by Rick Stack

Despite the wishes of many good-hearted souls, based on our current justice system, I unfortunately don’t see any way to determine whether Julie Schenecker is not guilty by reason of insanity (not criminally responsible) other than letting a jury decide (unless she waives that constitutional right). This case is an excellent example of the tug-of-war between the medical community, with its concern for its patients and their rights, and the law as it judges whether serious mental issues (insanity) might provide a legal defense to a crime committed by the individual in question. What this means with respect to individuals on trial such as Ms. Schenecker, is that even though a person may have been diagnosed as “insane” by medical practitioners (psychologists and psychiatrists), this does not mean that this same individual will necessarily be judged not guilty by reason of insanity in a criminal proceeding. As a result of this curious distinction, our prisons are filled with many people who would be better served by being housed in mental institutions.

james4The legal standard for insanity (at least on the federal level) tightened up considerably as a result of public outrage in the wake of the John Hinckley trial, in which the jury found Hinckley not guilty by reason of insanity for the 1981 shootings of President Reagan and Press Secretary James Brady. Under the old law, the government (in federal cases) was required to prove beyond a reasonable doubt that the defendant was NOT insane at the time of the charged offense. The burden of proof as to insanity has since been reversed (in 2/3 of the states and in federal cases) and now requires the defendant to affirmatively prove either by a preponderance of the evidence (in state cases), or by clear and convincing evidence (in federal matters) that he or she was not legally culpable by reason of her insanity at the time of the crime. The Insanity Defense Reform Act of 1984 (“IDRA”) created a new federal standard for determining a defendant’s sanity.

james2“It is an affirmative defense to a prosecution under any federal statute that, [1] at the time of the commission of the acts constituting the offense, [2] the defendant as a result of a severe mental disease or defect, was [3] unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.”

(Note: Numbers added to denote elements of this affirmative defense).

The IDRA changed the previous approach by requiring a “severe” mental disease and eliminating the volitional aspect of the defense (i.e., the “irresistible impulse” standard). The IDRA also reshaped the cognitive aspect of the insanity defense by replacing “lacks substantial capacity” with “unable to appreciate” to delineate boundaries between a total lack of understanding and partial comprehension. Thus, the IDRA eliminated the diminished mental capacity  defense, except to the extent that such diminished capacity may have prevented the defendant from forming the requisite mental intent to be guilty of the charged crime.

james6The bottom line is that SOME adjudicative body must determine whether a defendant is not guilty by reason of insanity, and through our judicial system, we have entrusted that duty to a jury (or a judge, if the defendant waives his right to a jury trial). That is one of the reasons why the IDRA has limited the scope of expert psychiatric testimony so that they cannot testify as to the “ultimate issue” of the innocence or guilt of the defendant. This critical ruling is left to the jury:

“No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto. Such ultimate issues are for the trier of fact alone (the jury).”

In plain English, this means that that expert witness cannot offer an opinion as to whether the defendant had the intent (mens rea) to commit the crime at the time he or she committed it.

Like all human institutions, the IDRA is flawed. As a result of its strict standard requiring defendants to affirmatively establish an insanity defense, it has almost undoubtedly led to an increase in the number of clinically insane defendants committed to prison rather than being treated for their conditions in a mental hospital. This situation is consonant with our legal system’s current preference for punishment instead of treatment or rehabilitation.

ag4It is curious and somewhat disheartening to note that a large number (perhaps the majority) of “armchair” crime fans and trial followers appeared to be swayed more by the legal standard rather than by the clinical standard. Thus, even though Julie Schenecker was quite obviously insane at the time of the shootings (she had been on psychiatric drugs for a long time and her condition had been steadily worsening for some time), she still may be convicted by the jury for the following reason. The key element of a premeditated crime is mens rea; i.e., formulating the intent to commit the crime. In Ms. Schenecker’s case, the jury could very well decide that she obviously had the intent to kill her children. After all, she went out and purchased a gun for that precise reason. She loaded bullets into the gun and at a precise moment in time, she chose to pull the trigger, thus ending their lives.

Thus, although Ms. Schenecker is obviously clinically insane from a psychiatric standpoint, and despite the fact that her insanity is THE REASON she killed her children, based on the legal standard, as described herein, the jury could very well find her guilty.

james9The Catch-22 in this is that — to a considerable degree — for a person to be sufficiently “insane” to meet the legal standard, they would have to be so completely “crazy” that they would not be able to carry out the crime in the first place. Thus, for all intents and purposes, IDRA and it’s state counterpart renders the not guilty by reason of insanity defense rather useless.

In the case of Julie Schenecker, I hope that the jury gives serious consideration to “the forest” of madness in which this poor woman was lost and which led her to kill her children. I suspect, however, that when all is said and done, the jury will ignore the obvious and will instead focus on the defendant’s volition which, in turn, could well lead to her conviction.


Please click here to view Rick Stack’s previous posts:

The Evolution of Media-Hype and the Invention of the “Trial of the Century!”

rikRick Stack, a native Iowan, is a former Assistant United States Attorney who currently practices civil and criminal tax litigation in the Los Angeles area with Brager Tax Law Group. His interests include fitness, hiking, politics, Chicago sports teams, Big Ten and Pac 12 football, cats, and All Things Crime Blog.





14 Responses to Julie Scheneker Trial Highlights the Difference Between ‘Medical Insanity’ and ‘Legal Insanity’

  1. liselasalle says:

    Great post that explains so well what we are striving to come to terms with.

  2. Starks Shrink says:

    It’s great to hear the legal perspective on this. I believe that the elimination of the “irresistible impulse” portion was a tragic mistake for many. Fully 25% of people in prison are suffering from axis I disorders with at least as many as 6% experiencing active psychosis at any given time. This is far disproportionate to the population who suffers with these illnesses and also with the percentage of people that commit violent crimes.

    In short. It’s wrong.

    • Rick says:

      Thanks, Dr. Starks. Unfortunately, the Federal insanity defense laws were changed due to public outrage over Hinckley’s acquittal. Whenever laws are changed in response to popular anger or a crisis (real or perceived), it invariably leads to disastrous public policy. Another example of such a bad law is the USA Patriot Act.

  3. Veruca salt says:

    I agree with the other commenters as well…very well written. Thanks you. This is a sad case. I feel bad for all involved

  4. Lori says:

    Excellent article Rick. What happens when a defendent is found to be insane by the jury? Do they get retried for the crime after they are treated and found to be “sane” again or is that double jeopardy?

    • Rick says:

      Good question, Lori. When a defendant is found not guilty by reason of insanity, he/she is committed to a mental hospital until such time as they have been “cured” of their mental illness and they are no longer a danger to society. That standard, in practice, means hardly ever. About 5+ years ago, a major furor occurred when John Hinckley’s doctors recommended that he be allowed to have supervised weekend visits at his parents’ house. As I recall, despite protests by many, including the Reagan family, Hinckley was eventually allowed to have limited visits. However, it’s very unlikely that Hinckley will ever be a free man.

    • Rick says:

      Lori – To answer the second part of your question, you are quite right: the double jeopardy clause prevents the retrial of a person acquitted of a crime for whatever reason, including due to insanity. Double jeopardy generally attaches once a jury has been empaneled in a criminal case.

      • Lori says:

        Isn’t there some kind of competency ruling in some cases where they send the defendent for treatment and then try them later? Seems like that would lessen the incentive to get “well”. Or am I totally mistaken on this?

        • Rick says:

          Lori – Mental competency comes up in two different contexts, which are separate and distinct from each other. First, was the defendant mentally competent (sane) at the time he committed the crime with which he has been charged? Second, is the defendant presently competent to stand trial? In the latter context, if a defendant is unable to understand the nature of the proceedings against him (regardless of whether he was sane at the time of the alleged crime), then the Sixth Amendment prevents him from going to trial because he cannot meaningful assist counsel or participate in his defense. For example, the defendant may believe that he is being tried for having served a customer cold coffee and a moldy ham sandwich, rather than for having shot up a McDonald’s restaurant and killed numerous people. In that event, the defendant clearly cannot be tried unless and until he has been treated and medicated to the point where his competence is restored.

          In some cases, mentally ill people intentionally refuse to take their meds prior to their trial, either because they believe they are not mentally ill or in the hope that going without their meds will render them incompetent. Such cases have led to some very ugly situations where judges order pre-trial detainees to undergo forced medication, which is presumptively unconstitutional unless a very high standard has been met. I believe that this scenario may have unfolded last year in the James Holmes/Batman Movie shooting case. Perhaps one of our Mile-Highers can shed light on that.

          Some might say that the life of a tax attorney is boring. “Yes,” if you’re a tax planner and you devote yourself to the intricacies of tax-free corporate mergers and reorganizations. “No,” if you’re a litigator because you encounter many bizarre situations (or perhaps I just seemed to be a magnet for such cases, like Molder and Scully:).

          I had one case in which the criminal defendant never stood trial because he ultimately was found by the judge to be mentally incompetent, or in legal vernacular, “crazy as a loon.” That case started with an erroneous tax refund of about $860,000 that the defendant, a janitor at Redlands Community College (making an annual salary of $20,000), received based upon his tax return reporting $20,000 of taxable income and tax withholdings of $880,000. The IRS actually issued the man a huge refund!! A third-grader (okay, a middle-schooler) would’ve realized that there’s no way that this man could possibly have been entitled to such a large refund. The defendant claimed that he was entitled to the refund based on all of the payments that he had made into the social security system because of the “secret” accounts that the SSA allegedly maintains for all U.S. citizens (I’m still waiting for my check). The defendant attracted the scrutiny of an alert fraud investigator at a major bank (whose husband just happened to be an IRS Special Agent, who investigate tax-related crimes) after a hold was placed on his account which he opened with the $860,000 Treasury check. When informed of the hold on withdrawals from his account, the defendant told the teller that he only needed to withdraw $400,000 of cash from his account and that the bank “could keep the rest” of the funds.

          The defendant even drew the publicity of his local newspaper, which carried an article about how he had received a $860,000 refund from the IRS and had his picture holding the refund check, with a Cheshire-cat like grin. The story quoted the defendant as saying that he was “ready to rock-and-roll” after receiving the check and that he planned to purchase some property with the funds. The defendant broke the first two rules about how to be an effective criminal: (1) don’t brag to the media about your exploits (i.e., turn down all interview requests, as the media is not your friend), and (2) don’t admit that you did anything.

          Soon after learning about this erroneous refund, I was the lucky AUSA who prepared and filed an application for a TRO and preliminary injunction to recover the erroneous refund from the bank which was holding the funds. At the start of the evidentiary hearing on the TRO/preliminary injunction, which was unopposed, the defendant strode into the courtroom dressed in his bomber jacket, refused to identify himself, and announced to the district judge that the Court lacked jurisdiction over him because the courtroom was displaying the “martial” flag, with a gold-fringe around the edges (this is tax-protestor schtick, although many rubes actually believe such crap). Hasn’t the U.S always been at war with Oceania? Anyway, the government got most of the money back from the bank and the defendant was subsequently charged with making false claims against the United States (his attempted tax loss was actually about $2.5 million because the IRS had disallowed 2 of his other refund claims for different tax years in similar amounts), in violation of 18 U.S.C. Section 287. A different prosecutor handled that case to avoid any potential civil-criminal conflict of interest. The defendant was held in pre-trial detention for over 2 years, during which his competence to stand trial was litigated in a series of hearings. He ended up serving about 50% as much time in pre-trial detention as he would have if he had been convicted of the crimes after a trial. The judge eventually dismissed the indictment based on the defendant’s incompetence, defendant was released from detention, and he is likely alive and “well” roaming the vast expanse of the Inland Empire.

          • Lori says:

            That is the greatest story! Thank you. Just out of curiosity- what happened to the IRS employee who approved that refund? Or was it the usual suspect-computer error? I think you could write the first ‘Tax Files’ book to make the bestseller list….

          • Rick says:

            Thanks, Lori. In all likelihood, the IRS employee who allowed the refund got a raise. :) Maybe I will write a “Tax Files” book one of these days.

  5. […] Julie Scheneker Trial Highlights the Difference Between ‘Medical Insanity’ and ‘Legal Insanity… […]

  6. Rogelio says:

    Interesting Read

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