Jared Loughner and the ins and outs of the insanity defense

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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.”

Thirdly, it is important to note that the defense need only prove that the defendant was either unable to “conform” to societal standards, or that he or she was unable to “appreciate the wrongfulness of his or her actions.” One or the other is sufficient to raise the issue of insanity.

The wording of the section in the United States Code that governs the issue of the insanity defense is very specific on this:

First, that the insanity defense “is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.”

Secondly, “The defendant has the burden of proving the defense of insanity by clear and convincing evidence.”

Chin emphasizes this point. “Just being severely mentally ill in no way means that the insanity defense is available.”

“You have to be unable to appreciate the nature and quality of the wrongfulness of your act,” Chin said. For instance, he said, if “you think you are in a video game,” or, the classic example he said, is that “you think you’re squeezing lemons when really you’re strangling somebody.”

There is rarely need to prove the facts of such a case. As in the Loughner case, where there are eyewitnesses to the shooting and in which he was tackled to the ground while trying to reload his gun, “what happened is never really at issue,” said Delahunt. “It’s a question of why it happened.”

The government, on its end, will try to prove that Loughner can be held responsible for his actions by illustrating that his actions were premeditated and planned, or that the person had the “ability to conform” and at least put on a show of a normal life. They will look, Delahunt said, at “every step of his day” leading up to the shooting: “where he parked…how he concealed the gun as he walked from the car to the place where he fired from,” the fact that he was “using a high capacity clip” as opposed to an ordinary one, that he was “changing clips when they tackled him — that all shows functionality, that all shows understanding of how firearms work.” Any form of planning like that “shows preparation,” Delahunt said. The fact that he hid the gun suggests an “ability to conform.”

“I’d do a time line back in time as far as you can go,” Delahunt says. “Was he taking classes? Working a job? Keeping medical appointments?” he asked, continuing, “Did he do anything like that that a normal person is capable of doing?”

All of which, Delahunt said, would suggest that he had the capacity to live something resembling “a normal life” and to conform.

Ultimately, the insanity defense is “rarely raised, and even more rarely successful,” Chin said. “People have to be pretty far gone to get an insanity defense.”

Delahunt said the same thing, noting that “oftentimes the common denominator is that the police had a video tape statement or interview of the accused shortly after the crime, and they look crazy, they look troubled, they look like they’re mentally ill.”

Loughner’s mug shot might seem to fit that bill, but even that would likely not be sufficient.

“To persuade a jury that he’s lacking in criminal responsibility by reason of mental disease and defect,” Delahunt says, “you’re going to need a lot more than that.”

Someone “can be a son of bitch; just a mean, nasty, vicious son of a bitch and do horrible things,” Delahunt said. “It doesn’t mean that they’re mentally ill, and at the same time they can be mentally ill and still be criminally responsible.”

Nonetheless, “in a case like this,” according to Chin, “mental health issues are going to be at issue all the way along the way…they are relevant to plea bargaining and sentencing because mental illness…in many instances will be regarded as a mitigating factor.”

“Even if they don’t have a defense,” he said, in the case of someone who is clearly mentally ill, a judge “might give them a lower sentence than somebody who is calm cool and collected when the crime is committed.”

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