Tom Leask waited patiently for years, biding his time, waiting for the word.
The folks in the tiny mountain town of Alma, where he lived, didn't know that Leask was waiting, but they knew he was "off." An oddball in a place populated with eccentrics, he was the town crazy, his mind addled by years of drug and alcohol abuse.
Most of the locals figured Leask was harmless, even though they knew he carried a gun. He never used it, just carried it for protection because he thought people might be looking to hurt him.
Leask worried that if he didn't have a gun, one day somebody would snatch him from behind the counter of the local store where he liked to sit and drink coffee, and they'd drag him out back and beat him up. So concerned was the loner about being assaulted that he was hardly ever without his weapon and slept in his clothes with the gun chained to his belt.
Leask couldn't -- or wouldn't -- say who'd do such a thing. "Lots of people" was what he'd respond when asked who would want to harm him.
Leask wasn't idle while he waited. He spent time preparing his grandmother's old shack, where he'd been living for 21 years. He tore out the floor and piled the wood in a corner and heaped tires and engine parts on top of the wood. When the time came, he figured, the old shack would burn pretty good.
And then he waited a couple more years.
The fifty-year-old's vigil finally came to an end one snowy evening in February 1998.
That night, Leask pedaled over to the town's old schoolhouse, a sack full of homemade Molotov cocktails hanging from the handlebars of his bike. He broke into the garage where the town's front loader was stored, turned the key in the ignition and allowed the machine to rumble to life, warming it.
Next, Leask marched into the school building and announced to the two people present for an Alcoholics Anonymous meeting that he was the new "master of ceremonies" for the evening. Then he shoved a gun in Willie Morrison's back.
He forced Morrison to read a passage from the AA handbook, after which Leask quoted from the Bible. Then he shot Morrison in cold blood.
When Morrison was dead, Leask lay waste to a handful of buildings, using the front loader as battering ram. He punched huge holes in the school building. The post office. The water department. The fire department.
Following his ruinous rampage in town, Leask adorned his face with "war paint," set fire to his grandmother's old house and then sat atop a snow bank as he waited for sheriff's deputies to come shoot him.
The waiting was over.
He'd done what God had asked him to do.
After his arrest, Leask told sheriff's deputies that he knew his actions were against the law of man. But God had asked him to do something, and he did it. He wasn't sorry. He wasn't ashamed. He said he was proud to have accomplished what God requested of him.
The incident was designed to bring attention to the state's water-diversion projects and the usurpation of Native American lands, Leask explained. He believed his onslaught had earned him a place at the right hand of God.
The only thing he asked of investigators was that he be granted a speedy execution. "I don't want no lawyers, no trial, no nothin'," he said. "Just put me in the thing and push the button."
Contrary to his wishes, the court appointed a public defender who quickly asked that Leask undergo a psychiatric evaluation.
Colorado law is not indifferent to the needs of mentally ill defendants; state statutes provide safety nets to ensure that mentally ill persons who are caught up in the criminal justice system receive treatment and hospitalization rather than imprisonment. One might even say Colorado is liberal in dealing with such defendants: It is alone among the fifty states in allowing a plea of Not Guilty by Reason of Insanity (NGRI) to be forced on an unwilling defendant.
The reasoning behind such a law is that in some cases a defendant doesn't realize -- or refuses to acknowledge -- that he or she is mentally ill.
It was thus with Leask.
He didn't want to plead insanity, even though doctors for the defense and the prosecution agreed that he had been insane when he embarked on his one-night crime spree. He fought his public defender every step of the way, demanding that he be allowed to represent himself and to plead guilty. He bombarded the judge, his attorney and the prosecution with lengthy letters pleading to be allowed to go to prison.
After two years, Leask "won" and was allowed to plead guilty. In June 2000, he was sentenced to life plus 27 years. He has been assigned to the Sterling Correctional Facility, where nineteen mental-health workers (only three of whom are psychologists) serve 2,350 inmates.
But Leask is not the only defendant to have fallen through the gaping legal loopholes of Colorado's liberal law. Overzealous prosecution, vaguely worded legislation and a politically charged atmosphere regarding NGRI verdicts is making it harder than ever for defense attorneys to win acquittals in insanity cases.
In September, the state supreme court ordered a new hearing for former Littleton resident Gwen Hendricks, who was accused of the 1991 murder of her husband. Hendricks was convicted after refusing to plead not guilty by reason of insanity; she has spent the past nine years shuttling between mental hospitals, the Colorado women's prison and the San Carlos Correctional Facility in Pueblo, which houses mentally ill prisoners.
The idea behind insanity verdicts is that society chooses not to punish people whom it considers morally blameless -- and therefore not criminally responsible -- because of mental illness. But the reality is much different, says appellate attorney Jane Hazen, who eventually won a new hearing for Hendricks. "Retribution is what people want," she says.
The push to punish the criminally insane has been attributed both to backlash against would-be presidential assassin John Hinckley and to a public weary of crime and "abuse excuse" defenses. But the verdict has always been confusing and controversial, marked by a periodic easing and toughening of issues of competency and culpability.
In 1973, in a display of social idealism, Colorado adopted a law explicitly permitting an insanity defense to be raised over a defendant's objection. The power to enter such a defense was (and is) limited to a request by defense counsel only and is intended to protect vulnerable mentally ill defendants. But it remains a controversial statute, even among defense attorneys, some of whom refer to it as a "Big Brother" law that would never stand up to a constitutional challenge in federal court. The differences are based on two conflicting lines of case law.
At one time, a handful of states and the District of Columbia allowed trial judges to impose an insanity defense on the accused. The laws giving judges this power were based on an unwillingness to convict people whose mental responsibility was in question. But in the late Seventies, the validity of such an approach was questioned in rulings by the U.S. Supreme Court. A defendant may have sound, pragmatic reasons for choosing to forgo an insanity plea, the court said. The accused, for example, might believe he is innocent or prefer to risk a specific term in prison rather than an indefinite stay in a mental institution. As a result, in 1979, the District of Columbia Court of Appeals insisted that a judge defer to a defendant's "voluntary and intelligent" decision not to allow an insanity defense.
Courts throughout the country gradually came to reflect this last line of reasoning. Colorado, however, stood by its old law, declaring that "the administration of justice is improved" if an insanity plea is warranted and imposed, regardless of a defendant's wishes.
Nationally, the definition of insanity has changed as well. Thirty years ago, a majority of the states used a comparatively liberal interpretation. Essentially, if a defendant knew right from wrong but because of mental illness lacked an "emotional appreciation of the difference," he or she could be acquitted. This also included the notion that insanity could apply to someone who was unable to conform his conduct to the requirements of the law and/or who lost self-control as a result of an irresistible impulse.
The political climate changed in March 1981, when a loner named John Hinckley approached a presidential contingent at the Washington, D.C. Hilton, shot Ronald Reagan in the chest and wounded presidential press secretary James Brady, a secret service agent and a police officer.
At trial, the defense presented information it believed would prove that Hinckley was insane at the time of the shooting. Psychiatrists testified that Hinckley suffered from schizophrenia. He was obsessed with actress Jodie Foster, they said, and he believed that he could impress her and win her affection by assassinating the president.
The jury sided with the defense and found Hinckley not guilty by reason of insanity. He was committed to a mental hospital, where he remains today.
The problem was that to most people, Hinckley didn't exhibit the bizarre kind of behavior they expected from a madman. He appeared in court in three-piece suits and laughed with embarrassment when some of his writings were read into the record. He never took the stand; for the most part, he just stared into space. The public and the conservative press were outraged by the verdict.
"When people think of insanity," Hazen explains, "they imagine people sitting in a corner drooling and unable to care for themselves. They don't see a lack of rational thought process as insane."
Prior to Hinckley's attempt on Reagan's life, some states had been considering making changes to tighten restrictions on the defense. But after the Hinckley verdict, the floodgates to change were opened. The politically unpopular verdict became a catalyst.
In 1984, two years after Hinckley's acquittal, Congress toughened key provisions of federal law, changing the test for insanity. The new, more restrictive standard excluded the definition of insanity as a person who knew right from wrong but lost self-control. The question became simply whether the defendant knew right from wrong.
Congress also shifted the burden of proof from the prosecution to the defense. Federal prosecutors were no longer required to prove beyond a reasonable doubt that a federal defendant was sane; the defense would now have to show convincing evidence that a defendant was insane.
Thirty-eight states followed suit in reforming their insanity-defense laws, narrowing the test for insanity, shifting the burden of proof and tightening restrictions regarding the release of defendants. Montana abolished the insanity defense altogether.
Pressure to reform the laws yet again erupted in the late 1980s and early '90s, after a few highly publicized cases made it appear as though the justice system was turning touchy-feely.
In addition, psychological defenses were becoming more commonplace in courtrooms. The "battered-woman defense"--a theory that a woman may strike back after prolonged abuse at a point when her abuser is physically vulnerable -- had become admissible in most venues, but everywhere one looked, lawyers were stretching the limits of the insanity laws. Defendants were placing responsibility for their crimes on sob stories and using such far-fetched reasons as "racial rage," "urban survival syndrome," premenstrual syndrome, "adopted child syndrome," TV violence and video games.
Everybody, it seemed, had an excuse. Everybody, it seemed, was getting off scot-free. But the reality that has emerged, as proved by numerous studies across the country, is that the insanity defense is seldom used and seldom successful.
Still, that incorrect perception, coupled with a burgeoning crime rate, led the public to pressure lawmakers to get tough on crime. And the politicians responded.
Twice in the past decade, Colorado toughened its standards on the insanity defense. In 1995 the state abolished its law requiring bifurcated trials for insanity and guilt. Under the old law, those who pleaded NGRI were entitled to two trials. The first was to determine whether the defendant was insane at the time of the crime; if found not guilty by reason of insanity, he or she faced commitment to a mental-health facility. If the defendant was found sane, then a second trial, using a different jury, was held to determine guilt.
The purpose of splitting the trials was to eliminate constitutional challenges to issues of insanity and guilt and to safeguard against prejudicing a jury, because evidence that might be permissible in the first trial to establish insanity would not be admissible in the guilt phase of a trial.
The state legislature changed the law at the request of prosecutors, says Denver defense attorney David Lane. "They said it was time-consuming and expensive," Lane says.
In 1999 lawmakers created a new law requiring a defendant who pleads not guilty by reason of insanity to cooperate with court-ordered examinations or lose the right to call a doctor as a witness. Defense attorneys contend the revision is unconstitutional, a violation of defendants' Fifth Amendment rights, because what the defendants say in the examination could potentially be used against them in court.
The result of all of these revisions is that it is harder than ever for defense attorneys to win acquittals in insanity cases. And it could soon become even more difficult. Later this month, the legislature is expected to discuss the recommendations of a legislative task force regarding the addition of a verdict of Guilty But Mentally Ill.
In states that have GBMI verdicts, sentences are imposed as if the defendant were found guilty. The court then determines whether the prisoner needs treatment and to what extent. Following treatment, the convict then serves out the remainder of his or her sentence.
To defense attorneys, the idea of a GBMI verdict is anathema.
"Guilty but mentally ill is unconscionable," says Lane. "In Anglo-American tradition, we do not punish people who are insane. If you're pointing what you think is a carrot at someone and it turns out to be a gun, you shouldn't be punished for that. You should be treated for that.
"It's an oxymoron. When someone is adjudicated as guilty, that's society making a statement that they're morally culpable. But the insane are not morally culpable."
Attorney Hazen, too, has difficulty making any sense of establishing such a verdict.
"As soon as they make them sane," Hazen says of a GBMI convict, "then they put them in prison and make them insane again."
In 1991, the year Gwen Hendricks killed her husband, Colorado's insanity laws were still very much on her side. The statutes still provided for a bifurcated trial, and the law allowing the imposition of an NGRI defense on an unwilling defendant was intact.
But Hazen believes the law failed Hendricks anyway.
Gwen Gillespie was a Navy brat who was determined to carry on the family tradition of military service. She joined the Air Force, and it was there that she met and trained under Jim Hendricks. The two married in 1980 and had a son two years later.
The Hendrickses were apart for many of the early years of their marriage. When Jim was sent to Wake Island in 1982, Gwen served at Eglin Air Force Base in Florida. When Jim returned in 1986, the couple moved to Colorado Springs, where Jim was assigned to the Air Force Academy.
Sometime during their three-year stint in Colorado, Gwen decided to forgo a career in the Air Force; she left the military and took a job with the Internal Revenue Service. But when Jim was transferred to Guam in August 1989, the whole family -- including Jim's eleven-year-old daughter from an earlier marriage -- went with him.
But Gwen didn't like Guam, and after less than a year on the island, she moved back to Colorado. She bought a home in Littleton and resumed working for the IRS. Once she had gotten settled, Jim brought the children back to live with her, then returned to Guam.
In the fall of 1990, Gwen hired Terry Knaack, an acquaintance from the Jaycees, to help remodel her home. Several months later, when Knaack was looking for a place to stay, Gwen allowed him to move into her basement.
It was during this time that Gwen's health began to falter. She suffered severe dizzy spells and nausea, and she was exhausted and began losing weight. Her personality also underwent a marked change. Even-tempered before, she was becoming evasive and cranky. To her family, she seemed easily distracted and hyper. And she apparently was going deeper into debt so that she could give expensive gifts to friends.
She changed jobs -- from revenue collector to tax examiner -- in an effort to reduce stress, but she was finding it increasingly difficult to work through her illness.
In January 1991, Gwen told friends that she'd begun experiencing graphic premonitions of her husband dying in a plane crash. She saw herself marrying her boarder, Terry Knaack, and starting a foundation for abused children. She would use the proceeds from Jim Hendricks's life insurance to open a ranch for victims of Mafia-produced child pornography.
Gwen made preparations for Jim's funeral. She bought clothes for herself and the children to wear for the occasion. She bought silk flowers for the services and packets of Kleenex for the mourners. She increased the amount of Jim's life insurance.
She also bought a wedding dress for herself and put a wedding ring on layaway for Knaack. And she began keeping a journal.
For months, test after medical test failed to determine the cause of Gwen's illness. She underwent tests to detect multiple sclerosis. She thought she might have Legionnaires' disease. Finally, she was diagnosed as having Ménière's disease, an affliction of the inner ear that can cause deafness, extreme giddiness, vomiting and loss of balance. In April 1991, she had a microshunt implanted in her inner ear, which helped relieve some of the pain she had been experiencing.
Her mental problems continued, however, and Gwen forged a doctor's letter requesting that her husband receive a hardship transfer to the States to be with his family.
Jim Hendricks returned in May 1991 to what Hazen terms a "rocky reunion."
Jim and Gwen fought over finances, the children and Knaack. Jim made Knaack move out, and he clamped down on the family budget. In retaliation, Gwen ran up the balance on their credit cards. They began to talk divorce.
On Friday, August 17, 1991, Gwen drove to Colorado Springs to meet her husband at Peterson Air Force Base and take him a change of clothes. She later told police that Jim had planned to work all night to prepare for an inspection but that he changed his mind after she arrived at the base. She said they headed out in separate cars and that she became tired on the way home and slept through the night at a rest stop along Interstate 25.
When Gwen arrived home Saturday morning, her husband was not there. Gwen made numerous calls to police agencies that weekend, reporting her husband missing and asking for their help in finding him.
On Monday morning she called Jim's supervisor at the base. He sent out two officers to search for Hendricks. They found his pickup truck parked on the side of Highway 83 in Douglas County. Jim's body was in the camper shell in the back of the truck. He had been shot in the neck and chest.
Although the body had decomposed significantly in the August heat, a fingerprint comparison verified that it was Jim.
Gwen soon became a primary suspect in her husband's murder. Investigators would later testify that she scarcely showed any emotion when they broke the news of Jim's death to her.
Knaack would prove pivotal to the case against Gwen. After Jim's death, he discovered Gwen's journal in a box of belongings that he'd moved from his room in the Hendrickses' house. He turned it over to the Douglas County Sheriff's Department.
The journal, which Gwen had titled "The Courage to Will and Persevere," contained passages about her religious beliefs and her delusional thinking.
One entry read:
Even though I know things and I have faith that God is using people and circumstances to create good, I still get nervous, scared, angry, confused and, often, become tempted to quit. When I get so jittery I cannot stand it anymore, I ask God to speak to me directly. I ask him to guide my hand as I flip through the Bible. It works. Statistically it shouldn't, but it does. For the first reading, only the last sentence made sense. I had asked if what I felt about Jim's death was real. He said yes.
God can even speak through the dictionary!
After reading the first page of stanzas, I knew I would be protected from car bombs, the knifings, the guns, the contracts and all the other evil I had seen connected with busting pornographers and pimps. Those Mafia guys play rough, but somehow they just won't be able to get me.
Gwen then adds some details about the children's ranch before going on to discuss her "compulsions":
The funeral, the ranch school, children, the foundation, always being pushed forward. I have to do what I have to do, too. But just for now I'm going to take one day at a time. I'm hoping I don't get too compulsed to do anything more for at least this coming week. I need to rest.
Perhaps I should start by explaining the little voice. It's my voice, but not me. It comes from somewhere inside, and if I don't listen to it, act on it, it becomes a compulsion. If I don't listen and act on the compulsion, it grows stronger and stronger until it dominates all aspects of my life. I learned long ago to listen and do what I'm told. Things work out when I do, and when I don't, things get real miserable...Yes, my little voice is the way God reaches me with the Holy Spirit.
After Knaack turned the diary over to Douglas County investigators, they asked him to phone Gwen while they listened in. During that conversation, Gwen told Knaack that she had not killed her husband but that she wanted to die. The investigators used Gwen's words to justify a midnight "welfare check" on her, during which time Douglas County sheriff's sergeant Kim Castellano and an Air Force investigator took turns reading aloud to Gwen from her journal and quoting from the Bible.
According to court documents, four hours into the welfare check, Gwen curled into a fetal position and whispered that there were "two stories that night -- the story of the rest area and the story of Highway 83."
In the highway story, she said, "there is blood everywhere, I can see it everywhere. It's terrible. My mind won't let me remember. I don't know if I shot him or not. I don't know what's real anymore."
The investigators then took Hendricks to a local hospital for a mental-health evaluation. After her release from the hospital two days later, Hendricks was arrested and charged with her husband's murder.
At her November arraignment, Hendricks's public defenders -- Dan Bowen, Carrie Clein and Steve Gayle -- asked the court to enter a plea of NGRI. Hendricks objected. District Judge Thomas Curry ordered her sent to the Colorado Mental Health Institute in Pueblo for a competency evaluation and to determine if an insanity plea should be entered over her objections.
(Competency is different from insanity in that it is a measure of someone's thinking at the time of trial. Defendants are deemed competent to stand trial if they can understand the nature of the charges against them as well as the legal proceedings that will take place, and they must be able to assist and cooperate in their defense.)
But by November, Hendricks no longer believed her husband was dead. Her delusions now encompassed a vast military conspiracy in which a different man had been killed in Jim's place, after which Jim was whisked away to carry out secret duties for the government. Her attorneys argued that she was incompetent to proceed because as long as she believed that Jim was alive, she would be unable to participate in her defense in any meaningful way.
Over the next fourteen months, Hendricks bounced from jail to the state hospital and back again as psychiatrists and attorneys debated her state of mind. In medical terms, psychiatrists said, Hendricks was suffering from "bipolar disorder mixed with mood-congruent psychotic features." In layman's terms, Hendricks was having delusions or hallucinations surrounding issues of guilt and death. She exhibited delusions of grandeur and of persecution, she slept little, and her words came spraying out as if under an enormous amount of pressure.
Finally, in April 1992, the court found Hendricks competent to proceed, and Curry accepted her plea of not guilty. A month after her arraignment, however, her mental health deteriorated and she was again declared incompetent.
While her fate was still being debated in the courts, Gwen Hendricks found a way to get what she wanted: After receiving a small amount of money from a Social Security disability check, she hired private attorney Lloyd Boyer to represent her in the murder trial.
Hendricks had met Boyer while she was in the state hospital; much of his practice consisted of representing clients who were fighting a civil commitment to the mental-health facility. Boyer drew up a contract with his client promising that he would not pursue an insanity defense. According to court records, he also agreed that he would accept as part of his fee 50 percent of the media rights for Gwen Hendricks's story.
Hendricks was tried on the murder charge in October 1993. Boyer's defense rested largely on the idea that the body found in the truck was not that of Jim Hendricks.
Gwen Hendricks was found guilty and sentenced to life in prison without the possibility of parole. Her funds were now exhausted, and Boyer was off the case, but the court proceedings continued with a post-conviction relief hearing and an appeal. The court appointed Shelley Gilman as an independent counsel for the appeal; she questioned Boyer's representation of his client and whether a mental status defense should have been entered on Hendricks's behalf.
The Court of Appeals upheld Hendricks's conviction.
Gilman was later appointed a Denver District County judge and stepped down from the case; Jane Hazen was then assigned to represent Hendricks.
In 1998, when Hazen first met her client, Hendricks was still claiming that her husband was alive. "She wanted me to find him," Hazen says.
Hazen appealed Hendricks's case to the state supreme court. And in a decision issued in September, that court articulated for the first time the standards a judge should apply when reviewing a defendant's desire to plead not guilty. Hendricks was entitled to a new hearing, the court said, because Judge Curry had not sufficiently examined whether she was truly able to make a rational decision to make such a plea and if there was substantial evidence that would entitle her to use a mental defense.
This time, Hendricks, who declined to be interviewed for this story, is going along with her attorneys. She has agreed to plead not guilty by reason of insanity.
Hendricks was sent back to Pueblo in December; psychiatrists there are expected to make a decision as to whether she was insane at the time of her husband's murder. She is due back in court later this month.
Douglas County prosecutors say they do not yet know what they will do with the Hendricks case. Curry must conduct a hearing to determine whether substantial evidence existed to support a mental defense (in 1991) and whether Hendricks's reasons for rejecting the defense were rational.
Depending on what the psychiatrists say, Curry could decide to send Hendricks back to prison.
The defense and prosecution could reach a plea agreement on the matter. Or Curry could decide to allow another trial. (Because Hendricks committed murder when the old insanity laws were in effect, she is entitled to a bifurcated trial.)
If Hendricks were to be found not guilty by reason of insanity -- either by trial or in a plea agreement -- she would be sent back to the state hospital in Pueblo, where she would undergo still more evaluations. She would be entitled to a release hearing to determine if her sanity has been "restored."
Tom Leask may never get the chance to appeal his case.
Leonard Post, an investigator with the Park County District Attorney's Office, was the first person to interview Leask after his arrest.
Leask appeared rational that night, Post says, despite the fact that he "had marks of paint or oil on his face."
"I asked about that," Post says. "He said it was for the Ghost Dance. The meaning of that, I don't know. He had some unusual religious beliefs.
"But at the same time, when I asked him if he knew right from wrong, he seemed to answer those questions appropriately. He seemed to pass those tests regarding competency. He knew that it was wrong to kill and against the law...I think he has bizarre beliefs, I must say. But I do feel strongly, as far as the statutes require, that he was competent when he spoke to me, and he wasn't so delusional that he was outside that area.
"It's a real controversial subject in the justice system," Post adds.
Four psychiatrists who examined Leask decided that he was insane. He had persecutory delusions. He heard voices and believed that God had spoken to him.
But insanity is not a psychiatric term. It is a legal one. And legally, Tom Leask was sane the night he flattened Alma.
"Every doctor, including our own, said [Leask] was insane," says Dave Thorson, deputy district attorney for Park County. "What our doctor said is that [Leask] would be insane except that it was a product of long-term drug and alcohol abuse. There's an exception in the law that basically says you're not insane if the insanity is caused by the voluntary ingestion of drugs or alcohol.
"What the doctor was saying is that long-term use made him insane."
But whether the "voluntary ingestion" exception applies to long-term drug use -- as opposed to someone who drops acid one night and throws another person out a window -- is open to interpretation. "It's not a settled question," Thorson admits.
Leask told the court that he didn't want to be declared insane because he feared that doctors would force medication on him. He said, too, that he didn't care about his defense because his "job," as he perceived it, had been completed.
Despite Leask's wishes, his public defender, Nick Lusero, insisted on trying to force an insanity plea on his client. "When someone is truly insane and meets the state's definition of it, it's wrong to send him to prison. I think they should be in a mental-health institution. I think it's insane for a society to execute mentally retarded and insane people, and they do it all the time. It's just nuts."
Thorson chose to take Leask's side and push ahead with the prosecution. He says he believes that Leask was sane, based on the fact that Leask had carefully planned the crime and because Leask held a grudge against his victim. (Leask told investigators that the first time he saw Willie Morrison, at an AA meeting, Morrison had smiled and whispered something to another member, and he believed that Morrison was talking about him. Leask also said that Morrison questioned him about his religious beliefs and that he had "tried to run" the AA meetings, all of which angered Leask.)
"If they want to enter NGRI, if I don't have any choice, I'll let them do that," Thorson says. "I'm not going to waste my time. Tom was a good example: Every doctor was saying he was insane, and to try that case probably would been a waste of time. I insisted on a jury trial -- murder is one of them where you can -- because I knew the judge was going go with the doctor.
"I can argue common sense with a jury, but it would have been an uphill battle with all the doctors."
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Lusero also believes that Leask would have been found not guilty by reason of insanity if the case had been allowed to go forward. But after two years and mountains of briefs submitted from both sides, District Court Judge Kenneth Plotz decided to allow Leask to plead guilty.
Plotz declined to be interviewed about his reasoning in accepting the guilty plea, but Thorson says the judge seemed to rely heavily on the argument that a defendant has an absolute right to enter a plea of guilty or not guilty on his or her own behalf. "My understanding of the ruling is that he's saying that once [the defendant] enters a not-guilty plea, then a lawyer can choose which defenses to raise, but the decision to enter guilty or not guilty is absolutely up to the defendant," Thorson says.
Lusero stuck with the case up until the moment Leask was allowed to plead guilty. Then he resigned and walked out of the courtroom.
"I'm not at all sure Judge Plotz was wrong in his analysis of the law," Lusero says, "but if he is right, I think the law sucks. The reason why we don't let mentally ill people choose what they want to do is because they don't have the ability to reason. In these [insanity] cases, they're making probably the single most important decision of their lives."