Yesterday, a Manhattan jury found Richard Rojas, 31, “not responsible by reason of mental disease or defect” in the killing of an 18-year-old tourist in the rampage that also left 22 others injured in Times Square on May 18, 2017. Rojas plowed into the victims with his car, but his counsel successfully argued that he was “actively psychotic” during the crime. Notably, Nicholas Roske, 26, has pleaded not guilty in the alleged attempted murder of Justice Brett Kavanaugh, a move that may foreshadow an insanity defense.
The most serious charge of second-degree murder required the prosecution to show that Rojas “evinced a depraved indifference to human life.” However, the defense argued that this was not indifference but insanity.
It is fairly rare to win a case on the grounds of an insanity defense. Four states—Kansas, Utah, Idaho, and Montana—have eliminated the defense entirely and only an estimated one percent of all felony cases involve an insanity plea. Roughly a quarter are successful.
However, the jury was only out for six hours before returning the verdict. That may be due to the fact that even prosecutor Alfred Peterson conceded that Rojas was having a psychotic episode at the time, including hearing voices.
The defense introduced testimony that Rojas was hearing supernatural voices or what psychiatrists call “command or auditory hallucinations.” These voices allegedly told Rojas he was navigating an interdimensional “portal” filled with spirits who could be freed from a purgatorial “limbo” if he crashed into them.
He will now be subjected by Judge Daniel Conviser to an examination order with state hospital operated by the Office of Mental Health.
The prosecutors tried to accept that he was having a psychotic episode but still remained in control of the vehicle. In other words, he had sufficient control to hold him accountable for his action. The jury clearly disagreed.
If Roske makes such a defense, he will be subject to the federal standard for the affirmative defense, requiring a showing that “at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” Under the federal standard, “mental disease or defect does not otherwise constitute a defense.”
“A person lacks criminal responsibility by reason of mental disease or defect when, at the time of the prohibited conduct, as a result of mental disease or defect, that person lacked substantial capacity to know or appreciate either:
- The nature and consequences of such conduct; or
- That such conduct was wrong.
Let us examine that definition.
First, the lack of substantial capacity to know or appreciate must have existed at the time the prohibited conduct was committed.
Second, the lack of substantial capacity to know or appreciate must have been the result of mental disease or defect.
Third, a lack of substantial capacity to know or appreciate does not require a lack of total capacity to know or appreciate.
Fourth, the term “know or appreciate” means to have some understanding; it means more than mere surface knowledge.
For example, children can sometimes recite things that they cannot understand. In those circumstances, the children may be said to have surface knowledge of what they recited, but no true understanding. Thus, a lack of substantial capacity to know or appreciate either the nature and consequences of the prohibited conduct, or that such conduct was wrong, means a lack of substantial capacity to have some true understanding beyond surface knowledge of either the nature and consequences of such conduct, or that such conduct was wrong.
Fifth, with respect to the term “wrong,” a person lacks substantial capacity to know or appreciate that conduct is wrong if that person, as a result of mental disease or defect, lacked substantial capacity to know or appreciate either that the conduct was against the law or that it was against commonly held moral principles, or both.
As I have explained, the defendant has the burden of proving that he/she lacked criminal responsibility by reason of mental disease or defect and he/she must do so by a preponderance of the evidence. I remind you, however, that placing this burden of proof of the affirmative defense on the defendant does not relieve the People of the burden of proving, beyond a reasonable doubt, all the elements of the crime(s) charged.
In this case, one of those elements was (specify element containing culpable mental state; e.g. That the defendant intended to cause the death of ….). The affirmative defense does not transfer to the defendant the burden of proving (specify, e.g. That the defendant did not intend to cause the death of…. ”) The burden remains on the People to prove (specify, e.g., That the defendant intended to cause the death of…) and to prove it beyond a reasonable doubt.
In determining whether the People have proven that element beyond a reasonable doubt, you may consider any evidence, psychiatric or otherwise, that relates to the defendant’s state of mind at the time of the commission of the crime(s) charged. If you find that the People have not proven that element, or any other element beyond a reasonable doubt, then you must find the defendant not guilty. If you find that the People have proven all the elements beyond a reasonable doubt, then you must consider whether the defendant has proven the affirmative defense by a preponderance of the evidence.”