Lawyers say insanity verdict could hinder new charges against Hinckley in Brady’s death

Jurors in 1982 deliberated John W. Hinckley Jr.’s fate for 24 hours over four days before concluding he was insane when he shot James S. Brady during an assassination attempt that also wounded President Ronald Reagan and two others in the District.

That controversial decision — which sparked calls for abolition of the insanity defense — might be the biggest obstacle to pursuing new charges against Hinckley after a ruling that Brady’s Aug. 4 death was a homicide, resulting from the shooting 33 years ago.

In six weeks of testimony in 1982, defense experts argued that Hinckley was delusional and driven to kill the president, while the prosecution said he was merely seeking fame.

Jurors sided with Hinckley, and their conclusion could be hard to undo.

“The insanity decision should stand,” said Daniel Zachem, a criminal law professor at American and Catholic universities, and a former assistant U.S. attorney in the District. “The government had a full and fair opportunity to litigate that at trial. They are precluded from relitigating that again.”

James Brady, the former press secretary to President Reagan, has died. Current White House Press Secretary Josh Earnest reflected on Brady's legacy during Monday's daily briefing. (The Associated Press)

Friday’s surprise ruling by a medical examiner in Virginia is forcing D.C. prosecutors to make a difficult decision that is sure to raise controversy no matter the outcome, and it could be clouded by political considerations and pressures from law enforcement and others. Even if prosecutors weighing the complex legal issues decide they can file a new charge against Hinckley, they will then have to confront the question of whether they should. Would it be prudent, fair and a wise use of resources? Would it be viewed as revenge to end Hinckley’s sojourns to his mother’s house in Virginia?

A spokesman for the U.S. attorney’s office in the District declined to comment on internal discussions. Any decision would most surely involve consultations with Brady’s surviving relatives, including his wife Sarah, who joined her husband’s long campaign for gun control.

A representative of Brady’s family said “they would totally respect whatever the prosecutors decide.”

Joseph E. diGenova, who was a supervisor in the U.S. attorney’s office when Hinckley was tried, said the medical examiner’s ruling offers authorities a fresh opportunity to revisit what he contends was a bad outcome in 1982, one that led to a gradual extension of Hinckley’s freedom.

Hinckley is allowed to spend as many as 17 days a month with his mother, away from St. Elizabeths psychiatric hospital in Southeast Washington.

“Anyone who tries to nullify national election with a bullet should never see the light of day,” said diGenova, who later became U.S. attorney for the District and fought against allowing Hinckley’s leave. He said he would expect the Secret Service to privately lobby prosecutors to file a murder charge. Regarding the insanity finding, he said “a different jury could reach a different conclusion.”

But Hinckley’s attorney, Barry Wm. Levine, said the insanity finding is a “finding of fact, and it will apply forever. Nothing can change that and surely not Mr. Brady’s death.” He added, “I believe that no prosecutor who understands these issues would bring a case, nor would the Justice Department allow him to.”


John Hinckley Jr. arrives at U.S. District Court on Nov. 18, 2003, in Washington. Hinckley was in court to request he be allowed to visit his parents without supervision. (Evan Vucci/AP)

Most legal experts agree that double jeopardy, which bars a defendant from being charged twice for the same crime, would not apply in this case, though some said it could be an issue raised in court.

The U.S. Court of Appeals for the D.C. Circuit ruled in 1987 that a man convicted of assault with intent to kill — one of the charges Hinckley faced — could be charged years later with murder because the “events necessary” to charge murder did not exist until the victim died.

In that same ruling, the court abolished the District’s year-and-a-day provision, which prohibited murder charges in deaths that occurred 367 or more days after the wounds were inflicted. But the judges refused to make the ruling retroactive, saying to do so would be unfair. Levine said that be believes the year-and-a-day law is applicable and would prevent further prosecution of his client.

D.C. authorities weighing the case consider the insanity finding a hurdle to filing a murder charge, according to one official.

“His mental condition at the time of the shooting has already been established and litigated extensively,” said an official in the U.S. attorney’s office, speaking on the condition of anonymity because prosecutors are reviewing their options. “At the moment of the shooting, he was deemed insane. That never changes.”

If the prosecution does move forward, legal experts said authorities could also face a difficult task of proving the decades-old shooting killed Brady. Defense lawyers are likely to argue that some “intervening” medical ailment rather than the gunshot led to the death. Levine said there are an “infinite number” of possible “intervening causes” he said he would raise.

“He lived for 33 years,” said Roscoe C. Howard Jr., a former U.S. attorney for the District. “Was the shot the proximate cause of his death or was his death inevitable because he just got older?”

Andrew C. White, a former assistant U.S. attorney in Baltimore, said a prosecutor “would have a Mount Everest-like task of linking Hinckley’s actions back in 1981 to a direct cause of death in 2014.” He said authorities “need to temper enthusiasm with reality,” adding that though it was an attempted to kill a president, Hinckley “was still prosecuted to the fullest extent of the law. The U.S. attorney would be equally insane to revisit this matter.”

Michael C. Dorf, a constitutional law professor at Cornell University, said at the time charges were filed against Hinckley, “it had to be understood that Brady’s injuries were serious enough that some day they might rob him of a few extra days of his life. And yet the government chose to bring the case when it did.”

Still, Dorf said the medical examiner’s ruling probably took authorities by surprise. “I don’t think this occurred to anybody,” he said.

Rachel Weiner contributed to this report.

Keith Alexander covers crime, specifically D.C. Superior Court cases for The Washington Post. He has covered dozens of crime stories from Banita Jacks, the Washington woman charged with killing her four daughters, to the murder trial of slain federal intern Chandra Levy.
Comments
Show Comments
Most Read Local