“Mental Health Evidence for Both Phases”

1. “Mental Health Evidence for Both Phases” www.JohnMatthewFabian.com • 216.344.3988

2. A Higher Standard of Utilizing Mental Health Experts in Capital Proceedings • Competency to Waive Miranda Rights • Competency to Stand Trial • Insanity • Mitigation at Sentencing • Forensic Neuropsychological Assessment

3. ESTABLISH THE RECORD EARLY • Try to establish a record during the pretrial phase that the client is mentally ill, and the condition (if established) might be used later as mitigation during the sentencing phase to establish a nexus with the offending behaviors.

4. WHO ARE WE DEALING WITH?The Prevalence of Mental Illness in the Criminal Justice System

5. Competency to Waive Miranda Rigthts • Voluntary • Knowing- depends on suspect’s ability to know or understand each of the 4 Miranda rights and the way in which the rights were presented to him • Intelligent-whether suspect made a rational choice based on some appreciation of the consequences of the decision and ability to weigh options

6. Voluntary waiverIntimidation, Coercion, Deception • Expert witness can assess the susceptibility to the perceived wishes of authority figures with those who have mental disability. • Mentally retarded have tendency to make a statement and respond to leading questions containing false and misleading information.

7. Knowing and Intelligent Waiver • Suspect’s ability to understand the rights and rationally assess the consequences of a waiver, not the potential range and scope of the waiver.

8. Right to Remain Silent • Many defendants believe they have to make a statement to police or their invocation of the right will be used against him in court. • Defendant believes he is innocent • Belief he can handle his own case • Police will get angry upset • Police will think I am guilty • To cooperate, get information and ask questions

9. Who has trouble waiving their Miranda? • IQ lower than 70- *Verbal IQ • Reading comprehension below 7th grade • Poor listening comprehension • History of mental retardation • Neuropsychological impairment & head injuries, ADHD • Schizophrenia, mental retardation • Age • Poor SES & Education • Interrogation suggestibility • Interrogation context, nature of police coercion

10. Competency to Waive Miranda Evaluation • IQ testing • Academic achievement, reading • Neuropsychological testing including assessment of attention and short-term verbal memory • Adaptive functioning skills • Malingering • Suspect’s current understanding of the Miranda card he was given • Instruments for Assessing Understanding & Appreciation of Miranda Rights • Gudjonnson Suggestibility Scales

11. Expert Integration of Evidence • The expert must produce of evidence of not only mental disability and impairment, but *evidence that those disabilities made him incapable of knowingly and intelligently waiving his Miranda rights or that he did not give a valid waiver in that particular instance.

12. Attorney roles in the Miranda evaluation • Mental health records • Criminal history/prior arrest records • Miranda waiver card used and specific language of the waiver • Written waiver/statement, audio/visual record of statement • Suspect blood/alcohol level at time of alleged offense/statement • Do not inform defendant of Miranda information before evaluation

13. Garner vs. Betty Mitchell502 F.3d 394(2007) • U.S. Court of Appeals 6th Circuit • ruled that D did not knowingly and intelligently waive his Miranda rights- reversed district court’s judgment and ranted conditional writ of habeas corpus. • *Defendant had IQ of 76 • Court found D could not define word “right” and did not understand right to remain silent.

14. Garner vs. Betty Mitchell502 F.3d 394(2007) • Court considered: • Defendant’s low IQ • Poor education • Lack of prior experience with criminal justice system • Young age • Unrebutted expert evidence • Warnings were not explained for him in simple terms • D had no assistance from lawyer, social worker, or family member

15. State v. Caldwell611 So.2d 1149 (1992) • Alabama criminal appeal court affirmed trial court’s ruling that a suspect with an IQ of 71 did not knowingly and intelligently waiver her Miranda rights.

16. Competency to Stand Trial: Some Facts • 1/5 of clients referred for competency evaluations are found incompetent to stand trial, most suffer from: • Schizophrenia • Mental Retardation Psychotic Features> Impairment In Reasoning & Assisting Low IQ> Impairment In Understanding, Reasoning & Assisting

17. Severity of Crime and Incompetency Homicide accounts for 1% of total arrests, but 22% of competency referrals were charged with homicide. Base rates for incompetence judgments are much lower for defendants with violent charges (8%) and much higher for disorderly and trespassing charges (48%) Warren, 1991

18. Attorney Ethics and Competency:ABA Standards for Criminal Justice 7-4.2(c) • Obligation to raise the issue of the defendant's competency whenever he has a good faith doubt whether the defendant is competent to stand trial, regardless of the defendant's wishes.

19. Professional Responsibility • Defense attorneys:MC of PR asserts that a lawyer’s responsibilities may vary according to the intelligence or mental condition of the client. MC EC7-11

20. Drope vs. Missouri420 U.S. 302 (1975) • The trial court must always be alert to circumstances suggesting a change in competency. • A defendant’s competency to stand trial is not a fixed state. • Attorneys must: • Document communication problems relevant to behaviors/symptoms they see, and defendant’s inability to assist and inform expert of this info. • COMPETENCY IS ON A CONTINUUM

21. Godinez vs. Moran • “Competency is a context-based inquiry.” • Demands of a criminal case vary significantly • Godinez, 509 U.S. at 413 • (Blackmun, J., dissenting)

22. Yarborough vs. Alvarado, 2004U.S. LEXIS 3843 (2004) • Rational understanding is generally greater for a complex crime like capital murder

23. Defendant Decisions

24. More Decisions- Procedural Rights • Decisions Defendants must participate in: • Pleading guilty • Proceeding to trial • Whether or not to testify • Call specific witnesses • Plead insanity and diminished capacity

25. Context and Function • 1) Counsel is in the best position to make informed, comparative judgments about a particular client’s understanding of the proceedings against him. • Counsel is in the best position to assess that client’s ability to make the decisions required of the client and to provide whatever assistance counsel deems necessary • Uphoff (1988)* • Bishop vs. Superior Court, 150 Ariz. 404 (1986)

26. Educate the Expert- He’s Not the Attorney • Discuss with the experts the legal complexities and nuances of the case and their specific difficulties with their clients. Defense counsel should monitor the stability of the client’s mental status as contacts with him progress in jail. • “He’s crazy doc! • ”He can’t help me!”

27. Is he competent? • Attorneys question their clients competence between 8-15% of the time. They often question their client’s competence immediately, before significant interactions with counsel have occurred and before strategic decisions regarding defense of the case have been considered.

28. Expert’s Ignorance • Examiners rarely inquire into the skills that a specific defendant actually needs to stand trial. • 83% involved impairments on understanding and assisting counsel • 13% impairment on the understanding component • 4% on the assist component • (Winick, 1985)

29. Assessing Defendant’s Psycholegal Functioning in a Particular Legal Context • *The expert should consider assessing the interaction between lawyer and client to assess defendant’s true functional abilities

30. Problems with Competency Evaluations: Expert Ignorance, Expert Laziness • Experts do not specifically address a defendant’s ability to reason or appreciate.

31. United States v. Duhon • Anyone can parrot information

32. United States v. Duhon • The FCI report provides no scientific or other support for the conclusion that repeating factual information to a mentally retarded criminal defendant so that he learns to retain it has any relevance to the issue of competency.

33. The “Dusky Standard”A Universal Standard • Dusky vs. United States, 362 U.S. 402 (1960) • Whether defendant “has sufficient present abilityto consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.”

34. ALABAMA COMPETENCY STANDARDAla. R. Crim. P. Rule 11.1  (2007) • A defendant is mentally incompetent to stand trial or to be sentenced for a defense if that defendant lacks sufficientpresent ability to assist in his or her defense by consulting with counsel with a reasonable degree of rational understanding of the facts and the legal proceedings against the defendant.

35. Components of Competency • Factual Understanding • Rational Understanding*(Decision Making Abilities) • Consulting and Assisting Counsel*

36. Understanding is Easy • Expert reports focus too much on basic competence related abilities such as concrete understanding of the legal process or ability to disclose information to one’s attorney • Rationality is a minimum requirement, and factuality is not enough. • Lack of rationality should always trump mere factual knowledge. • Brakel, 2003

37. Function and Legal Context is Complex • Assessment of functional… • abilities that are relevant for the particular legal context in question • abilities associated with trial participation as a defendant • Grisso’s Model of CST Evaluations

38. Decisional Competence • Decision making regarding legal defense strategy entails cognitive capacities for rational thinking in context of defendant’s factual situation.

39. Appreciation • Can defendant understand, reason, and choose among various courses of action? • Comprehend is not = to appreciate

40. Appreciation of Legal Defenses • Will you plead guilty or not guilty at your trial and why? • What are your chances to be found not guilty • How can you defend yourself against these charges? • What are your legal defenses? • You have been in jail for 10 months, and do not know how you plan on defending your case? • What happens if you are found incompetent or NGRI

41. How can you explain your way out of these charges? • What should your lawyer concentrate on in order to best defend you? • What has he done so far?

42. Rationed and Reasoned Choice • Ability to rationally manipulate information • Weigh information to reach decision • Compare benefits and disadvantages of decisional options

43. Plea Bargain

44. PLEA BARGAIN -What is a plea bargain-What ranges of penalties do these charges hold -What are the advantages and disadvantages of a plea bargain -Given the nature of the evidence in this case, would you consider a plea bargain -Provide a hypothetical plea bargain case and ask for advantages and disadvantages -Compare hypothetical to defendant’s case -Given the facts in this case, what would be the minimum amount of years you would take

45. Rational Understanding and Reasoning • Consult with lawyer with • Rational Understanding-requires complex cognitive abilities, i.e., judgments, perceptions, decision making, appreciating, that are grounded in reality.

46. The Competency of Defendants to Delusionally Refuse a Counsel Recommended NGRI Defense • Defendant refuses NGRI plea against counsel advice • Defendant insists on delusional defense • D’s defense has no realistic chance • Litwack, 2003

47. Delusional Defendants and NGRI • Overwhelming evidence defendant committed crime • Defendant is charged with serious crime • Defendant has a viable insanity defense • (Litwack, 2003)

48. Incapable vs. Unwilling • Capacity=Ability • Incapacity=mental illness • Unwillingness=personality disorder

49. Riggins vs. Nevada504 U.S. 127 (1992) • Forced medication during trialviolates 6th & 14th Amendment rights absent certain findings. • Consider defendant’s affective responses and presentation in court room that could affect juror perceptions of defendant.

50. Critical Federal Case Law on Rationality • United States vs. Nagy,U.S. Dist. LEXIS 9478 (1998) • United States vs. Blohm,579 F. Supp. 495 (1983)