Colorado Killer and the Insanity Defense

By Attorney Gregg Herman
July 23, 2012

The discussion at our family lunch yesterday was the likelihood of an insanity plea from the Colorado killer.

Let’s distinguish between competency and insanity.  In order for the legal process to proceed, the defendant must be competent.  The definition of competency is that the defendant understands the charges against him and can assist in his own defense.  This is such a low standard that the only defendants found incompetent are those who are virtually catatonic and non-communicative.

To be found Not Guilty by Reason of a Mental Disease or Defect (NGI) is also a two part test.  First, there has to be a  mental disease or defect.  An anti-social personality is not a mental disease or defect.  Second, as a result of the mental disease or defect, the defendant must not be able to differentiate between right and wrong.  Again, the test is that he is “not able” to differentiate – not that he chose not to.

As a prosecutor, I handled a number of NGI cases.  The competency issue was a very common one in misdemeanor disorderly conduct cases, where the real “crime” was severe mental illness.  It was rarely an issue in felony cases.

The NGI issue, however, was an issue in several cases, but it usually was not an impediment for prosecution.  Where the defendant was capable of living even a relatively normal life, getting up in the morning, getting dressed, sometimes even going to work, it was fairly easy to persuade a jury that the defendant made numerous decisions every day exhibiting an ability to distinguish between right and wrong.

Of course, there is something severely wrong with a person who plans for months to execute innocent people.  For that matter, anyone who would point a gun and pull a trigger at an innocent person is severely disturbed.  But, that is not the standard and juries are not likely to feel sorry for such a person.

I would totally expect the defense to opt for an NGI plea, often called the “plea of last resort.”  I would not expect the defendant to succeed.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.