Multiple-Personality Cases Perplex Legal System
By JANNY SCOTT
Published: May 09, 1994
The unmapped territory into which psychiatry can lead the courts became apparent earlier this year when a man on trial for rape in Arizona took the witness stand in a skirt, pink sweater, high heels and press-on nails.
The man, James Carlson, claimed to have 11 personalities, eight of which knew something about the crimes in question. So the defense called each one as a witness, including the lesbian prostitute in the powder-pink sweater.
It was not the first time that a claim of multiple-personality disorder had stretched the rules by which people are tried: several years earlier, a witness in a Wisconsin trial had taken on the personality of a dog.
"The courts don't know what to do with it," Dr. George B. Greaves, a clinical and forensic psychologist in Atlanta, said of the diagnosis of multiple-personality disorder. "The field right now is just in chaos."
Most experts agree that such a disorder exists, though there are widely divergent views on how common it is, and how the courts should deal with it. The issue could become central in the case of Ricardo S. Caputo, who confessed in New York in March to the murders of four women during the 1970's. Mr. Caputo's lawyer, Michael Kennedy, said his client suffers from a multiple-personality disorder and should not, therefore, be held responsible for the killings, two of which took place in New York State.
As the diagnosis has become popular among some psychiatrists and therapists, it has emerged as a wild card in court proceedings from New England to the Southwest.
It poses a number of curious legal puzzles:
Is a defendant with multiple personalities sane or insane in the eyes of the law? What if one of their personalities meets the state's definition of insanity, but the rest do not?
If a witness or defendant is found to have multiple personalities, which personalities should testify? Should each be sworn in separately, or does that lend credence to outdated stereotypes about the disorder?
Precisely how many cases have occurred is not known, since only appellate court rulings are published. But the number of appellate cases alone in which the disorder plays a part is growing steadily.
John Parry of the American Bar Association, who edits a journal on mental and physical disability law, figures there are now six to eight major published cases a year -- up from none or one just five years ago.
One reason is simply that the diagnosis is more common. The disorder had been recognized for centuries, but it disappeared from the psychiatric literature in the early 20th century, resurfacing only after 1970.
The condition is seen as a response to childhood abuse. The victim's memory, identity and consciousness become fragmented. Separate personalities seem to spring up, creating distance from the events.
The disorder is distinct from schizophrenia, which can involve hallucinations and delusions but also severely disrupts a person's ability to think clearly and conduct everyday life. Joel Rifkin, the Long Island landscaper who has confessed to killing 17 women, claims to be schizophrenic.
Some psychiatrists say multiple-personality disorders are relatively widespread, affecting as many as 5 percent of all institutionalized psychiatric patients. They say the condition has been ignored or misdiagnosed.
Others insist it is extremely rare. But because the diagnosis is in vogue, they say, doctors are inadvertently creating cases by asking leading questions of patients who are highly suggestible and eager to please.
A handful of critics wonder whether it exists at all.
"This kind of thinking about the powers of the mind is either the greatest discovery of the 20th century in psychology and it's going to change all of our views of the law and accountability, or it's a mistake," said Dr. Paul R. McHugh, head of psychiatry at Johns Hopkins Medical School in Baltimore. Mr. McHugh says he suspects it is a mistake.
Many say the truth lies somewhere between -- that the condition is real but has been both exaggerated and minimized. Alan Scheflin, a professor at Santa Clara University Law School in Santa Clara, Calif., said the battle "has turned into a my-theory-will-eat-your-theory fight."
And that fight is spilling into the courts.
"It's the same kind of issue," said Dr. David Spiegel, a professor of psychiatry at the Stanford University School of Medicine. "It's either being dismissed as ridiculous and irrelevant, or it's being taken too seriously." Insanity Defense
Most commonly, the disorder comes up in an insanity defense. People accused of crimes ranging from heroin possession to murder have said they were committed behind their backs, so to speak, by "alter personalities."
In such cases the defense must convince the jury not only that the defendant really has the disorder, but also that it robbed him or her of the capacity to distinguish right from wrong.
Experts, however, often disagree on both questions. They disagree on who has the disorder, and some say there is nothing inherent in the disorder that should leave sufferers unable to abide by the law.
In a few cases, nevertheless, the defense has worked. One of the first and most famous cases was that of Billy Milligan, an Ohio man said to have 10 personalities who was found not guilty by reason of insanity in 1978 in the rapes of four women.
It also worked for Arthur Abraham, whose lawyer argued in San Mateo County, Calif., in the mid-1980's that Mr. Abraham had killed his common-law wife while in the thrall of the personality of a high-school friend who had committed suicide.
More often, the argument fails.
In the Arizona trial, the jurors may have concluded that Mr. Carlson was faking. The prosecutor labeled him "a bad Tootsie" and suggested that he had discovered the diagnosis in jail while listening to a call-in radio show.
In the 1992 murder trial of a 22-year-old Minneapolis man accused of murdering a young girl, two expert witnesses said the defendant, John Jolley, had the disorder.
His lawyer wanted to argue that even if Mr. Jolley knew right from wrong, he should not be held responsible because he could not control himself. But Minnesota law does not allow a "diminished capacity" defense.
A similar strategy is being tried by Mr. Kennedy, the lawyer for Mr. Caputo, who returned to New York in March after years as a fugitive and admitted murdering four women in the United States and Mexico.
Mr. Caputo, now 45 years old, had been found incompetent to stand trial for the 1971 murder of a Long Island woman. He then escaped from a state psychiatric hospital and says he killed three more women.
Mr. Kennedy said that his client then lived a relatively normal life for 17 years. But memories of the murders began to haunt him. Fearing the return of a homicidal alter personality, Mr. Kennedy said, Mr. Caputo turned himself in.
In an interview, Mr. Kennedy said he would prefer to avoid a trial by entering a plea of "not criminally responsible," which would mean that Mr. Caputo would be sent to a psychiatric hospital. But under New York law, Mr. Kennedy would need the prosecution's approval, which he has not yet received.
"This exercise we're going through is really an exercise in determining where Ricardo Caputo will be warehoused, because he is not likely to see the streets again in his lifetime," Mr. Kennedy said.
Because the disorder does not necessarily fit the legal definitions of insanity, some theorists want other ways of making sure that people who truly have the condition end up in psychiatric hospitals, not prisons.
Elyn Saks, who is writing a book on multiple-personality disorders and the law, suggests that people with the condition should be automatically presumed not guilty, except under certain circumstances.
A professor of law, psychiatry and behavioral sciences at the University of Southern California in Los Angeles, Professor Saks suggests that people with the disorder might be compared to groups of people, rather than individuals. If it is unfair to punish a group for one member's actions, it is unfair to punish a person for the actions of one "alter," she says -- unless it is shown that all of their personalities acquiesced in the crime.
"If alters are sufficiently person-like, even if they are not persons, then it is unfair to punish them for something they didn't do," she said.
Another problem for the courts has arisen when people claiming to have more than one personality are witnesses. Some defense lawyers say it can be extremely difficult to cross-examine such a witness.
In 1990 a grocery worker from Oshkosh, Wis., was tried on charges that he raped a 26-year-old woman, who said she learned of the attack after two of her personalities told her that a third had had sex with the man. In court, six of the several dozen personalities claimed by the woman testified. At one point, the prosecutor and the judge recall, the woman even switched briefly into the personality of a dog.
The arrangement worked well for the prosecutor, Joseph Paulus, who says he had learned how to communicate with each personality while preparing the case. "The defense didn't have that opportunity," he said. "When he tried to cross-examine, it was kind of a cluster of personalities."
Jacqueline R. Kanovitz, a law professor at the University of Louisville, says she believes that courts need new rules because "the compartmentalized mind creates problems that the legal system has never had to deal with."
For example, Professor Kanovitz argued that the memories of people with the disorder may be distorted, divided among personalities and retrievable only through psychotherapy. Defense lawyers need to be allowed to question the psychotherapist in such cases, she contends. But, she said, that "will contaminate the therapy because the therapist will be seen as a double agent."
"The problem is how to get to the portions of memory that we assume exist," she said. "The defendant is tremendously disadvantaged. Because if you ask the wrong personality state the question, you may get the wrong answer."
Some psychiatrists say the courts are wrong to overemphasize the separateness of each personality, swearing each one in separately and trying to examine the sanity of each.
"It's not that these people really have 15 personalities," said Dr. Spiegel of Stanford. "It's that they have difficulty integrating various aspects of identity, memory and consciousness."
Dr. Spiegel and others recently renamed the disorder for the field's official diagnostic manual, calling it "dissociative identity disorder," which stresses personality fragmentation, not proliferation.
The new name, along with more stringent criteria for diagnosing the disorder, represents an attempt to clear up misconceptions about the disorder and to have it taken more seriously by psychiatrists as well as the courts.
"Courtrooms are bad places to settle scientific problems," Dr. Spiegel said. "Yet that's what often happens."