Monday, August 25, 2008

Upholding Legal Rights of Mentally Ill Defendants

That's the title of a new posting on the blog Women in Crime Ink, by Lucy Puryear, M.D.:

"On June 19, 2008, the Supreme Court of the U.S. issued a decision in which it held that a higher standard must be used to determine defendants' competence to represent themselves in criminal cases than the test used to determine the accuseds' competence to stand trial. Plainly speaking, this means that while a mentally ill defendant can be found competent to stand trial it does not necessarily follow that they can competently represent themselves as their own counsel.

Fundamentally this could be viewed as a negative decision for the mentally ill. One of our constitutional rights is self-representation in court. We are allowed to tell our story the way we want it told and to plead our case in a manner that we believe is in our own best interest. Now most of us would do a pretty terrible job of maneuvering ourselves through a court case, but sometimes taking your lawyers advice doesn't turn out as you'd hoped. I have heard defendants ask, 'Why didn't my lawyer do this, or why didn't they say that?' Sometimes juries will express, 'Why didn't we hear from the defendant, I want to hear his version of the story.' Not speaking for yourself is not always the right decision.

It becomes very complicated in a case where the defendant is floridly psychotic (hearing voices, speaking in gibberish). Nothing useful will come from that defendant trying to conduct his own trial. The court process becomes derailed and nothing good is accomplished for either the defense or the prosecution. Often the defendant by his very mental state convicts himself with little effort by the prosecution.

But does it make sense to allow someone to be competent to stand trial and yet too ill to represent themselves? Most courtrooms are all too ready to allow a mentally ill defendant to be tried. Recently the Supreme Court of the United States said yes in the Indiana v. Edwards decision.

In July 1999, Ahmad Edwards was discovered trying to steal a pair of shoes from an Indiana department store. After being discovered, he fired a gun at a store security officer and wounded a bystander. He was charged with attempted murder, battery with a deadly weapon, criminal recklessness and theft. He was diagnosed with schizophrenia and subsequently found incompetent to stand trial and was committed to a state psychiatric hospital for further evaluation and treatment. His competency and mental status fluctuated over the course of five years and he was not found competent to proceed to trial until July 2004.

In June 2005, Edwards stood trial. He asked to represent himself but the trial court rejected this request and the jury found him guilty of criminal recklessness and theft but failed to reach a verdict on the charges of attempted murder and battery. The State decided to retry him on the attempted murder and battery charges and he was retried in December 2005. The trial court again found that he was competent to stand trial but not competent to represent himself.

Despite being represented by counsel at his retrial, the jury convicted him on both counts. Edwards appealed, arguing that he had been wrongfully deprived of his constitutional right to represent himself. The case eventually reached the Supreme Court, which addressed the legal question of whether the standard for allowing defendants to represent themselves at trial should be higher than the standard for finding defendants competent to stand trial.

The Court decided that there was a higher standard for representing yourself than the standard for competency. To be found competent to stand trial you must be able to consult with your attorney with a 'reasonable degree of rational understanding.' This means in general that you are able to know what you have been charged with, be able to consult in formulating your own defense, and be able to explain the nature of the pleas involved. (In an interesting aside, Andrea Yates was found competent to stand trial although she initially wanted to plead guilty so that she would be executed by the state which was the only entity who could kill Satan inside of her. She understood the plea but her psychosis was unable to initially allow her to follow her lawyer's advice.)

The Edwards decision states that to be competent to represent yourself you must have the ability for 'organization of defense, making motions, arguing points of law . . . questioning witnesses and addressing the court and jury.' The court is stating that those that are mentally ill may be well enough be found competent but still not be able to represent themselves. While this may appear to be taking away the rights from persons with a disability it may be ultimately in their best legal defense. The Court also comments on the humaneness of the decision, 'A right of self-representation at trial will not affirm the dignity of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel,' Justice Stephen G. Breyer wrote. 'To the contrary, given that defendant's uncertain mental state, the spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling.'

The United States has long struggled with the treatment of the mentally ill. From locking them up in sanitariums for years to locking them up in jails. No one knows quite what to do with the mentally ill defendant who, although it may be obvious that they've committed a crime, it's also obvious that they are seriously disturbed. In Houston alone it is estimated that some 50% of the inmates in the juvenile justice system are seriously and chronically mentally ill. Jail is not a great treatment for a psychiatric disorder.

Texas in particular has struggled with the death penalty and the mentally ill criminal. We have had a history of executing those with known, documented, and profound psychotic illness. This is an embarrassment for our state and a terrible example for respecting human rights. This ruling by the United States Supreme Court is a very small step forward in assuring that those who commit crimes and are suffering from mental illness have both their rights protected and receive fair trails [sic]. What to do with a mentally ill defendant after conviction is the topic of another blog. I look forward to sharing my thoughts on a very complicated issue."


Friday, August 22, 2008

Judge Orders Competency Evaluation for Jeff Wood

Just hours before the execution of Jeff Wood was scheduled to take place, U.S. District Judge Orlando Garcia in San Antonio granted a request by Wood's attorneys to delay the execution so they could hire a mental health expert to pursue their arguments that he is incompetent to be executed. Texas courts had previously refused similar appeals.

Here are excerpts from the story that ran in the Houston Chronicle ("Accomplice in 1996 slaying gets execution delay," August 22, 2008):

"Wood's 'motion presents non-frivolous arguments suggesting (he) currently lacks a rational understanding of the connection between his role in his offense and the punishment imposed upon him,' Garcia wrote in his order.

While Garcia wrote that the evidence was far from compelling, there were enough facts to conclude Wood had made a 'substantial threshold showing of insanity.'

Garcia wrote that his decision was based on the state trial court's refusal to afford Wood fundamental due process protections mandated by the U.S. Supreme Court's 2007 decision [in Panetti v. Quarterman], which blocked the execution of a mentally ill Texas death row inmate because lower courts failed to consider whether he had a rationa lunderstanding of why he was to be killed. (Ed. Note: Panetti has since been found competent to be executed though he does not have an execution date.)

Wood's attorneys say he suffers from paranoia and delusions, but the state does not recognize he suffers from mental illness. ..."


"Garcia appointed attorneys Scott Sullivan of San Antonio and Jared Tyler of Houston to represent Wood and a psychiatrist to work with them.

'We are relieved that we are going through the process whereby the court will determine if he is competent to be executed,' Sullivan said. 'It is a process that is dearly needed in this case.'

Sullivan said he will report the results of his client's psychiatric testing to the court early next year.

If the judge, after considering the psychiatric evaluation, finds Wood competent, he again will be scheduled for execution. If not, he will receive psychiatric care in a prison setting.

Sullivan acted as Wood's court-appointed attorney in an unsuccessful appeal to the U.S. Supreme Court. Since the high court's rebuff, Wood, though indigent, has been without court-appointed counsel. A Kerrville state district court denied Wood's petition to obtain another court-appointed lawyer.

Sullivan said he has provided Wood free legal assistance as the execution date drew near.

In a terse parsing of legal procedures, Garcia noted that Wood, in his latest appeals, was granted neither a court-appointed lawyer nor expert assistance in establishing that he was not competent.

Instead, Garcia wrote, the state insisted Wood make a 'substantial showing of incompetency' before he was entitled to a court-designated lawyer or mental health expert.

'With all due respect,' the judge wrote, 'a system which requires an insane person to first make a 'substantial showing' of his own lack of mental capacity without the assistance of counsel or a mental health expert, in order to obtain such assistance is, by definition, an insane system.'

Garcia conceded that Wood's claim of incompetence 'is far from compelling,' but noted that 'petitioner's delusional thought processes convinced at least one jury he was incompetent to stand trial in May 1997.'

The judge noted that mental health experts who interviewed Wood during the period between his two trials found the killer's 'narcissistic tendencies and almost delusional belief in the inevitability of his ultimate vindication have grown more prominent.'

'Moreover,' the judge wrote, 'the petitioner exhibited a bizarre, seemingly paranoid, clearly suicidal ideation during his capital trial.' During thepunishment phase, Wood banned his attorneys from calling witnesses on his behalf.

Garcia wrote that Wood's petition for a stay 'at least arguably suggest(s) petitioner lacks a rational understanding of the causal link between his rolein his criminal offense and the reason he has been sentenced to death.'"

And here is the article that appeared in the New York Times ("Federal Judge, Chastising the Texas Courts, Orders a Stay of Execution," August 22, 2008):

"With only hours until his scheduled execution, a man won a stay Thursday when a federal judge granted him a hearing to determine whether he was mentally competent.

The condemned man, Jeffery Lee Wood, 35, was to be put to death Thursday evening for a killing committed by his partner in a 1996 robbery. But the execution was put off for at least six months by the decision of the judge, Orlando Luis Garcia of the Federal District Court in San Antonio, who suggested that he would hold the hearing next February or March.

The Texas attorney general, Greg Abbott, had yet to decide Thursday night whether he would appeal the decision, said a spokeswoman for his office, Lauri Saathoff.

Mr. Wood’s lawyers argue that he is too delusional to understand why he is to die and thinks that among other things he is the victim of a Freemason conspiracy.

Judge Garcia wrote that Mr. Wood’s bizarre statements at his trial and in prison 'at least arguably suggest the petitioner lacks a rational understanding of the causal link between his role in his criminal offense and the reason he has been sentenced to death.'

The judge said the Texas courts erred badly in the last week when they refused to hire mental health experts to determine whether Mr. Wood was mad or to appoint a lawyer to represent him at a competency hearing.

The United States Supreme Court has held that it is unconstitutional to execute insane people who cannot understand why they are being put to death or that their execution is imminent.

Judge Garcia said lawyers for Mr. Wood had submitted enough evidence of a delusional state of mind to warrant a hearing on the matter, and he strongly chastised the state courts for denying Mr. Wood a lawyer and a psychologist to help make that claim.

Mr. Wood was caught in a Catch-22, the judge said. The state courts ruled that he had to show he was insane for them to appoint a lawyer and a psychologist to help him prove he was insane. That, the judge said, is 'an insane system.'

Mr. Wood has a very limited intellect and a history of emotional problems, learning disabilities and, in prison, suicide attempts.

'He will become delusional and deny the apparent reality right in front of him,' said one of his lawyers, J. Scott Sullivan. 'He has a delusion a bribewould solve this whole problem.'

Mr. Wood was arrested shortly after his partner in crime, Daniel Reneau, fatally shot a cashier during the robbery of a gas station 12 years ago. Mr. Wood was outside in a getaway car when the shot was fired by Mr. Reneau, who was executed in 2002.

Mr. Wood’s mental problems were severe enough that one jury found him incompetent to stand trial. After spending time in a mental hospital, he was found competent by a second jury. In 1998, he was convicted of murder under a Texas law that makes all who are involved in a felony, like robbery, subject to the death penalty if one of them commits murder in the course of it.

Evidence of Mr. Wood’s mental troubles was never brought before the jury that imposed the death penalty, largely because he became angry and told his lawyers to do nothing during the penalty phase, instructions with which they complied. In his ruling on Thursday, Judge Garcia said that this behavior by Mr. Wood was 'bizarre, seemingly paranoid and clearly suicidal.'"


Additional coverage:

Thursday, August 21, 2008

Jeff Wood Receives Stay of Execution

A federal judge has granted a request to delay the execution of Jeff Wood, in order to allow his attorneys to hire a mental health expert to pursue their arguments that he is incompetent to be executed.

Here's a press release from Texas Defender Service:



Austin -- Today, the Federal District Court granted a stay of execution in the case of Jeff Wood to allow the court to consider compelling evidence that Jeff Wood is too mentally ill to be executed. The Court held that the Texas state courts have not carefully reviewed the question of Wood's competence and that a stay of execution is necessary to ensure that Wood's mental health issues are fully presented and considered by the courts. The Court's Order Granting Stay of Execution is attached.

"We applaud the Federal District Court for upholding Jeff Wood's rudimentary due process right to have his competency evaluated," said Andrea Keilen, executive director of Texas Defender Service, who, along with attorney Scott Sullivan, are representing Mr. Wood.

The Federal District Court authorized an attorney and the assistance of mental health experts, pointing out that the Texas state courts had not complied with the basic due process that the United States Supreme Court required in another Texas case - that of Scott Panetti, a mentally ill death row inmate with a 20-year history of schizophrenia, who was permitted to represent himself at trial dressed in a purple cowboy costume.

In its 20-page order, the Court stated, "With all due respect, a system that requires an insane person to first make "a substantial showing" of his own lack of mental capacity without the assistance of counsel or a mental health expert, in order to obtain such assistance is, by definition, an insane system."

Prosecutors have indicated they will not appeal today's decision. Yesterday, the Texas Board of Pardons and Paroles denied the application for clemency ona vote of 7-0 despite the mental health evidence and fact that it isundisputed that Jeff Wood did not kill the victim in this case, but rather wasoutside the building in a car at the time of the murder. The actual killer, Daniel Reneau, was already executed by the State of Texas in 2002.

Wood was convicted and sentenced to death as a party for the death of Kriss Keeran in Kerr County, Texas. Mr. Wood was convicted under Texas' "law of parties" statute that allows for the conviction of participants in a crime even if they have do not know a murder will be committed or commit murder themselves.

Wood has never taken a human life by his own hands. Keeran's unfortunate death was the result of a reckless scheme devised to steal the money that had accumulated in a Kerrville convenience store over a holiday weekend. Reneau armed himself, entered the store, and shot the victim. Wood was involved in the robbery this case because of his longstanding mental illness that allowed him to be easily manipulated by the principal actor, Daniel Reneau. Wood's emotional and psychological impairments, including his intellectuall imitations, diminished Wood's capacity to anticipate what Daniel Reneau would do inside the convenience store.

At the punishment phase of the trial, influenced by his mental health issues, Woods directed his lawyers not to present any evidence in his defense. Mr. Wood's attorneys made no cross examination of any of the State's witnesses. They presented no evidence or witnesses on Mr. Wood's behalf. And they offered no reasons or arguments why the twelve people sitting on Mr. Wood's jury should extend mercy to him and spare his life.

Wood's mental illness was a critical element at trial and in 1997, Wood was initially found incompetent to stand trial. Mr. Wood suffers today from the same psychological and emotional impairments for which a jury found him incompetent to stand trial in 1997. He has never received psychiatric or mental health care for these impairments. The same deficiencies that prevented Mr. Wood from communicating with his trial lawyer with a reasonable degree of rational understanding prevent Mr. Wood from having a rational understanding of his death sentence and impending execution.

A neuropsychologist who evaluated Wood's competence to stand trial said that Mr. Wood "ha[d] a delusional system, an inability to grasp the reality surrounding the issues specific to this case, his role in it, in the crime, as well as other things that present a direct threat to his own well-being, his own sense of self."

More on TX Inmate Jeff Wood

The following AP story contains more information about Jeff Wood's mental impairments ("Lawyers try to block execution set for Thursday," August 20, 2008). His attorneys have argued that Wood's delusions render him incompetent to be executed.

"Lawyers for condemned prisoner Jeffery Wood say his mental problems led him to get involved in a robbery scheme that left a Texas Hill Country store clerk murdered in a fatal shooting carried out by a partner while Wood sat outside in a car.

Attorneys for Wood were in the federal courts seeking permission to hire mental health experts to pursue their arguments that he was incompetent to be executed Thursday for the January 1996 slaying of Kriss Keeran, 31, at a Kerrville Texaco gas station convenience store.

Texas courts have refused the appeals.

Wood would be the 9th condemned prisoner put to death this year and the 5th this month in the nation's busiest capital punishment state. At least a dozen other Texas inmates have execution dates in the coming months.

Daniel Reneau, the gunman in Keeran's slaying and Wood's roommate, was executed in 2002. Wood, whose 35th birthday was Tuesday, was convicted under the Texas law of parties, which makes accomplices as liable as the actual killer in capital murder cases.

Wood's mental illness 'was a critical element throughout his trial and sentencing,' Wood's lawyers said.

Attorney Scott Sullivan said in a motion rejected Tuesday by the Texas Court of Criminal Appeals that he met with Wood a month ago at death row and Wood told him he believed the trial judge in his case was corrupt but would accept a $100,000 bribe and then deport him to Norway where he couldlive with his wife.

Sullivan said Wood also believed, among other things, that the government will pay him $50,000 a year once he's released and that he's willing to give that money to the judge.

'Wood's delusional beliefs are true to him and always presented in grandiose fashion,' Sullivan said.

While the U.S. Supreme Court has barred the execution of prisoners determined to be mentally retarded, the same blanket prohibition has not been extended to those with mental illness.

Wood, who declined to speak with reporters as his execution date neared, initially was found by a jury to be mentally incompetent to stand trial. After a brief stint at a state hospital, a 2nd jury found him competent.

At his capital murder trial, he tried to fire his lawyers before the penalty phase. The trial judge denied the request but Wood's lawyers followed their client's wishes, called no witnesses and declined to cross-examine prosecution witnesses.

Wood's appeals lawyers urged Gov. Rick Perry to use his authority to grant a 1-time 30-day reprieve for Wood so a mental health expert could be appointed to examine him.

"Given his long-standing history of mental illness, Gov. Perry must not allow Mr. Wood's execution to go forward without allowing the court to rule on this rudimentary due process right," said Andrea Keilin, executive director of the Texas Defender Service, a legal group that represents death row inmates.

The Texas Board of Pardons and Paroles already has refused, on a 7-0 vote, to recommend the governor grant clemency to Wood, whose lawyers compared his case to another convicted Texas killer, Kenneth Foster. A year ago, Foster won a commutation from the parole board, Perry agreed and Foster now is serving a life sentence.

Foster also was condemned under the law of parties, although Perry's explanation for commuting Foster was that Foster and his co-defendant were tried together on capital murder charges for a slaying in San Antonio.

In Wood's case, he and Reneau were tried separately.

At least a half dozen other Texas inmates have been executed under the law of parties.

Reneau and Wood knew Keeran, 31. Wood's lawyers said his mental illness allowed him to be easily manipulated by Reneau, who they called "the principal actor" in the shooting.

Lucy Wilke, the Kerr County assistant district attorney who prosecuted Wood, described him after his 1998 trial as "not a dummy" and called the slaying "cold-blooded, premeditated."

Evidence showed Reneau entered the store before dawn on Jan. 2, 1996, and fatally shot Keeran once in the face with a .22-caliber pistol. Then joined by Wood, they robbed the store of more than $11,000 in cash and checks. Both were arrested within 24 hours.

According to court records, Wood was waiting outside the store and came in after Keeran was shot, then both fled with the store safe, a cash box and a video recorder containing a security tape showing the robbery and slaying. Evidence showed the pair had planned the robbery for a couple of weeks and unsuccessfully tried recruiting Keeran and another employee to stage a phony robbery."

Controversial Execution in Texas Set For This Evening

AFP has the following story about Jeff Wood, who is scheduled to be executed in Texas this evening, barring any last-minute intervention by Governor Rick Perry ("US to Execute Mentally Ill Man," August 21, 2008). Wood was convicted under the "law of parties," even though he was not involved in the shooting death of Kriss Keeran and in fact was standing outside the convenience store when the murder took place.

Wood's attorneys have questioned his mental competence and have argued that he suffers from longstanding emotional and psychiatric impairments for which he has never received treatment.

More information is available from
Texas Defender Service.

Here is the AFP article in full:

"Texas is scheduled today to execute a mentally ill man for conspiracy to murder in a case that death penalty opponents say illustrates why the practice is deeply flawed.

Jeffery Lee Wood, 35, 'has never taken a human life by his own hands,' and 'was outside the building in a car at the time of the murder,' his lawyers said in a statement.

Wood's partner in crime, Daniel Reneau, was executed in 2002 for killing a store manager during a robbery.

'At Reneau's trial, the prosecution had argued that Reneau was the person chiefly responsible for the crime and that Wood's role was secondary,' the Death Penalty Information Centre said.

'Wood was involved in the robbery in this case because of his longstanding mental illness that allowed him to be easily manipulated by the principal actor, Daniel Reneau,' his lawyers argued.

Texas is the top executioner in the United States, with 413 executions over the last 30 years, out of a national total of 1,119 for that period.

It is also one of the few US states that permit capital punishment in a case involving conspiracy to murder, not murder itself.

Seven people were executed for conspiracy after 1976, when the death penalty was reauthorised in the United States, but Wood will be the first to die since 1996.

'Executing someone who didn't kill violates the most basic principles of justice,' David Fathi, US program director at Human Rights Watch, said in a statement.

In right-leaning Texas, support for the death penalty and the state's tough 'law-and-order' approach remains high.

Advocates argue the punishment is just, deters crime and provides comfort to victims' families.

Ambiguity surrounding mental illness also makes Wood's case controversial.

Wood's lawyers asked the governor of Texas to delay Wood's execution by one month, after he had been in solitary confinement on Death Row for 10 years, 23 hours a day, to evaluate his mental health.

In 1986, the Supreme Court effectively banned executing anyone too mentally ill to understand what was to happen to them and why. But it did not establish criteria for evaluating mental competency.

'If a person is only mentally ill and not incompetent, the decisions are less clear and are up to individual judgments by the governor or the jury,' Richard Dieter, director of the Death Penalty Information centre, told AFP.

In March 2008, Richard Taylor, condemned to death for murdering a prison guard 27 years earlier when he was gravely afflicted with schizophrenia, had his death penalty commuted to life in prison in the southern state of Tennessee.

But Kelsey Patterson was executed in Texas in May 2004 despite having been diagnosed with paranoia and schizophrenia prior to his criminal act.

The Pennsylvania Supreme Court recently authorised the state penal system to administer, by force if necessary, psychotropic medicine to two convicts on Death Row, to render them mentally competent and subject to execution.

The case of Raymond Riles, on death row since April 2, 1976 - more than 32 years - is emblematic of the ambiguity surrounding mentally ill inmates.

His execution was delayed three times, and after 1986 the Texas Department of Criminal Justice never set a new date for it. But he is still on Death Row."

Monday, August 18, 2008

LA County Jail - The Nation's Largest Mental Institution

NPR's recent series on the U.S. prison population featured a story entitled "Inside The Nation's Largest Mental Institution," which focuses on the 1,400 mentally ill inmates in the Los Angeles County Jail.

Read a summary of the story or listen to the segment in its entirety here.

More on the Private Mental Health Defender's Office in Lubbock

Texas Lawyer reports that the Lubbock Criminal Defense Lawyers Association (LCDLA) aims this fall to create a private defender's office that will represent indigent defendants with mental health issues ("First and Goal: LCDLA Close to Creating Nonprofit to Run Private Defender's Office," August 11, 2008). The Texas Task Force on Indigent Defense awarded the county a four-year, $407,000 matching grant to start the office.

Here's an excerpt from the article:

"Concerned that mentally impaired indigents too often languish in their jail, Lubbock County officials are trying a new approach - a private defender's office. It's a hybrid; a cross between a public defender's office and the assigned counsel system used in most Texas counties.

Lubbock solo Ted Hogan says the Lubbock Criminal Defense Lawyers Association (LCDLA) is creating a nonprofit entity that will seek to contract with the county to run the private defender's office, which will assign attorneys in private practice to represent indigent defendants who are mentally ill or retarded. The courts would no longer appoint attorneys in those cases.

David Slayton, Lubbock County's director of court administration, says the County Commissioners Court will decide Aug. 25 whether the county can negotiate a contract with the LCDLA's nonprofit entity without going through a formal bidding process. The aim is to get the private defender's office up and running this fall.

'This literally is the first of its type in Texas,' says James D. 'Jim' Bethke, director of the Texas Task Force on Indigent Defense, of the office being developed in Lubbock.

Bethke says he originally talked to Lubbock County officials and the criminal-defense bar about starting a public defender's office for mental health, but the idea did not generate much enthusiasm.

Slayton says a public defender's office would provide possibly two or three attorneys to represent indigents with mental health issues. The private defender's office will have access to attorneys in the private defense bar, and between 10 and 15 attorneys are expected to take the cases, he says.

In April 2007, Travis County opened the first stand-alone public defender's office for mental health cases. Jeanette Kinard, director of the Travis County Mental Health Public Defender, says her office is part of county government.

Kinard says her office, which has two attorneys, two social workers, two caseworkers and support staff, handles only misdemeanor cases for clients with certain types of mental illnesses, such as schizophrenia, major depression and bipolar disorder.

The office is funded to handle 500 misdemeanor cases a year, Kinard says. 'I think we'll end up with 400, which will be a more reasonable caseload,' she says.

Lubbock County is familiar with the concept of a public defender's office. Opened in late 2007, the West Texas Regional Public Defender's Office for Capital Murder Cases is based in Lubbock but serves 85 counties, extending from the Panhandle to Central Texas. Slayton says that since there are substantially fewer capital murder cases than other types of cases, the private defender's office for mental health is expected to have a bigger impact than the regional public defender's office.

The jail incarcerates about 13,000 inmates a year, Slayton says. Even with a conservative estimate that 10 percent of the inmates are mentally impaired, that would be about 1,300 cases, he says.

Bethke says a public defender's office is a governmental entity that employs lawyers whom a court can appoint to represent indigent defendants.

In contrast, a nonprofit entity will run the private defender's office in Lubbock County, and that entity will assign private practice attorneys to handle the cases, Bethke says.

Philip Wischkaemper, an LCDLA member and the capital assistance attorney for the Texas Criminal Defense Lawyers Association, says attorneys who want mental health case assignments will go through an application process in which a five-member peer review committee will scrutinize their experience and qualifications. Wischkaemper says he selected the committee members - with the agreement of LCDLA president Laurie Key - based on the fact that all of them are well-respected in Lubbock and do not take court appointments, especially in mental health cases. The peer review committee - made up of former U.S.Magistrate Judge J.Q. Warnick and criminal-defense attorneys Bill Wischkaemper (Philip Wischkaemper's brother), Charles "Chuck" Lanehart, Danny Hurley and Floyd Holder Jr. - also will monitor the performance of the attorneys assigned to represent indigent defendants with mental health problems, Philip Wischkaemper says. All the peer review committee members, except Warnick, are LCDLA members, he says. Key could not be reached for comment.

Wischkaemper says the LCDLA held a meeting of its membership after Bethke suggested the creation of a private defender's office in Lubbock. The association formed a committee of members to work on the project, Wischkaemper says.

Hogan, the LCDLA's point man for the project, says, 'The hope is in the long run we can set this up so it will run more efficiently than a public defender system or that the county can do with an assigned-counsel system.'

Lubbock County Judge Tom Head says county officials are 'very much in support' of the private defender's office, because they believe it will help keep the mentally impaired out of the jail. Head says inmates with mental health or mental retardation issues could make up as much as one-third of the jail population, although Hogan estimates their numbers at closer to 20 percent to 25 percent.

Drue Farmer, judge of Lubbock County Court-at-Law No. 2, is another supporter of the private defender concept, because the private-practice attorneys who will be assigned to represent mentally impaired indigents must receive training on how to recognize different types of mental illnesses as well as on competency and insanity issues. 'We felt like it was very important to have counsel specially trained to handle these cases,' she says.

Farmer says Lubbock County currently has a mental health wheel from which judges appoint attorneys. But while training on mental health issues is available to the attorneys on the wheel, their participation in the training is voluntary, she says.

Hogan says attorneys who currently represent mentally impaired indigents 'aren't sitting on their hands' while their clients sit in jail. But Hogan notes the attorneys don't have the resources to adequately serve these clients, who he says can take up an inordinate amount of attorneys' time.

The private defender's office should be able to represent mentally ill or retarded clients more efficiently, Hogan says. As planned, he says, the office will hire one lawyer who will serve as a full-time administrator. Two investigators/social workers also will be in the office to work with the mentally impaired clients, assisting them in meeting basic needs, such as finding housing and obtaining food stamps or checking on their whereabouts when they are scheduled for court appearances.

Hogan says many of the indigents with mental health issues are homeless and it has been difficult for attorneys to keep up with them. 'It's like herding cats,' he says.

Also as part of the office, the county will employ professional mental health workers who will screen jail inmates for mental illness or retardation and identify those who possibly could be diverted from the criminal justice system to treatment facilities. ..."

The article goes on to describe the model for this private defender program and provides information about other innovative approaches to mental health issues in Lubbock County. This includes a partnership between Lubbock Regional Mental Health and Mental Retardation and jail staff that aims to provide services to inmates with mental health issues and, ultimately, divert them from the corrections system altogether.

Read the full article.

Earlier posts on this program are available here and here.

More on George Banks Competency Hearing

The Citizens Voice, out of Wilkes-Barre, Pennsylvania, has this update on the competency hearing of death row inmate George Banks ("Final expert says Banks incompetent for execution," August 16, 2008):

"The psychological disorders that have turned mass murderer George Banks into a rambling paranoid have not improved since before he was scheduled to be executed in December 2004, psychiatrist Richard G. Dudley Jr. said Friday during the second day of testimony in Banks’ competency hearing.

Dudley, the third and final psychological expert called by Banks’ attorneys, said the killer’s psychosis and vast delusions have made him incompetent to be executed, to petition for clemency or assist his attorneys.

Banks, 66, went on a shooting spree in September 1982 that left 13 people dead, including four girlfriends, who ranged in age from 23 to 29, five of his children, ages 1 to 5, and four others. He has been on death row since June 1983.

Banks believes, 'Jesus from Washington, D.C.' vacated his sentence, but a conspiracy has kept him incarcerated at the State Correctional Institution here, about 30 miles northwest of Philadelphia, until he renounces God, Dudley said.

'The central theme of the delusions is that Jesus, (or) God has pardoned him and therefore there is no case against him,' Dudley said, echoing the testimony of the two defense experts who appeared Thursday — psychiatrist John O’Brien and forensic psychologist Jethro Toomer.

Dudley said Banks believes the state Department of Corrections would go to elaborate measures to push him to renounce his religious beliefs, including subjecting him to a simulated execution.

'He said Jesus has jurisdiction over his life, not man, not the courts,' Dudley said.

Those beliefs, combined with a rambling, unfocused and illogical thought process, make it impossible for Banks to comprehend the meaning and totality of his death sentence, Dudley said.

'As a result of this delusional system, he does not appreciate his death sentence,' Dudley said. 'The content of his delusions are directly related to his understanding of the crime and his punishment.'

Dudley evaluated Banks prior to his 2004 execution, which was stayed by a last-minute ruling from the state Supreme Court, and in April, in preparation for the competency hearing.

Dudley said Banks’ behavior during the April meeting prevented him from asking questions designed to gauge Banks’ understanding of his circumstances and possible execution.

'He blurted out various things,' Dudley said. 'I just stood there and listened to him.'

Jennifer Buck, an attorney with the state Attorney General’s Office, questioned how Dudley could determine that Banks is incompetent to face death without asking about the death penalty.

'You didn’t need to ask him?' Buck asked.

'Not again, no,' Dudley said.

'You only needed to ask him that once?'

'It would have been nice to ask him,' Dudley said. 'If he had been cooperative.'

The prosecution’s psychological experts, psychiatrists Timothy J. Michals and Stephen Mechanick, are scheduled to testify Monday.

Senior Judge Michael T. Conahan, who has presided over recent proceedings in the case, prevented Michals from testifying at a competency hearing in February 2006 after Banks’ attorneys said the psychiatrist met with Banks without their knowledge.

Conahan deemed Banks incompetent to be executed, but that decision was overturned on appeal by the state Supreme Court because the prosecution case had been compromised by the exclusion of Michals and the use of another expert, psychiatrist Michael Welner, who had little time to prepare.

In a September 2005 report, Michals said Banks had the competency to be executed.

'It is my opinion that although Mr. Banks has a psychotic disorder,' Michals said. 'He had sufficient mental capacity to understand that he has been tried, convicted and sentenced to death as a result of the death of 13 people.'

Read more about the Banks case here.

Wednesday, August 13, 2008

TX Death Row Inmate Raymond Riles - Incompetent to be Executed, Still on Death Row

KPRC Local 2 news in Houston recently investigated the case of Texas death row inmate Raymond Riles, who has been declared incompetent to be executed on numerous occasions. Riles has spent more than 30 years on death row and will remain there indefinitely, despite the fact that the state is not seeking an execution date (and has not done so since 1986). All parties agree that Riles sufffers from severe mental illness and does not meet the standards for competency (awareness of his execution and the reason for it).

In its 1986 decision Ford v. Wainwright, the U.S. Supreme Court ruled that it was unconstitutional to execute someone who does not understand the reason for or the reality of his or her punishment. The Ford decision left the determination of insanity and competency for execution up to each state. It did not include any guidance to states as to how to handle the cases of those found incompetent to be executed.

The American Bar Association Recommendation on the Death Penalty and Persons with Mental Disabilities, which has been endorsed by the American Psychiatric Association, the American Psychological Association, and the National Alliance on Mental Illness, states that if, after exhausting his or her appeals, a death row inmate has been found incompetent to be executed, the sentence of death should be reduced to the sentence imposed in capital cases when execution is not an option.

Read a verbatim transcript of the story ("Is 30 Years Too Long on Texas Death Row?"), which aired on August 12, 2008. You can also watch the video at, which includes footage of KPRC's death row interview with Raymond Riles.

"Tonight, Local 2 Investigates digs into the case of an inmate from Houston who has been on death row for more than 30 years. So why hasn't Raymond Riles been executed?

When you read and hear his first TV interview in more than 20 years, you may understand why.

His case has sparked a debate of what to do with inmates spending decades waiting for an execution. Local 2 investigative reporter Amy Davis uncovers why Riles' case could change the future of Texas' death row.

'They told me they were going to kill me unless I stopped preaching my mystic gospel,' Riles told us during an interview from death row at the Polunsky Unit in Livingston. 'God is the greatest and I didn't come to die on death row.'

As Riles speaks, you're almost able to read his mind -- by not understanding it.

'They're trying to silence me because I know about the satanic secret societies of the TDC shadow government e-system,' said Riles.

His mind appears mixed-up, full of delusions and paranoia. This is the latest chapter of Riles' story -- 33 years of crime and punishment.

Riles committed his crime back in 1974. He was convicted of killing Houston used-car salesman John Henry during a 1974 robbery. A Harris County jury sentenced Riles to death.

But 33 years later, Riles still waits on death row with no execution date and no plans for one.

'It's because he's incompetent to be executed,' explained Roe Wilson, an assistant district attorney for Harris County.

Wilson handles death row appeals and says Riles case is that simple. Mental health experts have ruled Riles doesn't understand why his execution is imminent, or understand exactly why he's being executed. That makes him mentally incompetent, according to the U.S. Supreme Court.

'If you don't meet the standard, then you cannot be legally executed,' said Wilson.

During our interview, Riles told us he believes God committed his crime, thinks he was chosen to release men from death row, and believes a lethal injection would not kill him.

Riles also blamed God for his prison suicide attempt in 1985. Riles set himself on fire in his cell.
'God did that,' said Riles. 'God consumed me in fire.'

In 1986, Riles was inches from the death chamber in Huntsville and just minutes from execution.

That's when a federal court issued a last-minute stay. It was the fourth time the state scheduled Riles' execution. A new date hasn't been scheduled for the past 22 years.

'As long as he's living, I'm still living,' said Helen Riles, Raymond Riles' sister. 'We're still living.'

Helen Riles spoke to us from her Houston home. She's calls her brother's three decades on death row 'bittersweet.'

While Raymond Riles hasn't been executed, Helen Riles is fighting to get her brother off of death row and into a mental health facility instead.

'I don't think he could ever come all the way back,' said Helen Riles. 'I really don't. But he would able to feel more comfortable and get more rehabilitation.'

And that's the debate. If an inmate can't be executed, should he or she remain on death row?

A new call is coming from a nationwide association of attorneys, death penalty opponents, and a U.S. group of mental health experts to change the way mentally ill inmates are treated on death row.

They all say a life sentence is more appropriate.

'It makes no sense for the state to keep someone on death row under severe conditions, when he's been recognized as severely ill," said Kristin Houle', with the Texas Coalition to Abolish the Death Penalty in Austin.

On death row, all inmates spend 23 hours a day in their cell.

Houle' calls that cruel and unusual punishment for the mentally ill, claiming it gives inmates little access to psychiatric care.

The state disagrees.

'That really is not a factor in this case,' said Wilson. 'What the factor is, is that (Riles) was competent when he was tried and given a legal sentence. His confinement is still legal and he simply has a condition right now that makes him not eligible for execution. But that could change.'

That's right. Wilson says Riles is still periodically tested by doctors. His mental state and his future could always change.

Right now, Texas law doesn't allow a death sentence to be replaced by a life sentence.

Wilson argues Riles' punishment stands, no matter what his mental state is now. Many call that justice for the victims.

So, at age 58, Raymond Riles remains on death row -- 33 years and counting. His family and activists say they'll continue to work to change the law that keeps him there.

'I'm not just going to let him sit there and not fight for him,' Helen Riles said.

Courts and doctors have ruled five other death row inmates from Harris County are also mentally incompetent to be executed. Any change in Riles' case or state law could have a direct effect on many Texas inmates.

However, those inmates are all tested periodically. If they are ruled competent at any time, an execution date can be scheduled."

Tuesday, August 12, 2008

Improving Interactions Between Law Enforcement and the Mentally Ill

A recent issue of Newsweek magazine reports on programs aimed at improving police officers' response to persons with severe mental illness ("Cops and the Mentally Ill," July 31, 2008). The law enforcement community is on the front lines in addressing the needs of those with severe mental illness, given the shortage of services and treatment facilities.

The article points out two interesting studies:
  • A 2005 study by researchers at the Feinberg School of Medicine at Northwestern University suggested that persons with serious mental illnesses are 11 times more likely than the general population to be victims of violent crime, with perhaps as many as 1 million crimes committed against those with serious mental-health issues each year.
  • According to a 2000 report by the federal government's National Institute of Justice, once a mentally ill person is arrested for disorderliness, that person is labeled a "criminal" and will likely continue to be arrested when acting out in the future, rather than receive treatment.

Read the full article here.

Is Mentally Ill Inmate Competent to be Executed?

Here's an article from The Scranton Times-Tribune regarding Pennsylvania death row inmate George Banks ("Banks' mental capacity will be at issue at hearing," August 11, 2008), who suffers from severe mental illness. A hearing will take place later this week to determine whether Banks should be declared incompetent to be executed. He was found incompetent in 2006, but the state Supreme Court overruled the judge's decision.

Last month, the Pennsylvania Supreme Court ruled that two death row inmates with mental illness can be forcibly medicated in order to render them competent to continue their appeals and face execution.

A full timeline of the case accompanies the article, excerpted below:

"George Banks sits in his cell at the State Correctional Institution at Graterford for days at a time, alone with the fantasies and delusions that have played in his psyche since before the 1982 killing spree that left 13 people dead in Wilkes-Barre and Jenkins Township, including five of his own children.

He often remains behind, locked away in his own world, during the hourlong period each day when he and the other inmates in the prison’s death row unit are permitted to leave the solitary confinement of their cells for exercise and recreation.

Banks, 66, has lived at SCI-Graterford, a maximum-security facility in Montgomery County, about 30 miles west of Philadelphia, since 1985.

A competency hearing scheduled to begin Thursday at the prison could determine whether he dies there.

'You’ve got a man who is severely mentally ill, there’s no dispute on that,' Banks’ attorney, Luzerne County public defender Al Flora Jr., said. 'The only issue is whether he dies in prison as a result of lethal injection or whether he dies in prison as the result of a natural life.'

Banks has lived in the shadow of death since June 1983, when a jury convicted him of the murders of at least four girlfriends, his five children, ages 1 to 5, and four others, and then imposed a capital sentence.

He has survived on the strength of the appeals filed on his behalf in state and federal courts, and on the weakness of his own mental state.

Two years ago, Banks claimed God had granted him clemency and the U.S. government and the Islamic faith were conspiring against him.

In 2004, he claimed he was fighting a 'private war' with former President Bill Clinton and Monica Lewinsky, the former White House intern with whom Mr. Clinton had a sexual relationship.

Since his arrest in September 1982, Mr. Banks has attempted suicide at least four times and has gone on prolonged hunger strikes, including one in 2003 that caused his weight to drop more than 100 pounds.

Luzerne County Senior Judge Michael T. Conahan, who will preside over the competency hearing, must look beyond the delusions to determine Mr. Banks’ competency, Mr. Flora said.

The judge must weigh two questions: whether Mr. Banks understands he is under a sentence of death and that he will be executed, and whether he is competent to assist his attorneys in petitioning the state Board of Probation and Parole and the state Board of Pardons for clemency.

Judge Conahan ruled Mr. Banks incompetent on both criteria in February 2006, but that determination was overturned on appeal by the state Supreme Court because the judge had prevented a prosecution psychiatrist, Timothy J. Michals, from testifying.

'It is in my opinion that although Mr. Banks has a psychotic disorder, he has sufficient mental capacity to understand that he has been tried, convicted and sentenced to death as a result of the death of 13 people,' Mr. Michals said in a September 2005 report.

Mr. Michals said Mr. Banks had told him the conviction and death sentence, 'had been vacated by God and his continued incarceration and execution was the result of a wide-range conspiracy between the correctional officers, prosecutors and other government officials.'

Psychiatrists deemed Mr. Banks competent to stand trial in 1983.

Mr. Flora, using an insanity defense, described Mr. Banks at the time as 'delusional' and 'psychotic,' and suggested the 'torment and agony' of a childhood in an interracial home, coupled with living in a racist environment, had led 'to the destruction of George Banks.'

'Competency to be tried is different than competency to be executed,' Mr. Flora said last week. 'You can go through a whole round of appeals on his competency to be executed and you could come back four years later and his condition could have deteriorated.'

If Judge Conahan rules Mr. Banks competent to be executed, Mr. Flora said he could challenge the decision in the state Supreme Court and, if unsuccessful, take the case to the federal court system.
'You would be looking at years of appeals,' Mr. Flora said.

If Judge Conahan rules Mr. Banks incompetent, the decision must be affirmed by the state Supreme Court before Mr. Banks is removed from death row. ... "