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Confusion Over Insanity Defense Leads One Jury to Issue Two Verdicts in Triple Murder

by Christopher Zoukis

A jury’s decision that a defendant on trial for murder was mentally ill but should go to prison led a judge to initially withhold judgment in the case.

Dan Popp, 41, was tried in November 2017 for the murders of Phia Vue, Mai K. Vue and Jesus R. Manso-Perez. The jurors saw video evidence of Popp’s erratic behavior in a police vehicle and during interrogation; they also heard from two court-appointed mental health experts, both of whom testified that Popp suffered from bipolar disorder and schizophrenia. According to the experts, Popp was under the delusion that his victims were robots intent on harming children when he killed them. The experts opined that Popp met the standard for Wisconsin’s insanity defense.

But the district attorney reminded the jury that the ultimate decision as to Popp’s mental state was up to them.

According to the Milwaukee Journal Sentinel, the initial verdict form returned by the jury indicated they found Popp to be mentally ill, and that his illness prevented him from knowing his actions were wrong or resisting them. The verdict tracked Wisconsin’s definition of not guilty by reason of insanity, but Milwaukee County Judge Jeffrey Conen apparently was not convinced. After meeting with the attorneys, he sent the jury back with a new verdict form.

This time the jurors came to a different conclusion. Popp was mentally ill, they decided, but he could have known the murders were wrong or stopped himself from killing the victims. According to the Journal Sentinel, jury foreman Jerry Biggart later said the jury wanted Popp to go to prison, not to a secure mental hospital.

“None of us have ever dealt with this before because these NGI [not guilty by reason of insanity] trials rarely go to a jury,” the judge stated.

Popp’s attorney, Christopher Hartley, indicated he would challenge the second verdict.

“I think the second verdict is null and void,” he said. “My motion will be to accept the first verdict, and if that’s not granted, I’ll have to argue against the second.”

The confusion in Popp’s case illustrates the difficulty that the judicial system has in grappling with the insanity defense. Vanderbilt University law professor Christopher Slobogin told NPR there are several tests for insanity used across the country. And expert psychiatric witness Jeffrey Smith said that often neither the test nor the evidence is clear to the jury.

“A psychiatrist doesn’t have an X-ray that can show clearly someone has a broken bone,” Smith observed, adding, “it’s a confusing situation for juries.”

The National Alliance on Mental Illness (NAMI) advocates for clarity in cases where criminal sanity is determined by a jury. According to a NAMI policy statement, “Standards for determining whether someone meets the criteria for insanity should be based on the current scientific knowledge about mental illness.” Perhaps more importantly, jurors need to know what not guilty by reason of insanity actually means.

“NAMI believes that juries should be informed as [to] the consequences of each verdict as they apply specifically to defendants with mental illness,” the policy statement read. “Jurors should understand that a verdict ‘not guilty by reason of mental illness’ does not result in the defendant being immediately released to once again pose a danger to society.”

The inconsistent verdicts in Popp’s case were re-examined in January 2018, and the court denied requests for a new trial or for Popp to be sent to a mental hospital. The following month, Popp was sentenced to life in prison without parole – where, most likely, he will not receive the mental health treatment he apparently needs. 



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