The fact I am experienced, and actually sub-specialize, in insanity/lack of criminal responsibility defenses is not the only reason I am closely monitoring the Chris Kyle murder case ongoing in Stephenville, Texas. It's also because, having read "American Sniper" to while away rare down-time while alone in a LA hotel room during the Clark Rockefeller Murder trial, I personally consider the late Kyle to be a true American Hero, and his untimely passing to be a tragic loss for America. (As an aside, with deference to the fine acting job by Bradley Cooper, and terrific directing by Clint Eastwood, I found the book far more compelling in terms of pure narrative and raw emotion than the over-dramatized Hollywood film adaptation!) I also find the pathos and irony in an ex-Marine, who was at the least dealing with severe Post Traumatic Stress Disorder (PTSD), gunning down the decorated Navy Seal who was simply trying to help him, despite himself having struggled with, and overcome, combat-related PTSD, beyond anything an accomplished screen-writer could possibly have imagined.
Yes, you are correct to point out I didn't use the word "allegedly" in conjunction with my "gunning down" reference above. That's because there is no dispute Eddie Ray Routh killed Kyle, and Kyle's friend Chad Littlefield, on February 2, 2013, at a firing range located on a remote 11,000 acre parcel in North Central Texas owned by the Rough Creek Lodge. While there can be bifurcated insanity trials where the guilt phase comes first, this is usually the way with insanity cases, and is indeed the definition of an affirmative defense; one essentially concedes the act, but denies culpability. Unfortunately, that's about the only uniformity in how insanity cases are tried in America these days. (That, and how juries generally respond to them, which is something I'll address later.) This is because different states use different standards of proof, as well as different burdens of proof, when it comes to deciding insanity/criminal responsibility. For example, Texas follows the 1843 M'Naghten Rule, with an added irresistible impulse test component. Other states like Florida follow M'Naghten, without irresistible impulse included. Still other states like Massachusetts follow the Model Penal Code, which is modified even further in states like Maine. New Hampshire (where I raised an insanity defense in a double homicide case in NH v. Labarre) is the only state using the alternative Durham standard, while states like Idaho, Kansas, Montana, and Utah have abolished the insanity defense altogether. However, Idaho and Montana do allow a "guilty but insane" verdict. Utah now uses "guilty but mentally ill."
Let's ignore the various modifications adapted in certain states and simply focus on the distinctions between the three main applications, M'Naghten (with irresistible impulse), Model Penal Code and Durham, before applying them to any discussion about the Chris Kyle murder trial and Mr. Routh's prospects. M'Naghten (which was the product of the British public's outrage at a not guilty verdict in the murder trial of a man who shot and killed a Secretary to the Prime Minister nearly 175 years ago), essentially requires proof that , at the time the act was committed, the accused was "laboring under such a defect of reason, from disease of mind, that he did not know the nature and quality of the act he was doing; or if he did know it, he did not know what he was doing was wrong." Because M'Naghten's admitted flaw was its singular and short-sighted focus on cognitive impairment, states like Texas also incorporated the irresistible impulse test which expands the definition of insanity beyond simply knowing the difference between right and wrong to also being unable to control one's impulse to commit wrong-doing. Under M'Naghten, the burden of proof is on the defendant to prove he was insane.
The Model Penal Code test is whether at the time of the offense conduct the accused was suffering from a relevant mental disease or defect such that he was unable to appreciate the criminality of his conduct (distinguish right from wrong) and/or conform his behavior to the dictates of the law. Once insanity/lack of criminal responsibility is raised, the burden of proof is on the prosecution to prove the defendant was sane. Under Durham(or "the Product Test"), the jury may find the defendant not criminally responsible if his unlawful act was the product of a mental disease or defect. There, the burden of proving lack of responsibility is back on the defendant.
The problem with M'Naghten isn't just the assumption that every person has capacity to understand the difference between right and wrong, but also that it makes no provision for recognized mental disease(s) that can cause irrational/uncontrolled behavior(s). The irresistible impulse test that some states (like Texas) added helps address these inherent shortcomings and misunderstandings about mental illness, but still permits over-reliance on the cognitive right vs. wrong component and remains vague and quite limiting/restrictive in terms of the inability to control element. In fact, it is somewhat rigid and absolute regarding what it means to be "unable to control one's impulse." Durham, originally designed to simplify M'Naghten, in practice does anything but, giving the jury little guidance and/or definition regarding core terms like "product," "disease," and "defect" and largely leaving it up to them to determine (after hearing from dueling experts) amongst themselves whether there is any relation between insanity and the crime(s) committed. For me, while not perfect, the Model Penal Code is the most expansive, and most medically up-to-date, standard with its "and/or" conjunction covering a broad scope of behaviors and all DSM-recognized Axis-I illnesses. Also, under the Model Penal Code, the burden of proof remains where it unalterably should be: on the prosecution.
While they should be relieved they aren't facing the recent trends towards "guilty but insane" or "guilty but mentally ill" verdicts now followed in several of the states mentioned above (a trend I strongly disagree with, given their disregard for mens rea in the assignment of guilt and inherent misunderstanding of/disregard for the workings of mental illness), Routh's Texas attorneys face a substantial uphill battle under the M'Naghten standard, even with the irresistible impulse component as an adjunct. Yes, they have a reasonable backdrop to work against: Routh's pre-existing psychiatric history, including PTSD diagnosis and his record of psychiatric treatment; anecdotes from family members regarding his bizarre behavior and disturbing comments about "demons;" and video recordings of his rambling statements to police about "being so paranoid schizophrenic all day," not knowing if "I'm insane or sane," musing "[I]t seems like every time I talk to a man named Chris, I end up talking to the wolf...the ones in the sky and the ones that lie," and knowing "if I didn't take his soul, he was gonna take my soul next...." However, these are each juxtaposed against other recorded statements heard by the jury that go directly to the heart of M'Naghten's core cognitive element (knowing right from wrong). These include admitting knowing what he was doing was wrong, apologizing to his victims' families, feeling nervous about what was happening the day he was arrested, being angry with Littlefield for being a spectator not a shooter which he said was "...what got me all, you know wired up," recalling his confession to his sister about the killings, bragging about having "superior" gun skills to Kyle, and saying " I try to be as normal and reasonable as I can...I'm pretty damn reasonable. I'm pretty damned fair;" all of which is, frankly, pretty damning under a M'Naghten standard.
So how do I rate the chances of this defense? Were we looking at straight M'Naghten, I'd give it no chance at all in light of his consciousness of guilt-like statements. Irresistible impulse gives it more of a chance, but given that what constitutes an inability to control one's impulses is highly subjective, poorly defined, and wide open to lay conjecture that not controlling (by taking medication, remaining in psychiatric care, seeking in-patient treatment) is different from being unable to control, I still only rate them as low. I'd have a different opinion were the trial in Massachusetts, with the burden of proof remaining on the prosecution, and the Model Penal Code's much broader "...or inability to conform his behavior" element in play. But we're not in Massachusetts, we're in Texas, and we aren't just talking about a shooting instructor as one of the victims. We're talking about American Icon and American Hero, Chris Kyle! Moreover, while it is presumed thorough jury voir dire eliminated any prospective juror who tends to believe the old saying "insanity is the last line of defense for the truly guilty," it's often difficult for even the most conscientious jury to get past the feeling that an insanity/not responsible verdict means "letting the defendant get away with murder," which is why insanity verdicts remain rare.
Now, no outcome is ever certain when decided by a jury of twelve, and we won't truly know this verdict until sometime next week. However, the prediction here is that the jury in Stephenson will have an easier time reaching its verdict than the rest of us will have trying to come to grips with the knowledge (as revealed yesterday) that Routh's girlfriend Jennifer Weed was a mere two failed phone calls away from saving Chris Kyle's life just hours before he was killed.