The two women accused of slaying two toddlers in an attempted exorcism in Germantown face charges of first-degree murder and attempted first-degree murder, but haven’t been arraigned yet.
Lawyers for the women, Zakieya L. Avery and Monifa D. Sanford, said it is too soon to discuss their clients’ cases in detail, including the possibility of them pursuing a “not criminally responsible,” or insanity, defense.
During bail hearings for the two women this month, prosecutors said both women have a history of mental illness.
According to Montgomery County State’s Attorney John McCarthy, Avery told police that she once was involuntarily committed for psychiatric care. Sanford told police she has tried to commit suicide twice.
“The state’s attorney’s statements present a pretty compelling case for a lack of criminal responsibility,” said David Felsen, Sanford’s attorney, before declining to discuss his client’s case further.
Byron L. Warnken, a University of Baltimore law professor, said that obtaining a “not criminally responsible” verdict is a “very difficult hurdle” for defendants.
In Maryland, if a jury finds a person guilty, and the defendant’s lawyers can establish “not criminally responsible,” or NCR, the defendant cannot be punished, he said.
“You can put me away, where you put other involuntarily committed people ... and I might get out in one-tenth of the time, or 10 times longer, [than a convicted criminal]. It has nothing to do with punishment. It has to do with, ‘Do I pose a danger to myself, to others and to the property of others?,’” Warnken said.
In a 911 call on the evening of Jan. 16, a neighbor told police that Avery left one of her children in her car for about an hour. During the call, Avery came out of her house and accosted him.
In the call, which police released to the public, the caller told dispatchers Avery was “responding to internal stimuli.”
The caller explained that Avery appeared to be talking to herself. During Avery’s bail review, McCarthy said the women told police they had seen demons possessing the children and turning their eyes black.
Avery has been transferred to a secure psychiatric hospital. Before her case can go forward, mental health experts have to evaluate whether she is legally “competent,” or understands the charges against her and can assist in her defense.
A similar evaluation has been ordered for Sanford.
Dr. Neil Blumberg, a forensic psychiatrist at the University of Maryland School of Medicine, said that when defendants might have mental illnesses, health officials check if there’s a history of mental illness or drug abuse, and learn about their early development.
In cases in which mothers kill their children and there’s no history of being abused or abusing children, most are psychotic or responding to hallucinations and delusions, he said.
If Avery and Sanford are found not competent, they will go through a process to “restore” them to competency, lawyers said. That would involve medication and other treatment.
Judicial proceedings would continue after they finally reached competency, McCarthy said. The length of that process varies widely, possibly taking months or years, said Steven D. Kupferberg, a local attorney.
Once restored to competency, the women would be evaluated by a state psychiatrist to determine whether they were “not criminally responsible” when the accusations took place.
In that case, their defense attorneys would need to prove that their clients are either unable to appreciate the criminality of their conduct or unable to conform their conduct to law, said Paul Kemp, a local defense attorney. Then, they would plead guilty, but not criminally responsible.
“The only cases where the defendant is usually found to be NCR is where they are separated from reality, or psychotic,” Kemp said.
Waging an NCR defense requires a defendant to admit to the facts of the case.
“The initial burden is on the defendant. ... You have to come in with an opinion [of NCR] from a psychiatrist,” Kemp said.
“The hardest thing is you don’t have a client on the other end of the line helping you when they really have that condition,” he said.
Scott Shellenberger, state’s attorney for Baltimore County, would not comment on the charges against Avery and Sanford. Speaking of NCR cases generally, he said: “The problem is whenever someone does a particularly heinous act, it’s normal for regular folks to say, ‘They must be crazy,’ but that doesn’t mean they weren’t criminally responsible.”
One way evaluators try to determine that is if a defendant tries to conceal the crime.
“That’s best way to know — if they did it, and tried to hide it, that’s the best indication they knew what they were doing was wrong,” Shellenberger said.
Rick Finci, a local attorney who has handled many NCR cases, said NCR pleas “are not extremely popular defenses.”
The reason, he said, is that “jurors are scared of these people, the people who are so severely mentally ill and have not been treated and act out violently.”
Even if an NCR case goes to trial, there is a jury to convince, Kupferberg said.
Cases requiring an NCR defense are usually so serious, people look at them with a “fine-tooth comb and magnifying glass,” Kupferberg said.
“And their sympathies won’t be with the defendant. They will be with the victim, and generally, that’s what makes the most difference,” he said.