INTRODUCTION

People v. Casassa,[1] decided by the New York Court of Appeals in 1980, has become part of the criminal-law “canon.” Reproduced in criminal law casebooks,[2] the law applied in the case illustrates the contrast between the “old” common-law “heat of passion” doctrine and the Model Penal Code’s “modern” remake (known as “extreme mental or emotional disturbance”) of that old doctrine.[3] The facts described in the case, according to many feminist scholars, illustrate why the defense, in whatever form, should be limited,[4] if not abolished altogether.

Judging from the facts recited in the opinion, the feminist critics have a point. Casassa comes off, as many feminist scholars suggest, as a possessive and jealous ex-boyfriend who got angry and killed the victim when she refused some booze he’d offered as a “gift.” The opinion does describe Casassa as “peculiar,”[5] and mentions that his defense included psychiatric testimony, but the overall impression remains: Casassa was just another possessive and jealous ex, who got angry and killed when the victim rejected him.

Judge Raymond Harrington, sitting without a jury, found Casassa guilty of murder, rejecting the defense of extreme emotional disturbance. The Court of Appeals affirmed, finding that Judge Harrington had “properly applied the statute.”[6] That’s true. Judge Harrington’s application of the statute to the facts was no doubt “proper.” But was his application of the statute the only “proper” application?

Under New York law, when one person intentionally causes the death of another, the crime is murder. But not always. Murder, under New York law, becomes the lesser crime of manslaughter if the killing was committed under the influence of an “extreme emotional disturbance,” provided “there was a reasonable explanation or excuse for that disturbance,” where the “reasonableness of any such explanation or disturbance [is] determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.”[7]

What, for example, what was the “viewpoint of a person in [Casassa’s] situation”? What were the “circumstances as [Casassa] believed them to be”? We need answers to those questions because that “viewpoint” – Casassa’s viewpoint – is the viewpoint from which the “reasonableness” of any “extreme emotional disturbance” Casassa experienced is to be judged. Of course, those questions can’t fairly be answered without knowing as much as possible about the facts of the case.

Unfortunately, the New York Court of Appeals opinion doesn’t give all the facts. The court’s account of the facts spans only two pages, most of which simply describe what happened. When it came to the evidence of Casassa’s state of mind, the Court said little more than this:

The defense presented only one witness, who testified, in essence, that the defendant had become obsessed with Miss Lo Consolo [sic] and that the course which their relationship had taken, combined with several personality attributes peculiar to the defendant, caused him to be under the influence of extreme emotional disturbance at the time of the killing.[8]

But what were the “personality attributes peculiar to” Casassa, and what difference might they have made to Casassa’s claimed defense if more was known about them?

The account of the facts given below goes well beyond the facts stated in the opinion of the Court of Appeals. Based on two statements Casassa made to the police at the time of his arrest,[9] and the transcript of his five-day trial, it provides a far more complex psychological portrait of Cassasa’s state of mind at the time of the killing beyond simply noting the existence of “personality attributes peculiar” to him.[10] In recounting these facts, it aims to make the best case possible for a different, but still “proper,” application of the statute: one in favor of manslaughter, not murder.

Part II recounts the events leading up to the killing. Part III describes in some detail the critically important psychiatric testimony presented. Casassa did not take the stand.

AUGUST 1976 – FEBRUARY 28, 1977

Dr. Daniel Schwartz, Aug. 2, 1977

Victor Casassa was born on January 19, 1950, the oldest of four children.[11] At the time of the killing, he’d just turned twenty-seven. He graduated from Hicksville High School in June 1986 and Nassau Community College in August 1973. In October 1972, he began working at his uncle’s liquor store, Young’s Liquor Store, at 505 Plandome Road, Manhasset, eventually becoming a manager and “somewhat of an expert in the field of wines.”[12]

During the Vietnam War, Casassa had been rejected for service on psychiatric grounds,[13] though the record didn’t detail what those grounds were. “At work [Casassa] would experience a ‘floating mind sensation,’ in which he would appear to other employees that he was in a daze.”[14] His uncle “insisted that he have another psychiatric consultation. Treatment was recommended but the cost was prohibitive, and [Casassa] convinced himself that he could straighten himself out.”[15]

Casassa, according to his own account, was “sheltered by his mother,” who once told him she’d throw him and his sister out of the house if they ever had sex outside of marriage.[16] “[L]onely but pathologically shy,”[17] Casassa “wanted to make contact with women but he couldn’t bring himself to talk to them or even approach them in any logical way.”[18] He’d “never had sexual relations with a female,” “never [having] been able to go beyond kissing a girl.”[19] Instead, he would fantasize, but even then he “couldn’t allow himself to have a sexual [f]antasy that even approached one of ultimately a sexual relationship. The closest he could allow himself to come, even in his phantasies, was that of an older brother in a non-sexual relationship.”[20]

Casassa lived with his parents until he was twenty-six. In August 1976, he moved out of his parents’ home, renting an apartment in a “singles” building located at 55 Nassau Place, in Hempstead.[21]

There he met 29 year-old Victoria Loconsolo. Loconsolo, one of seven daughters, and the director of the Arthritis Foundation’s Long Island Division.[22] Six months later, Casassa would be arrested and charged with Loconsolo’s murder.

Victoria Loconsolo. Source: Victoria and her family. Victoria is standing next to her Gerald Kessler & Arthur father, on the left. Souce: Paul Katinas, Futures in Education Mulligan, L.I. Woman Slain, Founder was an ‘Angel’ to 1,600 Catholic School Kids, The Ex Boy Friend Held, Daily Tablet, Oct. 26, 2021.

 The evidence presented at trial, detailing Casassa’s actions and state of mind between August 1976 and February 1977, came largely from Casassa himself, introduced into evidence through his statements to the police and the testimony of the two psychiatrists. Casassa’s account was usually detailed. Its level of detail was, according to the state psychiatrist, “part and parcel of his obsessive, compulsive characteristic, making up his type of personality where he keeps very well organized, expresses them in a very organized way.”[23]

The events between August 1976 and the killing in February 1977 unfolded as follows:[24]

•       August 17, 1976 – When Casassa first meets Loconsolo, he claims to have experienced “a mystical feeling within me that I couldn’t decipher.” Mustering the confidence to speak to her, he became, in his words, “mildly inebriated.”

•       August 27, 1976 – Casassa asks Loconsolo on a date. She accepts. Elated, he discovered he was “more prone to divulge [his] own personality with her, something [he] thought could never happen.” Casassa and Loconsolo go to dinner and a play. “Everything about her enthralled him.”

•       Sometime in October 1976 – Casassa asks Loconsolo on another date. She agrees. This time, he arranges “an elaborate dinner, candlelight, [and] soft music.” Casassa feels comfortable sharing his interest in classical music and opera. “Now he finally had somebody he could open up to.”

One night at Loconsolo’s apartment, Casassa puts his arm around her while she was asleep. “The fact that he finally had some physical contact with her gave him a feeling of elation and security.” When she awakens, she tells him he can stay while she goes to bed. Casassa “was terrified. He didn’t know what to make of this. He didn’t know if it was an invitation or what, and even if it was he didn’t know how to handle it.”

•       Mid-November 1976 – Casassa continues to see Loconsolo but becomes aware that she’s seeing another man. Not knowing what to make of his relationship with her, Casassa finds himself in a “turmoil of feelings.”

One evening, while sitting together on the sofa in Loconsolo’s apartment, Loconsolo abruptly says to him “Vic, let’s talk. I’m not falling in love with you.” Loconsolo’s words are like a “bombshell” to Casassa. He begins to cry and pace around the apartment. Trying to comfort him, Loconsolo puts her arms around him. In an effort to redeem himself, Casassa tells the story about his fictional girlfriend who’d died in a car accident. When Loconsolo thereafter stops jogging with him, as she had been, Casassa contrives ways of “accidentally” running into her.

•       November 20, 1976 – Casassa begins obsessively “to look out every night to see if her car was there.” He becomes anxious if the lights in her apartment are off, and is relieved only when she returns home.

•       Mid-December 1976 – Casassa sees Loconsolo enter her apartment with a man. Casassa “couldn’t believe what [he] saw. [He] was frozen.” Casassa runs to Loconsolo apartment and rings the doorbell. After hearing “what sounded like the sound of annoyance from upstairs … he immediately ran back to his own apartment.” He spends the “whole night shaking.” He takes a Valium to calm his nerves. That night, Casassa has “images of sexual intercourse, but they were so horrible to imagine [he] erased them from [his] mind, and yet the terror remained.”

Several days later, Casassa sees Loconsolo and the man “drive off in her car, and he felt tremendous relief that the man was leaving, ‘more relief than [he] could understand. Like [he] wanted to forget about what happened.’”

•       Late-December 1976 – Casassa gives Loconsolo an expensive camera as a Christmas gift. She accepts. Casassa is elated, believing he’s found a way to approach her again. Later that night, Loconsolo calls. She has doubts about accepting such an expensive gift. He goes to her apartment and tries to reassure her “[t]here was no romantic intentions in the gift … though secretly he hoped otherwise.”

“The next night [Casassa] was in [Loconsolo’s] apartment and there were other people there and they were listening to a comedian, part of whose act was sexual and they were all laughing. They were enjoying it. He just felt terribly out of place. He was very bothered by the fact that she could laugh at this kind of humor. He wanted so much to picture her as a pure, virginal girl with no interest in sex. He was even able to convince himself that the only reason she was laughing at this off-color humor was to be sociable with her guests because they were laughing at it, so much was his need to see her as a non-sexual creature. Eventually, he was able to kiss her that night at some point and again he felt ecstatic.”

Sometime later, Casassa quietly says to Loconsolo “Vicky, I love you.” “She sighed and became a little annoyed.” The next morning, Casassa apologizes for what he said.

•       December 31, 1976 (Friday) (New Year’s Eve) – Casassa sees the man leave in the morning. Later that day, Loconsolo returns the camera he’d given her as a Christmas gift, along with a key to Casassa’s apartment. Casassa had given her the key in case of emergencies. She also “left a note … that she couldn’t accept” the camera. “Take care of yourself. Don’t work too hard tomorrow at work,” the note said. Casassa “felt like he was going out of his mind. He couldn’t think of anything but her, and just didn’t know what to do about this situation of not having her anymore.”

•       January 2, 1977 (Sunday) – Loconsolo suggests that she and Casassa stop seeing each other for a while. Casassa agrees, or at least feigns agreement. He continues “[e]very night,” to “check to see if she was home.”

•       January 19, 1977 (Wednesday) – Casassa’s birthday. He turns twenty-seven. He sees Loconsolo leave her apartment with a man. He feels “destroyed,” and “operate[s] mechanically” for the rest of the day. His parents throw him birthday party. He “force[s] himself to participate.” When he arrives back at his apartment, Vicky and other friends greet him with a surprise party. “He felt good about it, but, still wasn’t sure yet where he stood with her.”

•       January 28, 1977 (Friday) – Casassa breaks into a vacant apartment below Loconsolo’s. He “debated with himself tremendously about whether or not he should do this, not so much for the possibility of what he was doing … [H]e debated with himself about whether or not he really wanted to know what she was doing.”

•       February 5, 1977 (Saturday) – Loconsolo’s “friend from Washington” arrives.[25] Listening from the apartment below, Casassa hears what he describes as sounds of them “making love in bed.” Casassa later says that the experience was “worse than a nightmare.” He’d “never felt such pain in [his] life.”[26]

•       February 6, 1977 (Sunday) – Casassa calls Loconsolo. When the phone is picked up, he hangs up. He goes over to her apartment. She asks if he was the one who called. Casassa replies “no.” Casassa begins to talk to her about how he feels. At one point she says to him, “Vic, you see what you want to see.” Casassa later says he “always saw the possibility of changing her.” He sees himself as “her saviour [sic] if she would only love him, believe in him.”

•       February 9, 1977 (Wednesday) – While driving past Roosevelt Field, near where Loconsolo worked, Casassa has his first thought of hurting her. He stops at a shopping center and buys a knife. Later, he says he couldn’t remember why he bought the knife.[27]

•       February 13, 1977 (Sunday) – Loconsolo attends a dinner Casassa hosts for his cousin and his cousin’s girlfriend. Casassa asks Loconsolo to dinner and a show. To his surprise, she agrees.

•       February 16, 1977 (Wednesday) – Casassa and Loconsolo have dinner at his apartment and attend the play Pippin in New York. Casassa feels “terrified.” He later told the police: “I walked her back to her apartment door and I was carrying a knife in my pocket. I didn’t want to stab her but I took it anyway. I guess it was just a question of time until she saw him again. I was either kill myself or hurt her. [sic]”

•       February 20, 1977 (Sunday) – Casassa breaks into Loconsolo’s apartment at some point during the day while she is away.[28] He goes back to his apartment, leaving the door to Loconsolo’s apartment unlocked. At 3 a.m., he returns to Loconsolo’s apartment, “having convinced himself [Loconsolo] was going to spend the night with her parents.” He later tells the police he didn’t know why he’d broken into the apartment. He sees Loconsolo’s birth control pills in the medicine cabinet, undresses “himself completely … and trie[s] to go to sleep in her bed.” He leaves after an hour, too “frightened” to stay.

The defense psychiatrist later commented on this episode at trial: “This is how desperately he wanted to have some kind of closeness with her, wanted perhaps in some way to imitate what other men were doing with her, but he couldn’t in any realistic way.” The discovery of the birth control pills “wouldn’t have been so bad, [Casassa later] said [to the psychiatrist], if he hadn’t actually been witness prior to this that she was having intercourse one awful night; if he hadn’t witnesses that he would still be able to convince himself that maybe she was taking the birth control pills but didn’t really need them, didn’t really have intercourse. He had this picture of her that he ― I mean he just didn’t want the bad picture to exist.”[29]

•       February 23, 1977 (Wednesday) – Around 9 p.m., Casassa visits Loconsolo at her apartment. Keith Johns, Loconsolo’s supervisor at the Arthritis Foundation, is there. Loconsolo had told Johns she believed Casassa had been “spying on her.” Loconsolo had invited Johns over to “meet with Casassa” and “to discuss with him, at Loconsolo’s behest, his … making a nuisance of himself.”[30]

At the same time, Casassa learns that Loconsolo has thrown out all the opened bottles of liquor he’d given her. Loconsolo had told her father about the burglary on the prior Sunday, and apparently worried the bottles may have been tampered with, he’d told her to dump the opened ones. This “disturb[s]” Casassa. “[T]he thought that she would throw out something he had given her just upset him tremendously.” He is, at the time, again carrying the knife. He later tells the police: “I was thinking about hurting her then, but I just couldn’t do it.”[31]

Casassa leaves the apartment. Later, noticing Johns’ car is parked outside, he goes to the apartment below. He hears Johns say, “I don’t understand. If you’re so suspicious of this guy …” Johns remains until about midnight. After he leaves, Casassa rings the doorbell to Loconcolo’s apartment. She does not answer. Casassa later says, “‘I would have done anything to get back up there.’ [Casassa] had to reassure himself that this man [Johns] had not totally destroyed his relationship with Vicky, that she could still be friendly towards him.”

•       February 27, 1977 (Sunday) - Casassa hosts a wine party at his apartment complex. He invites Loconsolo, but she does not attend. This deeply upsets him. Later that evening, Casassa enters the apartment beneath Loconsolo’s.

•       February 28, 1977 (Monday) – The day of the murder.

Casassa calls Loconsolo at work and “casually” asks why she didn’t attend the party. She says she couldn’t spare the time because the Arthritis Foundation was about to start a fundraiser. Casassa later decides that he has to replace the liquor Loconsolo had thrown out.

Casassa goes to Loconcolo’s apartment around 8:45 pm with a box of wines and spirits. He is also carrying the knife. Loconsolo answers the door wearing only a red robe. She invites him up.

Loconsolo accepts the wine, as part of her membership in the “Wine of the Month” club at the liquor store, but she refuses the bottles of scotch and vodka. “He argue[s] with her. He tried to prevail and he couldn’t, and at that point,” he later said, “‘something happened to me.’”

Casassa gave Loconsolo money he’d collected for the Arthritis Foundation. He suggests she count it. As she was counting the money, Casassa later said, “I felt something happening to me, like something was taking over inside of me, just about to come out. I can’t describe it.” While she was facing the bar, counting the money, Casassa took the knife and stabbed her fourteen times, ten in the neck. “I knew what I had to do, it would be the only chance I would get. I had the knife in my right hand and came across and stabbed her in the neck in the throat. She yelled and she tried to speak and say, ‘Vick, I love you.’”[32]

After the stabbing, Casassa recalled feeling “an absence of pain, as though–as though it really didn’t happen, as though I thought it never did happen.” Casassa later says: “[S]omeway or somehow I had to end what I was feeling.”

Casassa drags Loconsolo’s nude body to the bathroom. He runs cold water and places the body in the tub, facing away from door. He pulls the shower curtain on the tub. He tries to clean up the blood in the hallway and washes up in the kitchen sink. Casassa leaves the apartment with the knife, Loconsolo’s robe, and a picture of Loconsolo and her sisters, locking the door behind him.

Casassa later tells the police: “I got into my Vega and drove somewhere, a parking lot, it couldn’t have been to [sic] far away, because I got back home quick. I went into my apartment and changed my clothes. I was wearing a black turtle neck sweater, gray pants and a brown vinyl jacket & brown shoes. [sic] The shoes are lace shoes with a high heel. I put them in a bag and threw them away. I drove back where I threw the knife and robe and threw the bag away.” The knife is never recovered.

•       March 1, 1977 (Tuesday) – The police arrive at the scene around 5 p.m. Casassa agrees to go to the police station for further questioning. He is questioned throughout the night and into the early morning.

•       March 2, 1977 (Wednesday) – Casassa confesses to the murder around 5 a.m.

THE PSYCHIATRIC TESTIMONY

Casassa’s trial lasted five days. Its main event would be the testimony of two psychiatrists.[33] For the defense was Dr. Daniel Schwartz;[34] for the state was Dr. John Train.[35] Both psychiatrists believed Casassa was mentally ill. Indeed, they offered much the same diagnosis of the nature of his mental illness. They nonetheless disagreed on whether, at the time of the killing, Casassa was acting under an “extreme emotional disturbance” for which there was a “reasonable explanation or excuse.”[36]

Dr. Daniel Schwartz

At the outset of his testimony, Dr. Schwartz, who’d interviewed Casassa on three occasions, was asked: “[D]o you have any opinion as to whether or not on February 28th, 1977, the defendant was acting under the influence of extreme emotional disturbance when he caused the death of Victoria Loconsolo?” Answer: “It is my opinion that he was acting under the influence of extreme emotional disturbance.”[37]

He then offered the following account of what happened on the day of the killing:

The next day was February 28th. He called her at work. He asked her as casually as he could about her not having come the night before [to the wine and cheese party]. She said she couldn’t spare the time. They were about to begin a fund-raising marathon for the Arthritis Foundation. He made up his mind that day at the store that he had to replace some of the liquor that had been thrown out as a result of the apparent burglary.

He came home. As he was coming home, as he was driving home, he felt increasingly terrified at the prospect of finding her home alone.

I want to point out again that during this time when he is terrified of finding her home alone he doesn’t know why. We can see in retrospect and it might even be obvious at the time that if we knew the whole story that what he was afraid of was that he might hurt her because she was rejecting him, but the fact is that he could not even allow himself this thought, as logical as it may be. In his own psychological functioning he had to put such thoughts completely out of his mind. So that all he felt was this kind of terror at finding her home alone without knowing why he was terrified. He could not correlate any of these thoughts. Again there is a mixture of feelings. He was frightened, somewhat, but not as much as he thought he would be. There was the thought in his mind that there was something that he had to do, but he really can’t describe his thoughts and feelings and he says the best he can say is that they did not correlate, or he can’t correlate them.

He went to his own apartment. He has a shot of scotch to try to relax his nerves. And now he took the hunting knife with him and, again, I asked him, “Why?”

He said he didn’t know except that he felt safer with the knife. He was, in other words, now imaging some kind of danger from outside him, danger that he had to protect himself from.

It is obvious in retrospect and it is logical, of course, the danger was from within him but he wasn’t thinking that way. He took ― and it is obvious that subconsciously he was taking the knife with the ultimate purpose of using it, but these were subconscious, unconscious thoughts. The only conscious thoughts he had was that he needed the knife for self-protection from something outside himself. He had no conscious thoughts of stabbing her.

He gave her ― his store was running at that time some kind of project. A sales gimmick known as “Wine of the Month.” She was participating in it as a guest and so he gave her the wine of the month, which she accepted, but she declined the other spirits that he tried to give her to replace the ones that she had thrown out. He argued with her. He tried to prevail upon her and he couldn’t, and at that point

“something happened to me.”

He gave her the money. He had counted it. She was now at his suggestion counting it. “I felt something happening to me, like something was taking over inside of me, just about to come out. I can’t describe it.”

He thinks he had asked her to double-check the money. He knows that she was standing over the bar, counting the money. She was dressed in only a robe. He had walked over towards the TV set. After that he has nothing but fragmentary memories, isolated, unconnected memories. He remembers holding her with his left hand while he grasps the knife in his right hand. He recalls them being in various positions, such as standing, kneeling, or even flat down on the floor, but he can’t recall moving from one position to another, and at the same time during all this he remembers hearing her say, “Vic, I love you.”

He has, he says, no memory of plunging the knife into her. His first memory is of holding her with the knife already in her.

After the stabbing he has some fragmentary picture of seeing blood. He was holding her. His hand over her mouth. He was kneeling down with her. He has some memory of dragging her into the bathtub. He says he has no recollection of what he was thinking. All he recalls is that afterward he felt “an absence of pain, as though – as though it really didn’t happen, as though I thought it never did happen.”

Later he said to me, “I don’t know if I ever thought about killing her, but I suppose I did somehow know or feel that someway or somehow I had to end what I was feeling.”

He denies feeling any anger toward her and these were, I believe the kind of stab wounds that might have been inflicted, might well have been inflicted in anger. There are, I understand, some ten of them. It is not the kind of wound of a simple, effective execution, and yet, he says, “I could never feel anger towards her because I loved her.”

He knew that there were two Vickys, and that somehow the real Vicky wasn’t coming through.

He says he has no memory of what he was thinking from the moment she started counting the money. As I said before, he has some mental picture of dragging her. He says his next memory is of seeing her in the bathtub nude, on her side, facing away from him. He has a picture of himself with a sponge wiping up the blood and then a picture of himself being on the staircase holding a bundle in his hand.

Later he remembers changing into other clothing in his own apartment, feeling like “a mild euphoria. Something had been drawn out of me.”[38]

According to Dr. Schwartz, Casassa was, at the time of the killing, “so overwhelmed by his emotions that his normal obsessional personality broke down. Even though that act was one of passion (witness the multiple stabbings), there was also at the same time a certain degree of dissociation (witness the conscious lack of emotion and the fragmentary memories).”[39] On cross-examination, Dr. Schwartz elaborated: “There is in this gentleman more difficulty in handling or experiencing feelings, emotions, than in many other people, and what he had afterward was almost a kind of disassociation in which he really wasn’t fully aware of what had happened.”[40]

Casassa, Dr. Schwartz testified, “couldn’t allow himself” the feelings others, having been rejected, might have had. He “couldn’t allow himself” to feel “angry, frustrated, annoyed at the situation.”[41] Instead, the feelings finally “exploded,”[42] but even then, when they did “emerge all at once,”[43] he still “doesn’t even have them, as best he remembers, during the stabbing itself.”[44] Instead, “[i]t’s as though he had become a zombie, a mechanical object with no feelings at all.”[45] “[H]e acted like some kind of emotionless, machine-like creature.”[46] “He acted as though he were enraged,”[47] even though he wasn’t.

Although Casassa had told the police, when asked why he’d put Loconsolo’s body in the bathtub, that he “wanted to sure she was dead,” Dr. Schwartz believed that didn’t “make sense. There are any number of ways to make sure that the person you stabbed is dead.”[48] Instead, Dr. Schwartz speculated that “psychologically, underneath he wanted finally to see her naked as other men had done, but he couldn’t allow himself to do in it what in his mind would be a dirty, sexual way, but if he could somehow fool himself in his own thinking and place her in a tub, well, that’s a legitimate reason for a woman to be naked, and for him to see her body, but, interestingly enough, he still turns her so that it is only her back that’s facing him.”[49]

Dr. Schwartz’s limited his direct testimony to explaining why he believed Casassa acted under the influence of an “extreme emotional disturbance.” On cross-examination, however, the prosecutor asked: “[D] id you find that there was a reasonable explanation or excuse for that disturbance?”[50] Casassa’s defense attorney objected, saying that the question was “a factual determination to be made by your honor.”[51] Judge Harrington overruled the objection, and when the prosecutor asked again: “Do you have such an opinion,” Dr. Schwartz replied, simply, “No.”[52]

As for Casassa’s earlier decision to buy the knife, Dr. Schwartz testified that Casassa’s thinking was, by that time, already “askew.”

What [Casassa] describe[d] to me [when he purchased the knife] are a series of dissociated thoughts, thoughts which, as we see them, have a logical connection. He has a thought of hurting her, and he buys a knife. We would see these thoughts as following one from the other. I believe him when he describes them as pretty dissociated, of, in his mind, having no connection whatsoever. I think if he were trying to malinger or fool me or tell me less than the truth he would have denied buying the knife at that time. But, quite candidly, apparently, he set forth that he bought it, but he didn’t know why, even though sometime earlier before that he had some vague thought of hurting her. This was, in my opinion, a pathological form of mental functioning where two thoughts which logically should be related are in his mind so unrelated.

From time to time during that month [of February], then, he was troubled by impulses, as he says, to do harm to her. Now he began to see the knife as a thing of self-protection. In other words, the more the impulse to hurt her grew in his mind the further, psychologically, the further he removed the knife as a possible implement for this harmful act. At first he had no idea why he bought it. Now he viewed it constantly as a source of self-protection even though he had no clear idea of what danger he might face.

Consciously he said the thoughts of doing harm to anybody was unspeakable. ‘It wasn’t me. To anybody, let alone the person I loved.’[53]

When the prosecutor asked him to agree that Casassa’s emotional disturbance was “rooted in jealously,” Dr. Schwartz insisted that it was “more than jealousy.” When the prosecutor suggested “anger,” instead of jealousy, Dr. Schwartz replied:

No. This would be a much simpler question for all of us if it were simply jealousy. This is a man who had not been able to function sexually as an adult male. It wasn’t simply jealousy that the woman he loved had another man. It was more complicated than that. It was that the woman he loved, and whom he wanted to see as pure and good and virginal, that this woman was engaging in sex with another man. It was much more complicated that simply jealousy

. . . .

It was a whole image that he wanted to have of her that was destroyed.54

Dr. John Train

Dr. Train, testifying for the state, agreed that Casassa was mentally ill, “present[ing] with a personality pattern disorder of schizoid type, with obsessive, compulsive features, and some paranoid trends.”[54] Nonetheless, unlike Dr. Schwartz, Dr. Train didn’t believe Casassa was acting act under the influence of an “extreme emotional disturbance” at the time of the killing.

Dr. Train began his testimony with what he described as a “clear-cut”[55] definition of the phrase “extreme emotional disturbance.” It was, as he said, a “definition I came to on the basis of what would be from a psychiatric point of view.” Dr. Train was willing to admit, on cross-examination, that Casassa was acting under “extreme emotional disturbance” at the time of the killing, but only if the phrase “extreme emotional disturbance” were understood “purely as an English word.”[56] Dr. Train, however, gave the phrase a meaning different from its meaning “purely as an English word.”

According to Dr. Train’s definition, a person acts under extreme emotional disturbance if, being “relatively normal,”[57] and suffering from no “obvious psychiatric disturbance or disorder,”[58] he was “exposed” to a “stress from outside”[59] that caused his emotions to “explode into a sudden uncontrolled, irrational, impulsive outburst, completely out of control. … [T] his extreme emotional reaction would be so strong that it would break through any force of repression or control, and … the individual would then know the extreme nature of that emotional disturbance.”[60]

Based on this definition, Casassa wasn’t, according to Dr. Train, under the influence of an “extreme emotional disturbance” at the time he stabbed Loconsolo. First, Casassa was not, as Dr. Train testified, “normal”: on the contrary, he had an “obvious psychiatric disturbance or disorder.” Second, the stress Casassa experienced “was not a stress from the outside as much as a stress he created within himself, dealing mostly with a fantasy, a refusal to accept the reality of the situation.” Third, Casassa’s emotions, by his own account, didn’t “explode in a sudden uncontrolled, irrational, impulsive outburst.” Finally, again by his own account, Casassa never consciously experienced any anger.

On cross-examination, Dr. Train agreed that Casassa acted under a “severe” (in contrast to an “extreme”) emotional disturbance,[61] and that he lost self-control,[62] but the “severe” emotional disturbance he experienced wasn’t “extreme” because, according to Dr. Train, it had “no reasonable external cause.”[63] Instead, it was “purely . . . something he create[d] himself.” Nor did it “break through his repressive forces,” as it would have done had it been “extreme.”[64] In other words, according to Dr. Train, “part of the concept of extreme emotional disturbance” was that “[t]here is no reasonable cause for it.”[65] “You can’t separate the two, not that I know of.”[66]

The disagreement between Drs. Schwartz and Train was more linguistic than substantive. Dr. Schwartz believed Casassa killed while under the influence of an extreme emotional disturbance, but offered no opinion on whether that disturbance had a reasonable explanation or excuse. Dr. Train believed Casassa didn’t kill under the influence of an extreme emotional disturbance, but only because he didn’t believe any disturbance for which there was no reasonable explanation or excuse – and he believed Casassa had none – qualified as “extreme.”

Indeed, Judge Harrington realized that the question on which Casassa’s fate turned was the question of reasonableness:

There must be some reasonableness to the circumstances, or the stimuli which brought about the act . . . I think both doctors were clear in indicating that the mental state, the paranoid, the schizoid status of the defendant here was certainly abnormal, but I don’t think there is a single person in this room, other than the defendant, who, finding themselves in similar circumstances, will find their ability to reason overcome and overwhelmed by even the accumulation of all these quote rejections, end quote.[67]

Believing Casassa’s extreme emotional disturbance lacked a “reasonable explanation or excuse,” Judge Harrington convicted him of second-degree murder. The sentence was an indeterminate term of 15 years to life in prison at Sing Sing.[68] Casassa, then aged 27, would be paroled thirty-four years later, in 2014, aged 64.[69] Today, he’s 72.

MURDER OR MANSLAUGHTER?

As the Court of Appeals said, Judge Harrington no doubt “properly” applied the law. But surely, based on all the facts, a reasonable juror could likewise have “properly” applied the law to reach the opposite conclusion: that Casassa was guilty of manslaughter, and not murder.

Under New York Penal Law Code § 125.25(a)(1), a person who intentionally causes the death of another is guilty of second-degree murder, unless he proves by preponderant evidence that he “acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the actor’s situation under the circumstances as the defendant believed them to be.”[70]

Judge Harrington focused on the word “reasonableness,” believing that whatever explanation or excuse Casassa had to offer wasn’t reasonable. What he didn’t, but should also have focused on, was the language directing him to “determine” the reasonableness of Casassa’s proffered explanation or excuse “from the viewpoint” of someone in Casassa’s “situation under the circumstances as [Casassa] believed them to be.” Looking at the question from Casassa’s near-delusional viewpoint pushes, not in the direction of murder, but in the direction of manslaughter.

First, both psychiatrists who testified at trial agreed that Casassa suffered from a mental disorder. No one doubted Casassa was mentally ill, nor could they have. Even Judge Harrington acknowledged Casassa’s “paranoid, schizoid status.” Moreover, the full record reveals Casassa’s lengthy history of mental illness, going back to his rejection for military service. Even his uncle plainly saw that Casassa needed psychiatric help. Indeed, as the full record shows, if Casassa had had the money, which he didn’t, he might have gotten the help he needed before it was too late.

Second, as Dr. Schwartz’s testimony shows, all of Casassa’s incriminating actions before and after the killing were plainly the product of mental disorder. For example, when Casassa first purchased the knife, and whenever he brought it with him when he knew he’d be around Loconsolo, he was, in his mind, carrying it out of a baffling sense he needed it to protect himself against something even he couldn’t understand, not because he was planning all along to kill Loconsolo. Likewise, he didn’t put Loconsolo in the bathtub to “make sure she was dead,” as he told the police (probably because he was ashamed of the real reason), but only because he wanted to see her nude, but not in a “dirty, sexual way.” Thus, some of the most incriminating evidence against Casassa is entirely consistent with the actions of someone whose viewpoint is the viewpoint of someone suffering from severe mental illness.

Third, New York’s defense of “extreme emotional disturbance” was expressly based on language from the recently-promulgated Model Penal Code. Importantly, the final version of the Code Commentaries, though not yet published at the time of Casassa’s trial,[71] explain that a defendant’s “mental disorder,” for purposes of determining if “there was a reasonable explanation or excuse” for any “extreme emotional disturbance” he experienced, should sometimes be considered part of the defendant’s “situation.” It should be considered, the Commentaries imply, if the defendant’s mental disorder “preclude[s] moral depravity.”[72] Within Casassa’s almost delusional world, his killing of Loconsolo, far from being an expression of “moral depravity,” was – as bizarre as it might sound – an expression of “love,” the product of a mentally disturbed mind.

In sum, once all the facts are in, and not just the facts found in the opinion of the Court of Appeals, a fair case can be made that, from Casassa’s viewpoint – a viewpoint distorted by mental illness – a “reasonable explanation or excuse” did indeed exist for Casassa’s “extreme emotional disturbance.” Casassa was guilty of manslaughter, and he should have been punished for that crime. But, once the full facts are known, he shouldn’t have been found guilty of murder, not under New York law.

[1] .          404 N.E.2d 1310 (N.Y. 1980).

[2] .          See, e.g., Joshua dressler & stePhen P. garVey, crImInal law: cases and materIals 311 (9th ed. 2022); KadIsh et al., crImInal law and Its Processes: cases and materIals (10th ed. 479).

[3] .          Paul Robinson reports that, as of 2014, twelve states follow some version of the Model Penal Code’s “extreme mental or emotional disturbance” formulation. Paul H. Robinson, Murder Mitigation in the Fifty-Two American Jurisdictions: A Case Study in

Doctrinal Interrelation Analysis, 47 tex. tech. l. reV. 19, 32-33 (2014).

[4] .          See, e.g., Victoria Nourse, Passion’s Progress: Modern Law Reform and the Provocation Defense, 48 yale l.J. 1331, 1420 (1997) (categorizing the facts in Casassa as a “departure case” that should, according to the author’s proposed “theory of the passion defense,” be insufficient to support an instruction on “extreme emotional disturbance”). But see Aya Gruber, A Provocative Defense, 103 cal. l. reV. 273, 332 (2015) (“[W]hen one takes a step back and divorces provocation analysis from feminist dogma, it turns out that the feminist critique may simply be a collection of solutions in search of a problem.”).

[5] .          The Court of Appeals repeated the word “peculiar” three times when describing Casassa. See Casassa, 404 N.E.2d at 1313, 1317.

[6] .          Id. at 1317.

[7] .  App., infra (current New York model jury instructions on the “extreme emotional disturbance defense”)..

[8] .          Casassa, 404 N.E.2d at 1313.

[9] .          One statement was three and a half typewritten pages. Appendix for DefenderAppellant at 4, Casassa, 404 N.E.2d 1310 (No. 14598/77) [hereinafter Casassa App.] (Statement of Victor Casassa). The other was a little over three typewritten pages long. Id. at 8 (Oral Statement). Appended to the Oral Statement was a series of questions and answers intended to elicit from Casassa facts only the killer would know. Id. at 12-13. Casassa tried unsuccessfully to have his statements, together with some personal items taken at the police station — a watch and a ring, with the blood having been found on the watch — suppressed.

[10] .  No transcript of the oral argument before the New York Court of Appeals exists; neither was it possible to obtain copies of the exhibits introduced at trial or the autopsy report.

[11] .  Casassa App. at 350 (Transcript of Testimony of Dr. Daniel W. Schwartz).

[12] .  Id. at 13a (Psychiatric Report of Dr. Daniel Schwartz).

[13] .  Id. (“In the fall of 1973, both a private psychiatrist and the draft board at Whitehall Street found him unfit for military service.”). Casassa didn’t know the “exact reasons” he’d been rejected for military service. Id. at 351 (Transcript of Testimony of Dr.

Daniel W. Schwartz).

[14] .  Id. at 13b (Psychiatric Report of Dr. Daniel Schwartz).

[15] .  Id. The private psychiatrist’s name was Oppenheimer, but the record discloses nothing more about him. See id. at 419 (Transcript of Testimony of Dr. Daniel W. Schwartz).

[16] .  Id. at 361 (“He described to me how his mother had always preached that the very idea of sex outside of a marriage was totally distasteful. He recalls her one telling him―and years later his sister―that she would kick them out of the house if she knew they had done anything like that.”).

[17] .  Id. at 13b (Psychiatric Report of Dr. Daniel Schwartz).

[18] .  Id. at 352 (Transcript of Testimony of Dr. Daniel W. Schwartz).

[19] .  Id. at 352, 361 (“His only sex, if you can call it that, before this had been about two or three time in his life he had had a long kiss with a female.”).

[20] .  Id. at 354. Another fantasy Casassa “had and the one he might sometimes tell people was that he once did have a girlfriend, that they were almost engaged but that she had been killed in an automobile accident.” Id.

[21] .  Id. at 13b (Psychiatric Report of Dr. Daniel Schwartz).

[22] .  Id. at 470 (Transcript of Testimony of Keith Grinnell Johns); Gerald Kessler & Arthur Mulligan, L.I. Woman Slain, Ex-Boy Friend Held, daIly news, Mar. 3, 1977, at 5. The Court of Appeals misspelled the victim’s last name in its opinion as “Lo Consolo.” It should be spelled “Loconsolo.” See, e.g., Obituaries, n.y tImes, Mar. 3, 1977, at 36. Victoria was the eldest of eight sisters. Id. Her father John was a successful, self-made business man, and after Victoria’s death he established the Victoria Loconsolo Foundation, which “supported educational institutions, foster care agencies, and other worthy causes.” Shelter Island Reporter Obituaries: Loconsolo, Martini, shelter Island rPtr. (Apr. 5, 2021), https://shelterislandreporter.timesreview.com/2021/04/05/shelter-island-reporterobituaries-loconsolo-martini/ (obituary of Victoria’s father).

[23] .  Casassa App. at 529 (Transcript of Testimony of Dr. John Train).

[24] .  The following summary of the facts is based primarily on the trial testimony of Dr. Daniel Schwartz (who testified for the defense), Dr. John Train (who testified for the state), Keith Johns (Loconsolo’s supervisor at the Arthritis Foundation), Dr. Gil Figueroa (Deputy Medical Examiner for Nassau County, New York); and on the oral and written statement Casassa provided to the police during his interrogation. See id. at 4-13, 277-284, 346-448, 469-573.

[25] .  The identity of the “friend” is never revealed in the material contained in the appellate appendix.

[26] .  On cross-examination, the prosecutor would suggest that Casassa had been hallucinating when he reported what he’d heard. Dr. Schwartz, although he had not thought of that possibility, did not rule it out. Casassa App. at 395-96 (Transcript of Testimony of Dr. Daniel W. Schwartz).

[27] .  In his oral statement to the police, Casassa described it as a “steak kni[f]e.” Id. at 10 (Oral Statement). In other places, the knife is described as a “hunting” knife. See, e.g., id. at 375 (Transcript of Testimony of Dr. Daniel W. Schwartz).

[28] .  “I climbed up a drain pipe, onto the portico and I entered her apartment through a window. I don’t know why I broke in. I didn’t take anything and I was going to take pictures of her apartment. But I didn’t do that either. I did see some of her personal things, you know, her birth control pills. They were in the medicine cabinet in the bathroom. You must have seen them there. That bothered me.” Id. at 9 (Oral Statement).

[29] .  Id. at 371-72 (Transcript of Testimony of Dr. Daniel W. Schwartz). Casassa said in his oral statement to the police that the date of the break-in was February 21, which would have been a Monday. Id. at 9 (Oral Statement).

[30] .  Id. at 470-75 (Transcript of Testimony of Keith Grinnell Johns). Johns “affirm[ed] to [Casassa] the fact that she believed that he was the possible person that broke into her apartment, and that while she had said to him that she wanted a friendly relationship with him, as a neighbor and friend, that there was no romantic interest on her part at all. … As pertains to the break-in, I asked in the course of the conversation regarding that breakin pretty much the following manner: That Victor wouldn’t want anything to happen to Vicki, and was it he that broke into the apartment. He denied it at that point. Vickie made no comment.” When asked if “there was any agitation or anger or any reaction that you observed” by Casassa, Johns replied: “None at all.” Id. at 471-72. In an earlier statement to the police, Johns characterized Casassa as a “pussy cat.” Id. 481.

[31] .  Id. at 9 (Oral Statement). Nowhere in the appendix documents does Casassa say he thought about “killing” Loconsolo. He consistently speaks of “hurting” her.

[32] .  The defense psychiatrist speculated that Casassa may have been hallucinating having heard Loconsolo say this. Id. at 13e (Psychiatric Report of Dr. Daniel Schwartz).

[33] .  Casassa was represented at trial by Gerald L. Shargel. The state was represented by Barry Grennan, assistant district attorney for Nassau County

[34] .  Dr. Schwartz was the Director of the Forensic Psychiatry Service at the Kings County Hospital in Brooklyn, and as associate professor in the Department of Psychiatry at the Downstate Medical Center. Casassa App. at 346 (Transcript of Testimony of Dr. Daniel W. Schwartz).

[35] .  Dr. Train had been in private practice since 1945. Id. at 492-93 (Transcript of Testimony of Dr. John Train).

[36] .  The two doctors were not strangers: they’d testified on opposite sides in Shelton v. New York, an “extreme emotional disturbance” case tried about a year before the proceedings against Casassa, with Dr. Schwartz testifying again for the defense, and Dr. Train for the prosecution. The district attorney tried at various points to impeach Dr. Schwartz based on his prior testimony in Shelton. See, e.g., id. 406, 421, 437 (Transcript of Testimony of Dr. Daniel W. Schwartz).

[37] .  Id. at 349.

[38] .  Id. at 374-78. In his report, Dr. Schwartz wrote: “He recalls hearing her say, ‘Vic, I love you’ (hallucination?) but has no memory of his thoughts during this whole episode.” Id. at 13e (Psychiatric Report of Dr. Daniel Schwartz).

[39] .  Id. at 13d.

[40] .  Id. at 432-33 (Transcript of Testimony of Dr. Daniel W. Schwartz).

[41] .  Id. at 379.

[42] .  Id. at 380; see also id. at 393 ([“Casassa reached the boiling point when he inflicted thee wounds.”); id. 396 (“snapped”).

[43] .  Id. at 380.

[44] .  Id.

[45] .  Id.

[46] .  Id. at 427.

[47] .  Id. at 437.

[48] .  Id. at 380-81.

[49] .  Id. at 381. Dr. Schwartz didn’t think the efforts Casassa made to clean up the apartment ― wiping up the blood ― were “quite rational either.” Id. at 382. “[W]hether she had been left in the hallway or the bathtub, or whether the apartment was bloody or clean up, what would call attention to the world that something had happened would be her absence from work and that’s exactly what happened.” Id. “All of this, in my mind, argues ― in my opinion argues that he was under extreme emotional disturbance at the time this killing took place.” Id.

[50] .           . at 389.

[51] .  Id.

[52] .  Id.

[53] .  Id. at 369-70.       54.  . at 404-05.

[54] .  Id. at 495 (Transcript of Testimony of Dr. John Train).

[55] .  Id.

[56] .  Id. at 512.

[57] .  Id. at 495.

[58] .  Id.

[59] .  Id.

[60] .  Id. at 496.       62.  Id. at 495.

[61] .  Id. at 516.

[62] .  Id. at 522 (“Of course there was a loss of self-control.”)

[63] .  Id. at 512.       66.      . at 510.

[64] .  Id. at 514.

[65] .  Id. at 510.

[66] .  Id. at 511.

[67] .  Id. at 569-70 (Transcript of Testimony of Dr. John Train, per the appendix’s index; however, at this stage in the transcript, the trial had already progressed to Judge Harrington’s verdict, which was, of course, upheld on appeal).

[68] .  Id. at 577 (Sentencing Minutes).

[69] .  Incarcerated Lookup, n.y. deP’t oF corr. & cmty. serV., https:// nysdoccslookup.doccs.ny.gov/ (last visited June 29, 2022) (search by Department ID Number (DIN) for “77A4595”).

[70] .  n.y. Penal law § 125.25(a)(1).

[71] .  The official commentaries, which included a discussion about the relationship between provocation and diminished capacity (or diminished responsibility) in the context of § 210.3(1)(b), were not published until 1980. The only MPC commentaries on § 210.3(1) (b) available at the time of Casassa’s trial and appeal were contained in the ninth tentative draft, which said nothing about diminished capacity.

[72] .  model Penal code § 210.3 cmt. 5(b) (am. l. Inst., 1980) (“Mental disorder clearly does not preclude moral depravity, and there surely will be cases where the actor’s mental condition, although recognized as disturbed or abnormal, should be regarded as having no just bearing on his liability for intentional homicide.”).