Can an insane person affirm his own sanity and, thereby, convict himself? 

This is one of the many vexing questions confronting a Texas jury in the so-called “American Sniper” trial.  Eddie Ray Routh, a former Marine, is accused of murdering Chris Kyle, a former Navy SEAL depicted in the Oscar-nominated film. 

Routh admits he gunned down Kyle and his friend, Chad Littlefield.  But defense attorneys insist their client was legally insane when he opened fire at a shooting range Feb. 2, 2013.   

If Routh was insane and therefore could not distinguish right from wrong the moment he pulled the trigger, what will the jurors make of this exchange the defendant had with a Texas Ranger hours later?


     Ranger:  “You know what you did today is wrong, right?”

     Routh:  “Yes, sir.”


The confession, which constitutes hearsay, is nevertheless admissible as a statement against interest (and, thus, an exception to the hearsay rule). 

Jurors will examine the question carefully.  It is a leading question.  Perhaps an insane person will always agree with any question which provides its own answer.  If asked, Routh might have admitted to killing Jimmy Hoffa.  Heck, he might have agreed to being Hoffa.  Insane people do that.

Also, the question itself is vague and ambiguous.  To what does it refer?  Killing two people?  Stealing Kyle’s vehicle?  Leading police on a chase?  Resisting arrest?  Perhaps something else entirely.  Context is important.     

If Routh’s own words are capable of finding him sane, it is ironic that Chris Kyle’s words are equally capable of finding Routh insane.  How?  As Kyle was driving to the shooting range, he texted Littlefield about the mental state of Routh, who was sitting in the backseat.  “This dude is straight-up nuts.”  

While not a clinical diagnosis by any means, Kyle’s statement is both chilling and relevant.  It could persuade jurors that even the victims were aware that their killer was mentally deranged.   

To prevail, prosecutors must prove that Routh intentionally killed Kyle and Littlefield.  But the law carves out a caveat: insane people do not have the requisite mental state to intend anything.  So, what constitutes legal insanity?  A defendant is insane if he suffers a mental disease or defect so severe he does not know right from wrong.  It is a two-part process.       

Step one is for defense lawyers to present a valid mental disorder, in this case post-traumatic stress disorder, or PTSD. 

Routh served a tour of duty during the Iraq War, although he reportedly did not see combat.  While that is a problem for his defense, even non-combat soldiers have been diagnosed with PTSD due to the stress of their service in a war zone and the fear of imminent combat.

Unlike many defendants in insanity cases, Routh was diagnosed with a mental disorder before he allegedly committed the crimes for which he is charged.  He therefore avoids courtroom claims by prosecutors that PTSD is something conjured up by clever defense attorneys after the fact. 

An insanity defense rarely prevails in a court of law. 

Step two is for the defense to convince the jury that Routh’s disorder was so severe he was rendered incapable of knowing right from wrong when he fired his gun, taking the lives of two men.  This is the essence of the trial. 

An insanity defense rarely prevails in a court of law. 

The defense will present experts who will explain to the jury that, in their learned opinions, Routh was severely psychotic or delusional.  In his mind, nothing made sense.  Driven by irrational paranoia and fear, he became insane and violent.  He thought what he was doing was right, not wrong… or neither one. 

Defense lawyers will also urge jurors to ignore their client’s confession to the Texas Ranger that he knew what he did was wrong.  He was neither competent nor qualified to self-assess.  How can an insane person judge his own sanity?  By definition, he cannot.

Instead, jurors will be told to focus on the first-hand account of Routh’s sister who saw him immediately after the shootings and who notified police.  Laura Blevins described her brother as “out of his mind” and talking about imaginary objects and countenances.  His subsequent statements to police constitute rambling, bizarre and incoherent rants about voodoo, apocalypse, anarchy and amorphous “souls”.  Had he crossed the line from mentally ill into legally insane?  

The defense argument that Routh did not understand the wrongfulness of his actions is belied by several events that occurred in the immediate aftermath of the killings.  He fled, as if he knew what he had done was wrong.  Flight is regarded in the law as evidence of “consciousness of guilt.” Sane people tend to feel and act guilty when they know they have done something wrong. 

By comparison, insane people tend to alight, not flee.  Their movements are as illogical as their irrational thoughts.  Routh tried to evade apprehension by law enforcement -- not once but twice.  Thus, prosecutors will be able to mount a compelling argument that he tried to get away with a double murder because he understood its wrongfulness and feared its consequences.

Prosecutors have their own expert psychiatrists who may concede that Routh was afflicted with a mental disorder, but it was never so acute as to deprive him of his faculties in distinguishing right from wrong.

Whenever experts clash, jurors look to other evidence for answers.  Here, there is testimony that Routh was a heavy user of marijuana and alcohol and had consumed both that tragic day.  This may offer an alternative account for his strange behavior and diminish any claim of insanity.  Under the law, it does not excuse Routh’s actions with or without an insanity plea.   

An insanity defense rarely prevails in a court of law.  It is seldom invoked because it is so difficult to prove.  The National Institute of Mental Health tracks its usage and calculates that it is raised as a defense in less than 1 percent of all felony cases.  It is successful in only a fraction of those cases.

Importantly, Texas law provides a twist: once an insanity plea is entered the burden of proof shifts.  The defense must prove Routh did not know right from wrong, and they must prove it by a “preponderance of the evidence.” This is a significantly lower level of proof than the usual “beyond a reasonable doubt.”

No one can predict what the jury will decide in the case of Eddie Ray Routh.  But if history is any guide, his chances of persuading jurors that he was insane at the time he gunned down an American hero and his friend are not good. 

To use Kyle’s terminology, Routh may have been “nuts.” But not “nuts” enough.

Gregg Jarrett is a Fox News Anchor and former defense attorney.