Not Guilty by Reason of Insanity: A Study in Perseverance

Kirk McAllister believes that the criminal law is at its worst when dealing with true mental illness. This case underscores that belief, and illustrates the determination with which a lawyer should approach such cases. The chronology of significant events is important for an understanding of this case.

The client is a 37-year-old man who was trained as a first responder. When he was approximately 30 years old he began suffering from mental issues. These were fully controlled when he was on his medications. He was out of custody while the case has been pending, fulfilling his usual role of being a stay-at-home father for his two young children, while his wife was working.

On November 23, 2013 the client was arrested in Tuolumne County for a serious felony, a strike under California’s Three Strikes Law. Mr. McAllister promptly had the client evaluated by a psychologist.

A preliminary examination was held September 17, 2014.

On December 8, 2014 the client entered a plea of not guilty by reason of insanity. The client was at a market in Merced County on December 21, 2014. He saw a woman being attacked outside in the parking lot. He ran to her to give her aid. Seeing that she was not injured, he then gave foot chase to the man who had robbed her. He didn’t catch him or his accomplice after they escaped in a car, but he was able to give detailed descriptions of the robbers and their vehicle to the police. The robbers were promptly arrested by the police. Inside the car were the woman’s purse and its contents. Thus he became the prosecution’s star witness in the Merced robbery case.

Mr. McAllister advised the client to proceed to trial by a judge, waiving the right to a jury. The defense relied on the psychological evaluation that had been conducted close in time to the event. The judge found the client not guilty by reason of insanity.

The next question for any judge in this circumstance is what to do with the defendant. For guidance in this decision in California, the courts refer the issue to the Conditional Release Program, commonly called CONREP. This agency is directed to make a recommendation to the judge. Historically, this recommendation has virtually always been to commit the accused to the state mental hospital for no less than 6 months.

Mr. McAllister provided CONREP with voluminous documentation regarding the client, including the police reports of the Merced robbery. What more conclusive proof could you have that the client was restored to sanity? Mr. McAllister also requested that CONREP conduct an interview of the client. CONREP refused to interview the client! Despite the overwhelming evidence of the client’s current sanity, on June 24, 2015 CONREP recommended that the client be committed to Napa State Hospital. The prosecution joined in this recommendation.

However, there was a problem with CONREP’s recommendation. Mr. McAllister pointed out to the judge that the section of the Penal Code on which CONREP relied for its decision had been changed the previous year (in California, any legislation passed in a calendar year becomes effective on January 1 of the following year unless it is designated emergency legislation). The previous law had mandated that persons found not guilty by reason of insanity in serious felonies such as this one would be committed to the state mental hospital. On January 1, 2015 the law changed to allow the court to grant outpatient treatment if that was more appropriate for that individual, if this would not pose a danger to the health and safety of others. On August 24, 2015 Kirk McAllister filed a motion urging the Court to grant outpatient treatment to the client, since CONREP had relied on an outdated law and because the client was restored to sanity.

CONREP graciously changed its position and agreed to interview the client. The interview was conducted in Mr. McAllister’s office on January 15, 2016.

On January 29, 2016 CONREP submitted a new recommendation, advising the Judge to grant outpatient treatment.

On February 8, the Court ruled that the client would be granted outpatient treatment, meaning that he would be able to be home with his wife and small children while he received CONREP’s services.

Several lessons can be taken from this case. First, the lawyer must keep up with the ever-changing laws that may impact a client. Also, it is the lawyer’s duty to educate – respectfully, always respectfully — the judge and any other agency which may influence the judge’s decision in the case.

Finally, never take no for an answer.