Ninth Circuit Declines to Find Ineffective Assistance of Counsel for Attorney’s Strategic Decision Not to Seek Third Neurological Exam in Capital Case Even Though Exam Recommended

Leavitt v. Arave, 2011 U.S. App. LEXIS 9944 (9th Cir. May 17, 2011)

The Ninth Circuit Court of Appeals reversed the decision of the Idaho federal district court that had granted a new sentencing hearing to a defendant sentenced to death on the grounds of ineffective assistance of counsel in this habeas corpus case. The Court found that the defendant’s attorney made a reasonable strategic decision at the sentencing phase not to seek another neurological examination. The defendant was convicted of a gruesome stabbing murder in which he removed the victim’s sex organs. The expert who examined the defendant diagnosed him with antisocial personality disorder and intermittent explosive disorder, but recommended a follow-up MRI following an inconclusive neurologic examination to rule out an organic disorder. The trial judge who was deciding the sentence demonstrated hostility toward hearing any further psychiatric evidence, stating that such evidence tended to hurt more than help the defendant. The judge intimated that the evidence indicated an inclination on the part of the defendant to commit further violent acts. The Court held that the defendant’s counsel made the strategic decision to try to convince the judge that his client was a “good guy” even though he was aware of the possibility of brain damage as mitigating evidence. He was therefore not ineffective, as the district court had found, for failure to thoroughly investigate the defendant’s mental health condition.

Found in DMHL Volume 30 Issue 6

Texas Supreme Court Holds Expert Need Not Be Psychiatrist or Psychologist to Testify in SVP Commitment Proceeding

In re Commitment of Bohannan, 2012 Tex LEXIS 734 (Aug. 31, 2012)

The Texas Supreme Court ruled on August 31, 2012 that a licensed professional counselor and sex offender treatment provider was qualified to testify in a civil commitment proceeding for a sexually violent predator. Because the Texas statute did not limit expert testimony to only physicians or psychologists, the Court held that the general rule merely required an expert to have the knowledge, skill, experience, training or education to assist the trier of fact to understand the evidence or to determine a fact in issue.

On two separate occasions in 1982, the defendant Michael Wayne Bohannan stalked women, broke into their homes and raped them at knife point. He was sentenced to 25 years in prison, but was released on mandatory parole in 1991. In April 1992, he was charged with attempting to kidnap a nine-year-old girl at K-Mart and was returned to prison. The defendant was again released in 1998 on mandatory supervision and in 2000 moved to South Carolina to live with his mother. There he was convicted of indecent exposure to an eight-year-old girl in a toy store. He denied the allegations but was returned to prison in Texas. The defendant was again released on mandatory supervision in 2004, but in 2006 his release was revoked for viewing child pornography in a county law library.

At the defendant’s SVP civil commitment hearing, a board certified forensic psychiatrist and board certified forensic psychologist testified that Bohannan was a sexually violent predator. Bohannan designated a licensed professional counselor as his expert. She testified outside the presence of the jury that she had been in private practice since 2000 providing behavioral therapy treatment for sex offenders, had received more than 1000 hours of training, sees more than 100 clients each week and has completed 18 SVP assessments. She also testified that, like the other experts, she had reviewed Bohannan’s records and interviewed him personally. She scored him a “5” on the Static-99 and an “8” on the MnSOST, somewhat lower than the government’s psychologist. Using the Hare Psychopathy Checklist, she also determined that Bohannan was not psychopathic. She further testified that in her opinion Bohannan did not have a behavioral abnormality at this time. The trial judge refused to permit her to testify, finding that only a physician or psychologist could provide medical testimony as to a behavioral abnormality. The jury then found Bohannan to be a sexually violent predator and the court ordered him committed.

On appeal, the Texas Court of Appeals reversed the trial court and ordered a new trial, finding that the Texas statutory definition of behavioral abnormality has two components, the first being whether a defendant has an acquired or congenital condition, and a predisposition to commit a sexually violent act to which a medical expert must testify. The second component the Court determined was whether a defendant is likely to commit a sexually violent act for which a medical expert is not required.

On further appeal, the Texas Supreme Court rejected the Court of Appeals’ bifurcated definition finding that the definition of behavioral abnormality was one all encompassing definition. It upheld the reversal, however, finding that the Texas statute did not require an expert to be a physician or psychologist. It noted that experts in criminal proceedings were required by statute to be physicians or psychologists, but no such requirement is found in the SVP statute therefore indicating that the legislature did not intend to impose such a requirement in SVP proceedings. The Supreme Court went on to find that the failure to permit Bohannan’s expert from testifying was not harmless error thus requiring a new trial.

Found in DMHL Volume 31 Issue 6

Mississippi Supreme Court Finds Failure to Appoint PTSD Expert Denies Due Process

Evans v. Mississippi, 2013 Miss. LEXIS 31 (Miss. January 31, 2013)

The Mississippi Supreme Court has held that the trial court’s refusal of funds for the defendant to hire a post-traumatic stress disorder (“PTSD”) expert was an abuse of discretion and denied the defendant his right to a fair trial. In so doing, the Supreme Court reversed the decisions of both the Court of Appeals and the trial court and remanded the case for a new trial.

In April 2007, Dante Lamar Evans, then age 14, was arrested for the murder of his father. In a videotaped police statement, Dante stated that he and his mother had been abused by his father, that his father had threatened to kill his mother on several occasions, that he had witnessed his father holding his mother underwater in the bath tub, and that his father tried to hit his mother with a car. He also stated that his father had lashed out against him, and at one point injured his eye. Dante was hospitalized with depression in 2001 and was diagnosed with PTSD.

In 2006, Dante moved with his mother to North Carolina, but after he began spending time with a gang and using drugs, she sent him to live with his father in Biloxi. In February 2007, Dante moved in with his father in a FEMA trailer, but after several weeks told the school guidance counselor that he had been thinking of killing his father. The counselor then called another counselor and he told them both that his father was beating him. The next morning the counselor called in the school social worker who told Dante that a parent has the right to discipline a child as long as they do not leave bruises. Dante explained that his father did not leave bruises, but did push and punch him in the chest and forbade him from contacting his mother. The social worker suggested Dante write his mother, but when he attempted to do so during class, the letter was confiscated. The school notified Dante’s father and scheduled a meeting with him. The father acknowledged that he was strict with his son but that they had a good relationship. Dante’s mother then called his father during the meeting and the father gave the phone to his son. The next day Dante came to school with a bruise next to his eye. Dante said his father had pushed him against the trailer. The Department of Social Services then investigated but found no reason to intervene. A few weeks later, Dante’s father was found dead from a gunshot wound. Dante told police he took his father’s handgun from a locked tool box two nights before the shooting and had practiced using it. At first it would not fire, indicating to him that he should not do this. He told police that he had no experience with guns.

In April 2008, the defense hired a psychologist to conduct a psychological examination of Dante to determine if he was competent to stand trial and his mental state at the time of the offense. The psychologist reported that Dante was competent but that he had been diagnosed previously with PTSD and was currently exhibiting symptoms of PTSD, including fear and a sense of helplessness, agitated behavior, outbursts of anger, difficulty concentrating, and intrusive memories of past abuse. The psychologist stated that she was not an expert in PTSD and recommended that another expert in PTSD be appointed to assist Dante in his defense of imperfect self-defense.

In April 2008, the defense hired a psychologist to conduct a psychological examination of Dante to determine if he was competent to stand trial and his mental state at the time of the offense. The psychologist reported that Dante was competent but that he had been diagnosed previously with PTSD and was currently exhibiting symptoms of PTSD, including fear and a sense of helplessness, agitated behavior, outbursts of anger, difficulty concentrating, and intrusive memories of past abuse. The psychologist stated that she was not an expert in PTSD and recommended that another expert in PTSD be appointed to assist Dante in his defense of imperfect self-defense.

On appeal, six of the judges of the Court of Appeals affirmed the conviction holding that the trial court properly denied the funds to hire an expert because the expert testimony was intended to support the theory of imperfect self-defense which was not supported by the evidence. Three judges dissented finding that a PTSD expert was necessary because such testimony was necessary to support this defense.

The Mississippi Supreme Court reversed finding that the denial of expert assistance in this case was in fact prejudicial to the assurance of a fair trial. The Court found each case must be decided on a case-by-case basis but that it would be an abuse of discretion to deny funds for an expert if a defendant had provided concrete reasons showing a substantial need for such assistance. The Court found that in this case Dante had met his burden of proof. The expert appointed to assess his competence to stand trial found him competent but indicated he had previously been diagnosed with PTSD and was currently exhibiting its symptoms. She stated she was not an expert in PTSD and therefore could not assist in the preparation of his defense, and specifically that PTSD affected his state of mind at the time of the offense. Although she could recognize the symptoms, she had stated that she did not have the expertise to explain to a jury PTSD’s effects on a person’s mental state.

Relying on Ake v. Oklahoma, 470 U.S. 68, 80-81 (1985), the Mississippi Supreme Court found that to support his theory of imperfect self-defense, Dante was required to show that he acted without malice and under a bona fide belief that his actions were necessary to avoid death or bodily harm. The Court explained that a defendant under Ake does not have a constitutional right to an expert of his own choosing, but based on the facts of this case, Dante had demonstrated that an expert in PTSD was needed to prepare an adequate defense. The Court determined that lay witnesses could not testify as to the symptoms and characteristics of PTSD and provide a medical diagnosis. An expert could also explain to the jury how a child’s mind could be affected when suffering from PTSD, and the lack of such information deprived Dante of a fair trial. Denying him the funds to hire such an expert was therefore an abuse of discretion and violated his due process right to a fair trial. The Supreme Court then reversed the decisions of both the Court of Appeals and the trial court, and remanded the case for a new trial.

Found in DMHL Volume 32 Issue 2

Fifth Circuit Holds Capital Defendant Not Entitled to All Expert Funding Requested; Was Competent-to-Be-Executed; Edwards Decision on State’s Right to Deny Self-Representation Not Retroactive

Panetti v. Stephens, 727 F.3d 398 (5th Cir. 2013.)

The Fifth Circuit Court of Appeals upheld the death penalty on August 21, 2013 for a mentally ill inmate alleging incompetence-to-be-executed, finding the district court’s decision to deny funding for additional expert assistance and testing was not an abuse of discretion. The Fifth Circuit also held that the district court’s decision weighed all of the evidence, including the inmate’s secretly recorded conversations with family, and was therefore not clearly erroneous. The Court further held that the United States Supreme Court case of Indiana v. Edwards, 554 U.S. 164 (2008), holding that the State may prohibit a mentally ill inmate found competent to stand trial from representing himself at trial had no retroactive application in federal habeas corpus proceedings.

In 1992, Scott Louis Panetti shot his estranged wife’s parents at close range, killing them and spraying his wife and three-year-old daughter with their blood. Panetti demanded to represent himself at trial although he had a long history of schizophrenia, and in spite of the trial judge’s pleas to accept counsel. His only defense was insanity. His appointed standby counsel described his self-representation as bizarre and his trial a farce and mockery of self-representation. The jury convicted him of capital murder and sentenced him to death. The conviction and sentence were upheld on direct appeal and collateral review.

In October 2003, the trial court set an execution date and Panetti filed a motion alleging for the first time that he was incompetent-to-be-executed. The trial court rejected the motion without a hearing. Texas law required Panetti to make a “substantial showing of incompetency” before entitling him to court-appointed experts. On federal habeas review, Panetti submitted additional evidence of mental illness and the district court stayed the execution to permit the state trial court to consider the renewed motion in light of the supplemental evidence. In February 2004, the state court appointed a psychiatrist and a clinical psychologist to examine Panetti, implicitly finding he had made a substantial showing of incompetency. These experts filed a joint report finding Panetti competent-to-be-executed. Without holding a hearing or ruling on Panetti’s motion to appoint him his own experts, the trial court found Panetti competent-to-be-executed.

Panetti then returned to federal court arguing that Texas’ failure to appoint him mental health experts and provide a hearing violated his due process rights under Ford v. Wainright, 477 U.S. 399 (1986). Ford held that denying a prisoner the right to present and rebut evidence in a competency-to-be-executed proceeding violated due process. The district court agreed and also found that such a denial by the state court was not entitled to deference under the Antiterrorism and Effective Death Penalty Act. Panetti’s experts then testified that he understood the reason for his execution – the murder of his in-laws, but his delusions caused him to believe Texas was in league with the forces of evil and sought to prevent him from preaching the Gospel. The State’s experts agreed Panetti was mentally ill, but his behavior was attributed to malingering. After hearing the evidence, the district court found that Panetti’s delusional belief system prevented him from rationally appreciating the connection between his crimes and his execution. But the district court found Panetti competent to be executed because the Fifth Circuit standard at that time was that the prisoner only needed to know the fact of his impending execution and the reason for it. The Fifth Circuit affirmed the district court decision and Panetti petitioned the United States Supreme Court for review.

In 2007, the United States Supreme Court granted Panetti’s petition for certiorari and reversed, finding the Fifth Circuit’s standard for competency-to-be-executed too restrictive. Declining, to set out a standard, the Supreme Court remanded the case requiring the district court to determine in a more definitive manner the nature and severity of Panetti’s mental health problems and whether his delusions impaired his concept of reality to the extent that he did not have a rational understanding of the reason for the execution. Panetti v. Quarterman, 551 U.S. 930 (2007).

On remand, the defense hired three experts, a clinical neurologist, a forensic psychiatrist and a forensic psychologist who had examined Panetti for the original hearing in 2004. These experts evaluated Panetti for a combined total of over 15 hours and administered a battery of tests designed to detect the likelihood of malingering. The district court authorized $9000 to pay the experts, but rejected his requests for additional funding. These experts all diagnosed Panetti with schizophrenia, although the psychologist who had examined him previously found Panetti had markedly improved since his 2004 examination. The other two experts testified that Panetti suffered from a genuine delusion that he was on death row to preach the Gospel and save souls. The defense also called two death row inmates who testified that Panetti preached incessantly in his cell and in the day room even though it irritated other inmates.

Texas presented testimony from a forensic psychologist and an expert psychiatrist and neurologist. Both testified that Panetti was partially fabricating his symptoms to thwart attempts to administer tests to detect malingering. The psychiatrist also doubted whether he was suffering from any form of mental illness, and was emphatic that Panetti had a rational understanding between his crime and execution because of his repeated assertions that he was unjustly convicted despite his insanity and that God had forgiven his guilt. Texas also called three correctional guards as witnesses who testified Panetti was never a problem; was generally wellbehaved, but would often have some religious statement to make; that the preaching was well thought out and the same as you would hear at church; and that some guards would assign Panetti to a cell to get revenge on an inmate because they knew his constant preaching would irritate him.

Texas also presented secret recordings of his conversations with his family. The tapes indicated that while Panetti did quote scripture and make religious comments, he did not rant or preach, and the conversations involved extended discussion about the trial judge’s corruptness and ineptitude. The district court’s summary of the tapes reflects that Panetti at no time became irrational, tangential or pressured in his speech. His comments about his legal proceedings reflected a fairly sophisticated understanding of his circumstances.

After hearing all of this evidence, the district court found that Panetti was seriously mentally ill and suffered from paranoid delusions of some type. The court also determined that Panetti was exaggerating some of his symptoms to avoid execution, stating that Panetti demonstrated a fairly sophisticated understanding of his case and that his refusal to cooperate with State experts contrasted with his treatment of his own experts. The district court then determined that Panetti had both a factual and rational understanding of his crime, his impending death and the causal retributive connection between the two.

On appeal, the Fifth Circuit first determined that the district court did not abuse its discretion in refusing to provide additional funding to permit his experts to review the secret recordings and to obtain a PET scan to detect malingering. The Fifth Circuit found that the district court authorized $9000 to fund an expert team to assist Panetti in presenting his competency evidence and they were able to review a large number of the secret recordings. The request for a PET scan also violated the court’s scheduling order. Although the Supreme Court’s decisions in Ford and Panetti established a constitutional right to expert assistance in Eighth Amendment competency-to-be-executed hearings, the Court held the cases merely entitle the inmate to an opportunity to present his own expert testimony before a neutral decision maker. The decisions do not require the court to provide all of the expert assistance the inmate requests.

The Fifth Circuit also agreed that the Supreme Court’s remand required a “rational understanding” test for Eighth Amendment competency-to-be-executed proceedings, but disagreed with the district court determination, finding that the test is not the same as the Dusky standard applied in competency to stand trial situations. The Eighth Amendment standard arises out of the retributive value of executing a person who has no comprehension of why he is being executed and the abhorrence of civilized societies to kill someone who has no capacity to come to grips with his own conscience or deity. Nonetheless, the Fifth Circuit agreed that the district court applied the correct rational understanding analysis in finding Panetti had both a factual and rational understanding of his crime, his impending death and the causal retributive connection between the two, based especially upon Panetti’s rationally articulated position that his punishment was unjustified because of his insanity at the time of his offense. The Fifth Circuit then found that the expert testimony was conflicting and that the district court’s finding of competency was therefore not clearly erroneous. The Court also found that the secret recordings generally corroborated the testimony of the State’s experts and that Panetti actually understood the reason for his punishment.

Finally, Panetti raised for the first time before the Fifth Circuit the issue that the State should not have permitted him to represent himself at trial. At the time of his trial, Panetti had been found competent to stand trial and then insisted on exercising his right of selfrepresentation. The United States Supreme Court cases of Faretta v. California, 422 U.S. 806 (1975), holding that defendants have a Sixth Amendment right to represent themselves, and Godinez v. Moran, 509 U.S. 389 (1993), suggesting that this right was absolute even if invoked by a severely mentally ill defendant, had been decided at the time of Panetti’s trial. The Supreme Court later held in Indiana v. Edwards, 554 U.S. 164 (2008), after Panetti’s trial, that the right of self-representation was not absolute and the State could insist that an attorney be appointed to represent a mentally ill defendant even though he had been found competent to stand trial.

The Fifth Circuit found, however, that this decision had no retroactive application to habeas petitions. In order to apply a new rule of constitutional law retroactively to federal habeas proceedings, the new rule must be a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceedings. The Court found that the right of the State to impose representation on a mentally ill defendant did not effect a sea change in criminal procedure. The Edwards decision also only applies in the exceptional situation where the defendant is competent to stand trial but so severely mentally ill that his self-representation threatens an improper conviction or sentence. Furthermore, Edwards is only permissive, allowing the state to insist on counsel but not requiring that it do so. The Court held that its application was therefore not retroactive.

Found in DMHL Volume 32 Issue 4

Supreme Court Reinstates Death Penalty Holding Prosecution May Introduce Expert Psychological Opinion Rebutting Voluntary Intoxication Defense

Kansas v. Cheever, _ U.S._ , 134 S.Ct. 596, 82 USLW 4032 (No. 12-609 Dec. 11, 2013) available at http://www.supremecourt.gov/opinions/13pdf/12-609_g314.pdf

In a unanimous opinion written by Justice Sonia Sotomayor, the United States Supreme Court held on December 11, 2013 that when a defense expert testifies that the defendant lacks the mens rea, or requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence. In so doing, the Supreme Court reversed the decision of the Kansas Supreme Court that introduction of expert testimony from a court-ordered examination to which the defendant had not agreed violated his Fifth Amendment right against self-incrimination.

In January 2005, Scott Cheever shot and killed a county sheriff and shot at other law enforcement officers who were attempting to arrest him on an outstanding warrant. Several hours prior to the shooting, Cheever and his friends had cooked and smoked methamphetamine. One of Cheever’s friends warned him that officers were on the way to arrest him. He attempted to flee in his car but it had a flat tire. He returned inside and hid with a friend in an upstairs bedroom. Hearing footsteps on the stairs, Cheever stepped out and shot the sheriff climbing the stairs. He returned to the bedroom briefly, but went back to the stairs and shot the sheriff again. He also fired at other officers and members of the SWAT team that had arrived.

The State charged Cheever with capital murder, but shortly thereafter, the Kansas Supreme Court found in an unrelated case that the State’s death penalty scheme was unconstitutional. Because the death penalty was no longer available, the state prosecutors dismissed the charges against Cheever and permitted federal prosecutors to indict him under the Federal Death Penalty Act.

Cheever filed a notice in the federal case that he intended to introduce evidence that his intoxication with methamphetamine prevented him from forming the specific intent to commit the crime. The federal district court ordered Cheever to submit to a psychiatric evaluation to assess how methamphetamine had affected him when he committed the crime. The federal court, however, suspended the proceedings during jury selection when defense counsel became unable to proceed, and then dismissed the case without prejudice. In the interim, the United States Supreme Court reversed the Kansas Supreme Court in the unrelated case, holding that the Kansas death penalty scheme was constitutional.

Kansas then refiled the state proceedings against Cheever at which he presented a voluntary intoxication defense, arguing that his methamphetamine use had made him incapable of premeditation. He presented evidence at trial from a psychiatric pharmacologist that long-term methamphetamine use had damaged his brain. The expert testified that Cheever was acutely intoxicated at the time of the shooting. The State then sought to present rebuttal testimony from the forensic psychiatrist who had examined Cheever under the federal court order. Cheever objected on the grounds that he had not voluntarily agreed to the examination and the expert’s testimony would therefore violate his Fifth Amendment right against self-incrimination. The trial court admitted the testimony and the expert testified that Cheever shot the sheriff because of his antisocial personality and not because of his methamphetamine use. The jury convicted Cheever of murder and attempted murder, and recommended the death penalty, which the court imposed.

On appeal, the Kansas Supreme Court agreed that use of the rebuttal testimony from the expert in the federal proceeding violated Cheever’s Fifth Amendment rights because he had neither initiated the examination nor put his mental capacity in issue at trial. In so deciding, the Kansas Supreme Court relied upon the United Supreme Court decision in Estelle v. Smith, 451 U.S. 454 (1981), holding that a court-ordered psychiatric examination violated the defendant’s Fifth Amendment rights when the defendant had not initiated the examination or put his mental capacity in dispute at trial. The Court acknowledged the later-decided case of Buchanan v. Kentucky, 483 U.S. 402 (1987), which held that where a defense expert who has examined the defendant testifies that the defendant lacks the requisite mental state to commit an offense, the prosecution may present psychiatric evidence in rebuttal. But the Kansas Court found Buchanan did not apply because under Kansas law voluntary intoxication is not a “mental disease or defect.” The State of Kansas then petitioned the United States Supreme Court for a writ of certiorari, which the Court granted.

The Supreme Court reversed distinguishing this case from Estelle, pointing out that the judge in Estelle had ordered a psychiatric examination to determine the defendant’s competency to stand trial. The prosecution then used the defendant’s statements from the examination during the sentencing phase of trial to demonstrate the defendant’s future dangerousness. Instead, the Supreme Court relied on Buchanan, finding that “mental status” is a much broader term than “mental disease or defect.” It held that mental status defenses include those based on expert opinion as to the defendant’s mens rea, that is, his mental capacity to commit the crime or ability to premeditate. The Court reasoned that to allow a defendant to present one-sided and potentially inaccurate evidence to the jury would undermine the adversarial process. On the other hand, permitting the prosecution to present rebuttal testimony harmonizes with the principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not permit him to refuse to answer related questions on cross-examination.

In this case, Cheever presented expert evidence of his voluntary intoxication to support his defense that he lacked the requisite intent to commit murder. The Supreme Court held that the prosecution may therefore offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence. The Court then reversed the Kansas Supreme Court decision, reinstated the death penalty and remanded the case for further proceedings.

Found in DMHL Volume 33 Issue 1

Ninth Circuit Holds Expert in Competency Evaluation May Testify As to Diminished Capacity Defense

United States v. Christian, _F.3d _, 2014 WL 1491887 (9th Cir. Apr. 17, 2014)

The Ninth Circuit Court of Appeals held on April 17, 2014, that the district court abused its discretion in refusing to permit an expert psychologist who had completed a competency evaluation of the defendant to testify in support of the defendant’s diminished capacity defense. The Court of Appeals determined that the district court had focused in error on the different legal standards related to competency to stand trial and diminished capacity rather than focusing on whether the substance of the expert’s testimony would have assisted the jury in deciding whether the defendant could form the requisite intent to commit the crimes charged.

Eric Leon Christian was convicted of two counts of sending threatening emails through interstate commerce. In May 2009, he first emailed the then Chief of the North Las Vegas Police Department asking for assistance in retrieving his car, which had been repossessed several months earlier. When the police chief responded that the police could not assist him, he sent an email containing several threats of violence, including “I will have to kill to retrieve my stolen and items [sic] if you do not return them” and “This communication is protected by the First Amendment and my undying declaration of ridding the earth of terrorist, [sic] who take away Constitutional Rights like YOU and the thief who has my car.” Christian also emailed threats to the then chief deputy city attorney and the chief prosecutor for North Las Vegas. He had requested copies of case files for two cases, neither of which had been prosecuted by the attorney or the city attorney’s office. Christian followed with an email threatening to “get a mob together and start a civil war” to kill a state court judge or the attorney himself unless the attorney “g[o]t the Writ of Habeas Corpus out of the way.”

In an unrelated state court proceeding, a psychologist had evaluated Christian’s competency to stand trial. The psychologist interviewed Christian for about an hour, following an outline designed to assess the core competencies related to a defendant’s ability to assist in his defense. Christian was hostile and uncooperative during the interview, and the psychologist assessed his competence level in all areas to be inadequate. He determined that Christian could not communicate relevant information to his attorney, make rational decisions about plea bargaining or asserting a mental illness defense, or behave appropriately in the courtroom. The psychologist diagnosed Christian with psychosis, not otherwise specified, probably delusional or paranoid; personality disorder, not otherwise specified; and probable learning disabilities, not otherwise specified. He also believed Christian was at high risk for homicidal behaviors and recommended his transfer to another facility for treatment and medication management.

Prior to trial on these charges, Christian gave notice of his intent to call the psychologist as an expert witness. His sole defense to the charges was diminished capacity in which he argued that he was incapable of forming the specific intent required by the charge, in this case, the specific intent to threaten. The police chief and attorney both testified for the prosecution that they had felt threatened by the emails and had taken precautions to protect themselves and others. The police chief also testified that he thought Christian was very upset and “very disturbed.” At the close of the government’s case, Christian’s attorney informed the district court that he intended to call the psychologist to testify regarding Christian’s diminished capacity defense. Without conducting a voir dire of the psychologist to determine the substance of his testimony or to permit counsel to proffer what his specific testimony would be, the district court determined that because the legal standards for competency to stand trial and the diminished capacity defense, which concerns “whether the defendant has the ability to attain the culpable state of mind which defines the crime,” the expert could not testify. Christian’s attorney then rested his case without presenting any other evidence or calling Christian to testify. He then asked for a diminished capacity instruction to the jury, which the district court denied because there was no evidence in the record that would support such an instruction. The jury convicted Christian on both counts.

Christian appealed to the Ninth Circuit Court of Appeals arguing that the district court had abused its discretion by refusing to let him introduce expert testimony in support of his diminished capacity defense and refusing his diminished capacity instruction. The Court of Appeals agreed with Christian on the district court’s refusal to admit the expert testimony, finding that the district court had focused exclusively on the different legal standards. Instead the court should have determined whether the testimony regarding he psychologist’s observations and diagnoses of Christian would have been relevant and helpful to the jury in evaluating his diminished capacity defense. The Court then decided that the failure to allow the expert testimony was not harmless error and a new trial was necessary. Because the district court had not conducted a voir dire of the expert, the district court on remand must first do so, assessing whether the testimony would in fact be relevant and would assist the jury in assessing the diminished capacity defense. Once the district court does this, and if it then determines the evidence is relevant and would be of assistance to the jury, it should allow the testimony.

The Ninth Circuit rejected Christian’s argument that the district court erred in not giving the jury a diminished capacity instruction. He had argued that the threats in the emails themselves were inherently irrational and were sufficient to warrant a diminished capacity instruction. He also argued that even the police chief believed him to be “very disturbed.” The Ninth Circuit found that these arguments alone were insufficient to require a diminished capacity instruction, but if there had been any evidence in the record, the instruction should have been given. The Appellate Court then held, however, that if any evidence on remand, expert or otherwise, supports a link between Christian’s mental illness and his ability to form the intent to threaten, then the instruction must be given. The Ninth Circuit vacated the conviction and remanded the case to the district court for a new trial.

Found in DMHL Volume 33 Issue 2

Insanity defense (Georgia)

Notes and reports of mental health experts examining defendant for purposes of assisting defense counsel in regard to possible insanity defense are protected from discovery by the attorney-client privilege, as long as the experts do not testify at trial and the experts who do testify do not use that information

Neuman v. State No. S15A0011, 2015 WL 3658828 (Ga. June 15, 2015)

Hemy Neuman was tried for murder and firearm possession in Georgia state court; he pleaded not guilty and intended to raise the insanity defense. The jury eventually found the defendant guilty but mentally ill, and Neuman appealed on the grounds that the trial court improperly admitted evidence protected by attorney-client privilege. During discovery, the State sought the records of doctors retained by defense counsel as consultants on the issue of Neuman’s mental condition. Over Neuman’s objection, the trial court admitted the records, including statements Neuman had made during the doctors’ evaluations, even though defense counsel had not intended to call the doctors as witnesses at trial.

The Georgia Supreme Court held the doctors’ notes, evaluations, and the statements made to them by the defendant were all protected by the attorney-client privilege. It rejected the State’s argument that “merely raising an insanity defense waives the attorney-client privilege for these communications.” The Court joined “numerous other jurisdictions in holding that the attorney-client privilege applies to confidential communications, related to the matters on which legal advice is being sought, between the attorneys, their agents, or their client, and an expert engaged by the attorney to aid in the client's representation.” The Court further held that privilege is “not waived if the expert will neither serve as a witness at trial nor provide any basis for the formulation of other experts' trial testimony.” The Court did note, however, that if counsel later decided to include the expert or experts as witnesses at trial, “the cloak of privilege ends.”

Found in DMHL Volume 34 Issue 2

Mental illness and mens rea

Right to due process in criminal trial may be violated by state trial court’s exclusion of proffered expert testimony that, because of defendant’s mental condition, defendant lacked the mens rea required under state law to be guilty of the crime charged

Roberson v. Stephens, 2015 WL 3396822 (5th Cir. 2015) (per curiam) (unpublished opinion)

Robert Roberson was convicted of capital murder in the death of his daughter and sentenced to death. On direct appeal to the Texas Court of Criminal Appeals, Roberson argued inter alia that the trial court’s exclusion of his expert witness’s testimony regarding his organic brain syndrome violated his constitutional right to present a complete defense. Texas law does not recognize diminished capacity as an affirmative defense, but does allow evidence to negate the mens rea element of offenses. The Court of Criminal Appeals rejected Roberson’s claim, concluding that the doctor’s testimony was “not relevant as to Roberson’s ability to form the requisite mens rea for the offense” but “was merely being used as a mental-health defense not rising to the level of insanity.” After his direct appeal, Roberson filed applications for a writ of habeas corpus first in state court and then in the United States District Court for the Eastern District of Texas, but was denied.

The Fifth Circuit, in a per curiam opinion, granted a certificate of appealability as to Roberson’s due process mens rea evidence claim. It noted that “evidence rules that infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve” infringe the Constitutional guarantee to “a meaningful opportunity to present a complete defense.” Although it granted the certificate of appealability, the Fifth Circuit made it clear that Roberson still bears the burden of persuading the Court that the expert testimony was “substantial enough that its exclusion constituted an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States” as is required by 28 U.S.C. § 2254(d)(1) for habeas relief.

Found in DMHL Volume 34 Issue 2

Use of Expert Mental Health Testimony in Criminal Cases

United States v. West, No. 14-2514, 2015 WL 9487929 (7th Cir. Dec. 30, 2015)

In a case of illegal gun possession that rested almost exclusively on defendant’s replies to police questioning that the gun in question was his, testimony by an expert that the defendant’s admission was unreliable due his low IQ, mental illness and high suggestibility should not be excluded.

Background: Antonio West was indicted for possessing a firearm as a felon in violation of 18 U.S.C. § 922(g). The gun was found in the attic of the family home during a consensual search for a stolen television. No fingerprints were recovered from the gun, and there was conflicting evidence regarding whether West actually lived in the home in which the gun was found. As such, the case for possession rested on West’s admission to police that the gun was his. West’s attorney moved to suppress his statements to police based on expert testimony that West had a low IQ, suffered from mental illness, and scored highly on the Gudjonsson Suggestibility Scale. The district court denied the motion, finding that West had competently and voluntarily waived his Miranda rights. West’s attorney then moved to admit the expert testimony at trial to (1) assist the jury in assessing the reliability of the confession, (2) negate the intent element of the offense, and (3) explain West’s demeanor should he testify. The judge excluded the evidence on all three grounds and the jury found West guilty.

Holding: On appeal, the Seventh Circuit reversed the decision of the district court and remanded for a new trial. The Court agreed with West that the exclusion of expert testimony regarding West’s IQ was reversible error. Because the government’s case relied heavily on the jury’s acceptance of West’s confession, the district court’s decision to exclude expert testimony regarding the potential reliability of that confession could not have been harmless error.

Notable Points: 

The expert’s testimony regarding West’s IQ was relevant to the question of the reliability of the confession: The Seventh Circuit held that expert testimony explaining that a defendant’s low IQ and mental illness could have influenced his responses to officers’ questions was certainly relevant and admissible where the major issue at trial was the reliability of the defendant’s confession. The expert testimony was highly relevant to the jury’s consideration of the defendant’s personal characteristics, and the government’s objection to the testimony went properly to its weight, not admissibility.

Erroneous exclusion of expert testimony warranted a new trial: Because the government’s case depended on whether the defendant knowingly possessed a firearm as a felon, and that determination rested largely on the defendant’s confession, the expert should have been allowed to testify. If he had, the jury might have discounted the defendant’s statement admitting that the gun was his. Given that, a new trial was required.

Found in Found in DMHL Volume 35, Issue 1