“The psyche, like a closed sea, moves within itself. Everyone finds a different way to escape their troubles.”
Margaret Mazzantini, Nobody Moves
A professional lawyer who has handled dozens upon dozens of the most varied cases encounters every kind of client imaginable in their practice. They know a simple truth: you don’t get to choose your clients. Among those who come to our firm seeking a defense, it is not uncommon to find people suffering from various forms of mental disorder. A mental disorder that is neither a mental illness nor a form of intellectual disability reflects, in fact, a fairly common life situation. Offenses are committed by people suffering from various forms of psychopathy, mild intellectual impairment, neuroses linked to the after-effects of traumatic brain injuries, neurological conditions (strokes, meningitis, encephalitis), brain tumors, and — most commonly — chronic alcoholism. The presence of mental impairments (heightened irritability, a tendency toward conflict, resentment, sudden outbursts of anger, and other disorders) that prevent a person from fully grasping the antisocial nature of their behavior, or from controlling their actions, often contributes to criminal conduct. Such individuals frequently express themselves through antisocial behavior and are easily drawn into criminal activity.
Where a person is incapable of understanding the meaning and consequences of their actions, or the social harm caused by their conduct, the aims of punishment cannot be achieved, and punishment should therefore not be imposed on them.
In such cases, the most important criterion for determining an offender’s criminal responsibility is establishing whether the person was capable of understanding their actions at the moment of the unlawful act, or lacked that capacity. Such an assessment can only be made by a qualified medical specialist. It is important to stress that not every mental disorder a person may have is subject to clinical and expert evaluation — only one that, in the specific circumstances of the offense, genuinely limited that capacity. For instance, if a person reacted aggressively to an insult or an immoral act by the victim, heightened emotional volatility resulting from psychopathy or a traumatic brain injury should be weighed as a factor limiting their ability to control their actions. But the same disorder does not limit that capacity when it comes to deliberate, premeditated fraud. A lawyer, not being a medical professional, obviously cannot independently assess a person’s capacity to be held responsible for their actions. At the same time, a lawyer is obligated to gather all the evidence necessary for a correct assessment of the subjective element of the offense and to present it, either to secure the offender’s acquittal or a more lenient sentence. In this article, we describe one case in which a lawyer at our firm succeeded in having a case discontinued against a person who had not understood the nature or consequences of his own actions.
Client Story: A Chase Through the Park
The central figure in this story was a middle-aged man — let’s call him Gennady. Disheveled appearance, a vacant stare, and hesitant behavior — that is how our client could best be described at his first meeting with our lawyer. At that consultation, we asked Gennady to describe in detail what had happened to him about three weeks earlier.
One fine weekend day, the man was spending time, as usual, in a park near his home. He spent several hours there strolling around, sitting on a bench, drinking beer with a bag of chips, and watching people go by. At some point he decided that a bottle of hard liquor with a snack was exactly what he needed for complete happiness. So Gennady headed to a nearby shop to buy everything he needed for the rest of a pleasant afternoon. There, however, deep disappointment awaited him: as our client was already on his way to the checkout with a bottle of vodka, a loaf of bread, and some sliced sausage in hand, he discovered he had no money — apparently having lost it in the park or on the way to the shop. Leaving the shop empty-handed was painfully disappointing, so, without giving it much thought, Gennady tucked the modest items under his jacket and, acting as if nothing were amiss, tried to walk out of the shop to return to the park.
Unfortunately, this simple plan was not meant to succeed — the shop’s security guards spotted the theft. Two guards tried to detain Gennady, but he managed to break free and flee the shop. He then grabbed the first unlocked bicycle he could find and tried to make his escape in an unknown direction — but it wasn’t to be. The supermarket staff called the police to the scene and, upon their arrival, described the offender and pointed in the direction he had fled. The chase did not last long — the would-be cyclist was quickly caught. At the moment of his arrest, he tried to resist the police officers, but his luck had finally run out — Gennady was taken to the nearest police station, and an arrest report was drawn up. Criminal proceedings were opened against our client for theft under §242 of the German Criminal Code (German: Strafgesetzbuch, StGB), as well as for resisting police officers during the arrest (§113 StGB).
According to our client, at his first consultation with the lawyer, he could not remember the entire sequence of events that day. What lingered in his memory were only fragmented recollections of going to the shop and picking out items to buy. However, what happened afterward — breaking free from the security guards, stealing someone else’s bicycle, and trying to fight the police — our client, by his own account, could not remember at all. Despite this “forgetfulness,” the man’s future prospects looked, to put it mildly, bleak: he faced a substantial fine that Gennady — unemployed and living on state social assistance — would hardly be able to pay off for the rest of his life. What’s more, our client had no family to speak of: his parents had long since passed away, and he had no relatives or friends willing to help. This unfortunate episode was what ultimately brought him to our law firm.
The Lawyer’s Work: Medical History and an Independent Evaluation
Having heard the client’s story, the lawyer assured him that he would, of course, do everything in his power to defend him. After receiving a power of attorney from Gennady, he got to work on the case. First, the lawyer reviewed the client’s medical history, which included epilepsy as well as various mental impairments accompanied by chronic alcohol dependence. As it turned out, Gennady had already been referred for treatment at medical facilities several times, following various unlawful acts. However, the clinics’ treatment had only been able to ease his symptoms temporarily. A full cure for his “bouquet” of serious chronic conditions was, unfortunately, out of reach.
As is well known in legal doctrine, in order for a person to be found guilty of an offense, evidence must be presented establishing every aspect of the offense’s elements. One of these is the subjective element — that is, the person’s inner mental relationship to the socially dangerous act they committed. Establishing the subjective element of an offense requires either a full awareness of the unlawful nature of one’s actions, or criminal negligence or carelessness. Otherwise, a person, even if they genuinely committed the unlawful act, cannot be held criminally liable and must be relieved of punishment.
At the lawyer’s request, Gennady was referred for an independent medical evaluation, to establish and determine whether the offender had been aware of the nature of his actions at the time of the alleged offense. Based on the examination’s findings, and after analyzing the accused’s medical history, the expert prepared a detailed report concluding that Gennady did indeed suffer from a mental disorder that flares up amid chronic alcoholism. As a result, during such “episodes,” the man could engage in uncontrolled behavior of which he genuinely had no awareness. Moreover, the expert also confirmed that Gennady experienced memory blackouts and, at times, genuinely could not recall what had happened.
This report formed the basis of our client’s defense. These facts, together with the other evidence, were presented by the lawyer at the trial hearing which, exactly as we had expected, ended in a full acquittal of the accused and the dismissal of all charges. All that remained for us was to wish our client, who could hardly believe his good fortune, a good life ahead, and to take care of himself as best he could.
Conclusion
To close on a lighter note, a small joke fitting for this story:
Doctor:
— Why do you tell everyone you’re Napoleon, but you tell me you’re Ivan the
Terrible?
— Because, doctor, I would never allow myself to deceive you.
But in all seriousness, as the great Russian poet, writer, and playwright Alexander Pushkin rightly observed:
God forbid I should lose my mind.
No — better a staff and a beggar’s pack;
No — better toil and hunger.
We wish all our clients and readers good health and success in every area of life. We cannot, of course, cure you, sort out your personal life, or help you financially — but whenever the “legal side of things” is at stake, our law firm is always here for you.
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