Articles Posted in Mental Health

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Two issues regarding the right to privacy, and its potential impact on criminal cases, appeared in the news recently.  These issues have no relationship to each other, but can both be highly relevant to criminal cases.

The first involves a your man who was living alone in a South American country.  He was extremely poor and his family was basically gone.  Having absolutely no personal resources for even necessities, he became involved with a local gang.  To be clear, he was not one of the leaders, or even a major participant in gang activities, acting instead as the occasional lookout.  Significantly, he really did not want any part of the gang lifestyle.  He eventually fled his home country and sought asylum in the United States.  He was afraid to return to his country after leaving, because of his well-founded belief that the gang he was previously involved with may kill him.

Part of the admission process here involved meeting with a mental health therapist whose position was government-related.  The therapist took notes of their meetings, which included discussions of his gang-related activities.  Without any prior knowledge or consent of the young man or the therapist, these notes came to light in connection with a hearing that was held to determine whether he could be admitted to the United States.  The notes supported the conclusion that he was gang-involved in his home country, which will probably end his quest for admission to the United States and force his deportation back to his home country. Continue reading ›

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Last year, in State v. RG, our Appellate Division addressed the issue of whether a criminal defendant who is not mentally competent can be involuntarily medicated to restore their competency so that they can proceed with their case.  This was the first time a New Jersey appellate court addressed this issue.  The case provides a valuable opportunity to review some of the basics concerning criminal defendants with mental health issues.

Every defendant is expected to participate in their own criminal case.  This means that they must be able to understand that they have been charged in a criminal court with a criminal offense.  Further, they must be able to recall the facts that gave rise to the case, and have the ability to discuss them in a meaningful way with their attorney.  They must be able to provide defense counsel with any information they may have concerning those facts, as well as defenses to the charges.  They must be able to evaluate plea offers, and to decide whether they wish to resolve their case by way of plea or proceed to trial.  They must have a basic understanding of how a trial works, and their right to testify before a jury.  They must also understand the respective roles of the defense attorney, the prosecutor and the Judge hearing the case.  If they cannot do these things, they may be declared incompetent for purposes of proceeding with their matter.

In New Jersey, a defendant who appears to be incompetent will have to undergo a competency evaluation.  These evaluations are generally conducted by a state psychologist at a public facility known as the Ann Klein Forensic Center.  The psychologist will generate a report that describes the evaluation, and presents findings and conclusions.  If the defendant is deemed competent, the case can proceed.  If the defendant is deemed incompetent, the case will typically be adjourned until the defendant is restored to competency.  As a practical matter, this means that the Judge hearing the matter will list it for a 60-90 day review and, and that time, will see where the defendant stands in terms of fitness to proceed.  (Once the case has gone on long enough, and after a series of court reviews concluding that the defendant remains incompetent, defense counsel should be thinking about moving to dismiss the charges.) Continue reading ›

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This blog has previously addressed the fact that the statistics describing the state of the juvenile justice system in this country are alarming.  About 53,000 juveniles are incarcerated on any given day in the United States.  Many jurisdictions report recidivism rates exceeding 50% during a one to three year period.  We have also learned that education is closely linked to criminal behavior.  Incarcerated juveniles are 13% less likely to complete high school, and 22% more likely to be incarcerated as adults.  At least one study estimates that 200,000 young offenders are tried sentenced, and/or incarcerated as adults each year, and juveniles in the adult system are between 34% and 77% more likely to be re-arrested.

We have also recognized that juvenile involvement with the criminal justice system stems, at least in part, from the fact that a young person’s brain is underdeveloped relative to that of an adult.  A series of United States Supreme Court decisions delivered over the last few years found that this leads young offenders to make poor decisions that result in criminal conduct.  It also prevents juveniles from fully appreciating the consequences of their conduct.

None of this is new.  In fact, we have known about all of these facts and issues for some time.  However, a new approach to dealing with juvenile crime, as well as kids who are at risk for becoming criminally involved, has already shown considerable promise. Continue reading ›

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Criminal attorneys frequently assert novel defenses at trial and during plea negotiations.  One of the more interesting defenses, sometimes referred to as the “Twinkie” defense, has existed for a number of years.  It sounds patently silly on the surface given its name, but may actually have some basis in reality and, under appropriate circumstances, may be used effectively in cases involving criminal defendants with mental health issues.

The earliest notable use of the defense dates back to the trial of Dan White who was charged in the 1970s with shooting George Moscone, the Mayor of San Francisco, and Harvey Milk, a city supervisor.  Defense counsel presented evidence that White was mentally ill and depressed, and that his symptoms were worsened by eating junk food.  White’s “main” defense was actually diminished capacity, but he asserted that eating large amounts of junk food contributed to his existing mental health issues.  As ridiculous as it sounds, the argument apparently assisted him in obtaining a conviction for the lesser included offenses of voluntary manslaughter, instead of murder.

Variations on the defense have been asserted since the White case by defendants with mental health problems and issues.  In or around 2017, Matthew Phelps of North Carolina was charged with his wife’s stabbing death.  He discovered her blood-covered body on the floor when he woke up one morning, but had no memory of events from the prior evening.  He believed he attacked her, but claimed that he remembered nothing because cough medicine that he took to help him sleep caused him to black out.  Similarly, Dr. Louis Chen was charged with murdering his partner and their son.  He asserted that at the time of the murders, he suffered from depression and paranoia which were worsened by his ingestion of cough medicine.  James McVay, who claimed to have mental health and addiction issues, was charged with a stabbing death.  He argued, among other things, that at all relevant times, he suffered from hallucinations caused by mixing alcohol and cough syrup.  Shane Tilley, who presented evidence that he suffered from a schizoaffective disorder, argued that he stabbed someone to death while he was intoxicated by cough syrup. Continue reading ›

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It has been long known that the United States incarcerates more individuals than any other nation on the planet.  Our combined federal, state and local jail population is staggering.  Over the last several decades, however, there has been an ongoing push to develop “alternatives-to-incarceration” or “ATI” programs.  These programs, which include drug courts and mental health courts, are designed to deal with relatively low-level, non-violent offenders who have specific problems and issues that led them to commit crimes.  The idea is to remove them from the mainstream criminal justice system and place them in a diversionary program designed to address their unique needs, thereby reducing the likelihood of recidivism.  As a result, these programs help reduce the overall prison population, thereby preserving prison resources for use in connection with more violent criminal offenders.  ATI programs exist on both the federal and state levels.

It is also well known that the current administration in Washington has adopted a “get-tough-on-crime” approach to criminal justice including, among other things, the promulgation of stricter sentencing guidelines in drug cases.  The  United States Sentencing Commission observed in a recent report that this may effectively reduce the number of defendants who can participate in the federal ATI programs.

There are many state-level ATI programs.  For example, the first drug court was created in Florida in 1989.  There are currently more than 4,000 state-level drug courts nationwide.  It is estimated that approximately 55,000 adult criminal defendants participate in state drug court programs each year. Continue reading ›

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The first mental health court was established about 20 years ago in Broward County, Florida, in 1997.  Since that time, a relatively small number of counties across the country have established these innovative and forward-thinking programs, with the result that there were approximately 300 mental health courts nationwide as of 2016.  Many of these courts are funded under a 2002 federal program known as the “Law Enforcement and Mental Health Project”.  It sounds like a lot, but the real need is still not being met.  Relatively recent data from the Bureau of Justice Statistics show that 55% of male inmates and 73% of female inmates in the United States are mentally ill.  Further, 23% of these individuals were incarcerated three or more times, thereby demonstrating an unacceptably high recidivism rate among this segment of the overall inmate population.  Additionally, over the last several decades, a considerable number of mental health commitments made previously to state hospitals and similar facilities for criminally involved mentally ill individuals have been eliminated.  This has made local jails and state and federal prisons the largest providers of treatment for people who suffer from mental illness.  Put somewhat differently, a substantial number of mentally ill people in the United States, a number of whom have relatively low-level criminal charges, are simply being warehoused in jails and prisons because we currently have no place else to put them.

The mental health courts with a sufficiently long track record are, however, providing support for the conclusion that these specialized programs work and work well.  A recent three-year study issued by the Florida Institute of Technology demonstrates that defendants who participated in one mental health court program in Florida experienced a significant reduction in recidivism after receiving court-ordered treatment, as opposed to a jail sentence.  This study examined 118 participants in an unidentified court.  It showed that 90% of the program participants were not re-arrested three months after release.  81% were still charge-free after six months, and 54% had not re-entered the criminal justice system after three years.  Finally, program participants who did re-enter the system were arrested for offenses that were much less severe than their original charges.  Against this backdrop, the study’s authors asserted that the targeted, community-based treatment ordered by the court assisted program participants in developing the social skills necessary to deal with their issues in a way that allowed them to remain arrest and charge-free.

Unfortunately, too many states, including New Jersey, still lag behind in establishing mental health courts.  This is particularly unfortunate in light of the State’s positive experience with drug courts, which are specialized courts designed to deal with defendants whose criminal conduct was motivated by addiction issues.  Experience dictates that drug courts work.  They provide treatment, counseling and therapy for people suffering from drug addiction thereby reducing the likelihood that they will re-enter the system, while also freeing jail and prison resources for violent offenders.  Continue reading ›

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On October 18, 2016, NYPD Sergeant Hugh Barry responded to the home of Deborah Danner in the Bronx.  Barry found Danner, a diagnosed schizophrenic, holding a pair of scissors and experiencing a mental health crisis.  He persuaded her to drop them, but she then picked up a bat and somehow threatened him with it.  He shot her twice in her torso, killing her.  Interestingly, Barry had a stun gun, but did not use it.  Prosecutors who charged Barry with murder this week argue that he ignored his training.  Barry’s union representatives argue that he had to make a split-second decision concerning his response to Danner, and that he did not intend to harm her.

Barry, like every other defendant, is entitled to the presumption of innocence and everything that goes with it.  Further, it is almost impossible for a third party to know precisely what happened at Danner’s home unless they were there.  In evaluating Barry’s culpability, it is important to remember that at the time of the shooting, NYPD had a small, well trained unit whose members were better equipped to respond to calls involving the mentally ill.  Further, only about a year before the Danner shooting, the Department commenced training officers more generally in this area.  However, Barry never received this training.  This is not surprising.  NYPD has approximately 35,000 officers who, collectively, responded to about 157,000 calls last year that involved individuals experiencing some sort of mental health crisis.  However, as of this time, the Department has provided only about 5,800 officers with the more specialized crisis training.

Plans to train more officers are apparently proceeding.  More shifts are being trained, as are more sergeants and high-ranking officers.  The four-day training familiarizes officers with such issues as how to spot signs of mental illness, and how to empathize with someone experiencing a crisis.  During the sessions, officers interact with patients and mental health professionals. Continue reading ›

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In Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 572 U.S. _____, the United States Supreme Court held, among other things, that states cannot execute someone who is mentally disabled.  The Court also left to the states the task of determining whether a death row inmate has a mental disability that could prevent their execution.  Moore v. Texas, 581 U.S. _____ (2017), decided on March 28, 2017, clarifies this aspect of Atkins and Hall.  Briefly, in Moore, the Court held that state courts must utilize established diagnostic criteria when ascertaining whether a death row inmate has a mental disability.  In reaffirming its prior holdings that executing someone with a mental disability is unconstitutional, the Court noted that even mild mental or intellectual disabilities are disabilities, and states cannot execute anyone within the entire category of intellectually disabled offenders.

In 1980, Moore and two others robbed a supermarket in Houston.  At the supermarket, Moore and the others approached a courtesy booth that held two employees.  One of them realized that a robbery was taking place and started to scream.  Moore shot her in the head and killed her.  He fled, was arrested after 10 days, charged with capital murder, tried and sentenced to death by a jury.  Moore’s appeals spanned the next three decades.  In 2014, after a two-day hearing, a state habeas court concluded that Moore had an intellectual disability.  The Texas Court of Criminal Appeals (“CCA”), the final arbiter of habeas petitions in that state, rejected this conclusion and held its own hearing.    The CCA applied the criteria set forth in a 2004 Texas case, Ex Parte Briseno, which are as follows:

  • Did those who knew the defendant well during his developmental stages (family, friends, educators, employers, and other authorities), believe he was mentally retarded, and act in accordance with that assessment;
  • Has the defendant formulated and carried out plans, or is their conduct impulsive;
  • Does the defendant’s conduct indicate that they are a “leader” or “follower”;
  • Are the defendant’s responses to external stimuli rational and appropriate;
  • Are the defendant’s responses to oral or written questions on point, or does s/he wander from one subject to the next;
  • Can the defendant lie effectively; and
  • Did the underlying offense require planning, forethought and complex execution?

Continue reading ›

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Dylann Roof, who infamously shot and killed nine African-Americans engaged in bible study at a Charleston, South Carolina church, chose to represent himself during the sentencing phase of his federal capital trial.  During his “presentation”, he informed the jury that there was nothing wrong with him psychologically and also stated, in essence, that he would do it again.  Any statements Roof made concerning his psychological status were, however, totally false.  At some point during the two months preceding his sentencing hearing, a Court-appointed psychiatrist examined Roof and discovered evidence of numerous mental health disorders.  Additionally, Roof had described himself as severely depressed in the months preceding the shooting.

Significantly, Roof chose to represent himself at sentencing rather than allow his defense team to do so.  His decision on this issue appears to have been calculated and deliberate.  Roof’s defense team wanted to argue to the jury that he should not be sentenced to death for his actions because of his mental health issues.  Roof, however, specifically and unequivocally did not want the jury that was going to determine whether he should die for his crimes to hear of his psychological conditions.  As a result, his jury did not learn about any of the psychiatric evaluations prepared in connection with his case prior to deciding on his sentence.   And the jury is not alone on this issue – the record of Court-ordered evaluations was sealed by the trial judge.  Sealed documents from Roof’s trial are now being slowly released; however, documents pertaining to psychiatric evaluations prepared at the request of the Court or Roof’s defense team are not included.  The transcripts of two competency hearings also remain under wraps.  Thus, the documents that could provide the best indication of Roof’s motivations for his crimes are unavailable.

In fact, the relatively small amount of available information suggests strongly that Roof is something of a psychological basket case.  Motion papers filed by Roof’s defense team prior to trial noted that he suffered from Social Anxiety Disorder, a Mixed Substance Abuse Disorder, a Schizoid Personality Disorder, Depression and, possibly, an Autistic Spectrum Disorder.  The papers also noted that Roof had a relatively high IQ, but that it was compromised by his inability to process information and poor memory.  Further, defense attorneys get to learn a lot about their clients as they work through their cases with them.  Counsel’s papers also included personal observations and assessments concerning Roof’s abilities and actions.  They informed the Court that Roof tended to focus on unimportant details, could not process information from multiple sources, displayed a heightened need for predictability, and was easily overwhelmed.  Had the jury known of these issues, the sentencing result may have been different. Continue reading ›

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June Gorthy met a mental health therapist at a conference in 1998, and then tried to commence a relationship with him.  The therapist rejected her many overtures, which were expressed repeatedly in numerous gifts, letters and telephone messages.  Gorthy then left her home in Colorado, drove to New Jersey, repeatedly contacted the therapist, and was ultimately arrested while sitting on the floor outside his office.  She was carrying a knife.  Guns, ammunition, another knife and an axe were discovered in her truck during a consent search.  Not long after her release from jail, she again began contacting the therapist, and was arrested and charged with stalking and weapons offenses.  She was then admitted to pre-trial intervention.  The conditions of her supervision required her to cease contacting the therapist.  She complied initially, but then called him 74 times during a three-week period.  She was then charged in a superseding indictment with stalking and weapons offenses.

Prior to trial, Gorthy filed a motion questioning her competency, and the trial court found her competent.  Before trial, her attorney served notice of the possible assertion of an insanity defense. This notice was supported by a psychiatrist’s report which concluded that Gorthy was delusional at all times relevant to the commission of the underlying offenses.  The psychiatrist also noted that any decision by Gorthy to not assert an insanity defense would be knowing, but not voluntary or intelligent.

Over her attorney’s objection, Gorthy ultimately refused to assert an insanity defense.  At a hearing, the trial judge explained to Gorthy what would occur if she was acquitted by reason of insanity versus what could occur if she did not assert the defense.  She remained steadfast in her refusal to assert the defense.  The trial court found that her delusional state rendered her incapable of refusing to assert the defense in a knowing, intelligent and voluntary way, and then asserted the defense on Gorthy’s behalf as to the stalking charge.  As to that count, Gorthy was found not guilty by reason of insanity.  The jury convicted Gorthy on the weapons counts.  The trial court sentenced Gorthy to probation on the weapons counts, and civilly committed her on the stalking count. Continue reading ›

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