Vail Daily column: What is criminal insanity? |

Vail Daily column: What is criminal insanity?

In the first part of this column, we looked at what constitutes criminal insanity.

Here, we look at pleading insanity, testing its validity, repercussions if one is found criminally insane, and the potential challenges facing the Aurora shooter’s presumed insanity defense.

The defense of insanity may only be raised by a specific plea, generally entered at the time of arraignment. “Arraignment” is where the defendant is officially informed of the offenses charged against him. There, he will be asked to enter a plea of guilty, not guilty, or as may be otherwise permitted. A “specific plea” is where the defendant does more than simply plead guilty or not. Instead, he states that there is a special reason why he is not guilty.

The plea of “not guilty by reason of insanity” must be entered orally and contains within it a plea of “not guilty.”

If the defendant’s attorney believes the plea should be entered but the defendant refuses to permit it, the attorney may inform the court. The court will then conduct such an investigation which may include the appointment of mental health practitioners to examine the defendant and advise the court. If after investigation, the court determines that the plea should be entered, it will do so on the defendant’s behalf.

If there has been no grand jury indictment or preliminary hearing prior to entry of the plea, the court will hold a preliminary hearing prior to trial of the insanity issue. A grand jury, by the way, is used to decide whether someone should be charged (“indicted”) for a serious crime and consists of a group of citizens sworn in by the court. Unlike a “petit” jury (or “trial” jury), a grand jury does not determine guilt or innocence, but decides only whether there is probable cause to prosecute one for a felony. While common in the federal court system, grand juries are vanishingly employed in state courts.

Proving or disproving the insanity relies heavily on forensic psychology and/or psychiatry. To establish the defense, it must clearly be proved that, at the time of the committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, he did not know he was doing was wrong.

Some famous cases where the insanity defense was invoked include the 1881 murder trial of Charles Guiteau, President James Garfield’s assassin, the 1982 trial of John Hinckley, who was found not guilty by reason of insanity in the attempted assassination of President Ronald Reagan, and, most recently, the case against Jared Lee Loughner, Congresswoman Gabriel Gifford’s would-be assassin.

While there are varying statistics – and, perhaps a public misperception that the defense is overused – in fact the defense is invoked in less than 1 percent of all criminal cases and, in the vast majority of those, it ultimately fails.

So what if at trial a defendant is adjudged not guilty by reason of insanity? What then becomes of him? Does he simply skate?

Well, no.

While he may escape the death penalty (a fate the Aurora shooter may well face), a defendant found not guilty by reason of insanity will generally be placed in a locked-down mental institution. It is worth considering that the party has not been found guilty of a crime; unlike a defendant who has, in fact, been found guilty, a criminally insane defendant is not institutionalized for a fixed period. Instead, he may be held until he is determined to no longer pose a threat. Authorities making this decision tend to be cautious; as a result, defendants can often be institutionalized for longer than they would have been incarcerated in prison.

The notion of temporary insanity has also from time to time been held as a defense. The theory advances that while a defendant was insane at the time the crime was committed, he has now recovered. This defense was first used by U.S. Congressman Daniel Sickles of New York in 1859 after he killed his wife’s lover, Philip Barton Key (son of Francis Scott Key, author of the national anthem). This is the rarest of rare defenses and is unlikely to the nth degree in the Aurora shooter case.

Can one found not guilty by reason of insanity be retried when he recovers his sanity?

No. The double jeopardy protections of the 5th Amendment to the U.S. Constitution would prevent it.

A final matter of note is that following the Hinckley verdict a number of states adopted “guilty but mentally ill” verdicts. This verdict allows mentally ill defendants to be found criminally liable and requires them to receive psychiatric treatment while incarcerated, or, instead, to be placed in a mental hospital and when they are well enough, to be moved to a prison to serve their sentences.

So what are the alleged Aurora shooter’s chances of being found not guilty by reason of insanity? Well, there are problems to be sure. Preeminent among them are what appear to be the facts of the alleged shooter’s long, deliberate, and detailed calculation and planning. On the surface at least, it seems clear that he intended a massacre. In the last analysis, however, only time will tell. And it may take years before the matter finally comes to trial.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his email addresses, or

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