Recently in Mental State Category

This morning the US Supreme Court unanimously reversed the decision of the Kansas Supreme Court in Kansas v. Cheever. 

We hold that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant's evidence.

The Kansas Supreme Court had held that this rule applies when the defendant is making a "mental illness" defense but not when he claims a transient mental factor, including intoxication, impaired his ability to form the mental state required for the crime.  That is a nonsensical distinction and an overly cramped view of the US Supreme Court's precedents in the area.

Unfortunately for those interested in the theoretical aspects, the Court's opinion does not resolve the interesting question of the basis of the rule.  Is it a matter of "waiver" of the Fifth Amendment self-incrimination privilege, as has been traditionally stated, or is it a matter of having chosen to become a witness to a limited extent by introducing testimony based on an examination of the defendant?   See CJLF's brief for a more complete description of the latter view.

There is some leaning in the latter direction on page 6 of the slip opinion, noting the harmony with the principle that a defendant who testifies cannot refuse cross-examination.  The theoretical question was discussed but not resolved in a 1984 D.C. Circuit opinion cited on that page for another point.  That opinion was written by Circuit Judge Scalia and joined by Circuit Judge Ginsburg.

Today the rule is firmly established.  Theory will have to wait for another day.

Maggie Clark has this article in Stateline.  The article has been reprinted in other outlets, including USA Today.  Unfortunately, the article is seriously flawed.

In Atkins v. Virginia, the Supreme Court added mental retardation to the list of absolute exclusions from the death penalty.  The trend, including the DSM-5, is to substitute the term "intellectual disability."  For this post, I will use the terminology that was current when Atkins was decided.  The article says this about the issue in the case:

After the decision, most states stuck with the three-pronged clinical definition, but Florida, Georgia, Mississippi and Texas set their own standards. Under Florida's law, if you have an IQ over 70, you're eligible for execution regardless of intellectual function or adaptive behavior. 

That significantly overstates the difference between Florida's standard and clinical practice.  Atkins noted the clinical definitions in the AAMR definition and the DSM-IV, which are largely the same.  Both are three-part conjunctive tests.  To be classified retarded, a person must have "significantly subaverage intellectual functioning" and deficits in adaptive functioning and the condition must have onset before age 18.  As with any conjunctive ("and") test, as soon as one criterion is found false, there is no need to evaluate the others.  Any test with "logical and" criteria is known to be false as soon as one criterion is known to be false.  When Florida says that a failure on the intellectual function prong ends the question no matter what is shown on the other prongs, that is not inconsistent with the standard definition.  IQ above 70 is not "regardless of intellectual function"; it is the measurement of intellectual function. 

Although not at issue in the Hall case, the article also has this gem about Texas.

This article at the City Journal is titled, "Everyone on the Couch: Today's psychiatry undermines self-reliance and morality."  It is informative, entertaining, and well worth reading in its entirety.  Here is the conclusion:

The DSM is ultimately an instrument for weakening human resilience, self-reliance, fortitude, and resolve. It turns human beings into mechanisms, deprives their conduct of meaning, and makes them prey to entrepreneurs of human misery. The authors, one could say, suffer from PNOD--psychiatric nosology overvaluation disorder--the criteria for which are as follows:

    A: The grandiose belief that all human weakness can and should be divided into valid diagnostic categories.

    B: At least two of the following: a firm and unshakable belief that all human distress arises from malfunctioning serotonin metabolism; a firm and unshakable belief that functional MRI scans will soon teach humans how to live; a firm and unshakable belief that the seven deadly sins have been scientifically superseded by psychiatric diagnoses.

My friend Will Haun, a clerk for U.S. District Judge Claude Hilton of the EDVA, has co-authored with another friend, Prof. John S. Baker, an article in "Engage," the magazine of the Federalist Society.  As Will writes in a note to friends and colleagues:

Ed White reports for AP:

A mentally ill man charged with placing a bomb outside a Detroit federal building can be forcibly medicated to try to make him competent to face trial, an appeals court said Tuesday.

Gary Mikulich, 45, has refused to take medication since his arrest in 2011, according to the government.

"While we should not take lightly the decision to medicate a defendant against his will, we also should not discount the government's interest in bringing an accused would-be terrorist to justice," said a three-judge panel at the 6th U.S. Circuit Court of Appeals.

*                                             *                                         *

Mikulich, who has a degree in electrical engineering, has a history of schizophrenia and bizarre rants against the FBI. He may offer an insanity defense, his attorneys have said in court.

In 1976, the US Supreme Court allowed the resumption of capital punishment under revamped statutes, stating only a broad outline of the kind of statute required and approving three quite different systems as coming within that outline.  In the years that followed, the high court proceeded to micromanage the capital sentencing system, ultimately disapproving essential features of the Florida and Texas systems it had initially approved.

The result was a disaster.  Justice was badly delayed and in many cases ultimately denied as judgments that were valid when entered were overturned on the basis of rules conjured up out of blue sky years or decades after the trial.

In more recent years, the high court has stopped tinkering with sentencing procedure but has instead announced categorical rules of exclusion from the death penalty.  For persons under 18 at the time of the crime and for crimes where the victim survives, these rules at least have the benefit of clarity.  For the mental retardation exclusion, however, the court has attempted to draw a bright line in dry sand.  Intellectual disability is a continuum, and for anyone close to the line there will always be room for disagreement among experts.  Questions of procedure and definition may therefore make the difference between a person being eligible for the death penalty or not.

In the Atkins case, the court said states would have leeway in this area.  Will the court now break this promise and micromanage the retardation determination procedure, repeating its huge mistake of 1980s?  That is the question presented in Hall v. Florida, No. 12-10882, taken up by the high court today.

There is no need for micromanagement because there is no need for a categorical exclusion for anyone close to the line.  Under the preexisting rule of Penry v. Lynaugh (1989), capital defendants have been allowed to present any intellectual disability to the sentencer as a mitigating circumstance, regardless of whether it meets the DSM or other definition for a particular diagnosis.  If the defendant is not so clearly retarded that he would be found so under any reasonable procedure and definition, then he is not so impaired that the national consensus found in Atkins warrants removing the case from the discretion of the sentencer.

Here is a fairly reliable indicator that an argument is not going well:

JUSTICE SOTOMAYOR: Mr. Katyal, assuming the incredulity of my colleagues continues with your argument, which way would you rather lose?

The US Supreme Court today heard oral argument in the case of Kansas murderer and meth dealer Scott Cheever.  The transcript is here.  The case is described in my preview post Monday and in my post last year after the Kansas Supreme Court decision.

The case involves a compulsory mental examination of a defendant who intends to offer a mental defense and put on expert testimony, based on the defense expert's examination, to support that defense.  Shouldn't the prosecution have a comparable opportunity to examine the "crime scene" of the defendant's mind to make an effective rebuttal?  Federal Rule of Criminal Procedure 12.2 says yes, as do similar rules in most states.

Defense attorney Katyal started off on narrow grounds, arguing that the prosecution expert went way beyond the permitted rebuttal into various other matters prejudicial to the defense.  That is a reasonable argument, and if the Kansas Supreme Court had actually ruled on that ground, this case never would have made it to SCOTUS.  That question is not properly presented to the high court.

Later, Katyal gets into an argument that would, if accepted, render FRCrP 12.2 and kindred state rules unconstitutional, and even the justices who most often side with the defense are astonished, prompting Justice Sotomayor's comment above.  On this point, the decision will likely be 9-0 or perhaps 8-1.

Yesterday, Howard Mintz of the San Jose Mercury-News reported on the case of David Allen Raley, one of the 15 California death row inmates who have completed all the usual reviews of their cases.  "Armed with a new order from the California Supreme Court, Raley has revived his appeals with a claim that he was mentally retarded at the time of his 1985 crime -- a finding that would spare him from execution under a 2002 U.S. Supreme Court decision."

Today, Mintz reports it is not Raley making the claim after all.  It is the lawyers appointed to represent Raley, over his vehement objection.

Death row inmate David Allen Raley on Monday asked a Santa Clara County judge to fire the court-appointed lawyers arguing that he should be spared execution because he is mentally retarded.

But it appears Raley's defense team will be allowed to press forward with the legal argument, whether the condemned killer likes it or not.

After clearing the courtroom to hear from Raley, Superior Court Judge Linda Clark, without commenting on the representation issue, moved forward with a special hearing to determine if Raley should be given a reprieve under a 2002 U.S. Supreme Court ruling that bars the execution of the mentally retarded.

The situation here is a bit murky.  We don't know what happened in chambers between the judge and Raley.  We don't know if this is the first time he raised his objection.  We don't know if his lawyers gave him notice of the claim they were making on his behalf so as to enable him to object earlier.

If a mentally competent inmate wants to fire his lawyers and dismiss his petition, he should be allowed to do so.  If this motion is made for the first time at the last minute, though, it may be just as well to proceed with the hearing, given that the preparation has been done, and the testimony will shed light on whether Raley is indeed competent to make the decision. 

If the day Raley was brought from Big Q for the hearing was the first day he knew that his lawyers were claiming he is retarded, they have some explaining to do.

San Diego Mayor Bob Filner is despicable for the way he treated women under his supervision, but also for his invocation of that sickening therapy dodge we see so often these days.  A person caught in egregious misconduct says, "I'm sick.  I need therapy."  No, Mayor Filner, your actions were not those of a sick person in need of therapy.  They were the actions of an arrogant jerk abusing a position of authority.

With Filner's political position eroding faster than a beach in Superstorm Sandy, he has thrown in the towel.  NBC 7 in San Diego has this story.  It's good that Filner is gone, and it's good that his therapy dodge failed so miserably.

BTW, the law firm representing Filner is named Payne & Fears.

...would he look like Chris Lane?

Mental defenses in criminal trials are usually "the last refuge of the scoundrel" who has been nailed so clearly that he has nothing else to argue.  There are, to be sure, genuine cases of a psychotic split from reality, but they are the exception and not the rule.

The political equivalent for scandal-nailed politicians seeking refuge is the "I am sick and need therapy" dodge.  Tony Perry reports for the L.A. Times that San Diego Mayor Bob Filner has completed his therapy earlier than expected.  How wonderful.  Except there never was a need for therapy in the first place.  Being an overbearing, arrogant jerk who exploits his position of authority over women for sexual purposes is evil, not sick, and there is no "treatment."

The good news is that it doesn't seem to be working.  Filner's political allies are tossing him overboard.  The last two members of the City Council and Senator Barbara Boxer have joined the call for him to resign.

Will Filner be criminally prosecuted for his misdeeds?  The DA is in an awkward position, as she ran against Filner for the mayor's slot in an early round of the process.  If the DA recuses, it's up to the AG.

The US Supreme Court has denied a stay of execution to Florida murderer John Ferguson.  No dissent is noted.  Chief Justice Roberts was recused.

The high court's action would be incomprehensible if the NYT editorial's description of the case were accurate.  However, it is a work of fiction.  See also Bill's post earlier today.

The January 2013 issue of the Journal of Legal Studies (42:1) arrived in my mailbox today.  (Punctuality is not their long suit.) Steven Raphael and Michael Stoll have an article titled Assessing the Contribution of the Deinstitutionalization of the Mentally Ill to Growth in the U.S. Incarceration Rate, pp. 187-222.  Here is the abstract:

One valid criticism we often hear of modern criminal law is that too often the mental component of crimes, the mens rea or guilty mind, has been watered down or eliminated.  Today, the US Supreme Court took up a case on the mens rea of the federal law on use of a firearm in a violent or drug crime, Rosemond v. United States, No. 12-895.  The Question Presented is:

Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.

Rosemond is represented by John Elwood, who writes the Relist Watch feature at SCOTUSblog.  The case was granted at the first conference, not relisted.

How many times in history have zealous reformers gone too far, with the result that the reforms are as bad or worse than the problems they were intended to fix?  Deinstitutionalization of the mentally ill is a prime example.  James Panero has this article in the City Journal.

The connection between mental illness and crime would come as no surprise to law enforcement professionals. Since deinstitutionalization, police and sheriffs' departments have reported an overwhelming increase in mental illness-related calls, a trend that continues today. A 2011 survey of 2,400 law enforcement officials reported that responding to these calls had become "a major consumer of law enforcement resources nationally." A TAC study in 2010 found that there were now "three times more seriously mentally ill persons in jails and prisons than in hospitals." Many county sheriffs' associations estimate that over a quarter of their jail population is mentally ill. The Los Angeles County Jail has become the largest de facto inpatient psychiatric facility in the United States, says Torrey; New York's Rikers Island Prison Complex is the second-largest.