- The Washington Times - Monday, October 7, 2019

The Supreme Court opened its 2019 session Monday hearing from a Kansas man who murdered most of his family after learning his wife was having an affair with a woman, and now says the state is making it too difficult to mount an insanity defense.

Kansas allows for a narrow insanity defense that requires a defendant to show a lack of intent. Kraig Kahler didn’t meet the standard, and he was convicted and sentenced to be executed.

His case centers on whether he has a constitutional right to mount an insanity claim, arguing the Kansas law has denied him a fair trial by prohibiting that.

Kahler, though, didn’t appear to earn much sympathy Monday from some justices, who peppered his legal counsel with questions about the severity of Kahler’s mental disability and detailed the gruesome nature of his crime.

Justice Samuel A. Alito Jr. told Kahler’s attorney he had the opportunity to make insanity arguments during the penalty phase — after he was found guilty, noting the jury chose to impose the death penalty.

“You have to keep in mind what he did. And this is an intelligent man, and he sneaked up on the house, where his wife and her mother and his children were staying. He killed his ex-wife. He killed his ex, her mother. He executed his two teenage daughters. One of them is heard on the tape crying. He, nevertheless, shot her to death. He spared the son, because he didn’t think the son was siding with the mother,” Justice Alito said.

“And then he ran away and turned himself in the next day. Now, this is the stuff from which you’re going to make a defense he didn’t know that what he was doing was morally wrong,” the justice added.

Sarah Schrup, Kahler’s attorney, said her client’s use of the insanity defense at the penalty phase isn’t a substitute for being able to argue he was insane during the guilty-or-not guilty part of the trial.

Kahler contends he has anxiety and depression but refused to take medication he was prescribed.

Ms. Schrup also argued the U.S. has a long history in having the insanity defense used when appropriate, dating to 1791. She pointed to the protections afforded under the Eighth Amendment.

“The original public meaning of that term was that it would be cruel and unusual to punish the insane,” she told the court.

Most other states allow defendants to show they aren’t criminally liable if they do not know the nature of their act or couldn’t differentiate right from wrong at the time.

Kansas says its insanity defense has been modified to focus on a criminal’s intent rather than ability to judge.

The insanity defense is different from competency to stand trial. A judge will decide whether the accused is of sound-enough mind to go through with the trial. That has no bearing on guilt or innocence.

Insanity, meanwhile, is an argument raised by the defendant during trial, and the jury is asked to make a determination about the accused person’s sanity at the time of the crime.

Chief Justice John Roberts Jr. appeared skeptical of whether Kahler’s court filings showed a severe mental disability, rendering him actually insane.

He noted the court filings suggested Kahler was called a “tightwad” who would borrow instead of buy tools and would thrive on self-importance, trying to portray a perfect marriage.

“Maybe that’s not the best way to order your life, but if that’s what you mean by insanity, you can understand why that might cause some reservations,” Justice Roberts said.

“Borrows tools instead of purchasing them? That sounds like the reasonable option,” the chief justice added.

Toby Crouse, Kansas’ solicitor general, said the state law doesn’t infringe on constitutional protections and the high court should not strike it down.

“The states have had historical and traditional discretion to both define the elements of the criminal law, the defenses that are available in those criminal justice proceedings, and the substantive rules at which those defenses and elements are met,” he said.

He pushed back on the notion there should be a universal rule for the insanity defense handed down by the Supreme Court.

The high court also heard two other cases Tuesday, one dealing with patent law and the other concerning if the Sixth Amendment warrants a unanimous verdict.

Justice Clarence Thomas was absent from the hearings because of an illness.

Multiple media outlets reported he was out with the flu but would participate in the cases once he recovers.

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