Podcast Episode 007 is a journey into the difference between insanity defense and GBMI finding. I discuss the recent case of People v. Wood. 

http://illinoiscaselaw.com/difference-bet…d-gbmi-finding/ ‎

There is a clear and distinct difference between insanity defense and GBMI finding.

This case features the defendant who has to be in the lead for this years “Least Helpful to His Defense” award.

This defendant:

First of all, the insanity defense is a complete affirmative defense. Like all other affirmative defenses it acts as a complete acquittal if it can be won.

The defense (or prosecution) has to present some evidence of insanity.

The Illinois Compiled Statutes Criminal Code states that:

“A person is insane and not criminally responsible for his conduct if he lacks substantial capacity to appreciate the criminality of that conduct due to a mental disease or defect.”

720 ILCS 5/6-2(a).

The guilty but mentally ill (GBMI) finding, on the other hand is no defense at all. A defendant found guilty but mentally ill is going to prison. That is why they use the word “guilty.”

What a person achieves by “winning” the GBMI finding is assured mental treatment while in prison. Maybe, not much but you take what you can get. This may be very valuable and beneficial to a guilty person and society.

The Criminal Code says that:

"... mental illness is not an affirmative defense, but an alternative plea or finding that may be accepted, under appropriate evidence, when the affirmative defense of insanity is raised or the plea of guilty but mentally ill is made.”

720 ILCS 5/6-4.

The law provides only two avenues to a finding of GBMI. (1) A defendant can plead it. If for some reason a defendant chooses to not plead guilty, and (2) proceeds to trial, a court may make a finding of GBMI if the insanity defense is lost.

This, of course, presumes that a defendant initially raises the insanity defense at trial.

If the insanity defense is not raised at trial, by pleading, then a defendant may not be awarded the GBMI finding even though there is evidence presented of mental illness.

This was the problem described in this case.

The defendant had a long history of paranoid schizophrenia. His elderly mother had an active order of protection out against him. Defendant testified that he bound his mother with an extension cord because he was worried she would call the police on him.

When he thought she was making too much noise, he gagged her! Within minutes after she was gagged she died, in part, because her tongue was forced to the back of her throat blocking her airway. She also had severe injuries to her head that contributed to her death.

Defendant testified, against advice from counsel, because he wanted to tell him that he had no idea a person could die from “just being tied up.” His entire life, Defendant had never heard of anyone dying from being tied up. He testified he did not kill his mother and that all he had done was unlawfully restrain her.

There went the “holding the state to their burden” defense.

The defense attorney did not plead the insanity defense because there were not any facts there that would have supported the pleading. The only psychological evaluation that defendant agreed to undergo flat out said he was sane at the time of the murder.

The only motivation explaining his conduct was that he did not want his mother to call the police. His paranoid schizophrenia did not contribute to his behavior. Did I mention that he he also refused to undergo any other evaluations?

All defense counsel could do is argue for a GBMI finding that the law did not support. Remember, there are only two ways to a GBMI finding. Defendant has to plead it. Or the judge awards it after a trial where insanity defense is plead.

Defendant certainly, was not going to plead in this case. In his mind, the law applied to the facts on the ground was irrelevant. In his grossly mistaken mind he only committed manslaughter because he had never heard of anyone dying from being tied up. Apparently, schizophrenic Defendants can be just like other non-ill defendants who are unwilling to see the real mess they are in.

Then, counsel could not in good faith make a pleading of the affirmative defense of insanity. So nothing was left. GBMI was not on the table because insanity was never plead.

What was wrong here is that everyone involved knew that this defendant was GBMI. But he did not get the finding.

The defense attorney was in a tough spot because he had no good options. He could have plead the insanity defense knowing he had no good faith basis with which to do so, only for the chance to ask for the GBMI finding. Or he could have asked for the GBMI finding at the end of a trial where he did not make a claim for the insanity defense, knowing that the law would not allow a judge to give it to him.

Throw, in the fact the we have a client who is untethered from reality in that he is demanding that his attorney make an insanity defense and/ or ask for a manslaughter instruction when the law supported neither. He testified at trial and completely undermined the main defense of the state not being able to prove their case beyond a reasonable doubt.

Now you see why I say he may very well the “Least Helpful to His Defense” award for 2014?