Ninth Circuit Refuses to Recognize "Dangerous Patient" Exception to Federal Psychotherapist-Patient Privilege

United States v. Chase, 340 F.3d 978 (9th Cir. 2003); 72(9) U.S. Law Week  1145-46 (Sept. 16, 2003)

The Ninth Circuit of the U.S. Court of Appeals ruled that although therapists have a duty to warn authorities about patients' threats to inflict serious harm on others, this does not mean therapists may testify in subsequent federal court proceedings about these statements.  In this case, the defendant suggested during therapy sessions that he might injure FBI agents and other individuals. The psychotherapist alerted law enforcement personnel and, after the psychotherapist testified at trial about the defendant's threats, the defendant was convicted of threatening to murder federal agents....

Found in DMHL Volume 23 Issue 1

Requirements for Forcibly Medicating a Defendant Found Incompetent to Stand Trial Delineated by Fourth Circuit

United States v. Evans, 404 F.3d 227 (4th Cir. 2005)

The U.S. Supreme Court in Se// v. United States, 539 U.S. 166 (2003), held that the government may involuntarily medicate a criminal defendant to render the defendant competent to stand trial even though the defendant does not pose a danger to self or others.  The Supreme Court authorized such treatment under limited circumstances, but left it to the lower courts to flesh out the details of the requisite test. While reviewing a ruling by a federal judge in the Western District of Virginia, the Fourth Circuit provides many of these details...

Found in DMHL Volume 25 Issue 1

Sixth Circuit Refuses to Vacate Tennessee Consent Decree Involving Conditions in Arlington Development Center

United States v. Tennessee, 615 F.3d 646 (6th Cir. 2010)

The 6th Circuit Court of Appeals has refused to vacate a consent decree and court orders entered in the 1993 lawsuit concerning conditions at the Arlington Development Center. In the lawsuit originally brought by the Department of Justice under the Civil Rights of Institutionalized Persons Act, the trial court had found that the Tennessee Department of Mental Health and Developmental Disabilities had failed to provide individuals residing in ADC with medical care, and keep them free from abuse and neglect and undue bodily restraint. Tennessee sought to have the consent decree vacated on the grounds that there was a change in the law between the time the federal trial court approved the consent decree and entered orders enforcing its terms. Tennessee argued that “state control” changed the standard for determining when a resident is voluntarily confined as opposed to a person being placed involuntarily in a state-operated facility.

The Court stated that even though there was a split in the courts as to whether the state owes an affirmative constitutional duty of care and protection to voluntarily admitted residents as it owes to involuntarily committed individuals under Youngberg v. Romeo, the 6th Circuit had not ruled on the issue. It also noted that although individuals with intellectual disabilities are considered “voluntary” residents in Tennessee and are free to leave the facility at any time they wish, they are admitted with the consent of their parents or guardians and are at their mercy as to whether they will remain placed at the facility. The Court also recognized the comprehensive involvement of the state in every facet of a resident’s daily life, including provision of their food, transportation, shelter, medical care and protection, and that they generally remain in the state’s care for years. The Court therefore held that there had been no change in the law since entry of the consent decree and subsequent orders that would warrant vacation of the consent decree.

Found in DMHL Volume 30 Issue 1

Georgia Enters Precedent-Setting Settlement Agreement with Department of Justice

United States v. Georgia, N.D. Ga No. 1:10-cv-249-CAP
http://www.justice.gov/crt/about/spl/documents/georgia/US_v_Georgia_ADAsettle_10- 19-10.pdf

In order to settle the United States Department of Justice lawsuit brought against it under the Americans with Disabilities Act, the State of Georgia agreed on October 19, 2010 to substantially change its service delivery system for both persons with intellectual disabilities and mental illness by emphasizing community-based care over institutional settings. The Settlement Agreement is remarkable in its commitment to institute sweeping changes to the entire developmental disability and mental health service delivery system. Key portions of the agreement include:

For persons with developmental disabilities,

• stop all admissions to its facilities for persons with intellectual disabilities by July 1, 2011
• transition its residents with intellectual disabilities to community settings by July 1, 2015
• apply for 1150 home and community based waivers by July 1, 2015; 750 for those transitioning from state hospitals; 400 to help prevent institutionalization for those currently in the community
• provide family supports to 2350 families by July 1, 2015
• establish 6 mobile crisis teams by July 1, 2012
• establish 12 crisis respite homes by July 1, 2014 to provide respite services to persons with developmental disabilities and their families

For persons with mental illness,

• serve 9,000 people with serious mental illness in community settings by July 1, 2015. The target population consists of people currently served in state hospitals with frequent readmissions or seen in emergency rooms, including those who are chronically homeless or in and out of jail
• establish 22 PACT teams by July 1, 2013
• establish 8 community support teams by July 1, 2014 to provide services to people in their own home and ensure community resources for those who remain in their own home
• establish 14 intensive case management teams by July 1, 2015
• hire 10 full-time case managers that will coordinate treatment and support services and assist individuals with accessing community resources
• develop 45 case management service providers by July 1, 2015 to coordinate treatment and support services and help maintain services and supports already in place
• establish 6 crisis service centers by July 1, 2015 to provide walk-in psychiatric and counseling services that are clinically staffed 24 hours per day/7 days per week to serve individuals in crises
• add 3 crisis stabilization programs by July 1, 2014
• add 35 community based psychiatric hospital beds in non-state community hospitals
• establish a toll free telephone access system for people to obtain information about community resources
• establish mobile crisis teams in every county by July 1, 2015
• establish 18 crisis apartments by July 1, 2015 as an alternative to crisis stabilization programs and psychiatric hospitalization
• provide supportive housing to 9000 people with serious and persistent mental illness by July 1, 2015
• provide housing supports to 2000 people ineligible for benefits by July 1, 2015
• provide bridge funding to 540 people by July 1, 2014 to support their transition to supported housing
• provide 550 people with supported employment by July 1, 2015
• provide peer support services to PACT and CST services by July 1, 2014 for an additional 835 people
• hire one case manager and one transition specialist per state hospital by July 1, 2010.

Georgia will also develop an annual network analysis to assess availability of community supports by July 1, 2012 and develop a quality management system by July 1, 2012 to perform annual quality service reviews of community services under the agreement. Georgia will also fund an independent reviewer to assess the state’s compliance with the Agreement.

Found in DMHL Volume 30 Issue 1

Tennessee Dismisses EMTALA Complaint in Suicide Case

Burd ex rel. Burd v. Lebannon HMA, Inc., 2010 U.S.Dist. LEXIS 124696 (M.D. Tenn. Nov. 23, 2010)

A United States District Court in Tennessee dismissed this lawsuit brought by the executor of Joshua Ashley Burd against Lebanon HMA, Inc. under the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C § 1395dd. Burd was initially brought to the emergency room after attempting suicide by hanging himself. Finding him to have high “suicide lethality” and testing positive for cocaine and opiates, Burd was committed to Middle Tennessee Mental Health Institute, a state mental health facility. A psychiatrist at the facility found him not to be a suicide risk and did not admit him. A police officer checking on his condition at home later that evening found an outstanding arrest warrant and learned that Burd had consumed two bottles of vodka. Believing he was a suicide risk, the officer returned Burd to the emergency room. Emergency room staff assessed him and determined he was suffering from acute situational anxiety, not an emergency medical condition, and discharged him. Burd was found dead the next morning from hanging. The trial court dismissed the EMTALA claim finding that the plaintiff had presented no proof of improper motive on behalf of emergency room staff. It found that there was no evidence that the decedent would have been assessed differently had he had health insurance. The court also found that if hospital staff does not have actual knowledge that an emergency medical condition exists, EMTALA does not apply. Any allegations related to medical malpractice must be decided in state court under state malpractice law.

Found in DMHL Volume 30 Issue 2

Civil Rights Complaint Alleging 4th Amendment Violation in Death of Man with Bipolar Disorder Dismissed

Johnson v. City of Memphis, 617 F.3d 864 (6th Cir. 2010)

The 6th Circuit Court of Appeals upheld the trial court’s dismissal of a § 1983 complaint brought by the widow of a man with bipolar disorder against two city police officers alleging violation of the Fourth Amendment’s prohibition against unlawful search and seizure that resulted in his death. The plaintiff called 911 seeking assistance for her husband, but hung up and left the house before the operator answered. Receiving no response to a follow-up call, the operator dispatched two patrol officers to the house. Upon arrival, the officers found the door open and after announcing their presence and receiving no response, entered the house with their weapons drawn. The man jumped on one officer grabbing his gun; a scuffle ensued; and the plaintiff’s husband was killed. The Court held that the entry met the exigent circumstances emergency aid exception to the 4th Amendment’s prohibition against unlawful searches and seizures based upon the factual circumstances in this case.

Found in DMHL Volume 30 Issue 2

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

Hospital Not Liable for Counselor’s Sexual Harassment of Patients

Doe v. Fulton-DeKalb Hospital Authority, 628 F.3d 1325 (11th Cir. 2010)

The Eleventh Circuit Court of Appeals has held that Grady Memorial Hospital is not liable for one of its counselor’s sexual misconduct with three patients in its methadone treatment clinic. The plaintiffs alleged that the counselor made inappropriate sexual advances during drug counseling sessions, and that Grady failed to conduct an adequate background investigation prior to hiring the counselor and to adequately supervise the counselor. The Court found that under Georgia law an employer cannot be found liable for the sexual misconduct of an employee under the doctrine of respondeat superior. In addition, the Court upheld the finding of the district court that the hospital exercised ordinary care in the hiring process. While its screening protocols were less than ideal, the hospital had no actual notice of prior misconduct by this employee; he passed criminal background checks and a drug test; and he provided dishonest information during the application and interview process as to why he left his previous jobs. The fact that the hospital failed to comply with Georgia regulation requiring it obtain a five-year employment history on all applicants posed licensing problems only and did not impost tort liability on the hospital.

Found in DMHL Volume 30 Issue 3

Government Fails to Carry Burden to Forcibly Medicate Incompetent Defendant

United States v. Ruiz-Gaxiola, 623 F.3d 684 (9th Cir. 2010)

The Ninth Circuit Court of Appeals has reversed the decision of the trial court and found that the Government did not meet its burden of establishing by clear and convincing evidence the Sell factors authorizing treatment of a defendant over his objection.

The defendant in this case, a Mexican citizen with an extensive criminal history of drug offenses, was charged with illegal reentry into the United States. Diagnosed with a delusional disorder, grandiose type, he was found incompetent to stand trial and sent to Butner Correctional Institution in North Carolina for treatment. At an administrative hearing, the defendant was found not to be a danger to himself or others in the institutional setting and did not suffer from a grave disability justifying involuntary medication. Thus the sole issue before the court was whether the defendant could be medicated over objection for the purpose of restoring his competency to stand trial.

Under Sell v. United States, 539 U.S. 166 (2003), the government must prove by clear and convincing evidence each of the factors enunciated by the United States Supreme Court: 1) that important governmental interests are at stake; 2) involuntary medication will significantly further that interest, i.e. it is substantially likely to restore defendant to competency and substantially unlikely to cause side effects that would impair significantly his ability to assist in his defense; 3) involuntary medication is necessary to further those governmental interests; and 4) treatment with medication is medically appropriate.

The magistrate judge considered the evidence and concluded that the government had proved its case. The Court of Appeals reversed finding that this case does not present one of those rare circumstances permitting medication over objection to render the defendant competent to stand trial and the government had not met its burden under Sell’s second and fourth prong. Although the defendant had never been treated with antipsychotic medications, the Court held that the government must prove what the medication will do, not what it is designed to do. The appellate court discounted the testimony of the government’s experts and relied on the testimony of the defendant’s expert who testified that the medication was likely to worsen his rare and difficult to treat mental disorder and increase his delusional thinking, especially based upon his inferiority feelings and hypersensitivity to powerlessness. It found that treatment with haldol would also unduly subject him to the risk of tardive dyskinesia. The court therefore found that treatment with medication was medically inappropriate.

Found in DMHL Volume 30 Issue 3

US Supreme Court Declines to Review Seventh Circuit Decision Authorizing Indiana Protection and Advocacy Services to Sue Indiana to Obtain Peer Review Records

Indiana Family and Social Services Administration v. Indiana Protection and Advocacy Services, 603 F.3d 365 (7th Cir. 2010) pet. for cert. denied April 25, 2011)

On April 25, 2011, the Supreme Court denied the petition for Writ of Certiorari filed by the Indiana Family and Social Services Administration seeking review of the en banc decision of Court of Appeals for the Seventh Circuit that authorized Indiana Protection and Advocacy Services to sue to obtain peer review records from its mental health agency (Docket No. 10-131). This case set up the conflict between the circuits prompting the Supreme Court to hear VOPA v. Stewart described above.

Found in DMHL Volume 30 Issue 4

Ninth Circuit Sets Out Test for Determining When Mental Impairment Tolls Statute of Limitations for Filing Federal Habeas

Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010)

The Ninth Circuit Court of Appeals has established a 2-part test to determine when a prisoner’s mental impairment tolls the one-year statute of limitations for filing a federal habeas corpus petition under the Antiterrorism and Effective Death Penalty Act of 1996. The United States Supreme Court had previously upheld Eleventh Circuit determinations finding that the one-year statute of limitations must be tolled if equitable circumstances exist beyond a prisoner’s control preventing him from filing on time. The prisoner must establish that 1) he has been pursuing his rights diligently, and 2) some extraordinary circumstance stood in his way. Holland v. Florida, 560 U.S. __, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). In determining whether a mental disability constitutes such an extraordinary circumstance, a petitioner must show that the disability severely impaired his ability to meet the filing deadline despite diligent efforts to do so.

In this case, while serving a sentence for other charges, the prisoner was charged with possession of a sharp instrument by a state prisoner and was sentenced to 25 years to life. The prisoner appealed his conviction and after the time expired for a petition for certiorari to the United States Supreme Court, he pursued state habeas proceedings. Thereafter, he filed a late habeas petition in federal court alleging ineffective assistance of counsel. Noting the unusually long sentence, the court appointed counsel to represent him. Counsel argued that the petition should not be dismissed as untimely filed due to the prisoner’s inability to read and write, neurological deficits, borderline to mild mental retardation, concurrent psychosis and lack of assistance available to him. The prisoner’s expert psychologist testified that he had been diagnosed as bipolar with a variety of behavioral and cognitive disorders, and that he could not understand his legal rights sufficiently to make rational choices. The record reflected, however, that the prisoner had prepared a number of administrative and judicial filings, including a pro se habeas petition in 2000 and an administrative complaint regarding medical care in 2001. He had also represented himself pro se at his trial on this charge. The district court denied the late filing finding that his mental capacity was not sufficiently severe to impede his filing of a timely petition based on his second grade reading level and its finding that a jail house lawyer had been available to help with the filing of the petition.

In setting out the standard for review, the Ninth Circuit stated that there must be a causal connection between the petitioner’s mental disability and the ability to file the petition. The Court determined that the relevant question is whether the mental impairment caused the untimely filing and set out the following two-part test:

1. The petitioner must show that the mental impairment was an extraordinary circumstance beyond his control demonstrating an impairment so severe that either

a. The petitioner was unable to rationally or factually personally understand the need to timely file, or
b. The petitioner’s mental state rendered him unable to personally prepare a habeas petition and effectuate its filing.

2. The petitioner must show diligence in pursing claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including whether there was reasonably available access to assistance.

The Court found that this standard “flows naturally” from the Supreme Court’s rulings concerning competency to stand trial in Dusky v. United States, 362 U.S. 402 (1969); competency to plead in Godinez v. Moran, 509 U.S. 389 (1993);and competency to represent oneself in Indiana v. Edwards, 554 U.S. 164 (2008). In other words, the court must determine whether the petitioner is competent to do what the law requires. In examining the totality of the circumstances, the court:

1. must find that the petitioner has made a non-frivolous showing that he had a severe mental impairment during the filing period that would entitle him to an evidentiary hearing;
2. determine after considering the record whether the petitioner satisfied his burden that he was in fact mentally impaired;
3. determine whether the petitioner’s mental impairment made it impossible to timely file on his own; and
4. consider whether circumstances demonstrate the petitioner was otherwise diligent in attempting to comply with the filing requirements.

The Ninth Circuit remanded the case for the district court to apply the facts of the case to the standard articulated in its decision.

Found in DMHL Volume 30 Issue 5

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

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

First Circuit Denies Habeas Relief That Counsel Was Ineffective in Failing to Request Competency Evaluation

Robidoux v. O’Brien, 643 F.3d 334 (1st Cir. 2011)

The First Circuit Court of Appeals has denied habeas corpus relief to a petitioner who was convicted of first degree murder in Massachusetts who allowed his 11-month old son to die based upon his religious beliefs. He argued that his counsel at trial was ineffective because he had an obligation to seek a competency to stand trial evaluation and that he failed to raise an insanity or diminished capacity defense.

The defendant in this case was a member of a religious sect led by his father that believed that a number of institutions, including the legal system, medical system and mainstream religion were invalid and its members were instructed to eschew doctors and medicines. The evidence showed that until he was about 8 months old, the child was thriving and well nourished, but about that time the defendant’s sister got a “leading,” instructing that the mother should feed the child only breast milk in limited quantities. Thereafter, the infant began to fail. The defendant and his wife failed to take the infant to a doctor or to provide him with a proper diet. The day after the sect conducted a special meeting to pray for the child, he died. After concealing the body in his sister’s house for several months, the defendant buried the baby in Maine. The police located the body a year after the burial when a defector from the sect reported the death to authorities.

At trial, the defendant argued that the prosecution could not prove the cause of death was malnutrition, based upon the testimony of his forensic expert that the infant could have died from any number of causes. The chief medical examiner testified that the condition of the decomposed body was indicative of severe malnutrition due to starvation. The defendant testified in his own defense that he had no intent to harm the child. The jury convicted him of first degree murder and he was sentenced to life in prison.

In seeking habeas corpus relief, the defendant argued primarily that his counsel should have pursued an insanity or diminished capacity defense based upon three affidavits, the first from a psychologist who never interviewed the defendant stating that the defendant was unable to appreciate or understand that it was wrong to deprive his son of solid food. The Director of the New England Institute for Religious Research stated that the defendant’s father exercised undue influence over him and other sect members that made it impossible for counsel to present an adequate defense. The defendant himself filed an affidavit stating that counsel discussed the insanity defense with him, but he refused to talk with a doctor or psychotherapist prior to trial due to his religious beliefs.

The trial court found that counsel properly defended the case based upon the judge’s own observations of the defendant in court, the answers provided in colloquies from the bench, and his testimony at trial, even though he presented a rambling eve-of-trial motion to represent himself saying the government had no jurisdiction to try him, which she found appeared a tactic to delay trial. No fact-finding hearing was conducted on his competency to stand trial.

The First Circuit articulated the standard in ineffective assistance of counsel cases that there must be proof that counsel fell below the minimum standards of representation and there was a reasonable probability that the deficiency altered the outcome of the case. Where raising a particular defense is a strategy choice, counsel will be given special deference. On the other hand, if substantial indications exist that the defendant was not competent to stand trial, counsel is not faced with a strategy but with a settled obligation under Massachusetts and federal law to raise the issue with the court and seek a competency evaluation. Competency is a functional concept focusing on the defendant’s part in the trial, namely whether the defendant understands the nature of the proceedings against him and is able to assist counsel in his defense. In this case, it appears that he argued that the government had no legitimate authority over him, but he engaged in an intelligent and articulate colloquy with the court and as a witness. There was no evidence that the defendant had ever suffered from a mental illness or that he failed to understand the proceedings or cooperate with counsel. Although state court findings are generally accorded no deference absent an evidentiary hearing, there was no evidence presented that a competency hearing was necessary.

In addition, the 1st Circuit held that the defendant could decline to assert an insanity defense and refuse a psychiatric examination, which he apparently did. His current defense counsel argued that he suffered from a delusional disorder based on his religious illusions that God and prayer, not ordinary nourishment, would protect his son. He also argued that his diminished capacity prevented him from forming the necessary intent to support a conviction for first degree murder. The appellate court held that there was no evidence to support a mental illness and that the law provides for the denial of medical care in certain situations based upon religious beliefs, such as for example, those held by Christian Scientists and Seventh Day Adventists, but the evidence, including the defendant’s own testimony indicated that he understood the risk.

Found in DMHL Volume 31 Issue 1

Fourth Circuit Finds Federal Commitment of Sexually Dangerous Persons Does Not Violate Equal Protection

United States v. Timms, 664 F.3d 436 (4th Cir. 2012)

Reversing the decision of the United States District Court for the Eastern District of North Carolina, the Fourth Circuit Court of Appeals, in a decision written by Judge G. Steven Agee, held on January 9th that the federal scheme found in 18 U.S.C. § 4248 permitting civil commitment of sexually dangerous persons does not violate the Equal Protection Clause of the United States Constitution. Timms’ case was one of the first cases to arise under the Adam Walsh Child Protection and Safety Act of 2006. That section authorizes the civil commitment of individuals in the custody of the Bureau of Prisons who are determined to be a sexually dangerous person, defined as someone “who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” 18. U.S.C. § 4247(a)(5).

The Federal Correctional Institution in Butner, North Carolina is the federal institution to which prisoners in the custody of the Bureau of Prisons are now transferred for assessments as sexually dangerous persons. Most of these cases are therefore being heard before the North Carolina district court and appealed to the Fourth Circuit. Timms was in custody at Butner, completing a 100 month sentence for soliciting and receiving child pornography by mail, when the government filed a certificate to commit him. At the time the certificate was filed, the Comstock case, the first challenge to the federal sexually dangerous commitment scheme, was pending before the Fourth Circuit. The hearing on the merits of his case was therefore put on hold. The District Court in Comstock had found the statutory scheme unconstitutional on the grounds that Congress lacked authority to enact it, and the Fourth Circuit later upheld that decision. The United States Supreme Court reversed, upholding the authority of Congress to enact the statute under the Necessary and Proper Clause of the Constitution. United States v. Comstock, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010). Upon remand and then re-appeal, the Fourth Circuit determined in Comstock II that the statute did not violate the due process clause by requiring a court to find by clear and convincing evidence, rather than beyond a reasonable doubt, that the individual is a sexually dangerous person. United States v. Comstock, 627 F.3d 513 (4th Cir. 2010), cert. denied, 131 S.Ct. 3026, 180 L.Ed.2d 865 (June 20, 2011).

When his case finally came forward for hearing before the District Court after the Comstock I and II decisions, Timms argued that the statutory scheme violated the Equal Protection Clause of the Constitution. The District Court agreed, relying on Baxstrom v. Herold, 383 U.S. 107 (1966) that held that the government cannot provide less protection during civil commitment proceedings for prisoners who are completing there sentences than for nonprisoners. The district court reasoned that the federal government has no authority to commit sexually dangerous persons who are not in prison, and therefore individuals in the custody of the Bureau of Prisons are not being treated similarly with sexual predators in the community.

On appeal, the Fourth Circuit first determined that it had to decide whether to apply a strict scrutiny standard of review, as Timms argued, or the generally applicable rational basis standard.. Timms relied on Foucha v. Louisiana, 504 U.S. 71 (1992) and Addington v. Texas, 441 U.S. 418 (1979) that recognized that civil commitment constitutes a significant deprivation of liberty. However, the 4th Circuit found that these cases were decided on due process grounds, not equal protection, and the Supreme Court, despite being provided an opportunity to do so, never expressly established a heightened standard of review. As a general rule, the Court held that legislation is presumed to be valid and will be sustained if the statute is rationally related to a legitimate state interest. Following the First Circuit decision in United States v. Carta, 592 F.3d 34 (1st Cir. 2010), deciding this very same issue, the Court held that the generally-applicable standard is thus rational basis.

The Fourth Circuit next turned to the Equal Protection issue. Under the Equal Protection Clause, all persons similarly situated must be treated alike. The Court held that Congress had a rational basis for subjecting sexually dangerous persons in BOP custody to civil commitment. The Court found that the scope of the federal government’s authority for civil commitment differs so much from a state’s authority that there is a rational basis for the distinction Congress drew. Congress rationally limited its scope to sexually dangerous persons within BOP custody based on Congress’ limited police power and the federal interest in protecting the public from reasonably foreseeable harm from such persons.

Found in DMHL Volume 31 Issue 2

Ninth Circuit Authorizes Medication over Objection for Pretrial Detainee on Dangerousness Grounds without Requiring Sell Hearing

United States v. Loughner, 672 F.3d 731 (9th Cir. 2012)

The Ninth Circuit Court of Appeals, in a 2-1 decision issued on March 5, 2012 and amended on May 14, 2012, upheld the ruling of the United States District Court in Arizona, holding that the government may treat a pretrial defendant with serious mental illness with antipsychotic medication over his objection if the inmate is a danger to himself or others. An administrative hearing comporting with the requirements in Harper v. Washington, 494 U.S. 210 (1990), is sufficient without the necessity of the judicial hearing and balancing test set out in Riggins v. Nevada, 504 U.S. 127 (1992) and Sell v. United States, 539 U.S. 166 (2003).

The defendant Jared Lee Loughner is accused of murdering six people, including U.S. District Judge John Roll, and the attempted murder of thirteen others, including Congresswoman Gabrielle Giffords in Tucson, Arizona on January 8, 2011. Loughner was committed to the Bureau of Prisons to determine whether he was competent to stand trial, and based upon the findings of the medical staff at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri(“FMC-Springfield”) that he was not, he was then committed to determine whether he could be restored to competency.

While in custody at FMC-Springfield, Loughner was determined to be a danger to himself or others and the facility conducted an administrative hearing under 28 C.F.R. § 549.46(a) to determine whether he could be involuntarily medicated. A psychiatrist not involved in the defendant’s treatment presided over the hearing that took place in Loughner’s cell. A licensed clinical social worker was assigned as his staff representative. Even though Loughner requested that one of his attorneys appear at the hearing as his “witness,” counsel was not permitted to attend the hearing. Following the hearing, the presiding psychiatrist authorized involuntary medication finding that Loughner, who had been diagnosed with schizophrenia, “had become enraged while being interviewed by his attorney and yelled obscenities; had thrown objects, including plastic chairs and toilet paper; had spat on his attorney, lunged at her, and had to be restrained by staff; and his behavior had been characterized by indications that he was experiencing auditory hallucinations, including inappropriate laughter, poor eye contact, yelling “No!” repeatedly, and covering his ears.” Id. at 737. Loughner was given 24 hours to appeal the decision to the Administrator of the Mental Health Division, which he did. Laced with profanity, Loughner’s appeal was denied.

Upon learning of Loughner’s involuntary medication, his attorneys filed an emergency motion in the district court to enjoin FMC–Springfield from forcibly medicating him, arguing that the involuntary medication violated his substantive due process rights by treating his mental illness with medication without first considering less intrusive measures, and by failing to consider how the medication might implicate his fair trial rights. They also argued that his procedural due process rights as a pretrial detainee had been violated because the hearing should have been held before the court and the specific drug and dosage should have been specified in the hearing.

The district court denied the motion and request for an evidentiary hearing on the grounds that, even though he was a pretrial detainee, Loughner was being medicated on dangerousness grounds and that the Harper standards, not the Riggins and Sell standards, applied. In so deciding, the district court adopted the rationale in United States v. Morgan, 193 F.3d 252 (4th Cir. 1999), holding that dangerousness determinations are to be made by medical professionals and the court’s involvement should be limited to a review for arbitrariness. On appeal to the Ninth Circuit, the Motions Panel granted Loughner a stay, enjoining all involuntary administration of medication pending adjudication of this appeal.

After medication was discontinued, Loughner’s condition drastically deteriorated and he was placed on suicide watch. FMC–Springfield’s psychiatrists then determined that Loughner was a severe danger to himself and administered medication on an emergency basis. Loughner’s attorneys immediately requested the district court to enforce the Ninth Circuit injunction, but the district court refused. FMC–Springfield thereupon conducted a second Harper-style hearing to continue the mediation based on Loughner’s danger to himself. Loughner again requested that his attorney appear as his “witness.” His attorney did not appear but submitted a written statement which contained legal objections to the involuntary medication. In justifying the administration of medication in this report, the presiding psychiatrist noted the deterioration in Loughner’s condition after the administration of antipsychotic medication was discontinued. Many of his most serious symptoms had receded but he “still exhibits a tendency towards motor restlessness and pacing…cries frequently, and expresses intense feelings of guilt.” United States v. Loughner, 672 F.3d at 739. The report also noted Loughner’s current medication regimen and stated that other less intrusive measures would not address Loughner’s fundamental problem.

Loughner’s attorneys filed another emergency motion with the district court to enjoin the administration of the medication which the court again denied on the grounds that the administration of medication “was predicated on the grounds of dangerousness and really has nothing to do with his competency.” Id. at 740. The district court also continued Loughner’s commitment another four months for competency restoration based on his treating psychiatrist’s testimony that he was likely to become competent in the near future.

On appeal, the Ninth Circuit first distinguished between the substantive due process and procedural due process issues presented. It reiterated that the substantive due process clause of the Fourteenth Amendment establishes the definition of the protected constitutional interest, here the liberty interest in being free from unwanted antipsychotic medication, and identifies the conditions under which competing state interests outweigh it. The procedural due process grounds set out the minimum procedures required to determine whether those liberty interests outweigh the government’s interest in overriding them. The Court then conducted an analysis of the Harper, Riggins, Sell and post-Sell decisions.

In Washington v. Harper, the United States Supreme Court reviewed the State’s regulation governing the forcible medication of a convicted prisoner with serious mental illness who posed a serious likelihood of danger to himself, others, or their property. In upholding the Washington regulation, the Supreme Court balanced the prisoner’s interest in avoiding unwanted medical treatment with the State’s penological interest in providing needed treatment to inmates. The Court held that “given the requirements of the prison environment, the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s best interest.” Washington v. Harper, 494 U.S. at 227.

In Riggins v. Nevada, the Supreme Court reviewed Nevada’s forced treatment of the defendant during trial. Riggins began taking mellaril prior to the trial, but requested it be stopped during trial because of its effect on his demeanor and his mental state. Following the testimony of three psychiatrists who questioned the need for continued medication during trial, the trial court denied Riggins motion to discontinue the mediation, but gave no rationale for the decision. The Supreme Court held that pretrial detainees possessed at least the same right as the convicted prisoners in Washington v. Harper, and denied it had determined the full constitutional protections required for pretrial detainees in that case. The Court suggested that the prosecution could have prevailed if “the district court had found that treatment with medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins own safety or the safety of others.” Riggins v. Nevada, 504 U.S. at 135. The Court reversed but set no standards for pretrial detainees because the district court had made no determination related to the need for medication and no findings to support its decision.

In Sell v. United States, the Supreme Court set out the substantive standards for determining when the government may administer antipsychotic drugs involuntarily to restore a criminal defendant to competency to stand trial. The court must first determine “whether there are important government trial related issues at stake; that involuntary medication will significantly further these governmental interests, without causing side effects that will interfere significantly with the defendant’s fair trial rights; that the medication is necessary to further the government’s interests taking into account less intrusive alternatives; and that the administration of the antipsychotic drugs is medically appropriate, i.e., in the defendant’s best medical interest.” Sell v. United States, 539 U.S. at 180-181.

After reviewing the cases decided post-Sell, the Ninth Circuit held that “when the government seeks to medicate a detainee – whether pretrial or post-conviction – on the grounds that he is a danger to himself or others, the government must satisfy the standard set forth in Harper. The Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.” United States v. Loughner, 672 F.3d at 752. The Court then upheld the Bureaus of Prison’s regulation finding that a judicial hearing was unnecessary, stating that medical decisions should be made by medical personnel. Although it questioned the effectiveness of Loughner’s prison representative, it found attorney representation not necessary. The Court also held that a specific medication regimen need not be specified finding that Loughner’s treating psychiatrist must be able to titrate his existing dosages to meet his needs and to change medications as necessary. The Ninth Circuit finally held that should Loughner be restored to competency, his arguments that the antipsychotic medications substantially alter his demeanor and make him unable or unwilling to assist his counsel are issues to be decided at the time of trial.

Found in DMHL Volume 31 Issue 4

Ninth Circuit Holds District Court Decision Refusing to Seal Competency Proceedings Not Subject to Interlocutory Appeal

United States v. Guerrero, 2012 U.S. App. LEXIS 18504 (9 th Cir. Cal. Aug. 31, 2012)

The Ninth Circuit Court of Appeals has refused to hear the interlocutory appeal of the district court’s denial of defendant’s motion to seal his competency proceedings under the collateral order doctrine.

James Guerrero and a co-defendant were indicted in 2008 for the first degree murder of a United States correctional officer and the government filed a notice of intent to seek the death penalty. In April 2011, the defendant filed a motion for a hearing to determine his competency to stand trial, along with six exhibits, including a 27-page social history and a 77-page memorandum describing defense counsels’ interactions with the defendant. The defendant moved the court to seal the evidentiary hearing, all exhibits, post-hearing briefs and any detailed findings of fact. The district court denied the motion to seal the proceedings and documents, finding an overriding public interest in criminal competency proceedings, and scheduled the competency hearing. The court did issue a protective order prohibiting certain privileged and confidential information from being used at trial. The defendant thereupon sought an interlocutory appeal to the Ninth Circuit.

As a general rule, an appellate court may hear appeals only from a district court’s final decision concluding litigation. A court may review an intermediate decision under the collateral order doctrine only when the decision 1) has conclusively determined the disputed question, 2) resolved an important issue completely separate from the merits of the case, and 3) would be effectively unreviewable on appeal from a final judgment. A decision that is effectively unreviewable on appeal is one that would imperil a substantial public interest or some particular value of high order, public access to criminal competency proceedings being one such interest.

The defendant argued in this case that once his personal history was publicly disclosed at the competency hearing it would intrude on the attorney/client privilege, taint the jury pool and invade his and his family’s privacy, and was thus effectively unreviewable. The Ninth Circuit found in this case that the first two prongs of the standard had been met. The issue of whether to seal the competency proceedings had been conclusively determined and the competency issue was separate on the merits from the criminal proceeding. However, the Court found that the decision whether to seal the competency proceeding could be adequately vindicated on appeal through reversal of a conviction and the ordering of a new trial. Moreover, other avenues were also available to protect the defendant’s interests including a petition for writ of mandamus asking a court to seal the records, rigorous jury screening, possible relocation of the trial, and entry of protective orders, prohibiting the use or disclosure of certain documents. The Ninth Circuit therefore denied the defendant’s appeal and remanded the case for a determination of the defendant’s competency and further trial on the merits.

Found in DMHL Volume 31 Issue 6

Second Circuit Rules P&A Contractor Lacks Standing to Sue New York on behalf of Its Constituents

Disability Advocates, Inc. et al. v. New York Coalition for Quality Assisted Living, Inc. et al., 675 F.3d 149 (2012)

The Second Circuit Court of Appeals has held that Disability Associates, Inc., a contractor for New York’s designated protection and advocacy agency, the Commission on Quality of Care and Advocacy for Persons with Disabilities, lacks standing to sue the State of New York and its officials in this long-running challenge to require New York to provide individuals with mental illness residing in adult homes with more integrated services in the community. In addition, the Court held that intervention by the United States at the remedial phase of the litigation was insufficient to convey jurisdiction upon the federal court when it lacked jurisdiction in the first instance.

Disability Associates, Inc. originally filed suit against the Governor of New York and the New York Commissioners of Health and Mental Health on July 1, 2003 on behalf of its constituents, individuals with mental illness residing in, or who might one day reside in, adult homes in New York City. The suit alleged that the mental health system violated the “integration mandate” under Title II of the Americans with Disabilities Act by failing to provide mental health services in the most integrated setting appropriate to the needs of the individuals. After discovery, the State filed a Motion for Summary Judgment arguing, among other things, that Disability Associates, Inc. lacked standing to sue on behalf of its constituents. The district court found that the plaintiff did have standing and, after a five-week bench trial, that New York had violated the ADA. Disability Associates, Inc. v. Paterson, 653 F.Supp. 2d 184 (E.D.N.Y. 2009).

More than six years after suit was filed, the United States moved to intervene in the remedy phase of the proceeding. The Court rejected New York’s proposed remedial plan, but entered one with a few modifications submitted by Disability Advocates, Inc. The Court required, among other things, that New York afford all current and future residents desiring placement in supportive housing with such services within four years of entry of the order.

New York appealed the order on the grounds, among others, that Disability Associates, Inc. lacked standing. The appeal was argued on December 8, 2010, but it was not until April 6, 2012 that the Second Circuit dismissed the entire case for lack of jurisdiction because no Article III Case or Controversy existed. Before a party may bring a case in federal court, it must first demonstrate that it has standing, that is, it has suffered an injury-in-fact, which is a concrete and particularized harm to a legally protected interest. If the party lacks standing, no case or controversy over which a court may have jurisdiction exists. When an association seeks to bring suit solely as the representative of its members, it must allege that its members are suffering immediate or threatened injury had the members themselves sued. Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977). In Hunt, the Supreme Court ruled that although the Washington State Apple Advertising Commission was a state agency without actual members, its constituency possessed an “indicia of membership” and functioned as a membership organization. The record reflected that the apple growers and dealers alone elected the members of the Commission, served on the Commission, and financed its activities.

Here, the Second Circuit noted that whether P & A systems afford similar protections to their constituents, as in Hunt, including requirements that advisory councils be composed of at least 60% of individuals with disabilities and grievance procedures be established, has been decided differently in circuits throughout the country. The Ninth and Eleventh Circuits have found the indicia of membership to be sufficient to convey associational standing on P& A agencies. Dr. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1110 (9th Cir. 2010); Doe v. Stincer, 175 F.3d 879, 886 (11th Cir. 1999). By contrast, the Fifth and Eighth Circuits have dismissed cases finding no associational standing. Citizens of Dall. v. Dall. Cnty. Mental Health & Mental Retardation Ctr. Bd. of Trs., 19 F.3d 241, 244 (5th Cir. 1994); Mo. Prot. & Advocacy Servs. Inc. v. Carnahan, 499 F.3d 803, 810 (8th Cir. 2007).

In this case, the Second Circuit determined that it need not decide whether the P & A Agency could assert associational standing because it found Disability Advocates, Inc. was a mere contractor for the designated P & A system. Although as a contractor, Disability Advocates, Inc. was required to comply with all the requirements of the Protection and Advocacy for Individuals with Mental Illness Act, the record was devoid of any indication as to whether its constituents had any ability to elect its directors, make budget decisions, influence its activities or direct its litigation strategies. The Court found no evidence that Disability Advocates had even notified its constituents of this litigation. Without these protections, the Court held, Disability Advocates’ constituents have nothing approaching the indicia of membership required to support associational standing, as found in Hunt.

In addition, the Second Circuit found that the United States did not intervene in the case until six years after suit was filed and after the trial phase had concluded. The Court held that a court must first have jurisdiction over a case before it can grant a motion to intervene. Because the district court lacked the requisite Article III Case or Controversy jurisdiction in the first instance, the mere fact that the United States itself might have standing could not convey jurisdiction originally upon the court. The Court therefore dismissed the entire case, relieving New York of the burden to implement the district court’s order.

Found in DMHL Volume 31 Issue 6

Defendant Detained in Mental Health Facility for Restoration to Competency is Prisoner under Prison Litigation Reform Act

Gibson v. City Municipality of New York, 692 F.3d 198 (2012)

The Second Circuit Court of Appeals has upheld the district court’s dismissal of a petitioner’s motion to proceed in forma pauperis, resulting in dismissal of his complaint against a number of city, corrections and mental health officials alleging they violated his civil rights. The petitioner had filed three previous petitions as a prisoner that had been dismissed as frivolous, malicious, or failed to state a claim upon which relief may be granted. The Court held that although the petitioner was being detained in a mental health facility, he was still a “prisoner” for purposes of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), and thus subject to the Act’s limitation on proceeding in forma pauperis in federal court.

The petitioner, Bennie Gibson, had been charged with third degree criminal mischief under New York law and was being detained at Kirby Psychiatric Center in the custody of the Commissioner of Mental Health on a temporary order of observation for restoration of his capacity to stand trial. While federal law generally permits a district court to waive filing fees for individuals who cannot pay and to proceed in forma pauperis, Congress enacted the Prison Reform Litigation Act in 1995 to limit abuse of the legal system by prisoners who file repetitive frivolous complaints. “Prisoner” is defined under the Act as “any person…detained in any facility who is accused of…violations of criminal law.” 28 U.S.C. § 1915(h). Under New York law, criminal charges are not dismissed against a defendant held in the temporary custody of the Commissioner of Mental Health, but are merely suspended pending his treatment and restoration to capacity. Gibson therefore met the definition of a prisoner as a person detained as a result of an accusation, conviction, or sentence for a criminal offense. Had Gibson been held under a final order of observation as a civil unrestorable patient, been found not guilty by reason of insanity, or been civilly committed as a sexually violent predator, the result may not have been the same.

Found in DMHL Volume 32 Issue 1

Tenth Circuit Finds Right to Counsel in Post-Conviction Proceeding to Determine Whether Mental Retardation Bars Imposition of Death Penalty; Rejects Use of Flynn Effect in Determining IQ

Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012)

Although there is no right to counsel in post-conviction proceedings, the Tenth Circuit has held that a capital defendant has a Sixth Amendment right to counsel in a post-conviction (Atkins) hearing conducted after his original conviction to determine whether he is mentally retarded (intellectually disabled). Such a finding would bar imposition of the death penalty. The Court then proceeded to review each of the defendant’s claims of ineffective assistance of counsel, rejecting all of them except one, but finding no cumulative evidence or prejudice on that claim to warrant overturning the jury verdict. On review of the jury’s finding that the defendant was not mentally retarded, the Court found that the results of the defendant’s numerous IQ tests fell within a “gray” area, but the scores were not entitled to be adjusted downward due to the “Flynn” effect. Because there is no scientific consensus on its validity, failure to apply it is not “contrary to clearly established federal law.” Finally, the Court found that defendant’s trial counsel in the original trial was grossly ineffective during the sentencing phase, overturned the death sentence, and remanded the case to the Oklahoma courts for a new sentencing hearing.

Victor Hooks was convicted in 1989 of first degree murder of his common law wife and of first degree manslaughter of her unborn child. Hooks and his common law wife had lived together for four years and were the parents of a one-year-old daughter. His wife was also 24 weeks pregnant with their second child. After originally claiming that she had been beaten and raped while on a walk, Hooks confessed to police that they had been fighting, she slapped him, and he then struck her, knocked her to the ground and kicked her in the stomach and face. Subsequently he removed her clothing, put her in the bathtub, and shaved a portion of her head. Hooks then cleaned up the apartment and also removed blood from his one-year-old daughter who had been splattered in the course of her mother’s beating.

Hooks was represented at trial by a private attorney hired by his mother. His attorney decided not to pursue an insanity defense believing there was an insufficient factual basis for it, but focused on obtaining a conviction for a lesser-included offense of second degree murder or first degree manslaughter, arguing that Hooks acted in the heat of passion and not with malice aforethought. There was some information that Hooks had been hit by an 18-wheel truck as a child and suffered a traumatic brain injury, and also suffered from chronic psychosis. The evidence also showed that Hooks had abused his wife on prior occasions and was convicted of armed robbery of a liquor store several years earlier. The trial court refused to instruct the jury on the lesser included offenses and the jury then found the defendant guilty of first degree murder, imposing the death penalty, and first degree manslaughter in the death of the unborn child, sentencing him to 500 years imprisonment on that charge.

Hooks challenged his convictions both on direct appeal and through post-conviction petitions for writs of habeas corpus. In 2002, 13 years after Hooks’ conviction, the United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304, 321 (2002) that, in light of a national consensus, the execution of a person with mental retardation is cruel and unusual punishment prohibited by the Eighth Amendment. Hooks then filed a second post-conviction petition alleging that he is mentally retarded. In 2004, after a six-day trial, a jury found him not to be mentally retarded. The Oklahoma Court of Criminal Appeals upheld the determination on both direct appeal and collateral review.

In deciding Atkins, the Supreme Court declined to establish a definition of mental retardation, but left it to the states to do so. In response to Atkins, the Oklahoma Court of Criminal Appeals established the following definition in case law:

A person is “mentally retarded” (1) [i]f he or she functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others; (2) [t]he mental retardation manifested itself before the age of eighteen (18); and (3) the [m]ental retardation is accompanied by significant limitations in adaptive functioning in at least two …skill areas….However, no person shall be eligible to be considered mentally retarded unless he or she has an intelligence quotient of seventy or below, as reflected by at least one scientifically recognized, scientifically approved, and contemporary intelligent quotient test.

Murphy v. State, 54 P.3d 556, 567-68 (Okla. Crim. App. 2002). A defendant has the burden of proving his mental retardation by a preponderance of the evidence.

Hooks had been administered IQ tests through the years and nine of these test results were presented to the jury with scores ranging from 53 to 80. The experts agreed that this range of scores put Hooks in a “gray area.” Tests of 70 or below, however, all reflected some degree of lack of cooperation on Hooks’ part. The experts agreed that the most reliable scores were those conducted by two of the experts of 72 and 76, neither of which met the 70 or below requirement. Hooks argued that these scores should be adjusted downward to reflect the “Flynn Effect.” The “Flynn Effect” is a phenomenon named for James R. Flynn who discovered that the population’s mean IQ score rises over time by approximately 0.3 points per year. If an individual’s test score is measured against a mean of a population sample from prior years, then his score will be inflated and will not provide an accurate picture of his IQ.

The Tenth Circuit rejected this argument finding that Oklahoma law does not require an adjustment for the “Flynn Effect,” nor did it find any scientific consensus on its validity. The Court held therefore that failure to apply the “Flynn Effect” was not “contrary to or an unreasonable application of clearly established federal law,” the standard required to overturn a final state court determination on collateral review. Based upon all of the evidence presented, including other evidence related to Hooks’ functional capacity and his adaptive skills, the jury’s finding that he was not mentally retarded was not clearly erroneous.

Hooks also claimed that his counsel at his Atkins trial was ineffective on a number of legal grounds. The State argued that there is no right to counsel in post-conviction proceedings and therefore there is no basis for a claim of ineffective assistance of counsel in post-conviction Atkins hearings. The Tenth Circuit recognized that the United States Supreme Court has never held that there is a Sixth Amendment right to counsel in an Atkins hearing. It reasoned, however, that the Sixth Amendment guarantees the right to have counsel present at all critical stages of criminal proceedings. Although Hooks was convicted years before the Atkins decision and his trial to determine whether he is mentally retarded was necessarily a post-conviction proceeding, this hearing was the first proceeding at which he could raise this claim. The Court held that the Atkins trial is therefore part of the criminal proceeding and is inextricably intertwined with sentencing. It is thus not civil in nature, as post-conviction proceedings normally are. The right to counsel therefore “flows directly from, and is a necessary corollary to the clearly established law of Atkins.”

The Court then examined Hooks’ claims that his counsel was ineffective on the merits. Hooks argued that the standard articulated in United States v. Cronic, 466 U.S. 648 (1984), where counsel’s representation fell so far short of that expected of defense counsel that prejudice was presumed, should be applied in his case. In Cronic, the Supreme Court found that some actions of counsel are so likely to prejudice the defendant that the cost of litigating their effect is unjustified and prejudice will be presumed. The Court found, however, that his counsel actively and zealously participated in all phases of the proceedings and therefore held that the standard in Strickland v. Washington, 466 U.S. 668 (1984), applied instead. In Strickland, a review of counsel’s performance is a highly deferential one and counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Although counsel failed in one aspect of representation, the Court found that failure was not cumulative or prejudicial to the hearing’s outcome.

The Court next reviewed the effectiveness of counsel at his original trial and found that Hooks counsel at trial in the conviction phase exercised a tactical decision not to raise an insanity defense because it lacked a factual basis. In the sentencing phase, however, the Court found counsel’s representation grossly deficient in his failure to conduct a through investigation or to produce any evidence in mitigation. He failed to challenge the prosecution’s aggravation evidence or to present evidence that revealed Hooks was raised in an abusive and chaotic family, suffered from a brain injury and suffered from chronic psychotic mental health problems, all of which could have elicited sympathy from a juror and mitigated his sentence. Moreover, counsel made his own statements to the jury related to Hooks’ violent tendencies and permitted his own expert to make prejudicial statements related to his violence. The Court therefore vacated the death sentence and remanded the case to the Oklahoma courts for a new sentencing hearing.

Found in DMHL Volume 32 Issue 1