You used the 1% figure, saying that out of 100 cases …
No, no. Of 100 cases that go to trial in Maricopa County, only 1 will involve an insanity defense. And of course, not all of those are successfully defended.
The ones I’m talking about are “guilty except insane” defenses. In Arizona there’s no “not guilty by reason of insanity,” it’s “guilty except insane,” and then the result of guilty except insane plea is they are sent to the Arizona state hospital under the supervision of psychiatric security review board for a period of time.
So people are thinking, for example, about this recent case that happened in Texas- the American Sniper case- people think that if someone is found not guilty by reason of insanity, then everything is going to go away. But in Arizona, it’s not that way. The government has to find you guilty first, and then you have to prove by clear and convincing evidence that you were insane. Then the difference is instead of being sent to prison, you are sent to a state hospital.
So does that mean as a defense lawyer that you’re not arguing over the facts of what happened?
Most of the time were not arguing about guilt. Most of the time were dealing with the defendant’s state of mind at the time of the offense, whether they were in psychosis or mania or something else. It’s my belief that people who are not competent shouldn’t go to trial and shouldn’t be in the system. It’s my belief that people who are mentally ill at the time of the offense shouldn’t go to prison and that’s what the guilty except insane is about.
There are many people who appear to have mental problems at the time of the arrest who DON’T get defended by someone with experience in this area and who DO get convicted.
Yes.
So in those cases, either the attorney tries to come up with a mental health defense and does a bad job of it or they don’t even attempt it and they just use another defense?
Like I said, 1% of cases go forward with insanity defense. That’s not the number for people with mental illness that have criminal cases that go to trial. So there are a lot of people with mental health issues that don’t go to trial with the insanity defense. That doesn’t mean that their mental illness can’t be used to mitigate a sentence.
It doesn’t come into consideration where the jury would decide guilty or not guilty?
No, the only time the jury has the issue dealing with insanity is whether or not the insanity defense has been raised. And then mental health issues come into play in front of the judge as far as mitigating a sentence.
How do you decide whether to use the facts of the defendant’s mental state as a mitigating factor in a defense or to make it the core of an insanity defense?
Well you start with getting them the proper evaluations. You start with your experts. I, as an attorney, am not capable of determining your state of mind at the time of the offense and that’s why we hire experts and that’s why we rely on them to make those determinations.
