Recently in Mental State Category

The Supreme Court of Georgia denied a stay of execution to Robert Wayne Holsey, who shot and killed Baldwin County Deputy Sheriff Will Robinson in December 1995.  A press release is here.  Holsey wanted the determination that he is not intellectually disabled reconsidered after Hall v. Florida.

The US Supreme Court subsequently denied a stay 7-2.  Justices Breyer and Sotomayor would have granted the stay.
Kevan Brumfield murdered Police Corporal Betty Smothers in Baton Rouge, Louisiana in 1993.  He went on trial in 1995.  Six years earlier the Supreme Court decided in Penry v. Lynaugh that mental retardation (now called intellectual disability) is a mitigating factor that the jury must be allowed to consider but not a categorical exclusion.  Brumfield's lawyers put on no evidence of retardation, instead arguing other factors as mitigation, and he was sentenced to death.

Seven years after the trial, the Supreme Court decided in Atkins v. Virginia that retardation would be a categorical exclusion after all.  The high court did not apologize for its flip-flop.  On state collateral review, the trial judge denied the petition on the basis of the trial record.

What to do on federal habeas?  The deference standard of 28 U.S.C. §2254(d) allows a federal court to grant relief despite a state court's denial on the merits if the state court's "adjudication of the claim ... (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 

But what if the argument is that the state court's unreasonableness was in not allowing evidence, rather than assessment of evidence?  Can a rule to deal with that issue be crafted without opening the door to federal micromanagement of state collateral review or the wholesale relitigation that the AEDPA reforms were enacted to prevent?

USCA5 Grants Stay to Panetti

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The U.S. Court of Appeals for the Fifth Circuit issued this order in the case of schizophrenic Texas murderer Scott Panetti:

We STAY the execution pending further order of the court to allow us to
fully consider the late arriving and complex legal questions at issue in this
matter.1 An order setting a briefing schedule and oral argument will follow.

1. See 28 U.S.C. § 2251(a)(3); McFarland v. Scott, 512 U.S. 849, 858 (1994).
See also my prior posts here and here.

Nathan Koppel has this article in the WSJ.  Dustin Volz has this article in the National Journal.

Texas CCA Denies Panetti Stay

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Continuing with the Panetti story (see previous post), the Texas Court of Criminal Appeals denied a stay 5-4, finding it had no jurisdiction.  Jim Malewitz has this story in the Texas Tribune, with links to the opinions.

Panetti's previous competency determination was in 2008.  The delay after that point was in litigating Panetti's claim that his "rights" under Indiana v. Edwards had been violated, i.e., that the Texas courts failed to anticipate the Supreme Court's correction of its own error and instead followed the precedents binding on them at the time.  (See comment to the previous post.)  Of course, Edwards didn't create any rights.  It only put a sensible limit on the right created out of whole cloth in Faretta.

So the trial court set an execution date on October 16, 2014, and counsel for Panetti filed their motion nearly a month later, less than 20 days before the execution.  Texas has an anti-last-minute statute limiting jurisdiction in the last 20 days.  No dice, say the majority.

These kinds of time limit laws can be harsh, but the unscrupulous tactics of the defense side has made them necessary.  Filing claims at the last minute that could have been made earlier and then demanding a stay to give the courts time to adjudicate them has long been a key tool in the obstructionist's toolbox.  See, e.g., Gomez v. U.S. District Court (Harris), 503 U.S. 653 (1992).
Continuing with the theme of Bill's post, the State of Texas has scheduled the execution next week of Scott Panetti for the 1995 murder of his wife's parents.  The editorial board of the New York Times can't help themselves.  Even when their position is basically a reasonable one, they still have to make absurd statements in the process.

During his capital murder trial, at which he was inexplicably allowed to represent himself, Mr. Panetti dressed in a cowboy suit and attempted to subpoena, among others, John F. Kennedy and Jesus Christ. A standby lawyer said his behavior was "scary" and "trance-like," and called the trial "a judicial farce."
The word "inexplicably" is just plain ignorant.  There is no mystery at all as to why Panetti was allowed to represent himself or who was to blame.  The blame lies squarely with the United States Supreme Court in the 1970s and its propensity at that time to make up rights that are not really in the Constitution.

In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court said that criminal defendants have a constitutional right to reject counsel and conduct their own defense.  Justice Blackmun noted in dissent, "If there is any truth to the old proverb that 'one who is his own lawyer has a fool for a client,' the Court by its opinion today now bestows a constitutional right on one to make a fool of himself."  In Panetti's case, make that a crazy fool.

The Faretta rule was long understood to be absolute in most jurisdictions, including Texas and the Fifth Circuit.  As long as the defendant was competent to stand trial, a very minimal standard, he had the constitutional right to represent himself, no matter how much of a farce he made of the trial.  If the trial court denied him that dubious right, the judgment would be reversed on appeal or overturned on habeas corpus.  The Texas trial judge was therefore correct, in the sense of following the precedents of both the state and federal courts, in allowing Panetti to represent himself.  In Indiana v. Edwards, 554 U.S. 164 (2008), we finally got the Court to modify Faretta and recognize that some people are competent to stand trial and assist counsel but not to be their own counsel, see CJLF brief, but 33 years had elapsed and a lot of water had passed under the bridge.

The issue in the courts now, though, is not Panetti's representation at trial but rather whether he is presently too crazy to execute. 

The Zombie Defense

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Park Dietz & Associates, forensic psychology experts, have an email newsletter.  The current issue has an article on Ambien:

The "Ambien Defense" has been getting a lot of press in 2014.  Sometimes called the "Zombie Defense," it's the argument that someone charged with a crime--and the crimes have ranged from DWI to child sexual abuse to murder-- took Ambien (or generic zolpidem) beforehand and had no memory of the crime.
 •  August 19:  A Montana man was sentenced to 100 years for murdering two sisters in their early 20s.  He stabbed one victim over 130 times, including 34 times in the face, and beat, gagged, strangled, and stabbed the other.  A judge called the killings "ritualistic" and "systematic."  The man said he took Ambien before the killings and had no memory of them, but pleaded no contest to avoid a trial.
A few similar examples follow. 

Intent, Plagiarism, and Politics

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In criminal law, intent is a big deal.  The prosecutor must often prove not only what the defendant did but his state of mind while he was doing it.  Even though the harm to the victim may be the same, there is a fundamental moral difference between intentional and accidental harm.  "Even a dog distinguishes between stumbled over and being kicked," Justice Holmes famously said.  He had a knack for putting legal concepts into concrete terms everyone can understand.

How do you prove intent?  It's usually clear from the circumstances that an act is intentional.

Intent matters in politics as well.  Aaron Blake at the WaPo's political blog, The Fix, is incredulous of Montana Sen. John Walsh's claim of accidental plagiarism at the Army War College.

It also takes a pretty big suspension of disbelief to think that Walsh lifted those passages without ill intent. Proving someone's intent is always difficult, but believing that this was anything other than an attempt to cheat takes some logical leaps that are pretty hard to make.
We will be addressing intent in a Supreme Court case on threats in the coming term, Elonis v. United States.

Update:  Bill's later post asks whether plagiarism can be a crime.  Could be.  "Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct."  10 U.S.C. § 933; see also Parker v. Levy, 417 U.S. 733 (1974).  The military is different.  Funny the statute still says "gentleman."  We've had women officers for a long, long time.

Podcast on Hall v. Florida

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The Federalist Society has a podcast on the U.S. Supreme Court's decision in Hall v. Florida, regarding definition of intellectual disability for the purpose of exemption from capital punishment, by CJLF's Legal Director Kent Scheidegger.
Victor Davis Hanson's essay begins bad and gets a lot worse:

Every once in a while, a criminal case...reflects the immoral course of our current trajectory. Here is an ongoing local criminal case that pretty much sums up what is happening to our culture, laws, and society at large.

Perla Ibeth Vazquez, 27, is now on trial in these parts. On Oct. 21, 2011 (a mere two-and-a-half-years ago?), she was drunk, drove, and killed, according to the Fresno Bee, one "Frank Winslow, 54, a family man and truck driver for Foster Farms who was only a few miles from home when he was killed on Highway 168 near Ashlan Avenue."

The Bee added that the local prosecutor, Steven Wright:

[L]aid the groundwork by telling the jury that Vazquez had pleaded guilty to drunken driving in Tulare County in 2006 and again in Fresno County in 2010. Each time, a judge warned her that if she got drunk and killed someone, she could be charged with murder, Wright said.

Should we laugh or cry at those long-ago judicial "each time" warnings -- given that they assumed that two felony drunk driving convictions were not necessarily reason to think there would be a fated third or fourth? A judge warns her about her own murdering to come? Might he have warned all of us about being her murdered victims to come? 

Substance Abuse Counseling

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We often hear two related narratives from the defense:  That substance abuse rather than greed or malice is at the root of so much crime; and that therefore, instead of jail, what's needed is substance abuse counseling.

I can see why "substance abuse counseling" is right up the defense bar's alley.  You will too when you read this.

The story is replete with the straight-faced howlers for which criminal defense is rightly famous.  Thus, when Ms. Substance Counselor, Sherri Wilkins  --  herself drunk as a skunk  --  plowed into a pedestrian and drove for two miles in city traffic as he died on her windshield, she couldn't help it, because, you see, the victim didn't just step off the pavement. Instead, "it was as if he fell from the sky." The defense "argued [that the deceased man, Phillip] Moreno was drunk and jumped on Wilkins' car and that she panicked."

Yikes.  If the defense lawyer, Ms. Nan Whitfield, doesn't have that much of a sense of right and wrong, at least she has a great sense of humor.


Unreasonable Minds

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The DSM defines a delusion as a false belief based on an incorrect inference about external reality that is firmly held.  If a defendant commits a homicide based on a delusion, can he avail himself of the defense of imperfect self-defense?  As Kent mentioned on Wednesday, the California Supreme Court recently held that the answer is "no" in the case of People v. Elmore.  The court bases it conclusion largely on the idea that an imperfect self-defense requires that a person's unreasonable beliefs must be caused by objective circumstances that he misperceives negligently and that delusional self-defense is properly considered in the realm of the insanity defense.  My sense is that this is mistaken and I want to show why.


Delusional Self-Defense

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A narrowly divided California Supreme Court on Monday rejected a delusional belief in a need for self-defense as a device to reduce a murder charge to manslaughter in People v. Elmore, S188238:

A killing committed because of an unreasonable belief in the need for self-defense is voluntary manslaughter, not murder. "Unreasonable self-defense, also called imperfect self-defense, 'obviates malice because that most culpable of mental states "cannot coexist" with an actual belief that the lethal act was necessary to avoid one's own death or serious injury at the victim's hand.' (People v. Rios (2000) 23 Cal.4th 450, 461.)" (People v. Beltran (2013) 56 Cal.4th 935, 951.)

The question here is whether the doctrine of unreasonable self-defense is available when belief in the need to defend oneself is entirely delusional. We conclude it is not. No state, it appears, recognizes "delusional self-defense" as a theory of manslaughter. We have noted that unreasonable self-defense involves a mistake of fact. (In re Christian S. (1994) 7 Cal.4th 768, 779, fn. 3 (Christian S.).) A purely delusional belief in the need to act in self-defense may be raised as a defense, but that defense is insanity.

For what it's worth, CJLF submitted one of its rare briefs in support of a defendant in Christian S.
How many cases will yesterday's decision in Hall v. Florida actually impact?  Lizette Alvarez and John Schwartz have this article in the NYT estimating "10 to 20," citing anti-death-penalty law professor John Blume for that estimate.  (The article doesn't identify Blume as an advocate for one side on this issue, but he is.) "The death row inmates in this category would generally have I.Q.'s of between 71 and 75. Inmates in that category should now be able to ask for a new hearing that would take into consideration other evidence and a broader range of I.Q. tests."

There are a couple of points to note here.  First, it appears a prominent advocate for the other side implicitly agrees that Hall does not require reconsideration in cases where the inmate's test scores are above 75.  My prior post and the comments to it discussed whether Hall might extend to murderers whose scores are consistently above 75.  I don't think it does yet -- and apparently Blume agrees -- though the Court may still go there in the future.

Does everyone in the 71 to 75 twilight zone automatically get a new hearing?  If that means evidentiary hearing, I don't think so.  Hall himself, for example, put on the experts who testified to the same thing they would testify to after the Supreme Court's decision.  I don't see any reason why the trial judge cannot enter a new decision on the same record, considering the margin of error as the Supreme Court directs.  I expect his decision would be the same.  The state might want a new evidentiary hearing to put on the evidence it didn't think was necessary before, but Hall has already had his shot.
In the 2002 case of Atkins v. Virginia, the Supreme Court decided that the Eighth Amendment to the United States Constitution provides an absolute exemption from capital punishment to a person diagnosable as mentally retarded. I do not doubt that their was a consensus to that effect for persons with moderate or more severe levels of retardation, which is what most people think of when the hear the word "retarded."  I very much doubt that most people would agree as to mild retardation, if they understood the level of functioning that classification represents.

At the same time Atkins found a consensus on that underlying rule, it noted there was "serious disagreement about ... determining which offenders are in fact retarded."  That would seem to mean that there is no constitutional constraint and states can choose their methods, at least within reason.  Today in Hall v. Florida, a bare 5-4 majority of the Supreme Court decided that Florida's method of making that determination is unconstitutional.

Is today's decision a one-time correction of a rule that was, to be frank, hard to defend scientifically?  Or is the opening of a long line of decisions to judicially micromanage the retardation determination, with each twist in the road reaching back to further delay or possibly deny justice in cases fairly tried in accordance with the law in effect at the time?
I am still working on a comment on the substantive aspects of today's Supreme Court decision in Hall v. Florida.  Pending that, I want to make a quick note of a very disturbing choice of words in the opinion.  On page 22 of the slip opinion, it says:

"Florida seeks to execute a man because he scored a 71 instead of 70 on an IQ test."

No, Justice Kennedy, that is most emphatically not why the State of Florida seeks to execute Freddie Lee Hall.  The reasons why were given by the trial judge:

On February 21, 1978, Freddie Lee Hall kidnapped Karol Lea Hurst from the parking lot of a grocery store as she was carrying her packages to her car. He drove her, in her own car, some 18 miles away into another county and into the woods a quarter of a mile off the paved road. There, in the front seat of her car, he forced her to remove her clothes and then he raped her.  He listened to her cry, and he listened to her beg for her life and the life of her unborn child. He watched her write a check for him to cash in return for her life.  Then he beat her--so hard that it tore the flesh of her neck and shoulders through the fabric of her denim jacket. And then he killed her by firing a bullet into the back of her head, either pulling the trigger himself or encouraging another to do it in his place. There is no evidence that has been presented to this Court that reasonably mitigates the aggravated nature of this act.  The aggravating circumstances of this case clearly "outweigh" the mitigating factors.
Karol Hurst was a human being, not a test score. Her 7-month unborn baby was also a human being.  The suffering, the terror, and the death of Karol Hurst and the death of her baby are shamefully minimized and their memory is insulted and denigrated by the flippant, thoughtless, and cruel statement in the opinion that the test score is the reason that Florida seeks to execute Hall.

I can only hope that Justice Kennedy did not write this statement himself but only failed to edit a statement inserted in a draft by a law clerk.  Surely the Justice himself knows better.  We see statements like this all the time in the briefs of defendants and their amici, but it is shocking to see it in the opinion.  This statement is unworthy of the Supreme Court of the United States.

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