NGRI; sentencing

Williams v. Commonwealth, 2017 WL 3751532 (Va. August 31, 2017)

The Virginia Supreme Court finds that in a case where defendant was found guilty on a charge of felony assault for one act and was found NGRI on another charge of felony assault for an act committed a month later, the trial court’s decision to order defendant to serve his prison term on his conviction before being hospitalized to treat his mental illness under the NGRI verdict did not result in a “grave injustice.” A concurring opinion noted the need for clarification in statutory guidance. A strong dissent argued that existing statutory law requires a different result.

Found in DMHL Volume 36, Issue 3

Criminal responsibility; self-induced intoxication

State v. Eager, 398 P.3d 756 (Haw. 2017)

The Hawai’i Supreme Court reverses felony assault conviction of defendant whose psychotic condition at the time of the assault was found by the trial court to be “self-induced” due to the defendant’s failure to take his medication. The Supreme Court rules that state law requires such intoxication be caused by the introduction of substances into the body,
not the failure to introduce substances.

Found in DMHL Volume 36, Issue 3

NGRI acquittees; constitutional standards for release from civil commitment

Poree v. Collins, 866 F.3d 235 (5th Cir. 2017)

Fifth Circuit rules that, although due process requires a finding of both current mental illness and dangerousness in order to maintain the civil confinement of an NGRI acquittee, the trial court’s determination of dangerousness may be based on the acquittee’s potential for dangerous conduct.

Found in DMHL Volume 36, Issue 3

Mental Health Experts, Jury Instructions, Not Guilty by Reason of Insanity

Commonwealth v. Piantedosi, 87 N.E.3d 549 (Mass. 2017)

Massachusetts Supreme Judicial Court upheld a conviction of first-degree murder because the judge correctly excluded expert testimony about a hearsay conversation not admitted into evidence, the Commonwealth’s expert witness testimony was proper, and the judge accurately instructed the jury with the appropriate model instructions at the time of the trial.

Found in DMHL Volume 37, Issue 1

Fourth Circuit Rejects Argument Capital Defendant Received Ineffective Assistance of Counsel on Voluntary Intoxication and Insanity Defenses and Alford Plea

Reid v. True, 349 F.3d 788 (4th Cir., 2003)

The Fourth Circuit rejected a Virginia capital defendant's argument he received ineffective assistance of counsel because counsel allegedly failed to adequately investigate and advise the defendant on a voluntary intoxication defense, an insanity defense, and entering an Alford plea. The defendant, who claimed to have no memory of the crime, was convicted pursuant to his Alford plea of murdering an 80-year-old woman. Under an Alford plea, a defendant pleads guilty even though he is unwilling or unable to admit his participation in the crime....

Found in DMHL Volume 23 Issue 1

Defendant Who Received Direct Command from God to Murder Is Unsuccessful in Raising Deific Decree Defense Because the Command Did Not Overcome His Cognitive Ability to Tell Right from Wrong

State v. Turgeon, 120 Wash. App. 1050 (2004)

Most states offer an insanity defense to defendants accused of committing a crime, although the nature of that defense varies somewhat from state to state. The State of Washington has adopted the M'Naghten test and will find a defendant legally insane if the defendant can establish that as a result of mental disease or defect the defendant was unable to perceive the nature and quality of the act or was unable to tell the difference between right and wrong with respect to the particular act charged...

Found in DMHL Volume 24 Issue 1

Andrea Yates Found Not Guilty by Reason of Insanity After Retrial

Yates Is Not Guilty by Reason of Insanity, WASH. POST, July 27, 2006, at A03; Rick Casey,  Yates Jury Wiser than Hired Guns, Hous. CHRON., Aug. 2, 2006

At roughly the same time that the United States Supreme Court was issuing its ruling in Clark v. Arizona, 126 S. Ct. 2709 (2006), that states can limit the scope of their insanity defense, a Texas jury returned a verdict that Andrea Yates was not guilty by reason of insanity for drowning her young children in their bathtub at home five years ago. Texas, like Arizona, employs an insanity defense that is limited to what the Supreme Court refers to as the moral incapacity test (i.e., that as a result of mental illness, the defendant did not know right from wrong)...

Found in DMHL Volume 25 Issue 2

Supreme Court Upholds Arizona's Ability to (1) Limit the Scope of the Insanity Defense and (2) Preclude the Use of Mental Health Expert Testimony in Conjunction with a Mens Rea Determination

Clark v. Arizona, 126 S. Ct. 2709 (2006)

In its recently completed term that began October 3, 2005, and ended June 29, 2006, the United States Supreme Court decided sixty-nine cases with a signed opinion.  After an unprecedented eleven years without a change in its membership, these opinions were closely watched to see whether the Court's direction would change with the addition of Chief Justice John G. Roberts, Jr., and Samuel A. Alito, Jr.  For many mental health professionals, the case of greatest interest, Clark v. Arizona, was issued on the final day of the term...

Found in DMHL Volume 25 Issue 2

Request for New Trial and Opportunity to Raise Insanity Defense Based on Newly Discovered Evidence of Dissociative Identity Disorder Refused

Orndorff v. Commonwealth, 613 S.E.2d 876 (Va. Ct. App. 2005)

The use of diagnoses of Dissociative Identity Disorder (DID) (formerly known as multiple personality disorder) tends to be particularly controversial in the legal system.  Concerns have been raised about the validity of this diagnosis, its identification, its potential for manipulation, and its application in legal proceedings...

Found in DMHL Volume 25 Issue 1

Lay Testimony to Support an Insanity Defense Permitted Only When Accompanied by Expert Testimony; Testimony by Licensed Clinical Social Worker Excluded

White v. Common­ wealth, 616 S.E.2d 49 (Va. Ct. App. 2005)

The challenge faced by the defendant at trial was that the court-appointed evaluator had determined that, although the defendant experienced psychotic symptoms (including hearing voices that he believed to be from God) at the time of the offense, the defendant's cocaine use had initiated and exacerbated these symptoms and thus the defendant was not legally insane at the time of the crime. In response, the defendant sought to introduce the testimony of a licensed clinical social worker who worked at the jail where the defendant was held and who saw the defendant two weeks after the offense and ten times over the next six months. Because the symptoms continued during incarceration when the defendant had no access to illicit drugs, the social worker was prepared to testify that the psychotic symptoms were unrelated to drug use...

Found in DMHL Volume 25 Issue 1

Court Authorizes Lay Testimony of Defendant’s Behavior for Three Years Since His Return from Iraq to Support Insanity Defense

United States v. Goodman, 2011 U.S.App. LEXIS 1760 (10th Cir. Jan. 28, 2011)

In a case from Oklahoma, the 10th Circuit Court of Appeals has overturned the conviction of an Iraqi war veteran convicted of three armed robberies and an attempted armed robbery and ordered a new trail. Relying solely on the insanity defense, the defendant who suffered a mental breakdown on the battle field, argued and the 10th Circuit agreed, that the district court improperly limited lay testimony to observations of his behavior immediately before and after his eight-day robbery spree rather than permitting testimony about his erratic behavior for the three years since his return from Iraq. The Court found that the temporal limits imposed were improper because the evidence excluded was not too stale. The evidence was only at most three years old and part of a continuous pattern beginning with his post-combat psychiatric treatment. The Court also held that the trial court improperly precluded opinion testimony by lay witnesses under Federal Rule of Evidence 704(b). Rule 704(b) only bars experts from offering opinions about a criminal’s state of mind. Rule 704(a) permits lay opinion on the ultimate issue before the court.

Found in DMHL Volume 30 Issue 2

Arkansas Denies Insanity Acquittee Appeal

Hughes v. State of Arkansas, 2011 Ark. 147; 2011 Ark. LEXIS 134 (April 7, 2011)

The Arkansas Supreme Court has held that a defendant who was acquitted of a criminal offense as a result of mental disease or defect and committed to a mental health facility could not appeal his acquittal because the Court only has jurisdiction to hear appeals of criminal “convictions.” The defendant in this case was charged with the offense of terroristic threatening by threatening to cause death or serious physical injury to the congregation of Harvest Time Tabernacle Church. Upon questioning by police, the defendant threatened to kill himself, asked for a gun and cried like a baby. The prosecution moved the trial court for an evaluation of the defendant’s competency to stand trial, which the court ordered. Upon receipt of the evaluation report, the defendant moved to exclude the evaluation. The trial court denied the motion and proceeded to hear evidence on the underlying charge. After hearing the evidence, the trial judge found the defendant had committed the offense but suffered from a mental disease or defect and did not have the capacity to conform his conduct to the requirements of the law. He therefore acquitted the defendant, but committed him to a mental health facility. The defendant appealed on the grounds that the court erred by finding he committed the offense of terroristic threatening and by compelling him to use the affirmative defense of mental disease or defect, thereby depriving him of his constitutional right of trial by jury.

Found in DMHL Volume 30 Issue 4

Ninth Circuit Finds NGRI Acquittee May Appeal Rulings Made in Criminal Proceeding

United States v. Vela, 624 F.2d 1148 (9th Cir. 2010)

Unlike the Arkansas Supreme Court in Hughes v. State of Arkansas, 2011 Ark. 147; 2011 Ark. LEXIS 134 (April 7, 2011) and reported in Issue 4 of Developments in Mental Health Law, the Ninth Circuit Court of Appeals found that federal courts have statutory authority to hear the appeal of a defendant in a criminal case who was found not guilty by reason of insanity. In the Ninth Circuit case, a defendant found NGRI attempted to appeal the trial court’s ruling refusing to dismiss the indictment against him and another ruling prohibiting him from presenting a diminished capacity defense. The defendant had been charged with assault of a federal officer, having stabbed a customs and border protection chief in the chest with a knife. He argued that the indictment should have been dismissed for failure to contain an element of specific intent and the verdict reversed for the trial court’s failure to instruct the jury on a defense of diminished capacity. The defendant also raised the insanity defense and presented expert testimony in support of that defense and the jury returned a NGRI verdict. He argued, however, that the trial court denied him the opportunity for an outright acquittal. The government argued that a verdict of not guilty by reason of insanity does not result in a judgment of conviction subject to appeal. It also argued that there was no final decision from which to appeal a NGRI verdict because the verdict did not result in a sentence.

The Ninth Circuit recognized that the right of appeal is purely statutory, but found that 28 U.S.C. § 1291 affords jurisdiction to review all final decisions of district courts. The Court noted that the final decision in a criminal case is not triggered until there is a conviction and imposition of a sentence. But here the Court found that the lack of a sentence does not preclude finality because the criminal case has terminated. The Court further found that the defendant’s ability to appeal his civil commitment does not provide an adequate substitute for an appeal of the issues raised in his criminal trial and indeed the defendant might be precluded from raising those issues in a civil commitment appeal.

As you may recall from Issue 4 of Developments in Mental Health Law, the Arkansas Supreme Court held by contrast that a defendant who was acquitted of a criminal offense as a result of mental disease or defect and committed to a mental health facility could not appeal his acquittal because the Court only had jurisdiction to hear appeals of criminal “convictions.” The defendant had appealed on the grounds that the court erred by finding he committed the offense of terroristic threatening and by compelling him to use the affirmative defense of mental disease or defect, thereby depriving him of his constitutional right of trial by jury. Similarly, Virginia does not recognize a right of appeal unless such a right is specifically provided by statute. It is doubtful therefore whether the Virginia Court of Appeals or Virginia Supreme Court would entertain such an appeal in a similar case absent a clear statutory provision authorizing that appeal.

Found in DMHL Volume 30 Issue 5

Iowa Supreme Court Finds Due Process Does Not Require Jury Instruction on Consequences of Insanity Verdict

Iowa v. Becker, 818 N.W.2d 135 (Iowa 2012)

The Iowa Supreme Court has held that the jury instructions given by the trial court in this case, when read as a whole, fairly and accurately described the insanity defense under Iowa law. Due process did not require the court to instruct the jury on the consequences of an insanity verdict even when the jury requested such information.

The defendant Mark Becker shot and killed his former football coach in a high school weight room on June 24, 2009 in front of numerous high school students and was charged with first degree murder. His mother testified that he was an active and friendly child until the end of his freshman year in high school when he started to withdraw a little. After attending one semester of college, Becker dropped out and became more inward, depressed and very uncommunicative. In September 2008, he began a series of escalating violent episodes, including assaulting his mother. These episodes resulted in several week-long psychiatric commitments and the prescription of medication that he would take sporadically.

Four days before the shooting, Becker knocked on the door of a residence, and when he was not admitted, he smashed the storm door, a picture window and a garage window with a baseball bat, and tried to drive his car through the garage door. Becker was arrested, booked and then sent to a psychiatric unit for evaluation. The following day he was diagnosed with paranoid schizophrenia and given medications. Two days later he requested release, and appearing to the psychiatric unit to be better, it released him without notifying the sheriff. The local mental health services coordinator assisted him in opening his apartment because the police still had his keys and made plans to fill his prescriptions the next day. However, Becker called his parents and spent the night at their home.

Becker arose at 4:30 a.m., and had coffee with his parents later that morning before they left for work. He then pried open the gun cabinet in his parents’ basement, removed a .22 caliber revolver and practiced shooting at a birdhouse in the yard. Becker then drove to a house in a neighboring town looking for his former coach. When told the coach did not live there, he returned to his town, asking people where he could find the coach, and saying he was working with the coach on a tornado relief project. He was told the coach might be teaching driver education at the local elementary school. Becker then drove to the elementary school and upon arrival asked the custodian where he might find the coach. Since the high school had been damaged by a tornado, a temporary weight room had been set up in the nearby elementary school. When told that was where he might find the coach, he drove around to the weight room, but left the gun in the car. Upon determining that the coach was there, he returned to the car, put the gun in his coveralls, later explaining the coveralls would hide the gun, and reentered the weight room. He then shot the coach six times in the head, chest and leg, and proceeded to kick and stomp him. He then left the weight room screaming that he had killed Satan. Becker then drove to his parents’ home where he was arrested and charged with first degree murder.

At trial, Becker raised the insanity defense. Two psychiatrists testified that he suffered from paranoid schizophrenia and, as a result, was unable to understand the nature or consequences of his actions and was incapable of distinguishing right from wrong. The prosecution called two psychiatrists in rebuttal who agreed he was paranoid schizophrenic but that he understood the nature and consequences of his action and knew right from wrong. The jury deliberated for several days and sent several questions to the court including what would happen if Becker were found not-guilty-by-reason-of-insanity. The court referred the jury to Instruction 10 that informed them that in the case of a guilty verdict, they would have nothing to do with punishment. In response to the question, the court also informed the jury that in the event of either a guilty verdict or a not-guilty-by-reason-of-insanity verdict, they would have nothing to do with the consequences and these were issues for the court, not the jury. The jury then returned a verdict of guilty and the court sentenced Becker to life in prison without parole.

Becker appealed his conviction on the grounds that the jury instructions did not accurately define the elements of the insanity defense and that the court violated his due process rights under the Iowa constitution when it refused to instruct the jury on the consequences of a not-guilty-by-reason-of-insanity-verdict.

Under Iowa law, a defendant may be found not-guilty-by-reason-of-insanity if he shows that a diseased or deranged condition of the mind rendered him incapable of knowing the nature and quality of the act he is committing or incapable of distinguishing between right and wrong in relation to that act. It has no irresistible impulse prong. The Iowa Supreme Court found that although a defendant is ordinarily entitled to have his instructions presented to the jury and his instruction in the case stated the law more coherently and concisely, courts’ instructions are not required to contain the precise language of the applicable statute. The trial court’s instructions to the jury substantially mirrored the Iowa State Bar’s uniform jury instructions. When read with the other instructions given, the court’s instruction accurately and completely stated the applicable law. The Supreme Court held that the defendant was therefore not entitled to have his instruction submitted to the jury.

After reviewing its extensive precedent, the Iowa Supreme Court also found that the trial court did not violate the defendant’s due process rights under the Iowa Constitution for refusing to instruct the jury regarding the consequences of a not-guilty-by-reason-of-insanity verdict. It wrote that the United States Supreme Court has held that federal courts are not required to give an instruction explaining the consequences of a not-guilty-by-reason-of-insanity verdict under the Insanity Defense Reform Act, Shannon v. United States, 512 U.S. 573 (1994), but the Supreme Court has not decided the issue on constitutional grounds. The Iowa Court noted that a majority of states refuse to require the instruction, but there is a split of authority on the issue. A number of states have adopted the Lyles Rule that originates from Lyles v. United States, 254 F.2d 725 (D.C. Cir. 1957), an early case requiring the instruction in the District of Columbia. The rationale for the Lyles Rule recognizes that jurors are aware of the results of guilty and not guilty verdicts, but a verdict of insanity does not have a commonly understood meaning. Arguments against the Lyles Rule include, first that such information is irrelevant to the jury’s proper function, which is the determination of the sanity issue, and second, that the information would invite a compromise verdict.

The Iowa Supreme Court also noted that 24 states require a consequence instruction even though the due process clause is not used to justify the requirement. About one-third of these states have specific statutes requiring the instruction. A slight majority of the states, such as Virginia, do not require a consequence instruction, or allow the instruction only when the consequences of a not-guilty-by-reason-of-insanity verdict are inaccurately portrayed to the jury by a prosecutor or defense counsel. See Kitze v. Commonwealth, 435 S.E.2d 583, 586 (Va. 1993); Spruill v. Commonwealth, 271 S.E.2d 419, 426 (Va. 1993).

The Iowa Supreme Court also recognized that many commentators, researchers, academics and law students believe that the best practice is to give the instruction whenever requested by the defendant. One commentator in particular wrote that “the public overestimates the extent to which insanity acquittees are released upon acquittal and underestimates the extent to which they are hospitalized as well as the length of confinement of insanity acquittees who are sent to mental hospitals.” Eric Silver et al., Demythologizing Inaccurate Perceptions of the Insanity Defense, 18 Law & Hum. Behav. 63, 68 (Feb. 1994). The Court found that while there may be policy reasons supporting a consequence instruction, the law and the Iowa Constitution does not require it, and policy decisions are best left to the legislature and not the courts.

The Iowa Supreme Court therefore found that fundamental fairness does not require a trial court to instruct the jury that if it finds the defendant to be not-guilty-by-reason-of-insanity, he would be committed to a mental health facility for evaluation. The Court went on to state, however, that this decision should not be read as an absolute prohibition on giving a consequences instruction.

Found in DMHL Volume 32 Issue 1

US Supreme Court Denies Review of Idaho’s Abolition of Insanity Defense; Three Justices Dissent

Idaho v. Delling, 267 P.3d 709 (Ida. 2011), cert. denied, Delling v. Idaho, 568 U.S. __ (November 26, 2012)
The dissenting opinion is available at: [ at pp. 24-26 ]

Idaho abolished the insanity defense in 1982 enacting new language providing that a defendant’s mental condition shall not be a defense to criminal conduct. In this case, John Joseph Delling was charged with two counts of first degree murder, which were later amended to second degree murder. On motion of his counsel, the court ordered Delling evaluated for competency to stand trial and later committed him for restoration to competency. After nearly a year of commitment, Delling was found competent to proceed. He thereafter entered a “conditional” plea of guilty but asked the trial court to find Idaho’s abrogation of the insanity defense unconstitutional on its face and as applied in his case. He argued that the ability of a defendant to raise the issue of insanity with respect to criminal responsibility is mandated under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In addition, he argued that abolition of the insanity defense violates his rights under the Sixth Amendment to present a defense and under the Eighth Amendment to be free from cruel and unusual punishment. The trial court denied these arguments and sentenced Delling to two consecutive life sentences.

On appeal, the Idaho Supreme Court upheld his convictions on the grounds that it had previously upheld the State’s abolition of the insanity defense in a long line of cases, and that the United States Supreme Court had declined to review any of those decisions after being presented with an opportunity to do so. Delling argued, however, that those decisions were no longer valid in light of the United States Supreme Court’s decision in Clark v. Arizona, 548 U.S. 735 (2006), in which the Supreme Court upheld the constitutionality of an Arizona statute that removed the cognitive incapacity element or second prong of the M’Naughten test. In so doing, the Supreme Court stated that it had never held that the Constitution mandates an insanity defense, but it had also never held that the Constitution does not require such a test. It stated that each state has the capacity to define its own crimes and defenses.

On November 26, 2012, the Supreme Court not surprisingly declined to review this case. What was a surprise was three justices dissented. Justice Breyer, joined by Justices Ginsburg and Sotomayor, noted the absurd result reached under Idaho law that permitted a defendant to argue that because of mental illness he lacked the requisite intent or mens rea to commit the act, but not defend on the basis that he was operating under a delusion when he committed the act. Under amicus curiae briefs filed by the American Psychiatric Association and Criminal Law and Mental Health Law Professors, Justice Breyer wrote that the vast majority of defendants pleading insanity appear to know they are committing the act charged but are operating under a delusion when they are doing so. He would therefore grant a Writ of Certiorari on the grounds that a defendant’s due process of law under the Fourteenth Amendment may be implicated.

Found in DMHL Volume 32 Issue 1

New Jersey Supreme Court Holds Affirmative Defense and Insanity Defense Must Be Raised in Unitary Trial

State v. Handy, 215 N.J.Super. 334, 73 A.3d 421 (2013)

Overruling a prior and long-standing Appellate Court decision, the New Jersey Supreme Court held on September 9, 2013 that an insanity defense and the affirmative defense of selfdefense must be raised in the same unitary trial, and not in a bifurcated trial. The defendant who had a long history of mental illness was charged with the murder of his uncle. With the concurrence of his attorney, the insanity defense was imposed upon the defendant and the trial court required a bifurcated trial in which the issue of the defendant’s sanity would be tried first. If he did not prevail on the insanity defense, the defendant could then raise the defense of self-defense. The New Jersey Supreme Court reversed holding that the defendant was denied his Fifth Amendment Right to be free from double jeopardy and remanded the case for the defendant to pursue his self-defense claim. If unsuccessful, his insanity finding would stand. In all future cases, the Court held the two defenses must be tried in a unitary, not bifurcated proceeding.

In January 2004, Robert Handy was charged with the murder of his uncle. The uncle died from a single stab wound to the chest. Handy claimed his uncle hit him with a pipe. Police found a pipe with the words “King Reveal” marked on it near the crime scene and the same words tattooed on the uncle’s body. The uncle also had a long history of drug-related criminal activity, including an arrest one week prior to his death. Handy had a history of psychiatric problems with several in-patient hospitalizations. Five months prior to the stabbing, Handy was exhibiting bizarre behaviors and was admitted to a psychiatric hospital, suffering from paranoid schizophrenia. Upon his release approximately six weeks later, he promised to take his medications, but did not believe there was anything wrong with him. He then ceased taking his medications. He suffered from delusions about having been sexually and physically assaulted by hundreds of individuals while hospitalized, including his attorney and the judge who had presided over his case. He maintained a list of over forty individuals whom he claimed had assaulted him, with his uncle’s name at the top.

Following his arrest, Handy was transferred to the Ann Klein Forensic Services where he was forcibly medicated, and his mental status improved. A clinical psychologist at the forensic center reported that Handy was competent to stand trial even though he continued to suffer from paranoid delusions, including delusions that his attorney and a judge were still among those who had abused him at the hospital. She reported that Handy was likely to remain competent as long as he took his medications. The defense hired a psychologist who disagreed stating that Handy was not competent to stand trial and would not be until he was free from his persistent delusions. It was also his opinion that Handy’s prognosis was “poor” that he would ever be free of his delusions.

During the competency proceedings, the State argued that Handy was competent to stand trial and his attorney did not contest his competency, despite his expert’s opinion. Both attorneys also agreed that the two defenses of insanity and self-defense could not be tried together in the same, unified proceeding believing that a prior New Jersey Appellate Court decision, State v. Khan, 175 N.J. Super. 72 (App. Div. 1980), required a bifurcated trial. That case held that trying the defendant on two defenses together would lead to jury confusion and prejudice to the defendant. The State argued that insanity should be tried first to insure that the trier of fact would not be confused between the insanity defense and the self-defense claim. Handy argued, however, that he should be permitted to raise the self-defense claim first, arguing that if he prevailed on the substantive claim, the case would be over. The trial court ruled that the insanity defense should be tried first because it related to a substantive element of the offense rather than to an affirmative defense the defendant sought to interpose. Handy then waived his right to a jury trial on the insanity issue. The judge found him not guilty by reason of insanity (“NGRI”) and committed him for treatment. No further proceedings were conducted on the self-defense claim.

Handy appealed the NGRI finding to the Appellate Division. That court continued to hold that such cases should be tried in bifurcated proceedings, but found that the substantive defense should be tried first, followed by the insanity defense. It then remanded the case to the trial court, whereupon Handy would be presented with the option of waiving his right against double jeopardy. The NGRI finding would then be vacated and he would be tried first on the selfdefense claim. If he was unsuccessful, he then would be tried on the issue of his sanity at the time of the offense.

Handy appealed this decision to the New Jersey Supreme Court. The Supreme Court agreed with Handy that requiring him to surrender his NGRI finding would violate the constitutional prohibition against double jeopardy. The Court held that the bifurcated approach in Khan was no longer viable and should no longer be utilized by the courts. It held that in the future trials that involve both a substantive defense and an insanity defense, both defenses must be tried in a unitary proceeding. The Court reasoned that neither the state nor the federal constitution gives defendants the right to have a trial proceed in two stages. Trials are ordinarily tried in one proceeding in which all claims are adjudicated together. As a practical matter, the trier of fact needs all of the evidence to make a reasoned decision. In a case such as this in which the defendant relies on self-defense, most of the evidence about the defendant’s delusions would be admissible to rebut the reasonableness of the defendant’s belief concerning the use of deadly force. Because the State must also present evidence of mental status to prove intent, offering only part of that evidence would provide the jury with a less-than-complete and inaccurate record.

The Court went on to find in this case that requiring the defendant to relinquish the insanity finding would violate the defendant’s Fifth Amendment protection against twice being put in jeopardy for the same offense. The Court therefore held that in this case alone, the defendant, if found competent to stand trial, should be provided the opportunity to be acquitted of the crime on his self-defense theory. If acquitted, he would be free of the charge. If convicted, the insanity verdict would still stand and he would be committed for treatment.

The Court also noted the confusion between whether a defendant can be competent to stand trial and competent to waive the insanity defense. It held that the same procedure should be utilized to determine whether a defendant is competent to waive the insanity defense as is applied in evaluating whether a defendant can waive other significant rights. It said the court should conduct a thorough and searching inquiry of an otherwise competent defendant’s understanding of the nature of the right being waived and the implications flowing from that choice to determine whether the waiver is knowing, voluntary and intelligent.

Found in DMHL Volume 32 Issue 4

Tenth Circuit Holds Insanity Defense Precludes “Acceptance-ofResponsibility” Downward Adjustment to Sentencing Guidelines

United States v. Herriman, 739 F.3d 1250 (10th Cir. 2014)

The Tenth Circuit Court of Appeals upheld on January 14, 2014, the district court’s refusal to give a defendant a reduction from the sentencing guidelines based on his acceptance of responsibility for his criminal acts because he raised an affirmative insanity defense. In refusing to approve a sentencing reduction, the Court of Appeals distinguished the insanity defense which the defendant must raise and prove by clear and convincing evidence from a mens rea challenge, which is an element of the offense the prosecution must prove beyond a reasonable doubt, and for which a court in its discretion may accord a sentence reduction.

In August 2011, Daniel Herriman planted a bomb near a gas pipeline in Oklahoma. When he saw on the news that police had discovered the bomb, he called the police and told them he was responsible. When the police interviewed him, he provided details relating to the bomb, including what materials he used to make it and where they could be located in his house. After investigation and a search of his house, the government charged Herriman with attempting to destroy or damage property by means of an explosive and with illegally making a destructive device.

During pretrial proceedings, the district court became concerned about Herriman’s competency to stand trial and ordered a mental evaluation. A forensic psychologist with the Bureau of Prisons examined him and found him competent to stand trial, a finding which the court accepted. Herriman then gave notice that he would raise an insanity defense. At trial, he did not challenge the prosecution’s evidence that he had constructed and placed the explosive device. In support of his insanity defense, Herriman presented evidence that he had been diagnosed with manic depression, schizoaffective disorder, and post-traumatic stress disorder caused by sexual abuse he had experienced as a child. He had attempted suicide at age 13 and had been repeatedly hospitalized for psychotic episodes. Herriman had also been upset by the death of his mother by suicide and by the death of his sister, possibly by suicide. He also suffered from command hallucinations and was prescribed antipsychotic medications, which did not always work. At the time of the offenses charged, Herriman was taking antipsychotic medication and seeing a psychiatrist regularly. Herriman argued that his mental condition was aggravated at the time of the offenses due to the anniversary of his mother’s death. Voices identifying themselves as al Qaeda urged him to plant the bomb and told him he would be turned over to the individuals who had sexually abused him if he disobeyed.

The prosecution strongly challenged Herrimans’s evidence eliciting testimony from his psychiatrist that he never mentioned auditory hallucinations to him during the time surrounding the events charged, nor did the psychiatrist notice any behavior indicating he was hearing voices. Testimony from his ex-wife and son indicated that his behavior at the time was cogent and lucid. The government also argued that Herriman clearly had the mental capacity to assemble a bomb. The jury rejected Herriman’s insanity defense and found him guilty of both charges. At sentencing Herriman argued that the court should apply an acceptance-of-responsibility adjustment to the sentencing guidelines. The district court refused to do so and sentenced him to sixty-three months in prison on each count to be served concurrently, followed by three years of supervised release.

Under the sentencing guidelines, district courts are required to decrease the offense level of the crime by two levels if the defendant clearly demonstrates acceptance of responsibility for his offense. The Court of Appeals emphasized that Note 2 to the guidelines clarifies that an adjustment is not intended for a defendant who puts the government to the burden of proof at trial by denying the essential factual elements of guilt, is convicted and then admits guilt and expresses remorse. Such an adjustment to the guidelines is available only in rare circumstances when the defendant insists upon a trial only in order to preserve a legal defense to the charge.

In upholding the district court’s refusal to grant a downward adjustment, the Court of Appeals applied a clearly erroneous standard to the court’s decision. It then distinguished this case from United States v. Gauvin, 173 F.3d 798 (10th Cir. 1999), the only case in which the Court indicated it had ever approved a downward adjustment based upon acceptance of responsibility when the defendant required the prosecution to prove its case at trial. The defendant in Gauvin committed an assault while intoxicated. He acknowledged the conduct with which he was charged, but denied due to his voluntary intoxication that he was guilty of the crime charged. He denied he met the mens rea or the intent to harm or cause apprehension, which was a legal element of the crime. Although Herriman in this case acknowledged he committed the acts charged, he factually challenged whether he was criminally liable due to his insanity at the time of the offense, a fact which the government vigorously challenged.

The Court of Appeals acknowledged that the same evidence would be relevant both to challenge the mens rea element of an offense and to assert an insanity defense. But the Court stated that the process for raising the defenses is completely different. The mens rea is the mental element of the crime charged, which the government must prove beyond a reasonable doubt. By contrast, insanity is an affirmative defense which a defendant must raise and prove by clear and convincing evidence. In Gauvin, the defendant admitted he committed the acts in question, but was legally not guilty of all the elements of the crime charged. Here, Herriman acknowledged he committed the acts, but could not be held criminally liable due to his mental state, a fact the prosecution strongly contested. The Court of Appeals therefore upheld the district court’s refusal to grant a downward adjustment to the sentencing guidelines because, unlike Gauvin who only forced the government to proceed to trial to preserve a legal issue unrelated to his factual guilt, Herriman required the government to rebut the factual evidence of his insanity at trial.

Found in DMHL Volume 33 Issue 1

Washington Supreme Court Holds Insanity Acquittee Must Be Found Dangerous before Conditional Release May Be Revoked; Preponderance of Evidence Is Appropriate Standard

State v. Bao Dinh Dang, 178 Wash.2d 868, 312 P.3d 30 (2013)

The Washington Supreme Court has upheld the trial court’s revocation of an insanity acquittee’s conditional release based upon its finding of dangerousness. In so doing, it reversed the decision of the Washington Court of Appeals holding that an acquittee’s failure to adhere to the terms and conditions of his conditional release is sufficient alone to justify revocation. The Supreme Court also determined that a preponderance of the evidence standard of proof is sufficient to support revocation. Finally, the Court held that the trial court must find good cause to admit both documentary and testimonial hearsay evidence in a limited due process rights hearing such as conditional release revocation.

In November 2006, Bao Dinh Dang walked up to a gas pump at a Chevron station in Seattle, set fire to a newspaper, and attempted to pump gas in order to ignite the gas supply. The station attendant successfully knocked the newspaper out of Dang’s hand with a windowwashing squeegee while a customer called the police. Dang was arrested and charged with attempted arson. At trial, Dang raised the insanity defense. The trial court acquitted Dang by reason of insanity, and in the same order, released him on conditional release. As part of his conditional release, the court required Dang to report to a Department of Corrections community corrections officer, live with his mother in Washington, not possess explosives, break additional laws, or drink alcohol, and seek psychiatric treatment at Harborview Medical Center and follow all treatment recommendations. Dang’s conditional release was further contingent on his mental illness being in a state of remission and on his having no significant deterioration in his mental condition.

Dang’s conditional release proceeded without incident until the summer of 2008 when the trial court permitted him to travel to Vietnam for one month. Following his return from Vietnam, Dang’s community corrections officer and Harborview case manager noticed he was exhibiting signs of depression and paranoia. Dang’s case manager reported that Dang stated he was not taking medication and felt like setting a gas station on fire. He told his community corrections officer he wanted to “do something big.” The corrections officer and case manager also noticed that Dang was experiencing delusions concerning his mother’s power and control over him. When Dang was taken to Harborview Mental Health Services, he recanted his statements and was released.

The State then moved the court for a bench warrant for Dang’s arrest and commitment pending a hearing on his conditional release. The court issued the warrant, ordering Dang’s commitment to Washington’s Western State Hospital for evaluation and treatment. During this period, several reports were issued concerning Dang’s mental health outlining his treatment and recommending he not be released due to his risk for future violence and criminal behavior.

After extensive evaluations, the State moved to revoke Dang’s conditional release. At the hearing, the court heard testimony from the community corrections officer, case manager, a Department of Social and Health Services psychologist, Dang’s mother and Dang. Several of the witnesses testified that his mental health had deteriorated and he should remain hospitalized. The trial court also permitted Dang’s case worker and a community corrections officer to testify about statements made by Harborview Medical Center’s mental health providers about his desire to blow up a gas station. Following the hearing, the court revoked Dang’s conditional release and while his appeal was pending, issued findings of fact and conclusions of law finding, among other things, that Dang’s mental disease had not remained in a state of remission and his release would present a substantial danger to others and jeopardize public safety.

The Court of Appeals affirmed the revocation of Dang’s conditional release based on Dang’s non-adherence to the terms and conditions of his release but found a specific finding of dangerousness was not required. That Court also determined that preponderance of the evidence was the appropriate standard of proof in a conditional release revocation hearing. The Court of Appeals also held that in cases limiting due process rights to confront and cross-examine witnesses, such as parole revocation hearings, only documentary hearsay evidence was prohibited but hearsay could be admitted through live testimony.

The Washington Supreme Court affirmed the Court of Appeals, holding that Dang’s conditional release was properly revoked by the trial court based upon its finding of his actual dangerousness. But the Supreme Court found that failure to adhere to the terms and conditions of conditional release alone are not sufficient to revoke conditional release. A specific finding of dangerousness before an acquittee may be confined is required. In so holding, the Court relied on prior United States Supreme Court cases, including O’Connor v. Donaldson, 422 U.S. 563 (1975), that held a finding of mental illness alone is not sufficient to confine a person against his will if he is not dangerous to anyone and can live safely in freedom. Similarly, Foucha v. Louisiana, 504 U.S. 71 (1992), held that an insanity acquitted may continue to be confined as long as he is both mentally ill and dangerous, but no longer. The Court reasoned that the same dangerousness criteria that applies in the context of civil commitment and continued commitment of insanity acquittees should also apply in the context of conditional release revocation.

The Supreme Court next determined that a preponderance of the evidence standard is appropriate in conditional release hearings even though Dang argued that a clear, cogent and convincing evidentiary standard should be applied. The court found that there are significant differences between civil commitment and commitment following an insanity acquittal. In Jones v. United States, 463 U.S. 354 (1983), the United States Supreme Court found that the insanity acquittee himself raises the insanity defense and therefore a diminished concern for a risk of error in confining the acquittee exists. The criminal conduct which the acquittee acknowledges is also not within the range of generally accepted conduct. Because there is less risk of error in confining an individual in the insanity acquittee context than in the civil commitment context, the lesser standard of proof of preponderance of the evidence is sufficient.

In reviewing the issue of whether hearsay evidence may be introduced at a conditional release revocation hearing, the Court considered various cases involving limited due process hearings where there was good cause to limit the individual’s due process rights to confront and cross-examine witnesses, such as Morrissey v. Brewer, 408 U.S. 471 (1972), involving parole revocation. Other similar cases involved sentencing modification hearings due to violations of community custody terms and conditions, and revocation of special sex offender sentencing alternatives. Similarly, a trial court’s revocation of an insanity acquittee’s conditional release implicates a conditional liberty interest dependent on the observance of special terms and conditions. Under these situations, hearsay evidence may be considered if the trial court finds good cause to forgo live testimony.

In this case, the trial court permitted Dang’s case manager and community corrections officer to testify about statements made by other Harborview mental health providers about his desire to blow up a gas station. The trial court did not engage in a good cause analysis of the difficulty and expense of procuring live witnesses or the reliability of the evidence, which the Supreme Court found was error. The Court, however, found that this was harmless error because there was enough direct evidence in the record to support its finding of dangerousness. Nonetheless, the Supreme Court found no distinction between documentary evidence and live testimony evidence as the court of Appeals did, and held in both instances that the trial court must articulate a good faith basis for considering either type of evidence.

Found in DMHL Volume 33 Issue 2


Delay in commitment proceedings justified by acquittee’s misconduct

United States v. Conrad, 776 F.3d 253 (4th Cir. 2015).

Defendant-appellant Samuel Robert Conrad III, currently serving an eight-year term of imprisonment, appealed both the district court’s denial of his motion to dismiss commitment proceedings arising from a 2007 insanity acquittal (arising from a separate set of offenses) and the district court’s order to delay those commitment proceedings until he is released from prison. At issue for the Fourth Circuit on Appeal was 18 U.S.C. § 4243, which provides the “procedural framework for the evaluation and commitment of defendants adjudicated NGI.”

Initially, Conrad’s § 4243 hearing following the 2007 acquittal resulted in the district court’s imposition of a conditional release, which was subsequently revoked when Conrad was charged by the Commonwealth of Virginia for the murder of his sister-inlaw. Conrad appealed the revocation of his conditional release, and the order originally granting it was vacated by the Fourth Circuit in 2010 based on that court’s determination that the language of § 4243 “allows only two forms of disposition--unconditional release or indefinite commitment; it does not authorize conditional release.” A new hearing was thus required under § 4243(e), but never actually took place because in 2013 Conrad was charged with possession of a firearm by a convicted felon and conspiracy to distribute controlled substances—charges which lead to his current incarceration. When Conrad moved to dismiss the pending § 4243 commitment proceedings arising from the prior case (arguing that § 4243 was no longer applicable to him because he could not pose a threat to public safety while incarcerated), the district court denied his motion, ordering instead that a delay of the proceedings until Conrad completes his current term of imprisonment would best serve the statute's purposes.”

The Fourth Circuit affirmed the denial of Conrad’s motion to dismiss as well as the order delaying the § 4243 proceedings. In affirming the denial of the motion to dismiss, the Fourth Circuit held that § 4243 “applies on its face to NGI acquittees” and “unambiguously requires a hearing to determine commitment or release,” and so in the absence of any “provision permitting nullification of the statute's applicability through subsequent commission of crime and incarceration,” the district court was within its discretion to refuse dismissal of the § 4243 hearing. Further, the Fourth Circuit held that the delay ordered by the district court was permissible, confronting the timing requirement of § 4243(c) which “requires a hearing within 40 days of the NGI verdict, which, under a separate provision, may be extended only by 30 days, and only by the director of the facility to which the acquittee has been committed.” The Fourth Circuit stated that both parties agreed that there is at least one implicit exception to the 40-day requirement of § 4243(c) and cited to other opinions in which a delay greater than 40 days was allowed and found to be justified due to “circumstances outside of the acquittee's control--such as a commitment facility's inadequate resources to promptly conduct the evaluation.” Given this precedent, the Fourth Circuit stated that a delay would “would seem even more fitting” in circumstances within the acquittee’s control and held that because Conrad “has been the principal architect of the delay he faces, and such delay is reasonable under the statute when the acquittee is serving a term of incarceration” the district court did not err in delaying the proceeding.

Found in DMHL Volume 34 Issue 1