A Killer Sleep Disorder

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And why, as a neighbor looked on minutes later, would this man roll his mortally wounded wife into the pool and hold her head underwater?

Those are the case's central riddles--and they may never be solved to anyone's satisfaction.

One question, however, will be answered at Falater's first-degree-murder trial in Maricopa County Superior Court, scheduled to start in February. That is, can Scott Falater and his defense team convince jurors that he killed his wife while sleepwalking?

Yes, sleepwalking.
That's the sole defense noted Phoenix attorney Mike Kimerer says he'll raise during the trial before Judge Ron Reinstein.

At first blush, it seems far-fetched, almost laughable.
Does anyone really believe that an Everyman, without apparent rhyme or reason, suddenly acts like one of Charlie Manson's acolytes--and in his sleep, no less?

Even Falater says he initially scoffed at a sleepwalking defense, which he considered "bullshit--pure and simple."

"I thought my brain had thrown a rod. And I thought, 'I'm going to the State Hospital, or to the prison for life.' . . . That was before I even knew that you can take drugs that change your sleeping [patterns] at night. At that point, I was saying I'd accept a lifetime probation of living alone--let my kids sleep somewhere else. 'Lock me up on my own, because I don't want to hurt somebody else.'"

Later, he says, "Sometimes when I think about this, I wonder, 'What kind of Jekyll and Hyde am I?' There's no way I would, could hurt Yarm. I didn't know that something like that could be in anybody I've ever known, much less me."

But Falater continues to deny recalling the stabbing and drowning.
Dubious as the sleepwalking defense sounds to the uninitiated, a conviction isn't a foregone conclusion.

On many levels, Falater's case resembles others around the nation and in Canada in which sleepwalking defenses proved successful:

* Falater has a history of sleepwalking. Showing such histories has proved imperative in similar cases.

* Attorney Kimerer says independent testing on a device called a polysomnograph indicates that Falater fits the profile of a sleepwalker.

* Falater was under severe stress at work, resulting in serious sleep deprivation before the murder. Experts cite such factors as classic triggers of sleepwalking incidents.

Falater's defense team will insist he unknowingly killed his wife, a preschool teacher's aide a month shy of her 42nd birthday. Psychiatrists call it "non-insane automatism," a state in which a person has no control of his or her actions, and behavior is robotic.

Sleepwalking may be distinct from dreaming. It seems part of the brain awakens enough for a person to perform complex acts--cooking, cleaning and, in rare cases, inflicting violence. The rest of the brain remains asleep, and the person often recalls nothing of the act.

Most sleepwalking episodes are fairly harmless, frequently humorous: One sleepwalker routinely downed sticks of butter without knowing it. Another had a somnambulistic yen for cat-food sandwiches. A third would wash, dry and fold laundry without having a clue he'd done it.

Still other sleepwalking events have had more dire consequences. Early this decade, an Iowa college student with a history of sleepwalking walked barefoot across a frozen pond onto a highway, where a truck struck and killed him.

And there are the alleged sleepwalking cases--no one knows exactly how many--that have ended in criminal court.

Successful sleepwalking defenses must straddle a middle ground between criminal responsibility and legal insanity. Courts generally have embraced the concept of "non-insane automatism," a criminal act by a sane person that is committed without intent, malice or even awareness.

Someone who convinces jurors that he or she can't recall committing a crime because of a sleep disorder stands a good chance of being acquitted. But the convincing isn't easy.

Scott Falater will be fighting for his life when he goes to trial. Deputy county attorney Juan Martinez has said in court papers that he'll seek the death penalty if he wins a first-degree-murder conviction because of the "heinous, cruel or depraved" nature of Yarmila Falater's demise.

By law, the prosecutor won't have to show a motive for murder. All he has to prove beyond a reasonable doubt is that Falater planned to kill Yarmila, then did. "Planning" may be as little as a succession of thoughts.

But the fact that there is no apparent motive--quite the contrary--should work in Falater's favor. There is no evidence of serious marital stresses or extramarital affairs, nor of domestic abuse, substance abuse, financial distress or other hallmarks of classic murder motives.

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Paul Rubin
Contact: Paul Rubin