So far in 2015, the runaway most popular movie is the war biopic American Sniper. The movie is based upon the courageous life (and ultimately tragic death) of Navy SEAL Chris Kyle. Kyle had an astonishing 160+ confirmed kills in the Iraq war. The movie launched a pitched political debate between the right and the left regarding the propriety of the war and even the role of snipers in a war.

However, for me the far more interesting fact is that the movie’s release is occurring simultaneously with the actual criminal trial of Eddie Ray Routh, a Marine Corps veteran himself, who killed Kyle and another veteran, Chad Littlefield, at a Texas shooting range. In terms of guilt or innocence, there is not much suspense at all. Multiple witnesses can connect the defendant and the victims to the location where the murders occurred, and the defendant confessed to both law enforcement and a family member.

No, the real issue in the trial is Routh’s plea of not guilty by reason of insanity. He has been diagnosed with PTSD. Routh was also an Iraq War Veteran, but purportedly never saw combat. PTSD has long been recognized as a mental disorder, and in particular one connected with veterans. It traces its early diagnosis to the term “shell shock” and goes back all the way to the Civil War.

Kyle had dedicated himself after leaving the military to helping veterans. He even helped design the shooting range at a posh vacation preserve in Texas, where he was ultimately killed, as a way to allow veterans to help deal with their PTSD by shooting weapons. (It is debatable whether mental health experts would agree that is a good treatment method, but it is admirable that Kyle was trying to help veterans in need — something that I do as well — but Kyle paid the ultimate price by tragically losing his life.)

In modern trials, technology has changed everything. In addition to at least one mental health stay and the testimony of experts and reams of reports that are undoubtedly being discussed, so far the most haunting evidence were two texts between Kyle and Littlefield. Literally on the drive over to the range, Kyle texted Littlefield, “This dude is straight-up nuts.” Littlefield responded back. “He’s right behind me, watch my six.” (The latter term is military in nature and means “watch my back.”) Those texts are in evidence, and although Kyle obviously had no formal mental health training, his work with other veterans at least gave him insight that probably most people do not have. The prosecutor in the case is rebutting the NGI case, pointing out that Routh also used drugs and consumed alcohol that day. It will be interesting to see what the jury does with this case, but with at least a history of likely diagnosed mental illness and reports from experts, and those text messages, there are several critical issues for the jury to deal with.

However, what is important is that mental illness is not the same thing as criminal insanity. You can be mentally ill and commit a crime and still be legally responsible, because of the test for insanity is much different (and more restrictive) than a simple diagnosis of mental illness.

Although not yet as internationally famous as the Routh trial, Humboldt County recently learned that it too will be seeing a very high profile case having to sort out the issues of not guilty by reason of insanity, when Gary Lee Bullock, the accused killer of Father Eric Freed, changed his plea only a few scant weeks before his trial was set to begin. The immediate effect is that it postponed the trial indefinitely (likely a very long delay), as proper experts – up to three of them – have to be appointed, and their forensic process must work itself out. This will include reviewing the crime, interviewing the suspect, reviewing prior mental health records (if there are any), conducting mental health testing and finally preparing a report. Each expert will conduct their own independent evaluation. They do not sit in a room and discuss the details.

Although the standards for a successful NGI plea differ by state to state, most are verbatim or a modified version of what is called the M’Naghten Rule (a nearly 200-year-old rule from England). A recent article in the North Coast Journal actually did not state the right definition of California’s Insanity law. It stated “…the evidence shows the defendant both didn’t understand the “nature and quality of his act” and wasn’t able to distinguish between right and wrong…” However, pursuant to the actual CALCRIM, and other articles on the subject, the standard in California is not for both of those elements. It is actually an “either/or” proposition, not an “and” proposition. Former DA Paul Gallegos also made that same mistake in an article on Bullock in the Times-Standard.

If a defendant can show that he did not understand the nature of his criminal act or did not understand that it was wrong, as a result of a mental disease or defect, then by definition that defendant is legally insane. Also, the defendant has the burden of proof in an insanity trial, but in California it is the lowest civil burden, called “Preponderance of the Evidence,” or more likely than not. A jury must still be unanimous when it rules on this.

Now, NGI cases are extremely rare. One of the reasons is that a person found insane could ultimately spend her life in a hospital, even though the punishment for the actual crime is only a few years. Conversely a person cured has the ability to challenge his confinement, and some crimes allow for an automatic retrial on the sanity issue every few years. (That latter automatic trial would not be true for Bullock, who stands accused of murder.)

From a litigation posture there was something surprising about the way Bullock was handled. (I defended an NGI case about 12 years ago. More on that later.) Prior to entering a plea of not guilty, a public defense attorney can have the court appoint at taxpayer’s expense any necessary expert to assist him in his defense. This is authorized by Evidence Code Section 730. It is an incredibly valuable tool, because if the defense attorney never uses that expert at trial he is under no obligation to turn over those reports. If, early in the case, you decide to pursue an NGI plea, you get this expert appointed. When it comes time to enter the NGI plea, the defense attorney would ordinarily ask his particular expert to be appointed. (Particularly if they were of the opinion that the defendant was insane.) You already know his or her opinion, and thus there are no surprises.

A gag order is in place in the Bullock trial, so it has been very difficult to learn exactly what is going on, but local blogger John Chiv, who was very close with Father Freed, has attended most of the court hearings and regularly reports what happened on his site. From a recent court exchange, the following was transacted. “Judge Feeney said that he had received some names of experts from People and was waiting on Mr. Cockrum to submit names and resumes. Today, Mr. Cockrum was able to give one name and said he would have others in two weeks.”

Now, having practiced in Humboldt County courts since 2006 I know that there is a small stable of experienced psychiatric and psychological experts that are routinely used. There is no requirement that a local expert must be used, but I found it interesting that the defense was still waiting to submit additional names to suggest to the court pursuant to this report. The process described above – the one with the secret appointed expert – does not have to be used, but it is prudent and it speeds up the process. There is at least an inference that was not done. Also, although you can plead NGI at any time prior to a trial, a very late plea right up against the setting of the trial guarantees delays. The community is still mourning the loss of Father Freed (I had met him on two occasions myself) and his family obviously wants speedy justice for closure purposes. Bullock of course wants everything done to avoid spending his life in prison, and the rights of the defendants of course trump those of society in general.

Now, several questions hang in the balance on the Bullock case. Did he ever have institutionalization at mental health facilities? Was he even seen on an outpatient basis? Those records are of course extremely confidential, but are obtainable by either a prosecutor or a defense attorney through the subpoena process. What exactly was the nature of the admission at St. Joseph’s Hospital the day before the murder after his arrest? Humboldt County, for its size, is extremely rare in that it has its own acute care mental health hospital called Sempervirens (It is in that big yellow building at Harris and H in Eureka).

California allows anyone to be taken to a designated county facility for up to 72 hours if they pose a threat to themselves or others or are gravely disabled. In Humboldt County, Sempervirens is the designated facility, not St. Joseph’s. Those facilities have different roles. One treats physical illnesses and the other mental illnesses. Furthermore, the St. Joseph emergency room would have to call for a psychiatrist, where Sempervirens has one or more assigned to the facility. (This according to a local doctor I reached out to for this article.) There is an indication that previously Bullock spent some time at Singing Trees, a Drug/Alcohol treatment facility in southern Humboldt. It’s like that Promises place on TV, but it is not in Malibu, and generally does not cost $100,000. Drug abuse apparently was a problem with Bullock, as he was once arrested for cocaine possession, but the DA’s office dropped the charge. Reports from neighbors on the day of his arrest reported bizarre behavior. Recently, the Times-Standard correctly pointed out that on the fateful New Year’s Eve day, Bullock was arrested for “drug intoxication,” not just drunk in public. Polysubstance abuse is a recognized mental disorder, but in California it alone cannot form the basis of a successful NGI plea.

As I mentioned earlier, I tried an NGI case in Amador County in 2003. There was a diagnosis of methamphetamine Psychosis. (That is not the same thing as polysubstance abuse). I inherited the case from another lawyer in my office, and he had gotten Dr. Martin Blinder appointed. Blinder was one of the most famous psychiatric experts in the country. He had testified for Supervisor Dan White in the killing of Mayor George Moscone and Supervisor Harvey Milk. The White case involved a slightly different defense called diminished capacity, but in the common lore was dubbed the Twinkie defense, even though the words Twinkie were never uttered in the trial, just minor references to addiction to junk food that explained various disorders. I talk about that case because its decision, and John Hinckley’s successful NGI defense of his assassination attempt on President Reagan, is largely what has sullied psychiatric defenses from criminal behavior. Sometimes defendants even abandon NGI defenses even if they have merit, as John Lennon’s killer, Mark David Chapman did, when he plead guilty to that murder.

There is no question this will be a very tough case for the defense, and Andrew Isaac and Stacey Eads, who are prosecuting the case, are top-notch prosecutors. The last attempt at NGI in Humboldt County was Thomas Applegate, in 2007. It was rejected by the jury. The more modern trend is that the higher the case’s profile, the harder it is to win. In Humboldt County, no case pending in our courts has a bigger profile than Bullock.