What Do We Owe Each Other?: An Essay on Law and Society

LAWYER AND PSYCHOLOGIST Susan Vinocour has written a widely noticed, engrossing, immensely saddening, and thought-provoking book, Nobody’s Child. The book covers many central topics at the intersection of law and society. These include the workings of the current insanity defense; our attitudes toward mentally ill defendants; our attitudes toward guilt and punishment; the operation of the criminal justice system generally, especially as it affects the poor and people of color; our society’s failures by our schools, hospitals, communities, and social service agencies to respond to people with major mental disorder and with severe social disadvantage; the work of practicing attorneys, judges, forensic psychologists, and social workers; a specific reform proposal for the insanity defense; and even more. This is an ambitious agenda and I can only address most of it superficially and with hurried treatment. Although I use the book as a vehicle for exploring many of these important issues and often write against the book’s claims, this is more an essay than a review. This essay is also somewhat contrarian, so the readers of this publication should be forewarned.

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Nobody’s Child is held together by the narrative of the life and murder trial of a severely disadvantaged and very limited Black woman called Dorothy Dunn. In Rochester, New York, in September 1997, Dunn’s grandson, three-year-old Raymie, died. He was in her care after being abandoned by Dunn’s severely mentally disordered, drug addicted, and intellectually disabled daughter, Precious. He suffered a serious traumatic brain injury that caused his death. The injury was either intentional on Dunn’s part from a blow to the head, or, much more likely, it was accidental and resulted from a fall. Dunn was charged with and tried for the second-degree murder of Raymie. Her public defender, Karen Hughes, retained the author, Vinocour, as a forensic psychologist to consult about Dunn’s case and to potentially testify on her behalf. Hughes considered raising various defenses, including the insanity defense. Vinocour, who had also been a public defender, concluded that Dunn was legally sane and testified on her behalf at trial. Dunn was convicted and sentenced to 25 years to life.

The book is well written, and Vinocour appears to be self-aware and as objective as possible in an emotionally charged case. The conclusion that justice was not done to Dunn legally, morally, and socially appears justified, although the story is told through Vinocour’s own point of view. Authors may of course be forgiven for a few toss-away observations about broader issues, but when a book seriously raises as many issues as Nobody’s Child, those issues become part of the author’s agenda.

To sort all this out will require providing you, the reader, with sufficient background for many of the threads. Also, when discussing the Dunn case itself, I shall use the law as it existed in New York State and the state of forensic psychology and psychiatry as they existed then. I will accept the author’s reports subject to the caveat raised above.

The Case of Dorothy Dunn

Let’s start with the Dunn case itself. Dunn came from a background of poverty, with a family history of major mental disorder. Her mother, Evelyn, had a history of psychiatric disorders, evidently disciplined Dorothy harshly as a child, provided little social support to Dorothy, and refused to cooperate with either public defender Hughes or Vinocour because she claimed Dorothy murdered Raymie. Her father, never named, severely abused Dunn as a child and was mostly absent from her adult life until he was dying. She hadn’t seen him in 20 years, but after a plea from an aunt, she nursed him at home for 16 months. Dunn did this while taking care of five children and grandchildren although she had no money and no social supports to ease the overwhelming burden.

Much of the immense size of the burden is explained by Dunn’s personal limitations as well as the sheer numbers of people in her care. She called herself a “slow learner” and never got past the fourth grade academically. The author tested her IQ, but provides no precise number. In an email, Vincour said that Dunn’s IQ was in the mid- to high 70s. Based on the few vague comments in the book and the much more precise description of Dunn’s behavioral functioning, I estimate her IQ as no higher than 75 and more likely in the 60–69 range, which qualifies as intellectually disabled (formerly termed mental retardation and developmental disability). She had scarcely any employment history, had failed at those low-skill positions she tried, and had not worked for decades. She had five children by apparently five different fathers, had been married only once briefly, and was the sole support of her children. Dunn had scant understanding of medical needs and almost no human capital skills. Many of the children had been referred to child protective services as possible victims of neglect and abuse. But despite the social workers’ recognition of Dunn’s manifest inadequacies, essentially nothing was done to protect the children or to ensure that they received needed services. A social worker left Raymie with Dunn because he had no idea what else to do with Raymie even though Dunn had said she was not capable of looking after him. The book leaves unclear how Dunn was able to purchase even the minimal food and clothing needs of the children.

Dunn was obviously exhausted and depressed when Raymie died. She previously had no criminal record or record of psychiatric care. We shall return to the description of what happened post-arrest after first addressing the broader issues raised.

What Is Justice and Did Dunn Receive It?

The most general question is whether justice was done in this case. Vinocour writes that there is little justice to Dunn’s many background and personal disadvantages and continues that “[j]ustice can sometimes seem like an arbitrary exercise, the province of the privileged.” She concludes that she and the prosecutor perhaps lived in very different worlds of truth and justice, and that both were trying to do what each thought best. This passage displays common but confused meanings of justice and truth. (It is also probably unfair to the prosecutor, who surely did not believe Dunn deserved her disadvantage or in a relativistic theory of truth.)

What justice demands, what we owe each other, is a question of how we should live together. This is an essentially contested political, moral, social, and legal issue even among otherwise similar liberal democracies. Inequality of opportunity and outcome will result from any conceivable social order as the result of innate differences in temperament and abilities, early environments, and other variables over which developing children have no control. This is a matter of regrettable luck and not a matter of justice. Justice enters the discussion only if those inequalities fostered by laws and institutions are illegitimate according to a society’s own conception of justice.

Please forgive the following very pre-modern musings. Many things we are justified in believing are not relative to personal perspectives and subjective experience and feelings. As the esteemed sci-fi writer Philip K. Dick memorably wrote, “Reality is that which, when you stop believing in it, doesn’t go away.” You act at your peril on the firm belief that gravity does not exist, but you won’t be with us long if you try it. Few think that value judgments are ultimately true or false, but as matters of debate, they turn on both facts and logical argument, which are not relative.

Two critical questions about justice emerge. Are specific laws and institutions fair, and do they sufficiently undermine personal agency and responsibility such that no person or group of people can properly be held accountable? Our legal, moral, and social order presupposes that most adults do have sufficient agency and rationality, but it exempts certain categories of people who may be found not responsible. Juveniles and people with major mental disorder and intellectual disability are examples of potentially exempt people, but only juveniles are mostly exempted as a class. Decision-making about other potentially exempt people are individuated. Tests for doing this are about justice, not scientific fact, although relevant science can guide both rule-making and the outcome in individual cases.

It is therefore a category mistake to claim that any insanity defense test or any other test about responsibility is “unscientific.” It may be inconsistent with the current thinking within a relevant non-legal discipline, such as psychology and psychiatry, but it is ultimately a legal test. For example, the Supreme Court has held repeatedly, with one recent, controversial exception, that legislatures and courts are not bound by the criteria of professional groups for potentially exempt people. In fact, the Supreme Court recently and benightedly ruled in Kahler v. Kansas that no jurisdiction needs constitutionally to have a separate defense of legal insanity. The opinion essentially allows abolition of the defense despite nearly unanimous professional opinion to the contrary.

The legal nature of responsibility tests also explains why different juries can reach different verdicts about similar cases. Different juries, as the representatives of the community’s sense of justice, can have different views. No uniform view should be expected even within a jurisdiction on such matters of moral and legal judgment. Vinocour is certainly entitled to her opinion about the jury’s decision in Dunn, but it cannot rest on the false assumption that the jury was “wrong” as a factual matter. Such a judgment confuses the role of a forensic expert with the potential role of a juror. Perhaps the verdict was so against the weight of the evidence that a court would overturn the verdict as a matter of law, but such a claim requires a legal argument.

Did the social safety net fail Dunn, thus unfairly disadvantaging her? In one sense, the answer is clearly yes. As a result of her deficiencies she was a loving but inadequate caretaker for the children in her care. She couldn’t properly parent without vastly more resources being expended for her and their benefit.

I hope the following won’t sound callous or hopeless because I am trying to honestly face unpleasant realities. There are countless caretakers like Dunn in our society. In a society that is politically committed to personal liberty and family autonomy, there are limits to how much society can intervene in child-rearing and family privacy. Moreover, in a world of limited resources, there are not sufficient funds to take care of all the neglected children that will result even if more intrusions on liberty were allowed. Every dollar devoted to solving this problem will be one fewer dollar available to solve other social problems. Others will claim, I know, that if we eliminate waste and inefficiency there would be enough dollars. But this objection ignores that no inefficient system can be considered outside all social institutions as a whole, and ignores the practical realities of entrenched bureaucracies and political considerations.

Suppose there were enough money. Many assume that we know how to solve the practical realities and to solve the problems institutions seek to remedy. But we often don’t know how to do either. In no conceivable political and economic system will there be enough money for everything a society wants. In a sense, the child protective service investigators had their hands largely tied through no fault of their own. The conclusion that Dunn was the victim of social injustice may be justifiable, but it cannot be assumed out of the context of a wider discussion of the social safety net.

Problems with the Legal System

No human institution and decision-maker will operate perfectly. This includes the legal system and its personnel, such as judges and attorneys. The book makes incessant unsourced, unproven criticisms of the good faith, skills, and biases of these people, including against the behavior of the Dunn prosecutor. In my experience, and often confirmed by empirical evidence, most prosecutors, defense counsel, and judges are reasonably skilled and trying to do a good job. There are of course exceptions in a country as populous as ours that has so much criminal justice processing. But I find it difficult to claim that the criminal justice system is inherently and illegitimately unjust. And if it were, what would be the remedy? In most cases, throwing more money at the crime problem and the criminal justice system is not likely to do much good. For example, many think plea bargaining that disposes of more than 90 percent of criminal cases is an abuse. Prosecutorial charging discretion can be and sometimes is abused, but it is hard to prevent. Moreover, there is not conceivably enough money to have the personnel and infrastructure necessary to permit more cases to go to trial with adequate representation and investigation by defense counsel. Such examples could be endlessly multiplied.

Many assert that the criminal justice system is systemically biased generally by race and class considerations. This claim is often supported by extremely well-chosen anecdotal examples. My favorite is the disparate legal treatment given to Patty Hearst compared to her Symbionese Liberation Army accomplices in the 1980s, a case memorably chronicled in Jeff Toobin’s 2016 book, American Heiress. It is also an element of faith for many people, but there are good, neutral data to the contrary. There are certainly some people in the system who are biased in this way, but the systemic claim is more controversial. There is undoubtedly a disproportionate number of poor and people of color defendants and prisoners in the criminal justice system based on their absolute percentages of the population. Nevertheless, there are alternative explanations to systemic racism to explain this disparate outcome, such as the considerably higher crime rates for serious crime among these groups. It is fearsomely difficult to do dispositive empirical research about these questions, so any conclusion should be tentative at best. It is plausible to maintain reasonably, however, that the criminal justice system is less biased than many believe.

Forensic Psychology and Psychiatry in the Legal System

Forensic psychology and psychiatry play a crucial role in the large number of cases involving mental disorder and intellectual disability in both criminal and civil justice. These professions are as much art as science, despite common protestations to the contrary. Vinocour argues that tests provide psychologists with insights into the subject’s “intelligence, moods and psychological functioning — mental operations ‘sunk wholly below the level of consciousness’ — that would not otherwise be possible.” They allow psychologists to understand the

unconscious or intentionally hidden mind: sniff out their stress and anger, their sadness or bravura, their capacity for empathy and self-control, their fantasies and preoccupations. […] whether [the person is] grounded in the common reality […] we call reason[,] […] whether they mean to be telling the truth of are trying to hide lies.

But these extravagant claims are mostly unproven and controversial with few exceptions. How tests are scored and interpreted often requires inferences that are matters of value and judgment.

The Forensic Value of Psychological Tests

To understand why requires understanding the nature of these tests, which are increasingly used in forensic work. The overarching questions for any test and measurement system, ranging from pathologists’ reports to psychological tests, is whether the test or system is reliable and valid. These are technical terms, but they can be simply defined for our purposes. Reliability refers to whether a test score is repeatable. For psychological or psychiatric diagnosis, it means the likelihood that two independent diagnosticians using the same criteria and based on the same data would reach the same result. A completely flexible ruler made of, say, nutty putty, would not give a repeatable measure of length. Validity asks whether an even reliable measure really tests what it says it measures. IQ tests for example, are quite reliable, but are they good measures of general cognitive ability? Questions of reliability and validity are capable of empirical validation. Tests that have not been demonstrated to be reliable and valid are of little value, and their use may violate disciplinary codes of ethics.

Psychological tests come in two forms: more or less objective, and “projective.” In the former, a relatively objective stimulus is presented and the subject must give a relatively constrained answer. For example, personality inventories often ask the person quite specific question about their lives and behavior. The response might be true/false; or, a less constrained answer might be something like “agree strongly” to “disagree strongly” with pre-determined intermediate points. Standard IQ tests and some personality inventories are quite objective. Others less so. Projective tests give the subject a relatively or almost completely vague stimulus, and subjects are typically unconstrained in their answers. Some permit further questioning to clarify the subject’s response or to probe for more responses.

Objectives are generally much more reliable and valid than projectives because more judgment and inference are required to score and interpret the latter. For some projectives, there are scoring systems based on large samples that try to make scoring more objective, but none of these methods has achieved professional consensus. The final consideration concerning reliable and valid tests is their value-added beyond in-depth clinical interviews that are or should be the bedrock of every psychological or psychiatric evaluation performed for any purpose. This, too, is a matter of dispute. In some cases, there is little doubt that tests have benefit, such as obtaining precise measures of intelligence. The law sometimes requires use of particular tests, such as IQ testing as part of an intellectual disability claim. Experienced IQ testers believe that they can determine a subject’s true range from a complete clinical evaluation. Maybe they can, but that is still different from having a repeatable score one can report to the attorneys and the court.

Criticisms of Forensic Practice

In short, most forensic psychology and psychiatry has a less than firm scientific basis. Nonetheless, sweeping criticism of these practitioners as “whores of the court” who do not understand or report their limitations and who will offer any opinion if paid enough, is sometimes correct but too strong. Such professionals are of course subject to biases and other human judgment errors, as numerous studies have shown. In my experience, however, most are trying to do an honest, self-reflective, and professional job, much as Vinocour did. Moreover, there is a rigorous board certification process in both forensic psychology and psychiatry administered by professional specialty boards that existed long before the Dunn case.

Criminal Responsibility

Now let’s turn to the law. Legal criminal responsibility depends on the prosecution proving beyond a reasonable doubt all the criteria a jurisdiction’s penal code establishes for guilt. Lawyers call these the “elements of the crime.” For example, prosecution for intentional homicide requires a culpable mental state, in this case the intent to kill. An intentional act that causes death is not an intentional homicide unless the defendant intended to kill. A killing that is caused by the creation of risk or by the commission of another serious crime must be tried under a different definition of homicide. The culpable mental state requirement is known as the “mens rea” for the crime. Literally, it means “guilty mind,” but legal definitions of culpability criteria are largely ordinary language. For instance, intent typically denotes that the defendant acted on purpose, such as the purpose to kill.

Even if the prosecution can prove all the elements beyond a reasonable doubt, the defendant can still avoid culpability by establishing what is known as an affirmative defense. These come in two forms, justifications and excuses, but for our purposes we shall only consider the latter. In cases of excuse, the agent is found to be non-responsible independent of whether the prosecution proved the elements. Examples are legal insanity, immaturity, and legal coercion (termed “duress”). Defendants can argue both that they lacked the culpable mental state and that they should be excused even if the elements were proven. Defendants’ ability to introduce mental disorder or disability evidence to cast doubt that the culpable mental state was lacking is not constitutionally required as of a Supreme Court ruling in 2006. Most jurisdictions that permit it nonetheless have strict evidentiary limitations. As we have already seen, the Supreme Court does not require a jurisdiction to have some form of insanity defense. The Supreme Court has also held that a jurisdiction may constitutionally place the burden of proof for affirmative defenses on the defendant at any level it chooses, from a permissive preponderance of the evidence standard (“more likely than not”) in use in most civil cases and at more demanding levels, too. If the defendant must prove the independent defense, the chance of losing increases. Dunn’s case raised all these issues.

Criticisms of Tests of Legal Insanity

Misreading and confusing the history and operation of mens rea and legal insanity, and misunderstanding the criteria for both frequently bedevil discussion of criminal justice operation and policy. Non-specialists will be forgivably confused, but so was the Supreme Court in its majority opinion in Kahler, which effectively abolished the insanity defense as a constitutional requirement (jurisdictions are still free to enact an insanity defense, but are not compelled to do so). For example, Vinocour and many legal critics direct particular ire against the terms “knowing right from wrong” and “knowing the nature and quality of one’s act ” derived from M’Naghten’s Case, an 1843 English case that established the definition of legal insanity most widely used in the United States in various forms. The term “knowing” is allegedly too cognitively narrow, is too absolute, confuses legal and moral wrong, and is inconsistent with expert judgment of how major mental disorder affects broader capacities than pure knowledge, such as reasoning capacity, that should bear on legal responsibility. Many prefer the broader locution, “understands,” which they believe better captures the moral and legal question in issue. The inconsistency of mental health opinion with some interpretations of “knowing” is correct, but these interpretations are mostly wrong and Vinocour is wrong about the actual operation of insanity defense cases and how the test affects the outcome.

Here is the text of the 1984 federal test:

It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.

And here the New York test in effect at the time of Dunn:

In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong.

As every sophisticated lawyer knows, none of these terms is typically self-defining, but is capable of and have been interpreted differently by different courts at different times, even within the same jurisdiction. All can be interpreted narrowly or broadly. Take the case of Andrea Yates, the fundamentalist Texas mother who was indisputably suffering from post-partum depression with psychotic features when she killed her five children by drowning them one by one in a bathtub. She planned the killings because she believed, roughly, that if she didn’t kill them now, they would be corrupted by her and then would be tormented by Satan for all eternity. The Texas test was then the narrowest in the nation (and constitutional), limiting the applicability only to those with severe mental disorder and only if they didn’t know right from wrong, thus omitting the nature and quality of the act alternative of M’Naghten.

Let’s examine what that test might mean. Yates surely intended to kill the children. Her psychotic belief explains why she formed that belief, and she equally surely knew that drowning would accomplish their biological death. Did she know that killing apparently innocent children was legally and morally wrong? Almost certainly. Did she know that her neighbors would think she was acting morally and legally wrong? Almost certainly. If such narrow beliefs were all that are required, she probably was sane. But did she think that she was answering to a higher authority and thus it was correct to do what she did? Probably. If asked about the law and her neighbors’ beliefs, would she have answered that if the law and her neighbors knew what she delusionally believed to be true, they would have agreed that it was the right thing to do? Again, probably. You tell me which interpretation the law should adopt: the narrower or the broader? And note that this is not a medical or psychiatric opinion. The Texas test may have been interpreted too narrowly for your moral or legal taste and it may not comport with most psychiatric judgment, but it was not “unscientific.” Moreover, there was a competent forensic psychiatrist who testified for the prosecution. That expert was guilty of some inadvertent misfeasance at the first trial at which Yates was convicted, but he brought the error to the court’s attention and there was a retrial at which he testified again without error. The second time, Yates was acquitted by a somewhat different type of jury.

The Practical Operation of Tests of Legal Insanity

Many trees have been felled, much print has been expended, and many pixels have been illuminated discussing the virtues and defects of the many substantive tests for legal insanity, including the now disfavored “control” tests that accompany cognitive tests in a minority of jurisdictions. The question is whether the test used makes much difference to the introduction of expert evidence or the ultimate outcome in insanity defense cases. Both available empirical evidence and immense amounts of “anecdata” suggest that it doesn’t. The judge or jury hears all the mental health testimony the defense chooses to present, and the outcome seems unrelated to the test used. Judges are largely permissive about evidence and jurors appear to be making rough and ready all-things-considered judgments about whether the defendant should be held accountable. Based on limited empirical evidence, we have reason to believe that a few factual variables make a difference, such as whether the defendant suffered from a psychotic level disorder and the gender and race of the defendant. Many psychotic defendants are convicted, but defendants are unlikely to be acquitted unless they were psychotic at the time of the crime. Women are apparently more likely to be acquitted as are Blacks, contrary to the assertions to the contrary about race. Wealth and privilege don’t seem to matter, again contrary claims and anecdotal examples to the contrary.

Available empirical evidence and anecdata reveal that shifting the burden of proof to the defendant does make a difference. This is especially true at levels of the burden higher than the civil burden of a preponderance of the evidence. For example, many jurisdictions and federal law require the defendant to meet a more difficult to establish burden such as clear and convincing evidence. The harder it is for defendants to prove their defense, the more likely they are to be convicted.

Such burden shifting is constitutional, but is it fair? Every informed citizen is entitled to their own political, moral, and legal view on this issue. We often intone that it is better that 10 guilty defendants should go free rather than innocent people should be convicted. This is why we place the burden of proof on the prosecution’s case to prove the elements. This strongly favors the defense because acquittal requires only casting a reasonable doubt on the prosecution’s case. The question for the affirmative defense of legal insanity is whether it is better to acquit probably guilty defendants or is it better to convict dangerous people who probably should have been acquitted and would have been acquitted if the burden of disproving legal insanity were allocated to the prosecution. Is your judgment affected by learning that acquitted defendants can be committed to secure forensic hospitals where they will be confined potentially indefinitely as long as they remain disordered and dangerous? The Supreme Court has controversially held that this is constitutional. They can be held much longer than the prison term for the crime charged in many jurisdictions because they are not being punished, which is tied to and limited by the agent’s culpability. Acquittees are held for treatment and quarantine that are by definition not punitive practices.

Proposals to Reform the Defense of Legal Insanity

Finally, most reform proposals of the defense are of questionable wisdom. Tinkering with the test itself, such as including a control test, won’t work for the reasons given. Changing the allocation of the burden of proof would, but it depends on one’s point of view about which allocation is correct. The major genuinely transformative proposal is some form of abolishing or weakening the adversarial process in insanity defense cases. Nobody’s Child makes a representative proposal, but it is just an example. Roughly, it suggests that the issue of legal insanity should be decided by an impartial panel of neutral experts who decide what the outcome should be by a simple majority, and then present their findings to a judge who is competent to judge mental health evidence. In my opinion, such proposals are conceptually unjustifiable attempts to turn a legal and moral issue into a scientific one. Should such momentous decisions be made by a simple majority of “experts”? Moreover, it has been long acknowledged that there are not genuinely “neutral” experts when important moral and legal issues are at stake because every “expert” has their biases. This is why so many experts routinely testify for one side. Appointment by a judge doesn’t alter that, which is why many, including this reviewer, think the adversary method is a better method of deciding issues despite all its faults.

For example, the allegedly impartial experts appointed to examine the Norwegian nationalist mass killer, Anders Breivik, changed their opinion about whether Breivik was psychotic at the time of the killings. The experts changed their opinion not based on “new” psychiatric evidence, but after intense public pressure to find Breivik sane and responsible so that he could be punished. This indicates both that the experts are not as neutral as the author believes is possible, and that mental health professionals and judges trained about mental health have less legally relevant expertise than the author claims. The best account of this fascinating event is One of Us by a Norwegian journalist, Åsne Seierstad.

The Dunn Denouement

With all this background in mind, let us conclude with a discussion of the instructive Dunn case itself, with the caveat that it is described from Vinocour’s quite progressive, opinionated viewpoint. There seemed to have been a clear violation in Dunn’s initial police questioning of her Miranda rights. If she waived those rights, the waiver was of uncertain validity. Her incriminating statements might well have been inadmissible. The forensic psychological evaluation was professional. I have a reservation about whether Dunn was psychotic as the author concluded. Dunn’s seemingly nonsensical and incoherent statements might have equally been explained by stress and her very serious cognitive and emotional deficiencies. Knowing Dunn’s IQ would help. This rival, plausible hypothesis is neither discussed nor ruled out. Defender Hughes was intelligent and worked hard, but wasn’t very experienced and did not have sufficient time or resources to adequately investigate the insanity claim.

The trial itself seemed reasonably fair despite accusations against the prosecution, such as the speculations that the prosecutor stacked the deck against Dunn by his jury selection techniques or that vulnerable key witnesses were improperly coached. But all trial attorneys try to obtain a jury that they think, whether rightly or wrongly, will favor their side. The author is correct that there can be improper coaching. Nevertheless, there was no allegation of specific misconduct concerning either speculation.

The New York mental state requirement — the mens rea for second-degree unintentional murder — made it difficult to cast doubt on whether Dunn possessed that mental state at the time of the crime, and one partial affirmative defense to that charge was ruled out by New York judicial precedent interpreting that defense. Thus, it appeared the legal insanity defense was Dunn’s only real option. But it wasn’t or should not have been.

The trial was marred by one inexcusable ruling by the trial judge that favored the prosecution. I believe that the prosecution should have nonetheless objected to that ruling because its first duty is to justice being done, not to winning. At the conclusion of all the prosecution and defense cases but before final arguments, Hughes came into possession of potentially exculpatory evidence that strongly supported the defense case on both legal insanity and mens rea. The material was released by the Department of Social Services after delays in responding to a judicial order to release it. The next day, Hughes tried to put Vinocour back on the stand to discuss the implications of those records. The prosecutor properly objected to the introduction of this new evidence because he had not been given proper notice and a chance to review these materials himself. The judge had the discretion to adjourn the case for a continuance to permit the prosecution adequately to review the records and to prepare cross-examination. But the judge was unmoved by Hughes’s argument that the late introduction was not her fault, and sustained the objection. The author speculates that the judge’s desires to not delay the trial and to allow the jurors to get back to their lives and families motivated this ruling. In my judgment, these would have been improper grounds for sustaining the objection, but we have no idea why he ruled as he did. Perhaps he was just a stickler for procedural formalism. Vinocour concedes he had a reputation for being tough but fair. In any case, I think it was grounds for a reversal on appeal and a new trial. There was apparently no appeal, but there should have been.

I do not think conviction without appeal was legal justice. A dreadful outcome for Dunn and the children was predictable, although not necessarily this outcome. Neither outcome was inevitable, however. Dunn and the children could almost certainly have been saved by a different social services net, but we have already seen the difficulties in providing one to her and all those with equal need. In short, her life outcome may be deeply regrettable, but it is not clearly the illegitimate result of social failure. Dunn may have been convicted as a result of the judge’s ruling because he was unwittingly biased by her poverty and race. There is no evidence that this was true. It may be true of some judges, but no known pre-appointment or pre-election screening instrument for bias among potential judges can predict how the judge will rule from the bench in actual cases. Perhaps such a reliable and valid screen will exist in the future, but little can be done today. We do not know why there was no appeal. If it was a result of insufficient funds to represent indigent clients with meritorious claims to appeal, then it is unjust. But once again, the problems discussed earlier about what to do seem almost insoluble. The legal outcome, like the social outcome, is deeply regrettable, but not clearly a result of injustice unless you believe the entire criminal justice system is illegitimate.

In my view, Dunn’s sentence of 25 years to life with the earliest possible release date of 2022 was lawful, but ferociously long. The newly discovered, exculpatory evidence might have strongly affected the judge’s view of Dunn’s culpability and deserved sentence. Retributive justice, which is a theory of justice and not revenge, was violated by the length of the sentence. Also, Dunn was not a danger to anyone other than children in her care and a shorter sentence would not fail to deter people like her or anyone else. For a “mixed” theorist of justice and sentencing like me, who blends retribution and practical consequences, Dunn remains in prison without adequate justification. Systemic failure and injustice seem apparent, but no theory of punishment is uncontested. Retribution and deterrence both have harsh critics and no jurisdiction is obliged to adopt any such theory. Thus, failure and injustice are once again unclear.

Dunn has not seen her children since she was arrested except when some testified at trial. The whereabouts of the various children is unknown because their records are sealed and confidential.

Hughes left the public defender’s office for a position as a private defense attorney and is well respected in that capacity. Prosecutor Denny Gallo, whose behavior received much criticism in the book, rose through the prosecutorial ranks and finally was elected as a judge.

Vinocour retired as a practicing forensic psychologist, but wrote this book.

This is a sad and depressing tale, but it raises a host of interesting, important broader issues. We have Susan Vinocour’s Nobody’s Child to thank for doing that.

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Stephen J. Morse, JD, PhD, is a professor of Law, Psychology and Law in Psychiatry, associate director of the Center for Neuroscience & Society at the University of Pennsylvania, a licensed attorney and psychologist, and a board-certified forensic psychologist.