Where the Defense Went Wrong

Where did Patty Hearst's defense go wrong? Or did it go wrong at all--since the defendant might still be exonerated on appeal? Not surprisingly, lawyers and psychiatrists interviewed by TIME disagreed on most points--except one. Many believed that the trial could have established some important precedents on the complex issue of human motivation and its effect on criminal behavior, but failed to do so.

"There were some sensationally exciting questions about the borderland between volition and involition in human behavior," said University of Chicago Law Professor Franklin E. Zimring. "We could have learned a lot from this case about human behavior." Why didn't that happen? Zimring implicitly questions the entire adversary system of justice: "One side gets up and yells white and the other gets up and yells black while we're talking about shades of gray. There is no room in the law for the advocacy--or the exploration--of the shade of gray."

Two experts wondered about what they considered the schizophrenic defense strategy of F. Lee Bailey. Complained Psychiatrist Willard Gaylin, president of the Society, Ethics and Life Sciences Institute at Hastings-on-Hud-spn, N.Y.: "There was confusion between brainwashing and coercion. Coercion is when a person does something against his will because he's terrified. Brainwashing is when a person tries to become and to will what somebody else is and wants. It was not clear what the defense wanted to say." Northwestern Law Professor Jon Waltz agreed. "On the one hand, Patty is supposed to be brainwashed," he said. "On the other, she's under duress. There's something vaguely inconsistent in that approach."

Other lawyers faulted the defense on different counts. Sam Dash, former majority counsel to the Senate Watergate committee and now head of Georgetown University's Criminal Law Institute, argued that Bailey probably erred seriously when he let Patty take the Fifth Amendment 42 times. Until then, said Dash, "she was saying: 'I was abducted, and temporarily changed, but I'm Patty Hearst again.' This attempt at portraying truth and honesty must have been shattered by the Fifth Amendment invocations. Jurors had to ask, 'Who is she, anyway?' "

Some attorneys maintained that Bailey should have moved sooner to suppress some crucial evidence seized in the San Francisco apartment of William and Emily Harris. They noted that the Harrises' lawyer, Leonard Weinglass, succeeded in getting the same evidence excluded from their Los Angeles trial. But other lawyers point out that since the rules of search and seizure are more liberal in California courts than in federal courts, such a move by Bailey was bound to fail anyway.

Harvard Law Professor Alan Dershowitz believes that the verdict may well be reversed, "primarily on the ground that the judge improperly let in a great deal of evidence of [Patty's] attitude and statements after the crime." Said Dershowitz: "The jury convicted her not for what she did at the time of the bank robbery but for what she became afterwards." Others argued that there was also room for an appeal on Carter's instructions to the jury--that the judge's charge was "boilerplate" (nothing more than the standard instructions for a criminal trial) and that it omitted too much.

Given the differences over motivation and real guilt, what is Patty's sentence likely to be? Northwestern's Waltz speculated that Carter "would have to sentence her to time," but not to a term as harsh as, say, ten years. Zimring predicted a light sentence--or none at all. Yet he was troubled by his prediction. "What was there about the situation," he wondered, "that makes us all terribly unwilling to punish and yet creates such confidence in guilt?"

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