THE BLOG

The James Holmes Trial and the Insanity Defense

06/01/2015 06:56 pm ET | Updated Jun 01, 2016

When James Holmes walked into a crowded theater in Aurora, Colorado, and opened fire, he left in his wake an auditorium marred by more than 240 bullet holes, and moviegoers whose lives were irrevocably changed by the horror, as more than 70 people were injured and 12 more lay dead.

At Holmes's murder trial, prosecutors are seeking the death penalty. His defense attorneys are fighting for their client's life. They are doing this by admitting that Holmes is the one who committed one of the worst mass murders in United States history -- but that he did not know what he was doing at the time of the Aurora shooting and is not guilty by reason of the insanity defense.

While prosecutors are attempting to show the jury the heinousness of the crime through grisly crime scene photos and emotional witness testimony, the defense is trying to suppress this kind of evidence and turn attention away from the human toll, and instead focus on Holmes's state of mind at the time of the shooting.

If they are successful, James Holmes will be found not guilty by reason of insanity and sent to a mental health facility where he will remain until mental health officials determine that he is no longer a danger to the public safety. That could mean he will be, in effect, locked up for life. If the defense attorneys fail, Holmes will be sent to death row.

The insanity defense, which dates back to ancient times, is a controversial defense option. In fact, not all 50 states allow an insanity defense, and several of those that do have rejected "not guilty by reason of insanity" in favor of the less-forgiving "guilty but insane."

It is a difficult concept for a large majority of the general public to understand. After all, for most of us, virtually all murders are "crazy." We do not understand how anyone in his right mind could walk into a movie theater and gun down innocent people, and then booby trap his apartment for maximum carnage. But truth be told, a large percentage of those behind bars for violent crimes and even nonviolent crimes have mental health issues.

The Bureau of Justice Statistics reports that 61 percent of state prison inmates with a current or past violent offense have a mental health problem. Up to 20 percent of all inmates have symptoms of serious mental illness, including 15 percent of state prison inmates exhibiting signs of psychotic disorder.

So, how do we distinguish between run-of-the-mill mental illness and insanity in determining whether a defendant is fully culpable for his or her offense?

This year alone, at least three high-profile trials have used the insanity defense thus far:

  • Eddie Routh, the killer of 'American Sniper' Chris Kyle
  • James Holmes, the Aurora theater shooter
  • Edwin Alemany, accused of kidnapping, robbing and murdering a young woman in Boston

In light of these cases, all just within a few months, it would appear as if the insanity defense is a commonly used defense tactic. However, it is an extremely rare tactic to take in criminal defense.

A study commissioned by the National Institute of Mental Health (NIMH) showed that the insanity defense is raised in only one percent of county court cases. When it is used, it fails three out of four times -- which is obviously a pretty low success rate, especially considering that 90 percent of those who raise the insanity defense have a diagnosed mental illness.

Just ask Eddie Routh how successful the insanity defense is. In February, a jury rejected his claim of PTSD-inflicted insanity in the shooting of Chris Kyle and Chad Littlefield at a Texas gun range in 2013. Routh is clearly mentally ill. He was diagnosed with post-traumatic stress disorder prior to the killings; he was taking medication for schizophrenia. Yet, a jury rejected his insanity claim and found him guilty of first degree murder and sentenced him to life in prison without parole.

Remember, the disposition is "not guilty by reason of insanity." It is not "not guilty by reason of mental illness."

While states have used different measures for assessing the legal standard for insanity, most use the M'Naghten test, which asks the jury to consider whether the defendant knew right from wrong at the time of the act. For Routh, a Texas ranger simply asked him after the killings, "You know what you did today is wrong, right?" To which Routh replied, "Yes." That seemingly innocuous exchange was likely the death knell for his defense theory.

So, does the insanity defense ever work?

It worked for Andrea Yates, who drowned her five children in a bathtub while suffering from postpartum psychosis. It worked for John Hinckley, Jr., who attempted to assassinate President Ronald Reagan in order to impress actress Jodie Foster -- although his acquittal infuriated the public and led to tighter definitions of insanity under the M'Naghten rule. More recently, it worked for an Oklahoma doctor who killed his son because he was convinced the boy was possessed.

Still, it did not work for Andrew Goldstein, who pushed Kendra Webdale in front of a train in New York. It did not work even though Goldstein was schizophrenic, even though he had been hospitalized 13 times in the year prior to Webdale's death, even though every hospitalization was at his own request and he begged for permanent placement. At his third trial, Goldstein threw in the towel and admitted that he knew it was wrong to push the young woman in front of the train.

It didn't work for Jonathan Schmitz, who used his alleged insanity as a "gay panic defense" after he killed his friend Scott Amedure after Amedure revealed a same-sex crush on Schmitz on the talk show "Jenny Jones."

And it didn't work for Jeffrey Dahmer or John Wayne Gacy, prolific serial killers whose efforts to cover their crimes indicated they knew their actions were wrong.

Under the law of the land, killers are often crazy...just not insane.