The Insanity Plea: It's Not Just for Killers Anymore

The public tends to associate the insanity plea with the most serious crimes, such as the July 20, 2012, Aurora theater shooting or the 1988 cold case rape and murder of Mary Lynn Vialpando; the defense team for James Edward Papol, who was arrested this past September in Vialpando's death, was recently granted a delay in proceedings to research this legal tactic. But the case of Bryan Hunt, who pleaded insanity this spring for allegedly pointing but not firing a rifle at traffic on a highway near Breckenridge, is only the most recent prominent example of the defense being used in connection with lesser offenses in Colorado.

David Beller, an attorney for Denver's Recht Korfeld PC and a recognized expert on the insanity plea, doesn't represent Hunt, but he's certain the lawyers who do thought long and hard before taking this course of action.

"The not-guilty-by-reason-of-insanity plea is one of the most life-disrupting choices that an attorney can make for a client," Beller says. "So it's generally reserved for those cases where the attorney has little other choice than to risk their client being put into a mental institution for a long period of time."

As this comment suggests, Beller rejects the popular conception that individuals who successfully deploy NGRI, as the plea is shorthanded in the legal community, have escaped punishment, or that attorneys are casual about its use. "Of thousands of cases, I can count on one hand the number of times I have gone to that extreme measure to assist clients," he calculates.

One reason for his reluctance involves the high degree of difficulty inherent in both the plea itself and establishing a lack of competency, which Beller stresses "are different things. NGRI means that the individual is not guilty of the crime. Competency, by contrast, deals with whether the individual suffers from mental health problems or a condition that makes them incapable of understanding the proceedings and being able to assist in their own defense."

To illustrate the challenges of the latter, he shares the following tale: "One time, I raised competency because my client misunderstood the proceedings and wasn't able to assist. But the state doctor found my client to be competent and instructed me to use a singing voice and finger puppets to help him understand. I was told to use the puppets and sing to the client the same way you would when reading a book to a toddler, using different voices to explain who the judge was and what the judge's role was versus the district attorney's role versus my role."

The case resulted in a plea deal, "but, of course, pleas have to be voluntary and knowingly and intelligently made," he says. "So that was the way the doctor suggested that I make sure my client's decision was intelligently made. It was a travesty."

If anything, the insanity plea's standards are even higher. According to Beller, "The test is if the individual is so diseased in mind at the time of the offense that they are incapable of distinguishing right from wrong with respect to their conduct, or whether they suffered from a condition of mind that prevented that person from knowing what they were doing at the time a crime was charged. In other words, they didn't know what they were doing."

There's no limit on when the plea can be applied. "It can be for something as simple as speeding or as serious as murder," he explains. "But lawyers will usually only plead NGRI on the most serious of cases, because an individual can be sent to the mental hospital for the maximum sentence on a very minor offense — and we don't want our client having to go to the state mental hospital for months or years for conduct that is relatively minor. Generally, we try as a practical matter to only use it when the sentence is going to be something extraordinary."

The disparate outcomes in two unusual NGRI cases in Aspen underscore Beller's point. In January 2016, at Aspen Highlands, Thomas Proesel pushed snowboarder Seth Beckton out of a chairlift, causing him to fall twenty feet or more. Proesel subsequently secured the legal services of Pamela Mackey, best known for representing basketball superstar Kobe Bryant in a 2003 sexual-assault allegation in Colorado. An insanity plea followed, and that July, an Aspen judge cited a state psychiatrist's report in concluding that "Mr. Proesel was, at the time of the incident, experiencing a mental state that rendered him incapable of forming the culpable mental state." Proesel was sent to the Colorado Mental Health Institute at Pueblo.

Things went differently for Landin Smith, nicknamed the Aspen cop kicker after multiple busts over the better part of a decade for giving the boot to local law enforcers. In February 2016, Smith pleaded guilty to two counts of felony assault in relation to another such incident, but before the matter could get through the system, he fired his public defender — and that September, at the side of a new lawyer, he entered the insanity plea, explaining to the judge that "our mental state is definitely impaired." But he was subsequently found to be sane in two separate examinations, forcing him to plead guilty once again.

Folks in Smith's situation can find themselves in a worse legal situation than they were previously if a diagnosis doesn't go their way. "Generally speaking, a psychiatrist is going to do an evaluation of the defendant, and all of that mental health history is going to have to be disclosed to the government — and the government can try to refute it," Beller points out. "The client will regularly have to make very incriminating statements, too. So it's a very vulnerable process for the defendant, as well as for the defendant's attorney."

In such instances, "there's often a fight between the state's expert and the defendant's expert over what this information means," he continues. "Oftentimes for an individual who is NGRI, there's also a whole host of historical records going back to childhood, which can provide evidence of an individual's insanity or mental health condition. But there's no specific set of standard documents for analysis. It's all of this anecdotal information that ultimately a jury will have to consider in order to decide whether or not it meets the definition of insanity."

Unfortunately, he goes on, "juries are inherently skeptical of NGRI. That can be driven by a lack of understanding of mental illness and a vengeance-type attitude. Or they may have the mistaken belief that if an individual is found to be insane at the time of a crime, they will be released to the public and not be made to undergo any type of ongoing treatment or therapy. So it's born out of fear and misunderstanding, and not realizing that modern science has reached the point where faking it — the technical term is 'malingering' — is rarely if ever successful."

As such, Beller is typically "surprised when NGRI is raised when the potential penalty is not particularly severe," as is the case with Hunt, who's been charged with felony menacing (punishable by one to three years in prison and a fine of $1,000 to $100,000) plus three misdemeanors: disorderly conduct, obstructing a police officer and resisting arrest. "But at the same time," he says, "that tells me the individual's health state was so concerning that the attorney had to pull out the most extreme of pleas in order to properly represent the client."