Insanity Defense a Tough Strategy, Law Experts Say

Episodes of manic-depression, the stalking of a female co-worker and explosive fits of violence would help Mark Richard Hilbun present an insanity defense, but a courtroom victory will be difficult to attain, legal experts said Monday.

As Hilbun was arraigned Monday and his attorneys indicated they were considering the controversial defense, experts said the former Dana Point postal worker will have difficult legal standards to meet.

Not only will jurors have to be persuaded that Hilbun suffered from a mental illness during his two-day rampage, they must believe that his illness sapped him of the capacity to understand the nature of his actions and distinguish right from wrong.

“The public has a powerful conception of what it is to be insane, that anyone who acts like Mr. Hilbun must be crazy,” said Peter Arenella, a UCLA criminal law professor. “But insanity is a purely legal term. . . . It is simply not true (that) mental illness (automatically) means a loss of a person’s ability to understand what is morally wrong.”

Arenella, who has written extensively on the insanity defense and has testified before Congress on the issue, said that the public’s perception of the defense as an “incredible loophole” in the law is “empirically wrong.”

“The insanity defense is only rarely raised and when it is, it is rarely successful,” he said.

A study of 49 counties in eight states, including California, showed that between 1976 and 1987 only 1% of the pleas in felony cases were insanity defenses. The study was conducted by by the American Academy of Psychiatry and the Law.

Of those cases, 26% of the defendants who entered such pleas were acquitted, and only 7% of those acquittals were by a jury, the study found.

For Hilbun’s attorneys, the most difficult aspect of supporting such a defense, most experts say, would be explaining their client’s elaborate attempts to avoid authorities after a string of violent acts throughout coastal Orange County.

The 39-year-old Hilbun eluded a massive manhunt for 38 hours by dramatically altering his physical appearance and switching license plates on his pickup truck, police have said. During two days of violence, Hilbun allegedly stabbed his mother to death, shot two colleagues at the Dana Point post office, killing one of them, and wounded four people in three other attacks.

“Those actions would suggest that he knew that he did something wrong and was trying to protect himself from the negative consequences,” said Elyn Saks, a criminal law and mental health professor at USC.

“There are a lot of mentally ill people who commit crimes that just don’t meet the insanity defense,” she said. “Having a diagnosis doesn’t necessarily guarantee a verdict.”

Commenting on Hilbun’s alleged behavior following the violence, Jeffery Miller, a criminal law professor at Fullerton’s Western State University, said simply: “He’s up for a rough road. This guy’s in big trouble.”

In some insanity cases, Arenella said, where the courtroom becomes a stage for debate between prosecution and defense experts, juries are left to find their own interpretations.

Since it has been shown that insanity pleas are unpopular with juries, Arenella said, jurors tend to focus on rational aspects of the defendant’s behavior that would show he or she knew of the possible consequences.

“When you have some sign of rational behavior, whether it be attempts at avoiding detection or something else, the chances of success using the insanity defense are low,” Arenella said.

According to Saks and others, California is one of several states in which the insanity defense must meet the strictest standards.

Known as the “M’Naghten Rule,” California law places the burden of proving insanity on the defense. Hilbun’s possible inability to control his actions may not be considered as part of the defense, as it is in other jurisdictions.

That exclusion, Saks said, might prove helpful to prosecutors as they deal with facts about Hilbun’s episodes of manic-depression, an illness defined by dramatic mood swings that sometimes influence behavior.

“He doesn’t have a sure thing by any means,” Miller said.”

Defense attorney Milton C. Grimes, whose client, Richard Lucio DeHoyos, is using the insanity defense in an attempt to evade a death sentence for raping and murdering a 9-year-old Santa Ana girl, said such strategies are always difficult because the defendant cannot always help prepare his own case.

DeHoyos was found guilty Monday of the rape and murder charges, but jurors have yet to decide whether he was sane at the time of the attack. (Story on Page B4.)

“You need a lot of investigation into the individual’s background, what type of mental problems he’s experienced in the past,” Grimes said. “Ideally, you’d like to be able to discuss (with the client) what’s going on in his mind, that is, if he knows what’s going on in his own mind.”

Hilbun’s attempts to hide from authorities may not doom an insanity defense, Grimes said, because some people can be found legally insane while exhibiting some signs of normalcy.

“You can be normal 95% of the time,” the attorney said. “You can know how to drive, when to eat, when to sleep, (but) there can still be a problem in part of the mind.”

Deputy Dist. Atty. Rick King, who was assigned to prosecute the Hilbun case, declined to discuss possible defense strategies Monday other than to acknowledge that it was possible insanity would be used.

“We have filed the charges,” King said. “He is perceived to be sane. We are doing everything in our power to bring this to a preliminary hearing next Tuesday.”

Orange County Public Defender Ronald Y. Butler has said that an insanity plea for Hilbun might be possible after his office reviews the case.

Based solely on Hilbun’s medical background, Miller, the Western State University law professor, said Hilbun would be “the right one” to apply the defense. But Miller said the strategy is not likely to endear him to a jury.

“You are dealing with a man who has allegedly done a horrible set of crimes,” Miller said. “That and a plea of insanity is not going to make him popular with a jury.”

Traditionally, Miller and Arenella said, the public has viewed the defense as a catch-all provision in the law to explain particularly extraordinary behavior.

“If I were his defense attorney, I would do everything in my power to get that case away from a jury and put it before a judge,” Miller said. “He is a totally unsympathetic figure and will not be well-received before a jury.”

Staff writer Rene Lynch contributed to this report.