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

Mootness

In re Dakota K., No. S-15428, 2015 WL 5061844 (Alaska Aug. 28, 2015)

Appeals challenging the sufficiency of the evidence in involuntary commitment cases are moot after the commitment period has passed; the respondent has the burden to establish factual basis for a finding of collateral consequences

Background: Dakota K. sought to appeal 30-day involuntary psychiatric commitment. Even though the appeal came after the passage of the entire commitment period, Dakota argued that the collateral consequences exception to the mootness doctrine applied as the Supreme Court of Alaska has presumed that collateral consequences will flow from a respondent's first involuntary commitment.

Holdings: The court held that the burden of proving a first involuntary commitment lay with the respondent, who must “make some evidentiary showing at least raising a genuine issue of material fact, that the commitment was a first involuntary commitment—or make an evidentiary showing attempting to establish some factual basis for a finding of collateral consequences.”

Found in DMHL Volume 34 Issue 3

ADA and “reasonable accommodations” requirement

State in Interest of K.C., 2015 UT 92, 2015 WL 7571828 (Utah Nov. 24, 2015) (not yet released for publication in permanent law reports and thus subject to revision or withdrawal)

Americans with Disabilities Act applies to services and programs offered to a parent who has mental illness and other disabilities and whose children are in foster care

Background: The state of Utah sought to terminate a mother’s parental rights to the minor child, K.C. After several previous hearings, mother argued at hearing on termination of her residual parental rights that social services agency had failed to comply with ADA in providing services to her. The Juvenile Court terminated the mother’s parental rights despite her invocation of the ADA, holding that it is not a defense in termination proceedings because the proceeding is not “a service, program, or activity.” Alternatively, the court held that the mother had not suffered harm because her disabilities had been accommodated through previous changes made by the Department of Child and Family Services. K.C.’s mother appealed.

Holdings: The Supreme Court of Utah first held that the Americans with Disabilities Act applied to situations in which the government was asked to provide reunification services to a parent in a dependency hearing. According to the Supreme Court of Utah, reunification services qualified as “services provided by a public entity” and a reunification plan qualified as “a program or activity, as the terms are used in the ADA.”

Despite reversing the trial court’s ruling that the ADA did not apply to the provision of reunification services, the Supreme Court of Utah upheld the trial court’s alternative determination that further modification of the submitted reunification would be unreasonable. That determination by the trial court was not an abuse of discretion where the trial court “found that the plan had already been tailored to the mother’s individual needs, including needs related to the mother’s mental illnesses and physical limitations.” Additionally, the Court noted that K.C.’s mother, N.D. had not “identified any specific modification that she requested that was denied by the court” and claimed only that “she should have been granted additional time to complete the objectives of the reunification plan.”

Found in Found in DMHL Volume 34, Issue 4

Forced administration of medication to restore defendant to competency to stand trial under the Sell standard

Oregon State Hosp. v. Butts, 359 P.3d 1187 (Or. 2015)

Mandamus action cannot be used by hospital where defendant is being treated to challenge decision of trial court that Sell standard has been met

Background: Daniel Butts was charged with 21 felony counts, including nine counts of aggravated murder. When the Circuit Court found him unable to assist in his own defense, Butts was committed to a state hospital. The Circuit Court then entered a Sell order, directing the hospital to involuntarily medicate Butts in order to restore his competency to stand trial. The hospital, having determined that the treatment was not medically necessary, petitioned the Supreme Court for a writ of mandamus directing the trial court to vacate the order, and the Supreme Court of Oregon issued an alternative writ of mandamus while it heard the parties’ arguments.

Holdings: The Supreme Court of Oregon ultimately dismissed the alternative writ of mandamus. It held that (1) mandamus relief was not available to the hospital based solely on its disagreement with the trial court’s findings of fact, and (2) the trial court had implied authority under the applicable statute (determination of fitness statute) to issue a Sell order. The Supreme Court began its discussion of the mandamus issue by stating that “it has become hornbook law in this state that the writ of mandamus cannot be used as a means of controlling judicial discretion.” A writ of mandamus can only be used if the trial court’s decision represents “fundamental legal error” or is “outside the permissible range of discretionary choices.” Thus, the primary issue on review was whether the trial court had the power to order the hospital to involuntarily medicate Butts when the hospital did not agree that the medication was medically necessary.

The Supreme Court of Oregon noted that it had already concluded that courts have implicit authority to issue Sell orders. It noted that the trial court “made extensive findings of fact based on medical evidence” and did so “after resolving disputed factual issues based on medical testimony in the proper exercise of its role as factfinder.” Ultimately, the Supreme Court of Oregon rejected the hospital’s argument that it should be granted “veto power” where a hospital disagrees with a court’s issuance of a Sell order.

Found in Found in DMHL Volume 34, Issue 4

Intellectual disability and the death penalty

State v. Agee, 358 Or. 325 (2015)

Death sentence vacated because (along with other reasons) the lower court refused mitigation evidence of intellectual disability (ID) after defendant’s IQ was shown to be in the 80s and because release of new diagnostic standards requires new Atkins hearing

Background: Following an Atkins hearing at which Agee was found not to be intellectually disabled, Agee was convicted of aggravated murder in the Marion County Circuit Court and sentenced to death in 2011. The case came before the Supreme Court of Oregon on automatic direct appeal. Agee argued, among other points, that the lower court’s holding in the Atkins hearing was error given the release of new diagnostic standards in 2013 and that the trial court erred in refusing his request to present mitigation evidence of intellectual disability based on its finding in the Atkins hearing.

Holdings: The Supreme Court of Oregon affirmed Agee’s conviction, but vacated his sentence of death, and remanded the case to the trial court for a new Atkins hearing. The Supreme Court of Oregon held that although the trial court’s initial finding that Agee was not intellectually disabled was not clear error, a new Atkins hearing was still required to determine whether Agee was intellectually disabled because updated standards were now articulated in the Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (“DSM- 5”). In addition, the Court found the trial court’s proscription of ID mitigation evidence was error that was not harmless.

Notable Points:

No clear error in initial determination under DSM-IV-TR criteria: The Supreme Court rejected Agee’s argument that the trial court used a bright-line rule to arrive at the conclusion that he was not intellectually disabled. Instead the Supreme Court held that the trial court had merely determined that Agee had failed to meet the intellectual functioning prong of the Atkins analysis, and that the trial court’s ultimate decision rested on that fact as well as consideration of Agee’s IQ subtest scores and the results of other neuropsychological tests. 

Remand and new hearing required despite lack of clear error in first determination: The Supreme Court held that allowing the trial court’s ruling to stand “would create an unacceptable risk that a person with intellectual disability will be executed.” The court made this determination largely on the basis that the standards for determining intellectual disability were under review by the psychological community at the time of the first Atkins hearing. Thus “even though the trial court’s ruling comported with the published standards existing at the time that the court ruled” the trial court “did not apply now-current medical standards in determining that the defendant had not met his burden of proof.”

Found in Found in DMHL Volume 34, Issue 4

Treatment provider’s duty of care to third parties

Oddo v. Queens Vill. Comm., 21 N.Y.S.3d 53 (N.Y. App. Div. 2015)

Duty of care to third party who was attacked by person terminated from residential substance abuse program

Background: On July 17, 2010, Sean Velentzas, a nonparty to the current action, stabbed plaintiff Anthony Oddo in the shoulder. Until shortly before the stabbing, Velentzas had been a patient in a residential drug treatment facility operated by Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, Inc. (“Queens Village”). Oddo brought an action against Queens Village. The facility moved for summary judgment, and the Bronx County Supreme Court denied the motion. The facility then appealed.

Holdings: The Supreme Court, Appellate Division found that the facility owed a duty of care to third parties against whom a discharged resident committed a violent act. Additionally it held that whether or not the facility properly discharged its duty of care to the third party victim was a material fact issue precluding summary judgment in favor of the defendants. The Court noted that, although the common law does not generally impose a duty to control the conduct of third persons, liability for the negligent acts of third persons can arise when “the defendant has the authority to control the actions” of the third person. Because New York has no bright line rule concerning whether mental health care providers owe a duty of care to the general public, courts are to examine the issue on a case-by-case basis. The Appellate Division found that Queens Village failed to carry the initial burden of establishing that it owed no duty of care to the plaintiff as a matter of law. Because the record presented an issue of material fact (whether a duty of care was owed by Queens Village), summary judgment was precluded.

Notable Points:

Facility’s recognition of duty to general public: Although Queens Village did not intend to release Velentzas into the general public, the Court also notes that they did not “advise the police that Velentzas should be taken to Faith Mission or held” in custody. The Court used the admission that Queens Village did not intend to release Velentzas into the community as evidence of the facility’s recognition that it owed some duty to the general public.

Whether the treatment facility had sufficient authority to control the actions of the patient: The Appellate Division found there to be “no question” that Queens Village had sufficient authority to control Velentzas’s actions. Key facts in this inquiry were that (1) residents were not free to leave the facility without an escort; and (2) residents who left against clinical advice would be dismissed and returned to the criminal justice system.

Found in Found in DMHL Volume 34, Issue 4

Therapists’ duty to disclose client’s threats to harm third parties

State v. Expose, No. A13-1285, 2015 WL 8343119 (Minn. Dec. 9, 2015)

Minnesota statutory law provides no “threats exception” to privileged mental health client information

Background: Jerry Expose, Jr. was required as a probation condition for a prior conviction to attend anger-management therapy sessions with N.M., a mental-health practitioner. During one session, Expose became increasingly angry and made several threatening statements against D.P., a child caseworker, whom Expose felt was “a barrier to him getting his kids back.” N.M. felt that these “specific threats of physical violence against an identifiable person” had triggered her statutory duty to warn, and she reported Expose’s statements to the police. N.M. testified to the statements at Expose’s trial, and Expose was convicted in the Ramsey County District Court of making terroristic threats. Expose appealed arguing that N.M.’s testimony was inadmissible because it broke the therapist-client privilege. The Court of Appeals reversed and remanded, and the Supreme Court of Minnesota granted review.

Holdings: The Supreme Court of Minnesota affirmed the judgment of the Court of Appeals and remanded the case to the district court. The Supreme Court held that the therapist-client privilege statute, as an evidentiary rule, lacked a “threats exception” either “by implication from the duty-to-warn statute or under our authority to promulgate rules of evidence.” Thus, the Court found that the district court had abused its discretion in allowing N.M. to testify about Expose’s statements without his consent.

Found in Found in DMHL Volume 34, Issue 4

Forced administration of medication to restore defendant to competency to stand trial under the Sell standard

Warren v. State, 778 S.E.2d 749 (Ga. 2015)

Trial court's order “was insufficient in numerous respects” to support defendant’s forced medication for the sole purpose of restoring his competency for trial

Background: After Jesse James Warren was indicted on four counts of murder in connection with a mass shooting, he was found incompetent to stand trial and placed in the custody of the Department of Behavioral Health and Development Disabilities. The state of Georgia filed a petition under Sell to medicate Warren involuntarily in an attempt to restore his competency. The Superior Court for Cobb County granted the state’s motion and the defendant appealed.

Holdings: The Georgia Supreme Court held that, although the state had important governmental interests in restoring Warren’s competency for a timely prosecution and no special circumstances significantly undermined those interests, the factual findings were insufficient to support Warren’s involuntary medication. Important to the Georgia Supreme Court was the “absence of a specific treatment plan” that identified the drugs the State proposed to administer, in what doses and by what methods. The Court noted that “courts must consider less intrusive means for administering the drugs” (emphasis added by Georgia Supreme Court). Finally, the Court pointed to an absence of evidence in the record suggesting that the State sought to involuntarily medicate Warren for “the alternative purpose of preventing him from being a danger to himself or others.”

Found in Found in DMHL Volume 34, Issue 4

Civil Commitment of Sexually Dangerous Individuals

In re Johnson, 2016 ND 29, 2016 WL 669398 (ND Feb. 18, 2016)

Release of an individual from civil commitment under the state’s sexually dangerous individual law ordered upon finding that the district court failed to cite on the record facts establishing by clear and convincing evidence that the offender “has a present serious difficulty controlling his behavior.”

Background: Jeremy Johnson was committed as a sexually dangerous individual in 2012, and in 2013, Johnson petitioned the court for discharge. Finding that Johnson was still a sexually dangerous individual, the district court continued his commitment; Johnson appealed and the North Dakota Supreme Court remanded the case for further findings of fact on the question of whether Johnson had difficulty controlling his behavior. On remand, the district court made additional findings and again issued an order continuing Johnson’s commitment. Johnson appealed the district court’s order continuing his commitment as a sexually dangerous individual, arguing that the court’s findings were insufficient to demonstrate that he had serious difficulty controlling his behavior.

Holdings: The Supreme Court of North Dakota concluded that the district court’s order and findings were insufficient and reversed the order continuing Johnson’s commitment, directing that Johnson be released from civil commitment. Specifically, the Supreme Court of North Dakota found that the district court had not put forward specific factual findings to support the legal conclusion that Johnson’s mental disorder involved serious difficulty controlling his behavior that sufficed to “distinguish a dangerous sexual offender whose disorder subjects him to civil commitment from the dangerous but typical recidivist in the ordinary criminal case.” When the district court fails to put forward such findings, it errs as a matter of law.

Notable Points:

Lack of progression in treatment is not sufficient: The Supreme Court of North Dakota made it clear that an actual finding of serious difficulty controlling behavior must be made in order to justify denial of a petition for discharge from civil commitment of a sexually dangerous individual. Specifically, this means that a court may not rely solely on evidence of lack of progression in treatment to prove that a committed individual has difficulty controlling his behavior—such lack of progress does not necessarily equate to a serious difficulty controlling behavior. Although the Supreme Court conceded that lack of progress in treatment “may indicate serious difficulty controlling behavior” it “decline[d] to infer one equals the other.” The State must present specific evidence (and the court must make a specific finding) regarding whether a defendant has serious difficulty controlling his behavior.

Found in Found in DMHL Volume 35, Issue 1

Confidentiality of Medical Records

Stuckey v. Renaissance at Midway, 2015 IL App (1st) 143111, 45 N.E.3d 1151 (Il. Dec. 18, 2015)

In litigation over nursing home liability for a resident’s assault on another resident, state confidentiality laws prohibit and prevent discovery by the plaintiff of the medical records of the resident who committed the assault.

Background: While a resident at a long-term care facility operated by defendants, Robert Holman was physically assaulted by another resident. Plaintiff Johnnie Stuckey— as attorney-in-fact for Holman—filed a personal injury action to recover damages incurred in the assault. Plaintiff moved to compel defendants to produce partially redacted records regarding the resident who assaulted Holman. Defense counsel refused and was held in “friendly contempt.” On appeal, defendants contended that the circuit court erred in ordering production of the records, arguing that both the Illinois’ Mental Health and Developmental Disabilities Confidentiality Act (the “Confidentiality Act”) and physician-patient privilege prohibited disclosure of the records.

Holdings: The appellate court agreed with the defendants, reversing the circuit court’s discovery orders and vacating the order imposing a fine on defendants for refusal to comply with those discovery orders. The appellate court concluded that the records were protected by the Confidentiality Act and that, because the plaintiff had not shown any exception to the provisions of the Act, the defendant could not be compelled to produce the records.

Notable Points:

Plaintiff failed to raise any possible exception to the Confidentiality Act that would authorize disclosure: Because plaintiff sought records including patient information forms, nurse’s notes, care plans, and social service progress notes—all documents that constitute “records” or “communications” under the Mental Health and Developmental Disabilities Confidentiality Act—plaintiff was required to demonstrate a specific exception to the Confidentiality Act that allowed disclosure. Statutory exceptions, however, are “narrowly crafted” and plaintiff never asserted the applicability of any exception.

Found in Found in DMHL Volume 35, Issue 1

Sentencing of Defendants with Intellectual Disability and/or Psychiatric Issues

State v. Dabney, No. 42650-2014, 2016 WL 768121 (Idaho Feb. 29, 2016)

Trial court did not abuse its discretion when it (1) declined to reduce the sentence of defendant convicted of sexually abusing two children based upon the mitigating developmental and psychiatric circumstances, and (2) relinquished defendant to custody of Board of Correction when a suitable community-based placement could not be found.

Background: Darrien Dabney, a developmentally disabled 18-year-old, forcibly sodomized two 6-year-old boys with whose family he had been living for less than a month. He was indicted for two counts of lewd conduct and ultimately pled guilty pursuant to a plea agreement: the State would dismiss the other count and would recommend a suspended sentence of 20 years (5 fixed and the remaining indeterminate), with Dabney to be committed to a secure residential center for mentally delayed adults. When the district court determined that no suitable community placement could be found, it relinquished jurisdiction over Dabney and remanded him to the custody of the Idaho Board of Correction. Dabney filed a motion asking for reconsideration of his sentence, and, finding that Dabney had not presented any new information in support of his motion, the lower court denied reconsideration of his sentence or relinquishment of jurisdiction.

Holdings: The Supreme Court of Idaho affirmed (1) the defendant’s sentence, (2) the lower court’s order relinquishing jurisdiction, and (3) the lower court’s order denying the motion to reduce the sentence.

Notable Points:

The district court did not abuse its discretion in pronouncing its sentence or relinquishing jurisdiction over defendant: The Supreme Court of Idaho held that the trial court’s sentence was not unreasonable despite the mitigating evidence presented. Although mitigating circumstances included the defendant’s abusive upbringing, sexual abuse at age 10, and extensive psychiatric issues, the sentencing decision was not an abuse of discretion because it was based primarily on the need to protect the community. Because no suitable community placement existed, the court did not err when it eventually relinquished jurisdiction over the defendant. The trial court had retained jurisdiction for a period of time following sentencing, but once it was determined that there was no appropriate community-based facility that could allow for treatment of the defendant, it was not unreasonable for it to relinquish its jurisdiction. This holding was supported by the fact that the defendant had “ample opportunity to provide evidence regarding placements to allay [the] court’s concerns, [but] he did not do so.”

Incarcerating defendant instead of placing him on probation is constitutional: The Supreme Court also held that the district court’s decision not to place Dabney on probation clearly did not violate any of his constitutional rights. Because Dabney had already been sentenced to prison—and the only issue before the court was whether the sentence would be suspended and Dabney would be placed on probation—he had no constitutional or inherent right to be released prior to the expiration of his prison term

Found in Found in DMHL Volume 35, Issue 1

Competency to Stand Trial and the Right to Self-Representation

State v. Hawkins, 363 P.3d 348 (Idaho 2015)

It is not a violation of due process to make a retroactive determination, on remand, of a defendant’s competency at the time of the original trial where there is a sufficient record to support that finding. When raising an Edwards challenge for the first time on appeal, the burden is on the defendant to show fundamental error.

Background: Faron Hawkins was convicted of two counts of robbery. At trial, he admitted to robbing the banks, but contended that he did so under duress from previous involvement with agencies (including the Central Intelligence Agency and Defense Intelligence Agency). The Court of Appeals vacated Hawkins’ conviction, holding that the district court had erred by not ordering a psychiatric evaluation and holding a competency hearing. At the competency hearing on remand, two experts determined that Hawkins was competent during the course of his legal proceedings. The state filed an interlocutory appeal based on the Court of Appeals previous language that suggested a retrospective competence hearing was disallowed. The Court of Appeals clarified that a retrospective competence hearings are permissible. On remand for the second time, the district court set another competence hearing to allow Hawkins to cross-examine witnesses and present his own expert. Before that hearing, Hawkins moved to proceed pro se, which the district court granted. After several months of delays due to Hawkins’ actions, the court proceeded to find Hawkins competent and sentence him despite his never presenting evidence regarding competency. Hawkins appealed. 

Holdings: The Supreme Court of Idaho affirmed the judgment of the district court, finding no reversible error in the actions of the court below. Specifically, the Supreme Court of Idaho found that the district court’s retroactive determination of Hawkins’ competency to stand trial did not violate his due process rights. Further, the Court held that, although a standard was not yet established for reviewing, in response to an Indiana v. Edwards challenge, a lower court’s granting of a pro se motion, the standard of review was in fact controlled by the fact that Hawkins raised the issue for the first time on appeal. Therefore, the lower court’s actions were to be reviewed under the fundamental error standard, and the Court found that Hawkins did not establish a clear violation of a constitutional right. The Court agreed with other courts that “Edwards allows, but does not require, states to insist upon representation by counsel for certain “gray-area” defendants. It does not give such a defendant a constitutional right to have his request for self-representation denied.”

Found in Found in DMHL Volume 35, Issue 1

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

Mitigation Evidence and Ineffective Assistance of Counsel

Salazar v. State, No. SC13-1233, 2016 WL 636103 (Fla. Feb. 18, 2016)

In a first degree murder case in which the defendant received a death sentence, the failure of defense counsel to investigate and present mitigation, including evidence regarding the defendant’s traumatic childhood and low intellectual functioning, sufficiently “undermined” “confidence in the outcome” so as to warrant remand for new hearing.

Background: After a jury trial, Neil Salazar was convicted of first-degree murder and related crimes and sentenced to death. The Supreme Court of Florida affirmed both the conviction and the death sentence. Salazar appealed and petitioned for a writ of habeas corpus. The basis of the appeal was that Salazar’s trial counsel was deficient and had failed to investigate his background and intellectual functioning and present mitigation evidence at the penalty phase.

Holdings: The Supreme Court of Florida denied Salazar’s habeas petition, but they remanded the case for a new penalty phase, holding that Salazar’s trial counsel had provided ineffective assistance at the penalty phase. The court held that Salazar had demonstrated both deficiency and prejudice in regard to his trial counsel’s performance at the penalty phase. Specifically, the court found that there was a reasonable probability that the result would have been different if trial counsel had presented evidence regarding Salazar’s low IQ, adaptive deficits, head injury, and family history.

Notable Points:

Because the known evidence would lead a reasonable attorney to investigate further, counsel’s failure to do so was objectively unreasonable: Salazar’s trial counsel was deficient—an element of the ineffective assistance claim—in failing at the penalty phase to investigate Salazar’s background and intellectual functioning. Specifically, a psychologist’s report from the defendant’s preliminary evaluation had directly informed trial counsel of defendant’s mental health problems and possible brain damage. Given this information, it was objectively unreasonable for Salazar’s trial counsel not to investigate further.

Counsel’s failure resulted in prejudice at the penalty phase: The Supreme Court of Florida also held that Salazar had been prejudiced by his trial counsel’s failures in the penalty phase. Considering the additional mitigation evidence relating to Salazar’s intellectual functioning, low IQ scores, adaptive deficits, childhood head injuries, and family history, there was a reasonable probability that hearing this additional evidence at the penalty phase would have led to a result other than the imposition of a death sentence.

Found in Found in DMHL Volume 35, Issue 1

Intellectual Disability and the Death Penalty

Oats v. State, 181 So. 3d 457 (Fla. 2015), reh'g denied (Mar. 15, 2016)

Inability of defendant to show manifestation of intellectual disability before age 18 does not, alone, result in failure of Atkins claim; Hall v. Florida requires a court to analyze all three prongs of the intellectual disability diagnostic standard, and requires a different legal analysis of the onset prior to age 18 prong than was undertaken by the trial court.

Background: Sonny Boy Oats, Jr., was tried and convicted of robbery and first-degree murder in 1979 and his conviction was affirmed on appeal. In 1994, he sought postconviction relief but was denied. Post-Atkins, he filed a motion to vacate his death sentence on the grounds that he was intellectually disabled. The circuit court held an evidentiary hearing and denied the motion, concluding that Oats had not been able to establish that his intellectual disability had manifested prior to age 18 as required by Florida’s statutory test for determining intellectual disability.

Holding: The Florida Supreme Court reversed, giving three reasons for its decision. First, it noted that the Supreme Court’s decision in Hall v. Florida indicated that the lower court should have addressed all three prongs of the intellectual disability diagnostic standard and not denied the claim based on the apparent failure to meet one of the prongs. Second, the Court held that the lower court failed to consider all of the testimony presented, including evidence from prior postconviction proceedings. Third, the Court found that the lower court erroneously conflated “manifested” with “diagnosed,” an error upon which it based its conclusion that Oats failed to establish his intellectual disability.

Notable Points:

Hall v. Florida requires a circuit court to address all three prongs of the intellectual disability test rather than finding one factor to be dispositive: One of the three prongs of the intellectuality disability test is manifestation of the condition before age 18, but that determination is not dispositive. The Florida Supreme Court held that it was reversible error for the trial court not to consider all three prongs of the intellectual disability test, and to rely solely on the third prong of the test in denying Oats’s claim. The Court, however, was careful to say that, although this was reversible error here, failure to consider all three prongs should not constitute per se reversible error. Nonetheless, all three prongs must be considered because they are interdependent and, even when one is not satisfied, “a finding of intellectual disability may still be warranted based on the strength of the other prongs.”

The circuit court erred in making its conclusion without weighing all testimony presented by defendant: The Florida Supreme Court also held that it was error for the circuit court not to consider all the testimony that Oats presented. The parties stipulated to consideration of the mental health evidence presented in a previous proceeding, and the circuit court did not require the parties to recall all witnesses who testified previously. In its decision, however, the circuit court stated that it was “not in a position to reevaluate the credibility of the witnesses who testified or the evidence” considered in those prior proceedings and simply accepted the postconviction court’s ruling. The Florida Supreme Court held that the lower court should have permitted the parties to recall the witnesses in a new proceeding and submit evidence so that it could be considered and weighed.

Legal standard for analyzing whether intellectual disability manifested before age 18: The Florida Supreme Court noted that the manifestation prong is used to ensure there was evidence of intellectual disability during the developmental period, and that to require evidence of diagnosis before age 18 would render the first two prongs of the standard moot. The Court pointed to the U.S. Supreme Court’s analysis in Hall as demonstrative of how evidence of manifestation, without affirmative diagnosis, can lead to a clear finding that the prong was established.

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

Psychiatric Hospital Liability in Patient’s Suicide

P.W. v. Children's Hosp. Colorado, 364 P.3d 891 (Co. 2016)

Hospital’s affirmative defenses of comparative negligence and assumption of risk in the case of a minor admitted to the psychiatric hospital as a “known suicidal patient” rejected based on finding that the hospital’s “professional duty of care encompasses, and is shaped by, the plaintiff-patient’s medical condition” as it is known to the hospital.

Background: P.W. sued Children’s Hospital Colorado (“the Hospital”) for negligence when his son, K.W., attempted to kill himself by hanging while at the Hospital. When K.W. was first transferred to the psychiatric unit, notes stated that he was admitted for treatment of depression and suicidal ideation—specifically mentioning cutting and hanging—and was placed on “high suicide precautions.” These precautions included the requirement that patients remain in staff sight at all times except for when using the bathroom. When in the bathroom, however, staff should communicate with the patient every 30 seconds. K.W. was allowed use of the bathroom at 9:55 p.m., and at 10:15 p.m., he was discovered to have hanged himself with his scrub pants. K.W. was diagnosed with severe, permanent anoxic brain injury and not expected to recover. P.W., K.W.’s father, sued the Hospital individually and on behalf of his son for negligence, and the Hospital asserted affirmative defenses of comparative negligence and assumption of risk. P.W. moved to dismiss the defenses, and, treating the motion as one for summary judgment, the district court granted the motion. Holding: The Supreme Court of Colorado affirmed, holding that the Hospital could not assert either a comparative negligence or assumption of risk defense as a matter of law. Although the Hospital had also petitioned for an order to gain access to K.W.’s preincident mental health records, the Supreme Court did not address the trial court’s discovery order. 

Notable Points:

The Hospital assumed an affirmative duty to protect K.W. from self-harm: When admitting a suicidal patient to a psychiatric in-patient unit, a hospital assumes an affirmative duty of care, which subsumes a patient’s own duty of self-care. Thus, a patient cannot be found comparatively negligent for a suicide attempt. In this case specifically, the Hospital agreed to use reasonable care to prevent a known suicidal patient from attempting to commit suicide. That duty cannot be overcome by a comparative negligence or assumption of the risk defense.

A capacity-based theory of comparative negligence does not apply: A hospital’s duty of care encompasses a patient’s individual characteristics—including known medical conditions—and the duty of care can be continually shaped by those characteristics. As such, the capacity for negligence of a sixteen-year-old patient, known to be suicidal, was not relevant to determining whether he could be held comparatively at fault for injuries sustained in a suicide attempt. While in the Hospital’s care, the hospital had a duty to protect him from foreseeable harm, and when he was known to be suicidal at intake, that foreseeable harm included harm from a possible suicide attempt.

Found in Found in DMHL Volume 35, Issue 1

Firearms Regulation

Kolbe v. Hogan, 813 F.3d 160 (4th Cir. 2016) reh'g en banc granted, No. 14-1945, 2016 WL 851670 (4th Cir. Mar. 4, 2016) 

Claims that a state regulation of the possession and use of firearms violates the Second Amendment must pass a “strict scrutiny” review. [Editor Note: This case does not discuss mental illness, but it appears that the standard would apply to firearms restrictions on persons with mental illness.]

Background: The Firearm Safety Act ([FSA] passed by Maryland in 2013) banned even law-abiding citizens, except for retired law enforcement officers, from buying or possessing most kinds of semi-automatic rifles. Plaintiffs challenged several provisions of the FSA on the theory that its restrictions on “assault weapons” and larger-capacity detachable magazines (LCMs) entrenched upon core Second Amendment rights. Further, plaintiffs alleged that the exception for retired law enforcement officers violated the Equal Protection Clause. The district court upheld the constitutionality of the FSA under the intermediate scrutiny standard and denied the plaintiffs’ Equal Protection claims.

Holding: On appeal, the Fourth Circuit held that Maryland’s FSA implicated “the core protection of the Second Amendment” as articulated in District of Columbia v. Heller, 554 U.S. 570 (2010). Because the Fourth Circuit found that the FSA placed a substantial burden on a core constitutional right, it vacated the lower court opinion and announced strict scrutiny as the applicable standard for review of the plaintiffs’ Second Amendment Claims. The Fourth Circuit affirmed the denial of the plaintiffs’ Equal Protection challenge, as well as the lower court’s finding that the FSA was not unconstitutionally vague.

Notable Points:

Strict scrutiny is the proper standard for challenging firearm restrictions under the Second Amendment: The lower court erred in applying intermediate scrutiny to the challenged firearm restriction. Strict scrutiny is the proper standard because the FSA ban on semi-automatic rifles and larger-capacity magazines restricts the availability of a class of arms used for “self-defense in the home.” That restriction implicates the “core” of the Second Amendment. Because the challenged provisions of the FSA substantially, rather than incidentally, burden that core right, strict scrutiny, rather than intermediate scrutiny, is the proper standard.

The FSA’s exception for retired law enforcement officers did not violate the Equal Protection Clause: Because retired police officers were not similarly situated with the public at large under the FSA, the grant of certain rights to those retired officers did not violate the Equal Protection Clause. Specifically, the court found that retired police officers (1) possess unique training and experience related to firearms and (2) are granted a “special degree of trust” that instills them with “an unusual ethos of public service.” These two factors make them not similarly situated with the public at large for Equal Protection purposes, and justify the exceptions and special provisions available to them under the FSA.

Found in DMHL Volume 35, Issue 1

Sex Offenders; Post-Sentence Civil Commitment

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

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

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

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

Notable Points:

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

Found in DMHL Volume 35, Issue 2