“Diminished capacity” a tough sell to juries 

By TOM BREEN, Associated Press

CARTHAGE (AP) — As lawyers for Robert Stewart present their case to jurors, they’ll face daunting challenges in trying to convince those 12 men and women that the disabled painter who killed eight people at a Carthage nursing home isn’t fully responsible for those acts.

Above all, they’re likely to face the kind of skepticism that has greeted what are known as diminished capacity defenses for over three decades, ever since the so-called “Twinkie defense” helped get Dan White convicted on lesser charges after he shot and killed the mayor of San Francisco and city supervisor Harvey Milk in 1978.

“Especially in violent crimes and crimes that appear to shock the conscience of a community, like those that Mr. Stewart is accused of committing, any type of defense based on mental illness is very, very difficult,” said Elizabeth Kelley, chairwoman of the National Association of Criminal Defense Lawyers’ mental health committee.

Stewart is charged with shooting 11 people at Pinelake Health and Rehabilitation Center in Carthage on March 29, 2009, killing all but three of them. Prosecutors, who began presenting their case Aug. 1 and finished last week in a Moore County courtroom, say Stewart was searching for his estranged wife, who worked at the nursing home. The rampage ended after Stewart was shot by a Carthage police officer, who was wounded by a shot from Stewart’s gun.

Jonathan Megerian and Franklin Wells, Stewart’s lawyers, acknowledge their client was the gunman at the nursing home. But they contend a combination of depression and a cocktail of prescription medication, including excessive doses of a sleep aid, left him in a state of mind that falls short of full legal responsibility. The issue, Megerian told jurors during his opening statement, is not whether Stewart pulled the trigger at Pinelake.

“It’s what was going on in the mind of the person who pulled the trigger,” he said.

Defenses that turn on a person’s mental health are rare, Kelley said, and present significant challenges when they do go forward. In addition to a general stigma attached to mental illness, laws regarding such defenses were changed after public outrage following the verdict in the case of John Hinckley Jr., who shot President Ronald Reagan in a failed 1981 assassination attempt. Hinckley was found not guilty by reason of insanity, and state and federal laws subsequently made that defense harder to use, with some states banning it altogether.

Until recently, North Carolina didn’t even permit a defense on grounds of diminished capacity, in which a defendant is said to have acted without the state of mind necessary to win a conviction. For example, a defendant shown to have been incapable of premeditation wouldn’t be eligible for conviction of premeditated murder.

The state Supreme Court ruled in 1988 that arguments for diminished capacity could be used in criminal defenses. In that ruling, the court ordered a new trial for John Quinton Shank, who had been convicted of murdering his estranged wife outside the Cleveland County Health Department, where she worked. In that case, the trial court had ruled a psychiatrist and psychologist called by the defense as witnesses were not allowed to testify that Shank’s diminished mental capacity affected his ability to make and carry out plans, or that he was emotionally disturbed at the time of the shooting.

“Testimony that a defendant was incapable of planning his activities or carrying out plans, and that he was under mental or emotional disturbance, could assist the jury in determining whether a defendant in fact premeditated and deliberated,” the Supreme Court wrote in its order for a new trial.

That opened the door for attorneys seeking to use the diminished capacity defense, but in a separate ruling on the same day, the Supreme Court limited the parameters of such defenses. In that ruling, the court held that medical expert witnesses can’t testify to legal conclusions they’re unqualified to make. Specifically, the court determined that experts normally can’t use the terms “premeditation” or “deliberation” when testifying about a defendant’s mental abilities.

Apart from the legal intricacies, though, any attorney using the defense is likely to run into a widespread public suspicion about mental illness, Kelley said.

“The average juror is frankly scared of someone with mental illness, and frankly doesn’t see that as an explanation but as an excuse to get off with a technicality,” she said.