There is a huge injustice that is about to be perpetrated against
the people of this entire country. This injustice will especially
hurt the survivors and families of the victims of the tragic
murders in Wakefield Massachusetts this past December. My deepest
sympathy goes out to the families of the victims in Wakefield.
The full joy of the holiday season will never completely return
to these families due to the actions of one sick individual.
The injustice that is about to occur comes to us in a statement
from Michael McDermott's lawyer, Kevin Reddington. Michael
McDermott was indicted on Friday February 16th, on 7 counts of
murder. After the indictments were handed down Mr. Reddington
stated that "McDermott was undergoing psychiatric treatment
and taking medication, and that he may pursue an insanity
defense."
The insanity defense or The Depression Defense as I like to call
it, is actually plead as Innocent by Reason of Insanity. There is
not a shadow of a doubt that Michael McDermott committed these
crimes. To claim that McDermott is Innocent for any reason is a
total injustice to every citizen in this country. This man is as
innocent as Judas. This man is as innocent as Adolph Hitler. This
man is as innocent as Timothy McVeigh.
If the Oklahoma City bomber, Timothy McVeigh, had tried to plead
Innocent by Reason of Insanity, the entire country would have
been up in arms. The citizens of this country would have spoke
out from every corner of These United States to abolish the
insanity plea. Being insane does not remove the guilt for an act
of crime.
The blame must lie with the criminal and not with his state of
mind or with the items he used to commit this crime. This was a
big man that could have used his hands, a bat, a knife, or a bomb
which he had already made at his home. People must be held
Personally Responsible for their actions. It is not the cigarette
when people choose to smoke, and it is not the firearm when
people choose to use it illegally. What it comes down to is
Personal Responsibility Period.
Even though the blame lies totally with the sick individual, his
sickness should not be allowed to be used as a defense for his
actions. If there is responsibility to be shared, there were
others involved. These were the doctors that had treated this man
for his depression. Another weapon in this case was the pen of
the doctors prescribing anti-depressants. By writing these
prescriptions their fingers were on the trigger as well.
Anti-Depressants may help many people, but these doctors need to
pay much closer attention to their patients. The problem with
these drugs is not over-dosing but abruptly stopping the
medication. When a patient stops taking these anti-depressants
they suffer withdrawal symptoms including severe depression,
aggressiveness, and psychopathic and suicidal tendencies. People
on these medications need to be monitored more closely and that's
a problem for the medical society.
Some responsibility has to fall on the State of Massachusetts.
The anti-firearm zealots are so overbearing on tracking legal
firearm owners and tracing every legal firearm that they are over
looking criminals that should be tracked, traced, and charged
with firearm violations. Michael McDermott had a legal firearm
license with the state and he let it lapse. The State of
Massachusetts knew that McDermott owned firearms and when his
license was not renewed then Massachusetts should have gone after
him to investigate why the license wasn't renewed. If the State
of Massachusetts had spent some time enforcing the laws that they
already have instead of making new laws that just create a
mountain of paperwork for honest firearm owners, then possibly
this tragedy could have been avoided.
The fact that Michael McDermott is sick and has a problem with
depression, does not take away the fact that He committed the
crime. Innocent by reason of insanity is a LIE, A Total
Falsehood. To be innocent is to be found not to have committed
the crime at all. If you are insane and you commit a crime, you
did it. You are guilty. What we need is a New Plea and that
should be, Guilty, But Insane.
The Depression Defense, which has been brought up in the
Wakefield, Massachusetts tragedy, has no place in our justice
system. Put them in a hospital and when they are better, let them
serve out the remainder of their punishment in prison where they
belong.
As printed in the Exeter News-Letter on Friday January 18,
2002:
(This is from my testimony before the NH House Criminal Justice
and Public Safety Committee hearing on House Bill 1189- relative
to the plea of guilty but insane. The hearing was held on
Tuesday, January 15, 2002)
The insanity defense or Innocent by reason of insanity has
evolved from old English law where it was decided that those
people who could not comprehend right from wrong in their actions
were innocent because they had no intent to commit the crime. The
lack of intent is the basis for declaring someone innocent by
reason of insanity. The theory is that there must be intent to
commit a crime in order to hold someone responsible for that
crime.
I do not believe that intent must be present in order to find
someone guilty of a crime. Intent can be a factor in the degree
of criminality involved, but not to dismiss the crime altogether.
Many people have been stopped for speeding because they missed
the sign stating a slower speed. They did not "intend"
to speed. I am sure the officer told them that "Ignorance of
the law is not an excuse".
NH law states that "A person is not relieved of criminal
liability because he acts under a mistaken belief of fact unless:
The mistake negatives the culpable mental state required for
commission of the offense." That is where the idea of intent
falls in NH law. NH law also states that "A person is guilty
of murder, a felony, or a misdemeanor only if he acts purposely,
knowingly, recklessly or negligently." These four categories
are the basis for mental culpability.
I can agree that an insane person would not knowingly,
recklessly, or negligently, commit a crime, but whether they
understand or comprehend what they are doing, they still do it
purposely. Though they may not have intent, they do have a
choice, and when they choose to do something, they do it
purposely. The fact that an insane individual is sick and has a
problem with depression, does not take away the fact that they
committed the crime. To be innocent is to be found not to have
committed the crime at all. If you are insane and you commit a
crime, you did it. You are guilty. What we need is a New Plea and
that should be, Guilty, But Insane.
Guilty, but Insane does leave the option of treatment and
placement in the Psychiatric Care Unit, but this change also
requires that if by chance a person is found to be sane, then
that person should serve at least 25% of the time remaining in
their sentence in prison. This is simply a way to show a person
who now does comprehend what they did, that there is a price to
pay for doing such things.
The fact of the matter is that NH has very few successful
Insanity defenses, and that is a credit to NH’s justice
system, but if just one happened to get released early and commit
another crime, that would be one too many. According to an MSNBC
report The NH Department of Corrections says it has 22
individuals under its supervision who are not guilty by reason of
insanity. Ten of them are being held in the Secure Psychiatric
Unit and 11 have been placed in other settings. The prison also
has custody of nine patients who were found to be not competent
to stand trial. That’s a total of 30 inmates considered to
be insane in NH’s Prison system.
I have not found any instance of a person being released early,
and that’s another credit to NH’s justice system, but
if it ever happened it would be a travesty of justice to the
victims of the crime and their families. In June of last year,
ABC’s PrimeTime ran an episode called "Predators Among
Us". They state that Nathaniel Bar-Jonah, who had a history
of sexual crimes against boys, was released from the
Massachusetts Treatment Center for the Sexually Dangerous after
12 years because a judge deemed him no longer sexually dangerous.
Bar Jonah is now accused of sexually assaulting three Great Falls
Montana boys and killing a fourth. According to the Great Falls
Tribune His trial for the murder is set for May 13th of this
year, but first he will be tried for the sexual assaults on
February 12.
The PrimeTime story also states that in 1991, Convicted rapist
Michael Kelley was released from the same treatment center as Bar
Jonah, after a psychologist concluded he did not need additional
treatment. After his discharge, he killed two women. Then during
an interview with Paula Erickson, a therapist there until the
early '90s, says many such dangerous men were released from the
facility. "I tried to warn people, but they wouldn't
listen," says Erickson, who was laid off and has since
settled a lawsuit she brought against the state. "I couldn't
get anyone to investigate,"
So Erickson compiled her own list of 26 men she thought should
not have been freed, and 10 years later, PrimeTime Thursday takes
a roll call of these sexual predators.
PrimeTime found that None of the 26 men was registered with the
Massachusetts Sex Offender Registry Board. Three were discharged
from the center to serve in prison; they will be eligible for
release soon. Eleven who were released are back in prison or are
awaiting trial, mostly for new sex crimes. Seven of the men are
unaccounted for.
Now I am not saying that this would happen in NH, but as I said
earlier, even one would be too many.
In a recent e-mail from the brother of Cheryl Troy who was
murdered in Wakefield Massachusetts, he stated that "My
sister Cheryl Troy was killed by Michael McDermott, so I can tell
you first hand your proposal is very significant. Like the rest
of the victims, Cheryl was an angel and my family will never get
over her horrible death.
But now, adding insult to injury, we are forced through the
nightmare of listening to McDermott's lawyer as he defends Mucko
(McDermott) claiming he was insane and not responsible for his
hideous actions. We all know, as does the DA, this is just a lame
and unethical excuse. Yet the charade goes on and on as they
attempt to circumvent justice in the name of a brutal killer.
In addition to the obvious injustice, there is the unnecessary
pain this absurd defense causes the victim's families. First we
loose our loved ones, then we are insulted by a system that has
apparently lost touch with reality. So hopefully, your bill will
have a hidden benefit."
Even though the insanity plea may rarely be used as a way to
circumvent justice, again it only takes once. Right now we have
two young men accused of killing two college professors in
Dartmouth NH. The younger one has cut a deal, but the older one,
who could possibly get life, has decided to plead insanity.
Instead of life, this kid could get the opportunity to get
reviewed every 5 years. Now that’s every 5 years that the
victims and the victim’s families have to deal with the
tragedies all over again. If nothing else, the plea of Guilty,
but Insane would not offer a benefit to abuse this system.
As printed in The Exeter News-Letter on Friday 11/22/2002 (Column appears in Print Version
Only):
It is with great sadness that I must announce the death of my
bill. My bill was HB1189, relative to the plea of Guilty, but
Insane. HB1189 came before the Criminal Justice and Public Safety
committee in January of this year, and was sent to a sub
committee for study. That committee recommended that the bill not
be resubmitted for legislation in 2003, thus bringing a swift but
painful death to my bill.
When I testified at the hearing, I felt like David versus
Goliath. There were a couple people that offered support, but the
majority of doctors, lawyers, and representatives that spoke were
against expecting an insane person to be considered guilty of
anything. They felt that a lack of understanding and
comprehension of right and wrong was a good enough reason not to
consider someone guilty of a crime.
My feeling all along has been that the Insanity Plea is a lie, a
total falsehood. Even though a person may not understand or
comprehend that what they did was wrong, they still committed the
crime. So even though they don't comprehend what they did, they
are still guilty in my opinion, thus the plea of Guilty but
Insane.
The but in the plea of Guilty, but insane, gives the courts and
the juries the leeway to offer a secondary sentence less than
that of a criminal who understood what they were doing. I fully
understand that we, as a society, do not expect those who lack
the capability to understand right from wrong, to suffer the same
consequences as those who purposely and with intent, break the
law.
From the testimony that I heard at the hearing, I would say that
many people felt that NH already handled the insanity plea fairly
well, and that there were very few cases that ever went to court.
"There are very few cases of not guilty by reason of
insanity in NH" according to Assistant Attorney General Ann
Rice, who also said that in NH "juries decide sanity".
For this reason, she believes that it would take a constitutional
challenge to remove the insanity plea.
This is where I made a mistake in my research. Although I believe
that the Assistant Attorney General was mistaken in her statement
that "juries decide sanity", she was correct that it
would have required a constitutional challenge. Article 15, the
right of the accused, under the NH Bill of Rights, clearly states
that "No subject shall be arrested, imprisoned, despoiled,
or deprived of his property, immunities, or privileges, put out
of the protection of the law, exiled or deprived of his life,
liberty, or estate, but by the judgment of his peers, or the law
of the land; provided that, in any proceeding to commit a person
acquitted of a criminal charge by reason of insanity, due process
shall require that clear and convincing evidence that the person
is potentially dangerous to himself or to others and that the
person suffers from a mental disorder must be established."
Due to article 15 of the NH Bill of Rights it would have taken a
constitutional challenge to amend that article to allow for a
change in the plea. Although it does state "but by the
judgment of his peers, or the law of the land", so I don't
believe that juries must decide sanity. It seems that this
sentence also allows for the decision to be made by "the law
of the land".
Well, due to the decision of the criminal justice and public
safety committee, by a vote of 14 to 0, to not recommend the bill
for legislation in 2003, these points are now moot. I am quite
upset that not one voting member of the committee could see the
reasoning to at least correct the injustice of calling someone
innocent, when in actuality they did commit the crime.
I would like to thank Marshal "Lee" Quandt and Matthew
Quandt for sponsoring HB1189. Lee lost his bid for State Senator
of District 23 and Mathew won re-election to his seat in the NH
House of Representatives. I appreciate their efforts to change
the insanity plea to Guilty, but Insane; even though several
states have adopted such legislation, NH is just not ready for
it, yet.
November 8th will always be a sad day for me from this day
forward. It's the day that I learned a valuable lesson, and lost
a good bill, My bill, HB1189, relative to the plea of guilty but
insane, gone but not forgotten. That's my side of the story.
HB00 - AS INTRODUCED
2002 or 2001 SESSION
00-0000
04/2001
HOUSE BILL 1189
- AN ACT relative to the plea of guilty but insane.
The Guilty but Insane Bill-AN ACT abolishing the right of
defendants to plead "Not Guilty by Reason of Insanity"
or "Innocent by Reason of Insanity" and changing that
plea to "Guilty, but Insane" and eliminating their
right to be released until they are deemed competent to serve 25%
of their sentence or 25% of the time to eligibility of parole in
a State Prison Facility, not including time served in the Secure
Psychiatric Unit.
SPONSORS:
COMMITTEE: Judiciary?
ANALYSIS
This bill changes the right of defendants to plead "Not
Guilty by Reason of Insanity" or "Innocent by Reason of
Insanity" and changes that plea to "Guilty, but
Insane" and eliminates their right to be released until they
are deemed competent to serve 25% of their sentence or 25% of the
time to eligibility of parole in a State Prison Facility, not
including time served in the Secure Psychiatric Unit.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand One or Two Thousand Two
AN ACT abolishing the right of defendants to plead "Not
Guilty by Reason of Insanity" or "Innocent by Reason of
Insanity" and changing that plea to "Guilty, but
Insane".
Be it Enacted by the Senate and House of Representatives in
General Court convened:
Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struck
through.]
Matter, which is either (a) all new, or (b) repealed and
reenacted appears in regular type.
1) Amend RSA 622:44, II to read as follows:
The rules shall reflect the general policy that persons committed
or transferred to the unit, who may be convicted offenders,
persons found [not guilty because of insanity] Guilty,
but Insane, pre-trial detainees, or persons civilly
committed, shall retain all their individual rights, except where
safety or security mandates restriction.
2) Amend RSA 628:2, I to read as follows:
A person who is insane at the time he acts is [not]
criminally responsible for his conduct but to the extent
that they are required to serve 25% of their sentence or 25% of
the time to eligibility of parole in a State Prison Facility
after they are released from the Psychiatric Care Unit.
Any distinction between a statutory and common law defense of [insanity]
Guilty, but Insane is hereby abolished and
invocation of such defense waives no right an accused person
would otherwise have.
3) Amend RSA 651:8 to read as follows:
Whenever the grand jury shall [omit to] find an
indictment of Guilty, but Insane against a
person, for the reason of insanity or mental derangement, [or
a person prosecuted for an offense shall be acquitted by the
petit jury for the same reason,] such jury shall certify
the same to the court.
4) Amend RSA 651:8-a to read as follows:
Plea of [Insanity] Guilty, but Insane.
Any person prosecuted for an offense may plead that he is [not
guilty] Guilty, but Insane by reason of
insanity or mental derangement. If such a plea is accepted by the
state's counsel, such counsel shall certify the same to the
court."
5) Amend RSA 651:8-b to read as follows:
651:8-b Hospitalization; Persons [Acquitted by Reason of
Insanity] found Guilty but Insane. I.
If a person is found [not guilty by reason of insanity]
Guilty but Insane at the time of the offense
charged, he shall be committed to the secure psychiatric unit
until such time as he is [eligible for release] deemed
competent to serve 25% of their sentence or 25% of the time to
eligibility of parole in a State Prison Facility and not
including time served in the Secure Psychiatric Unit,
pursuant to paragraph IV.
II. A hearing shall be conducted not later than 40 days following
a verdict of [not guilty by reason of insanity]Guilty,
but Insane, at which the defendant shall be represented
by counsel. The state and the defendant shall be offered the
opportunity to present evidence and to cross-examine witnesses
who appear at the hearing.
III. Prior to the date of the hearing pursuant to paragraph II,
the court shall order that a psychiatric or psychological
examination of the defendant be conducted, and that a psychiatric
or psychological report be filed with the court, with copies
provided to the defendant and to the attorney for the state.
IV. If, after the hearing, the court finds by clear and
convincing evidence that the [acquitted] person is presently
suffering from a mental disease or defect as a result of which
his [release would create a substantial risk of bodily
injury to himself or another, or serious damage to the property
of another] imprisonment would be detrimental to himself
and other prisoners, the court shall commit the person pursuant
to the provisions of RSA 651:9-a and RSA 651:11-a. The existence
of clear and convincing evidence that a person's [release
would create a substantial risk of bodily injury to himself or
another person or serious damage to the property of another]
imprisonment would be detrimental to himself and other prisoners
shall be presumed, subject to rebuttal by the [acquitted]
person, where the person has been found [not guilty by
reason of insanity] Guilty, but Insane
of an offense involving bodily injury or serious damage to
property of another, or substantial risk of such injury or
damage.
6) Amend RSA 651:9-a to read as follows:
In either of the cases aforesaid the court, if it is of the
opinion that it will be dangerous that such person should [go
at large] be sentenced to a State Prison Facility, shall
commit him to the secure psychiatric unit [for 5 years
unless earlier discharged, released or transferred by due course
of law] until he is deemed competent to serve
25% of their sentence or 25% of the time to eligibility of parole
in a State Prison Facility.
7) Amend RSA 651:11-a to read as follows:
Duration of Committal Orders. - I. Orders of committal to the
secure psychiatric unit made pursuant to this chapter shall be
valid for 5 years. For the order to be renewed, another judicial
hearing must be held. At the renewal hearing, when the court is
satisfied by clear and convincing evidence that the person
suffers from a mental disorder and that it would be dangerous for
him to go at large, or to serve 25% of their sentence or
25% of the time to eligibility of parole in a State Prison
Facility and not including time served in the Secure Psychiatric
Unit, the court shall renew the order of committal.
II. Without otherwise limiting the discretion of the court, a
court shall find it would be dangerous for a person to go at
large if:
(a) He has been found [not guilty by reason of insanity]
Guilty but Insane of a crime; and
(b) The physical act or acts constituting the crime of which the
person was found [not guilty by reason of insanity]
Guilty but Insane caused death or serious bodily
injury as defined in RSA 625:11, VI, to him or another, or
created a grave risk of death or serious bodily injury to him or
another; and
(c) The person suffers from the mental disorder or a
substantially similar mental condition as existed at the time he
committed the act or acts which constituted the crime of which he
was found [not guilty by reason of insanity] Guilty
but Insane.
III. Without otherwise limiting the discretion of the court, a
court may find that it would be dangerous for a person to go at
large or serve 25% of their sentence or 25% of the time
to eligibility of parole in a State Prison Facility if:
(a) He has been found [not guilty by reason of insanity]
Guilty but Insane of a crime; and
(b) The physical act or acts constituting the crime of which the
person was found [not guilty by reason of insanity]
Guilty but Insane resulted in damage to the
property of another, or created a grave risk of damage to the
property of another, or caused harm or a risk of harm to himself
or another; and
(c) The person suffers from the mental disorder or a
substantially similar mental condition as existed at the time he
committed the act or acts which constituted the crime of which he
was found [not guilty by reason of insanity] Guilty
but Insane.
IV. The following provisions shall apply after the court renews
the order of committal pursuant to paragraph I of this section:
(a) If the court renews the order of committal but finds by clear
and convincing evidence that the person's release under certain
conditions, including, but not limited to, a prescribed regimen
of medical, psychiatric, or psychological care or treatment,
would no longer create a substantial risk of bodily injury to
himself or another person or serious damage to property of
another, the court may:
IV. The following provisions shall apply after the court renews
the order of committal pursuant to paragraph I of this section:
(a) If the court renews the order of committal but finds by clear
and convincing evidence that the person's release under certain
conditions, including, but not limited to, a prescribed regimen
of medical, psychiatric, or psychological care or treatment,
would no longer create a substantial risk of bodily injury to
himself or another person or serious damage to property of
another, and if the person has served 25% of their
sentence or 25% of the time to eligibility of parole in a State
Prison Facility and not including time served in the Secure
Psychiatric Unit the court may:
(1) Order that he be conditionally discharged under conditions
the court finds appropriate, including any prescribed regimen of
medical, psychiatric, or psychological care or treatment that has
been prepared for him, which has been certified to the court as
appropriate by the commissioner of the department of corrections
or his designee or by the director of another facility not within
the department of corrections in which he is committed, and which
has been found by the court to be appropriate; and
(2) Order, as an explicit condition of release, that he comply
with the conditions imposed by the court, including any
prescribed regimen of medical, psychiatric, or psychological care
or treatment.
(b) The court at any time may, after a hearing employing the same
criteria as a hearing pursuant to subparagraph (a), modify or
eliminate the conditions imposed, including any prescribed
regimen of medical, psychiatric, or psychological care or
treatment.
(c) The commissioner of the department of corrections or the
director of another program or facility not within the department
of corrections responsible for administering a condition or
regimen imposed on a person conditionally discharged under
subparagraph (a) shall notify the attorney general and the court
having jurisdiction over the person of any failure of the person
to comply with the condition or regimen, or of any other
circumstances which create a reasonable likelihood that it is
dangerous for the person to remain conditionally discharged. Upon
such notice, or upon other probable cause to believe that the
person has failed to comply with the condition or prescribed
regimen of medical, psychiatric, or psychological treatment, or
that other circumstances exist which create a reasonable
likelihood that it is dangerous for the person to remain
conditionally discharged, the person may be arrested, and, upon
arrest, shall be taken without unnecessary delay before the court
having jurisdiction over him. The court shall, after a hearing,
determine whether the person should be remanded to the secure
psychiatric unit or to another suitable facility on the basis
that in light of his failure to comply with the conditions
imposed by the court, including any prescribed regimen of
medical, psychiatric, or psychological care or treatment, or
because of other circumstances, his continued release would
create a substantial risk of bodily injury to himself or another
person or serious damage to property of another.
8) Effective Date. This act shall take effect upon passage.
LBAO
00-0000
04/2001
HB 00 - FISCAL NOTE
AN ACT abolishing the right of defendants to plead "Not
Guilty by Reason of Insanity" or "Innocent by Reason of
Insanity" and changing that plea to "Guilty, but
Insane" and eliminating their right to be released until
they are deemed competent to serve 25% of their sentence or 25%
of the time to eligibility of parole in a State Prison Facility,
not including time served in the Secure Psychiatric Unit.
FISCAL IMPACT: NONE
METHODOLOGY:
Amend Any RSA's dealing with the right of defendants to plead
"Not Guilty by Reason of Insanity" or "Innocent by
Reason of Insanity" and changing that plea to "Guilty,
but Insane" and changing the eligibility for parole to
Defendants that plead "Guilty, but Insane" to state
that if that person is said to have recovered from the mental
disability or disabilities that supported the "Guilty, but
Insane" plea must serve the remainder of their sentence in a
State Prison facility as required under their original sentence
until their eligibility for parole is reached. If said defendant
reached their eligibility for parole while still under care for
their mental disability, or has less than 25% of their original
time limit for eligibility for parole left, then that person must
serve a minimum of 25% of their original time limit for
eligibility for parole in a State Prison facility until they will
be eligible for parole.
This has been submitted to the NH
legislature under LSR #2037, relative to the plea of guilty but
insane. Next year it will go to Committe and Hopefully a vote. I
will have to go to Concord to support the bill and will need
statements and evidence supporting such change in the Law to
change the plea of Innocent by Reason of Insanity.
Please E-Mail me with your input and include your Name
and the Town and State where you live.
