Unfit or unjust? Insanity plea at issue in suburban slaying

Barbara McNally knows James Masino killed her husband.

Prosecutor Marilyn Hite-Ross and defense attorney Marvin Bloom know. Dr. Peter Lourgos knows. Cook County Judge Marcus R. Salone knows. And detectives from the Bartlett Police Department know that Masino killed stay-at-home-dad Jim McNally.

They know because Masino told them.

But he will never be tried or sentenced. The McNally family will never hear a jury pronounce Jim's killer guilty. They will never read a victim impact statement describing their heartache at losing the man Barbara McNally described as everybody's friend. Masino will never spend a day in prison. Because in the eyes of the law, 45-year-old James Masino is insane.

In Barbara McNally's eyes, he's a killer.

On the afternoon of Sept. 14, 2006, Masino lay in wait in his van, down the street from the McNallys' Bartlett home. When his childhood friend Jim left in his car, Masino followed. Pulling up alongside McNally, Masino fired half a dozen rounds from an SKS semi-automatic assault rifle into the car, killing the father of three instantly. After the killing, Masino fled the scene, disassembled the weapon, disposed of its parts and leftover ammunition, wiped down the van and ditched his clothes. He was organized. He was methodical. But does that mean he was mentally sound?

No, says Lourgos, a psychiatrist with the Cook County Forensic Clinical Services. "The perception is that someone with a mental illness cannot engage in goal-directed behavior, that he looks disorganized," says Lourgos, who has done approximately 800 forensic psychiatric evaluations, about 200 of which were to determine sanity. "That's a misconception. Not all mental illnesses fall into that category."Moreover, someone who has a mental illness is no more prone to violence than someone with diabetes or heart disease or someone completely healthy. Even people with psychotic disorders can function relatively normally, says Lourgos.However, a defendant can't be held criminally responsible if at the time of the crime, his mental illness made it impossible for him to appreciate the criminality of his behavior."But having something wrong with you is not the same as insanity. Insanity is a specific status," says attorney Marc Kadish, who represented former Palatine physician Lee Robin, found not guilty by reason of insanity in 1989 for the murder of his wife and infant daughter. Kadish represented Robin in the late 1990s during his successful petition for release from the Elgin Mental Health Center.For someone to commit a crime and flee like Masino did, seems to suggest he recognizes the crime.Not necessarily. In Masino's case, he covered his tracks and fled because of the deeply rooted delusion that McNally was a hit man for a domestic assassination squad that had targeted Masino.Besides the issue of sanity, there's the separate (and sometimes) related question of fitness. Anyone unable to understand legal proceedings and assist in his defense is considered unfit. Mental illness might make a person unfit, but so could Alzheimer's disease or a brain injury. A defendant found unfit, can be treated at a mental health facility and tried when he becomes fit. Typically that's what happens, says Mark Heyrman, University of Chicago Law School professor and an expert in the insanity defense.A successful insanity defense requires the jury or judge to find that prosecutors proved the accused committed the crime and that the defense proved he was insane at the time.Masino never made it that far.Lourgos first found Masino unfit two months after the killing, and several more times in the intervening years. Last summer he testified it's unlikely Masino will ever be fit to stand trial. A second psychiatrist agreed. So did the judge.Masino's viewMasino thinks people are out to get him. He believes a CIA-run hit squad wants to torture and kill him. He believes McNally belonged to the squad, despite McNally having supplied a character reference that helped Masino get a pardon for an unlawful restraint conviction, which allowed him to legally buy firearms. Ask Masino and he'd tell you he killed McNally in self-defense, says Lourgos, who diagnosed the former Kenosha resident with a severe mental disorder so deep-seated, he may never recover.When a defendant like Masino has remained unfit for more than a year and a court determines it is unlikely he will become fit, the defense can ask for a discharge hearing. A judge will issue a finding of not guilty, not guilty by reason of insanity or "not, not guilty," the equivalent of a guilty verdict at a criminal trial.Cook County assistant state's attorneys Hite-Ross and Mike Gerber prosecuted Masino's discharge hearing as if it were a full-blown murder trial. They questioned ballistics and firearms experts. They called to the witness stand a former Maine West High School classmate who testified that five days before the killing, Masino told her McNally was a serial killer. They played Masino's videotaped confession to police. After a two-day hearing, Salone found Masino not guilty by reason of insanity and remanded him to the care of the state department of human services.To say the finding disappointed Barbara McNally is an understatement. "I think guilty but mentally ill would be a more appropriate ruling," she says. "To me it's like trying to erase the crime. There is no erasing the crime in this case."And it's compounded by the nagging fear that Masino put one over on everyone.Hite-Ross sympathizes with victims like the McNally family, who come to court for relief, and leave believing the judicial system let them down and that a criminal got away with murder."The victims believe there has been no justice," says Hite-Ross. "We understand the victims' feelings, but we are bound by the statutes of the law."