'American Sniper' and Aurora trials: insanity defense a tough standard to meet

The insanity plea is a legal tactic found far more often in fiction than in a courtroom.

But two high-profile trials this month, one in Texas and one in Colorado, offer a window into the challenges of mounting a not-guilty-by-reason-of-insanity defense.

In Texas, the defense on Thursday rested in the trial of Eddie Ray Routh, who on Feb. 2, 2013, prosecutors say, did what no Iraqi insurgent ever managed: Kill Chris Kyle, America’s best combat sniper.

His lawyers claim that Mr. Routh, a veteran diagnosed with post-traumatic stress disorder, was in the midst of a psychotic episode when he killed Mr. Kyle and Kyle's friend, Chris Littlefield, at a Stephenville, Texas, gun range. Complicating matters, the trial is playing out at the same time that “American Sniper,” an Oscar-nominated film about Kyle’s life, has become a runaway blockbuster.

A few hundred miles north, in Aurora, Colo., a jury is being assembled to hear whether James Holmes, a former doctoral student, should be found not guilty by reason of insanity for killing 12 people at a midnight showing of “Batman: The Dark Knight Rises” in July 2012.

Legal scholars say that an underlying issue whenever the insanity defense is employed is that the legal definition of insanity does not neatly dovetail with the emerging science of the mind. Instead, they say, the insanity plea is often imbued with political considerations.

As the two trials play out, the moment also provides a view into how some of America’s most passionate topics – soldiering, movie-making, guns, and mental illness – may play to various degrees into jury deliberations over a killer’s state of mind.

“Guns and mental illness are a very lethal combination, and here we have [two examples] where juries have to decide whether defendants are just rotten and evil or whether they are insane,” says Jane Campbell Moriarty, a Duquesne University law professor and editor of “Mental Illness in Criminal Trials.”

For the most part, American juries set a very high bar for claims of temporary madness, a defense so difficult to prove that it comes into play in less than 1 percent of criminal cases in the United States.

The insanity defense is “problematic,” says Bob Dekle, a law professor at the University of Florida in Gainesville, because “you have to admit you committed the crime, and then the question is: What were you thinking when you did it? And then the test itself – the ability or inability to know the difference between right and wrong – is an awfully steep standard, which is how you can have defendants who are profoundly mentally ill but whom psychiatrists still pronounce sane (for the purposes of the trial).”

The insanity defense first emerged in the 18^th century in England, at a time when legal thought focused more on whether a defendant could ascertain good from evil. In the 19^th century, the so-called M’Naghten rule established the standard widely held today: Did the defendant know his or her actions were wrong at the time he or she committed a crime?

The M'Naghten rule came out of an 1843 case involving Englishman Daniel M'Naghten, who shot and killed the prime minister's secretary, but was found not guilty “by reason of insanity.” As would happen nearly 150 years later in America, public uproar caused Queen Victoria to demand the court come up with a more rigorous insanity test.

Civil War Gen. Daniel Sickles was the first American to claim temporary insanity as a defense after he killed Philip Barton Key II, the son of Francis Scott Key, for having an affair with his young wife. General Sickles, who shot Mr. Key as he was walking near the White House in 1859, was acquitted.

But the starkest modern debate regarding the plea in America came after John Hinckley was found not guilty by reason of insanity in the shooting of President Reagan in 1981. Tried in Washington, D.C., which at the time had perhaps the most expansive interpretation of insanity in the country, Mr. Hinckley was found not guilty by reason of insanity and committed to a mental institution.

Outrage ensued. In crafting the 1984 Insanity Defense Reform Act, which set a higher bar for federal crimes, the late Sen. Arlen Specter opined that, under the definition used in the Hinckley case, “70 percent of Americans” could basically get away with murder. 

Since that trial, most states now require that the defense has to prove “clear and convincing evidence” of temporary psychosis, which is a higher standard than having to prove beyond a reasonable doubt that mental illness was responsible for a crime.  

That’s why it is “one of those defenses that's relatively easily raised, but it is very, very difficult to have it be successful,” Michelle Oberman, co-author of “When Mothers Kill,” told Tampa Bay Online last year.

In Texas, concerns about Routh’s state of mind, the jury has heard, appeared early on the day of the shootings, when Kyle was doing something he often did: take struggling fellow soldiers out to the shooting range for some R&R and companionship. 

In a text to Mr. Littlefield as the threesome drove to the range, Kyle wrote, “This dude is straight up nuts. Watch my 6,” or rear blind spot.

Routh has claimed that he believed he was the one who was in danger: “He began to think that Mr. Kyle and Mr. Littlefield were some type of pig assassins — hybrid pigs sent here kill people,” Mitchell Dunn, a psychiatrist who evaluated Routh, told the jury on Thursday.

Given that Routh admitted in a taped confession to knowing right from wrong during the shootings – as well as the fact that Kyle is so revered in Texas that the governor this year named Feb. 2 Chris Kyle Day – the strategy is risky, legal experts say. Notably, Clint Eastwood's “American Sniper” is playing at the Cinema 6 in Stephenville, three miles from the Erath County Courthouse where the trial is being held.

Still, Routh’s claims could get some traction with the jury, says Professor Moriarty, given that he had been committed to mental institutions, had taken antipsychotic medications, and his family and friends have testified to their grave concerns about the combat veteran’s state of mind. 

Moreover, Texas is also the site of one of the most successful insanity defense claims in recent history. After an appeals court overturned a guilty verdict against Andrea Yates, who had admitted to drowning her five small children, a jury in her 2006 retrial found Ms. Yates not guilty because of her claims of postpartum psychosis.

“What’s interesting is when we see people on the street who appear to be crazy, we think, ‘Wow, they’re insane,’” says Moriarty. “Once you put those people in the dock, we say, ‘Wow, they’re faking.’”

In Aurora, the Holmes case is shaping up to be the biggest criminal trial in Colorado history, with some 9,000 people receiving a jury slip in the mail. 

Potential jurors are being asked pointed questions about their views on the death penalty and whether they believe mental illness is the same as insanity. Since prosecutors are seeking the death penalty, rather than life in prison, whether Mr. Holmes is found to be psychotic or in control of himself when he shot up the theater may be critical for a jury that also will have to weigh punishment if they find Holmes guilty.

Colorado also has a particular, two-pronged standard for the insanity defense that could affect the outcome of the trial. 

Holmes has to be declared legally insane and thus unfit to stand trial if either the state can prove he is “so diseased or defective in mind at the time of the crime that he cannot tell right from wrong,” or that he “has a mental disease or defect that prevents from forming a culpable state of mind.” Unlike many states, Colorado also puts the burden on the prosecution to prove that a defendant like Holmes is fit to stand trial.

“This is an enormous burden but an even greater one in this case – where Holmes has exhibited behaviors that are sometimes inconsistent with Colorado's two-pronged legal definition of insanity,” writes Philadelphia attorney Heather Hansen on Headline and Global News.