A defendant is on trial for murder. His attorney has filed a notice that the defendant is going to rely on the defense of insanity. The client has been non-responsive with a flat affect. As is standard practice, a psychiatrist has been court appointed to examine the defendant and to be an expert witness at trial. Since the defendant has raised the defense of insanity, it will be his obligation to prove it.

Psychiatric testimony will be a critical part of the defense and, indeed, it is almost impossible for an insanity defense to proceed without such evidence. In his report, the psychiatrist concluded within a reasonable degree of medical certainty that the client was insane at the time of the offense. This opinion is vital to the defense because the first degree murder charge accused the defendant of knowingly and willfully killing the victim. If the defendant was insane at the the time of the offense, he could not form the necessary intent, and, if the jury agreed, would be found not guilty by reason of insanity.

The psychiatrist was able to conduct his examination despite the fact that the defendant was fairly non-communicative with him. The defendant's demeanor actually was part of the basis for the psychiatrist's opinion on insanity.

At trial, the psychiatrist testified in line with his report, i.e. that the defendant was insane at the time of the offense.

The defendant chose to testify. Normally, defense attorneys do not encourage the client to testify. Of course, the decision is ultimately the client's. But in this case, the lawyer thought it might lend credence to the defense. He thought that the defendant's non responsiveness at trial would support the psychiatric evidence and convince the jury of his client's insanity.

Indeed, on direct examination, the defendant would not answer many questions, despite the admonition of the judge.

This strategy was working..... until the cross examination.

At first, the defendant exhibited the behavior which had initially prompted the attorney to file for an insanity defense: he was non-responsive. Then the prosecutor concluded his cross-examination with a simple question:

"Why didn't you talk with your attorney and the doctor?"

To the amazement of court personnel, the defendant answered the question. He said. "Because I don't like them".

Needless to say, his insanity defense was rejected by the jury.

Insanity defenses usually are. According to Emily Bazelon in her article "Crazy Making" for Slate magazine, less than one quarter of 1% of such defenses actually succeed.

 If an insanity defense does succeed, the options in court are limited. In Florida, a judge may choose to involuntarily commit a defendant, then reexamine him/her in 6 months. Or the judge may close the case and discharge the defendant. So, potentially, a defendant who was legally insane at the time of the offense is released without follow-up treatment.

Incompetency to proceed is another matter.

If, say, a defendant suffers a psychotic episode and randomly guns people down, he/she might be found incompetent to proceed to trial. He/she is then treated for a period of time and reevaluated. In many cases, it's about 6 months. Then the defendant is returned to the jurisdiction for trial, reexamined and generally found to be competent. But, in rare cases, the treatment period can go on for years.

A Florida case is but one example of this.

In 1981, a defendant gunned down two police officers in a drug raid: one officer survived, one did not.

The defendant ultimately was found guilty and sentenced to death. The conviction was affirmed, but the sentence was overturned on appeal, due to the defendant's mental health problems.

Before the defendant could be resentenced, he suffered a psychotic episode and was found incompetent to proceed.

He was sent back to the state mental health facility, treated and, when stabilized, returned to state court. But upon being evaluated in the local jail, he supposedly decompensated and was found incompetent to proceed. This same scenario happened 11 times over a total of 25 years. In fact, at the 11th competency hearing, one psychiatrist said that the defendant would never achieve the necessary mental status to permit the case to go forward.

Because this case involved the killing of a police officer, the State wanted to continue with efforts to have the defendant be found competent. The State again intended to seek the death penalty.

At his 12th competency hearing, the defendant's psychiatrists testified in line with the previous reports and concluded that the defendant was not likely to ever be found competent.

At this hearing, however, the State offered the testimony of a psychologist from the treating hospital. The psychologist had observed the defendant over many months and provided a different view of the defendant's mental illness. For one thing, according to the testimony, the defendant took his meals with others and appeared to have animated, interactive conversations. He also administered his own insulin and kept himself clean. This psychologist said she had never seen the defendant talking with himself.

This was the defendant's behavior when he thought no one was watching.

However, the defendant's behavior changed when he knew he was being watched: he voiced delusions, stayed by himself, wouldn't trim his beard because he said that was where his power lay, etc.

The State argued that this testimony showed that the defendant was malingering the extent of his mental illness and was competent to proceed. And, after 25 years, a judge agreed.

When the State finally came off the death penalty and offered a life sentence, the defendant said he perfectly understood the offer and was able to communicate with his lawyer, and he accepted the deal.

The above two cases illustrate the paucity of options for mentally ill defendants in the criminal justice arena. There really is no correlation between an insanity defense and mental disease, or competency and mental illness. One can be competent under the criminal rules, yet be mentally ill.

In Florida, mental health professionals and court personnel have made some efforts to address these concerns. In a few jurisdictions, we have "Mental Health" divisions within the criminal court division. A defendant needs to have a qualifying Axis One diagnosis to be accepted into the division, as well as the approval of the State Attorney's Office. After the case has been transferred into the division, treatment is ordered and progress is monitored by the court. There are a few other requirements as well, but the goal is to help those people who keep revolving into criminal court because of their mental illness.

Admittedly, the Mental Health division is but a small step in the treatment of mentally ill defendants , but at least it is a step in the right direction.

About the Author

Susan Sexton

Susan Sexton is a circuit judge in the Thirteenth Judicial Circuit, currently assigned to the Criminal Justice Division, Post Conviction Relief.

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