Ineffective Assistance, Rights Waiver

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Iannarelli v. Young, 904 N.W.2d 82 (S.D. 2017)

The Supreme Court of South Dakota upheld a sentence because the defendant waived his Fifth Amendment right against self-incrimination and he did not receive ineffective counsel either by failure to warn the defendant of his Fifth Amendment right prior to a psychological evaluation or by failure to request a hearing to determine if institutionalization may be appropriate.

Found in DMHL Volume 37, Issue 1

Civil Commitment, Rights Waiver

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Matter of S.M., 403 P.3d 324 (Mont. 2017)

The Supreme Court of Montana upheld a statute preventing defendants from being able to waive their right to counsel in civil commitment proceedings, finding it does not violate the Sixth or Fourteenth Amendments to the Constitution.

Found in DMHL Volume 37, Issue 1

Ruling Ordering Evidentiary Hearing on Whether Defendant's Confession to Prison Psychiatrist Was Involuntary Because He Believed Statements Were Protected by Confidentiality Agreement Not Disturbed

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Beaty v. Stewart, 303 F.3d 975 (9th Cir. 2002), cert. denied, Stewart v. Beaty, 123 S. Ct. 2073 (2003); 71(44) U.S. Law Week 3715 (May 20, 2003)

The Supreme Court declined to review a decision by the Ninth Circuit that permitted a criminal defendant to obtain a new hearing on whether his confession had been involuntary under the Fifth Amendment.  The defendant had been convicted of murder partly on the strength of a prison psychiatrist's testimony regarding a confession the defendant made to him after a group therapy session.  The Ninth Circuit held the defendant was entitled to a hearing on whether he reasonably believed his statements to the psychiatrist were protected by a confidentiality agreement he had signed that promised that "all group communication" would be kept confidential...

Found in DMHL Volume 23 Issue 1

Judge Cannot Compel Medical Exam and Evaluation of Depressed Woman When She Is Capable of Exercising Informed Consent

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Cavuoto v. Buchanan County Dep't Soc. Servs., 605 S.E.2d 287 (Va. Ct. App. 2004)

A Virginia law authorizes judicial orders compelling individuals to submit to a medical examination and evaluation (VA. CODE § 37.1- 134.21). A circuit court judge issued such an order for a fifty-one-year-old woman who was suffering from morbid obesity and depression and who had been bedridden for more than two years, following a fire in the house in which she and her husband resided...

Found in DMHL Volume 24 Issue 2

Mentally Retarded Defendant Incompetent to Waive Miranda Rights and Confess to Murders; Ruling Not Disturbed

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Illinois v. Braggs, 810 N.E.2d 472 (Ill. 2004)

The Illinois Supreme Court reversed the conviction of a criminal defendant who was mentally retarded after it found that she was incompetent to waive her Miranda rights.  As a result, the confessions she had given the police were suppressed and a new trial was required if the state wished to continue to prosecute her for a pair of murders that occurred in a Chicago apartment where she was present...

Found in DMHL Volume 24 Issue 2

Privilege against Self-Incrimination Waived in Second Trial When Defendant Presented Mental Capacity Defense at First Trial

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Commonwealth v. Rosen, 2012 Pa. LEXIS 965 (April 25, 2012)

The Pennsylvania Supreme Court has upheld the decision of the Superior Court that a defendant who voluntarily waived his 5th Amendment right against self-incrimination by presenting a mental capacity defense at his first trial opened the door to the Commonwealth’s introduction of inculpatory statements at retrial, even though the defendant did not utilize the defense at his retrial.

The defendant was charged with first degree murder in the stabbing death of his wife and sentenced to life in prison. The defendant’s wife had been stabbed to death in the early morning hours of June 30, 2001. The defendant initially claimed that two intruders in ski masks and parkas committed the murder. He later gave multiple explanations for the murder and ultimately admitted killing his wife, stating they were arguing and each had a knife. He said his wife swung the knife at him, he stabbed her in the chest, and she then plunged the knife into her own neck. At his jury trial in 2002, the defendant relied on the defense of diminished capacity. His expert psychiatrist testified that the defendant suffered from manic-depressive illness accompanied by psychotic features and paranoia. He testified that the defendant was psychotic and incapable of forming the intent to kill his wife. The Commonwealth’s expert testified that the defendant had no mental disorder that would impair his capacity to form intent to kill his wife, relying on the fact that the wife planned to divorce him, that he delayed an hour in calling police and that he initially fabricated events. The jury convicted the defendant of first degree murder and the trial court sentence him to life in prison. The Pennsylvania Superior Court upheld the conviction and the Pennsylvania Supreme Court declined review.

The defendant then filed a post-conviction petition for relief alleging ineffective assistance of counsel for failure to call character witnesses that would have established that his mental instability prompted his actions and that he neither planned nor intended to kill his wife. The trial court conducted a hearing and dismissed his petition. The Superior Court reviewed the petition on appeal, reversed and remanded the case for a new trial. At retrial, the Commonwealth sought to introduce evidence of his mental stability presented by its expert at the original trial. The trial court ruled that since the defendant was not presenting mental infirmity as a defense on retrial, the Commonwealth could not present its expert psychiatric testimony as substantive evidence in its case in chief, but if the defendant testified on his own behalf, the Commonwealth could use the admissions of guilt contained in its expert’s testimony as rebuttal evidence. The defendant waived his right to a jury trial and proceeded with a bench trial. The Court found him guilty and again sentenced him to life in prison.

The Superior Court affirmed the trial court. On appeal from the Superior Court, the Pennsylvania Supreme Court relied on the decision in Commonwealth v. Santiago, 662 A.2d 610 (Pa. 1995) in which the court held that the defendant’s waiver of the psychiatric-patient privilege carries over to his retrial and on Commonwealth v. Boyle, 447 A.2d 250 (Pa. 1982), holding that if a defendant waives his 5th amendment privilege against self-incrimination and testifies at his first trial, his testimony is admissible at retrial even if he does not take the stand in the second trial. The Pennsylvania Supreme Court held that the two cases taken together support the admission of psychiatric testimony at the second trial. Once the privilege is waived, it is always waived, and no distinction need be made between the defense expert and Commonwealth’s expert. Either side may therefore introduce substantive evidence admitted in the first trial in the second trial.

Found in DMHL Volume 31 Issue 4

Ninth Circuit Finds Constitutional Right to Testify at Competency Hearing; Right Can Only Be Waived by Defendant, Not Counsel

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United States v. Gillenwater, 717 F.3d 1070 (9th Cir. 2013)

The Ninth Circuit Court of Appeals held on June 17, 2013 that a defendant has a constitutional and statutory right to testify at his pretrial competency hearing and only the defendant, not his counsel, can waive that right. The Court also held that the district court must first warn the defendant that his disruptive conduct may result in his removal from the courtroom and thus the loss of his right to testify. The Court further found that denial of the defendant’s right to testify in this case was not harmless error, resulting in reversal of the district court’s decision and remanding the case for a new pre-trial competency hearing.

The defendant Charles Lee Gillenwater, II, was charged in August 2011 in the Eastern District of Washington with two counts of transmission of threatening communications and a third count of transmission of threatening communications by United States mail. Gillenwater had previously worked on a construction project at Caesar’s Palace in Las Vegas, observed what he believed to be asbestos, and began taking increasingly drastic steps to report the situation to the Occupational Safety and Health Administration (“OSHA”). Following his indictment, the district court appointed the federal defender to represent Gillenwater. After the federal defender moved to withdraw as counsel, the court appointed a private attorney to represent him. Then after receiving several letters from Gillenwater concerning the public defender and hearing from the private attorney and Gillenwater in court, the court appointed additional counsel to meet with the defendant and report whether there was a need for a competency hearing. Upon receipt of this report, the court ordered a psychological evaluation and competency hearing.

Gillenwater was transferred to a federal detention center for evaluation but was uncooperative in the evaluation process. Although unable to fully interview Gillenwater or perform psychiatric tests, the examining psychologist submitted a report based upon her clinical interviews, observations of his behavior, and a review of his legal and medical records. The psychologist diagnosed Gillenwater as suffering from a delusional disorder, persecutory type that could substantially impair his ability to assist counsel in his defense. The psychologist reported and testified at the hearing that Gillenwater described his case as a government conspiracy to silence him from reporting OSHA violations and that he believed he was the victim of “tens of thousands” of computer attacks, that he was under constant surveillance, that people from OSHA and the casino were after him, and that newspapers had been bought off from reporting his allegations. Gillenwater had also accused his attorneys of committing crimes. According to law enforcement records, Gillenwater had contacted numerous State and federal officials including a US Senator from Washington state, saying powerful people were trying to kill his staff and frame him, and that the FBI would not protect him. Gillenwater also asked his attorney to subpoena 50-plus witnesses, including Obama Administration cabinet members, so that he could take his conspiracy theory to trial.

At the competency hearing held on January 12, 2012, the government only submitted the psychologist’s report and called her as a witness. It then recommended that Gillenwater receive competency-based restoration treatment. After the government finished introducing its evidence, Gillenwater’s attorney informed the court that Gillenwater wanted to testify but that he had advised him against it, and then stated the defendant had no further evidence. During this process, Gillenwater was whispering loudly to his attorney and then interrupted his counsel calling him a criminal. When admonished by the court for interrupting the proceedings, Gillenwater continued his expletive-filled remarks, and asked to be taken out of the courtroom, stating the evidence would clear him of the diagnosis, that the judge would not be a judge much longer, and that he would wait for the Republicans to be back in charge again. The court ordered him removed from the courtroom. It then found Gillenwater did not appear to understand the charges or the court process or to be able to assist counsel in his defense and ordered him remanded to the custody of the Attorney General for 60 days.

On appeal, the Ninth Circuit reviewed Gillenwater’s contention that he had been denied his right to testify at his pre-trial competency hearing and had not waived that right as a result of his disruptive behavior. The Ninth Circuit first determined that under federal law, 18 U.S.C. § 4247(d), a defendant has the right to testify at a pretrial competency hearing. The Ninth Circuit further found that the right to testify is contained in the Fourteenth Amendment due process guarantee of the right to be heard and to offer testimony. Moreover, the Ninth Circuit found that the right to testify is also embodied in the Compulsory Process Clause of the Sixth Amendment which grants a defendant the right to call witnesses in his favor. Logically included in that right, the Court noted, is the right to testify on one’s own behalf. This right is further found in the corollary to the Fifth Amendment right against self-incrimination. If a defendant cannot be compelled to testify against himself, he must also have the right to testify. Reviewing prior Supreme Court decisions holding that an individual has the right to testify in extrajudicial proceedings, such as probation revocation hearings and hearings involving termination of welfare benefits, the Ninth Circuit went on to hold that a defendant must have an equivalent right to testify in his pre-trial competency hearing.

The Ninth Circuit then held that because a defendant’s right to testify is a personal right, it can be relinquished only by the defendant himself, and the waiver must be knowing and intentional. The Court recognized that obtaining a knowing and intentional waiver may be difficult when the defendant’s competency is in question, but it noted that defense counsel plays an important role in ensuring that the defendant understands his right to testify, that it can be waived, and the consequences of either decision. Here, the Court found that Gillenwater clearly demonstrated that he wanted to testify despite his counsel’s advice to the contrary.

The Ninth Circuit also determined that a court has no affirmative duty to inform a defendant of his right to testify, but stated it does have a duty to warn the defendant of the consequences of his disruptive behavior before it removes him from the courtroom. In this case, the court never advised Gillenwater that his behavior could lead to the loss of his right to testify. Although Gillenwater asked to be removed from the courtroom, he never expressed any desire to waive his right to testify. The court did not expressly warn Gillenwater that his removal would result in the loss of his ability to testify and therefore he never effectively waived that right.

The Ninth Circuit went on to find that where a defendant is denied a constitutional right, the court on appeal must determine whether the denial was harmless error beyond a reasonable doubt. Here, the Court found that the district court only considered a single, incomplete psychological report and Gillenwater’s conduct in the courtroom. The Ninth Circuit found other ample evidence in the psychological report that Gillenwater was very intelligent, had no criminal history, and although he was hesitant to be interviewed, was pleasant, polite, cooperative, and articulate. Based on its review of the record, the Ninth Circuit found that the denial of the right to testify was harmless error and remanded the case for a new competency hearing. The Ninth Circuit then stated that if another competency hearing is held at which Gillenwater testifies, the district court must enter an order barring the use of his testimony at his trial. Such testimony may only be used to impeach Gillenwater if he testifies at trial, but not to prove his guilt.

Found in DMHL Volume 32 Issue 3

California Court Finds Unconstitutional Probation Condition Requiring Sex Offender to Waive Privilege against Self-Incrimination; PsychotherapistPatient Privilege Waiver Narrowed

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People v. Friday, 225 Cal.App.4th 8, 170 Cal.Rptr.3d 38 (March 27, 2014)

Under California law, Penal Code § 1203.067, any person placed on probation for a registerable sex offense must waive his Fifth Amendment right against self-incrimination and submit to regular polygraph examinations, and must also waive his psychotherapist-patient privilege. The California Court of Appeals of the Sixth Appellate District held on March 27, 2014 that this statutory requirement that an offender waive his Fifth Amendment privilege against self-incrimination is overly broad and all-inclusive, and is therefore unconstitutional. The Court also held that the requirement that the offender waive the psychotherapist-patient privilege is only valid insofar as necessary to enable communication between the probation officer and psychotherapist as to the offender’s progress in treatment and his risk assessment scores.

Jeffrey David Allen Friday pled no contest to possession of child pornography that he had downloaded to his computer in August 2012. Information revealed that he had been downloading pornography since he was 14 or 15 years old and was 19 at the time of the offense with which he was charged. Because there was “no identifiable victim,” his level of risk as a future offender was not assessed. He had no prior convictions.

As part of a plea agreement, Friday agreed to spend six months in jail without early release. The trial court suspended imposition of the sentence and imposed a three-year term of probation, including six months in jail and mandatory participation in a sex offender management program as a condition of probation. The court required Friday to comply with the following probation conditions: (1) to waive any privilege against self-incrimination and participate in polygraph examinations, which must be part of the sex offender management program; (2) to waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the probation officer; (3) not to purchase or possess any pornographic or sexually explicit material as it relates to minors, as defined by the probation officer; (4) not to possess or use any data encryption technique program; and (5) not to frequent, be employed by, or engage in any business where pornographic materials are openly exhibited. Both the conditions requiring waiver of the privilege against self-incrimination and the psychotherapist-patient privilege are required under California law.

Friday appealed the conditions of probation arguing that the requirement that he waive his privilege against self-incrimination and the psychotherapist-patient privilege were overbroad and therefore in violation of his constitutional rights. He also challenged as overbroad the condition requiring him to participate in polygraph examinations. He further challenged as vague and lacking a requirement of scienter or knowledge of the conditions prohibiting purchase or possession of pornography, possession or use of data encryption, and frequenting businesses where pornography is exhibited. The Appellate Court agreed with most of his arguments.

The Appellate Court first reviewed the requirements of the California law, Penal Code § 1203.067, that were enacted in 2010 to amend the Sex Offender Punishment, Control, and Containment Act of 2006. The amendments mandate that any person placed on formal probation for any offense requiring registration as a sex offender after July 1, 2012 successfully complete a sex offender management program. Subdivision (b)(3) requires the offender to waive his privilege against self-incrimination and participate in polygraph examinations as part of the program. Subdivision (b)(4) requires the offender to waive any psychotherapist-patient privilege to enable the sex offender management professional to communicate with the supervising probation officer. Specifically, the sex offender management professional must communicate with the probation officer at least once a month about the offender’s progress in the program and dynamic risk assessment issues and share pertinent information with the certified polygraph examiner as required. The professional must also administer the State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO) in two forms, the “SARATSO dynamic tool” and the “SARATSO future violence tool,” and provide these scores to the probation officer. The probation officer must in turn provide the scores to the Department of Justice which makes the scores accessible to law enforcement on its website.

The statute also requires the California Sex Offender Management Board to publish certification requirements for sex offender management programs and professionals. All certified programs must implement a “Containment Model” of treatment, the goal of which is “community and victim safety.” In direct contradiction of the statute, the certification standards state that “invocation of the Fifth Amendment right not to incriminate oneself during a sexual history polygraph cannot legally result in revocation.” Also, polygraphs must be used to enhance the assessment process and to help monitor the sex offender’s deviant fantasies and external behaviors, including access to potential victims.

The Court then reviewed the language of the Fifth Amendment and its jurisprudence. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” Under Minnesota v. Murphy, 465 U.S. 420 (1984), the Fifth Amendment right may be asserted in any proceeding, civil or criminal or judicial, investigatory or adjudicatory, and protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or lead to other evidence that could be so used. The Fifth Amendment does not, however, provide an absolute right to remain silent. Under “use and derivative use immunity,” a witness may be compelled to testify provided the state does not use the testimony or any use derived from it in a criminal prosecution against the witness.

The Court then found that the probation condition in this case required Friday to waive any privilege against self-incrimination and forgo any claim of immunity from prosecution. The Court found that the waiver included any claim of immunity Friday might have from prosecution for any past acts, whether sexual offenses or otherwise, that might be revealed through treatment or polygraph examination, and not just those related to the offense for which he was convicted. Although the Court recognized that convicted felons lose some of those constitutional rights that law-abiding citizens enjoy, Murphy held that the privilege against self-incrimination applies to both prisoners and probationers.

The Court also recognized that the state may require probationers to answer questions as a condition of probation provided the statements are not used against the probationer in a criminal prosecution. The Court stated that the requirement that the offender waive his right to self-incrimination undoubtedly furthers the public safety when it allows a sex offender who admits to ongoing dangerous offenses that would otherwise go unreported, but the Court found that the scope of the waiver goes too far in this case because it would allow the prosecution of an offender for any offense. The Court found that the state could accomplish the same goal by requiring the offender to answer questions truthfully without requiring a waiver of the privilege. If necessary, immunity could then be given the offender.

The Court also pointed out that a secondary purpose of the program was treatment and rehabilitation of the offender. By encouraging the offender to reveal and discuss mental dysfunctions, but compelling him to disclose incriminating information that could be used against him in subsequent prosecutions would discourage honesty and openness between the offender and his therapist and therefore thwart the purpose of the program. The Court also declined to limit the parameters of the waiver, finding that the statutory language was plain on its face and it had no authority to so limit it other than to hold it unconstitutional.

The Court also found that parameters of the polygraph examinations were overly broad and no limits were placed on the questions that could be asked. Under California case law, the Court found that conditions of probation are invalid when they have (1) no relationship to the crime for which the offender was convicted, (2) relate to conduct which is not in itself criminal, and (3) require or forbid conduct not reasonably related to future criminality. The Court held that the questions that could be posed during polygraph examinations must reasonably relate to the offender’s successful completion of the sex offender management program; the crime for which the offender was convicted; or to criminal behavior, whether past or future.

The Court then reviewed the arguments related to waiver of the psychotherapist-patient privilege, finding that the privilege falls within the zone of privacy first recognized by the United States Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1983). In this case, the statutory language states that the purpose of the waiver is to enable communication between the sex offender management professional and the supervising probation officer. The Court held that it would narrowly construe the requirement that the offender waive the privilege only as necessary to allow the sex offender management professional to communicate with the probation officer and provide the SARATSO scores. The Court also permitted the probation officer to communicate the scores to the Department of Justice to make them available to law enforcement. But beyond those communications, the information would remain confidential and could not be provided to third parties or used to prosecute the offender.

Finally, the Court also agreed with the defendant that the requirements of scienter, or knowledge that the conditions of probation would be violated, must be added to the conditions. The Court found that the offender could inadvertently or unknowingly come into possession of pornographic materials, obtain encryption programs that are readily available, or enter into an establishment that openly displays pornographic materials. The Court determined that the term “frequent” was also imprecise. The Court therefore modified the remaining terms to require that the offender not knowingly purchase or possess pornographic material, not knowingly utilize encryption techniques, and not knowingly enter into an establishment that openly displays pornographic material.

Found in DMHL Volume 33 Issue 2

Competency to waive counsel (Colorado)

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Colorado’s state-developed process for assessing competency meets constitutional requirements and does not require adoption of process set out by the U.S. Supreme Court in Indiana v. Edwards

People v. Davis, 2015 CO 36 (Colo. 2015). (This opinion has not been released for publication in the permanent law reports and until it is released, it is subject to revision or withdrawal.)

Rashaim Davis was convicted in a Colorado state court of possession and distribution of a controlled substance and various related charges. Prior to trial, Davis informed the court that he wanted to represent himself. During a pretrial colloquy, Davis told the trial court that he was taking an antidepressant, Wellbutrin, for “bipolarism” and “mental condition as far as…not trusting people,” but that the Wellbutrin did not completely control the paranoia that had led to his mistrust of his court-appointed lawyers. The trial court found that Davis was unable to voluntarily, knowingly, and intelligently waive his right to counsel. The court of appeals reversed the trial court’s order denying Davis’s request to proceed pro se, proscribing a new standard for a criminal defendant’s competency to waive the right to trial counsel, relying on the United States Supreme Court’s decision in Indiana v. Edwards, 554 U.S. 164 (2008).

The Colorado Supreme Court reversed the court of appeals, holding that Colorado’s “existing two-part, totality-of-the-circumstances analysis to determine whether a defendant has validly waived the right to counsel affords trial courts sufficient discretion to consider a defendant's mental illness.” The Colorado Supreme Court noted that state law already requires that a waiver of the right to counsel be both “voluntary” and “knowing and intelligent,” and that “mental illness might prevent him from broadly understanding the charges, punishments, defenses, and other essential facts of the case.” Thus, a trial court could “consider the defendant’s mental illness during its totality-ofthe-circumstances-analysis.” Additionally, the Colorado Supreme Court held that Colorado law does not require an Edwards standard because it already provides “what the Supreme Court sought in Edwards: an analytical scheme that appropriately considers whether mental illness should prevent the defendant from representing himself at trial.”

Found in DMHL Volume 34 Issue 2

Competence to enter into plea agreement

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District court abused its discretion in not sua sponte ordering competency evaluation based upon medical evidence of incompetence introduced for the defendant’s sentencing hearing

U.S. v. Wingo, 2015 WL 3698157 (11th Cir. 2015)

Andrew Wingo was a defendant in a complex securities fraud case, and was represented by counsel. Wingo made only brief appearances before the court, and ultimately entered into a plea agreement in which he pleaded guilty to just one of the numerous charges against him. Some evidence of Wingo’s health concerns came to light during early proceedings (e.g., bond revocation hearing), but neither his attorney nor the government raised any concerns about Wingo’s competence at the plea hearing. The issue of Wingo’s mental capacity was not raised until the sentencing phase approximately six months later, when Wingo’s attorney requested a reduced sentence based upon diagnoses of dementia and other cognitive impairments. The pre-sentence report from the government also noted Wingo’s cognitive impairments. The court at sentencing noted the medical information submitted regarding Wingo’s condition, but determined that this should not affect the length of sentence. Wingo appealed, arguing that the court had both a statutory and a constitutional duty to order a competency hearing sua sponte because there was reasonable cause to doubt his competence.

The Eleventh Circuit noted that in a prior case (Tiller v. Esposito, 911 F.2d 575, 576 (1990)) it had identified three factors to be considered in determining whether information establishes a “bona fide doubt regarding the defendant's competence.” After a detailed review of the evidence submitted prior to the sentencing hearing, the Eleventh Circuit found that the evidence was sufficient to create “reasonable cause to believe that Wingo was incompetent to proceed to trial or to plead guilty.” It found that the district court had abused its discretion in failing to sua sponte order a competency hearing, and remanded the case to the district court to determine “whether Wingo's competency can be evaluated nunc pro tunc, and if so, for an assessment of his competency at the time of his guilty plea and sentencing.” The Eleventh Circuit stated that if such evaluation were to find Wingo was incompetent at the time of the plea agreement, or if such evaluation is not possible, Wingo's conviction and sentence must be vacated, with the government having the right to try him if he becomes competent. If the evaluation were to find Wingo was competent, his conviction and sentence must be affirmed.

Found in DMHL Volume 34 Issue 2

Waiver of jury trial

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People v. Blackburn, 354 P.3d 268 (2015) & People v. Tran, 354 P.3d 148 (2015)

Under the California NGI and the MDO commitment statutes, the trial court must advise the defendant personally of his or her right to a jury trial and must obtain a waiver of that right from the defendant unless there is substantial evidence that the defendant lacks the capacity to waive right

Background: In the People v. Blackburn the Supreme Court of California addressed the meaning of provisions in the statutory scheme for extending the commitment of a mentally disordered offender (MDO) that require the trial court to "advise the person of his or her right to be represented by an attorney and of the right to a jury trial" and to hold a jury trial "unless waived by both the person and the district attorney." (Pen. Code, § 2972, subd. (a)). In the companion case, People v. Tran, the Court addressed nearly identical language in the statutory scheme for extending the involuntary commitment of a person originally committed after pleading not guilty by reason of insanity (NGI) to a criminal offense.

Holdings: Under both the NGI statute and the MDO statute, the trial court must advise the defendant personally of his or her right to a jury trial and, before holding a bench trial, must obtain a waiver of that right from the defendant unless the court finds substantial evidence that the defendant lacks the capacity to make a knowing and voluntary waiver, in which case defense counsel may control the waiver decision.

Notable Points:

The jury trial guarantee: In MDO and NGI commitment proceedings, as in a criminal trial, the jury guarantee is a basic protection the precise effects of which are unmeasurable and the denial of which defies analysis by harmless-error standards. Thus, the total deprivation of a jury trial without a valid waiver in such proceedings requires automatic reversal.

Lack of explicit findings regarding mental capacity: Acceptance by the trial court of counsel's waiver of an MDO or NGI defendant’s right to a jury trial without an explicit finding of substantial evidence that the offender lacked the capacity to make a knowing and voluntary waiver may be deemed harmless if the record affirmatively shows that there was substantial evidence that the offender lacked that capacity at the time of counsel's waiver. The requirement of an affirmative showing means that no valid waiver may be presumed from a silent record.

Found in DMHL Volume 34 Issue 3

Sex Offenders; Post-Sentence Civil Commitment

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State v. LeMere, 879 N.W.2d 580 (Wis. 2016)

Wisconsin Supreme Court rejects offender’s post-conviction motion to withdraw his guilty plea to child sexual assault charges, where offender argued his attorney’s failure to advise him that he could be civilly committed as a violent sex offender violated his Sixth Amendment right.

Background: LeMere was charged with one count of first-degree sexual assault of a child under the age of 13, one count of second-degree reckless endangerment, and one count of strangulation and suffocation. A status conference became a plea hearing when counsel for the parties informed the court that they had negotiated a plea agreement. Under the agreement, LeMere agreed to plead guilty to first-degree sexual assault of a child under the age of 13 in exchange for the other two charges against him being dismissed. The court then informed LeMere about the consequences of a guilty plea, including the possibility of continued civil commitment after the completion of his criminal incarceration. LeMere indicated that he understood and the court noted that LeMere appeared capable of understanding the proceedings. At a subsequent sentencing hearing, the court ordered 30 years of initial confinement followed by 15 years of extended supervision. One year later LeMere filed a motion to withdraw his guilty plea and vacate his conviction. He argued ineffective assistance of counsel because he was not informed of the possibility of lifetime civil commitment as a sexually violent person. The circuit court denied the motion and the court of appeals affirmed.

Holding: On appeal, the Wisconsin Supreme Court affirmed, holding that the failure to inform a defendant of the possibility of lifetime civil commitment does not form the basis of a claim of ineffective assistance of counsel and is not a violation of the Sixth Amendment.

Notable Points:

Failure to inform about the possibility of lifetime civil commitment as a sexually violent person distinguished from failure to inform about possibility of deportation: The Wisconsin Supreme Court distinguished this case from the failure to inform a defendant about the possibility of deportation, which the U.S. Supreme Court ruled was a violation of the Sixth Amendment. The Wisconsin Supreme Court emphasized that unlike deportation, civil commitment is not automatic or penal in nature. The court also explained that civil commitment is not meant to be permanent and is rehabilitative in nature.

Found in DMHL Volume 35, Issue 2

Juvenile Offenders; Knowing Waiver of Right Against Self-Incrimination

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Ohio v. Barker, 2016 Ohio 2708 (Ohio 2016)

Ohio Supreme Court rules that Ohio law providing that recorded statements made by defendant in custodial setting are presumed to be voluntary violates juvenile’s right to due process and does not remove burden from the state to prove that waiver of right against self-incrimination was knowingly made. 

Background: In October 2011, Tyshawn Barker was questioned by police while in custody concerning the shooting deaths of two individuals. The detectives recorded the interrogation, read Barker the Miranda warnings, and asked him to sign a “Notification of Rights” form, explaining “…I am going to ask you to sign it. You’re not admitting to anything. I am just telling you it just says that I read you this [the warnings], okay?” The form included a preprinted statement, “I understand my rights,” but did not indicate that by signing the form it would waive rights. Barker was evaluated as part of the juvenile court’s determination about transfer, and he was found to have a low IQ, below-gradelevel academic abilities, and to have an individualized education plan. Barker was transferred to adult court, where he moved to have his statements suppressed, arguing that he had not knowingly, intelligently and voluntarily waived his Miranda rights. The trial court dismissed his motion, not making a finding on his waiver, but finding that he had voluntarily made statements. Ohio law (R.C. 2933.81(B)) stated that recorded interrogations were presumed voluntary. Barker was convicted and he appealed. The First District Court of Appeals affirmed his convictions, finding support in the record for the trial court’s decision about his rights waiver despite the absence of an express finding on the point. Barker appealed.

Holding: The Supreme Court of Ohio reversed and remanded. The Court distinguished two issues: the rights waiver issue, which was rooted in the Fifth Amendment right against self-incrimination, and voluntary statements issue, which was rooted in the Fourteenth Amendment due process right. Addressing the rights waiver, the Court found that R.C. 2933.81(B) did not apply to waiver of Fifth Amendment rights, and noted that state and federal case law make clear that rights waivers cannot be presumed and state legislatures cannot supersede federal constitutional law. Ultimately, the Court held that the state retains the burden of proving that Barker waived his rights. As to the second issue, the Court noted that juveniles require greater protections than adults. The Court noted that voluntariness of statements is assessed via the totality of circumstances test, and that R.C. 2933.81(B) effectively blocked consideration of the totality of circumstances, at least in juvenile cases, by its presumption of voluntariness. Ultimately, it held the law to be unconstitutional as applied to juveniles.

Found in DMHL Volume 35, Issue 2

Intellectual Disability and Death Penalty

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White v. Commonwealth, No. 2013-SC-000791-MR, 2016 WL 2604759 (Ky. May 5, 2016)

Kentucky Supreme Court overturns trial court ruling that defendant waived claim that he was not subject to the death penalty due to intellectual disability after defendant had refused to accept evaluation by a state psychiatric center to determine intellectual disability and insisted on state payment for evaluation by a private psychologist.

Background: In 1980, White was convicted by a Powell Circuit Court jury of three counts of capital murder, three counts of first-degree robbery, and one count of burglary. He was sentenced to death for each of the three murders. Less than a month after he was sentenced, White was subjected to a psychological evaluation, which determined that he had an overall IQ score of 81. In 2004, White filed a motion in the Powell Circuit Court, based on Atkins v. Virginia, to set aside his death sentences on the grounds that he was intellectually disabled. White argued that the Kentucky Correctional Psychiatric Center (KCPC) was incapable of conducting the necessary evaluations to determine his competence for the death penalty, and that the state should instead pay for an independent evaluation by an intellectual disability expert selected by White. Over the next several years, several orders for evaluation by the trial court and subsequent writs of prohibition by both White and the Commonwealth were entered. The trial court ultimately rejected White’s demand for an independent evaluation and ordered an evaluation by the KCPC. White refused to cooperate with the evaluation by the KCPC, which the trial court ruled was a waiver of his intellectual disability claim.

Holding: On appeal, the Kentucky Supreme Court affirmed in part and reversed in part, holding that White is not entitled to public funds for an expert of his choosing. The court reversed the trial court’s judgment that White waived his right to an intellectual disability claim by refusing an evaluation by the KCPC.

Notable Points:

An evaluation by the KCPC does not violate a defendant’s Fifth Amendment right to remain silent during post-conviction proceedings: The court ruled that White’s Fifth Amendment rights would be minimally affected, if at all, by an evaluation by the KCPC. White was already tried and convicted of three murders; therefore, any inquiry by the mental health professionals into these crimes would not implicate the right.

Kentucky law barring executions of only those individuals with an IQ score of 70 or less was invalidated by the U.S. Supreme Court Decision in Hall v. Florida, 134 S. Ct. 1986 (2014): The Kentucky Supreme Court noted that the Hall decision “effectively invalidated our arbitrary intelligence score standard for evaluating” intellectual disability.

Found in DMHL Volume 35, Issue 2