INTRODUCTION

Executive clemency by incompetence. This is the probable result in the Christa Pike case. We now know that despite clear notice of potential problems with Pike’s veins from her own statements and medical records, incompetent personnel went forward with the injections, which were not delivered in accordance with their intended use. This caused a disastrous result that will set back the legitimate retributive goals of the death sentence for years. Anti-death penalty advocates will seize upon this and other failed attempts to utilize lethal injection to attack the concept of the punishment writ large and pressure the state legislatures permitting this punishment to abolish it. Other methods need to be used and include a firing squad, electrocution, and nitrogen hypoxia. Hanging has also been validated as consistent with the Eighth Amendment’s prohibition against “cruel and unusual punishments…” The full discussion of these issues follows in this piece. Here is where it stands currently:

• Christa Pike is now on a ventilator and unconscious and may well be in this state for months or years;

• This condition resulted from a grossly incompetent staff infusing the drugs in a manner that may well be deemed cruel and unusual;

• The legal challenges to a second attempt to carry out a lawful sentence will take years and will certainly wind up at the Supreme Court, which has yet to resolve the issues presented in this particular context, especially the Double Jeopardy issue—was she punished, and can she be punished again even though it is a single sentence from a single trial?

• The politics will pressure the Governor to commute the sentence to save millions in litigation costs and the forging of bad law, but this will not prevent the additional millions which will be spent on life care for a previously condemned prisoner who is now unfit to be put to death—yes, you read that correctly;

• Should the state argue that if she is unconscious and will die if removed from the ventilator, and, if so, can the Attorney General submit the issue to the courts to have a writ issued permitting termination of life support, especially since there will be no pain involved in the cessation of life-supporting care?

I doubt the Governor will defer to the courts or order a second attempt and will most probably commute the sentence and task the legislature with selecting alternative methods that do not involve the probability of medical malpractice—a continuing issue in correctional medical care. There have been several botched lethal injection attempts nationally. Inmates are not pillars of health, and many have vascular insufficiency. The death penalty is consistent with sentencing methodology if the right aggravating factors are present. Knee-jerk reactions to incompetence should not remove this option from prosecutors or sentencing juries. Bad facts not only make bad laws, but they also make bad policy.

THE LAW

In the case of Buckley v. Precythe 587 U.S. 119 (2019), the Supreme Court, in an opinion delivered for the majority by Justice Gorsuch, reaffirmed the Eighth Amendment standard of review when a condemned prisoner challenges the method of execution. States, consistent with federalism, have wide leeway in determining what methods are permissible and practicable. The holding is distilled with the following excerpts:

The Eighth Amendment forbids “cruel and unusual” methods of capital punishment but does not guarantee a prisoner a painless death. As originally understood, the Eighth Amendment tolerated methods of execution, like hanging, that involved a significant risk of pain, while forbidding as cruel only those methods that intensified the death sentence by “superadding” terror, pain, or disgrace. To establish that a State’s chosen method cruelly “superadds” pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason… this standard governs “all Eighth Amendment method-of-execution claims. The Constitution affords a measure of deference to a State’s choice of execution procedures and does not authorize courts to serve as boards of inquiry charged with determining best practices for executions. Nor do they suggest that traditionally accepted methods of execution are necessarily rendered unconstitutional as soon as an arguably more humane method becomes available.

THE MAJORITY IN BUCKLEY REVIEWED THE HISTORY AND TRADITION OF THE EIGHTH AMENDMENT, AND WE SEE THAT THE FRAMERS REJECTED PUNISHMENTS THAT WERE STILL IN EFFECT IN ENGLAND AT THE TIME OF THE RATIFICATION OF THE CONSTITUTION

Justice Gorsuch wrote:

While the Eighth Amendment doesn’t forbid capital punishment, it does speak to how States may carry out that punishment, prohibiting methods that are “cruel and unusual.” What does this term mean? At the time of the framing, English law still formally tolerated certain punishments even though they had largely fallen into disuse—punishments in which “terror, pain, or disgrace [were] superadded” to the penalty of death. 4 W. Blackstone, Commentaries on the Laws of England 370 (1769). These included such “[d]isgusting” practices as dragging the prisoner to the place of execution, disemboweling, quartering, public dissection, and burning alive, all of which Blackstone observed “savor[ed] of torture or cruelty.”

Contemporary evidence confirms that the people who ratified the Eighth Amendment would have understood it in just this way. Patrick Henry, for one, warned that unless the Constitution was amended to prohibit “cruel and unusual punishments,” Congress would be free to inflict “tortures” and “barbarous” punishments. 3 Debates on the Federal Constitution 447-448 (J. Elliot 2d ed. 1891). Many early commentators likewise described the Eighth Amendment as ruling out “the use of the rack or the stake, or any of those horrid modes of torture devised by human ingenuity for the gratification of fiendish passion.” J. Bayard, A Brief Exposition of the Constitution of the United States 140 (1833); see B. Oliver, The Rights of an American Citizen 186 (1832) (the Eighth Amendment prohibits such “barbarous and cruel punishments” as “[b]reaking on the wheel, flaying alive, rending asunder with horses, … maiming, mutilating and scourging to death”). Justice Story even remarked that he thought the prohibition of cruel and unusual punishments likely “unnecessary” because no “free government” would ever authorize “atrocious” methods of execution like these. 3 J. Story, Commentaries on the Constitution of the United States § 1896, p. 750 (1833).

Consistent with the Constitution’s original understanding, this Court permitted an execution by firing squad while observing that the Eighth Amendment forbade the gruesome methods of execution described by Blackstone “and all others in the same line of unnecessary cruelty.” A few years later, the Court upheld a sentence of death by electrocution while observing that, though electrocution was a new mode of punishment and therefore perhaps could be considered “unusual,” it was not “cruel” in the constitutional sense: “[T]he punishment of death is not cruel, within the meaning of that word as used in the Constitution. [Cruelty] implies … something inhuman and barbarous, something more than the mere extinguishment of life.”

IT IS UNCERTAIN WHETHER A MODERN COURT WOULD PERMIT A SECOND EXECUTION ATTEMPT GIVEN THE EXTREMELY BOTCHED NATURE OF THE FIRST ONE, AND THE ADDITIONAL QUESTION OF WHETHER THE DOUBLE JEOPARDY CLAUSE WOULD ALSO PREVENT IT HAS NOT BEEN DETERMINED BY THE SUPREME COURT IN THIS CONTEXT

There is no question that the factual reality of Christa Pike’s current condition of unconsciousness and disability creates what may be a case of first impression for any reviewing state or federal court. The drug was administered and created physical pain, deformity, and apparently neurological damage. She is now under a disability and unable to communicate or understand the nature of the current proceedings. A guardian will have to be appointed. The Supreme Court has prevented states from executing those considered mentally retarded, and this disability would seem in that classification. The condemned must be aware and understand the nature of the proceedings. It is all but certain that she cannot be put to death in this condition. Seems counterintuitive that she must be declared fit to be put to death. The cases have set forth many hurdles the state of Tennessee will have to clear. Expect filings soon in courts of proper jurisdiction—probably the federal district court on the issues of the Eighth Amendment and the Fifth Amendment Double Jeopardy clause. The Tennessee state courts might be the court of initial resort. It may take years in the absence of immediate action from the Governor in commutation of sentence to get the answers.

Two cases are instructive with many differing facts, however. In Louisiana v. Resweber, 329 U.S. 459 (1947), the Supreme Court considered the case of a condemned prisoner who was given last rites and placed in the electric chair. The executioner pulled the switch, and there was a mechanical failure, but not before permitting some non-lethal dose of electricity to pass through the body of the prisoner, Willie Francis. He was taken from the chair and returned to his cell. The record does not establish that he was rendered unconscious or suffered any real injury from the first failed attempt. Before a second scheduled execution attempt, he filed a suit that wound up before the justices, alleging that the Eighth Amendment and the Double Jeopardy Clause of the Fifth Amendment precluded the second attempt. The majority held that the Eighth Amendment did not preclude a second attempt and that the Fifth Amendment did not preclude the punishment, as it was thought at the time that the Double Jeopardy Clause did not apply to the states. It does, however, and the Supreme Court has never settled the question in this specific context. The Court’s reasoning follows:

Petitioner’s suggestion is that because he once underwent the psychological strain of preparation for electrocution, now to require him to undergo this preparation again subjects him to a lingering or cruel and unusual punishment. Even the fact that petitioner has already been subjected to a current of electricity does not make his subsequent execution any more cruel in the constitutional sense than any other execution. The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely. The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution. There is no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution.

For we see no difference from a constitutional point of view between a new trial for error of law at the instance of the state that results in a death sentence instead of imprisonment for life and an execution that follows a failure of equipment. When an accident, with no suggestion of malevolence, prevents the consummation of a sentence, the state’s subsequent course in the administration of its criminal law is not affected on that account by any requirement of due process under the Fourteenth Amendment. We find no double jeopardy here which can be said to amount to a denial of federal due process in the proposed execution.

In the modern era, the Sixth Circuit Court of Appeals in Broom v. Shoup 963 F 3d 500 (2020) examined the case of the inmate, Romell Broom, who was the subject of a botched execution attempt involving lethal injection. Although the “cocktail” of drugs was different from those administered to Pike, they were never actually administered to Broom because, after several attempts to establish a proper IV pathway through a vein, the execution was aborted because the drugs could not be administered at that time. The record established that during at least an hour in the death chamber, several sites were probed and pierced, and in one instance bone was struck. Broom cried out in pain, according to witnesses, and attending medical staff confirmed that the several attempts to find a suitable site were causing pain and discomfort. Over a period of years, the challenge by Broom to a second attempt went through the state court system in Ohio and was then challenged by use of the habeas process in federal courts. The Sixth Circuit reviewed the procedural record:

Broom’s case then went to the Ohio Supreme Court. In a 4-3 decision, the court held that neither the Eighth Amendment nor the Fifth Amendment barred a second execution attempt. As for Broom’s Eighth Amendment claim, the majority first analyzed the Supreme Court decision in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947)—in which the Supreme Court upheld the constitutionality of a second execution attempt, in the context of a failed electrocution—and then concluded that, “[b]ased on Resweber,” a second execution attempt would not violate the Eighth Amendment here because Ohio’s “intention in carrying out the execution is not to cause unnecessary physical pain or psychological harm, and the pain and emotional trauma Broom already experienced do not equate with the type of torture prohibited by the Eighth Amendment.” The majority also held that, because Ohio had revamped its lethal injection protocol since Broom’s failed execution and because the state had conducted over 20 executions under those revamped protocols (with the federal courts’ approval), Broom had not established that the state was likely to repeat its past errors. Id. at 631-32 (citing Ohio’s public execution database and as for Broom’s Fifth Amendment claim, the majority reasoned that, because the state’s first execution attempt “did not proceed to the point of injection of a lethal drug into the IV line, jeopardy never attached,” and, as a result, a second execution attempt did not implicate “the Fifth Amendment protection against double jeopardy.”

Both the Court of Appeals and the Ohio Supreme Court did not see a constitutional bar to a second attempt at fulfilling the will of the trial judge and jury to implement the sentence of death still permitted under Ohio law:

The Supreme Court has never applied the Double Jeopardy Clause in the particular context of a second execution. Although Willie Francis raised a double jeopardy concern in Resweber, the Court declined to apply the Fifth Amendment Double Jeopardy Clause under then-prevailing precedent. A logical application of the more general Double Jeopardy Clause precedent described above, however, suggests that the Clause does not prohibit a second attempt at execution. This is because, when a capital-punishment state attempts to execute a death-row inmate a second time, following a failed first attempt, the state is neither (1) attempting to subject that defendant to a second trial following an acquittal nor (2) attempting to impose a “second” punishment beyond that permitted by the legislature.

The key differences in the Pike case are:

• The drugs were actually administered after incompetent medical staff either burst insufficient vasculature or bypassed the veins, and the pentobarbital was introduced through muscle and tissue with a slow and differing absorption rate;

• The drugs caused pain, disfigurement, and unconsciousness, requiring hospitalization and a ventilator;

• Witnesses stated that she was aware of the discomfort and experienced pain;

• Was this level of pain and the subsequent disabling effects “punishment” and “torture” so as to trigger both an Eighth Amendment bar to a second procedure as well as a scenario in which jeopardy has attached, also barring a second attempt?

• If the actions of the medical staff were reckless and deliberately indifferent to her medical state of pre-existing vascular insufficiency, would this also preclude any further attempt to carry out the lawful sentence of a jury from 1996?

CONCLUSION

This case will have a wide range of effects on a very significant public policy issue. If certain aggravating factors are established, juries have the option of imposing the death penalty. They know from life experience that inmates who are sentenced to life without parole enjoy the protection of due process and become wards of the state for decades while receiving medical care, educational opportunities, employment, and even the opportunity for marriage. The vileness and shocking nature of many crimes demand that part of sentencing methodology that allows for retribution and permits the sanction of death. Christa Pike committed such acts that were so shocking that a modern jury handed down the first death sentence for a woman in Tennessee in 200 years. Perhaps it was the fact that she had breakfast after a brutal torture murder of her friend with a piece of the victim’s skull while bragging about it. The miscreant is now a martyr.

Mike Imprevento
October 4th, 2026

INTRODUCTION

It seems that big money ensures big access. Amazon, Walmart, and other merchants are rapidly expanding their delivery options to include drone deliveries. They have a handy co-conspirator in the Federal Aviation Administration. Recent FAA regulations and federal law have the sole mission of taking and diminishing the private property rights of landowners and businesses operating in areas which will soon be saturated with overhead nuisances delivering goods by dropping them after overflying private property. Long-standing law establishes that we all have rights to airspace above our property and that a level of persistent interference with these rights that is intrusive is tantamount to taking your property for public use. The Fifth Amendment protects this use as well as state laws and constitutions. These actions can also constitute nuisances and trespasses under state law. The Federal Aviation Administration has arbitrarily determined that airspace up to 400 or more feet over your home is not really yours and has granted an unlawful easement to big retail and perhaps others to overfly your home and impair your ability to exclude them as well as your quiet enjoyment. State nuisance and trespass laws are essentially nullified if not enforced in the courts and in the public square thanks to a Tenth Amendment violating federal power grab that thumbs its nose at personal property rights so Amazon and others can save money. A pilot program in Richardson, Texas, has led to community outrage and documented incidents of intolerable noise and harassing low flights of ungainly drones that are testing existing Texas property use laws in effect decades before the “progress” of commercial drone overflights and the FAA and Amazon lovefest. Richmond is apparently in the mix as a drone hub. While we wrestle with the Fourth Amendment issues presented by saturation uses of FLOCK cameras, we now find that the Amazon drones have cameras to aid in navigation, which can see and record your backyard barbecue. If the government abets this, is that an additional unconstitutional action? This needs to be on your radar, so to speak. Yes—you own the airspace above your home, and this has been the law for decades. Is it worth forfeiting what you pay dearly for to get a delivery of trousers or underwear? No.

EIGHTY YEARS AGO, THE UNITED STATES SUPREME COURT DETERMINED THAT WE OWN SIGNIFICANT AIRSPACE ABOVE OUR PROPERTY, AND INTERFERENCE WITH THESE RIGHTS MAY BE TANTAMOUNT TO A TAKING

In United States v. Causby, 328 U.S. 256 (1946), the Supreme Court considered the case of a farmer who maintained a home and chicken ranch outside of Greensboro, North Carolina. Military aircraft training during World War II led to frequent low-level overflights that created noise and vibration such that the chickens panicked and died flying into the walls of their stalls. The farmer had to stop production and his livelihood as well, and the enjoyment of his homestead was impaired to such an extent that the Court found that his land was taken. Compensation was ordered by the Court of Claims. The Government claimed an unlimited easement over the property. The Supreme Court disagreed:

We have said that the airspace is a public highway. Yet it is obvious that if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise, buildings could not be erected, trees could not be planted, and even fences could not be run. The principle is recognized when the law gives a remedy in case overhanging structures are erected on adjoining land. The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land. The fact that he does not occupy it in a physical sense—by the erection of buildings and the like—is not material. As we have said, the flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it. We would not doubt that if the United States erected an elevated railway over respondents’ land at the precise altitude where its planes now fly, there would be a partial taking, even though none of the supports of the structure rested on the land. The reason is that there would be an intrusion so immediate and direct as to subtract from the owner’s full enjoyment of the property and to limit his exploitation of it. While the owner does not in any physical manner occupy that stratum of airspace or make use of it in the conventional sense, he does use it in somewhat the same sense that space left between buildings for the purpose of light and air is used. The superadjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself. We think that the landowner, as an incident to his ownership, has a claim to it and that invasions of it are in the same category as invasions of the surface.

States have used the Causby doctrine to balance personal property rights with the complexities of modern airspace use. It is the law that we have the rights to the immediate reaches of the enveloping atmosphere of our properties and that we have the right to exclude and the right to enjoy that space. How much of that space is open to question? There is no question, however, that state laws must be enforced and given effect to avoid the all-encompassing pre-emption and usurpation of personal property rights which the apparent FAA/Amazon/Big Retail partnership has unleashed.

VIRGINIA HAS ENACTED SUCH LAWS IN THE CRIMINAL SPHERE, BUT CIVIL ACTIONS ARE VIABLE WITH THE RIGHT FACTS AND INTRUSIONS

Virginia has criminalized certain uses of drones, or Unmanned Aerial Systems (UASs), in certain specific contexts. Although a step in the right direction, the seemingly arbitrary distance of fifty (50) feet of a home for the matter to rise to the level of a Class I misdemeanor does not send the right deterrent message. The following is a short explanation of Virginia UAS-specific laws printed at the Unmanned Safety Institute website for review by UAS operators:

Code § 18.2-121.3—Trespass with an unmanned aircraft system

This is the workhorse statute. Section 18.2-121.3 makes it a Class 1 misdemeanor to knowingly and intentionally cause a UAS to:

• enter the property of another and come within 50 feet of a dwelling house to coerce, intimidate, or harass another person, or after actual notice to desist for any other reason;

• take off or land in violation of FAA Special Security Instructions or UAS Security Sensitive Airspace Restrictions—the state hook the Commonwealth uses to layer prosecution on top of any FRZ or SFRA violation;

• drop any item within the boundaries of, or obtain any videographic or still image of any identifiable inmate or resident at, any state or local correctional facility or juvenile correctional center.

Class 1 misdemeanor in Virginia is up to twelve months in jail and a fine up to $2,500.

The Virginia General Assembly added two new felony tiers in the 2025 session, both effective July 1, 2025 and codified at § 18.2-121.3 (2025 Acts of Assembly, cc. 374, 381, 622—HB 1726 / SB 757 / SB 1272):

• Subsection B—Class 4 felony for unauthorized UAS over critical infrastructure or covered facilities. Knowingly and intentionally, without authorization, causing a UAS to enter the airspace over (i) public services or utilities described in § 18.2-162, (ii) critical infrastructure as defined in 42 U.S.C. § 5195c—including any military base authorized by the U.S. Department of Defense—or (iii) any facility covered by the Maritime Transportation Security Act (46 U.S.C. § 70101). Subsection C carves out consent, federally authorized operators flying lawfully, on-duty employees, and utility / critical-infrastructure / MTSA-facility employees on official business.

• Subsection D—Class 4 felony for contracted-defense-facility imagery. Knowingly, intentionally, and without authorization causing a UAS to enter the property of a contracted defense facility and obtaining or attempting to obtain videographic or still imagery containing controlled technical information (DFARS clause 252.204-7012). Operators and employees of contracted defense facilities receive criminal-prosecution and civil-liability immunity for non-injurious counter-UAS action.

Class 4 felony in Virginia is two to ten years in prison and a fine up to $100,000. The change traces back to the cluster of unidentified drone sightings over Joint Base Langley-Eustis across 17 nights in December 2023, which the Pentagon publicly confirmed and which prompted broader review of Virginia’s federal-facility protections.

Va. Code § 18.2-130.1—Peeping by drone

Section 18.2-130.1 was amended in 2023 to explicitly name unmanned aircraft systems. It is a Class 1 misdemeanor to knowingly and intentionally cause a UAS to secretly or furtively peep or spy, or attempt to peep or spy, into or through a window, door, or other aperture of any building occupied or intended for occupancy as a dwelling, where the conduct would violate the occupant’s reasonable expectation of privacy. The traditional Peeping Tom statute at § 18.2-130 still applies independently.

There is a carve-out for lawful criminal investigations. Practical effect: drone operators who film into fenced backyards, bedroom windows, or hotel-room balconies face the same exposure as a person with a long-lens camera on foot.

VIRGINIA’S PUBLIC POLICY FAVORS THE USE AND ENJOYMENT OF PROPERTY AND HAS LONG-STANDING NUISANCE AND TRESPASS JURISPRUDENCE

The Virginia Supreme Court has distilled, in a long line of cases, distinct doctrines of nuisance and trespass, which may provide a remedy to a landowner who has experienced an intrusion by drone and perhaps a pattern of overflights that present a nuisance and/or a trespass.

TRESPASS

“A trespass is an unauthorized entry onto property which results in interference with the property owner’s possessory interest therein.” 5 Richard R. Powell, The Law of Real Property ¶ 707 (Patrick J. Rohan ed., 1994). Thus, in order to maintain a cause of action for trespass to land, the plaintiff must have had possession of the land, either actual or constructive, at the time the trespass was committed. Blackford v. Rogers, 2 Va.Dec. 292, 294, 23 S.E. 896, 897 (1896).

In addition, to recover for trespass to land, a plaintiff must prove an invasion that interfered with the right of exclusive possession of the land, and that was a direct result of some act committed by the defendant. Any physical entry upon the surface of the land constitutes such an invasion, whether the entry is “a walking upon it, flooding it with water, casting objects upon it, or otherwise.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 13, at 70 (5th ed. 1984).

NUISANCE

When a business enterprise, even though lawful, becomes obnoxious to occupants of neighboring dwellings and renders enjoyment of the structures uncomfortable by virtue of, for example, smoke, cinders, dust, noise, offensive odors, or noxious gases, the operation of such business is a nuisance. The term `nuisance’ includes `everything that endangers life or health or obstructs the reasonable and comfortable use of property.’.

The phrase `use and enjoyment of land’ is broad. It comprehends the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land. Freedom from discomfort and annoyance while using land, which inevitably involves an element of personal tastes and sensibilities, is often as important to a person as freedom from physical interruption with use of the land itself. The discomfort and annoyance must, however, be significant and of a kind that would be suffered by a normal person in the community.

It would be of no defense for Amazon to state that it had a lawful permit to engage in the activity if such activity in fact became obnoxious regarding noise or simply repeated flights over your home at times that created interferences and distractions. We still have not had full disclosure on what types of on-board cameras record the path of the drone and any intrusions into protected places over which there is an expectation of privacy. The drone operator sees all in the path of the drone. These are not government actors but have been enabled by government action. These issues are ripe for testing and challenge, as it appears Amazon has a green light to unleash this menace on all of us. Wal-Mart, DoorDash, and others will follow suit and turn our tranquil spaces into a new and obnoxious form of commerce.

CONCLUSION

The power of the Big Retail lobby has led to FAA complicity in the diminution of your personal property rights. Whether a pattern of intrusions and overflights are tantamount to a taking, a nuisance, or a trespass under state common law is very fact-specific. We must ask the same questions of these commercial drone operators that we ask of data center operators and FLOCK camera providers and users. Engagement in local and state lawmaking and public hearings is a must. You need to know these things. Not all so-called advancements are progress.

Mike Imprevento
September 28th, 2026

INTRODUCTION

It is universally accepted that many Presidents have had a long history of distrust and scorn for the press generally. George Washington faced severe criticism over his foreign policy toward France, and he made his disdain for the press known. Thomas Jefferson outright accused the press of publishing purposeful falsehoods during a period of no-holds-barred personal and political attacks that make today’s coverage seem tame. In the modern era, Nixon skirted the law to join issue with what he deemed irresponsible journalism sounding in attacks on his war policies. Obama arrested and harassed journalists using espionage laws to chill coverage of his foreign policies and war powers. Nixon banned the Washington Post from briefings over the Watergate coverage, and Obama was known to also have banned Fox and others from Air Force One. Obama declared Fox News “illegitimate.” None of this, however, would seem to justify, on the current facts, President Trump’s order banning MS NOW, CNN, and POLITICO from the Brady Press Room and the confiscation of their press credentials, issued after a vetting process that has been in place for years. Modern jurisprudence interpreting the First Amendment’s protections would, most probably, define the action as government censorship sounding in prohibited viewpoint discrimination in that specific space in the White House. I will distill the law below. These actions will give these outlets, which are merely mouthpieces for the DNC and anything that opposes Trump and his policies, a platform in the courts and the press that will only backfire on the Administration. The current press corps is, in large part, comprised of amateurs who are ill advised and ill informed. They are political hacks who care not about truly effective policies that have positively affected the economy and the safety of our society. The best way to handle this is to join issue with and defeat them by seizing the informational high ground and relentless messaging. Merely defining these outlets as “fake news” may resonate with elements of his base, but Trump will have a difficult time defending this in the judiciary unless his team can convince a reviewing court that his Article II authority permits exclusion to spaces like Air Force One, The Oval Office, and similar spaces, which may well be nonpublic, not open, and not subject to First Amendment scrutiny. Non-public open spaces like the Brady Press Room have been the subject of previous rulings which would not support the blanket ban issued last week.

THE LAW

The President is, pursuant to Article II of the Constitution, the Executive Branch. He acts through his appointed officers as well as others not subject to the Advise and Consent role of the Senate. His ban is certainly government action that implicates First Amendment strict scrutiny. He is a branch of the federal government. The in-person dynamic of the Press Room has evolved into an important crucible wherein information is gathered, and issue is joined on myriad issues of public concern. It has been seen by at least one court as a nonpublic, yet open forum, which has triggered First Amendment strict scrutiny. Other spaces do not enjoy such protection. The case is discussed below and attached for reference.

The First Amendment is clear:

“Congress shall make no law … abridging the freedom of speech, or of the press,”

The so-called “Press Clause” does not seem to confer additional protections on the press, writ large in the context of publishing or expression. In the landmark case of New York Times v. Sullivan 376 U.S. 254 (1964), however, the Supreme Court set forth the oft-cited standard for defamation applicable to the press in the face of a First Amendment defense. To sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate. In the case of a true public figure, malice must be shown. The United States Supreme Court has set forth how such action by President Trump may be received as follows in the factual scenario of censorship or a ban like that currently issued. The press would be treated as any entity or individual when measured against where the expression would take place to determine whether it is subject to First Amendment protection. This is complicated in the context of the White House and associated spaces and places.

It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972). Other principles follow from this precept. In the realm of private speech or expression, government regulation may not favor one speaker over another. Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 804 (1984). Discrimination against speech because of its message is presumed to be unconstitutional. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 641-643 (1994). These rules informed our determination that the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression. Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 829*829 115 (1991). When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. See R. A. V. v. St. Paul, 505 U. S. 377, 391 (1992). Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction. See Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 46 (1983).

The question will involve an analysis of those areas which are considered open to the public debate or those for which the President reserves authority to exclude. The case discussed below is a mixed bag that would seem to protect the Press Room from viewpoint exclusion.

THE ADMINISTRATION WILL ARGUE EXECUTIVE PRIVILEGE AND POLITICAL QUESTION—HOWEVER, ASSOCIATED PRESS V. BUDOVICH DELIVERED A MIXED RESULT FOR NOW

In February of 2025, the White House barred AP reporters from White House and associated places, including the Oval Office, Air Force One, Mar a Lago, and the East Room. The AP sued, and the District Court granted a preliminary injunction based upon prohibited viewpoint discrimination. The White House press team had contended that the AP had failed to list or recognize the Gulf of America Executive Order of the President in its coverage and the “Style Guide.” The District of Columbia Court of Appeals declined to uphold the preliminary injunction as to those spaces over which the President retained executive authority to exclude and determine who to grant access to. The case is attached HERE for review. The spaces for which the White House exclusion was upheld, at least with respect to the lifting of the injunction, were the Oval Office, Air Force One, Mar a Lago, and similar spaces. The injunction was upheld with respect to the East Room, which was traditionally unlike the other traditional nonpublic spaces. However, the appellate court expressly singled out the Brady Briefing Room as a traditionally open forum subject to the First Amendment. It reaffirmed an earlier ruling that expressed this forum-based analysis:

Reporters and photographers have long been permitted access to the White House complex to cover the President and his administration. The White House manages access by requiring journalists to obtain a press credential called a hard pass. More than one thousand journalists hold hard passes, through which they may access spaces such as the James S. Brady Briefing Room, where the White House Press Secretary delivers regular briefings. Hard pass holders may also sign up via a reservation system to attend larger events hosted in the East Room, which is often used for meetings with foreign leaders, executive order signings, and press conferences because the White House has opened these press facilities “to all bona fide Washington-based journalists,” hard passes may not be denied arbitrarily or based on the content of a journalist’s speech. Sherrill v. Knight, 569 F.2d 124, 129–30 (D.C. Cir. 1977)

Other spaces would not be subject to the traditional First Amendment scrutiny:

We conclude that the preliminary injunction intrudes on the independence of the Executive Branch and burdens the President’s exercise of core executive powers, and these harms warrant a stay with respect to the Oval Office, Air Force One, Mar-a-Lago, and other similar spaces.

The Associated Press retains the ability to utilize the Brady Press Room at the heart of the current action of the Administration. The matter awaits a decision on the full appeal with the partial stay in place. It is not yet ripe for a Supreme Court appeal, which will certainly be granted.

In the current factual scenario, it appears that although many outlets remain that do not share the political policies of the Administration, there nonetheless has been an arbitrary exclusion of long-standing credentialed outlets on the basis that they represent “fake news.” This is presumptive viewpoint discrimination. The President retains the ability to exclude from the traditionally nonpublic spaces that were discussed above.

CONCLUSION

Our Republic has as its foundation a Constitution, which includes a Bill of Rights deemed essential by many Founders to its ultimate ratification. The First Amendment’s unqualified command is clear and well defined through centuries of jurisprudence. We await the details of any Executive Order or other command that sets forth the details which may justify such drastic action. Frankly, the better path is to win the day with the superior argument and the factual high ground. That is what press secretaries are for. The Administration will urge Executive authority to exclude from those areas over which he retains the ability to invite and for which there is no tradition of being a nonpublic open forum. He will lose the issue when it comes to the Press Room.

Mike Imprevento
September 23rd, 2026

SEPTEMBER 14TH, 2026

Greetings, dead guy,

I am an American and a veteran of both military and law enforcement service. I write this over 25 years after you sought to wage war on the greatest Republic in world history by sending some of your jihadist Saudi crew to fly hijacked planes into symbols of American economic prosperity and military might. Some of your cowards were thwarted in your mission to destroy the Capitol or the White House when determined Americans ensured that the flight would never get there. You underestimated us in every way. You lost.

It appears that while you were on the run or perhaps before, you caused to be distributed a “Letter to America” in November 2002, which I attach HERE in case you forgot what you said. Perhaps the three 5.56 rounds that a SEAL operator put into your head had this effect. I digress. It would be some time until May of 2011 when we caught up to you in your Pakistani-provided retirement villa in Abbottabad, and you were apprehended with the previously described deadly force and extreme prejudice. Indeed, the bravery of that caliber of operators and all members of the United States military have ensured through post-2001 history that your mission would fail.

In your letter you pose two questions. With the first, you attempt to justify your barbarity by stating that it is punishment for our support of Israel and a response to attacks by the United States on your Al Qaeda proxies and other assorted terrorists. Using the twisted logic of your theocratic and autocratic rigidity, you posit that innocents, including the scores of Muslims you killed on September 11th, 2001, and attempted to kill in 1993 and beyond, are proper targets, simply because they were American. With the second, you condemned our nation as “immoral” and said that Americans must be “called to Islam,” which is the “only true religion,” and to adopt the Sharia principles that you killed in the name of—you said:

“You are the nation who, rather than ruling by the Shariah of Allah in its Constitution and Laws, choose to invent your own laws as you will and desire. You separate religion from your policies, contradicting the pure nature which affirms Absolute Authority to the Lord and your Creator.“

We declined your invitation. At least most of us.

Perhaps before you sealed your own fate and the fate of your Al Qaeda proxies, you should have devoted time to an understanding of the principles that led to the creation of our Republic. You failed to discover the reasons why we must continue to decline your invitation by always joining issue with the barbarity and rigidly theocratic underpinnings of that brand of Islamism that we continue to resist and dismantle wherever it threatens us. You didn’t live to see how your like-minded brothers in the Iranian Revolutionary Guard cling precariously to power as their ability to bring about an identical barbaric caliphate in the Middle East is dying with them as we dismantle their means to bring it about systematically. Israel is exponentially stronger now, and you must certainly know it is going nowhere. You and your dream are still dead. Israel is very much alive. The Palestinians you champion thought it was a good idea to slaughter innocents in Southern Israel on October 7th, 2023, simply because they were Jews. They celebrated the slaughter as they welcomed home their Hamas sons. This did not end well for them or their now deceased sons.

You see, in this country long ago, when your ancestors were living in a disjointed mosaic of tribal areas and ruled loosely by a primitive religious reformer, our Founders adopted principles that elevated the individual over the collective and forged a social compact, rooted in freedom, that has endured for 250 years. The Enlightenment propelled Western civilization into an era of prosperity and an understanding of the power of the individual. The most valuable inventions in human history sprouted from an era of the pursuit of happiness and the innovations that followed. Your Taliban still live in the Stone Age. You only know the power of the imam and the cradle-to-grave rigidity that has condemned you and your followers to irrelevance and chaos. Our Founders understood that autocracy and tyranny, the foundation of your Sharia-designed governance of blind submissives, were contrary to the natural order of man. We understand the concept of consent of the governed through democracy and regular elections. We fracture power and create dual sovereigns under a federalism framework. Our Bill of Rights guarantees religious plurality, while your cronies killed and tortured those who embraced other belief systems. We rejected the establishment of a state religion and govern on a secular model. You call us immoral while you advocate for brutal punishments that would never survive our carefully crafted system of due process and rejection of the very cruel and unusual punishments that you would have us dispense. You accused us of mistreatment of women when your Taliban protectors and acolytes all over the Middle East relegate women to mere property and the cruel bonds of your religious design. They are beaten and foreclosed from true participation in the economic engines that elevate more progressive countries. Your condemnation of our morals seemed somewhat hypocritical as DEVGRU SEALS brought back your porn collection. Whoops. I also won’t belabor the little boys groomed to satisfy many men in your previous hideout—Afghanistan. Something about stones and glass houses, dead guy.

You may have enjoyed a recent brief resurgence in interest in your nonsensical rambling by a cadre of Hamas-loving young people here who are antisemitic and do not care to understand that you would hate and kill them too. I suspect that if you weren’t dead in your waterlogged submerged bag filled with surprises from the sailors who buried you at sea that you wouldn’t host a “Queers for Palestine” soiree. Just a guess. The Democratic Socialists of America read the first part of your letter and are all in. I suspect that with time they will be all out. We will see.

In closing, I will emphasize that you and your acolytes will never see the destruction of our Republic or the dismantling of the First Amendment and the religious pluralism that was created by men far wiser than you. They died natural deaths. We will never displace our system of laws with Sharia, and we will continue to lead the world in innovation and military technology and use both to ensure that we remain free from the yoke of what you thought you could foist on us at home and abroad.

Sincerely,
Mike Imprevento
An American

^{JTF Guantanamo photo by Navy Petty Officer 1st Class Michael Billings}

THE COLE BOMBERS AND A KEY 9/11 CONSPIRATOR HAVE NOT BEEN TRIED—POLITICS AND INCOMPETENCE HAVE ADDED UP TO A NATIONAL DISGRACE

INTRODUCTION AND BACKGROUND—Politics Destroys Justice

We are about to see another solemn anniversary of the horrific jihadi-inspired attack on the World Trade Center, and in October we will see twenty-six (26) years since the USS Cole attack in port in Yemen. In 2003 Khalid Shaikh Mohammad was arrested in Pakistan and taken to the United States because of his complicity in the 9/11 attacks, and by the end of 2000, one of the Cole conspirators, Abdul al-Nashiri, was taken into custody. Both have languished in Guantanamo Bay since. Bush wanted them tried in military commissions, Obama got elected and stopped the trials, they started again, they were interrupted by appeals and writs, and during the 2024 election cycle, controversial pre-trial agreements, which would have taken the death sentence off of the table, were pulled back by then Secretary of Defense, the absent, Lloyd Austin, after public outrage. Appeals on the issue ensued, and we are still without any trials for these terrorists. Late last week we now find out that the sitting military judge has ruled that confessions by Khalid Mohammad (KSM) were the result of torture and are not admissible at his trial, which is set for 2028!!! Years of what?? Some background follows.

Congress passed the Military Commissions Act of 2006 after the United States Supreme Court in Hamdan v. Rumsfeld (548 U.S. 557, 2006) upheld a challenge by an enemy combatant to President Bush’s executive order, which created the military tribunals, ruling that such actions must come from Congress. Enter Barack Obama in the run-up to the 2008 election, who embraced the erroneous Clintonian policy that these acts of terror (acts of war to foment jihad) were law enforcement and not military issues, and he vowed to end the commissions, close Guantanamo, and try these people in civilian federal courts. Music to the ears of his base, who harbored sympathy for jihadis determined to wage war on the West. Neither Obama nor Clinton had any notion of the vagaries of the battlefield, as well as having zero military background. Neither appreciated nor credited the difficult evidentiary issues involved nor the classified information that would be compromised given civilian evidentiary rules and the clear fact that these persons were not run-of-the-mill federal criminals—they were waging war on the United States and the West. They declared religious war against Jews and Christians. The Commissions and the manner of trying these animals were on the national stage during the 2008 election cycle, with Obama opposed to military tribunals for those detained and arrested, insisting that federal criminal trials in New York were the better choice.

On 11 February 2008, Khalid and other accused were facing almost 3000 counts of murder, terrorism, material support for terrorism, and plane hijacking for their involvement in the 9/11 attacks. The trial began before a military tribunal on 5 June 2008, but charges were dropped by the Pentagon on 21 January 2010. Thanks, Obama. The charges were to be later refiled in a military commission-controlled tribunal but not until 2011, 8 years after his arrest and with many delays to follow.

After his election, President Obama indeed made good on this promise and announced that the Justice Department would prosecute Khalid Sheik Mohammad, the self-admitted mastermind of the 9/11 attacks, and his co-conspirators in federal civilian courts. This, of course, resulted from the naked politics of simply reversing the Bush-era policies and creating the false assertion that these miscreants had the same trial due process rights as a citizen tried for a crime in civilian federal courts. There was immediate political and practical backlash in New York, which was still reeling from the barbaric 9/11 attack and facing security issues as well as the notion that these people were not entitled to the full panoply of due process protections a citizen would enjoy. Congress rebelled and refused to fund any transfers from Guantanamo to the United States, but more politics would come into play.

At a minimum, Fourteenth Amendment due process protections are not available to Guantanamo Bay detainees, and it is an open question regarding whether there are any such constitutional due process protections outside of those set forth in the rules applicable to military commissions.

Congress pushed back on Obama’s dual purpose of closing Guantanamo and having civilian trials. However, it caved to the Obama Administration’s insistence that additional due process protections be baked in. The result was the Military Commissions Act of 2009, 10 U.S.C. Section 948(a), which authorized Military Commissions to try any “unprivileged enemy belligerent,” which included those who engaged in hostilities against the United States or were a part of Al Qaeda at the time of the offense. Evidentiary rules were tweaked, and statements taken as the result of inhumane treatment could not be utilized. This is legally and morally correct, but the tribunals may consider statements made under circumstances that would certainly lead to exclusion in a civilian court. 10 U.S.C. 948r prohibits the use of statements which result from torture but permits the military court to look at the totality of the circumstances of such a statement and how it was obtained. The same is true for physical evidence that may not have a tight chain of custody. Operators do not normally carry evidence vouchers. We do not Mirandize enemy alien war criminals. You get the picture. The National Defense Authorization Act was passed in January 2011 and barred future trials of similarly classified enemy belligerents in a civilian court. KSM was charged in the military tribunal after Obama’s meddling in 2012. Crickets since, except for KSM and his lawyers and al-Nashiri and his lawyers, using every device available to delay and take advantage of our procedural rules and policy of fairness. They deserve the death penalty. They may never see this justice. Security and classified information concerns led to violations of attorney client privileges and meddling by the feds into trial prep and attorney meetings. Judges were relieved. Counsel resigned. A mess with no oversight or common sense of purpose. The American people suffered from this collective malpractice. They still do.

KSM WAS FORMALLY CHARGED IN 2012 WITH HORRIFIC CRIMES AND WILL NOT SEE A PROCEEDING UNTIL 2028—THERE IS NO EXCUSE

When Secretary of Defense Lloyd Austin pulled back the pretrial agreements negotiated with the Commission convening authority, there was an immediate uproar from defense counsel for KSM and others. Austin had been asleep and allowed his convening authority to deal the cases away with zero oversight. By August 2024, when this circus was in full three-ring mode, the politics were not lost on Kamala Harris, who had just engineered a coup to get rid of Biden, who hadn’t realized where he was and if he was still alive. Her campaign quietly agreed with the PTAs, but the politics were toxic. The government giving away the death sentence and providing room and board to these cretins for the rest of their lives was widely criticized. Austin pulled them back, and more appeals ensued. More delay.

Now after pretrial motions, at least the KSM case may have taken a hit due to a ruling that the statements are not admissible. There will be government appeals now. No word on the Cole bomber’s status. Secretary of War Hegseth owes all of us a full status report and a plan now and a path forward. Command influence is not permitted, but there is a fine line between a command directive to move forward and improper influence. I believe these rulings, at least in KSM’s case, are directed toward forcing the government to again deal the cases with the death penalty off the table. Not a palatable result for any non-DSA member or ACLU life donor. We may be in that position if his many statements cannot be used and his collaborators and coconspirators have been killed or have died. Justice delayed is justice denied. Have we engineered our way into seeing him released? Will he be acquitted? Unthinkable but political meddling and incompetence may have led to that.

CONCLUSION

War criminals do not see decades of delay to their procedural benefit. The unthinkable is happening, as we see two and a half decades since the worst terrorist attack in our history. KSM and al-Nashiri are guilty and need to be put to death. It frankly would have been better to kill them ala Bin Laden rather than take them here for trial. We have folks who can do that. Never again should we allow those who attack us to benefit from our procedural largesse. Apply Rule 5.56 in connection with apprehensions by deadly force. No appeals follow.

Mike Imprevento
August 30, 2026

INTRODUCTION

Millions of Americans and people around the world are focused on a case being tried in Plymouth, Massachusetts to a jury. The defendant, Lindsay Clancy, is charged with three (3) counts of first-degree murder. She was a labor and delivery nurse at a respected hospital, and she had no criminal past. There was no boyfriend, no desire for another life ala Susan Smith, or any other motive. What sets this case apart is the horrific reality that she is charged with the murder of her three children, aged 5, 3, and 8 months. The prosecution contends that the murders were methodical and planned. The defendant, they contend, sent her husband out to get takeout food and to fill a prescription for one of the children. During his absence, she strangled the children, one by one, which took some time, and then she tried to commit suicide by exiting the second-story window after slitting her wrists and, allegedly, her throat. She sustained injuries after landing on frozen ground, which left her partially paralyzed from fractures of her cervical and thoracic vertebrae.

The defense, in contrast, does not dispute that she killed her children but has interposed a rarely utilized defense in criminal law—the insanity defense—which sounds in a severe form of postpartum depression known as postpartum psychosis. Her counsel contends, with evidence, that up until that horrific day she was a doting and loving mother who, in the months before the January 24th, 2023, homicides, had multiple treatments for suicidal ideation as well as intrusive thoughts of harming the children. The defense has presented evidence that there were thirty (30) prescriptions for at least thirteen (13) medications which were prescribed by health care professionals who were acting in a negligent manner and exacerbating her issues by throwing pills and methods at the defendant that simply enhanced her symptoms and made them worse. She had committed herself to a mental hospital and had called suicide hotlines. These “professionals” worked at cross purposes and without a review of such medications or a coordination of treatments. The defendant’s family has confirmed her pleas for help and the many attempts at treatment.

The case has devolved into a battle of experts. The defense experts have stated that the defendant suffered a psychotic episode at the time of the killings and that she had no ability to appreciate the criminal or moral consequences of her actions. The Massachusetts law in play will be discussed in detail below. The prosecution’s witnesses have testified that there was no such episode, and no diagnosis of any psychosis is present in any record. They contend that the methodical nature of the act shows planning and awareness that is inconsistent with a lack of capacity to conform her conduct to the law.

The public is, of course, divided over such a defense in the face of dead children. The very nature and effect of an insanity defense has been long debated by courts and legislatures struggling to find a balance between the protection of society and the realization that some accused of crime have mental diseases that block the capacity to discern right from wrong. Public outrage over previous publicized cases has led to both Congress and state legislatures refining the law regarding such pleas in the face of acquittals. These initiatives have limited the scope of the defense. Most states, except Massachusetts, place the burden on the defendant to prove lack of capacity. I will discuss some history below in two cases that have shaped the modern law.

Criminal law, it has been said, is an expression of the moral sense of the community. The fact that the law has, for centuries, regarded certain wrongdoers as improper subjects for punishment is a testament to the extent to which that moral sense has developed. Thus, society has recognized over the years that none of the three asserted purposes of the criminal law—rehabilitation, deterrence, and retribution—are satisfied when the truly irresponsible, those who lack substantial capacity to control their actions, are punished in accordance with traditional criminal penalties. Those rare defendants who are found by the trier of fact to be innocent on the basis of such a defense are not subject to prison or that form of punishment but are remanded to secure facilities for long-term treatment in a lockdown environment. Many have been there for years. That is where Lindsay Clancy will go if found not guilty under the applicable Massachusetts standard for such mental disease or defect. She will more likely commit suicide wherever she is sent, and even her defense experts have stated that this is an inevitability. She will provide her own form of justice.

A BIT OF HISTORY—TWO HIGH-PROFILE DEFENDANTS IN DIFFERENT CENTURIES DID MUCH TO SHAPE MODERN LAW: DANIEL MCNAUGHTON (aka M’NAGHTEN) AND JOHN HINCKLEY

In 1843, a Scottish woodworker named Daniel McNaughton armed himself and lay in wait outside of the residence of the Tory Prime Minister Sir Robert Peel. McNaughton suffered from a mental illness that caused him to experience paranoid delusions. He thought the Catholic priests and the Tories conspired against him. His delusions caused him to believe that Tory spies were following him and had conspired to kill him. His response was to kill Sir Peel. He followed a man who he thought was Sir Peel and shot him dead. However, the man he killed was Peel’s secretary Edward Drummond. McNaughton was arrested and charged with murder. He restated his delusions to the constables, and his defense counsel entered an insanity plea. Crown experts confirmed these delusions, and even the Crown Solicitor agreed. He was acquitted and was nonetheless institutionalized for life.

The Queen of England and the public writ large were outraged at the verdict. This was a tumultuous time, and many in government and the monarchy were targeted. The Queen ordered the House of Lords to assemble prominent jurists to come up with a definitive test for insanity or mental disease that would relieve a defendant from criminal responsibility. What emerged has come to be known as the M’Naghten test:

“Every man is to be presumed to be sane, and … that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of mind, and not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.”

Many states, including Virginia, use some version of this test, but the modern rule places the burden of proof of these factors on the defendant, not the prosecution. It is rarely used and is most often unsuccessful. Idaho, Montana, Utah, and Kansas do not recognize the “insanity” defense in this form but do have a procedure for finding the defendant “Guilty but Insane.” The same result obtains—institutional commitment—but the procedural use of mental incapacity is to negate the criminal intent necessary for conviction.

Fast forward 138 years or so to the case of John Hinckley. This moron was obsessed with actress Jodie Foster, who was a key part of the movie Taxi Driver, a 1976 film by Martin Scorsese set in New York City. Robert DeNiro played Travis Bickle, a Marine veteran who drives a cab and is himself obsessed with protecting Foster’s character, a child prostitute, from her pimp played by Harvey Keitel. Bickle kills the pimp and is hailed as a hero even though he also almost killed a presidential candidate but was scared off by an alert Secret Service agent. Hinckley harbored delusions that if he killed President Ronald Reagan, he would impress Foster. He positioned himself outside of the Washington Hilton Hotel in the District of Columbia on March 30th, 1981, and armed himself with a German Rohm .22 cal revolver. He inexplicably got close enough to spray the rounds in the direction of the President who was being escorted into his limousine. One of the rounds struck the President, who nearly died from a wound in the lung, and paralyzed Press Secretary James Brady, who suffered for life and died in 2014 as the result of these injuries. Hinckley was not charged even though the Medical Examiner ruled his death years later as a homicide. Rounds also struck Secret Service agent Timothy McCarthy and DC Metro police officer Thomas Delahanty. They recovered.

Hinckley’s defense pled insanity based upon these delusions, and Hinckley was acquitted. To say that the public was outraged is a vast understatement. Within a month after the verdict and while Hinckley started a thirty (30) year stint in a mental hospital, Congress passed the Insanity Defense Reform Act of 1984, which was signed into law by President Reagan himself. It changed the applicable Model Penal Code standard used in the Hinckley trial, which stated:

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law.

Congress, in the Reform Act, changed the burden of proof from the prosecution to the defense and made it more difficult to prove mental disease or defect, now requiring a “serious” mental defect.

Hinckley got away with murder and criminal responsibility. He was declared competent in 2016 and in 2022 was released from all supervision. He lives in Virginia. He was not tried as the result of Brady’s death from the gunshot wounds. He plays the guitar, and nobody cares.

MASSACHUSETTS HAS RETAINED THE DEFENSE-FRIENDLY STANDARD AND PLACES THE BURDEN OF PROOF ON THE COMMONWEALTH TO NEGATE THE MENTAL DISEASE OR DEFECT DEFENSE

The highest court in Massachusetts in 1967 set forth a test that has been distilled into a jury instruction that will be given to the jury in the Clancy case. It places the highest burden of beyond a reasonable doubt on the Commonwealth to prove that Clancy’s claimed mental disease did not exist or, if it did exist at the time of the crimes, did not prevent her from conforming to the law. As late as March 2026, the Massachusetts Supreme Judicial Court approved the following Model Jury Instruction:

Criminal responsibility is a legal term. A person is not criminally responsible for his conduct if he has a mental disease or defect, and, as a result of that mental disease or defect, lacks the substantial capacity either to appreciate the criminality or wrongfulness of his conduct or to conform his conduct to the requirements of the law. If the Commonwealth has proved to you beyond a reasonable doubt that the defendant was not suffering from a mental disease or defect at the time of the killing, the Commonwealth has satisfied its burden of proving that the defendant was criminally responsible.

If the Commonwealth has not proved to you beyond a reasonable doubt that the defendant was not suffering from a mental disease or defect at the time of the killing, then you must consider whether, as a result of a mental disease or defect, the defendant lacked the substantial capacity either to appreciate the criminality or wrongfulness of his conduct or to conform his conduct to the requirements of the law. To establish that the defendant had the substantial capacity to conform his conduct to the requirements of the law, the Commonwealth must prove beyond a reasonable doubt that any mental disease or defect that may have existed did not deprive the defendant of his ability to behave as the law requires, that is, to obey the law. The word “appreciate” means to understand rather than merely to know. “Criminality” means the legal significance of conduct; “wrongfulness” means the moral significance. The Commonwealth must prove that the defendant knew and understood that his conduct was illegal or that it was wrong. It is not enough for the Commonwealth to show that the defendant merely knew or was intellectually aware that his conduct was illegal or wrong; rather, the Commonwealth must prove beyond a reasonable doubt that a mental disease or defect did not deprive the defendant of a meaningful understanding of the legal or moral significance of his conduct. The defendant must have been able to realize, in some meaningful way, that his conduct was illegal or wrong…

The battle of the experts continues with the Commonwealth rebuttal case on Monday, August 24th. Defense counsel Kevin Reddington has utilized the liberal Massachusetts standard to good effect in previous cases, and he has shown great skill in cross-examining the prosecution experts and in presenting his own expert team. I taught trial advocacy at William and Mary Law School, and I admire the zeal and skill with which he represents his client in a difficult and controversial case. I have learned from him.

CONCLUSION

If Lindsay Clancy was suicidal, as has been established, and sought to take her children into “heaven” or “with God” with her, as she has been quoted as saying, is this an act of planning and cognition, or is it part of a delusional psychotic episode that deprived an otherwise good mother of any ability to discern illegality or wrongfulness? Did she feel that if she were gone, no one else should have her children, and, if so, is this methodical thinking that was part of her suicide plan, with the children drawn into this selfish vortex? This jury has a Herculean task ahead to sift through hundreds of pages of medical records and crime scene evidence as well as to recall the testimony of nearly one hundred witnesses. Emotions are high as many women see such a crime as unthinkable even in the face of severe depression, yet many all over the country see a failure of a mental health system and her treaters as unindicted co-conspirators in this tragedy. In any event, we will again, as a society, react to such cases, and we hope that awareness and hypervigilance by families and the health care industry will allow more transparency so mothers can come forward and not be vilified or lose their children. We give mental illness and treatment short shrift, and we need to do better whatever the outcome of this horror story.