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.
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.