Recently in Mental State Category

The US Supreme Court has decided Rosemond v. United States, exploring yet another facet of the federal law on use of a gun in a crime, 18 U.S.C. § 924(c).  This case involves the "what did he know, and intend, and when did he know/intend it" aspect when an accomplice to a robbery uses a gun.

We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission. We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed.

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An active participant in a drug transaction has the intent needed to aid and abet a §924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope--that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen ... to align himself with the illegal scheme in its entirety--including its use of a firearm.

In practice, proving that a participant knew in advance that another participant was armed is going to require accomplice testimony in nearly every case, with all the problems that entails.

Today the Supreme Court heard oral argument in Hall v. Florida, regarding when a murderer is deemed mentally retarded so as to be exempt from execution regardless of how heinous, callous, premeditated, or sadistic his actual crime really was.

In the course of this discussion, there was much talk about the 95% confidence interval in statistics.  Contrary to myth, this 95% number is nothing but a conventionally adopted rule of thumb.  There is nothing magic about it, and there is no compelling reason to use 95% in every circumstance, rather than some other number tailored to the needs of a particular situation.

The rule of thumb goes back to the period between the two world wars and the work of R. A. Fisher.  A common problem in studies is that we find that two things, call them A and B, tend to go together, and we want to get a handle on whether this is coincidence or a true correlation.  The rule of thumb is that we "reject the null hypothesis" and say it's not just a coincidence if the correlation between A and B is strong enough that the chance of it being a coincidence is less than 5%.  This is expressed in journals as p < .05.  A result meeting that criterion is pronounced "statistically significant" and given the coveted asterisk, as if there were a big difference between p = 0.051 and p = 0.049.  (There isn't.)

The quasi-religious devotion to this arbitrary criterion was skewered by the famed psychological statistician Jacob Cohen in a classic article:

The atmosphere that characterizes statistics as applied in the social and biomedical sciences is that of a secular religion [citation], apparently of Judeo-Christian derivation, as it employs as its most powerful icon a six-pointed cross, often presented multiply for enhanced authority.

Bill noted earlier today the case of Edward Bracey, who murdered Police Officer Daniel Boyle in North Philadelphia 23 years ago. The article notes that the trial judge set aside the death sentence because Bracey is supposedly retarded, even though he was never considered so during his school years.

In Sarmina's courtroom, Bracey's lawyers pointed to a recent IQ test as proof that he is impaired. The test, given by a defense expert in preparation for the appeal, showed that Bracey's score had plummeted substantially from previous tests.

"It doesn't take a genius to figure it out," Pat Boyle said. "Who would give their best effort on a test if it's going to lead to your execution or life on death row?"

As noted previously on this blog, an IQ test subject can fake low, but he can't fake high.  Given varying scores and an incentive to malinger at the time of the low scores, the high scores are more credible.  Will this be enough for a higher court to reverse?  Tough to get a reversal on a factual finding, but the DA is taking it up.

In other developments, the State of Florida's brief in Hall v. Florida is here, and CJLF's is here.

Update:  Marcia Coyle has this story on the Hall case in the National Law Journal (registration required).

Often nowadays, we hear that science can help "reform" how we go about reaching decisions in criminal justice.  When you read a story like that, remember to consult your decoder: Such science inevitably involves the identification of a previously unheard-of "syndrome" that accounts for why Mr. Nicey belted Grandma over the head with a tire iron to get her purse.  (These syndromes always seem to have a lot of syllables, never a single syllable like "greed").

Edgar Tamayo was executed in Texas last night for killing Police Officer Guy Gaddis in 1994.  AP story here.  Prior post here.

The U.S. Supreme Court denied petitions for certiorari and stays of execution in two orders, here and here.  No dissent is noted for the first.  Justices Ginsburg, Breyer, and Sotomayor would have granted the stay in the second.  That is the last-minute Atkins claim of supposed mental retardation.  The Fifth Circuit held, correctly IMHO, that the District Court did not need to put up with this strategy of holding a claim until election eve.

Finally, we agree with the district court that Tamayo's claim was not brought within a reasonable time." See, e.g., In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004). The [Supreme] Court's opinion in McQuiggin was issued on May 28, 2013, nearly 8 months ago. Tamayo waited until January 20, 2014, two days before his scheduled execution, to file this motion. The district court did not abuse its discretion in concluding that this was not a "reasonable time" and in denying the motion. [Footnotes omitted.]

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.

Update (12/13):  The article noted below was updated today to respond to the criticisms in this post.  The corrections do not go as far as I would like, but it is a large improvement over the original.  I appreciate the willingness of Ms. Clarke and her editor to discuss the issue and revise the article.

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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.

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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?