BURNT BRIDGES AND THE INSANITY DEFENSE IN THE SCOTSI

Before May 18, 2020 the most recent insanity defense case in the Supreme Court of the State of Indiana (SCOTSI) was Barcroft v. State, 111 N.E.3d 997 (Ind. 2018). See the “Murder in Church” Featured Article posted December 11, 2018 in the Calumet Law Blog. Lori Barcroft was seen here as both evil and mentally ill but not “legally insane.” She was tried to the bench and found guilty but mentally ill (GBMI) of the murder of a pastor at a church building. The experts were unanimous in declaring her “legally insane.”¹  Lori had a grudge against her victim, and she planned the crime and her unsuccessful escape. A SCOTSI majority of three affirmed the trial court’s rejection of the unanimous (but allegedly flawed) expert opinions. One theme of the Majority Opinion (by Massa, J.) was the deference owed to the trier of fact.

The current case is Payne v. State decided May 18, 2020 in the SCOTSI again by a 3/2 majority but this time reversing the (jury) verdict below of GBMI. West central Indiana is known for rustic covered bridges. Jesse Payne became known for burning rustic covered bridges. After confessing to the burning of two of these beloved structures and the attempted destruction of another, Jesse Payne spent eleven years in “competency restoration” in order to stand trial. In contrast with Lori Barcroft, Jesse had spent “most of his life” under psychiatric care. As in Barcroft the experts were unanimous in the opinion that Jesse Payne was legally insane. The majority of three was swayed somewhat by the weight of Jesse’s treatment history and found evidence of his “demeanor” (or actions before, during, and after an offense) to be insufficient to rebut the unanimous expert opinion.²

The Payne dissent accused the majority of deviating from the Barcroft principle of deferring to the trier of fact and pointed to demeanor evidence of record similar to that found sufficient in Barcroft to rebut unanimous expert opinion.

Here are some CLB observations drawn from Barcroft and Payne. Trial court judges (as in Barcroft) and juries (as in Payne) are not fans of the insanity defense. Psychiatrists and psychologists (the “experts”) are fans of the insanity defense whose opinions may not be constrained by the laws distinguishing legal insanity from commonplace insanity. As for Justices of the SCOTSI see the chart below for how they cast their votes in Barcroft and Payne.

		The SCOTSI Votes
	Rush, CJ	David	Massa	Goff	Slaughter
Barcroft:	Sane	Sane	Sane	Insane	Insane
Payne:	Insane	Insane	Sane	Insane	Sane

The only two justices voting alike (and with the majority) in each of the two cases are CJ Rush and Justice David. These two deferred to the trier of fact in Barcroft but not in Payne. Justice Massa deferred to the trier of fact in both cases such that he was with the majority in Barcroft while dissenting in Payne. Justice Goff went with the “expert” opinion evidence in each case, such that he was a dissenter in Barcroft but with the majority in Payne. Justice Slaughter was in the minority in each case. In Barcroft Justice Slaughter concurred with the Goff dissent asserting the insufficiency of demeanor evidence to overcome the unanimous expert opinion of insanity. Then in Payne Justice Slaughter joined the Massa dissent urging deference to the trier of fact. It seems that Justice Slaughter adopted in Payne the rule of deference imposed by the Barcroft majority before two from that majority cast away their deference (in his view?) in Payne.

What it all means, if anything, is that the insanity defense poses challenges in the trial court and on appeal. Moreover, the next insanity defense vote in the SCOTSI will likely defy reliable prediction. Imagine that you are a judge on the Court of Appeals seeking in earnest to follow the binding precedent of the SCOTSI on the insanity defense.

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¹ See the insanity defense statute at IC 35-41-3-6(a). To be excused from criminal liability the “insanity” or mental defect must prevent a person from discerning the difference between right and wrong.

² Though his criminal conviction is reversed, Mr. Payne should not go free. On remand the trial court is instructed to hold a hearing on the State’s petition for an involuntary commitment.