(Updates with Lisa Wayne statements in fifth paragraph.)
Dec. 21 (Bloomberg) -- The evidence that Russell E. Weston Jr. walked into the U.S. Capitol one July day and shot two police officers dead may have no bearing on whether he’ll ever be tried, convicted or punished.
Wounded and arrested at the scene in 1997 and diagnosed as a paranoid schizophrenic, Weston was found mentally unfit to stand trial and lives in a federal hospital. Unless his condition improves, by law he will remain forever in legal limbo, in the hands of mental-health professionals.
R. Allen Stanford, the Texas ex-financier accused of defrauding investors of more than $7 billion, shared an address with Weston: the federal medical center at Butner, North Carolina. And Stanford’s lawyers are asking a federal judge in Houston to declare him mentally incompetent because a jailhouse attack and medication robbed him of memory and made him drug- dependent.
The defense lawyers, having won delays based on Stanford’s mental state, are trying to put off his trial until he recovers enough to help them prepare his case, if he ever does. Prosecutors and a government doctor say he’s faking.
“Most people aren’t malingering or faking it who get to these hospitals,” Lisa Monet Wayne, president of the National Association of Criminal Defense Lawyers, said in an interview.
That’s because “it’s a miserable existence” to be in a mental institution, she said.
“Most of us are hesitant to have our clients committed to a state hospital for an indefinite period of time,” said Wayne, who practices in Denver. Usually when “you see competency or insanity raised, they are pretty serious cases” of mental disorders, she said.
Winning a claim of incompetency is difficult, said Bruce Kirwan, an Atlanta criminal-defense lawyer.
“You can be really eccentric and really off the boards and still know right from wrong and still go to trial,” Kirwan said. In a 40-year career, he has won incompetency arguments twice, he said.
The claim is “not very common in any kind of case, less so in white collar,” said A.J. Kramer, the chief federal public defender in Washington, who represents Weston.
Mental incompetency often involves bizarre conduct more consistent with a violent act than the detailed planning of a financial crime, Kramer said.
Stanford failed tests designed to expose malingerers, a psychologist testified yesterday in Houston.
On every neuropsychological test designed to unmask feigning, “Mr. Stanford failed,” said Robert E. Cochrane, a staff psychologist at the Butner center. “That was pretty strong evidence he was exaggerating the memory loss.”
A witness for the defense countered that “those tests have the same shortcomings as a polygraph.”
“They can’t tell you if somebody is lying or not, said Richard Pollock, a neuropsychologist who examined Stanford. “They can tell you about the effort level and symptom validity.”
The hearing on whether Stanford is mentally fit for trial resumed today.
Findings of mental incompetency have so far kept Jared Lee Loughner, charged in the shopping center shooting rampage in Tucson, Arizona, almost a year ago, from standing trial.
Loughner is charged with killing six people, including a federal judge, and attempting to murder U.S. Representative Gabrielle Giffords. The Arizona Democrat, still recovering from brain injury, was among 13 people injured.
In cases where evidence of disability is strong, prosecutors occasionally go along with the claim of mental incompetence.
“You don’t have to be drooling but you have to be moving in that direction” for a prosecutor to agree to such a motion, said Kent Alexander, a former U.S. attorney in Atlanta.
When mental incapacity is claimed, “prosecutors always roll their eyes because they are used to seeing people trying to get out of charges any way they can,” said Alexander, now general counsel for CARE USA in Atlanta.
Whether a defendant lacks the ability to help lawyers prepare for trial, as Stanford claims, is a different question posed at an earlier point in the case than whether one is not guilty due to insanity. The standards are different and so are the ways they are resolved.
Judges and Juries
A judge decides mental competency before the accused is tried. Trial juries decide on insanity.
To be fit for federal trial, a defendant must have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding,” the U.S. Supreme Court said in 1960. A defendant must have “a rational as well as a factual understanding of the proceedings against him,” the court said.
Lawyers have to be careful about how to handle mentally ill clients because they could wind up in the “miserable existence” of a ward for the criminally insane longer than their punishment would be on conviction, said Wayne, the Denver lawyer.
To be found not guilty by reason of insanity, a defendant must convince a jury that at the time of the crime, he had “a severe mental disease or defect” which rendered him “unable to appreciate the nature and quality or the wrongfulness of his acts,” according to federal law.
Defendants who win such an acquittal are hospitalized for treatment. If they get better and are eventually found by a judge to have regained sanity, they can be released.
That’s the situation with John Hinckley, tried for the 1981 wounding of President Ronald Reagan and three others. Found not guilty by reason of insanity, Hinckley has since been housed in a psychiatric facility, St. Elizabeth’s Hospital in Washington. His lawyers say he is improving.
Persuaded of Hinckley’s progress, a judge has been granting him more time away from St. Elizabeth’s and gradually increasing his autonomy during those visits. If Hinckley is found to be sane, he may be released entirely.
It can be harder to convince a jury that the accused is insane than to show incompetence pre-trial to a judge, Wayne said.
“Sometimes you have clients who have breaks with reality but were sane at time of crime,” she said.
Whatever Loughner’s mental state is, going to trial with an insanity defense may not be the best idea, she said.
Insanity Defense ‘Hard’
“It’s very hard to win insanity trials,” she said. In Loughner’s case, it would be especially difficult given the publicity around the shootings and the nature of the crimes, she said.
“Juries are very punitive when it comes to these kinds of cases,” Wayne said. “Most juries reject the idea that your mental health issue rises to the level of what they believe is an excuse.”
A documented history of diagnosed mental illness predating the crime helps the defense, Wayne said.
The Stanford case is U.S. v. Stanford, 09-cr-342, U.S. District Court, Southern District of Texas (Houston).
--With assistance from Laurel Brubaker Calkins in Houston. Editors: Charles Carter, Mary Romano
To contact the reporters on this story: Ann Woolner in Atlanta at email@example.com; Laurence Viele Davidson in Atlanta at firstname.lastname@example.org.
To contact the editor responsible for this story: Michael Hytha at email@example.com