Tenth Circuit Requires Treatment Plan with Medications and Maximum Dosages before Authorizing Involuntary Medication of Incompetent Defendant

United States v. Chavez, 734 F.3d 1247 (10th Cir. 2013)

The Tenth Circuit Court of Appeals overturned on November 13, 2013, the district court’s order authorizing treatment of an incompetent defendant with antipsychotic medication over his objection. Following the precedent of three other circuits, the Tenth Circuit held that the government must submit a treatment plan containing the proposed medications and maximum dosages before the trial court can determine whether the second and fourth prongs required under United States v. Sell, 539 U.S. 166 (2003), have been met in order to justify an involuntary medication order. In order to authorize medication of an incompetent defendant under Sell, the government must establish 1) that important governmental interests are at stake, 2) the involuntary medication will significantly further those interests, 3) the involuntary medication is necessary to further those interests, and 4) the administration of the mediation is medically appropriate and in the defendant’s best medical interests.

Reydecel Chavez, a Mexican citizen, was arrested in New Mexico and charged with being a felon in possession of a firearm, being an illegal alien in possession of a firearm, and reentry into the United States as a removed alien. Soon after he was charged, both his attorney and the government agreed that Chavez should be evaluated for his competency to stand trial. The district court committed him to the Bureau of Prisons medical center in Springfield, Missouri for a competency determination. The psychologist performing the evaluation reported that Chavez was diagnosed with paranoid schizophrenia and was not competent to stand trial. He also reported that Chavez was not a danger to himself or others while in custody and could likely be restored to competency with antipsychotic medication, which he was refusing.

At the competency hearing, the district court found Chavez incompetent to stand trial, and at the court’s suggestion, the government filed a motion to require him to undergo treatment with medication over his objection. The same evaluator testified in general terms as to the treatment Chavez would likely receive, but the government presented no individualized treatment plan. The evaluator testified that an individualized treatment plan would be prepared for Chavez only after involuntary treatment was authorized by the court. He also testified that as a psychologist he could not prescribe medication for Chavez, but that the “typical” treatment plan would involve injection with Haldol. Side effects could be addressed with a change in medication or administration of drugs specifically designed to treat them. He further testified that three-fourths of defendants treated with antipsychotic medications are successfully restored to competency. Following this testimony, and over Chavez’s objection, the district court found that a specific treatment plan was not necessary to meet the Sell requirements and ordered his treatment over objection, requiring only a status report in about six weeks.

On appeal, the Tenth Circuit found that the first two prongs of the Sell test were purely issues of law for the appellate court to decide de novo, but the third and fourth prongs were factual determinations that the appellate court would reverse only if they were clearly erroneous with no evidence in the record to support them. The Tenth Circuit then analyzed the evidence supporting the Sell requirements and agreed with Chavez’s arguments that without a specific treatment plan identifying which medications would be administered to him and at what doses, the district court had insufficient information to make the required findings. The Court of Appeals found that the need for a high level of detail is plainly contemplated by the Sell case. Without evidence in the record that a psychiatrist who will be prescribing the drugs solely to render him competent to stand trial, the court cannot ensure as a legal matter under the second Sell prong that the administration of the drugs will be substantially unlikely to produce side effects that will interfere with Chavez’s ability to assist his attorney in presenting a defense. Also, without knowing which drugs the government might administer and at what dosage, the court has no evidence upon which it can determine under the fourth prong whether the treatment will be medically appropriate for Chavez. In addition, the court’s order sets no meaningful limits on the government’s discretion in treating Chavez and is so open-ended that it would give treatment staff carte blanche to experiment with what might be dangerous drugs or dangerously high dosages of drugs.

In making these findings, the Tenth Circuit followed the decisions from three other circuits. The Ninth Circuit held in United States v. Hernandez-Vasquez, 513 F.3d 908 (9th Cir. 2007), that to pass muster under Sell, 1) the district court’s order must identify the specific medication or range of medications the physicians are permitted to use, 2) the maximum dosages, and 3) the duration of time the involuntary medication may continue before requiring a report back to the court. Similarly, the Fourth Circuit held in United States v. Evans, 404 F.3d 227 (4th Cir. 2005), that the government must set forth the particular medication, including the dosage. The Sixth Circuit in United States v. Green, 532 F.3d 538 (6th Cir. 2008), also upheld a specific treatment plan that set forth the specific medications, alternative means of injecting it, the specific dosage, and the potential side-effects.

In following these cases, the Tenth Circuit decided that a balance must be struck between the judicial oversight needed to protect the defendant’s constitutional rights and the need of medical staff to retain flexibility in providing effective treatment. The Court then held that a court may approve a treatment plan as long as all drugs that might be administered to a defendant and their maximum dosages are specified. In so doing, the Tenth Circuit found that the district court’s order lacked sufficient information to determine whether the second and fourth requirements under Sell were met, reversed the order and remanded the case for further proceedings.

Found in DMHL Volume 33 Issue 1

Supreme Court Reinstates Death Penalty Holding Prosecution May Introduce Expert Psychological Opinion Rebutting Voluntary Intoxication Defense

Kansas v. Cheever, _ U.S._ , 134 S.Ct. 596, 82 USLW 4032 (No. 12-609 Dec. 11, 2013) available at http://www.supremecourt.gov/opinions/13pdf/12-609_g314.pdf

In a unanimous opinion written by Justice Sonia Sotomayor, the United States Supreme Court held on December 11, 2013 that when a defense expert testifies that the defendant lacks the mens rea, or requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence. In so doing, the Supreme Court reversed the decision of the Kansas Supreme Court that introduction of expert testimony from a court-ordered examination to which the defendant had not agreed violated his Fifth Amendment right against self-incrimination.

In January 2005, Scott Cheever shot and killed a county sheriff and shot at other law enforcement officers who were attempting to arrest him on an outstanding warrant. Several hours prior to the shooting, Cheever and his friends had cooked and smoked methamphetamine. One of Cheever’s friends warned him that officers were on the way to arrest him. He attempted to flee in his car but it had a flat tire. He returned inside and hid with a friend in an upstairs bedroom. Hearing footsteps on the stairs, Cheever stepped out and shot the sheriff climbing the stairs. He returned to the bedroom briefly, but went back to the stairs and shot the sheriff again. He also fired at other officers and members of the SWAT team that had arrived.

The State charged Cheever with capital murder, but shortly thereafter, the Kansas Supreme Court found in an unrelated case that the State’s death penalty scheme was unconstitutional. Because the death penalty was no longer available, the state prosecutors dismissed the charges against Cheever and permitted federal prosecutors to indict him under the Federal Death Penalty Act.

Cheever filed a notice in the federal case that he intended to introduce evidence that his intoxication with methamphetamine prevented him from forming the specific intent to commit the crime. The federal district court ordered Cheever to submit to a psychiatric evaluation to assess how methamphetamine had affected him when he committed the crime. The federal court, however, suspended the proceedings during jury selection when defense counsel became unable to proceed, and then dismissed the case without prejudice. In the interim, the United States Supreme Court reversed the Kansas Supreme Court in the unrelated case, holding that the Kansas death penalty scheme was constitutional.

Kansas then refiled the state proceedings against Cheever at which he presented a voluntary intoxication defense, arguing that his methamphetamine use had made him incapable of premeditation. He presented evidence at trial from a psychiatric pharmacologist that long-term methamphetamine use had damaged his brain. The expert testified that Cheever was acutely intoxicated at the time of the shooting. The State then sought to present rebuttal testimony from the forensic psychiatrist who had examined Cheever under the federal court order. Cheever objected on the grounds that he had not voluntarily agreed to the examination and the expert’s testimony would therefore violate his Fifth Amendment right against self-incrimination. The trial court admitted the testimony and the expert testified that Cheever shot the sheriff because of his antisocial personality and not because of his methamphetamine use. The jury convicted Cheever of murder and attempted murder, and recommended the death penalty, which the court imposed.

On appeal, the Kansas Supreme Court agreed that use of the rebuttal testimony from the expert in the federal proceeding violated Cheever’s Fifth Amendment rights because he had neither initiated the examination nor put his mental capacity in issue at trial. In so deciding, the Kansas Supreme Court relied upon the United Supreme Court decision in Estelle v. Smith, 451 U.S. 454 (1981), holding that a court-ordered psychiatric examination violated the defendant’s Fifth Amendment rights when the defendant had not initiated the examination or put his mental capacity in dispute at trial. The Court acknowledged the later-decided case of Buchanan v. Kentucky, 483 U.S. 402 (1987), which held that where a defense expert who has examined the defendant testifies that the defendant lacks the requisite mental state to commit an offense, the prosecution may present psychiatric evidence in rebuttal. But the Kansas Court found Buchanan did not apply because under Kansas law voluntary intoxication is not a “mental disease or defect.” The State of Kansas then petitioned the United States Supreme Court for a writ of certiorari, which the Court granted.

The Supreme Court reversed distinguishing this case from Estelle, pointing out that the judge in Estelle had ordered a psychiatric examination to determine the defendant’s competency to stand trial. The prosecution then used the defendant’s statements from the examination during the sentencing phase of trial to demonstrate the defendant’s future dangerousness. Instead, the Supreme Court relied on Buchanan, finding that “mental status” is a much broader term than “mental disease or defect.” It held that mental status defenses include those based on expert opinion as to the defendant’s mens rea, that is, his mental capacity to commit the crime or ability to premeditate. The Court reasoned that to allow a defendant to present one-sided and potentially inaccurate evidence to the jury would undermine the adversarial process. On the other hand, permitting the prosecution to present rebuttal testimony harmonizes with the principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not permit him to refuse to answer related questions on cross-examination.

In this case, Cheever presented expert evidence of his voluntary intoxication to support his defense that he lacked the requisite intent to commit murder. The Supreme Court held that the prosecution may therefore offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence. The Court then reversed the Kansas Supreme Court decision, reinstated the death penalty and remanded the case for further proceedings.

Found in DMHL Volume 33 Issue 1

Ninth Circuit Holds Expert in Competency Evaluation May Testify As to Diminished Capacity Defense

United States v. Christian, _F.3d _, 2014 WL 1491887 (9th Cir. Apr. 17, 2014)

The Ninth Circuit Court of Appeals held on April 17, 2014, that the district court abused its discretion in refusing to permit an expert psychologist who had completed a competency evaluation of the defendant to testify in support of the defendant’s diminished capacity defense. The Court of Appeals determined that the district court had focused in error on the different legal standards related to competency to stand trial and diminished capacity rather than focusing on whether the substance of the expert’s testimony would have assisted the jury in deciding whether the defendant could form the requisite intent to commit the crimes charged.

Eric Leon Christian was convicted of two counts of sending threatening emails through interstate commerce. In May 2009, he first emailed the then Chief of the North Las Vegas Police Department asking for assistance in retrieving his car, which had been repossessed several months earlier. When the police chief responded that the police could not assist him, he sent an email containing several threats of violence, including “I will have to kill to retrieve my stolen and items [sic] if you do not return them” and “This communication is protected by the First Amendment and my undying declaration of ridding the earth of terrorist, [sic] who take away Constitutional Rights like YOU and the thief who has my car.” Christian also emailed threats to the then chief deputy city attorney and the chief prosecutor for North Las Vegas. He had requested copies of case files for two cases, neither of which had been prosecuted by the attorney or the city attorney’s office. Christian followed with an email threatening to “get a mob together and start a civil war” to kill a state court judge or the attorney himself unless the attorney “g[o]t the Writ of Habeas Corpus out of the way.”

In an unrelated state court proceeding, a psychologist had evaluated Christian’s competency to stand trial. The psychologist interviewed Christian for about an hour, following an outline designed to assess the core competencies related to a defendant’s ability to assist in his defense. Christian was hostile and uncooperative during the interview, and the psychologist assessed his competence level in all areas to be inadequate. He determined that Christian could not communicate relevant information to his attorney, make rational decisions about plea bargaining or asserting a mental illness defense, or behave appropriately in the courtroom. The psychologist diagnosed Christian with psychosis, not otherwise specified, probably delusional or paranoid; personality disorder, not otherwise specified; and probable learning disabilities, not otherwise specified. He also believed Christian was at high risk for homicidal behaviors and recommended his transfer to another facility for treatment and medication management.

Prior to trial on these charges, Christian gave notice of his intent to call the psychologist as an expert witness. His sole defense to the charges was diminished capacity in which he argued that he was incapable of forming the specific intent required by the charge, in this case, the specific intent to threaten. The police chief and attorney both testified for the prosecution that they had felt threatened by the emails and had taken precautions to protect themselves and others. The police chief also testified that he thought Christian was very upset and “very disturbed.” At the close of the government’s case, Christian’s attorney informed the district court that he intended to call the psychologist to testify regarding Christian’s diminished capacity defense. Without conducting a voir dire of the psychologist to determine the substance of his testimony or to permit counsel to proffer what his specific testimony would be, the district court determined that because the legal standards for competency to stand trial and the diminished capacity defense, which concerns “whether the defendant has the ability to attain the culpable state of mind which defines the crime,” the expert could not testify. Christian’s attorney then rested his case without presenting any other evidence or calling Christian to testify. He then asked for a diminished capacity instruction to the jury, which the district court denied because there was no evidence in the record that would support such an instruction. The jury convicted Christian on both counts.

Christian appealed to the Ninth Circuit Court of Appeals arguing that the district court had abused its discretion by refusing to let him introduce expert testimony in support of his diminished capacity defense and refusing his diminished capacity instruction. The Court of Appeals agreed with Christian on the district court’s refusal to admit the expert testimony, finding that the district court had focused exclusively on the different legal standards. Instead the court should have determined whether the testimony regarding he psychologist’s observations and diagnoses of Christian would have been relevant and helpful to the jury in evaluating his diminished capacity defense. The Court then decided that the failure to allow the expert testimony was not harmless error and a new trial was necessary. Because the district court had not conducted a voir dire of the expert, the district court on remand must first do so, assessing whether the testimony would in fact be relevant and would assist the jury in assessing the diminished capacity defense. Once the district court does this, and if it then determines the evidence is relevant and would be of assistance to the jury, it should allow the testimony.

The Ninth Circuit rejected Christian’s argument that the district court erred in not giving the jury a diminished capacity instruction. He had argued that the threats in the emails themselves were inherently irrational and were sufficient to warrant a diminished capacity instruction. He also argued that even the police chief believed him to be “very disturbed.” The Ninth Circuit found that these arguments alone were insufficient to require a diminished capacity instruction, but if there had been any evidence in the record, the instruction should have been given. The Appellate Court then held, however, that if any evidence on remand, expert or otherwise, supports a link between Christian’s mental illness and his ability to form the intent to threaten, then the instruction must be given. The Ninth Circuit vacated the conviction and remanded the case to the district court for a new trial.

Found in DMHL Volume 33 Issue 2

Indiana Supreme Court Finds Juvenile Mental Health Statute Conveys Use and Derivative Use Immunity during Therapeutic Polygraph Examination

State v. I.T. 4 N.E.3d 1139 (Ind. 2014)

The Indiana Supreme Court has held that the State’s Juvenile Mental Health Statute, Ind. Code § 31-23-2-2.5(b), that bars a minor’s statement to a mental health evaluator from being admitted into evidence to prove delinquency conveys both use and derivative use immunity to a minor in a later delinquency proceeding based on new charges. To hold otherwise, the Court held, would violate the youth’s Fifth Amendment privilege against self-incrimination.

I.T., a minor, admitted to felony child molesting that would have been a felony if he had been an adult. As a condition of probation, I.T. was ordered to undergo treatment for juveniles with sexual behavior problems, including polygraph examinations. During one of the exams, I.T. admitted to molesting two other children. As a result, I.T. was removed from his home and placed in juvenile detention, and then moved to a residential treatment program, the Sexually Traumatized Adolescents in Residential Treatment (START) program. The Department of Child Services and the police also investigated the minor’s admissions and interviewed one of the victims and I.T. The State then filed a new delinquency petition based on I.T.’s statements to his therapist. Under Indiana law, the juvenile court must approve the filing of a new petition. It initially did so, but I.T. moved to dismiss the petition on the grounds that the Juvenile Mental Health Statute barred the State’s evidence. The trial court agreed finding that absent the minor’s statements to the evaluator, it could find no other evidence to support a probable cause finding to support the petition. The court then gave the State ten days to file a new petition based upon independently obtained evidence, but the State instead appealed to the Court of Appeals.

The Court of Appeals found that the State has no authority to appeal a juvenile court’s order withdrawing its approval of the filing of a delinquency petition under state law and dismissed the appeal. The State then appealed to the Indiana Supreme Court and that Court granted certiorari and reviewed the case. The Supreme Court found that the trial court’s order withdrawing its approval of the filing of the petition was essentially an order suppressing evidence. When the ultimate effect of a trial court’s order is to preclude further prosecution, the Court held, the State may appeal that order even though there was no statute authorizing appeal in this situation.

On the merits, the State argued that the Juvenile Mental Health Statute prevents it from using I.T.’s actual statements at trial, but does not prevent it from using his statements to develop other evidence. The State conceded that it had no other evidence than that derived from the youth’s statements. Under this argument, the Statute would provide “use immunity” under the Fifth Amendment, but not “derivative use” immunity, meaning the State could use the statement to pursue and develop other evidence to prosecute the juvenile. The Supreme Court disagreed finding that the plain language of the statute conveys “use immunity” except in limited situations, such as a probation revocation hearing, a modification of disposition proceeding or a proceeding in which the juvenile raises the insanity defense. The Court then went on to find that “use immunity” alone cannot protect an individual’s Fifth Amendment right against selfincrimination unless it also conveys “derivative use” immunity. Otherwise investigators could still use compelled testimony to search out other evidence against the individual. The Court noted that the trial court had ordered I.T. into treatment as a condition of his probation and his remaining silent during that therapy could be found to violate his probation due to his failure to participate. To permit the filing of a new petition based upon compulsory participation in a therapeutic polygraph examination without any independent evidence to prove the violations would therefore run afoul of his constitutional privilege against self-incrimination.

The conveyance of derivative use immunity, the Court held, is also consistent with the purposes of the juvenile code. In enacting the Juvenile Mental Health Statute, the legislature found that well over half of minors detained had mental health or substance abuse problems. The legislative history also revealed that encouraging research-based programs can reduce recidivism and future involvement in the juvenile justice system, but that without open and honest communications between treatment providers and patients, the rehabilitative process would fail. The Court found that, as a result, the Statute must prevent the use of information obtained through the treatment process, including therapeutic polygraph examinations. The Supreme Court therefore held that a juvenile’s compelled statements cannot be used against him even in a probable cause affidavit and dismissed the State’s appeal.

Found in DMHL Volume 33 Issue 2

California Court Finds Unconstitutional Probation Condition Requiring Sex Offender to Waive Privilege against Self-Incrimination; PsychotherapistPatient Privilege Waiver Narrowed

People v. Friday, 225 Cal.App.4th 8, 170 Cal.Rptr.3d 38 (March 27, 2014)

Under California law, Penal Code § 1203.067, any person placed on probation for a registerable sex offense must waive his Fifth Amendment right against self-incrimination and submit to regular polygraph examinations, and must also waive his psychotherapist-patient privilege. The California Court of Appeals of the Sixth Appellate District held on March 27, 2014 that this statutory requirement that an offender waive his Fifth Amendment privilege against self-incrimination is overly broad and all-inclusive, and is therefore unconstitutional. The Court also held that the requirement that the offender waive the psychotherapist-patient privilege is only valid insofar as necessary to enable communication between the probation officer and psychotherapist as to the offender’s progress in treatment and his risk assessment scores.

Jeffrey David Allen Friday pled no contest to possession of child pornography that he had downloaded to his computer in August 2012. Information revealed that he had been downloading pornography since he was 14 or 15 years old and was 19 at the time of the offense with which he was charged. Because there was “no identifiable victim,” his level of risk as a future offender was not assessed. He had no prior convictions.

As part of a plea agreement, Friday agreed to spend six months in jail without early release. The trial court suspended imposition of the sentence and imposed a three-year term of probation, including six months in jail and mandatory participation in a sex offender management program as a condition of probation. The court required Friday to comply with the following probation conditions: (1) to waive any privilege against self-incrimination and participate in polygraph examinations, which must be part of the sex offender management program; (2) to waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the probation officer; (3) not to purchase or possess any pornographic or sexually explicit material as it relates to minors, as defined by the probation officer; (4) not to possess or use any data encryption technique program; and (5) not to frequent, be employed by, or engage in any business where pornographic materials are openly exhibited. Both the conditions requiring waiver of the privilege against self-incrimination and the psychotherapist-patient privilege are required under California law.

Friday appealed the conditions of probation arguing that the requirement that he waive his privilege against self-incrimination and the psychotherapist-patient privilege were overbroad and therefore in violation of his constitutional rights. He also challenged as overbroad the condition requiring him to participate in polygraph examinations. He further challenged as vague and lacking a requirement of scienter or knowledge of the conditions prohibiting purchase or possession of pornography, possession or use of data encryption, and frequenting businesses where pornography is exhibited. The Appellate Court agreed with most of his arguments.

The Appellate Court first reviewed the requirements of the California law, Penal Code § 1203.067, that were enacted in 2010 to amend the Sex Offender Punishment, Control, and Containment Act of 2006. The amendments mandate that any person placed on formal probation for any offense requiring registration as a sex offender after July 1, 2012 successfully complete a sex offender management program. Subdivision (b)(3) requires the offender to waive his privilege against self-incrimination and participate in polygraph examinations as part of the program. Subdivision (b)(4) requires the offender to waive any psychotherapist-patient privilege to enable the sex offender management professional to communicate with the supervising probation officer. Specifically, the sex offender management professional must communicate with the probation officer at least once a month about the offender’s progress in the program and dynamic risk assessment issues and share pertinent information with the certified polygraph examiner as required. The professional must also administer the State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO) in two forms, the “SARATSO dynamic tool” and the “SARATSO future violence tool,” and provide these scores to the probation officer. The probation officer must in turn provide the scores to the Department of Justice which makes the scores accessible to law enforcement on its website.

The statute also requires the California Sex Offender Management Board to publish certification requirements for sex offender management programs and professionals. All certified programs must implement a “Containment Model” of treatment, the goal of which is “community and victim safety.” In direct contradiction of the statute, the certification standards state that “invocation of the Fifth Amendment right not to incriminate oneself during a sexual history polygraph cannot legally result in revocation.” Also, polygraphs must be used to enhance the assessment process and to help monitor the sex offender’s deviant fantasies and external behaviors, including access to potential victims.

The Court then reviewed the language of the Fifth Amendment and its jurisprudence. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” Under Minnesota v. Murphy, 465 U.S. 420 (1984), the Fifth Amendment right may be asserted in any proceeding, civil or criminal or judicial, investigatory or adjudicatory, and protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or lead to other evidence that could be so used. The Fifth Amendment does not, however, provide an absolute right to remain silent. Under “use and derivative use immunity,” a witness may be compelled to testify provided the state does not use the testimony or any use derived from it in a criminal prosecution against the witness.

The Court then found that the probation condition in this case required Friday to waive any privilege against self-incrimination and forgo any claim of immunity from prosecution. The Court found that the waiver included any claim of immunity Friday might have from prosecution for any past acts, whether sexual offenses or otherwise, that might be revealed through treatment or polygraph examination, and not just those related to the offense for which he was convicted. Although the Court recognized that convicted felons lose some of those constitutional rights that law-abiding citizens enjoy, Murphy held that the privilege against self-incrimination applies to both prisoners and probationers.

The Court also recognized that the state may require probationers to answer questions as a condition of probation provided the statements are not used against the probationer in a criminal prosecution. The Court stated that the requirement that the offender waive his right to self-incrimination undoubtedly furthers the public safety when it allows a sex offender who admits to ongoing dangerous offenses that would otherwise go unreported, but the Court found that the scope of the waiver goes too far in this case because it would allow the prosecution of an offender for any offense. The Court found that the state could accomplish the same goal by requiring the offender to answer questions truthfully without requiring a waiver of the privilege. If necessary, immunity could then be given the offender.

The Court also pointed out that a secondary purpose of the program was treatment and rehabilitation of the offender. By encouraging the offender to reveal and discuss mental dysfunctions, but compelling him to disclose incriminating information that could be used against him in subsequent prosecutions would discourage honesty and openness between the offender and his therapist and therefore thwart the purpose of the program. The Court also declined to limit the parameters of the waiver, finding that the statutory language was plain on its face and it had no authority to so limit it other than to hold it unconstitutional.

The Court also found that parameters of the polygraph examinations were overly broad and no limits were placed on the questions that could be asked. Under California case law, the Court found that conditions of probation are invalid when they have (1) no relationship to the crime for which the offender was convicted, (2) relate to conduct which is not in itself criminal, and (3) require or forbid conduct not reasonably related to future criminality. The Court held that the questions that could be posed during polygraph examinations must reasonably relate to the offender’s successful completion of the sex offender management program; the crime for which the offender was convicted; or to criminal behavior, whether past or future.

The Court then reviewed the arguments related to waiver of the psychotherapist-patient privilege, finding that the privilege falls within the zone of privacy first recognized by the United States Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1983). In this case, the statutory language states that the purpose of the waiver is to enable communication between the sex offender management professional and the supervising probation officer. The Court held that it would narrowly construe the requirement that the offender waive the privilege only as necessary to allow the sex offender management professional to communicate with the probation officer and provide the SARATSO scores. The Court also permitted the probation officer to communicate the scores to the Department of Justice to make them available to law enforcement. But beyond those communications, the information would remain confidential and could not be provided to third parties or used to prosecute the offender.

Finally, the Court also agreed with the defendant that the requirements of scienter, or knowledge that the conditions of probation would be violated, must be added to the conditions. The Court found that the offender could inadvertently or unknowingly come into possession of pornographic materials, obtain encryption programs that are readily available, or enter into an establishment that openly displays pornographic materials. The Court determined that the term “frequent” was also imprecise. The Court therefore modified the remaining terms to require that the offender not knowingly purchase or possess pornographic material, not knowingly utilize encryption techniques, and not knowingly enter into an establishment that openly displays pornographic material.

Found in DMHL Volume 33 Issue 2

California Supreme Court Finds Evaluation and Certification Procedures Not Commitment Criteria under Mentally Disordered Offender Act

People v. Harrison, 57 Cal.App.4th 1211, 164 Cal.Rptr.3d 167, 312 P.3d 88 (2013)

The California Mentally Disordered Offender Act, Penal Code § 2962, requires a state prisoner either during or after parole to be civilly committed whenever a Department of Corrections and Rehabilitation chief psychiatrist certifies that he suffers from a serious mental disorder that is not or cannot be kept in remission without treatment, that the disorder was one of the causes of or an aggravating factor in the crime, that the prisoner has been in treatment for at least 90 days within the year preceding release on parole, and that the prisoner presents a substantial risk of physical harm to others as a result of the disorder. The California Supreme Court reversed the ruling of the Court of Appeals that held that the evaluation and certification procedures used to determine a prisoner is a mentally disordered offender also constitute the criteria which the state must prove to civilly commit him.

Kelvin Harrison had been convicted of battery with serious bodily injury in March 2009 and sentenced to two years in prison. At his parole release date in February 2010, Harrison was required to accept treatment as a mentally disordered offender and in April 2010, the Board of Parole Hearings upheld that determination. Harrison then petitioned for a hearing in superior court challenging the Board’s determination. At trial, a forensic psychologist testified that he had interviewed Harrison at the request of the Parole Board in March 2010, and had reviewed his mentally disordered offender evaluations, his psychiatric records and prison file. Harrison had been discharged from the military in 1983 with a diagnosis of schizophrenia and depression. The psychologist testified that he diagnosed Harrison as suffering from schizophrenia, paranoia type, which impaired his thoughts and perceptions of reality and grossly impaired his behavior. Harrison displayed paranoid and grandiose delusions that San Luis Obispo County officials and law enforcement were conspiring against him and trying to do him harm. He further testified that Harrison’s schizophrenia was an aggravating factor in his crime. At the time of the offense, Harrison believed that grapes in a bag on the ground were filled with blood, interpreting this to mean his victim intended to harm him. He then struck the victim several times with a pipe. Harrison had also received more than 90 days of treatment within the prior year, both in prison and at Patton State Hospital. The psychologist also testified that Harrison lacked insight into his disorder ant that he was prone to misinterpret environmental clues suggesting he was at physical risk. As a result, Harrison was unable to control his behavior, unlikely to seek treatment, and therefore presented an ongoing risk of committing violent crime. After hearing the evidence presented, the superior court found Harrison met the criteria for a mentally disordered offender and committed him to the Department of State Hospitals for one year.

The California Mentally Disordered Offender Act was enacted in 1985 and requires a prisoner convicted of certain felonies related to a severe mental disorder who continues to pose a danger to the public to receive appropriate treatment until the disorder can be kept in remission. The purpose of the Act is to protect the public while treating severely mentally ill offenders. The initial commitment is a condition of parole. Prior to release on parole, the person in charge of treating the prisoner and a psychiatrist from the Department of State Hospitals must evaluate the prisoner. If the prisoner is at the time being treated in a state hospital, the person treating the prisoner and a psychiatrist from the Department of Corrections and Rehabilitation must examine him. These evaluators must find, and a chief psychiatrist of the Department of Corrections and Rehabilitation must certify, that the prisoner has a severe mental disorder, that the disorder is not in remission or cannot be kept in remission without treatment, that the disorder was a cause of or an aggravating factor in a crime for which he was sentenced, that the prisoner had been in treatment for 90 days or more in the year preceding his release on parole, and the prisoner represents a substantial danger of physical harm to others because of the disorder. If the professionals conducting the evaluation disagree, the Board of Parole Hearings must order a further examination by two independent professionals. A prisoner who wants to challenge his certification may request a hearing before the Board of Parole Hearings. If he disagrees with this decision, the prisoner may petition the superior court for a determination as to whether he met the statutory criteria as of the date of the Parole Board hearing. The burden is on the state to prove the statutory criteria beyond a reasonable doubt.

Harrison appealed the commitment decision to the Court of Appeals arguing that the statutory criteria also included the evaluation and certification procedures because they were contained in the same statute, and the state had failed to present evidence that they had been performed. The Court of Appeals agreed and ordered his release on the grounds that there was no evidence in the record that Harrison had been evaluated and certified by the various staff specified in the statute. The Court of Appeals held that the criteria required to certify a prisoner as a mentally disordered offender included not only the substantive criteria used by the mental health professionals to determine whether he was such an offender, but also the procedures by which that determination was made.

The State appealed that decision to the California Supreme Court. The Supreme Court, by contrast, reviewed the legislative history and found that the legislature had clearly distinguished between the substantive criteria used by the specified mental health professionals to determine whether a prisoner is a mentally disordered offender from the process by which the determination was to be made. In addition, the Department of Corrections and Rehabilitation and the Department of State Hospitals, the two state agencies responsible for implementing the law, both had adopted implementing regulations setting out the criteria for determining which offenders are mentally disordered offenders, specifying only the substantive criteria, and not the procedures by which the determination is made. The Supreme Court therefore found that an administrative agency’s interpretation of a statute governing its powers and duties is entitled to great weight. The Court held that this interpretation also comports with the purpose of the statute. It said that the public’s interest in safety and the prisoner’s need for treatment are not furthered by having the trier of fact determine whether a particular certification was performed by a specified professional or at a particular place.

The Supreme Court compared this Act with the Sexually Violent Predator Act, Welf. & Inst. Code, § 6600 et seq., another involuntary commitment scheme sharing the same purpose. Before an SVP commitment petition may be filed two evaluators must agree that the person has a diagnosed mental disorder and is likely to engage in acts of sexual violence without appropriate treatment. The Court stated that in these cases the State does not need to prove this concurrence to the trier of fact. Rather it is a collateral procedural condition designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so.

The Court also reasoned that requiring the State to prove only that a chief psychiatrist certified the prisoner as presenting substantial harm to others, as Harrison argued, and not that the prisoner actually did meet these requirements would raise constitutional concerns. It stated that the equal protection clause of the federal and state constitutions would require proof of present dangerousness. The Supreme Court also found that simply because the criteria only contains the substantive provisions of the statute and not the procedural conditions, the Court of Appeals fear that the Department of Corrections would not follow them and the prisoner could not then challenge compliance with them was not possible. A defendant in any case may raise similar procedural challenges before a trial court. These include objections to venue or speedy trial rights. If the prisoner raises the flaw prior to trial, he may obtain the relief needed without resort to a full trial. Here, however, Harrison did not object to any defect in the procedures underlying the evaluation process and therefore waived them. Absent an objection, the State does not have an obligation to prove compliance with the underlying procedures.

The Supreme Court therefore held that the Mentally Disabled Offender statute only requires that the prisoner meet the substantive criteria that must be proved beyond a reasonable doubt. The statute does not require that compliance with the evaluation and certification procedures be proved to the trier of fact. That becomes a question of law to be addressed by the court upon the prisoners’ objection.

Found in DMHL Volume 33 Issue 2

Washington Supreme Court Holds Insanity Acquittee Must Be Found Dangerous before Conditional Release May Be Revoked; Preponderance of Evidence Is Appropriate Standard

State v. Bao Dinh Dang, 178 Wash.2d 868, 312 P.3d 30 (2013)

The Washington Supreme Court has upheld the trial court’s revocation of an insanity acquittee’s conditional release based upon its finding of dangerousness. In so doing, it reversed the decision of the Washington Court of Appeals holding that an acquittee’s failure to adhere to the terms and conditions of his conditional release is sufficient alone to justify revocation. The Supreme Court also determined that a preponderance of the evidence standard of proof is sufficient to support revocation. Finally, the Court held that the trial court must find good cause to admit both documentary and testimonial hearsay evidence in a limited due process rights hearing such as conditional release revocation.

In November 2006, Bao Dinh Dang walked up to a gas pump at a Chevron station in Seattle, set fire to a newspaper, and attempted to pump gas in order to ignite the gas supply. The station attendant successfully knocked the newspaper out of Dang’s hand with a windowwashing squeegee while a customer called the police. Dang was arrested and charged with attempted arson. At trial, Dang raised the insanity defense. The trial court acquitted Dang by reason of insanity, and in the same order, released him on conditional release. As part of his conditional release, the court required Dang to report to a Department of Corrections community corrections officer, live with his mother in Washington, not possess explosives, break additional laws, or drink alcohol, and seek psychiatric treatment at Harborview Medical Center and follow all treatment recommendations. Dang’s conditional release was further contingent on his mental illness being in a state of remission and on his having no significant deterioration in his mental condition.

Dang’s conditional release proceeded without incident until the summer of 2008 when the trial court permitted him to travel to Vietnam for one month. Following his return from Vietnam, Dang’s community corrections officer and Harborview case manager noticed he was exhibiting signs of depression and paranoia. Dang’s case manager reported that Dang stated he was not taking medication and felt like setting a gas station on fire. He told his community corrections officer he wanted to “do something big.” The corrections officer and case manager also noticed that Dang was experiencing delusions concerning his mother’s power and control over him. When Dang was taken to Harborview Mental Health Services, he recanted his statements and was released.

The State then moved the court for a bench warrant for Dang’s arrest and commitment pending a hearing on his conditional release. The court issued the warrant, ordering Dang’s commitment to Washington’s Western State Hospital for evaluation and treatment. During this period, several reports were issued concerning Dang’s mental health outlining his treatment and recommending he not be released due to his risk for future violence and criminal behavior.

After extensive evaluations, the State moved to revoke Dang’s conditional release. At the hearing, the court heard testimony from the community corrections officer, case manager, a Department of Social and Health Services psychologist, Dang’s mother and Dang. Several of the witnesses testified that his mental health had deteriorated and he should remain hospitalized. The trial court also permitted Dang’s case worker and a community corrections officer to testify about statements made by Harborview Medical Center’s mental health providers about his desire to blow up a gas station. Following the hearing, the court revoked Dang’s conditional release and while his appeal was pending, issued findings of fact and conclusions of law finding, among other things, that Dang’s mental disease had not remained in a state of remission and his release would present a substantial danger to others and jeopardize public safety.

The Court of Appeals affirmed the revocation of Dang’s conditional release based on Dang’s non-adherence to the terms and conditions of his release but found a specific finding of dangerousness was not required. That Court also determined that preponderance of the evidence was the appropriate standard of proof in a conditional release revocation hearing. The Court of Appeals also held that in cases limiting due process rights to confront and cross-examine witnesses, such as parole revocation hearings, only documentary hearsay evidence was prohibited but hearsay could be admitted through live testimony.

The Washington Supreme Court affirmed the Court of Appeals, holding that Dang’s conditional release was properly revoked by the trial court based upon its finding of his actual dangerousness. But the Supreme Court found that failure to adhere to the terms and conditions of conditional release alone are not sufficient to revoke conditional release. A specific finding of dangerousness before an acquittee may be confined is required. In so holding, the Court relied on prior United States Supreme Court cases, including O’Connor v. Donaldson, 422 U.S. 563 (1975), that held a finding of mental illness alone is not sufficient to confine a person against his will if he is not dangerous to anyone and can live safely in freedom. Similarly, Foucha v. Louisiana, 504 U.S. 71 (1992), held that an insanity acquitted may continue to be confined as long as he is both mentally ill and dangerous, but no longer. The Court reasoned that the same dangerousness criteria that applies in the context of civil commitment and continued commitment of insanity acquittees should also apply in the context of conditional release revocation.

The Supreme Court next determined that a preponderance of the evidence standard is appropriate in conditional release hearings even though Dang argued that a clear, cogent and convincing evidentiary standard should be applied. The court found that there are significant differences between civil commitment and commitment following an insanity acquittal. In Jones v. United States, 463 U.S. 354 (1983), the United States Supreme Court found that the insanity acquittee himself raises the insanity defense and therefore a diminished concern for a risk of error in confining the acquittee exists. The criminal conduct which the acquittee acknowledges is also not within the range of generally accepted conduct. Because there is less risk of error in confining an individual in the insanity acquittee context than in the civil commitment context, the lesser standard of proof of preponderance of the evidence is sufficient.

In reviewing the issue of whether hearsay evidence may be introduced at a conditional release revocation hearing, the Court considered various cases involving limited due process hearings where there was good cause to limit the individual’s due process rights to confront and cross-examine witnesses, such as Morrissey v. Brewer, 408 U.S. 471 (1972), involving parole revocation. Other similar cases involved sentencing modification hearings due to violations of community custody terms and conditions, and revocation of special sex offender sentencing alternatives. Similarly, a trial court’s revocation of an insanity acquittee’s conditional release implicates a conditional liberty interest dependent on the observance of special terms and conditions. Under these situations, hearsay evidence may be considered if the trial court finds good cause to forgo live testimony.

In this case, the trial court permitted Dang’s case manager and community corrections officer to testify about statements made by other Harborview mental health providers about his desire to blow up a gas station. The trial court did not engage in a good cause analysis of the difficulty and expense of procuring live witnesses or the reliability of the evidence, which the Supreme Court found was error. The Court, however, found that this was harmless error because there was enough direct evidence in the record to support its finding of dangerousness. Nonetheless, the Supreme Court found no distinction between documentary evidence and live testimony evidence as the court of Appeals did, and held in both instances that the trial court must articulate a good faith basis for considering either type of evidence.

Found in DMHL Volume 33 Issue 2

Fourth Amendment Liberty Interest During Mental Health Crisis

Exigent circumstances exception allows warrantless entry and seizures when officers have reasonable basis to believe person poses imminent danger of harm to self

Sutterfield v. City of Milwaukee, 751 F.3d 542 (7th Cir. 2014)

Krysta Sutterfield sued the City of Milwaukee and several of its police officers after officers forcibly entered her home to effectuate an emergency detention for purposes of a mental health evaluation, opened a locked container, and seized for safekeeping the gun and concealed-carry licenses they found inside. Sutterfield contended that the officers in question violated her rights under the Second, Fourth, and Fourteenth Amendments. On appeal from the federal district court for the Eastern District of Wisconsin, the Seventh Circuit held that the warrantless entry into Sutterfield's home was justified under the exigent circumstances exception to the Fourth Amendment's warrant requirement, as the officers had a reasonable basis to believe that Sutterfield posed an imminent danger of harm to herself. The Seventh Court ultimately affirmed the lower court’s grant of summary judgment to the defendants on the basis of qualified immunity, even assuming that the search of a closed container for a gun, and the ensuing seizure of that gun, violated Sutterfield's Fourth Amendment rights.

On appeal, only the liability of the individual officers was at issue. Sutterfield argued that the police officers' warrantless entry into her home, the seizure of her person, the search of the locked compact disc case, and the seizure of the revolver and the concealed carry licenses discovered therein all violated her rights under the Fourth and Fourteenth Amendments, and that the seizure of the gun and licenses also violated her rights under the Second Amendment. She further contended that because these rights were clearly established (in her view), the officers did not enjoy qualified immunity from suit. The two primary competing interests at stake in the case were Sutterfield’s privacy— specifically the right to be left alone in her home—and the important role police play in safeguarding individuals from dangers posed to themselves and others.

The Seventh Circuit noted that the Milwaukee police had been contacted by Sutterfield's physician with a concern that she might harm herself, and that Wisconsin law set forth an emergency detention procedure to deal with that sort of situation. Pursuant to section 51.15, a statement authorizing Sutterfield's emergency detention was prepared, and police executed that statement when they entered Sutterfield's home and took her into their custody. There was no suggestion that the officers acted for any reason other than to protect Sutterfield from harm. The Seventh Circuit also noted that their task was made more complicated by (1) the lack of information presented by the parties as to alternatives other than emergency detention, and (2) a lack of clarity in Fourth Amendment law as to the appropriate framework for examining warrantless intrusions motivated by purposes other than law-enforcement and evidence-gathering. Ultimately, however, the Seventh Circuit held that warrantless entry into appellant's home could not be sustained on the basis of the community caretaker doctrine, but was justified under the exigent circumstances exception to the Fourth Amendment's warrant requirement, as the officers had a reasonable basis to believe that appellant posed an imminent danger of harm to herself.

Found in DMHL Volume 34 Issue 1

Sexually Violent Person

No due process violation in delay of over two years (due to prison sentence in unrelated matters) between finding that defendant is a sexually violent person and the start of his confinement based on that finding

Gilbert v. McCullough, 776 F.3d 487 (7th Cir. 2015)

Carl C. Gilbert, Jr. had his parole revoked twice after he violated the conditions of his parole. These violations occurred while a civil commitment petition was pending against him, but because Gilbert was sentenced to prison after his second parole revocation, he served that sentence before being transferred to a Wisconsin Department of Health Services ("DHS") facility as a civilly committed person (a jury having found that he qualified as a sexually violent person). Gilbert argued on habeas review that his commitment was contrary to the Supreme Court's decision in Foucha v. Louisiana, 504 U.S. 71 (1992) because the interposition of his prison term caused a delay between his commitment verdict and his entry in DHS care, meaning that there was no ”current" determination that he was a sexually violent person when he entered DHS care. After the Supreme Court of Wisconsin rejected Gilbert’s due process argument, both the federal district court for the Eastern District of Wisconsin and the Court of Appeals for the Seventh Circuit expressed concern regarding the delay, but ultimately held that the decision to reject Gilbert’s due process claim did not qualify as “contrary to or an unreasonable application of clearly established United States Supreme Court precedent.”

Although the Seventh Circuit acknowledged that “[w]ere the question presented to us as an initial question of federal constitutional law, we might reach a different result” and that the “two-and-a-half year delay between the order of commitment and Gilbert's entry into DHS care is certainly a concern for us,” they found themselves “constrained…by the narrow scope of habeas review.” In distinguishing Foucha, the Seventh Circuit found that, unlike in that case, there was “no suggestion that Gilbert no longer suffers from a mental disorder.” Further, there was no ruling or even intimation that “Gilbert could be committed, or that his commitment could continue, if he no longer had a mental disorder,” which would have been a holding contrary to Foucha.

Found in DMHL Volume 34 Issue 1

Competency to Stand Trial/Restoration of Competency

Sell criteria for involuntary treatment to restore competency apply to sentencing phase

United States v. Cruz, 757 F.3d 372 (3d Cir. 2014) cert. denied, No. 14-7512, 2015 WL 133477 (U.S. Jan. 12, 2015)

Cruz was arrested and convicted on two counts of threatening a federal law enforcement officer. After the court received the pre-sentence investigation report, the prosecution successfully moved for a determination of competency. A Federal Bureau of Prisons forensic psychologist concluded that Cruz was mentally incompetent and suffered from schizophrenic disorder, bipolar type. After a hearing, the court concluded that Cruz was incompetent and found that he could not proceed with sentencing.

A second report concurred with the diagnosis, noted Cruz’s ongoing refusal to take antipsychotic medication recommended by BOP personnel, concluded that without medication Cruz would remain incompetent, and stated that “there is a substantial probability that [his] competency can be restored with a period of forced medication.” The prosecution obtained an order authorizing the BOP to medicate Cruz against his will.

On appeal, the issue was whether “the Government, pursuant to the Supreme Court's decision in Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), can have a sufficiently important interest in forcibly medicating a defendant to restore his mental competency and render him fit to proceed with sentencing.” In affirming the decision of the federal district court, the Third Circuit held that the government could have a sufficiently important interest in sentencing a defendant for serious crimes to justify involuntary medication. Relying on the stated concern in Sell that “memories may fade or evidence may be lost,” the Third Circuit held the same concern applies with equal force in the sentencing context (the guilt phase was at issue in Sell) because it means that it may be “difficult or impossible to sentence a defendant who regains competence after years of commitment.” Additionally, while it may be cognizable that some crimes are not “serious” enough to justify forcible medication at the sentencing stage, Cruz’s offense was certainly “serious” enough.

The United States Supreme Court denied certiorari in January 2015.

Found in DMHL Volume 34 Issue 1

Involuntary Psychiatric Hospitalization of Minor

Parents’ claim that doctors’ “medical hold” keeping child in hospital over their objection violated their right to familial association survives motion to dismiss.

Thomas v. Kaven, 765 F.3d 1183 (10th Cir. 2014)

Legina and Todd Thomas, parents of M.T., a twelve-year-old girl at the time of the events at issue in this case, placed M.T. in the University of New Mexico Children's Psychiatric Center after she revealed suicidal tendencies during a police investigation of a potential sexual assault. She was diagnosed as exhibiting several serious psychiatric problems and her doctors recommended a prescription of psychotropic drugs. The Thomases resisted both the diagnoses and the doctors’ recommendations. M.T. was evaluated for several weeks until Mrs. Thomas decided to remove her from the hospital. Concerned about her safety, M.T.'s doctors and therapist placed her on a medical hold and initiated an involuntary residential treatment petition in state court. After a seven-day hold, M.T. was released before the involuntary commitment proceedings began.

The Thomases claimed that when doctors and the hospital placed a medical hold on M.T. and filed a petition for involuntary residential treatment they violated (1) their constitutional right to direct M.T.'s medical care and (2) their right to familial association. The defendants moved to dismiss, asserting absolute and qualified immunity. The district court granted the motion on qualified immunity grounds, and the Thomases appealed. The Court of Appeals for the 10th Circuit affirmed the decision of the district court with regard to the alleged violation of the right to direct M.T.’s medical care. In regard to the violation of the right to familial association, however, the Court held that the Thomases had stated a claim eligible for relief and remanded the case for further proceedings. As the case had come up as an appeal of a motion to dismiss (not a motion for summary judgment), the decision was made on the basis of the pleadings alone, and the defendants could not “establish as a matter of law at this point in the proceedings that the relevant state interests outweighed the Thomases' interest in their right to familial association.”

Found in DMHL Volume 34 Issue 1

Mental Condition as Mitigating Evidence in Criminal Sentencing

Voluntary intoxication instruction upheld

Sprouse v. Stephens, 748 F.3d 609 (5th Cir.) cert. denied, 135 S. Ct. 477, 190 L. Ed. 2d 362 (2014)

After being convicted of capital murder of a police officer, petitioner Sprouse was sentenced to death. On state habeas review, Sprouse challenged jury instructions that “effectively precluded the jury from considering voluntary intoxication as mitigating evidence.” Raising the issue again on federal habeas review, Sprouse contended that the state court “unreasonably applied” Penry v. Lynaugh (“Penry I ”), 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), and Penry v. Johnson (“Penry II ”), 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). The Fifth Circuit affirmed the federal district court’s denial of Sprouse’s habeas petition.

At the close of the punishment phase of the trial, the jury received three general instructions regarding the proper treatment of mitigating evidence. First, what constituted mitigating evidence, second that “neither intoxication nor temporary insanity of mind caused by intoxication constitute [sic ] a defense to the commission of a crime,” and a final instruction on temporary insanity. On appeal to the Fifth Circuit, Sprouse argued that the voluntary-intoxication instruction (instruction two) “unconstitutionally limited the jury's ability to consider mitigating evidence.” The Fifth Circuit affirmed the district court’s denial of Sprouse’s federal habeas petition, holding that neither the state court nor the federal district court were unreasonable in their application of Supreme Court precedent. Further, the Fifth Circuit stated that “the fact that Sprouse perceives a negative inference in one sentence of his jury charge does not demonstrate that his jury was confused about, and precluded from following, the comprehensive and catch-all affirmative command to the jury to consider mitigation circumstances.”

In November 2014, the United States Supreme Court denied certiorari.

Found in DMHL Volume 34 Issue 1

Treatment of Mentally Ill Individuals in Custodial Settings: Liberty Interest Deprivation and Eighth Amendment

Claim of prisoner with mental illness that liberty deprivations from facility’s Behavior Action Plans were imposed without due process and resulted in Eighth Amendment violations raises genuine issues of fact and survives motion for summary judgment

Townsend v. Cooper, 759 F.3d 678 (7th Cir. 2014)

Townsend, a prisoner at the Green Bay Correctional Institution (GBCI), sued GBCI officials for civil rights violations. Townsend suffered from significant mental illness and engaged in disruptive behavior, including suicide attempts and fighting. Townsend was repeatedly subjected to observation placements and Behavioral Action Plans (BAPs). Vacating the judgment below, the Seventh Circuit held that Townsend had raised genuine issues of material fact regarding whether the imposition of the BAP violated his due process rights by imposing an atypical and significant hardship compared to the ordinary incidents of prison life, without appropriate notice and an opportunity to be heard and whether the BAP imposed conditions of confinement that denied Townsend the minimal civilized measures of life’s necessities.

To succeed on his Fourteenth Amendment due process claim, Townsend was required to “establish that he ha[d] a liberty interest in not being placed in the [BAP]—as it was administered to him—without procedural protections,” noting that it was “undisputed that he received no procedural due process, so the claim turns on whether he can establish a liberty interest.” Prisoners have a liberty interest, guaranteed by the Fourteenth Amendment, in “avoiding transfer to more restrictive prison conditions if those conditions result in an atypical and significant hardship when compared to the ordinary incidents of prison life.” In order to succeed on an Eighth Amendment claim, a prisoner must show that the BAP “imposed conditions that denied him the minimal civilized measure of life's necessities” and that defendants “acted in disregard of a substantial risk of serious harm to him.”

Found in DMHL Volume 34 Issue 1

Treatment of Mentally Ill Individuals in Custodial Settings: Custodial Interrogation

Police conduct with 18-year-old with Intellectual Disability is coercive under “totality of the circumstances”, rendering confession inadmissible

United States v. Preston, 751 F.3d 1008, 1010 (9th Cir. 2014)

The 9th Circuit, sitting en banc, held that under the totality of the circumstances, including the eighteen-year-old defendant's intellectual disability, a confession that resulted from police questioning was involuntarily given and should not have been admitted at trial. In reaching this decision, the court overruled Derrick v. Peterson, 924 F.2d 813 (9th Cir.1991) as well as subsequent cases relying on it, which had held that individual characteristics are “relevant to our due process inquiry only if we first conclude that the police's conduct was coercive.”

The court divided its initial inquiry into two categories—defendant’s reduced mental capacity and the techniques used during the interrogation. As to the first category, the court found that the intellectually impaired have a demonstrated increased vulnerability to coercion. The court also relied on scholarly assessment of common traits of intellectually disabled persons that may make them more susceptible to coercive interrogation techniques and then used those traits to inform their analysis of the techniques used to question the defendant, noting that “[A]s interrogators have turned to more subtle forms of psychological persuasion, and away from physical coercion, courts have found the mental condition of the defendant a more significant factor in the ‘voluntariness' calculus.”

The court based its totality of the circumstances inquiry into the coercive nature of the interrogation on several factors: (1) defendant's severe intellectual impairment, (2) repetitive questioning and the threats that questioning would continue without end, (3) pressure placed on the defendant to adopt certain responses, (4) the use of alternative questions that assumed defendant’s culpability, (5) the officers' multiple deceptions about how the statement would be used, (6) suggestive questioning that provided details of the alleged crime, and (7) false promises of leniency and confidentiality.

Found in DMHL Volume 34 Issue 1

Treatment of Mentally Ill Individuals in Custodial Settings: Eighth Amendment

Failure to follow national suicide screening prevention standards with prisoner who later commits suicide presents colorable eighth amendment claim that survives summary judgment motion

Barkes v. First Corr. Med., Inc., 766 F.3d 307 (3d Cir. 2014)

After Christopher Barkes committed suicide while being held at a correctional facility in Delaware, his wife and children brought a § 1983 suit against the commissioner of the state department of corrections (“DOC”), the warden, and the private company with whom the DOC contracted to provided medical services to the prison (“FCM”) alleging violations of the Eighth Amendment of the federal Constitution.

When Barkes was arrested in November, 2004, he underwent a medical intake screening procedure conducted by a licensed nurse employed by LCM, the private contractor hired to provide medical services to the prison. The procedure involved (1) a self-report intake form that included questions about suicidal ideation, (2) screening for seventeen suicide risk factors, and (3) a standard medical intake form with questions about “altered mental status ... or abnormal conduct.” Barkes indicated that he had attempted suicide in 2003, but made no mention of three other attempts (one in 1997 and two in 2004) and checked only two of the seventeen suicide screening factors (eight were required to initiate suicide prevention measures). Finally, the licensed practical nurse who conducted the evaluation reported that Barkes showed no signs of either altered mental status or abnormal conduct. Barkes did, however, place a call to his wife that evening and express his intention to kill himself, but his wife did not inform the DOC. The next morning, Barkes was observed lying on his bed in his cell at 10:45, 10:50, and 11:00 a.m. When an officer came to deliver his lunch at 11:35 a.m., Barkes had hanged himself with a bed sheet.

The Third Circuit held (1) for purposes of determining whether the warden and DOC commissioner were entitled to qualified immunity, Barkes’ constitutional right to “proper implementation of adequate suicide prevention tools” was clearly established at the time of his suicide; (2) that summary judgment was inappropriate given evidence that “FCM's policies and procedures in place at the time of Barkes's suicide created an unreasonable risk of a constitutional deprivation;” and (3) that a reasonable jury could have found that Barkes’ suicide was caused by the DOC’s failure to supervise FCM. The second holding was based on evidence of the DOC’s awareness that “FCM's suicide prevention screening practices were not in compliance with [National Commission on Correctional Health Care] standards, as required by their contract with the DOC.” The Third Circuit reached its third holding despite the fact that Barkes did not self-report any suicidal ideation or exhibit any suicidal behavior because, in the court’s view, “had Appellants properly supervised FCM and ensured compliance with the contract, Barkes's answers during his screening would have resulted in additional preventive measures being taken.”

Found in DMHL Volume 34 Issue 1

Sexually Dangerous Offender

Establishing personal jurisdiction over defendant for civil commitment hearing does not require service of summons under Rule 4

United States v. Perez, 752 F.3d 398 (4th Cir. 2014)

Jose De La Luz Perez appealed the determination of the district court that he was a "sexually dangerous person” under the Adam Walsh Child Protection and Safety Act of 2006 (the “Act”). On appeal, Perez asked the Fourth Circuit to vacate the civil commitment order, contending that the district court lacked personal jurisdiction because the government failed to serve him with a summons pursuant to Rule 4 of the Federal Rules of Civil Procedure. The Fourth Circuit affirmed the order, holding that although the Federal Rules of Civil Procedure are broadly applicable in civil commitment proceedings, that does not mean that they “cannot be displaced by specific procedural provisions included in the Act.” The central question on appeal was whether the Act required the government “to serve a summons pursuant to Rule 4 [of the Federal Rules of Civil Procedure] upon a respondent in federal custody despite the obvious differences between the initiation of civil commitment proceedings under § 4248 and a typical civil action.”

The Fourth Circuit pointed to a “streamlined procedure for initiating commitment proceedings against individuals in BOP custody” contained in the statutory language that served to supplant the usual summons requirements of Rule 4. Apart from the view that the text of the statute is sufficient to displace the summons requirement of Rule 4, the Fourth Circuit pointed out that while “physical custody is no longer necessary to endow a civil court with personal jurisdiction over a defendant, it is clearly sufficient to do so," and so the fact that the government “has physical custody over the respondent in § 4248 civil commitment proceedings obviates the need for a summons.”

Found in DMHL Volume 34 Issue 1

NGI

Delay in commitment proceedings justified by acquittee’s misconduct

United States v. Conrad, 776 F.3d 253 (4th Cir. 2015).

Defendant-appellant Samuel Robert Conrad III, currently serving an eight-year term of imprisonment, appealed both the district court’s denial of his motion to dismiss commitment proceedings arising from a 2007 insanity acquittal (arising from a separate set of offenses) and the district court’s order to delay those commitment proceedings until he is released from prison. At issue for the Fourth Circuit on Appeal was 18 U.S.C. § 4243, which provides the “procedural framework for the evaluation and commitment of defendants adjudicated NGI.”

Initially, Conrad’s § 4243 hearing following the 2007 acquittal resulted in the district court’s imposition of a conditional release, which was subsequently revoked when Conrad was charged by the Commonwealth of Virginia for the murder of his sister-inlaw. Conrad appealed the revocation of his conditional release, and the order originally granting it was vacated by the Fourth Circuit in 2010 based on that court’s determination that the language of § 4243 “allows only two forms of disposition--unconditional release or indefinite commitment; it does not authorize conditional release.” A new hearing was thus required under § 4243(e), but never actually took place because in 2013 Conrad was charged with possession of a firearm by a convicted felon and conspiracy to distribute controlled substances—charges which lead to his current incarceration. When Conrad moved to dismiss the pending § 4243 commitment proceedings arising from the prior case (arguing that § 4243 was no longer applicable to him because he could not pose a threat to public safety while incarcerated), the district court denied his motion, ordering instead that a delay of the proceedings until Conrad completes his current term of imprisonment would best serve the statute's purposes.”

The Fourth Circuit affirmed the denial of Conrad’s motion to dismiss as well as the order delaying the § 4243 proceedings. In affirming the denial of the motion to dismiss, the Fourth Circuit held that § 4243 “applies on its face to NGI acquittees” and “unambiguously requires a hearing to determine commitment or release,” and so in the absence of any “provision permitting nullification of the statute's applicability through subsequent commission of crime and incarceration,” the district court was within its discretion to refuse dismissal of the § 4243 hearing. Further, the Fourth Circuit held that the delay ordered by the district court was permissible, confronting the timing requirement of § 4243(c) which “requires a hearing within 40 days of the NGI verdict, which, under a separate provision, may be extended only by 30 days, and only by the director of the facility to which the acquittee has been committed.” The Fourth Circuit stated that both parties agreed that there is at least one implicit exception to the 40-day requirement of § 4243(c) and cited to other opinions in which a delay greater than 40 days was allowed and found to be justified due to “circumstances outside of the acquittee's control--such as a commitment facility's inadequate resources to promptly conduct the evaluation.” Given this precedent, the Fourth Circuit stated that a delay would “would seem even more fitting” in circumstances within the acquittee’s control and held that because Conrad “has been the principal architect of the delay he faces, and such delay is reasonable under the statute when the acquittee is serving a term of incarceration” the district court did not err in delaying the proceeding.

Found in DMHL Volume 34 Issue 1

Sexually Dangerous Offenders

Period in confinement pending civil commitment determination not applicable as “credit” toward time served for criminal sentence

United States v. Hass, 575 Fed. Appx. 139 (4th Cir. 2014) (unpublished per curiam opinion)

In appealing the district court’s judgment revoking his supervised release and sentencing him to eighteen months in prison followed by an additional thirty months of supervised release, defendant Johnny Hass argued that the district court erred in fashioning his sentence by refusing to factor in time he spent in Bureau of Prisons (“BOP”) custody awaiting civil commitment proceedings. After the Government certified that Hass qualified as a sexually dangerous person under the Adam Walsh Child Protection and Child Safety Act of 2006, the court stayed his release pending the outcome of a hearing to determine whether Hass was sexually dangerous. After his supervised release was revoked and a new prison sentence imposed by the district court, Hass argued on appeal to the Fourth Circuit that he should have been granted credit for time served equal to the time he spent in BOP custody awaiting his civil commitment hearing.

Given the deference due to the district court, the Fourth Circuit stated it would only reverse if the sentence imposed was “plainly unreasonable.” A sentence can be either procedurally or substantively unreasonable. Procedural reasonability is determined by examining the district court’s consideration of “applicable 18 U.S.C. § 3553(a) (2012) factors and the policy statements contained in Chapter Seven of the Guidelines.” Substantive reasonability is determined by examining whether the district court stated a “proper basis for concluding that the defendant should receive the sentence imposed.”

The Fourth Circuit rejected Hass’ claim that failing to give him credit for his prior time spent in BOP custody was a basis for plain error, stating that “it is unthinkable to lend support to any judicial decision which permits the establishment of a line of credit for future crimes.” Because Hass “was being sentenced for violating the terms of his supervised release” and cited “no precedent to support his claim that over-service of a prior sentence is even a proper consideration for a court when imposing a revocation sentence,” the Fourth Circuit affirmed the sentence imposed by the district court.

Found in DMHL Volume 34 Issue 1

Sexually Violent Predators

Burden of proof on Commonwealth to prove in annual review hearing that continued involuntary confinement necessary

Gibson v. Com., 287 Va. 311, 756 S.E.2d 460 (2014)

Overruling Commonwealth v. Bell, 282 Va. 308, 714 S.E.2d 562 (2011), the Supreme Court of Virginia held that the Commonwealth is the party who bears the burden of proving that no suitable, less restrictive alternative to involuntary inpatient treatment exists for someone declared to be a sexually violent predator. After a jury found that the defendant, Donald Gibson, was a sexually violent predator within the meaning of Va. Code Ann. § 37.2-900, the circuit court continued the trial in order to hear additional evidence related to Gibson’s suitability for conditional release as an alternative to involuntary commitment.

In moving forward, Gibson argued that the burden was on the Commonwealth to prove “by clear and convincing evidence” that the elements of Va. Code Ann. § 37.2-912 were not satisfied, whereas the Commonwealth, relying on Commonwealth v. Bell, argued that burden was on Gibson to prove “by a preponderance of the evidence that he meets the criteria for conditional release.”

The Virginia Supreme Court noted that statements in Commonwealth v. Bell seemed to conflict with the earlier decision McCloud v. Com., 269 Va. 242, 261, 609 S.E.2d 16, 26 (2005) which held that “the burden of proving that there is no suitable less restrictive alternative to involuntary confinement rests with the Commonwealth, and that burden cannot be shifted to the [respondent].” Finding no reason “to draw a distinction between an initial sexually violent predator trial and an annual review hearing in terms of which party bears the burden of proof on the issue whether there are no suitable less restrictive alternatives to involuntary confinement,” the Supreme Court of Virginia overruled Bell and returned to the rule in McCloud instead of reconciling the two by drawing such a distinction.

Found in DMHL Volume 34 Issue 1

Competency to Stand Trial

No error in trial court’s determination of defendant’s “present” ability to understand the proceedings and assist counsel, including denial of motion for a second hearing based on “new evidence”

Dang v. Com., 287 Va. 132, 752 S.E.2d 885 cert. denied sub nom. Dang v. Virginia, 135 S. Ct. 130, 190 L. Ed. 2d 99 (2014)

On appeal from his conviction for murder and violation of a protective order, petitioner Lam Dang argued that the circuit court erred in failing to order a second competency evaluation after his counsel uncovered new evidence concerning head trauma he suffered as a child. In his first competency evaluation, Dang was found competent to stand trial and seemed particularly focused on providing “his side of the story” and repeatedly had to be constantly redirected to the question posed. Dang’s evaluator noted that he exhibited a high degree of situational anxiety, but that it was not indicative of a mental illness relevant to competency but was “consistent with most defendants who face legal charges.”

Four days prior to his trial, Dang’s counsel moved for a second competency evaluation based on evidence he had recently uncovered that, beginning at age six and continuing until sixth or seventh grade, Dang had been subject to repeated physical assaults that included being pelted in the head with rocks. The circuit court denied the motion, finding no probable cause that Dang “lack[ed] substantial capacity to understand the proceedings against him or to assist his attorney in his own defense.”

The Supreme Court of Virginia upheld the Court of Appeals’ denial of Dang’s petition. The Supreme Court found that the circuit court had given adequate weight to the new information acquired by defense counsel and had focused on the proper issue at hand— Dang’s “present ability to understand the proceedings and assist his counsel.” Given the first evaluator’s opinion that Dang’s shifting focus was representative of “situational anxiety” and the “wide latitude” offered to circuit courts in light of their “first-hand interactions with, and observations of, the defendant and the attorneys at bar” the Supreme Court of Virginia found that the circuit court did not abuse its discretion in denying the request for a second evaluation.

Found in DMHL Volume 34 Issue 1