Professor says Arizona shooter’s chances of successful insanity defense slim

Photo of Professor Miki Felsenburg

Miki Felsenburg is not only a long-time professor of Legal Research and Writing, she also teaches law in the Wake Forest Babcock Graduate School of Management MBA program in the Executive Program. In addition, she continues to practice law, is a certified mediator and consults with business organizations to educate their executives and managers on legal subjects pertinent to their success.

While speculation is growing that accused Tucson shooter, Jared Lee Loughner, may assert an insanity defense when he comes to trial, the chances he will do so successfully are very small, says Wake Forest University law professor Miki Felsenburg.

Loughner, 22, is charged with the attempted assassination of U.S. Rep. Gabrielle Giffords (D-Ariz.) in a rampage that killed six people and wounded 13 others, but might never see the inside of a prison cell.

“Arizona uses a version of the ‘M’Naghten’ insanity defense as do most states,” Felsenburg says. “First of all, the insanity defense is an affirmative defense, meaning that the burden is on the defendant to prove the defense. In most criminal trials, the full burden is on the prosecution to prove guilt.  When the insanity defense is used, the defendant essentially admits having done the crime, but says he is not criminally responsible – an assertion he must prove, by clear and convincing evidence.

“The plea includes two overlapping parts: the defendant must first show that he has a diagnosable mental illness. This seems to be possible for Mr. Loughner, at least based on what the news reports now say.  However, there is another step that seems much less clear, again based on what the news reports say.  The defendant must also show that, because of the mental illness, he was unable to understand what he was doing or that it was wrong.

“However, if the news reports are correct, it seems that Mr. Loughner left behind notes using words like ‘assassination’ and ‘kill.’  The use of such words may well  indicate that he knew what he was going to do — kill a human being.  Also, since he reportedly asked his friends ‘not to be angry,’ that seems to indicate that he further knew what he was doing was wrong.  Thus even if Mr. Loughner was or is diagnosably mentally ill, he will not likely be able to fulfill the further standards required by the affirmative insanity defense.

“However, if he is diagnosably mentally ill, his attorneys may well use this fact as a ‘mitigating factor’ to be taken into account when his punishment is considered.   They could also ask for Arizona’s ‘guilty though insane’ statute to mitigate his punishment. Most likely, his attorneys will assert that he should escape the death penalty on account of his illness and perhaps even that he should be institutionalized in the mental health system instead of in prison.”