Chapter Nineteen

"Honest, Judge, it was temporary insanity!"

(This chapter offers the author’s personal experiences and opinions. It is intended as a general orientation for gamblers with legal difficulties. Nothing here should be construed as legal advice, and the reader is reminded that he or she should consult their own legal advisers before taking any steps to solve legal problems.)

During the late 1970s, a pathological gambler robbed a bank in Las Vegas. He was arrested and brought to trial there in federal court, and decided to use an insanity defense. Robert Custer, M.D., then Chief of the Medical Staff at the Brecksville VA Medical Center in Ohio, took an interest in the case (United States vs. McGee), and served as an expert witness. Thus began a long chain of legal maneuvers, designed to establish the gambling disorder as an explanation for some kinds of illegal behavior.

The McGee trial ended in a hung jury, and then the defendant gave up his insanity defense and pled guilty, rather than attempt a second trial. Was this a symptom of the impulsiveness and lack of patience we see in most problem gamblers? Did McGee simply see that the insanity plea was unlikely to work, or did his legal advisors direct his actions? I often wonder since this was before I began working on the Gambling Treatment Program at the Brecksville V.A. Medical Center in 1978.

Over the next few years, in federal and state courts, many more problem gamblers attempted to use the insanity defense. At the state level some were able to convince juries, and sometimes judges, that pathological gambling was a form of mental illness that would excuse and explain their illegal acts. However, the results at the federal level were discouraging.

Finally, in June of 1990, the many questions raised over a 12-year period (1978-1990) were answered, at least to my own complete satisfaction. In my view, the final resolution to so many legal questions and so much uncertainty about how best to help the gambler with legal problems came about in the same jurisdiction where it had started. Another pathological gambler robbed a bank in Las Vegas, and in United States vs. McCollum we finally got it right. This time there was no trial. I will refer to the offender in this case as Gerald and will return to the McCollum matter later.

Most of my discussion here will be about federal court cases, because that is where the important legal precedents are set. My first appearance as an expert witness in a federal court was in the United States vs. Bertalone trial, which took place in 1980 in upstate New York, shortly after the McGee trial. Although Dr. Robert Custer was now working in Washington at the V. A. central office, he took a keen interest in this trial and came to testify on the details of the pathological gambling diagnosis. As Mr. Bertalone’s psychologist, I appeared for the defense.

"Now, Dr. Taber," growled the prosecuting attorney, "Will you please take these copies of the medical record from the bailiff and tell me if, to the best of your knowledge, they are true and correct copies of Mr. Bertalone’s medical records from the time during which he was in your gambling treatment program at Brecksville?"

The judge gazed at me. The jury stared and waited. The prosecuting attorney stood patiently by, hands folded on his lectern, just a hint of a smirk on his face. The defendant and his attorney smiled and waited for their friendly witness to examine the papers.

After a period of paper shuffling, I finally replied, "Yes, these appear to be the same copies of the hospital record I submitted previously."

"I see," said my tormentor. "And Dr. Taber, do you see that part of the record that is the so-called treatment plan?"

"Yes, sir, I have the treatment plan in front of me now."

"Is that your signature at the bottom of the so-called treatment plan, Dr. Taber?"

There was a long pause as it dawned upon me that I was in the worst corner an expert witness can find himself. "No, sir," I finally replied, "Someone else seems to have signed the plan in my name. That’s not my writing." I was under oath, and lying would be a federal crime.

"But Dr. Taber, you are the gambling treatment team leader, the Program Coordinator. Were you not present when the treatment plan for Mr. Bertalone was formulated?"

"No, I was not. I was actually on a week of vacation," I confessed, trying to sound self-assured.

The prosecuting attorney had made his point. He had cast doubt on my credibility and shown that I was not even at the hospital during some of Mr. Bertalone’s stay. I wanted to explain that others on the team had the authority to sign treatment plans in my absence, although they should have signed their own names. I wanted to explain that the treatment plan was only a formality required for bureaucratic reasons, and that the program was pretty much the same whether I was actually a part of it or not on any given day.

Like a gambler caught with his hand in the cookie jar, I wanted to explain myself. But I could only answer the questions that were put to me. Having done what he set out to do, the prosecuting attorney moved on to other issues. Later, in cross-examination, I would be able to explain a bit about the signature error, but the damage had been done. However, in the long run, the jury would decide the case on larger issues.

At least we had been able to get the Bertalone case in front of a jury. We had been allowed to present information and evidence about how pathological gambling influences thinking and behavior.

The real issue was the defendant’s sanity in a legal sense, not really in any psychological sense. Was he or was he not suffering from a mental disease or defect? And if he was, did that disease or defect render him unable either to tell right from wrong, or unable to conform his behavior to the requirements of the law? Beyond that, was pathological gambling really a mental illness, or just a character blemish the defendant could have overcome with strength of will? In the late 1970s, professional groups did not accept pathological gambling as a formal diagnosis, and no research on the effectiveness of treatment had been done. Certainly, neither the public nor the judicial system had been educated about the disorder.

By the time I took the stand, my friend Dr. Custer had already testified in the Bertalone case. He had argued that pathological gambling was a mental disorder that could affect one’s ability to resist impulses to gamble, as well as the ability to resist impulses to gain money illegally for gambling purposes. Although Dr. Custer did not know the defendant personally, the defense attorneys had drawn Dr. Custer into the case because he was the nation’s leading expert on pathological gambling. It had been his job to establish the reality of the disorder in the minds of the members of the jury. Now it was my task to show that indeed the defendant actually had that disorder, and because of it, was unable to conform his behavior according to the law he certainly knew so well.

While I was still on the stand, the prosecuting attorney began to dissect the psychological tests I had administered to the defendant by asking questions designed to raise doubt about psychological testing. When a psychologist appears as a witness for the prosecution, his tests are treated as if they are absolute scientific truth. The identical tests, offered by a psychologist testifying against the prosecution, can be ridiculed and criticized as unscientific balderdash.

The defendant in the Bertalone trial was a man I will call Dan. It was an actual jury trial, and the facts I mention are true. Since the trial was a matter of public record I can give at least the bare bones of the case without violating a patient’s privacy.

My psychological assessment revealed an intelligent, responsible family man who had successfully managed the task of postmaster at his local post office. Late in mid-life, during a time of heavy gambling, he had taken money orders from the back of his book of blanks and had written several to pay gambling debts. He fully intended, I was sure, to replace the money before the missing money orders were discovered, so there would be no shortage in the books. My tests and other evaluations showed no major mental illness such as schizophrenia or manic-depressive illness, and no disorder that would render Dan unable to tell right from wrong. It was clear, however, that he had a disorder of impulse control called pathological gambling. Members of Cleveland Gamblers Anonymous recognized the familiar pattern as soon as they got Dan into their meetings after his admission to the Brecksville, Ohio program.

No one can prove what goes on in the mind of another human being. Psychologists and psychiatrists are not mind readers; no one is. But here was a man with a solid record of accomplishment. He was congenial, well educated, and devoted to family. There was no criminal history. But he had suddenly done the unexpected and crossed the line into criminal behavior. There were only two possible explanations. He was either in full self-control and had criminal intent, or he had an overwhelming impulse to continue gambling at any cost, an impulse that destroyed his normal ability to abide by the law. I believed Dan had never lost sight of what was right and wrong. So was his a criminal intent, or was it an overwhelmingly irresistible impulse?

In this case we had achieved a victory just in getting a jury in a federal court to hear testimony about pathological gambling. This was at least a sort of recognition of the disorder. Many federal judges did not permit even this.

The trial did not last long since the jury did not have to decide whether Dan had done the crime; that had long ago been admitted. They had a much more slippery ghost to pin down, volition and intent. There was no contention over whether the defendant had strong impulses which could compromise his judgment; that was also accepted. The jury had to decide whether, given the circumstances, Dan was or was not able to resist his gambling impulses. Did he have self control and free will at all times, or did gambling rob him of those most basic human abilities?

In all honesty, I have to say that no human being can ever know those things about another with any certainty. We were dealing in probabilities and educated guesses, not with medical or scientific facts. And the members of the jury had as a standard only their own opinions about what they themselves would have done in similar circumstances. They probably could not imagine any circumstances in which they would have taken the money.

Dr. Custer had called me sometime after Dan left treatment in 1978, suggesting that he, Dr. Custer, would appear as an expert witness, and that we should try to use the so-called insanity defense. Our conversation, as best I can recall it, went something like this.

CUSTER: I think the Bertalone case would make an excellent test to see if we can use the insanity defense in a case of pathological gambling. Would you come over to upstate New York and testify about his hospital treatment if I testify that pathological gambling could lead someone to do what he did?

TABER: I thought you already tried that defense in a case a few years ago in Las Vegas, before I got involved here in the gambling program. I’ve read about that case, United States vs. McGee.

CUSTER: Right, out in Las Vegas, a year or so ago. We got a hung jury, but the World Health Organization and the American Psychiatric Association have since recognized pathological gambling as a mental illness, as you know. The diagnosis has just been published officially this year (1980) and now, with that kind of formal recognition, I think we have a lot better chance to make the insanity defense stick.

TABER: McGee was a bank robbery.

CUSTER: Correct. He finally just pled guilty to avoid the second trial. But Bertalone’s was not a violent crime.

TABER: I’d be happy to try to help Mr. Bertalone in any way I can, but if he goes to trial and gets acquitted, he walks away free. He’s already admitted taking the money orders and cashing them. Wouldn’t the Gamblers Anonymous program demand that he make restitution and be responsible for his behavior?

CUSTER: Oh, sure, he can make restitution. But I really think we need to test pathological gambling as an insanity plea.

TABER: If he just went to sentencing and skipped the trial option, and if we both testified there, the court might be more lenient. He might get probation, and a chance to make his payback.

CUSTER: We’ll know either way the jury goes. If he’s innocent by reason of insanity, people will be less likely to prosecute in cases of pathological gambling, and more likely to plea-bargain and recommend probation and treatment. If he’s convicted in spite of being a pathological gambler, then we’ll know we have to have future defendants plead guilty and go straight to sentencing.

TABER: That makes sense. I do know that Dan has stopped gambling and is very active in GA. That’s a good sign. He’s building a good track record for himself.

So we cooperated with the defense and got ready to go to trial, in spite of my own misgivings.

Dr. Custer had managed not only to get pathological gambling listed in the American Psychiatric Association’s Diagnostic and Statistical Manual in 1980. He was also able to get it listed as a disorder of impulse control, a different group from other addictions, such as drug and alcohol dependence, which are listed under substance abuse disorders. This was an important distinction, and one that remains in current editions of the Manual. If pathological gambling were to be seen as merely another addiction, those accused of gambling-related crimes would have to walk the same plank as drunk drivers and those who robbed to get money for drugs. In general, if an addiction-related crime is not a major offense, and is a first offense, the courts divert the offender into a treatment program and place him or her on probation. The insanity defense is almost never used any longer in cases of addiction-related crimes. Gambling, however, had been placed in a unique category of disorders, and so the legal territory had yet to be mapped.

I truly believe that Robert Custer, in his heart of hearts, wanted to spare the pathological gambler the same legal treatment accorded to alcoholic and drug offenders, toward whom he had enormous compassion and whose treatment he had also pioneered during his time at Brecksville.

There are three very important legal words to remember here. The first is exculpation, which means complete removal of all legal guilt. If you can prove that a crime was the direct result of a mental illness or defect, this is exculpatory. The defendant is not culpable or guilty by reason of insanity, and he or she goes free even if we know they actually committed the crime. In some states, when the decision is not guilty by reason of insanity, the defendant is forced into confinement in a mental hospital, and then released or returned to prison when a cure or very significant improvement is noted. Legal insanity is not always an easy decision for the defendant to live with.

The second important word is mitigation, a term that refers to a reduced or lesser degree of guilt, which may lead to a reduction in punishment severity. A jury decides on guilt or innocence, so when a person goes to formal trial the outcome is black or white, innocent or guilty. One the other hand, if a defendant pleads guilty and avoids a formal trial, he or she may at the time of sentencing by a judge ask for some understanding, or mitigation, by presenting evidence that the crime in question was caused at least in part by a mental disorder.

Here the third term, diversion, comes into play. At the judge’s discretion, the defendant may be sentenced not to prison and/or heavy fines, but to a mandatory treatment period while on supervised probation. The defendant is thus diverted from the criminal justice system into the mental health system. Diversion becomes far less likely in the case of second and third offenses, and is often forbidden by law for repeat offenders.

Treatment may include psychotherapy, attendance at self-help groups, and financial restitution. This is the customary path for first-time offenders when crimes are related to drug or alcohol abuse, except, of course, in cases involving serious offenses such as murder or injury to others.

The courts long ago decided drug or alcohol abuse, addictions and mental disorders although they may be, are not exculpatory. Society holds the alcoholic or drug-addicted individual personally responsible for crimes committed while under the influence. Knowing this, I did not think it would be any different in cases of gambling related crimes. But although the American Psychiatric Association and the World Health Organization had just declared pathological gambling to be a mental disorder, it was to be included, as we have seen, not among the known addictions but among a different class to be called Disorders of Impulse Control. The door for the insanity defense was thus left open a crack.

The three important legal terms, again: In exculpation the crime is excused because of mental illness; in mitigation the degree of the crime is reduced, with the court’s sentence being tempered and often tailored around the mental condition of the defendant; and in diversion, therapeutic and preventive treatments are mandated.

I worried that exculpation of all guilt might allow Dan to return immediately to gambling, by wiping the slate clean and removing all restraint and supervision. At the time I was working with gamblers whose treatment at the hospital was embedded in an alcohol and drug treatment program, and I was convinced of the need for the patient to admit wrongdoing and seek diversion to treatment, that is, mitigation rather than exculpation. However, Dr. Custer’s logic and his position as our national expert on problem gambling encouraged me to try to help him test the insanity defense with pathological gambling.

After all our preparation and testimony, the jury in the Bertalone case finally returned a verdict of guilty, and Dan served his sentence of about two years in prison. Much to his very great credit, he returned to his community and family and took up a career as a gambling counselor, in which he helped many others suffering from the gambling disorder.

Many people argue that prison is the end of all normal life, that it so alters character that a life of crime is guaranteed. Dan proved that argument false. It is character, not time served, that builds a future for the former convict. Dan had character.

After the Bertalone trial, I thought our question had been answered. Pathological gambling would be accepted as a real mental disorder, but would not excuse criminal behavior. All we had to do now was to establish a precedent that would allow the first-time offender to seek mitigation and diversion to treatment rather than prison. I thought wrongly, however.

Dr. Custer was determined to continue in his attempts to establish pathological gambling as an issue at trial, not just at sentencing. He did not seem willing to encourage a defendant to plead guilty and throw himself on the mercy of the court. By then I had become overly impressed, I must admit, with my own importance as an expert witness. Also, a curious twist developed with the appearance of two gentlemen who roved the country as case finders. I will call them simply Mr. F. and Mr. D. Both of these gentlemen claimed to be recovering gamblers. They had befriended Dr. Custer and gained his trust, as they soon would gain mine.

These gentlemen operated out of the Washington, D.C., area. When Mr. F and Mr. D found a headline in a national newspaper reporting a crime that might be symptomatic of pathological gambling, they began making phone calls. When they thought they had a real gambler on the hook, one or both would fly out to meet with the defendant and his attorneys, offering their contacts with experts in the field, who would help in the client’s defense.

It was flattering and dramatic to be involved in some of the cases they unearthed in those days. Forensic (legal) medicine and psychology are complex and specialized areas that I now realize require extensive training and preparation. I did, in time, audit a course myself in the insanity defense at the Case Western Reserve University School of Law. After that I did some work in the trenches at our local county courthouse and jail, working for the Public Defender’s Office to gain experience.

In the early days of my court work, however, I was quite unsophisticated. In the few cases in which I participated at the call of Messrs. F. and D., my travel expenses were paid and I was given a fee, as was Dr. Custer. Other cases in which I was involved arose from Brecksville patients, and did not involve our friends the case finders. In the Brecksville cases I took only the travel expenses paid by the defense. Sometimes the courts paid a small fee, but not always. When they did I had to take vacation days, since I could not be double paided by the federal government on any given day.

Messrs. F. and D. wandered in and out of the legal scene for a few years before I finally realized that the warnings given me by Msgr. Joseph A. Dunne, the founding father of the National Council on Problem Gambling, should have been more carefully attended to. He knew what kind of men they were.

Mr. F. at one point had arranged a valuable workshop for mental health professionals interested in problem gambling, an event in which I took part along with other mental health specialists. A year or two after the Bertalone case, a social worker friend from Philadelphia said she was looking forward to seeing me at another forthcoming workshop in her hometown.

"Oh?" I said. "What workshop would that be?"

"Why, the one Mr. F. is putting together. I’ve already paid my fee." She went on to mention the date and location of a workshop I had never heard of, but which advertised me as a speaker. It took me only a few phone calls to verify that Mr. F. had been collecting money for a workshop on pathological gambling in which I and others, who had never been contacted, were said to be featured speakers.

I consider myself a man of great patience, understanding, and tolerance, but when Taber gets angry it is not a pleasant thing to see or hear. To avoid going to prison (it would not be his first visit), Mr. F. was willing to refund the money and send an apology to those who had taken the bait. From then on I let everyone know that Mr. F. was not to be trusted under any circumstances. My guess now is that he had never stopped his gambling.

As to the charming Mr. D., who had no visible employment and who coasted on his record as a once-great professional athlete, after a few major case finding adventures he dropped out of sight. The last I heard about him was from a detective working for a car rental firm who was trying to find Mr. D. because of a missing rental car. I sincerely wished I could have helped put this fellow away.

Several others besides Dr. Custer and I had been taken in by these con artists. We had allowed ourselves to be sidetracked and flattered into working on cases that really made no legal sense, cases that wasted the resources of people who believed experts could help pathological gamblers avoid the natural consequences of gambling-related crime.

There were two other interesting cases in which family money was lavished in an attempt to avoid prison. Neither defendant was a veteran and neither had been to Brecksville, although I did accomplish a full psychological evaluation in both cases in my private practice. They were referred to me by the Johns Hopkins center for the treatment of pathological gambling. In United States vs. Llewellyn, the defendant, a man who speculated with other people’s money in the stock market, proved to be a pathological gambler with a persistent disregard for proper bookkeeping methods. Despite the best testimony of Dr. Custer and me, the federal judge correctly, in my present opinion, refused to admit evidence of any mental disorder, so that Lewellyn went to court with no defense at all. He was sentenced to a long term in federal prison, but only after wasting a great deal of family money on worthless defense efforts.

Brian Mallony, also referred by the John Hopkins treatment center, was a Canadian loan officer who falsified records and gambled away stolen bank money in Atlantic City. His case was heard in Canada, with the same result as Llewellyn’s. Brian served his time and eventually wrote a book about his experiences.

From all this I adopted a strong opinion: Recovering gamblers belong in Gamblers Anonymous, and, except for very special and limited circumstances, should never, ever use their knowledge or personal stories for any other purpose in any other arena, as Messrs. F. and D. had done. Beware the gambler who talks for profit in public. If recovery from gambling is the only qualification one can offer, if there is no formal education, training, licensure, or supervised internship, then I would avoid such a self-promoting expert.

Lawyers, however, were becoming interested in the question of crime and pathological gambling; I received quite a few inquiries from attorneys, and not a few referrals to treatment. At some point I began to realize how very stressful being an expert witness and a crusader could become, and how much I had to learn if I was going to help the legal profession resolve the question of pathological gambling. Working with pathological gamblers full-time was, in itself, very demanding work. After a while, the frequent legal complications began to be burdens, especially when the insanity defense tactic refused to die from lack of success.

The fact was, unfortunately, that although federal courts would not entertain the defense, state courts could and did. In a number of cases, the defendant in state court did obtain a jury trial, and was found not guilty. Whenever possible I avoided direct involvement in these cases. But a particularly interesting case could draw me out of my reluctance.

As usual, the Davis case began over the telephone. The lawyer sounded young and enthusiastic, but her conversation suggested competence. Lynn (not her real name) was a federal public defender, and had been reviewing her strategy for what was to be an evidentiary hearing at which I would be an expert witness. It would be my job to help the court learn about pathological gambling and its effects on human judgment and behavior. Once the judge had heard this evidence of mental illness he would decide whether it should be admitted as evidence during the coming trial, something the defense wanted very much. However by now I was very pessimistic.

Through long distance calls Lynn and I developed a close working relationship. There emerged a common set of expectations and attitudes. Lynn’s work style was clearly different from what I had experienced with male attorneys. At times there even seemed to be an unspoken communication between us that made our conversations more efficient and comprehensive. I had already learned in the psychology field that female professionals often approach problems differently from their male colleagues.

Lynn and I taught each other about our very different professions. As a psychologist I struggled to explain the subtle changes that take place in the thinking and mood cycles of compulsive gamblers. In return, Lynn helped me appreciate the 2,500-year-old theory of human behavior still held by the legal profession. Theirs is an ancient theory of right and wrong that permits few shades of gray between legal guilt and innocence based on legal insanity. All my own training and experience told me that legalistic thinking was wrong, outmoded, and inefficient. My theories—prejudices, if you will—made learning difficult.

I often wondered how something as powerful and important as the criminal justice system still based its life and death decisions on a theory of human nature put forth long ago by primitive Greek philosophers and medieval logicians. Compromises and adjustments are constantly being made in the progress of justice, but Aristotle and his descendants in English Law still survive in our legal system.

This is certainly not the way of the psychologist, who learns to live in the misty world of the mind. Every profession has its honored ghosts and traditions.

Lynn, without fighting my strong opinions, focused my thinking on the fact that the law has the power to impose its theories on the lives of offender and witness alike. We would play by their rules, or we would not play at all.

The case was this: A young man had stolen money by signing and cashing the monthly government checks that still came for his dead mother. Forgery! A federal offense! But he had a long history of compulsive gambling. Was he a criminal, or did his mental disorder, his addiction to gambling, explain his crimes and thus excuse him from guilt? I’d told Lynn about Lewellyn’s failed evidentiary hearing, and about all the others. But she was in charge of her defendant’s case.

Finally I reviewed our long phone conversations, trying to jot down all the fine points I would want in mind when I took the stand. Consequences that could extend well beyond the case at hand hung on whether or not we could once more get a federal court to recognize the legal pertinence of a devastating mental problem such as pathological gambling.

Naturally, the opposite might be the eventual outcome of these test cases: The courts might convince the mental health professions that addictions, obsessions, and compulsions, while serious problems, offer no defense in a court of law. Perhaps pathological gambling was not a disease or defect of the mind serious enough to win exculpation, or even mitigation.

A few weeks later I met Lynn in her office in the federal courthouse. This little person turned out to be a legal bulldog. All morning we shaped our logic. It was as if we were building two adjoining walls of different brick, each belonging to different dwellings, laid side-by-side to give the appearance of unity and common purpose.

That afternoon the co-counsel for the defense joined us. This woman was quiet, a bit older than Lynn, and more detached from the case. She seemed quite comfortable in her supervisor role. Elegant in high fashion glasses, she seemed very tall and intellectual, and was obviously Lynn’s mentor. In the company of several assistants, we took two elevators to reach the courtroom below.

The courtroom doors opened, exposing an altogether strange scene. Sitting in every conceivable space in the front of the room, surrounding the bench, were dozens of stuffed toy bears. Big bears and tiny bears, bears with glasses and bears with bows, bears both traditional brown and in other colors.

It seems that a patent infringement case was being heard in this room, and the bears would remain in place to hear our case, like some Alice in Wonderland jury. The issue of the bears would continue long after our question was resolved. That case involved huge sums of money, while ours dealt merely with human sanity.

The prosecuting attorney from the U.S. Attorney's Office was also a woman; we had spoken briefly on the phone to arrange a transfer of credentials and other documents. Meeting her now outside the courtroom, I was surprised, in turn, by her youth. Like Lynn, the prosecuting attorney gave the impression of intelligence and calm intensity.

Our hearing, faithfully attended to by the ranks of stuffed bears, worked forward during the afternoon. This was just one day of several during which different witnesses were to be heard. Lynn took me through a long direct examination, and the Judge stopped her only once to suggest, "The witness might tell us more if you led him less."

We covered the diagnosis as well as the history and treatment of pathological gambling. We reviewed how the disorder might affect one's understanding of right and wrong, and how it might produce overwhelming impulses to gamble or even to take money illegally.

There was the usual sharp cross-examination and then, uncharacteristically, a re-direct and a re-cross. The ladies were being meticulous. At the end, the Judge had no questions of his own, but he had listened throughout; unlike other judges I had observed, he did not write furiously about other cases, read, or seem to doze off during testimony.

In the outer hall during a break an attorney from another federal agency joined us. She was observing the case because her agency was the one from which the defendant had illegally taken money. It occurred to me that we were all of us, except for the toy bears and the absent defendant, federal employees. Presidents and congresses come and go, but the services of government, carried on by professional bureaucrats as demanded by the citizens, go forth without interruption.

Eventually, after my time on the stand, an assistant took me away to collect a check for my expenses while Lynn interviewed another witness.

In the end, it turned out that the judge only wanted to get the case disposed of, and really didn't seem interested in getting deeply involved in testing a new insanity defense. He was probably well aware of previous opinions by other federal judges. The defendant was unable to hire a staff of highly paid attorneys of his own, and eventually settled with a brief prison term and supervised parole.

Perhaps most importantly, I gave up the quest for a pathological gambling insanity defense and learned to insist on simple solutions that work, even when more complex solutions that will surely fail are available. I learned to make life simple, and to appreciate the obvious.

I refused all but one more effort at trial, the case of a Vietnam War hero, a military officer who was my patient and who we all wanted to help in any way we could. The outcome in his court-martial would carry the weight of a federal court decision. I diagnosed the major as having both pathological gambling and PTSD, the latter resulting from his Vietnam air combat experiences. Dr. Custer and I were under virtual house arrest for about five days in a motel somewhere in the Midwest while we awaited the pleasure of the military court. The military tribunal is a good deal less flexible than civilian courts; they want their witnesses present and ready to testify at a moment’s notice, so you must come at the beginning and simply wait for your time in the witness box. If you decide to play hooky, they will send a U.S. Marshal to bring you back in chains.

In the end, the court sent the offending officer to a military prison for crimes related to loss of impulse control (writing bad checks for gambling money), and excused him for crimes related to PTSD (failure to repay loans). Strange it is how sometimes different mental illnesses are honored more in one segment of society than in another.

In other cases, in other courts, the pathological gambling issue was finally given the status of other addictions, although to this day the Diagnostic and Statistical Manual continues to keep pathological gambling apart from other addictions. However, the diagnosis does not excuse or leave the defendant free to be crazy another day. It does suggest some mitigation and a diversion to treatment in the case of first offenders. Shades of gray do enter the criminal justice system, but not once the battle has been begun in the courtroom. There it is all black or white. In the judge's chambers, the shadings are those that reasonable men and women can work with.

Finally, I want to describe my last and what I think was my most successful appearance in federal court as an expert witness.

Eleven years after the McGee bank robbery in Las Vegas, history repeated itself, with different players. Shortly after noon on August 1, 1989, a well-groomed, well-dressed man walked up to a teller in a bank in Las Vegas and handed the woman a paper bag with a note. "This is a hold-up. Give me all your cash. I have a gun."

I’ll call this man Gerald to respect his privacy, although the case records are public. Here, clearly, was a crime related to poor impulse control, obviously not planned by a professional bank robber. Gerald had spent all of several minutes in the parking lot planning his crime, just the time it took to scribble his note. He checked to be sure there were few customers in the bank and then went to the first teller he saw. He wasn’t thinking about the vault and large sums of cash, just about getting enough money to buy his wife some new glasses. And that’s about all he got; the relatively meager contents of the drawer of a single teller.

Gerald went straight home to tell his wife what he had done. She laughed, thinking it was a joke. She stopped laughing when he handed her the money and told her to get her glasses. Then the police were in the home, and Gerald was taken into custody while the horrified wife and children looked on.

Although the panic-stricken teller couldn’t have noticed it, Gerald had been tearful and anxious as he approached her window. He had been asking God to help him stop gambling, and was terribly worried about money problems at home. As a taxi driver he had access to cash, and most of his paychecks were also cashed in gambling establishments, where the money followed his tips into slot machines.

In the days leading up to the robbery, Gerald had tried everything he could think of to stop, cut down, or avoid gambling. He’d been to Gamblers Anonymous. However, like many newcomers, he saw the others as having serious problems but could not think of himself as being like them.

Of the last 200 paychecks, Gerald had cashed most of them in gambling establishments, and had lost about 80 of them completely soon after they were cashed. It pleased him that he could get a free hot dog, a spin of the wheel, a few free drinks, or even a free baseball cap by cashing his check in a casino. He did drink, and had had a beer the morning of the robbery. Although he was not an alcoholic, for Gerald alcohol was a mild but reliable stress-reliever, guilt-remover, and anxiety-reducer. Contrary to common understanding, much of the damage done by alcohol occurs while drinkers are only slightly or moderately intoxicated.

Gerald also spent considerable money on marijuana, but not nearly as much as on gambling, his primary addiction. Gerald didn’t realize it, but he would never stop his gambling, even with the help of Gamblers Anonymous, if he continued his alcohol abuse and marijuana dependency. He was blind to their importance in promoting his primary addiction of gambling.

A few years earlier, Gerald had won about $1,400 at the slots, which he considered a big win. He had used the money to pay bills and fix his car, gambling only with what was left. Lately, however, he had become very desperate and was preoccupied with trying to win his lost money back and get caught up. He was deeply concerned about promises he had made to the family. Many New Year’s resolutions had failed, and he had been in and out of Gamblers Anonymous several times.

Just before the robbery, Gerald had lost yet another paycheck to gambling and had walked the streets almost in tears, trying to think of a way out. He had considered suicide. He had been able to stop gambling for three months in GA, but he still did not see himself as the same as the others in the meetings. He thought he should be able to do it on his own, without the help of what he called losers. Interestingly, after stopping for the three months, just when he had about gotten his bills paid up, his gambling escalated once more. Often, it seems, it’s not the hard times gamblers have trouble with, it’s the good times. Gamblers don’t seem to handle prosperity well. They miss the stress of gambling-related problems, sometimes as much as the gambling itself.

Gerald was 42 at the time of his first and only bank robbery. Although a cab driver, he had always dreamed of owning his own business and becoming rich. At the time of his crime he was in the tenth year of a third marriage. He had three children at home and was now a devoted family man. It’s curious that, as he gambled away paycheck after paycheck, he told himself he was doing it for his family, hoping to win money to enrich their lives.

His wife had broken her glasses, and his thoughts had focused on getting some money to buy new ones even as he poured his quarters into the machines. Another lost paycheck! There followed hours nursing a beer and brooding, wanting to gamble and wanting his troubles to go away. He couldn’t comprehend why his beloved slots never fulfilled their promises. He hadn’t kept his promises to his family, and he couldn’t go home without money. And he couldn’t admit his powerlessness and accept his failures.

Something just said, "Do it!" In an instant he evolved a plan to rob a nearby bank. He drove to the parking lot immediately, wrote the note, and completed his robbery in a matter of minutes, as the silent alarms were sounded.

I think he knew that one way or another this would end his suffering and get him out of a situation over which he had lost control, and in which he saw no alternatives.

Like so many gamblers, Gerald thought that Gamblers Anonymous had not worked for him, that there was no hope. He had, of course, never really worked the program.

Shortly after Gerald’s arrest, I got a call from his public defender. This man turned out to be exactly the right person to help bring the question of pathological gambling and the law to what I would consider a reasonable conclusion. This young public defender was sensible, quiet-spoken, inquisitive, and smart. His was of Native American heritage, and he would eventually appear in court complete with the required dark suit and conservative tie, but with a ponytail. I liked him from our first telephone conversation, and as we worked together my admiration for his skill increased. I was particularly interested in this case from the beginning because the defendant and his public defender had agreed they would not play games with the insanity defense; both agreed to admit guilt and go directly to sentencing.

They were taking a significant risk, since this was a crime of violence, involving weapons and serious risk to innocent parties. Under Nevada state law, the commission of any crime with a gun calls for mandatory prison time. But the bank Gerald had robbed was an interstate bank, so it could be consider a federal case, to be disposed of in federal court. The state and federal attorneys seemed to agree on this. Nevertheless, at the time there were also federal sentencing guidelines which would make a prison sentence very likely in crimes of violence.

Things were falling into place and setting the stage, I thought, for an important legal step forward.

At the urging of the public defender, who had read some of my testimony in previous cases, Gerald came up to the Reno VA Medical Center and was admitted to the Addictive Disorders Treatment Program, where he was well accepted by the other patients and the staff. The objective was not treatment so much as a complete psychological and medical evaluation. Gerald was active and attentive to his treatment while he was with us. He turned out to be friendly, energetic, and easy to work with.

Given that we knew there was a serious gambling problem related to a crime, it became my task, through a complete psychological evaluation, to learn if there was any other mental health problem that might explain, or help to understand, the robbery.

Our physicians found no significant medical problems.

Gerald was a hard worker at any trade he chose. As a boy he had washed cars and swept floors, and then been a store clerk and a salesman for a major metropolitan newspaper. He had served as a cook in the U.S. Marine Corps in Vietnam, and at several bases in the United States. He had completed high school while working his odd jobs, but his attempts at advanced education where characterized by frequent switching of interests and major subjects. He began studying business in Maryland but joined the Marines rather than accept the draft. Following service, he had worked a variety of jobs while attending five different institutions, where his studies had included public health, marketing, nursing, and photography. His grades were good, but his focus was scattered. Here was the searching, impatient restlessness we so often find in gamblers.

His job performance, too, was always excellent, but he moved from job to job until in 1981 arrived in Las Vegas. Gerald had been many things: inhalation therapist, assistant sales manager, management trainee in retail stores and restaurants, and freelance photographer. Finally, in Las Vegas, after working as a kitchen helper and outside salesman, he settled on taxi driving and had worked at that for the four years prior to the robbery. Apparently driving the cab allowed him the personal freedom from immediate supervision so often craved by the pathological gambler.

Gerald was the first of seven children. His parents seemed to be ideal. The father had a fondness for basement card games with friends, but was clearly not addicted to gambling. Both parents were attentive, and the mother was at home except for brief periods of employment over the Christmas rush. There was no child abuse, and in fact, being the first-born, Gerald may have been slightly spoiled. His father was active in the church and in social clubs, and Gerald saw his father as a pillar of the community. When Gerald was about 35 his father died of cancer.

Gerald was a bright student who skipped seventh grade and excelled in athletics. There were no significant developmental or disciplinary problems. He went to work part-time early in life and was never unemployed. There was, however, a good deal of job changing following his discharge from the Marines. Gerald’s dream of financial success proved elusive as he changed from specialty to specialty. He married while in service and was divorced after 10 years. A second marriage lasted only two years. His third marriage produced three children, and seemed to be stable.

More exemplary pieces were falling into place in my evaluation. Here was a family man with a good work ethic, a veteran of service in a demanding branch, educated, with no criminal record of any kind. His openness and honesty were refreshing.

Rather than admit no one could win over the long term at the slot machines, Gerald berated himself for his failure at gambling. He described himself as stupid, dumb, and confused. His life stress had become so great that at last he felt as if some force outside him demanded he attempt the robbery. He felt out of control, and his emotions really were out of control. His behavior was now unthinking and automatic in nature.

I gave this man every psychological test and structured interview we had available, looking for anything that would help to understand his behavior. His overall intelligence was above average. However, there was some difficulty in parts of the testing that required time limits, and this seemed to evoke some stress.

In terms of addictive behavior, I have mentioned a persistent use of marijuana and moderate alcohol abuse. He also experimented briefly at times with heroin, cocaine, methamphetamine, barbiturates, and hallucinogenic drugs. None of these ever became serious problems; only the marijuana smoking continued. He was tobacco dependent and preferred rich foods, caffeine, and sugar-based and highly seasoned foods.

I could uncover no history of traumatic events, brain injury, or deprivation of any sort.

Several standard personality tests showed a normal range of emotional responses. There was some evidence of poor impulse control, or impulsivity. Nothing, however, suggested an antisocial or criminal personality. There was a good sense of self, suggesting independence and confidence. The patient was not anxious, fearful, or phobic. Significant depression was not noticed, although Gerald was obviously dissatisfied with his life and circumstances. Thinking was clear, relevant, and well organized, being based on a good fund of general knowledge. He was generally an extrovert. There was a tendency to be somewhat dramatic, and perhaps he had some feelings of entitlement. That is, he expected more from the world and from life than might seem reasonable. His life was organized primarily around his own needs and desires, but that is true of many people.

Going perhaps to extremes, I referred Gerald to our neuropsychologist for additional evaluation. I had no evidence of any brain disorder or deficiency, but for this case I wanted to cover all the bases. After two days of interviews and tests, the report from the neuropsychologist came back essentially negative for any serious neurological problems. He noted only that Gerald showed some slightly impaired judgment and poor impulse control, typical of patients in treatment for drug and alcohol abuse.

I suspect that in many cases of addiction, the signs we see of reduced impulse control and slightly disordered judgment might be associated to some genetic factors that predispose certain individuals to addiction. But there are as yet no widely accepted measuring techniques for such a disposition. What we might identify as defects could also be seen as strengths, carefully selected by evolution over thousands of generations. What we call impulsivity can easily be considered an asset that promotes innovation and productive risk-taking. A small degree of social nonconformity and poor judgment may, in fact, be associated with curiosity, innovation, and creativity.

During a detailed forensic evaluation of Gerald I decided that he was fit to stand trial, in that he could easily comprehend the court proceedings and cooperate with counsel. It was my judgment that at no time did he ever become so confused that he could no longer tell the difference between right and wrong. He repeated several times that he knew robbery was illegal and wrong. He just felt unable to stop himself.

Could he have conformed his behavior to the law by asking for help? Well, he had been to Gamblers Anonymous, and he was aware of other treatment programs where he could have been treated and helped. He knew others had been able to stop gambling and change their lives with outside help. He had chosen not to return to GA or seek the professional help that he knew was available. When all was said and done, I felt he had placed his own needs and desires above society’s. Of course he wasn’t thinking clearly at the time, but he wasn’t thinking clearly most of the time. If thinking clearly at all times in every situation were a requirement for the common man, we would all be in trouble. Why else, if not from confusion, would he pour his income into a mindless recreation like slot machines?

Can we correct such errors of judgment and personality by excusing them as symptoms of a mental disorder? I think not. I knew from my own clinical experiences that even the worst-behaving psychotic or mental patient could be taught or trained to live in community settings. It was difficult, but it could be done. Training works. Sheltering people from the consequences of poor judgment does not work. It is a psychologist’s task not only to decide the state of mind at certain times in life, but also to try to discover what is best for each patient in the long run. If Gerald were willing to plead guilty, which he was, then I was willing to do everything possible to help him meet his legal obligations in the most psychologically productive way possible.

If Gerald was to be released to community living, I outlined the following recommendations in a letter to the public defender.

1.  Regular monitored attendance at Gamblers Anonymous.

2.  Regular monitoring of home and vocational living by an appropriate official of the court.

3.  Complete restitution of any and all harm and damage caused by the offense.

4.  Appropriate public service, designed to consolidate in the offender’s mind the importance of devoting one’s life to meaningful service apart from financial recompense.

5.  Psychotherapy by a qualified mental health professional, to the limit of what is affordable by the offender.

Time went by. I did not want a rush to judgment. No one had been injured during the hold-up, and the prosecutor was not looking for vengeance. Gerald was not judged to be dangerous or a habitual criminal; he was living in the community with his family, and working. Following our treatment, he attended Gamblers Anonymous faithfully. The law’s delays gave him time to build a track record, and to get some of the GA people on his side.

The Reno program I headed continued to suffer major cutbacks, and I ultimately moved to Oregon, where I could continue my work with addictions. Finally, in June of 1990, almost two years after Gerald’s robbery, a date was set for sentencing in federal court in Las Vegas.

Sentencing did not take long, and I truly feared that Gerald would be forced to spend time in prison. On the other hand, the prosecutors’ office seemed to have worked peacefully with the public defender. I thought it was promising that he had been allowed to remain free on bond the entire time.

The judge was well prepared and had read all the reports submitted to him: the police officials’, the probation officer’s, and mine. The bank was not out for vengeance, and there was no media coverage. I gave my testimony, and there were no hotly contended issues. Members of Gamblers Anonymous testified to Gerald’s attendance and progress in their program.

Gerald’s wife and children sat with us as we all anxiously awaiting the judge’s decision.

The judge began by saying he understood the problems associated with pathological gambling. He was impressed with Gerald’s lack of a criminal history, his work record, his family devotion, and his progress in rehabilitation since the crime. Then he said he was going to set aside federal sentencing guidelines, which required a prison sentence. To my joy and amazement he followed my recommendations, which included Gamblers Anonymous, restitution, public service, and supervised probation. He made only one addition of his own by imposing a modest fine. This was probably because there was actually no financial restitution to be made, since the bank’s money had been recovered. There was to be no prison, only probation, any violation of which would activate a suspended sentence.

We had witnessed a new federal court precedent that others could use in future cases of first offenders with gambling problems. For me it was the end of a long learning process. It created a model I hoped other therapists would study in preparing their clients to meet legal responsibilities.

In March of 1994, the United States Supreme Court made a decision that would allow states to abolish the insanity defense by upholding Montana’s 1979 abolition of it. Idaho and Utah have since done the same. Some states have adopted a guilty but insane law, under which an offender may use that plea at trial but must accept the possibility of prison time if they regain sanity with confinement to a treatment facility until they do. Society has begun to understand the role of mental illness in the commission of some crimes, but it remains generally unsympathetic to efforts to secure complete relief from the consequences of crimes committed by the mentally ill. We realize now that being mentally ill does not force a person into crime, and even the severely mentally ill generally may retain the power of choice. And we realize that we are more likely to grow personally by meeting our obligations than by avoiding them.

Approximately half of all severe problem gamblers seeking professional mental health treatment have legal problems involving alleged criminal behavior. Often this is the chief driving force in bringing them to treatment. Ideally, the motivation for seeking treatment would be a desire to correct personality defects and to learn new values, skills, attitudes, and levels of maturity. In practice, however, attorneys, clinicians, and Gamblers Anonymous must deal with client motivation that may merely be a desire for relief from legal pressures and for special consideration in the courts. We now know such special consideration is unwarranted; the gambler is just another impulsive addict who, at least at first, deserves the corrective care only disciplined living, enforced by the criminal justice system, can produce. Life involves choices. If the gambler cannot learn to make them wisely with help, society has more stringent ways of dealing with such problems. Society at large is far more effective in the administration of tough love than any of us are individually, although in the end, the love part may get shoved aside. That’s understandable.

In the time I worked trying to solve the legal problems of gamblers, I learned again certain timeless truths that I would offer to any gambler facing legal consequences. First is the old wisdom: Keep it simple. The problem, in fact, is simple. The gambler broke the law and must suffer society’s consequences. This is altogether right and proper. For a real pathological gambler trying to help himself or herself, these consequences will not include death, nor, most probably, even long imprisonment. In facing up to our obligations, you will grow. If you avoid them, you will stay stuck. If you try to escape your obligations, then the greatest risk, although it is unlikely, is that you will succeed. The worst thing that can ever happen to a problem gambler is winning. The same is true when you seek to hide under a mental illness defense. Keep it simple, solve the problem, and get on with a new life.

Second, complete honesty is essential from the beginning. Do not play games with the criminal justice system. Do all you can to educate yourself and all those working with you about pathological gambling, and then trust your family, your lawyers, your therapists, and your Gamblers Anonymous friends. Admit your powerlessness and your past errors to your trusted confidants, and then follow their advice. Keep it simple and get on with your new life.

Remember, your most severe problem is not the legal mess you may have created. Your worst problems are in your own personality, your values, priorities, beliefs and ideas. The legal mess can be solved in time, but without constant work on personality, you are fated to relive history. Keep it simple.

Don’t expect the criminal justice system to play by your rules or to serve your desires. It won’t. Don’t try to be your own lawyer. You did the crime, so admit it to those trying to help you. Don’t impulsively incriminate yourself or confess to anyone outside your circle of trusted confidants without a very good reason. Most importantly, admit your mistakes and crimes to yourself. Accept a crime as a crime and don’t make excuses to yourself. If you did the crime or crimes, then you know exactly what you did. You were not out of your mind, and although you had incredible urges to continue to gamble, you never lost sight of what was right and what was wrong.

You probably never lost complete understanding of your alternatives to gambling and to crime. You always knew you could stop under the right conditions; you just avoided those conditions. You could have avoided the results of the gambling impulse had you faced the truth and reached out for help; you knew that all along.

The truth: You thought you could get away with something and you didn’t.

The truth: You never thought of yourself as a criminal, but under the law you are.

The truth: The only thing that saved you from getting in deeper was getting caught, so be grateful for that.

The truth: If you are guilty, face it if you want a better life.

The truth: Restitution—whether it means time served, money repaid, or social humiliation— ill make you stronger, not weaker. Only the truth will set you free. It’s all a matter of attitude.

And don’t ask me to help you say, "Honest, Judge, it was temporary insanity."