COLUMN ONE : A Killer’s Sanity May Free Him : After David Lee Nagel slashed his grandparents, a Georgia jury sent him to a hospital instead of to prison. But experts now say he was never mentally ill. So the state must release him--or defy the law.

By the spring of 1981, the question of what to do with David Lee Nagel suggested a grim but unequivocal answer.

Nagel had spent his adolescence bouncing among jails, youth camps and mental hospitals. He had racked up what the psychologists called a “long history of antisocial behavior,” meaning fights, breaking and entering, auto theft, fleeing the police and attacking a counselor. He had also, on the night of May 8, 1981, in this region about 70 miles southwest of Atlanta, stabbed his grandparents to death, apparently because they had denied him their car keys.

When three state doctors soon after pronounced the 19-year-old sane, responsible for his acts and competent to stand trial, the Troup County district attorney did not hesitate. It was clear to him that Nagel should be executed.

But the jurors at his murder trial thought otherwise. Exactly why they balked remains a matter of speculation. Perhaps they were swayed by Nagel’s tenure in mental institutions, or the vague references in his records to schizophrenia. Perhaps they shrank from sending a frail teen-ager to the executioner. Or perhaps they could not imagine--could not accept--that anyone who was mentally sound could commit such an act of butchery. Whatever the reason, jurors on Dec. 2, 1981, found Nagel not guilty by reason of insanity.

For 13 years, the verdict didn’t much matter; Nagel, whom the court ordered institutionalized, simply disappeared behind the bars of a maximum-security mental hospital rather than a prison. Now the verdict does matter. Now the verdict means that Georgia faces the unappealing prospect of releasing a double killer--or defying state mental health laws and the U.S. Constitution.

After years of caring for him, the state’s top mental health experts have concluded that David Nagel is not mentally ill--and in fact was never mentally ill. “Nagel does not meet the legal criteria for involuntary commitment to a mental institution,” declares forensic psychiatrist Dr. Everett Kuglar, acting superintendent of the Georgia Mental Health Institute. “Nagel should be released.”

The U.S. Supreme Court may eventually agree. Two years ago, looking at a patient much like Nagel, the justices said Louisiana could not continue to confine Terry Foucha once a mental hospital decided that he showed no sign of mental illness.

The due process clause of the 14th Amendment just won’t allow it, the justices declared. You can’t confine someone in a mental hospital for what he’s done in the past, or might do in the future, if he isn’t mentally ill.

Like Nagel, Foucha--found not guilty by reason of insanity in an aggravated burglary case--was diagnosed as having an “antisocial personality” and had a history of altercations while confined. Like Nagel, he may have suffered from a “drug-induced psychosis” at the time of his crime. Like Nagel, he could find no doctors willing to guarantee that he would not be dangerous in the future. No matter. “As Foucha was not convicted, he may not be punished,” wrote Justice Byron R. White for the majority. “Louisiana has by reason of his acquittal exempted Foucha from criminal responsibility.”

To Everett Kuglar, the Foucha decision makes obvious what must be done with Nagel. The state psychiatrist well understands the desire to confine a killer--in fact, he believes Nagel should have been convicted of murder--but he flatly declines the role of jailer.

“It’s not our problem today what mistake the justice system made years ago,” Kuglar said. “If you can’t get a jury to convict . . . well, that’s it. It’s not the business of a mental hospital to retain people who aren’t mentally ill.”

Georgia judges, however, don’t see it that way. From the trial level to the state Supreme Court, they don’t appear inclined to let Nagel go.

A jury in its wisdom found Nagel insane, these judges proclaim, and we presume he continues to be insane. Nothing Nagel now offers proves otherwise; nothing establishes that he will not turn violent again if released. “Weighty as the medical experts’ testimony may be,” Troup County Superior Court Judge Allan B. Keeble observed in denying Nagel’s release, “this court must balance that testimony against the seriousness of (Nagel’s) acts.”

The son of Nagel’s victims puts the matter more directly.

“I don’t care what the psychiatrists say,” declares Emmett Frank Marshall Jr., who is Nagel’s uncle. “For what he done to my parents, I don’t think he should ever be released.”

*

There’s little sympathy for Nagel here in Troup County. In small ways and large, he has tormented the region for much of his life.

Coming from an abusive and broken family, he landed, at age 15, in a Christian boys’ home, which soon asked that he be removed. Back in LaGrange, he spent four years in relatives’ homes and assorted institutions.

“He’d get into trouble, he’d be real sorry,” Emmett Marshall recalled. “He’d con you, telling you this sad story about how he was going to straighten out, wanted to do right. And for a while, he would do OK. But it would never last.”

No one felt able to deal with him: An exasperated high school principal asked that Nagel withdraw after a few weeks in class; his grandparents said they feared him; a youth detention camp counselor decided “David needs constant institutionalization and therapy more than any other kid I’ve worked with.”

Nagel was clearly troubled, but was he mentally ill? Various Georgia doctors’ diagnoses never involved what physicians and state law define as mental illness--a “disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.” Rather, Nagel was seen as a more familiar type: a highly disturbed adolescent, suffering from depression, anxiety, low frustration level and poor impulse control. Nagel also abused drugs.

His perceived problems were what the doctors categorize as “behavioral,” not psychotic. As a result, the doctors treating Nagel never believed he justified involuntary commitment, which requires, among other things, a finding of mental illness. Once the doctors stabilized Nagel, they felt they had to release him if and when he wished to go.

That’s what happened in December, 1980. This time it was from the West Central Georgia Regional Hospital in Columbus. In early April, Nagel’s mother, unable to deal with his drinking, drug abuse and hostile behavior, sent him back to West Central. On April 23, the hospital released him to his maternal grandparents, Frank Emmett Marshall Sr. and Mattie Louise Marshall.

Two weeks later, Nagel stabbed his grandparents, cut their throats and dumped them in the countryside. Then he drove around with two friends before renting a motel room. Questioned the next day by LaGrange police, Nagel confessed, appearing calm and remorseless. He’d been drinking and taking pills (possibly PCP), he explained. Other than that, he offered no motive.

No transcript exists of Nagel’s trial, only the memories of those few involved. Mack Reynolds, the young lawyer appointed by the court to defend Nagel in the only death penalty case ever tried in Troup County, recalls that he could not even get his client’s mother or minister to testify on his behalf. Nor could he call a medical expert to the stand, for the court provided no funds to hire one.

All he had going for him, to counter three state doctors’ testimony that the defendant was not mentally ill, were the records from Nagel’s 22-month stay at a private Florida psychiatric hospital in 1979-80--records that happen to include tenuous references to “pseudopsychopathic schizophrenia.”

This diagnosis--which could be applied broadly to anyone a doctor thought might have some characteristics of a schizophrenic--is no longer used anywhere, by anyone. In fact, the American Psychiatric Assn. dropped it as a recognized diagnosis in 1980, the very year Nagel was being diagnosed, and a full year before his murder trial.

“It just was not reliable, certainly not for the legal system,” explains Dr. Robert Miller, chief psychiatrist for the Colorado Department of Corrections. “It was way too subjective. There was no scientific evidence for its existence.”

Normally, the records containing this diagnosis would not have been admissible without testimony from Nagel’s doctor in Florida. But the district attorney--aware travel funds were limited and apparently confident of a conviction--stipulated their entry into evidence. That gave Reynolds a chance to talk about them in his closing argument.

“Any good lawyer can testify better than an expert,” Reynolds said recently. “I can’t exactly recall what the records said, but they supported my philosophy of the case. My philosophy of the case was, ‘These murders were so horrible nobody in their right mind would have done that.’ ”

The jurors apparently bought that theme, thereby riling much of Georgia. For weeks after the trial, outraged citizens bombarded Reynolds with hostile calls. At the next session of the state Legislature, politicians did away with the “not guilty by insanity” category entirely, changing it to “guilty but mentally ill.”

None of this altered Nagel’s situation, of course. The task of confining him still fell to doctors and counselors, rather than wardens and prison guards. More precisely, the task of confining Nagel eventually fell to Kuglar, who knows all too well what acts are within the realm of sane human behavior.

*

From the moment he met him in 1985, Kuglar thought Nagel was not psychotic. Kuglar then was superintendent of the Georgia Regional Hospital in Augusta, where Nagel was confined.

In a building full of psychotics, half of them schizophrenic, 90% of them violent, most of them dazed and deluded, Nagel stood out. So in time, Kuglar became well acquainted with him.

What he saw was an angry, insecure young man, full of guilt, the product of a chaotic family. What he saw, in other words, was not unusual for young men in their 20s, at least not the ones who come Kuglar’s way. Most admissions to adolescent units are there because of their behavior, not because they are mentally ill. Nagel had a personality disorder. Nagel most decidedly needed to stay away from liquor and drugs. Nagel undeniably had brutally killed two people.

But to Kuglar, Nagel had nothing approaching the type of thought or mood disorder that defined mental illness in Georgia. Where true psychotics such as schizophrenics were withdrawn, detached and delusional, Nagel was direct, lucid, engaged.

Possibly, he had killed his grandparents during a temporary drug-induced psychosis. But there had been no substances to abuse since, and no evidence of mental disturbance.

To meet the criteria for civil commitment, you had to be mentally ill, and dangerous to yourself or others, and in need of involuntary inpatient treatment. You had to be all three of these. To Kuglar, Nagel just didn’t meet these criteria.

This conclusion pulled Kuglar into unfamiliar territory. For 35 years, he has straddled the Georgia mental health and legal systems, running hospitals while evaluating defendants for Georgia courts. More often than not, he is the state’s expert, proclaiming a defendant competent to stand trial. More often than not, this judgment makes the prosecutor’s case for conviction and prison. Now, this same judgment was making the case for Nagel’s release.

For several years in the 1980s, Kuglar didn’t have to face such a difficult prospect. Nagel didn’t want to leave the mental hospital. The hospital meant security and structure; the hospital protected him from the community’s anger and his own demons. So Kuglar obliged him.

Nagel received not anti-psychotic drugs or formal psychotherapy, but “socialization”--a small part-time job, activities, recreation. In 1989, he was transferred to Central State Hospital in Milledgeville, but Kuglar also ended up at Central State that year, as medical director of the forensic services division.

Joined now by Robert Storms, the senior forensic psychologist there, Kuglar talked regularly with Nagel, not in formal therapy sessions, but in hallways and offices, where Nagel worked buffing floors. Watching him write to female friends, weep when his mother made a rare visit, earnestly mull over problems with the hospital staff, Kuglar and Storms grew to like Nagel. They liked him despite his occasional fights with other patients; they liked him despite his occasional tendency to threaten escape, suicide or attacks on the staff.

Kuglar and Storms didn’t take the threats seriously. To them, Nagel was simply trying to manipulate his environment, as all people do.

The fights meant even less to the doctors. In the Binion Building, Nagel had to deal with truly psychotic patients. Three times, he had ended up in scuffles started by the other guy, and had been placed in seclusion. In one of those cases, a big guy sitting over in a corner working on his delusions had finally decided Nagel was the devil. It was very tough, Kuglar and Storms well knew, to keep your cool with some of these folks.

Kuglar and Storms eventually concluded that Nagel not only wasn’t psychotic, but in fact had never been. Schizophrenia and manic-depressive illnesses are primarily progressive. Nagel could not have been schizophrenic at age 19, Kuglar reasoned, and now show no signs of the disease. Kuglar had known about 3,000 patients fairly well. He’d never seen one do anything like that.

Kuglar thought references in Nagel’s record to pseudopsychopathic schizophrenia were “nonsense terms”--part of a game played by therapists seeking insurance payments. Kuglar couldn’t entirely condemn those who played that game. If you needed such a diagnosis to get funding so you could treat your patient, maybe such actions were justified.

Justified--but not accurate.

By the fall of 1990, Nagel wanted out. No longer did he desire the security of a mental hospital. He wanted a hearing on whether he met commitment criteria. He wanted a lawyer. He wanted Kuglar’s help.

*

When the Central State Hospital’s Forensic Division Team convened in May, 1991, to conduct a comprehensive evaluation of Nagel, all involved appreciated the difficult question they faced.

Nagel had committed a heinous crime. He was in their words, “impulsive, immature, naive, unpredictable, manipulative and somewhat antisocial.” Nagel would fit well in most prison populations. His ability to function in the community was uncertain, since he had spent most of his life in institutions. He might return to liquor and drugs once his forced abstinence ended. Kuglar didn’t think that would happen, but no one could guarantee.

Was that to be used as a rationale to keep Nagel confined in a mental hospital? If so, how long could he be held? On what basis? On what basis would he get out? Did he first need to prove he wouldn’t be dangerous in the future? Wasn’t that an insurmountable burden? Wasn’t that unconstitutional preventive detention?

Whatever his behavioral problems, Nagel was alert, concise and communicative. His insight and judgment were normal. He appeared to be in good contact with reality.

The team’s conclusions and recommendations were, in the end, unanimous: Nagel was not psychotic and therefore did not meet the criteria for continued hospitalization. The process for Nagel’s release should be initiated in the courts.

“David Nagel is an easy one to live with,” Kuglar said of this decision. “It’s not even close. I get some I don’t sleep over, I get some I feel torn about. David is not one of them.”

By September of 1991, both Central State hospital and Nagel’s attorney--Torin Togut of the Georgia Legal Services Program--had filed petitions seeking a discharge hearing.

In Georgia, release hearings must be conducted by the court that originally committed the patient. The trial judge at Nagel’s murder trial had retired and the prosecutor was working in Nevada. No matter--on Oct. 17, 1991, Nagel, in pursuit of his freedom, returned to Troup County, to the scene of the slayings and his trial.

The community was waiting. “Hearing Thursday May Free Killer Nagel” warned the banner headline atop Page One of the LaGrange Daily News.

*

With David Nagel once again in their midst, albeit shackled, it cannot be said that the citizens of Troup County were overly concerned with the fine points of Georgia mental health laws or U.S. Supreme Court rulings. In truth, it mattered little to some whether or not Nagel was insane.

“I don’t think there was ever anything wrong with David,” the victims’ son Emmett Marshall told a reporter just before the hearing. “He was just mean.”

Soon after, officers brought Nagel to the LaGrange courtroom in handcuffs and foot chains. No longer a frail, nervous youth, he sported a goatee, shoulder-length brown hair, and muscles derived from years of bodybuilding. Guards were everywhere, inspecting the courtroom and the 20 spectators, among them Nagel’s mother.

Ten years before, the state had argued Nagel sane and responsible, while the defense had argued him incompetent. Now these positions were reversed.

Only Kuglar remained consistent. “No, I don’t think David meets the commitment criteria,” he told the court. “I don’t think he ever met it, to be honest with you. . . .”

The focus this day was not on commitment criteria, however. The focus was on Nagel’s stormy, violent history. The hospital fights and threats that looked commonplace to the doctors looked like danger signs to Judge Allen Keeble and the county district attorney. And Kuglar could offer no guarantees to assuage them.

“I don’t think David would present any harm to others in the near or immediate future,” Kuglar explained. “I doubt seriously if he would ever. . . . But then you want me to predict whether he will or not. . . . I can’t predict that. . . .

“Our feelings about the release are not based on the fact that we think David has been very perfect. It’s based on the fact that we don’t think he has a mental illness that meets the state’s criteria for continued hospitalization. Now, what he may do when he gets out, I don’t know. . . . But I have strong feelings that anything he does, he will not be doing it because of mental illness. He will be doing it because he made a choice to do so.”

After listening to such comments all morning, Judge Keeble felt compelled to step in. Intentionally or not, he began to lead Kuglar through a field full of legal land mines.

“As best I can understand what you’re saying is that in your opinion, Mr. Nagel has no serious mental problem now and never has had any?” Keeble asked.

“That’s my opinion, Your Honor.”

“So I assume, then, that it would be your opinion that those 12 Troup County jurors in 1981 who found him not guilty by reason of insanity made a mistake?”

“Yes, sir.”

Kuglar--all jowls and wrinkles, gruff and blunt, with no taste for small talk or testing the political currents--had managed to trample a bit on the concept that a jury’s verdict establishes a legal verity. In doing so, it would emerge later, he had also managed to trample on the Georgia Supreme Court’s sensibilities. But at this moment, Judge Keeble, low-key and reserved of manner, looked more perplexed than triumphant at where he had led the doctor.

“It seems,” Keeble said, “very difficult for me to look at the situation in which an individual essentially butchers his grandparents . . . without concluding . . . that such an act could only have occurred had the person been abnormal in some respects from a mental standpoint. . . . From a lay standpoint, for a person to do this kind of thing he has to be mentally ill.”

If only that were so, Kuglar thought. If only sane people didn’t do brutal things.

Out loud, he said: “Those people who think that have not had firsthand experience with what severe abuse of some of these drugs would do.”

The judge digested this comment. Watching from his seat, even Nagel’s attorney Togut sensed Keeble was trying to be fair. This judge had a reputation in Togut’s office as being the best in the circuit. No judge in this circumstance, Togut believed, could handle the case differently. Certainly no judge who lived in Troup County.

“Assuming you are correct,” Keeble continued, “and the jury made a mistake . . . there is nothing we can do about that. That’s a legal fact at this point. . . . One of the things that I guess concerns me most is that in April of 1981 someone came to the very same conclusion that you have . . . And less than a month after that (Nagel) murdered two people.”

Kuglar wouldn’t budge; the lawyers in Georgia, having failed to confine Nagel, could not so easily ask the doctors to do so.

“Your honor. . . ,” he said, “it is not the business of mental hospitals to keep retained those people who might be dangerous if they do not have the mental illness. The mental illness has to be there first.”

Faced with this enduring conflict between the interests of the community and the concerns for individual rights, Keeble and Kuglar’s revealing exchange finally reached an impasse.

“OK,” the judge said. “That’s all the questions I have.”

*

In the end, Kuglar’s efforts just didn’t wash.

Despite the medical experts’ testimony, despite the failure of the state to offer any contrary medical opinion, despite the U.S. Supreme Court’s Foucha decision, Judge Keeble, in denying Nagel’s release, ruled that “his acts of butchering can only be described as depraved and senseless.”

Once a defendant is determined to be insane and to meet the criteria for civil commitment, by state law “this condition is presumed to continue.” The Superior Court, and not mental health professionals, “has the responsibility for deciding applications for release.” Before “this court can conclude that Nagel is sane,” there must be “at least a better than even chance that his condition will persist.”

The Georgia Supreme Court, ruling on appeal last spring, went even further than Keeble. Where Keeble at least acknowledged the medical experts, the high court flatly said Kuglar and Storms’ testimony “deserved no weight whatsoever.” By law the jury’s verdict established Nagel’s mental illness, “so the issue to be determined was whether Nagel’s sanity had been restored,” not “whether the jury had made a mistake.”

Kuglar and Storms were, in effect, “attempting to impeach the original verdict of the jury.”

The Georgia Supreme Court’s ruling will not be the last word in the matter of David Nagel. In July, Nagel’s attorney Togut filed a habeas corpus petition in U.S. District Court. As he moves the case from the state to the federal legal system, Togut will press a number of legally substantive arguments.

He will cite the Foucha vs. Louisiana decision. He will quote Justice Leah Sears-Collins, the solitary dissenter on the seven-person Georgia high court, who argued that her colleagues have created a “Catch-22” in which Nagel, to prevail, would have to “convince a psychiatrist to testify falsely . . . that the jury reached the correct result.” He will talk of preventive detention and insurmountable obstacles and the 14th Amendment. Most fundamentally, he will plead for “the principle of law” to prevail.

Whether or not these arguments succeed, the question of what to do with Nagel promises to continue to haunt Georgia much as it has for the past 15 years. The state, after all, has no satisfactory solution. Everyone involved knows Nagel belongs neither at large, nor in a mental hospital; Nagel belongs in prison. But Georgia can’t put him there.

As he considered that notion one recent afternoon, Everett Kuglar sat at his desk, staring out a window at a rolling lawn at the Georgia Mental Health Institute in Atlanta.

“Weightless,” the justices had called his opinion. What should he have done, lie? Agree that a person “must be crazy” to commit brutal murders? That Nagel once was mentally ill? That the jury got it right?

“If society doesn’t like the laws, change it,” Kuglar rumbled. “If society wants a person to spend the same number of years in a mental hospital as he would have in prison, then say so. Don’t have the law say that as soon as a person doesn’t meet commitment criteria, he gets out, then use ruses and quirks to keep him in.”

Finally, though, Kuglar had to agree the matter was not all that simple. Yes, he understood why most people were happy that Nagel remained confined; yes, he understood why Emmett Marshall’s wife would say: “We’re scared right now. It’s scary he could get out.” Hell, he didn’t know if Nagel was dangerous. In truth, Kuglar allowed, he probably would have been the state’s star witness in 1981; if called to testify, he would have made the case for conviction and prison, if not the death penalty.

Of course, that also meant he would not have made the case for a mental hospital.

The obvious, perplexing irony of his position left Kuglar shaking his head. Usually, responsibility was his watchword; usually, it was the defense attorney who opposed him, not the state. Falling silent, Kuglar turned his chair, his back now to his visitors, his mind now on a jury’s 13-year-old verdict--the inescapable, irreducible predicament at the heart of the Nagel affair.

“David should have been convicted and sentenced,” Kuglar said finally. “But that’s not what happened. That’s just not what happened.”