When someone is charged with murder, the first response of many people is "He must have been insane."
And in the case of Mark Douglas Hacking — charged with murdering his wife, Lori — other behaviors seem not quite right: Things like running around naked outside a hotel and checking into a mental ward before his arrest.
For now there is no definitive word as to what Hacking's defense will be, and he is presumed innocent until proved guilty. Hacking's lawyer, Gil Athay, has suggested Hacking's mental state might play a role in his defense. Athay has hinted several legal issues could be raised, including the credibility of Hacking's alleged confession to his brothers while in a psychiatric ward.
However, mounting an insanity defense in Utah is an uphill road attempted by few defense attorneys.
"Utah has one of the strictest laws in the nation," said defense attorney Stephen McCaughey. "The defense of insanity in Utah is so restrictive that it's practically nonexistent."
In 30 years as a lawyer, McCaughey has seen only one case in his practice that fits the tough standards of Utah's statutes: Leonard Preston Gall.
Gall, who has been diagnosed as schizophrenic, pleaded guilty but mentally ill to second-degree felony manslaughter and theft in September 2003 in connection with the murder of his mother, Susan Gall, who had been attacked in her home with an ax.
The complex plea agreement was intended to get Gall, 27, placed in the Utah State Hospital rather than prison. He originally was charged with first-degree felony murder and second-degree felony theft of his mother's car.
"In a homicide, in order to be insane, you can't have the ability to form the intent to kill a human being," McCaughey said. "Leonard Gall thought he was destroying a torture machine because he did not comprehend he was destroying a human being because of his mental illness."
Helping the defense was the fact that Gall had a lengthy and well-documented history of mental illness, including desperate efforts by his mother to get additional help for Gall when he stopped taking his medication and his condition worsened.
After he was arrested and charged, Gall was considered "competent" to attend court proceedings despite the fact that he was considered by the court to be insane at the time of the crime. (He had been hospitalized and received treatment for a considerable time before he ultimately entered into the plea agreement in court.)
"Competency" and "insanity" are two different concepts — the first describing a defendant's ability to understand court proceedings and the second his mental state at the time of the alleged crime.
McCaughey said in order to prove someone was insane at the time of a crime, two things are needed: the statement of the defendant as to what he was thinking, and a psychiatrist's testimony that the defendant is telling the truth.
McCaughey notes that "insanity is a pretty transient sort of concept" and refers to a landmark Utah case involving Tomas Herrera. Herrera was found not guilty by reason of insanity in the killing of his wife in 1991 but guilty and mentally ill of trying to kill her mother and brother a few seconds later.
Herrera twice unsuccessfully appealed his conviction to the Utah Supreme Court. He claimed the insanity defense law adopted in 1983 was unconstitutional, but the state's high court disagreed with him both times.
Before 1983, defendants in Utah homicide cases who were mentally ill had to show they did not understand that their crime was wrong. But the Legislature changed the law to require mentally ill homicide defendants to show they were not capable of understanding that their victim was a human being — which represents a substantially higher standard.
"I'm not saying the current standard is unconstitutional," said Erik Luna, a professor of criminal justice at the University of Utah College of Law. "It is the bare, bottom minimum that the Constitution would permit. I can't imagine a stricter standard without violating constitutional due process."
The traditional insanity defense stems from an 1843 case in England in which Daniel M'Naughton killed Edward Drummond, the private secretary to Prime Minister Robert Peel. M'Naughton testified he was deluded and thought Drummond was part of a conspiracy to kill him; he pleaded innocent by reason of insanity and was acquitted.
The so-called M'Naughton rule, with several variations, has been applied in many courts in the United States since then, with lawyers for defendants claiming that their clients are insane because the individual's severe mental disease or defect prevented the person from telling right from wrong or appreciating the consequences of his actions.
But many states and the federal government revisited their insanity defense laws after John Hinckley shot President Ronald Reagan in 1982 and was sent to a mental institution instead of prison.
However, Luna said even the amended and tougher federal insanity defense is arguably still more lenient than Utah's law.
The federal standard says that at the time a crime is committed, "the defendant, as a result of severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts."
Luna said a handful of states still use what is termed "irresistible impulse" as defense, meaning a defendant must be acquitted of a crime because mental illness kept him from controlling his conduct even though he knew what he was doing was wrong.
Other states have adopted a variation of the "guilty but mentally ill" verdict option. Luna said that in many cases these laws are influenced by studies that have shown juries, incorrectly believing that acquitting someone who is mentally ill will mean he will walk free, have tended to convict a defendant even though that person is suffering from a mental defect and likely will be civilly committed to a hospital.
"These more or less allow the criminal defendant to be held in a mental ward within a prison until their disease or defect allows the defendant to be released into the general prison population," Luna said.
Luna doesn't offer an opinion as to whether states have gone too far in tightening insanity defense laws. "I don't know," he said. "That's a real judgment call.
"The general movement has been to restrict the defense."
However, it is possible the pendulum might swing back in the near future.
Luna predicts advances in medical science, and especially neuroscience, will begin to have a profound impact on the court system.
As research yields a better understanding of neurochemistry and neurobiology, "the basic predicates of our criminal-justice system, of volition and free will, will be challenged," Luna said. "There is a lot of interesting work done by neurobiologists and neurochemists on the cognition of defendants who commit antisocial conduct.
"Our entire system is based on a post-Enlightenment understanding of human cognition and volition, and at the core, there is a belief in free will, with those basic principles put into law," he said.
In the future, new discoveries about how the brain functions may dramatically reshape that thinking — and perhaps, ultimately, the law.
E-mail: lindat@desnews.com