Conditions of Pre-trial Confinement

Montano v. Orange Cnty., Tex., 842 F.3d 865 (5th Cir. 2016)

Fifth Circuit upholds jury verdict finding a county jail liable for unconstitutional conditions of pre-trial confinement that resulted in the death of an inmate who was mentally ill, but assumed to be under the influence of bath salts, because evidence showed a “de facto” policy of prolonged detention without proper medical supervision for inmates held in a jail infirmary observation room for detoxification.

Background: Robert Montano was arrested for public intoxication and was taken to the county jail after a judge signed an affidavit of probable cause. The arresting officer told the intake officer at the jail that she suspected Montano was under the influence of bath salts. Montano was placed in an observation cell because he was determined to be incoherent and unable to complete the booking process. The cell did not have a sink, toilet or toilet paper. Montano was previously treated for mental illness and was in the state mental-health database, but no database query was run during his intake despite a Texas requirement to do so. While in the cell, Montano was observed by a Licensed Vocational Nurse (LVN), the Texas equivalent of a Licensed Practical Nurse, but no contract physician visited the jail during the four-and-one-half days that Montano was in the cell. There was little or no attention given to Montano during his time in the cell, and no jail staff entered the cell until the morning of his death, more than four days later. There was evidence at trial that 1) the view of Montano’s cell was partially obscured by paper taped over the cell’s glass walls, 2) his vitals were taken no more than once, and 3) food was offered through a slot in the door. More than four days after being detained in the cell, an LVN reported that it appeared as though Montano was not breathing. At that time, the cell was littered with uneaten food and human waste. The LVN reported Montano’s condition to the jail control room, but waited 20 minutes for a corporal to respond before calling an ambulance or entering the cell. Montano was pronounced dead 34 minutes later and the cause of death was determined to be acute renal failure. An action was filed against the county for unconstitutional confinement and episodic acts or omissions. A jury found in favor of the plaintiffs and awarded $1.5 million for pain and $917,000 for wrongful death. The county appealed seeking a new trial contending that insufficient evidence had been presented to support the jury’s verdict and the damages awarded were excessive.

Holding: The Fifth Circuit denied the county’s motion and upheld the jury verdict finding that sufficient evidence was presented for a reasonable jury to conclude that the conditions of confinement caused Montano’s death, and that those conditions were the result of a “de facto” policy that denied detainees adequate care for an indefinite period of time. The Court further found that the damages awarded were not excessive.

Found in DMHL Volume 35, Issue 4

Sentencing of Persons with Mental Illness

United States v. Kluball, 843 F.3d 716 (7th Cir. 2016)

Seventh Circuit holds a defendant’s history of mental illness and ineffective treatment can be considered by the sentencing judge as a prediction of the potential for future misconduct without violating the defendant’s due process rights when reasonably based on factually accurate information.

Background: Alexander Klubal pled guilty and was sentenced to 10-years confinement for transporting a 17-year-old girl across state lines to engage in prostitution. A presentence report detailed Kluball’s history of mental illness, which included diagnoses of oppositional defiant disorder, attention deficit hyperactivity disorder, bipolar disorder, posttraumatic stress disorder, and depression. Klubal had received counseling, was hospitalized several times, and was treated with drugs including Adderall, Depakote, Eskalith, Fluoxetine, lithium, Prozac, Remeron, Ritalin, Seroquel, Strattera, Valium, Zoloft, Zydis, and Zyprexa. None of the treatments succeeded or lasted very long. During sentencing, the judge remarked that Kluball’s history of mental illness did not alleviate any responsibility for his crimes and suggested that mental health treatment would not have a lasting impact on his ability refrain from engaging in criminal conduct in the future. The judge then sentenced Kluball to the statutory maximum of 10 years. Kluball appealed the sentence, challenging the judge’s assertion that treatment would not have a lasting impact on his conduct as a violation of his due process rights.

Holding: The Seventh Circuit affirmed the 10-year sentence finding no violation of due process.

Notable Point:

Sentencing: The Seventh Circuit explained that during sentencing judges are routinely required to make predictions about a defendant’s future conduct and response to treatment. The court explained that such predictions do not violate due process when they are based on accurate information rather than unsupported speculation. The court was satisfied that Kluball’s history of mental illness and response to past treatment was factually accurate and sufficient to support the judge’s predictions about Kluball’s future conduct.

Found in DMHL Volume 35, Issue 4

Death Penalty and Intellectual Disability

Thompson v. State, 41 Fla. L. Weekly 510 (2016)

Florida Supreme Court reaffirms the rejection of a bright-line IQ cutoff of 70 in determining eligibility for the death penalty and holds it would be a manifest injustice not to give a defendant the benefit of the three-pronged test set forth in the Supreme Court’s decision in Hall.

Background: William Lee Thompson was convicted of first-degree murder and sentenced to death for a 1976 murder committed when Thompson was 24 years old. His sentence became final in 1993. Thompson filed numerous post-conviction motions claiming he is ineligible for the death penalty because of intellectual disability. Thompson’s IQ was measured by multiple experts with estimates ranging from 71–88. Thompson’s most recent post-Hall motion was denied by the circuit court because his IQ scores were generally over 80 and Hall only required courts to consider IQ scores 75 and below.

Holding: The Florida Supreme Court reversed the circuit court and remanded the case for a new evidentiary hearing regarding Thompson’s intellectual disability. In reaching its decision, the Florida Supreme Court rejected a bright-line IQ cutoff for intellectual disability and directed lower courts to apply all three prongs of the Hall test rather than relying on any one prong as dispositive.

Notable Point:

Retroactive Effect of Hall: In a short dissent two justices reject the idea that Hall should apply retroactively and would therefore have denied Thompson relief.

Found in DMHL Volume 35, Issue 4

Liability to Third Parties

Volk v. DeMeerleer, No. 91387-1, 2016 Wash. LEXIS 1374 (Dec. 22, 2016)

Supreme Court of Washington rules that victims of violence committed by a person in outpatient mental health treatment are allowed to pursue a claim against a therapist for “medical negligence,” even in the absence of any evidence that the patient made statements of any kind to the therapist that identified any intention to harm the plaintiffs, with the Court ruling that the “foreseeability” of the patient’s attack on the plaintiffs was a question of fact for the jury.

Background: In September 2001, Dr. Howard Ashby began treating Jan DeMeerleer, who had previously been diagnosed with bipolar and associated disorders. Ashby was aware of DeMeerleer’s treatment history including that he had been hospitalized in 1992 for suicidal ideation and sought outpatient treatment in 1997 for suicidal ideation, and that he was prescribed Depakote both times, but stopped taking the medication because of side effects. Ashby prescribed DeMeerleer Depakote and noted that it would be necessary to monitor compliance with the medication regimen. In 2003, DeMeerleer learned his wife was having an affair, and they divorced shortly thereafter. He suffered severe depression and again expressed suicidal and homicidal thoughts, but assured Ashby that he would not act on them. In 2005, DeMeerleer began a relationship with Schiering. The relationship progressed rapidly but fell apart when DeMeerleer struck one of Schiering’s sons in 2009. DeMeerleer also lost his job around this time. Ashby last met with DeMeerleer in April 2010, at which time he reported suicidal ideation but stated that he would not act on it.

DeMeerleer and Shiering attempted to mend their relationship, but Schiering ended it in July 2010. The next day DeMeerleer shot and killed Schiering and her son and attempted to kill her other son, who was able to escape. DeMeerleer then went home and took his own life. Schiering’s mother and surviving son filed medical malpractice and medical negligence claims against Ashby alleging a failure to follow the accepted standard of care in treating DeMeerleer. Ashby moved for summary judgment on the basis that the attack was not foreseeable and that Ashby did not owe the victims a duty of care. The trial court granted summary judgment in favor of Ashby, but the court of appeals reinstated the medical negligence claim.

Holding: The Washington Supreme Court reaffirmed the common law of Washington that the state does not recognize a cause of action for medical malpractice for third parties. Regarding the medical negligence claim, the court relied on its decision in Petersen v. State, 100 Wash. 2d 421, 671 P.2d 230 (1983) to find that a “special relationship” existed between Ashby and DeMeerleer such that Ashby owed a duty ofreasonable care to DeMeerleer’s foreseeable victims. The court explained that this duty extended to anyone who may foreseeably be endangered by a patient. The court recognized the difficulty of predicting behavior, but reasoned that requiring due care of mental health professionals counterbalanced that difficulty: as long as a mental health professional exercised due care (i.e., acted in line with standards of professional care) to reach an informed assessment of dangerousness, the professional would not be liable. The court found, however, that Ashby had not met such standards based on an affidavit from the plaintiff’s forensic psychiatrist, which, the Court noted, asserted that “Ashby's failure to schedule additional meetings, follow up with DeMeerleer, and monitor DeMeerleer's condition was a breach of professional standards and was a causal and substantial factor of the harms that befell Schiering and her sons.” The court held that whether Schiering and her sons were foreseeable victims was a material fact to be determined by a jury and, thus, summary judgment was inappropriate. The court remanded the case to consider the medical negligence claim.

Notable Point:

Dissent: A strongly worded dissent challenged the majority holding that mental health professionals can be held liable to third parties absent the ability to control the patient. The dissent argued that the holding significantly expands liability for mental health professionals and could chill the provision of mental health services.

Editor’s note: Virginia practitioners should be familiar with Virginia Code Section 54.1- 2400.1, entitled “Mental health service providers; duty to protect third parties; immunity,” which sets out in clear language the circumstances that trigger a mental health provider’s duty to take action to protect a third party from harm, and also describes the actions by the provider that “discharge” that duty. Compliance with this section gives immunity protection for providers from claims of various kinds.

Found in DMHL Volume 35, Issue 4

Involuntary Commitment of Sexually Violent Predators

Commonwealth v. Proffitt, 792 S.E.2d 3 (Va. 2016)

Supreme Court of Virginia holds that in an action to involuntarily commit a convicted rapist as a sexually violent predator testimony by victims of sexual assault committed by the defendant is relevant and corroborative of the evaluation of the defendant and is not unfairly prejudicial, and the trial court’s exclusion of such victim testimony is reversible error.

Background: The Commonwealth of Virginia initiated proceedings to involuntarily commit Brady Arnold Proffitt, Jr. as a sexually violent predator under the Sexually Violent Predator Act (SVPA). A clinical psychologist evaluated Proffitt and diagnosed him with sexual sadism disorder, antisocial personality disorder, and alcohol use disorder. She gave testimony during the trial that Proffitt was a sexually violent predator and at risk of reoffending if released without treatment. The Commonwealth then attempted to call two of Proffitt’s rape victims as witnesses. Proffitt objected to the testimony as unfairly prejudicial because his rape conviction was already in evidence. The circuit court agreed and excluded the testimony.

Holding: The Supreme Court of Virginia ruled that the victim testimony was not unfairly prejudicial because the testimony would directly support the elements of the case that Proffitt met the statutory definition of a sexually violent predator.

Notable Point:

Rules of Evidence: The court conceded that the rules of evidence prohibit the introduction of evidence to prove that a defendant acted in conformity with a character trait. However, in the present case the material issue was whether Proffitt had a mental abnormality or personality disorder making him likely to engage in sexually violent acts in the future. The court explained that this made it proper to introduce evidence of specific conduct to prove the existence of a character trait that was a required element of the case.

Found in DMHL Volume 35, Issue 4

Involuntary Commitment of Sexually Violent Predators

In re Care & Treatment of Ellison, 384 P.3d 15 (Kan. 2016)

Supreme Court of Kansas holds that an ad hoc analysis of all of the factors resulting in a pretrial delay must be used to determine whether a defendant’s due process right to a speedy trial has been violated during proceedings for his involuntary civil commitment as a sexually violent predator.

Background: Todd Ellison was a convicted sex offender, and the state of Kansas sought to have him involuntarily committed under the Kansas Sexually Violent Predator Act (KSVPA). The KSVPA allows for the civil commitment of persons alleged to be sexually violent predators after the completion of their criminal sentences. A person suspected of meeting the statutory definition of a sexually violent predator is entitled to a probable cause hearing and a jury trial during which the state must prove its case beyond a reasonable doubt. The state filed a probable cause petition against Ellison in June 2009, but his trial was delayed more than 4 years due to multiple continuances. Ellison filed a motion claiming the delay violated his due process right to a speedy trial. The district court ruled that the delay violated Ellison’s due process rights and ordered his release. The court of appeals reversed and the state supreme court granted Ellison’s petition for review to determine the appropriate standard to measure due process claims for pretrial delays in KSVPA proceedings.

Holding: The Kansas Supreme Court ruled that the ad hoc analysis from Barker v. Wingo, 407 U.S. 514 (1972) in which courts must weigh various factors including the length of the delay, reason for the delay, defendant’s assertion of the right, and prejudice to the defendant applies to pretrial delays in KSVPA proceedings. The court held that the district court did not err in weighing the different factors that caused the delay in Ellison’s trial under the Barker analysis and affirmed the order for his release.

Notable Points:

Barker Factors: The court of appeals reversed the ruling of the district court on the assumption that too much weight was given to the 4-year delay and other factors were not properly considered. The Kansas Supreme Court emphasized that no one factor is either necessary or sufficient in determining whether a defendant’s due process rights have been violated and that the district court had properly considered other factors in reaching its decision.
Reason for Pretrial Delay: The district court inquired into which party was responsible for the continuances that led to the delay in Ellison’s trial. The court determined that some of the continuances were attributable to Ellison and others were by agreement. When the party responsible for any delay could not be determined, the court attributed it to the state. The court considered only the delay that was attributable to the state in reaching its decision in this case.

Found in DMHL Volume 35, Issue 4

Not Guilty by Reason of Insanity (NGRI)

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

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

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

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

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

Found in DMHL Volume 35, Issue 4

Supreme Court Hears Arguments Whether Protection and Advocacy Agency May Sue State Officials to Access Peer Review Records

Virginia Office for Protection and Advocacy v. Stewart, 568 F.3d 110 (4th Cir. 2009) pet. for cert. granted (U.S. No. 09-529, June 21, 2010)
 

The United States Supreme Court heard oral argument on December 1, 2010 in Virginia Office for Protection and Advocacy v. Stewart, 568 F.3d 110 (4th Cir. 2009) pet. for cert. granted (U.S. No. 09-529, June 21, 2010), as to whether one independent state agency, the Virginia Office for Protection and Advocacy, may sue other state officials, namely the Commissioner of the Department of Behavioral Health and Developmental Services and the directors of two state facilities, to enforce the requirements of the Protection and Advocacy for Individuals with Mental Illness Act or 1986 (“PAIMI”), 42 U.S.C §§ 10801-10851 and the Developmental Disabilities Assistance and Bill of Rights Act (“DD Act”), 42 U.S.C. §§ 15001-15115. The 4th Circuit had reversed the decision of the federal district court, refusing to allow VOPA to sue the Commissioner and directors of Central State Hospital and Central Virginia Training Center to obtain peer review records related to the deaths of two individuals and the severe injury of a third. The 4th Circuit refused to apply the Ex parte Young doctrine which permits law suits by private parties to enforce federal law and obtain injunctive relief, but not monetary damages, from individual state officials in federal court. The court found that the lawsuit could otherwise be brought in state court.

Indiana is also seeking Supreme Court review in a similar case in which the 7th Circuit en banc held that the Indiana Protection and Advocacy agency could sue. Indiana Family and Social Services Administration v. Indiana Protection and Advocacy Services, 603 F.3d 365 (7th Cir. 2010) en banc, pet. for cert. filed, (No. 10-131, July 21, 2010). In addition to the Ex parte Young arguments heard in the Virginia case, Indiana is also arguing that PAIMI does not create a private right of action and peer review documents are protected against disclosure under state law.

Should the Supreme Court rule in the DBHDS Commissioner’s favor in VOPA v. Stewart, VOPA would need to file a new lawsuit in state court to seek access to peer review records. If the Supreme Court rules in VOPA’s favor, the case will be remanded back to the United States District Court in Richmond for a determination of the case on the merits. Four other federal circuits have already ruled that the state’s protection and advocacy agency has access to peer review records. Pennsylvania Protection and Advocacy, Inc. v. Houstoun, 228 F.3d 423 (3rd Cir. 2000); Center for Legal Advocacy v. Hammons, 323 F.3d 1262 (10th Cir. 2003); Missouri Protection & Advocacy Services v. Missouri Department of Mental Health, 447 F.3d 1021 (8th Cir. 2006). Protection and Advocacy for Persons with Disabilities v. Mental Health and Addiction Services, 448 F.3d 119 (2nd Cir. 2006).

Found in DMHL Volume 30 Issue 1