It was an eerie feeling. As I walked into Terminal 2 of the Fort Lauderdale/Hollywood Airport, just days after the horrific shooting, I was consumed with emotion. It hit me that I was in “The room where it happened.” (Yes, even when describing something dark and emotional, “Hamilton” references still flow out of me) There was an overwhelming presence of media and law enforcement both inside and outside of the terminal. I was headed to Minneapolis for an appearance in federal criminal court. My return flight on Delta Airlines into Fort Lauderdale was the exact one the shooter had taken just days earlier. This case still consumes me. I find myself frequently discussing it with friends and colleagues. I’ve chosen to write this article because I’ve found from my discussions that there’s a lot of misinformation concerning this case. Also, there are many wondering what will likely happen to the shooter, Esteban Santiago. To best be of service in this article, I’ve attempted to answer the most common questions that I believe are on the minds of most people at this time.
1) “How can anyone represent this guy?”
With crimes as heinous and troubling as this, many wonder, “How can any attorney represent this guy?” It’s important to understand that without competent counsel by his side, nothing will happen. He is constitutionally guaranteed competent representation at every stage of the proceedings. A defense lawyer is absolutely necessary in order for the case to legally proceed. (unless the accused waives his right to counsel, like Charleston shooter Dylan Roof) Morally, most defense lawyers wouldn’t have an ethical dilemma defending this case because they generally oppose the death penalty, a sanction that prosecutors will likely seek. Also, the role of a defense attorney is to do all they can to obtain the best possible outcome. That doesn’t mean his attorneys endorse, agree with or support Santiago’s behavior in any way. His attorneys are there to ensure that Santiago’s due process rights are protected and that he is treated fairly while they seek to obtain the best possible result.
2) “What can a lawyer do for him? He’s obviously guilty!”
Most believe that the evidence in this case is overwhelming. Consisting in large part of eye-witness testimony, the video, and the suspect’s confession, this case, many opine, should be a “slam dunk case” for the prosecution. Well, I would agree that it is a “slam dunk” solely in that prosecutors will have little difficulty proving that Santiago was the one who committed these abhorrent offenses. However, prosecutors still will have to battle his lawyers concerning the defense that they will invariably raise, insanity. I suspect they will work up that defense in an attempt to save their client’s life. In other words, I believe that as long as their client signs off on it, they would likely be happy with a plea offer of life without parole, in lieu of the death penalty. Prosecutors may choose not to make such an offer.
3) “What is the insanity defense?”
When John Hinckley Jr. went to trial after his 1981 assassination attempt on President Ronald Reagan, the insanity law was different than it is today. When he secured his favorable verdict declaring that he was “Not guilty by reason of insanity,” the burden of proof to prove that he wasn’t insane fell squarely on the prosecution. It was the Government’s obligation to prove to the jury that Hinckley did know right from wrong at the time he committed his offenses. That’s hard to do. As a result of the Hinckley verdict, which sent him to a psychiatric hospital instead of prison, most states changed their laws concerning this issue. The federal government followed suit, and in 1984, Congress enacted the Insanity Defense Reform Act. The new law shifted the burden from prosecutors to defendants to prove their state of mind. That means that a defendant must prove that at the time the offenses were committed, he/she suffered from a mental defect or disease and, as a result, didn’t know right from wrong.
4) “Will the insanity defense work in this case?”
The short answer is, “Probably not.” Statistically, the insanity defense is successful in only a tiny fraction of all criminal cases. There are a number of reasons for that. First, it’s a tough burden to meet. While proving that someone suffered from a mental disorder or defect at the time the offense committed may be less challenging, it’s the second part of the insanity defense that typically is most difficult for defense attorneys. Proving that the person didn’t know right from wrong at the time is a huge challenge.
In this case, it’s going to be a colossal challenge. Prosecutors will point to many facts in the case which evidence the shooter’s state of mind at the time. For example, he purchased a one way ticket, then after his arrival, allegedly chose to enter a bathroom to load his gun, as opposed to loading it in the open in front of others. Additionally, he then placed the gun in his waist band, concealing it under his shirt. He only pulled it out when it was time to shoot. Those are just some of many facts which show that he knew right from wrong. Prosecutors will argue that he took steps not to get caught because he knew what he was doing was wrong. Additionally, jurors generally are fearful that if they vote in favor of insanity and the person is committed to a psychiatric hospital as opposed to prison, that the person may be released from a hospital in a relatively short period of time. (even though John Hinckley Jr. spent 35 years in a hospital before being released) They generally error on the side of protecting the public, which means rejecting the insanity claim so that the offender will never taste freedom again.
5) “But isn’t he crazy?”
Maybe. The shooter may definitely have been suffering from a mental defect or disease at the time that he committed the offense. The reports are that he went to seek help from the FBI in Anchorage a couple of months before the tragic shootings. He complained that he was having “terroristic thoughts” and that his mind was being controlled by the government. Additionally, in November, doctors allegedly diagnosed Santiago with schizophrenia, which could cause delusions and hallucinations. As described above, having a mental illness is only the first hurdle for the insanity defense. Even if prosecutors concede that he was mentally ill at the time, they will definitely argue that he still legally knew right from wrong. The prisons are packed with convicted murders, many who unsuccessfully argued insanity, even though they suffered from mental disorders at the time they committed their offenses.
6) “Will prosecutors even seek the death penalty?”
In spite of a many wanting Santiago to be sentenced to death, prosecutors may not even seek the death penalty. If they do, it will likely be because there were multiple victims, many who were vulnerable due to their ages. Also, the fact that he allegedly planned the atrocities won’t bode well for the shooter. However, in spite of the reasons why prosecutors believe death may be appropriate (known as “aggravating factors”), there are many reasons why prosecutors may not seek the ultimate sanction. (known as “mitigating factors”). First, the fact that he is a veteran and served in Iraq is something that prosecutors will consider. Typically, the justice system tends to treat former military differently. Furthermore, prosecutors cannot overlook Santiago’s documented history of mental illness. His is a rare case where he actually sought help for his condition prior to his crimes. I predict that prosecutors will not seek the death penalty in this case, assuming Santiago will plead guilty to the charges and agree to spend the rest of his natural life in prison.
I believe there’s ample evidence proving that the shooter suffered from a mental illness. I also believe that there’s significant evidence proving that he wasn’t legally insane at the time of the shooting. Too many of his actions evidence that he knew right from wrong. I am confident that prosecutors will work out a deal with Santiago, offering him life without parole in lieu of the death penalty.