NGI

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

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

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

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

Found in DMHL Volume 34 Issue 1

ADA

Application of “accommodation” requirement to emergency police encounters with persons with mental illness

Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211 (9th Cir.) cert. granted sub nom. City & Cnty. of San Francisco, Cal. v. Sheehan, 135 S. Ct. 702 (2014).

Lower Court Opinions:

Plaintiff, Teresa Sheehan, filed suit under 42 U.S.C. 1983 against police officers and the city after the officers entered her home without a warrant and shot her five or six times when she reacted violently to the officers' presence, grabbing a knife and threatening to kill the officers. Plaintiff, a woman in her mid-50s suffering from a mental illness, told the officers that she did not want to be taken to a mental health facility. The United States District Court for the Northern District of California granted summary judgment in favor of the defendants finding that the officers (1) were justified in entering Sheehan’s home, (2) did not use excessive force when they shot Sheehan, and (3) could not bring against the individual officers or the city under the Americans with Disabilities Act. The district court relied on language from a 5th Circuit case in reaching this third conclusion: “section 12132 does not permit a cause of action based on an “officer's on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer's securing the scene and ensuring that there is no threat to human life.”

The 9th Circuit affirmed in part, holding that the officers were justified in entering plaintiff's home initially under the emergency aid exception because they had an objectively reasonable basis to believe that she was in need of emergency medical assistance and they conducted the search or seizure in a reasonable manner up to that point. The court held that there were triable issues of fact as to whether the second entry violated the Fourth Amendment where a jury could find that the officers acted unreasonably by forcing the second entry and provoking a near-fatal confrontation. The court further held that there were triable issues of fact as to whether the officers used excessive force by resorting to deadly force and shooting plaintiff. Finally, the court held that the district court properly rejected claims of municipal liability; the court joined the majority of circuits that have addressed the issue and held that Title II of the Americans with Disabilities Act, 42 U.S.C. 12132, applied to arrests; on the facts presented here, there was a triable issue as to whether the officers failed to reasonably accommodate plaintiff's disability; and the court vacated summary judgment on plaintiff's state law claims and remanded for further proceedings.

Briefs of Petitioners and Respondent:

On appeal to the Supreme Court, both parties raised two questions in their original briefs. First, whether the accommodation requirement of Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations during the course of bringing an armed and mentally ill suspect into custody. Second, for the purpose of determining whether officers were entitled to qualified immunity, whether it was clearly established that even if an exception to the warrant requirement applied, entry into a residence may be unreasonable under the Fourth Amendment when officers enter the home of an armed and mentally disturbed individual.

According to petitioners (City and County of San Francisco), Sheehan was not entitled to accommodations during her arrest process because she was not “qualified…to invoke a public entity’s duty to modify its activities” because she posed “a direct threat or significant risk to the safety of others” at the time of her arrest. Petitioners contended that, because the determination of threat or risk is to be based on the reasonable judgment of the person from whom the accommodation is demanded, and the officers made an objectively reasonable judgment based on the information they had at the time, Sheehan was not entitled to an accommodation during her arrest. In regard to the Fourth Amendment warrant-exception issue, the petitioners contended that the rule articulated in the case below—that absent an immediate need police officers are prevented from entering the residence of an armed, violent, and mentally ill person and even in the case of an immediate need to enter the officers are prevented from using force to defend themselves against even a provoked attack—both contradicted Supreme Court precedent and was not clearly established by 9th Circuit precedent.

In response, the brief for Teresa Sheehan argued at the outset that it did not make “legal” sense to apply an exception to Title II’s reasonable accommodation requirement when an individual’s mental illness is the reason for the police’s interaction with that person. Further, the brief for the respondent contended that, as a factual matter, Sheehan could not have been considered a reasonable direct threat for the purpose of the exception because (1) she was alone in the residence and the officers were on the outside of the door, (2) Sheehan was not a flight risk, and (3) Sheehan had only ever threatened individuals who entered her room without permission. In response to the petitioners’ claim that delay would have been an unreasonable accommodation, respondent contended that the proposed modifications put forward were “consistent with applicable training materials and universally accepted police practices designed to minimize the risk of a violent confrontation with a mentally ill individual.” Finally, Sheehan contended that the officers should not be entitled to qualified immunity in respect to their actions because forcibly reopening the door to Sheehan’s room and shooting her multiple times without taking her mental illness into account or identifying a countervailing need to enter was objectively unreasonable.

Reply Brief of Petitioners:

In their reply brief, the petitions began by identifying that while Title II of the ADA “does not permit police officers to assume that erratic conduct caused by mental illness is dangerous” it also does not “require officers to ignore dangerous conduct because it may be caused by mental illness.” The reply brief emphasized that arrest situations— especially ones involving mentally ill persons who are armed, acting erratically, and potentially violent—involve split-second judgments that should not be assessed “[w]ith the benefit of hindsight and calm deliberation.” Thus, the risk determination should be assessed in the closed universe of the facts of the situation as available to the officers at the time of the arrest. The reply brief also took issue with the temporal focus on the respondent’s brief (i.e. solely focusing on the “second” entry when the officers entered Sheehan’s closed-off bedroom). Instead, petitioners argued that the second entry could not be considered in isolation, but must be analyzed in the context of the entire encounter up to that point: “[W]hen the officers decided to reenter Sheehan’s room, they knew beyond question that Sheehan was violent and intended harm.”

Briefs of Selected Amici Curiae:

American Psychological Association (et alia): The American Psychological Association filed a brief in conjunction with several other amici. The complete list of joint amici included the American Psychiatric Association, American Psychological Association, Delaware, Illinois, New Mexico, Ohio, and Vermont Psychological Associations, National Council on Disability, National Alliance on Mental Illness, and Judge David L. Bazelon Center for Mental Health Law. The joint brief took the position that the question of whether an individual is “qualified” within the meaning of the ADA should be determined by analyzing the entire encounter between law enforcement and the mentally ill individual. Further, the brief argued that it is precisely the situation in which failure to provide accommodation is the partial cause of threatening or violent behavior that the statute’s protection is important. Finally, the APA brief took the position that an obligation to provide reasonable accommodations when interacting with mentally ill individuals at the time of arrest would not impose any undue burden on law enforcement or other public entities.

Policy Council on Law Enforcement and the Mentally Ill (“Policy Council”): The Policy Council filed a brief in strong support of respondent Teresa Sheehan, opening their argument with the proposition that it is “critical to the safety and well-being of those suffering from mental illness, as well as their loved ones, that the Americans with Disabilities Act (ADA) apply vigorously to police encounters” because they are “acutely vulnerable.” The Policy Council’s brief highlighted the public policy concerns that support the enforcement of the ADA’s accommodation requirement: namely, “the importance of encouraging people who need help to seek it.” The brief also took the position that in “barricade situations involving mentally ill individuals, there should rarely be a question as to the [ADA]’s applicability.” Finally, the Policy Council argued that “fairness and equity suggest that the ADA accommodation requirement should apply when officers are present for the sole purpose of assisting” mentally ill persons.

United States: The amicus brief of the United States of America supported vacatur in part and reversal in part. As to the ADA claim, the United States agreed that “[b]y its plain terms, the provision…extends to arrests.” The government did, however, also argue that when “police officers arrest an individual with a disability who is armed and violent, any deviation from ordinary law enforcement tactics will generally present very real safety risks.” Still, while of the mind that in the ordinary run of cases no modifications to the ADA will be required, the government espoused the position that a plaintiff should still “remain free to show that special circumstances rendered a modification reasonable” given the facts of any particular case.” Given the facts of the instant case, the government argued that Sheehan’s being armed and violent put the burden on her to show that an accommodation would not have presented safety concerns for the officers involved.

National League of Cities: The National League of Cities, filing in support of the petitioners, began by arguing that the holdings of the 9th Circuit below ignored the “practical reality faced by police officers who must routinely confront seriously mentally ill suspects who are armed and violent.” Taking a position quite different from the other amici curiae, the National League of Cities, while acknowledging that some cities have adopted special procedures for responding to incidents with mentally ill individuals, claims that “there is no conclusive evidence that these specialized approaches reduce the rate or severity of injuries suffered during police encounters with mentally ill suspects.” Further, the National League of Cities argued that requiring police officers to “undertake special procedures to accommodate an armed and violent suspect’s mental disability during an emergency situation” would have serious consequences for the safety of officers and the public because it would encourage them to “hesitate or delay in confronting an armed and violent suspect who displays any sign of a mental illness.”

Argument Analysis:

[ from Lyle Denniston, Argument Analysis: Can a Really Rough Start be Overcome?, SCOTUSBLOG.COM, (Mar. 23, 2015, 3:07 PM), http://www.scotusblog.com/2015/03/argument-analysis-can-a-really-rough-start-beovercome/ ]

In the opening moments of the oral arguments, Justice Scalia expressed concern (and thinly veiled annoyance) at his perception that the case “may have changed markedly once it got on the Court’s docket.” Justice Scalia questioned Christine Van Aiken, deputy city attorney for San Francisco, on the apparent discrepancies between the question on which the Court granted certiorari and the arguments raised in the city’s merits brief. According to Justice Scalia, the Court had taken the case to decide whether the ADA should apply at all in the context of an arrest (the position taken in the city’s lower court briefs), but the briefs filed by the city with the Supreme Court couched the question in terms of when the ADA’s protections kick in during an arrest. The city’s articulated position in its merits brief (as read out from petitioners’ filings by Justice Scalia and also remarked upon by Justice Sonia Sotomayor) was that the ADA’s protections only apply once “a threat [posed by a disabled person] has been eliminated.” Justice Samuel Alito also introduced another complicating factor—although no one had addressed the issue in a brief— by articulating the opinion that the definition of discrimination in the context of police activity could be a threshold matter.

By the time Van Aiken’s time had expired, the Court had only spent a little time on the merits of the case. Ian H. Gershengorn, Deputy Solicitor General, spoke next, advancing the view espoused in the federal government’s brief that the protection of the ADA “definitely does, and should, apply to police arrests.” He received some pushback from the Justices, but held strongly to his argument even under fire on the topic of the questions that might arise in the “tense situations” when officers confront a potentially violent and mentally ill individual.

Soon after Leonard Feldman, Sheehan’s lawyer, began his arguments, the Justices seemed to be “developing some skepticism about how police could actually try to calm a situation when an armed and violent person came at them with a knife and with a threat to kill them.” Specifically, Chief Justice John Roberts raised the issue of whether Sheehan might have been a suicide risk—suggesting that a reasonable fear of an individual posing a risk of self-harm might be enough to trigger exceptions to the ADA and the Fourth Amendment warrant requirement.

Ultimately, the court seemed confused (or at the least to have serious lingering questions) about (1) which standard each party was advocating for the Court to apply in interpreting the ADA’s applicability to arrests, and (2) the factual specifics of whether Sheehan did actually pose a “direct threat” to the officers.

Found in DMHL Volume 34 Issue 1

Involuntary commitment (Alabama)

Hospital mental health professionals have sovereign immunity protection for decision-making regarding discharge of involuntarily committed patients, provided that required procedures regarding such discharge are followed

Ex parte Kozlovski, No. 1140317, 2015 WL 1877656 (Ala. Apr. 24, 2015) (not yet released for publication)

Jeffrey Brown, a 19-year-old man with a long history of mental illness as well as chronic runaway behaviors and periodic violent outbursts, was involuntarily committed to an Alabama psychiatric hospital after physically attacking his father. After a course of treatment at the hospital, the treatment team, led by Dr. Kozlovski, found Mr. Brown met the criteria for discharge and return to the community, and arranged for his placement in a group home, against the wishes of family members who feared the consequences of his runaway behaviors. Within a day of his admission to the group home, Mr. Brown ran away from the group home. He was found dead three days later, apparently struck and killed by a motor vehicle. Mr. Brown’s estate filed a wrongful death action against the hospital and Dr. Kozlovski. After discovery, Dr. Kozlovski filed a motion for summary judgment based on “State agent immunity,” but the trial court denied the motion. Following that denial, Dr. Kozlovski appealed to the Supreme Court of Alabama and requested a writ of mandamus requiring the trial court to grant the summary judgment motion.

The Supreme Court of Alabama granted the writ, holding that the psychiatrist was discharging duties imposed by state statute, rules, and regulations, and so was entitled to state agent immunity. The Court also noted that, although the State agent asserting immunity bears the initial burden of demonstration that the plaintiff’s claims arise from actions that would normally entitle the agent to immunity, that burden shifts to the plaintiff to show that an exception to state-agent immunity is applicable.

Found in DMHL Volume 34 Issue 2

Sexually violent offender (Iowa)

Iowa’s statutory scheme allowing continuing community supervision of offenders who no longer meet the criteria for institutional commitment does not violate the due process clauses of the Iowa or United States Constitutions

In re Det. of Matlock, 860 N.W.2d 898 (Iowa 2015)

Calvin Matlock, a person civilly committed under Iowa’s Sexually Violent Predator Act, argued that his supervised release violated the Due Process Clauses of both the Iowa and the United States Constitutions. The Iowa Supreme Court held that an order of supervised release did not violate either state or federal due process so long as the supervisee “continues to suffer from a mental abnormality, the testimony supports the need for supervision, and the supervision strikes the right balance between the need to protect the community and the person's liberty interest.” Examining the specific release conditions imposed on Matlock, however, the Court found that “the plan [was] more consistent with a person just paroled from prison or on probation, not a person released from a civil commitment.” Of particular concern was the fact that “many of the conditions in the agreement appear[ed] to bear no relationship to Matlock’s treatment or the protection of the public.” Especially problematic was the fact that the Department of Corrections, which was responsible for supervising Matlock’s release, had never supervised a person released from the Civil Commitment Unit for Sexual Offenders, and was supervising Matlock as it would any sex offender released from prison. Ultimately, the Iowa Supreme Court remanded the case back to district court “to review the release conditions and enter the appropriate order consistent with due process.”

Found in DMHL Volume 34 Issue 2

Not guilty by reason of insanity commitment

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

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

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

Found in DMHL Volume 34 Issue 2

Involuntary outpatient commitment (Vermont)

For continuation of an outpatient treatment order, the statutory and constitutional burden on the state is to prove by clear and convincing evidence that failure to renew the order will result in the person posing a threat of harm to self or others in the near future; evidence of the individual’s repeated mental deterioration when off of medications is not sufficient alone In re

T.S.S., 2015 VT 55 (Vt. Apr. 10, 2015)

Respondent T.S.S., a person diagnosed with paranoid schizophrenia, had been involuntarily committed in 2003 due to severe delusions and extreme lack of self-care. He was released from the hospital in November 2003, but placed under an order of nonhospitalization (ONH) for continued outpatient treatment. That order was renewed annually for a period of years, but was not renewed in 2008. In 2012, T.S.S. was arrested for “unlawful mischief,” a misdemeanor, but was found incompetent to stand trial. That charge was dropped when T.S.S. agreed to an ONH that required his continuing outpatient treatment, including medication. T.S.S. did not contest renewal of that ONH in 2013, but he did object in 2014, and an evidentiary hearing was held.

At the evidentiary hearing, a doctor testified that T.S.S. had “demonstrated a clear pattern that…he, on orders of non-hospitalization, [would] take medications and improve significantly. But when he [was] off the order of non-hospitalization, he quickly [went] off medications and deteriorate[d].” Although the doctor testified that the deterioration was unavoidable—estimating that T.S.S. would deteriorate mentally within one year—he could not predict when T.S.S. would deteriorate to the point of posing a danger of harm to himself or others. The superior court granted the application for a continued ONH.

Vermont law allows continued ONHs for a person whose “capacity to exercise selfcontrol, judgment, or discretion in the conduct of his or her affairs and social relations is so lessened that he or she poses a danger of harm to himself, to herself, or to others” when it is shown “that in the near future his or her condition will deteriorate and he or she will become a person in need of treatment.” See 18 Vt. Stat. Ann. §§ 7101(16), (17). The Vermont superior court held that the phrase “near future” referenced “when the condition will deteriorate and not necessarily when the patient will become a person in need of treatment.” Thus, the State need only prove that a defendant’s “condition will deteriorate in the near future and this will inevitably lead to him” needing treatment.

On appeal, T.S.S. argued that the superior court had erred in its interpretation of the statute. The Supreme Court of Vermont agreed, holding that the proper determination was “whether T.S.S. [was] likely to pose a danger to himself [or others] in the near future.” Although it was “undisputed that T.S.S.'s care-providers sought a continued ONH because they…want to protect him from making a choice that would lead him, eventually, to become a danger to himself,” the Court emphasized that “the fact is, people who do not pose an imminent danger to themselves or others have a right to autonomy that includes the right to make decisions about the most personal of matters, even if those decisions are deemed by others to be profoundly ill-advised.” The Court also noted that basing a continued ONH on “a finding that the person is likely to become a person in need of treatment at some point in the future (however distant)” would “present serious constitutional concerns…That a person could or will ‘eventually’ become a person in need of treatment is, standing alone, a thin reed upon which to predicate a continued intrusion upon fundamental liberty.”

Because the “last specific evidence of T.S.S. actually posing a danger to himself” dated back “more than 10 years,” the Court found that the record was not sufficient to conclude that T.S.S. was likely to become a danger to himself or others in the near future.

Found in DMHL Volume 34 Issue 2

Insanity defense (Georgia)

Notes and reports of mental health experts examining defendant for purposes of assisting defense counsel in regard to possible insanity defense are protected from discovery by the attorney-client privilege, as long as the experts do not testify at trial and the experts who do testify do not use that information

Neuman v. State No. S15A0011, 2015 WL 3658828 (Ga. June 15, 2015)

Hemy Neuman was tried for murder and firearm possession in Georgia state court; he pleaded not guilty and intended to raise the insanity defense. The jury eventually found the defendant guilty but mentally ill, and Neuman appealed on the grounds that the trial court improperly admitted evidence protected by attorney-client privilege. During discovery, the State sought the records of doctors retained by defense counsel as consultants on the issue of Neuman’s mental condition. Over Neuman’s objection, the trial court admitted the records, including statements Neuman had made during the doctors’ evaluations, even though defense counsel had not intended to call the doctors as witnesses at trial.

The Georgia Supreme Court held the doctors’ notes, evaluations, and the statements made to them by the defendant were all protected by the attorney-client privilege. It rejected the State’s argument that “merely raising an insanity defense waives the attorney-client privilege for these communications.” The Court joined “numerous other jurisdictions in holding that the attorney-client privilege applies to confidential communications, related to the matters on which legal advice is being sought, between the attorneys, their agents, or their client, and an expert engaged by the attorney to aid in the client's representation.” The Court further held that privilege is “not waived if the expert will neither serve as a witness at trial nor provide any basis for the formulation of other experts' trial testimony.” The Court did note, however, that if counsel later decided to include the expert or experts as witnesses at trial, “the cloak of privilege ends.”

Found in DMHL Volume 34 Issue 2

Competency to waive counsel (Colorado)

Colorado’s state-developed process for assessing competency meets constitutional requirements and does not require adoption of process set out by the U.S. Supreme Court in Indiana v. Edwards

People v. Davis, 2015 CO 36 (Colo. 2015). (This opinion has not been released for publication in the permanent law reports and until it is released, it is subject to revision or withdrawal.)

Rashaim Davis was convicted in a Colorado state court of possession and distribution of a controlled substance and various related charges. Prior to trial, Davis informed the court that he wanted to represent himself. During a pretrial colloquy, Davis told the trial court that he was taking an antidepressant, Wellbutrin, for “bipolarism” and “mental condition as far as…not trusting people,” but that the Wellbutrin did not completely control the paranoia that had led to his mistrust of his court-appointed lawyers. The trial court found that Davis was unable to voluntarily, knowingly, and intelligently waive his right to counsel. The court of appeals reversed the trial court’s order denying Davis’s request to proceed pro se, proscribing a new standard for a criminal defendant’s competency to waive the right to trial counsel, relying on the United States Supreme Court’s decision in Indiana v. Edwards, 554 U.S. 164 (2008).

The Colorado Supreme Court reversed the court of appeals, holding that Colorado’s “existing two-part, totality-of-the-circumstances analysis to determine whether a defendant has validly waived the right to counsel affords trial courts sufficient discretion to consider a defendant's mental illness.” The Colorado Supreme Court noted that state law already requires that a waiver of the right to counsel be both “voluntary” and “knowing and intelligent,” and that “mental illness might prevent him from broadly understanding the charges, punishments, defenses, and other essential facts of the case.” Thus, a trial court could “consider the defendant’s mental illness during its totality-ofthe-circumstances-analysis.” Additionally, the Colorado Supreme Court held that Colorado law does not require an Edwards standard because it already provides “what the Supreme Court sought in Edwards: an analytical scheme that appropriately considers whether mental illness should prevent the defendant from representing himself at trial.”

Found in DMHL Volume 34 Issue 2

Sexually violent offenders

Rational basis exists for different standards of review under California law for civilly committed sexually violent offenders and other civilly committed persons, so that such difference does not violate equal protection clause of 14th amendment

Seeboth v. Allenby, 2015 WL 3772754 (9th Cir. 2015)

Cliff Allenby, a sex offender civilly committed under California’s Sexually Violent Predator Act (“SVPA”), filed a habeas petition claiming that the absence of a recommitment trial timing provision in the SVPA was a violation of equal protection. Under California law, other civilly committed persons—specifically mentally disordered offenders and those found not guilty by reason of insanity—have a statutory right to a recommitment trial within a defined period of time. The state and district courts denied the petition, holding that sexually violent predators are not “similarly situated” to other groups of civilly committed offenders for the purpose of an equal protection challenge to the lack of a timing provision in the SVPA.

On appeal, the Ninth Circuit affirmed, concluding that it was neither objectively unreasonable nor contrary to clearly established federal law for the state courts to hold that the lack of a recommitment trial timing provision in the SVPA was not an equal protection violation. The Court held that the use of the rational basis test was reasonable, and that the state legislature had a rational reason to “distinguish between individuals who have been found to be mentally ill and dangerous and individuals who have been found to be mentally ill and sexually dangerous” (emphasis in original).

Found in DMHL Volume 34 Issue 2

Mental illness and mens rea

Right to due process in criminal trial may be violated by state trial court’s exclusion of proffered expert testimony that, because of defendant’s mental condition, defendant lacked the mens rea required under state law to be guilty of the crime charged

Roberson v. Stephens, 2015 WL 3396822 (5th Cir. 2015) (per curiam) (unpublished opinion)

Robert Roberson was convicted of capital murder in the death of his daughter and sentenced to death. On direct appeal to the Texas Court of Criminal Appeals, Roberson argued inter alia that the trial court’s exclusion of his expert witness’s testimony regarding his organic brain syndrome violated his constitutional right to present a complete defense. Texas law does not recognize diminished capacity as an affirmative defense, but does allow evidence to negate the mens rea element of offenses. The Court of Criminal Appeals rejected Roberson’s claim, concluding that the doctor’s testimony was “not relevant as to Roberson’s ability to form the requisite mens rea for the offense” but “was merely being used as a mental-health defense not rising to the level of insanity.” After his direct appeal, Roberson filed applications for a writ of habeas corpus first in state court and then in the United States District Court for the Eastern District of Texas, but was denied.

The Fifth Circuit, in a per curiam opinion, granted a certificate of appealability as to Roberson’s due process mens rea evidence claim. It noted that “evidence rules that infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve” infringe the Constitutional guarantee to “a meaningful opportunity to present a complete defense.” Although it granted the certificate of appealability, the Fifth Circuit made it clear that Roberson still bears the burden of persuading the Court that the expert testimony was “substantial enough that its exclusion constituted an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States” as is required by 28 U.S.C. § 2254(d)(1) for habeas relief.

Found in DMHL Volume 34 Issue 2

Competence to enter into plea agreement

District court abused its discretion in not sua sponte ordering competency evaluation based upon medical evidence of incompetence introduced for the defendant’s sentencing hearing

U.S. v. Wingo, 2015 WL 3698157 (11th Cir. 2015)

Andrew Wingo was a defendant in a complex securities fraud case, and was represented by counsel. Wingo made only brief appearances before the court, and ultimately entered into a plea agreement in which he pleaded guilty to just one of the numerous charges against him. Some evidence of Wingo’s health concerns came to light during early proceedings (e.g., bond revocation hearing), but neither his attorney nor the government raised any concerns about Wingo’s competence at the plea hearing. The issue of Wingo’s mental capacity was not raised until the sentencing phase approximately six months later, when Wingo’s attorney requested a reduced sentence based upon diagnoses of dementia and other cognitive impairments. The pre-sentence report from the government also noted Wingo’s cognitive impairments. The court at sentencing noted the medical information submitted regarding Wingo’s condition, but determined that this should not affect the length of sentence. Wingo appealed, arguing that the court had both a statutory and a constitutional duty to order a competency hearing sua sponte because there was reasonable cause to doubt his competence.

The Eleventh Circuit noted that in a prior case (Tiller v. Esposito, 911 F.2d 575, 576 (1990)) it had identified three factors to be considered in determining whether information establishes a “bona fide doubt regarding the defendant's competence.” After a detailed review of the evidence submitted prior to the sentencing hearing, the Eleventh Circuit found that the evidence was sufficient to create “reasonable cause to believe that Wingo was incompetent to proceed to trial or to plead guilty.” It found that the district court had abused its discretion in failing to sua sponte order a competency hearing, and remanded the case to the district court to determine “whether Wingo's competency can be evaluated nunc pro tunc, and if so, for an assessment of his competency at the time of his guilty plea and sentencing.” The Eleventh Circuit stated that if such evaluation were to find Wingo was incompetent at the time of the plea agreement, or if such evaluation is not possible, Wingo's conviction and sentence must be vacated, with the government having the right to try him if he becomes competent. If the evaluation were to find Wingo was competent, his conviction and sentence must be affirmed.

Found in DMHL Volume 34 Issue 2

Police search and seizure and qualified immunity in mental health emergencies

7 th Circuit reverses district court and dismisses 42 U.S.C. § 1983 claim against police officers for violating plaintiff’s fourth amendment right against unreasonable seizure, finding the officers had qualified immunity

Mucha v. Jackson, 786 F.3d 1064 (7th Cir. 2015)

Jason Mucha was a Milwaukee police sergeant referred for psychiatric examination after failing to report to duty for 7 months due to stress. In his examination, Mucha admitted to having had thoughts of committing suicide by cop, specifically “going to a command staff meeting with a rifle” and “shooting them until they shoot me.” Mucha stated that he did “not intend[] to do that” but that going back to work “could have a real bad ending.” The psychiatrist, in a report to the police department two weeks later, stated that sending Mucha back to work would be a “public safety issue.” The police sent two officers with Tactical Enforcement Unit backup to Mucha’s home to speak with him. At that time Mucha said he had no intention of harming himself or others, but he did admit to having dreams or thoughts of committing suicide or hurting others. The officers detained Mucha and took him to the Milwaukee County Mental Health Facility where he was admitted after the facility’s treatment director found that Mucha suffered from “adjustment disorder with disturbance of conduct and mood” and so “posed a threat of danger to self or others.” Mucha was released after three days and filed suit for unreasonable seizure and false imprisonment. The District Court for the Eastern District of Wisconsin denied the officers’ motion for judgment on the pleadings with respect to their claims for qualified immunity.

The Seventh Circuit Court of Appeals reversed, holding that the officers were entitled to qualified immunity, as they had not violated “any clearly established law, whether constitutional or statutory, federal or state.” Judge Posner noted that the officers had relied upon Wisconsin's emergency detention statute, which authorizes police officers to take a person to an appropriate mental health facility if they have “cause to believe” that the person is “mentally ill” and has demonstrated “a substantial probability of physical harm to himself or herself as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm.” The district court had accepted Mucha’s Fourth Amendment argument that the officers did not “have probable cause to believe that he was mentally ill and posed a danger to himself and to other police officers.” The district court noted that the psychiatrist’s information was 15 days old when received, and thus was not “recent” within the meaning of the emergency detention statute. The Seventh Circuit rejected Mucha’s argument, however, noting that the Wisconsin statute does not define “recent” and that the definition can vary depending upon context. Given the nature of Mucha’s statements to the psychiatrist, the Circuit Court held that the statements were still recent or at least not clearly established as no longer recent. Moreover, the Circuit Court noted that “[a] state law cannot preempt the Fourth Amendment” but it “can establish a standard of conduct that is consistent with the amendment but particularized to a specific situation.” Because the “danger signals” known to the police at the time of their interview with Mucha reasonably triggered the emergency detention statute, “the defendant officers…were complying with a statute the validity of which is not contested.”

Found in DMHL Volume 34 Issue 2

Intellectual disability determination and the death penalty

Request to submit “newly discovered evidence” to establish intellectual disability and ineligibility for death penalty not barred by 28 U.S.C § 2255(e) even after original appeal denied

Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) (rehearing en banc)

Bruce Webster was convicted of kidnapping resulting in death and related offenses and was sentenced to death. These convictions and his death sentence were affirmed on direct appeal in Texas, and his motions for habeas relief, which were heard in Indiana where he resides on death row, were denied. Webster sought a rehearing en banc to address the question of whether he could file for a writ of habeas corpus to present new evidence demonstrating that he was categorically and constitutionally ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002) and Hall v. Florida, 134 S.Ct. 1986 (2014). Federal prisoners who claim to be convicted or sentenced in violation of the Constitution must present a claim for relief by a motion under 28 U.S.C. § 2255. Subsection (e) generally prevents a prisoner from making an application for a writ of habeas corpus. There is, however, a savings clause in § 2255(e) that allows a prisoner to apply for a writ of habeas corpus where “it appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” A panel of the Seventh Circuit originally concluded that a claim of new evidence can never satisfy the standard in § 2255(e).

Upon rehearing en banc, the Seventh Circuit determined that “the savings clause [in § 2255(e)] permits Webster to resort to a [habeas] petition.” Of essential importance to the Court were the facts that “the Supreme Court has now established that the Constitution itself forbids the execution of certain people,” and that a “core purpose of habeas corpus is to prevent a custodian from inflicting an unconstitutional sentence.” The Court held that a categorical bar against the use of § 2255(e)’s savings clause in this way could lead to “the intolerable result of condoning an execution that violates the Eighth Amendment.” Conceding that this rule could not be applied to all newly discovered evidence due to finality considerations, the Court held that habeas relief was available to Webster because the new evidence proffered existed before the time of the trial and there was evidence “indicating that [it] was not available during the initial trial as a result of missteps by the Social Security Administration, not Webster’s counsel.”

Found in DMHL Volume 34 Issue 2

Intellectual disability determination and the death penalty

Habeas corpus relief granted to criminal defendant sentenced to death in state court system on grounds that he is ineligible for death penalty due to intellectual disability

Pruitt v. Neal, 788 F.3d 248 (7th Cir. 2015)

Tommy Pruitt was charged with murder, attempted murder, and related offenses in Indiana state court, and was convicted and sentenced to death. After exhausting his state post-conviction remedies, Pruitt sought federal habeas relief claiming that he was intellectually disabled and thus categorically ineligible for the death penalty. He also included several claims alleging ineffective assistance of his trial counsel, including one based on their failure to investigate and present evidence at sentencing that Pruitt suffered from schizophrenia. 

The Seventh Circuit held that the Indiana Supreme Court’s “determination that Pruitt failed to demonstrate significantly subaverage intellectual functioning based on inconsistent test scores” was objectively unreasonable and contrary to the clear and convincing weight of evidence. The Indiana Supreme Court erred by relying on “inaccurate assumptions and select pieces of evidence” in its factual determination, weighing circumstantial evidence—such as Pruitt’s ability to fill out applications for employment and his other work and school history—as more indicative of his true intellectual ability than his many subaverage IQ test scores. The Court also noted that the state court record contained “unrebutted evidence that Pruitt satisfie[d] the adaptive behavior prong of intellectual disability.” The Seventh Circuit also held that trial counsel’s failure to investigate and present evidence of Pruitt’s paranoid schizophrenia was “sufficiently egregious and prejudicial” to establish ineffective assistance. Ultimately, the Seventh Circuit reversed the judgment of the district court and remanded the case for new penalty-phase proceedings.

Found in DMHL Volume 34 Issue 2

Competence to stand trial

State courts violated clear due process standards in failing to address defendant’s competency to stand trial

McManus v. Neal, 779 F.3d 634 (7th Cir. 2015)

Paul McManus was convicted in Indiana state court of murdering his estranged wife and two daughters and was sentenced to death. On state post-conviction review, a trial judge found McManus to be intellectually disabled and ineligible for the death penalty under Atkins v. Virginia, 526 U.S. (2002) and Ind. Code § 35-36-9-6, but the Indiana Supreme Court re-imposed the death sentence. McManus then sought federal habeas review, challenging the Indiana Supreme Court’s rejection of his Atkins claim. The Seventh Circuit expanded the appeal to include the question of whether the state court “unreasonably applied federal due-process standards in finding McManus competent to stand trial.”

The Seventh Circuit held that the trial court and state supreme court failed to follow the due process competence to stand trial standard set out in Pate v. Robinson, 383 U.S. 375 (1966) and Dusky v. United States, 362 U.S. 402 (1960). During the trial, McManus suffered several panic attacks and had to be transported to the emergency room where he was treated with several psychotropic drugs, including both opioid painkillers and ones that affected memory. The Seventh Circuit held that the “powerful effect of the medications alone created substantial doubt about McManus’ mental fitness for trial” and faulted the state judge for not ordering a competency evaluation and instead focusing on “getting McManus ‘fixed-up’ enough to complete the trial.” This course of action violated not only the due process standard set out in Dusky but also the Indiana Code, which requires a trial court to appoint a team of medical experts with expertise in determining competency and to hold a hearing any time there are bona fide doubts about a defendant’s competency. See Ind. Code § 35-36-3-1. The Seventh Circuit reversed and remanded the case to the district court with instructions to grant the writ of habeas corpus unless Indiana gave notice of its intent to retry McManus within a reasonable time.

Found in DMHL Volume 34 Issue 2

ADA workplace accommodation

Claim by fired deputy clerk of court that her social anxiety disorder constituted a disability and that her employer failed to make reasonable accommodation survives summary judgment motion, as the Court emphasizes the remedial goals of the ADA

Jacobs v. NC Admin. Office of the Courts, 780 F.3d 562 (4th Cir. 2015)

Christina Jacobs was hired as a deputy clerk in the New Hanover County Superior Court. The job description for deputy clerk included many activities, and only a few of the deputies regularly provided customer service at the courthouse front counter. Jacobs, who was diagnosed with social anxiety disorder, was assigned to provide customer service on a daily basis. She experienced extreme anxiety and distress from interacting with the public at the counter. She requested to be assigned to a role with less direct interpersonal interaction. Her employer did not respond to her accommodation request, and three weeks later fired her. She made a timely complaint to the EEOC, which conducted an investigation and made a finding in her favor. The Department of Justice later issued a “Right to Sue” letter. Jacobs filed suit, claiming, among other things, disability discrimination, failure to accommodate, and retaliation, all in violation of the Americans with Disabilities Act (ADA). After discovery, defendant employer moved for summary judgment, which the district court granted on all counts.

The Fourth Circuit reversed and remanded on all counts except the claim of retaliation. It noted that the district court’s most fundamental error was deciding disputed factual issues in favor of the moving party, rather than determining whether, if the facts were as Jacobs alleged, no reasonable juror could find that the defendant had committed violations of the ADA. 

The Fourth Circuit then examined the claims and facts. Some notable observations include:

1. The Court first reviewed the ADA definition of “disability” and nonexhaustive list of “major life activities” including the EEOC’s acceptance of “interacting with others” as a major life activity. Moreover, the 2008 ADA amendments broadened the definition of disability in order to expand the scope of protection available under the Act “as broadly as the text permits.” The Fourth Circuit “therefore defer[red] to the EEOC's determination…that interacting with others is a major life activity.”

2. The Court rejected the employer’s claim that Jacobs had failed to show that her alleged social anxiety disorder substantially limited her ability to interact with others. The Court noted that the 2008 amendments define a disability as one that “substantially limits…as compared to most people in the general population…An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.”

3. The Court noted that a person “need not live as a hermit in order to be” substantially limited. The fact that Jacobs endured the social interactions for a time did “not per se preclude a finding that she had social anxiety disorder,” and “a reasonable jury could conclude that Jacobs was substantially limited in her ability to interact with others and thus disabled within the meaning of the ADA.”

4. The Court ruled that at this stage of the litigation the absence of any documentation of poor performance, and the shifting reasons of the employer regarding unsatisfactory performance, were sufficient to establish that the employer’s claims were a pretext and not the actual reason for the decision to fire her.

5. The Court also analyzed whether the employer made a reasonable effort at accommodation. The Court wrote that employers have a good-faith duty “to engage [with their employees] in an interactive process to identify a reasonable accommodation” under the ADA (Wilson v. Dollar Gen. Corp., 717 F.3d at 346, 4 th Cir. 2013). 9 The Fourth Circuit found that, given the undisputed facts regarding the meeting at which Jacobs was fired, “a reasonable jury could easily conclude” that Jacobs’s employer acted in bad faith by failing to engage in the interactive process with Jacobs at that meeting.

Found in DMHL Volume 34 Issue 2

Forced medications to restore competency to stand trial

After prior reversal and remand, the Fourth Circuit rules that the district court made the specific inquiries and findings in the record as required by Sell to support the determination that less restrictive alternatives to forced medication to restore competency were not available

U.S. v. Chatmon, 596 Fed.App’x 216 (4th Cir. 2015)

This case, though unpublished, provides useful guidance from the Fourth Circuit on the evidentiary foundations required to support a court order to restore a defendant to competency to stand trial through the forcible administration of medications.

Chatmon was indicted for conspiracy to distribute crack cocaine and heroin, an offense with a minimum sentence of 10 years and maximum of life imprisonment. Following submissions by his attorney that Chatmon’s condition during incarceration had deteriorated to the point that he could no longer assist counsel in his own defense, Chatmon was transferred for competence evaluation to the Butner Federal Medical Center, where he was diagnosed with paranoid schizophrenia.

The district court found Chatmon incompetent to stand trial. Chatmon was returned to Butner for evaluation of whether he could be restored to competence, where he was placed in solitary confinement. The evaluation report confirmed the diagnosis, noted that Chatmon denied having any mental illness and refused treatment, and stated there was a “substantial probability” that competency could be restored through treatment with haloperidol decanoate. The government requested Court authorization to restore Chatmon to competency through forced medication.

The district court found that the government had met the test set out in Sell v. United States, 539 U.S. 166, 181 (2003)8 , and authorized the forced medication. Chatmon appealed. In United States v. Chatmon, 718 F.3d 369 (4th Cir. 2013), the Fourth Circuit Court of Appeals reversed the district court and remanded the matter. The Court noted that the district court had made sufficient findings for the first, second, and fourth prongs of Sell, but had failed to consider less intrusive means for restoring competence. Chatmon had submitted evidence of improved behavior upon being transferred to the open population at Butner and an option of group therapy to improve competence. The Court also noted that a “court order to the defendant backed by the contempt power” is acceptable as a less intrusive means for administering drugs.

On remand from the Fourth Circuit, the district court ordered the defendant to take his medication or be held in civil contempt. The penalty was set as thirty days' imprisonment, during which medication was offered each day, but Chatmon declined it. The district court then reviewed deposition testimony addressing whether housing in Butner’s open population and group therapy could result in restoration. The doctors opined that improvements in behavior were not the same as improved competency or mental health, and that treatments other than medication could be beneficial but not by themselves effective treatment for psychosis. They stated that haloperidol was the “only” effective means to restore Chatmon’s competency. The defense offered no rebuttal to the testimony, and the district court ordered forced medication.

Chatmon appealed the district court’s new order, but the Fourth Circuit found that the record created by the district court “made careful findings” and “examined less intrusive means,” thus satisfying all Sell factors, before ordering that Chatmon be forcibly medicated.

Found in DMHL Volume 34 Issue 2

Corrections

Because no Supreme Court precedent established a right to suicide prevention protocols, corrections officials were entitled to qualified immunity in case involving claim that inmate suicide arose from facility’s violation of inmate’s Eighth Amendment right to appropriate suicide screening, treatment and monitoring

Taylor v. Barkes, 135 S.Ct. 2042 (2015) (per curiam)

Christopher Barkes was arrested in 2004 for violating probation and was taken to a Department of Corrections (DOC) facility in Wilmington, Delaware, where he underwent a suicide screening based on a model form developed by the National Commission on Correctional Health Care (NCCHC) in 1997 as part of intake procedures. The intake was completed by a nurse from the contractor employed by the facility (First Correctional Medical, Inc. [FCM]). Barkes stated that he had attempted suicide in 2003 and disclosed that he had a history of psychiatric treatment, but said that he was not currently contemplating suicide. The nurse gave Barkes a routine referral to mental health services and did not initiate any special suicide prevention measures. Barkes was placed in a cell by himself. He placed a call to his wife that evening and expressed his intention to kill himself, but his wife did not inform the DOC. The next morning, Barkes was observed lying on his bed at 10:45, 10;50, and 11:00 am. At 11:35 am, an officer delivered lunch to the cell and discovered that Barkes had hanged himself with a bedsheet.

The Third Circuit held that Barkes’s constitutional right to “proper implementation of adequate suicide prevention tools” was clearly established at the time of his suicide. It also held that summary judgment was inappropriate given evidence that “FCM’s policies and procedures…created an unreasonable risk of a constitutional deprivation” and evidence of DOC’s awareness of FCM’s non-compliance with NCCHC standards. Finally, it held that a reasonable jury could have found that Barkes’s suicide was caused by the DOC’s failure to supervise FCM despite the fact that Barkes did not self-report suicidal ideation or exhibit suicidal behavior. In the court’s view, “had Appellants properly supervised FCM and ensured compliance with the national standards, Barkes’s answers during his screening would have resulted in additional preventive measures being taken.”

The Supreme Court reversed per curiam, holding that the right “to proper implementation of adequate suicide prevention protocols” was not clearly established “in a way that placed beyond debate the unconstitutionality of the [facility’s] procedures.” Although the Third Circuit found the right established by its own precedents, the Court emphasized that no Supreme Court decisions have established a right to proper implementation of adequate suicide prevention protocols or discussed suicide screening protocols. Thus, the defendants were entitled to qualified immunity because they were not “contravening clearly established law,” even if the suicide screening and prevention measures had shortcomings.

Found in DMHL Volume 34 Issue 2

Death Penalty

Right of defendant convicted and sentenced to death prior to Atkins decision to seek review and determination of whether defendant has intellectual disability and is therefore precluded from death penalty under the Eighth Amendment

Brumfield v. Cain, 135 S.Ct. 2269 (2015)

Petitioner Kevan Brumfield was convicted of murder in Louisiana and sentenced to death before the Supreme Court decided Atkins v. Virginia, 536 U.S. 304 (2002). A subsequent Louisiana state Supreme Court case mandated an evidentiary hearing whenever a defendant provides facts sufficient to raise a reasonable ground to believe that he has an intellectual disability. See State v. Williams, 831 So.2d 835 (La. 2002). Brumfield amended his state post-conviction petition to include an Atkins claim and sought an evidentiary hearing. The amended petition referenced evidence introduced at sentencing that Brumfield had an IQ of 75, had a fourth-grade reading level, had been prescribed medications and treated in psychiatric hospitals as a child, had been identified as having a learning disability, and had been placed in special education classes. The trial court dismissed his post-conviction petition without holding an evidentiary hearing or granting funds to conduct additional investigation. Brumfield sought federal habeas relief.

The district court granted relief under 28 U.S.C. §§ 2254(d)(1) and (2), but the Fifth Circuit reversed, holding that the state court decision was not “contrary to” and did not involve “an unreasonable application of clearly established federal law,” nor was it “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

The Supreme Court vacated and remanded, holding as unreasonable under § 2254(d)(2) the state trial court’s determinations that 1) Brumfield’s IQ score was inconsistent with a diagnosis of intellectual disability and 2) he presented no evidence of adaptive impairment. Although the record contained some contrary evidence, that evidence did not foreclose all reasonable doubt as to Brumfield’s intellectual disability. The facts raised at sentencing were sufficient to raise doubt concerning Brumfield’s impairments. The Supreme Court held that Brumfield had “cleared [§ 2254(d)’s] procedural hurdles” and so was entitled to an evidentiary hearing to show his intellectual disability.

Found in DMHL Volume 34 Issue 2

Jury instructions

People v. James, 238 Cal. App. 4th 794, 189 Cal. Rptr. 3d 635 (2015), as modified on denial of reh’g (Aug. 12, 2015), review filed (Aug. 24, 2015)

Where a defendant has provided evidence of involuntary intoxication and unconsciousness, he is entitled, upon request, to a jury instruction on the defense of unconsciousness; refusal to provide the requested instruction constitutes prejudicial error

Background: James was charged with aggravated mayhem and assault producing great bodily injury and pled not guilty by reason of insanity. The court-appointed clinical psychologist’s report stated that James had been shot in the head in 1998 and, as a result, had a seizure disorder. Another head trauma occurred in 2011. James had been diagnosed with Mood Disorder, PTSD, and Polysubstance Dependence. In addition, James regularly used cocaine and marijuana, and occasionally used ecstasy, methamphetamine, acid, and mushrooms. The court-appointed psychologist opined that during the offense, James suffered a Psychotic Disorder [not otherwise specified], with psychosis present, and that James “was not capable of knowing or understanding the nature and quality of his act and of distinguishing right from wrong.” Another psychologist’s report chronicled the same history, but concluded that his behavior was more likely the result of drug-induced psychosis or delirium, and that James was not legally insane. In a bifurcated trial, a jury found James guilty, but then found him not guilty by reason of insanity.

Holdings: Finding substantial evidence that James was unconscious within the legal meaning of the defense of unconsciousness when he committed the offenses, the court of appeal reversed, holding that the trial court erred in refusing to instruct the jury on that defense.

Notable Points:

It was error to refuse appellant's request to give a jury instruction on the defense of unconsciousness, and appellant was prejudiced: The Court began by stating that evidence raising a reasonable doubt as to whether the defendant was conscious at the time of acting is a complete defense to a criminal charge, and that where a defendant provides evidence of involuntary unconsciousness, “the refusal of a requested instruction on the subject, and its effect as a complete defense if found to have existed, is prejudicial error.” Drawing a link between the voluntary intoxication doctrine and the insanity defense accepted by the jury, the Court stated: “if the jury had concluded that appellant's mental state at the time of the February 19 event was the product of his own voluntary intoxication, it necessarily was required to reject his defense of not guilty by reason of insanity; its contrary finding clearly implies that the jury was not so convinced.”

Unconsciousness caused by voluntary intoxication is not a defense to a general intent crime, and may be raised in any potential retrial: The Court emphasized that unconsciousness is not always a complete defense, and that voluntary intoxication could not be a defense to a general intent crime. It made clear that “the issue of voluntary intoxication may also be raised as an exception to [the unconsciousness] defense, and both may be presented to the jury to decide.”

Found in DMHL Volume 34 Issue 3