Defense lawyers face an uphill battle in convincing a Lexington County jury that it should find Tim Jones “not guilty by reason of insanity” in the 2014 killings of his five children at his trial that begins Tuesday at the county courthouse.
“It’s tough,” said veteran South Carolina criminal defense lawyer Jack Swerling, who couldn’t remember any specific case in the last 45 years where a jury found a defendant “not guilty by reason of insanity” in a death penalty murder case.
Swerling said he has gotten “not guilty by reason of insanity” verdicts in a handful of criminal cases that didn’t involve a murder but those cases involved harm to property or non-fatal shootings.
“Juries are afraid of those cases — first of all, they feel they are lessening the impact of the crime. Someone was murdered, and they might think if they find the person was ‘not guilty by reason of insanity,’ they don’t think that person is being held accountable,” Swerling said. “They also might have a fear they would get out of the state hospital someday.”
Jones’ main defense to killing his five children is insanity, according to legal filings. Under state law, if a person is found “not guilty by reason of insanity,” the trial judge orders the person to be committed to the State Hospital in Columbia for a period for up to 120 days.
After that, there would be a series of findings, court hearings and other procedures designed to make sure that if the person ever were to be released, he or she would not be in need of continued hospitalization any more. Any release might be accompanied by various conditions designed to safeguard the community.
Mark Binkley, interim director of the S.C. Department of Mental Health, said in an interview that anyone found “not guilty by reason of insanity” would be kept in a secure part of the G. Werber Bryan Psychiatric Hospital in Columbia.
Anyone released under the “not guilty by reason of insanity” program would be closely tracked by the Hospital, the court and the S.C. Department of Probation, Parole and Pardon Services, Binkley said.
Columbia attorney Joe McCulloch, a veteran trial lawyer, agreed with Swerling that getting a S.C. jury to rule “not guilty by reason of insanity” in death penalty cases is near to impossible.
“Everybody’s afraid of Jason (in the horror movie Friday the 13th) or Freddy Krueger (the killer in the Nightmare on Elm Street movie series), McCulloch said. “Mental illness is so misunderstood, and the general public is very apprehensive, especially in a case involving violence.”
“People have an anxiety about the ability of our system to treat someone to the point of safe mental health.”
Having an insanity finding means the jury would have to decide that the person was so delusional that he or she did not know legal and moral right from wrong.
But the prosecutors are likely to stress to the jury any actions the defendant made to plan the crime, as well as any actions the defendant made to flee, would be the actions of a person who knew right from wrong, McCulloch said.
“Any act of running away is susceptible to the prosecutors’ arguing, ‘If he was crazy, he’d still be there playing with his toes or something’,” McCulloch said.
After his children were killed in late August 2014, Jones drove around the Southeast for more than a week with their bodies in the back of his SUV, according to evidence in the case. Jones confessed to the crime and led investigators to a spot in rural Alabama where he dumped their bodies, wrapped in garbage bags.
Another possible verdict in the Jones case is “guilty but mentally ill.” The legal standard for that jury finding is that the defendant knew right from wrong, but because of mental illness, he “lacked sufficient capacity to conform his conduct to the requirements of the law,” according to a 1992 decision by the S.C. Supreme Court.
That decision in a Greenwood County death penalty case upheld the “guilty but mentally ill” verdict in the trial of Jamie Wilson, a mentally disturbed young man who was found guilty of killing two school children and wounding eight others in a 1989 shooting rampage at the Oakland Elementary School.
Thirty years later, Wilson, now 50, is still on South Carolina’s death row, awaiting execution.
It may be a long time coming. The state has no lethal drugs to kill Wilson, and no way to get them. The last execution in South Carolina was in 2011.