NANCY GREENE BLOG

I have to thank the Stuff You Missed in History Podcast for reminding me about this one, They recently rebroadcast a show about Albert J. Tirrell’s murder trial – the first time in America the Sleepwalking Defense was used. You can listen to that podcast here if you want more details about the case than I’m going to go into.

Let me take a step back for a second. Tirrell was accused of the violent murder of his mistress on October 27, 1845. He was seen with her earlier in the day, and bought a ticket out of town that evening. When the case came to trial, his defense was that he didn’t kill her, but if he did he was sleepwalking and not responsible for the crime. The case against him was very circumstantial. Remember crime scene investigations, finger printing and lots of other investigative tools we take for granted now just didn’t exist. Had they, the government likely would have gotten finger prints off the bloody knife left near the body. Anyway, the jury acquitted. They said that the sleepwalking defense played no part in their decision to find him not guilty. But, the sleepwalking defense was born.

Curious, I searched the term “sleepwalking defense” on a service that collates legal cases from all over the United States. As of September 21, 2017, there were 132 cases (44 Federal and 88 state) where the words “sleepwalking” and “defense” were in the same paragraph; 28 cases (8 Federal and 20 state) where the phrase “sleepwalking defense” was used. All 28 cases were violent crimes (murder or sexual assault). A Google search of the term revealed a June, 2017 case (!) from New York where a man was acquitted of sexually assaulting his friend’s girlfriend while she slept in 2015 because he was “sleepwalking.”

How could this defense possibly work?

Sleepwalking is an altered state of unconsciousness where parts of the brain remain asleep but the person can still act. Sleepwalkers can get violent because the part of the brain that regulates conduct is still sleeping.  Crazy weird but true.

Individuals with Lewey Body Dementia don’t get the “I’m sleeping” cut off signal from the brain. I’ve watched my Dad, who was diagnosed with the disease in 2012, fall asleep in the car while we waited for my Mom to pick the ham up from the Honeybaked Ham store, unwrap an “imaginary” sandwich and eat it. See, before my Mom went into the store she asked him if she should bring him a ham sandwich. He said, “yes.” He fell asleep in the car while we waited for her to get through the pre-Easter line. And his brain translated this conversation into “eating” that sandwich (including biting into it, chewing and swallowing) while he was asleep. Weirder still, he was “full” when he woke up and she offered him the actual sandwich. This sort of sleep disorder is a hallmark of Lewey Body Dementia.

In 2005, the Delaware Court stated “that sombolisim can be recognized as a defense to most criminal acts” in State v. Cabrera, 891 A.2d 1066. Many crimes require the accused intend the criminal conduct. If you pass out and are unconscious when you stumble into someone, you’re generally not guilty of assault. “Generally” because if you are “unconscious” because of something you did  like drink too much then the defense doesn’t apply. If the crime requires “intent” like a murder or sexual offense, then there’s an argument that the defendant wasn’t “conscious” and couldn’t have intended the conduct.  Some states treat sleepwalking like insanity, in other words, the person didn’t know or understand they were doing wrong. Others treat sleepwalking as a form of unconsciousness. Still other courts don’t think the medical community has  accepted the phenomenon to the point where the Court can except it as evidence.

But, as science progresses this seemingly crazy defense might actually get more traction. Until then, I thought I should note that in the vast majority of the cases I read on this defense, the defendant was still convicted.