NGI

Trial court complied with statutory criteria for ordering inpatient hospitalization vs. conditional release of NGI acquittee

Bates v. Com., 287 Va. 58, 752 S.E.2d 846 (2014)

After being found not guilty by reason of insanity on a charge of arson pursuant to Va. Code Ann. § 18.2-77, Tanisha Bates was remanded to the temporary custody of the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services (the “Commissioner”) in order to evaluate options for her treatment or release. The clinical psychologist who performed the evaluation recommended inpatient hospitalization whereas the psychiatrist recommended conditional release coupled with outpatient treatment. The Northern Virginia Mental Health Institute (“NVMHI”) then prepared a court-ordered conditional release plan in advance of hearing “to determine the appropriate disposition of the acquittee” in accordance with Va. Code Ann. §§ 19.2– 182.3 and 19.2–182.7. At the request of the Commissioner, the Forensic Review Panel also submitted a report, concluding that “Bates' continued delusions, risk of suicide, lack of substantial response to treatment, and history of deadly and dangerous behavior” all supported a recommendation that Bates should remain committed to inpatient hospitalization. The circuit court followed that recommendation and entered an order committing Bates to the custody of the Commissioner.

Bates appealed the order, contending that the circuit court misapplied the relevant Virginia Code sections in reaching the decision that she required inpatient hospitalization. The Virginia Supreme Court affirmed the commitment order of the court below, holding that it had correctly applied the statutory criteria. Although the court below had acknowledged that the NVMHI report stated that Bates was “ready to leave” inpatient treatment, the finding that there was “no means for controlling her on an outpatient basis” was enough to warrant an order committing Bates to inpatient hospitalization. Further, the Supreme Court held that the provisions in Va. Code Ann. § 19.2–182.7 do not require lower courts to “fashion an appropriate plan for [] outpatient treatment and supervision when it [has] already determined that [a defendant] [is] not eligible for conditional release, and that she require[s] inpatient hospitalization.”

Found in DMHL Volume 34 Issue 1

Not guilty by reason of insanity commitment

In proceeding by the state to extend NGRI acquittee’s commitment beyond the length of the maximum prison sentence for the originally charged offense(s), the individual facing extended commitment has the right to refuse to testify in the proceeding

Hudec v. Superior Court Orange County, 339 P.3d 998 (Cal. 2015)

Charles Hudec, a person diagnosed with paranoid schizophrenia, was found not guilty by reason of insanity of killing his father and was committed to a state hospital for a period of time reflecting the maximum sentence for voluntary manslaughter. In March 2012, the district attorney petitioned to extend Hudec’s commitment pursuant to Cal. Penal Code § 1026.5. That section allows a person’s commitment to be extended if, because of mental disorder, he “represents a substantial danger to others.” The section also states that a person so tried is “entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings.” The California Supreme Court noted that, although § 1026.5 does not “expressly grant NGI [sic] extension respondents all the rights of a criminal defendant,” the statute “reflects a legislative effort to prescribe procedures fair to both the respondent and the People.” The Court found the right to refuse to testify among those afforded because recognition of the right would not result in “any absurd consequence”—such as would ensue were a respondent to attempt to assert the right not to be tried while mentally incompetent.

Found in DMHL Volume 34 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

Conditional release for NGI acquittees

State v. Beaver, No. 91112-6, 2015 WL 5455821 (Wash. Sept. 17, 2015)

Revoking an insanity acquittee's conditional release without a judicial finding that the acquittee currently suffers from a mental illness does not violate substantive or procedural due process

Background: Ricky Beaver was found not guilty by reason of insanity on a charge of residential burglary in 2005, and the court committed him. Beaver petitioned for and was granted conditional release in 2007, but violated the terms of his conditional release in 2011 by using cocaine, drinking alcohol and driving a motor vehicle, and being charged with driving under the influence. Beaver appealed, arguing that due process required a finding of current mental illness before the court could revoke his conditional release. While his appeal was pending, he was granted final discharge, mooting his appeal, but the Court still reviewed the merits of the case.

Holdings: Sitting en banc, the Supreme Court of Washington held first that, though moot, the case presented issues of continuing and substantial public interest such that resolution of the merits was beneficial. Second, the Court held that revoking an insanity acquittee's conditional release without a judicial finding that the acquittee currently suffers from a mental illness does not violate substantive or procedural due process.

Notable Point: Regarding substantive due process, the Court wrote that an acquittee’s insanity was presumed to continue throughout conditional release until proven otherwise, and that acquittees had opportunities to prove lack of suffering from mental defect and to petition for final discharge. Regarding procedural due process, the Court wrote that, although the private interest in liberty or freedom from state constraint was substantial, revocation of acquittee's conditional release implicated a conditional liberty interest, and that the procedures to revoke an acquittee's conditional release provided protections against erroneous deprivation of liberty. Additionally, the Court found that the government had a strong interest in protection of public safety by detaining mentally unstable individuals who presented a threat to society.

Found in DMHL Volume 34 Issue 3

Waiver of jury trial

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

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

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

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

Notable Points:

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

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

Found in DMHL Volume 34 Issue 3

Insanity Defense and Double Jeopardy

Otis v. State, No. S15A1717, 2016 WL 462657 (Ga. Feb. 8, 2016)

A criminal defendant can present an insanity defense without providing prior notice to the prosecution if the defense calls no medical experts, and the decision of the trial court to declare a mistrial, over defendant’s objection, when defendant reveals at trial that an insanity defense will be pursued, must result in dismissal of the charge against the defendant, as a re-trial would subject defendant to double jeopardy.

Background: Geary Otis was charged with malice murder and other offenses arising out of the assault of one victim and the death of another. After a jury was impaneled and the State presented opening statements, the defense revealed, at the end of its opening statement, its intent to pursue an insanity defense. The defense had not given prior notice to the State, and the State objected—out of the presence of the jury—to the raising of the insanity defense on the basis of this lack of prior notice. At a hearing on the following day, the trial court declared a mistrial (over Otis’s objection) and rescheduled the case for trial in two weeks. Otis then filed a plea in bar on the grounds of double jeopardy, and the trial court denied the plea in bar. Otis appealed, asserting that the trial court had erred both in declaring a mistrial and in denying his plea in bar.

Holdings: The Supreme Court of Georgia agreed with Otis and reversed the circuit court’s denial of his plea in bar. The Court further held that the circumstances of the case did not demand entry of a mistrial order, and that the trial court had erred in entering that order over the defendant’s objection. Because the mistrial was improperly declared, double jeopardy prevented Otis from being tried again.

Prior notice of intent to pursue an insanity defense is required only when the defendant intends to rely on expert testimony: In Abernathy v. State, 462 S.E.2d 615 (Ga. 1995), the Georgia Supreme Court stated that the purpose of notice of an insanity defense was to “give the State an opportunity to obtain an independent expert mental health evaluation” and that a defendant “need not provide notice pretrial if he intends to present evidence of mental illness solely through lay witnesses.” This decision was made in the context of interim review of a death penalty case, but the Georgia Supreme Court clarified that the holding and reasoning were not limited to that context, and applied in all cases in which a defendant intends to assert an insanity defense.

Found in Found in DMHL Volume 35, Issue 1

Administration of Psychotropic Medication over Objection of NGRI Patient

People v. Marquardt, 364 P.3d 499 (Co. 2016)

In the case of a person who is a hospitalized NGRI acquittee and currently receiving antipsychotic medication that is preventing further deterioration of the person but is insufficient to improve person’s condition, the Colorado Supreme Court rules that the person’s objection to increased medication must be honored despite state’s claim that more medication is needed for any improvement.

Background: After being found not guilty by reason of insanity and being diagnosed with schizoaffective disorder, bipolar type, with prominent paranoia, Larry Marquardt was committed to the Colorado Mental Health Institute at Pueblo (“CMHIP”). Marquardt, at first, took ten milligrams of antipsychotic medication daily, and refused to take more. Because his attending psychiatrist felt that a dose of ten milligrams was only partially effective, the State petitioned to have the dosage increased to the maximum of twenty milligrams daily. The trial court found that an increased dosage was “necessary to prevent a significant long-term deterioration in [Marquardt’s] mental condition.” Because the court determined that Marquardt would not be released from the institution unless his condition improved, and that that was unlikely without an increased medication, the trial court ordered Marquardt to submit to the increased dose. Marquardt appealed, arguing that the trial court had misapplied the controlling case law, People v. Medina, 705 P.2d 961 (1985).

Holding: The Supreme Court of Colorado found that the trial court had applied the incorrect legal test—misapplying Medina by relying on evidence that Marquardt was not improving on the lower dose. Rather, the court explained, Medina required that a court must find a patient to be deteriorating in order to justify increased medication against the patient’s wishes.

Notable Points:

Deterioration, not just lack of improvement, is required for an order of forced medication: People v. Medina, 705 P.2d 961 (1985) sets forth a test to determine whether non-consenting treatment by antipsychotic medication may be administered to an involuntary committed mental patient. The test is one that involves mixed questions of law and fact, and is a four-factor test. The State must show: “(1) that the patient is incompetent to effectively participate in the treatment decision; (2) that treatment by antipsychotic medication is necessary to prevent a significant and likely long-term deterioration in the patient's mental condition or to prevent the likelihood of the patient's causing serious harm to himself or others in the institution; (3) that a less intrusive treatment alternative is not available; and (4) that the patient's need for treatment by antipsychotic medication is sufficiently compelling to override any bona fide and legitimate interest of the patient in refusing treatment. To determine whether a patient is “in danger of long-term deterioration” it is not enough to show that a patient will not likely recover without an increased dose of medication—the State must show that there is a danger of long-term deterioration in the patient’s condition. Although the state has a legitimate interest in institutional security, that interest is not sufficient to expose those in its care to increased or nonconsensual medication “solely for the purpose of alleviating the risk of some possibility of future injury or damage to the patient or others.”

Found in Found in DMHL Volume 35, Issue 1

Not Guilty by Reason of Insanity (NGRI)

State v. Dalton, No. 336PA15, 2016 N.C. LEXIS 1121 (Dec. 21, 2016)

Supreme Court of North Carolina rules that a prosecutor's closing argument exaggerating the likelihood of defendant's release if found not guilty by reason of insanity constituted prejudicial error because the statements were not supported by the evidence.

Background: Melissa Amber Dalton had a history of substance abuse and mental illness. She received inpatient treatment in July 2009 and was diagnosed with cocaine dependence, cannabis abuse, substance abuse mood disorder, borderline personality disorder, and intrauterine pregnancy. Dalton’s treating physician prescribed Lexapro, an SSRI, but was unaware that Dalton had previously reacted negatively to a different SSRI. Dalton was released approximately three days later. About three weeks later, Dalton went to the apartment of two neighbors, claiming to have money she owed them. When the neighbors opened the door, Dalton stabbed both of them repeatedly, killing one and seriously wounding the other. Dalton was indicted for first-degree murder, first-degree burglary, and assault with a deadly weapon with intent to kill inflicting serious injury. Dalton pled not guilty by reason of insanity. During closing arguments, the prosecutor told the jury that if Dalton was found not guilty by reason of insanity that it was “very possible” she would be back home within 50 days. The jury found Dalton guilty on all counts. The court of appeals found prejudicial error in the prosecutor’s closing arguments and granted Dalton a new trial.

Holding: The Supreme Court of North Carolina ruled that statements in closing arguments about a defendant’s likelihood of release must be supported by evidence presented at trial. The court found no evidence to support the prosecutor’s statement that it was “very possible” Dalton would be released within 50 days. The court affirmed the opinion of the court of appeals.

Notable Point: Miranda Rights and Insanity Defense: On appeal the defendant also raised the issue of the prosecutor using evidence that she invoked her Miranda rights after arrest to prove she was sane. However, the court of appeals did not address this argument in reaching its decision and relied solely on the prosecutor’s statement in closing arguments about her possibility of release.

Found in DMHL Volume 35, Issue 4