This week, Frank Oz, a prominent member of the bar, is tried for the murder of his wife Joanne. There is no doubt Oz killed her. Everyone agrees that he took a bronze trophy - bestowed on him by one bar association or another - and bestowed it deep within his wife's skull.

Case closed? Not yet.

Oz claims his wife was about to kill him, so he acted in self-defense. As she was preparing dinner and armed only with a steak knife, and Oz struck her from behind, Donnell points out that self-defense may not carry the day. As Donnell (and we) know from the previous episode, Oz is somewhat delusional and a wee bit paranoid. Donnell pleads with Oz to abandon self-defense and assert a defense of insanity; Oz declines. Worse yet, he chooses to represent himself at his trial.

Although clearly a few pages short of a brief, Oz appears a very capable trial attorney. In cross-examining his arresting officer, Oz draws out a beneficial fact intentionally ignored by the prosecution. Another question to the officer - "Why didn't you tell the jury the 'whole truth?'" - effectively suggests to the jury that it cannot trust the prosecution. Through very careful, very controlled cross-examination, Oz compels the prosecution's forensic expert to admit that even a blow from behind is consistent with his claim of self-defense since it is possible that after attacking Oz, his wife turned to flee just as the blow struck.

These minor victories prove Pyrrhic, and Donnell again tries to convince Oz to assert a claim of insanity. Halfway through the show, Oz reconciles with Donnell, relents and decides to change his defense.

Not so fast.

Judge Roberta Kittleson refuses to allow a mid-trial change of defense. Oz neatly sidesteps this ruling by simply arguing "mistake of fact"; that he "mistakenly" believed his wife was trying to kill him. Therefore, he was justified - at least in his own mind - in killing her.

The jury agrees with Oz and finds him not guilty.

The show, while full of great dialogue, jumbles the defenses of insanity, self-defense, and mistake of fact. It's worthwhile to consider each in turn.

Defense Number 1 - Insanity.

In Massachusetts, a person is not responsible for his criminal conduct if at the time of the conduct, and as a result of mental disease or defect, he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. Commonwealth v. McHoul, 352 Mass. 544 (1967). Under the Rules of Criminal Procedure, a defendant intending to rely on such a defense must notify the prosecution of that intention prior to trial and submit to a psychiatric examination. Massachusetts Rules of Criminal Procedure Rule 14(b)(2). Since the prosecution always has the burden of proving the defendant had the mental capacity to commit the crime (in other words, that he was sane), this notice provision permits the prosecution to obtain its own expert psychiatric witnesses.

As Judge Kittleson observes, Oz provided no such notice to Helen Gamble and the Pipsqueak. However, her refusal to allow evidence of lack of criminal responsibility is clearly a mistake under Massachusetts law.

Per the Supreme Judicial Court of Massachusetts, defendants may raise the defense of insanity at any time - even in the middle of a trial - without prior notice. Since Rule 14(b)(2) exists to let the prosecution obtain its own expert witnesses, failure to notify only bars introduction of expert opinion, and then only in circumstances where the defendant has refused to submit to a court-ordered psychiatric examination. Commonwealth v. Guadalupe, 401 Mass. 372 (1987). The Court has recognized that such a defense does not require psychiatric testimony; indeed, other non-expert evidence may be introduced to prove the defendant's lack of criminal responsibility. However, as a practical matter, it is highly unlikely that a defendant would succeed in convincing a jury that he was suffering from a mental disease or defect at the time of the alleged crime without expert testimony.

Beyond this procedural matter, was Oz suffering from a mental disease or defect, and so lacked the capacity to appreciate the wrongfulness of his conduct? It remains an open question. He certainly seemed to exhibit some form of senility, but I saw very little hard evidence that he could not tell right from wrong. Even had he been permitted to employ an insanity defense, it is not obvious to me that he should have succeeded.

Defense Number 2 - Self-Defense.

In Massachusetts, as in other jurisdictions, a person may use reasonable force to protect himself from harm. Oz argues that he believed his wife was trying to kill him and he acted in self-defense, but quickly abandons this defense. In fact, there is no factual testimony that Oz's wife attacked him. By the time Oz testifies, he is himself convinced that she was not attacking him, and no objective evidence can support a claim of self-defense. His hypothetical questions in cross-examining the forensic expert ("What if Joanne attacked me with a knife and then turned to flee?") are not evidence and, it turns out, are not based on facts that Oz actually recalls.

Defense Number 3 - Mistake of Fact.

Deprived of the defense of insanity, Oz falls back on arguing that he killed his wife because he "mistakenly" believed he was acting in self-defense. (Dizzy yet?) Of course, he only believed this because he was delusional - but why press this point too far?

In Massachusetts, mistake of fact can be a defense to a crime. However, as the Pipsqueak points out, the defendant's mistaken belief must be genuine and reasonable. Commonwealth v. Cordeiro, 401 Mass. 843 (1988). While this requirement is noted when Oz initially raises the defense, it is discussed no further and is essentially ignored in Helen Gamble's closing. Given Oz's testimony, and the lack of any evidence that would suggest to a reasonable person that Joanne Oz was trying to kill her husband, it is not at all clear that the judge should have allowed the jury to consider mistake of fact as a defense.

These matters of artistic detail aside, it was good to see the crew of Donnell, Young, Frutt & Dole back in courtroom where they do their best work.

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