The second phase of trial for the man who killed five Capital Gazette staff members in a shooting in 2018 began this week to pick the panel who will determine if he is criminally responsible.
Public defenders representing the man found guilty for blasting his way into the Annapolis office with a shotgun and killing Gerald Fischman, Rob Hiaasen, Rebecca Smith, Wendi Winters and John McNamara are arguing a rare defense: not criminally responsible, Maryland’s equivalent to an insanity defense.
Here are five things you should know about the not criminally responsible plea in Maryland:
1. A little-used defense
Of more than 285,000 criminal cases in district and circuit courts in Maryland in 2006, an average year, just 368 defendants were evaluated for criminal responsibility — the next step for Ramos — according to a report by the health department’s Mental Hygiene Administration’s Office of Forensic Services.
“I think by design it’s supposed to be limited to extreme circumstances where we say that this is a person who doesn’t deserve to be punished,” said Dr. David Gray, professor at the University of Maryland law school. “Rather the most appropriate disposition for them is hospitalization or other treatment for their mental disease or disorder.”
2. Influence of the John Hinckley trial
When John W. Hinckley, the man who shot then-President Ronald Reagan in an attempted assassination in 1981, was found not guilty by reason of insanity some states abolished the insanity defense and others restricted it.
Maryland, like New York and a handful of other states, allow “for pleading insanity [as a criminal defense] based on a broader range of mental diseases or defects than in other jurisdictions,” Gray said.
In Maryland, to find someone not criminally responsible, the defense must prove that at the time the defendant committed the crime they could not understand their actions were illegal or conform their actions to the law because of a mental disorder or developmental disabilities.
Consuming drugs, repeated criminal activity and sociopathy are excluded from consideration of an insanity defense.
It’s a tough standard, said Peter O’Neill, a private defense attorney based in Glen Burnie. “You can have people with huge histories of mental health problems … and they might not meet the criteria.”
3. It’s even more rarely successful
A court-ordered mental health evaluation by the department of health is the first step after a defendant enters an insanity plea. That evaluation carries considerable weight in the ensuing court case.
It’s rare for prosecutors to challenge the findings of a health department expert, said John Cox, deputy state’s attorney for Baltimore County, “because these are doctors we rely upon, or don’t have reason to question their integrity or abilities.”
State-employed doctors found less than one-third of the 368 defendants evaluated for criminal responsibility in 2006 met the criteria for the insanity defense, according to the Department of Health and Mental Hygiene Administration report.
Eighty-two of the 368 criminal responsibility evaluations in 2006 involved defendants charged with “major violent felonies” and just 13 of those defendants were found not criminally responsible and committed to the department of health, according to the report.
Most people that pleaded NCR, the report details, were diagnosed with severe forms of schizophrenia or bipolar disorder.
4. To split the trial or not
Cox said it’s presumed that in a case involving a not criminally responsible plea there will be one trial, unless defense attorneys or prosecutors ask the trial to be split into two — a bifurcated trial.
The judge has some discretion to approve or deny either side’s request to split the trial in two.
A trial split into two would first address innocence or guilt and the second criminal responsibility.
Determining criminal responsibility often becomes a challenge of the credentials of each side’s mental health experts, as opposed to the legitimacy of their evaluation of the defendant, Cox explained.
5. Indefinite commitment
If either a judge or jury decides that the defendant is guilty and not criminally responsible, the defendant is turned over to the custody of the health department.
As of April 24, 2019, there were about 400 people at health department hospitals after being found not criminally responsible, said Brittany Fowler, spokeswoman for the department, noting it varies daily based on discharges and admissions.
At that time, approximately 150 of the 400 individuals were in Clifton T. Perkins Hospital Center, the state’s maximum security forensic hospital with the rest at four other hospitals — Eastern Shore Hospital, Thomas B. Finan, Spring Grove and Springfield hospital centers, Fowler said.
Those found not criminally responsible and dangerous are committed for an indefinite amount of time, until they no longer require inpatient hospitalization, according to the department of health.
This story was originally published in May 2019.