Are Insanity Defenses No More Than Fools' Errands?

Twice in this same week, jurors in Suffolk County (Boston) rejected insanity defenses in first degree murder cases. On Monday, a jury found Edwin Alemany guilty on counts alleging he kidnapped, robbed, and deliberately murdered Amy Lord, and assaulted two other unrelated women. (The Alemany jury's verdict was based on findings of all three applicable theories of Murder 1: premeditation; extreme atrocity and cruelty; felony murder.) On Wednesday, a separate jury found Jahvon Goodwin guilty of second degree murder in connection with the stabbing death of Rashad Lesley-Barnes. Alemany, who did not know any of his victims, was sentenced to an automatic term of life in prison without any possibility of parole on Tuesday. Goodwin, who, likewise, did not know his victim, was sentenced on Wednesday to life in prison, but with the possibility of parole at 20 years. (In Massachusetts, a Murder 2 conviction requires imposition of a sentence of from 15 years to life). Lawyers for both defendants had raised, and pursued, affirmative insanity defenses (referred to in Massachusetts as "lack of criminal responsibility") on behalf of their clients.

I was not involved with either case, although in full-disclosure, I was asked to be part of the Alemany defense team shortly after he was arrested. (I declined, for reasons that included the fact that my eldest son and the murder victim were professional colleagues at the same online advertising company.) However, I am both intimately familiar with, and experienced in, defending cases, both here in MA, and elsewhere, on insanity/lack of criminal responsibility grounds. One well-known insanity case I defended was New Hampshire v. LaBarre, a double homicide, where my client was accused of torturing, killing and incinerating two of her ex-boyfriends. Another was Commonwealth v. Clark, where my client was accused of repeatedly stabbing, and killing, his own grandmother. The jury rejected the insanity defense in LaBarre, and she received two life sentences. In Clark, I was able to negotiate a plea to a lesser charge of Murder 2, which allows my client the possibility of parole at 15 years, as a direct result of the mental health evidence I planned on relying upon and presenting to the jury. I suppose it was because of my experience with these, as well as with a number of other lesser known "insanity cases," that I was asked to participate on a television panel the same evening the Alemany verdict was reached.

In the course of our on-camera discussion, we panelists were asked, among other things, whether or not, given the recent track record of unsuccessful high profile insanity defenses, we supported changing the possible verdict in insanity cases from "not guilty by reason of insanity/not responsible" (i.e., "NGRI") to "guilty, but insane." This change is currently being considered by the Massachusetts State Legislature, presumably under the auspices that it might make it easier for juries to accept an insanity defense where they might otherwise struggle with the sense they may be letting a dangerous perpetrator literally "get away with murder" by "finding" a defendant insane and returning a standard NGRI verdict. Let's face it, insanity cases tend to be associated with particularly gruesome crimes. It's easy to understand jurors' inability and/or reluctance to divorce the facts of horrific crimes from the intellectually challenging and clinically-dry scientific and medical evidence connected to insanity defenses from inside the legal vacuum of courtroom. (I'm simplifying the mechanics here for the sake of argument; please see my related article for a detailed explanation regarding how all this works). Anyway, as sometimes happens on television, when it came my turn to reply, my focus had already been diverted enough by a co-panelist's prior statement for me to neglect answering the original question asked in favor of following up on her comments. (She had correctly pointed out that even if we change the language of the verdict as currently proposed, it won't guarantee that truly sick individuals will get the mental health care and treatment they need and require.) The conversation moved on; my opportunity was missed.

What I would have said, given a further opportunity, is what I have come to firmly believe after handling a lot of these types of cases: Changing the verdict in an insanity case to "guilty, but insane" completely undermines the entire premise upon which mental health defenses are based. Guilt infers responsibility. A person is not criminally responsible when, at the time of the offense conduct, and as a result of a mental disease or defect, he/she lacks substantial capacity to appreciate the wrongfulness of his/her behavior or to conform his/her behavior to the requirements of the law (ALI Model Penal Code). To me, the disconnect between guilt and lack of responsibility is not only irreconcilable, but so confusing that, in my opinion, the already minimal chances of success in defending insanity cases will shrink to almost nothing should the language be changed as is being proposed; juries will understandably skew the resulting confusion towards erring on the side of caution and become even more likely to reject the defense altogether. Also, there is both risk and harm in allowing, if not inviting, a jury to get comfortable with a guilty finding, even if only a partial component of their full verdict. Show me twelve jurors who are willing to pronounce the defendant "guilty" in open court, and I'll show you twelve jurors who are more likely than not to end the analysis there. There is also the issue of a perpetual stigma (and the negative consequences that come with it), even in instances where correct diagnosis, proper medication, therapy, and long-term treatment, can and do make a difference. Beyond that is the issue of mens rea (the defendant's mental state). A finding of guilty but insane will, on the basis of thorough inconsistency, all but eliminate findings of diminished capacity in states that simultaneously recognize that a mental disease or defect can negate one's guilt in specific (but not general) intent crimes and thereby reduce one's culpability.

All of which is a rather long-winded way of saying you either believe there are some people who are so sick they have no idea what they are doing and/or are incapable of stopping themselves from doing it, or you don't. "Guilty, but insane" suggests to me that you side with those who don't.

So, can insanity defenses ever be won under the current standard (which was the other question we panelists were asked)? The answer is yes. I can cite several; fairly recently I was involved with investigating, preparing, and facilitating a winning one, myself. (Although I was involved up to the day of trial, I didn't personally try the case because of a direct conflict with another/older trial in federal court from which I could not be excused.) Will successful insanity verdicts happen often? No; and that's not necessarily a bad thing because I truly believe juries do tend to get things right. It's probably right that NGRIs should be fewer and farther between, if the trade off is they become, by default, reserved for cases involving truly and patently sick individuals.

This last observation doesn't mean I won't keep raising a defense of insanity/lack of responsibility whenever I have a good faith basis to do so. Nor does it mean I don't believe in both the viability and importance of pursuing such defenses. I do; mental health issues are real, and serious, and cannot be ignored. If any changes are to be made as to how mental health trials are conducted, I believe they should come in the form of innovations in required jury instructions. Specifically, I am a proponent of a mandate that the jury be specifically told (as sometimes happens now, but not always) that a NGRI will not result in the defendant's release; indeed he or she will be confined in a secure/locked mental health facility, not only indefinitely, but potentially for life. Moreover, he/she will be subject to evidentiary hearings on the issue of actual and potential "dangerousness" anytime his/her confinement status may come up for review. I believe juries should also be instructed that while indefinitely confined—and I would not necessarily be adverse to the Legislature prescribing a significantly longer minimum period of hospital confinement in NGRI cases involving charges of rape and/or murder—they will remain under the constant direct care, supervision, and treatment of trained mental health professionals, and that this same level of care/treatment/oversight is not necessarily available to offenders serving their sentences in state prison health care units.

For the most part, I also believe that insanity cases not involving murder charges should be pursued by defense lawyers on a jury waived basis, where the ultimate decision is left to a judge and not a jury. This is because I believe judges have an easier time understanding the complicated standards and concepts involved, are likely more empathetic to mental health issues, and more aware of the end-consequences, including the reality and certainty of indefinite mental health facility confinement and what it involves. In sum, I believe judges are likely more open to mental health defenses and treatment options than the average lay juror is. (Although, I believe a lot of that "goes out the window" if and when the charge is murder.) I also believe that Mr. Goodwin's lawyer has a valid point when he says his jury should have been allowed to know that one of his mental health experts had first been hired by the prosecution to evaluate the defendant, but was replaced when he ultimately agreed with the defense expert that the defendant was unable to conform his behavior to the dictates of the law. If the prosecution is not going to be precluded from engaging in such obvious "expert opinion shopping," I believe the jury should at the least be made aware of it.

I guess what I'm really saying is, yes, the insanity defense as currently written is difficult - the concept of a defense of not guilty by reason of insanity is complicated, and not easily understood. But it is supposed to be that way; mental health issues themselves are in fact both complicated and not easily understood. It's up to experienced litigators like me, and the medical experts we retain to assist us, to carefully present and explain the defense to juries in the context of the specific facts of each [insanity] case and the unique circumstances of the defendant we are defending, and to then persuasively argue why our client is truly so sick that he or she is not responsible for the charged crime(s) either because he or she didn't know what he/she was doing, or could not prevent him or herself from doing it. In the end, though, the final decision is not mine, but the jury's. They don't need "Ivory Towered" help from the Legislature in making it. Indeed, if the Legislature does (as I hope they won't) vote to change the law to "guilty, but insane," in my humble opinion, it will be for the sole sake of convenience - dumbing down tough concepts simply to give jurors an easier way out - undermining and weakening the legal safeguards to which we're all entitled, mentally ill or not. To me, that would truly be crazy!