Criminal Law, Mental State, Murder, Police and Prosecutors, Soering

10 Söring Myths, Part 8: Why Söring Confessed (Diminished Capacity)

First, I have some delightful news: My big article about the case of Jens Söring for the FAZ was finally published earlier today. Of course, the article is in German, and it’s behind a paywall, but this link may get you the full version for a certain amount of time. If you would like to read it, please use the contact form to send me an email. In the meantime I’m working on an English translation. The report by Detective Terry Wright was also published by the FAZ at the same time; it is in English and can be downloaded here. It should be noted that Detective Wright asserts all moral rights and copyright in the report. I quoted from the report with Detective Wright’s express permission.

As I work on the English translation, I’ll continue with my series on Söring myths. The one for today concerns why Söring confessed. His post-1990 version, of course, is that he confessed to killing Derek and Elizabeth Haysom because he wanted to protect Elizabeth, who had single-handedly murdered and mutilated her own parents. However, that version makes no sense, for many reasons I’ve outlined before on this blog. The real reason is much simpler: Söring thought there was already enough evidence to convict him, and wanted to set the stage for a legal defense of diminished responsibility or diminished capacity: that he was emotionally deranged when he killed the Haysoms.

To convict someone of murder, the state must prove that they intentionally killed another person. In most legal systems, intentionally is basically defined as intending to engage in an action which then causes the crime to occur: pulling a trigger, stabbing a person with a knife, putting poison in their food. Generally, you don’t have to prove the defendant intended to kill the victim. The reason is obvious — any criminal defendant could claim that although they shot the victim 4 times in the chest, they didn’t intend to kill them. The court system allows the jury or the judge to simply infer from the facts an intent to kill no matter what the defendant claims.

In the Söring case, there’s no question about intent to kill: Söring stabbed the victims numerous times, almost decapitating Derek Haysom. Nor could Söring claim self-defense — there was simply no evidence that the Haysoms attacked him with a deadly weapon first. So what Söring was trying to achieve is to claim what’s known as diminished capacity or, sometimes, diminished responsibility. This is the legal doctrine which allows a defendant to admit that he did kill the victims and intended to do so, and that he had no legal justification (such as self-defense or full legal insanity), but that he had an excuse because of his mental or emotional state. Jimmy Stewart explains it in this classic scene from Anatomy of a Murder:

As Detective Wright points out on Page 177 of his report, most of Soering’s legal knowledge came from Cagney and Lacey, and Kojak, two US crime dramas. It’s pretty typical for crime dramas to focus on diminished capacity as a defense to murder, since it makes for exciting storylines: Husband kills wife in a jealous rage after discovering her with another man, office worker kills boss after being rudely fired, etc. Many legal systems also permit defendants to argue for lesser guilt, or a lesser sentence, by claiming they committed the murder when their capacity to form criminal intent was diminished by extreme emotion. Section 21 of the German Criminal Code provides: “If the offender’s capacity to appreciate the unlawfulness of the act or to act in accordance with any such appreciation is substantially diminished at the time of the commission of the offence due to one of the reasons indicated in section 20, the penalty may be mitigated pursuant to section 49 (1).”

In 1986, when Söring was questioned, English law had a similar provision in the 1957 Homicide Act. The original version of Section 2 of the Act (which has since been amended), reads: “Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.”

As of 1986, it was unclear where Söring’s trial would ultimately be held. Obviously the most logical place for it would be Virginia, where the crime occurred and all the witnesses and evidence were located. But Virginia had the death penalty in 1986. The UK had abolished the death penalty in 1969, Germany in 1949. The European Charter of Human Rights could be interpreted to forbid the extradition of anyone from European soil to face the death penalty elsewhere — a point of view which was explicitly endorsed by the European Court of Human Rights in its 1989 verdict in the Söring case, Soering v. United Kingdom. So Söring might have had just a glimmer of hope that his trial could be held elsewhere, although this would be an extremely unusual event — if you commit a serious crime in country X, you will be tried there. Söring thought he might be tried in the UK. This is why his parents hired two psychiatrists to interview him and prepare for a defense based on the UK law of diminished responsibility. The conclusion to the report of Dr. John Hamilton specifically mentions UK law:


In the event, Virginia agreed not to seek the death penalty, and Söring was tried in Virginia. Söring probably assumed that Virginia had broadly similar criminal laws to the UK, Germany, and New York (where Cagney and Lacey and Kojak were set), which recognizes a form of the defense of diminished capacity.

The problem, though, is that not every state recognized diminished capacity. The defense had become hugely controversial in the 1970s and 1980s, and many states, if they had ever recognized it, got rid of it:

The diminished capacity plea is based in the belief that certain people, because of mental impairment or disease, are simply incapable of reaching the mental state required to commit a particular crime. In the example of murder and manslaughter, a diminished capacity defense contends that a certain defendant is incapable of intending to cause a death, and therefore must have at most caused such a death recklessly. Thus, a successful plea of diminished capacity in a murder trial would likely result in the charge being reduced to manslaughter.

A spotted history

California allowed a plea of diminished capacity beginning in the 1950s. But the plea came under intense scrutiny during as the so-called “Twinkie defense,” in the 1979 case California v. White. Dan White, a former city supervisor, shot and killed the mayor of San Francisco, George Moscone, and another city supervisor, Harvey Milk. The crime displayed a high degree of premeditation: White packed extra bullets, climbed through a City Hall window to avoid metal detectors, and shot the two men nine times.

White’s attorneys argued diminished capacity. They claimed that a diet of only junk food had created a chemical imbalance in White’s brain (the “Twinkie defense”), and that he was depressed over his loss of his city supervisor position. Therefore, he was unable to premeditate murder, one of the requirements for first-degree murder.

The jury convicted White of voluntary manslaughter — the least serious charge for homicide. This caused an uproar against the diminished capacity plea in California, and in 1982, voters overwhelmingly approved a proposition to eliminate the defense.

Virginia, for its part, explicitly rejected any claim of diminished capacity. As long as the defendant is not legally insane at the time of the crime, he is fully culpable. The Virginia Supreme Court explained its reasoning at length in a 1985 case discussed here:

For the purposes of determining criminal responsibility a perpetrator is either legally insane or sane; there is no sliding scale of insanity. The shifting and subtle gradations of mental illness known to psychiatry are useful only in determining whether the borderline of insanity has been crossed. Unless an accused contends that he was beyond that borderline when he acted, his mental state is immaterial to the issue of specific intent. Accordingly, we hold that evidence of a criminal defendant’s mental state at the time of the offense is, in the absence of an insanity defense, irrelevant to the issue of guilt.

It must have come as a great shock to Söring to find out that Virginia did not permit a defense of diminished capacity. It was impossible for him to mount an insanity defense, he had no hope of satisfying the high barrier of proving legal insanity.

So as his trial in Virginia approached, in 1990, he knew he had to change his defense strategy from diminished capacity to innocence. Which is precisely what he did.

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