Legal analysis

Following accused school shooter Nikolas Cruz’s first appearance in court on Thursday, his attorney for the hearing, public defender Melisa McNeill told reporters that Cruz is sad, remorseful, and aware of the impact of the shooting on the community.

These statements were empathetic and well-intentioned, but a prosecutor may try to use them against Cruz himself, whose defense options are diminishing as more information emerges about the shooting and his past.

Reportedly, Cruz is interested in pleading guilty and accepting a life sentence to avoid the death penalty. Even if rarely used, states with the death penalty have considerable leverage against a defendant, leverage that can induce an early guilty plea to avoid capital punishment.

Studies show that more defendants in death penalty states are willing to plea bargain to a life sentence than those in non-death penalty states. If video and other evidence conclusively identify Cruz as the school shooter, and given the challenges of an insanity defense, it might be a wise choice — even this early in the prosecution.

Suspected school shooter Nikolas Cruz makes a video appearance in Broward County court before Judge Kim Theresa Mollica, in Fort Lauderdale, Florida on Feb. 15, 2018. Susan Stocker / Pool via EPA

Despite its depiction in popular culture, an insanity defense is not an easy option in criminal cases. It is a huge gamble: It requires admitting to the underlying crime, and then proving additional facts excusing that crime.

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In Florida, all persons are presumed to be sane. The defendant has the burden of proving insanity by “clear and convincing evidence.” A judge defines that for a jury as evidence that is precise, explicit, lacking in confusion, and produces a firm belief, without hesitation, that the defendant was insane.

The definition of insanity varies from state to state, and some states don’t even have the defense. Florida has codified the centuries-old “M’Naghten” test for determining whether a defendant was insane when the crime was committed. A person is insane when (1) he has a mental infirmity, disease, or defect. (2) Because of this condition (a) he didn’t know what he was doing or its consequences or (b) he did not know what he was doing was wrong.

Related: FBI got tip on Nikolas Cruz in January, but didn’t ‘follow protocols’

The “consequences” alternative is harder to prove. If a defendant knows that he’s shooting people, and shooting them is going to hurt them, he likely understands the “nature and consequences” of his act.

Establishing that someone didn’t know the “wrongfulness” of his actions is not easy either. A defendant may personally believe what he’s doing is morally right or justified. He is not legally insane if he knew he was breaking the law or violating societal standards.

Just because a person was in the throes of unrestrained passion or temper does not mean he was insane. The law recognizes that most people can have their judgment overcome by passion or temper. Anger is not, by itself, insanity.

Nikolas Cruz has been charged with 17 counts of premeditated murder after a shooting at Marjory Stoneman Douglas High School in Parkland, Florida. Broward County Sheriff's Office

The attorney’s comments to the media were honest and sensitive to the suffering of the community in that moment. Unfortunately, a prosecutor might try to impute these words to the defendant to head off the insanity option.

If it’s true that Cruz was expressing his remorse, and he was aware of the impact of the shooting on the community, this could impact his insanity defense.

Remorse is a good thing for defendants. Remorse is a “mitigating” factor when the court is considering whether to impose the death penalty, after a person is convicted.

Prior to that, however, courts have observed that remorse makes it more probable that a defendant appreciated the wrongfulness of his conduct. Similarly, a defendant’s sadness or awareness of the impact of his actions tends to show he was aware of what he was doing, and knew it was wrong.

Prosecutors could argue that because the attorney is the legal alter ego to the client, the voice of the attorney is therefore the voice of the client. A court should conclude otherwise.

A public defender doesn’t get to choose her client, yet they are duty-bound to provide zealous advocacy for a complete stranger, often at a moment’s notice, whose alleged conduct may personally horrify them.

Insanity should not be established by extemporaneous comments to the press by a well-intentioned, newly appointed attorney trying to counter the avalanche of negative press. An insanity defense should ultimately be established by competent medical professionals — modern scientists who are applying a test developed in the 1800s.