Massachusetts Court Permits Evidence of Sex Offender’s Lack of Participation in Treatment, but Not His Refusal to Participate, to Be Used at Commitment Hearing

Commonwealth v. Hunt, 971 N.E.2d 768 (Mass. 2012)

The Massachusetts Supreme Judicial Court has held that a prisoner’s refusal to participate in sex offender treatment programs that require a waiver of confidentiality does not violate his Fifth Amendment privilege against self-incrimination, but does violate fundamental fairness embodied in the therapist-patient privilege. A prisoner’s refusal to participate in sex offender treatment may therefore not be admitted into evidence in a civil commitment proceeding or used by evaluators to formulate an opinion as to whether the prisoner is a sexually dangerous predator (“SDP”), but his simple failure to receive any treatment may be so used.

In 1990, the defendant pled guilty to three charges of raping a child, the daughter of his live-in girlfriend, and an unrelated burglary charge, and was sentenced to 8-15 years in prison. Several times while in prison, the defendant was offered sex offender treatment. As a condition of treatment, however, he was required to sign an agreement allowing the therapist to provide information concerning his progress to the Department of Corrections and the parole board. While temporarily committed to the Massachusetts sex offender treatment center awaiting a hearing on the civil commitment petition, the defendant was again offered treatment but was required to sign a statement acknowledging that anything he said or disclosed in discussion with his therapist might be reviewed by qualified examiners to determine whether he was a SDP. The defendant refused the treatment arguing that admission of that evidence would violate his privilege against self-incrimination.

At trial in 2008, the Commonwealth offered three experts who testified that the defendant was properly diagnosed with pedophilia and was likely to offend again. The defendant offered three psychologists who testified that the defendant may or may not meet the definition of pedophilia, but was not likely to sexually re-offend. Two of his experts testified that he did not have a sexual abnormality and one did. Before and during trial, the defendant moved to bar any reference to his refusal to participate in treatment, arguing that information concerning his refusal would violate his Fifth Amendment privilege against self-incrimination. The trial court denied his motion and a jury thereafter found him to be a SDP.

The Massachusetts Supreme Court relied on the United States Supreme Court case of McKune v. Lile, 536 U.S. 24 (2002), in finding that no mandatory penalty arose in Massachusetts from a prisoner’s refusal to participate in treatment. In McKune, the U.S. Supreme Court held that an incriminating statement may be deemed “compelled” when the penalties for the defendant’s refusal to incriminate himself may be so severe that they are capable of coercing incriminating testimony. The Supreme Court specifically found in that case, however, that a convicted prisoner’s participation in a sexual abuse treatment program where he was required to complete a sexual history form detailing prior sexual activities regardless of whether such activities constituted uncharged crimes was not compelled even though his refusal to participate resulted in the automatic curtailment of his visitation rights and other prison privileges, and required transfer to a maximum security unit. Here, the Massachusetts Court found that an offender faces only the possibility that if he refuses to participate, the Commonwealth may offer such refusal in evidence at a future SDP hearing or an expert may use his refusal to support his opinion that the defendant is a SDP. Since the defendant’s silence was not being used against him in a criminal proceeding, his silence was insufficient alone to support a SDP finding. Instead the Commonwealth was merely giving evidentiary value to his refusal. His 5th Amendment right against self-incrimination was therefore not violated.

Nonetheless, the Massachusetts Supreme Court went on to recognize that, under the common law, evidence that a defendant has refused sex offender treatment would constitute unfair prejudice. The Court pointed to the legislature’s recognition of the importance of confidentiality in communications between patients and psychotherapists through its enactment of an evidentiary privilege. Citing the United States Supreme Court’s decision in Jaffee v. Redmond, 518 U.S.1 (1996), the Massachusetts Court found that the waiver of confidentiality during sex offender treatment poses a substantial risk of impeding the development of an atmosphere of confidence and trust, chilling the candor of communication and diminishing the likelihood of successful treatment. If the Commonwealth provided treatment without the requirement of a waiver of confidentiality, the inference a jury might derive from his refusal to participate would be fair and reasonable. But the Court drew a distinction between evidence that a defendant “refused” treatment, which might prejudice a jury, and evidence that the defendant “did not receive” treatment. The Court recognized that the lack of treatment itself, either because treatment was simply not offered or because the defendant refused treatment, was directly relevant as to whether the defendant might re-offend and thus meet the definition of a SDP. Therefore, the Court held that evidence that a defendant did not receive sex offender treatment is admissible, but it is error to admit evidence that a defendant refused treatment when he could receive such treatment only by waiving confidentiality and the therapist-patient privilege.

Found in DMHL Volume 31 Issue 6

Texas Supreme Court Holds Expert Need Not Be Psychiatrist or Psychologist to Testify in SVP Commitment Proceeding

In re Commitment of Bohannan, 2012 Tex LEXIS 734 (Aug. 31, 2012)

The Texas Supreme Court ruled on August 31, 2012 that a licensed professional counselor and sex offender treatment provider was qualified to testify in a civil commitment proceeding for a sexually violent predator. Because the Texas statute did not limit expert testimony to only physicians or psychologists, the Court held that the general rule merely required an expert to have the knowledge, skill, experience, training or education to assist the trier of fact to understand the evidence or to determine a fact in issue.

On two separate occasions in 1982, the defendant Michael Wayne Bohannan stalked women, broke into their homes and raped them at knife point. He was sentenced to 25 years in prison, but was released on mandatory parole in 1991. In April 1992, he was charged with attempting to kidnap a nine-year-old girl at K-Mart and was returned to prison. The defendant was again released in 1998 on mandatory supervision and in 2000 moved to South Carolina to live with his mother. There he was convicted of indecent exposure to an eight-year-old girl in a toy store. He denied the allegations but was returned to prison in Texas. The defendant was again released on mandatory supervision in 2004, but in 2006 his release was revoked for viewing child pornography in a county law library.

At the defendant’s SVP civil commitment hearing, a board certified forensic psychiatrist and board certified forensic psychologist testified that Bohannan was a sexually violent predator. Bohannan designated a licensed professional counselor as his expert. She testified outside the presence of the jury that she had been in private practice since 2000 providing behavioral therapy treatment for sex offenders, had received more than 1000 hours of training, sees more than 100 clients each week and has completed 18 SVP assessments. She also testified that, like the other experts, she had reviewed Bohannan’s records and interviewed him personally. She scored him a “5” on the Static-99 and an “8” on the MnSOST, somewhat lower than the government’s psychologist. Using the Hare Psychopathy Checklist, she also determined that Bohannan was not psychopathic. She further testified that in her opinion Bohannan did not have a behavioral abnormality at this time. The trial judge refused to permit her to testify, finding that only a physician or psychologist could provide medical testimony as to a behavioral abnormality. The jury then found Bohannan to be a sexually violent predator and the court ordered him committed.

On appeal, the Texas Court of Appeals reversed the trial court and ordered a new trial, finding that the Texas statutory definition of behavioral abnormality has two components, the first being whether a defendant has an acquired or congenital condition, and a predisposition to commit a sexually violent act to which a medical expert must testify. The second component the Court determined was whether a defendant is likely to commit a sexually violent act for which a medical expert is not required.

On further appeal, the Texas Supreme Court rejected the Court of Appeals’ bifurcated definition finding that the definition of behavioral abnormality was one all encompassing definition. It upheld the reversal, however, finding that the Texas statute did not require an expert to be a physician or psychologist. It noted that experts in criminal proceedings were required by statute to be physicians or psychologists, but no such requirement is found in the SVP statute therefore indicating that the legislature did not intend to impose such a requirement in SVP proceedings. The Supreme Court went on to find that the failure to permit Bohannan’s expert from testifying was not harmless error thus requiring a new trial.

Found in DMHL Volume 31 Issue 6

Iowa Supreme Court Finds Due Process Does Not Require Jury Instruction on Consequences of Insanity Verdict

Iowa v. Becker, 818 N.W.2d 135 (Iowa 2012)

The Iowa Supreme Court has held that the jury instructions given by the trial court in this case, when read as a whole, fairly and accurately described the insanity defense under Iowa law. Due process did not require the court to instruct the jury on the consequences of an insanity verdict even when the jury requested such information.

The defendant Mark Becker shot and killed his former football coach in a high school weight room on June 24, 2009 in front of numerous high school students and was charged with first degree murder. His mother testified that he was an active and friendly child until the end of his freshman year in high school when he started to withdraw a little. After attending one semester of college, Becker dropped out and became more inward, depressed and very uncommunicative. In September 2008, he began a series of escalating violent episodes, including assaulting his mother. These episodes resulted in several week-long psychiatric commitments and the prescription of medication that he would take sporadically.

Four days before the shooting, Becker knocked on the door of a residence, and when he was not admitted, he smashed the storm door, a picture window and a garage window with a baseball bat, and tried to drive his car through the garage door. Becker was arrested, booked and then sent to a psychiatric unit for evaluation. The following day he was diagnosed with paranoid schizophrenia and given medications. Two days later he requested release, and appearing to the psychiatric unit to be better, it released him without notifying the sheriff. The local mental health services coordinator assisted him in opening his apartment because the police still had his keys and made plans to fill his prescriptions the next day. However, Becker called his parents and spent the night at their home.

Becker arose at 4:30 a.m., and had coffee with his parents later that morning before they left for work. He then pried open the gun cabinet in his parents’ basement, removed a .22 caliber revolver and practiced shooting at a birdhouse in the yard. Becker then drove to a house in a neighboring town looking for his former coach. When told the coach did not live there, he returned to his town, asking people where he could find the coach, and saying he was working with the coach on a tornado relief project. He was told the coach might be teaching driver education at the local elementary school. Becker then drove to the elementary school and upon arrival asked the custodian where he might find the coach. Since the high school had been damaged by a tornado, a temporary weight room had been set up in the nearby elementary school. When told that was where he might find the coach, he drove around to the weight room, but left the gun in the car. Upon determining that the coach was there, he returned to the car, put the gun in his coveralls, later explaining the coveralls would hide the gun, and reentered the weight room. He then shot the coach six times in the head, chest and leg, and proceeded to kick and stomp him. He then left the weight room screaming that he had killed Satan. Becker then drove to his parents’ home where he was arrested and charged with first degree murder.

At trial, Becker raised the insanity defense. Two psychiatrists testified that he suffered from paranoid schizophrenia and, as a result, was unable to understand the nature or consequences of his actions and was incapable of distinguishing right from wrong. The prosecution called two psychiatrists in rebuttal who agreed he was paranoid schizophrenic but that he understood the nature and consequences of his action and knew right from wrong. The jury deliberated for several days and sent several questions to the court including what would happen if Becker were found not-guilty-by-reason-of-insanity. The court referred the jury to Instruction 10 that informed them that in the case of a guilty verdict, they would have nothing to do with punishment. In response to the question, the court also informed the jury that in the event of either a guilty verdict or a not-guilty-by-reason-of-insanity verdict, they would have nothing to do with the consequences and these were issues for the court, not the jury. The jury then returned a verdict of guilty and the court sentenced Becker to life in prison without parole.

Becker appealed his conviction on the grounds that the jury instructions did not accurately define the elements of the insanity defense and that the court violated his due process rights under the Iowa constitution when it refused to instruct the jury on the consequences of a not-guilty-by-reason-of-insanity-verdict.

Under Iowa law, a defendant may be found not-guilty-by-reason-of-insanity if he shows that a diseased or deranged condition of the mind rendered him incapable of knowing the nature and quality of the act he is committing or incapable of distinguishing between right and wrong in relation to that act. It has no irresistible impulse prong. The Iowa Supreme Court found that although a defendant is ordinarily entitled to have his instructions presented to the jury and his instruction in the case stated the law more coherently and concisely, courts’ instructions are not required to contain the precise language of the applicable statute. The trial court’s instructions to the jury substantially mirrored the Iowa State Bar’s uniform jury instructions. When read with the other instructions given, the court’s instruction accurately and completely stated the applicable law. The Supreme Court held that the defendant was therefore not entitled to have his instruction submitted to the jury.

After reviewing its extensive precedent, the Iowa Supreme Court also found that the trial court did not violate the defendant’s due process rights under the Iowa Constitution for refusing to instruct the jury regarding the consequences of a not-guilty-by-reason-of-insanity verdict. It wrote that the United States Supreme Court has held that federal courts are not required to give an instruction explaining the consequences of a not-guilty-by-reason-of-insanity verdict under the Insanity Defense Reform Act, Shannon v. United States, 512 U.S. 573 (1994), but the Supreme Court has not decided the issue on constitutional grounds. The Iowa Court noted that a majority of states refuse to require the instruction, but there is a split of authority on the issue. A number of states have adopted the Lyles Rule that originates from Lyles v. United States, 254 F.2d 725 (D.C. Cir. 1957), an early case requiring the instruction in the District of Columbia. The rationale for the Lyles Rule recognizes that jurors are aware of the results of guilty and not guilty verdicts, but a verdict of insanity does not have a commonly understood meaning. Arguments against the Lyles Rule include, first that such information is irrelevant to the jury’s proper function, which is the determination of the sanity issue, and second, that the information would invite a compromise verdict.

The Iowa Supreme Court also noted that 24 states require a consequence instruction even though the due process clause is not used to justify the requirement. About one-third of these states have specific statutes requiring the instruction. A slight majority of the states, such as Virginia, do not require a consequence instruction, or allow the instruction only when the consequences of a not-guilty-by-reason-of-insanity verdict are inaccurately portrayed to the jury by a prosecutor or defense counsel. See Kitze v. Commonwealth, 435 S.E.2d 583, 586 (Va. 1993); Spruill v. Commonwealth, 271 S.E.2d 419, 426 (Va. 1993).

The Iowa Supreme Court also recognized that many commentators, researchers, academics and law students believe that the best practice is to give the instruction whenever requested by the defendant. One commentator in particular wrote that “the public overestimates the extent to which insanity acquittees are released upon acquittal and underestimates the extent to which they are hospitalized as well as the length of confinement of insanity acquittees who are sent to mental hospitals.” Eric Silver et al., Demythologizing Inaccurate Perceptions of the Insanity Defense, 18 Law & Hum. Behav. 63, 68 (Feb. 1994). The Court found that while there may be policy reasons supporting a consequence instruction, the law and the Iowa Constitution does not require it, and policy decisions are best left to the legislature and not the courts.

The Iowa Supreme Court therefore found that fundamental fairness does not require a trial court to instruct the jury that if it finds the defendant to be not-guilty-by-reason-of-insanity, he would be committed to a mental health facility for evaluation. The Court went on to state, however, that this decision should not be read as an absolute prohibition on giving a consequences instruction.

Found in DMHL Volume 32 Issue 1

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

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

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

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

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

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

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

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

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

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

Found in DMHL Volume 32 Issue 2

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

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

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

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

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

RCW 10.77.210(1).

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

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

Found in DMHL Volume 32 Issue 4

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

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

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

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

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

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

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

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

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

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

Found in DMHL Volume 32 Issue 4

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

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

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

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

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

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

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

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

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

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

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

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

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

Found in DMHL Volume 32 Issue 4

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

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

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

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

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

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

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

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

Found in DMHL Volume 33 Issue 2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Found in DMHL Volume 33 Issue 2

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

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

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

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

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

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

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

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

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

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

Found in DMHL Volume 33 Issue 2

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

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

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

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

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

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

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

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

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

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

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

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

Found in DMHL Volume 33 Issue 2

Involuntary commitment (Alabama)

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

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

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

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

Found in DMHL Volume 34 Issue 2

Sexually violent offender (Iowa)

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

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

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

Found in DMHL Volume 34 Issue 2

Not guilty by reason of insanity commitment

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

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

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

Found in DMHL Volume 34 Issue 2

Involuntary outpatient commitment (Vermont)

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

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

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

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

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

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

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

Found in DMHL Volume 34 Issue 2

Insanity defense (Georgia)

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

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

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

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

Found in DMHL Volume 34 Issue 2

Competency to waive counsel (Colorado)

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

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

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

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

Found in DMHL Volume 34 Issue 2

Jury instructions

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

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

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

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

Notable Points:

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

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

Found in DMHL Volume 34 Issue 3