ACCUSED KILLER TO ARGUE INSANITY DEFENSE THE TACTIC SELDOM SUCCEEDS, BUT MARK GESSNER’S ATTORNEY SAYS ABUSE-RELATED MENTAL PROBLEMS LED TO THE SHOOTING OF A BATH FLORIST — (Portland Press Herald)

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Portland Press Herald (ME)

November 26, 1994

Author: L. Mercedes Wesel Staff Writer

[]A Nobleboro man, who will be tried on a charge of murder in the shooting of a Bath florist, plans to use a tactic that rarely convinces juries in Maine: an insanity defense.   Jury selection for the trial of Mark Gessner, 30, is scheduled to begin Monday in Sagadahoc County Superior Court. The county’s first murder trial in 22 years will start after jurors are chosen, which is expected to take at least one day.Authorities say Gessner shot Melvin Henderson, 74, once in the head on May 5 as Henderson worked at his North Street business, Kennebec Greenhouses.   Gessner, who worked for Henderson as a teenager, was arrested the next day.Gessner has pleaded innocent by reason of insanity, a defense that is used about 150 times a year in Maine but succeeds only 1 percent or 2 percent of the time, said Dr. Ulrich Jacobsohn, a forensic psychiatrist and director of the state forensic unit.  Jacobsohn said he believes only 10 percent of the insanity cases that go to trial are strong cases, and only about 10 percent of those succeed.

State law provides very narrow criteria for an insanity defense.   Gessner’s attorney, Pasquale J. Perrino, says he has an exceptionally strong case.   “I have a client with a track record of mental problems,” he said.  “Not many cases have that.”

Gessner had been prescribed Prozac to fight depression at the time of the shooting. He also spent three days at the Augusta Mental Health Institute a few years ago.   Perrino has said Gessner’s mental problems are the result of sexual abuse he suffered as a teenager. He says Henderson was the abuser.

An initial examination

In Maine, determining a defendant’s mental state starts with Jacobsohn’s forensic psychiatry unit.    Anyone who uses his or her mental state as a criminal defense must be examined by Jacobsohn and a psychologist.   They examine the accused, view videotapes of police interviews, and study previous psychological and medical reports.    They then submit a written report to the court. Frequently, the report is taken at face value by both attorneys, Jacobsohn said. Sometimes, Jacobsohn or the psychologist will be called to testify.

Both sides have the right to commission their own psychiatric evaluations.    Perrino said he does not plan to call Jacobsohn as a witness in Gessner’s trial, but the prosecutor does. Jacobsohn’s office, established in 1986, is intended to be independent of both prosecution and defense. Jacobsohn said Maine may be the only state with such a service.

The verdict options

The jury will have three possible verdicts: guilty, not guilty, or not guilty by reason of insanity.   If Gessner is found guilty, he faces 25 years to life in prison with no chance of parole.  If found not guilty by reason of insanity, he will be institutionalized.   The prosecutor, Assistant Attorney General William Stokes, must prove  “beyond a reasonable doubt” that Gessner is guilty – that he intentionally shot and killed Henderson.    If Stokes succeeds, Perrino must convince the jury by  “a preponderance of the evidence” that Gessner was not responsible for his actions at the time of the shooting. That is a lower standard of proof. The jury has to be more than 50 percent convinced that Gessner was not criminally responsible.

Jacobsohn acknowledged that it sounds contradictory to say, “I’m not guilty, but if I were, I wouldn’t be responsible for it.”    But by law, the plea is not contradictory, Jacobsohn said.

“The plea doesn’t concede a thing,” Perrino said.   The jury’s responsibility is to separate the two issues, and decide first and foremost if a person is guilty.

Authorities find weapon

The criminal evidence against Gessner, much of it gathered within 24 hours after the shooting, appears straightforward.   On the night of the shooting, Gessner allegedly telephoned a friend, Darrel Ricker, and asked to borrow Ricker’s gun. According to police records, Gessner told Ricker he wanted to “shoot the other queer,” after shooting one that day.   Police presume the first shooting referred to Henderson; they would not say who the second victim would have been.

Ricker called police, who arranged for Ricker to call Gessner back so they could listen and tape the conversation. Gessner then told Ricker he was sorry about what he’d said, and not to tell anyone they had talked.   Police arrested Gessner around 10:30 a.m. on May 6. The next day, police searched Gessner’s property and found a .44-caliber handgun in the ice house.

They say that the gun was used to kill Henderson, and that Gessner’s fingerprints were on the barrel.

Perrino tried to have the gun disallowed as evidence, claiming police obtained the gun illegally after their search warrant expired. The judge, Stephen Perkins, ruled against him, so the gun likely will be used as evidence.   The untold story that could unfold at the trial involves the relationship between Gessner and Henderson.

In addition to Perrino’s claim that Henderson sexually abused Gessner, Henderson’s daughter, Melissa, has made veiled references to abusive behavior by her father.   Melissa Henderson stunned hundreds of mourners at her father’s funeral by remembering him as a man who “died as he had lived, violently, full of fear and deep, deep anguish.”

She said later that she made the statement for herself and “everyone else (her) father inflicted himself on.” She would not explain her comments in any greater detail.   Perrino would not say, when asked this week, how the information would be used in the trial to explain Gessner’s mental state.

Gessner’s trial is expected to last at least a week.   The court summoned 300 Sagadahoc County residents as candidates for the jury. About 100 have been excused, 100 will be screened Monday and another 100 will be screened Tuesday, if necessary.   Only 75 prospective jurors are called for a typical felony trial in Sagadahoc County, court officials say. The number was so great this time because, with a murder trial, there is a greater chance that pretrial publicity has prejudiced the public.

Mark Gessner, whose murder trial begins next week in Sagadahoc County Superior Court, has pleaded innocent by reason of insanity in the shooting death of Melvin Henderson. The legal definitions of insanity are very specific:    Insanity is an inability to abide by the law or to understand the wrongfulness of one’s conduct. This inability must be the result of a “mental disease or defect.”

A mental disease or defect is “any abnormal condition of the mind that substantially affects mental or emotional processes and substantially impairs . . . the capacity of a person to control his actions.”

An abnormality brought on solely “by repeated criminal conduct or excessive use of alcohol, drugs or similar substances, in and of itself, does not (legally) constitute a mental disease or defect.”

Copyright (c) 1994 Portland Press Herald
Record Number:  9411260243