From Leon Friedman, The National Law Journal

The jury in the James Eagan Holmes murder case in Colorado on Thursday rejected his insanity defense, finding him guilty of first-degree murder after he killed 12 people at a movie theater in Aurora, Colorado.

The verdict was reached despite the testimony of two expert witnesses, including a top expert on schizophrenia, that he was mentally incapable of controlling his actions. Earlier this year, a Texas jury rejected the insanity defense of Eddie Ray Routh, who had killed the American sniper, Chris Kyle. The insanity defense was also raised by Jack Ruby, Patty Hearst, Jeffrey Dahmer (who killed 15 people and then ate their flesh), John DuPont (of “Foxcatcher” fame) and John Lee Malvo (the young Washington, D.C., sniper). The juries in each of those cases rejected substantial expert opinion that the defendant was insane and found them all guilty.

Why are juries so unsympathetic to the insanity defense? Why do they reject extensive expert opinion by renowned psychiatrists or psychologists that a defendant is psychotic and therefore insane?

According to statistics prepared by the National Institute of Mental Health, the insanity defense was raised in less than one percent of all criminal cases and is upheld in about one-quarter of those cases, far fewer in homicide cases.

One of the defense witnesses in Holmes’ case, Dr. Raquel Gur, directs the Schizophrenic Research Center at the University of Pennsylvania and is one of the most eminent experts in the field of schizophrenic research. It was true that the prosecution put on two of its own experts, but neither one had the qualifications of Gur. Why did the jury reject her testimony?

Part of the reason is because of the narrowness of the legal test that the juries are required to use. The basic test applied in England and the United States in the M’Naghten rule. That rule, established by the House of Lords in 1843, determined that a person can be acquitted of a crime on the grounds of insanity only if a defendant did not “know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong.”

Modern psychiatry rejects the simple criteria established by the rule. Sheldon Glueck, a famous Harvard professor, wrote about the deficiencies in the test. “The various versions of the M’Naghten ‘knowledge tests’ scientifically abstract out of the total personality but one of its elements, the cognitive capacity, which in this age of dynamic psychiatry and recognition of the influence of unconscious motivation, has been found to be not the most significant mental influence on conduct and its disorders.”

Eventually, the law began to acknowledge the reality and complexity of human behavior and motivation. In 1954, the U.S. Court of Appeals for the D.C. Circuit modified the M’Naghten rule in the case of Durham v. U.S. The new rule stated: “An accused is not criminally responsible if his unlawful act was the product of mental disease or defect.” Many states began to adopt similar tests.

But the liberalizing trend stopped in 1981. In that year, John Hinckley shot President Reagan and James Brady. Hinckley raised an insanity defense, based in part on the Durham rule. He claimed that he shot the president in order to impress actress Jodie Foster, and he was found not guilty by reason of insanity. Congress was incensed that Hinckley would somehow “get away with” his crime. He was sent to a mental institution where he has remained to this day (except that he is allowed to leave the institution and stay with his mother for 17 days each month).

Congress enacted a new law redefining the insanity defense in federal courts, overruling the Durham rule. The law re-established the M’Naghten rule. It stated that to be found insane, a defendant must prove: “At the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” Colorado, like many other states, passed a similar law after the Hinckley case.

So one reason why juries reject the defense is because the legal test is so narrow and unrealistic. If defendants can get up in the morning, put on their clothes, go to a restaurant for breakfast, buy a gun and use it, they clearly understand what they are doing. In the Holmes case, Gur was asked by the prosecution: “How could someone who is so mentally ill carry out such a complex and deadly attack?” Gur replied that the buying of guns and all the planning served his larger delusion, his irrational mission: to attack the theater.

And so long as defendants obey some legal rules, such as stopping their car at a red light, they know right from wrong. Once again, a person may know what is right and wrong but may be incapable of obeying the rules because of unconscious mental drives. But the M’Naghten rule, re-established after the Hinckley case, focuses on the “knowledge of right and wrong” element.

Second, juries believe that if a defendant is found not guilty by reason of insanity, it means that he can walk out the door a free man and will be able to commit more crimes. Juries are generally not told what will happen if an insanity defense is accepted. In all jurisdictions, an insanity verdict means that the defendant will be involuntarily committed to a psychiatric facility, often for a term at least as long as a prison term for the offense. But juries in almost all jurisdictions are not told the effect of their verdict.

Third, juries are skeptical about psychiatric testimony defining irrational compulsive behavior. Although they tend to believe experts who can prove their opinions by laboratory experiments, they have serious doubts about psychiatric testimony that cannot be proved in the same way.

Fourth, juries do not like to believe that persons can be driven by unconscious, impulsive forces. What does that mean about their own behavior?

Fifth, a finding of guilt is an important moral statement condemning violent actions by members of the public. To say that a person is ”not guilty by reason of insanity” somehow undermines the moral judgment behind our criminal laws. The worse the crime, as in the Aurora theater killings, the more important it is that the juries condemn the actions by finding the defendants guilty.

So people like Holmes who commit horrible crimes because of uncontrollable mental forces, continue to be found guilty despite substantial psychiatric testimony supporting their insanity defense.

Leon Friedman is a professor of constitutional law at Hofstra University Maurice A. Deane School of Law.

IMAGE: This June 4, 2013 file photo shows Aurora theater shooting suspect James Holmes in court in Centennial, Colo. On Thursday, July 16, 2015, a jury found Holmes guilty of murder in the planned attack. On July 16 a jury found James Eagan Holmes guilty of murdering 12 people. Photo: Andy Cross/The Denver Post via AP

For more on this story go to: http://www.nationallawjournal.com/id=1202732457104/OpEd-Why-Juries-Reject-the-Insanity-Defense#ixzz3gRmuhH84