Court battles over a defendant's sanity can be costly

During her closing argument in the Christopher Shumey insanity trial last month, Deputy District Attorney Karen Gray told jurors her star witness was worth the $450 an hour her office paid him.

“Yes, his fees are high,” she told the jurors. But, she added, forensic psychologist Kris Mohandie — a veteran of many high-profile cases — stands out. “His opinions are sought all over the country because of his extensive experience with mental illness and violence.”

Shumey had been convicted of shooting his mother to death, and Mohandie’s testimony was critical to the prosecution’s goal of sending the defendant to prison, and not to a state mental hospital for treatment.

To combat Mohandie’s high-profile background, the defense had hired its own psychiatric witnesses. And, just like the previous three insanity cases over the past year, a costly battle of psychiatric experts was waged.

“I think if the District Attorney’s Office feels we have a real shot at a finding of not guilty by reason of insanity, they feel they have to go after the big guns,” said public defender Jim Maguire. “And then we have to respond to them.”

While insanity defenses are rare, insanity trials are even less common. Most defendants who initially seek out an insanity defense wind up agreeing to plea bargains before jurors are ever selected.

Before 2012, there hadn’t been an insanity murder trial in San Luis Obispo County in more than 15 years. But in the past year, there have been four.

“I know in Bakersfield, we just don’t have these big trials for NGI (not guilty by reason of insanity),” said Thomas Middleton, a Bakersfield psychologist who has testified as a defense expert in the past two local insanity trials. 

“I can’t really explain that. I was kind of wondering if that was a common occurrence over there.”

Maguire said the spike might be attributed to more mentally ill patients with inadequate treatment. Still, when a defendant with mental illness is charged with a crime, the decision to pursue an insanity defense is a difficult one.

After John Hinckley was declared not guilty by reason of insanity for his 1981 assassination attempt on President Ronald Reagan, reforms made it more difficult to pursue the defense.

“I think since Hinckley and the Reagan assassination attempt, there’s been a lot of outrage over people getting off on NGI,” Middleton said.

Defining sanity

Once an insanity defense is pursued, the problem then becomes: How can you tell who’s truly insane? Hearing voices doesn’t necessarily equate to insanity.

To be legally insane, a mental illness has to be so bad, the person could not know what he or she was doing or understand the nature and consequences of the act.

In the Shumey case, the defendant had a long history of mental illness before he killed his mother. But he also made statements afterward that suggested he knew what he’d done and that it was wrong.

“It’s clear he has a mental illness,” said Jerret Gran, chief deputy district attorney. “But I think it’s easy to try to not take responsibility for your actions and say, ‘I was insane at the time.’ The problem is, it’s a high standard, and it should be a high standard. Just because you have a mental illness, that doesn’t excuse you.”

That distinction isn’t easy for jurors to figure out on their own. 

“Typically, a case is not really what it appears at first blush,” said Atascadero psychologist Carolyn Murphy, who testified in the trials of Shumey and John Woody. “Most of the time, a jury is going to want to hear from a doctor.”

Before insanity trials begin, the court hires two or three experts. Then, the prosecution and defense can hire additional experts.

Psychiatric experts perform a variety of duties during insanity cases. They review police records, transcripts and videos. They interview the defendants, research their mental health history, administer tests and review contrasting conclusions. Then at trial, they have to testify to all of it.

Before his trial testimony, Mohandie — who could not be reached for this story — had charged more than $17,000 for his analysis in the Shumey case. Before his trial testimony in the Woody case, he’d charged in excess of $20,000.

Woody, who stabbed a stranger to death at a Paso Robles Laundromat, was declared legally sane.

In 2012, the Public Defender’s Office billed the county for roughly $35,000 for all psychiatric experts, which included work for criminal proceedings and hearings for mentally ill patients at Atascadero State Hospital.

Financial figures on how much the prosecution has spent were not available Friday. 

Cost of representation

Expert psychiatric testimony isn’t limited to insanity murder trials. Locally, experts are hired in competency hearings and commitment hearings to determine whether offenders at Atascadero State Hospital are ready for release.

But the insanity trials are clearly the most expensive — particularly for the prosecution.

“The money has always been on the side of the prosecution,” Maguire said. “They have more lawyers, they have more investigators, they have more resources. They always have.”

When seeking psychiatric experts, the public defender must submit requests to the judge, who then refers them to the County Administrator’s Office.  

“I think it does have a chilling effect on who we hire and where we go to get them,” said attorney Ken Cirisan, who represented Woody for the Public Defender’s Office.

The budget at the District Attorney’s Office provides for expert witness funding. And while deputies have to submit their requests in writing, the office doesn’t put a lot of restrictions on them.

“I don’t think the deputies worry about it, and we don’t want them to worry about it,” Gran said.

Some will see the money spent on insanity trials as an unnecessary taxpayer burden. One online commenter noted in reference to a Tribune story about Woody’s case: “Waste of our tax money; put him down now.”

But our legal system allows defendants a right to a trial — and a right to pursue an insanity defense. 

“Heaven help me, if I ever get in trouble, I want the best defense possible,” Murphy said.

Sanity restored?

Clearly, the stakes are high. 

On the one hand, it wouldn’t be fair to punish a mentally ill person who couldn’t control his actions with a life prison term, particularly when a mental hospital can make a difference.

“There are people that respond to medication,” Maguire said.

Middleton argues that insanity verdicts are actually more cost-effective than life prison terms.

“If they can be sent to a state hospital and released to the community at some point — when they’re no longer considered an immediate threat — and put in a conditional release program under supervision receiving treatment, that’s much less expensive in the long run,” he said.

But it’s that potential for release that’s also frightening.

After he butchered his parents in 1989, San Luis Obispo resident Wade McClave was back in the community in nine years.

“His brother was living in fear that he would come after him,” Gray, the deputy district attorney, said. 

While McClave seemed to be responding well to treatment, in 2004, he crashed his van into a building near the San 

Francisco-Oakland Bay Bridge toll plaza, killing himself and a passenger. Law enforcement couldn’t determine whether McClave’s mental illness contributed to the crash. 

But that’s the problem — even if the once-insane killer seems to be doing well, there’s always uncertainty, which is what concerned Gray about the prospect of a Shumey insanity verdict.

“The problem is, you can’t make him take his medications when he gets out.”

With public safety in mind, the District Attorney’s Office believes Mohandie’s high fee — nearly twice what the typical defense expert gets — doesn’t outweigh its goal of putting killers in prison. 

The office found out about Mohandie when one of its employees heard him speak at a seminar.

The Southern California resident has previously testified in the case of Marcus Wesson, convicted of killing nine of his children in Fresno.

Mohandie was called to the scene after O.J. Simpson’s famous police chase, and he counseled police in the notorious Hollywood bank robbery shootout. Having sat face-to-face with mass murderers, serial killers and notorious stalkers, he’s frequently called upon to comment on TV shows. 

When Mohandie testifies in court — usually for the prosecution — he offers several anecdotes of past cases, occasionally referring to his heavily bookmarked “Diagnostic and Statistical Manual of Mental Disorders.” He’s plain-spoken, and he’s poised under self-examination. 

“He dazzles with his footwork,” Cirisan said. “You have to have somebody to combat that.”

Mohandie has testified in all four local insanity trials the past year — three times for the prosecution and once for the defense. In each case, the verdict matched his conclusion.

“He’s not cheap, but I think when you add up all of those tangible-slash-intangibles, he’s the best guy,” Gran said.