“LS was moved from Colorado to Kansas to serve the rest of her sentence. The reasons for the move and the exact location is unknown to the public.”

In Colorado, where this case takes place, even if you committed a crime, the judge can give the verdict of not guilty by reason of insanity. In other cases, the court might alter the sentencing if you can prove that you were mentally impaired while committing the crime. 

But how does Colorado define insanity? 

To be found not guilty by reason of insanity, you must have been so mentally ill at the time of the crime that you couldn’t tell right from wrong. The court could also allow this defence if the defendant could argue that they knew their behaviour was criminal, but they lacked the capacity to control it. This is called irresistible impulse. A defendant is presumed sane until proven otherwise and if some evidence of insanity has been presented by the defence, then the burden of proof shifts to the prosecution – it is the prosecution’s job to prove sanity in Colorado. When the defendant makes an insanity plea, they still acknowledge that they were involved but were not of sound mind at the time of the crime. The insanity defence is classified as an excuse defence, rather than a justification defence. The prosecution and defence can order their own mental health evaluation. If both sides agree on the outcome of the assessments, the case might not even go to trial. 

So, how do courts test for legal insanity? 

The first approach is called general mental illness, which is a broad category that includes things like schizophrenia, bipolar disorder and major depression. If you have a general mental illness, the court will consider whether or not your delusions or hallucinations stopped you from knowing that your actions were wrong. The second type of mental illness is specific intent crimes. These are crimes where there’s a clear intent to do harm, like murder or arson. The court will look at whether or not the defendant had the specific intent to commit the crime, even if they knew it was wrong. If they find that the defendant didn’t have the specific intent to commit the crime, they may rule them not guilty by reason of insanity. After a verdict of not guilty by reason of insanity, the court will sometimes send the defendant to the Colorado Mental Health Institute at Pueblo (CMHIP) for evaluation. The doctors at CMHIP will then determine whether or not the defendant is a danger to themselves or others and if they need to be committed to a mental health facility.

WHAT IS THE DIFFERENCE BETWEEN INSANITY AND DIMINISHED CAPACITY?
The insanity defence is sometimes confused with diminished capacity. Although the defence known as “diminished capacity” bears some resemblance to the “reason of insanity” defence (in that both examine the mental competence of the defendant), there are significant differences between them. While “reason of insanity” is a full defence to a crime — that is, pleading “reason of insanity” is the equivalent of pleading “not guilty” — “diminished capacity” is merely pleading to a lesser crime. A diminished capacity defence can be used to negate the element of intent to commit a crime. One of the most famous recent uses of the insanity defence came in United States v. Hinckley, concerning the assassination attempt against then-President Ronald Reagan.

HOW IS “INSANITY” PROVEN?
In order to make an insanity defence work, the defence has to show that their client, the defendant, was “insane” at the time of the crime. In the legal realm, “insane” does not necessarily mean the same thing as what we might think of when hearing the term insanity. Under the law, if someone is not guilty by reason of insanity, they may not have been in their right mind when the crime was committed. In some cases, this defence may refer to a severe episode of mental illness, but not always. A defendant may be considered insane if they were pushed into criminal activity by political ideology or acting out after a traumatic event. 

COMPETENCY TO STAND TRIAL 

The most crucial factor in the insanity defence is competency, otherwise known as competency to stand trial. In accordance with due process requirements, a criminal defendant cannot stand trial if he or she is deemed legally incompetent. As articulated by the Supreme Court in Dusky, a defendant is incompetent if he or she is incapable of rationally communicating with his or her attorney or rationally comprehending the nature of the proceedings against him or her. A defendant may move at any time for a hearing to determine competency, which involves the submission of supporting evidence and some form of a psychological evaluation. If the judge allows an insanity defence to stand, there may be a competency hearing to determine whether the defendant is legally incompetent. During the hearing, the defence has to provide evidence that their client is legally incompetent in addition to a psychological evaluation. The threshold for establishing competency is often identified as notoriously low, but the likelihood of the court accepting an insanity plea is even lower.. So long as a defendant is deemed incompetent, the insanity defence becomes moot as the defendant cannot stand trial. In most cases, the insanity defence is not the best course of action because it is difficult to prove, and the defence strategy may not convince the jury.

TYPES OF INSANITY

In the legal system, case results can become precedent or the standard for specific situations. There are several precedents for the insanity defence that affect how the court handles these cases and the outcome if the defendant is found legally incompetent.

The ”M’Naghten Rule”  

The first famous legal test for insanity came in 1843, in the M’Naghten case. Englishman Daniel M’Naghten shot and killed the secretary of the British Prime Minister, believing that the Prime Minister was conspiring against him. The court acquitted M’Naghten “by reason of insanity,” and he was placed in a mental institution for the rest of his life. However, the case caused a public uproar, and Queen Victoria ordered the court to develop a stricter test for insanity. The “M’Naghten rule” was a standard to be applied by the jury, after hearing medical testimony from prosecution and defence experts. The rule created a presumption of sanity unless the defence proved “at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to 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.” 

This analysis focuses on a defendant’s cognition. The test is divided into two components, each of which is individually sufficient to substantiate an insanity defence. First, a defendant is deemed insane if they were incapable of knowing what they were doing at the time committing the offence. This conclusion comports with criminal law’s fundamental conception of culpability. A defendant is not culpable for an act that, because of a psychological infirmity, he or she did not know he or she was committing. The second component of the test looks to determine if the defendant knew that his or her actions were wrong. Here, even if the defendant knew what he or she was doing, he or she is deemed insane where he or she was incapable of recognizing the wrongfulness of the action committed. For example, the defendant is often found insane on the grounds that, because “God” commanded the defendant to act, he or she was unable to recognize the wrongfulness of the act that was carried out. Various legal commentaries have identified theoretical issues within the M’Naghten framework. For example, a scholarly debate exists addressing whether the “wrongfulness” central to the M’Naghten analysis comprises tenets of legality or morality. Another prominent criticism takes objection to the categorical approach the M’Naghten test employs. By focusing exclusively on cognitive incapacity, the M’Naghten test is not well suited for treating more nuanced forms of psychological disorders, particularly those involving volitional impairment. Traditionally, the M’Naghten test has been associated with schizophrenia and psychotic disorders. The M’Naghten rule became the standard for insanity in the United States and the United Kingdom and is still the standard for insanity in almost half of the states.

The “Irresistible Impulse” Test 

In contrast to the emphasis on cognition central to the M’Naghten test, the “Irresistible Impulse” test focuses on the volitional components of insanity. Various courts have struggled to address criminal defendants who, while comprehending the wrongfulness of their actions, are incapable of self-control because of a mental disease or defect. To levy punishment against a defendant unable to control his actions appears at odds with the preeminent tenets of criminal justice. The move towards volition alleviates this tension. Under the “Irresistible Impulse” test a jury may find a defendant not guilty by reason of insanity where the defendant was labouring under a mental disease or defect that compelled him to commit the offence. This test is well-suited for persons suffering from manias and paraphilias. While treating a genuine issue within the M’Naghten framework, the “Irresistible Impulse” test creates several practical concerns. First, unlike the cognitive prong of the insanity defence, the volitional component of insanity is substantiated by a less robust scientific literature. Consequently, evaluating the veracity of a defendant’s claim becomes more difficult in the absence of unequivocal scientific findings. Moreover, the “Irresistible Impulse” test may be over-inclusive. Defendants labouring under psychological conditions, which, while genuine, do not completely inhibit self-control, may be exonerated of criminal liability. 

The Durham Rule (The “Product” Test) 

Monte Durham was a 23-year-old who had been in and out of prison and mental institutions since he was 17. He was convicted for housebreaking in 1953, and his attorney appealed. Although the district court judge had ruled that Durham’s attorneys had failed to prove he didn’t know the difference between right and wrong, the federal appellate judge chose to use the case to reform the M’Naghten rule. Citing leading psychiatrists and jurists of the day, the appellate judge stated that the M’Naghten rule was based on “an entirely obsolete and misleading conception of the nature of insanity.” The court of appeals overturned Durham’s conviction and established a new rule. The Durham rule states “that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.”  The implementation of this test was initially seen as a progressive development. Specifically, the Durham rule moved away from legal formalisms and emphasised scientific psychological evaluations and evidence. This approach emphasised expert testimony and largely left the jury to follow the professional opinions provided. So long as a professional concluded that the defendant was subject to a mental disease, a finding of insanity likely followed. Problems quickly emerged, however, and the Durham test fell out of favour. First, the test revealed itself to be frequently conclusory and deprived the jury of their decision-making role. A finding of insanity was left to the discretionary findings of trained professionals who were largely unrestricted in their methodological approach. The lack of any clear definition for essential terms like “mental disease or defect” exacerbated this issue and led to inconsistency as different professionals came to disparate conclusions. Moreover, the test proved over-inclusive. Under the “product” approach, defendants could be found not guilty by reason of insanity even where they understood and had control over their actions at the time of the offence. For these individuals, punishment may be more appropriate as its deterrent effect remains intact. Consequently, the same D.C. circuit that adopted the test in 1954, rejected the test in 1972 when deciding the Brawner case. New Hampshire is now the only jurisdiction that employs a test similar to the Durham rule.

The Model Penal Code 

In 1972, in an attempt to modernise the legal standard for insanity, the American Law Institute, a panel of legal experts, developed a new rule for insanity as part of the Model Penal Code. This rule, found in § 4.01 of the Code, says that a defendant is not responsible for criminal conduct where they, as a result of mental disease or defect, D.I.D. not possess a “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Section 4.01 of the Code represents a concerted effort to reconcile the various details and emphases present in the traditional tests for insanity. 

First, the language, “appreciate,” addresses the cognitive component central to the M’Naghten analysis. Unlike the oft rigid M’Naghten test, however, the “appreciate” language of 4.01 is broad and intended to realistically address the graded nuances of mental disabilities. Moreover, the rule allows the legislature to choose between the language of “criminality” or “wrongfulness.” This presentation allows legislatures to choose between a more legalistic conception of wrong, in the form of “criminality,” or a broader, morally infused understanding, in the form of “wrongfulness.” The evaluation of “wrongfulness” or “criminality” is complex and intricate. Complications arise, for example, when considering persons who, although knowing society would condemn their acts as wrong or criminal, believe that this would not be the case if society knew what they were “aware” of. The second component of 4.01 comprises a volition-based analysis. This aspect of the Model Penal Code’s insanity standard reflects the theoretical foundation supporting the “Irresistible Impulse” test. Here, the Code dictates that criminal liability is unjustified where a defendant could not  “conform his conduct to the requirements of the law.” This emphasis on conformity looks to provide for those persons cognizant of their wrongful act, but unable, because of some mental disease or defect, to control themselves. The inclusion of this volitional analysis, alongside a cognitive analysis, represents the progressive nature of the insanity standard developed in the Model Penal Code. 

Comprehensive Crime Control Act  

In 1984, Congress passed, and President Ronald Reagan signed, the Comprehensive Crime Control Act. The federal insanity defence now requires the defendant to prove, by “clear and convincing evidence,” that “at the time of the commission of the acts constituting the offence, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts” (18 U.S.Code. § 17). This is generally viewed as a return to the “knowing right from wrong” standard. The Act also contained the Insanity defence Reform Act of 1984, (18 U.S.Code. § 4241), which sets out sentencing and other provisions for dealing with offenders who are or have been suffering from a mental disease or defect.

Other Approaches

In addition to these seminal understandings of the insanity defence, some legal theorists have endorsed alternative conceptions of the insanity defence in an attempt to address various weaknesses often identified. The integrationist approach, for example, does away with the insanity defence as a unique defence to criminality and evaluates individual defendants under traditional exculpatory defences, like duress or necessity. Yet another modification comes from the abolitionist perspective. Under this model, some scholars, contending that social benefit can be derived from the punishment of persons often exculpated by the insanity defence, have suggested the eradication of the insanity defence in its entirety.

Insanity plea in LS’ case

Max Wachtel, a forensic psychologist based in Denver who has conducted several sanity evaluations in criminal cases in Colorado, said that it is actually incredibly common for two experts to have a difference in opinion on sanity reports in a criminal case. “It comes down to a credibility contest — which expert does the jury believe more?” Wachtel explained. 

“Usually, you can find two credible experts who will conclude differently on sanity.” What makes the Stauch case much more abnormal, according to Wachtel, is the major difference at which the two experts disagree. Wachtel explained that usually when sanity is brought up in a criminal case, it’s because there is a clear and well-documented history of severe mental illness with the defendant, and that the existence of the mental illness is not disputed by the prosecution or its expert. Lewis concluded that LS was insane at the time she allegedly killed Gannon, and that she suffers from dissociative identity disorder, vastly contrasting with the findings of Dr. Loandra Torres, a forensic psychologist who works at Colorado’s state hospital in Pueblo, who testified for the prosecution. “She was psychotic at the time, not in touch with reality, and I don’t think she knew the difference between right and wrong. I don’t even know if she knew what she was doing,” Lewis said. Lewis claimed that during one of her interviews, LS had taken on the “Maria” personality, which LS claimed was the one who killed Gannon in an interview, and spoke with a Russian accent. Another unusual trait of LS’ trial is the lack of evidence supporting a severe mental illness from the defendant, something Wachtel described as “incredibly unusual for an insanity plea.” Wachtel explained that often in cases where sanity is the defence, there will be major evidence to show that the defendant had a documented history of mental illness before the incident. “It’s really unusual, especially for somebody who is claiming (dissociative identity disorder),” Wachtel said. “For that person to have never been diagnosed with PTSD, or to never mention anything to a primary care physician, that’s unusual. That’s a huge hurdle the defence will have to get over.” 

Dr Loandra Torres told the prosecution one of the key reasons she found LS to be unreliable — and one of the key reasons she didn’t diagnose dissociative identity disorder — was the lack of any of LS’ family members claiming they knew of her multiple personalities. “She talks about having this mental illness since she was 16 years old, and it’s never repeated anywhere,” Torres said. “That’s meaningful to me.” Lewis, who said she didn’t speak with any of LS’ family members, testified during cross-examination that the importance of what the family says is less relevant to her because they have reasons to not be entirely truthful. “I find what they do when nobody is watching is more impactful,” Lewis said during cross-examination. One of the few points agreed upon by both sets of experts is that dissociative identity disorder, previously known as multiple personality disorder, is an extremely controversial diagnosis. Wachtel, who said he has diagnosed people with dissociative identity disorder in the past, stated that the reason for that is twofold: There are numerous people who dispute that dissociative identity disorder is even a real mental health condition; and defendants often lie about having it in criminal cases. “Dissociative identity disorder is one of the most faked mental illnesses when it comes to sanity evaluations,” Watchel said. “If somebody is going to fake it, they typically either claim a fake psychosis or multiple personalities.”