MCGARY’S DEFENSE IS INSANITY — (The Buffalo News)

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The Buffalo News

May 21, 2001

Author: THOMAS J. PROHASKA – News Niagara Bureau

The insanity defense, rarely used and even more rarely successful, will be employed starting Tuesday on behalf of a man accused of the near-fatal stabbing of his wife.

That’s when jury selection begins in the trial of Clifford J. McGary, 70, of Sy Road, Wheatfield. He faces a seven-count indictment, including attempted second-degree murder.

“I’ve read in the literature that (the insanity defense) is used about 1 percent of the time,” said District Attorney Matthew J. Murphy III, who will prosecute the case personally with assistance from Lisa M. Wegrzyn. “Approximately 5 percent of those succeed.”

He added, “I can’t recall in the last 20 years it ever working in Niagara County.”

Defense attorneys James J. Faso Jr. and Angelo Musitano did not return repeated calls to comment, but they were known to be planning to hire a psychologist to examine McGary and provide expert testimony, which they will try to use to show he is, as the law puts it, “not guilty by reason of mental disease or defect.”

The prosecution has also had McGary examined, so dueling psychologists will be a feature of the trial.

But the prosecutors also have the usual task of proving that McGary committed the crime, so the victim, Jean McGary, will be a featured witness. Murphy said his witness list may include as many as 30 names.

County Judge Sara Sheldon Sperrazza has set aside two weeks for this trial.

McGary is accused of stabbing his 66-year-old wife in the chest several times with a knife on July 5, 2000, in their home and then fleeing in a car. He was arrested four days later in Potter County, Pa., by a state trooper.

The trooper testified in an evidence suppression hearing that at his arraignment in a Shinglehouse, Pa., court, McGary blurted out, “I’m guilty. I’m just guilty.” Sperrazza ruled that was admissible at trial.

But the indictment also covers incidents in April and May 2000 in which McGary allegedly choked his wife of 48 years and hit her with the butt of a shotgun.

Besides attempted murder, the charges are first- and second-degree assault, third-degree menacing, aggravated criminal contempt of court and two counts of fourth-degree criminal possession of a weapon.

Sperrazza has twice ruled McGary mentally competent to stand trial.  However, testimony at a hearing on those motions revealed that he had been using lithium and Prozac, two psychiatric drugs, in large amounts and that he was, in Musitano’s words, “bordering on mild mental retardation.”

Murphy said none of that means McGary shouldn’t be convicted. He said the law requires that the defense has to prove that McGary “was unable to know or appreciate the consequences of his conduct or that it was wrong.”

Murphy said that the insanity defense is one of the few times the defense has the burden of proof. Normally, the prosecution has to prove everything it alleges, while the defense’s only job is to try to show reasonable doubt.

If the jury finds McGary not guilty by reason of his mental state, he would be confined in a state institution for the criminally insane, Murphy said.

Record Number:  0105210083