Insanity pleas pose tangle of legal, psychiatric issues Ex-inmate of Perkins faces new charge

June 28, 1993|By Dennis O'Brien | Dennis O'Brien,Staff Writer

Doretha Gross considers herself lucky.

She lived.

Shirley Day didn't. She was shot to death in 1984 by her husband, Bernard Day, who spent six years in a mental hospital after the slaying and was released in 1990.

Three years later, he is charged with attacking Mrs. Gross.

The case against Day represents a thorny problem in Maryland's criminal justice system. Under what standards should someone be excused from criminal liability because of insanity? And under what circumstances should that person be released?

Mrs. Gross, a clerk at a Severna Park McDonald's, said she came home from work Easter Sunday to find Day sitting on her living room couch. She had been trying to end their relationship.

They argued. She says Day slashed at her a half-dozen times with the folding knife he was carrying, cutting her hands, stomach and right leg.

He fled when she called police, leaving her "soaked with blood," a police officer said. Day, who was picked up after driving away in his 1984 Oldsmobile, was charged with attempted murder. His trial is set for Sept. 21.

Nine years ago, Day fatally shot his wife in the back yard of their Arnold home, about three miles from the house on McKinsey Road where Mrs. Gross, 30, says he attacked her.

He was found not criminally responsible in the killing by reason of insanity and spent six years in Clifton T. Perkins Hospital.

No figures are available on the number of defendants in Maryland who enter pleas of not criminally responsible by reason of insanity.

But a 1991 study in the Bulletin of the American Academy of Psychiatry Law found the insanity defense was tried in only 1 percent of 1 million felony cases surveyed in eight states. It was successful in one-quarter of those cases, according to the study.

"The public may have the perception a lot of people are getting off on an insanity defense, but that's just not the case," said John Brumbaugh, a professor of criminal law at the University of Maryland School of Law.

Mr. Brumbaugh said a defendant is usually found not criminally responsible because psychiatrists working for the defense and for the prosecution agree.

"The contested cases are actually very few, and when it is contested, the defense is not often successful. Juries are just as skeptical as the general public when it comes to the insanity defense," he said.

Maryland law sets a two-pronged standard for determining sanity: A defendant must be able to appreciate the criminality of his conduct and must be capable of conforming his conduct to the law. Anyone found not criminally responsible is entitled to request his release and to get a hearing before a judge, jury or hearing examiner once a year.

But insanity pleas come under intense scrutiny because they are often used in highly publicized cases.

Steven H. Oken, convicted in the murders of three women in a 1987 crime spree stretching from Baltimore to Maine, tried to convince a Baltimore County Circuit Court judge that he suffered from amnesia or a rare sexual-sadistic mental disorder. He failed.

Attorneys for Ronald W. Price, a Pasadena schoolteacher accused of sexually abusing three students, say they are weighing the use of an insanity defense for a client who has gone on two national talk shows to admit the offenses.

Alan Kreshtool, Day's attorney, said he plans to notify prosecutors that Day might enter an insanity plea in the case involving Mrs. Gross, if only to keep it open as an option when the trial begins.

Perhaps the most highly publicized insanity verdict was won by John W. Hinckley Jr. in the 1981 shooting of President Ronald Reagan.

Tightened standards

In the wake of that verdict, a task force headed by Maryland Attorney General J. Joseph Curran in 1983 tightened the standard for the release of defendants found not criminally responsible.

That standard was made law in 1984. It requires defendants seeking release to prove by a preponderance of the evidence that they no longer suffer from a mental disorder and are no longer a threat to society.

Experts say that requirement discourages defendants from seeking hearings unless therapists feel they are ready. The defendants, say the experts, usually spend as much time in mental hospitals as those convicted and sent to prison.

"People don't immediately recover from serious mental illnesses, and they usually spend significant amounts of time in treatment," said Dr. Jonas Rappeport, former chief medical officer for the Baltimore courts, who is now in private practice.

The average stay for patients at Perkins, the maximum security hospital where Day was treated, is five years, said Tori Leonard, a spokeswoman for the state Department of Health and Mental Hygiene.

The 220-bed hospital in Jessup had a recidivism rate of 13 percent for the three-year period that ended Dec. 31, 1992, Ms. Leonard said. During that period, she said, 10 of the 78 patients released from the hospital returned because they violated release conditions.

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