Identity Crisis: Depraved-Heart Murder and Criminal Insanity

Identity Crisis was a DC limited series that ran from June through December of 2004. Exactly where it fits in the larger DC continuity is far too large a subject to broach here. For our purposes here at Law and the Multiverse, the series is notable for including a rather notable example of depraved heart murder, which is something that we’ve mentioned in passing but which deserves a fuller treatment, as it shows up fairly frequently in comic book stories. This is also another opportunity to examine criminal insanity, so we’ll look at that too. There are a lot of spoilers in this one, so we’ll continue inside.

Identity Crisis kicks off with the apparent murder of Sue Dibny, wife of the Elongated Man, in her apartment. When Ralph returns, Sue appears to have died from massive burns, which is odd, because other than the body, there really isn’t any forensic evidence to speak of. Not even any discovered by the security tech installed by Batman, which represents a nasty fusion of Kryptonian, Thanagarian, Martian, and Apokoliptian technology, with Wayne’s own special innovations on top. The murder is a mystery, and when Ray Palmer’s (Atom) wife Jean Loring is attacked, the superhero community goes into, if not full-on panic mode, then the next best thing.

But it turns out that Jean was behind it all along. She found one of Atom’s spare shrinking suits lying around while she was packing up her stuff as part of their pending divorce. She decided that a little scare might be the thing that would push she and Ray back together. So she snuck into the Dibny apartment and then into Sue’s head, where Jean had intended to simply cause Sue to pass out. Of course, lacking adequate knowledge of either anatomy or the shrinking technology, the result was essentially a lethal stroke.

I. Depraved-Heart Murder

This is where we get into our discussion of depraved-heart murder. At common law, this was the name for what is now generally called “reckless homicide,” which under states which have adopted some version of Model Penal Code § 210.2, still counts as murder. The MPC describes these acts as displaying “extreme indifference to the value of human life,” but which the common law describes more colorfully as evidencing “an abandoned and malignant heart.” At least one US jurisdiction, Mississippi still refers to these crimes as “depraved-heart murder”.

The reason Sue’s killing doesn’t automatically constitute murder is, if we accept Jean’s account of things, Jean did not actually intend to kill her, and murder is an intentional crime. But the Model Penal Code recognizes that there are certain kinds of recklessness, i.e. willful disregard of a known risk, that are worse than others. Driving while drunk is bad, and can certainly kill people, but driving while drunk is a more general kind of recklessness than, say, playing Russian Roulette. In Commonwealth v. Malone, 47 A.2d 445 (Penn. 1946), the Pennsylvania Supreme Court affirmed a verdict of depraved-heart murder (this was before the drafting of the MPC) for a teenager that encouraged a friend to play Russian Roulette. Driving while drunk is also a more general kind of reckless than deliberately inflicting internal brain injury on someone, resulting in a more serious consequence than actually intended.

So it seems pretty clear that even though Jean lacked the intent to commit murder, her actions did display the “extreme indifference to the value of human life” or the “abandoned and malignant heart” necessary to ground a charge of depraved-heart murder.

II. Criminal Insanity

We discussed the ins and outs of the insanity defense back in January, so we will not rehash those arguments here. The question we are facing is whether Jean actually counts as criminally insane. The series certainly seems to think so, as she ends up in Arkham. But, using the analysis we put forth in January, there’s a good case to be made that Jean would not be able to successfully employ the insanity defense. Under the M’Naghten test, which is still the most common test for insanity in criminal law contexts, a defendant is insane if, as a result of a defect of reason or disease of the mind, he fails to comprehend either the nature and quality of an act, or, if he did know, that he did not know that what he was doing was wrong. There’s no suggestion that Jean ever had any doubts about what it was she was doing, and she understood what had happened well enough to try to cover it up. That alone suggests that 1) she knew what she had done, and 2) she knew that it was wrong. Indeed, trying to cover up or escape from the scene of a crime is pretty strong evidence that a defendant is not insane, because a truly insane person wouldn’t even bother to run.

III. Conclusion

So call it one for two. They’re definitely right that Sue’s death was a murder, as the depraved-heart / reckless homicide doctrine seems to be both in play and satisfied under the facts of the story. But like so many other times, the writers fail to understand the legal analysis for insanity, seemingly believing that any person with an observable mental condition goes to the looney bin rather than to trial. Still, the insanity thing is a very common misunderstanding, so one is tempted to give them a little more slack there.

All in all, it’s not a bad read, and winds up being pretty important for setting up Infinite Crisis and later events.

18 responses to “Identity Crisis: Depraved-Heart Murder and Criminal Insanity

  1. I would think the more compelling legal issues to address in this series would be the fact that the JLA lobotomized a criminal and covered up a rape.

    • Those are certainly more flagrant abuses, but they don’t bear much analysis beyond “Yup. That’s illegal.”

      • Trying to remember if the question of whether or not the League Satellite counted as United States territory came up in discussion here previously…?

  2. Melanie Koleini

    I haven’t read Identity Crisis but is it possible Jean ended up in Arkham, not because she was insane when she committed the crime, but was mentally ill when she was convicted?

    Arkham may be a prison for the criminally insane, but does that mean all the inmates were found ‘not guilty by reason of insanity’? If Jean needed inpatient treatment, wouldn’t she be sent to Arkham?

    • The implication is that she went straight there. There’s certainly no mention of a trial. But that is a possibility.

      • Semi-related question: Why Arkham as Jean’s venue of imprisonment? The crime didn’t happen within the boundaries of Gotham City’s “parent” state, if memory serves.

      • The actual killing might not have occurred in whatever state Gotham is in, but it only takes a single element of the crime in order to give a state jurisdiction. So for example if Jean formed the plan while in ‘Gotham State,’ that would be sufficient.

  3. Yeah, I guess that’s fair.

  4. Melanie Koleini

    In addition to killing Sue Dibny, Jean hired a thug to attack Jack Drake, father of the then current Robin, Tim Drake. She then sent a warning note and a gun to Jack. Jack killed the thug but is unfortunately killed in the fight.

    I’m not sure of the law here, Jean didn’t want Jack to die but both Jack and the assassin died as a result of Jean’s actions. Isn’t Jean guilty of capital murder or something like it?

    • A good question!

      She’s pretty obviously guilty of the murder of Jack Drake. If you hire someone to kill someone else, you’re just as guilty as the hireling. The question is whether she’s also guilty of the murder of Boomerang.

      I think the answer here is probably “Yes,” because she orchestrated events such that Boomerang’s death was the likely outcome. Drake himself would not be guilty of anything, had he lived, as it was clearly self-defense. But one could easily argue that Jean used Drake as the instrumentality which killed Boomerang, just as Boomerang was the instrumentality which killed Drake.

    • And I think we just got a reminder of the reason for Arkham rather than anywhere else, because Jack Drake’s murder – and Harkness’ as well, if we choose to pursue that angle – did happen in Gotham.

  5. Good story. What happened to Ralph and Jean was tragic, but tragic in a way I found compelling.

    And, yeah, I agree with your analysis. *shrugs* If I were to have a problem with the series, aside from what you brought up, I just have a pragmatic disagreement with Batman’s lesson of, “Cui bono?” Because in real life crimes aren’t usually perpetrated for benefit– they’re perpetrated because somebody got mad.

    • Coping with one’s own anger is often perceived as a benefit in itself. However irrational the method chosen for coping.

    • Well… sort of. Certainly the kind that clog criminal dockets in county courthouses the world over. But most of those are committed without a moment’s thought as a result of poor impulse control. As soon as there’s careful planning involved, the question of benefit does become relevant.

  6. As a fan of the Calculator in Identity Crisis, I’m curious to know if you might find his role as a facilitator of criminal events in the story* worth comment. It seems as though he occupies a somewhat interesting gray area in terms of culpability?

    *the incidents with Bolt, Deathstroke, and Capt. Boomerang/Jack Drake

  7. I don’t see a jury or prosecutor believing that Jean did not go to the Dibnys with no intention of murder. She brought a flamethrower “just in case.” just in case what?

  8. By the definition of “criminally insane” we’re given here, are ANY of Batman’s rogues gallery actually “criminally insane?” They all tend to try to orchestrate crimes they know are illegal, and then try to cover up or escape punishment. They definitely flee the scene.

    I am not arguing that they’re not nuts, but I think Arkham might be more seen as an asylum for the criminally psychopathic more than for the criminally insane. They KNOW they’re doing wrong; they just are so psycho they don’t CARE.

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