Issue September 2, 2008

Crazy and condemned

Kentucky could be the first state to ban executions of the severely mentally ill

It was clear from the beginning Eugene Gall was guilty. It also was clear he was insane.

Driving through a Cincinnati suburb on the morning of April 5, 1978, Gall — a paranoid schizophrenic with a criminal past — spotted a young girl walking alone through the tranquil neighborhood. The 12-year-old girl was on her way to school.

Two hours later, a motorist driving down a stretch of rural highway in northern Kentucky noticed a red windbreaker on the side of the road and stopped to retrieve it. About a mile later, she noticed a textbook in the road and pulled over once again. 

Assuming the lost items belonged to a student at the local elementary school, the woman called the principal to report finding the jacket and a book bearing the name Lisa Jansen, written neatly inside the front cover. The principal told her no student by that name attended the school. 

Later that afternoon, television newscasts began reporting that Lisa Jansen was missing. By the time the woman called police to report what she had found, they already had a suspect: Eugene Gall. 

Just hours after Jansen vanished, police responded to a report of robbery at a small grocery store in Gardnersville, Ky., a tiny town about 20 miles east of Interstate 71. Officers raced into the parking lot as Gall tried to exit, armed with a .357 magnum revolver and $112 from the register. Gunfire erupted, and Gall shot and injured two cops and a bystander before he was captured.

After reviewing Gall’s rap sheet, police questioned him about the missing girl.

In 1970, Gall had been charged with several counts of rape, but a judge found him mentally incompetent to stand trial. He spent 19 months in a mental institution where doctors treated him with anti-psychotic drugs. Eventually, Gall was deemed competent and he pleaded guilty to the charges — although he claimed not to remember the rapes — and spent five years in a state penitentiary.

When police asked Gall if he had any information about Lisa Jansen’s disappearance, he did not deny involvement. Instead, he insisted he could not recall his whereabouts that morning. 

The next day, after police found the girl’s body alongside a remote creek in northern Kentucky, 30 miles from her home, Gall was charged with kidnapping, rape and murder. Ultimately, a jury in Boone County, Ky., convicted Gall and sentenced him to death. 

“He was severely mentally ill and there was an insanity defense raised, but the jury did not go that way,” says Edward Monahan, a longtime defense lawyer who represented Gall on appeal years later. “The problem is that juries are very rarely able to bring themselves to make that finding, probably because they fear the person’s release into society and their safety being in danger.”

The jurors undoubtedly saw a monster who — regardless of mental illness — committed a gruesome crime, and they were unwilling to risk sending Gall to a psychiatric facility because he might one day be released. It’s a pervasive fear that compels juries to send inarguably insane defendants not only to prison, but also to death row. 

But a growing consensus of legal experts and mental health professionals are pushing for an end to executing the severely mentally ill, claiming the punishment is inappropriate and unconstitutional in cases where a person’s insanity likely led to a crime.

The movement is gaining momentum nationwide and in Kentucky, where state lawmakers are expected to consider a bill next session that would prohibit the execution of the severely mentally ill. If approved, Kentucky would become the first state to enact such a ban. 

The law would apply only to a narrow pool of defendants, and would ensure that those convicted still are severely punished, as opposed to institutionalized. They could face life in prison without parole — just not execution. 

“When someone behaves in a way that hurts other people substantially, there should be accountability, but the accountability should be based on the culpability of the individual,” says Monahan, who took over as the state’s chief public defender Sept. 1. “Someone who is severely mentally ill has less ability to be accountable for their conduct. … The ultimate penalty ought not be applied to people who cannot fully control their behavior.”

 

The U.S. Supreme Court banned the execution of the mentally retarded in 2002, declaring that those offenders are not as culpable for their crimes as fully functioning adults. Three years later, the high court excluded juveniles from the death penalty, citing the same reason.

Now, it appears prohibiting the execution of the seriously mentally ill is the next major capital justice reform on deck. 

Given Kentucky’s past willingness to amend its laws on capital punishment, advocates are hopeful state lawmakers will again endorse change, setting the stage for reform nationwide. 

More than a decade before the Supreme Court outlawed capital punishment for the mentally retarded, Kentucky lawmakers banned the practice in 1990, becoming only the third state to do so. When the Supreme Court finally followed suit, the justices reasoned that an individual with mental retardation — defined as someone with an IQ of 70 or below — has limited reasoning, judgment and impulse control, and does not act with the same level of moral culpability as a normal adult.

In further scaling back capital punishment by banning the execution of juveniles, the court echoed similar reasons, pointing out that children are less mature and therefore less culpable that the “average criminal.” Writing for the majority, Justice Anthony Kennedy concluded: “Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished. …”

Some argue that notion applies to the mentally ill as well.

In both landmark cases, the Supreme Court pointed out that in addition to amounting to cruel and unusual punishment, executing mentally retarded and juvenile offenders violated numerous international treaties.

The same could be said for executing the chronically insane, which the United Nations has repeatedly denounced as a human rights violation, and which critics say should be eradicated to fix a broken capital punishment system in the United States. 

Since capital punishment was reinstated across the United States in 1976 (following a 10-year moratorium), Kentucky has garnered national media attention for its handling of death penalty cases on more than one occasion. In 2004, then-Gov. Ernie Fletcher — a physician — signed a death warrant for a Kentucky inmate, sparking controversy among critics who said the move violated the Hippocratic Oath. Although the American Medical Association bars doctors from participating in executions, the state medical board determined the Republican governor did not violate ethics rules by signing the death warrant.

Kentucky made headlines again in 2007 when a condemned inmate argued the three-drug protocol used in lethal injections — the primary means of execution in Kentucky and across the country — amounted to cruel and unusual punishment. The U.S. Supreme Court agreed to hear the case of Ralph Baze, resulting in a six-month de facto moratorium on executions nationwide. The high court ultimately rejected the claim in April 2008.

Now, the Bluegrass is once again attracting national attention as lawmakers prepare to consider a progressive capital punishment reform.

If Kentucky legislators approve the proposed bill, the commonwealth would become the first state (of the 36 states where capital punishment remains legal) to ban the execution of the severely mentally ill.

“The majority of Kentucky lawmakers support the death penalty, there’s no question about that,” says Fr. Patrick Delahanty, director of the Kentucky Coalition to Abolish the Death Penalty, one of several organizations behind the bill. “But because they have demonstrated a willingness in the past to make changes, I’m hopeful they’ll seriously consider this proposal.”

The proposal calls on legislators to alter the state’s existing statute prohibiting the execution of the mentally retarded to include those who are deemed to have been severely mentally ill at the time of their offense. If a person charged with capital murder in Kentucky potentially suffers from a severe mental illness, a pre-trial hearing would be held to make the final determination. If the judge finds the defendant meets the established criteria, execution is ruled out, although the next harshest punishment — life without parole — would remain an option.

“Somebody with the diminished capacity that goes along with being mentally ill shouldn’t be facing the death penalty,” Delahanty says. “If the person is a danger to society, of course there must be some way that society is protected, which this proposed legislation ensures.”

In conjunction with Kentucky’s chapter of the National Alliance on Mental Illness, Delahanty sought the help of the American Psychiatric Association, the American Bar Association and other experts in drafting the proposed bill. Careful not to make the proposed reform too broad, Delahanty points out that only individuals suffering from the most serious mental disorders would be eligible for exclusion from capital punishment. Such mental illnesses include major depressive disorder, dissociative disorders such as multiple personalities, and schizophrenia, by far the most common serious mental illness plaguing capital defendants. Those with psychological disorders due to chronic drug abuse could still face the death penalty. 

Not only must a defendant be diagnosed with a grave mental illness, lawyers would have to prove the person was suffering from the disorder at the time of the crime.

It is estimated that about 5-10 percent of defendants currently on death row suffer from severe psychological illness, according to the American Civil Liberties Union. If legislators enact this law in Kentucky, it would apply only to defendants whose trials commence after the ban takes effect. 

A state lawmaker (who Delahanty declined to name) currently is reviewing the legislation to suggest any last-minute changes to the language, and the next step will be choosing a sponsor to present the bill during the next session in Frankfort, which begins Jan. 1, 2009. 

“It is definitely worth considering, and I think it is something that lawmakers will take seriously,” says state Rep. Jim Wayne, D-Louisville, adding that finding a sponsor would not be a problem.

The only potential roadblock could be the House Judiciary Committee, which must first consider the bill. Currently headed by Rep. Kathy Stein, D-Lexington, the makeup of the committee is slated to change this year because the chairwoman is running for state senate, and the lawmaker who takes over the committee will dictate the agenda. “If we get a reactionary chair, someone who is barbaric in their concept of justice, the bill may not make it through,” explains Wayne, a licensed clinical social worker and opponent of capital punishment in all cases. “If we get someone who thinks more along the lines of Rep. Stein, then it’s very likely the bill will be heard.”

Assuming the bill makes it out of committee, Wayne says legislators will be more likely to approve the measure if it applies only to severe mental disorders that include psychosis. But even if the legislature does not enact the reform this session, it probably will be reintroduced again next year. “Sometimes you have to educate legislators about an issue, and that’s especially true for something as complex as mental illness,” says Wayne. “Some of the best bills take time.”

 

By the time Eugene Gall was tried for the rape and murder of Lisa Jansen in the fall of 1978, the mentally ill defendant had fallen into a deeply delusional state. Convinced he was a defense attorney, Gall attempted to fire his public defenders and take over his case, prompting the judge to order yet another round of psychological evaluations.

Not surprisingly, experts for the defense and the state gave conflicting reports on his competence. The close-knit northern Kentucky community — still reeling from the horrific crime — was outraged at the thought of the child killer being institutionalized, and the judge ultimately ordered the trial to proceed.

At trial, the evidence tying Gall to the murder was overwhelming. The bullet lodged in Jansen’s skull matched his gun. Red nylon fibers found on the girl’s body matched the carpet in Gall’s car. And semen found on the victim matched semen stains found on the front seat of the suspect’s Ford. 

Defense lawyers never contended Gall did not commit the crime.

Instead, the defense portrayed an emotionally disturbed man who was beaten and sexually abused as a child, and diagnosed with paranoid schizophrenia as an adolescent. Numerous experts testified that Gall likely was experiencing a psychotic episode when he murdered Jansen.

One doctor appointed by the judge told jurors that he believed Gall honestly did not recall the rapes he committed in 1970, or the rape and murder of Jansen, suggesting the defendant had “blotted out his actual knowledge” of the crimes.

“I cannot explain Mr. Gall’s behavior on that morning in question … except in terms of extreme mental disorder,” the doctor testified. “This defendant had no reason to rush helter-skelter about, throwing clothes, belongings, books and whatever all over the highway.”

From the witness stand, the doctor warned that Gall should “never be allowed to become a free member of society again.” 

During trial, Gall’s mother took the stand and pleaded with the jury: “How can you kill the Eugene who doesn’t realize what he has done?” But her plea for mercy was unsuccessful.

Faced with the prospect of finding Gall not guilty by reason of insanity and sending him to a state mental institution from which he might one day be released, the jury instead opted for the other extreme — execution.

Years after Gall’s trial, several jurors called to testify during his appeal admitted they favored imposing the death penalty in large part because he was deranged, despite the fact that mental illness is a mitigating factor in capital cases. 

The mentally ill murderer spent more than two decades on Kentucky’s death row before a federal appeals court threw out his conviction, finding him legally insane and declaring his trial unconstitutional. The U.S. 6th Circuit Court of Appeals found the prosecution violated Gall’s constitutional rights by ridiculing the insanity defense in front of the jury, withholding crucial documents pertaining to his mental health, and by suggesting the defendant would go free if found not guilty by reason of insanity.

Rather than present evidence disputing the defense’s argument, the prosecution disparaged the use of an insanity defense in general, equating psychologists to “three blind mice asked to identify an elephant,” before warning the jury not to “turn Gall loose” by finding him insane and shipping him off to a mental hospital.

When the appellate court overturned Gall’s conviction, the state was given the option to have Gall involuntarily committed to a Kentucky mental institution. Instead, prosecutors allowed him to be extradited to Ohio, where he now is serving a life sentence for a series of violent crimes.

 

The U.S. Supreme Court ruled in 1986 that it is unconstitutional to execute a person who is insane, reasoning that it’s cruel and unusual to kill someone who does not understand the reason for the death sentence or the reality of the situation. But rather than fully prohibit executing the severely mentally ill, the justices made it clear a defendant only has to understand the legal proceedings and why he is being put to death, meaning the state can medicate a prisoner to make him just competent enough to be executed.

As a result of the ruling, prosecutors and defense attorneys frequently battle over the competency of accused murderers who are mentally ill, and in some cases, defendants are considered incompetent for years before they finally are tried.

It’s a battle that’s currently being waged in a number of capital cases in Jefferson County, including that of Said Biyad, a Somali refugee accused of murdering his four children and attempting to kill his wife.

When Biyad strolled into Metro Police headquarters on the morning of Oct. 6, 2006, and calmly stated in broken English that he had just killed his family, police initially believed he was crazy. Biyad spoke matter-of-factly about murdering his wife and kids, running his finger across his neck as though slitting his throat. The officer was skeptical, believing the man mentally ill, but he called dispatch nonetheless, asking a patrol unit to check on the family’s welfare.

“I’m here with a guy. … He’s claiming that he, uh, he killed his wife and kids; but I think it might, I think it’s gonna be a CIT situation,” the officer explained to the operator, referring to the department’s crisis intervention team, which deals with mentally ill individuals.

Officers responded to the family’s Iroquois Homes apartment and encountered a bloodbath. A hysterical young mother — suffering from a serious head wound and covered in blood — screamed, “My babies!” as the officers entered. Her four children were dead, their throats slashed.

In a taped interview at the station, Biyad confessed. At times during the interview he rambled incoherently; at others, he clearly and candidly recalled the grisly attack, which he is accused of carrying out during an argument with his estranged wife.

Biyad told police he beat his wife with a rubber mallet: “I hit her. I hit her two times.” When she regained consciousness, Biyad approached her with a knife, prompting her to run to a back bedroom and lock the door.

That’s when Biyad said he attacked his children — ages 2, 4, 6 and 8 — slashing their throats with a 7-inch serrated knife.

When it was all over, Biyad told the detective: “I cried and wash my hands in the kitchen. I said, ‘What am I doing? Where I’m supposed to go, I don’t know.’”

Finally, he said, “Please arrest me. … It is not right, I did bad things, it’s not right.” 

Charged with four counts of capital murder in Jefferson County Circuit Court, Biyad has been subjected to a battery of psychological tests, and lawyers are embroiled in a complex battle to determine whether he is sane enough to stand trial. Recounting interviews with the defendant, Dr. Wayne Herner describes Biyad in court documents as a “very disturbed individual” who is “paranoid and delusional.” The forensic psychologist detailed several of Biyad’s grandiose delusions, like his belief that he has $40 million, that four men are after him to get the money, and that his lawyer is a policeman who is trying to trick him.

But the prosecution has argued the accused murderer is fully aware of the legal proceedings, downplaying the opinions of experts who say he is delusional.

“Unfortunately there’s a great deal of skepticism about mental illness. There is a tendency to think that some criminals are just using mental illness to get off,” says Peter Schuler, chief of the juvenile and
mental health division in the Louisville Metro Public Defender’s Office.

Very few mentally ill defendants are found not guilty by reason of insanity for that very reason, according to Schuler, who says there is a powerful force in society to seek vengeance.

That’s particularly true with especially heinous crimes, which Schuler says are not that unusual in capital cases where the perpetrator is severely mentally ill: “It would make sense that if your thinking is deranged, you might not have a normal revulsion to these horrible acts.”

 

A handful of notorious cases in which insanity defenses were successful have triggered vast publicity, while a number of movies have depicted vicious killers feigning mental illness to avoid conviction (think Edward Norton in “Primal Fear”). Such stories — both real and fictitious — give the incorrect impression that insanity defenses are both quite common and successful.

In fact, only about 1 percent of accused felons claim innocence due to mental illness. Of those defendants, juries find only a small fraction not guilty by reason of insanity. Experts believe that’s because mental illness is stigmatized, misunderstood and feared.

“I think there’s widespread ignorance about the impact of mental illness on people’s thoughts and behaviors,” says Dr. Paul Appelbaum, professor of psychiatry at Columbia University. “There are a number of variables at play: One is a lack of understanding. The other, frankly, is that society is afraid of people with mental illness.”

When faced with a murderer who is severely mentally ill, Appelbaum says jurors might be more inclined to impose the harshest possible punishment, when in fact they should be more lenient.

“A sufficiently horrendous crime will likely lead jurors to impose the maximum possible penalty regardless of the mental state of the person at the time,” says Appelbaum, an expert in the area of psychiatry and the law. “In cases where a mental disorder significantly reduces a person’s ability to think clearly about their actions or control their behavior … in those cases it may very well reduce their responsibility enough that the death penalty should not be imposed.”

The notion of someone losing control emotionally, and acting out violently as a result, is indeed a scary thought, and it’s a fear some legal observers say prosecutors exploit when a defendant’s sanity is in question. Other times, the state discounts proof of mental illness, or suggests a defendant is faking altogether to cover up a calculated crime. (Although experts say it’s highly unlikely a defendant could successfully fake insanity.)

Perhaps the most publicized case of a murderer pleading insanity in recent history involved Andrea Yates, the Texas mother who systematically drowned each of her five children in the bathtub in 2001 before calmly calling 911 and asking the operator to send an ambulance. The state’s own expert conceded at trial that Yates was indeed psychotic, but the prosecution argued she failed to meet the strict definition of insanity because she was able to distinguish right from wrong. The jury found her guilty of capital murder, but spared her from the death penalty, sentencing her to life in prison.

A judge later overturned the conviction due to false witness testimony, and Yates was retried for capital murder. That time around, the jury found her not guilty by reason of insanity. Now confined to a state-run mental hospital, Yates could be released if she ever is deemed sane.

But the outcome of the Yates case is an aberration. Most mentally ill murderers wind up in prison for life or facing execution. In fact, there have been a number of cases in recent years in which schizophrenic, delusional and psychotic prisoners have been put to death. One especially unsettling example was the execution of Kelsey Patterson — not surprisingly in Texas, the country’s overwhelming leader in executions — in 2004.

After spending much of his life in and out of mental hospitals, Patterson was arrested in 1992 for shooting two strangers without motive, then waiting at the scene for police to arrive. The paranoid schizophrenic had long heard voices, and believed he was the target in an elaborate conspiracy. Although his insanity only worsened in prison, he was deemed competent for trial and eventually put to death by lethal injection — because doctors believed he understood the legal proceedings he faced. 

In some cases where severely mentally ill killers land on death row, however, judges and politicians intervene before execution. 

In Indiana, Gov. Mitch Daniels commuted the death sentence of Arthur Baird in 2005, just two days before he was scheduled to be executed. Baird — diagnosed with a delusional disorder — strangled his wife for no apparent reason, then went to his parents’ house the next morning and, after bringing in the newspaper, feeding the chickens and getting a haircut from his mother, stabbed both his parents with a butcher knife. He now is serving life without parole.

Just south in Tennessee, the state’s court of appeals overturned the death sentence of Richard Taylor in March. A paranoid schizophrenic, Taylor was serving time for robbery when, after being denied his anti-psychotic medication for months, he attacked and killed a prison guard. The judge allowed Taylor to serve as his own attorney. During his trial, he wore sunglasses, failed to present any witnesses or evidence, and instead ranted incoherently before the jury, which sentenced him to death. His sentence was thrown out and he now is serving life.

“When you look at cases where people with a serious mental illness end up committing capital murders, often it’s because help was never provided,” says Ronald Taback, chairman of the American Bar Association’s task force on mental disability and the death penalty.

The American Bar Association takes no official position on capital punishment, but in 2006 the organization issued a formal recommendation urging states to stop executing defendants who were severely mentally ill at the time of their offense.

Applauding the proposed bill that would enact such a ban in Kentucky, Taback says the measure is overdue nationwide.

But as was the case with prohibiting the execution of the mentally retarded and juvenile offenders, he expects it will take a major effort to educate lawmakers and the public before gaining approval. 

“Hopefully it won’t take some great outrage to cause serious consideration of a proposal like this,” he says.