By PEGGY SINKOVICH
and DENISE DICK
VINDICATOR TRUMBULL STAFF
WARREN -- An Austintown woman says she killed her daughter because she wanted to send her to a better place.
Her attorney says she is mentally ill, but will that be enough for a jury to find Sherry Delker innocent by reason of insanity?
Delker, 27, of North Turner Road, Austintown, has pleaded innocent to an aggravated murder charge. She is accused of the March 29 murder of her daughter, Samantha Martin, by running her down with a vehicle in Weathersfield Township. Delker first told police someone else struck and killed the girl.
"It's extremely difficult for someone who is suffering from a mental illness to be found not guilty by reason of insanity," said Atty. James Lewis of the Trumbull County Public Defender's Commission.
Law's requirement: Lewis and Anthony Consoldane, also of the public defender's commission, said Ohio law requires that the defendant not only be insane when the crime is committed, but also incapable of understanding the difference between right and wrong.
"If someone is insane then they really aren't responsible for what they do," Consoldane said. "Under the law, however, the test is if they know right from wrong, and if they do the slightest thing to avoid discovery, then the state believes they must be sane."
The insanity defense also is more rare than most people think.
Dr. Phillip Resnick, a professor at Case Western Reserve University who has testified as an expert in many insanity cases, said the insanity defense is raised in about one in 100 felony cases in the state.
"It's successful only 15 percent of the time," he said. "The average person thinks it's successful 20 [percent] to 30 percent of the time."
That perception is likely caused by the fact that cases in which it's used involve dramatic circumstances that generate publicity.
Dr. Resnick testified for the defense in the case of Andrea Yates, the Texas woman convicted last month in the drowning deaths of three of her five children. In the case that drew national attention, her defense attorneys argued insanity, contending Yates suffered from mental illness.
Most cases in which the insanity defense is successful are those that are uncontested -- defense attorneys and prosecutors agree on the defendant's mental state.
"When it's contested, the insanity defense is really an uphill fight," Dr. Resnick said.
For an insanity defense to succeed in Ohio, jurors must conclude the defendant suffered from "a severe mental disease which caused the defendant not to know their conduct is wrong," he said.
Successful defense: Dennis Watkins, Trumbull County prosecutor, said that in the last 20 years he remembers only one defendant, James Hubbard, who was found innocent by reason of insanity.
"In Hubbard's case, the prosecution concurred that he was insane," Watkins said.
Hubbard has been in mental hospitals since May 1993 after a three-judge panel found him innocent of the Sept. 12, 1991, shooting death of Sallie Beatty, 21, of Niles, and the attempted murder of Lori Kirkwood, 25, of Austintown.
Lawyers for both sides thought Hubbard did not know the difference between right and wrong at the time of the crime.
Watkins noted that when a plea of not guilty by reason of insanity is entered, the court usually orders three mental health experts to examine the defendant. The defense, prosecution and the judge each select one expert.
It is not uncommon for the experts to disagree.
2000 slaying: In a recent case, Phil Mike of Youngstown was declared insane by the defense's expert, but not by the other two experts.
Mike said he wasn't guilty of committing a crime because he killed his clone. Mike has a history of mental illness, but the expert for the prosecution said Mike knew at the time that it was wrong to kill.
The 36-year-old man was accused of beating and hacking to death Joe Furda, 40, of Youngstown, in a wooded area of Liberty Township on Feb. 23, 2000. Police found a loaded .32-caliber handgun in Mike's car.
Lewis has said Mike met Furda at a local bar and went for a drive in Mike's car.
During the ride, the men were discussing clones and Mike became convinced that Furda was his clone.
The defense attorney noted that Mike believed clones had replaced his family and that Mike expected he would be exonerated from the killing when police discovered he killed a clone.
The judge, however, ruled the defense did not prove that Mike did not know right from wrong.
Mike was convicted in July 2001 of voluntary manslaughter and aggravated robbery. He was sentenced to 17 years in prison.