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Staff photo by Don HImsel

Christopher Gribble appeared in Hillsborough County Superior Court in Nashua Monday, August 23 2010.
Wednesday, December 8, 2010

Insanity defense tough sell in NH courts, expert says

NASHUA – Convincing a jury that an insanity plea isn’t merely a last ditch effort to get off on a technicality is just one of the challenges admitted murderer Christopher Gribble and his attorneys will face during his trial next year.

Legal expert Albert “Buzz” Scherr said he doesn’t know of a New Hampshire case in the past 30 to 40 years in which a murder defendant successfully used an insanity defense, including one of his own clients from the early 1990s.

“The bad news is there’s a lot of myth around the insanity defense,” Scherr said.

The myth that Scherr referred to is misconceptions many people, including some that end up on juries, have about an insanity defense. He said many people mistakenly see the defense as an effort to escape responsibility on a technicality or believe that planning and premeditation proves that a person was sane.

What Gribble, 21, of Brookline will have to show is he had a mental disease or defect and that the Oct. 4, 2009, murder of Kimberly Cates and attack on her then-11-year-old daughter Jaimie Cates was a product of that defect, Scherr said.

Gribble admitted to the state’s version of the attack at a hearing Monday at Hillsborough County Superior Court and pleaded not guilty by reason of insanity to first-degree murder, attempted murder, conspiracy to murder and burglary, and witness tampering.

But the jury will have little further guidance about what exactly a mental disease or defect is, legally speaking.

“That’s what’s unique about the New Hampshire body of law. It’s completely up to the jury to decide what a mental disease is,” said Scherr, a professor at the University of New Hampshire Law School.

Many other legal standards apply in other states, and almost all those standards make it more complicated for the jury, Scherr said. Some ask the jury to determine if the mental defect created an irresistible impulse in the defendant or impaired his or her ability to determine right or wrong.

Scherr represented James Colbert in the early 1990s and tried to convince a jury that Colbert was insane when he asphyxiated his wife and three daughters on Oct. 20, 1991. Boston police later found Colbert on the Tobin Bridge threatening to jump to his own death. A jury declared that he was sane, and he was sentenced to life in prison.

Most people who kill and are sent to a psychiatric prison unit end up there because no one disagrees they are insane. The state attorney general’s office can stipulate that a murder was due to a mental disease and negotiate a plea, which happened to Nashua man, Michael Phillips, earlier this year.

Phillips was arrested in December 2008 after killing his grandfather, Franklin Phillips, with an ax and setting his house on fire. In January, Phillips pleaded not guilty by reason of insanity, which wasn’t contested by Senior Assistant Attorney General James Boffetti. Judge James Barry sentenced Phillips to a five-year term in the state prison’s Secure Psychiatric Unit after ruling that he was still dangerous.

Boffetti said the murder of Franklin Phillips was a failure of the state’s mental health system. Michael Phillips had a lengthy history of mental illness that stretched back to 1994 when he was just 6 years old.

“It certainly helps if the person has had mental health issues in their life already,” Scherr said.

Gribble told Judge Gillian Abramson on Monday that he had previously been diagnosed with anti-social personality disorder and took Prozac until 2007. He said he wasn’t taking any medication or receiving treatment in jail.

Following the hearing Monday, public defender Matthew Hill declined to say what mental disease or defect they claim Gribble has.

A more recent contested insanity defense case was that of Sheila LaBarre. The Exeter woman attempted an insanity defense but was declared sane and convicted of murdering two men and disposing of their bodies on her farm.

Boston lawyer Jeffrey Denner represented LaBarre and was quoted as saying she was the “poster child” for insanity. Like Gribble, LaBarre admitted to the murders and elected to have a single trial on the insanity issue.

“Sheila LaBarre was absolutely crazy,” Denner said. “She was so crazy that she wanted to be found guilty. She was thrilled.”

New Hampshire puts the burden on the defense to prove insanity, which mirrors federal laws, but is the opposite of many other states, Denner said.

Gribble’s attorneys, public defenders Hill and Donna Brown, will have to prove to a “clear and convincing” extent that Gribble had a mental defect that should excuse him from responsibility.

On the spectrum of burdens of proof, “clear and convincing” evidence is a stiffer burden than “preponderance” of the evidence and less than “beyond a reasonable doubt,” according to Gribble’s prosecutor, Senior Assistant Attorney General Jeff Strelzin.

“That can be a very daunting burden,” Denner said.

Denner said the reason it is so difficult to secure a not guilty by reason of insanity verdict is due to a fundamental part of the American justice system: ordinary people with ordinary fears make up the jury.

“It’s difficult to succeed anywhere because it’s very difficult for jurors to follow the law, in my opinion,” Denner said. “People are afraid. It’s a very emotional, visceral reaction.”

Scherr said the latitude given to a jury during an insanity trial could also benefit the defense because a jury has the right to deem anything a mental defect. The defense doesn’t even have to call any psychological experts to the stand, he said.

“It leaves a lot of discretion,” Scherr said. “It gives the jury complete authority to determine what is a mental disease or defect.”

Denner said the jury’s fear often stems from what would happen to a defendant they declared insane.

Abramson explained during Gribble’s plea hearing that if he’s deemed insane by the jury, she would then have to determine if he is dangerous. If he is considered dangerous, he would be sent to a psychiatric housing unit at a state prison for five years. A judge would re-examine whether he is dangerous every five years thereafter, Abramson said.

If she decided he was not dangerous, he would be released.

Denner said although they are not supposed to consider a defendant’s possible sentence, historically juries are reluctant to put the power to release an admitted murderer in the hands of a prison psychiatrist or judge.

“People are afraid, especially in high-profile cases, allowing them to come back to the streets someday based on what some doctors says four years later. Even though they’re not supposed to consider it, it’s like the 800-pound elephant and it’s difficult to take your eyes off it,” Denner said. “It is very frustrating, and it’s a huge problem, and it’s just a fact of legal life.”

Joseph G. Cote can be reached at 594-6415 or jcote@nashuatelegraph.com.