An insanity defense for Phillip Garrido? I seriously doubt it.

Over the weekend, I came across this headline for an Associated Press story about the Jaycee Lee Dugard case: “Phillip Garrido's mental state likely to be issue at Jaycee Dugard trial."

Sure, the 58-year-old Antioch man's mental condition might come up in some way during upcoming legal proceedings and the trial, but I really can’t see a defense lawyer trying to argue that his client should be declared not guilty by reason of insanity--that his client should be able to avoid criminal responsibility and state prison by saying he was crazy.

First of all, that argument would not fly in the court of public opinion; nor would it appeal to the sympathy of jurors.

But most relevant for any court proceedings, that argument wouldn’t fly legally.

Okay, that’s my humble lay opinion. I’m not a criminal lawyer, nor am I a forensic psychiatrist or psychologist. But bear with me a moment. Through both personal and professional experience, I have become familiar with how our criminal justice system deals with mentally ill defendants. Specifically, in researching several articles about mentally ill defendants, I talked to lawyers in Contra Costa County and the Bay Area and with experts in forensic psychiatry in California and nationally.

And if there are any criminal lawyers or other experts out there who want to share their views or correct what I am about to say, please do so.

First off, under Penal Code Section 25 (b), a person must prove “by a preponderance of the evidence that he was incapable of knowing or understanding the nature and quality of his or her act and of distinghishing right from worng at the time of the commission of the offense.”

What does this mean for Phillip Garrido (or his wife and co-defendant Nancy Garrido, for that matter)? Some key points to consider:

--How the psychiatric profession defines insanity is not at all the same as the way the criminal justice system defines insanity—for the sake of an NGI (not guilty by reason of insanity) defense.

--A person can have been diagnosed with a mental illness, including with one like bipolar disorder or schizophrenia that are known to involve psychosis, or breaks with reality. A person can be off their meds and hearing voices. By a lot of definitions—common sense ones even—this person is “insane.” But that doesn’t mean this person would necessarily be deemed legally insane. As one criminal defense lawyer told the New York Times about that state’s approach to mentally ill defendants—which is similar to California’s: “You can be extremely crazy without being legally insane. You can hear voices, you can operate under intermittent delusions, you can see rabbits in the road that aren’t there and still be legally sane.”

--As stated above, California, like most states, basically defines legal insanity as whether the person, at the time he committed the crime, knows the difference between right and wrong.

--However, there are situations where a defendant can be declared legally insane when he knows the difference between right or wrong, but is driven to commit a crime nonetheless because he is “incapable of knowing or understanding the nature and quality of his act.” Here’s an example given to me by a veteran San Mateo County prosecutor: a young man knew that killing is wrong, but he was under the delusion that his nephew, a toddler, was a demon that needed to be killed. That man was found not guilty by reason of insanity.

--It all gets down to the defendant’s state of mind at the time he or she committed the crime.

--Many defense attorneys and forensic psychiatrists and psychologists believe that this courtroom definition—based on the M’Naughten rule, an 1843 English definition of legal insanity--is narrow and not at all consistent with emerging understanding and research into mental illness and how it presents itself in those afflicted.

--As suggested by that lawyer interviewed by the New York Times, one common misconception about someone who is mentally ill, especially someone with an illness like schizophrenia, is that they are always “out of it.” It is true that some seriously ill people are consistently detached from reality—you might see some of those people muttering to themselves as they shuffle around downtown Walnut Creek.

But a lot of people who are mentally ill, even without medication, flow in and out of reality and delusions, in the same way that “normal” people shift from different moods and states of mind throughout the course of a day. These people may work hard to keep it together so that they can go to work, go to school, have personal relationships. They may be outwardly successful and happy, but inside they are suffering a great deal.

--With defendants whose attorneys try to go the insanity route, the courts want to see a defendant who has been out of it before the crime, is out of it at the time of the crime, and is out of it after his arrest. That’s pretty much what a veteran Contra Costa defense attorney told me. This attorney has specialized in working with juvenile defendants, and I was talking to him about a particular case, in which a young male murder defendant, at the time of the crime, was going to school, working, and maintaining a busy social life. The young man might have been very sick inside, but on the outside, he appeared sane and functional. So, according to this attorney, it would have been hard to make an insanity defense work for him. It turns out that the boy’s attorney didn’t go that route.

--Because of this narrow definition of legal insanity and, practically, what will work in the courtroom, defense attorneys rarely attempt insanity pleas, and insanity defenses rarely succeed.

--Remember "diminished capacity?" Defendants in California used to be able to use this as a defense. It didn't totally excuse the defendant for a crime, like the insanity defense. Rather, it allowed a defendant to present evidence of a mental illness to ask a jury to reduce the charge to a lesser defense. Like from murder to manslaughter, as was the case with former San Francisco Supervisor Dan White, whom a jury convicted of voluntary manslaughter, rather than murder in the 1978 killings of Major George Moscone and Supervisor Harvey Milk.

That case helped spur Californians in 1982 to vote to abolish the "diminised capacity" defense, and the state to tighten its rules surrounding the insanity defense.

--The death penalty is supposedly designed to punish the worst of the worst. Yeah, maybe. Meanwhile, the insanity defense is designed for … Well, not necessarily the sickest of the sick, but those who are sick and who can meet a specific legal definition.

*****

There is no doubt that Phillip Garrido is one strange, “sick” human being. But I don’t see him being able to meet that legal definition of insanity.

I don’t see him being able to say “I’m not guilty because I was insane.” (I don't see Nancy Garrido being able to do that either.)

A successful NGI plea would spare him a sentence to state prison and result in an indefinite stay in a state hospital. But again, I don’t see that happening—in my humble opinion. Again, attorneys, forensic experts tell me if I'm wrong on this.

With Garrido, as much as he expressed a “crazy” and “insane” view of religion and his relationship with God, he essentially functioned in life, albeit in his “Creepy Phil” way. He maintained his business and ongoing relationships with clients, and seemed to—ugh—take care of his family and feed and clothe his captive and the daughters he bore with her. He even took his two daughters out and about in public, on his “Creepy Phil” religious missions and to at least one birthday party.

I doubt it would be hard to show that Garrido knew that kidnapping and raping Jaycee Dugard, and holding her captive for 18 years, was wrong. He seems to have expressed remorse and acknowledged a need to change at various points in his long criminal history, which includes a prior conviction for rape and kidnapping. Oh, he might have experienced times when he was able to convince himself and tried to convince others that he was somehow doing something good by keeping Jaycee as his hidden “sex slave.” But such expressions of his amazing feats of goodness probably aren’t a sign of delusional thinking so much as evidence of consciousness of guilt, premeditation, and an amazing capacity for self-justification.

Garrido will probably receive a decent defense attorney, given that he’s a high-profile client. Hmm. I wonder if one of those lawyers who love to see and hear themselves on TV (fill in a name) will offer to take on Garrido’s case pro bono. But if Garrido’s alleged crimes are too much for even a Mark Geragos to tackle, Garrido will probably be assigned the best public defender or court-appointed attorney that El Dorado County can offer, and that attorney will no doubt ask for a psychiatric evaluation, just in case he or she can find something in Garrido’s psychological history to use in his defense.

But I can’t see that lawyer using any poor Phil stories as a way to prove insanity and excuse him of criminal responsibility. My bet is that the attorney would, at the most, try to use any evidence of mental illness as a mitigating factor to win a reduced sentence. If such a reduction is even possible, given the charges Garrido is facing.

Then again, I don’t think there’s anything Garrido will be able to say to “mitigate” what he is so far accused of doing, or of crimes we might not yet know about.