Aurora Insanity? Can the shooter get off by claiming insanity?

We now ask what result will come from this latest monstrosity?  Will a killer in Aurora, Colorado “get off?”

WASHINGTON, D.C. – The aftermath of the recent tragedy in Aurora, Colorado brings recurring questions about the appropriateness of the insanity defense for what are otherwise clearly criminal acts.  The perpetrator of this most recent hailstorm of death and injury is clearly someone who is not mentally stable.

Our criminal justice system, in all but four states, recognizes that punishment should not take place for what are otherwise criminal acts, if the “crime” was committed by someone who was “insane.” 

Thus, we get to the key question, what is insane? 

Most states have adopted what has come to be known as the M’Naghten Rule, which says that in order to be responsible for a criminal act, you must know the difference between right and wrong.  This seemingly simple concept has been the foundation of the law in our country since 1843 when in England, Daniel M’Naghten, a paranoid schizophrenic believing he was being persecuted, shot and killed Edward Drummond. 

He was found not guilty by reason of insanity and thereafter, public outrage forced the English House of Lords to establish standards for an insanity defense.  The Rule that developed stated:

Every man is to be presumed to be sane, and … that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of mind, and not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.

We cringe, we cry and we want justice when terrible things happen, and we want to make terrible people answer for their actions. What happened to the people going to a movie in Aurora, Colorado was terrible; it was beyond terrible. It was unthinkable. 

What happened in Arizona and to former Congresswoman Giffords and others was terrible and unthinkable. John Hinckley, Jr.’s bullets that struck President Regan, James Brady and others was unfathomable. Men worldwide shudder when thinking about what Lorena Bobbitt did to her husband. 

History provides examples of too many crimes that resulted in prosecutions where the offender “got off.”  Jeffrey Dahmer’s seemingly unending, unspeakable sexual offenses ended with a conviction, as his insanity defense was rejected.

As a society, we want criminals convicted and punished.  We see the atrocities others commit and we are without capability to understand how such things can be done. We default by telling ourselves that the actors must be crazy, that there is clearly something wrong with them. We cannot accept that such evil exists. We then summon our compassion and recognize that those whose mental capacities are diminished should not be treated as criminals, but should be helped, and taught, if possible.

We now ask what result will come from this latest monstrosity? Will a killer in Aurora, Colorado “get off?”

Kansas, Montana, Idaho and Utah do not allow the insanity defense. In the other states, the standards for proving this defense vary greatly.

Colorado requires individuals claiming insanity prove that (1) they suffered from an actual mental defect, not brought on by drug use, and (2) that they did not know right from wrong. This law makes it more difficult than in many other states for an individual to be successful with an insanity defense.

James Holmes shot and killed 12 people in Aurora. He shot and injured 58 others.  This case will not be about finding out who committed these acts.  If any defense is raised, it will have to be a claim of insanity. 

Even people who suffer from some form of mental defect know it is wrong to go into a movie theatre and shoot people. 

Mr. Holmes’s defense team has an extraordinary uphill battle.

Along with the world, I offer my prayers and the hopes for healing to all of those affected.

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, on the Andy Parks show, on Wednesdays at 5:15 P.M., and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.



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Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

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