Insanity defense under fire from victim’s mother

Friday, Dec. 10, 2004 | 8:33 a.m.

Michael Kane's killing of a 23-year-old acquaintance resulted in Kane's commitment to the state mental asylum Thursday, a move that has the mother of Kane's victim committed to changing the law that put him there.

While under the influence of LSD in October 2001, Kane, who was 19 at the time, stabbed John Trowbridge several times while the two were listening to the radio and playing fighting video games in a house on the 5200 block of Koa Avenue, near Flamingo Road and Nellis Boulevard.

A Clark County jury acquitted Kane of the murder charge by reason of insanity. Under state law Kane will undergo treatment at Lake's Crossing, the state mental facility in Sparks. If he recovers, his case will be reconsidered by the court.

Robbin Trowbridge-Benko, wearing a button on her sweater with a picture of her dead son, said she doesn't feel the justice system failed her son.

"I feel if the system failed anyone it failed the community," Trowbridge-Benko said. "There is no justice to seek for my son anymore."

She believes the jurors either "misunderstood the law or ignored the law" when they acquitted Kane.

"If Michael Kane ever walks the streets again, the Nevada Legislature will have to answer for it," Trowbridge-Benko said.

She said she is currently working with a lobbyist from the district attorney's Victim Assistance Program to have the state's insanity defense law changed.

Trowbridge-Benko has some suggestions as to how the law could be changed. She said "maybe a verdict by law and not of fact should be decided by a judge." Another option she suggests is if the state case law "says a jury can come back with not guilty by legal insanity, maybe there should also be an option of guilty by legal insanity."

She was referring to a Nevada Supreme Court ruling that changed the way the state deals with the issue of insanity.

Not guilty by reason of insanity is a rarely used plea that was reinstated during the 2003 Legislature. The Legislature had abolished the plea in 1995, but in 2001 the Nevada Supreme Court ruled the law violated the due process rights of the defendant.

The case involved Frederick Finger, who tried to enter a plea of not guilty by reason of insanity on a charge that he fatally stabbed his mother, Franziska Brassaw, with a kitchen knife in Las Vegas in April 1996.

The District Court stopped Finger from entering that plea because it had been abolished by the Legislature in 1995. Finger instead pleaded "guilty to second-degree murder, but mentally ill." He was sentenced to life in prison with eligibility for parole in 10 years.

On appeal, Finger argued that Nevada's abolishment of insanity as an affirmative defense violated his right to due process as protected by the Eighth and 14th Amendments and the Nevada Constitution

The state's high court reasoned that barring an insanity defense could result in a person being convicted of a crime even though he lacked the mental capacity to form the intent to commit the crime. That would violate the due process clauses of the state and federal constitutions, the court ruled.

Under the Nevada Supreme Court ruling, Finger was permitted to enter a new plea of not guilty by reason of insanity and go to trial.

As for Kane, he will now be treated the same as if he was the subject of a mental competency case.

District Judge Jennifer Togliatti said there was "no possibility he would be released at this point and any discussion of a release is pure speculation."

Chief Deputy District Attorney Ed Kane, who prosecuted Kane, said every six months the court is to receive evaluations of Kane's condition.

Togliatti said if "his reports stay the same" and show he's mentally il, Kane will remain at the mental facility, but if they show "he's recovered then the matter is put back on calendar for possible review."

During opening statements at Kane's trial, Deputy Public Defender Dan Silverstein said the extent of Michael Kane's mental problems could be better understood by looking at his actions since Trowbridge's death. Silverstein said upon being placed in custody at Clark County Detention Center, Michael Kane attacked the guards, and after being restrained in bed and unable to attack them he began "chewing holes into his own shoulder. He began gnawing on himself."

Silverstein said after being declared incompetent to stand trial in 2002, Kane was sent to Lake's Crossing.

He said that on the plane ride to the facility, Kane said he believed the "guards accompanying him on the flight were terrorists who were poisoning the air in the plane." Silverstein said Kane went to the plane's bathroom where he "stuck his head in the toilet because he thought it was the only way to get safe air."

Silverstein said Kane was only able to sit in court because he was heavily medicated.