However, Fukutaki says it's also true that the state hospital has a limited number of beds and "has to move people because there are more crimes being committed."
Fukutaki would know. She first worked at the state hospital in 1988. After medical school, the budding psychiatrist took an assignment in the maximum-security unit with patients she says were considered the state's most violent and disordered. She left in 1989 to help set up community mental-health centers in Denver and was then hired by the state Department of Corrections to improve its psychiatric care. She returned to Pueblo for a short stint before starting her own private practice in Denver.
Fukutaki has been regularly evaluating insanity defendants since 1988. She says she's more often hired by the defense these days, though she does court-ordered evaluations, too. Once she's retained by a defense attorney, she reviews the police reports and reads the witness statements. If the defendant has a mental-health history and the attorney has the records, she reviews those, as well. Then she visits the person in jail. Her goal is simple: "I ask them what happened.... I usually start a week or 24 hours out. I want them to walk through their entire day — what they were doing, what they were thinking, why they did what they did — because that gives me a framework."
She also asks about substance use, medical problems and any medication the defendant was taking. Sometimes she'll speak with the defendant's family and friends about whether they were acting strangely before the crime.
More often than not, she has to tell the defense attorney that, in her opinion, the defendant wasn't insane when he committed the crime. But that doesn't mean he's mentally healthy; a defendant can be both sane and mentally ill. Fukutaki uses an example to explain the difference: "You could have a schizophrenic man who was hearing the voice of God saying, 'If you don't shoot your mother, [you'll] be taken by the devil and subjected to hell.' And if he didn't do this, the world would come to an abrupt end. So the man shoots his mother. That would seriously raise in my mind the possibility that that defendant would meet the criteria to be found legally insane.
"If that same schizophrenic man says...'I don't have any money and I have to pay rent, so I'm going to go rob 7-Eleven,' well, he has schizophrenia, but the crime he committed was goal-oriented and he used rational thinking: I'm committing robbery because I want money." In that case, she says, she'd likely find that the defendant was sane.
Some defendants, Fukutaki says, are baffled by their own behavior, especially once they begin getting treatment. "They'll say, 'I was thinking this but it makes no sense, so I couldn't have been thinking that,'" she says. In those cases, Fukutaki says, she focuses on what the defendant was thinking at the time of the crime, not what he thinks now.
Fukutaki knows that many people think insanity defendants are just trying to avoid prison, but she doesn't believe that's true. Furthermore, she thinks the public is better protected if the criminally insane end up in a place where mental-health treatment is mandatory and where their release date is dependent on their psychiatric progress — which is certainly not the case in prison, she says.
But she also realizes that the insanity defense can be a hard pill for the community to swallow, especially if the crime was particularly heinous — a description that easily fits the Holmes case. "Really, it's a battle of public perception," Fukutaki says. "In a case like this, there is a lot of emotion attached."
Or, as former judge Habas puts it, "The difference between what is evil and what is insane can sometimes be a very thin line."