Developments in Mental Health Law is a free publication of the Institute of Law, Psychiatry and Public Policy at the University of Virginia, School of Law. It is published electronically six times per year through funding provided by the Virginia Department of Behavioral Health and Developmental Services. The following was excerpted from Volume 30, Issue 4, edited by Jane D. Hickey.
Below are brief summaries of recently decided or currently pending cases in mental health law.
US Supreme Court Declines to Review Seventh Circuit Decision Authorizing Indiana Protection and Advocacy Services to Sue Indiana to Obtain Peer Review Records
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. 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).
US Supreme Court Upholds Death Penalty Where Defendant’s Attorney Made Strategic Decision not to Present Evidence of Bipolar Mood Disorder
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. Cullen, Acting Warden v. Pinholster, (Docket No. 09-1088), slip opinion found at: http://www.supremecourt.gov/opinions/10pdf/09-1088.pdf.
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.
US Supreme Court Declines to Hear Missouri Supreme Court Finding of Ineffective Counsel for Failure to Call Mental Health Expert
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. Missouri v. Vaca, 314 SW3d 331, (Mo. 2010), pet. for cert. denied February 22, 2011. 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 non-capital cases and this was defense counsel’s first such trial. The Court thus held that a new sentencing hearing was required.
Arkansas Denies Insanity Acquittee Appeal
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.” Hughes v. State of Arkansas, 2011 Ark. 147; 2011 Ark. LEXIS 134 (April 7, 2011). 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.
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
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. 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 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.
Ex Parte Communications of Judge to Determine Whether Defendant Is Competent to Stand Trial or Malingering Requires New Trial
The Vermont Supreme Court ordered a new trial for a defendant charged with lewd or lascivious conduct with a child and an 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. State of Vermont v. Gokey, 2010 Vt. 89, 2010 LEXIS 90 (October 8, 2010).
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.