Insanity Defense: Aspect 2
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Insanity Defense: Aspect 2
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Amanda Melocchi's comment, March 11, 2013 5:55 PM
· What kind of attorney would be willing to take on an insanity case?

o Hopefully any criminal attorney that has identified an insanity defense as appropriate under the circumstances would be willing to take on the case and raise the issue.

Generally, most states rely on something referred to as the M’Naughten Rule. The M’Naughten Rule essentially starts from the premise that everyone is sane and that to declare otherwise is a burden placed upon the criminally accused. The accused must establish, by clear and convincing evidence, that she suffered under such a mental disease or defect that she was unable to determine the wrongfulness of her actions. In some states, the government must prove the accused is otherwise sane – this is a clear minority.

In counseling a criminal defendant, should the attorney determine her client may well suffer from such a mental disease or defect it is incumbent upon counsel to bring such to the court’s attention. This is formally done by filing a written motion asserting the defense. In practice, however, you will likely see the defense attorney, prosecutor and judge discuss the matter off the record prior to any motion being filed. Pleading and establishing the validity of an insanity defense is a complicated, lengthy and expensive proposition. As such, it is often discussed in advance to allow the court to plan for the necessary psychological tests, subsequent hearings and legal arguments.

An attorney able to recognize the inability of the client to truly determine such wrongfulness would hopefully raise the defense. There are a couple steps toward an insanity plea. Most often in these circumstances the accused is also unable to assist counsel in her defense. In these circumstances motions are filed to also assess the individual’s “competency to stand trial.” This is often an initial assessment that goes hand-in-hand with an insanity plea. They are not mutually exclusive however. One can understand the nature of criminal proceedings and be able to assist in her defense, thus competent to stand trial, but may still lack the ability to form the requisite mental state. Understandably such scenarios are rare.

o I’ve attached a couple journal entries from cases here in Summit County showing how the court handles these issues once raised.
§ In Shell, the Court found him incompetent to stand trial, but likely restorable to competency within one year as the statute requires. Bernard Shell was never restored to competency, was brought back to Court every two years thereafter to assess and continue his commitment in the state psychiatric hospital until he eventually died there in August 2010.
§ In Myers, the defendant initially raised both competency and insanity issues and the attached journal entry shows a nice chronology of the steps a court will take to assess and render judgment on the issues raised. Keith Myers, Jr. was competent and not insane and ultimately entered a plea of guilty to the charges.



· Do you believe mental treatment is an acceptable replacement for jail time? Why do you believe this way?

o If an individual is truly unable to determine the wrongfulness of his actions due to a mental disease or defect, then certainly mental health treatment should be a component of any court’s sentence. The question is whether that treatment takes place in the community or in an institution. In Ohio, a mental health professional will determine the “least restrictive environment” which does not “present a threat to public safety or a threat to the safety of any person” and offer that opinion to the trial court. Upon the trial court adopting this opinion and making it an Order, an accused may still spend a considerable period incarcerated – albeit in a state mental hospital.

o If an individual remains a threat either to the community or to another individual, as determined by the court, the individual should remain committed to the institution wherein he is receiving treatment. In Mr. Shell’s case, for example, he spent the rest of his life in the institution and that truly was best for everyone.

o I believe such commitment to a state mental health facility to be an appropriate alternative to state prison system incarceration in these instances. Often those charged with housing criminals have not the training nor professional staff on hand to deal with issues present by those with a true mental disease or defect and such places a strain on their resources. The state run mental hospitals are better staffed with those able to handle issues presented.

o Keep in mind these are true, established mental diseases or defects. A temporary, voluntary or otherwise induced mental condition does not qualify and is dealt with separately. One who abuses drugs or alcohol to the point of blacking-out and then committing an act she does not recall still possesses the mental ability to known the wrongfulness of the conduct.

· Do you know of anyone in your field who was involved in a case like this? If so how did it turn out?

o I know several who have been involved in these cases - from the legal representation side to the diagnosis and treatment side. I have handled a few as a prosecutor and a couple as defense counsel. I have found, if the issue is legitimately raised, all involved work to achieve the appropriate outcome.
o One matter I handled as a prosecutor involved a man charged with felonious assault for attacking an individual he met at a homeless shelter. The accused had a clear, and deteriorating, mental disease or defect at the time but was living in the community. Invited the man back to his house and allowed him to stay a few days. At some point the accused assaulted the guest with a knife believing the guest was sent there to harm him.


The accused had a clear and convincing history of mental health issues. Once a motion was filed by his attorney to plead not guilty by reason of insanity (NGRI) a mental health assessment was completed by the state psychiatrist who agreed with the NGRI determination stating the least restrictive environment was the high security mental hospital for violent offenders located in Columbus, Ohio.

In Ohio, once an individual is found to be NGRI, he continues to be subject to the court’s jurisdiction for a period equal to the maximum term of imprisonment. In our example, the maximum sentence for felonious assault was 8 years.

Initially after the first six months, and then every two years thereafter, the mental health institution submits a report to the sentencing court on the individual’s mental health condition and the recommended “least restrictive environment” as discussed above. In our case, after the first 6-months and then four times thereafter, the state mental hospital provided a report recommending the individual remain in the high security Columbus facility.

At the conclusion of the 8 year maximum sentence, all spent in the Columbus facility, the state moved for what is known as a “civil commitment” before the county probate court. At that time the probate court then takes jurisdiction over the individual, appoints a guardian for the incompetent individual and continues to assess the “least restrictive setting.” In our case the individual never returned to the community and passed away in the care of the institution.

Were the state doctor to determine an individual did possess the mental ability to know the wrongfulness of his actions (hence not NGRI), the defendant could seek a second, private assessment. If the two assessments reach differing conclusions the defendant has the burden to establish by clear and convincing evidence the mental disease or defect did prevent knowledge of the wrongfulness of the actions. This is a jury verdict or a judge verdict if the jury is waived. Often, as a strategic move, a defendant will waive the right to a jury trial and try the NGRI issues directly to the court.

· Do you agree with some states abolishing the insanity defense? Why or why not?
o I believe most of the abolishment is semantics and, as such, do not have difficulty with it. Look closely to the states that have “abolished” and you will see similar mechanisms for dealing with those truly possessing a mental disease or defect. These states instead opt for language pointing out that the accused is in fact “guilty” of the act but otherwise insane and thus should be handled differently in sentencing.

o States that are pointed to that have “abolished the insanity defense” have adopted similar mechanisms for dealing with those who would otherwise be NGRI in M’Naughten states:
§ Idaho - The state has abolished the insanity defense but allows a guilty but insane verdict.
§ Kansas - The state abolished the insanity defense but permits a defendant to introduce evidence a mental disease or defect prevented having the requisite mental state.
§ Montana - The state has abolished the insanity defense, although a guilty but insane verdict is allowed.
§ Utah - The state has abolished the insanity defense, but guilty but mentally ill verdicts are allowed.

o In my opinion, the states are moving away from the “not guilty” stigmatism yet still handling the individuals in a similar fashion. Should you look to the way the mentally ill are handled by both systems I believe you will find they are similar.

· How often does the possibility of mental disorders affect the outcome of cases?
o If we are speaking of outcomes as a court’s sentencing options, then mental disorders quite often impact the outcome. Those instances are not NGRI cases but rather are cases where psychological treatment, including medication, could help reduce recidivism. A noticeable number of individuals charged with crimes have a mental health component in their history. Over the last five years local courts here have started “mental health” courts to help those with mental health issues deal with their diagnoses and remain on treatment plans.

o By comparison however, mental disorders rarely rise to the level of preventing an individual from truly knowing the wrongfulness of her actions. NGRI cases, true NGRI cases, are rare - raised in less than 1% of felony cases here in Summit County and successful in only about 10% of those instances. They tend to gather attention, but in the day-to-day criminal justice administration they are few.

· How does one gain evidence to prove mental illness affected judgment?
o A state report is prepared upon the filing of an NGRI motion. The psychological assessments are lengthy and expensive. As a result the trial court will likely ask counsel if there is indeed a history of mental illness supporting such a motion to avoid the abuse of the process. If I can demonstrate a legitimate NGRI issue, then the court will order the assessment – this can be by agreement with the prosecution or over the prosecution’s objections.

o Once the report is returned both the state and the defense have opportunity to review. They can stipulate to the report or request a hearing if the conclusions in the report are challenged by either party. The attached entry in the Myers is a nice illustration of the process.

· What kind of cases does the insanity defense cover? Only murders?
o In Ohio, and I believe in all that use it, insanity is available as a defense to any criminal conduct. The underlying premise is a crime is composed of two essential elements – an act and a mental state. A plea of NGRI calls into question the accused’s ability to truly form the necessary mental state to commit the crime charged and thus would apply to prosecution for any crime.

· Are there are any big name cases you disagree with the verdict for? Why?
o I am sorry, but that’s going to be tough to answer. Big name cases are ones that often trigger most of the outcry about being “not guilty” due to a mental disease or defect. However, while I tend to shun paying attention to these cases, ones that come to mind where the defense was raised show that the defense, in fact failed:
§ 2011 Tucson shootings (Rep. Giffords) - Loughner raised the issue but ultimately was found competent and plead Guilty.
§ Locally, Jeffrey Dahmer and Anthony Sowell raised but failed in their bids for NGRI determinations
§ If you are interested in following this for a while the Aurora movie theater shootings in Colorado will be interesting to watch. James Holmes has the insanity and irresistible impulse defenses available in Colorado.

o I would offer that if an individual is truly unable to comprehend the wrongfulness of her actions, I would not disagree with an NGRI verdict. However, as illustrated above, in my experience it also means the individual will spend possible the remaining days institutionalized. I have no problem with that.

· What specialists are brought in for these cases to help get the most accurate verdict?
o Current psychiatrists who evaluated the defendant and prepared the report, or reports, under the requirements of the NGRI statute. Additional testimony may be used from long-term treatment professionals for the defendant as long as their testimony is relevant. These would be doctors the defendant has been treating with for years prior to the allegations.

· Would you be able to take on an insanity defense case? Why or why not?
o Have done several and would again if the issue presented itself. I feel it is appropriate where an individual fits the statute.

o NGRI cases, if found NGRI, go on for years and years – again, up to the maximum sentence available for the crime alleged. Thereafter, civil commitment hearings at probate court level continue to keep such an individual under the jurisdiction of some court authority. If an individual is dangerous to society, especially if unable to see herself as such, it is important to take these cases on as either a defense attorney or prosecutor to see that the right institution is dealing with the individual who committed the act.
Amanda Melocchi's comment, March 13, 2013 1:47 PM
Interviewed: Bob Incorvati
Amanda Melocchi's comment, March 13, 2013 1:48 PM
ten years of experience as a criminal prosecutor email:incorvati@ciccolinilaw.com
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The Hinckley Trial and the Insanity Defense

Evolution of the Insanity Defense----Effect of the Hinckley Verdict on Insanity Laws
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Amanda Melocchi's comment, March 7, 2013 3:11 PM
Early release is due to two main reasons. First "court rulings that insanity acquittes are entitled to the same constitutional due process and equal protection rights of civil patients.' Because of this, it is extremely hard to have a person remain in the hospital after receiving help for their mental disorder. The 2nd factor in early releases is the improvements in mental aid.
Amanda Melocchi's comment, March 7, 2013 3:14 PM
Daniel M'Naghten, a mentally ill patient, purposely murdered the prime minister's assistent due to the fact he thought he was being prosecuted. He chose to use the insanity defense in the court. They attempted to reveal his insanity by displaying his process of committing the attack.
Amanda Melocchi's comment, March 7, 2013 3:18 PM
Multiple doctors made claims of the defendent without even doing an examination. Their results were made from simply sitting at the trial and taking it all in. The case was then put to a halt and M'Naghten was in fact proven to be insane.
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Insanity defense | LII / Legal Information Institute

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Amanda Melocchi's comment, March 7, 2013 3:25 PM
After further evaluation, it was decided that the M'Naughten rule was not the best indicator for the insanity defense to be used accurately. The Durham rule was then put into place. This rule claimed, "that an accused is not criminally responsible if his unlawful act was the product of mental disease of mental defect." After some time this ruling was taken out of practice due to the Durham rule not being specific enough. People with addictive habits successfully used this defense to conduct a variety of crimes.
Amanda Melocchi's comment, March 8, 2013 1:57 PM
In 1972, the Model Penal Code was created by people from the American Law Institute. The Model Penal Code stated an individual can not be blamed for committing a crime when, because of a mental illness they did not have "substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.: This was created off of the case United States v. Brawner. This type of ruling is not very specific.
Amanda Melocchi's comment, March 8, 2013 2:03 PM
After approval from Congress and President Reagon, in 1984 the Comprehensive Crime Control Act was put into place. Because of this, relevant and convincing evidence is required. Along with this, at the time of the crime the defendant needs to be considered "unable to appreciate the nature and quality or the wrongfulness of his acts." In short, this can be simplified as knowing the difference between right and wrong.
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A Crime Of Insanity - Insanity On Trial | FRONTLINE | PBS

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Amanda Melocchi's comment, March 8, 2013 2:19 PM
A huge problem with the M'Naughten rule is how it does not take into account the concept of control or impulse. Doctors say it is possible "to understand that one's behavior is wrong, but still be unable to stop oneself." In order to take this into account, places across the US have made changes to the M'Naughten test by adding the irresistible impulse. This proves a person who commits a crime is able to tell the difference between right and wrong but still says a person is unable to stop themselves from doing the act.
Amanda Melocchi's comment, March 11, 2013 1:53 PM
Because of the publics react to the Hinckley case, Congress decided to take action. They did so by coming up with numerous pieces of legislation to "abolish or modify the insanity defense." The ALI substantial capacity test was what was mostly used at this time. Any new type of test created had the goal to avoid such problems found in the Hinckley trial.
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Guilty but Mentally Ill (GBMI) vs. Not Guilty by Reason of Insanity (NGRI): An Annotated Bibliography

Guilty but Mentally Ill (GBMI) vs. Not Guilty by Reason of Insanity (NGRI): An Annotated Bibliography | Insanity Defense: Aspect 2 | Scoop.it
Introduction The mental status of the defendant has long been an issue of interest for legal professionals. Most states have some kind of insanity plea (i.e., Not Guilty by Reason of Insanity [NGRI]).
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Amanda Melocchi's comment, March 8, 2013 8:00 AM
The usage of Guilty but Mentally Ill has became a growing choice for those it applies to. While it has become more common, it's availablitity is not very large. The growing knowledge of this defense is due to the big name cases that used it. This plea is used mostly when "there is clear evidence of either a lack of the defendant's appreciation of the wrongness of their actions, or a lack of understanding of the consequences of their actions."
Amanda Melocchi's comment, March 8, 2013 2:09 PM
the GBMI plea has a great number of critics. The main one being juries believing the defendant "receives specialized treatment." Ironicly the defendants are brought to the same correction centers as those found guilty. People who are against this form of the insanity defense want the jury to have more information about the situation before a decision is met.
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Tami Yaklich's comment, March 21, 2013 11:42 PM
Great job synthesizing info from your sources!
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