US Supreme Court Holds Incompetence of State Prisoner Does Not Suspend Federal Habeas Proceeding

Ryan v. Gonzales, 568 U.S. __(2013)
slip opinion available at: http://www.supremecourt.gov/opinions/12pdf/10-930_7k47.pdf . Justice Clarence Thomas wrote the decision for a unanimous court.

The United States Supreme Court decided on January 8, 2013 in two consolidated capital cases that the incompetence of state prisoners does not suspend federal habeas corpus proceedings under either 18 U.S.C. § 3599 or 18 U.S.C. § 4241, reversing the decisions of the Ninth and Sixth Circuit Courts of Appeal.

An Arizona jury convicted Ernest Valencia Gonzales of felony murder, armed robbery, aggravated assault, first-degree burglary and theft. Gonzales had repeatedly stabbed a husband and his wife in front of their 7-year-old son during a burglary of their home. The husband died but his wife survived after several days of intensive care. The trial court sentenced Gonzales to death on the murder charge and to prison terms on the other charges.

After exhausting his state court remedies, Gonzales filed a petition for writ of habeas corpus in federal district court. Gonzales’ appointed counsel filed a motion to stay the petition on the grounds that Gonzales was no longer capable of communicating or assisting his counsel. The Ninth Circuit had previously held in Rohan v. Woodford, 334 F.3d 803 (9th Cir. 2003), that 18 U.S.C. § 3599(a)(2), the federal statute guaranteeing state capital prisoner’s a right to counsel in federal habeas proceedings required that the petitioner be sufficiently competent when he raises claims that could potentially benefit from his ability to communicate with counsel. If he is not competent, he is entitled to a stay of the proceedings pending his restoration to competency. The Ninth Circuit reasoned that without a stay, the petitioner is denied his right to counsel. Although applying Rohan, the district court, nevertheless, denied Gonzales a stay. It determined that the claims he raised were based on the record before the trial court or were resolvable as a matter of law ,and his lack of competence would therefore not affect his counsel’s ability to represent him. Gonzales then filed an emergency petition for writ of mandamus in the Ninth Circuit. While his case was pending, the Ninth Circuit decided Nash v. Ryan, 581 F.3d 1048 (2009), holding that habeas petitioners have an absolute right to competence on appeal, even though appeals are entirely record-based. The Ninth Circuit thereupon granted Gonzales’ writ and entered a stay pending his competency determination. The Supreme Court granted Arizona a writ of certiorari.

In the second case, an Ohio jury convicted Sean Carter of aggravated murder, aggravated robbery, and rape, and sentenced him to death for anally raping his adoptive grandmother and stabbing her to death. After exhausting his state court appeals, Carter’s attorney filed a federal habeas petition along with a motion requesting a competency determination and a stay of his proceedings. Following several psychiatric evaluations, the district court found Carter incompetent to assist counsel and, applying the Ninth Circuit’s test in Rohan, finding that Carter’s assistance was necessary to develop four of his exhausted state court claims. As a result, the district court then dismissed the habeas petition without prejudice and tolled the stature of limitations under the Antiterrorism and Effective Death Penalty Act of 1996.

On appeal, the Sixth Circuit recognized that federal habeas petitioners do not have a constitutional right to competence, but found a statutory right to competence under 18 U.S.C. §4241, relying in part on the Supreme Court’s decision in Rees v. Peyton, 384 U.S. 312 (1966). Rees required that a Virginia habeas petitioner awaiting the death penalty who decided to forego any further appeals of his conviction or sentence be competent enough to understand the nature of the proceeding and assist counsel before he could withdraw his habeas petition. The Sixth Circuit then ordered that Carter’s petition be stayed indefinitely with respect to any claims that required his assistance. The Supreme Court granted Ohio’s petition for writ of certiorari and consolidated the two cases for review.

On review, the Supreme Court noted not only that there is no constitutional right to counsel in habeas proceedings, but there is no due process right at all to collateral review. Murray v. Giarratano, 492 U.S. 1, 10 (1989). It acknowledged that the statute, 18 U.S.C. § 3599(a)(2), grants federal habeas petitioners on death row the right to federally funded counsel. It also gives district courts the power to authorize investigative, expert and other services. But the Court found the statute does not require district courts to stay proceedings when habeas petitioners are found incompetent. The Court reasoned that the right of a criminal defendant to competence in the original trial flows from the Due Process Clause of the Fourteenth Amendment and not from the Sixth Amendment right to counsel, even though the right to counsel at trial may be compromised if the defendant is not able to communicate with counsel. Review of a state court conviction in a federal habeas proceedings is limited to the record in existence at the time of the state court trial. Given the backward-looking, record-based nature of habeas proceedings, counsel can therefore effectively represent the petitioner regardless of his competence. The Court went on to find that the Ninth Circuit decision in Rohan incorrectly relied on Rees, a decision which simply dealt with an incompetent capital petitioner’s ability to withdraw his petition for certiorari.

Also reviewing the Sixth Circuit’s conclusion that 18 U.S.C. § 4241 provides a statutory right to competence, the Court found that § 4241 does not even apply to habeas proceedings involving state prisoners. Section 4241 only applies to federal defendants and probationers subject to prosecution by the United States and only to trial proceedings prior to sentencing, or after probation or supervised release. The Court therefore held that neither 18 U.S.C. § 3599 nor § 4241 requires suspension of a capital petitioner’s federal habeas proceeding when he has been adjudicated incompetent.

Both Gonzales and Carter also argued that district courts have the equitable power to stay proceedings when they determine habeas petitioners are incompetent. In Gonzales’ case, the Supreme Court held that the district court correctly found that all of his claims were record-based or resolvable as a matter of law. The district court did not therefore abuse its discretion in denying the stay. In Carter’s case, the district court found that four of his claims could potentially benefit from his assistance. However, the Supreme Court determined that three of the claims were adjudicated in state court post-conviction proceedings and could be reviewed on the record. It found it unclear whether the fourth claim, alleging ineffective assistance of appellate counsel for failing to raise trial counsel’s failure to pursue a competency to stand trial issue, required consultation with counsel. The Court nevertheless held that an indefinite stay would be inappropriate under the Antiterrorism and Effective Death Penalty Act whose purpose is to reduce delay in the execution of state and federal criminal sentences. The Court remanded Carter’s case with instructions that if the court found the fourth claim would substantially benefit from his assistance, the court must take into account the likelihood that Carter will regain competence in the foreseeable future. If there is no reasonable hope of competence, a stay is inappropriate. In a footnote, the Court acknowledged that its opinion does not implicate the prohibition against execution of a death sentence for a prisoner who is insane.

Found in DMHL Volume 32 Issue 1

Mississippi Supreme Court Finds Failure to Appoint PTSD Expert Denies Due Process

Evans v. Mississippi, 2013 Miss. LEXIS 31 (Miss. January 31, 2013)

The Mississippi Supreme Court has held that the trial court’s refusal of funds for the defendant to hire a post-traumatic stress disorder (“PTSD”) expert was an abuse of discretion and denied the defendant his right to a fair trial. In so doing, the Supreme Court reversed the decisions of both the Court of Appeals and the trial court and remanded the case for a new trial.

In April 2007, Dante Lamar Evans, then age 14, was arrested for the murder of his father. In a videotaped police statement, Dante stated that he and his mother had been abused by his father, that his father had threatened to kill his mother on several occasions, that he had witnessed his father holding his mother underwater in the bath tub, and that his father tried to hit his mother with a car. He also stated that his father had lashed out against him, and at one point injured his eye. Dante was hospitalized with depression in 2001 and was diagnosed with PTSD.

In 2006, Dante moved with his mother to North Carolina, but after he began spending time with a gang and using drugs, she sent him to live with his father in Biloxi. In February 2007, Dante moved in with his father in a FEMA trailer, but after several weeks told the school guidance counselor that he had been thinking of killing his father. The counselor then called another counselor and he told them both that his father was beating him. The next morning the counselor called in the school social worker who told Dante that a parent has the right to discipline a child as long as they do not leave bruises. Dante explained that his father did not leave bruises, but did push and punch him in the chest and forbade him from contacting his mother. The social worker suggested Dante write his mother, but when he attempted to do so during class, the letter was confiscated. The school notified Dante’s father and scheduled a meeting with him. The father acknowledged that he was strict with his son but that they had a good relationship. Dante’s mother then called his father during the meeting and the father gave the phone to his son. The next day Dante came to school with a bruise next to his eye. Dante said his father had pushed him against the trailer. The Department of Social Services then investigated but found no reason to intervene. A few weeks later, Dante’s father was found dead from a gunshot wound. Dante told police he took his father’s handgun from a locked tool box two nights before the shooting and had practiced using it. At first it would not fire, indicating to him that he should not do this. He told police that he had no experience with guns.

In April 2008, the defense hired a psychologist to conduct a psychological examination of Dante to determine if he was competent to stand trial and his mental state at the time of the offense. The psychologist reported that Dante was competent but that he had been diagnosed previously with PTSD and was currently exhibiting symptoms of PTSD, including fear and a sense of helplessness, agitated behavior, outbursts of anger, difficulty concentrating, and intrusive memories of past abuse. The psychologist stated that she was not an expert in PTSD and recommended that another expert in PTSD be appointed to assist Dante in his defense of imperfect self-defense.

In April 2008, the defense hired a psychologist to conduct a psychological examination of Dante to determine if he was competent to stand trial and his mental state at the time of the offense. The psychologist reported that Dante was competent but that he had been diagnosed previously with PTSD and was currently exhibiting symptoms of PTSD, including fear and a sense of helplessness, agitated behavior, outbursts of anger, difficulty concentrating, and intrusive memories of past abuse. The psychologist stated that she was not an expert in PTSD and recommended that another expert in PTSD be appointed to assist Dante in his defense of imperfect self-defense.

On appeal, six of the judges of the Court of Appeals affirmed the conviction holding that the trial court properly denied the funds to hire an expert because the expert testimony was intended to support the theory of imperfect self-defense which was not supported by the evidence. Three judges dissented finding that a PTSD expert was necessary because such testimony was necessary to support this defense.

The Mississippi Supreme Court reversed finding that the denial of expert assistance in this case was in fact prejudicial to the assurance of a fair trial. The Court found each case must be decided on a case-by-case basis but that it would be an abuse of discretion to deny funds for an expert if a defendant had provided concrete reasons showing a substantial need for such assistance. The Court found that in this case Dante had met his burden of proof. The expert appointed to assess his competence to stand trial found him competent but indicated he had previously been diagnosed with PTSD and was currently exhibiting its symptoms. She stated she was not an expert in PTSD and therefore could not assist in the preparation of his defense, and specifically that PTSD affected his state of mind at the time of the offense. Although she could recognize the symptoms, she had stated that she did not have the expertise to explain to a jury PTSD’s effects on a person’s mental state.

Relying on Ake v. Oklahoma, 470 U.S. 68, 80-81 (1985), the Mississippi Supreme Court found that to support his theory of imperfect self-defense, Dante was required to show that he acted without malice and under a bona fide belief that his actions were necessary to avoid death or bodily harm. The Court explained that a defendant under Ake does not have a constitutional right to an expert of his own choosing, but based on the facts of this case, Dante had demonstrated that an expert in PTSD was needed to prepare an adequate defense. The Court determined that lay witnesses could not testify as to the symptoms and characteristics of PTSD and provide a medical diagnosis. An expert could also explain to the jury how a child’s mind could be affected when suffering from PTSD, and the lack of such information deprived Dante of a fair trial. Denying him the funds to hire such an expert was therefore an abuse of discretion and violated his due process right to a fair trial. The Supreme Court then reversed the decisions of both the Court of Appeals and the trial court, and remanded the case for a new trial.

Found in DMHL Volume 32 Issue 2

Eighth Circuit Upholds Dismissal of Civil Suit Alleging Violation of the Constitution and ADA for Interrogation of Suspect with Intellectual Disabilities

Folkerts v. City of Waverly, Iowa, 707 F.3d 975, (8th Cir. 2013), rehearing denied 2013 U.S. App. LEXIS 7279 (8th Cir. April 10, 2013)

The Eighth Circuit Court of Appeals has upheld the district court’s grant of summary judgment dismissing a civil case filed on behalf of a 30-year old man with intellectual disabilities against the City of Waverly, Iowa, and the investigating officer, finding no violation of his constitutional rights, § 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, as a result of his interrogation and subsequent charges of sexual assault.

The plaintiffs Melvin and Idella Folkerts are the legal guardians of their adult son Travis Folkerts who has an IQ of 50. In May 2008, Travis lived alone in a supervised apartment when a neighbor reported that Travis had engaged in inappropriate conduct with her minor son. A patrol officer who knew Travis had a disability spoke with the complainant and then contacted Troy Schneider, an investigator with the police department and now a defendant in this case. The patrol officer then spoke with Travis who was alone and read him his Miranda rights, asking Travis if he understood them. Travis indicated he did and then provided the officer with the phone number of his caseworker upon request.

The next day Schneider went to Travis’ apartment where he was alone and read him his Miranda rights and more fully explained them so he could better understand them. Schneider believed Travis understood them. He then took Travis to the police station where he continued the interrogation in a conference room that Schneider believed was less intimidating than the regular, smaller interrogation room. He also asked Travis non-leading open-ended questions because he thought it would be easy to get him to say something he did not do if he was asked leading, direct questions.

At Travis’ request, Schneider called Travis’ mother who spoke with Travis by phone. Travis told her he was nervous. Schneider told Mrs. Folkerts she could come down to the police station if she wanted, but she said she thought Travis would be less nervous if she did not. Schneider continued the interrogation and Travis incriminated himself. Afterwards Schneider drove Travis to his parents’ home and explained the situation to them. Schneider then arranged to have Travis booked using friendlier booking procedures. After consulting with the county attorney, Schneider filed a complaint charging Travis with the misdemeanor of lascivious conduct. An Iowa court found Travis incompetent to stand trial and dismissed the charges.

The Folkerts then filed a civil lawsuit against the City of Waverly and the investigator Troy Schneider under 42 U.S.C. § 1983, alleging violation of their son’s and ward’s substantive constitutional rights in the interrogation process, and violations of § 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act for disparate treatment and failure to make reasonable accommodations. To establish a substantive due process violation, the Court stated that the Folkerts must demonstrate that a fundamental right has been violated and that the officer’s conduct shocks the conscience. To support their allegations the Folkerts recited Schneider’s 1) failure to accommodate Travis’ disability during the interrogation; 2) inadequate investigation; 3) investigation as retaliation against Travis’ relatives; and 4) filing of a defective charge.

The Court found that Schneider’s behavior did not shock the conscience. He altered his questioning style, more fully explained Travis’ Miranda rights, and interviewed Travis in a less intimidating room. He also called Travis’ mother and invited her to the police station. The Court also found that the adequacy of the investigation also did not shock the conscience. In order to do so, the Court stated the officer must 1) attempt to coerce or threaten the suspect; 2) purposefully ignore evidence of the suspect’s innocence; or 3) systematically pressure to implicate the suspect despite contrary evidence. Further, the patrol officer here had interviewed the alleged victim, his mother and visited the scene. The Court therefore found that Schneider’s failure to do so himself does not establish an intentional or reckless failure to investigate.

The evidence also revealed that during an investigation the previous year of a burglary of a business owned by Travis’ cousin’s wife, Schneider was alleged to have been rude to Travis’ cousin and not to have pursued a lead. No evidence was submitted, however, that Schneider retaliated against the family members by investigating Travis. Lastly the charge filed required a showing that the accused be “in a position of authority” over the victim. There was no Iowa case law interpreting this element of the offense before Schneider filed the charge and he sought the advice of the county attorney before doing so. Although following an attorney’s advice does not automatically provide an officer with qualified immunity, the Court found it demonstrates the reasonableness of the action. In this case, Schneider’s behavior does not shock the conscience.

The Folkerts also alleged that the city’s culture of indifference to people with disabilities demonstrated its deliberate indifference to Travis’ needs. The Court stated that a pattern of similar constitutional violations by trained employees, or a specific instance accompanied by a showing of lack of training to handle recurring situations, is necessary to establish deliberate indifference on the part of the city. The Court found that the plaintiffs here, however, failed to allege even a single violation of rights.

To establish a prima facie § 504 violation, a qualified individual with a disability must be denied the benefit of a program or activity of a public entity receiving federal funds. For a prima facie ADA violation, a qualified individual with a disability must be excluded from participation or denied the benefits of a public entity’s services, programs, or activities. Here, the interrogation was covered by the ADA. The Court found, however, that no reasonable jury could conclude that the defendants failed to make reasonable accommodation for Travis’ disability. Schneider altered his questioning style, more fully explained his Miranda rights, interviewed Travis in a less threatening room, drove Travis to the Folkerts’ home and explained the situation to them, and arranged an alternative and friendlier booking procedure. Most importantly, the Court stated Schneider called Travis’ mother and reasonably concluded that her comment that her presence might make Travis more nervous meant that she was not coming to the police station and was not requesting additional or alternative accommodations for her son. The Eighth Circuit therefore upheld the district court’s granting of the defendants’ motion for summary judgment and dismissal of the case.

Found in DMHL Volume 32 Issue 2

Ninth Circuit Finds Federal Juvenile Delinquency Act, Not Adult Act, Controls When Juvenile Committed to Determine Competency to Stand Trial

United States v. LKAV, Juvenile Male, 2013 U.S. App. LEXIS 6573 (9th Cir. April 2, 2013)

The Ninth Circuit Court of Appeals has held that a juvenile charged with murder under the Federal Juvenile Delinquency Act whose competency to stand trial is in doubt must be committed under the juvenile provisions of 18 U.S.C. § 5037(e) and not the provisions related generally to all commitments under 18 U.S.C. § 4241(d).

Tribal authorities with the Tohono O’odham nation charged 17-year old LKAV with murder in May 2009. He was found incompetent and remained in tribal custody but without being sent to a treatment facility for restoration to competency. In November 2011, the United States filed its own charge against LKAV as an alleged juvenile delinquent under the Federal Juvenile Delinquency Act. The United States then obtained a writ of habeas corpus to remove him from tribal custody and moved to commit him for a psychiatric evaluation pursuant to the provision pertaining in general to all federal criminal cases under 18 U.S.C. § 4241(d). The presiding magistrate judge granted LKAV’s request for a local evaluation in Phoenix, Arizona.

After an extensive evaluation, the examining psychologist determined LKAV was incompetent to stand trial. LKAV then moved to proceed with commitment under the juvenile act. The United States maintained that LKAV should be committed to an adult facility under § 4241(d). The magistrate judge granted the United States’ motion and committed LKAV to the custody of the Attorney General for hospitalization for a period not to exceed four months to determine whether he could be restored to competency. LKAC filed a timely appeal, but in the interim was transported to the Federal Medical Center in Butner, North Carolina. FMC-Butner completed its competency evaluation in January 2013 and advised the court that with an additional period of hospitalization and treatment, LKAV could be restored to competency. It requested an additional 120-day extension of the commitment order, which the district court granted. LKAV appealed.

The Ninth Circuit heard LKAV’s appeal under the collateral order doctrine finding that the commitment order conclusively determines LKAV’s rights as to his pre-adjudication commitment; his commitment is a completely separate issue from the ultimate issue of his delinquency; and delay until a final decision of his delinquency on the merits would render the commitment order effectively unreviewable.

The Ninth Circuit then reviewed the language of the respective statutes and determined that the plain language of § 5037(e) is clear that it applies to the commitment and evaluation of alleged juvenile delinquents:

If the court desires more detailed information concerning an alleged or adjudicated delinquent, it may commit him…to the custody of the Attorney General for observation and study by an appropriate agency. Such observation and study shall be conducted on an outpatient basis, unless the court determines that inpatient observation and study are necessary to obtain the desired information. In the case of an alleged juvenile delinquent, inpatient study may be ordered only with the consent of the juvenile and his attorney. The agency shall make a complete study of the alleged or adjudicated delinquent to ascertain his personal traits, his capabilities, his background, any previous delinquency or criminal experience, any mental or physical defect, and any other relevant factors. The Attorney General shall submit to the court and the attorneys for the juvenile and the Government the results of the study within thirty days after the commitment of the juvenile, unless the court grants additional time. (Emphasis added.)

By contrast, the commitment scheme generally applicable to all defendants contained in § 4241(d) requires mandatory commitment for determination of the defendant’s potential for restoration to competency. The United States had argued that § 5037(e) does not mention competency and therefore the mandatory competency evaluation and commitment procedures in § 4241(d), which are more explicit and comprehensive and apply to all federal criminal proceedings applies.

The Court found that because § 5037(e) expressly provides for commitment, study, and observation of alleged juvenile delinquents, and specifically references a study of any mental or physical defect, it controls over conflicting provisions in § 4241(d) that apply to federal criminal defendants generally. The Court pointed out, however, that the United States could have sought to have LKAV transferred for trial as an adult and therefore all of the provisions in § 4241(d) would have applied, but for some reason chose not to do so. The Court recognized that because LKAV has now turned 21 and is no longer a juvenile, his further treatment and custody may cause the United States some incidental inconvenience because he cannot be housed with other juveniles or adults. Nonetheless the Court held that the purpose of Federal Juvenile Delinquency Act is to provide for the preferential and protective care and treatment of juvenile delinquents who are significantly different from adult offenders, and its provisions must therefore control.

Found in DMHL Volume 32 Issue 2

Fourth Circuit Holds Competency to Stand Trial Standard Sufficient to Permit Borderline Competent Defendant to Represent Self

United States v. Bernard, 708 F.3d 583 (4th Cir. 2013)

The Fourth Circuit Court of Appeals has determined that once a borderline competent defendant meets the standard for competence to stand trial, the court need not inquire further as to whether the defendant is competent to represent himself. United States v. Bernard, 708 F.3d 583 (4th Cir. 2013). The Fourth Circuit held that the Supreme Court in Indiana v. Edwards, 554 U.S. 164 (2008) only permits a court to force counsel on a criminal defendant who is borderline competent, but does not require it to do so. Instead the Fourth Circuit found that this case more closely resembles Godinez v. Moran, 509 U.S. 389 (1993), that held that “ the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Id. at 399.

In this case, Michael Defante Bernard was charged in North Carolina with possessing and conspiracy to possess marijuana with intent to distribute and possession of a firearm in furtherance of a drug trafficking offense. Bernard had a long history of mental illness, suffering from severe depression, chronic schizophrenia and paranoia. He had been physically and emotionally abused as a child, attempted suicide at least three times and had been involuntarily committed on at least four separate occasions. He also had a history of failure to take his medications. Bernard also abused cocaine and marijuana to cope with his mental illness.

Concerns were raised about Bernard’s competency to stand trial and the district court ordered an evaluation. A government psychologist recommended that he be found incompetent to stand trial due to his schizophrenia, paranoid delusions, and disorganized thought processes. The court thereupon found Bernard incompetent to stand trial and ordered him treated for restoration to competency. Less than six months later, another government psychologist recommended that Bernard be found competent to stand trial because the antipsychotic, antidepressant, and anti-anxiety medications rendered him able to understand the proceedings against him and to assist his counsel.

At his second competency hearing, the trial court found Bernard competent to stand trial. His counsel then moved to withdraw as counsel based upon Bernard’s request to represent himself, and to appoint him as stand-by counsel. Defense counsel represented to the court that it must find the defendant competent to waive counsel, if it also found him competent to stand trial, ostensibly but incorrectly referencing Godinez v. Moran. The trial court expressed strong misgivings about allowing the defendant to represent himself, but after engaging in colloquy with Bernard, determined he could go forward. The court further elaborated that it would monitor his competence as the trial progressed. During trial, Bernard made opening and closing statements, testified on his own behalf and re-opened his case to question a law enforcement officer whom he had declined to cross-examine during the government’s case-in-chief. He did not, however, make any objections during the government’s case, question any of the government’s witnesses, or call any witnesses on his own behalf. The jury deliberated 12 minutes and found him guilty on all charges. At the scheduled sentencing hearing, Bernard’s mental condition had seriously deteriorated and he was again fully represented by his stand-by attorney. At the final sentencing hearing held several months later after his further restoration to competency, the court sentenced him to 15 years in prison.

On appeal, Bernard argued that the trial court erred when it allowed him to exercise his right to self-representation at trial saying it abused its discretion in failing to apply the more rigorous standard following Edwards that required him to be represented by counsel. Bernard further contended that his trial counsel was ineffective by representing to the court that his competence to waive counsel was governed by the same standard as his competence to stand trial.

The Fourth Circuit applied the “plain error” standard in reviewing the appeal, not an abuse of discretion standard. The plain error standard requires that when a defendant fails to make a contemporaneous objection to an assignment of error at trial, the error must be plain on its face, affect his substantial rights and adversely affect the outcome of the proceedings. The Fourth Circuit reiterated that a defendant has a Sixth Amendment right to self-representation under Faretta v. California, 422 U.S. 806, 819, 821 (1975). It stated that in Godinez, the Supreme Court held that the competence of a defendant to stand trial is the same as the competence to waive the right to counsel. The Court went on to write that Edwards did not change that right. In Godinez, the trial court found the defendant competent to stand trial and permitted him to waive counsel and represent himself. By contrast, the trial court in Edwards found him competent to stand trial but refused to allow him to represent himself. The Fourth Circuit determined that the Supreme Court’s had held in Edwards that the Constitution permits the government to limit a defendant’s right of self-representation on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented. A different standard than the competency to stand trial standard may, but is not required, to be used when the defendant asserts his right of self-representation. Because the trial court in this case was permitted, but not required, to apply a higher standard to assess Bernard’s competency to represent himself and did not, there was no plain error.

The dissent agreed with the distinction the majority drew between Godinez and Edwards, but found that the record reflected that the trial court did not believe it had any discretion to consider a higher standard than competency to stand trial and therefore did not do so. Its belief that it had no discretion, and therefore did not exercise any, was itself an abuse of discretion warranting a remand.

Found in DMHL Volume 32 Issue 2

Virginia Court of Appeals Finds No Right to Jury Trial on Involuntary Medication Petition; Appeal Moot on Sufficiency of Evidence Issue

William Scott Ingram v. Commonwealth, 2013 Va. App. LEXIS 131 (April 23, 2013)
slip opinion at: http://www.courts.state.va.us/opinions/opncavwp/1385123.pdf.

The Virginia Court of Appeals found no right to trial by jury on a hospital psychiatrist’s petition under Virginia Code § 37.2-1101 to involuntarily medicate an individual found not guilty by reason of insanity. The Court of Appeals also held that the appellant’s claim that forced medication violated his basic beliefs was moot because the circuit court’s 180-day order expired shortly before the Court heard his appeal. The Court, however, found the issue of his right to a jury trial was not moot because it was “subject to repetition, yet evading review.” The Court then proceeded to decide this issue on the merits finding no right to trial by jury under the United States and Virginia Constitutions or Virginia statutory law.

Ingram was found not guilty of malicious wounding by reason of insanity (“NGRI”) in the Martinsville Circuit Court in 1995 and has been periodically recommitted in accordance with Virginia law to various state psychiatric facilities, most recently Southern Virginia Mental Health Institute in Danville. Ingram has been diagnosed with various psychiatric conditions, including bipolar type schizoaffective disorder, narcissistic and antisocial personality disorder, and poly-substance dependence. When his father no longer agreed to serve as his son’s authorized representative for the purpose of making treatment decisions on his behalf, his psychiatrist first petitioned the Danville General District Court in 2009 for an order to involuntarily treat him with anti-psychotic medication pursuant to Virginia Code § 37.2-1101, which the court granted. Ingram appealed to the circuit court arguing in a de novo hearing that, among other things, the evidence was insufficient as a matter of law because the order violated his religious beliefs. On further appeal, the Court of Appeals dismissed the case as moot because the 180-day order had expired before the appeal was heard. Ingram v. Commonwealth, 2010 Va. App. LEXIS 254 (June 22, 2010)(unpublished), slip opn. at: http://www.courts.state.va.us/opinions/opncavwp/2436093.pdf.

In 2012, Ingram’s psychiatrist again petitioned for involuntary court-ordered treatment. The general district court granted the petition and Ingram appealed to the circuit court demanding a trial by jury. Ingram also argued that the involuntary medication violated his religious beliefs or basic values. Unlike the previous appeal in which Ingram testified that medication violated his long-standing religious beliefs, he now states that he plays in a rock band, which is “sort of like a religion to [him].” The circuit court denied the request for a jury, conducted a de novo evidentiary hearing, and granted the petition. That 180-day order again expired before the appeal was heard. Under Virginia law, § 37.2-1102(3), an order authorizing treatment with anti-psychotic medication cannot exceed 180 days.

The Commonwealth moved to dismiss the appeal on the grounds of mootness. Relying on Chafin v. Chafin, 133 S.Ct. 1017, 1018 (2013), the Court of Appeals stated that a case becomes moot when the issue presented is no longer live, or “when the dispute is no longer embedded in actual controversy about the plaintiffs’ particular legal rights.” Already; LLC v. Nike, Inc., 133 S.Ct. 721, 726 (2013). Courts do not issue advisory opinions and will review such cases in very limited circumstances and only when the underlying controversy is capable of repetition, yet evading review. Va. State Police v. Elliott, 48 Va. App. 551, 554, 633 S.E.2d 203, 204 (2006). Such review should occur rarely and only in cases that are “short-lived by nature,” Daily Press, Inc. v. Commonwealth, 285 Va. 447, 452, __S.E.2d__(2013), and then only when the party seeking review can demonstrate that he will be subjected to the same illegal conduct.

In this case, the Court of Appeals found that Ingram’s claim that involuntary medication violated his personal beliefs and basic values was fact-based and challenged the sufficiency of the evidence. His claim in this case differed from the factual basis of his previous claim. Because the Court had no confidence that the fact pattern would remain the same, it declined to find that the claim met the capable of repetition, yet evading review doctrine.

On the right to jury trial issue, however, the Court found that Ingram, having been found NGRI nearly twenty years earlier, would likely be the subject of future treatment petitions, each of which could raise the same jury issue, but never be decided. The Court found that this claim presents a question of law unaffected by the facts underlying any given petition. Because the jury trial issue presents an exceptional situation that is capable of repetition, yet evading review, the Court proceeded to decide the issue.

On the merits, the Court of Appeals noted that neither the United States nor Virginia Constitutions afford the right to trial by jury. Although the Fourteenth Amendment guarantees the right to due process before deprivation of a liberty interest, here the right to avoid unwarranted medication, it does not include the right to trial by jury. Relying on Washington v. Harper, 494 U.S. 210, 228 (1990), the Court found that a proceeding to order involuntary medication does not even require a judicial decision maker. The Court also found that although the Sixth Amendment guarantees a jury trial in all criminal prosecutions that could result in imprisonment for longer than six months, this proceeding is not criminal, but civil, and could not result in any incarceration. Further, although the Seventh Amendment also guarantees a right to trial by jury in suits at common law where more than $20 is in dispute, this right has never been applied to state court proceedings.

Under the Virginia Constitution, the Court found that the right to a jury trial applies only to proceedings for which the right to a jury trial existed when the Constitution was adopted. In this case, the statutory scheme was enacted well after the adoption of the Constitution and bears none of the indicia of a traditional common law proceeding. It does not attempt to affect the property rights of a patient or place him in the indeterminate custody of the state. “Instead, Code § 37.2-1101 represents a uniquely modern application of the parens patriae duty of the state to protect those ‘incapable of making an informed decision’ by attempting to ameliorate their illnesses in a manner consistent with the needs of society balanced with the deeply held religious or basic values of the individual.” Ingram v. Commonwealth, slip opn. at 9.

Finally, Ingram argues that Virginia Code § 8.01-336(D) affords him the right to trial by jury because his claim that the treatment is contrary to his religious beliefs and basic values which constitutes a plea in equity. Subsection D provides: “In any action in which a plea has been filed to an equitable claim, and the allegations of such plea are denied by the plaintiff, either party may have the issue tried by jury.” The Court reasons that this claim is not a plea in equity because such a plea is a discrete form of defensive pleading that does not address the merits of a case. Instead this plea raises a single set of facts that would be an absolute defense to a claim, such as the statute of limitations, res judicata, a release, or infancy. In this case, Ingram bears the burden of proving that the treatment is contrary to his religious beliefs or basic values. If he proves this, the burden then shifts to the Commonwealth to prove that the treatment is “necessary to prevent death or a serious irreversible condition.” The Court of Appeals held that this situation is different from the traditional plea in equity raising “a single state of facts or circumstances” and therefore the circuit court was not required to empanel a jury to decide the issue.

Found in DMHL Volume 32 Issue 2

Eight Circuit Upholds Administration of Antipsychotic Medication to Restore Competency of Defendant Accused of Failing to Register as Sex Offender

United States v. Mackey, 717 F.3d 569 (8th Cir. 2013)

The Eighth Circuit Court of Appeals upheld on June 10, 2013, the decision of the district court authorizing the government to involuntarily medicate a defendant accused of failing to register as a sex offender to restore him to competency to stand trial. Applying the standard in Sell v. United States, 539 U.S. 166 (2003), the Court found that the government has an important interest in bringing the defendant to trial for the non-violent status offense of failure to register as a sex offender. Unlike the Sixth Circuit in United States v. Grigsby, 712 F.3d 964 (6th Cir. 2013, reviewed above, the likelihood that the defendant might be sentenced to a term less than his pretrial confinement did not minimize that interest given the requirement for a minimum of five years, and the potential for a life time, of post-release supervision. Nor did the fact that the defendant might be found not guilty by reason of insanity, resulting in a lengthy period of civil commitment satisfy the government’s interest in his confinement, because there was no guarantee in spite of his delusional disorder that he would meet civil commitment criteria.

Shawn Mackey was indicted in June 2010 for failure to register as a sex offender in violation of the federal Sex Offender Registration and Notification Act. Mackey was detained pending trial and requested the district court to order a mental evaluation. He refused, however, to participate in the evaluation conducted at the Federal Detention Center in Seattle, Washington, but based upon the stipulation of both the government and Mackey, the district court found him to be suffering from a mental disease rendering him incompetent to stand trial. The court then ordered him to be committed to the custody of the Attorney General for evaluation and treatment, and a determination of whether he could be restored to competency.

In March 2012, the government moved the court to conduct a Sell hearing to determine whether Mackey could be medicated involuntarily. Two doctors at the United States Medical Center for Federal Prisoners in Springfield, Missouri, testified that Mackey was delusional and suffered from a “psychotic disorder not otherwise specified.” One psychologist tried to interview Mackey on seven occasions but he refused to talk with her in almost all of those instances. He did make some remarks reflecting a mental illness, including once that he owned Alaska, and on another occasion that his mother owned Alaska. A psychiatrist and Director of the Medical Center testified that Mackey was delusional and his thinking was disorganized. The psychiatrist testified that administration of antipsychotic medication would be necessary to restore Mackey to competency and there was a substantial probability that it would be successful, although Mackey had stated he absolutely did not want any medication. He also testified that medication would have a positive impact on other aspects of his life, including his personal hygiene and his ability to interact with his peers.

Both the district court and the Court of Appeals applied the Sell test finding 1) that an important governmental interest is at stake; 2) that involuntary medication will significantly further that governmental interest; 3) that involuntary medication is necessary to further that interest; and 4) that administration of the drugs is medically appropriate. The Eighth Circuit first reviewed de novo the district court’s legal determination that important government interests are at stake.

Mackey first contended that the nonviolent “status” offense of failure to register as a sex offender was not “serious” for the purposes of Sell. The Court rejected this argument finding that sex offenders who are not properly registered present a serious risk to the safety of the community. The legislative scheme was enacted to address deficiencies in prior law that had enabled sex offenders to fall through the cracks. Even though this offense does not itself harm others directly, the Court found that society has a strong interest in prosecuting the violation and imposing punishment.

Mackey also argued that there were special circumstances in his case. Specifically he argued that the maximum time that he was likely to receive if convicted would be 24-30 months under the sentencing guidelines approximating or exceeding the time he would already be held pre-trial. The government’s interest in his confinement would thus be achieved. The Court first found that the maximum sentence for the crime charged is ten years imprisonment, but it was impossible to know what sentence might be imposed when no conviction had yet been obtained or pre-sentence report received. In addition, a criminal sentence in this case also included mandatory post-release supervision of at least five years to life.

Mackey further argued that even if medication restored him to competency, he would most likely be found not guilty by reason of insanity and civilly committed. The Court next noted that even if Mackey could successfully raise an insanity defense, there was no guarantee that he would be found to meet the long term federal civil commitment criteria that he posed a substantial risk of bodily injury to another person or serious damage to the property of another. The Court then held that these circumstances did not outweigh the government’s interest in bringing Mackey to trial.

Turning to the other Sell factors, the Eighth Circuit held that the district court did not commit clear error in finding that the administration of antipsychotic medication would be substantially likely to restore Mackey’s competence to stand trial and would be substantially unlikely to have significant side effects. Mackey challenged the testimony of the two experts based upon testimony presented in other cases that treatment with medication for persons with grandiose delusional disorders, such as his, was not effective. The Eighth Circuit upheld the district court finding that the experts in this case had testified to the contrary and that medication was substantially likely to restore his competency, distinguishing their testimony from the testimony of experts in other cases.

Finally the Court held that the district court did not commit clear error in finding that medication was medically appropriate in this case based upon the testimony of the psychiatrist that the medication would not only restore Mackey’s competence to stand trial but would provide him with a better quality of life. Based upon these findings, the Eighth Circuit upheld the district court’s order authorizing the government to involuntarily treat Mackey with antipsychotic medication to restore his competency to stand trial.

Found in DMHL Volume 32 Issue 3

Sixth Circuit Finds Special Circumstances Preclude Involuntary Medication of Incompetent Defendant Charged with Bank Robbery

United Sates v. Grigsby, 712 F.3d 964 (6th Cir. 2013)

The Sixth Circuit Court of Appeals held on April 11, 2013 that special circumstances exist that outweigh the government’s interest in prosecuting for bank robbery a pre-trial detainee to restore him to competency. Unlike the Eighth Circuit evaluating similar special circumstances in United States v. Mackey, 717 F.3d 569 (8th Cir. 2013), reviewed below, a majority three-judge panel concluded that the potential availability of lengthy civil commitment together with the likelihood that, even if the defendant is restored to competency, he will be found not guilty by reason of insanity, greatly diminishes the government’s interest in prosecution.

Dennis Grigsby was charged with three counts of unarmed bank robbery in Columbus, Ohio, between January and March 2010. Grigsby’s attorney requested the court to order mental evaluations to determine Grigsby’s competence to stand trial and his sanity at the time of the offenses. The district court granted the motion and he was transferred to the Metropolitan Correctional Center in New York where two psychologists conducted the examinations. They both diagnosed Grigsby with paranoid schizophrenia and determined him incompetent to stand trial, but one postulated that he was sane at the time of his offense and the other that he was not. Both psychologists reported that Grigsby’s mental disease did not significantly interfere with his appreciation of the wrongfulness of his acts, but there was insufficient information about whether mental illness impaired his ability to appreciate the wrongfulness of his conduct. Neither the government nor the defendant objected to the reports’ findings and the district court committed Grigsby to the custody of the Attorney General in November 2010 for a period not to exceed four months for a determination whether he could be restored to competency.

Grigsby was then transferred to the Federal Medical Center in Butner, North Carolina and was evaluated by a psychiatrist and psychologist at the facility. They found that Grigsby had a normal upbringing, education and employment until he stopped working due to “job burnout.” He was convicted of grand theft auto, disorderly conduct, and resisting arrest in 2006; for criminal trespassing in 2007; and for resisting arrest in 2010. He served short jail sentences for these crimes. He was also charged with voyeurism and menacing by stalking, which were not prosecuted. Grigsby was in good physical health, never received mental health treatment and was not taking antipsychotic medication for his illness. He followed all of the rules of the facility, got along well with peers and staff, was not gravely disabled and did not present a danger to self or others, or to the safe operation of the facility. Although his dress and grooming were appropriate and he was oriented to person, place, time and circumstances, and denied hallucinations and delusions, they reported, however, that Gillenwater’s conversation was not linear and he displayed substantial evidence of thought disorder, including an extensive, but poorly organized, paranoid religious delusional system extending into all major functional areas of his life.

The evaluators determined that Grigsby was incompetent to stand trial. Because he was refusing all antipsychotic medications, they also requested an order under Sell v. United States, 539 U.S. 166 (2003), allowing them to medicate him involuntarily to restore his competence to stand trial. The evaluators both determined that antipsychotic medication was substantially likely to render Grigsby competent to stand trial and substantially unlikely to produce sideeffects that would interfere with his ability to assist his attorney in conducting a defense and that less intrusive therapies, such as psychotherapy would not able work. They reported that antipsychotic medication was medically appropriate and would take at least four months to be effective.

In determining whether to uphold the district court’s order authorizing involuntary medication to restore Grigsby to competence, the Sixth Circuit applied the Sell test requiring the government to prove by clear and convincing evidence that 1) an important government interest in prosecution exists; 2) involuntary medication will significantly further the governmental interest, which requires proof both that administration of the medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to cause side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting the trial defense; 3) involuntary medication is necessary to further the governmental interest; and 4) administration of drugs is medically appropriate for the defendant. Id at 180-81.

At the district court hearing, Grigsby conceded that the government had an important interest in bringing him to trial for the serious crime of bank robbery. Grigsby argued, however, that special circumstances existed in his case to diminish that interest. He first argued that the potential availability of lengthy civil commitment together with the likelihood that he would be found not guilty by reason of insanity addressed the government’s interest in his continued confinement.

The Sixth Circuit reviewed the Butner psychiatrist’s testimony that if Grigsby is not forcibly medicated he would remain psychotic and medical staff at FMC-Butner would request his civil commitment. In order to be civilly committed, federal law requires the district court to determine by clear and convincing evidence whether Grigsby is suffering from a mental disease or defect and poses a substantial risk of bodily injury or serious damage to property. The evidence revealed that although Grigsby was not a present danger to himself or others in the structured environment at Butner, the government psychiatrist testified that he was not necessarily fit for release into society. The district court found that the evidence was inconclusive on that issue, but the Sixth Circuit determined that the district court should have inquired further. The Sixth Circuit found evidence in the record that supported the possibility that Grigsby might meet the insanity standard at trial, if restored to competence. Both the government’s psychiatrist and Grigsby’s expert agreed that Grigsby would need to be restored to competence before a definitive determination could be made, but Grigsby’s expert testified that he suffered from a severe and chronic mental illness and likely suffered from it at the time of the bank robberies. He also surmised that Grigsby may have experienced previous psychotic episodes.

The Court further determined that the length of Grigsby’s confinement while the government attempts to restore him to competency and prosecute him may approximate the length of any prison sentence he might receive if convicted. If convicted, the government indicates Grigsby might receive a sentence of 57 to 71 months based on sentencing guidelines. Unlike the Eighth Circuit, the Sixth Circuit found the government’s analysis under the guidelines instructive because the government often uses this range, rather than the maximum possible sentence, as a basis for negotiating plea agreements. The Court therefore found this range more useful when, as here, the government advances the length of sentence as a core reason why it wants to prosecute. The Court found that Grigsby had already been held since July 2010, or 33 months. It would take at least four months to restore him to competency, plus additional time to bring him to trial, and potentially additional time to re-restore him if he loses competency during the pendency of the trial. The Court also noted that often defendants plead guilty after they are restored to competency which reduces further their period of imprisonment under the guidelines. All of these factors indicated to the Court that Grigsby may remain in custody for a period roughly equivalent to the length of any prison sentence he might serve, thus lessening the government’s interest in prosecuting him.

The Court went on to find that antipsychotic medication can burden a defendant’s fair trial rights by affecting his ability to comprehend and react to trial events. Grigsby argued that he had trial-related concerns that tardive dyskinesia and akathisia, which causes constant movement and an inability to remain still, might impair his ability to make a dignified appearance before a jury and assist his counsel in his defense. Although the Court noted that the record indicates antipsychotic medication is generally effective in restoring competency especially in patient’s with Grigsby’s positive symptoms, it also found that the government’s psychiatrist testified that 30% of patients do not respond to haloperidol and another 30% show only a partial response. He also testified that 30% of individuals treated with haloperidol develop pseudoparkinsonism, 20-30% develop akathisia, 2-10% develop acute systonic reactions, and 18- 40% develop irreversible tardive dyskinesia. Although Grigsby had never previously been treated with antipsychotic medication, and the government psychiatrist testified that other medications would be prescribed to counter the side-effects and that the medication would be changed or discontinued if the side effects continued or irreversible side-effects developed, the Court nonetheless found that the record lacked clear and convincing evidence that medication is substantially unlikely to cause side effects that will interfere with Grigsby’s ability to assist in his defense.

Based upon all the facts above, the majority of the Sixth Circuit three-judge panel hearing the appeal found that the findings of the district court supporting an order authorizing involuntary medication were clearly erroneous. The Court reversed the district court order and remanded the case for further proceedings, specifying its expectation that the district court would determine whether civil commitment is appropriate for Grigsby. A dissent was filed in this case stating that the Court majority’s analysis of the special circumstances was highly speculative as to the likelihood of Grigsby’s civil commitment, his being found not guilty by reason of insanity, his pretrial confinement exceeding any sentence he might receive, and any side-effects impairing his pre-trial rights. Compare this decision with the decision in United States v. Mackey.

Found in DMHL Volume 32 Issue 3

Ninth Circuit Finds Constitutional Right to Testify at Competency Hearing; Right Can Only Be Waived by Defendant, Not Counsel

United States v. Gillenwater, 717 F.3d 1070 (9th Cir. 2013)

The Ninth Circuit Court of Appeals held on June 17, 2013 that a defendant has a constitutional and statutory right to testify at his pretrial competency hearing and only the defendant, not his counsel, can waive that right. The Court also held that the district court must first warn the defendant that his disruptive conduct may result in his removal from the courtroom and thus the loss of his right to testify. The Court further found that denial of the defendant’s right to testify in this case was not harmless error, resulting in reversal of the district court’s decision and remanding the case for a new pre-trial competency hearing.

The defendant Charles Lee Gillenwater, II, was charged in August 2011 in the Eastern District of Washington with two counts of transmission of threatening communications and a third count of transmission of threatening communications by United States mail. Gillenwater had previously worked on a construction project at Caesar’s Palace in Las Vegas, observed what he believed to be asbestos, and began taking increasingly drastic steps to report the situation to the Occupational Safety and Health Administration (“OSHA”). Following his indictment, the district court appointed the federal defender to represent Gillenwater. After the federal defender moved to withdraw as counsel, the court appointed a private attorney to represent him. Then after receiving several letters from Gillenwater concerning the public defender and hearing from the private attorney and Gillenwater in court, the court appointed additional counsel to meet with the defendant and report whether there was a need for a competency hearing. Upon receipt of this report, the court ordered a psychological evaluation and competency hearing.

Gillenwater was transferred to a federal detention center for evaluation but was uncooperative in the evaluation process. Although unable to fully interview Gillenwater or perform psychiatric tests, the examining psychologist submitted a report based upon her clinical interviews, observations of his behavior, and a review of his legal and medical records. The psychologist diagnosed Gillenwater as suffering from a delusional disorder, persecutory type that could substantially impair his ability to assist counsel in his defense. The psychologist reported and testified at the hearing that Gillenwater described his case as a government conspiracy to silence him from reporting OSHA violations and that he believed he was the victim of “tens of thousands” of computer attacks, that he was under constant surveillance, that people from OSHA and the casino were after him, and that newspapers had been bought off from reporting his allegations. Gillenwater had also accused his attorneys of committing crimes. According to law enforcement records, Gillenwater had contacted numerous State and federal officials including a US Senator from Washington state, saying powerful people were trying to kill his staff and frame him, and that the FBI would not protect him. Gillenwater also asked his attorney to subpoena 50-plus witnesses, including Obama Administration cabinet members, so that he could take his conspiracy theory to trial.

At the competency hearing held on January 12, 2012, the government only submitted the psychologist’s report and called her as a witness. It then recommended that Gillenwater receive competency-based restoration treatment. After the government finished introducing its evidence, Gillenwater’s attorney informed the court that Gillenwater wanted to testify but that he had advised him against it, and then stated the defendant had no further evidence. During this process, Gillenwater was whispering loudly to his attorney and then interrupted his counsel calling him a criminal. When admonished by the court for interrupting the proceedings, Gillenwater continued his expletive-filled remarks, and asked to be taken out of the courtroom, stating the evidence would clear him of the diagnosis, that the judge would not be a judge much longer, and that he would wait for the Republicans to be back in charge again. The court ordered him removed from the courtroom. It then found Gillenwater did not appear to understand the charges or the court process or to be able to assist counsel in his defense and ordered him remanded to the custody of the Attorney General for 60 days.

On appeal, the Ninth Circuit reviewed Gillenwater’s contention that he had been denied his right to testify at his pre-trial competency hearing and had not waived that right as a result of his disruptive behavior. The Ninth Circuit first determined that under federal law, 18 U.S.C. § 4247(d), a defendant has the right to testify at a pretrial competency hearing. The Ninth Circuit further found that the right to testify is contained in the Fourteenth Amendment due process guarantee of the right to be heard and to offer testimony. Moreover, the Ninth Circuit found that the right to testify is also embodied in the Compulsory Process Clause of the Sixth Amendment which grants a defendant the right to call witnesses in his favor. Logically included in that right, the Court noted, is the right to testify on one’s own behalf. This right is further found in the corollary to the Fifth Amendment right against self-incrimination. If a defendant cannot be compelled to testify against himself, he must also have the right to testify. Reviewing prior Supreme Court decisions holding that an individual has the right to testify in extrajudicial proceedings, such as probation revocation hearings and hearings involving termination of welfare benefits, the Ninth Circuit went on to hold that a defendant must have an equivalent right to testify in his pre-trial competency hearing.

The Ninth Circuit then held that because a defendant’s right to testify is a personal right, it can be relinquished only by the defendant himself, and the waiver must be knowing and intentional. The Court recognized that obtaining a knowing and intentional waiver may be difficult when the defendant’s competency is in question, but it noted that defense counsel plays an important role in ensuring that the defendant understands his right to testify, that it can be waived, and the consequences of either decision. Here, the Court found that Gillenwater clearly demonstrated that he wanted to testify despite his counsel’s advice to the contrary.

The Ninth Circuit also determined that a court has no affirmative duty to inform a defendant of his right to testify, but stated it does have a duty to warn the defendant of the consequences of his disruptive behavior before it removes him from the courtroom. In this case, the court never advised Gillenwater that his behavior could lead to the loss of his right to testify. Although Gillenwater asked to be removed from the courtroom, he never expressed any desire to waive his right to testify. The court did not expressly warn Gillenwater that his removal would result in the loss of his ability to testify and therefore he never effectively waived that right.

The Ninth Circuit went on to find that where a defendant is denied a constitutional right, the court on appeal must determine whether the denial was harmless error beyond a reasonable doubt. Here, the Court found that the district court only considered a single, incomplete psychological report and Gillenwater’s conduct in the courtroom. The Ninth Circuit found other ample evidence in the psychological report that Gillenwater was very intelligent, had no criminal history, and although he was hesitant to be interviewed, was pleasant, polite, cooperative, and articulate. Based on its review of the record, the Ninth Circuit found that the denial of the right to testify was harmless error and remanded the case for a new competency hearing. The Ninth Circuit then stated that if another competency hearing is held at which Gillenwater testifies, the district court must enter an order barring the use of his testimony at his trial. Such testimony may only be used to impeach Gillenwater if he testifies at trial, but not to prove his guilt.

Found in DMHL Volume 32 Issue 3

US Supreme Court Denies Habeas Relief in Michigan’s Denial of Diminished Capacity Defense

Metrish v. Lancaster, _ U.S. _, 17 133 S.Ct. 1781, 2013 WL 2149793 (No. 12-547, May 20, 2013)

The United States Supreme Court has denied a Michigan prisoner’s petition for Writ of Habeas Corpus arguing that Michigan had erroneously prevented him from presenting evidence of his diminished capacity to a charge of first degree murder. At the time this case first came to trial in 1993, the Michigan Court of Appeals had long recognized the defense of diminished capacity to negate the mens rea or specific intent element required to support a first degree murder conviction. Two years after the first trial, the Michigan Supreme Court held that the diminished capacity defense had been abolished following Michigan’s 1975 comprehensive enactment of its statutes related to the admissibility of evidence of mental illness and intellectual disability. Upon his retrial in 2005 and on direct appeal, the Michigan courts refused to allow the defendant to present evidence of diminished capacity rejecting his argument that retroactive application of the state’s Supreme Court decision did not violate his due process rights. The Sixth Circuit granted the petitioner habeas relief. The United States Supreme Court reversed finding that the state court decisions did not result in an unreasonable application of clearly established federal law as embodied in Supreme Court decisions. The Opinion is available on the Court’s website at: http://www.supremecourt.gov/opinions/12pdf/12-547_0pm1.pdf.

In April 1993, Burt Lancaster, a former police officer with a long history of mental illness, shot and killed his girlfriend in a shopping center parking lot. Lancaster was charged with first degree murder and possession of a firearm to commit a felony. At his jury trial in 1994, Lancaster raised the insanity and diminished capacity defenses. At that time, the Michigan Court of Appeals in a line of cases had permitted legally sane defendants to present evidence of mental abnormality to negate the specific intent or mens rea required to commit a crime. Even though he was allowed to present this evidence, the jury convicted him of both charges. Lancaster later obtained federal habeas corpus relief on different grounds because the prosecutor at his first trial had erroneously exercised a race-based preemptory challenge to a potential juror and was awarded a new trial.

Prior to his new trial, however, the Michigan Supreme Court determined that the Michigan legislature had enacted a comprehensive legislative scheme in 1975 establishing the requirements for introducing evidence related to a defense based upon mental illness or intellectual disability. People v. Carpenter, 627 N.W.2d 276 (Mich. 2001). That scheme essentially adopted the M’Naughten rule for asserting an insanity defense. It also required a 30- day notice of intent to use the defense and a court-ordered psychiatric examination. In addition, the legislature created a verdict of “guilty but mentally ill” for defendants who suffered from mental illness but did not satisfy the legal definition of insanity. Such defendants would be provided with treatment but would not be exempt from the sentencing provisions applicable to other criminal defendants. Although the legislation did not specifically address the diminished capacity defense, the Michigan Supreme Court found that by creating such a comprehensive statutory scheme, the diminished capacity defense was superseded by that scheme.

Upon retrial in 2005, the trial court refused to allow Lancaster to assert the diminished capacity defense based upon the decision in Carpenter and he was again found guilty of first degree murder and sentenced to life in prison. The Michigan appellate courts upheld the conviction and the United States District Court denied him habeas relief. On appeal, the Sixth Circuit Court of Appeals reversed holding that the Michigan Supreme Court’s decision in Carpenter was unforeseeable because of 1) the Michigan Court of Appeals’ consistent application of the diminished capacity defense, 2) the Michigan Supreme Court’s repeated references in dicta to the defense, and 3) the Michigan State Bar’s use of the defense in pattern jury instructions.

After granting the petition for Writ of Certiorari, the United States Supreme Court reversed the Sixth Circuit. Writing for a unanimous Court, Justice Ginsburg recognized that a state prisoner has a very high standard to meet to obtain habeas corpus relief from a federal court. To obtain such relief, the challenged court ruling must have unreasonably applied federal law clearly established in United States Supreme Court decisions. The Court declined to apply Bouie v. City of Columbia, 378 U.S. 347 (1964), as urged by Lancaster, a case in which the Court had preciously held that due process required state criminal statutes must give fair warning of the conduct they prohibit. In Bouie, African-American petitioners had been convicted of trespass under South Carolina law after they refused to comply with orders to leave a drug store’s restaurant, which was reserved for white customers. Unlike this case, the South Carolina Supreme Court had unexpectedly expanded narrow and precise statutory language that did not cover the defendants’ conduct.

Instead the Court relied upon Rogers v. Tennessee, 532 U.S. 451 (2001), a case that upheld the Tennessee Supreme Court’s retroactive abolishment of the year and a day rule, a common law rule that barred a murder conviction unless the victim died within a year and a day of the act. In Rogers, the Court held that the retroactive application of the decision did not violate due process. The Court recognized that the diminished capacity defense is not an outdated relic of the common law as is the year and a day rule. To the contrary, the Court observed that the Model Penal Code sets out a version of the defense whenever evidence may establish a defendant does not have the state of mind that is necessary to establish an element of the offense.

In addition, the American Bar Association approved criminal justice guidelines in 1993 that favor the admissibility of mental health evidence to negate mens rea, and a majority of States, including Virginia, allow such evidence in certain circumstances. Nevertheless, the Court held that it has never found a due process violation where a state supreme court “squarely addressing a particular issued for the first time, rejected a consistent line of lower court decisions based on the supreme court’s reasonable interpretation of the language of a controlling statute.” The Supreme Court therefore reversed the Sixth Circuit decision and denied Lancaster habeas relief.

Found in DMHL Volume 32 Issue 3

Virginia Supreme Court Holds Commitment Criteria Must Be Met at Time of Appeal; Case Not Moot Due to Loss of Firearms Right

Paugh v. Commonwealth, 286 Va. 85, 743 S.E.3d. 277 (2013)

The Virginia Supreme Court ruled on June 6, 2013, that Virginia Code § 37.2-821 requires a circuit court to determine whether an individual who is appealing the commitment decision of a general district court judge or special justice meets the commitment criteria on the date the circuit court conducts the de novo hearing.44 For the first time, the Supreme Court also held that, because the circuit court allowed the initial commitment order to remain intact, the individual was still subject to the collateral consequences of the order and the case was therefore not moot.

In most prior cases appealed to the Supreme Court, the Court has dismissed the appeal as moot because the commitment order appealed from, which lasts only 30 days in the case of an initial commitment and 180 days for continued commitments, has long since expired before it considers the case.46 Although the majority opinion did not so explicitly state, the collateral consequence argued by Paugh and alluded to in Justice William Mims concurring opinion and Justice Elizabeth McClanahan’s opinion concurring in part and dissenting in part, is an individual’s Second Amendment right to possess a firearm. In their separate opinions, Justice Mims and Justice McClanahan wrote that the proper procedure to challenge the validity of the underlying commitment decision is through a petition filed under Virginia Code § 37.2-846(A), a post-discharge process available to a person who has been committed but is no longer in custody,47 and not Code § 37.2-821, the statute that authorizes an appeal. Justice Mims then invited the General Assembly to clarify the process.

Facts and Procedural History

On March 19, 2012, a Henrico County Magistrate issued a temporary detention order (“TDO”) for Michael Paugh. The next day, March 20, 2012, a special justice involuntarily committed Paugh for a period of up to 30 days. The day after he was discharged, but within the 10-day time frame specified in the statute, Paugh appealed his commitment to the Henrico County Circuit Court under Virginia Code § 37.2-821. Although the statute requires that an appeal be given priority over all other pending matters, including criminal cases, the circuit court did not hear the case until May 18, 2012.

Over his objection, the circuit court admitted Paugh’s pre-admission screening report into evidence. The report contained information provided by Henrico police that they had obtained from a friend of Paugh’s indicating her belief that Paugh was suicidal and possessed guns.48 Paugh also argued that the circuit court should make a de novo determination as to whether he met the commitment criteria as of the date of the circuit court hearing, not as of the date of his admission under the TDO. The Commonwealth advised the court that because Paugh had been discharged, he no longer met the commitment criteria and it was not seeking his further hospitalization or commitment. The court ruled, however, that “common sense” required the court to conduct a de novo appeal of whether Paugh should have been admitted on the date the TDO was executed. After hearing the evidence, the circuit court determined that Paugh met the commitment criteria on the date of his temporary detention and denied his appeal.

On appeal, the Virginia Supreme Court reviewed whether the circuit court should evaluate the evidence as of the 1) date of admission, 2) the date of the hearing conducted by the general district court or special justice, or 3) the date of the de novo hearing in the circuit court. The Court relied on the principle of statutory construction that if the words of a statute are clear and unambiguous it need not look further than the plain meaning of the statute itself. It held therefore that “the day that the de novo hearing is conducted is the proper date on which to consider whether the individual should be committed.” Section 37.2-821(B) provides:

The appeal shall be heard de novo in accordance with the provisions set forth in §§ 37.2-802, 37.2-804, 37.2-804.1, 37.2-804.2, and 37.2-805, and (i) § 37.2-806 or (ii) 37.2-814 through 37.2-819, except that the court in its discretion may rely upon the evaluation report in the commitment hearing from which the appeal is taken instead of requiring a new evaluation pursuant to § 37.2-815. Any order of the circuit court shall not extend the period of involuntary admission or mandatory outpatient treatment set forth in the order appealed from. An order continuing the involuntary admission shall be entered only if the criteria in § 37.2-817 are met at the time the appeal is heard. (Emphasis added.)

The Court stated that this interpretation is further supported by the provision permitting the circuit court to order a new evaluation report rather than relying upon the previous one prepared at the time of the original commitment hearing.

As to the proper relief to be granted, the Court’s majority then found that a de novo hearing constitutes a statutory grant of a new trial and annuls the judgment of the district court as completely as if there had been no previous trial. The Court then determined that the case was before the circuit court on the petition for involuntary commitment. Because the Commonwealth conceded that Paugh had been discharged from his commitment and no longer met the criteria, the proper outcome therefore was to dismiss the petition for involuntary commitment. As a result, the original commitment order became a nullity.

The Supreme Court’s decision would have been straightforward had not Justice Mims filed a concurring opinion, and Justice McClanahan filed an opinion concurring in part and dissenting in part.

Justice Mims’ Opinion

Justice Mims reluctantly concurred in the result of this case, but only because he believed the circuit court, and hence the majority of the Supreme Court, incorrectly applied § 37.2-821 to this case, but the Commonwealth failed to object in the circuit court or to assign cross error. Justice Mims strongly agreed with the majority of the Court that this case was not moot because collateral consequences of constitutional magnitude were at stake for Paugh. In particular, he referenced in his footnote 2 that the particular consequence aggrieving Paugh was the effect of the initial commitment order which denied him the right to possess a firearm under Virginia Code § 18.2-308.1:3(A).

However, because his commitment order had expired and he no longer met the commitment criteria at the time of the circuit court de novo hearing, Justice Mims wrote that § 37.2-821 was not the proper process for Paugh to challenge his commitment in the general district court and the loss of his firearms rights. Section 37.2-821 should therefore be available only when the person remains involuntarily committed or, if no longer committed, remains subject to an involuntary commitment order.

Instead, Justice Mims wrote that an individual in Paugh’s situation can only challenge the collateral consequences resulting from his original commitment order by filing a separate action under § 37.2-846(A).49 That section provides that in cases in which an individual is not confined in a facility or institution, “the person may file his petition in the circuit court of the county or city in which he resides or in which he was found to have a mental illness or in which an order was entered authorizing his continued involuntary inpatient treatment pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of this title.” Had Paugh followed this process, Justice Mims then determined that the proper inquiry before the circuit court and this Court should have been whether Paugh’s commitment was according to the law on the day the order was entered rather than on the day of the hearing as contemplated by Code § 37.2-821. He then invited the legislature to take action to clarify the law: “To the extent this predicament resulted from the statutory scheme’s failure to anticipate that a Code § 37.2-821 hearing could occur long after a commitment had ended and the concomitant commitment order had expired, the General Assembly may wish to consider clarifying the interrelationship between Code §§ 37.2- 821 and 37.2-846(A).”

Justice McClanahan’s Opinion

Justice McClanahan, in her opinion concurring in part and dissenting in part, agreed with Justice Mims that Paugh erroneously filed an appeal under § 37.2-821 rather than utilizing the post-release procedure available under § 37.2-846(A) to challenge the validity of his underlying commitment. She agreed with the majority’s decision and Justice Mims that § 37.2-821 requires a determination as to whether the individual meets the commitment criteria at the time of the de novo circuit court decision, but disagreed with the remedy that the petition for involuntary commitment must be dismissed. Justice McClanahan wrote that the expedited appeal is established for the limited purpose of providing an opportunity to the individual to obtain his release if the evidence does not demonstrate he met the criteria for commitment at the time of the appeal. Because § 37.2-821(B) specifically states that the circuit court may enter “[a]n order continuing the involuntary admission only if the commitment criteria are met at the time the appeal is heard,” she concluded that such a finding does not mean that the initial commitment order was invalid. The remedy is therefore not dismissal of the petition for involuntary commitment.

Justice McClanahan recognized the practical effect of the majority’s opinion that every individual who has been involuntarily committed and appeals that commitment under § 37.2-821 but has already been discharged before the de novo hearing is held, or otherwise no longer meets the commitment criteria, will have his prohibition from purchasing, possessing or transporting a firearm negated. From arguments presented by Paugh in this appeal, avoidance of the firearms prohibition was his primary objective. Justice McClanahan wrote that “[a] more reasonable construction and application of this statutory scheme is that a successful 821 appeal terminates the effectiveness of the petition for involuntary commitment and accompanying commitment order, but does not result in its outright dismissal. Code § 37.2-846 would then provide the procedural avenue for challenging the validity of the underlying petition and commitment order.”

Unlike the majority and Justice Mims, Justice McClanahan would also have found the case pending before the circuit court moot based on her reasoning above because Paugh had already been released when he filed the appeal under § 37.2-821 and the circuit court could not have granted the relief he requested under that statute.

Conclusion

In spite of the well-reasoned concurring and dissenting opinions, the majority opinion controls. Individuals who have been involuntarily committed, but have been discharged, otherwise no longer meet commitment criteria, or whose 30-day commitment order has simply expired, may negate the collateral effects of the commitment order, such as their right to possess a firearm, simply by filing an appeal of their commitment order under § 37.2-821 within the 10-day time period. The Commonwealth will not be able to present evidence denying them relief.

Since the tragedy at Virginia Tech and the General Assembly’s mandate enacted in 2008 under Virginia Code § 37.2-819, general district court clerks have diligently provided certification of an individual’s commitment to the CCRE. Although circuit court clerk’s are also required to provide such information to the CCRE, there is no similar mandate that the circuit court clerk report that an individual’s commitment order has been negated. As a practical matter, it is therefore not clear whether clerks of court will automatically notify the state police to remove the individual’s name from the Central Criminal Records Exchange (“CCRE”), the state’s firearms registry, and that it will then be removed from the National Instant Criminal Background Check System (“NICS”), when an individual’s appeal succeeds in the circuit court. As Justice McClanahan pointed out, it is also not clear that the General Assembly intended such a result. The General Assembly may want to clarify the interrelationship between §§ 37.2- 821 and 37.2-846 and their effect on an individual’s right to possess a firearm at the next or in future sessions, as Justice Mims has invited.

Found in DMHL Volume 32 Issue 3

Eleventh Circuit Holds Florida Medicaid Program Required to Provide ABA Therapy When Medically Necessary As Treatment for Autism Spectrum Disorders

Garrido v. Interim Secretary, Florida Agency for Health Care Administration, 731 F.3d 1152 (11th Cir. 2013)

The Eleventh Circuit Court of Appeals upheld on September 30, 2013 the district court’s determination that Applied Behavioral Analysis (“ABA”) is not an experimental treatment and therefore must be provided to children screened under Florida Medicaid’s Early Periodic Screening, Diagnostic and Treatment Services (“EPSDT”) when the child’s physician determines the services are medically necessary.

Plaintiff K.G., through his next friend, Iliana Garrido, filed a complaint in federal district court in February 2011 against the Secretary of Florida’s Agency for Health Care Administration (“AHCA”) and Florida’s Medicaid administrator alleging that Florida’s denial of ABA therapy violates the Medicaid Act’s EPSDT provisions. Several months thereafter, I.D. and C.C. by their next friends were joined as plaintiffs. All three were Medicaid recipients under age 21 who had been diagnosed with autism or autism spectrum disorders during EPSDT screenings and had been prescribed ABA treatment by their physicians.

Medicaid is a jointly funded federal-state program that assists states in providing medical services to their needy citizens. Subject to the provisions of the Medicaid Act, states design their program. A state’s participation is voluntary, with all states now participating. But once a state decides to participate, it must comply with all federal statutory and regulatory requirements. One service states must provide is EPSDT for Medicaid-eligible minors under the age of 21. The EPSDT catch-all provision requires states to provide Medicaid-eligible minors “[s]uch other necessary health care, diagnostic services, treatment, and other measures…to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” 42 U.S.C. § 1396(r)(5). Such services, including preventive and rehabilitative services, must be provided if the service is medically necessary to “correct or ameliorate” a condition or defect discovered during an EPSDT screening.

Medicaid permits states to place appropriate limits on services based upon medical necessity. Under Florida’s regulatory scheme medically necessary services excludes treatment that is experimental or investigational. Florida defines a treatment as “experimental” when “reliable evidence shows that the consensus among experts regarding the drug, device, or medical treatment or procedure is that further studies or clinical trials are necessary to determine its maximum tolerated dose, toxicity, safety, or efficacy as compared with the standard means of treatment or diagnosis.” Fla. Admin. Code r.59G-1.010(84)(a)3. Florida’s Medicaid Handbook enumerates the specific behavioral health services covered by Florida Medicaid, and specifically excludes community behavioral health services for treatment of autism or pervasive developmental delay.

At a four-day bench trial, AHCA employees testified that the Agency did not follow the standard process for determining whether ABA therapy was experimental. By contrast, the plaintiffs presented testimony from numerous experts that ABA is the standard means for treating autism spectrum disorders. Experts also testified that ABA treatment was medically necessary for the individual plaintiffs. The district court thus found that ABA is a preventive or rehabilitative service that is medically necessary and not experimental. It therefore found that Florida is required to provide the service to Medicaid eligible minors under age 21 if necessary to correct or ameliorate a condition discovered in an EPSDT screen. The district court then entered a permanent injunction and declaratory judgment in favor of the plaintiffs and ordered Florida to provide ABA services.

On appeal, the Eleventh Circuit upheld the decision of the district court as not an abuse of discretion, but remanded the case to the district court to clarify its order that the declaratory judgment order and permanent injunction did not eliminate the requirement that Florida make individual medical necessity determinations, consistent with that court’s own findings and written decision.

Found in DMHL Volume 32 Issue 4

Washington Supreme Court Finds Competency Evaluation Open to Public When It Becomes Court Record

State v. Chen, 309 P.3d 410 (Wash. 2013)

Under Washington law, competency evaluations are confidential and available only to certain specified individuals with a need to access the information. The Washington Supreme Court held on September 5, 2013 that the State constitutional requirement that all cases be administered openly supersedes that law. A court may seal a competency evaluation only when it makes an individualized finding that factors enumerated in a Washington Supreme Court case, Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982) weigh in favor of sealing.

Defendant Louis Chen was charged with two counts of aggravated murder that occurred in August 2011. Chen’s attorney presented mitigation information to discourage the State from seeking the death penalty. Part of this information was an opinion from a psychiatrist that Chen was not competent to stand trial. As a result, the trial court ordered that Chen be evaluated by doctors at Washington’s Western State Hospital. After receipt of the evaluation, the court found Chen competent to stand trial. Chen moved to seal the competency evaluation, or in the alternative, to redact certain information. Under Washington law,

…all records and reports made pursuant to this chapter, shall be made available only upon request, to the committed person, to his or her attorney, to his or her personal physician, to the supervising community corrections officer, to the prosecuting attorney, to the court, to the protection and advocacy agency, or other expert or professional person who, upon proper showing demonstrates a need for access to such records.

RCW 10.77.210(1).

The trial court denied Chen’s motion to seal the evaluation, applying the Ishikawa factors, but did redact certain information contained in the report. Under Ishikawa, anyone seeking closure of court proceedings must make some showing of a compelling interest, and where the interest is based on a right other than the accused’s right to a fair trial, that showing must demonstrate a “serious and imminent threat” to that right. Anyone present must be given an opportunity to object to the closure. The method of closure must be the least restrictive means available for protecting the threatened interest. A television station was in the courtroom and objected to the motion to seal. Direct discretionary review of this decision was granted and during the pendency of the appeal, the trial court stayed its order and sealed the entire evaluation pending review.

On appeal, Chen first argued that if competency evaluations are subject to openness, the statute would be rendered meaningless. The Court held, however, that the statute applies until the competency evaluation becomes a court record, at which point it becomes open to the public. Chen also argued that important privacy issues are at stake and that public access could taint the jury pool. The Court found that these are important considerations, but they can be adequately addressed as part of a motion to seal. The Court found that competency determinations are an important turning point in the criminal process and the idea of a public check on the judicial process is especially important when competency is at issue. Having found that the statute conflicted with the State constitutional requirement of openness, and that Chen was seeking a blanket exclusion for all competency evaluations, the Court held that the trial court had not abused its discretion in refusing to seal the evaluation and to redact only certain portions of the report.

Found in DMHL Volume 32 Issue 4

New Jersey Supreme Court Holds Affirmative Defense and Insanity Defense Must Be Raised in Unitary Trial

State v. Handy, 215 N.J.Super. 334, 73 A.3d 421 (2013)

Overruling a prior and long-standing Appellate Court decision, the New Jersey Supreme Court held on September 9, 2013 that an insanity defense and the affirmative defense of selfdefense must be raised in the same unitary trial, and not in a bifurcated trial. The defendant who had a long history of mental illness was charged with the murder of his uncle. With the concurrence of his attorney, the insanity defense was imposed upon the defendant and the trial court required a bifurcated trial in which the issue of the defendant’s sanity would be tried first. If he did not prevail on the insanity defense, the defendant could then raise the defense of self-defense. The New Jersey Supreme Court reversed holding that the defendant was denied his Fifth Amendment Right to be free from double jeopardy and remanded the case for the defendant to pursue his self-defense claim. If unsuccessful, his insanity finding would stand. In all future cases, the Court held the two defenses must be tried in a unitary, not bifurcated proceeding.

In January 2004, Robert Handy was charged with the murder of his uncle. The uncle died from a single stab wound to the chest. Handy claimed his uncle hit him with a pipe. Police found a pipe with the words “King Reveal” marked on it near the crime scene and the same words tattooed on the uncle’s body. The uncle also had a long history of drug-related criminal activity, including an arrest one week prior to his death. Handy had a history of psychiatric problems with several in-patient hospitalizations. Five months prior to the stabbing, Handy was exhibiting bizarre behaviors and was admitted to a psychiatric hospital, suffering from paranoid schizophrenia. Upon his release approximately six weeks later, he promised to take his medications, but did not believe there was anything wrong with him. He then ceased taking his medications. He suffered from delusions about having been sexually and physically assaulted by hundreds of individuals while hospitalized, including his attorney and the judge who had presided over his case. He maintained a list of over forty individuals whom he claimed had assaulted him, with his uncle’s name at the top.

Following his arrest, Handy was transferred to the Ann Klein Forensic Services where he was forcibly medicated, and his mental status improved. A clinical psychologist at the forensic center reported that Handy was competent to stand trial even though he continued to suffer from paranoid delusions, including delusions that his attorney and a judge were still among those who had abused him at the hospital. She reported that Handy was likely to remain competent as long as he took his medications. The defense hired a psychologist who disagreed stating that Handy was not competent to stand trial and would not be until he was free from his persistent delusions. It was also his opinion that Handy’s prognosis was “poor” that he would ever be free of his delusions.

During the competency proceedings, the State argued that Handy was competent to stand trial and his attorney did not contest his competency, despite his expert’s opinion. Both attorneys also agreed that the two defenses of insanity and self-defense could not be tried together in the same, unified proceeding believing that a prior New Jersey Appellate Court decision, State v. Khan, 175 N.J. Super. 72 (App. Div. 1980), required a bifurcated trial. That case held that trying the defendant on two defenses together would lead to jury confusion and prejudice to the defendant. The State argued that insanity should be tried first to insure that the trier of fact would not be confused between the insanity defense and the self-defense claim. Handy argued, however, that he should be permitted to raise the self-defense claim first, arguing that if he prevailed on the substantive claim, the case would be over. The trial court ruled that the insanity defense should be tried first because it related to a substantive element of the offense rather than to an affirmative defense the defendant sought to interpose. Handy then waived his right to a jury trial on the insanity issue. The judge found him not guilty by reason of insanity (“NGRI”) and committed him for treatment. No further proceedings were conducted on the self-defense claim.

Handy appealed the NGRI finding to the Appellate Division. That court continued to hold that such cases should be tried in bifurcated proceedings, but found that the substantive defense should be tried first, followed by the insanity defense. It then remanded the case to the trial court, whereupon Handy would be presented with the option of waiving his right against double jeopardy. The NGRI finding would then be vacated and he would be tried first on the selfdefense claim. If he was unsuccessful, he then would be tried on the issue of his sanity at the time of the offense.

Handy appealed this decision to the New Jersey Supreme Court. The Supreme Court agreed with Handy that requiring him to surrender his NGRI finding would violate the constitutional prohibition against double jeopardy. The Court held that the bifurcated approach in Khan was no longer viable and should no longer be utilized by the courts. It held that in the future trials that involve both a substantive defense and an insanity defense, both defenses must be tried in a unitary proceeding. The Court reasoned that neither the state nor the federal constitution gives defendants the right to have a trial proceed in two stages. Trials are ordinarily tried in one proceeding in which all claims are adjudicated together. As a practical matter, the trier of fact needs all of the evidence to make a reasoned decision. In a case such as this in which the defendant relies on self-defense, most of the evidence about the defendant’s delusions would be admissible to rebut the reasonableness of the defendant’s belief concerning the use of deadly force. Because the State must also present evidence of mental status to prove intent, offering only part of that evidence would provide the jury with a less-than-complete and inaccurate record.

The Court went on to find in this case that requiring the defendant to relinquish the insanity finding would violate the defendant’s Fifth Amendment protection against twice being put in jeopardy for the same offense. The Court therefore held that in this case alone, the defendant, if found competent to stand trial, should be provided the opportunity to be acquitted of the crime on his self-defense theory. If acquitted, he would be free of the charge. If convicted, the insanity verdict would still stand and he would be committed for treatment.

The Court also noted the confusion between whether a defendant can be competent to stand trial and competent to waive the insanity defense. It held that the same procedure should be utilized to determine whether a defendant is competent to waive the insanity defense as is applied in evaluating whether a defendant can waive other significant rights. It said the court should conduct a thorough and searching inquiry of an otherwise competent defendant’s understanding of the nature of the right being waived and the implications flowing from that choice to determine whether the waiver is knowing, voluntary and intelligent.

Found in DMHL Volume 32 Issue 4

Texas Appellate Court Finds Trial Court Lacks Authority to Order Incompetent Inmate to Be Involuntarily Medicated to Restore His Competency to Be Executed

Staley v. Texas, _ S.W.3d _, 2013 WL 4820128 (Tex.Crim.App. 2013)

The Texas Court of Criminal Appeals held on September 13, 2013 that a trial court had no authority to order a mentally ill inmate, who had previously been found incompetent to be executed to be medicated under the State’s competency-to-be-executed statute and therefore vacated the execution order.

In 1991, Steven Kenneth Staley was convicted of capital murder when he and two others rounded up a group of employees at a restaurant, threatened them with firearms, and killed the manager after taking him hostage. The trial court has since held two competency hearings finding Staley incompetent to be executed at the first hearing, and competent at the second.

A month before his scheduled execution in 2006, Staley filed a motion challenging his competence to be executed, arguing that his competence was “artificial” due to his involuntary medication. The trial court appointed two clinical forensic psychologists as experts to evaluate him. They both found that Staley suffered from paranoid schizophrenia for which he had routinely been diagnosed for 15 years, and that his condition had deteriorated over time. They reported that although he understood he was to be executed, Staley did not have a rational understanding of the reason for his execution. They further testified that Staley had been prescribed medications, mainly Haldol, through the years but that he had not consistently complied with his mediation regimen. In the months immediately preceding the competency evaluations, he had frequently refused the mediation.

One of the evaluators testified that Staley demonstrated numerous symptoms of psychosis over the years, including self-inflicted injuries, grossly neglected personal hygiene, including resting in his own urine and excrement, irregular eating and sleeping habits, and delusions of paralysis to the extent of lying in bed so long as to rub a bald spot on his head. The psychologist further described Staley’s history of spontaneously and repeatedly refusing medication, and testified that he would probably require compulsory medication for long-term control of his symptoms. He stated that good medical practice would involve medication to control his symptoms.

The other clinical psychologist also testified that Staley’s symptoms included “syntactical aphasia,” which is the nonsensical ordering of words as well as the regular use of fictitious language. He further testified that when Staley was medication compliant he showed no symptoms of decompensation, but he frequently refused medication because he denied his illness, believing it was an attempt to poison him. Based on all of the testimony, the trial court found Staley incompetent to be executed.

The following month, the State moved the trial court to order involuntary medication, arguing both the medical purpose of the medication and the State’s interest in enforcing the judgment. Staley opposed the motion arguing that the side effects of the medication were harmful, and that the medication only produced “artificial competence” and did not therefore meet the competency-to-be-executed standard under the federal or Texas constitutions or the Texas statute.

The trial court authorized the involuntary medication finding that (1) the State has a legitimate interest in enforcing the sentence that is not outweighed by the inmate’s interest in avoiding medication; (2) the medication is the least intrusive and only method of achieving competency; (3) compelling medication is in the inmate’s best medical interest because without it he will suffer “frightening delusions and general disorder within his mind” and there is no evidence he had suffered side effects from the medication; and (4) without medication he posed a danger to himself and others. Staley immediately appealed this decision to the Court of Criminal Appeals, but the Court found the involuntary medication order to be a non-appealable interlocutory order.

In 2012, the State filed a request with the trial court for a further competency examination. The court heard evidence from one of the clinical psychologists who had testified at the first hearing and another clinical psychologist, both of whom found Staley was now competent to be executed. They testified that although Staley was experiencing delusional thoughts, his symptoms were under control with about 60% compliance with Haldol and that he knew many of the details of the litigation and crime. He knew the names of the defense attorneys, prosecutors, and the victim, and that the death penalty was, in his words, to “retribute the public for a heinous crime.” He also understood the lethal injection process and described the death process as permanently going to sleep. Staley did not actually believe, however, that he would be executed because he thought his attorneys would obtain a stay. One expert testified that Staley met the competence-to-be-executed standard under the statute because he understood (1) that he was to be executed and his execution was imminent and (2) the reason for his execution. After hearing the evidence, the trial court found Staley competent to be executed, but only because of the effects of forced medication. Staley then appealed this decision to the Texas Court of Criminal Appeals arguing, among other things, that the trial court lacked authority to order his involuntary medication to restore him to competency to be executed.

On appeal, the Texas Appellate Court observed that a trial court derives its jurisdiction only from state law or the Texas Constitution, and once a conviction has been affirmed on appeal, general jurisdiction is not restored in the trial court. A trial court obtains jurisdiction post-conviction under a number of different Texas statutes, for example, to set an execution date, conduct DNA testing, or determine whether an inmate is competent to be executed. If an execution is stayed based on a determination that the inmate is incompetent, the trial court is required to order the inmate’s periodic re-evaluation by mental health experts to determine whether he is no longer incompetent to be executed. The Court held, however, that the statute does not convey the authority on the trial court to order involuntary medication to restore the inmate to competency to be executed. The Court rejected the State’s argument that the trial court had inherent or implied authority to order involuntary medication or that such a lack of authority would produce an absurd result in cases such as this.

By contrast, Texas statutes permit the involuntary medication of people who are involuntarily committed, or are incompetent and awaiting trial. The Court noted that in Texas this process involves an administrative hearing, not a judicial hearing, before a non-treating psychiatrist. Trial courts may also order a defendant to be forcibly medicated when under court order to receive inpatient mental health services or to be restored to competency to stand trial, but not to be executed.

Because the evidence demonstrated that Staley would have been incompetent to be executed but for the trial court’s involuntary medication order, the Court held that he did not meet the competency-to-be-executed definition under the Texas statute or the Texas or federal constitutions. The trial court’s unauthorized order was the sole cause of the transformation of evidence from supporting a finding of incompetence to one of competence. The Court therefore vacated the finding of competence and remanded the case to the trial court for periodic reexaminations of Staley’s competence to be executed.

Found in DMHL Volume 32 Issue 4

Fifth Circuit Holds Capital Defendant Not Entitled to All Expert Funding Requested; Was Competent-to-Be-Executed; Edwards Decision on State’s Right to Deny Self-Representation Not Retroactive

Panetti v. Stephens, 727 F.3d 398 (5th Cir. 2013.)

The Fifth Circuit Court of Appeals upheld the death penalty on August 21, 2013 for a mentally ill inmate alleging incompetence-to-be-executed, finding the district court’s decision to deny funding for additional expert assistance and testing was not an abuse of discretion. The Fifth Circuit also held that the district court’s decision weighed all of the evidence, including the inmate’s secretly recorded conversations with family, and was therefore not clearly erroneous. The Court further held that the United States Supreme Court case of Indiana v. Edwards, 554 U.S. 164 (2008), holding that the State may prohibit a mentally ill inmate found competent to stand trial from representing himself at trial had no retroactive application in federal habeas corpus proceedings.

In 1992, Scott Louis Panetti shot his estranged wife’s parents at close range, killing them and spraying his wife and three-year-old daughter with their blood. Panetti demanded to represent himself at trial although he had a long history of schizophrenia, and in spite of the trial judge’s pleas to accept counsel. His only defense was insanity. His appointed standby counsel described his self-representation as bizarre and his trial a farce and mockery of self-representation. The jury convicted him of capital murder and sentenced him to death. The conviction and sentence were upheld on direct appeal and collateral review.

In October 2003, the trial court set an execution date and Panetti filed a motion alleging for the first time that he was incompetent-to-be-executed. The trial court rejected the motion without a hearing. Texas law required Panetti to make a “substantial showing of incompetency” before entitling him to court-appointed experts. On federal habeas review, Panetti submitted additional evidence of mental illness and the district court stayed the execution to permit the state trial court to consider the renewed motion in light of the supplemental evidence. In February 2004, the state court appointed a psychiatrist and a clinical psychologist to examine Panetti, implicitly finding he had made a substantial showing of incompetency. These experts filed a joint report finding Panetti competent-to-be-executed. Without holding a hearing or ruling on Panetti’s motion to appoint him his own experts, the trial court found Panetti competent-to-be-executed.

Panetti then returned to federal court arguing that Texas’ failure to appoint him mental health experts and provide a hearing violated his due process rights under Ford v. Wainright, 477 U.S. 399 (1986). Ford held that denying a prisoner the right to present and rebut evidence in a competency-to-be-executed proceeding violated due process. The district court agreed and also found that such a denial by the state court was not entitled to deference under the Antiterrorism and Effective Death Penalty Act. Panetti’s experts then testified that he understood the reason for his execution – the murder of his in-laws, but his delusions caused him to believe Texas was in league with the forces of evil and sought to prevent him from preaching the Gospel. The State’s experts agreed Panetti was mentally ill, but his behavior was attributed to malingering. After hearing the evidence, the district court found that Panetti’s delusional belief system prevented him from rationally appreciating the connection between his crimes and his execution. But the district court found Panetti competent to be executed because the Fifth Circuit standard at that time was that the prisoner only needed to know the fact of his impending execution and the reason for it. The Fifth Circuit affirmed the district court decision and Panetti petitioned the United States Supreme Court for review.

In 2007, the United States Supreme Court granted Panetti’s petition for certiorari and reversed, finding the Fifth Circuit’s standard for competency-to-be-executed too restrictive. Declining, to set out a standard, the Supreme Court remanded the case requiring the district court to determine in a more definitive manner the nature and severity of Panetti’s mental health problems and whether his delusions impaired his concept of reality to the extent that he did not have a rational understanding of the reason for the execution. Panetti v. Quarterman, 551 U.S. 930 (2007).

On remand, the defense hired three experts, a clinical neurologist, a forensic psychiatrist and a forensic psychologist who had examined Panetti for the original hearing in 2004. These experts evaluated Panetti for a combined total of over 15 hours and administered a battery of tests designed to detect the likelihood of malingering. The district court authorized $9000 to pay the experts, but rejected his requests for additional funding. These experts all diagnosed Panetti with schizophrenia, although the psychologist who had examined him previously found Panetti had markedly improved since his 2004 examination. The other two experts testified that Panetti suffered from a genuine delusion that he was on death row to preach the Gospel and save souls. The defense also called two death row inmates who testified that Panetti preached incessantly in his cell and in the day room even though it irritated other inmates.

Texas presented testimony from a forensic psychologist and an expert psychiatrist and neurologist. Both testified that Panetti was partially fabricating his symptoms to thwart attempts to administer tests to detect malingering. The psychiatrist also doubted whether he was suffering from any form of mental illness, and was emphatic that Panetti had a rational understanding between his crime and execution because of his repeated assertions that he was unjustly convicted despite his insanity and that God had forgiven his guilt. Texas also called three correctional guards as witnesses who testified Panetti was never a problem; was generally wellbehaved, but would often have some religious statement to make; that the preaching was well thought out and the same as you would hear at church; and that some guards would assign Panetti to a cell to get revenge on an inmate because they knew his constant preaching would irritate him.

Texas also presented secret recordings of his conversations with his family. The tapes indicated that while Panetti did quote scripture and make religious comments, he did not rant or preach, and the conversations involved extended discussion about the trial judge’s corruptness and ineptitude. The district court’s summary of the tapes reflects that Panetti at no time became irrational, tangential or pressured in his speech. His comments about his legal proceedings reflected a fairly sophisticated understanding of his circumstances.

After hearing all of this evidence, the district court found that Panetti was seriously mentally ill and suffered from paranoid delusions of some type. The court also determined that Panetti was exaggerating some of his symptoms to avoid execution, stating that Panetti demonstrated a fairly sophisticated understanding of his case and that his refusal to cooperate with State experts contrasted with his treatment of his own experts. The district court then determined that Panetti had both a factual and rational understanding of his crime, his impending death and the causal retributive connection between the two.

On appeal, the Fifth Circuit first determined that the district court did not abuse its discretion in refusing to provide additional funding to permit his experts to review the secret recordings and to obtain a PET scan to detect malingering. The Fifth Circuit found that the district court authorized $9000 to fund an expert team to assist Panetti in presenting his competency evidence and they were able to review a large number of the secret recordings. The request for a PET scan also violated the court’s scheduling order. Although the Supreme Court’s decisions in Ford and Panetti established a constitutional right to expert assistance in Eighth Amendment competency-to-be-executed hearings, the Court held the cases merely entitle the inmate to an opportunity to present his own expert testimony before a neutral decision maker. The decisions do not require the court to provide all of the expert assistance the inmate requests.

The Fifth Circuit also agreed that the Supreme Court’s remand required a “rational understanding” test for Eighth Amendment competency-to-be-executed proceedings, but disagreed with the district court determination, finding that the test is not the same as the Dusky standard applied in competency to stand trial situations. The Eighth Amendment standard arises out of the retributive value of executing a person who has no comprehension of why he is being executed and the abhorrence of civilized societies to kill someone who has no capacity to come to grips with his own conscience or deity. Nonetheless, the Fifth Circuit agreed that the district court applied the correct rational understanding analysis in finding Panetti had both a factual and rational understanding of his crime, his impending death and the causal retributive connection between the two, based especially upon Panetti’s rationally articulated position that his punishment was unjustified because of his insanity at the time of his offense. The Fifth Circuit then found that the expert testimony was conflicting and that the district court’s finding of competency was therefore not clearly erroneous. The Court also found that the secret recordings generally corroborated the testimony of the State’s experts and that Panetti actually understood the reason for his punishment.

Finally, Panetti raised for the first time before the Fifth Circuit the issue that the State should not have permitted him to represent himself at trial. At the time of his trial, Panetti had been found competent to stand trial and then insisted on exercising his right of selfrepresentation. The United States Supreme Court cases of Faretta v. California, 422 U.S. 806 (1975), holding that defendants have a Sixth Amendment right to represent themselves, and Godinez v. Moran, 509 U.S. 389 (1993), suggesting that this right was absolute even if invoked by a severely mentally ill defendant, had been decided at the time of Panetti’s trial. The Supreme Court later held in Indiana v. Edwards, 554 U.S. 164 (2008), after Panetti’s trial, that the right of self-representation was not absolute and the State could insist that an attorney be appointed to represent a mentally ill defendant even though he had been found competent to stand trial.

The Fifth Circuit found, however, that this decision had no retroactive application to habeas petitions. In order to apply a new rule of constitutional law retroactively to federal habeas proceedings, the new rule must be a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceedings. The Court found that the right of the State to impose representation on a mentally ill defendant did not effect a sea change in criminal procedure. The Edwards decision also only applies in the exceptional situation where the defendant is competent to stand trial but so severely mentally ill that his self-representation threatens an improper conviction or sentence. Furthermore, Edwards is only permissive, allowing the state to insist on counsel but not requiring that it do so. The Court held that its application was therefore not retroactive.

Found in DMHL Volume 32 Issue 4

Sixth Circuit Upholds Death Penalty on Basis of One IQ Finding of 71

O’Neal v. Bagley, 728 F.3d 552 (6th Cir. 2013)

In deferring to the findings of the state trial court relying primarily on a single IQ score of 71, the Sixth Circuit Court of Appeals denied habeas corpus relief to an inmate convicted of killing his wife and sentenced to death. One dissenting judge on the three-judge panel disagreed writing that the state court’s opinion was so far outside the mainstream of scientific opinion that it was not entitled to deference.

In September 1993, James O’Neal and his wife moved into a house in Cincinnati, Ohio, with four children from his wife’s prior relationships, and his two children from his prior relationships. In December 1993, an altercation broke out between O’Neal and his wife and she threw O’Neal and his children out of the house. As a result, O’Neal “took to the streets” and it was not clear where the children went. On December 11th, O’Neal returned to the house to “teach his wife a lesson,” breaking down the door and following her to an upstairs bedroom, where he fired three shots at her, one of which was fatal. Her son Ricardo testified that O’Neal tried to shoot him but gave up when his gun jammed.

A jury convicted O’Neal of aggravated murder and recommended the death penalty, which was upheld on direct appeal. Following the United States Supreme Court decision in Atkins v. Virginia, 536 U.S. 304 (2002), O’Neal sought post-conviction relief, filing eighteen claims for relief, one of which alleged he was mentally retarded. The district court rejected the claims based on either procedural default or on the merits of each claim. Four claims were certified as appealable to the Sixth Circuit.

On August 26, 2013, the Sixth Circuit rejected each of the claims, most notably O’Neal’s claim of mental retardation. Under the Antiterrorism and Effective Death Penalty Act, the Court held that O’Neal is entitled to relief only if he can establish that the state appellate court unreasonably determined the facts in light of the evidence presented. O’Neal failed to rebut the presumption raised by an over-70 IQ score by clear and convincing evidence.

In Atkins, the United States Supreme Court held that the execution of individuals with mental retardation violates the Eighth Amendment prohibition against cruel and unusual punishment. The Court left it to the states to define mental retardation. The Ohio Supreme Court adopted the definitions of the American Association of Mental Retardation and American Psychiatric Association in State v. Lott, 779 N.E.2d 1011 (Ohio 2002), holding that an individual is mentally retarded if he has: “(1) significantly sub-average intellectual functioning, (2) significant limitations in two or more adaptive skills, such as communication, self-care, and selfdirection, and (3) onset before the age of 18.” Unlike Florida, it added that there is a rebuttable presumption that an individual is not mentally retarded if his IQ is above 70.

In upholding the finding of the trial court, the state appellate court determined that O’Neal was not mentally retarded because he did not suffer from significantly sub-average intellectual function based on an IQ score of over 70 and did not have limitations in two or more adaptive skills. In separately administered IQ tests, O’Neal scored below 70 on three occasions between 1968 and 2004, and only once scored 71 in 1994. O’Neal’s expert clinical psychologist testified that he suffered from mild cerebral dysfunction which contributed to his low intellectual function and thus had a significant limitation in academic skills. His expert also testified that O’Neal had little ability to consider alternative modes of dealing with stressful situations or situations he found threatening, demonstrating significant limitations in social skills. Based on these findings, O’Neal’s expert diagnosed him as suffering from mild to borderline mental retardation.

The Sixth Circuit determined based on all the evidence that reasonable minds could differ on whether O’Neal was mentally retarded or not, and as a result he did not carry his burden of undermining the state court’s factual findings by clear and convincing evidence. The Court reasoned that three sub-70 IQ scores were insufficient alone to prove O’Neal had significant subaverage intellectual functioning. Another clinical psychologist who evaluated O’Neal prior to trial and a third who reviewed the evaluations and other records at the State’s request but never met O’Neal face-to-face, both concluded that O’Neal functions at a higher level than his IQ scores suggest. The third psychologist noted that O’Neal functions in at least the borderline range of practical adaptive skills, but attributed his social limitations to drug abuse and personality disorder rather than specific intellectual/adaptive behavior deficits.

One judge on the three-judge panel dissented writing that reliance on one IQ scored over 70 alone was not supported by scientific literature or the Supreme Court decision in Atkins. That Court determined that a single IQ test of 71 could not be a proper basis for finding normality, pointing out that the literature considers that between 1% and 3% of the population has an IQ score between 70 and 75 or lower. The dissent points out that O’Neal’s IQ scores were all below 70 except one. O’Neal’s expert testified that the 71 score was the result of an old Wechsler test which turned out to be 67 when the test was re-administered. The dissent states that this one-test methodology does not comply with standards established by modern scientific opinion or the Supreme Court in Atkins.

The dissent further points out that the state court relied on the opinions of two psychologists who did not testify at the mental retardation hearing, and one of whom never evaluated O’Neal regarding his adaptive skills. The state court relied on the fact that O’Neal worked as a dishwasher, briefly had custody of his children, and served as a marine to demonstrate that his social adaptive functioning was normal. The dissent disagreed stating that many individuals with intellectual disability maintain employment but O’Neal’s work history was riddled with absenteeism and tardiness. O’Neal also was AWOL from the marines and dishonorably discharged. O’Neal also admitted to police that he did not know where his children were living when he killed his wife. For these reasons, the dissenting judge determined that the findings of the state appellate court were not entitled to deference.

Found in DMHL Volume 32 Issue 4

United States Supreme Court to Review Florida’s Bright-Line IQ Test to Determine Mental Retardation in Capital Cases

Hall v. Florida, No. 12-10882, _S. Ct._, 2013 WL 3153535(mem) (Oct. 21, 2013)

The United States Supreme Court has granted a capital prisoner’s Petition for Writ of Certiorari to determine whether Florida’s scheme utilizing a bright-line IQ score of 70 for identifying defendants with mental retardation in capital cases violates Atkins v. Virginia. In Atkins v.  Virginia, 536 U.S. 304 (2002), the Supreme Court held that the execution of defendants with mental retardation violates the Eighth Amendment prohibition against cruel and unusual punishment. In a per curiam opinion, the Florida Supreme Court determined that the defendant could not meet the first prong of the mental retardation standard establishing a maximum IQ score of 70 and upheld his death sentence. Hall v. Florida, 109 So. Ed 704 (Fla. 2012). Should the Supreme Court overturn Florida’s scheme, the decision could impact mental retardation determinations in the states that still employ the death penalty, especially the twelve states, including Virginia, that have either a statutory or case law bright-line rule that does not apply the standard error measurement.

Freddie Lee Hall was convicted in 1981 for the 1978 murder of a man he kidnapped while robbing a convenience store. Upon fleeing the scene of the robbery, Hall stole a car and kidnapped his victim, and then drove approximately 18 miles to a wooded area where he killed him. Hall appealed his conviction, which was upheld, and filed numerous post-conviction petitions through the years, all of which were eventually denied.

In 1988, Hall again challenged his death sentence, arguing based on a then recently decided United States Supreme Court decision holding that all mitigating factors, and not just statutory mitigation, must be considered by the judge and jury. The Florida Supreme Court granted Hall’s petition in 1989 and remanded his case to the trial court for a new sentencing proceeding. During his resentencing hearing, the trial court found Hall to be mentally retarded as a mitigating factor but gave it “unquantifiable” weight, finding aggravating factors that outweighed the mental retardation factor, and again sentenced him to death. The Florida Supreme Court upheld this decision in 1993. Hall again pursued post-conviction relief which the Florida Supreme Court denied, finding that the trial court did not err in finding him competent to proceed at the resentencing, but writing “while there is no doubt that [Hall] has serious mental difficulties, is probably somewhat retarded, and certainly has learning difficulties and a speech impediment, the Court finds that [Hall] was competent at the resentencing hearings.” Hall v. State, 742 So.2d 225, 229 (Fla. 1999).

In 2002, the United States Supreme Court decided Atkins, holding that imposition of the death penalty for defendants with mental retardation violates the Eighth Amendment prohibition against cruel and unusual punishment. The Supreme Court, however, left it to the States to determine how to measure mental retardation. Following this decision, Hall filed a motion to vacate his sentence, arguing among other things, that the issue of his mental retardation could not be re-litigated because he had already been found mentally retarded at his mitigation resentencing hearing. The trial court denied this motion, and at the 2-day evidentiary hearing in December 2009, testimony was presented concerning Hall’s behavior and functioning as a child, including his problems with reading, writing and caring for himself. One expert testified that Hall’s IQ using the Wechsler Adult Intelligence Scale Revised was 73, and that a prior result given by another psychologist on the same test was 80. Another expert testified that Hall scored a 71 on the Wechsler Adult Intelligence Scale Third Edition (WAIS-III). Hall also sought to introduce a report completed by a then-deceased expert reflecting a score of 69, which the court refused to admit into evidence. The trial court then refused to vacate Hall’s sentence because he could not meet the first prong of the mental retardation standard – an IQ of 70 or below.

Florida statute § 921.137(1), adopted in 2001 prior to the Atkins decision, but after Hall’s mitigation resentencing hearing, defines mental retardation as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” It defines “significantly subaverage general intellectual functioning” as “performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Agency for Persons with Disabilities.” Two standard deviations of 15 points each from the mean of 100 is an IQ score of 70.

On appeal, Hall argued, among other things, that IQ should be read as a range of scores from 67 to 75 and that Florida’s adoption of a firm cutoff of 70 or below misapplies Atkins and fails to reflect an understanding of IQ testing. He argued that the appropriate standard should also include the standard error measurement (SEM). Relying on its precedent interpreting the statute, the Florida Supreme Court stated that the Florida statute does not use the word “approximate,” nor does it reference the standard error measurement. Based on the plain meaning of the statute, the Court held that the legislature established a bright-line IQ standard of 70 from which it could not deviate. It further found that Atkins did not mandate a specific IQ score or range of scores. Because Hall could not meet the first standard of an IQ of 70 or below, the Court held that the trial court did not err in refusing to admit evidence establishing deficits in Hall’s adaptive behavior that manifested before age 18.

The Court also found the trial court did not err in refusing to admit the report of the deceased psychologist reflecting an IQ of 69 because the underlying data supporting the report were not available and subject to challenge by the State. The Court also rejected Hall’s argument that Florida was precluded from challenging his mental retardation because the trial court had previously found him to be mentally retarded during the previous resentencing hearing on mitigation The Court found that the mitigation hearing occurred prior to the enactment of the Florida statute defining mental retardation and the current definition controlled, and that mental retardation as a mitigating factor and mental retardation under Atkins were discrete legal issues.

Three justices concurred in the per curiam opinion and one justice concurred separately in the result, also finding a strict cutoff IQ of 70 based upon a plain reading of the statute. The concurring justice focused his opinion, however, on the lack of issue preclusion from the mitigation hearing. He stated that even though the trial court at the mitigation hearing found Hall to be mentally retarded, it expressed concerns throughout the hearing that Hall’s experts were exaggerating his inabilities. The justice also noted that Hall’s crime reflected more deliberation and planning than would be expected from a typical defendant with mental retardation.

The majority of the Florida Supreme Court did not address the constitutionality of Florida’s statutory scheme. Two dissenting justices did, however. One justice wrote that the trial court had found that Hall had been mentally retarded his entire life but ironically his execution was being permitted solely by the Legislature’s after-enacted and inflexible definition of mental retardation. He noted that Atkins did not prescribe any bright-line cutoff, although it stated that “mild” mental retardation is typically used to describe someone with an IQ level in the range of 50 to 70. Because of the difficulty in determining which offenders are in fact mentally retarded, the Supreme Court left it to the States to develop “appropriate” ways to enforce the constitutional restriction on execution of sentences. This justice would have found therefore that imposition of a bright-line IQ cutoff was not “appropriate” when there was ample evidence of mental retardation from an early age.

The second dissenting justice wrote that imposing the death sentence on a prisoner who had been found mentally retarded even though he could not establish an IQ of below 70 would produce an absurd result. He went on to recite the record evidence reflecting Hall’s mental retardation, including testimony of an IQ of 60, his organic brain damage, chronic psychosis, speech impediment and learning disability. The justice wrote that Hall is functionally illiterate and has the short-term memory of a first grader. He indicated that the evidence also suggested that Hall was suffering from a mental and emotional disturbance, and to some extent may have been unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

The justice also wrote that the record reflected Hall suffered tremendous physical abuse and torture as a child. He was the sixteenth of seventeen children and was tortured by his mother. She tied him in a “croaker” sack, swinging it over a fire and beat him; buried him in the sand up to his neck to strengthen his legs; tied his hands to a rope attached to a ceiling beam and beat him while naked; locked him in a smokehouse for extended periods; and held a gun on him and his siblings while poking them with sticks. The justice went on to write that the Supreme Court articulated in Atkins that those with disabilities in areas of reasoning, judgment and control of their impulses do not act with the same level of moral culpability that characterizes the most serious criminal conduct and in the interest of justice, he would have vacated the sentence.

The Supreme Court should hear this case during its January term and its decision may provide more guidance to the States in implementation of the death penalty for defendants alleging mental retardation. Florida is not unique in its use of a bright-line IQ score of 70, but there is no clear consensus among the States on this issue. Ten states among those that still impose the death penalty, including Virginia under Va. Code § 19.2-264.3:1.1(A), have a statutory bright-line rule and do not apply the standard error measurement. Two additional states, Alabama and Kansas, apply a bright-line rule through court decision. Sixteen states apply the standard error measurement, including ten states without a bright-line cutoff. The application of the standard error measurement to IQ scores in the remaining four states is unclear.

Found in DMHL Volume 32 Issue 4

Tenth Circuit Holds Insanity Defense Precludes “Acceptance-ofResponsibility” Downward Adjustment to Sentencing Guidelines

United States v. Herriman, 739 F.3d 1250 (10th Cir. 2014)

The Tenth Circuit Court of Appeals upheld on January 14, 2014, the district court’s refusal to give a defendant a reduction from the sentencing guidelines based on his acceptance of responsibility for his criminal acts because he raised an affirmative insanity defense. In refusing to approve a sentencing reduction, the Court of Appeals distinguished the insanity defense which the defendant must raise and prove by clear and convincing evidence from a mens rea challenge, which is an element of the offense the prosecution must prove beyond a reasonable doubt, and for which a court in its discretion may accord a sentence reduction.

In August 2011, Daniel Herriman planted a bomb near a gas pipeline in Oklahoma. When he saw on the news that police had discovered the bomb, he called the police and told them he was responsible. When the police interviewed him, he provided details relating to the bomb, including what materials he used to make it and where they could be located in his house. After investigation and a search of his house, the government charged Herriman with attempting to destroy or damage property by means of an explosive and with illegally making a destructive device.

During pretrial proceedings, the district court became concerned about Herriman’s competency to stand trial and ordered a mental evaluation. A forensic psychologist with the Bureau of Prisons examined him and found him competent to stand trial, a finding which the court accepted. Herriman then gave notice that he would raise an insanity defense. At trial, he did not challenge the prosecution’s evidence that he had constructed and placed the explosive device. In support of his insanity defense, Herriman presented evidence that he had been diagnosed with manic depression, schizoaffective disorder, and post-traumatic stress disorder caused by sexual abuse he had experienced as a child. He had attempted suicide at age 13 and had been repeatedly hospitalized for psychotic episodes. Herriman had also been upset by the death of his mother by suicide and by the death of his sister, possibly by suicide. He also suffered from command hallucinations and was prescribed antipsychotic medications, which did not always work. At the time of the offenses charged, Herriman was taking antipsychotic medication and seeing a psychiatrist regularly. Herriman argued that his mental condition was aggravated at the time of the offenses due to the anniversary of his mother’s death. Voices identifying themselves as al Qaeda urged him to plant the bomb and told him he would be turned over to the individuals who had sexually abused him if he disobeyed.

The prosecution strongly challenged Herrimans’s evidence eliciting testimony from his psychiatrist that he never mentioned auditory hallucinations to him during the time surrounding the events charged, nor did the psychiatrist notice any behavior indicating he was hearing voices. Testimony from his ex-wife and son indicated that his behavior at the time was cogent and lucid. The government also argued that Herriman clearly had the mental capacity to assemble a bomb. The jury rejected Herriman’s insanity defense and found him guilty of both charges. At sentencing Herriman argued that the court should apply an acceptance-of-responsibility adjustment to the sentencing guidelines. The district court refused to do so and sentenced him to sixty-three months in prison on each count to be served concurrently, followed by three years of supervised release.

Under the sentencing guidelines, district courts are required to decrease the offense level of the crime by two levels if the defendant clearly demonstrates acceptance of responsibility for his offense. The Court of Appeals emphasized that Note 2 to the guidelines clarifies that an adjustment is not intended for a defendant who puts the government to the burden of proof at trial by denying the essential factual elements of guilt, is convicted and then admits guilt and expresses remorse. Such an adjustment to the guidelines is available only in rare circumstances when the defendant insists upon a trial only in order to preserve a legal defense to the charge.

In upholding the district court’s refusal to grant a downward adjustment, the Court of Appeals applied a clearly erroneous standard to the court’s decision. It then distinguished this case from United States v. Gauvin, 173 F.3d 798 (10th Cir. 1999), the only case in which the Court indicated it had ever approved a downward adjustment based upon acceptance of responsibility when the defendant required the prosecution to prove its case at trial. The defendant in Gauvin committed an assault while intoxicated. He acknowledged the conduct with which he was charged, but denied due to his voluntary intoxication that he was guilty of the crime charged. He denied he met the mens rea or the intent to harm or cause apprehension, which was a legal element of the crime. Although Herriman in this case acknowledged he committed the acts charged, he factually challenged whether he was criminally liable due to his insanity at the time of the offense, a fact which the government vigorously challenged.

The Court of Appeals acknowledged that the same evidence would be relevant both to challenge the mens rea element of an offense and to assert an insanity defense. But the Court stated that the process for raising the defenses is completely different. The mens rea is the mental element of the crime charged, which the government must prove beyond a reasonable doubt. By contrast, insanity is an affirmative defense which a defendant must raise and prove by clear and convincing evidence. In Gauvin, the defendant admitted he committed the acts in question, but was legally not guilty of all the elements of the crime charged. Here, Herriman acknowledged he committed the acts, but could not be held criminally liable due to his mental state, a fact the prosecution strongly contested. The Court of Appeals therefore upheld the district court’s refusal to grant a downward adjustment to the sentencing guidelines because, unlike Gauvin who only forced the government to proceed to trial to preserve a legal issue unrelated to his factual guilt, Herriman required the government to rebut the factual evidence of his insanity at trial.

Found in DMHL Volume 33 Issue 1

DC Circuit Rejects Special Circumstances Argument of Potential Lengthy Civil Commitment in Upholding Involuntary Medication Order

United States v. Dillon, 738 F.3d 284 (D.C.Cir. 2013)

The District of Columbia Circuit Court of Appeals upheld on December 24, 2013, the district court’s order authorizing involuntary treatment with antipsychotic medication to restore the defendant’s competency to stand trial. The Court found no merit in the defendant’s argument under the first prong of United States v. Sell, 539 U.S. 166 (2003), that his potential civil commitment undermined the government’s interest in prosecuting him for threatening the President of the United States.

The defendant Simon Dillon was indicted for threatening the President of the United States. Dillon, who had been repeatedly hospitalized for mental illness, sent an email to a Secret Service agent from a location three blocks from the White House, stating that he would not harm the President if the agent met with him and agreed to “meet the demands of God.” If the agent did not, the President would get the worst Christmas present ever, would suffer for 30 days, and would wish for death that would not come to him. The Secret Service arrested Dillon the next day, and the D.C. Department of Mental Health sought his civil commitment. Following an administrative hearing in January 2012, the Mental Health Commission recommended his outpatient civil commitment. Dillon was then re-arrested and shortly thereafter, the district court ordered him committed for a competency evaluation.

Two government doctors first evaluated Dillon at the Metropolitan Correctional Center, and in a March 2012 report, diagnosed him with schizophrenia, paranoid type, but concluded he was competent to stand trial. Their opinion came with less than the usual degree of psychological certainty because they found Dillon was unable to rationally consider an insanity defense. As a result, both Dillon and the government requested a further psychiatric evaluation, and the court committed him to Butner Federal Medical Center. At Butner, he was diagnosed with delusional disorder, grandiose type, and the evaluator concluded he was incompetent to stand trial. Following a hearing, the district court found him incompetent to stand trial and committed him for a determination as to whether he could be restored to competency. Following a competency restoration study submitted to the court in February 2013, two evaluators diagnosed Dillon with schizoaffective disorder, bipolar type and concluded he could be restored to competency with antipsychotic medication. They based their conclusion on studies estimating the rate at which defendants are successfully restored to competency and on Dillon’s medical history indicating he had responded favorably to psychotropic medication during prior hospitalizations. They also reported that Dillon was not a danger to himself or others while in custody.

As a result of this report, the court held a Sell hearing at which both the evaluating psychologist and psychiatrist testified. The district court found that the government had an important interest in bringing the defendant to trial that was not undermined by special circumstances, and that involuntary medication would significantly further that interest. On appeal, the D.C. Circuit first reviewed the Supreme Court decisions on involuntary medication, including the Sell decision. It then concluded that it should conduct a de novo review of the district court’s holding under the first prong of Sell as to the importance of the governmental interest in prosecuting the case, and that it should review the remaining findings on the other three prongs for clear error, following the approach of the majority of other circuits, except the Tenth Circuit.

Dillon first challenged the district court’s finding under the first prong of Sell that important governmental interests were at stake. Dillon conceded that the crime with which he was charged was serious, but argued that special circumstances existed that lessened the importance of the government’s interest, namely the prospect of lengthy civil commitment and his own purported non-dangerousness. Dillon, however, failed to argue the potential for his civil commitment before the district court, even though the government mentioned it in its brief and argument. The Court of Appeals therefore found he had waived his ability to raise this argument on appeal. The Court further found that the argument would not have succeeded in any event even though Sell raised the potential for lengthy civil commitment as a special circumstance that could undermine the government’s interest in prosecution. The Court noted that Dillon was only civilly committed to outpatient treatment following his arrest on these charges, and given his second argument that he was not dangerous, it was unlikely he would have been committed to civil “confinement,” the term used in Sell instead of civil “commitment.”

Dillon also argued that he was not dangerous and this factor undermined the government’s interest in prosecuting him. The Court found, however, that although the government has an interest in incapacitating someone who is a danger to the public, it is not the government’s sole interest. The governmental interest also includes protecting the public by incapacitating the defendant, promoting respect for the law, and providing just punishment for an offense.

Dillon next argued under the second prong of the Sell test that the medication was not substantially likely to restore his competency. He stated that the schizoaffective diagnosis was inaccurate and he instead suffered from a delusional disorder. He argued the success rate for treating delusional disorders with antipsychotic medication was too low to warrant his forced medication. The Court pointed out, however, that the last two doctors who diagnosed Dillon with schizoaffective disorder had a much longer time to observe him and arrive at the correct diagnosis, plus his medical history reflected he had previously responded favorably to treatment with antipsychotic medication. The Court therefore found that the district court’s determinations were not clearly erroneous and upheld its order to treat Dillon with medication over his objection to restore his competency to stand trial.

Found in DMHL Volume 33 Issue 1