Nearly 100 Volusia, Flagler patients have used insanity defense

Flagler County sheriff's deputy Kathy Weeks leads attempted murder suspect Victoria Acierno, 19, of Painters Hill, into the Flagler County Inmate Facility, Saturday, Jan. 27, 2001.

Published: Saturday, January 18, 2014 at 10:07 p.m.
Last Modified: Saturday, January 18, 2014 at 10:50 p.m.

Richard Dunn of Palm Coast killed his 89-year-old father in 2006, and after four years of hospital treatment, now lives in a supervised home in Volusia County and wants to return to Flagler County.


Insanity defined by Florida law

Insanity Defined By Florida Law
All persons are presumed to be sane.
Insanity is established when:
a) the defendant had a mental infirmity, disease or defect; and
b) Because of this condition, the defendant:

He faced a judge in a courtroom and was found not guilty by reason of insanity, which by law means he was incapable of telling right from wrong or understanding the gravity of his actions at the time of the crime, and was considered dangerous. His request to move back to Flagler County was denied last year.

Dunn is among the 97 people in Volusia and Flagler counties who have been found not guilty by reason of insanity in recent years, according to a public defender's database established in 2006 and utilized by Stewart-Marchman-Act Behavioral Healthcare in Daytona Beach.

Florida's four forensic hospitals house 223 people that were found not guilty of crimes because they were declared insane by a judge, state records show, and 10 percent of them are from Volusia County.

The database used by Stewart-Marchman shows 22 Volusia County patients are being treated at the four hospitals after being acquitted by reason of insanity.

Mental health experts, law enforcement officials and prosecutors are hard pressed to nail down the reason behind the high number of local patients, but one longtime local defense attorney cited the county's large transient population — and the mental health issues it brings to bear on the criminal justice system — as a possible contributor.

“Transients, that's what pops out to me,” said Mike Lambert, who has defended two local men during the last seven years who were found not guilty by reason of insanity. “That's the only thing I can attribute it to. I don't think we're breeding more insane people than anybody else.”

In addition, Flagler County has two patients found not guilty by reason of insanity in forensic hospitals, bringing the two-county total in the NGRI category, as it is known in criminal justice parlance, to nearly 11 percent of the state's forensic hospital population.

In Florida, the average hospital stay for a person found not guilty by reason of insanity is 2.3 years, according to the Department of Children and Families, which supervises forensic hospitals. Sometimes the patient's release backfires with tragic results.

Ernest Heape of DeBary, who bound a former girlfriend with duct tape and held her captive, was released from a state hospital after a few months and ended up severely beating a local man and killing another in South Florida before committing suicide in 2008.

“It's a horrible thing when someone is supposedly cured and goes back into society and someone is killed or raped, but it does happen,” said Bruce Jacob, dean emeritus and professor of law at Stetson Law School. “(Two years) seems short to me. It could be they don't have the resources to keep them longer.”

Joe Infantino, administrator at two of Florida's state mental health hospitals, said there has been no sort of “bed crisis” in Florida for the past five years.

The release of patients also brings repercussions for victims' families, who may lose a loved one to a killer who eventually moves into a state-monitored residence a short distance away.

“First they have to deal with the ruling, but then they have to deal with more anger when that person is released from the hospital,” said R.J. Larizza, state attorney for the 7th Judicial Circuit. “It's very hard for them to accept.”


Florida's four forensic hospitals treat 1,084 people who either were declared insane or incompetent to stand trial. The 223 in the NGRI category represent about 21 percent of the hospitals' population, according to DCF.

Additionally, another 251 residents who received insanity acquittals were “stepped down” from a forensic hospital to a state-operated civil hospital, said DCF spokeswoman Alexis Lambert. A total of 474 NGRI residents are living in seven hospitals across Florida.

By comparison, there are about 100,400 men and women incarcerated in state prisons, according to the Florida Department of Corrections.

Restoring sanity to patients is the goal of administrators, doctors and others who work at the state's four forensic mental hospitals, officials say. The state's three mental hospitals in the civil category are mostly devoted to those who have been Baker Acted — people admitted without criminal charges hanging over them but who are considered dangerous to themselves or others. One of the hospitals, located in Chattahoochee, serves both forensic and civil residents.

Many former patients are out of the system and walking free. They were arrested, deemed insane, treated at a forensic hospital and released with conditions before returning to a normal life.

Sally Cunningham, the state mental health treatment facilities director for DCF, said she was not aware of any patient in the system who has spent most of his or her life in a state hospital. Someone staying 50 years is virtually unheard of, she said.

Cunningham said the average cost per bed for a forensic resident is $314 per day, or $114,700 per year.

By comparison, it costs the state $49.24 per day or $17,973 per year to house an inmate in a Florida prison, according to the Department of Corrections.

The options for people after they leave a forensic hospital vary, but most of them either get downgraded to a civil facility and spend time there before being given a conditional release, or they are fast-tracked to the conditional release stage.

Under a conditional release, a person undergoes regular drug testing, is prohibited from using alcohol and is under weekly supervision.

Additionally, that person must take his or her medicine as prescribed.

“It's a lot like being on probation in that you have to live where the court has approved you to live,” said Jim Cain, a forensic team leader with SMA Behavioral Healthcare.


Legal experts say insanity acquittals are extremely rare.

“If you do try to use (the insanity) plea, you have to prove you were insane at the time of the crime,” said Steve Leifman, an associate administrative judge in the Miami-Dade County Court Criminal Division. “It's really, really hard to prove.”

There are many reasons why defense lawyers don't take the insanity route, one of the biggest being the immense challenge of convincing a jury, attorneys said.

The insanity defense is given the ultimate test whenever a mental health expert for the defense is cross-examined by the prosecutor, said Stetson's Jacob.

“That prosecutor will ask the witness whether the defendant would've done the crime if a police officer had been sitting 20 feet away,” he said. “That witness would say, 'no,' and then the prosecutor could turn around and say, 'Well, then, he couldn't have been insane.' It is very difficult to convince a jury that a defendant didn't really understand what he was doing was wrong.”

That's why few cases even reach that point, officials say. Instead, defense attorneys, prosecutors and judges hear testimony and reach an agreement that the defendant is insane and unable to determine right from wrong when they committed the crime.

One of the highest-profile exceptions in recent memory was the case against Andrea Yates, the mentally ill Texas mother who drowned all five of her children in the bathtub. A jury found her not guilty by reason of insanity. That occurred only after an appellate court threw out her original conviction and life sentence and granted her a new trial. The original jury had convicted her and contemplated whether to recommend the death penalty.

A public perception persists that insanity acquittals are more common than they really are and they are a way for the guilty to get away with murder or other crimes, said Leifman, who in addition to being a Miami judge is also a special advisor on criminal justice and mental health for the Supreme Court of Florida.

“There's a myth out there that people run to this as a defense,” Leifman said. “When it's in use, it's usually quite appropriate.”

LAWS, Reactions vary

The case of John Hinckley, who shot President Ronald Reagan in 1981, is often seen as the one that sparked not only loud public outcry but a movement to reform or restrict, depending on one's opinion, insanity laws in the United States. A couple of years after Hinckley was acquitted by a jury in a Washington D.C. courtroom, Congress passed the Defense Reform Act of 1984, which placed restrictions on defense attorneys seeking insanity acquittals.

Insanity statutes vary from state to state and three — Montana, Idaho and Utah — have abolished insanity defenses.

Florida's law centers on the M'Naughten rule, which basically states that a defendant was too deranged to understand the nature of his or her actions, or he or she knew the nature of the actions but was too deranged to know whether it was wrong.

The law notwithstanding, it is difficult to convince a victim or his or her family that the person who committed the heinous act was insane and ought to be in a hospital and not prison, said state attorney Larizza.

“They are frustrated and angered by the determination that the defendant was not guilty by reason of insanity,” he said.

Barbara Kimberley is an exception to that rule. She was a fourth-grade teacher at Indian Trails K-8 when Victoria Acierno, a 19-year-old teacher's aide, drove her car through the wall of her classroom the afternoon of Jan. 25, 2001.

Kimberley suffered minor injuries and one of her 9-year-old students was knocked out, concussed and required stitches. Acierno suffered lacerations to her face.

Otherwise, no injuries were reported, only shock and distress, according to reports.

Acierno was charged with more than two-dozen counts of attempted murder, but most of those charges were cleared and she would later be found not guilty by reason of insanity. She remains in a state hospital.

Kimberley attended at least one of Acierno's court hearings. Anger didn't enter Kimberley's mind. She said she felt sympathy.

“I remember the first time I saw (Acierno) in court. I was looking at her and I was thinking, 'Oh that poor girl,'” Kimberley said, recalling the image of a young woman wearing shackles and a sullen and confused expression on her face.

“She was clearly mentally ill.”


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