John Jonchuck's lawyers won't say he didn't kill his daughter.
They won't say it was someone else who dropped 5-year-old Phoebe Jonchuck off a bridge, or that he was somewhere else when she fell 62 feet and disappeared into the dark, inky waters of Tampa Bay.
They won't say it was an accident.
When Jonchuck's first-degree murder trial opens Monday, his lawyers will concede he did it.
They will acknowledge that he dropped Phoebe off the Dick Misener Bridge near the Sunshine Skyway on Jan. 8, 2015. After all, a St. Petersburg police officer watched him do it, and rescuers pulled her body, bruised from the fall, out of the cold water near the base of the bridge later that morning.
Then the lawyers will implore jurors to not convict him.
The reason, they'll say, is that he was insane at the time of the crime — that he didn't know what he was doing when he let Phoebe go, or that he didn't know it was wrong.
It's an argument lawyers rarely make, despite popular belief. The burden of proving not guilty by reason of insanity rests with the defense, a difficult task that's rarely successful. The odds for Jonchuck appear almost insurmountable. But his attorneys feel it's their best chance of keeping him out of prison.
The trial will boil down to a single question: In that moment, was Jonchuck evil or insane?
PREVIOUS COVERAGE: The long fall of Phoebe Jonchuck
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In either scenario, Jonchuck, now 29, likely won't ever again be a free man.
If convicted, he will automatically be handed a lifetime prison sentence. Since prosecutors stopped seeking the death penalty, a life sentence is the only option for a first-degree murder conviction.
If the jury finds Jonchuck not guilty by reason of insanity, he will spend years, and possibly the rest of his life, in a state-run mental health institution.
He could, in theory, one day be eligible to leave the facility. But he'd have to prove he was no longer mentally ill or dangerous.
"A tall order for most people who are found insane," said Charles Ewing, a lawyer, forensic psychologist and professor emeritus at the University at Buffalo School of Law.
Pinellas-Pasco Public Defender Bob Dillinger said he can't name a case in which someone who was not guilty by reason of insanity on a first-degree murder charge has ever left the state mental health facility.
"Either way, he'll be in a state prison for the rest of his life, or a state hospital for the rest of his life," Dillinger said.
The stakes, then, are about accountability. And, for Dillinger, the trial is about what kind of society we want to be.
"How do we treat people we know are mentally ill?" he asked. "We just think the appropriate setting for him for the rest of his life is in a mental hospital, not a prison."
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Rooted in centuries-old Anglo-American law, the insanity defense originated from the belief that it would be unjust to punish someone who lacks the capacity to make decisions about committing crimes.
"You can imagine a system where there was no insanity defense, and they just said 'you did the crime, do the time,'" Ewing said. "But in our system of justice, and the British system that preceded it, it's been for centuries the case that we don't punish people who can't legitimately be held responsible because of a mental disease or a mental defect."
In Florida, those accused of crimes are presumed sane, unless and until the defense raises an insanity concern. Before 2000, it was at that point up to the prosecution to disprove insanity in front of a jury — if they failed, the defendant was ruled insane. Since then, the burden of proof has flipped, and it's the defense's responsibility to prove, by clear and convincing evidence, the defendant is insane.
That extra burden sets an insanity trial apart from a normal criminal trial, where the prosecution must do all the proving. And it means the prosecution and defense will put on parallel cases, both playing offense and defense at the same time.
After all the evidence is presented, the judge will introduce the jury instructions, which outline the criteria for insanity. In order to find Jonchuck not guilty by reason of insanity, jurors will need to agree he had a "mental infirmity, disease or defect," and because of that condition, "he did not know what he was doing or its consequences," or "he did not know it was wrong."
That language is derived from the M'Naghten Rule, established in 1843 in England. It's a more restrictive standard than the Product Test, which was in play in federal courts from the 1950s until the 1970s. That test said a defendant was not culpable if an alleged crime was the "product" of a mental disease or defect.
Then John Hinckley Jr., charged with shooting President Ronald Reagan, a staffer, a police officer and a Secret Service agent in 1981, was found not guilty by reason of insanity.
The optics of Hinckley avoiding a conviction and the false perception that criminals are trying get away with crimes by pleading insanity led to the federal government and states adopting more restrictive standards.
"There's just sort of a law and order mentality, and they think people are trying to get off by reason of insanity," said Nova Southeastern University forensic psychologist David Shapiro. "There have been surveys done that a random sample of people think (insanity) is raised between 40 and 50 percent of the time. So it's just a total misperception."
Statistics aren't exact. There is no national clearinghouse or organization that tracks insanity cases. But experts agree that no more than 1 percent of defendants argue insanity. In the majority of those cases, prosecutors agree and the defendant faces treatment instead of prison.
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Experts say the insanity defense should almost always be a Hail Mary.
Of all contested insanity cases, the defendant almost always loses — 99 percent of the time, estimates Michael Perlin, a professor emeritus at New York Law School. He also founded Mental Disability Law and Policy Associates, which offers education and training.
"There are times when it is really the only thing you can do," Perlin said. "But you've got to do it with eyes wide open to understand all the possible pitfalls."
One of those pitfalls? A person who is found not guilty by reason of insanity will often spend more time in an institution than they would have spent in prison had they pleaded guilty, he said.
And generally the more minor the crime, the bigger the gap. Take Michael Jones, who was charged with misdemeanor larceny in Washington, D.C., in 1975. He was found not guilty by reason of insanity, and spent 17 years in a facility, Perlin said.
The maximum sentence had he pleaded guilty? One year.
Even though pleading guilty can likely mean freedom faster, some defendants choose to go the insanity route for safety reasons.
"Prison is absolute hell for people with mental disabilities, no matter the underlying charge," Perlin said.
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During the portion of the trial when the legal teams present their evidence, there will be an unusual third, and possibly a fourth, step.
First, prosecutors will make their case, proving Phoebe died at the hands of her father.
Then, the defense will call doctors, family and friends to make the case that Jonchuck was insane.
After that, prosecutors will get to go again, presenting their own doctors and witnesses to refute the insanity arguments.
The defense has argued they deserve a chance to rebut the rebuttal.
The arrangement means the trial will hinge heavily on competing expert witnesses who will offer the jury different opinions on Jonchuck's sanity. It could be that the winning side is the one with the more compelling doctors.
But Dillinger said in his experience, it's the regular people, the family and friends, who are more persuasive. The doctors? They cancel each other out, he said.
"I thought the battle of the doctors never really persuaded the jurors," Dillinger said.
Pinellas-Pasco State Attorney Bernie McCabe declined to comment while the case was ongoing.
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Jonchuck has a checkered mental health history.
Family members have said he was schizophrenic and bipolar, and wasn't taking his medication.
He was in and out of jail, arrested seven times as an adult in Florida on charges of battery and driving under the influence, according to state records. His first arrest was at age 12.
Though he was never arrested in connection with drugs, he used them heavily.
By his family's count, he was taken into custody 27 times under Florida's Baker Act, which allows for the involuntary commitment of someone who is deemed a threat to themselves or others.
Leading up to Phoebe's death, Jonchuck grew more erratic. He carried a giant Swedish bible with him. He salted his home to remove spirits. Just hours before the incident at the bridge, Jonchuck's disturbing behavior prompted the lawyer he had contacted to fight for custody of Phoebe to call 911 and the Department of Children and Families. The lawyer said she was worried about Phoebe's safety.
After she died, he said voices told him to kill her.
"I was hearing voices saying that if me and Phoebe didn't die, everybody was going to go to hell," Jonchuck told a doctor, according to court records.
Shortly after Jonchuck was arrested, a judge declared him incompetent to stand trial. Incompetence means a defendant cannot understand the charges he faces or the trial process. It differs from insanity in that incompetence addresses someone's ongoing mental state, whereas insanity relates only to someone's state of mind during the commission of a crime.
He was declared competent to stand trial in 2017, though he now relies on a monthly injection of psychotropic medication to keep his mind sound.
Jonchuck was transferred to the Pinellas County jail on Wednesday, where he will remain for the duration of the trial. The move from the state hospital can be jarring. The last time Jonchuck was at the jail, for a 2016 court hearing, he refused a psychiatrist's visit and his medication and tried to grab a guard. Jail medical staff will not force medication upon an inmate who declines it, according to the Sheriff's Office, which administers the jail.
Jonchuck's lawyers have already raised concerns about his mental state because his monthly shot was delayed by a week. Doctors at the state hospital waited until Monday to inject him. They wanted to administer his medication as close to the start of the proceedings as possible. Any deterioration in Jonchuck's mental state could delay the trial, or halt it altogether.
Nothing from Jonchuck's past will matter, though, if a jury believes that on Jan. 8, 2015, he knew what he was doing and knew it was wrong.
Contact Josh Solomon at email@example.com or (813) 909-4613. Follow @ByJoshSolomon.