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Sanity on Trial 

Two paths diverge in court: One leads to a mental hospital, the other state prison

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Through a certain lens, James Everett Dunlap was in the midst of an incredible tale of personal redemption. He'd apparently clawed his way back from the depths of mental illness and a crippling psychosis. He'd overcome a years-long methamphetamine addiction and was proudly 26 years sober. He started a successful construction business, relocated to his ancestral homeland and was looking to give back. In November 2015, in a landslide, he was elected chair of the Yurok Tribe, the largest Native American tribe in California with some 5,000 members, having run as a reform candidate who pledged to end nepotism and corruption in tribal government.

But that was all before March 14, when word traveled like a brushfire through Yurok tribal members' Facebook pages that there was something horrible in Dunlap's past. By the next day, word was out: Almost 30 years earlier, high on methamphetamine, Dunlap had stabbed his infant daughter to death and told police he'd "sacrificed her to God." Shortly after 2 p.m. on March 15, the Yurok Tribe sent out a press release announcing that Dunlap had resigned "following the discovery of information from his past."

The public reaction to Dunlap's history was swift and largely brutal, with anonymous commenters calling him a "baby killer" and clamoring for his immediate execution. In the tribe's press release, Tribal Vice Chair David Gensaw said it was a "sad and frustrating day for the Yurok people" and expressed hope that the good work of the tribe's more than 300 employees wouldn't be "overshadowed by this situation."

What received little attention, however, at least publicly, was the fact that Dunlap had been acquitted of murdering his 3-month-old baby girl. Yes, he'd killed her — stabbing her with a buck knife as she lay in a crib at a relative's home in San Mateo — but a judge had found he couldn't be held legally culpable because he was insane.

Dunlap's case — as well as two others locally that involve heinous, high-profile deaths — underscore the high stakes of California's not guilty by reason of insanity laws: On one side lies lengthy or lifetime incarceration; on the other, treatment, rehabilitation and potential reintegration into society. The cases also highlight a wide gap between California law, which treats insanity defenses as moral imperatives, and public sentiment, which largely views them as technicalities and impediments to justice.


Just three days
after Dunlap's resignation, Gary Lee Bullock, 46, sat dressed in a burgundy shirt and black slacks next to his defense attorney in the Humboldt County Courthouse as a prosecutor laid out the case against him. In often graphic detail, the prosecutor described what might be the most infamous killing in Humboldt County's modern history.

Jurors listened intently as Deputy District Attorney Andrew Isaac said evidence would show them convincingly that Bullock broke into the rectory of St. Bernard's Catholic Church and beat pastor Eric Freed — a beloved local priest — to death before stealing his car. What jurors didn't hear that day, however, is that Bullock has entered dual pleas of not guilty and not guilty by reason of insanity.

Under California law, when someone pleads not guilty by reason of insanity (NGRI), his or her trial is split into two phases, the first designed to determine if he or she committed the alleged crime or crimes, and the second to determine if he or she was legally sane at the time. The insanity defense — or the concept that someone whose crime is a symptom of their mental illness can't and shouldn't be held criminally accountable, at least not to the same degree as another defendant — has deep historical roots that predate our justice system.

While the concept of insanity defenses stretches all the way back to ancient Rome, the first modern incarnation was born in the 1500s with an English treatise that held that if a "madman or a natural fool, or a lunatic in the time of his lunacy" kills someone, he or she cannot be held criminally accountable. This was formalized in the 18th century with what became known as the "wild beast" standard because it held that a defendant who didn't understand his or her actions any more than "an infant, a brute or a wild beast" couldn't be found criminally culpable.

That standard was formalized further in 1843 after the acquittal of Daniel M'Naghten, a Scottish woodturner who was charged in London with the murder of Edward Drummond, a man he'd mistaken for then British Prime Minister Robert Peel, who M'Naghten was sure was plotting against him. M'Naghten shot Peel at point-blank range in the back, and Peel died five days later. At trial, the defense produced a string of medical witnesses who testified that M'Naghten's delusions had deprived him of all restraint and control. He was acquitted.

In the uproar following the acquittal, the House of Lords — the upper house of British government — solidified what came to be known as the M'Naghten standard, stating that defendants are to be presumed sane. For a defendant to be deemed insane, the defense must prove that at the time of the alleged act he or she was "laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act" or that he or she didn't understand the act was wrong. Thus a legal standard of insanity was born. (M'Naghten himself later died in an asylum at the age of 52.)

In the ensuing centuries, the M'Naghten rule largely held, though it gave way in the United States to the Model Penal Code test in the 1950s. The Model Penal Code test was viewed as a broader, more expansive test of insanity than M'Naghten, having been crafted by a group of prominent medical and legal professionals. This test placed the burden on the government to prove beyond a reasonable doubt that a defendant was not insane and that he or she had a "substantial capacity to appreciate the difference between right and wrong" and the ability to control his or her actions.

That rule held for several decades until the trial of John Hinckley Jr., who'd attempted to assassinate President Ronald Regan on March 30, 1981. (Hinckley was obsessed with actress Jodie Foster, and attempted the assassination in order to gain her notice.) When Hinckley was found NGRI in 1982, the national backlash was fierce and within a month Congress was working on revising federal insanity defense laws. In the eight-year period after Hinckley, four states — Montana, Kansas, Utah and Idaho — abolished the insanity defense altogether and most others restricted its use. In California, the burden of proof has shifted to the defense, which must show it's more likely than not that a defendant both didn't understand the "nature and quality" of his or her act and wasn't able to distinguish between right and wrong.

Despite popular sentiment that insanity defenses are a frequent desperation play for defense attorneys who see mounds of evidence stacked against their clients, statistics indicate they are extremely rare. According to a report by CNN, insanity pleas occur in less than 1 percent of criminal cases and, even when a defendant does enter a NGRI plea, 70 percent withdraw it before trial after seeing the results of court-ordered psychiatric evaluations. Of insanity cases that do make it to a jury, only about 26 percent result in a finding that the defendant was legally insane at the time of the crime, according to the report.

In Bullock's case, if the jury proves swayed by the seeming mountain of evidence before it — prosecutors have introduced surveillance footage of Bullock on the property as well as a host of physical evidence placing the defendant at the crime scene — and finds Bullock guilty, the case will move on to the sanity phase. Then, the jury will hear from psychiatrists — some appointed by the court and potentially others retained by the prosecution or the defense — who will testify on Bullock's mental state on the night Freed was killed.

Michael Perrotti, a psychiatrist based in Yorba Linda, specializes in the subject of sanity and has a lengthy history serving as both a defense and prosecution expert witness. He said judging whether someone was legally insane at some past moment in time can be tricky.

To make such a determination, Perrotti said he tries to gather as much data as possible. First and foremost, a psychiatrist first administers an "objective test," in which the defendant is asked to answer a series of questions, some of which are designed to weed out folks trying to fake an insane state. But ultimately this test relies on self-reporting, Perrotti said, and it can't be relied upon as the sole source of a diagnosis. So Perrotti also reviews evidence in the case, the defendant's mental health, medical and neurological histories. Additionally, he said he likes to review the case file, paying special attention to whether the defendant did anything that displays a conscious awareness of guilt, like destroying evidence or otherwise trying to cover up the crime. Any statements from people who interacted with or observed the defendant around the time of the alleged crime can also be very telling, Perrotti said.

Ultimately, the psychiatrist said there's no gray area — he renders an opinion that someone was either legally sane or not. "The bottom line is you have to have multiple sources of data and then ask, "Does the data support their knowledge of right and wrong? The criminal law is that an act in and of itself doesn't constitute a criminal offense. That's why you have to look at mental state."

If Bullock's case makes it to the sanity phase, it will be up to a jury to decide whether he was sane or not when Freed was killed. Like the trial itself, the verdict has to be unanimous: sane and Bullock is sent to state prison; insane and he's committed indefinitely to a state mental hospital.

Claudia Pedreros has spent the last three years of her life involuntarily committed at Napa State Hospital, a 1,200-bed facility that sees about half of its patients come from NGRI verdicts.

Pedreros, a Chilean woman who'd been living in McKinleyville, was found naked and disoriented walking along Highway 3 in a remote area of Trinity County near Coffee Creek on May 20, 2011. She and her 2-year-old daughter, Sophia, had been reported missing hours earlier but, when she was found, Pedreros initially claimed no knowledge of having a daughter or a husband, or how she wound up some 130 miles from her home. The following day, search and rescue crews pulled Sophia's lifeless body out of the Trinity River and an FBI agent interrogated Pedreros for hours, during which she made a host of conflicting statements including some incriminating ones.

Almost immediately, the Trinity County District Attorney's Office charged Pedreros with murder, saying she'd walked her toddler daughter into the river and drowned her. But in the subsequent trial, Pedreros' attorney, Russell Clanton, argued that the FBI agent took advantage of what he called Pedreros' "bizarre" mental state to coerce a confession. Sophia's death, he argued, was a terrible, tragic accident. Jurors ultimately agreed, acquitting Pedreros of murder charges but finding her guilty of involuntary manslaughter. The same day, jurors returned NGRI verdicts on all counts and Pedreros was soon transferred to Napa State Hospital for treatment.

Once a defendant is deemed NGRI, he or she is largely removed from the criminal justice system and the focus shifts to treatment and rehabilitation, the ultimate goal being a reintroduction into society. Treatment includes everything from intense psychotherapy and psychotropic medication to peer group counseling and re-socialization regimens. More advanced patients can take vocational classes and prepare personalized "relapse prevention plans."

The hospital is required to provide the trial court with reports on the patients' status every six months, and patients' attorneys can request annual reviews to lobby the court for their clients' release. California law prohibits those found NGRI from being involuntarily committed in a state hospital for longer than the maximum sentence they would have received criminally, though it does allow a process for state psychiatrists to petition the court to hold patients indefinitely if there's evidence they would pose a danger to the public if released.

The post-acquittal treatment of NGRI defendants exists in a kind of quasi-criminal limbo. In the eyes of the law, they are supposed to be patients being treated for a mental illness. But it's their original trial court that retains authority over their eventual release, meaning their mental health is never really seen independently from the act that landed them in a criminal court. And often the same judge that heard gruesome evidence of the acts underlying their cases is the one to decide if they are fit for release.

The situation sometimes creates strange dynamics. Take Pedreros' case as an example. She appeared in Trinity County Superior Court on March 25 for a judge to consider ordering her released to the supervision of the California Department of State Hospital's Conditional Release Program (CONREP), a crucial and final step toward her being deemed "restored to sanity." Doctors from the state hospital testified that Pedreros was doing well and posed little risk, and her defense attorney supported her release. Trinity County District Attorney Eric Heryford — who took office after Pedreros NGRI acquittal — didn't oppose Pedreros' request, but in a subsequent interview seemed uneasy with the idea of her being released from her involuntary hospital commitment.

"At this point, it really comes down to what the doctors say," Heryford said. "Frankly, it kind of puts my office in an awkward spot. When we did the criminal case, at that time we didn't believe she was insane and argued as much. Now, we have to argue that she's still insane? Really, when we get to this point I think it's appropriate to have the doctors give their opinion and and just follow the appropriate law."

Prior to being fully deemed "restored to sanity" and released back into the community, a NGRI patient must be placed under CONREP supervision for one year, so doctors can monitor how he or she functions outside the hospital setting: whether the patient is able to keep appointments, consistently take medications and generally care for his or herself without posing a risk to others. The last part is supposed to be the driving factor in whether a judge decides to release a NGRI patient, whether it be to CONREP supervision or outright.

In addition to performing sanity evaluations for criminal proceedings, Perrotti, the Yorba Linda psychiatrist, also does pre-release risk assessments. These are far different, Perrotti said, as the goal is to determine how much risk there is in releasing someone back into the community without the structure and oversight that's stabilized him or her. "No psychological test can predict the future," he said. "It's not a score, it's not an eight out of 10. It's much more complicated than that."

Perrotti said he analyzes what he deems static factors, or things that don't change over time, like a patient's education, upbringing, gender and any debilitating cognitive injuries. Then, he said, he looks at dynamic factors, or things that do change over time, like a patient's substance abuse patterns, psychiatric progress, medications and treatment outcomes. He looks at neuro-psychological tests, violence risk assessments, forensic interviews and therapy performance records. And, ultimately, he makes a recommendation. "It involves many different types of analysis," he said.

For Pedreros, Heryford said the experts have weighed in, recommending her release to community supervision. Clanton is now working on figuring out if he can find her a mandatory community supervision program in her native Chile. She's due back in court next month.

In the weeks after James Everett Dunlap's resignation, a flurry of posts have appeared on Yurok tribal members' Facebook pages calling for a more through vetting of candidates for tribal office. But the tribe could have run Dunlap's fingerprints and the death of his daughter never would have shown up.

Because NGRI verdicts are technically acquittals, they wouldn't show up on the kind of Livescan fingerprinting service provided by the California Department of Justice. And, because the incident happened almost 30 years ago, there is virtually no record of it on the Internet, at least there wasn't until the allegations resurfaced this month.

In an interview with the Lost Coast Outpost, Dunlap said he'd told tribal officials that he'd been convicted of second degree murder in the past but found not guilty by reason of insanity. But, he said, he didn't tell them the "gory details." It's those details that render a heinous act simply unimaginable, and likely helped cement his NGRI acquittal.

According to a story in the San Jose Mercury News, Dunlap, then 30, was visiting a relative in San Mateo, having arrived at about 2 p.m. on Sept. 9, 1988 with his infant daughter, Brittaney, her mother and another child. He was acting erratically, and it would later be determined he was addicted to methamphetamine, on a heavy dose of the drug and in the midst of a psychotic break. He went upstairs to where his daughter was sleeping in a crib and stabbed her with a Buck knife. When police arrived at the residence a short time later, Dunlap "was lifting the girl over his head and yelling out that he had sacrificed her to God," according to the news report.

San Mateo County District Attorney Stephen Wagstaffe remembers Dunlap's case well, as he personally handled it as a relatively young prosecutor. He said the case stands out as one of the most tragic he's seen because of the age, innocence and defenselessness of the victim. Plus, he said, some images from the testimony still haunt him.

"You just realized that, obviously, he had mental health issues and a serious addiction to drugs," Wagstaffe said, his voice trailing off. "But that little baby, and the scene of him actually coming out of the house with the knife still in the body of that baby and holding her up to the sky."

Wagstaffe said he and Dunlap's defense attorney agreed to have a bench trial in the case, meaning they agreed to have a judge act as jury in the case, and the judge found Dunlap guilty of second degree murder. But when it came to the sanity phase, Wagstaffe said there was no argument to make. A total of five psychiatrists — two appointed by the court, two by the defense and one picked by Wagstaffe — all found Dunlap was insane at the time of the killing, saying he had a "major mental illness complicated by drug use."

He was committed to Atascadero State Hospital, and Wagstaffe said he was assured Dunlap would "be in for a long, long time." Consequently, the prosecutor said he was shocked three years later when, in 1993, he was called to a hearing where numerous state psychiatrists said Dunlap was restored and recommended him for community release. Two years later, Wagstaffe said he heard more glowing reviews and Dunlap was deemed fully "restored to sanity" and released a completely free man. "I was basically compelled to rely on what the hospital had to say," Wagstaffe said, explaining that he didn't oppose Dunlap's release and that by getting off drugs and onto proper medications, Dunlap seemed to make a remarkable turnaround. He even expressed deep remorse for Brittaney's death.

It appears Dunlap has remained on the right side of the law since his release in 1995. Still, it's a little bit difficult to pin down exactly what he's been up to. In a short bio written for his campaign for tribal office, Dunlap states that he found a career in construction and started his own company. He states that he was president of the All Indian Boarding Schools Association from 2001 until 2006, though Cindy LaMarr with the Capital Area Indian Resources Inc., which worked closely with the association for decades, said she had no recollection of Dunlap holding the position. If he did serve in the role, she said it would have been in name only during the association's last years.

Similarly, Dunlap says that he helped form programs for high-risk youth with the Sacramento Sheriff's Office, the San Juan School District and Kaiser Hospital, but officials contacted by the Journal at those entities checked around and couldn't find anyone who recalled having worked with a James Dunlap. (All conceded though that, without an exact program name and with the staff turnover that comes with time, it's entirely possible Dunlap had some involvement that wasn't recorded or recalled.) Finally, Dunlap states in his candidate statement that he was the chair of the board of directors for Drug and Alcohol Detox and Treatment Services, though the Journal was unable to find any organization by that name.

While Dunlap maintained to the Outpost and other media outlets that he informed the tribe of his criminal past, tribal officials haven't confirmed that other than to say in a statement that all candidates for office undergo a background investigation. Neither Dunlap nor Yurok officials returned calls and emails seeking comment for this story, and other tribal members declined to be named discussing the situation. Consequently, it's hard to say what Dunlap was thinking when he ran for office and whether he feared his past would become public knowledge within the tribe.

In his interview with Outpost, Dunlap maintained he's a changed man and feels his past is irrelevant "at this point." But to tribal members, it clearly is not, as the backlash when the news became public was fierce and swift. And that's not an anomaly, as it's been true of M'Naghten, Pedreros, Hinckley and just about every other high-profile killer acquitted by reason of insanity.

In a phone interview from his Weaverville office, Heryford listened intently as he was informed for the first time of Dunlap's story, the gruesome killing of his infant daughter, his restoration, his election and ultimately his resignation. Whether it's a matter of popular sentiment not having caught up with the law, of justice deterred by a technicality or a lack of true understanding of mental health, Heryford didn't seem surprised to hear Dunlap had been asked to step down from his post due to news of his acquittal almost three decades ago.

"Some things," he said, "you just never really come back from."

Editor's Note: This story was updated from a previous version to correct inaccurate information about the jury in Bullock's trial. Jurors do know they are hearing a bifurcated trial, and that Bullock has entered dual pleas of not guilty and not guilty by reason of insanity.

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