At a recent court hearing, Timmy Kinner Jr.’s defense attorneys spoke publicly for the first time about their concerns for their client’s mental health.

If Kinner had been arrested in almost any other state in the country, he would have the option of raising an insanity defense — meaning he did not understand what he was doing when he stabbed nine people at a Boise apartment complex in June, nor did he know it was wrong. A successful insanity defense often leads a defendant to commitment in a hospital, rather than prison. At that hearing in September, attorneys made no mention of Kinner being insane, but they did say they were worried about his ability to understand the court proceedings. Public defender Anthony Geddes told 4th District Court Judge Nancy Baskin about defenders’ difficulty working with Kinner.

“There are days when you can have a fairly normal conversation, and there are days when it’s anything but normal,” Geddes said. “Very concerning behavior, and very bizarre communication.”

Kinner, originally from Tennessee, was homeless by the time he came to Boise. Prosecutors say he stayed with a woman at an apartment complex, where on June 30 he’s accused of stabbing nine people — all of whom were refugees, six of whom were children. One of them, Ruya Kadir, who was celebrating her third birthday that night, later died of her injuries.

Kinner, Geddes said, had a history of paranoid delusions. According to a motion filed in the case, he told police the night of the stabbing he didn’t want to hurt any children, but said he felt “crowded” and “ambushed.” He told a staff member in the Ada County Jail he felt other inmates had far too much knowledge of his case. There were other incidents too, entwined with his criminal record across multiple states, and Geddes said attorneys are working to piece together his mental health history.

Currently, a psychiatrist is evaluating Kinner to determine if he is mentally competent to stand trial.

Being competent for trial is different from being legally sane; to be competent, Kinner only has to understand the court proceedings and assist his attorneys in his defense. If he is found competent, his case will move forward like any other. If he is not found competent, he will be sent to a state hospital until he is deemed competent for trial, at which point he will return to court.

Sanity vs. Competency

The legal difference between sanity and competence. 

Meanwhile, prosecutors filed a notice they would seek the death penalty against Kinner, who is charged with, among other things, first-degree murder.

The tangled case has cast Idaho’s state laws regarding the criminal justice system and the mentally ill into a stark light. Although the insanity defense is used in less than 1 percent of all criminal cases in the country, it’s still available in every state except Idaho, Kansas, Montana and Utah. And it will likely remain that way for the foreseeable future — the U.S. Supreme Court six years ago turned down an opportunity to rule on Idaho’s law.

While Idaho does allow for a “guilty but insane” verdict from a jury, it’s still more punitive than other states’ “not guilty by reason of insanity” defenses.

What’s more, although there is a faction of activists working for change, Idaho also does not exempt people with a “serious mental illness” from punishment by death, which means if Kinner were convicted, he would face the death penalty regardless of any evidence of mental illness.

No insanity defense

The man responsible, in large part, for the 1982 repeal of Idaho’s insanity defense is David Leroy, who served as Idaho’s attorney general from 1979 to 1983. Prior to that, as Ada County’s prosecuting attorney in the 1970s, Leroy said he saw the insanity defense abused in an array of cases.

“It was being abused all over the country and in Idaho,” Leroy said. “It was being offered as a defense even in traffic cases.”

An insanity defense requires expert testimony from mental health professionals who are qualified to give their opinions to the jury as to a defendant’s mental health. Such professionals do not offer their services in court for free. It also means prosecutors must hire their own expert witnesses to impeach those of the defense. Taxpayers used to foot the bill when county public defenders and prosecutors argued cases involving an insanity defense. Leroy wanted to change that, and in the early 1980s he went to the Idaho Legislature with his proposal which, he remembered, received bipartisan support at the time.

“We greatly reduced the number of questions before jurors into the something more practical (that) laymen can decide,” he said, adding juries no longer had to choose between “dueling experts.”

To make the new law constitutional, Leroy said, the Legislature added a clause in the statute imploring judges to consider “any state of mind which is an element of the offense” — thus, although defendants in Idaho cannot claim they were insane at the time of an offense and so did not understand what they were doing, judges are still instructed to consider a person’s mental health in crafting a sentence. Those convicted still go to prison, but a judge can order they receive some sort of mental health treatment, as well.

“We still have a mentally criminally ill category,” Leroy said.

But Shaakirrah Sanders, a professor of law at the University of Idaho, points out there isn’t much oversight on judges.

“It’s not clear how often that (consideration of mental health) happens, especially with the number of cases that plead out instead of go to trial,” Sanders said. “It’s not clear how judges look at (mental health), in terms of a qualitative measure.”

With the vast majority of defendants never going to trial, Sanders said a judge might not know the extent of their mental illness.

‘Continually prosecuted’

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Kathy Griesmyer, of the ACLU of Idaho, said she has concerns about Idaho’s lack of an insanity defense, as well. If a person is found unfit to stand trial — meaning they cannot assist defense attorneys in their own defense — they are placed in the custody of the Idaho Department of Health and Welfare and treated until they are considered fit to stand trial. After that, Griesmyer said, they return to court to face criminal charges like other defendants. It locks them in a cycle from which escape is difficult.

“We just see folks continually prosecuted,” Griesmyer said.

An insanity defense, she said, would give them an out — it would place them on an alternative path more focused on health care and treatment which, Griesmyer believes, would be more effective.

“The insanity plea provides a legal out for folks,” she said.

The growing number of mentally ill people in the criminal justice system warrants that defense, she said. She cites the fact that included in Idaho’s proposed $500 million prison expansion package are 500 prison beds specifically designated for the mentally ill.

Sanders also appeared concerned about the number of mentally ill people in the criminal justice system. The biggest source of mental health care in Ada County, she said, is still the Ada County Jail.

Delling v. Idaho

In 2012, the U.S. Supreme Court denied a chance to review Idaho’s unique status as a state without an insanity defense. The case involved James Delling, a paranoid schizophrenic who in 2007 became convinced people he knew were trying to destroy his brain. He shot and killed two people in Idaho and allegedly tried to kill a third in Arizona. Although he understood what he was doing, he believed he acted in self-defense. Other states would have allowed Delling to plead not guilty by reason of insanity. When Delling’s attorneys argued the law violated his rights, the court rejected that argument and sentenced him to life in prison for two counts of second-degree murder.

When the U.S. Supreme Court declined to hear the case, they in effect told the lower courts their decisions would stand — something Leroy said validated the law.

“It has stood the test of time,” Leroy said.

Three U.S. Supreme Court justices — Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor — disagreed with the decision not to hear the case.

“The law has long recognized that criminal punishment is not appropriate for those who, by reason of insanity, cannot tell right from wrong,” Breyer wrote in his dissenting opinion.

He cited briefs provided by the American Psychiatric Association and a collection of criminal and mental health law professors asking the court to hear the case. He would have, he said, because he felt some concern Idaho’s law violated the 14th Amendment.

It was the last time Idaho’s law has risen to that level of scrutiny, however.

And it wasn’t the first time the U.S. Supreme Court declined to hear a case questioning a state’s lack of an insanity defense. Justices in 1994 did the same thing in a Montana case, and that state has kept its law in place ever since.

The death penalty for the seriously mentally ill

If Idaho isn’t going to allow an insanity defense, Sanders said, then she believes there should at least be some discussion about how people with serious mental illnesses are treated by the criminal justice system. A few years ago, a group of advocates asked Sanders to help bring awareness to their efforts to restrict the use of the death penalty for the seriously mentally ill. Sanders — who teaches criminal law and had discussed death penalty cases with her students — agreed. She worked with the ACLU of Idaho to help draft a piece of legislation which they expect to introduce to the Idaho Legislature this session.

In effect, the bill would change the law so a judge would have to determine if it is fair for prosecutors to seek the death penalty against those with “serious mental illnesses.” That would require a hearing during which both sides could present evidence. If a judge was convinced by the preponderance of the evidence, meaning 50 percent plus one, that a person is seriously mentally ill, the death penalty will not be imposed. That’s far different from current law. Although a jury must decide unanimously to impose the death penalty, sole power of whether to pursue capital punishment still belongs to the prosecutor.

Much of what the bill does, Sanders said, is define a “serious mental illness.” It details “active symptoms of a psychiatric disorder,” including “delusions, or fixed, false beliefs; hallucinations, or erroneous perceptions of reality; disorganized thinking; mania; or disruptions of consciousness, memory, and perception of the environment.”

Griesmyer said the bill’s supporters had planned to introduce it in the last session, but didn’t have time. The bill’s language has been sent to lawmakers now, though, and she expects it will be introduced this session.

For her, it would be a step forward in the way Idaho treats the mentally ill, but it would only be a step. She, Sanders and Leroy all bemoaned the state’s lack of resources for the mentally ill. Leroy said the state never caught up with the needs of its residents in that way.

Griesmyer is blunt about it.

“We’re so behind on so many of these pieces,” she said, “that even if there was a way for folks to move out of the (criminal justice) system, where would we send them?”

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