California adopts Edwards: OK to deny self-representation to mentally ill

Mentally ill defendants in California may be barred from representing themselves at trial even when they have been found competent to stand trial, the state Supreme Court has decided.

This week's ruling stems from the 2008 U.S. Supreme Court case of Indiana v. Edwards, which held that states may set higher standards for self-representation than for competency to proceed to trial with an attorney.

The court upheld the conviction of Andrew D. Johnson of Vallejo, sentenced under California’s three-strikes law to 85 years to life in prison for two severe assaults.

Earlier in the proceedings, a jury had found Johnson competent to stand trial.The trial judge had initially let Johnson represent himself, but changed his mind based on Johnson’s bizarre behavior and filing of nonsensical motions.

The state high court cautioned that trial courts "must apply this standard cautiously," as under normal circumstances defendants have a Sixth Amendment right to represent themselves: "A court may not deny self-representation merely because it believes the matter could be tried more efficiently, or even more fairly, with attorneys on both sides."

No uniform standard

Several interested parties -- including the California Attorney General, San Francisco Public Defender, California Attorneys for Criminal Justice, and the Office of the State Public Defender -- had filed amici curiae arguing that California courts should have discretion to deny self-representation to "gray-area" defendants such as Johnson.

In their briefs, these parties proposed various standards for competency for self-representation that the court might adopt. But the court declined to adopt any of these specific standards, or those proposed in two recent law review articles, "pending further guidance from the high court."

In a footnote, the court also suggested that courts may choose to include the question of self-representation competence in routine trial-competency evaluation requests, even when the issue has not been raised.

This will leave court-appointed experts in an awkward position, tasked with evaluating "simply whether the defendant suffers from a severe mental illness to the point where he or she cannot carry out the basic tasks needed to present the defense without the help of counsel."

Such murkiness will increase the complexity of competency evaluations for forensic psychologists and psychiatrists. This is especially problematic in that court-appointed experts are grossly undercompensated, which attracts inexperienced and poorly trained professionals willing to perform what one attorney I know refers to as "drive-by competency evaluations."

When a defendant refuses evaluation

In his appeal, Johnson also complained that none of the experts appointed to evaluate his trial competency ever interviewed him personally. In fact, that was because he refused to meet with any of them.

The court said that the when a defendant refuses to be evaluated, the judge and jury must "do the best they can under the circumstances," as occurred here.

At the competency trial, psychologist Kathleen O'Meara, called by the defense, made clear that her opinion was tentative in that it was based solely on transcripts of the pretrial proceedings, defendant's letters, medical records and conversations with correctional staff. She speculated that defendant might have a paranoid delusional disorder, but that he could also be malingering.

Two psychiatrists called by the prosecution, Herb McGrew and Murray Eiland, both testified that it was not possible to form an opinion on competency without interviewing the defendant.

Sticky wicket

The Edwards decision expands the parens patriae doctrine, subordinating autonomy for ostensible fairness. In deciding that the mentally ill do not have the same constitutional rights as everyone else, the U.S. Supreme Court set up a very difficult situation.

On the one hand, allowing floridly psychotic defendants to represent themselves sanctions court-assisted suicide in that conviction is almost always assured, as in the farcical spectacle of Colin Ferguson's trial in the Long Island Railroad massacre.

On the other hand, since the U.S. trial system gives full authority to the attorney to conduct the defense as he or she sees fit, a defendant who has not consented to legal representation is stripped of the right to present his own defense. And, since no judge wants an inexperienced, potentially disruptive defendant mucking up their courtroom, it is tempting to find a problem defendant competent to stand trial, but then force him to accept an attorney -- and a defense -- that he may not want.

Related reading:

How will Edwards affect competency evaluations? (June 20, 2008 blog post)

Mentally ill: No constitutional right to self representation (June 19, 2008 blog post)

Fools competent to represent themselves at trial: Buffoonery doesn’t qualify under Edwards, appellates rule (July 7, 2010 blog post)

Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant, Erica J. Hashimoto, North Carolina Law Review (2007) [free, open-access download]

Defending Oneself, Erica Hashimoto

COMPETENCY CASE RESOURCES WEB PAGE

Why does the United States lock up so many people?

Freedom is seldom found

By beating someone to the ground

-- Amos Lee, Freedom

Prisoner sketch, Pelican Bay SHU

The statistics are shocking: One out of every 99 adults quarantined behind bars in the United States, with larger and larger swaths of the civilian work force deployed as a captor class. Although academic scholars have been analyzing the social costs of our 30-year punishment binge for some time, the American public has been oddly disinterested in our de-evolution into a full-blown prison nation.

Finally, that appears to be changing, perhaps in no small part due to the staggering financial costs of mass incarceration during these tough economic times. The direct costs of prisons have quadrupled over two decades, to almost $40 billion a year in the 40 states sampled in a new report by the Vera Institute of Justice's Center on Sentencing and Corrections.

Now, award-winning New Yorker writer Adam Gopnik has stepped up to ask the essential question: WHY do we lock up so many people?

After all, he points out in his essay, "The Caging of America," New York City has managed to buck the incarceration trend, while seeing its crime rate plummet by as much as 80 percent (the topic of criminology scholar Franklin E. Zimring's new book, The City That Became Safe).

Gopnik writes with the outrage of an outsider whose blindfolds were suddenly yanked away to reveal the carceral state in all of its nightmarish savagery:

Death row, Tennessee

Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today -- perhaps the fundamental fact, as slavery was the fundamental fact of 1850.

The scale and the brutality of our prisons are the moral scandal of American life. Every day, at least 50,000 men -- a full house at Yankee Stadium -- wake in solitary confinement, often in "supermax" prisons or prison wings, in which men are locked in small cells, where they see no one, cannot freely read and write, and are allowed out just once a day for an hour's solo "exercise." (Lock yourself in your bathroom and then imagine you have to stay there for the next ten years, and you will have some sense of the experience.)

How did we get here? How is it that our civilization, which rejects hanging and flogging and disembowelling, came to believe that caging vast numbers of people for decades is an acceptably humane sanction?

To answer his question, Gopnik weaves together two strands of American history, what we might call the Southern and the Northern penal traditions.

Juvenile In Justice, Richard Ross

The new Jim Crow

The Southern strand, most recently articulated by Michelle Alexander, posits that penal colonies arose to replace the slave plantations in the post-Reconstruction South, with mass incarceration functioning as "The New Jim Crow" for poor African American men in the post-civil rights era. It's hard to argue with the statistics: More than half of American black men without a high-school diploma go to prison at some time in their lives, and more of these men are trapped in today's criminal justice system than were enslaved prior to the Civil War:

Young black men pass quickly from a period of police harassment into a period of "formal control" (i.e., actual imprisonment) and then are doomed for life to a system of "invisible control." Prevented from voting, legally discriminated against for the rest of their lives, most will cycle back through the prison system. The system, in this view, is not really broken; it is doing what it was designed to do.

Procedural justice

Many of you may be familiar with this notion of South's white supremacist contribution to the carceral state, but you may be surprised to learn about the North's major hypothesized contribution: the Bill of Rights.

Wait a minute. Weren't our founding fathers all about protecting our rights, making sure that we were never again victimized by the cruel rule of tyrants?

In blaming the Bill of Rights, Gopnik channels Harvard Law School professor William J. Stuntz, who died just before last fall's publication of his The Collapse of American Criminal Justice, which argues that the Enlightenment era saw the elevation of procedural rights at the expense of moral justice.

The trouble with the Bill of Rights, [Stuntz] argues, is that it emphasizes process and procedure rather than principles…. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice.

Thus, in our increasingly impersonal and bureaucratic world, rather than the nemesis of the brutal prison, due process is actually its mirror image:

The more professionalized and procedural a system is, the more insulated we become from its real effects on real people…. Once the procedure ends, the penalty begins, and, as long as the cruelty is routine, our civil responsibility toward the punished is over. We lock men up and forget about their existence.

Gopnik's essay, which I highly recommend, can be found HERE.

Juror’s bad dream becomes defense nightmare

What would you do if you were defending a man accused of bludgeoning someone to death with a baseball bat, and a juror disclosed having a nightmare in which the defendant chased her around with a baseball bat?

You might request that the juror be dismissed.

That’s what happened this week in a murder trial St. Lawrence County, New York.

But the judge denied the defense request, despite a plea from the juror's family that she is emotionally overwhelmed by the case. Besides her nightmare, the juror also told the court that she started crying when she saw her father sitting in a recliner that reminded her of the chair in which the dead man was found.

The ruling shocked the defendant.

"I just about fell over," defendant Wayne T. Oxley Jr told a reporter. "I was pretty shocked she stayed on the jury. I kind of lost my breath."

The prosecuting attorney said it wouldn't be fair to discharge a juror just because of what she dreamed. "Dreams are dreams, you can't make them not happen," said the attorney.

Prominent forensic psychologist Saul Kassin of the John Jay College of Criminal Justice disagreed.

"It's clear she has formed a negative emotional opinion," Kassin told a reporter from the Watertown Daily Times. "If I were on the defense team, that would make me nervous. People often have difficulty separating reality from fantasy."

This is Oxley's third trial. The first ended with a conviction for second-degree murder, later overturned on appeal. A retrial ended in a hung jury. If Oxley is convicted and successfully appeals based on the juror's emotional bias, Judge Jerome J. Richards's ruling could end up a nightmare for him as well.

Federal judge tosses hebephilia as basis for civil detention

Hebephilia is too controversial for the government to use it to claim that a sex offender has a serious mental disorder meriting civil commitment in order to protect the public, a federal judge ruled Thursday.

Judge Terrence Boyle

In ordering the release of convicted sex offender Jeffrey Neuhauser, the judge also found that the government had failed to prove that the prisoner was at high risk to reoffend or would have serious difficulty controlling his impulses.

"The Court finds that it would be inappropriate to predicate civil commitment on a diagnosis that a large number of clinical psychologists believe is not a diagnosis at all, at least for forensic purposes," wrote Judge Terrence W. Boyle of the U.S. District Court for the Eastern District of North Carolina. "Although hebephilia has been proposed to be included as a mental disorder in the revision of the DSM, it has been rejected as a proper mental disorder by numerous psychologists.”

Two of those psychologists, Diane Lytton and Richard Wollert, were retained in the case by Suzanne Little of the Federal Public Defender. Lytton testified that the residual diagnostic category of "paraphilia not otherwise specified" was never intended to turn criminal behaviors such as sex acts with minors into mental illnesses.

Even the government's own expert, Gary Zinik, conceded that the legitimacy of hebephilia is a hotly contested issue in the mental health community, the judge noted.

The pseudoscientific label is typically assigned by government experts when an offender is neither a rapist nor a pedophile, bur rather has offended against more physically mature minors.

Neuhauser acknowledged a sexual preference for pubescent boys. He served federal prison time for distributing child pornography and two counts of interstate travel with the intent to engage in sex with a minor. He also had previous convictions for contributing to the sexual delinquency of a child and assault and battery in connection with the attempted sodomy of a 14-year-old boy.

Disturbance Control Team patch, Butner prison

Boyle's ruling may impact other federal prisoners facing civil detention, as nearly all of the 130 or so federal prisoners that the government is seeking to detain under the Adam Walsh Act of 2006 are housed at a federal prison in Butner, North Carolina, and so are processed through the North Carolina federal court.

Yesterday's ruling follows on the heels of another dismissal of a civil commitment petition by Senior U.S. District Judge Bernard A. Friedman. In a scatching critique of the prosecution's overblown claims of mental illness and risk, Judge Friedman opined that sex offender Markis Revland had fabricated accounts of child molestation in order to placate therapists at the Butner prison.

In Neuhauser's case, Judge Boyle stated that even if hebephilia was a legitimate diagnostic label, the government still did not meet its burden of proving by clear and convincing evidence that the convicted sex offender is at a high risk to reoffend.

He credited the defense experts' analyses of risk as being more accurate than the prosecution's. Wollert relied on an actuarial tool he helped to develop, the Multisample Age-Stratified Table of Sexual Recidivism Rates (MATS-1). (See my review here.) Other actuarial tools used by the various experts included the Static 99-R, the Static 2002-R and the MnSOST-R, which is widely known to overestimate sex offenders' risk of recidivism.

"It should be noted that results of these assessments depend heavily on the choice of reference group to which the respondent is compared," the judge aptly noted. "Because Drs. Wollert and Lytton analyzed their actuarial results in light of Mr. Neuhauser's advanced age, his ability to control his behavior while in the community, his pattern of offending (in particular, the fact that his first victim was by force and later victims willingly participated even though they could not give legal consent due to their age), and the fact that Mr. Neuhauser had not been subject to any deterrent sanctions until his most recent prison sentence, the Court finds their actuarial assessments to more accurately reflect Mr. Neuhauser's likelihood of recidivism."

Boyle said he was impressed by the offender's honesty, remorse and genuine desire to control his illegal behavior: "He openly discussed his sexual orientation toward pubescent boys but demonstrated a true understanding that boys of that age are unable to legally consent to sexual activity, even if they appear to him to be willing to engage in sexual contact…. Mr. Neuhauser's sexual orientation toward pubescent boys … is, standing alone, insufficient to justify his civil commitment under the Adam Walsh Act.… [T]here must be proof of serious difficulty in controlling behavior."

Boyle, by the way, is no political liberal. A former legislative assistant to arch-conservative Senator Jesse Helms of North Carolina, he was appointed to his present post by President Ronald Reagan back in 1984. Democrats later blocked President George W. Bush’s attempt to elevate him to an appellate judgeship, citing concerns over his civil rights record.

Neuhauser will be under parole supervision for five years, during which time he must undergo sex offender treatment and polygraph testing, avoid contact with minors, and submit to other special restrictions.

Further information on the hebephilia controversy is HERE.

Tearing the child apart: Free training in San Francisco

What motivates parents to -- either consciously or unconsciously -- damage or destroy their own children?

We know the complex psychological effects of high-conflict divorce, but how do we understand the contribution of narcissism, envy and perverse thinking?

This Saturday, Jan. 21, forensic psychologist Michael Donner, a psychoanalyst, child custody evaluator and ethicist, will take an analytic approach to questions usually considered part of the family court system.

Sponsored by the San Francisco Center for Psychoanalysis, Saturday's event features H. Spencer Bloch, MD,  author of Adolescent Development, Psychopathology, and Treatment, as discussant.

The event runs from 10:00 a.m. to noon and is free. To register, call Aaron Chow at (415) 563-5815 or email him HERE. More information and online registration is HERE.

Donner authored an excellent article by the same title in Psychoanalytic Psychology. Contact him (HERE) to request a copy of "Tearing Children Apart: The Contribution of Narcissism, Envy and Perverse Modes of Thought to Child Custody Wars."

Our broken family court system: Free training in Arizona

Another free training geared toward child custody evaluators is coming up March 16-17 in Phoenix, Arizona. Co-sponsored by the National Alliance of Professional Psychology Providers and the Nicholas and Dorothy Cummings Foundation, it features a cast of well-known experts, including:

• Dr. Lenore Walker (author of the classic, The Battered Woman’s Syndrome)
• David L. Shapiro, PhD
• G. Andrew H. Benjamin, JD, PhD, ABPP
• Judge Marjory Fields 
• John Caccavale, PhD (speaking on Business Ethics for Custody Evaluators)

More information and online registration is available HERE.

SEX PANIC: Highly recommended

As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.

-- Justice William O. Douglas 

The strands of modern American containment were woven so gradually that today's prison culture has come to feel almost natural. But imagine how the landscape might look to someone who was experimentally cryopreserved in, say, 1981, and thawed out 30 years later:

People cheerfully taking off their shoes and queuing up to be x-rayed by robotic agents of "Homeland Security," GPS satellite monitoring, DNA databases, civil detention for future crimes, online registries of drug offenders, surveillance cameras everywhere, "zero tolerance" schools where children are viewed as pint-sized criminals.

And, underlying it all, the new carceral state: A massive underclass of surplus labor (one out of every 99 adults) quarantined in prisons, with large swaths of the former industrial and agricultural laboring classes transformed into a security force of prison guards, parole agents and police working to generate yet more prisoners.

"By design this penal system churns the poor and marginal, rendering them all but unemployable, thus poorer and ever more marginal," writes anthropologist Roger Lancaster. "No legitimate theory of corrections, crime, or social order justifies this approach, which can only be understood as vindictive."

In Sex Panic and the Punitive State, Lancaster meticulously explains how 35 years of virtually nonstop panics over crime -- urban unrest in the 1960s, street crime in the 1970s, crack wars in the 1980s, predatory gangs in the 1990s, and terrorists in the 2000s -- have congealed into a durable regime dominated by irrational fear: "Power flows through the nervous system of a body politic paralyzed by dread. Ruled and rulers are equally trapped in fear."

Laying the groundwork for wave after wave of panics, Lancaster convincingly argues, is a synergy between deeply ingrained (but now covert) fears of black criminal-rapists and homosexual child molesters:

Sexual anxieties and fear of crime have come to form a dynamic feedback loop. On the one hand, it seems unlikely that revived sex panics would have put down such deep social roots except in the context of a wider war on crime. On the other hand, it also seems unlikely that crime fears could have become so finely woven into the fabric of everyday life without the element of sex panic.

The resulting system of social control is an amalgam of old and new elements. Its Puritanism, its paranoia about strange outsiders, its enactment of dramas of peril and rites of protection are as old as the United States itself; they are deeply embedded in the national psyche…. At the same time the resulting system of social control departs from long-standing liberal traditions that begin with a presumption of innocence, restrain the reach of law, defer to zones of privacy, and resist the application of excessive punishments or the tacking on of ex-post-facto provisions.

Lancaster sees the creation and privileging of a novel social category -- "the victim" -- as a powerful force in this new social order. In the name of this iconic crime victim, the enormously successful Victim's Rights Movement has led the charge to dismantle traditional legal protections, a trend that may be difficult if not impossible to ever reverse.

Perversely, increased repression of the American citizenry has arisen in tandem with the loosening of economic restraints on "capitalism’s most predatory forms" -- privatization, globalization and the corporations' relentless squeezing of what we now call the 99 percent.

In Lancaster's dystopic vision, America has degenerated into "a broken social order based on mistrust, resentment, and ill will," manifested in a mass addiction to dumbed-down, commercialized vengeance spectacles. We need look no further for evidence of this grim state of affairs than the vitriolic comments of YouTube viewers beneath the video of U.S. Marines urinating on the bodies of murdered Afghanis.

As with Abu Ghraib, we can safely bet that the four Marines will be sanctioned, while the structures that fostered their callous behavior will remain untouched. As Lancaster notes, this is all par for the course: "Any cultural system that equates punishment with justice will foster complicated forms of sadism. And any institutional system that inculcates intense fear and rage will produce technicians who periodically depart from standard operating procedures."

Many of you blog readers will have read other fine books on sex panic and the carceral state. But this meticulously researched and eloquently written analysis goes deeper and wider, masterfully integrating disparate historical, economic, religious and social trends. Lancaster delves at length into the complex interplay of racism and homophobia, even weaving in personal experiences as a gay man that helped to shape his thinking.

Bottom line: Read this landmark book; I guarantee it will enlighten.

A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.

-- Martin Luther King Jr. 

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