Indiana Supreme Court Rules Defendants Cannot Be Required to Show Mental Retardation by Clear and Convincing Evidence in Death Penalty Cases; Evidence Can Include Tests/Manifestations After Age 21

Pruitt v. State, 834 N.E.2d 90 (Ind. 2005)

In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court ruled that a death penalty cannot be assigned to criminal defendants who are mentally retarded, but did not define mental retardation nor establish the procedures to be used in making this determination. The Indiana Supreme Court answered a number of related questions in applying Indiana's definition of a "mentally retarded individual" as being "an individual who, before becoming twenty-two years of age, manifests: (1) significantly subaverage intellectual functioning; and (2) substantial impairment of adaptive behavior."...

Found in DMHL Volume 25 Issue 2

Ohio Supreme Court Upholds Statute Permitting Grandparents to Seek Visitation Rights But Requires That Special Weight Be Given to Parents' Objections

Harrold v. Collier, 836 N.E.2d 1165 (Ohio 2005)

Historically, grandparents had no legal right to continue their relationship with their grandchildren when their own child (the grandchild's parent) died, divorced, or had his or her parental rights terminated.  This position was based on the view that custodial parents should generally be able to decide who can associate with their child.  During the 1980s and '90s, what are generally referred to as "grandparent visitation laws" were widely enacted to facilitate grandparents' ability to maintain contact with their grandchildren after a rift developed between the grandparents and a grandchild's custodial parent...

Found in DMHL Volume 25 Issue 1

NY’s High Court Rules Testimony by Prosecutor's Forensic Psychiatrist Recounting 3rd-Party Statements Where 3rd Parties Aren’t Available for Cross-Exam Violates Fed Constitution and Isn’t Admissible

People v. Goldstein, 2005 N.Y. Slip Op. 09654, 2005 WL 3477726 (N.Y. Dec. 20, 2005).

In recent years forensic evaluators have been encouraged to expand the information on which they rely beyond their examination of the defendant and the clinical record to include third-party data from sources such as family and acquaintances of the defendant.  A ruling by the high court of New York has placed limits in that state on testimony based on this practice and raised issues that may reverberate in other states...

Found in DMHL Volume 25 Issue 1

Connecticut Supreme Court Mandates That Juries Generally Be Informed of Risks Inherent in Eyewitness Identification Procedures When Eyewitness Has Not Been Warned That Perpetrator May Not Be Present

State v. Ledbetter, 881 A.2d 290 (Conn. 2005)

A unanimous Connecticut Supreme Court has crafted a jury instruction that generally must be given in trials when an eyewitness identification is entered into evidence.  The court noted that psychological studies document that a witness is more likely to misidentify an innocent individual as the perpetrator of a crime during an identification procedure (e.g., during a photo array or lineup) where the witness is not warned that the perpetrator might not be present.  The court added the research also shows that warning the witness that the perpetrator might not be present does not significantly decrease the percentage of correct identifications...

Found in DMHL Volume 25 Issue 1

High Court of New York Affirms Dismissal of Complaint Focused on Sexual Relationship Occurring During Pastoral Counseling; Ruling Not Disturbed

Wende C. v. United Methodist Church, 827 N.E.2d 265 (N.Y. 2005), cert. denied, 126 S. Ct. 346 (2005)

A married couple obtained individual counseling services from their church pastor. In the course of this counseling, the wife and the pastor developed a sexual relationship that lasted several months.  After the husband discovered the affair, the couple filed a suit against the pastor and the church for sexual battery (for unwanted touching) and for clergy malpractice stemming from a breach of fiduciary duties.  Because the pastor was not licensed as a professional counselor, a complaint could not be filed with a licensing body.  The New York Court of Appeals ruled that the lawsuit could not be pursued...

Found in DMHL Volume 25 Issue 1

Mentally Incompetent Defendant Has No Due Process Right Against Being Tried, Committed and Treated as Sexually Violent Predator

Moore v. Superior Court of Los Angeles County, California, 237 P.3d 530 (2010)

Overturning the decision of the California Court of Appeals, the California Supreme Court in a split decision has ruled that a mentally incompetent defendant has no due process right to avoid being tried and committed as a sexually violent predator. The court held that due process does not require mental competence on the part of someone undergoing a commitment or recommitment trial, which is a civil proceeding under the California Sexually Violent Predators Act. The strong governmental interest in protecting the public through the proper confinement and treatment of SVP's would be substantially thwarted by recognizing an SVP's right to delay or avoid confinement and treatment for a sexually violent mental disorder because his problems render him incompetent to stand trial. Recognition of such a due process right could prevent an SVP determination from being made at all. Such a scenario could often recur and would undermine the purpose and operation of the Act. The court found that public safety could suffer as a result.

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

SVP Petition Cannot Be Filed in New York When Respondent Not in Custody for Sex Offense

In the Matter of the State of New York v. Rashid, 16 N.Y.3d 1, 2010 NY LEXIS 3339 (November 23, 2010)

The New York Court of Appeals has upheld the decision of the appellate court dismissing the Attorney General’s petition to commit this respondent under its Sex Offender Management and Treatment Act. Although the respondent had pled guilty to sodomy in 1991, he was incarcerated for robbery at the time the interagency notice was sent by the Department of Corrections that Rashid may be a sex offender. At the time the respondent received notice of the petition, he was in jail for petit larceny. Because the respondent was not subject to state custody or supervision, he was not a detained sex offender at the time the petition was filed for purposes of the Act. The Court also held that the proceedings commenced at the time the Attorney General filed the petition, not at the time notice was provided by the Department of Corrections.

Found in DMHL Volume 30 Issue 3

Class Action Filed Alleging Texas Violates ADA in Failing to Provide Communitybased Services

Steward v. Perry, No. 5:10-cv-01025 (W.D. Tex.)

Six named individuals residing in nursing facilities in Texas, the Arc of Texas, and the Coalition of Texans with Disabilities filed suit in December 2010 against the Governor, the Executive Commissioner of Health and Human Services and the Commissioner of the Department of Aging and Disability Services alleging that Texas is violating the Americans with Disabilities Act, § 504 of the Rehabilitation Act, Title XIX of the Social Security Act and the Nursing Home Reform Amendments.

The plaintiffs are alleging that each of the named individuals with a combination of intellectual disabilities and other conditions, such as cerebral palsy, epilepsy, or head injury, all qualify for community-based services and supports and are seeking class action certification for the 4500 others in Texas nursing facilities and the thousands more at risk of institutionalization. They are alleging that 45,756 individuals are on Texas’ waiting list for Home and Community-Based Services Waiver with Texas ranking 49th out of the 50 states in providing community-based care. They further allege that Texas has failed to provide PASARR Level II screenings to the plaintiffs or to provide “specialized services” required by Medicaid. Ironically, the plaintiffs argue that individuals residing in Texas’ 13 state-operated supported living centers under DOJ consent decree receive active treatment and better services than they do, noting that their scope of specialized services is limited to physical, occupational and speech therapy. The plaintiffs Arc and Coalition of Texans with Disabilities are suing on their own behalf and on behalf of their members.

The defendants filed a Motion to Dismiss on March 8, 2011 arguing, among other things, that the plaintiffs lack standing to bring this action, that a portion of their complaint is time barred and that the Acts they allege the defendants are violating convey no private right of action upon the plaintiffs.

Found in DMHL Volume 30 Issue 3

Ex Parte Communications of Judge to Determine Whether Defendant Is Competent to Stand Trial or Malingering Requires New Trial

State of Vermont v. Gokey, 2010 Vt. 89, 2010 LEXIS 90 (October 8, 2010)

The Vermont Supreme Court ordered a new trial for a defendant charged with lewd or lascivious conduct with a child and a habitual offender after the presiding judge talked ex parte with a pharmacist and two deputies who transported the defendant to court to determine whether he was malingering.

On the second day of trial, the defendant appeared in court but complained of being ill and did not look well. At the defense attorney’s request, the case was continued for the day and he was transported to the emergency room where he was administered anti-seizure medications for an existing seizure disorder. The following day the defendant appeared in court but was still groggy and sleeping at counsel table. His attorney asked for a continuance on the grounds that the defendant was unable to assist her with his defense and was incompetent to proceed. The court granted a 30 minute continuance while the defense attorney attempted to obtain medical information from defendant’s physicians and the emergency room treatment providers. The judge in the meantime called a pharmacist at Walgreens to determine what the side-effects of the medication might be and then, without informing the defendant’s counsel or the prosecutor, questioned the transporting deputies in her chambers to determine defendant’s behavior in their presence. Determining on that basis that the defendant was malingering, the judge proceeded with the trial with the jury returning a guilty verdict that afternoon. The Supreme Court ordered a new trial stating that the judge had stepped out of her role as an independent arbiter and become a witness in the case which severely prejudiced the case and impaired any appearance of neutrality.

Found in DMHL Volume 30 Issue 4

Arkansas Denies Insanity Acquittee Appeal

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

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

Found in DMHL Volume 30 Issue 4

Tennessee Supreme Court Rules Experts Can Testify to Reflect Capital Defendant’s Actual Cognitive Abilities in Addition to Consideration of IQ Scores

Coleman v. State, 2011 Tenn. LEXIS 319 (April 11, 2011)

The Tennessee Supreme Court has held that under Tennessee law a defendant can present expert testimony to show that his test scores do not accurately reflect his actual cognitive abilities for purposes of raising a defense of intellectual disability to a sentence of death. The defendant in this case had been convicted of first degree murder and sentenced to death over 30 years ago. Following the decision in Atkins v. Virginia, 536 U.S. 304 (2001), prohibiting imposition of the death penalty for persons with mental retardation, the inmate filed a habeas petition alleging that he suffered from an intellectual disability. The evidence presented at his habeas hearing indicated, among other things, that his mother had an intellectual disability and history of mental illness, that his home was violent, chaotic and overcrowded, that his mother drank, engaged in prostitution and abused him, and that his father had spent most of his life in prison and had little-to-no involvement in his life. The petitioner had failed 1st, 2nd, 3rd and 7th grade and was only “socially promoted” to higher grade levels, and that he was teased by his fellow classmates. He was lonely and stigmatized as a child and intellectually and socially behind his peers. He was viewed as “dull” by police officers with whom he had many encounters as a juvenile.

Even though eight other state statutes limit the assessment of intellectual disability to scores on IQ tests, the Tennessee Supreme Court found that Tennessee law does not limit the evidence to test scores. The Tennessee statute requires a “functional” intelligence quotient of 70 or below, not just a test score of 70 or below. The Court therefore concluded that its General Assembly wanted courts to make fact-intensive and complex decisions with assistance from experts in the field because “functional” IQ cannot limited to raw IQ scores. Trial courts may therefore receive and consider any relevant and admissible evidence as to whether the defendant’s IQ is 70 or below. It noted that under the Flynn effect recognized by mental health experts, IQ test scores tend to increase over time. Clinical judgment is therefore important in diagnosing and assessing intellectual disability in borderline cases, especially since the standard of error measurement is generally 3-5 points. The Court therefore remanded the case to the trial court to consider expert testimony in determining the petitioner’s functional IQ.

Found in DMHL Volume 30 Issue 5

California Supreme Court Finds No Denial of Due Process in Requiring Convicted Defendant to Prove Incompetence to Stand Trial

People v. Ary, 120 Cal. Rptr.3d 431, 246 P.3d 322 (2011)

The California Supreme Court has determined that a defendant is not denied due process of law when he is required to carry the burden of proving that he was incompetent to stand trial at a retrospective hearing to determine his competency. The defendant in this case was charged with murder and other related felonies. At trial, the defendant moved to suppress his confession and presented psychiatric evidence that he was mildly mentally retarded. The trial court found that he had voluntarily waived his Miranda rights, but found that the confession was coerced and suppressed it. The jury convicted the defendant of murder but was unable to decide upon whether to recommend the death penalty. The court then declared a mistrial on the sentencing issue and sentenced him to life in prison.

On appeal, the Intermediate Court of Appeals determined that the trial judge had erred in failing to evaluate whether the defendant was competent to stand trial and remanded the case for such a determination first as to whether sufficient evidence existed to determine whether the defendant had been competent to stand trial and, if so, to conduct a competency hearing. The trial court found upon remand that evidence of the defendant’s mental condition was still available and it was feasible to retrospectively determine his competency at the time of the original trial, and proceeded to conduct the competency hearing. Over the defendant’s objection that the prosecution should prove beyond a reasonable doubt that he was competent to stand trial, the judge placed the burden on the defendant to prove by a preponderance of the evidence that he was mentally incompetent when tried. After a retrospective hearing, the trial court found the defendant competent.

On appeal, the Intermediate Court of Appeals concluded that, in contrast to the burden of proof allocation at competency hearings held before or during trial, at a retrospective competency hearing federal due process principles require the prosecution to bear the burden of proving by a preponderance of the evidence that the defendant is competent to stand trial. The Attorney General’s Office appealed to the California Supreme Court which reversed finding that the trial court appropriately placed the burden on the defendant. The California Supreme Court noted that a defendant is presumed competent and that the United States Supreme Court had previously upheld California’s imposition of the burden at the pretrial stage on the defendant to prove incompetence by a preponderance of the evidence. Medina v. California, 505 U.S. 437 (1992). It was therefore appropriate in retrospective hearings to also place the burden on the defendant. In order to impose such a burden post-trial and for the court to consider such an issue, however, the Court held that there must be sufficient evidence available to reliably determine defendant’s mental competence after the fact.

Found in DMHL Volume 30 Issue 6

Prior Determination That Defendant Not a Mentally Disordered Sex Offender Not Bar to Later Civil Commitment as Sex Offender

In re Interest of D.H., 281 Neb. 554, 797 N.W.2d 263 (Neb. 2011)

The Nebraska Supreme Court held on May 20, 2011 that a 1991 determination at the time of a defendant’s conviction and sentence that he was not a “mentally disordered sex offender” under Nebraska’s sex offender law then in effect was not res judicata barring commitment proceedings in 2010 under Nebraska’s current Sex Offender Commitment Act. In so deciding, the Court followed a similar California case that found that a 1982 determination that the defendant was not a sex offender did not preclude a civil commitment proceeding 10 years later because the issue was the mental health of the defendant as he approached release, not as it existed at the time of his conviction. People v. Carmony, 99 Cal.App. 4th 317, 120 Cal.Rptr.2d 896 ( 2002). The Nebraska Court held that the Act provides for assessment of the defendant’s mental health, risk of recidivism and threat to public safety as he approaches release. Based upon the changeable nature of mental health and dangerous determinations, the assessment is not res judicata because the issue presented is not the same as that litigated at the time of his 1991 sentencing.

Found in DMHL Volume 30 Issue 6

Arkansas Court Rules against US Department of Justice in CRIPA/ADA/IDEA Lawsuit Brought Against State of Arkansas

United States v. State of Arkansas, et al., 2011 U.S.Dist. LEXIS 61347 (June 8, 2011)

Following a six-week trial from September 8 through October 15, 2010, the United States District Court for the Eastern District of Arkansas has found that the United States Department of Justice (“DOJ”) did not meets its burden of proving as alleged under the Civil Rights of Institutionalized Persons Act (“CRIPA”) that the State of Arkansas and Arkansas state officials were failing to provide reasonably safe conditions and habilitation and training services necessary to protect the residents’ liberty interests, at Conway Human Development Center, a training center for 509 persons with developmental disabilities. The Court also held that DOJ failed to prove that Conway Development Center violated the integration mandate of the Americans with Disabilities Act as alleged by failing to provide services in the most integrated, least restrictive setting appropriate to the needs of qualified individuals with disabilities. The Court did find that Conway Development Center failed to comply with all the requirements of the IDEA, but because Congress provided for a state educational agency to enforce compliance with that Act and because evidence established that the state agency was enforcing the Act and the Center had submitted a corrective action plan, no injunction was appropriate.

The Court began its opinion noting how unusual it was for the US Department of Justice’s Civil Rights Division to be enforcing the rights of individuals with disabilities when most of the residents of Conway Development Center had parents or guardians to enforce those rights. Most of the parents or residents were fully satisfied with the services provided and opposed the DOJ claims. Six members of the Conway Human Development Center Parents’ Association, an association comprised of parents and guardians concerned about the Center, its residents and staff, testified at trial regarding the services. The Court noted that two of the witnesses were nurses themselves. Many of the same parents were also members of Families and Friends of Care Facility Residents, a statewide umbrella organization for all of the parent and guardian groups of the human development centers.

Conditions of Care

DOJ alleged that the policies and practices at Conway Development Center departed from generally accepted professional standards and residents were subjected to abuse and neglect, unconstitutional use of restraints, and unprofessional levels of psychological and medical services. DOJ also alleged that the Center’s procedures used to prevent choking, aspiration pneumonia, fractures, decubitis ulcers and other injuries were subpar, and that residents died prematurely. The Court reviewed in detail the testimony of the experts, Center staff and parents on each of the allegations and concluded that the DOJ experts were holding Center staff to a “best practices” standard as opposed to the standard in Youngberg v. Romeo, 57 U.S. 307 (1982) that requires proof of a departure from generally accepted professional standards. The Court specifically noted that the Center was certified by the Centers for Medicare and Medicaid Services (“CMS”) and complied with all CMS standards. DOJ’s experts had testified that professional standards in each of the disciplines were constantly changing and one DOJ expert testified that the CMS standards were outdated. The Court therefore found that the DOJ experts had presented no standards with which the Conway staff could be expected to comply, nor did the experts present any benchmarks to compare the Center’s alleged deviations involving, for example, the numbers of abuse or neglect complaints, choking incidents or aspiration pneumonia with other comparable facilities. In fact, the Court found that one of DOJ’s experts “had no formal education in any field relevant to her testimony,” Opinion at 28, and that another expert “presented no evidence that convinced the Court that she was qualified to testify as an expert in any area other than occupational therapy.” Opinion at 83. Applying the Youngberg standards to this case, the Court held that “[e]ven if the professional judgment of some or all of the plaintiff’s experts were better than the professional judgment of some or all of the professionals at Conway Human Development Center, the evidence does not prove that decisions of the latter represent such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that professional judgment was not actually exercised.” Opinion at 133-134.

Americans with Disabilities Act

DOJ also alleged that Conway Developmental Center was violating the integration mandate of the Americans with Disabilities Act by failing to provide services, programs and activities in the most integrated, least restrictive setting appropriate to the needs of qualified individuals with disabilities as upheld in Olmstead v. Zimring, 527 U.S. 581 (1999). DOJ also alleged that the Center’s staff failed to provide parents and guardians with adequate information about other services that DOJ considered more integrated, and that staff did not exercise professional judgment in determining the most integrated setting appropriate for residents.

The evidence established that Arkansas participates in and serves 4083 individuals in the Home and Community Based Waiver program, or four times the number of individuals served in its training centers. In 2007, there were approximately 700 persons on its waiver waiting list, and as of April 2010, that number had risen to 1400. By the time of trial, the waiting list included 1600-1700 people. The evidence revealed that if a parent or guardian of a resident in a developmental center sought a waiver placement, that resident went to the top of the waiting list. The superintendent of Conway Development Center testified that many or all of the Center’s residents could be served under the waiver with the proper supports and if resources were sufficient. The evidence also demonstrated though that from June 2007 to July 2009, only 18 residents were discharged.

After considering all of the evidence, the Court held that the terms “restrictive” and ”integrated” in the ADA refer to the level of interaction disabled individuals have with nondisabled persons. It then found that the Center provided a significant number of opportunities for individuals to interact with people in the community, sponsoring 305 off-campus activities, including some work opportunities, attendance at movies, eating out, bowling, shopping, fishing, going to parks, going to the state fair, going to the library, attending athletic events, attending church, and participating in the Special Olympics. The Court also heard evidence that nondisabled volunteers visited and worked with residents in about 592 on-campus activities held the previous year, in addition to unrestricted visits permitted from families and friends. The Court also found that individuals in community settings, including those residing in individual apartments had no more contact with nondisabled individuals than did those residing at the Conway Developmental Center. The Court stated, “just as it is an error to assume that because Conway Human Development Center is an institution, its residents have no interaction with nondisabled person, so too is it an error to assume that a community placement ipso facto precludes the possibility of isolation or automatically provides more interaction with nondisabled persons than an institutional setting.” Opinion at 109. The Court noted that no evidence was presented that the Center refused to discharge a resident when requested by the parent or guardian.

Before each annual interdisciplinary team meeting, the Center sent the parent or guardian a brochure explaining services available under the waiver program with a list with contact information of waiver providers in the state and in the county where the resident’s family resided. The Center also sent the parent or guardian a choice of services form on which the parent or guardian indicated whether they wanted to receive services through the waiver program or at the Center. In addition, the Center invited providers to attend meetings of the Friends and Families of Care Facilities and whenever there was a vacancy in a home in a resident’s community, the Center notified the family. The Court thus found that the Center adequately informed parents and guardians of the nature and scope of the home and community based waiver program and provided them with a comprehensive list of waiver providers.

The Court also found that the interdisciplinary team discussed whether the Center was the least restrictive most integrated placement at each annual team meeting and made sure the parent or guardian had received the brochure and list of waiver providers. The Court therefore found staff members at the Center made professional judgments in determining the least restrictive placement appropriate for each resident, even though staff and families agreed that the professionals often did not recommend placement with a waiver provider unless requested to do so by the parents or guardians.

Impact on Virginia

DOJ notified Virginia on February 10, 2011 of the results of its investigation finding that Virginia and Central Virginia Training Center are also violating the integration mandate in Americans with Disabilities Act, making most of the same allegations it made in its losing case against Arkansas: http://www.justice.gov/crt/about/spl/documents/cvtc_findlet_02-10-2011.pdf. With DOJ having lost the Arkansas case, Virginia may now have greater leverage in its negotiations with DOJ that it seemed to have lost when the State of Georgia agreed in October 2010 when faced with a similar federal court complaint to close all of its facilities for individuals with intellectual disabilities rather than go to trial.

DOJ had also previously launched a CRIPA investigation in 2008 at Central Virginia Training Center alleging it had probable cause to believe that CVTC was not protecting residents there from harm and was providing professionally inadequate psychological and psychiatric services. It expanded its investigation in 2009 to investigate CVTC’s nutrition services and occupational therapy and physical therapy programs, alleging many of the same violations at issue in the Arkansas lawsuit. After three on-site visits in 2008 and 2009, DOJ has yet to issue a “findings” letter detailing the results of that investigation.

Most DOJ investigations result in settlement agreements with the state that are filed with the court either before the original complaint is filed or before going to trial. Settlements are reached because of the extraordinary expense involved in month-long trials involving prior document-intensive discovery, the hiring of experts in every discipline under attack and the prolonged diversion of staff time and resources away from the delivery of care to individuals. Whether Virginia will be able to significantly increase its waiver program and switch from an institutionally-based system of care to a community-based system under a reasonable settlement agreement and or will decide to litigate remains to be seen as DOJ and Virginia continue their negotiations.

Found in DMHL Volume 30 Issue 6

Washington Supreme Court Holds No Constitutional Mandate to Determine Competency to Represent Self

In re Rhome, 2011 Wash. LEXIS 743 (September 15, 2011)

The Washington Supreme Court has held that a trial court is not constitutionally required to independently determine whether a defendant was sufficiently competent to waive counsel when he had previously been found competent to stand trial following a pre-trial hearing. The court held that a defendant’s mental health status is but one factor a trial court may consider in determining whether a defendant has knowingly and intelligently waived his right to counsel and to represent himself.

In this case, Rhome was charged with first degree murder with a deadly weapon of a 17- year old girl. Another juvenile confessed to stabbing the girl but identified the defendant as the “mastermind” behind the killing. Since early childhood, the defendant had been treated for psychiatric disturbances, including several in-patient psychiatric hospitalizations. He had received a myriad of diagnoses including, psychotic disorder, delusional disorder, oppositional defiant disorder, mild mental retardation, obsessive/compulsive traits, and pervasive developmental disorder (Aspergers disorder). The trial court held a competency hearing finding that the defendant had not proved he was incompetent to stand trial. Throughout the pre-trial proceedings, the defendant asserted his right to represent himself. The court first denied his request to proceed pro se indicating that his ability to do so was equivocal. After his renewed request, the court advised him of the risks and engaged in coloquy to determine if he understood the significance of this undertaking. His mental health issues were not specifically addressed during the colloquy. The court granted his request and appointed standby counsel to assist him. The jury convicted the defendant and he was sentence to 30 years in prison. A mental health expert for the defense who later examined the defendant’s performance in representing himself testified that his mental illness impacted his ability to defend himself in court. He testified that the defendant engaged in perseverative and aggressive questioning that was incoherent or intimidating, and he was unable to self-regulate his emotions and behavior.

In June 2008, just following the state courts’ denial of the defendant’s direct appeals, the United States Supreme Court decided Indiana v. Edwards, 554 U.S. 164 (2008). In Edwards, the Supreme Court held that a trial court could insist that a defendant proceed with counsel even though the court had found the defendant was competent to stand trial. The Washington Court stated that the Edwards decision assumes that a defendant will “assist” in his defense, not “conduct” his defense when the defendant has been found competent to stand trial. Competency to stand trial does not equate with the right to represent oneself and the Supreme Court declined to set a standard for the state to follow. In determining whether a defendant has the right to waive counsel, the court considers his background, experience and conduct, which may include his history of mental illness. In denying his petition for post-conviction relief, the Washington Supreme Court held that a defendant’s mental health status is but one factor a trial court must consider in determining whether a defendant has knowingly and intelligently waived his right to counsel. An independent determination of competency for self-representation is not a constitutional mandate.

Found in DMHL Volume 31 Issue 1

Maine Finds Right to Competency in Post-Conviction Proceedings

Haraden v. State, 32 A.3d 448 (Maine 2011)

The Maine Supreme Judicial Court ruled on November 17, 2011 that a convicted defendant has the statutory right to be competent during post-conviction proceedings. Although a defendant has no constitutional right of access to post-conviction proceedings to overturn his or her conviction, Maine has statutorily created a process whereby inmates may challenge their convictions, including setting time limits within which relief may be sought, the number of petitions that may be filed, the nature and scope of claims that may be pursued, and the type of relief that may be granted.15 M.R.S § 2130 (2010). As part of the post-conviction process, inmates are specifically given a statutory right to counsel. The Court therefore found that implied within that right to counsel is the right to the effective assistance of counsel. It then reasoned that counsel cannot effectively assist his client if his client cannot meaningfully communicate with him.

In this case, the inmate was convicted of murder by a jury and sentenced to 52 years in prison. After his trial, conviction and appeal, the inmate raised factual allegations that he was denied the effective assistance of counsel. On the inmate’s motion, the court ordered a mental evaluation by the State Forensic Service. The evaluation indicated that although the inmate was not psychotic, he was unable to assist his attorney in the post-conviction process. Based upon the evaluation, the trial court found him incompetent to proceed. The court then proceeded to decide the matter upon the legal issues presented, but continued those claims based upon factual contentions until such time as the inmate became competent. During that time period, the inmate was ordered to remain in the Department of Corrections and not be transferred to the Department of Health and Human Services for restoration to competency.

In upholding the right found by the trial court, the Supreme Court was faced with a dilemma of how to proceed when an inmate may have a legitimate claim for release but cannot pursue it due to his incompetency. It therefore had to fashion a process to handle the prisoner’s claims. The Court determined that when an inmate’s competency is in question, the court must order an evaluation by the State Forensic Service. Because a defendant was presumed to be competent during trial, the burden rests on the inmate to prove his incompetency by a preponderance of the evidence. If he does so, the court must still proceed to adjudicate the inmate’s claims and defense counsel must represent the inmate to the best of his or her ability. Under Maine post-conviction law, an inmate must 1) file a post-conviction claim within one year and 2) may only seek post-conviction review once, raising all claims he may have in that petition or else they are considered waived. If the inmate is found to be incompetent, however, the Court then provided that an inmate may file an affidavit at a later date alleging that he had previously been found incompetent and has regained his competence as a result of the passage of time, medical intervention or some other substantial change. If the court then determines the inmate has regained competency, it must review the petition to determine whether, if the newly asserted evidence or grounds were true, the outcome of a post-conviction judgment would be different, and which, if any, of the defendant’s claims may be pursued despite the intervening delay. The Supreme Court agreed with the trial court that the inmate must remain in the custody of the Department of Corrections during the period of incompetency and not be transferred to the Department of Health and Human Services for restoration services. Presumably, the inmate could not then be ordered treated over his objection to restore him to competency.

Found in DMHL Volume 31 Issue 2

California Supreme Court Rules Court Has Discretion Whether to Permit Competent Defendant to Represent Self

People v. Johnson, 2012 Cal. LEXIS 600 (January 30, 2012)

Following the United States Supreme Court decision in Indiana v. Edwards, 554 U.S. 64 (2008), the California Supreme Court has ruled that trial courts may deny the right to represent themselves to defendants who fall into a “gray area” between those who are competent to stand trial and those who are competent to conduct their own trial. In so ruling, the Court found that California law has never afforded defendants the right to represent themselves, but only permits self-representation in noncapital cases in the judge’s discretion. In capital cases, the law specifically requires defendants to be represented by counsel at all stages of the proceedings. The legislative history states that pro se litigants cause unnecessary delays at trial and generally disrupt the proceedings. The history further provides that the burden on the justice system is not outweighed by any benefits to defendants who generally gain nothing by representing themselves.

Prior to Edwards, and because California courts are required to follow federal constitutional law, they afforded criminal defendants the right to represent themselves in spite of the state law based upon the United States Supreme Court decision in Faretta v. California, 422 U.S. 806 (1975), holding that defendants have a Sixth Amendment Constitutional right to selfrepresentation. California courts further presumed that a defendant’s right to self-representation was absolute based upon Godinez v. Moran, 509 U.S. 389 (1993). That case held that a defendant found competent to stand trial was allowed to waive counsel and plead guilty, rejecting the argument that federal law required a higher standard of competence for waiving counsel or pleading guilty than to stand trial. In 2008, the United States Supreme Court held in Edwards that a trial court could insist that a defendant proceed with counsel even though the court had found him competent to stand trial.

In this case, Johnson was charged with two separate assaults, one an early-morning brutal sexual assault on a bar tender and later the same day, hitting the patron of a sandwich shop with a metal chair rendering him unconscious. A single judge presided over all the proceedings. The defendant was originally represented by counsel but early on requested to represent himself, which request was granted. During pre-trial proceedings, the defendant conducted himself in an unusual manner and the nature and content of letters he filed with the court and others cast doubt on his competence. The judge thereupon appointed counsel to represent the defendant in competency proceedings and ultimately appointed three mental health experts to evaluate him. The defendant refused to be interviewed by any of the experts who then testified that they were unable to state with certainty whether he was competent or not. His behavior in court and jail, and his bizarre filings led one expert to proffer a diagnosis of delusional disorder with conspiracy paranoia and to strongly suspect incompetency. Based upon all of the evidence, the jury found the defendant competent to stand trial. The trial judge, however, found the defendant incompetent to represent himself and appointed counsel for him.

The California Supreme Court held that competency to stand trial was a matter to be decided by a jury, but competency to represent oneself was a decision within the sound discretion of the trial judge. The Court stated that although courts should be cautious about making competency decisions without the benefit of expert evidence, the judge’s own observations of the defendant’s behavior supported a common sense finding of incompetence. Here the court was able to observe the defendant’s behavior in representing himself over several months; the defendant had already refused mental health evaluations on competency to stand trial; and the judge placed on the record examples of his disorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety and other common symptoms of severe mental illness. The Court found the trial court had the discretion to determine the defendant lacked the competency to represent himself and the judge had not abused his discretion in this case.

Although urged to do so by the parties and amicus curiae, the California Supreme Court, like the United States Supreme Court in Edwards, declined to set out a standard for determining competency to represent oneself, but decided that trial courts should simply determine whether the defendant suffers from a severe mental illness to the point where he or she cannot carry out the basic tasks needed to present the defense without the help of counsel. The decision in this case is similar to the Washington Supreme Court decision in In Re Rhome, 260 P.3d 874 (Wash. 2011) and reported in the last issue of Developments in Mental Health Law.

Found in DMHL Volume 31 Issue 2

Privilege against Self-Incrimination Waived in Second Trial When Defendant Presented Mental Capacity Defense at First Trial

Commonwealth v. Rosen, 2012 Pa. LEXIS 965 (April 25, 2012)

The Pennsylvania Supreme Court has upheld the decision of the Superior Court that a defendant who voluntarily waived his 5th Amendment right against self-incrimination by presenting a mental capacity defense at his first trial opened the door to the Commonwealth’s introduction of inculpatory statements at retrial, even though the defendant did not utilize the defense at his retrial.

The defendant was charged with first degree murder in the stabbing death of his wife and sentenced to life in prison. The defendant’s wife had been stabbed to death in the early morning hours of June 30, 2001. The defendant initially claimed that two intruders in ski masks and parkas committed the murder. He later gave multiple explanations for the murder and ultimately admitted killing his wife, stating they were arguing and each had a knife. He said his wife swung the knife at him, he stabbed her in the chest, and she then plunged the knife into her own neck. At his jury trial in 2002, the defendant relied on the defense of diminished capacity. His expert psychiatrist testified that the defendant suffered from manic-depressive illness accompanied by psychotic features and paranoia. He testified that the defendant was psychotic and incapable of forming the intent to kill his wife. The Commonwealth’s expert testified that the defendant had no mental disorder that would impair his capacity to form intent to kill his wife, relying on the fact that the wife planned to divorce him, that he delayed an hour in calling police and that he initially fabricated events. The jury convicted the defendant of first degree murder and the trial court sentence him to life in prison. The Pennsylvania Superior Court upheld the conviction and the Pennsylvania Supreme Court declined review.

The defendant then filed a post-conviction petition for relief alleging ineffective assistance of counsel for failure to call character witnesses that would have established that his mental instability prompted his actions and that he neither planned nor intended to kill his wife. The trial court conducted a hearing and dismissed his petition. The Superior Court reviewed the petition on appeal, reversed and remanded the case for a new trial. At retrial, the Commonwealth sought to introduce evidence of his mental stability presented by its expert at the original trial. The trial court ruled that since the defendant was not presenting mental infirmity as a defense on retrial, the Commonwealth could not present its expert psychiatric testimony as substantive evidence in its case in chief, but if the defendant testified on his own behalf, the Commonwealth could use the admissions of guilt contained in its expert’s testimony as rebuttal evidence. The defendant waived his right to a jury trial and proceeded with a bench trial. The Court found him guilty and again sentenced him to life in prison.

The Superior Court affirmed the trial court. On appeal from the Superior Court, the Pennsylvania Supreme Court relied on the decision in Commonwealth v. Santiago, 662 A.2d 610 (Pa. 1995) in which the court held that the defendant’s waiver of the psychiatric-patient privilege carries over to his retrial and on Commonwealth v. Boyle, 447 A.2d 250 (Pa. 1982), holding that if a defendant waives his 5th amendment privilege against self-incrimination and testifies at his first trial, his testimony is admissible at retrial even if he does not take the stand in the second trial. The Pennsylvania Supreme Court held that the two cases taken together support the admission of psychiatric testimony at the second trial. Once the privilege is waived, it is always waived, and no distinction need be made between the defense expert and Commonwealth’s expert. Either side may therefore introduce substantive evidence admitted in the first trial in the second trial.

Found in DMHL Volume 31 Issue 4

D.C. Circuit Upholds Virginia/Kansas Medicaid IMD Disallowances

Virginia Department of Medical Assistance Services v. U.S. Department of Health and Human Services, et al., 2012 U.S.App. LEXIS 9293 (May 8, 2012)

The District of Columbia Court of Appeals has upheld the Centers for Medicare and Medicaid Services (“CMS”) disallowance of matching federal financial participation (“FFP”) funds for medical services the Virginia Department of Medical Assistance Services and the Kansas Health Policy Authority paid for individuals under age 21 in inpatient psychiatric facilities under the Institutions for Mental Disease (“IMD”) exclusion.

Since its enactment in 1965, the Medicaid program has excluded Medicaid payments for services provided to otherwise eligible individuals in IMDs who have not attained the age of 65 years or older. In 1972, Congress added an exception to the exclusion for “inpatient psychiatric hospital services for individuals under age 21.” 42 U.S.C. § 1396d(a)(16). In order to be eligible for FFP, the inpatient services provided to those under age 21 (1) must be provided in an institution, or distinct part thereof, which is a psychiatric hospital or other inpatient setting specified by the Secretary in regulation; 2) must involve active treatment provided by a team, consisting of a physician and other qualified mental health professionals, which has determined the inpatient services are necessary and can reasonably be expected to improve the patient’s condition to the extent that such services will no longer be necessary; and 3) are provided prior to the date the individual attains age 21 or, if the individual is receiving services immediately preceding attaining age 21, the date the individual no longer requires such services, or attains age 22. 42 U.S.C. § 1396d(h)(1)(A)-(C).

In 2001-2002, the Department of Health and Human Services Inspector General audited claims submitted for IMD residents under age 21 in several states, including Virginia and Kansas, and found that certain claims were not documented to be for “psychiatric hospital services provided in and by an IMD.” As a result, CMS disallowed $3,948,532 in claims for Virginia, and $3,883,143 for Kansas. Virginia’s disallowed claims included physician services, pharmacy, outpatient hospital clinical services, inpatient acute care and other services, such as laboratory, x-ray and community mental health and mental retardation services. Both Virginia and Kansas separately appealed the disallowances to HHS’ Departmental Appeals Board and then to the United States District Court for the District of Columbia, which both ruled in favor of CMS. Virginia’s and Kansas’ subsequent appeals to the District of Columbia Circuit were then consolidated. The law firm of Covington and Burling represented both states instead of their respective Attorneys’ General.

Virginia and Kansas argued, among other things, that the statute was ambiguous because it conflicted with the “comparability principle” that requires a state to provide medical assistance to individuals meeting eligibility requirements which are not less in amount, duration, or scope than the medical assistance made available to any other individuals. The States also argued that the interpretation was contrary to the legislative history that reflected Congress’ intent to improve and expand treatment for children with mental illness to permit them to rejoin and contribute to society. The States further argued that CMS’ narrow interpretation of the under-21 exception conflicts with the requirements for provisions of services under the early and periodic screening, diagnostic, and treatment (“EPSDT”) mandate and the requirement in the Home and Community Based waiver program that services provided in the community be “cost-neutral.” By failing to reimburse for expensive inpatient services, the argument went, the provision of necessary services in the community will necessarily be more expensive and thus fail the waiver test.

In upholding the CMS determination, the Appeals Court found that the legislation was clear on its face that the only exceptions to the IMD rule pertained to eligible recipients age 65 and older and individuals under age 21 receiving inpatient psychiatric hospital services. When a statute is clear on its face, no further interpretation or referral to legislation history is necessary. In rejecting all of the States’ arguments, the Court wrote that the under-21 exception to the IMD rule “may not reflect the most compassionate or even the most prudent approach to treating young patients in IMDs, but it marks the extent of assistance the Congress unambiguously authorized in 1972 when it first decided to fund such services.” The courts are therefore obligated to interpret the law as unambiguously written by Congress.

Found in DMHL Volume 31 Issue 4