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The Indiana Lawyer on 9/5/2019 by Marilyn Odendahl
A case that split the Indiana Supreme Court last December over a criminal defendant’s mental capacity to appreciate the wrongfulness of her actions dovetails into a larger question looming before the U.S. Supreme Court — whether states have to provide laws that allow for an insanity defense.
Cases raising the issue of how much evidence is required to support an insanity defense appear regularly in Indiana criminal courts, said Indiana deputy attorney general Steve Creason. The especially difficult cases, particularly those where a trial judge or jury found the defendant was not insane, come before the state’s appellate courts every couple of years.
But Kahler v. Kansas, 18-6135, could offer some guidance. That case, which is scheduled for oral arguments before the U.S. Supreme Court Oct. 7, will examine whether the elimination of the insanity defense violates the Eighth and 14th amendments of the Constitution.
“What the U.S. Supreme Court says about insanity defense and its history might very well affect how our court, and the justices on it, approach these questions,” Creason said.
Creason made his observations Wednesday at a panel discussion hosted by the Indianapolis Lawyers Chapter of the Federalist Society for Law and Public Policy Studies. The panel, which included Indiana Justices Mark Massa and Geoffrey Slaughter plus Indiana Solicitor General Thomas Fisher, reviewed some select opinions issued by the Indiana Supreme Court last term. Faegre Baker Daniels partner Brian Paul moderated the discussion.
The insanity defense case that Creason highlighted was Barcroft v. Indiana, 18S-CR-135.
Lori Barcroft was found guilty but mental ill in the shooting death of Southport pastor Jaman Iseminger. The Indiana Court of Appeals reversed, citing Galloway v. State, 938 N.E.2d 669 (Ind. 2010), on the grounds that the trial court relied on demeanor evidence which was of no probative value in light of Barcroft’s history of mental illness and the conclusions of three experts who found she could not appreciate the wrongfulness of her actions.
A split Indiana Supreme Court found the demeanor evidence was ample and supported the guilty but mentally ill conviction. The majority opinion, written by Massa, held that Barcroft’s actions before, during and after the crime, along with the flawed expert testimony and lack of a well-documented history of mental illness, was more than sufficient to support the rejection of her insanity defense.
Justice Christopher Goff dissented, joined by Justice Geoffrey Slaughter.
Goff saw the court as retreating from the stance taken in Galloway which asserted “demeanor evidence must be considered as a whole, in relation to all the other evidence.” Also, he viewed Barcroft’s actions at the time of the shooting in addition to the evidence of her mental illness and the experts’ testimony as all supporting her insanity defense.
Creason views the dissent as also looking at the role the insanity defense plays in our jurisprudence. This, he said, relates to the issue at the center of Kahler, which is whether insanity is a fundamental principle of law.
Kansas is one of four states that has legislatively abolished the insanity defense. Evidence of insanity is not barred but, according to the Sunflower State, the evidence of mental disease or defect must be channeled into the mens rea element of the crime.
Indiana has joined 15 other states in an amicus brief supporting Kansas. They argue the Constitution does not require states to provide any insanity defense to criminal liability.
In their brief, the states asserted, “While the Court has considered issues of moral culpability to be relevant to the punishments for certain classes of criminals, those moral culpability cases do not draw into doubt the legitimate, predicate power of the States to convict and impose some punishment on those who commit crimes despite their reduced moral capacity.”