Motive crimes and other minds.

• Author: Candeub, Adam

INTRODUCTION

Early Sunday morning, March 3, 1991, after a car chase through the Los Angeles freeways, police officers ordered Rodney King to exit his car; King got out of the car and was ordered to lie down on the ground.(1) A dozen officers soon surrounded him, and one, Stacey Koon, fired two shots from his stun gun at King's chest, without effect.(2) Laurence Powell began to hit King repeatedly with a night stick as others joined in. King then rose to his knees and received ten quick baton blows.(3) As if to ward off the onslaught, King raised his arm and then tumbled to the ground, falling on his stomach.(4) In all, the officers hit the man at least forty times.(5)

On Wednesday, April 29, 1992, at the corner of Florence and Normandie Avenues in downtown Los Angeles, rioters stopped an eighteen-wheel truck and dragged its driver, Reginald Denny, out of the cab. Using his right leg, Keith Watson forced Denny's face down to the pavement as others beat him with a ball-peen hammer and other objects. Then, Damian Williams, at a range of three feet, threw a brick that smashed Denny's head. Williams then proceeded to dance what appeared to be a jubilant jig and left Denny bleeding on the street. Later, Denny was rescued by a few brave local residents.(6)

Few images have etched themselves onto the American psyche as deeply as the videotapes of Rodney King's beating at the hands of Los Angeles police officers and Reginald Denny's beating, live on television, at the hands of the Los Angeles rioters. Significantly, the judicial resolution of both these atrocious crimes turned on questions of intent: Did Damian Williams intend to murder Denny with his brick?(7) Did officers Koon and Powell intend to violate King's constitutional rights to be safe from the use of unreasonable force and to be protected from harm while in official custody?(8)

The central role of intent in these highly publicized trials led the subsequent public discussion into some unusual debates on the criminal law's intent requirement and, perhaps unknowingly, on basic issues regarding the philosophy of mind: How does one know what people are thinking or intending? What evidence can reasonably count in such a determination? Although theoretical and abstruse, these questions of determination often surfaced throughout the public debate.

For instance, on the television program MacNeil-Lehrer NewsHour, lawyer Barry Levin said: "The intent required [is one of] premeditated, willful, and deliberate ... first degree murder .... Mr. Williams did not bring a weapon to the scene of the crime.... There are many factors that go into the determination ... of proving intent beyond a reasonable doubt."(9) Professor Susan Estrich responded: "But when you hit somebody with a brick on the head, you generally intend to do them harm."(10)

In the pages of the Los Angeles Times, Professor Jerome Skolnick asked: "Could any juror, or any reader of this column, for that matter, confidently conclude, beyond a reasonable doubt, that Williams intended to put Denny to death or disfigure him with a blow by a brick?"(11) George McCarty answered: "Given that Williams deliberately, willfully and maliciously smashed Denny's skull with that brick, could any fair, reasonable and rational person conclude otherwise?"(12) As these two examples illustrate, an inference of intent from a particular individual's behavior can be as clear as day to some, but as cloudy as a Juneau afternoon to others.

Prosecutors used a variety of approaches to demonstrate to jurors the intents within the defendants' minds. In the federal trial of Rodney King, Barry Kowalski, who has "made a career of decoding for juries the subtle clues of such intent,"(13) advised the prosecution to concentrate on the officers' lies, in order to suggest that the police acted willfully and tried to cover it up.(14) Similarly, in the Denny trial, Los Angeles Deputy District Attorney Janet Moore noted that she could not "cut open Mr. Williams' head to show you what he thinks.'"(15) Instead, she asked the jurors to look at circumstantial evidence like Williams's throwing, rather than tossing, the brick.(16) Commenting on the trial, Professor Robert Pugsley asked, "How does one ever know what is in somebody's head? ... It's rough justice .... It's all kind of a mind-reading game that in no way can be seen as scientific, but it's the best we got.'"(17)

Obviously, something very odd is going on. Janet Moore certainly cannot cut into people's brains to see the intentions therein, but exactly how is throwing

rather than tossing a brick evidence of anything? Or, how is lying an indication of past willfulness? If determining intent is like "a mind-reading game," what are the rules by which one plays?

While these highly controversial trials have focused national attention on the intent issue, legislators have been writing new laws that may ensure that the controversy surrounding intent stays on the national stage. In particular, many states have begun to pass hate-crimes statutes,(18) and Congress is currently considering a federal hate-crimes statute.(19) Moreover, Congress is also considering the Violence Against Women Act ("VAWA").(20) As this Comment will show, these laws require not only intent, which proved problematic enough in the Williams trial, but motive as well. Crimes of motive require more detailed findings of mental state and a deeper inspection of human motivation than other intent crimes. Therefore, the methods that juries use to determine intent under these statutes are a central issue: How will courts determine whether a particular word or gesture is indicative of intentional selection as required by Wisconsin law to enhance the penalty for hate-motivated crimes?(21) How will a court under VAWA determine whether a rape or other violent crime was committed or "motivated by [the victim's] gender"(22) when it can be so difficult to determine whether a person who hurls a brick at Reginald Denny's head was motivated by an intent to commit murder?

The criminal law's reliance on courts' abilities to read the minds of defendants is basic to the criminal law.(23) It would be difficult, if not impossible, to imagine the criminal law without intent, purpose, knowledge, willfulness, or recklessness-all psychological qualities that require inquiry into the internal state of a defendant's mind.(24) Moreover, general intuition tells us that in many cases reading other minds presents little difficulty. Few would consider controversial the claim that when X smiles and extends his hand, he wants to meet you. Life would be difficult without such knowledge about other minds.(25)

Yet just as common sense dictates that some internal mental states are easily read, that same common sense similarly tells us that other internal mental states are nearly impossible to read: What was Hamlet thinking when he murdered Polonius as he cowered behind a tapestry in Queen Gertrude's closet? Did Hamlet really intend to stab a rat or was it part of Hamlet's ruse to make people think he was mad? Was he perhaps unconsciously using Polonius as a symbol for King Claudius and thus actually motivated by a longing for revenge?(26) As the jurors at the trial of Reginald Denny's attackers discovered, troubling examples spring not only from literature.

This Comment looks to philosophy to see whether it provides any guideposts to determine which types of mental states can be inferred with confidence and which types cannot. Part I of the Comment demonstrates, on philosophical grounds, the difficulty in establishing certainty about internal mental states. The "other minds' problem(27) is Summarized, as is the problem's unsatisfactory solution as forwarded by the philosophical behaviorists. Drawing on Rudolf Carnap and Carl Hempel,(28) Part I concludes that whatever knowledge about internal mental states actually exists must be derived by means of inference from behavior.

Part II of the Comment examines three ways to make such inferences. The first strategy employs the argument from analogy, which states that one can assume that others' minds work like one's own. The second method of inference utilizes the evidence offered by verbal utterances. It infers the intent present in the defendant's mind from the words uttered by the defendant. The dispositive nature of such evidence is questioned, and criteria for determining the accuracy of such inferences is developed. The third inferential method examines the evidence of the nature of the act itself. For instance, the evidence that X answers the doorbell means he thought there was a visitor at his doorstep. In Part III, the types of mental states in which the law is interested are discussed.

After arguing that motives and intents are, in fact, different in Part IV, the Comment shows in Part V how motive crimes push the inferential strategies beyond a comfort level, beyond a point where such inferences can be considered valid. To demonstrate this point, motive crimes such as state hate-crimes statutes (of the sort recently upheld in Wisconsin v. Mitchell(29)) and the proposed Violence Against Women Act will be discussed.

This Comment concludes that, as a jurisprudential matter, laws which require determining intent and motivation to a high specificity present courts with decisions which cannot be made on a sound basis. Such laws, of which VAWA and hate-crimes statutes are particularly egregious examples, invite judges and juries to inject their own beliefs into the evidentiary vacuum which the motive requirements of these laws create. The imprecision of these laws also opens the possibility of punishing thought. These laws, therefore, threaten both the credibility and impartiality of the courtroom as well as freedom of thought.

1. THE OTHER MINDS PROBLEM AND THE MODEL PENAL CODE

   The jurors in the King and Denny trials were not the first to encounter the difficulties and intractabilities of determining motive and...