Insanity In Arizona - What Lori Might Do.

Hello Friends! This newsletter is part two of my two-part post analyzing the possibility of Lori’s defense team arguing that she is insane. If you missed the first part, yesterday’s post, titled Insanity in Idaho – What Lori Might Do, discussed how insanity could work in her favor in Idaho. Today, we turn our attention to the law in Arizona.

Arizona permits a defense of Guilty But Insane. There is a subtle but important difference between this and typical insanity defenses. In states that treat mental disease or defect in the traditional way, insanity is a defense. That means the defendant’s behavior is excused, and they are not culpable because they lacked the capacity to appreciate the criminality of their actions or conform their conduct to the requirements of the law.

In 1993, the Arizona legislature enacted the current law under which a person may be found “guilty except insane,” only “if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong. Here is Arizona’s law:

13-502. Insanity test; burden of proof; guilty except insane verdict
A. A person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong. A mental disease or defect constituting legal insanity is an affirmative defense. Mental disease or defect does not include disorders that result from acute voluntary intoxication or withdrawal from alcohol or drugs, character defects, psychosexual disorders or impulse control disorders. Conditions that do not constitute legal insanity include but are not limited to momentary, temporary conditions arising from the pressure of the circumstances, moral decadence, depravity or passion growing out of anger, jealousy, revenge, hatred or other motives in a person who does not suffer from a mental disease or defect or an abnormality that is manifested only by criminal conduct.
B. In a case involving the death or serious physical injury of or the threat of death or serious physical injury to another person, if a plea of insanity is made and the court determines that a reasonable basis exists to support the plea, the court may commit the defendant to a secure state mental health facility under the department of health services, a secure county mental health evaluation and treatment facility or another secure licensed mental health facility for up to thirty days for mental health evaluation and treatment. Experts at the mental health facility who are licensed pursuant to title 32, who are familiar with this state’s insanity statutes, who are specialists in mental diseases and defects and who are knowledgeable concerning insanity shall observe and evaluate the defendant. The expert or experts who examine the defendant shall submit a written report of the evaluation to the court, the defendant’s attorney and the prosecutor. The court shall order the defendant to pay the costs of the mental health facility to the clerk of the court. The clerk of the court shall transmit the reimbursements to the mental health facility for all of its costs. If the court finds the defendant is indigent or otherwise is unable to pay all or any of the costs, the court shall order the county to reimburse the mental health facility for the remainder of the costs. Notwithstanding section 36-545.02, the mental health facility may maintain the reimbursements. If the court does not commit the defendant to a secure state mental health facility, a secure county mental health evaluation and treatment facility or another secure licensed mental health facility, the court shall appoint an independent expert who is licensed pursuant to title 32, who is familiar with this state’s insanity statutes, who is a specialist in mental diseases and defects and who is knowledgeable concerning insanity to observe and evaluate the defendant. The expert who examines the defendant shall submit a written report of the evaluation to the court, the defendant’s attorney and the prosecutor. The court shall order the defendant to pay the costs of the services of the independent expert to the clerk of the court. The clerk of the court shall transmit the reimbursements to the expert. If the court finds the defendant is indigent or otherwise unable to pay all or any of the costs, the court shall order the county to reimburse the expert for the remainder of the costs. This subsection does not prohibit the defendant or this state from obtaining additional psychiatric examinations by other mental health experts who are licensed pursuant to title 32, who are familiar with this state’s insanity statutes, who are specialists in mental diseases and defects and who are knowledgeable concerning insanity.
C. The defendant shall prove the defendant’s legal insanity by clear and convincing evidence.
D. If the finder of fact finds the defendant guilty except insane, the court shall determine the sentence the defendant could have received pursuant to section 13-707 or section 13-751, subsection A or the presumptive sentence the defendant could have received pursuant to section 13-702, section 13-703, section 13-704, section 13-705, section 13-706, subsection A, section 13-710 or section 13-1406 if the defendant had not been found insane, and the judge shall sentence the defendant to a term of incarceration in the state department of corrections and shall order the defendant to be placed under the jurisdiction of the psychiatric security review board and committed to a state mental health facility under the department of health services pursuant to section 13-3994 for that term. In making this determination the court shall not consider the sentence enhancements for prior convictions under section 13-703 or 13-704. The court shall expressly identify each act that the defendant committed and separately find whether each act involved the death or physical injury of or a substantial threat of death or physical injury to another person.
E. A guilty except insane verdict is not a criminal conviction for sentencing enhancement purposes under section 13-703 or 13-704.

In contrast to the traditional mental health defense, mental defect is not a defense that excuses a defendant’s criminal conduct in Arizona. Instead, in Arizona, once the defendant’s guilt is established, if the defense proves by clear and convincing evidence (often quantified as a 75% certainty) that defendant is insane, the defendant is sentenced to the sentence they would have received had they not been insane, and committed to a mental facility. If the defendant is found to be sane at any time, they serve the remainder of their sentence in a corrections facility. In other words, Arizona is more like Idaho than it is like other states that employ the more traditional use of insanity as a defense. Like Idaho, insanity will not excuse a defendant’s criminal behavior; unlike Idaho, a finding of insanity in Arizona mandates how a defendant will serve their sentence.

In the case of Clark v. Arizona, 548 U.S. 735 (2006), the U.S. Supreme court took up an issue similar to this case addressing the argument we may see in Idaho, that Lori was too mentally incompetent to form the required mental state to commit the crime. The U.S. Supreme court ruled that Arizona did not violate the defendant’s rights when the judge barred the defendant from presenting evidence to rebut the required mental state of his crime. Clark remains good law and will be applicable in and Arizona, but not in Idaho. The case says the court may bar the evidence but doesn’t say it must. The case won’t apply in Idaho because Idaho law expressly permits that evidence. Idaho statute 18-207(3) says, “Nothing herein is intended to prevent the admission of expert evidence on the issue of any state of mind which is an element of the offense, subject to the rules of evidence.”

It seems likely that the defense in Arizona will prevail on a claim that Lori is guilty but insane. In that case, if she is convicted, once Lori serves whatever sentence she receives in Idaho, she will be committed to the supervision of the Psychiatric Security Review Board (PSRB) and placed in a secure facility for the duration of her sentence. If, at some point, the PSRB determines Lori is sane, she would be transferred to the department of corrections to serve the remainder of her sentence. As the Arizona statutes cited below show, first-degree murder is a class one felony. Conspiracy to commit a class one felony is punishable by a minimum of 25 years before the person is eligible for parole. Unlike Idaho, conspiracy to commit murder does not carry the possibility of the death penalty.

13-1003. Conspiracy; classification
A. A person commits conspiracy if, with the intent to promote or aid the commission of an offense, such person agrees with one or more persons that at least one of them or another person will engage in conduct constituting the offense and one of the parties commits an overt act in furtherance of the offense, except that an overt act shall not be required if the object of the conspiracy was to commit any felony upon the person of another, or to commit an offense under section 13-1508 or 13-1704.
B. If a person guilty of conspiracy, as defined in subsection A of this section, knows or has reason to know that a person with whom such person conspires to commit an offense has conspired with another person or persons to commit the same offense, such person is guilty of conspiring to commit the offense with such other person or persons, whether or not such person knows their identity.
C. A person who conspires to commit a number of offenses is guilty of only one conspiracy if the multiple offenses are the object of the same agreement or relationship and the degree of the conspiracy shall be determined by the most serious offense conspired to.
D. Conspiracy to commit a class 1 felony is punishable by a sentence of life imprisonment without possibility of release on any basis until the service of twenty-five years, otherwise, conspiracy is an offense of the same class as the most serious offense which is the object of or result of the conspiracy.
13-1105. First degree murder; classification
A. A person commits first degree murder if:
1. Intending or knowing that the person’s conduct will cause death, the person causes the death of another person, including an unborn child, with premeditation or, as a result of causing the death of another person with premeditation, causes the death of an unborn child.
2. Acting either alone or with one or more other persons the person commits or attempts to commit sexual conduct with a minor under section 13-1405, sexual assault under section 13-1406, molestation of a child under section 13-1410, terrorism under section 13-2308.01, marijuana offenses under section 13-3405, subsection A, paragraph 4, dangerous drug offenses under section 13-3407, subsection A, paragraphs 4 and 7, narcotics offenses under section 13-3408, subsection A, paragraph 7 that equal or exceed the statutory threshold amount for each offense or combination of offenses, involving or using minors in drug offenses under section 13-3409, drive by shooting under section 13-1209, kidnapping under section 13-1304, burglary under section 13-1506, 13-1507 or 13-1508, arson under section 13-1703 or 13-1704, robbery under section 13-1902, 13-1903 or 13-1904, escape under section 13-2503 or 13-2504, child abuse under section 13-3623, subsection A, paragraph 1 or unlawful flight from a pursuing law enforcement vehicle under section 28-622.01 and, in the course of and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of any person.
3. Intending or knowing that the person’s conduct will cause death to a law enforcement officer, the person causes the death of a law enforcement officer who is in the line of duty.
B. Homicide, as prescribed in subsection A, paragraph 2 of this section, requires no specific mental state other than what is required for the commission of any of the enumerated felonies.
C. An offense under subsection A, paragraph 1 of this section applies to an unborn child in the womb at any stage of its development. A person shall not be prosecuted under subsection A, paragraph 1 of this section if any of the following applies:
1. The person was performing an abortion for which the consent of the pregnant woman, or a person authorized by law to act on the pregnant woman’s behalf, has been obtained or for which the consent was implied or authorized by law.
2. The person was performing medical treatment on the pregnant woman or the pregnant woman’s unborn child.
3. The person was the unborn child’s mother.
D. First degree murder is a class 1 felony and is punishable by death or life imprisonment as provided by sections 13-751 and 13-752.

As we saw in both the Lafferty and the Mitchell and Barzee cases, a finding of incompetence rarely means the defendant escapes culpability. In both of those cases, justice was delayed but not denied. In both cases, the defendants were committed for restoration treatment that lasted for years. Nonetheless, in both cases, the defendants were ultimately restored to competency tried and convicted.

Earlier this week, Chad’s attorney, John Prior, filed a motion to sever Chad’s case from Lori’s. There was also a status hearing held on Wednesday, September 8, 2021. In tomorrow’s Friday newsletter, we’ll discuss those developments and what happens next. In addition, I will appear tomorrow evening on YouTube’s Hidden True Crime with Lauren Matthias at 7 pm PDT to discuss all the recent developments. I hope you will join us.