K2 - Synthetic Marijuana

We're seeing an increase in synthetic marijuana use, synthetic marijuana deaths, and mental illnesses related to the drug.  In one of my new cases, the defendant is going to claim he was insane at the time he murdered another man because he smoked so much of it.

I'm trying to do my research.  Don't know about it?

Check out how an insanity case works here.

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Jared Lee Loughner

Killing six people and injuring over a dozen more garnered Loughner a life sentence without the possibility of parole this week.  That doesn't sound like too much of a victory, but when you weigh it against the death penalty it sounds just fine indeed from his perspective.

Over a year ago, a judge in Arizona declared Loughner was incompetent to stand trial.  This led to treatment in order to get him competent.  I discussed the difference between competency and an insanity defense in a previous post.  It took over a year, but through treatment, therapy, and medication, Loughner attained competency.

Then, he had to deal with the reality of what he did - collect guns and ammunition and set out to kill innocent people.  He had to face the truth.  He had to face his family.  He had to face the victims.  

This act provides closure to this case.  Closure to the victims and their families.  Everyone can move on from the legal proceedings.  No one has to be put through a long, drawn-out trial with numerous experts weighing in on each side about the sanity of Loughner.  No Court TV, CNN, or Today Show.  Such a violent, attention seeking act will end quietly.

So if he's not competent to stand trial, how could he be considered sane when he committed the crimes you say?

Competency and sanity are two very different beasts.  And there are many factors that weigh on both the defendant and prosecution when the plea discussion happens.

First, the defendant has to attain competency.  He has to know what's going on around him.  Competency has nothing to do with Loughner's mental state at the time of the crime.  It has to do with his mental state at the time he's charged.  Only after he is competent can his attorney have a frank discussion about the case with him.

Once he has competency (not in the legal sense, but enough so the attorney can talk to him rationally), the defense attorney will discuss strategy with him.  There are only two defenses in every cases - I didn't do it or I did it, but . . .

The I didn't do it defense is the claim that witnesses are mistaken or lying.  That clearly was not the case here.  So Loughner had to rely on the second defense.  I did it, but . . .

A few of the buts are :
- I did it but, the victim was going to kill me (self-defense)
- I did it but, someone made me do it (duress)
- I did it but, the devil made me do it (insanity)

The only viable defense here was insanity.  Once decided, Loughner and his attorney had to do a cost benefit analysis.  The cost was his life.  The benefit was possibly walking away from the crimes due to the defense of insanity.  This was close to impossible though.  There was evidence of a thorough plan.  Everything he did screamed intent and planning.  Yes you have to be a little crazy to commit any crime like this (or any violent crime for that matter), but not always crazy under the law.

I'm not sure, but I imagine the prosecution spoke to each of the victims and families and they all signed off on the plea.  No trial.  No spectacle.  Loughner spends the rest of his life in jail.  Whether you agree with the death penalty or not, the resolution of this case seems fair.

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Insane or Not?

This case keeps surprising me right up through the end.  Anders Behring Breivik's trial wrapped up last week.  It's an insanity case, with a twist.  Prosecutors want him declared legally insane and the defense is asking that he be declared sane.

What?

I've previously posted about this case.  Five judges are set to determine his fate.  They must analyze the evidence and motivation behind the killing of 77 people.  Breivik claimed that he was acting to protect Norwegian culture from Muslim immigrants.  If he is found legally sane and guilty, then he can face up to 21 years in jail.

I suspect this is why the prosecution is asking he be declared legally insane.  If he is declared insane, he can spend the rest of his life in mental hospitals.  Therefore, he would never get out and be a danger to society again.

If he's found sane and goes to jail for 21 years, he'll get out someday.  The defense is asking for this.  Even if that day is two decades away, Breivik is clearly dangerous and remorseless.  It's an extremely interesting strategy by each side that you may never see in the U.S.  

Take New York State for example.  We'll assume that the Breivik committed these crimes here.  And we'll assume the federal government isn't prosecuting it (although they would in a minute), but the district attorney's office is.  

The first step in an insanity case is to test competency.  At any time, the judge or either party can have the defendant tested to determine if he's competent to stand trial.  Psychiatrists analyze the defendant to determine if he is able to understand the proceedings against him and assist in his defense.  This is a low standard.  If the defendant knows the job of a judge, the prosecutor, the jury, and his attorney, then he is usually declared fit.

If he's found fit to proceed, then it's on to the next step.  The defense attorney, not the prosecutor, interposes the insanity defense.  It's found in New York Penal Law Section 40.15.  It is an affirmative defense, which means the defendant must prove that he lacked the capacity to know or appreciate either: 1) the nature and consequences of such conduct, or 2) that such conduct was wrong.

This allows a defendant to know what he had done, but still be found not guilty by reason of mental disease or defect because he did not appreciate the legal and moral consequences of the act.  It is a very difficult standard to apply, and extremely imposing for twelve average men and women pulled from the street and asked to sit on a jury.

If Breivik was in New York, he would be subjected to 77 consecutive life sentences without parole if convicted.  He would serve these sentences with the worst offenders in maximum security prisons.  If found insane, he would not be found guilty.  Instead he would be confined to a mental institution for a significant length of time.

If Breivik was under the U.S. legal system, he would most likely pursue the insanity defense.  It's interesting how one's claim of insanity could change depending on the rules of the game.  

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