Insanity defense expected in Chesapeake slay trial

CHESAPEAKE

An unusual defense will be offered in the trial of a man charged in the year-old homicide of his Greenbrier landlady, scheduled to begin today in Circuit Court.

The attorney for Eric Spencer Baugher, 36, hopes to show jurors that he was insane because of long-term substance abuse, and therefore didn't know what he was doing or didn't know that it was wrong. He also plans to argue that the slaying of Karen Kittell was an accident in the first place.

"I have not talked to one attorney who has heard of it," A. Robinson Winn, deputy public defender, said of his planned defense of "settled insanity."

"We're going to try it. It's a documented defense in Virginia law, and I'm going to put it forward."

Kittell, 46, died Jan. 24 in the bathroom of her Thyme Trail home from a contact gunshot wound to the head. Police responded to a caller who said he had just shot his girlfriend. At Kittell's house, police arrested Baugher, a boarder. He was at times crying, incoherent and apologetic, and he told police a .40-caliber handgun had accidentally discharged, according to court records.

He also said the pair had created homemade videos depicting violence; that claim wasn't addressed at a preliminary hearing in April, although police seized videos from the home, according to a search warrant.

Attorneys have summoned dozens of witnesses for what could be a weeklong trial.

Court decisions, attorneys and "Virginia Criminal Law and Procedure," a practitioner's manual by John Costello, a George Mason University law professor, recognize the defense of "settled insanity," developed through decisions in past court cases.

Several experienced attorneys, including Winn, said they also don't know of any cases in Virginia where it has been successful.

"Settled insanity" requires a showing that long-term excessive drinking or drug-taking has permanently damaged the mind, rendering people incapable of controlling themselves, knowing what they're doing, or knowing that what they're doing is wrong, even when they're not drunk or high - insane, for legal purposes, and therefore not guilty.

"If everything lines up, you have it," said David Heilberg, a Charlottesville attorney and president of the Virginia Association of Criminal Defense Lawyers.

"But it's only a sub set of an insanity defense."

Which is rare in itself. Heilberg likened settled insanity to battered-spouse syndrome, a form of the self-defense argument. Both require showing evidence going back in time to persuade a judge or jurors to excuse otherwise criminal behavior.

The authorities agree that Virginia law is strict: Voluntary intoxication generally is no defense to committing a crime. An exception is using it to show that people were so incapacitated that they couldn't premeditate a murder.

"Virginia is really big on personal responsibility," said David P. Baugh, a Richmond attorney who's one of the state's designated defenders of indigents charged with capital crimes. "If you voluntarily did the drug and fried your head... you did it, and you have to pay the price for it."

As with either side of any trial, there also are tactical considerations. To assert settled or any other form of insanity, one might have to admit to committing the acts.

"Juries don't like to hear about mental illness," Baugh said. "They view it as a way out."

Matthew Bowers, (757)

222-5221, matthew.bowers@ pilotonline.com