insanity on trial
ralph tortorici
mentally ill inmates

larry rosen

Former Albany County Court Judge Larry Rosen presided over the trial of Ralph Tortorici. Here, he talks about why he didn't order an additional competency hearing after receiving Dr. Lawrence Siegel's letter questioning Tortorici's fitness to stand trial. He also gives his assessment of what is wrong with New York's system for dealing with mentally ill defendants and explains why he thinks juries are ill-equipped to handle insanity-defense cases. This interview was conducted in September 2001.

Give me your impressions of Ralph Tortorici.

I believe the first time I met Ralph Tortorici was when he was arraigned before me. My recollection -- considering that this was about seven years ago when that first meeting took place -- is that he was rather disheveled. There wasn't much human contact. He wasn't required [to], and didn't say anything the first time we met. So there wasn't much of an impression other than, of course, I was aware of the notoriety involving the situation itself.

So he wasn't obviously disturbed?


His first competency evaluation, was that ordered by you? ...

When the circumstances called for it -- and obviously the circumstances called for it in this case -- I did order a competency examination. Under New York State law, [competency] has to do with whether or not an individual who is charged with a crime is competent to stand trial. ... That standard would be the ability to aid in his own defense and understand the nature of the charges against him. ...

You can't take 12 average people who have never contemplated the legal insanity defense and give them the authority to make these determinations.

Initially, Ralph Tortorici was found not competent to stand trial. ... He was then sent to a secure mental health facility called Mid-Hudson, where he spent several months. Eventually, the psychiatrists at Mid-Hudson certified him to be competent to stand trial. Then the criminal procedures went forward.

Is it a high threshold for competency?

No, competency to stand trial -- as opposed to whether or not someone is legally sane at the time of the incident -- is not a rigorous standard. Simply put, if a person understands the nature of the charges and can aid in his defense, that person under New York State law is competent to stand trial. ...

Initially, Ralph's illness rendered him not competent, according to psychiatrists. When that occurred, the criminal process halts until such time, if ever, that psychiatrists at Mid-Hudson find [that] "OK, we've stabilized the condition. He now can stand trial for the acts which he is accused of having done."

What was the difference between his initial finding of incompetency and six or eight months later [when he was deemed competent to stand trial]?

Well, of course, you'd have to study the Mid-Hudson psychiatric records to be certain about that. ... I think it's uncontested that Ralph Tortorici suffered from paranoid schizophrenia. ... Paranoid schizophrenia is not something we are cured of. It's something that's controlled by appropriate medication. So when the psychiatrists were able to deal with Mr. Tortorici and medicate him, it was not surprising to me at all that, over time, his condition would moderate to some degree. ...

[Do you remember when] you actually waived his right to be present at his trial? ...

[Tortorici's attorney] Peter Lynch indicated that Mr. Tortorici did not wish to be present for his trial. ... By definition, an individual has a constitutional right to be at his own trial. In my opinion -- which was upheld eventually by the higher courts -- one has a constitutional right to remove oneself from one's trial. The only thing I have to be clear of, as the trial judge, is whether or not the waiver or the giving up of a constitutional right is knowing and voluntary.

My recollection is that Mr. Tortorici and I had a rather lengthy discussion on the record with regard to whether or not he understood that absenting himself from the courtroom during jury selection and his trial could impede certain of his defense rights, such as speaking to his lawyer about the composition of the jury, and speaking to his lawyer on a minute-to-minute basis while the trial was going on. He convinced me in that conversation that he understood what rights he was giving up, that he understood the nature of the waiver proceeding that was going on at that given moment, and that he was consciously and knowingly and voluntarily waiving his right to be in the courtroom during the jury selection and the trial.

Of course, I took the precaution of making sure he was in the courthouse at all times during the trial, and that during each break, every hour or two, Mr. Lynch would have to go down and speak to Mr. Tortorici to see if he continued to wish to be absent from the court. If you examine the transcript of the trial, you would find that those conversations occurred several times a day, and each time Peter Lynch indicated that he again had spoken to Mr. Tortorici. Mr. Tortorici continued to wish to be absent.

... What did Ralph Tortorici say to you to reassure you that he was actually able to make that decision?

... [We had] a conversation that takes about four or five pages of transcript. He's responding appropriately to each of my questions ... [and] asking appropriate questions back to me. The communication itself seemed to be rational, knowing, and voluntary. ...

Were you very surprised when [Ralph asked to be excused from his trial proceedings]?

It's hard to say anything in this case would have been very surprising, but let's put it this way: I did over a hundred jury trials in my seven years in county court, and handled several thousand major felony criminal cases. I can't recall of any other defendant that wished to absent himself or herself from the proceedings. So it's unusual, but nothing was very surprising about this case.

Would a sane, fully functioning man typically waive his right? ...

Well, not typically. But because something is atypical doesn't mean it's insane. ...

If you had seen something in his behavior that had been troubling to you, what were your options?

Again, we have to understand what are we talking about. We're not talking about his mental state at the time of the incident. We're talking now about his mental state at the time of trial, which is a year and a half or so after the incident itself. The legal standard, again, in New York State is, "Does the defendant understand the nature of the charges? Can he, if he wishes, contribute to his own defense?"

If I had seen something that would have made me believe that [he wasn't competent to stand trial], even though the psychiatrist at Mid-Hudson had indicated to the court that he was competent by New York State standards ... I would have then probably had to hold an additional hearing to hear from psychiatrists to determine whether or not he still remained competent to stand trial. But based on my colloquy with him a day before jury selection about his desire to absent himself, I was again convinced that this individual under New York State law -- not some moral precepts that can be interposed over New York State law, but in the law as it existed at that moment -- he was competent to stand trial. I saw nothing to indicate otherwise. ...

If a person is found incompetent to stand trial, it's not as if he or she's walking the streets. That defendant is then back to Mid-Hudson psychiatric secure facility until the person is again ready to stand trial. So it would have been just delaying the inevitable. Eventually, a trial would take place, or Mr. Tortorici would never be competent to stand trial, in which case he'd be in Mid-Hudson forever. ...

Had you expected the DA's office to plea this out?

No. ... The question of guilt or innocence -- in a psychiatric sense, under New York State law as it exists now-- is all or nothing. So if the defense truly believes that there is legal insanity at the time of the incident, they're essentially going to go for it and attempt to get a "Not guilty" verdict, as opposed to agreeing to 10 years or agreeing to 15 years. I'm sure any agreement that the district attorney would have made in this particular case would have had to be harsh, because of the glare of publicity on the case.

Did the prosecutor have any advantage in pleading out?

Always, the prosecution gets two major advantages when they dispose of the case by plea bargain. ... Just like gravy can hide a lot of mistakes, a plea bargain can hide a lot of mistakes in the case. Also the district attorney's office couldn't know prior to this trial how it would go. So if they could have secured a definite sentence ... [then] they didn't have the possibility of losing a case, of him being found not guilty by reason of the mental defense.

: Editor's note: See FRONTLINE's interview with Chief Assistant District Attorney Larry Wiest for his perspective on accepting a plea in the Tortorici case.

Knowing what you do about both sides, assess the defense side, its strengths.

The defense case had a lot of strengths. We start off by the fact that this was a heavyweight battle. The public defender's office was using one of their best lawyers, Peter Lynch, [who was] very experienced, very articulate, very able, very well prepared, and very hard-working.

The prosecution countered with Ms. Coleman, who is a sterling prosecutor. [She's] very likeable, very hard-working, and extremely, extremely persuasive. Sanity defense cases have a lot to do with the lawyering. In this case, it was a fair heavyweight battle with regard to the lawyering in the case.

The defense had some built-in advantages. Clearly -- and it was not going to be able to be controverted -- Ralph Tortorici suffered from paranoid schizophrenia. They were going to have a team of psychiatrists to come in and say that Ralph Tortorici suffered from paranoid schizophrenia at the time of the incident, that he didn't understand what he was doing and he didn't understand right from wrong. So they had the bulk of the medical proof, and that was their advantage. ...

[What were some of the key moments in the trial?]

... I thought that when Jason McEnaney testified with regard to his injuries, as they say, there wasn't a dry eye in the house. This was a young man, an athlete, tall, strikingly good-looking, who had clearly done heroic things, may have saved many lives, and he was grievously injured. He looked at those 12 people, and they looked back at him and there were tears. That was a key moment for the prosecution.

I think another key ingredient for the prosecution [was Coleman's] persuasiveness in convincing those 12 citizens that ... Mr. Tortorici understood each step of the way exactly what he was doing, and her uncanny ability to effectively cross-examine the psychiatrist who was saying the opposite. ...

In retrospect, I think Mr. Tortorici's decision to absent himself from the courtroom may very well have been a key ingredient in the final determination. ... It became an antiseptic proceeding to some degree, and an Alice in Wonderland proceeding to some degree, in that the star doesn't appear.

Describe how you started with the expert witnesses.

It's crucial, because if I throw the ["Not responsible"] standard out to ... the jury, what do you have to determine here? Well, you have to determine whether or not a defendant was mentally ill or suffered from a mental disease or defect at the time of the incident. That's relatively simple, in that all the medical testimony uncontroverted was that he suffered from paranoid schizophrenia at the time of the incident.

But then the law goes on to say, did the illness affect the defendant in such a way that he didn't understand the nature and consequences of what he was doing or he didn't understand right from wrong essentially? Now that becomes very philosophical and very semantical, and that's where the strength of the lawyering [comes into play]. ... Persuasion is critical when you have semantical problems such as these to solve, as average citizens.

... Cheryl was able to focus on his secreting the weapon; walking across the campus; hiding the rifle under his jacket; knowing exactly when the class started; picking a class that was a little bit remote; showing that he had a knife and he had a gun and he had bullets; showing the students that the gun worked by firing a round into the ceiling. All of these actions ... arguably indicated someone who understood the nature and consequences of his action, [and they] gave the jury a lifeline so to speak to find him guilty. ...

Ms. Coleman's ability to allow those laypeople to think, in essence, that the psychiatrists didn't know what they were talking about, [that] it was a whole bunch of hocus pocus, was in all likelihood critical to the outcome.

How did she do that?

Genius, said Edison, was 1 percent inspiration and 99 percent perspiration. Hard work. She examined probably every case [in which] those psychiatrists have ever testified before in the past, found cases where they were testifying for the prosecution, and was able to make it look to some degree like they were merely hired guns and would opine as they were paid. ...

What's [Coleman's] advantage of keeping her focus narrow?

Any time you're attempting to persuade, it's important to keep focused those who you are attempting to persuade. You know, there is an old saying in legal circles that if the facts are on your side, you argue the facts. If the law is on your side, you argue the law. And if neither is on your side, you just argue.

Again, it's difficult to sum up precisely. But a semantical battle probably quite unfortunately is what takes place when you have a serious event, a notorious event as we had here, and a psychiatric defense interposed.

And the weakness of the [prosecution's] case?

... I would say that, clearly, the weakness going in was that apparently the prosecution could not find any expert witnesses who were willing to come into court [and indicate] that they thought Tortorici was legally sane at the time of the incident. ...

You have to remember that psychiatric defenses are not run of the mill or interposed every day. It would take a high-profile, ugly case, for the simple reason that even if a defendant is successful in a psychiatric defense, that's going to lead to an indeterminate stay at a mental health facility until that person is able to, shall we say, mingle with the remainder of the community, [and] psychiatrists are willing to say the person is now not a danger to others or himself.

So in the run-of-the-mill case where a defendant is looking at a year or two in prison, you're not going to interpose a psychiatric defense, even if you have one. ... Do you want to trade a year in prison for an indeterminate stay in a psychiatric facility [for] who knows how long?

But when you're looking at mega-years in prison, those would be the only time that a psychiatric defense could even potentially be interposed. I did handle a number of them. But in my several hundred criminal trials, I can only recall three or four psychiatric defenses interposed.

Second day of the jury selection, and that evening Cheryl Coleman, Cindy Preiser, and Peter Lynch visit Ralph Tortorici with Dr. Siegel there to evaluate him.

Yes. Even on the eve of trial, they were attempting to get a psychiatrist to come in and opine that Ralph Tortorici was legally sane at the time of the incident. That's why Siegel is brought by the prosecution to the jail.

Would you describe and summarize that and how they came into your court? ...

I guess the prosecution was getting concerned as we were about to start. Peter Lynch and the defense had this cadre of psychologists and psychiatrists willing to come in and opine that Tortorici was insane at the time of the incident. I guess at some point they [the prosecution] might have determined that, well, maybe Cheryl's ability might not be enough, and maybe we better find a psychologist or a psychiatrist to say the opposite. They thought they found that person in Siegel. So I allowed an interview in the presence of the defense lawyer, letting Ralph speak to the, in quotes, "prosecution psychiatrist."

That of course created a controversial letter that Dr. Siegel wrote after he met Tortorici. He wrote this letter indicating that he really couldn't assess Tortorici at this time, because Tortorici wasn't being rational. But, again, Siegel's job was to attempt to determine whether or not Tortorici was sane or insane at the time of the incident; not competent to stand trial. The defense grabbed onto that ... to say, "Well, wait a minute. Siegel was saying that he was not competent to stand trial. Why didn't the judge hold another hearing?"

But let me say this. That's easy to say. ... When you are orchestrating a major trial and you're primed to go and primed to start and you've already had a day of jury selection; you've got 40 witnesses or so lined up to testify; you've got all your doctors ready; you've got everybody ready to go, [then] the idea of holding more hearings and delaying the trial is not appealing to a trial judge. Fortunately, this Siegel incident didn't cause a reversal of what did occur at trial because actually ... he indicated that Tortorici seemed to understand the nature of the charges and would have been able to participate in this defense. Again, that's the legal standard for competency to stand trial.

... [The two sides come to you. What happens]?

Well, the letter is presented. I read it. It doesn't change my mind as to whether or not Ralph Tortorici is competent to stand trial, because I did question him earlier that day about whether or not he knew what he was doing when he said he didn't want to be in the courtroom. So he and I had interacted. I wasn't persuaded by Dr. Siegel that I might have been mistaken in my belief that Tortorici was competent to stand trial.

I asked the defense if they were requesting anything given that the Siegel letter was submitted to me. The defense's position was, "No, judge, we're ready to start the trial." The prosecution said, "We're ready to start the trial. We're not asking the court to do anything other than let's keep going." And I kept going. ...

In terms of the human dimension, are you on that bench and thinking about anything in that report [and finding it] alarming? ...

I assume you're saying probably in retrospect, maybe I should have held an additional [competency] hearing. It certainly could have been precautionary in some ways.

But keep in mind, even had I [held an additional hearing], we're all primed to go. The defense is telling me, "Keep going." So there's danger if I don't keep going with the defense asking me to keep going. The prosecution is saying, "Keep going." Nothing in this Siegel letter means we shouldn't keep going.

If I decide, because of the Siegel letter, to hold additional hearings, let's say, the next day or the following week, we [would have] sent 40 witnesses out [and would have] sent a jury that has already been half-picked home. And Ralph Tortorici goes back to Mid-Hudson until the psychiatrists next tell me he's ready to stand trial. So it's not as if that would be a major win by the defense. The defense's strategy was to get moving. ...

It's unusual if the defense and the prosecution both want an event to occur that the court will step in and not allow the event to occur. ... But the bottom line was, I felt, based on my own personal observation and communication with Ralph Tortorici, that he met the standard of competency to stand trial under New York state law. ...

Give me a quick summary of closing arguments.

... I felt the closing arguments were riveting. ... Peter Lynch gives an excellent summation, obviously attempting to indicate to the 12 jurors, "Ladies and gentlemen, you heard the experts. This man is operating under a delusion. He didn't know right from wrong. He didn't understand the consequences of his action. He suffered from a mental disease or defect. ... The man is not guilty by reason of legal insanity."

Then Coleman gets up. Coleman is strong and articulate and forceful and persuasive, and she makes those citizens wonder about whether or not he understood the nature of his actions. Again, we get into the specter of the planning; the secretion of the weapon; the taking the classroom five minutes after it had become organized; the separating of the big students; the fire-hosing the doors, blocking them; ... the indicating to the students that this knife can hurt, that this weapon works; the demonstration of the weapon working.

She successfully is able to persuade that, even though he clearly was suffering from paranoid schizophrenia, a mental illness, that does not end the legal inquiry. That inquiry must then focus on whether or not an individual who suffers from a mental illness understood the nature of his actions and knew they were wrong. "After he's taken from the room," says Ms. Coleman, "He apologizes if he hurt anybody." She argues that does seem to equate with understanding that your actions were wrong.

My charge took approximately two and a half hours, ... probably the most difficult charge I ever made to a jury. It was exhausting. In an interesting footnote to the case, my charge was two and a half hours, and the jury was only out an hour and a half. ...

Surprising in the expeditious nature of their deliberations, they found him guilty of all counts, with the exception of the attempted murder counts, and rejected the psychiatric defense.

What did they have to do in order to reject that psychiatric defense? ...

When a defendant interposes an affirmative defense of legal insanity, it is the defense's burden to prove, which stands the criminal justice system on its head a little bit. We are used to [the fact that] it's the prosecuting burden, beyond a reasonable doubt, to prove every element of the crime. That's what we say time and time again. But when you have a defense of insanity, the legislature has required the defendant to affirmatively prove it.

Basically what [the members of the jury are] saying is that it was not proven by a preponderance of the evidence. So this jury is saying, "He did the acts, and we're not excusing them. You're guilty as charged."...

: Editor's note: See FRONTLINE's interview with juror Norm LaMarche for background on the jury's deliberations.

Did Cheryl Coleman basically win this case? ...

No, I wouldn't say that. She was integral to the winning of the case, but so were the facts. Again, I would tell you that it is not easy for 12 average citizens to excuse horrendous conduct, and that's [with] Cheryl Coleman or no Cheryl Coleman.

[Talk about the sentencing.]

... Reading the sentencing minutes are bizarre. That's when Mr. Tortorici was essentially complaining of a black and Jewish conspiracy, and that he was from the Roman Empire. He exhibited bizarre conduct at the sentencing, and I had to remove him before I actually imposed the sentence. It was sort of obvious once the jury had spoken and said "Guilty," I doubt there were too many judges that wouldn't have sentenced him to the maximum amount of the law allowed, which is what I did.

Do you have a [sentencing] range, and are you wrestling with it or not?

... When one is convicted by a jury of horrendously violent acts, there will be some kind of range in the law. But that range is not gentle to defendants. In this particular case, I exercised my discretion to the lengthier part of the range, not the least part of the range.

With a high-profile [case], is there implied pressure that you feel you have to be tough?

... It is true that a criminal judge, to some extent, is both the conscience of the community and the hammer of the community. And it is true that the community expects that hammer to be utilized. However, I always felt that justice must be tempered with compassion, and I tried to temper it with compassion here.

However, the events themselves, the injury, both the physical and psychic injury to McEnaney, and ... the psychic injury to the other 36 young people who were terrorized for two and a half hours -- that's not easy to live with. I'm sure many of them are still suffering the effects and the horrors of that morning. Even though they physically went unblemished, it doesn't mean they were psychically unblemished. When you have 37 victims as you had here, I felt the hammer had to be utilized. ...

[When you were evaluating the sentence, did you find that there was or wasn't anything in Ralph's life that was mitigating?]

I suggested at sentencing that the Department of Corrections make a serious evaluation and place him in a psychiatric care [facility], if necessary. That apparently was ignored. ... All I can say is I did sentencing to the maximum that he could get by law. I thought that it was appropriate, given the jury verdict.

How much [do the jury members] know about whether someone's going to end up in a mental facility?

Well, that's an excellent question. Usually a jury is not told anything whatsoever about punishment. They are simply told, "You decide guilt or non-guilt. I'm the judge. I decide punishment." ... When a psychiatric defense is interposed, that changes a tad. The jury is told that, if they render a verdict of "Not responsible by reason of a mental disease or defect," then hearings will be held with regard to whether or not the defendant is competent or dangerous to others at this time.

I think that that's critical. ... A jury gets a feel, in my opinion, that if they find a person not guilty by reason of legal insanity, that it is possible that that person would be released quickly. Doesn't always work that way, but I'm saying that a jury might get that feel. I think a jury getting that feel is a jury less likely to allow a psychiatric defense. ... You can rest assured that none of those 12 people on that jury were all too anxious after what they heard to have Ralph Tortorici walking around free the next day. ...

Is there something going on in terms of what we're asking jurors to do ... that leaves little room? ...

Look, our legal system, our society, has become so complex, and it's becoming more complex every minute. The law is becoming more complex. You could read about the insanity defense for years and be confused by some of the issues. It's not just in the insanity defense; it's throughout the legal system. We're asking jurors to do way too much.

You can't take 12 people, average people who have never spent two seconds contemplating the legal insanity defense, and give them the authority to make these determinations. It's just simply too complex. But that's our system, and that's the best we got. ...

Can you talk about the insanity defense?

... The insanity defense has developed over literally thousands of years in the English and Western systems. Initially, there really was no insanity defense. It wasn't recognized. One civilizing aspect of Western civilization could arguably be the institution of an insanity defense in the criminal law -- some understanding that if you were mentally ill, you might not be responsible for your action.

Over the years, great lawyers championed the psychiatric defense to where most states include it as a legitimate defense. Of course, what happens in many Western or democratic societies is a pendulum will swing until it swings too far. Then we get to a situation where psychiatric defenses can be interposed where they shouldn't be, and we hear of Twinkies defenses and you watch too much Captain Kangaroo and that's why this horrible act was done.

So what happens is brilliant lawyers create brilliant legal precedents which, shall we say, modernize and civilize the society. Then the pendulum swings too far, and average lawyers and average situations attempt to utilize it. So this is a very complex problem. Arguably, the pendulum has swung too far at this point, and needs to be centralized and thought about and re-legislated. ...

[Does this case show us something about the mismatch between the criminal justice and mental health systems?]

... When the legal system meets the mentally ill, throughout history that has led to difficulty. ... Maybe New York State has it wrong. Personally, I think they do have it wrong. By creating a system where it's all or nothing -- guilty or not guilty; go to jail for many, many, many years or possibly be walking the streets tomorrow -- this puts an impossible burden on the members of the community that have to decide the fate of such a human being.

An average human being from a community should not be called on to make such decisions. The community members, as typified in the jury, should determine, did he do the acts or did he not do the acts? The system then should remove, in my opinion, someone from society who has damaged violently other members of society, regardless of whether that person suffers from mental illness or not.

It's a shame if you suffer from a mental illness. However, society must defend itself. If that mental illness can lead to violence randomly, then society must defend itself. Why can't we have a system where these acts mean we must be separated for X amount of years? But then let the professionals decide whether or not the separation should take place in a prison facility or in a mental health facility.

So overall, the process and the criminal justice system in this trial -- is it a legally correct decision?

Well, I can't go any higher than the New York State Court of Appeals. The New York State Court of Appeals found 6-1 that it was a legally correct decision.

That does not end the discussion. Ralph Tortorici was as much a victim as Jason McEnaney: two victims of modern-day society. People must make their own conclusions or come to their own conclusions as to what changes should or could be made. ...

When you say [that Ralph Tortorici] suffered, what does that mean in terms of the criminal justice system?

It would seem to me that a paranoid schizophrenic who commits a horrendous act should not wind up committing suicide in a regular prison with a regular prison population, all alone, with no treatment and with no help. That's where the system failed him, and that's where he was victimized by it. ...

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