assertion that the actor exhibited indicia of coercion. Third, the defense is most effective when used for mitigation purposes, especially when it was first presented in the guilt/innocence phase.

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During the guilt/innocence phase the defense should front load mitigation evidence through the use of expert and layperson testimony. Three types of information about the defendant should be provided at this stage. First, defense counsel should determine the susceptibility of the defendant to compelled conversion. . . . Second, counsel must discover the methods used to coerce the defendant. . . . Third, the character traits of the defendant before, during, and after the coercive influence was imposed are important to establish that the defendant was influence by another.

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The testimony of lay witnesses such as relatives will be more effective during sentencing. The focus during guilt/innocence must be on explaining the defendant's intent, or more specifically, the personal lack of it. It is important, therefore, to classify and separate properly the different lay witnesses to establish the best defense possible.

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Brainwashing may be offered as an element of the insanity defense to make the defense more palatable to the judicial machinery.

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It's a well written, interesting article which ties in to the recent Malvo defense. I know the VC3, which is the publisher of this journal, was involved in Malvo's defense but I don't know if Ms. Warburton was involved personally.

Addendum:

I am reminded by Fitz-Hume over at Begging the Question that " the Capital Defense Journal articles are available on Westlaw or can be ordered through the VC3 link."