Defending Jared Lee Loughner: Will an insanity plea work?

If Jared Lee Loughner's defense attorney, Judy Clarke, decides on an insanity plea, many experts believe it will fail. The burden of proof that the defense bears in such cases has grown in recent years.

No sooner had Jared Lee Loughner appeared in federal court on Jan. 9 to be charged with the attempted assassination a day earlier of Rep. Gabrielle Giffords in Tucson than speculation began to swirl about the nature of his defense. Would he plead not guilty by reason of insanity? And how strong would his case be?

Photographs of the smirking suspect with his head freshly shaved, reports of his angry and at times incoherent postings on the Internet, and the accounts of former classmates and longtime friends all fed the notion that Mr. Loughner was, in layman’s terms, unstable and possibly deeply disturbed.

At the same time, as investigators retraced Loughner’s steps before the shooting – which gravely wounded Ms. Giffords and claimed the lives of six others –a narrative emerged indicating that the 22 year old had methodically and deliberately planned the attack.

On Wednesday a federal grand jury officially indicted Loughner for the attempted assassination of Giffords and two of her aides. Further federal and state charges likely are forthcoming. He has already been charged with the murder of a federal judge, a capital offense.

As the charges multiply, legal analysts are expecting an extended spotlight on the issue of the insanity defense, which, they say, will be extremely difficult to mount successfully.

Loughner’s defense attorney is Judy Clarke, who also represented Unabomber Ted Kaczynski in 1998.

“Judy Clarke is one of the most respected capital defense attorneys in the country, and the speculation is that she will likely go for the insanity plea,” says Robert Pugsley, professor of law at Southwestern Law School.

The McNaughton rule

Professor Pugsley and others say they will be watching the Loughner trial to see whether or not it advances the McNaughton rule, the longtime standard for insanity in the United States and Britain. The rule is twofold: Does the accused understand the nature of his act? And did he know the act was morally wrong?

The rule is named for a 19^th -century British defendant who was acquitted “by reason of insanity.” The public backlash to that verdict prompted a stricter legal test for insanity. The burden was placed on the defense to prove to the jury that at the time of the crime, the defendant “was laboring under such a defect of reason, from disease of the mind, as to not know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong.”

In the mid-20^th century the US standards for determining insanity were temporarily weakened, especially in the 1950s formulation of the so-called Durham rule, in which “an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.”

But the burden on the defense to prove an incapacity to know right from wrong was gradually restored, especially after John Hinckley was found not guilty by reason of insanity in 1982 for the attempted assassination of Ronald Reagan.

Amid a strong public backlash, the defense is used in less than 1 percent of all homicide cases and, of those, is successful only 10 to 25 percent of the time, according to Anita Boss, a Virginia-based forensic psychologist who has testified in scores of insanity defense cases.

'Nearly impossible to win'

“People are polarized about the insanity defense and it has been nearly impossible to win these cases for decades,” says J. Lee Meihls, president of TrialPartners Inc, a leading trial consulting firm headquartered in Los Angeles.

“It is confusing to a juror to conclude that someone is truly mentally ill when a mentally ill person can also perform many daily activities without a problem,” she says. “Jurors typically conclude that madmen can control their behavior and therefore cannot be legally insane. This is truer when there are so many likeable and innocent people who have lost their life.”

While Giffords appears to have been the main target of the Tucson shooting, six people were killed, including Giffords’ staff member Gabriel Zimmerman, US District Judge John M. Roll, nine-year-old Christina-Taylor Green, and three others. Emotions are so high that all the US district judges in Tucson, who knew Judge Roll, recused themselves from hearing the case. The grand jury indictment this week, which supplants the earlier federal charges, was handed down in Phoenix.

“This case raises all the fundamental issues of how we as a society want to deal with those who are mentally ill and commit crimes because of it,” says Michelle Dempsey, a former Illinois prosecutor who is now an associate professor of law at Villanova School of Law. One key element Ms. Dempsey says she will be watching for is whether or not prosecutors go for the death penalty.

“This is a very difficult decision for prosecutors to make because they are caught between exercising responsibility and accountability on behalf of the victim’s families but needing also to exercise discretion that is wise and not reliant on vengeance.”

How courts treat the mentally ill

Dempsey’s observation over the years is that juries and prosecutors have tended to be easier on those who seem to have serious mental problems.

“We still have a lot to learn about the kind of mental problems that lead to killing,” says Dr. Bernard Luskin, an internationally known media and family psychologist. “Even the world of psychiatrists and psychologists don’t know enough about it yet.”

Pugsley and others are quick to announce their opinions that if the insanity defense is tried in Loughner’s case, it will fail.

“Based on the fact that the college had told him to get help, and he refused, he knew that the rest of the world did not approve of his antigovernment sentiments,” says Casey Jordan, a professor at Western Connecticut State University. “He knew the rest of the world would not approve of his shooting. He did it anyway. BAM! No passing the McNaughton rule!”

But Mr. Jordan and several others hasten to add that should the defense work, the repercussions will still be severe – it’s not like getting away with a crime.

“One of the big misconceptions is that if someone is found not guilty by reason of insanity that they are somehow free to be walking the streets and that is very far from the case,” says Paul Marcus, professor of law at William and Mary College.

Noting that Mr. Hinckley, Reagan’s assailant, is still in a Washington, D.C. mental facility 28 years after his trial, Professor Marcus adds that “being incarcerated in prison is very bad, but being held against your will in a mental health facility is at least as bad. The evidence is that those who are released from mental institutions vs. those from prison shows that those in the former have a harder time.”