What I Say

When the Wind Blows North-North-West

By Frank Gruber

"I am but mad north-north-west; when the wind is southerly I know a hawk from a handsaw." -- Hamlet.

As you read this, the jury in the trial of David Attias is deliberating, or may have returned a verdict, in the initial, "guilt" phase of the case. Attias is on trial for having killed four pedestrians and injuring another when he ran his car down a crowded Isla Vista street in February 2001. At the time Attias, from Santa Monica, was eighteen and a UC Santa Barbara freshman.

The charges consist of four counts of second degree murder, which is homicide without "special circumstances" but with "malice aforethought," four counts of manslaughter by reason of driving while under the influence of marijuana, and one count of driving under the influence and causing great bodily injury. Attias faces life in prison if the jury convicts him of the most serious charges. If acquitted, Attias will be committed to psychiatric care.

Attias has pleaded not guilty by reason of insanity. What this means under California law is that if in the first phase of the trial the jury finds that the prosecution has proved that Attias' actions included all the elements necessary to constitute any of the alleged crimes (or reduced versions), and is thus guilty, then the trial will move into a second phase, during which his sanity at the time of incident will be the sole issue.

As readers of this column know, I am close with the Attias family, having known them, and having represented David's father, Daniel Attias, as an entertainment lawyer, since David was two. I attended several days of the trial as their friend.

I had not intended to write about the trial. My sympathies in favor of the defense would be obvious. The issues the case raises, however, are of considerable interest, especially to Santa Monicans, given that the Attiases live here. None of the local media has the resources to cover a two-month trial in Santa Barbara, and the L.A. Times has run only run one substantive article about it. (The headline, "TV Director Testifies in Son's Murder Trial," fairly indicates what the Times identified as the "local angle.")

I attended only three days of the trial -- once during the prosecution's case, then the last day of the defense's case, and then the first day of closing arguments. I followed the case as best I could by reading the internet editions of the Santa Barbara News Press and UCSB's Daily Nexus.

Although I witnessed only a little of the trial, driving up and back to Santa Barbara three times allows one time to ruminate on the issues presented by an insanity defense, and I hope that some of those ruminations, keeping in mind my sympathies, will be helpful to those readers who want to know what the case is about.

Notwithstanding the bifurcation of the trial into "guilt" and "insanity" phases, Attias' mental state was the key issue for both the prosecution and defense throughout the trial. To prove "malice aforethought" in the absence of and express intention to kill, the prosecution must show that Attias acted with a conscious disregard for, or reckless indifference to, human life.

"Conscious disregard" and "reckless indifference" are, of course, mental states. The District Attorneys wanted to persuade the jury that Attias acted out of anger, while the defense sought to show that his actions were the result of his mental illness and that, in effect, he did not have the capacity either to have a conscious disregard, or to be recklessly indifferent.

Parenthetically, the prosecution also wanted to show that at the time of the incident Attias was under the influence of drugs, and that his erratic behavior in the weeks and months preceding the incident was the result of drug-taking, not mental illness. According to blood tests, however, Attias had only minuscule amounts of drugs in his system that night, and the evidence that Attias generally took a lot of drugs was far from conclusive. At the risk of showing both my bias and my ignorance of how a jury thinks, let me say that the drug evidence will not be a significant factor in the case.

To a great extent, both sides relied on the same evidence. The DA called more than 100 witnesses, most to testify about Attias' behavior before and after the collision. The defense augmented these accounts with additional testimony about Attias, particularly to illuminate a childhood of well-documented mental illness, and called to the stand psychiatric experts, both hired by the defense and court-appointed, who tried to explain what Attias' mental illness was all about.

Although the DA tried to impeach the psychiatric testimony, he did not call any psychiatrists to rebut the defense's witnesses, although he hinted that he might do so if the case reaches the insanity phase.

To summarize the psychiatric testimony, which is the key to the case, throughout his life Attias has suffered from various developmental and psychiatric disorders, some of which would make him unable to control his actions or his temper. At times he was hospitalized, and for many years he attended special schools. Ultimately a diagnosis of bipolar disorder was reached, and under medication Attias was able to graduate from high school.

In October 2000, however, shortly after arriving at UCSB, he stopped taking his medication. His behavior became more psychotic, with elements of schizophrenia, as he started to have delusions. After the collision, when he was in jail, he had full blown psychotic episode, which was ultimately treated with large dosages of several anti-psychotic medicines.

The prosecution emphasized two issues: that much of Attias' day-to-day behavior was normal, but that at the same time he was prone to anger and rage. To the DA, Attias' refusal to take his medications, against the advice of his family and friends, was itself a manifestation of his malice. In his closing argument, the DA described Attias's actions that night as "Columbine with a car."

Analogizing insanity to a riptide that roils below the surface, not apparent to untrained observers, the defense pointed out that Attias' "normal" day-to-day behaviors were also normal to madness, and that as for Attias' failure to take his medications, the very nature of insanity is not to be aware of it. The defense used testimony of prosecution witnesses to buttress the case that Attias was delusional.

As for the reference to Columbine, the defense reminded the jury that the killers there had planned their attack in advance and knew whom they wanted to kill.

In the courtroom, family and friends of the victim sat on one side and family and friends of David Attias sat on the other. The groups avoided eye contact.

What struck me was how alike the families were. Loving parents who tried to raise their children with values and high expectations. Under different circumstances, they would be friends, but the aisle down the middle of the courtroom divided people into "us" and "them." I hesitate to speak for the families of the victims, but I doubt anyone on either side felt like that.

Most of the victims were Jewish, and so is David Attias. At one point I had a fantasy that cases like this should be submitted to rabbinical courts, a fantasy no doubt predicated on some latent cultural image of wise rabbis carefully meting judgment while knitting up the torn fabric of the community. In all honesty, however, I don't know if rabbis would be more holistic, or the proceedings less adversarial.

The adversarial system is unmatched for illuminating the truth, and given that evidence can be contradictory, we trust juries to decide, for instance, whether a David Attias is evil or ill.

But the purpose of these proceedings should, more than anything it seems to me, be to comfort those who have lost their loved ones, and at that level, I wonder how proceedings like these help. I agree that without reference at all to vengeance, it would be a comfort to see an evil person punished for his crimes. But in a case like this, would it provide more solace for the living for the jury to determine that the victims died at the hands of a cold-blooded murderer, or as the random victims of unfathomable madness?

I don't know. Thankful not to be in those shoes, I won't insult those who are by guessing.

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Notices

The "smart growth" group Livable Santa Monica will hold its June meeting on Sunday, June 9th at 7:00 p.m. in the Wild Oats (5th and Wilshire) Community Room. Topics on the agenda include: Impact of the proposed 7,500 square foot development threshold for downtown development and "breaking auto-dependency" and the downtown parking plan/circulation element.

The meeting is open to the public.