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Defending Jared Lee Loughner: Will an insanity plea work?

If Jared Lee Loughner's defense attorney, Judy Clarke, decides on an insanity plea, many experts believe it will fail. The burden of proof that the defense bears in such cases has grown in recent years.

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The rule is named for a 19th-century British defendant who was acquitted “by reason of insanity.” The public backlash to that verdict prompted a stricter legal test for insanity. The burden was placed on the defense to prove to the jury that at the time of the crime, the defendant “was laboring under such a defect of reason, from disease of the mind, as to 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.”

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In the mid-20th century the US standards for determining insanity were temporarily weakened, especially in the 1950s formulation of the so-called Durham rule, in which “an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.”

But the burden on the defense to prove an incapacity to know right from wrong was gradually restored, especially after John Hinckley was found not guilty by reason of insanity in 1982 for the attempted assassination of Ronald Reagan.

Amid a strong public backlash, the defense is used in less than 1 percent of all homicide cases and, of those, is successful only 10 to 25 percent of the time, according to Anita Boss, a Virginia-based forensic psychologist who has testified in scores of insanity defense cases.

'Nearly impossible to win'

“People are polarized about the insanity defense and it has been nearly impossible to win these cases for decades,” says J. Lee Meihls, president of TrialPartners Inc, a leading trial consulting firm headquartered in Los Angeles.

“It is confusing to a juror to conclude that someone is truly mentally ill when a mentally ill person can also perform many daily activities without a problem,” she says. “Jurors typically conclude that madmen can control their behavior and therefore cannot be legally insane. This is truer when there are so many likeable and innocent people who have lost their life.”

While Giffords appears to have been the main target of the Tucson shooting, six people were killed, including Giffords’ staff member Gabriel Zimmerman, US District Judge John M. Roll, nine-year-old Christina-Taylor Green, and three others. Emotions are so high that all the US district judges in Tucson, who knew Judge Roll, recused themselves from hearing the case. The grand jury indictment this week, which supplants the earlier federal charges, was handed down in Phoenix.


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