Jay Flowers

Jay Flowers was the judge before whom Billy Milligan’s case moved from an initial question about his ability to participate in his defense to an insanity acquittal and years of contested hospital placement. Flowers’s decisions did not settle the tension between treatment and confinement: they repeatedly translated psychiatric assessments into legal findings about Milligan’s capacity, danger, and possible return to a less restrictive hospital.

Early Proceedings and the Capacity Question

On January 19, 1978, Judy Stevenson and Gary Schweickart presented Flowers with a psychological report as evidence that Milligan could not assist in his own defense. Willis C. Driscoll had administered tests on January 8 and 13 after the public defenders’ office released funds for an evaluation. Driscoll reported an IQ score of 68, which he attributed in part to depression, and diagnosed acute schizophrenia. He described severe difficulty distinguishing self from environment, voices that Milligan experienced as tormenting him, and an inability at that time to understand events or counsel in his own behalf. His report urged hospitalization for further examination and possible treatment.

Flowers responded by ordering an examination through the forensic psychiatry unit at Southwest Community Mental Health Center. That referral opened a dispute over whether statements Milligan made during the examination could later be used against him. Schweickart wanted the information protected; the prosecutors objected, and the lawyers came close to being held in contempt when the disagreement reached Flowers. The eventual compromise limited questioning about incriminating statements to a circumstance in which Milligan took the stand in his own defense. The episode shows the distinction underlying the early proceedings: a psychiatric evaluation might address Milligan’s present ability to participate in a case, but it did not by itself determine his responsibility for the alleged offenses.

Trial and Insanity Acquittal

The multiple-personality diagnosis remained confidential among Milligan’s treatment providers, prosecutors, and the judge until the Columbus Citizen-Journal published the story in September 1978. The public defenders had argued that disclosure could make treatment and a later trial more difficult; the prosecutor, Bernie Yavitch, also agreed that the diagnosis should not be revealed before it had been presented in court. The leak changed the case’s public setting, but the legal question before Flowers still required the court to assess the evidence and the defense.

At trial, Flowers dismissed the first rape count because he found no corroborating evidence and no similar modus operandi. He then considered the insanity defense on the remaining counts. Both sides waived closing arguments, and the medical evidence was stipulated. Flowers found that the doctors’ evidence showed Milligan had been mentally ill when the offenses occurred, could not distinguish right from wrong, and lacked the ability to refrain from the acts. With no contrary evidence before him, he found Milligan not guilty by reason of insanity on counts two through ten. The ruling was a legal conclusion about criminal responsibility at the time of those offenses; it was not a finding that Milligan no longer required care or supervision.

Hospital Placement and the 1981 Decision

A later commitment proceeding established a separate legal basis for hospitalization. In December 1979, Judge David R. Kinworthy found Milligan mentally ill, diagnosed him with multiple personality, and concluded that risks to himself and others required treatment in a maximum-security facility. That order committed him to Lima State Hospital. When Lima was slated to close as a hospital for the criminally insane in 1980, the prospect of transferring Milligan to Athens or another minimum-security hospital brought the question back before Flowers. He agreed to hear the matter, but the state Department of Mental Health arranged Milligan’s transfer to the new Dayton Forensic Center before the scheduled hearing. The prosecution then dropped its demand for a hearing.

Flowers’s May 20, 1981 decision followed a later 180-day review. He relied heavily on a letter introduced by the state and on Lewis Lindner’s interpretation of it, finding that Milligan lacked accepted moral restraints, showed familiarity with criminal subculture, and disregarded human life. Flowers also considered testimony from David Caul that Caul would not accept court-imposed limitations on treatment, and on that basis found Athens Mental Health Center inadequate. Although other psychologists and psychiatrists had testified that Milligan was not dangerous, the decision did not discuss their testimony. Flowers ordered continued treatment at Dayton as the least restrictive alternative consistent with treatment goals and public safety. He also authorized treatment with a Dayton psychologist, who had told him she lacked experience treating multiple personality, at Milligan’s own expense.

Return to Athens and the Limits of Placement

On March 26, 1982, Flowers presided over another commitment hearing to determine whether Milligan remained dangerous or could be transferred to a minimum-security hospital. The psychiatric and psychological testimony conflicted. Caul now testified that he would accept Milligan for treatment and abide by restrictions imposed by the court, a position materially different from the one that had supported Flowers’s earlier concern about Athens. After weighing the new evidence, Flowers ordered the Department of Mental Health on April 8 to return Milligan to Athens Mental Health Center. He allowed painting and woodworking, while calling for close supervision away from the ward and requiring officials to notify the court before Milligan could leave the hospital grounds.

Milligan returned to Athens on April 15, after two and a half years in three Ohio maximum-security hospitals. The change in placement did not amount to unrestricted release: Flowers coupled the transfer with continuing supervision and court oversight. Across the case, his rulings gave psychiatric classifications practical consequences, but the decisions also show that diagnosis, criminal responsibility, and the appropriate level of confinement remained distinct questions. The same court that had recognized the insanity defense ultimately permitted a less restrictive setting only after receiving new testimony and attaching explicit conditions.