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  • photo by Don Himsel

    Christopher Gribble sits in the courtroom Monday, Feb 28, 2011 in Hillsborough County Superior Court as jury selection begins in his homicide trial.
  • Staff photo by Don Himsel

    Spader prosecution Peter Hinckley
  • Staff photo by Don Himsel

    Spader prosecution Lucy Carrillo
  • Staff photo by Don Himsel

    Spader prosecution- Jeff Strelzin
  • photo by Don Himsel

    Christopher Gribble sits with his attorneys in the courtroom Monday, Feb 28, 2011 in Hillsborough County Superior Court as jury selection begins in his homicide trial.
Sunday, March 6, 2011

Tough road for insanity defense in NH

New Hampshire’s unique laws could make Christopher Gribble’s claim that he was insane when he slit Kimberly Cates’ throat in 2009 more difficult to prove once his trial begins.

New Hampshire is the only state to use the Durham Product Test, in which the defense must prove that the defendant committed a crime as a result of a mental disease or defect and the jury must decide on their own what constitutes mental illness.

“The jury is not told what a mental disease or defect is, and that’s sort of where it becomes interesting,” said Charles Temple, director of the Criminal Practice Clinic at the University of New Hampshire School of Law. “The jury is the fact finder on whether the defense will fly or not.”

One of Temple’s colleagues, UNH School of Law professor Albert “Buzz” Scherr, called it the “most unusual feature” of New Hampshire’s insanity defense.

“It empowers the jury to do what they want,” he said. “Other states are more bound in by a legal definition of mental disease or defect.”

The defense isn’t very sucessful, either, as legal experts couldn’t recall a case in the last 30 or so years when a murder trial resulted in acquittal because of insanity.

Gribble, 21, of Brookline, has admitted his role in the attack on Cates and her then-11-year-old daughter, Jaimie, on Oct. 4, 2009, but is pleading innocent by reason of insanity to several charges, including first-degree murder, attempted murder, conspiracy to murder and burglary, and witness tampering.

He faces life in prison without parole if he’s convicted of Cates’ murder and found to have been sane.

If the jury declares Gribble not guilty by reason of insanity, he would be committed to the secure psychiatric unit of the State Prison, where he would undergo review hearings every five years. He wouldn’t be released until a judge declares him to no longer be dangerous.

All other states use either the M’Naghten Rules or the American Law Institute’s Model Penal Code – the two more broad and widely accepted standards for the insanity defense – except Idaho, Kansas, Montana and Utah, where an insanity defense has been abolished.

In other states, juries are given a description of what constitutes insanity, and they must decide whether the defendant knew the difference between right and wrong at the time of the crime. The other tests can also require a medical diagnosis.

The jury in this case will have to decide as a group, without strict definitions, whether Gribble was insane at the time of the Mont Vernon attack.

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

Gribble’s attorneys, Matthew Hill and Donna Brown, haven’t specified what mental disease or defect they plan to present in their arguments.

Whatever they decide, Hill and Brown will have to prove to a “clear and convincing” extent that Gribble had a mental defect that should excuse him from responsibility.

During her instructions to jury members on Monday, Abramson said the “clear and convincing” evidence is the most difficult burden of proof, harder than proving both the “preponderance” of the evidence and guilt “beyond a reasonable doubt.”

Temple said that in most New Hampshire insanity trial cases, both sides present testimony from mental health professionals that offer insight on the defendant and his or her mental state at the time of the crime.

“It’s a battle of the experts,” he said. “You also have fact witnesses speaking to how the defendant was acting around the time of the crime.”

Temple added that in his more than 25 years in criminal law, he hasn’t heard of any insanity trials ending in an acquittal for the defendant in New Hampshire.

“I’m not aware of any homicide case where the insanity defense has been successful,” Temple said.

Scherr went back further and said he doesn’t know of a New Hampshire case in the last 30 to 40 years in which a murder defendant successfully used an insanity defense.

Part of the reason it can be so difficult to prove insanity through a trial is because the public perceives the insanity defense as something of a free pass to avoid jail time, Scherr said, something he said is false.

“The fundamental myth that people assert the insanity defense to get off on a technicality … it’s just not true,” he said. “You don’t actually get off on a technicality.”

Scherr, who was involved in several homicide cases as a public defender in the 1980s and 1990s, said the myth still contributes to the insanity defense’s lack of success, however.

He referred to the case of John Hinckley, who shot President Ronald Reagan, a Secret Service agent, a Washington police officer and Reagan’s press secretary, James Brady, in 1981 but was later acquitted of 13 assault, murder and weapons charges by reason of insanity.

People called it a loophole in the system, and 30 states changed their laws to make it more difficult for defendants to succeed with an insanity defense plea. But Scherr said the “loophole” is an exaggerated and false notion.

Hinckley “has been committed to the psychiatric hospital in Washington, D.C., for the last 25 years,” Scherr said. “It’s not like he’s walking the streets a free man.”

Temple also said the fact that Gribble has admitted his guilt could hurt his defense, despite the lengthy process to find an objective, fair jury of his peers, simply because the details of the Mont Vernon attack are so brutal.

“We’re all human,” Temple said. “That has an impact on a human being, to hear the defendant’s involvement in this horrific crime and then to have to evaluate his mental condition at the time and determine whether or not that mental disease or defect, if it’s proven, resulted in the crime.

“It has to be very difficult to evaluate the insanity defense amidst those very troubling facts. It makes for a difficult task for any juror.”

Scherr said there are cases in which a person commits murder and is found to be insane, but they often don’t make it to trial. The attorney general and the defense lawyers agree that the man or woman is insane and the judge declares a sentence.

That situation was true for Nashua man Michael Phillips, who was sentenced to a five-year term in the state prison’s Secure Psychiatric Unit in 2010 after Judge James Barry ruled he was still dangerous. Phillips killed his grandfather, Franklin Phillips, with an ax and set his house on fire in December 2008.

There was no trial for Michael Phillips because Senior Assistant Attorney General James Boffetti agreed he was insane. Boffetti said the murder was a failure of the state’s mental health system because Michael Phillips had a history of mental illness stretching back to 1994, when he was 6 years old.

Most cases of men and women pleading not guilty by reason of insanity that went to trial in New Hampshire have led to convictions.

Sheila LaBarre, of Exeter, attempted an insanity defense in 2008, but was declared sane and convicted of murdering two men and disposing of their bodies on her farm.

Robert Tulloch also tried pleading the insanity defense for his role in the Dartmouth murders in Etna in 2001, but he, too, was convicted.

Gary Place was convicted of first-degree murder in 1984 after strangling and stabbing his wife in Concord, despite pleading not guilty by reason of insanity.

The same was true for Robert McLaughlin, who was convicted of first-degree murder in 1990 for killing his neighbor in Exeter and found to be sane.

Gribble’s trial will begin once jury selection is complete. The process began on Monday, Feb. 28, and 10 jurors were seated by the end of court proceedings Friday.

Once 16 jurors have been selected, the trial will start, and it’s expected to last two weeks.

Cameron Kittle can be reached at 594-6523 or