'Involuntary Intoxication' Defense in Brutal Attack on Virginia Lawyer | NBC4 Washington

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'Involuntary Intoxication' Defense in Brutal Attack on Virginia Lawyer

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    News4 Northern Virginia bureau chief Julie Carey reports on an unusual defense being used in the trial of a man accused in an attack on a McLean, Virginia lawyer and his wife. (Published Wednesday, Jan. 6, 2016)

    The details of the crime were shocking and bizarre.

    A law firm partner and his wife were attacked in their McLean, Virginia home, tortured and nearly killed before the victims were able to activate a panic alarm.

    Another husband and wife, both lawyers themselves, were charged with the crime. Now, lawyers for the male defendant, Andrew Schmuhl, have put a court on notice they may employ a very unusual defense: involuntary intoxication.

    Schmuhl's attorneys told a Fairfax County Circuit Court judge they plan to use a rare involuntary intoxication defense -- arguing that his mental state at the time of the offense resulted from the use of medication.

    The horrific attack took place on a Sunday evening, November 9, 2014. Victim Leo Fisher testified at a preliminary hearing that a man knocked on the door claiming to be an officer, but then burst into the home and stunned him with a Taser. The attacker bound the victim and slit his throat. The victim's wife, Susan Duncan, was stabbed and shot in the head.

    "He raised a gun and he shot her ... and I thought he killed her," Fisher previously said. 

    The bullet grazed Duncan's head.

    Fisher testified he recognized the attacker as Alecia Schmuhl's husband. She had recently been fired from Fisher's law firm in Arlington, Virginia.

    Prosecutors believe Alecia Schmuhl was just outside the home during the attack, communicating by phone with her husband.

    Andrew Schmuhl fled after Susan Duncan was able to activate an alarm, prosecutors say. Police arrested the Schmuhls after a brief chase, and found Andrew Schmuhl clad only in a diaper.

    Criminal defense attorney Peter Greenspun, who is not representing the Schmuhls but has handled many high-profile cases, said the defense is more commonly used when someone is unwittingly slipped a drug, in a drink for instance.

    "It's going to be a very tough burden for the defense," he said. "If it's the wrong medication or he was misprescribed or he, for some reason, didn't know what he was taking, then it's certainly a fair argument."

    Greenspun said prosecutors are likely to argue the hours of torture could not have been carried out by someone drugged into intoxication.

    "The prosecutor will walk through every purposeful element and say, 'How could you be so intoxicated on drugs mistakenly that you didn't know what you were doing?'"

    Prosecutors also have pressed in court filings to try to get to defense to divulge whether they will rely on mental health experts to describe the medications' impact on Andrew Schmuhl.

    The judge has ruled that he will handle the issue of expert testimony at trial. In a November filing, Schmuhl's lawyers suggested they intended to assert at trial that Schmuhl's mental state at the time of the offense met the definition for insanity. Defense Attorney Brad Haywood would not say whether that defense would be dropped in favor of the involuntary intoxication defense.

    A wait for more DNA test results delayed the trial's expected Jan. 19 start date. Court filings show among the items to now be tested: bottles of NyQuil, a box of Benadryl and two empty plastic bottles that contained a mix of rubbing alcohol and gasoline.

    A new trial date will be set at a Jan. 19 hearing.