A Tall Order for Insanity Defense Experts Make Case for Revamping System

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Byline: Tony Gordon Daily Herald Legal Affairs Writer

No one denies something unconscionable happened on a jogging trail near Libertyville last June 6.

Instead, the debate in the days ahead focuses on whether Christopher Hanson's conscience was functioning at the time.

Hanson, 30, is charged with attempted murder, aggravated criminal sexual assault and aggravated kidnapping for repeatedly raping and stabbing a 19-year-old Wildwood woman.

He has pleaded not guilty by reason of insanity, a little used, often criticized and largely unsuccessful defense.

Studies show insanity defenses are used in 1 percent of cases nationwide, but are successful only 5 percent of the time. The most recent high-profile example is Marilyn Lemak, the infamous Naperville mother who killed her three children in 1999, lost an insanity defense and is serving a life sentence.

The insanity defense shifts the burden of proof from the prosecution to the defense, and Hanson's attorneys will have to convince a jury he fits a very narrow classification of the law.

That legal definition reads: "A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity to appreciate the criminality of his conduct."

The details of this case and Hanson's violent history - attacks on women dating back to 1993 - are certainly chilling.

Police say Hanson grabbed the woman from behind, forced her to disrobe at knifepoint and then raped her repeatedly before stabbing her three times in the neck.

The woman was dragged off the trail and covered with fallen branches. She held her breath and pretended to be dead until her assailant fled, then she ran away to call police.

Defense attorney Mark Curran is expected to present testimony from a psychologist that Hanson suffers from bi-polar disease and was legally insane at the time of the 2005 attack.

However, while doctors are capable of identifying mental diseases and mental defects with accepted reliability, it's a tall order to convince a judge or jury that a person lacked the ability to understand what he was doing was wrong.

Too tall, said DePaul University law professor Leonard Cavise.

"Judges, lawyers and juries have no business making medical decisions, and that definition forces them to do just that," Cavise said. "One of the first reforms I would make of the insanity defense is involve the medical community in the process of defining what insanity really is."

Cavise said he believes a person can understand that doing something is wrong but at the same time be unable to stop himself from doing it - the so-called "irresistible impulse" clause included in some states' definition of insanity and made famous in the 1959 movie "Anatomy of a Murder."

But not even the medical community seems to agree on the impulse clause.

The American Psychiatric Association described the dilemma in a 1982 position paper.

"The line between an irresistible impulse and an impulse not resisted is probably no sharper than that between twilight and dusk," the paper states. "Psychiatry is a deterministic discipline that views all human behavior as, to a large extent, caused."

Another criticism of the insanity defense comes from the fact jurors are not told what happens to a person found not guilty by reason of insanity. That's in keeping with the general practice of trying to keep jurors focused on issues of guilt or innocence, not consequences.

Robert Hauser is a Waukegan defense attorney who presented an insanity defense in the 1995 murder case of James Lantz, who was accused of stabbing his wife 68 times before setting their Libertyville Township house on fire.

Hauser said he believes many jurors, because they are not told a person found not guilty by reason of insanity is held in a secure mental treatment hospital until judged sane, think such a finding leads to the immediate release of the suspect. …