Judge to decide whether killer can go free; doctors say he’s no longer insane

By Matt Pordum

Friday, Aug. 5, 2005 | 11:10 a.m.

A Clark County district judge began hearing testimony this morning to determine whether a killer is still mentally ill -- less than a year after he was found not guilty of murder by reason of insanity -- or is no longer insane and must be set free.

In the early testimony this morning, a question was raised about whether Michael Kane's mental illness could be in remission.

During Kane's first week at the state's mental facility he was said to be stable and sociable and then suddenly he became violent, attacking a fellow patient, Dr. Elizabeth Neighbors, the director of Lake's Crossing, the state's mental facility in Sparks, testified.

She was the first of three doctors scheduled to testify this morning about Kane's mental state.

Kane was on LSD in October 2001 when he fatally stabbed 23-year-old 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.

In September 2004 a Clark County jury acquitted Kane of the murder charge by reason of insanity and under state law Kane was ordered to undergo treatment at Lake's Crossing, the state mental facility in Sparks, with the understanding that if he recovered, his case would be reconsidered by the court.

Two months ago, doctors at Lake's Crossing said Kane was no longer mentally ill, and that resulted in today's hearing, the first of its kind in Nevada.

District Judge Jennifer Togliatti is to determine whether to release Kane back into society. She could decide to reject the findings of Lake's Crossing and order Kane to undergo continued treatment and be evaluated again in six months.

In June doctors at Lake's Crossing said Kane was no longer mentally ill and that set-up today's hearing, which was a first for Nevada.

According to Neighbors' testimony it was hard to determine if Michael Kane had been cured of mental illness or was simply experiencing a period of remission.

Just four days after being committed to the facility in October 2004 a staff member reported Kane was stable and knew he was at the facility because he was not guilty by reason of insanity. Kane was concerned he was gaining weight. The staff member said Kane requested to use the facility's exercise facility, was socializing with other patients and was reading the Bible with other patients.

Three days later, however, Kane had to be restrained after he attacked another patient without provocation.

In a subsequent report by Neighbors, she said Kane attacked a mentally retarded patient who Kane said he believed "was going to attack him."

Neighbors added that since those altercations Michael Kane proceeded to get better with the help of medication and treatment at the facility to the point that he was taken off medication entirely for six months.

After those six months she said Michael Kane was no longer exhibiting symptoms of mental illness.

Neighbors, another doctor from Lake's Crossing who examined Kane and an independent forensic psychologist were expected to all finish testifying this afternoon. It was unclear if Togliatti will issue a ruling or ask for more testimony.

At trial Kane's attorney, Deputy Public Defender Scott Coffee, argued Kane was legally insane and stabbed Trowbridge under the "false-fixed delusion" that Kane was going to be hurt or raped by Trowbridge.

During closing arguments Coffee said his client didn't act with malice aforethought, with premeditation or deliberation, but instead because "Michael (Kane) was under an imminent threat in his mind."

But during those same closing arguments Coffee told jurors that because there is no cure for schizophrenia, the doctors at Lake's Crossing would never be able to deem Michael Kane sane and subsequently release him.

Chief Deputy District Attorney Ed Kane, who is not related to Michael Kane, said that although mental health experts had testified Michael Kane was legally insane, none of them were legally qualified to understand how narrow the legal definition of insanity is.

The prosecutor said the evidence showed Michael Kane left his home carrying the knife used in the attack, which occurred before he took the LSD or met his friends or felt threatened. "He (Michael Kane) left his house with violence in his heart," Ed Kane said.

Although Ed Kane argued he didn't believe the defendant was delusional, he said even if the jury did make such a determination, Michael Kane's delusions failed to meet the legal burden of a self-defense claim.

Under Nevada law a homicide is justifiable if the person slain was about "to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished."

Ed Kane said Trowbridge never posed a threat, and even if the jury found Michael Kane delusional, he had failed to act as a reasonable person would have if they were in the same situation. Simply put, the law regarding self-defense is the same regardless of someone's state of mind.

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 when he was charged with fatally stabbing 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 the insanity 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.

Finger, however, chose to waive his right to withdraw his guilty plea because he had only 4 1/2 years more to serve in prison before being eligible for parole. Finger is currently serving his sentence at the Northern Nevada Correctional Center and is eligible for parole on April 8.

Robbin Trowbridge-Benko, the victim's mother who watched quietly through Michael Kane's trial, blames legislators who crafted the law. "I'm going to lay the mistake at the feet they belong, not at my doorstep, but theirs," she has said.

She has taken her story to the national media in hopes the Legislature will revisit the law.

Michael Kane's attorneys argued he suffered a drug "induced psychosis." In April 2002 he was deemed incompetent to stand trial and was sent to Lake's Crossing, the state's mental facility in Sparks where he began taking medication. Doctors later determined in November 2002 that Michael Kane was competent to stand trial. After being committed to Lake's Crossing after the jury's verdict in September 2004 Kane continued to take medication, but in December doctors stopped medicating him and subsequently determined he was "no longer mentally ill." During opening statements at Michael 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 attacke d 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."