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Experts: Schenecker insanity defense may be iffy

— No one disputes that before she was accused of killing her two children, Julie Schenecker had a history of mental illness.

Prosecutors cited “overwhelming evidence” of that history when they announced April  1 they had changed their minds and would not seek a death sentence.

A widely broadcast video of Schenecker after her arrest shows a clearly disturbed suspect trembling uncontrollably as she is placed in a patrol car. When she talked to detectives, an audio recording shows she struggled to be coherent.

Jury selection is scheduled to begin in Schenecker's murder trial Monday in Hills­borough Circuit Court.

The defense plans to seek a verdict of not guilty by reason of insanity on the grounds Schenecker suffered from bipolar disorder with psychotic features and didn't know what she was doing or didn't understand that it was wrong.

But even when everyone agrees a defendant is severely mentally ill, succeeding with an insanity defense is extremely difficult, experts say.

“It's a hard sell for a jury,” said George Dekle, a former prosecutor who now teaches law at the University of Florida. “I have seen people that I thought should have been found not guilty by reason of insanity, but the jury found them guilty anyway.”

That's because, he said, to plead insanity, a defendant has “to start off by saying, 'Yes, I did it.' Once you get to the point of yes he did it and it's a horrific crime, it's kind of an uphill struggle from there.”

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Authorities say Schenecker shot Calyx, 16, and Beau, 13, in the head at their New Tampa home in January 2011. She reportedly told police the kids had been “mouthy.”

Evidence released in the case paints a portrait of a woman struggling with mental illness in the months leading up to the killings, losing her grip on reality and alarming those around her.

But the fact a defendant is mentally ill is not the same thing as insanity under the law, and the prosecution has signaled it plans to argue Schenecker was legally sane when the children were shot.

“I think the government believes she is both mentally challenged and morally and legally responsible for what she did,” said Stetson Law Professor Charles Rose. “And God knows you can be both.”

The trial, Rose added, is “really going to be a fight about what was happening inside her head, which makes for a really interesting trial.”

Under Florida law, to be found not guilty by reason of insanity, a defendant must prove by “clear and convincing” evidence that because of mental illness, she did not know what she was doing or its consequences, or she didn't know what she was doing was wrong.

The prosecution maintains the killings were the culmination of months of increasing tensions between mother and children, which included an incident in which Schenecker reportedly slapped Calyx and later told a neighbor she wanted to kill her daughter.

Days before the killings, authorities say, Schenecker bought the gun.

Assistant State Attorney Stephen Udagawa has said in pretrial hearings that the trial will include evidence the defendant and her daughter had problems and that the same issues began to arise with Beau when he “started to behave similarly to Calyx.”

Mother and daughter had so much trouble that “there was talk in the family that Calyx would go to boarding school,” Udagawa said during a pretrial hearing.

Contrary to public perception, experts say, the insanity defense is infrequently invoked, and when it is, it is rarely successful unless the prosecution doesn't oppose the finding.

The defense is used in less than 1 percent of criminal cases, said Jane Campbell Moriarty, a Duquesne University School of Law professor who edited a recently released book on the role of mental illness in criminal trials.

Moriarty cited two obstacles to success with the defense: a tough legal standard and public skepticism that is reflected in jurors who may see the defense as a way to escape responsibility for horrendous crimes.

“The conception of insanity for the defense is quite limited,” Moriarty said.

The standard used in Florida — known as the M'Naghten rules — was established in England in 1842. The law formerly required prosecutors to prove defendants were sane at the time of the offense to be convicted.

But after John Hinckley was found not guilty by reason of insanity in the 1981 attempted assassination of President Reagan, public outrage led to changes.

Now, many states, including Florida, put the burden on the defense to prove insanity.

In Florida, that burden is high because the defense is required to show “clear and convincing evidence,” which Moriarty said is “a fairly substantial burden of proof.”

It's less than “beyond a reasonable doubt,” which is required for criminal convictions, but greater than the standard of proof for civil trials, which require the prevailing party to present a “preponderance of the evidence,” or to figuratively tip the scales slightly.

The legal definition of insanity doesn't necessarily line up with modern mental health science, instead conforming more with the political considerations involved with the enactment of laws, as demonstrated by the reforms after Hinckley, said Michelle Oberman, a Santa Clara University Law professor who co-wrote the 2008 book “When Mothers Kill.”

“It's one of those defenses that's relatively easily raised, but it's very, very difficult to have it be successful,” Oberman said.

Moriarty said: “Juries and the public do not like the insanity defense. I think it has something to do with the belief in the community, as well as by prosecutors, that it is easy to use as a defense even if one isn't insane. People fake insanity. ... Most people think the insanity defense is hokey.”

Rose said: “Most of the time when this defense is successful, the government at some level almost concedes that it's there.”

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Prosecutors agreed in a recent case, for example, that a defendant was legally insane when he killed a man in the parking lot of Christ the King church in South Tampa, so a judge found Michael Marston not guilty by reason of insanity in the 2012 slaying of Rolando Rivera-Arroyo.

But the prosecution opposed an insanity finding for Humberto Delgado, who had severe mental illness when he murdered Tampa Police Cpl. Mike Roberts in August 2009. Delgado was convicted and sentenced to death.

“How well did that work at trial?” Rose said, referring to Delgado's insanity defense. “So if they are successful in (Schenecker's) defense without the government acquiescing to some degree, it's not that it would be unheralded, but it would be unlikely.”

One well-known case of a woman who killed her children ultimately did result in a finding of not guilty by reason of insanity over the objections of the prosecution.

Andrea Yates, who drowned her five young children in a bathtub in 2001, was convicted by a Texas jury, but that verdict was overturned on appeal, and the second jury agreed with the defense that Yates was insane. According to testimony, Yates suffered from severe postpartum psychosis and believed Satan was inside her. She thought she was saving her children from eternal damnation.

Yates' “form of mental illness was extremely serious,” Moriarty said. “There was a very long history of her psychosis… Normally in cases involving successful insanity defenses, there is a long history of mental illness and there is a very serious mental illness that causes a break with reality.”

The Schenecker case “sounds somewhat different,” based on news reports of the evidence released so far, Moriarty said.

Although Schenecker appears to have a history of depression and bipolar disorder, Moriarty noted, “I don't know whether that would be serious enough to support an insanity defense.”

Another complication will be the role played by drugs and alcohol.

When police found Schenecker, they said she was passed out on the deck of her pool reeking of alcohol with blood on her robe.

She told investigators she had been drinking around the time of the killings, and detectives found numerous pill bottles in her bedroom.

She also told detectives she was taking multiple medications.

“It's hard to know what to say about her behavior after the crime,” Moriarty said. “Had she broken from reality? Did she know what was going on? Who knows. These are matters for experts. My guess is this will be a very, very difficult trial with competing expert witnesses. The prosecution is going to try to prove she was just a bad person who did bad things.”

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That a mother would kill her children often leads people to conclude mental illness must have played a role.

But she drew parallels to the Yates case, as well as the case of Ellen Feinberg, an Illinois pediatrician found not guilty by reason of insanity after killing her 10-year-old son and wounding her 6-year-old by stabbing both boys with a knife.

In all three cases, the women had histories of mental illness and found themselves isolated socially.

The women, she said, were left alone with their children “even though there's good reason to believe they are not capable of parenting alone at this point in time.”

“It reveals an interesting problem in the way that we mother,” Oberman said. “In many countries around the world, you don't see cases like this because people live close to extended family. … In our country, we don't live that way. There's a distance from our families.”

Schenecker's husband, Army Col. Parker Schenecker, was stationed in Qatar at the time of the killings.

Even if Schenecker is found not guilty by reason of insanity, that doesn't mean she will be free anytime soon or ever.

Defendants who receive those verdicts “spend as long, if not longer, in state custody in a mental hospital,” Oberman said. “The facilities are, from the perspective of those living inside of them, pretty similar to those in the state penal system.”

In Florida, if someone is found not guilty by reason of insanity, the judge determines whether she's a danger to herself or others.

If she presents a danger, she is committed to a psychiatric facility.

The case is periodically reviewed; if the defendant is found to no longer pose a danger, she is released.

Although murder defendants are sometimes released from psychiatric commitments, Dekle said, “most of the judges that I know are not falling all over themselves to turn someone loose once they're found not guilty by reason of insanity.”


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Twitter: @ElaineTBO

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