The Nebraska Supreme Court on Friday reversed a Lincoln man's conviction and sentence for stabbing a Lincoln Police officer in a 2018 confrontation in his home that ended with him and another officer being shot by friendly fire.
Christopher Brennauer's case was sent back to Lancaster County District Court for a new trial.
And he is likely to remain, for now, at the Nebraska Reception & Treatment Center, where he has been serving a 57- to 79-year sentence.
It all has to do with the insanity defense and the instructions given to the jury at Brennauer's trial in 2021.
"At trial, Brennauer’s insanity defense presented a question of law that we have not previously considered: the effect of Nebraska Revised Statute 29-2203(4) on the insanity defense," according to the unanimous court.
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The law at issue deals with the insanity defense, and the particular section with temporary insanity caused by voluntarily drinking, taking drugs or other "mentally debilitating substances."
The charges in Brennauer’s case are related to a single event on Dec. 29, 2018, arising from a 911 call from Brennauer’s girlfriend in which she said Brennauer was mentally ill and threatening to harm himself with a knife. When police tried to take him into emergency protective custody, he resisted, resulting in an officer receiving a stab wound and Brennauer receiving two gunshot wounds to his back.
Another officer also was shot by friendly fire and since has retired, citing the injury.
At trial, Brennauer's public defenders raised an insanity defense, arguing that officers, rather than deescalating the situation and getting help for a mentally ill man in crisis, rushed in, cornered him and quickly pointed Tasers and a gun at him.
Brennauer had a long history of mental illness that dated back to when he was 12. In 2003, he was found not responsible by reason of insanity for an attempted robbery and hospitalized at the Lincoln Regional Center until 2011. He was re-hospitalized in 2013 for failing to take his medications and for using illicit substances.
By 2018, he was out and using methamphetamine, alcohol and cannabis.
He had been on a waiting list for a residential program on Dec. 29, 2018.
At trial, experts on both sides agreed Brennauer had a history of mental illness but disagreed on the cause of his loss of memory about that night and whether he understood the nature and consequences of his actions or the difference between right and wrong at the time.
They also disagreed about whether Brennauer had been in a meth-induced psychosis.
In the end, the jury found him guilty of possession of a deadly weapon by a prohibited person, two counts of assault on an officer and use of a deadly weapon during the commission of a felony.
The Lancaster County Public Defender's Office argued the state had "complicated the issue" presented to the jury by suggesting in closing arguments that the jury could not find Brennauer was insane if it found that his memory loss of the incident was due to his intoxication, which could not be ruled out completely.
The state contended the evidence undisputedly showed that Brennauer’s mental condition at the time was a temporary condition caused by his intoxication and, therefore, not a defense.
But the court said, under the state’s interpretation of the law, a successful insanity defense is precluded when any voluntary use of intoxicating substances led to the defendant’s lack of capacity.
That overlooks longstanding precedent, according to the opinion.
While temporary insanity caused by voluntary intoxication is not a complete defense to a crime, one may be both intoxicated and insane, the court said.
"To be punishable under such circumstances, the crime must take place and be the immediate result of a fit of intoxication, and not the result of insanity occasioned by previous bad habits," the judges said.
They said two of the instructions could have been confusing to jurors on the issue and sent it back for retrial.