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Mental Health

Mar 23
Love1
Mental Competency Pro Se Defendant

Secret Societies and Mental Competency of a Pro Se Defendant

By Mental Health

“The man who represents himself has a fool for a client.”

Mental Competency Pro Se DefendantRegardless of whether the decision may be unwise, a criminal defendant has the right to represent himself or herself at trial. But, as explained by the US Supreme Court in Indiana v. Edwards (554 US 164, 171), this right is not absolute. A defendant must be mentally competent to represent oneself at trial. In Logan v. State, the 2nd Court of Appeals (Fort Worth) explains “competence to stand trial is not alone the test for competence to represent oneself at trial.” Here’s what happened in Logan…

Defendant Requests to Represent Herself

Charise Logan was charged with criminal trespass for being on the UTA campus after she had been warned not to return. Ms. Logan requested to defend herself in court. The trial judge of County Criminal Court Number 1 in Tarrant County inquired as to whether Ms. Logan understood her right to an attorney. She answered that she understood, but added that she did not believe she could find an attorney who was not part of the “conspiracies against her.”

Trial Judge Orders Mental Competency Evaluation

The trial judge inquired as to whether the defendant has ever been treated for a mental illness. Ms. Logan answered that she had, but that it was 10 years ago. The trial judge then ordered a competency evaluation, which was conducted by a psychologist. The psychologist reported that the defendant had an “unspecified personality disorder,” but that she was competent to stand trial and to consult with counsel. There is plenty more about the defendant’s competency exam if you read the full opinion.

The Case Proceeds to Trial | Defendant Explains the “Conspiracy”

Ms. Logan’s case proceeded to trial, with her acting as her own counsel, despite her documented mental illness. At a pretrial hearing, the defendant filed a document explaining that she had been:

hunted by a secret society and currently, a sex ring for several years of [her] life” and outlines a pattern of harassment and surveillance of her conducted by the secret society. Appellant implicates President Barack Obama and the family of former President George H.W. Bush in this conspiracy. According to the pro se document, the secret society surveilled Appellant between 2011 and 2015. Appellant alleges in the document that the secret society used witchcraft, voodoo, and blackmail to force unwilling participants to engage in activities against her. She further alleges that the conspiracy was after her because of the auditory and visual gifts bestowed upon her by God.

Because the defendant did not request and relief in her filing, the trial court did not have anything on which to rule. The court took no additional action based on this “information.” The trial proceeded and a jury convicted the defendant of criminal trespass.

Appellate Issues Concerning Competency of Pro Se Defendant

On appeal to the 2nd Court of Appeals (Fort Worth), the fundamental issue was whether the trial court erred in allowing the defendant to represent her. Finding error, the appellate court held:

when determining the ability of a defendant to represent herself pro se, the trial court should take a realistic account of the particular defendant’s capacity to represent herself. A person could be capable of working with counsel at trial and thus meet the test for competency set out in Dusky v. United States (362 US 402), yet at the same time be unable to carry out the basic tasks necessary to present her own defense without the assistance of counsel.

Appeals Court Reverses the Conviction

The appellate court set aside the Ms. Logan’s conviction and remanded the case for a new trial. In so doing, Justice Dauphinot explained that “[t]he trial court deprived Appellant of counsel by accepting her waiver of counsel that was neither voluntary nor knowing. Such error is automatically reversible.” The court went further to hold that it was error for the trial court to order a mental competency evaluation without counsel being present. While issues like these are rare, we are starting to see more and more mental health cases that could turn out like this one, if the right steps are not taken.

Feb 03
Love0

Mental Retardation and the Death Penalty

By Death Penalty

In 2002, the United States Supreme Court determined that the Eighth Amendment to the U.S. Constitution’s prohibition against cruel and unusual punishment bars the execution of mentally retarded persons. Atkins v. Virginia, 536 U.S. 304 (2002).

The Court reasoned that neither retribution nor deterrence could be achieved by executing mentally retarded persons and that, because mentally retarded persons have a reduced ability to participate in their own defense, there is an enhanced risk that they would be sentenced to death unnecessarily.  However, the Supreme Court left it to the individual states to determine which offenders fit the definition of “mental retardation,” in order to enforce this constitutional restriction.

In Ex Parte Briseno, the Texas Court of Criminal Appeals established non-mandatory guidelines to determine “that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” 135 S.W. 3d 1 (2004).  If an offender meets the definition of mental retardation, then the guidelines are designed to consider some more subjective criteria. The definition of mental retardation that the CCA adopted was:

(1) Significantly subaverage general intellectual functioning, generally shown by an IQ of 70 or less, (2) accompanied by related limitations in adaptive functioning, (3) the onset of which occurs prior to the age of 18.

If a person meets that definition, the following guidelines were designed to help factfinders in criminal trials focus upon weighing the evidence as indicative of mental retardation or of a personality disorder:

  • Did those who knew the person best during the developmental stage – his family, friends, teachers, employers, and authorities – think he was mentally retarded at that time, and, if so, did they act in accordance with the determination?
  • Has the person formulated plans and carried them through, or is his conduct impulsive?
  • Does his conduct show leadership, or does it show that he is led around by others?
  • Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?
  • Does he respond coherently, rationally, and on point to oral or written questions, or do his responses wander from subject to subject?
  • Can the person hide facts or lie effectively in his own or others’ interests?
  • Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

The CCA cautioned that these factors should not be considered in isolation, but rather in the context of the concerns expressed by the Supreme Court in the Atkins decision.

In 2012, the CCA considered a capital murder habeas case (Ex Parte Sosa) wherein the applicant alleged that he was mentally retarded at the time of the offense.  The habeas court found that the applicant established mental retardation.  The CCA cited some inconsistencies and ultimately remanded the case back to the convicting court for the judge gather more information and consider the Briseno factors in determining whether the applicant was (or is) indeed mentally retarded.

This is an interesting area of law to me.  I’ve had the occasion to dig into some literature on autism, and at first glance it would seem that some autistic indviduals (those that are higher on the spectrum) might satisfy the factors laid out by the CCA.  Of course, the Briseno and Atkins cases deal only with the death penalty and capital punishment, but as far as retribution and deterrence go, this could be good extenuation and mitigation evidence for the factfinder to consider in other cases as well.

Jul 07
Love0

A Simple Truth (Revisited): Expert Testimony on Mental Retardation

By Sex Crimes

In September of 2010, the 3rd Court of Appeals (Austin) reversed the sexual assault conviction of Mark Barshaw because the trial court allowed the following testimony of an MHMR expert regarding the truthfulness of mentally retarded individuals:

It’s been my experience that folks with mental retardation can be painfully honest, really. I mean, it’s like a little kid who looks at somebody and says in the supermarket, ‘You’re really old,’ or, you know, whatever little kids do.

See our prior post HERE.  The State appealed the 3rd Court’s reversal and now, in an opinion released on 29 June 2011, the Texas Court of Criminal Appeals reversed the Court of Appeals.

Barshaw v. State (Texas Court of Criminal Appeals 2011)

Apparently troubled by the less-than-thorough harm analysis conducted by the lower court, the CCA explained:

Even in cases in which credibility is paramount, Texas courts have found harmless error when the inadmissible expert testimony was only a small portion of a large amount of evidence presented that the jury could have considered in assessing the victim’s credibility. Upon reviewing the record as a whole, we find that additional evidence exists that should have been considered in the court of appeals’s harm analysis, as is required by [our previous caselaw].

With that, the CCA remanded the case back to the 3rd Court of Appeals to conduct a full harm analysis. A shot across the bow perhaps? I think the odds are heavily in favor of the Court of Appeals changing its mind on this one. We’ll see.

Sep 08
Love0
Barshaw v. State 2010

A Simple Truth: Sexual Assault Conviction Reversed for Improper Expert Testimony

By Sex Crimes

Barshaw v. State 2010It’s been my experience that folks with mental retardation can be painfully honest, really.  I mean, it’s like a little kid who looks at somebody and says in the supermarket, ‘You’re really old,’ or, you know, whatever little kids do.

That was part of the testimony of an MHMR expert at the sexual assault trial of Mark Barshaw.  Barshaw was accused of sexually assaulting a mentally retarded victim, who was 21 years-old at the time, but functioned at approximately a 10 year-old level.  Upon hearing this testimony, the defense counsel objected, “You can’t have somebody come in and testify to a class of people are truthful.”  The State responded by stating that it was simply trying to show how mentally retarded persons “adapt” and that the testimony also went to show that “she’s incapable of either appraising the the situation or the nature of the act.”  The trial judge allowed the testimony to continue.

…again, it’s been my experience in the hundreds and hundreds of people with mental retardation that I’ve seen, that it’s more going to be that they’re painfully honest.  They haven’t learned the social skills and probably never will to know when you should lie or when it would be socially appropriate to not tell the truth because it might hurt someone’s feelings, or things of that nature, to hold things back.

In allowing the testimony of the MHMR expert, the trial judge abused its discretion, said the 3rd District Court of Appeals (Austin).  The Court explained that the Texas Court of Criminal Appeals has held that evidence rule 702 “does not permit an expert to give an opinion that the complainant or a class of persons to which the complainant belongs is truthful.”  Yount v. State, 872 S.W.2d 706, 712 (Tex. Crim. App. 1993).  Such an expert, is essentially telling the jury that they can believe the victim in the instant case.  This, held the CCA, “is not ‘expert’ testimony of the kind which will assist the jury under rule 702.”  Id. at 711.

The Court also cited the CCA case Schutz v. State.  957 S.W.2d 52 (Tex. Crim. App. 1977).  In Schutz, the CCA explained that:

children and mentally retarded persons are viewed by society as “impaired.” When such a witness is expected to testify, expert testimony should be permitted in the offering party’s case in chief concerning the ability of the class of persons suffering the “impairment” to distinguish reality from fantasy and to perceive, remember, and relate the kinds of events at issue in the case.  The court emphasized that such testimony should be limited to the “impaired” class’s ability to accurately relate events and should not extend to the class’s tendency to do so; the latter would violate the holding in Yount.

Id. at 70 (emphasis added).  Having violated the CCA holdings in Yount and Schutz by allowing the expert to testify that mentally retarded persons are, as a class, truthful, the Court found harm and reversed the sexual assault conviction.

Justice Henson dissented and would have held that there was no harm in the trial judge’s erroneous ruling.