Jared Loughner and the ins and outs of the insanity defense

Most people consider Jared Loughner, the man accused of shooting and killing six people and wounding Rep. Gabrielle Giffords, to be mentally ill. Looking at Loughner’s happy smirk in the mug shot taken after his shooting rampage, it’s easy to see why.

But that’s not going to be enough for Loughner to be ruled insane in his trial.

If Loughner’s lawyers do choose to plead insanity, they will have to prove not only that he was mentally ill, but “that the defendant lacked the substantial capacity, by reason of mental disease or defect, to conform his conduct to the mandates of the law or to appreciate the wrongfulness of his or her actions,” explained Robert Delahunt Jr., a partner at the law firm Mintz Levin who has tried cases in which the insanity defense was used.

There are several aspects to proving this.

First, “you have to have a mental disease or defect—you have to qualify,” he explained. This is not as simple as it seems, he said, because someone “can be mentally ill and it’s not a disease or defect as diagnosed by experts.” Or, there could be disagreement between experts. There “can be something wrong with this guy, can have an anxiety disorder, one expert will say it is a mental defect, one expert will say it isn’t.”

The subjectivity of determining whether or not someone is mentally ill is a major issue in cases involving the insanity defense.

If a defendant chooses the insanity defense, he or she is “generally, not always … admitting that you did the crime,” according to Gabriel Chin, Chester H. Smith Professor of Law at the University of Arizona Rogers College of Law. “So it’s risky in that way,” he said.

“Once a defendant makes that disclosure, he or she then must submit … to an examination by a court appointed forensic psychiatrist, and that means waiving their Fifth Amendment rights,” Delahunt said.

But forensic psychiatry is, according to Delahunt, “the most subjective of the forensic sciences,” meaning that there is often divergence in opinion between various experts.

“This is a highly subjective area of interpretation where expert opinion is vital, the credentials of the experts is pivotal, and the thoroughness of their preparatory work is very important,” Delahunt explained. Forensic psychiatrists must show that they have gone through every single piece of evidence, every single occurrence on that day, discussed every single aspect of the case with the subject. “Any lack of thoroughness,” he said, “will be used by the government to punch holes in the defense expert’s opinion.”

Delahunt calls this “garbage in, garbage out,” suggesting that if the experts did not put in enough of an effort examining the case, then their results cannot be taken as conclusive.

If a defendant can get past this first hurdle, the second thing is to prove that the mental defect was relevant to the action — that “it was a big deal in his decision-making; it was a significant influence; it was the predominant impulse governing his behavior, shaping his decisions,” Delahunt said, as opposed being just a “distraction.”