Tennessee Dismisses EMTALA Complaint in Suicide Case

Burd ex rel. Burd v. Lebannon HMA, Inc., 2010 U.S.Dist. LEXIS 124696 (M.D. Tenn. Nov. 23, 2010)

A United States District Court in Tennessee dismissed this lawsuit brought by the executor of Joshua Ashley Burd against Lebanon HMA, Inc. under the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C § 1395dd. Burd was initially brought to the emergency room after attempting suicide by hanging himself. Finding him to have high “suicide lethality” and testing positive for cocaine and opiates, Burd was committed to Middle Tennessee Mental Health Institute, a state mental health facility. A psychiatrist at the facility found him not to be a suicide risk and did not admit him. A police officer checking on his condition at home later that evening found an outstanding arrest warrant and learned that Burd had consumed two bottles of vodka. Believing he was a suicide risk, the officer returned Burd to the emergency room. Emergency room staff assessed him and determined he was suffering from acute situational anxiety, not an emergency medical condition, and discharged him. Burd was found dead the next morning from hanging. The trial court dismissed the EMTALA claim finding that the plaintiff had presented no proof of improper motive on behalf of emergency room staff. It found that there was no evidence that the decedent would have been assessed differently had he had health insurance. The court also found that if hospital staff does not have actual knowledge that an emergency medical condition exists, EMTALA does not apply. Any allegations related to medical malpractice must be decided in state court under state malpractice law.

Found in DMHL Volume 30 Issue 2

Civil Rights Complaint Alleging 4th Amendment Violation in Death of Man with Bipolar Disorder Dismissed

Johnson v. City of Memphis, 617 F.3d 864 (6th Cir. 2010)

The 6th Circuit Court of Appeals upheld the trial court’s dismissal of a § 1983 complaint brought by the widow of a man with bipolar disorder against two city police officers alleging violation of the Fourth Amendment’s prohibition against unlawful search and seizure that resulted in his death. The plaintiff called 911 seeking assistance for her husband, but hung up and left the house before the operator answered. Receiving no response to a follow-up call, the operator dispatched two patrol officers to the house. Upon arrival, the officers found the door open and after announcing their presence and receiving no response, entered the house with their weapons drawn. The man jumped on one officer grabbing his gun; a scuffle ensued; and the plaintiff’s husband was killed. The Court held that the entry met the exigent circumstances emergency aid exception to the 4th Amendment’s prohibition against unlawful searches and seizures based upon the factual circumstances in this case.

Found in DMHL Volume 30 Issue 2

Court Authorizes Lay Testimony of Defendant’s Behavior for Three Years Since His Return from Iraq to Support Insanity Defense

United States v. Goodman, 2011 U.S.App. LEXIS 1760 (10th Cir. Jan. 28, 2011)

In a case from Oklahoma, the 10th Circuit Court of Appeals has overturned the conviction of an Iraqi war veteran convicted of three armed robberies and an attempted armed robbery and ordered a new trail. Relying solely on the insanity defense, the defendant who suffered a mental breakdown on the battle field, argued and the 10th Circuit agreed, that the district court improperly limited lay testimony to observations of his behavior immediately before and after his eight-day robbery spree rather than permitting testimony about his erratic behavior for the three years since his return from Iraq. The Court found that the temporal limits imposed were improper because the evidence excluded was not too stale. The evidence was only at most three years old and part of a continuous pattern beginning with his post-combat psychiatric treatment. The Court also held that the trial court improperly precluded opinion testimony by lay witnesses under Federal Rule of Evidence 704(b). Rule 704(b) only bars experts from offering opinions about a criminal’s state of mind. Rule 704(a) permits lay opinion on the ultimate issue before the court.

Found in DMHL Volume 30 Issue 2

Virginia Supreme Court Permits SVP to Rescind Refusal to Cooperate; General Assembly Establishes Procedure

Hood v. Commonwealth, 280 Va. 526, 701 S.E.2d 421 (2010)
found at http://www.courts.state.va.us/opinions/opnscvwp/1092402.pdf

On November 4, 2010, the Virginia Supreme Court reversed the finding of the Pittsylvania County Circuit Court and remanded for a new trial a case decided under the Sexually Violent Predator Act. The Supreme Court determined that the circuit court’s decision that it had no discretion to permit a prisoner to rescind his refusal to cooperate with the Commonwealth’s mental health expert during the assessment examination violated the respondent’s procedural due process rights. The Court held that Virginia Code § 37.2-901 permitted, but did not require, the trial court to admit evidence of the respondent’s refusal and bar the respondent from introducing his own expert evidence. Virginia Code § 37.2-907(A) relating to the appointment of experts must be read in conjunction with § 37.2-901, even though it states that if the respondent refuses to cooperate with the examination under § 37.1-901, any expert appointed shall not be permitted to testify at trial nor any report be admissible. The Supreme Court held that due process requires the trial court to consider the circumstances surrounding the respondent’s refusal to cooperate and whether the respondent is currently ready to cooperate. The trial court thus has discretion as to what limits to place on admissibility of evidence. In this case, the respondent refused to cooperate before counsel was appointed to represent him and he was currently expressing a desire to cooperate. Virginia appears to be the only state that has such an evidentiary provision in its SVP Act.

In response to this decision, the General Assembly passed House Bill 1698 (Athey) and Senate Bill 1275 (Obenshain) http://leg1.state.va.us/cgibin/legp504.exe?111+ful+HB1698H1+pdf on February 23, 2011, establishing procedures surrounding the respondent’s decision to rescind any refusal to cooperate. The respondent may rescind his refusal to cooperate and elect to cooperate with the mental health examination within 21 days of retention or appointment of counsel. Counsel for the respondent must provide written notice of the respondent’s election to cooperate to the court and the attorney for the Commonwealth within 30 days of the appointment or retention of counsel. The probable cause hearing is then postponed until 30 days after receipt of the mental health examiner’s report. If the respondent thereafter refuses to cooperate with the mental health examination, the court is required to admit evidence of such failure or refusal and to bar the respondent from introducing his own expert evidence. These bills are awaiting signature by the Governor.

Found in DMHL Volume 30 Issue 2

Hospital Not Liable for Counselor’s Sexual Harassment of Patients

Doe v. Fulton-DeKalb Hospital Authority, 628 F.3d 1325 (11th Cir. 2010)

The Eleventh Circuit Court of Appeals has held that Grady Memorial Hospital is not liable for one of its counselor’s sexual misconduct with three patients in its methadone treatment clinic. The plaintiffs alleged that the counselor made inappropriate sexual advances during drug counseling sessions, and that Grady failed to conduct an adequate background investigation prior to hiring the counselor and to adequately supervise the counselor. The Court found that under Georgia law an employer cannot be found liable for the sexual misconduct of an employee under the doctrine of respondeat superior. In addition, the Court upheld the finding of the district court that the hospital exercised ordinary care in the hiring process. While its screening protocols were less than ideal, the hospital had no actual notice of prior misconduct by this employee; he passed criminal background checks and a drug test; and he provided dishonest information during the application and interview process as to why he left his previous jobs. The fact that the hospital failed to comply with Georgia regulation requiring it obtain a five-year employment history on all applicants posed licensing problems only and did not impost tort liability on the hospital.

Found in DMHL Volume 30 Issue 3

SVP Petition Cannot Be Filed in New York When Respondent Not in Custody for Sex Offense

In the Matter of the State of New York v. Rashid, 16 N.Y.3d 1, 2010 NY LEXIS 3339 (November 23, 2010)

The New York Court of Appeals has upheld the decision of the appellate court dismissing the Attorney General’s petition to commit this respondent under its Sex Offender Management and Treatment Act. Although the respondent had pled guilty to sodomy in 1991, he was incarcerated for robbery at the time the interagency notice was sent by the Department of Corrections that Rashid may be a sex offender. At the time the respondent received notice of the petition, he was in jail for petit larceny. Because the respondent was not subject to state custody or supervision, he was not a detained sex offender at the time the petition was filed for purposes of the Act. The Court also held that the proceedings commenced at the time the Attorney General filed the petition, not at the time notice was provided by the Department of Corrections.

Found in DMHL Volume 30 Issue 3

Government Fails to Carry Burden to Forcibly Medicate Incompetent Defendant

United States v. Ruiz-Gaxiola, 623 F.3d 684 (9th Cir. 2010)

The Ninth Circuit Court of Appeals has reversed the decision of the trial court and found that the Government did not meet its burden of establishing by clear and convincing evidence the Sell factors authorizing treatment of a defendant over his objection.

The defendant in this case, a Mexican citizen with an extensive criminal history of drug offenses, was charged with illegal reentry into the United States. Diagnosed with a delusional disorder, grandiose type, he was found incompetent to stand trial and sent to Butner Correctional Institution in North Carolina for treatment. At an administrative hearing, the defendant was found not to be a danger to himself or others in the institutional setting and did not suffer from a grave disability justifying involuntary medication. Thus the sole issue before the court was whether the defendant could be medicated over objection for the purpose of restoring his competency to stand trial.

Under Sell v. United States, 539 U.S. 166 (2003), the government must prove by clear and convincing evidence each of the factors enunciated by the United States Supreme Court: 1) that important governmental interests are at stake; 2) involuntary medication will significantly further that interest, i.e. it is substantially likely to restore defendant to competency and substantially unlikely to cause side effects that would impair significantly his ability to assist in his defense; 3) involuntary medication is necessary to further those governmental interests; and 4) treatment with medication is medically appropriate.

The magistrate judge considered the evidence and concluded that the government had proved its case. The Court of Appeals reversed finding that this case does not present one of those rare circumstances permitting medication over objection to render the defendant competent to stand trial and the government had not met its burden under Sell’s second and fourth prong. Although the defendant had never been treated with antipsychotic medications, the Court held that the government must prove what the medication will do, not what it is designed to do. The appellate court discounted the testimony of the government’s experts and relied on the testimony of the defendant’s expert who testified that the medication was likely to worsen his rare and difficult to treat mental disorder and increase his delusional thinking, especially based upon his inferiority feelings and hypersensitivity to powerlessness. It found that treatment with haldol would also unduly subject him to the risk of tardive dyskinesia. The court therefore found that treatment with medication was medically inappropriate.

Found in DMHL Volume 30 Issue 3

Class Action Filed Alleging Texas Violates ADA in Failing to Provide Communitybased Services

Steward v. Perry, No. 5:10-cv-01025 (W.D. Tex.)

Six named individuals residing in nursing facilities in Texas, the Arc of Texas, and the Coalition of Texans with Disabilities filed suit in December 2010 against the Governor, the Executive Commissioner of Health and Human Services and the Commissioner of the Department of Aging and Disability Services alleging that Texas is violating the Americans with Disabilities Act, § 504 of the Rehabilitation Act, Title XIX of the Social Security Act and the Nursing Home Reform Amendments.

The plaintiffs are alleging that each of the named individuals with a combination of intellectual disabilities and other conditions, such as cerebral palsy, epilepsy, or head injury, all qualify for community-based services and supports and are seeking class action certification for the 4500 others in Texas nursing facilities and the thousands more at risk of institutionalization. They are alleging that 45,756 individuals are on Texas’ waiting list for Home and Community-Based Services Waiver with Texas ranking 49th out of the 50 states in providing community-based care. They further allege that Texas has failed to provide PASARR Level II screenings to the plaintiffs or to provide “specialized services” required by Medicaid. Ironically, the plaintiffs argue that individuals residing in Texas’ 13 state-operated supported living centers under DOJ consent decree receive active treatment and better services than they do, noting that their scope of specialized services is limited to physical, occupational and speech therapy. The plaintiffs Arc and Coalition of Texans with Disabilities are suing on their own behalf and on behalf of their members.

The defendants filed a Motion to Dismiss on March 8, 2011 arguing, among other things, that the plaintiffs lack standing to bring this action, that a portion of their complaint is time barred and that the Acts they allege the defendants are violating convey no private right of action upon the plaintiffs.

Found in DMHL Volume 30 Issue 3

Ex Parte Communications of Judge to Determine Whether Defendant Is Competent to Stand Trial or Malingering Requires New Trial

State of Vermont v. Gokey, 2010 Vt. 89, 2010 LEXIS 90 (October 8, 2010)

The Vermont Supreme Court ordered a new trial for a defendant charged with lewd or lascivious conduct with a child and a habitual offender after the presiding judge talked ex parte with a pharmacist and two deputies who transported the defendant to court to determine whether he was malingering.

On the second day of trial, the defendant appeared in court but complained of being ill and did not look well. At the defense attorney’s request, the case was continued for the day and he was transported to the emergency room where he was administered anti-seizure medications for an existing seizure disorder. The following day the defendant appeared in court but was still groggy and sleeping at counsel table. His attorney asked for a continuance on the grounds that the defendant was unable to assist her with his defense and was incompetent to proceed. The court granted a 30 minute continuance while the defense attorney attempted to obtain medical information from defendant’s physicians and the emergency room treatment providers. The judge in the meantime called a pharmacist at Walgreens to determine what the side-effects of the medication might be and then, without informing the defendant’s counsel or the prosecutor, questioned the transporting deputies in her chambers to determine defendant’s behavior in their presence. Determining on that basis that the defendant was malingering, the judge proceeded with the trial with the jury returning a guilty verdict that afternoon. The Supreme Court ordered a new trial stating that the judge had stepped out of her role as an independent arbiter and become a witness in the case which severely prejudiced the case and impaired any appearance of neutrality.

Found in DMHL Volume 30 Issue 4

US Supreme Court Declines to Hear Appeal of Fifth Circuit’s Dismissal of Lawsuit for State Endangerment in Death of Mother of Man Whom Police Attempt to Detain for Mental Illness

Saenz et al. v. City of McAllen, Texas, et al., 396 Fed. Appx. 173, (5th Cir. 2010), pet. for cert. denied April 4, 2011

The United States Supreme Court has declined to review an unpublished Fifth Circuit opinion that granted qualified immunity to police officers who put the mother of a man with mental illness in the line of fire when attempting to subdue him for civil commitment. The estate and surviving relatives of an elderly woman sued the City of McAllen, Texas and individual police officers in a § 1983 action for allegedly violating her substantive rights under the due process clause. Police had summoned the elderly mother to the scene after they had tried and failed to extricate her adult son for mental health commitment from the house in which he had barricaded himself. The police knew he had a gun, was agitated, had made death threats to family members that day and was not taking his medications. He had previously killed his wife with an ax. Police allegedly took the mother who could not walk unassisted out of the car and placed here in front of the door, instructing her to urge her son to come out while police, wearing bullet proof vests, hid behind her with guns ready. When the son emerged, police opened fire. The mother was caught in the middle and was shot multiple times.

The Supreme Court has held that as a general rule state officials have no constitutional duty to protect an individual from private violence. Where, however, the state through affirmative exercise of power acts to restrain individual liberty, the state creates a “special relationship” which imposes a constitutional duty to protect the individual from danger, including private violence. The Fifth Circuit held that the “statecreated-danger” theory of liability was not clearly established in that circuit at the time of this incident and therefore the individual defendants were entitled to qualified immunity. The United States Supreme Court declined to review this decision.

Found in DMHL Volume 30 Issue 4

Arkansas Denies Insanity Acquittee Appeal

Hughes v. State of Arkansas, 2011 Ark. 147; 2011 Ark. LEXIS 134 (April 7, 2011)

The Arkansas Supreme Court has held that a defendant who was acquitted of a criminal offense as a result of mental disease or defect and committed to a mental health facility could not appeal his acquittal because the Court only has jurisdiction to hear appeals of criminal “convictions.” The defendant in this case was charged with the offense of terroristic threatening by threatening to cause death or serious physical injury to the congregation of Harvest Time Tabernacle Church. Upon questioning by police, the defendant threatened to kill himself, asked for a gun and cried like a baby. The prosecution moved the trial court for an evaluation of the defendant’s competency to stand trial, which the court ordered. Upon receipt of the evaluation report, the defendant moved to exclude the evaluation. The trial court denied the motion and proceeded to hear evidence on the underlying charge. After hearing the evidence, the trial judge found the defendant had committed the offense but suffered from a mental disease or defect and did not have the capacity to conform his conduct to the requirements of the law. He therefore acquitted the defendant, but committed him to a mental health facility. The defendant appealed on the grounds that the court erred by finding he committed the offense of terroristic threatening and by compelling him to use the affirmative defense of mental disease or defect, thereby depriving him of his constitutional right of trial by jury.

Found in DMHL Volume 30 Issue 4

US Supreme Court Declines to Hear Missouri Supreme Court Finding of Ineffective Counsel for Failure to Call Mental Health Expert

Missouri v. Vaca, 314 SW3d 331, (Mo. 2010), pet. for cert. denied February 22, 2011

The United States Supreme has refused to hear the State of Missouri’s request for review of the Missouri Supreme Court’s determination that defense counsel was ineffective at the penalty phase of the trial for failure to present mental health evidence for no strategic reason. The defendant had been charged with a series of armed robberies. Defense counsel had obtained a mental health evaluation that revealed the defendant was schizophrenic and evidence indicated he had suffered from this condition most of his life. The prosecutor was successful in excluding the defendant’s mental health evidence during the guilt phase of the trial. During deliberations, the jury sent questions back to the judge asking among other things whether there had been any evaluation of the defendant’s mental condition. Knowing the defendant suffered from mental illness and that the jury had questions regarding his mental state, defense counsel failed to call a mental health expert as a witness during the penalty phase of the trial. The Court held that while a defense attorney has flexibility to make strategic decisions about whether to introduce mental health evidence, the evidence revealed that the defense counsel did not even think about it. Missouri had just changed its law to provide for bifurcated guilt and penalty phase trials in noncapital cases and this was defense counsel’s first such trial. The Court thus held that a new sentencing hearing was required.

Found in DMHL Volume 30 Issue 4

US Supreme Court Upholds Death Penalty Where Defendant’s Attorney Made Strategic Decision not to Present Evidence of Bipolar Mood Disorder

Cullen, Acting Warden v. Pinholster, ( Docket No. 09-1088), slip opinion found at: http://www.supremecourt.gov/opinions/10pdf/09-1088.pdf

On April 4, 2011, the United States Supreme Court reversed the en banc decision of the Ninth Circuit Court of Appeals that granted habeas corpus relief to a petitioner convicted on two counts of first degree murder, and reinstated the death penalty recommended by the jury and imposed by the California trial court.

The petitioner alleged that his trial counsel was ineffectual for failing to adequately investigate and present mitigating evidence during the penalty phase of the trial to support his mental health claim that school, medical and legal records, and declarations from family members and another psychiatrist had diagnosed him with a bipolar mood disorder and a seizure disorder. The prosecution presented eight witnesses testifying to the defendant’s threatening and violent behavior. The petitioner’s trial counsel unsuccessfully sought to exclude the aggravating evidence on the grounds that the prosecution had not given the petitioner proper notice under California law. The petitioner therefore only called his mother as a witness in mitigation. The petitioner’s counsel had consulted a psychiatrist who had diagnosed him with antisocial personality disorder, but did not call him as a witness.

The California Supreme Court twice reviewed the defendant’s claim, unanimously denying and dismissing the allegations each time. The United States District Court, however, heard evidence on the petitioner’s claim and granted habeas relief. The Ninth Circuit reviewing the federal district court’s decision en banc, considered the new evidence from the federal district court hearing and upheld the decision on the grounds that the State court had violated clearly established federal law.

Justice Thomas writing for the Court, held that review of habeas cases under 28 U.S.C. § 2254 is limited to the record that was before the state court that adjudicated the claim on the merits. Under the Antiterrorism and Effective Death Penalty Act of 1996, a claim adjudicated on the merits in state court cannot be granted unless 1) the decision was contrary to or involved an unreasonable application of clearly established federal law, or 2) was based on an unreasonable determination of facts in light of the evidence presented in state court. The Supreme Court held that the record under review is therefore limited to the record in existence at that time. The Court determined that the state court record supported the idea that the petitioner’s counsel acted strategically to get the prosecution’s aggravation witnesses excluded for lack of notice. The Court noted that the petitioner was also an unsympathetic client who boasted about his criminal history during the guilt phase, leaving trial counsel with limited mitigation strategies. The Court held that there was no reasonable probability that the additional evidence would have changed the verdict. Justices Sotomayor, Ginsburg and Kagan dissented. The other justices joined in the decision of the Court, but wrote multiple concurring opinions.

Found in DMHL Volume 30 Issue 4

US Supreme Court Declines to Review Seventh Circuit Decision Authorizing Indiana Protection and Advocacy Services to Sue Indiana to Obtain Peer Review Records

Indiana Family and Social Services Administration v. Indiana Protection and Advocacy Services, 603 F.3d 365 (7th Cir. 2010) pet. for cert. denied April 25, 2011)

On April 25, 2011, the Supreme Court denied the petition for Writ of Certiorari filed by the Indiana Family and Social Services Administration seeking review of the en banc decision of Court of Appeals for the Seventh Circuit that authorized Indiana Protection and Advocacy Services to sue to obtain peer review records from its mental health agency (Docket No. 10-131). This case set up the conflict between the circuits prompting the Supreme Court to hear VOPA v. Stewart described above.

Found in DMHL Volume 30 Issue 4

Tennessee Supreme Court Rules Experts Can Testify to Reflect Capital Defendant’s Actual Cognitive Abilities in Addition to Consideration of IQ Scores

Coleman v. State, 2011 Tenn. LEXIS 319 (April 11, 2011)

The Tennessee Supreme Court has held that under Tennessee law a defendant can present expert testimony to show that his test scores do not accurately reflect his actual cognitive abilities for purposes of raising a defense of intellectual disability to a sentence of death. The defendant in this case had been convicted of first degree murder and sentenced to death over 30 years ago. Following the decision in Atkins v. Virginia, 536 U.S. 304 (2001), prohibiting imposition of the death penalty for persons with mental retardation, the inmate filed a habeas petition alleging that he suffered from an intellectual disability. The evidence presented at his habeas hearing indicated, among other things, that his mother had an intellectual disability and history of mental illness, that his home was violent, chaotic and overcrowded, that his mother drank, engaged in prostitution and abused him, and that his father had spent most of his life in prison and had little-to-no involvement in his life. The petitioner had failed 1st, 2nd, 3rd and 7th grade and was only “socially promoted” to higher grade levels, and that he was teased by his fellow classmates. He was lonely and stigmatized as a child and intellectually and socially behind his peers. He was viewed as “dull” by police officers with whom he had many encounters as a juvenile.

Even though eight other state statutes limit the assessment of intellectual disability to scores on IQ tests, the Tennessee Supreme Court found that Tennessee law does not limit the evidence to test scores. The Tennessee statute requires a “functional” intelligence quotient of 70 or below, not just a test score of 70 or below. The Court therefore concluded that its General Assembly wanted courts to make fact-intensive and complex decisions with assistance from experts in the field because “functional” IQ cannot limited to raw IQ scores. Trial courts may therefore receive and consider any relevant and admissible evidence as to whether the defendant’s IQ is 70 or below. It noted that under the Flynn effect recognized by mental health experts, IQ test scores tend to increase over time. Clinical judgment is therefore important in diagnosing and assessing intellectual disability in borderline cases, especially since the standard of error measurement is generally 3-5 points. The Court therefore remanded the case to the trial court to consider expert testimony in determining the petitioner’s functional IQ.

Found in DMHL Volume 30 Issue 5

Ninth Circuit Sets Out Test for Determining When Mental Impairment Tolls Statute of Limitations for Filing Federal Habeas

Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010)

The Ninth Circuit Court of Appeals has established a 2-part test to determine when a prisoner’s mental impairment tolls the one-year statute of limitations for filing a federal habeas corpus petition under the Antiterrorism and Effective Death Penalty Act of 1996. The United States Supreme Court had previously upheld Eleventh Circuit determinations finding that the one-year statute of limitations must be tolled if equitable circumstances exist beyond a prisoner’s control preventing him from filing on time. The prisoner must establish that 1) he has been pursuing his rights diligently, and 2) some extraordinary circumstance stood in his way. Holland v. Florida, 560 U.S. __, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). In determining whether a mental disability constitutes such an extraordinary circumstance, a petitioner must show that the disability severely impaired his ability to meet the filing deadline despite diligent efforts to do so.

In this case, while serving a sentence for other charges, the prisoner was charged with possession of a sharp instrument by a state prisoner and was sentenced to 25 years to life. The prisoner appealed his conviction and after the time expired for a petition for certiorari to the United States Supreme Court, he pursued state habeas proceedings. Thereafter, he filed a late habeas petition in federal court alleging ineffective assistance of counsel. Noting the unusually long sentence, the court appointed counsel to represent him. Counsel argued that the petition should not be dismissed as untimely filed due to the prisoner’s inability to read and write, neurological deficits, borderline to mild mental retardation, concurrent psychosis and lack of assistance available to him. The prisoner’s expert psychologist testified that he had been diagnosed as bipolar with a variety of behavioral and cognitive disorders, and that he could not understand his legal rights sufficiently to make rational choices. The record reflected, however, that the prisoner had prepared a number of administrative and judicial filings, including a pro se habeas petition in 2000 and an administrative complaint regarding medical care in 2001. He had also represented himself pro se at his trial on this charge. The district court denied the late filing finding that his mental capacity was not sufficiently severe to impede his filing of a timely petition based on his second grade reading level and its finding that a jail house lawyer had been available to help with the filing of the petition.

In setting out the standard for review, the Ninth Circuit stated that there must be a causal connection between the petitioner’s mental disability and the ability to file the petition. The Court determined that the relevant question is whether the mental impairment caused the untimely filing and set out the following two-part test:

1. The petitioner must show that the mental impairment was an extraordinary circumstance beyond his control demonstrating an impairment so severe that either

a. The petitioner was unable to rationally or factually personally understand the need to timely file, or
b. The petitioner’s mental state rendered him unable to personally prepare a habeas petition and effectuate its filing.

2. The petitioner must show diligence in pursing claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including whether there was reasonably available access to assistance.

The Court found that this standard “flows naturally” from the Supreme Court’s rulings concerning competency to stand trial in Dusky v. United States, 362 U.S. 402 (1969); competency to plead in Godinez v. Moran, 509 U.S. 389 (1993);and competency to represent oneself in Indiana v. Edwards, 554 U.S. 164 (2008). In other words, the court must determine whether the petitioner is competent to do what the law requires. In examining the totality of the circumstances, the court:

1. must find that the petitioner has made a non-frivolous showing that he had a severe mental impairment during the filing period that would entitle him to an evidentiary hearing;
2. determine after considering the record whether the petitioner satisfied his burden that he was in fact mentally impaired;
3. determine whether the petitioner’s mental impairment made it impossible to timely file on his own; and
4. consider whether circumstances demonstrate the petitioner was otherwise diligent in attempting to comply with the filing requirements.

The Ninth Circuit remanded the case for the district court to apply the facts of the case to the standard articulated in its decision.

Found in DMHL Volume 30 Issue 5

Ninth Circuit Finds NGRI Acquittee May Appeal Rulings Made in Criminal Proceeding

United States v. Vela, 624 F.2d 1148 (9th Cir. 2010)

Unlike the Arkansas Supreme Court in Hughes v. State of Arkansas, 2011 Ark. 147; 2011 Ark. LEXIS 134 (April 7, 2011) and reported in Issue 4 of Developments in Mental Health Law, the Ninth Circuit Court of Appeals found that federal courts have statutory authority to hear the appeal of a defendant in a criminal case who was found not guilty by reason of insanity. In the Ninth Circuit case, a defendant found NGRI attempted to appeal the trial court’s ruling refusing to dismiss the indictment against him and another ruling prohibiting him from presenting a diminished capacity defense. The defendant had been charged with assault of a federal officer, having stabbed a customs and border protection chief in the chest with a knife. He argued that the indictment should have been dismissed for failure to contain an element of specific intent and the verdict reversed for the trial court’s failure to instruct the jury on a defense of diminished capacity. The defendant also raised the insanity defense and presented expert testimony in support of that defense and the jury returned a NGRI verdict. He argued, however, that the trial court denied him the opportunity for an outright acquittal. The government argued that a verdict of not guilty by reason of insanity does not result in a judgment of conviction subject to appeal. It also argued that there was no final decision from which to appeal a NGRI verdict because the verdict did not result in a sentence.

The Ninth Circuit recognized that the right of appeal is purely statutory, but found that 28 U.S.C. § 1291 affords jurisdiction to review all final decisions of district courts. The Court noted that the final decision in a criminal case is not triggered until there is a conviction and imposition of a sentence. But here the Court found that the lack of a sentence does not preclude finality because the criminal case has terminated. The Court further found that the defendant’s ability to appeal his civil commitment does not provide an adequate substitute for an appeal of the issues raised in his criminal trial and indeed the defendant might be precluded from raising those issues in a civil commitment appeal.

As you may recall from Issue 4 of Developments in Mental Health Law, the Arkansas Supreme Court held by contrast that a defendant who was acquitted of a criminal offense as a result of mental disease or defect and committed to a mental health facility could not appeal his acquittal because the Court only had jurisdiction to hear appeals of criminal “convictions.” The defendant had appealed on the grounds that the court erred by finding he committed the offense of terroristic threatening and by compelling him to use the affirmative defense of mental disease or defect, thereby depriving him of his constitutional right of trial by jury. Similarly, Virginia does not recognize a right of appeal unless such a right is specifically provided by statute. It is doubtful therefore whether the Virginia Court of Appeals or Virginia Supreme Court would entertain such an appeal in a similar case absent a clear statutory provision authorizing that appeal.

Found in DMHL Volume 30 Issue 5

US Supreme Court Orders California to Reduce Prison Population for Failure to Provide Constitutionally Adequate Treatment for Inmates with Serious Mental Illness

 

Brown, Governor of California, et al. v. Plata, et al., No. 09-1233, decided May 23, 2011
Slip opinion found at: http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf

In a 5-4 decision written by Justice Kennedy, the United States Supreme Court upheld the decision of a three-judge panel entered under the Prison Litigation Reform Act of 1995 (“PLRA”) ordering California to reduce its prison population by 137.5% of its original design capacity, or by 46,000 prisoners, within two years in order to address severe and unconstitutional conditions related to the delivery of mental health and medical care to California’s 156,000 inmates.

This decision is the result of two consolidated federal class action suits challenging the mental health and medical conditions in California’s prisons. The first, Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Calf. 1995), was filed in 1990 alleging that deplorable mental health care constituted cruel and unusual punishment under the Eighth Amendment. After a 39-day trial, the court found the prisons severely and chronically understaffed with no method for ensuring competence of staff. The prisons failed to implement necessary suicide precautions due to severe understaffing and mentally ill inmates languished for months and years without access to care, suffering severe hallucinations and decompensating to catatonic states. After 12 years, a Special Master appointed to oversee remedial efforts reported that after slow improvement, the status of mental health care was again deteriorating. A rise in the prison population had led to greater demand for care, and existing program space and staffing levels were inadequate to keep pace. In 2006, at the time of trial before the three-judge panel, the suicide rate was approaching one per week with the suicide rate nearly 80% higher than the national average for prison populations. Suicidal inmates were held for prolonged periods in telephone booth-size cages without toilets. Slip Opn. at 11. According to the Special Master, 72.1% of suicides involved “some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.” Slip Opn. at 12. In 2007, the rate had risen to 82% and by 2010 there had been no improvement.

A second class action, Plata v. Brown, was filed in 2001, in which California conceded that deficiencies in prison medical care violated the Eighth Amendment. When the State had not complied with the remedial injunction issued, the Court appointed a Receiver to oversee the remedial efforts. Three years later, the Receiver described equally deplorable continuing deficiencies in medical care. In one prison, up to 50 sick inmates were held together in one 12 foot x 20 foot cage up to five hours awaiting treatment. The Coleman and Plata plaintiffs thereupon requested their respective district courts to convene a three-judge panel to order reductions in the prison population.

The Supreme Court held that if a prison deprives inmates of their basic needs for sustenance, including adequate mental health and medical care, courts have a responsibility to remedy the Eighth Amendment violations. Under the PLRA, only a three-judge panel may enter an order imposing a population limit and only after a district court has entered an order for less intrusive relief that has failed after the state has been given reasonable time for compliance. Before doing so, that court must also first consider a range of options, and then find by clear and convincing evidence that crowding is the primary cause of the violations, no other relief will remedy the situation and the relief is narrowly drawn and the least intrusive means to correct the violations. The court must also consider any adverse impact such a population limit will have on public safety and the operation of the criminal justice system. The Supreme Court thus held that the three judge-panel had properly heard evidence of then-current conditions and that no other relief short of imposing a population limit would remedy the situation. California indicates that it is proceeding to implement measures to reduce its prison population, but with the State’s severe budget crisis, it remains to be seen how effective its efforts will be.

Justice Scalia filed a dissenting opinion in which Justice Thomas joined. Justice Alito also filed a dissenting opinion in which Chief Justice Roberts joined.

Found in DMHL Volume 30 Issue 5

California Supreme Court Finds No Denial of Due Process in Requiring Convicted Defendant to Prove Incompetence to Stand Trial

People v. Ary, 120 Cal. Rptr.3d 431, 246 P.3d 322 (2011)

The California Supreme Court has determined that a defendant is not denied due process of law when he is required to carry the burden of proving that he was incompetent to stand trial at a retrospective hearing to determine his competency. The defendant in this case was charged with murder and other related felonies. At trial, the defendant moved to suppress his confession and presented psychiatric evidence that he was mildly mentally retarded. The trial court found that he had voluntarily waived his Miranda rights, but found that the confession was coerced and suppressed it. The jury convicted the defendant of murder but was unable to decide upon whether to recommend the death penalty. The court then declared a mistrial on the sentencing issue and sentenced him to life in prison.

On appeal, the Intermediate Court of Appeals determined that the trial judge had erred in failing to evaluate whether the defendant was competent to stand trial and remanded the case for such a determination first as to whether sufficient evidence existed to determine whether the defendant had been competent to stand trial and, if so, to conduct a competency hearing. The trial court found upon remand that evidence of the defendant’s mental condition was still available and it was feasible to retrospectively determine his competency at the time of the original trial, and proceeded to conduct the competency hearing. Over the defendant’s objection that the prosecution should prove beyond a reasonable doubt that he was competent to stand trial, the judge placed the burden on the defendant to prove by a preponderance of the evidence that he was mentally incompetent when tried. After a retrospective hearing, the trial court found the defendant competent.

On appeal, the Intermediate Court of Appeals concluded that, in contrast to the burden of proof allocation at competency hearings held before or during trial, at a retrospective competency hearing federal due process principles require the prosecution to bear the burden of proving by a preponderance of the evidence that the defendant is competent to stand trial. The Attorney General’s Office appealed to the California Supreme Court which reversed finding that the trial court appropriately placed the burden on the defendant. The California Supreme Court noted that a defendant is presumed competent and that the United States Supreme Court had previously upheld California’s imposition of the burden at the pretrial stage on the defendant to prove incompetence by a preponderance of the evidence. Medina v. California, 505 U.S. 437 (1992). It was therefore appropriate in retrospective hearings to also place the burden on the defendant. In order to impose such a burden post-trial and for the court to consider such an issue, however, the Court held that there must be sufficient evidence available to reliably determine defendant’s mental competence after the fact.

Found in DMHL Volume 30 Issue 6

Ninth Circuit Declines to Find Ineffective Assistance of Counsel for Attorney’s Strategic Decision Not to Seek Third Neurological Exam in Capital Case Even Though Exam Recommended

Leavitt v. Arave, 2011 U.S. App. LEXIS 9944 (9th Cir. May 17, 2011)

The Ninth Circuit Court of Appeals reversed the decision of the Idaho federal district court that had granted a new sentencing hearing to a defendant sentenced to death on the grounds of ineffective assistance of counsel in this habeas corpus case. The Court found that the defendant’s attorney made a reasonable strategic decision at the sentencing phase not to seek another neurological examination. The defendant was convicted of a gruesome stabbing murder in which he removed the victim’s sex organs. The expert who examined the defendant diagnosed him with antisocial personality disorder and intermittent explosive disorder, but recommended a follow-up MRI following an inconclusive neurologic examination to rule out an organic disorder. The trial judge who was deciding the sentence demonstrated hostility toward hearing any further psychiatric evidence, stating that such evidence tended to hurt more than help the defendant. The judge intimated that the evidence indicated an inclination on the part of the defendant to commit further violent acts. The Court held that the defendant’s counsel made the strategic decision to try to convince the judge that his client was a “good guy” even though he was aware of the possibility of brain damage as mitigating evidence. He was therefore not ineffective, as the district court had found, for failure to thoroughly investigate the defendant’s mental health condition.

Found in DMHL Volume 30 Issue 6