Prior Determination That Defendant Not a Mentally Disordered Sex Offender Not Bar to Later Civil Commitment as Sex Offender

In re Interest of D.H., 281 Neb. 554, 797 N.W.2d 263 (Neb. 2011)

The Nebraska Supreme Court held on May 20, 2011 that a 1991 determination at the time of a defendant’s conviction and sentence that he was not a “mentally disordered sex offender” under Nebraska’s sex offender law then in effect was not res judicata barring commitment proceedings in 2010 under Nebraska’s current Sex Offender Commitment Act. In so deciding, the Court followed a similar California case that found that a 1982 determination that the defendant was not a sex offender did not preclude a civil commitment proceeding 10 years later because the issue was the mental health of the defendant as he approached release, not as it existed at the time of his conviction. People v. Carmony, 99 Cal.App. 4th 317, 120 Cal.Rptr.2d 896 ( 2002). The Nebraska Court held that the Act provides for assessment of the defendant’s mental health, risk of recidivism and threat to public safety as he approaches release. Based upon the changeable nature of mental health and dangerous determinations, the assessment is not res judicata because the issue presented is not the same as that litigated at the time of his 1991 sentencing.

Found in DMHL Volume 30 Issue 6

Arkansas Court Rules against US Department of Justice in CRIPA/ADA/IDEA Lawsuit Brought Against State of Arkansas

United States v. State of Arkansas, et al., 2011 U.S.Dist. LEXIS 61347 (June 8, 2011)

Following a six-week trial from September 8 through October 15, 2010, the United States District Court for the Eastern District of Arkansas has found that the United States Department of Justice (“DOJ”) did not meets its burden of proving as alleged under the Civil Rights of Institutionalized Persons Act (“CRIPA”) that the State of Arkansas and Arkansas state officials were failing to provide reasonably safe conditions and habilitation and training services necessary to protect the residents’ liberty interests, at Conway Human Development Center, a training center for 509 persons with developmental disabilities. The Court also held that DOJ failed to prove that Conway Development Center violated the integration mandate of the Americans with Disabilities Act as alleged by failing to provide services in the most integrated, least restrictive setting appropriate to the needs of qualified individuals with disabilities. The Court did find that Conway Development Center failed to comply with all the requirements of the IDEA, but because Congress provided for a state educational agency to enforce compliance with that Act and because evidence established that the state agency was enforcing the Act and the Center had submitted a corrective action plan, no injunction was appropriate.

The Court began its opinion noting how unusual it was for the US Department of Justice’s Civil Rights Division to be enforcing the rights of individuals with disabilities when most of the residents of Conway Development Center had parents or guardians to enforce those rights. Most of the parents or residents were fully satisfied with the services provided and opposed the DOJ claims. Six members of the Conway Human Development Center Parents’ Association, an association comprised of parents and guardians concerned about the Center, its residents and staff, testified at trial regarding the services. The Court noted that two of the witnesses were nurses themselves. Many of the same parents were also members of Families and Friends of Care Facility Residents, a statewide umbrella organization for all of the parent and guardian groups of the human development centers.

Conditions of Care

DOJ alleged that the policies and practices at Conway Development Center departed from generally accepted professional standards and residents were subjected to abuse and neglect, unconstitutional use of restraints, and unprofessional levels of psychological and medical services. DOJ also alleged that the Center’s procedures used to prevent choking, aspiration pneumonia, fractures, decubitis ulcers and other injuries were subpar, and that residents died prematurely. The Court reviewed in detail the testimony of the experts, Center staff and parents on each of the allegations and concluded that the DOJ experts were holding Center staff to a “best practices” standard as opposed to the standard in Youngberg v. Romeo, 57 U.S. 307 (1982) that requires proof of a departure from generally accepted professional standards. The Court specifically noted that the Center was certified by the Centers for Medicare and Medicaid Services (“CMS”) and complied with all CMS standards. DOJ’s experts had testified that professional standards in each of the disciplines were constantly changing and one DOJ expert testified that the CMS standards were outdated. The Court therefore found that the DOJ experts had presented no standards with which the Conway staff could be expected to comply, nor did the experts present any benchmarks to compare the Center’s alleged deviations involving, for example, the numbers of abuse or neglect complaints, choking incidents or aspiration pneumonia with other comparable facilities. In fact, the Court found that one of DOJ’s experts “had no formal education in any field relevant to her testimony,” Opinion at 28, and that another expert “presented no evidence that convinced the Court that she was qualified to testify as an expert in any area other than occupational therapy.” Opinion at 83. Applying the Youngberg standards to this case, the Court held that “[e]ven if the professional judgment of some or all of the plaintiff’s experts were better than the professional judgment of some or all of the professionals at Conway Human Development Center, the evidence does not prove that decisions of the latter represent such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that professional judgment was not actually exercised.” Opinion at 133-134.

Americans with Disabilities Act

DOJ also alleged that Conway Developmental Center was violating the integration mandate of the Americans with Disabilities Act by failing to provide services, programs and activities in the most integrated, least restrictive setting appropriate to the needs of qualified individuals with disabilities as upheld in Olmstead v. Zimring, 527 U.S. 581 (1999). DOJ also alleged that the Center’s staff failed to provide parents and guardians with adequate information about other services that DOJ considered more integrated, and that staff did not exercise professional judgment in determining the most integrated setting appropriate for residents.

The evidence established that Arkansas participates in and serves 4083 individuals in the Home and Community Based Waiver program, or four times the number of individuals served in its training centers. In 2007, there were approximately 700 persons on its waiver waiting list, and as of April 2010, that number had risen to 1400. By the time of trial, the waiting list included 1600-1700 people. The evidence revealed that if a parent or guardian of a resident in a developmental center sought a waiver placement, that resident went to the top of the waiting list. The superintendent of Conway Development Center testified that many or all of the Center’s residents could be served under the waiver with the proper supports and if resources were sufficient. The evidence also demonstrated though that from June 2007 to July 2009, only 18 residents were discharged.

After considering all of the evidence, the Court held that the terms “restrictive” and ”integrated” in the ADA refer to the level of interaction disabled individuals have with nondisabled persons. It then found that the Center provided a significant number of opportunities for individuals to interact with people in the community, sponsoring 305 off-campus activities, including some work opportunities, attendance at movies, eating out, bowling, shopping, fishing, going to parks, going to the state fair, going to the library, attending athletic events, attending church, and participating in the Special Olympics. The Court also heard evidence that nondisabled volunteers visited and worked with residents in about 592 on-campus activities held the previous year, in addition to unrestricted visits permitted from families and friends. The Court also found that individuals in community settings, including those residing in individual apartments had no more contact with nondisabled individuals than did those residing at the Conway Developmental Center. The Court stated, “just as it is an error to assume that because Conway Human Development Center is an institution, its residents have no interaction with nondisabled person, so too is it an error to assume that a community placement ipso facto precludes the possibility of isolation or automatically provides more interaction with nondisabled persons than an institutional setting.” Opinion at 109. The Court noted that no evidence was presented that the Center refused to discharge a resident when requested by the parent or guardian.

Before each annual interdisciplinary team meeting, the Center sent the parent or guardian a brochure explaining services available under the waiver program with a list with contact information of waiver providers in the state and in the county where the resident’s family resided. The Center also sent the parent or guardian a choice of services form on which the parent or guardian indicated whether they wanted to receive services through the waiver program or at the Center. In addition, the Center invited providers to attend meetings of the Friends and Families of Care Facilities and whenever there was a vacancy in a home in a resident’s community, the Center notified the family. The Court thus found that the Center adequately informed parents and guardians of the nature and scope of the home and community based waiver program and provided them with a comprehensive list of waiver providers.

The Court also found that the interdisciplinary team discussed whether the Center was the least restrictive most integrated placement at each annual team meeting and made sure the parent or guardian had received the brochure and list of waiver providers. The Court therefore found staff members at the Center made professional judgments in determining the least restrictive placement appropriate for each resident, even though staff and families agreed that the professionals often did not recommend placement with a waiver provider unless requested to do so by the parents or guardians.

Impact on Virginia

DOJ notified Virginia on February 10, 2011 of the results of its investigation finding that Virginia and Central Virginia Training Center are also violating the integration mandate in Americans with Disabilities Act, making most of the same allegations it made in its losing case against Arkansas: http://www.justice.gov/crt/about/spl/documents/cvtc_findlet_02-10-2011.pdf. With DOJ having lost the Arkansas case, Virginia may now have greater leverage in its negotiations with DOJ that it seemed to have lost when the State of Georgia agreed in October 2010 when faced with a similar federal court complaint to close all of its facilities for individuals with intellectual disabilities rather than go to trial.

DOJ had also previously launched a CRIPA investigation in 2008 at Central Virginia Training Center alleging it had probable cause to believe that CVTC was not protecting residents there from harm and was providing professionally inadequate psychological and psychiatric services. It expanded its investigation in 2009 to investigate CVTC’s nutrition services and occupational therapy and physical therapy programs, alleging many of the same violations at issue in the Arkansas lawsuit. After three on-site visits in 2008 and 2009, DOJ has yet to issue a “findings” letter detailing the results of that investigation.

Most DOJ investigations result in settlement agreements with the state that are filed with the court either before the original complaint is filed or before going to trial. Settlements are reached because of the extraordinary expense involved in month-long trials involving prior document-intensive discovery, the hiring of experts in every discipline under attack and the prolonged diversion of staff time and resources away from the delivery of care to individuals. Whether Virginia will be able to significantly increase its waiver program and switch from an institutionally-based system of care to a community-based system under a reasonable settlement agreement and or will decide to litigate remains to be seen as DOJ and Virginia continue their negotiations.

Found in DMHL Volume 30 Issue 6

First Circuit Denies Habeas Relief That Counsel Was Ineffective in Failing to Request Competency Evaluation

Robidoux v. O’Brien, 643 F.3d 334 (1st Cir. 2011)

The First Circuit Court of Appeals has denied habeas corpus relief to a petitioner who was convicted of first degree murder in Massachusetts who allowed his 11-month old son to die based upon his religious beliefs. He argued that his counsel at trial was ineffective because he had an obligation to seek a competency to stand trial evaluation and that he failed to raise an insanity or diminished capacity defense.

The defendant in this case was a member of a religious sect led by his father that believed that a number of institutions, including the legal system, medical system and mainstream religion were invalid and its members were instructed to eschew doctors and medicines. The evidence showed that until he was about 8 months old, the child was thriving and well nourished, but about that time the defendant’s sister got a “leading,” instructing that the mother should feed the child only breast milk in limited quantities. Thereafter, the infant began to fail. The defendant and his wife failed to take the infant to a doctor or to provide him with a proper diet. The day after the sect conducted a special meeting to pray for the child, he died. After concealing the body in his sister’s house for several months, the defendant buried the baby in Maine. The police located the body a year after the burial when a defector from the sect reported the death to authorities.

At trial, the defendant argued that the prosecution could not prove the cause of death was malnutrition, based upon the testimony of his forensic expert that the infant could have died from any number of causes. The chief medical examiner testified that the condition of the decomposed body was indicative of severe malnutrition due to starvation. The defendant testified in his own defense that he had no intent to harm the child. The jury convicted him of first degree murder and he was sentenced to life in prison.

In seeking habeas corpus relief, the defendant argued primarily that his counsel should have pursued an insanity or diminished capacity defense based upon three affidavits, the first from a psychologist who never interviewed the defendant stating that the defendant was unable to appreciate or understand that it was wrong to deprive his son of solid food. The Director of the New England Institute for Religious Research stated that the defendant’s father exercised undue influence over him and other sect members that made it impossible for counsel to present an adequate defense. The defendant himself filed an affidavit stating that counsel discussed the insanity defense with him, but he refused to talk with a doctor or psychotherapist prior to trial due to his religious beliefs.

The trial court found that counsel properly defended the case based upon the judge’s own observations of the defendant in court, the answers provided in colloquies from the bench, and his testimony at trial, even though he presented a rambling eve-of-trial motion to represent himself saying the government had no jurisdiction to try him, which she found appeared a tactic to delay trial. No fact-finding hearing was conducted on his competency to stand trial.

The First Circuit articulated the standard in ineffective assistance of counsel cases that there must be proof that counsel fell below the minimum standards of representation and there was a reasonable probability that the deficiency altered the outcome of the case. Where raising a particular defense is a strategy choice, counsel will be given special deference. On the other hand, if substantial indications exist that the defendant was not competent to stand trial, counsel is not faced with a strategy but with a settled obligation under Massachusetts and federal law to raise the issue with the court and seek a competency evaluation. Competency is a functional concept focusing on the defendant’s part in the trial, namely whether the defendant understands the nature of the proceedings against him and is able to assist counsel in his defense. In this case, it appears that he argued that the government had no legitimate authority over him, but he engaged in an intelligent and articulate colloquy with the court and as a witness. There was no evidence that the defendant had ever suffered from a mental illness or that he failed to understand the proceedings or cooperate with counsel. Although state court findings are generally accorded no deference absent an evidentiary hearing, there was no evidence presented that a competency hearing was necessary.

In addition, the 1st Circuit held that the defendant could decline to assert an insanity defense and refuse a psychiatric examination, which he apparently did. His current defense counsel argued that he suffered from a delusional disorder based on his religious illusions that God and prayer, not ordinary nourishment, would protect his son. He also argued that his diminished capacity prevented him from forming the necessary intent to support a conviction for first degree murder. The appellate court held that there was no evidence to support a mental illness and that the law provides for the denial of medical care in certain situations based upon religious beliefs, such as for example, those held by Christian Scientists and Seventh Day Adventists, but the evidence, including the defendant’s own testimony indicated that he understood the risk.

Found in DMHL Volume 31 Issue 1

Washington Supreme Court Holds No Constitutional Mandate to Determine Competency to Represent Self

In re Rhome, 2011 Wash. LEXIS 743 (September 15, 2011)

The Washington Supreme Court has held that a trial court is not constitutionally required to independently determine whether a defendant was sufficiently competent to waive counsel when he had previously been found competent to stand trial following a pre-trial hearing. The court held that a defendant’s mental health status is but one factor a trial court may consider in determining whether a defendant has knowingly and intelligently waived his right to counsel and to represent himself.

In this case, Rhome was charged with first degree murder with a deadly weapon of a 17- year old girl. Another juvenile confessed to stabbing the girl but identified the defendant as the “mastermind” behind the killing. Since early childhood, the defendant had been treated for psychiatric disturbances, including several in-patient psychiatric hospitalizations. He had received a myriad of diagnoses including, psychotic disorder, delusional disorder, oppositional defiant disorder, mild mental retardation, obsessive/compulsive traits, and pervasive developmental disorder (Aspergers disorder). The trial court held a competency hearing finding that the defendant had not proved he was incompetent to stand trial. Throughout the pre-trial proceedings, the defendant asserted his right to represent himself. The court first denied his request to proceed pro se indicating that his ability to do so was equivocal. After his renewed request, the court advised him of the risks and engaged in coloquy to determine if he understood the significance of this undertaking. His mental health issues were not specifically addressed during the colloquy. The court granted his request and appointed standby counsel to assist him. The jury convicted the defendant and he was sentence to 30 years in prison. A mental health expert for the defense who later examined the defendant’s performance in representing himself testified that his mental illness impacted his ability to defend himself in court. He testified that the defendant engaged in perseverative and aggressive questioning that was incoherent or intimidating, and he was unable to self-regulate his emotions and behavior.

In June 2008, just following the state courts’ denial of the defendant’s direct appeals, the United States Supreme Court decided Indiana v. Edwards, 554 U.S. 164 (2008). In Edwards, the Supreme Court held that a trial court could insist that a defendant proceed with counsel even though the court had found the defendant was competent to stand trial. The Washington Court stated that the Edwards decision assumes that a defendant will “assist” in his defense, not “conduct” his defense when the defendant has been found competent to stand trial. Competency to stand trial does not equate with the right to represent oneself and the Supreme Court declined to set a standard for the state to follow. In determining whether a defendant has the right to waive counsel, the court considers his background, experience and conduct, which may include his history of mental illness. In denying his petition for post-conviction relief, the Washington Supreme Court held that a defendant’s mental health status is but one factor a trial court must consider in determining whether a defendant has knowingly and intelligently waived his right to counsel. An independent determination of competency for self-representation is not a constitutional mandate.

Found in DMHL Volume 31 Issue 1

Maine Finds Right to Competency in Post-Conviction Proceedings

Haraden v. State, 32 A.3d 448 (Maine 2011)

The Maine Supreme Judicial Court ruled on November 17, 2011 that a convicted defendant has the statutory right to be competent during post-conviction proceedings. Although a defendant has no constitutional right of access to post-conviction proceedings to overturn his or her conviction, Maine has statutorily created a process whereby inmates may challenge their convictions, including setting time limits within which relief may be sought, the number of petitions that may be filed, the nature and scope of claims that may be pursued, and the type of relief that may be granted.15 M.R.S § 2130 (2010). As part of the post-conviction process, inmates are specifically given a statutory right to counsel. The Court therefore found that implied within that right to counsel is the right to the effective assistance of counsel. It then reasoned that counsel cannot effectively assist his client if his client cannot meaningfully communicate with him.

In this case, the inmate was convicted of murder by a jury and sentenced to 52 years in prison. After his trial, conviction and appeal, the inmate raised factual allegations that he was denied the effective assistance of counsel. On the inmate’s motion, the court ordered a mental evaluation by the State Forensic Service. The evaluation indicated that although the inmate was not psychotic, he was unable to assist his attorney in the post-conviction process. Based upon the evaluation, the trial court found him incompetent to proceed. The court then proceeded to decide the matter upon the legal issues presented, but continued those claims based upon factual contentions until such time as the inmate became competent. During that time period, the inmate was ordered to remain in the Department of Corrections and not be transferred to the Department of Health and Human Services for restoration to competency.

In upholding the right found by the trial court, the Supreme Court was faced with a dilemma of how to proceed when an inmate may have a legitimate claim for release but cannot pursue it due to his incompetency. It therefore had to fashion a process to handle the prisoner’s claims. The Court determined that when an inmate’s competency is in question, the court must order an evaluation by the State Forensic Service. Because a defendant was presumed to be competent during trial, the burden rests on the inmate to prove his incompetency by a preponderance of the evidence. If he does so, the court must still proceed to adjudicate the inmate’s claims and defense counsel must represent the inmate to the best of his or her ability. Under Maine post-conviction law, an inmate must 1) file a post-conviction claim within one year and 2) may only seek post-conviction review once, raising all claims he may have in that petition or else they are considered waived. If the inmate is found to be incompetent, however, the Court then provided that an inmate may file an affidavit at a later date alleging that he had previously been found incompetent and has regained his competence as a result of the passage of time, medical intervention or some other substantial change. If the court then determines the inmate has regained competency, it must review the petition to determine whether, if the newly asserted evidence or grounds were true, the outcome of a post-conviction judgment would be different, and which, if any, of the defendant’s claims may be pursued despite the intervening delay. The Supreme Court agreed with the trial court that the inmate must remain in the custody of the Department of Corrections during the period of incompetency and not be transferred to the Department of Health and Human Services for restoration services. Presumably, the inmate could not then be ordered treated over his objection to restore him to competency.

Found in DMHL Volume 31 Issue 2

California Supreme Court Rules Court Has Discretion Whether to Permit Competent Defendant to Represent Self

People v. Johnson, 2012 Cal. LEXIS 600 (January 30, 2012)

Following the United States Supreme Court decision in Indiana v. Edwards, 554 U.S. 64 (2008), the California Supreme Court has ruled that trial courts may deny the right to represent themselves to defendants who fall into a “gray area” between those who are competent to stand trial and those who are competent to conduct their own trial. In so ruling, the Court found that California law has never afforded defendants the right to represent themselves, but only permits self-representation in noncapital cases in the judge’s discretion. In capital cases, the law specifically requires defendants to be represented by counsel at all stages of the proceedings. The legislative history states that pro se litigants cause unnecessary delays at trial and generally disrupt the proceedings. The history further provides that the burden on the justice system is not outweighed by any benefits to defendants who generally gain nothing by representing themselves.

Prior to Edwards, and because California courts are required to follow federal constitutional law, they afforded criminal defendants the right to represent themselves in spite of the state law based upon the United States Supreme Court decision in Faretta v. California, 422 U.S. 806 (1975), holding that defendants have a Sixth Amendment Constitutional right to selfrepresentation. California courts further presumed that a defendant’s right to self-representation was absolute based upon Godinez v. Moran, 509 U.S. 389 (1993). That case held that a defendant found competent to stand trial was allowed to waive counsel and plead guilty, rejecting the argument that federal law required a higher standard of competence for waiving counsel or pleading guilty than to stand trial. In 2008, the United States Supreme Court held in Edwards that a trial court could insist that a defendant proceed with counsel even though the court had found him competent to stand trial.

In this case, Johnson was charged with two separate assaults, one an early-morning brutal sexual assault on a bar tender and later the same day, hitting the patron of a sandwich shop with a metal chair rendering him unconscious. A single judge presided over all the proceedings. The defendant was originally represented by counsel but early on requested to represent himself, which request was granted. During pre-trial proceedings, the defendant conducted himself in an unusual manner and the nature and content of letters he filed with the court and others cast doubt on his competence. The judge thereupon appointed counsel to represent the defendant in competency proceedings and ultimately appointed three mental health experts to evaluate him. The defendant refused to be interviewed by any of the experts who then testified that they were unable to state with certainty whether he was competent or not. His behavior in court and jail, and his bizarre filings led one expert to proffer a diagnosis of delusional disorder with conspiracy paranoia and to strongly suspect incompetency. Based upon all of the evidence, the jury found the defendant competent to stand trial. The trial judge, however, found the defendant incompetent to represent himself and appointed counsel for him.

The California Supreme Court held that competency to stand trial was a matter to be decided by a jury, but competency to represent oneself was a decision within the sound discretion of the trial judge. The Court stated that although courts should be cautious about making competency decisions without the benefit of expert evidence, the judge’s own observations of the defendant’s behavior supported a common sense finding of incompetence. Here the court was able to observe the defendant’s behavior in representing himself over several months; the defendant had already refused mental health evaluations on competency to stand trial; and the judge placed on the record examples of his disorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety and other common symptoms of severe mental illness. The Court found the trial court had the discretion to determine the defendant lacked the competency to represent himself and the judge had not abused his discretion in this case.

Although urged to do so by the parties and amicus curiae, the California Supreme Court, like the United States Supreme Court in Edwards, declined to set out a standard for determining competency to represent oneself, but decided that trial courts should simply determine whether the defendant suffers from a severe mental illness to the point where he or she cannot carry out the basic tasks needed to present the defense without the help of counsel. The decision in this case is similar to the Washington Supreme Court decision in In Re Rhome, 260 P.3d 874 (Wash. 2011) and reported in the last issue of Developments in Mental Health Law.

Found in DMHL Volume 31 Issue 2

Fourth Circuit Finds Federal Commitment of Sexually Dangerous Persons Does Not Violate Equal Protection

United States v. Timms, 664 F.3d 436 (4th Cir. 2012)

Reversing the decision of the United States District Court for the Eastern District of North Carolina, the Fourth Circuit Court of Appeals, in a decision written by Judge G. Steven Agee, held on January 9th that the federal scheme found in 18 U.S.C. § 4248 permitting civil commitment of sexually dangerous persons does not violate the Equal Protection Clause of the United States Constitution. Timms’ case was one of the first cases to arise under the Adam Walsh Child Protection and Safety Act of 2006. That section authorizes the civil commitment of individuals in the custody of the Bureau of Prisons who are determined to be a sexually dangerous person, defined as someone “who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” 18. U.S.C. § 4247(a)(5).

The Federal Correctional Institution in Butner, North Carolina is the federal institution to which prisoners in the custody of the Bureau of Prisons are now transferred for assessments as sexually dangerous persons. Most of these cases are therefore being heard before the North Carolina district court and appealed to the Fourth Circuit. Timms was in custody at Butner, completing a 100 month sentence for soliciting and receiving child pornography by mail, when the government filed a certificate to commit him. At the time the certificate was filed, the Comstock case, the first challenge to the federal sexually dangerous commitment scheme, was pending before the Fourth Circuit. The hearing on the merits of his case was therefore put on hold. The District Court in Comstock had found the statutory scheme unconstitutional on the grounds that Congress lacked authority to enact it, and the Fourth Circuit later upheld that decision. The United States Supreme Court reversed, upholding the authority of Congress to enact the statute under the Necessary and Proper Clause of the Constitution. United States v. Comstock, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010). Upon remand and then re-appeal, the Fourth Circuit determined in Comstock II that the statute did not violate the due process clause by requiring a court to find by clear and convincing evidence, rather than beyond a reasonable doubt, that the individual is a sexually dangerous person. United States v. Comstock, 627 F.3d 513 (4th Cir. 2010), cert. denied, 131 S.Ct. 3026, 180 L.Ed.2d 865 (June 20, 2011).

When his case finally came forward for hearing before the District Court after the Comstock I and II decisions, Timms argued that the statutory scheme violated the Equal Protection Clause of the Constitution. The District Court agreed, relying on Baxstrom v. Herold, 383 U.S. 107 (1966) that held that the government cannot provide less protection during civil commitment proceedings for prisoners who are completing there sentences than for nonprisoners. The district court reasoned that the federal government has no authority to commit sexually dangerous persons who are not in prison, and therefore individuals in the custody of the Bureau of Prisons are not being treated similarly with sexual predators in the community.

On appeal, the Fourth Circuit first determined that it had to decide whether to apply a strict scrutiny standard of review, as Timms argued, or the generally applicable rational basis standard.. Timms relied on Foucha v. Louisiana, 504 U.S. 71 (1992) and Addington v. Texas, 441 U.S. 418 (1979) that recognized that civil commitment constitutes a significant deprivation of liberty. However, the 4th Circuit found that these cases were decided on due process grounds, not equal protection, and the Supreme Court, despite being provided an opportunity to do so, never expressly established a heightened standard of review. As a general rule, the Court held that legislation is presumed to be valid and will be sustained if the statute is rationally related to a legitimate state interest. Following the First Circuit decision in United States v. Carta, 592 F.3d 34 (1st Cir. 2010), deciding this very same issue, the Court held that the generally-applicable standard is thus rational basis.

The Fourth Circuit next turned to the Equal Protection issue. Under the Equal Protection Clause, all persons similarly situated must be treated alike. The Court held that Congress had a rational basis for subjecting sexually dangerous persons in BOP custody to civil commitment. The Court found that the scope of the federal government’s authority for civil commitment differs so much from a state’s authority that there is a rational basis for the distinction Congress drew. Congress rationally limited its scope to sexually dangerous persons within BOP custody based on Congress’ limited police power and the federal interest in protecting the public from reasonably foreseeable harm from such persons.

Found in DMHL Volume 31 Issue 2

Privilege against Self-Incrimination Waived in Second Trial When Defendant Presented Mental Capacity Defense at First Trial

Commonwealth v. Rosen, 2012 Pa. LEXIS 965 (April 25, 2012)

The Pennsylvania Supreme Court has upheld the decision of the Superior Court that a defendant who voluntarily waived his 5th Amendment right against self-incrimination by presenting a mental capacity defense at his first trial opened the door to the Commonwealth’s introduction of inculpatory statements at retrial, even though the defendant did not utilize the defense at his retrial.

The defendant was charged with first degree murder in the stabbing death of his wife and sentenced to life in prison. The defendant’s wife had been stabbed to death in the early morning hours of June 30, 2001. The defendant initially claimed that two intruders in ski masks and parkas committed the murder. He later gave multiple explanations for the murder and ultimately admitted killing his wife, stating they were arguing and each had a knife. He said his wife swung the knife at him, he stabbed her in the chest, and she then plunged the knife into her own neck. At his jury trial in 2002, the defendant relied on the defense of diminished capacity. His expert psychiatrist testified that the defendant suffered from manic-depressive illness accompanied by psychotic features and paranoia. He testified that the defendant was psychotic and incapable of forming the intent to kill his wife. The Commonwealth’s expert testified that the defendant had no mental disorder that would impair his capacity to form intent to kill his wife, relying on the fact that the wife planned to divorce him, that he delayed an hour in calling police and that he initially fabricated events. The jury convicted the defendant of first degree murder and the trial court sentence him to life in prison. The Pennsylvania Superior Court upheld the conviction and the Pennsylvania Supreme Court declined review.

The defendant then filed a post-conviction petition for relief alleging ineffective assistance of counsel for failure to call character witnesses that would have established that his mental instability prompted his actions and that he neither planned nor intended to kill his wife. The trial court conducted a hearing and dismissed his petition. The Superior Court reviewed the petition on appeal, reversed and remanded the case for a new trial. At retrial, the Commonwealth sought to introduce evidence of his mental stability presented by its expert at the original trial. The trial court ruled that since the defendant was not presenting mental infirmity as a defense on retrial, the Commonwealth could not present its expert psychiatric testimony as substantive evidence in its case in chief, but if the defendant testified on his own behalf, the Commonwealth could use the admissions of guilt contained in its expert’s testimony as rebuttal evidence. The defendant waived his right to a jury trial and proceeded with a bench trial. The Court found him guilty and again sentenced him to life in prison.

The Superior Court affirmed the trial court. On appeal from the Superior Court, the Pennsylvania Supreme Court relied on the decision in Commonwealth v. Santiago, 662 A.2d 610 (Pa. 1995) in which the court held that the defendant’s waiver of the psychiatric-patient privilege carries over to his retrial and on Commonwealth v. Boyle, 447 A.2d 250 (Pa. 1982), holding that if a defendant waives his 5th amendment privilege against self-incrimination and testifies at his first trial, his testimony is admissible at retrial even if he does not take the stand in the second trial. The Pennsylvania Supreme Court held that the two cases taken together support the admission of psychiatric testimony at the second trial. Once the privilege is waived, it is always waived, and no distinction need be made between the defense expert and Commonwealth’s expert. Either side may therefore introduce substantive evidence admitted in the first trial in the second trial.

Found in DMHL Volume 31 Issue 4

US Court of Military Justice Had Jurisdiction to Court Martial Servicemember with Autism

United States v. Fry, 70 M.J. 465, 2012 CAAP Lexis 201 (February 12, 2012)

The Armed Forces Court of Appeals has held that the United States Military Court had jurisdiction to court martial a servicemember with autism who had been adjudicated incapacitated by the State of California and had had a conservator appointed. Joshua D. Fry, a private in the U.S. Marine Corps, was subjected to court martial for two counts of being absent without leave and four specifications of possessing child pornography, and was sentenced to a bad conduct discharge, confinement for four years and forfeiture of all pay and allowances. The sentence in excess of twelve months was suspended for twelve months. The U.S. Navy-Marine Corps Court of Criminal Appeals affirmed.

As a 16-year old, Fry initially met a Marine Corps recruiter while living in California, but was leaving at that time for Colorado to attend a school for adolescents with psychiatric, emotional or behavioral problems. Prior to his departure, his grandmother petitioned a California court for a limited conservatorship because of his autism and arrest for stealing and carrying a “dirk or dagger,” alleging that her grandson was unable to provide for his needs for health, clothing and shelter, and that he could not control his impulsivity. At the uncontested hearing, the court entered an order restricting Fry’s ability to choose a residence, access confidential papers and records, contract and give or withhold consent to medical treatment and make all decisions concerning his education. When he was 20 years old, Fry returned to California still subject to the conservatorship, met the same recruiter, and enlisted in the Marine Corps. He passed the Armed Services Vocational Aptitude Battery, certified that he understood the terms of his enlistment and obtained his birth certificate and Social Security card from his grandmother. He thereupon undertook the obligations, duties and training of a Marine and received pay and allowances.

Fry first began to have issues in basic training. He stole peanut butter and hid it in his sock, urinated in his canteen, refused to eat, and failed to shave and lied about it. He informed medical staff that he was autistic and asthmatic, and medical staff recommended that he be sent home. He nonetheless remained, convincing Marine Corps staff that he was motivated and wanted to return to training. He was found mentally fit to do so, completed his basic training and his grandmother attended graduation, never objecting to his service. He committed his offenses two or three months after being assigned to routine duty.

On appeal, Fry argued that the military court had no jurisdiction to try him because a California court had previously found him mentally incapable of contracting, and that the military court owed the California judgment full faith and credit. In upholding the military court, the appellate court found that the scope, nature and legal incidents of the relationship between a servicemember and the Government are fundamentally governed by federal authority and not state law. The Court held that court martials need not concern themselves with the legal effect of other provisions in contracts or law. Article 2(c) of the Uniform Code of Military Justice relating to court martial specifically states that it applies “notwithstanding” any other provision of law. The Court stated that the only issue therefore is whether the person was serving in the armed forces and 1) voluntarily submitted to military authority; 2) met mental and age requirements; 3) received military pay or allowances, and 4) performed military duties, and finally whether he was mentally competent within the meaning of the statute.

The Military Court found that everyone had acted as though Fry was validly enlisted, including his grandmother conservator. His actions in enlisting were not compelled by outside influence, nor was there any evidence that he was under duress or coercion or that he could not understand the nature or significance of his actions. Two experts testified at trial. One testified for the prosecution that Fry was able to appreciate the nature and quality of his wrongful conduct. Another psychologist testified that he did not remotely have the ability to consider the long-term consequences of his actions. The military judge found that the evidence did not support a claim of impulsivity and Fry was mentally competent to enlist. His findings were supported by the record and therefore the Appellate Court would not overturn them as “clearly erroneous.” The Court of Appeals therefore found that the Military Court had jurisdiction to court martial the servicemember.

Found in DMHL Volume 31 Issue 4

D.C. Circuit Upholds Virginia/Kansas Medicaid IMD Disallowances

Virginia Department of Medical Assistance Services v. U.S. Department of Health and Human Services, et al., 2012 U.S.App. LEXIS 9293 (May 8, 2012)

The District of Columbia Court of Appeals has upheld the Centers for Medicare and Medicaid Services (“CMS”) disallowance of matching federal financial participation (“FFP”) funds for medical services the Virginia Department of Medical Assistance Services and the Kansas Health Policy Authority paid for individuals under age 21 in inpatient psychiatric facilities under the Institutions for Mental Disease (“IMD”) exclusion.

Since its enactment in 1965, the Medicaid program has excluded Medicaid payments for services provided to otherwise eligible individuals in IMDs who have not attained the age of 65 years or older. In 1972, Congress added an exception to the exclusion for “inpatient psychiatric hospital services for individuals under age 21.” 42 U.S.C. § 1396d(a)(16). In order to be eligible for FFP, the inpatient services provided to those under age 21 (1) must be provided in an institution, or distinct part thereof, which is a psychiatric hospital or other inpatient setting specified by the Secretary in regulation; 2) must involve active treatment provided by a team, consisting of a physician and other qualified mental health professionals, which has determined the inpatient services are necessary and can reasonably be expected to improve the patient’s condition to the extent that such services will no longer be necessary; and 3) are provided prior to the date the individual attains age 21 or, if the individual is receiving services immediately preceding attaining age 21, the date the individual no longer requires such services, or attains age 22. 42 U.S.C. § 1396d(h)(1)(A)-(C).

In 2001-2002, the Department of Health and Human Services Inspector General audited claims submitted for IMD residents under age 21 in several states, including Virginia and Kansas, and found that certain claims were not documented to be for “psychiatric hospital services provided in and by an IMD.” As a result, CMS disallowed $3,948,532 in claims for Virginia, and $3,883,143 for Kansas. Virginia’s disallowed claims included physician services, pharmacy, outpatient hospital clinical services, inpatient acute care and other services, such as laboratory, x-ray and community mental health and mental retardation services. Both Virginia and Kansas separately appealed the disallowances to HHS’ Departmental Appeals Board and then to the United States District Court for the District of Columbia, which both ruled in favor of CMS. Virginia’s and Kansas’ subsequent appeals to the District of Columbia Circuit were then consolidated. The law firm of Covington and Burling represented both states instead of their respective Attorneys’ General.

Virginia and Kansas argued, among other things, that the statute was ambiguous because it conflicted with the “comparability principle” that requires a state to provide medical assistance to individuals meeting eligibility requirements which are not less in amount, duration, or scope than the medical assistance made available to any other individuals. The States also argued that the interpretation was contrary to the legislative history that reflected Congress’ intent to improve and expand treatment for children with mental illness to permit them to rejoin and contribute to society. The States further argued that CMS’ narrow interpretation of the under-21 exception conflicts with the requirements for provisions of services under the early and periodic screening, diagnostic, and treatment (“EPSDT”) mandate and the requirement in the Home and Community Based waiver program that services provided in the community be “cost-neutral.” By failing to reimburse for expensive inpatient services, the argument went, the provision of necessary services in the community will necessarily be more expensive and thus fail the waiver test.

In upholding the CMS determination, the Appeals Court found that the legislation was clear on its face that the only exceptions to the IMD rule pertained to eligible recipients age 65 and older and individuals under age 21 receiving inpatient psychiatric hospital services. When a statute is clear on its face, no further interpretation or referral to legislation history is necessary. In rejecting all of the States’ arguments, the Court wrote that the under-21 exception to the IMD rule “may not reflect the most compassionate or even the most prudent approach to treating young patients in IMDs, but it marks the extent of assistance the Congress unambiguously authorized in 1972 when it first decided to fund such services.” The courts are therefore obligated to interpret the law as unambiguously written by Congress.

Found in DMHL Volume 31 Issue 4

Ninth Circuit Authorizes Medication over Objection for Pretrial Detainee on Dangerousness Grounds without Requiring Sell Hearing

United States v. Loughner, 672 F.3d 731 (9th Cir. 2012)

The Ninth Circuit Court of Appeals, in a 2-1 decision issued on March 5, 2012 and amended on May 14, 2012, upheld the ruling of the United States District Court in Arizona, holding that the government may treat a pretrial defendant with serious mental illness with antipsychotic medication over his objection if the inmate is a danger to himself or others. An administrative hearing comporting with the requirements in Harper v. Washington, 494 U.S. 210 (1990), is sufficient without the necessity of the judicial hearing and balancing test set out in Riggins v. Nevada, 504 U.S. 127 (1992) and Sell v. United States, 539 U.S. 166 (2003).

The defendant Jared Lee Loughner is accused of murdering six people, including U.S. District Judge John Roll, and the attempted murder of thirteen others, including Congresswoman Gabrielle Giffords in Tucson, Arizona on January 8, 2011. Loughner was committed to the Bureau of Prisons to determine whether he was competent to stand trial, and based upon the findings of the medical staff at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri(“FMC-Springfield”) that he was not, he was then committed to determine whether he could be restored to competency.

While in custody at FMC-Springfield, Loughner was determined to be a danger to himself or others and the facility conducted an administrative hearing under 28 C.F.R. § 549.46(a) to determine whether he could be involuntarily medicated. A psychiatrist not involved in the defendant’s treatment presided over the hearing that took place in Loughner’s cell. A licensed clinical social worker was assigned as his staff representative. Even though Loughner requested that one of his attorneys appear at the hearing as his “witness,” counsel was not permitted to attend the hearing. Following the hearing, the presiding psychiatrist authorized involuntary medication finding that Loughner, who had been diagnosed with schizophrenia, “had become enraged while being interviewed by his attorney and yelled obscenities; had thrown objects, including plastic chairs and toilet paper; had spat on his attorney, lunged at her, and had to be restrained by staff; and his behavior had been characterized by indications that he was experiencing auditory hallucinations, including inappropriate laughter, poor eye contact, yelling “No!” repeatedly, and covering his ears.” Id. at 737. Loughner was given 24 hours to appeal the decision to the Administrator of the Mental Health Division, which he did. Laced with profanity, Loughner’s appeal was denied.

Upon learning of Loughner’s involuntary medication, his attorneys filed an emergency motion in the district court to enjoin FMC–Springfield from forcibly medicating him, arguing that the involuntary medication violated his substantive due process rights by treating his mental illness with medication without first considering less intrusive measures, and by failing to consider how the medication might implicate his fair trial rights. They also argued that his procedural due process rights as a pretrial detainee had been violated because the hearing should have been held before the court and the specific drug and dosage should have been specified in the hearing.

The district court denied the motion and request for an evidentiary hearing on the grounds that, even though he was a pretrial detainee, Loughner was being medicated on dangerousness grounds and that the Harper standards, not the Riggins and Sell standards, applied. In so deciding, the district court adopted the rationale in United States v. Morgan, 193 F.3d 252 (4th Cir. 1999), holding that dangerousness determinations are to be made by medical professionals and the court’s involvement should be limited to a review for arbitrariness. On appeal to the Ninth Circuit, the Motions Panel granted Loughner a stay, enjoining all involuntary administration of medication pending adjudication of this appeal.

After medication was discontinued, Loughner’s condition drastically deteriorated and he was placed on suicide watch. FMC–Springfield’s psychiatrists then determined that Loughner was a severe danger to himself and administered medication on an emergency basis. Loughner’s attorneys immediately requested the district court to enforce the Ninth Circuit injunction, but the district court refused. FMC–Springfield thereupon conducted a second Harper-style hearing to continue the mediation based on Loughner’s danger to himself. Loughner again requested that his attorney appear as his “witness.” His attorney did not appear but submitted a written statement which contained legal objections to the involuntary medication. In justifying the administration of medication in this report, the presiding psychiatrist noted the deterioration in Loughner’s condition after the administration of antipsychotic medication was discontinued. Many of his most serious symptoms had receded but he “still exhibits a tendency towards motor restlessness and pacing…cries frequently, and expresses intense feelings of guilt.” United States v. Loughner, 672 F.3d at 739. The report also noted Loughner’s current medication regimen and stated that other less intrusive measures would not address Loughner’s fundamental problem.

Loughner’s attorneys filed another emergency motion with the district court to enjoin the administration of the medication which the court again denied on the grounds that the administration of medication “was predicated on the grounds of dangerousness and really has nothing to do with his competency.” Id. at 740. The district court also continued Loughner’s commitment another four months for competency restoration based on his treating psychiatrist’s testimony that he was likely to become competent in the near future.

On appeal, the Ninth Circuit first distinguished between the substantive due process and procedural due process issues presented. It reiterated that the substantive due process clause of the Fourteenth Amendment establishes the definition of the protected constitutional interest, here the liberty interest in being free from unwanted antipsychotic medication, and identifies the conditions under which competing state interests outweigh it. The procedural due process grounds set out the minimum procedures required to determine whether those liberty interests outweigh the government’s interest in overriding them. The Court then conducted an analysis of the Harper, Riggins, Sell and post-Sell decisions.

In Washington v. Harper, the United States Supreme Court reviewed the State’s regulation governing the forcible medication of a convicted prisoner with serious mental illness who posed a serious likelihood of danger to himself, others, or their property. In upholding the Washington regulation, the Supreme Court balanced the prisoner’s interest in avoiding unwanted medical treatment with the State’s penological interest in providing needed treatment to inmates. The Court held that “given the requirements of the prison environment, the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s best interest.” Washington v. Harper, 494 U.S. at 227.

In Riggins v. Nevada, the Supreme Court reviewed Nevada’s forced treatment of the defendant during trial. Riggins began taking mellaril prior to the trial, but requested it be stopped during trial because of its effect on his demeanor and his mental state. Following the testimony of three psychiatrists who questioned the need for continued medication during trial, the trial court denied Riggins motion to discontinue the mediation, but gave no rationale for the decision. The Supreme Court held that pretrial detainees possessed at least the same right as the convicted prisoners in Washington v. Harper, and denied it had determined the full constitutional protections required for pretrial detainees in that case. The Court suggested that the prosecution could have prevailed if “the district court had found that treatment with medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins own safety or the safety of others.” Riggins v. Nevada, 504 U.S. at 135. The Court reversed but set no standards for pretrial detainees because the district court had made no determination related to the need for medication and no findings to support its decision.

In Sell v. United States, the Supreme Court set out the substantive standards for determining when the government may administer antipsychotic drugs involuntarily to restore a criminal defendant to competency to stand trial. The court must first determine “whether there are important government trial related issues at stake; that involuntary medication will significantly further these governmental interests, without causing side effects that will interfere significantly with the defendant’s fair trial rights; that the medication is necessary to further the government’s interests taking into account less intrusive alternatives; and that the administration of the antipsychotic drugs is medically appropriate, i.e., in the defendant’s best medical interest.” Sell v. United States, 539 U.S. at 180-181.

After reviewing the cases decided post-Sell, the Ninth Circuit held that “when the government seeks to medicate a detainee – whether pretrial or post-conviction – on the grounds that he is a danger to himself or others, the government must satisfy the standard set forth in Harper. The Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.” United States v. Loughner, 672 F.3d at 752. The Court then upheld the Bureaus of Prison’s regulation finding that a judicial hearing was unnecessary, stating that medical decisions should be made by medical personnel. Although it questioned the effectiveness of Loughner’s prison representative, it found attorney representation not necessary. The Court also held that a specific medication regimen need not be specified finding that Loughner’s treating psychiatrist must be able to titrate his existing dosages to meet his needs and to change medications as necessary. The Ninth Circuit finally held that should Loughner be restored to competency, his arguments that the antipsychotic medications substantially alter his demeanor and make him unable or unwilling to assist his counsel are issues to be decided at the time of trial.

Found in DMHL Volume 31 Issue 4

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

Ninth Circuit Holds District Court Decision Refusing to Seal Competency Proceedings Not Subject to Interlocutory Appeal

United States v. Guerrero, 2012 U.S. App. LEXIS 18504 (9 th Cir. Cal. Aug. 31, 2012)

The Ninth Circuit Court of Appeals has refused to hear the interlocutory appeal of the district court’s denial of defendant’s motion to seal his competency proceedings under the collateral order doctrine.

James Guerrero and a co-defendant were indicted in 2008 for the first degree murder of a United States correctional officer and the government filed a notice of intent to seek the death penalty. In April 2011, the defendant filed a motion for a hearing to determine his competency to stand trial, along with six exhibits, including a 27-page social history and a 77-page memorandum describing defense counsels’ interactions with the defendant. The defendant moved the court to seal the evidentiary hearing, all exhibits, post-hearing briefs and any detailed findings of fact. The district court denied the motion to seal the proceedings and documents, finding an overriding public interest in criminal competency proceedings, and scheduled the competency hearing. The court did issue a protective order prohibiting certain privileged and confidential information from being used at trial. The defendant thereupon sought an interlocutory appeal to the Ninth Circuit.

As a general rule, an appellate court may hear appeals only from a district court’s final decision concluding litigation. A court may review an intermediate decision under the collateral order doctrine only when the decision 1) has conclusively determined the disputed question, 2) resolved an important issue completely separate from the merits of the case, and 3) would be effectively unreviewable on appeal from a final judgment. A decision that is effectively unreviewable on appeal is one that would imperil a substantial public interest or some particular value of high order, public access to criminal competency proceedings being one such interest.

The defendant argued in this case that once his personal history was publicly disclosed at the competency hearing it would intrude on the attorney/client privilege, taint the jury pool and invade his and his family’s privacy, and was thus effectively unreviewable. The Ninth Circuit found in this case that the first two prongs of the standard had been met. The issue of whether to seal the competency proceedings had been conclusively determined and the competency issue was separate on the merits from the criminal proceeding. However, the Court found that the decision whether to seal the competency proceeding could be adequately vindicated on appeal through reversal of a conviction and the ordering of a new trial. Moreover, other avenues were also available to protect the defendant’s interests including a petition for writ of mandamus asking a court to seal the records, rigorous jury screening, possible relocation of the trial, and entry of protective orders, prohibiting the use or disclosure of certain documents. The Ninth Circuit therefore denied the defendant’s appeal and remanded the case for a determination of the defendant’s competency and further trial on the merits.

Found in DMHL Volume 31 Issue 6

Second Circuit Rules P&A Contractor Lacks Standing to Sue New York on behalf of Its Constituents

Disability Advocates, Inc. et al. v. New York Coalition for Quality Assisted Living, Inc. et al., 675 F.3d 149 (2012)

The Second Circuit Court of Appeals has held that Disability Associates, Inc., a contractor for New York’s designated protection and advocacy agency, the Commission on Quality of Care and Advocacy for Persons with Disabilities, lacks standing to sue the State of New York and its officials in this long-running challenge to require New York to provide individuals with mental illness residing in adult homes with more integrated services in the community. In addition, the Court held that intervention by the United States at the remedial phase of the litigation was insufficient to convey jurisdiction upon the federal court when it lacked jurisdiction in the first instance.

Disability Associates, Inc. originally filed suit against the Governor of New York and the New York Commissioners of Health and Mental Health on July 1, 2003 on behalf of its constituents, individuals with mental illness residing in, or who might one day reside in, adult homes in New York City. The suit alleged that the mental health system violated the “integration mandate” under Title II of the Americans with Disabilities Act by failing to provide mental health services in the most integrated setting appropriate to the needs of the individuals. After discovery, the State filed a Motion for Summary Judgment arguing, among other things, that Disability Associates, Inc. lacked standing to sue on behalf of its constituents. The district court found that the plaintiff did have standing and, after a five-week bench trial, that New York had violated the ADA. Disability Associates, Inc. v. Paterson, 653 F.Supp. 2d 184 (E.D.N.Y. 2009).

More than six years after suit was filed, the United States moved to intervene in the remedy phase of the proceeding. The Court rejected New York’s proposed remedial plan, but entered one with a few modifications submitted by Disability Advocates, Inc. The Court required, among other things, that New York afford all current and future residents desiring placement in supportive housing with such services within four years of entry of the order.

New York appealed the order on the grounds, among others, that Disability Associates, Inc. lacked standing. The appeal was argued on December 8, 2010, but it was not until April 6, 2012 that the Second Circuit dismissed the entire case for lack of jurisdiction because no Article III Case or Controversy existed. Before a party may bring a case in federal court, it must first demonstrate that it has standing, that is, it has suffered an injury-in-fact, which is a concrete and particularized harm to a legally protected interest. If the party lacks standing, no case or controversy over which a court may have jurisdiction exists. When an association seeks to bring suit solely as the representative of its members, it must allege that its members are suffering immediate or threatened injury had the members themselves sued. Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977). In Hunt, the Supreme Court ruled that although the Washington State Apple Advertising Commission was a state agency without actual members, its constituency possessed an “indicia of membership” and functioned as a membership organization. The record reflected that the apple growers and dealers alone elected the members of the Commission, served on the Commission, and financed its activities.

Here, the Second Circuit noted that whether P & A systems afford similar protections to their constituents, as in Hunt, including requirements that advisory councils be composed of at least 60% of individuals with disabilities and grievance procedures be established, has been decided differently in circuits throughout the country. The Ninth and Eleventh Circuits have found the indicia of membership to be sufficient to convey associational standing on P& A agencies. Dr. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1110 (9th Cir. 2010); Doe v. Stincer, 175 F.3d 879, 886 (11th Cir. 1999). By contrast, the Fifth and Eighth Circuits have dismissed cases finding no associational standing. Citizens of Dall. v. Dall. Cnty. Mental Health & Mental Retardation Ctr. Bd. of Trs., 19 F.3d 241, 244 (5th Cir. 1994); Mo. Prot. & Advocacy Servs. Inc. v. Carnahan, 499 F.3d 803, 810 (8th Cir. 2007).

In this case, the Second Circuit determined that it need not decide whether the P & A Agency could assert associational standing because it found Disability Advocates, Inc. was a mere contractor for the designated P & A system. Although as a contractor, Disability Advocates, Inc. was required to comply with all the requirements of the Protection and Advocacy for Individuals with Mental Illness Act, the record was devoid of any indication as to whether its constituents had any ability to elect its directors, make budget decisions, influence its activities or direct its litigation strategies. The Court found no evidence that Disability Advocates had even notified its constituents of this litigation. Without these protections, the Court held, Disability Advocates’ constituents have nothing approaching the indicia of membership required to support associational standing, as found in Hunt.

In addition, the Second Circuit found that the United States did not intervene in the case until six years after suit was filed and after the trial phase had concluded. The Court held that a court must first have jurisdiction over a case before it can grant a motion to intervene. Because the district court lacked the requisite Article III Case or Controversy jurisdiction in the first instance, the mere fact that the United States itself might have standing could not convey jurisdiction originally upon the court. The Court therefore dismissed the entire case, relieving New York of the burden to implement the district court’s order.

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

Defendant Detained in Mental Health Facility for Restoration to Competency is Prisoner under Prison Litigation Reform Act

Gibson v. City Municipality of New York, 692 F.3d 198 (2012)

The Second Circuit Court of Appeals has upheld the district court’s dismissal of a petitioner’s motion to proceed in forma pauperis, resulting in dismissal of his complaint against a number of city, corrections and mental health officials alleging they violated his civil rights. The petitioner had filed three previous petitions as a prisoner that had been dismissed as frivolous, malicious, or failed to state a claim upon which relief may be granted. The Court held that although the petitioner was being detained in a mental health facility, he was still a “prisoner” for purposes of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), and thus subject to the Act’s limitation on proceeding in forma pauperis in federal court.

The petitioner, Bennie Gibson, had been charged with third degree criminal mischief under New York law and was being detained at Kirby Psychiatric Center in the custody of the Commissioner of Mental Health on a temporary order of observation for restoration of his capacity to stand trial. While federal law generally permits a district court to waive filing fees for individuals who cannot pay and to proceed in forma pauperis, Congress enacted the Prison Reform Litigation Act in 1995 to limit abuse of the legal system by prisoners who file repetitive frivolous complaints. “Prisoner” is defined under the Act as “any person…detained in any facility who is accused of…violations of criminal law.” 28 U.S.C. § 1915(h). Under New York law, criminal charges are not dismissed against a defendant held in the temporary custody of the Commissioner of Mental Health, but are merely suspended pending his treatment and restoration to capacity. Gibson therefore met the definition of a prisoner as a person detained as a result of an accusation, conviction, or sentence for a criminal offense. Had Gibson been held under a final order of observation as a civil unrestorable patient, been found not guilty by reason of insanity, or been civilly committed as a sexually violent predator, the result may not have been the same.

Found in DMHL Volume 32 Issue 1

Tenth Circuit Finds Right to Counsel in Post-Conviction Proceeding to Determine Whether Mental Retardation Bars Imposition of Death Penalty; Rejects Use of Flynn Effect in Determining IQ

Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012)

Although there is no right to counsel in post-conviction proceedings, the Tenth Circuit has held that a capital defendant has a Sixth Amendment right to counsel in a post-conviction (Atkins) hearing conducted after his original conviction to determine whether he is mentally retarded (intellectually disabled). Such a finding would bar imposition of the death penalty. The Court then proceeded to review each of the defendant’s claims of ineffective assistance of counsel, rejecting all of them except one, but finding no cumulative evidence or prejudice on that claim to warrant overturning the jury verdict. On review of the jury’s finding that the defendant was not mentally retarded, the Court found that the results of the defendant’s numerous IQ tests fell within a “gray” area, but the scores were not entitled to be adjusted downward due to the “Flynn” effect. Because there is no scientific consensus on its validity, failure to apply it is not “contrary to clearly established federal law.” Finally, the Court found that defendant’s trial counsel in the original trial was grossly ineffective during the sentencing phase, overturned the death sentence, and remanded the case to the Oklahoma courts for a new sentencing hearing.

Victor Hooks was convicted in 1989 of first degree murder of his common law wife and of first degree manslaughter of her unborn child. Hooks and his common law wife had lived together for four years and were the parents of a one-year-old daughter. His wife was also 24 weeks pregnant with their second child. After originally claiming that she had been beaten and raped while on a walk, Hooks confessed to police that they had been fighting, she slapped him, and he then struck her, knocked her to the ground and kicked her in the stomach and face. Subsequently he removed her clothing, put her in the bathtub, and shaved a portion of her head. Hooks then cleaned up the apartment and also removed blood from his one-year-old daughter who had been splattered in the course of her mother’s beating.

Hooks was represented at trial by a private attorney hired by his mother. His attorney decided not to pursue an insanity defense believing there was an insufficient factual basis for it, but focused on obtaining a conviction for a lesser-included offense of second degree murder or first degree manslaughter, arguing that Hooks acted in the heat of passion and not with malice aforethought. There was some information that Hooks had been hit by an 18-wheel truck as a child and suffered a traumatic brain injury, and also suffered from chronic psychosis. The evidence also showed that Hooks had abused his wife on prior occasions and was convicted of armed robbery of a liquor store several years earlier. The trial court refused to instruct the jury on the lesser included offenses and the jury then found the defendant guilty of first degree murder, imposing the death penalty, and first degree manslaughter in the death of the unborn child, sentencing him to 500 years imprisonment on that charge.

Hooks challenged his convictions both on direct appeal and through post-conviction petitions for writs of habeas corpus. In 2002, 13 years after Hooks’ conviction, the United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304, 321 (2002) that, in light of a national consensus, the execution of a person with mental retardation is cruel and unusual punishment prohibited by the Eighth Amendment. Hooks then filed a second post-conviction petition alleging that he is mentally retarded. In 2004, after a six-day trial, a jury found him not to be mentally retarded. The Oklahoma Court of Criminal Appeals upheld the determination on both direct appeal and collateral review.

In deciding Atkins, the Supreme Court declined to establish a definition of mental retardation, but left it to the states to do so. In response to Atkins, the Oklahoma Court of Criminal Appeals established the following definition in case law:

A person is “mentally retarded” (1) [i]f he or she functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others; (2) [t]he mental retardation manifested itself before the age of eighteen (18); and (3) the [m]ental retardation is accompanied by significant limitations in adaptive functioning in at least two …skill areas….However, no person shall be eligible to be considered mentally retarded unless he or she has an intelligence quotient of seventy or below, as reflected by at least one scientifically recognized, scientifically approved, and contemporary intelligent quotient test.

Murphy v. State, 54 P.3d 556, 567-68 (Okla. Crim. App. 2002). A defendant has the burden of proving his mental retardation by a preponderance of the evidence.

Hooks had been administered IQ tests through the years and nine of these test results were presented to the jury with scores ranging from 53 to 80. The experts agreed that this range of scores put Hooks in a “gray area.” Tests of 70 or below, however, all reflected some degree of lack of cooperation on Hooks’ part. The experts agreed that the most reliable scores were those conducted by two of the experts of 72 and 76, neither of which met the 70 or below requirement. Hooks argued that these scores should be adjusted downward to reflect the “Flynn Effect.” The “Flynn Effect” is a phenomenon named for James R. Flynn who discovered that the population’s mean IQ score rises over time by approximately 0.3 points per year. If an individual’s test score is measured against a mean of a population sample from prior years, then his score will be inflated and will not provide an accurate picture of his IQ.

The Tenth Circuit rejected this argument finding that Oklahoma law does not require an adjustment for the “Flynn Effect,” nor did it find any scientific consensus on its validity. The Court held therefore that failure to apply the “Flynn Effect” was not “contrary to or an unreasonable application of clearly established federal law,” the standard required to overturn a final state court determination on collateral review. Based upon all of the evidence presented, including other evidence related to Hooks’ functional capacity and his adaptive skills, the jury’s finding that he was not mentally retarded was not clearly erroneous.

Hooks also claimed that his counsel at his Atkins trial was ineffective on a number of legal grounds. The State argued that there is no right to counsel in post-conviction proceedings and therefore there is no basis for a claim of ineffective assistance of counsel in post-conviction Atkins hearings. The Tenth Circuit recognized that the United States Supreme Court has never held that there is a Sixth Amendment right to counsel in an Atkins hearing. It reasoned, however, that the Sixth Amendment guarantees the right to have counsel present at all critical stages of criminal proceedings. Although Hooks was convicted years before the Atkins decision and his trial to determine whether he is mentally retarded was necessarily a post-conviction proceeding, this hearing was the first proceeding at which he could raise this claim. The Court held that the Atkins trial is therefore part of the criminal proceeding and is inextricably intertwined with sentencing. It is thus not civil in nature, as post-conviction proceedings normally are. The right to counsel therefore “flows directly from, and is a necessary corollary to the clearly established law of Atkins.”

The Court then examined Hooks’ claims that his counsel was ineffective on the merits. Hooks argued that the standard articulated in United States v. Cronic, 466 U.S. 648 (1984), where counsel’s representation fell so far short of that expected of defense counsel that prejudice was presumed, should be applied in his case. In Cronic, the Supreme Court found that some actions of counsel are so likely to prejudice the defendant that the cost of litigating their effect is unjustified and prejudice will be presumed. The Court found, however, that his counsel actively and zealously participated in all phases of the proceedings and therefore held that the standard in Strickland v. Washington, 466 U.S. 668 (1984), applied instead. In Strickland, a review of counsel’s performance is a highly deferential one and counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Although counsel failed in one aspect of representation, the Court found that failure was not cumulative or prejudicial to the hearing’s outcome.

The Court next reviewed the effectiveness of counsel at his original trial and found that Hooks counsel at trial in the conviction phase exercised a tactical decision not to raise an insanity defense because it lacked a factual basis. In the sentencing phase, however, the Court found counsel’s representation grossly deficient in his failure to conduct a through investigation or to produce any evidence in mitigation. He failed to challenge the prosecution’s aggravation evidence or to present evidence that revealed Hooks was raised in an abusive and chaotic family, suffered from a brain injury and suffered from chronic psychotic mental health problems, all of which could have elicited sympathy from a juror and mitigated his sentence. Moreover, counsel made his own statements to the jury related to Hooks’ violent tendencies and permitted his own expert to make prejudicial statements related to his violence. The Court therefore vacated the death sentence and remanded the case to the Oklahoma courts for a new sentencing hearing.

Found in DMHL Volume 32 Issue 1

Virginia Supreme Court Finds Use of Video Conferencing to Conduct Annual SVP Review Hearing Provides Due Process

Shellman v. Commonwealth, _Va._, 733 S.E.2d 242 (Nov. 1, 2012, No. 120261)
available at: http://www.courts.state.va.us/opinions/opnscvwp/1120261.pdf

In a sexually violent predator’s (“SVP”) appeal of his recommitment to secure inpatient treatment, the Virginia Supreme Court held on November 1, 2012 that use of a two-way electronic video and audio communication system does not conflict with the respondent’s statutory and due process rights, including his right to counsel.

Reginald Shellman was convicted of aggravated sexual battery in Fairfax County Circuit Court in February 2001. Prior to his scheduled release, the Department of Corrections assessed him as a potential SVP and referred him to the Commitment Review Committee, which subsequently referred him to the Office of the Attorney General for a determination as to whether to seek commitment. Upon petition of the Attorney General and following the requisite hearings, the Fairfax County Circuit Court found Shellman to be a SVP and committed him to the Virginia Center for Behavioral Rehabilitation in Burkeville, Virginia, all in accordance with Chapter 9 of Title 37.2 of the Code of Virginia.

In 2011, the Virginia General Assembly amended Virginia Code § 37.2-910(A) to permit annual assessment reviews to be conducted, “whenever practicable,” by means of two-way electronic video and audio communications. As a result, and over the objection of the respondent, the court held Shellman’s annual review proceeding by video conference. Present in the courtroom in addition to the judge was counsel for the Commonwealth, respondent’s counsel, and respondent’s mother. The respondent and the Commonwealth’s expert, Mario Dennis, Ph.D., a clinical psychologist and Director of Forensic Services at the Center, appeared by video from the Center. At one point, the video feed was lost at both locations, but the hearing was suspended for a short time while the connection was reestablished. The respondent objected during the hearing and on appeal, arguing that the video conference violated his statutory rights in Virginia Code § 37.2-901 to be represented by counsel, to be present during the hearing, and to present evidence and to cross-examine witnesses. Although he could ask to speak in confidence with his attorney, he also argued that is ability to consult and interact with his counsel during the hearing was stifled, thus violating his due process right to counsel. The record did not reflect, however, that the respondent or his counsel actually indicated they wished to confer at any point during the proceeding.

The Supreme Court first held that there was no statutory violation. The statutes granting the respondent’s rights, including the right to counsel, and authorizing the use of video conferencing were both plain on their face, were not clearly ambiguous, and did not conflict with one another. The respondent demonstrated no prejudice in appearing by video conference and the statute permitting its use “whenever practicable” was a matter committed to the court’s sound discretion. The respondent’s mere objection to the video conference did not render its use “impracticable,” and as such, was a matter left to the court’s sound discretion.

Turning to the constitutional issue, the Court applied the Fourth Circuit’s decision in United States v. Baker, 45 F.3d 837 (4th Cir. 1995), in which that Court upheld the use of videoconferencing in the context of competency commitment hearings. The Court found that the goal of both processes is to test the opinions of experts. Whereas in a criminal trial the demeanor of the defendant and witnesses is a major concern, decisions to commit for competency restoration or as an SVP are both based not so much on the demeanor of the witnesses, but on the qualifications of the experts and the substance and thoroughness of their opinions. The Court then found that “the purpose of the annual assessment hearing is to determine whether, in light of the treatment received in the preceding year, the respondent remains a sexually violent predator and, if so, whether there is a less restrictive alternative to secure inpatient treatment.” The Court therefore held that the use of video conferencing in this context is neither unconstitutional on its face nor as applied in this case.

Found in DMHL Volume 32 Issue 1

US Supreme Court Denies Review of Idaho’s Abolition of Insanity Defense; Three Justices Dissent

Idaho v. Delling, 267 P.3d 709 (Ida. 2011), cert. denied, Delling v. Idaho, 568 U.S. __ (November 26, 2012)
The dissenting opinion is available at: http://www.supremecourt.gov/orders/courtorders/112612zor_f204.pdf [ at pp. 24-26 ]

Idaho abolished the insanity defense in 1982 enacting new language providing that a defendant’s mental condition shall not be a defense to criminal conduct. In this case, John Joseph Delling was charged with two counts of first degree murder, which were later amended to second degree murder. On motion of his counsel, the court ordered Delling evaluated for competency to stand trial and later committed him for restoration to competency. After nearly a year of commitment, Delling was found competent to proceed. He thereafter entered a “conditional” plea of guilty but asked the trial court to find Idaho’s abrogation of the insanity defense unconstitutional on its face and as applied in his case. He argued that the ability of a defendant to raise the issue of insanity with respect to criminal responsibility is mandated under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In addition, he argued that abolition of the insanity defense violates his rights under the Sixth Amendment to present a defense and under the Eighth Amendment to be free from cruel and unusual punishment. The trial court denied these arguments and sentenced Delling to two consecutive life sentences.

On appeal, the Idaho Supreme Court upheld his convictions on the grounds that it had previously upheld the State’s abolition of the insanity defense in a long line of cases, and that the United States Supreme Court had declined to review any of those decisions after being presented with an opportunity to do so. Delling argued, however, that those decisions were no longer valid in light of the United States Supreme Court’s decision in Clark v. Arizona, 548 U.S. 735 (2006), in which the Supreme Court upheld the constitutionality of an Arizona statute that removed the cognitive incapacity element or second prong of the M’Naughten test. In so doing, the Supreme Court stated that it had never held that the Constitution mandates an insanity defense, but it had also never held that the Constitution does not require such a test. It stated that each state has the capacity to define its own crimes and defenses.

On November 26, 2012, the Supreme Court not surprisingly declined to review this case. What was a surprise was three justices dissented. Justice Breyer, joined by Justices Ginsburg and Sotomayor, noted the absurd result reached under Idaho law that permitted a defendant to argue that because of mental illness he lacked the requisite intent or mens rea to commit the act, but not defend on the basis that he was operating under a delusion when he committed the act. Under amicus curiae briefs filed by the American Psychiatric Association and Criminal Law and Mental Health Law Professors, Justice Breyer wrote that the vast majority of defendants pleading insanity appear to know they are committing the act charged but are operating under a delusion when they are doing so. He would therefore grant a Writ of Certiorari on the grounds that a defendant’s due process of law under the Fourteenth Amendment may be implicated.

Found in DMHL Volume 32 Issue 1