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

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

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

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

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

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

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

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

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

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

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

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

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

Found in DMHL Volume 33 Issue 1

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

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

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

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

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

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

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

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

Found in DMHL Volume 33 Issue 2

Fourth Amendment Liberty Interest During Mental Health Crisis

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

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

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

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

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

Found in DMHL Volume 34 Issue 1

Sexually Violent Person

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

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

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

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

Found in DMHL Volume 34 Issue 1

Competency to Stand Trial/Restoration of Competency

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

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

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

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

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

The United States Supreme Court denied certiorari in January 2015.

Found in DMHL Volume 34 Issue 1

Involuntary Psychiatric Hospitalization of Minor

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

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

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

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

Found in DMHL Volume 34 Issue 1

Mental Condition as Mitigating Evidence in Criminal Sentencing

Voluntary intoxication instruction upheld

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

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

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

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

Found in DMHL Volume 34 Issue 1

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

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

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

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

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

Found in DMHL Volume 34 Issue 1

Treatment of Mentally Ill Individuals in Custodial Settings: Custodial Interrogation

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

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

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

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

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

Found in DMHL Volume 34 Issue 1