Will Utah alter its insanity defense?

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A state lawmaker wants to restore an insanity defense in Utah courtrooms, an effort cheered by defense attorneys and medical experts who say it would bring Utah in line with all but four other states.

“It just seems patently wrong to me that someone should have to plead guilty to something where they had no understanding what they did was criminal,” said Rep. Carol Spackman Moss, a Democrat from Holladay.

Utah no longer allows criminal defendants to raise a traditional insanity defense, which requires them to understand right from wrong before they can be found guilty. They can claim “diminished mental capacity” as a partial defense but must prove they didn’t intend to commit a crime.

“Most severely mentally ill people are not going to qualify in Utah because even though they’re extremely mentally ill, they can still formulate the intent to act,” said criminal defense attorney Mark Moffat.

“It’s not workable and it’s not just,” Moffat said of the law. “It’s unbelievably narrow in its application.”

In the west, Alaska, Idaho, and Montana have similar standards, according to the National Conference of State Legislators. In Kansas, a man on death row has challenged a law similar to Utah’s in a case now before the U.S. Supreme Court.

Moss is seeking to restore the defense for those who don’t comprehend the wrongfulness of their actions more than three decades after Utah did away with it. In 1983, the state joined a national tide in whittling the defense after John Hinckley Jr. tried to assassinate President Ronald Reagan in 1981. He was acquitted and ordered to a state hospital in what many saw as a failure to hold him to account before his release in 2016.

Moss’ effort was inspired by a case close to home. Robert John Liddiard, her neighbor and a nurse who long cared for his aging parents, stopped taking medication for schizophrenia nearly two years ago and, according to prosecutors, killed them.

Moss knew the 53-year-old Liddiard was ill and felt confident he would be spared prison time in favor of rehabilitation — until his defense attorney told her that was no guarantee. Records provided to the Deseret News show 26 people in Utah have been found not guilty by reason of insanity in the more than 30 years since the Legislature narrowed the defense.

“The more I’ve learned, the more I’m convinced so many people with mental illness end up in the justice system, and it’s not equipped to handle them,” Moss said.

After trying and failing to expand the defense in the 2019 legislative session, Moss is hashing out the details of a potential new proposal. Her effort has met with resistance in the Utah Attorney General’s Office, which contends the plan could allow many offenders to avoid meaningful penalties.

Treatment before trial

Liddiard is in the Utah State Hospital in Provo as doctors work to help him reach a point where he is legally competent, meaning he can understand his case and work with his lawyers.

His sister Julie Brinkley fears he will ultimately be sent to prison, where she believes the progress he has made would unravel. While jailed on murder charges before his transfer to the hospital, her brother appeared withdrawn, not like himself, and thinner each time she saw him, Brinkley recalled. Liddiard has Capgras syndrome, which leads someone to believe an imposter has taken a person’s place, she said.

“He lovingly took care of my mom, who was getting dementia, who had broken her hip. He was lovingly taking care of her and my dad,” Brinkley said. “I bet he was a very good nurse. But when he was off his medication, he couldn’t do it.”

Liddiard has typically been first in her family to send a card to celebrate a milestone, she recalled. He had begun reading to children as a volunteer and picking up odd jobs before he went off his medications and had a psychotic episode, she said.

“I lost my parents, and that’s heartbreaking enough,” she said. “But then to lose a brother, basically to an act of mental illness, and to see the suffering he’s going through — he’s distraught now that he realizes what’s going on. He’s distraught and feels horrible about it.”

Brinkley declined to talk about the specifics of her brother’s case or make him available for an interview, saying he wasn’t yet well enough. He had checked himself into a hospital in the past, she said, though she believes he was discharged too soon.

Her mother and father, Diane Liddiard, 78 Robert Liddiard, 85, had wanted him to get well, she added.

“I know they love him a lot,” she said. “It was always their goal to try to help him and help him live as a normal life.”

Long-simmering debate

The current Utah law has withstood legal challenges that reached the state’s own high court, including from Thomas Herrera, who had schizophrenia and shot and killed his wife in 1991, when he thought an evil robot controlled by the mafia took over her body, said Moffat, the attorney who represented Herrera in the criminal case.

A judge ruled Herrera was not criminally liable for Claudia Martinez’s death because he believed she was inhuman. But he wasn’t spared convictions for shooting at Martinez’s mother and brother, because he had not made the same conclusion about them.

“He was completely crazy at the time that this stuff happened, but yet our system allowed us to parse his psychotic belief system,” Moffat told members of the Judiciary Interim Committee at their meeting earlier this month. His client ultimately was sentenced to up to 15 years in prison for two counts of attempted murder, but in a rare outcome, he remained in the state hospital for several years before being deported to Mexico.

Liddiard’s defense attorney Neal Hamilton told lawmakers there won’t be a windfall if Utah adopts the traditional insanity defense. While 50,000 cases were filed in the federal system in 2017, there were just six verdicts of not guilty by reason of insanity, he said.

“This is not going to change the landscape of the legal community. This is not going to be huge, but it will be huge for those suffering from mental illness and who act out because of it,” he said.

Trent Holmberg, president of the Utah Psychiatric Association, agreed, saying victims in such cases are most often family members. Support for changing the law is unanimous among those in his profession in the state, he said.

“That’s what we’re trying to accomplish with this, is to put people into a place of hospital setting where they can be treated in a secure environment until they’re no longer dangerous, and no longer mentally ill,” he told the legislative panel. “Treating sick people actually makes our state safer.”

Andrew Peterson, Utah’s assistant solicitor general, sees it differently. He waded into the pending Kansas case on behalf of the Utah Attorney General’s Office, filing a friend-of-the-court brief that argues in part that states have the authority to craft their own defenses.

The case centers on death-row inmate James Kraig Kahler, who was convicted of killing four members of his family 10 years ago. Kahler’s attorneys argue Kansas violated his right to due process, and the Eighth Amendment’s ban on cruel and unusual punishment when it narrowed the defense there.

“I’m convinced after researching this issue for the United States Supreme Court that were this defense to become generally available, there would ultimately be no way to stop psychopaths from having this available,” Peterson told the Utah legislative panel. Even if their condition doesn’t qualify, he said they can fool medical professionals into believing they have a qualifying condition.

Peterson said the defense has also been used in cases where a person claims God willed them to commit a crime. Dan and Ron Lafferty, convicted of slitting the throats of their sister-in-law, Brenda Lafferty, and her infant daughter in 1984, might have successfully argued the defense, Peterson told the committee.

Moss and Holmberg said such a scenario has not played out in other states that have adopted the rule. Moffat called Peterson’s warning “scare tactics as a means of keeping the status quo.”

Next steps

Others have urged caution, including attorney and former federal judge Paul Cassell, who has advised the legislative panel against taking action before the Supreme Court decides the Kansas case.

Utah has other routes to address mental illness in the criminal justice system, noted prosecutor Will Carlson in the Salt Lake County District Attorney’s Office. Mental illness can be a mitigating factor that can reduce a conviction. A person can also plead guilty but mentally ill in certain cases and receive treatment in the Utah State Hospital before serving out a prison term.

“The state hospital is not exactly empty” as its officials seek to cut down wait times for admission, Carlson said. “If we expand the people who are not guilty by reason of insanity, one of those categories is going to have to decrease in size.”

Carlson provided data from the Department of Human Services showing that since the law was changed in 1983, at least 26 people in Utah have been declared not guilty by reason of insanity, including Benjamin Josef Gully, who shot and killed his father while duck hunting near Farmington Bay.

His stepmother, Janice Perry Gully, told lawmakers her son is “something of a unicorn in our justice system” because prosecutors in Davis County agreed he was too mentally ill to be held criminally responsible.

“A desire for revenge cannot be at the core of our justice system, especially as it concerns one with a mind so diseased that he thinks he must scream to keep the earth turning,” she said.

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