Sun Sentinel Palm Beach Edition
Lawyers: Insanity defense a long shot
Florida’s standard of proof makes it a rare strategy
The evidence against the Parkland school shooter is so overwhelming that the criminal case against him is no legal whodunit.
He confessed for hours on video, most of which was made public this week. Security cameras inside the school recorded him committing the carnage. And his defense team has consistently said that he wants to plead guilty and spend the rest of his life in prison, with no chance of parole, if prosecutors will take the death penalty off the table.
Broward state prosecutors have rejected that plea offer and are seeking the death penalty, making a lengthy trial all but inevitable.
Forced to go to trial against mounds of evidence, hundreds of witnesses and with a self-confessed mass murderer client in a case that inspires revulsion, South Florida attorneys say there’s only one possible defense – insanity.
But don’t expect it to work, they said.
“Words can’t even describe how insane you have to be to be found not guilty by reason of insanity, especially in Florida,” said Fred Haddad, a veteran lawyer who’s defended many accused killers. “To be insane enough, every doctor says it’s almost impossible.”
Nationally, only an estimated one-120th of 1 percent of felony cases that go to trial end with a finding that the defendant is not guilty by reason of insanity, according to a recent investigation by The New York Times.
Florida’s standard is much stricter than the ones used by many other states, so it’s even more uncommon here, experts said.
“Not guilty by reason of insanity is my least successful and un-favorite defense,” said Bruce Raticoff, another veteran defense lawyer. “You’ve got to be batshit crazy before a jury will find you not guilty by reason of insanity.”
He has gone to trial on more than 50 “dead body” cases in his 40-year legal career but put on an insanity defense only twice, Raticoff said. Neither one succeeded. One of those two clients stabbed his father’s eyes out and screamed: “I’m God.” The jury found him guilty as charged.
Jurors don’t like the defense and worry about the consequences if they agree to acquit an insane person, several attorneys said.
In the extremely rare cases where a person is found not guilty by reason of insanity, it is possible — but rare — for them to be freed immediately. But they are most frequently committed to a secure psychiatric facility until they are deemed to be sane and no longer pose a threat to the community. In practice, that is often a life sentence of a different type.
Last month, Tilus Lebrun, 47, was found not guilty by reason of insanity after a bench trial — where a judge not a jury decides the case — in state court in Palm Beach County. The ex-dishwasher from Pompano Beach fatally stabbed his boss, Dimitrios Karaloukas, in 2014 at a West Boca restaurant. Lebrun will be confined to a state mental health facility and his condition will be periodically monitored by the judge.
A “win” is so unusual that lawyers still talk about the insanity defense that U.S. District Judge James Cohn, then a defense attorney, won for a client who was charged with shooting and killing a young woman in 1979 in Fort Lauderdale. Jurors in state court found the defendant, Robert Lee Endicott, not guilty by reason of insanity. Nearly 40 years later, he is still involuntarily committed.
Public perception of the insanity defense is generally negative and it’s commonly derided as a legal ploy. But attorneys say it’s a last resort.
Death penalty trials are divided into two segments – the guilt phase when prosecutors must prove the evidence is compelling enough to convict and the penalty phase when the defense tries to convince the jurors that there are sufficient reasons to spare the convict from being executed.
In cases where guilt is a foregone conclusion, Raticoff said the guilt phase is “almost like a slow guilty plea.” The defense spends the guilt phase of the trial making sure that the suspect’s rights are protected and also plants seeds they hope will help jurors begin to find evidence and reasons to spare the suspect’s life.
“There are cases where you have absolutely no defense but what are you going to do if the other side won’t let you plead guilty? There is no way as an attorney you can have your client plead guilty to the death penalty,” he said.
Prior case law clearly requires that an attorney must investigate and prepare a defense to the death penalty, regardless of what the client wants, he said: “It’s still America. Before we kill somebody – by execution – we do it the right way. As much as everybody may want to skip straight to the death penalty, that’s just not how the American justice system operates.”
In Florida, the legal standard is that the person must be able to prove they were suffering from a major mental illness, that it made them incapable of knowing right from wrong and that they were unable to appreciate the consequences of their actions.
Cruz’s team of public defenders, who have been treading on eggshells trying not to cause further pain to the victims and survivors of the mass shooting at Marjory Stoneman Douglas, won’t say what they plan to do.
“We have been consistently – from early on – putting it out there that we are willing to plead guilty in exchange for multiple life sentences in prison. But because the state [prosecution] won’t accept that plea, we cannot rule out any defenses that may be available to him. We decline to comment on any other aspect of the case out of respect for the victims and this grieving community,” said Gordon Weekes, one of Broward’s chief assistant public defenders.
The Broward State Attorney’s Office issued the following response to questions from the South Florida Sun Sentinel: “While we cannot comment on pending litigation, we still maintain that there are some cases where the community must decide the punishment.”
Recent changes to Florida’s death penalty law are making it more difficult for prosecutors to get a death penalty verdict. A 12-0 jury vote for death is now required.
Though some people have criticized the Cruz defense’s decision to offer a guilty plea, Haddad said he doesn’t fault them. It’s a sound legal strategy that could spare a lot of heartache for the victims’ families, he said. Haddad is gearing up for the latest retrial of Pablo Ibar, who was sent to Death Row for the 1994 murders of three people in Miramar. That case has been bouncing back and forth for 24 years.
None of the recent cases involving mass shooters have resulted in death penalty verdicts, Haddad said: “At the death penalty training seminars that defense attorneys go to, they tell you the most important thing is to save your client’s life. A lot of people feel that if you save the life of a person – your client – then you’ve done your job.
Mitch Polay, another defense attorney who recently persuaded jurors to spare the life of a client who was convicted for his role in the 2006 murder of Broward Sheriff’s Deputy Brian Tephford, said he thinks Cruz’s lawyers are still figuring out whether his mental health problems and developmental issues are sufficient to merit an insanity defense.
Either way, Polay said Cruz’s youth, his specialneeds education and his history of mental health troubles will factor into the punishment he receives. Polay said juries have been swayed by testimony from experts on late adolescence who say that the brain is still developing between the ages of 17 and 22.
But Raticoff said he predicts that, if an insanity defense is mounted for Cruz, it will fail because there is so much evidence of premeditation. Cruz bought the gun and ammunition and recorded three chilling cellphone videos before the attack, laying out what he planned to do.
“They’re going to have a really difficult time if they’re forced to put on an insanity defense in the guilt phase. The most glaring hole in this case is: Crazy people don’t premeditate. And he escaped. He committed this atrocity and then he went and sat in McDonald’s and took a walk before he was arrested.”