Insanity defense may be used in state Sen. Virgil Smith case

The embattled state senator accused of assaulting his ex-wife and shooting her 2015 Mercedes-Benz could use an insanity defense in the case against him.

State Sen. Virgil Smith, a Detroit Democrat, was ordered to undergo an examination relating to his criminal responsibility by the Center for Forensic Psychiatry “based upon the filing of a notice of insanity defense,” a court document obtained by the Free Press said.

Messages left with Smith’s attorney, Godfrey Dillard, were not returned Thursday.

“Smith will assert at the trial of this matter a substantial disorder of thought or mood significantly impaired his judgment, behavior, capacity to recognize reality, or ability to cope with ordinary demands of life,” a document filed by Dillard last month said.

A spokesman for the Wayne County Prosecutor’s Office declined to comment on the possible defense.

Smith, 35, faces charges of felonious assault, malicious destruction of personal property of $20,000 or more, possessing a firearm during the commission of a felony and a misdemeanor count of domestic violence. He is accused of assaulting Anistia Thomas on May 10, then shooting at her vehicle, totaling it.

Thomas said it happened after she went to Smith’s home on Wexford and discovered a naked woman there. Nobody was injured by the gunfire.

Smith told investigators the shots were fired after Thomas pushed her way into the house and attempted to attack the woman in his bed, according to police. A not guilty plea has been entered in the case.

Richard Krisciunas, a University of Detroit Mercy law professor and former Wayne County assistant prosecutor, said a defendant doesn’t have to go forward with the insanity defense, but filing a notice triggers a referral to the forensic center.

“Some lawyers will do it just to see if there’s anything there,” he said.

Krisciunas said the defense’s argument may be that Smith was temporarily insane.

Prosecutors are seeking information from Smith’s cell phone and have filed a motion asking the court to appoint a master to review content from the phone.

“The cell phone contains evidence relevant to the elements of the crime, defendants’ state of mind and intent, and evidence that rebuts the claim of insanity or lack of criminal responsibility,” Assistant Wayne County Prosecutor Lisa Lindsey argued in the motion.

The phone contains evidence relevant to Smith’s interaction with Thomas and several witnesses before and after the incident, and his cell phone service provider — Sprint — does not retain text message content, the prosecution said in a court document.

Dillard argued that his client has a “right of privacy privilege as well as others person not connected to this case as to the communications on the cell phone,” according to a court document. Smith objects to the inspection and examination of the phone, he wrote.

Attorneys will appear before Wayne County Circuit Judge Lawrence Talon for a motion hearing prior to Smith’s December trial.

Legal experts say in cases where insanity is the defense, jurors tend to be suspicious of it. The cases often become “a battle of the experts” at trial.

“The insanity defense in Michigan requires a defendant to lack substantial capacity to appreciate the nature and quality of the wrongfulness of the alleged criminal conduct,” said University of Detroit Mercy law professor Larry Dubin. “The defense is most often used in homicide cases where the defendant has a history of a serious mental disorder and the evidence shows a lack of understanding of the wrongfulness of the act.”

Peter Henning, a Wayne State University law professor and former federal prosecutor, said the insanity defense is uncommon, but not unknown.

Smith, who is free on bond, has declined to answer questions from reporters since his arrest. He returned to work as a state senator, but the chamber has not taken attendance or any votes since July 1.

Smith has been removed from his committees and his staff has been reassigned.

Contact Elisha Anderson: eanderson@freepress.com or 313-222-5144. Follow her on Twitter @elishaanderson. Staff writer Kathleen Gray contributed to this report.