No Longer Insane 

Loopholes in the 'Not Guilty by Reason of Insanity' verdict raised in local case

On the afternoon of June 26, two years ago, a heavy rain finally broke what seemed like an eternal, dry heat wave in Manitou Springs. Unfortunately, a torrent of violence erupted that same afternoon, resulting in the death of 7-year-old Aaren Marie Dunn.

Aaren was stabbed to death by her father, Robert W. Dunn, in the back of their tiny Manitou Avenue home, just across the street from the liquor store that Mr. Dunn owned and managed. In subsequent days, while held at the county jail, Dunn threatened to harm himself and was moved to the Colorado Mental Health Institute at Pueblo for observation. In December 2000, El Paso County Court Judge Larry Schwartz declared Dunn not guilty by reason of insanity and committed him to the state mental hospital.

Last month, Robert Dunn petitioned the court in a letter written from the state hospital, claiming that he was no longer insane and should thereby be released.

Jennifer Abernathey, Dunn's former wife and the mother of his surviving daughter, who witnessed the murder of her sister, was disturbed to discover by her own inquiry to the Victim's Assistance division of the District Attorney's office that such a motion had been filed.

"I had what I call a 'hunch,'" said Abernathey, who called the DA's office to see if there had been any change in Dunn's status. "On June 10, [victim's advocate] Kelly Kissell called and told me that Mr. Dunn had indeed filed a motion in court to request that he be released, and that it happened in May.

"The fact that my family was not notified immediately of any attempt by Mr. Dunn to gain his freedom is deplorable."

Deputy District Attorney Geoff Heim of the Crimes Against Children Unit, who was one of the prosecutors in Dunn's case, said Dunn's letter did not constitute a legal action and was not being pursued by the court at this time.

"What he has done is he has filed a letter saying he doesn't believe he's insane. There's no attorney representing him," said Heim. "His case is not set for hearing."

Regarding notification of the family in such a case, Heim said the Colorado Revised Statutes clearly outline the responsibility of the court.

"If the victim has died and the perpetrator has successfully petitioned for a hearing, the family shall be notified prior to any hearing," said Heim. "Once the hearing is set, the family is notified.

But getting a hearing involves a rigorous process, including receiving a report by a physician stating that the defendant is "either no longer insane or that he has no abnormal mental condition that would cause him to be a danger," said Heim. Should the perpetrator get a hearing, a jury would then hear his case.

The not guilty by reason of insanity (NGRI) verdict and its many potential loopholes, especially in the case of violent crimes like murder, has provoked an ongoing discussion in the legal community since 1986, when John Hinckley Jr. was declared NGRI after an assassination attempt on then-President Ronald Reagan.

Some states have adopted a fourth possible verdict, "guilty but mentally ill" (GBMI), which can provide mental health care for a convicted felon, but would also allow the playing out of a criminal sentence in a prison and mandatory parole thereafter, should the accused be declared no longer insane before his sentence is up. In 1999, an advisory task force to the state of Colorado was advised to study the feasibility of adopting the GBMI verdict. So far, that action has not been taken by the state.

In general, if an offender pleads NGRI, it's possible he or she can serve a shorter period of involuntary commitment to a mental hospital than if sentenced to incarceration. According to a state report, statistics from the Colorado Mental Health Institute at Pueblo show that offenders convicted under a NGRI verdict for criminal trespass serve an average of 23.5 years in the facility, while offenders convicted of murder under NGRI serve an average of 8 years.

-- Kathryn Eastburn


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