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COLUMN ONE : A Killer's Sanity May Free Him : After David Lee Nagel slashed his grandparents, a Georgia jury sent him to a hospital instead of to prison. But experts now say he was never mentally ill. So the state must release him--or defy the law.

November 12, 1994|BARRY SIEGEL | TIMES STAFF WRITER

LAGRANGE, Ga. — By the spring of 1981, the question of what to do with David Lee Nagel suggested a grim but unequivocal answer.

Nagel had spent his adolescence bouncing among jails, youth camps and mental hospitals. He had racked up what the psychologists called a "long history of antisocial behavior," meaning fights, breaking and entering, auto theft, fleeing the police and attacking a counselor. He had also, on the night of May 8, 1981, in this region about 70 miles southwest of Atlanta, stabbed his grandparents to death, apparently because they had denied him their car keys.

When three state doctors soon after pronounced the 19-year-old sane, responsible for his acts and competent to stand trial, the Troup County district attorney did not hesitate. It was clear to him that Nagel should be executed.

But the jurors at his murder trial thought otherwise. Exactly why they balked remains a matter of speculation. Perhaps they were swayed by Nagel's tenure in mental institutions, or the vague references in his records to schizophrenia. Perhaps they shrank from sending a frail teen-ager to the executioner. Or perhaps they could not imagine--could not accept--that anyone who was mentally sound could commit such an act of butchery. Whatever the reason, jurors on Dec. 2, 1981, found Nagel not guilty by reason of insanity.

For the Record
Los Angeles Times Thursday November 17, 1994 Home Edition Part A Page 3 Column 4 Metro Desk 1 inches; 27 words Type of Material: Correction
Insanity defense case--A photo caption accompanying a Saturday story on an insanity defense case misidentified Dr. Everett Kuglar and Dr. Robert Storms. The identifications were reversed.

For 13 years, the verdict didn't much matter; Nagel, whom the court ordered institutionalized, simply disappeared behind the bars of a maximum-security mental hospital rather than a prison. Now the verdict does matter. Now the verdict means that Georgia faces the unappealing prospect of releasing a double killer--or defying state mental health laws and the U.S. Constitution.

After years of caring for him, the state's top mental health experts have concluded that David Nagel is not mentally ill--and in fact was never mentally ill. "Nagel does not meet the legal criteria for involuntary commitment to a mental institution," declares forensic psychiatrist Dr. Everett Kuglar, acting superintendent of the Georgia Mental Health Institute. "Nagel should be released."

The U.S. Supreme Court may eventually agree. Two years ago, looking at a patient much like Nagel, the justices said Louisiana could not continue to confine Terry Foucha once a mental hospital decided that he showed no sign of mental illness.

The due process clause of the 14th Amendment just won't allow it, the justices declared. You can't confine someone in a mental hospital for what he's done in the past, or might do in the future, if he isn't mentally ill.

Like Nagel, Foucha--found not guilty by reason of insanity in an aggravated burglary case--was diagnosed as having an "antisocial personality" and had a history of altercations while confined. Like Nagel, he may have suffered from a "drug-induced psychosis" at the time of his crime. Like Nagel, he could find no doctors willing to guarantee that he would not be dangerous in the future. No matter. "As Foucha was not convicted, he may not be punished," wrote Justice Byron R. White for the majority. "Louisiana has by reason of his acquittal exempted Foucha from criminal responsibility."

To Everett Kuglar, the Foucha decision makes obvious what must be done with Nagel. The state psychiatrist well understands the desire to confine a killer--in fact, he believes Nagel should have been convicted of murder--but he flatly declines the role of jailer.

"It's not our problem today what mistake the justice system made years ago," Kuglar said. "If you can't get a jury to convict . . . well, that's it. It's not the business of a mental hospital to retain people who aren't mentally ill."

Georgia judges, however, don't see it that way. From the trial level to the state Supreme Court, they don't appear inclined to let Nagel go.

A jury in its wisdom found Nagel insane, these judges proclaim, and we presume he continues to be insane. Nothing Nagel now offers proves otherwise; nothing establishes that he will not turn violent again if released. "Weighty as the medical experts' testimony may be," Troup County Superior Court Judge Allan B. Keeble observed in denying Nagel's release, "this court must balance that testimony against the seriousness of (Nagel's) acts."

The son of Nagel's victims puts the matter more directly.

"I don't care what the psychiatrists say," declares Emmett Frank Marshall Jr., who is Nagel's uncle. "For what he done to my parents, I don't think he should ever be released."

*

There's little sympathy for Nagel here in Troup County. In small ways and large, he has tormented the region for much of his life.

Coming from an abusive and broken family, he landed, at age 15, in a Christian boys' home, which soon asked that he be removed. Back in LaGrange, he spent four years in relatives' homes and assorted institutions.

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