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What happens when accused killers plead insanity?

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"The state hospital, it's a bureaucracy," Kossie-Butler says. "I'm sure the psychiatrists are overrun, but it's really not a good system. The doctor who testified said, 'No, I didn't need to look at any of [his medical history]. I talked to him for a couple hours, and that's it.'"

So Kossie-Butler hired a psychiatrist of her own. But by that time, she says, more than a year had passed since Clewis-Green was arrested, and the doctor was unable to say for sure whether he had been insane when he killed Pardue. Given Clewis-Green's history, however, the psychiatrist told the defense team that it was a definite possibility.

Prosecutors are often skeptical of defense experts who say a defendant was insane — especially when they're hired after the state psychiatrist has found the opposite. "It's a very rare case that there's not a defense expert that they can find to reach an opinion that helps them," says Henry Cooper, a Denver chief deputy district attorney who recently prosecuted a man accused of killing a sixteen-year-old girl and then chopping up her body in an effort to hide the crime. The man, Edward Timothy Romero, was found guilty. "They can talk to numerous doctors, and if the doctors all say the defendant is sane, we don't hear about that. Maybe that sixth or seventh doctor says he's insane — that's the one they use."

In the Clewis-Green case, his public defenders insisted on a trial before a jury. Kossie-Butler says she prefers a jury to a judge because she thinks jurors, who have not heard all of the pretrial motions, are more impartial than a judge who has.

At his trial in July 2010, his attorneys emphasized his long record of mental illness and bizarre behavior. But "it came down to a battle of the experts," Kossie-Butler recalls.

In the end, she believes that something one of those experts said may have unduly influenced the jury. According to the appeal, which is being handled by a different attorney, the jurors asked one of the psychiatrists who testified for the prosecution if "insanity" could be cured at the state hospital with medication. The doctor said that although he didn't have the statistics in front of him, "I would say easily 85 percent of the people that are committed there like that do ultimately get discharged back in the community."

The jury found Clewis-Green sane and guilty. He was sentenced to life in prison. Afterward, some of the jurors spoke with Kossie-Butler. "In talking with the jury, it came down to, 'He's so young. We don't want him to ever get out,'" she says.

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If Holmes is found to be sane and guilty, and the judge finds that his mental illness does not preclude him from being executed, the court will hold a second phase of the trial to determine whether he'll be sentenced to death or to life in prison. If he's found not guilty by reason of insanity, he'll be sent to the Colorado Mental Health Institute at Pueblo.

There are currently 123 patients at the state hospital who were committed because they were found not guilty by reason of insanity, according to the Colorado Department of Human Services. Those patients have been there since their admission or most recent readmission for an average of 8.6 years.

And it's likely that most of them committed serious crimes. While any defendant can plead insanity, legal experts say it's usually reserved for those accused of crimes that carry long prison sentences. "There's an old saying in my line of work: You have to be insane to plead insanity," says Denver defense attorney Phil Cherner. In other words, because a sentence to the state hospital is indefinite, a defendant charged with a low-level crime might be better off pleading guilty and doing his time, Cherner says, than taking his chances on an insanity defense.

But it's also true that many patients end up leaving the hospital — although the number is not as high as 85 percent. Since July 1, 1995, the Colorado Department of Human Services reports, 59 percent of all patients who were committed to the state hospital after being found not guilty by reason of insanity have been released, either outright or as outpatients. The average time they spent at the hospital was 4.9 years.

The percentage is slightly lower — 51 percent — when it comes to patients who were found not guilty by reason of insanity of first-degree murder, the department says. The average time those patients spent at the hospital was 7.3 years.

But those numbers can be misleading, says Dr. Karen Fukutaki, a psychiatrist who has consulted on many insanity cases in Colorado. Fukutaki even goes so far as to call the statistics "inflammatory." She believes the numbers are skewed downward by patients such as the mother who had no history of mental illness before postpartum psychosis caused her to kill her children. That mother was released less than four years later.

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Melanie Asmar is a staff writer for Westword. She joined the paper in 2009 and has won awards for her stories about education, immigration and epic legal battles. Got a tip? She'd love to hear it.
Contact: Melanie Asmar