Legal Insights: Understanding the Insanity Plea

The story made brutal headlines in Milwaukee last December. Wauwatosa police officer Jennifer Sebena died from multiple gunshot wounds after being stalked outside a Tosa fire station.  Her husband, wounded Iraq war veteran Benjamin Sebena, was arrested in the killing. Three months later, he entered a plea of not guilty by reason of insanity or mental defect.

High profile cases such as this one can easily spark questions about whether the insanity plea is appropriate. In the state of Wisconsin, the insanity plea is technically called the entry of a not guilty plea due to reason of mental disease or defect. What it comes down to, big picture, in those types of hearings is a bi-truncated trial consisting of two parts.

One, was the act actually committed by the defendant? And, two, should he or she be found not guilty due to reason of mental disease or defect since whatever psychological or emotional state they were in, they were not able to appreciate the significance of right or wrong at that time?

When people in the general public hear an attorney enter the insanity plea, especially in a high profile murder case, we sometimes hear reactions like, ‘Well, it’s clear that the defendant is guilty. This is just a last ditch effort by the attorney to get his client off the hook.’ That may be true at times but in the cases we’ve seen in Waukesha, this type of plea is not at all taken lightly.

The defendant cannot simply be locked up in a mental health facility for the rest of his/her life. There must be a review by qualified medical personnel including psychologists and medical doctors to make that determination based on an interview or several interviews with the person. They must decide whether the insanity claim actually applies to the case.

In some cases, the state will have a competing report with the defense compiled by a board that says, ‘No, this person was able to differentiate between right and wrong’ while the defense might have reports from other doctors that disagree. There may be a bit of a battle to eventually sort everything out.

This is exactly what happened in the Sebena case. Forensic psychiatrists agreed that the defendant’s mental condition, troubled as it may be, does not support the insanity plea. Sebena eventually pleaded guilty to first-degree intentional homicide in the death of his wife. He is scheduled to be sentenced on August 9 and faces life in prison though the judge could grant a supervised release as early as 20 years from now.

I can certainly understand the perception that the insanity plea might be abused in some cases.  However, sometimes the circumstances are so bizarre that it’s easy to conclude that there had to be some type of mental disease or disorder to cause them to commit these crimes.

Again, the insanity plea may be the defense’s first step but the circumstances need to be thoroughly evaluated and verified before such a plea will be accepted by the court. Each case is handled on its own merits.  Does the defendant understand the severity of the charges?  How much does he remember about the circumstances of the crime? Is he able to differentiate between right and wrong? This is not to be confused with the concept of competency to proceed where the defendant may or may not be competent to assist with his own defense. The court needs to determine whether, at the time the crime was committed, the defendant was able to differentiate between right and wrong.

In my view, the big question is, are there medical experts that are willing to put their reputations on the line to back the insanity plea up? If so, using the plea is appropriate. If, on the other hand, there is a report that does not support the insanity position, trying to use this defense would be an abuse of the plea. Procedurally in the state of Wisconsin you need to make that plea before getting the medical reports to determine whether the defendant really committed the crime due to that mental disease or defect.

Personally, I don’t think the insanity plea is over-used or abused to any high degree. The reports by the medical experts either support or refute the insanity position and the courts must then decide the next direction the case will take.

About Attorney Mark Powers
Attorney Mark Powers is a partner at the criminal defense law firm of Huppertz & Powers, S.C. in Waukesha. Previously, Powers served as an Assistant District Attorney with the Waukesha County District Attorney's office and is currently serving as a municipal judge in North Prairie. He focuses in the area of criminal defense, and has handled many cases involving operating a motor vehicle while intoxicated, domestic disputes, and drug offenses.

Powers attended Valparaiso University School of Law, where he received his Juris Doctorate. Prior to law school, Mark attended the University of Wisconsin, Lacrosse where he received his bachelor of science in Political Science.

For more information, please call 262.549.5979 or visit www.waukeshacriminalattorneys.com.