More on Andre Thomas, Insanity Defense

The case of Texas death row inmate Andre Thomas has prompted a great deal of discussion about the insanity defense and about whether the death penalty is an appropriate punishment for offenders with severe mental illness.

Here's an article that appeared Sunday in the Dallas Morning News ("Case Fuels Texas Debate on Insanity Defense," April 12, 2009):

Everyone agrees Andre Thomas is crazy.

In 2004, he cut out the hearts of his wife and her two children and pocketed them. Before his murder trial, he plucked out his right eye. In January, while on death row, he ripped out his other eye and swallowed it.

Thus far, courts say Thomas is not insane.

His case is a classic example of the complexities of Texas' insanity defense law - and why some mental health advocates are pushing to change it. Several bills pending in the Texas Legislature would do just that.

With medication and treatment, Thomas eventually was found mentally competent to stand trial, because he could communicate and assist his attorney in his defense. At trial, he was found to be sane at the time of the crime because he knew the difference between right and wrong. And he may be found competent to be executed if he understands what execution means and why he is being killed.

Thomas is "clearly 'crazy,' " a judge on the Texas Court of Criminal Appeals wrote in a concurring denial of his appeal last month, "but he is also 'sane' under Texas law."

Death penalty opponent Maurie Levin, an adjunct professor at the University of Texas School of Law, is appalled. "There is something just horribly wrong with a system that permits somebody as severely mentally ill as Andre Thomas to be found competent to stand trial or sane at the time of that crime," said Levin, who consulted with Thomas' defense attorney.

"We need to change the law," said Brian Shannon, a Texas Tech law professor, because a mentally ill person may know their conduct is wrong but be unable to fully comprehend the situation because the illness affects his "emotional state and thinking and reasoning ability."

Some defendants, such as Thomas, know killing is wrong but say God is telling them to do it.

Proposed legislation

Shannon supports bills pending in the Legislature to broaden the law, in all cases, not just capital cases, to say that a defendant must "appreciate," not just "know," the difference between right and wrong and that the wrong should be a moral one, not just legal.

Such changes, which have been proposed in past sessions, would bring Texas closer to the federal standard on insanity. Supporters are hopeful for passage this time, but for now, the Texas law is similar to that in other states.

"Texas is right within the norm," said Bruce Winick, who teaches law at the University of Miami, and psychiatry and behavioral sciences at the medical school. "People aren't going to say, 'Oh, there goes Texas again.' "

Texas, like many states, narrowed the insanity defense in the 1980s amid outrage over John Hinckley's acquittal in the attempted assassination of President Ronald Reagan. Hinckley has been confined to a mental hospital since 1982.

Shannon said Texas law also should change to inform jurors what happens to defendants found not guilty by reason of insanity. They do not "just walk free," he said.

A bill authored by Rep. Senfronia Thompson, D-Houston, would allow jurors to be told that such defendants are sent to a mental hospital if acquitted. Long-term hospitalization is not guaranteed, but "even if someone gets well and is discharged, there's still oversight by the court," Shannon said.

Prosecutors oppose efforts to broaden the not guilty by reason of insanity defense.

"The people who are truly mentally ill, to the degree that their functioning is impaired, I think they are protected by the existing system," said Karla Hackett, who handled the Thomas appeal for Grayson County.

Thomas' attorneys had numerous opportunities to explain the effect of his mental illness to jurors. In the weeks before the murders, Thomas heard voices, behaved strangely and left mental facilities without treatment.

But jurors also heard how he planned the crime, intentionally avoided detection, then turned himself in to authorities. Prosecutors said drinking and drug use also contributed to his psychotic episodes.

"There's no doubt he has mental illness," Hackett said, but " why does he have mental illness?" Under Texas law if the illness is caused or worsened by "voluntary intoxication" such as drug or alcohol abuse, "you don't get to claim insanity."

Levin said the prosecution is implying that "if he hadn't been intoxicated, he wasn't crazy, he was faking. I think Andre's actions since the crime - including gouging out his eye pretrial and taking out a remaining eye three months ago - have proven them wrong."

Jurors weigh in

Jurors heard experts from both sides, but didn't buy the argument that Thomas' mental illness meant he shouldn't be held criminally accountable, Hackett said.

Thomas' appellate attorneys, who declined to comment, claim his trial counsel was ineffective. Appellate courts have disagreed and deferred to the jury's judgment.

"What angers people is when they don't know the whole case," Hackett said. "It's, 'Oh, my gosh, he's got no eyeball, I can't believe they're doing this, he must be crazy.' Well, don't say that until you've been there, until you've sat in the jury box for six weeks."

Hackett said changing the wording of the law would "open up a whole new area of litigation. Now we're going to argue, what does the word appreciate mean? Whose morals?"

Williamson County District Attorney John Bradley said the current law "strikes the appropriate balance."

Informing jurors about what happens if the defendant is found not guilty by reason of insanity would make the process less objective, Bradley said. He thinks jurors might speculate about what could happen and be "frightened into convicting the defendant" if they understood the limits of judicial oversight when a defendant is found not guilty by reason of insanity.

High court ruling?

Winick, the University of Miami instructor, expects the U.S. Supreme Court eventually to weigh in on the issue. So far, the court has ruled only that an inmate must be competent to be executed. Last summer the high court also ruled a mentally ill defendant cannot represent himself in court.

But the court has not ruled on whether an inmate may be forcibly medicated to render him competent - and therefore eligible for execution. That issue may be ripe for the Supreme Court to decide.

Winick thinks the court ultimately may have to rule whether it is unconstitutional to impose the death penalty on someone who is sane but mentally ill. That issue is a "natural extension," he said, of the court's decisions prohibiting execution for the mentally retarded and juveniles because they have less ability to understand the consequences of their crimes.

Ron Honberg, director of policy and legal affairs for the National Alliance on Mental Illness, said it probably would be years before the issue reaches the court. The decisions regarding mental retardation and juveniles relied heavily on the fact that more than half of the states had abolished the death penalty for those individuals. So far, only a handful of states are even considering a
ban on executing the mentally ill. Texas is not among them.

- - - - -
DETERMINING INSANITY

Under current state law, mentally ill defendants undergo tests of mental competence at several stages:

1. Before trial: Defendants must be able to understand the trial process and be able to communicate with their attorney and understand the proceedings. A judge may make the determination at an examining trial where the defendant is represented by an attorney and may present evidence from experts. The defendant may request a jury decision.

2. At the time of the crime: If the defendant claims at trial to be not guilty by reason of insanity, he must prove he did not know his conduct was wrong while committing the crime. As in any criminal trial, he may request a judge or a jury.

3. At the time of execution: If the case results in a death penalty, an inmate cannot be executed if he does not understand what it means to be executed and why he is being put to death. If a claim of incompetence is made, a judge must hold a hearing to determine competency. Lower courts differ on whether an inmate may be forcibly medicated to achieve competency, which makes him
eligible for execution. The U.S. Supreme Court has not ruled on forcible medication.

- - - - -

Editor's Note: A district judge has ordered the forced medication of Texas death row inmate Steven Staley. Staley suffers from severe paranoid schizophrenia and has been hospitalized up to 19 times while on death row. He often has refused to take his medication because he thinks he is being poisoned.

In September 2007, the Texas Court of Criminal Appeals refused to hear Staley's appeal, ruling that the trial court's order was not "an appealable order" and that it would not consider overturning it.

More information on his case is available here and here.

No Forced Medication in New Jersey Case

Law.com has this article from the New Jersey Law Journal regarding a case in which a judge has ruled against forcibly medicating a defendant in order to render him competent to stand trial ("Defendant Can't Be Forced to Take Drug to Make Him Fit for Trial, Judge Rules", 11-12-2008).

This case raises interesting questions as to how the system should handle a defendant who has been indicted but whose mental illness makes it unlikely that he will be able to stand trial any time soon, if ever. Similar questions emerge in the case of death row inmates who have been deemed incompetent to be executed and are not being forcibly medicated (or for whom medication has not restored competency). These inmates remain in legal limbo, where the state is neither seeking their execution nor moving to commute the sentence.

Here's the article in full:

"Federal authorities can't force a mentally ill bank robbery suspect to take an anti-psychotic drug that could make him competent to stand trial, because the side effects might be harmful, a federal judge in Camden, N.J., has ruled.

Prosecutors argued that injections of Haldol had an excellent chance of making paranoid, hallucinating, delusional suspect Wayne Moruzin fit for prosecution on charges he held up a Westville, N.J., bank in 2005.

But Moruzin objected to taking the injections and U.S. District Judge Jerome Simandle ruled on Oct. 30 that there was insufficient evidence that the suspect would respond to the treatment and a chance that his health would be undermined by side effects. Moruzin has a history of drug abuse and hepatitis.

The government failed to establish that the proposed treatment 'is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking into account less intrusive alternatives, is necessary significantly to further important government trial-related interests,' Simandle ruled in U.S. v. Moruzin, cr-05-306.

While the ruling makes no new law, the case is unusual because the authorities have determined that Moruzin does not pose a danger to himself or others. In those cases, it's easier for the government to win the right to administer the drugs by arguing medical necessity.

The U.S. Attorney's Office does have the right to seek civil commitment in hopes Moruzin's condition will improve, but government doctors have testified that competency is not likely to occur without the anti-psychotic drugs that Moruzin refuses to take.

And because Moruzin could be sentenced to up to 30 years if convicted, a very long time would pass before a judge could release him on grounds he had served the equivalent of what a sentence would have been.

'The question becomes, what do they do with the indictment?' asks defense lawyer Mark Catanzaro, who has a firm in Moorestown, N.J. 'If he refuses to take the medicine he is not likely to return to competence. They are not obligated to dismiss the indictment right now but I don't know how long they can keep it open. I can't imagine five years from now there would still be an open indictment hanging out there.'

'It may not be a legal matter, but a practical matter,' Catanzaro says. 'Judge Simandle calls up and screams at [the prosecutors] and says, get this thing off my docket.'

Assistant U.S. Attorney Norman Gross did not return a call on Thursday.

In January 2007, U.S. District Judge Joel Pisano made the same ruling and dismissed the indictment in U.S. v. McCray, cr-04-493, a case involving a mentally ill bank robber. But he did so knowing it wasn't a get-out-of-jail free card for defendant Kevin McCray, who had already pleaded guilty to three bank jobs in Delaware and was serving a 36-year sentence in state prison.

Moruzin was arrested on Sept. 16, 2004, the day after he allegedly walked into the First Colonial National Bank, fired a shot from a chrome-colored gun and fled with $11,588.

Employees said they recognized him because he was a former customer. When police chased him down the next day they said they found some of the money, but not all of it. He admitted to eating a $50 bill, 'and requested a glass of water to help digest same,' the FBI complaint said.

A jury tampering charge was added to the indictment in 2005, after authorities intercepted a letter in which Moruzin suggested to a woman that she appear at his upcoming jury selection and inform potential jurors that he had been set up.

Simandle granted Moruzin the right to represent himself at trial, but the defendant's behavior suggested he might be suffering from a mental defect and Simandle ordered a hearing into whether Moruzin was competent to stand trial.

He wasn't. Based on medical evidence that Moruzin was paranoid and delusional, Simandle wrote in October 2006, 'he presently seems to be unable to have constructive dialogue about this case or his defense due to his hostility and paranoia, and there is little doubt that his unfounded mistrust of his attorney and his attorney's motives hampers his attorney-client relationship.'

Doctors who evaluated Moruzin for the government recommended that the judge order the involuntary administration of anti-psychotic drugs, which would be the normal treatment for anyone with the defendant's condition and had a chance of making him competent to stand trial.

The drug of choice was Haldol by injection twice a month and then once a month.

The courts have given medical personnel the right to order such treatment if the patient is a threat to himself or others, but that wasn't the case with Moruzin.

His situation was covered by Sell v. United States, 539 U.S. 166 (2003), a U.S. Supreme Court ruling that says defendants have a constitutional right to avoid involuntary administration of anti-psychotic drugs but can be forced to comply if the government satisfies a series of legal tests.

Simandle ruled that the government flunked all the tests, starting with the one that gives the prosecution the benefit of the doubt when a crime is particularly serious.

Simandle ruled that although Moruzin is exposed to a possible sentence of 30 years, the strong likelihood of the alternative -- a civil commitment -- would undermine the need for a prosecution, he ruled.

Second, he ruled that there was insufficient evidence that Haldol would restore competency to Moruzin, who has been a drug abuser for 40 years and has been mentally ill for at least 32 years.
What's more, the side effects experienced by many patients, including pseudo-Parkinson's-type physical movements, grimacing, tongue protrusion and lip smacking, could make Moruzin's courtroom demeanor prejudicial, the judge ruled.

Third, the government hadn't proved that alternative treatments, including psychotherapy, were possible.

And finally, the government hadn't proven that Haldol was the appropriate treatment for Moruzin's illness, given the dangers of side effects, he ruled."

http://www.law.com/jsp/article.jsp?id=1202425954334

PA Death Row Inmates Can Be Forcibly Medicated

The Pennsylvania Supreme Court has 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.

Texas courts have addressed this issue in the case of death row inmate Steven Staley, who has been diagnosed with severe paranoid schizophrenia and believes that he is being poisoned by medication. A state district judge ordered the state to forcibly give Staley anti-psychotic drugs. Last fall, the Texas Court of Criminal Appeals ruled that it did not have jurisdiction to rule on whether this constituted cruel and unusual punishment and and took no action on the case. As far as I am aware, Staley remains in prison and on medication.

Here's the story from the Philadelphia Inquirer ("PA high court OKs forced drugging of mentally ill death-row inmates," July 23, 2008):

"Ruling in the case of Thavirak Sam, a Cambodian immigrant who killed three family members in 1989 and has been mentally incompetent for years, the court said that if Sam were left untreated, his appeal would remain in limbo indefinitely.

'Not to litigate the claims delays both justice and finality,' wrote Chief Justice Ronald Castille, who was Philadelphia district attorney when the killings occurred.

Sam's defense attorney, Jules Epstein, said he believed the rulings marked the first time in the United States that an appellate court had approved forcible medication for a death-row inmate who is not a danger to himself or others.

'The decision raises a profound question of what to do with mentally ill death-row inmates . . . who have no family or other dedicated person to speak for them,' said Epstein, a law professor at Widener University.

Deputy District Attorney Ronald E. Eisenberg said the rulings would allow appeals to proceed.

'This way, at least there will be a decision one way or another about the validity of the conviction and sentence,' he said.

The issue is important because the U.S. Supreme Court ruled in 1986 that convicted murderers cannot be executed if they are so mentally ill that they cannot understand why they face a death sentence and what that sentence means.

Sam, now 51, has been on death row since 1991, and prosecutors have been trying for several years to get him medicated so he can be competent enough to decide whether he wants to continue his appeal or be put to death.

At varying points over the years, Sam has imagined that the U.S. Supreme Court had ordered him freed and that a Cambodian prince had interceded on his behalf.

In another Philadelphia case, the high court also ruled that Herbert Watson, convicted in 1983 of shooting to death his estranged girlfriend, must be medicated to determine whether he wants to proceed with his appeal.

Castille wrote in that case that prosecutors were 'attempting to vindicate society's compelling interest in bringing an end to the litigation of this case, which is now well into its third decade.'

In both cases, Castille was joined by Justices Thomas Saylor, J. Michael Eakin and Seamus McCaffery. Justices Max Baer and Debra Todd dissented. ..."
***
Earlier posts on Steven Staley are available here and here.

The Role of Medications (or Lack Thereof) in Recent Acts of Violence?

An editorial that appeared earlier this week in the Dallas Morning-News ("Guns aren't only thing to blame in tragedies," February 18, 2008) sheds some light on why those suffering from mental illness might choose to stop taking their medications:

"With clockwork predictability, we zeroed in on the source of the weapons used by the gunman in last week's appalling slaughter in an Illinois campus classroom.

Where did he buy the guns? Why were they so easy to get? Can't we do more to keep guns away from people who are potentially disturbed?

All reasonable questions, albeit politically difficult to answer. Here are some other questions, though, that perhaps should also be asked:

Why did he stop taking his medicine? Wasn't he being monitored? Can't we do more to make people stay on the drugs that keep them sane and stable?

I'm not saying these questions, which go to the heart of privacy and civil liberty, are any easier to resolve than the intractable and shopworn battle over firearms. But somebody, at least, ought to be asking. ..."

"...mental disorders are frequently part of the equation in the murky psychology of crime. For a lot of patients, sticking with the drugs can mean the difference between stability and chaos.

'One of the main goals of our program is to convince them to stay on their meds,' said Dallas County court appellate judge Kristin Wade, who oversees a special program that offers selected minor offenders strict supervision in lieu of jail time. 'I'd say 90 percent of them do not want to.'

The reasons are varied: Some don't like the side effects; some simply don't have the wherewithal to keep up with doctor visits and pharmacy refills. Many people just quit taking their medicine in the perverse belief that, because it makes them feel better, they don't need it any more.

'I always analogize it to antibiotics,' Judge Wade said. 'And then, there's some part of your brain that's in denial about the reality of mental illness.'

Courts can make keeping up with medicine a condition of bond or probation, but there are no guarantees. Some anti-psychotic medicine can be administered by monthly injection, Judge Wade said, which can help patients stay on track.

But, by and large, we expect people to maintain their own health. If they neglect their medicine and get sick – well, that's their lookout, right?

Perhaps. Yet last week, a New York truck driver was charged with manslaughter for running down two people after he suffered a seizure behind the wheel because he didn't take his medication. In that case, there were serious legal consequences for his neglect.

I'm not suggesting that someone could have followed around Steve Kazmierczak to make sure he took his pills, and I'm certainly not intimating that people with diagnosed mental illness don't deserve our compassion.

We need to recognize, though, that many people with severe mental illness need these drugs to function in society. It's more than a minor issue of personal preference to unilaterally decide to stop taking them.

Mr. Kazmierczak's case, perhaps understandably, set off a fresh round of gun-control debate.

If he had stayed on his meds, he might not have gone looking for guns in the first place."

Read the full editorial.

Star-Telegram Editorial on Steven Staley

Here's an editorial from the Fort Worth Star-Telegram (September 15, 2007) regarding the case of death row inmate Steven Staley, who is being force to take medication for his schizophrenia:

Cruel and unusual?

"There's no denying that the 1989 slaying of restaurant manager Robert Read by a pair of scofflaws fleeing a botched robbery was unnecessary and heartless.

That doesn't diminish the state's responsibility to make sure it is acting humanely in carrying out the punishment for one of those killers, Steven Kenneth Staley.

Asked to weigh disturbingly conflicting interests in Staley's case, the Texas Court of Criminal Appeals essentially punted on Sept. 12. The judges decided only that they didn't have jurisdiction to rule on whether a trial judge's order violates the Constitution's ban on cruel and unusual punishment.

State District Judge Wayne Salvant in Fort Worth had ordered the state to forcibly give Staley anti-psychotic drugs if he wouldn't take them voluntarily. Staley, who has been diagnosed with severe paranoid schizophrenia, says he believes the drugs poison him and won't take them.

But state officials want him medicated so he'll be competent enough to be executed. A Tarrant County jury voted in 1991 that he should get the death penalty for shooting Read after trying to rob a Steak & Ale in west Fort Worth. Two accomplices received long prison sentences.

In a brief opinion, the Court of Criminal Appeals addressed only whether procedural law permits an appeal of Salvant's order.

But this case isn't about proper procedure. It's about fundamental concepts about justice and what the Constitution allows. Staley was lucid when he committed the crime, but his mental health has deteriorated so much that he can be made competent only temporarily and by artificial means.

What, then, can and should the state do?

The U.S. Supreme Court has read the Eighth Amendment's ban on cruel and unusual punishment to bar states from executing mentally ill inmates who don't understand the reasons they are receiving the death penalty. In another context, though, the court has said that prisons can force medication oninmates who are dangerous to themselves or others.

Salvant concluded that treating Staley, whose symptoms are alleviated by psychotropic drugs, would be in his best medical interests. But Staley's lawyers argue that forcing him to take drugs with serious side effects is not only cruel but violates his privacy. And the state has a basic motive beyond Staley's health: his death.

The justice system depends on jury verdicts being carried out unless they are unfair, unjustified or somehow tainted. But even death sentences have been commuted when circumstances warrant it. In this case, it apparently will be up to a federal court to decide what the Constitution demands.

Staley deserves punishment for a brutal crime. But if the state must forcibly drug him to achieve that, then Texans must ask themselves whether another indecent act is being committed and whether the real aims of justice are being served."

http://www.star-telegram.com/225/story/235953.html

Court Dismisses Staley Appeal

Thursday, September 13, 2007

The Texas Court of Criminal Appeals (CCA) has dismissed the appeal of death row inmate Steven Staley, who challenged an order last April from his trial judge that he must take anti-psychotic medication. Staley was convicted in the 1989 slaying of Fort Worth restaurant manager Robert Dorsey Reed during a robbery. He suffers from severe paranoid schizophrenia and has been hospitalized up to 19 times while on death row. Staley often has refused to take his medication because he thinks he is being poisoned.

In 2006, Staley's February 23 execution date was set aside after he was deemed incompetent to be executed. District Judge Wayne Salvant later granted the state's motion to forcibly medicate Staley in order to render him competent enough to be executed. According to the Ft. Worth Star-Telegram, this is believed to be the first time that a Texas judge ordered an incompetent death row inmate to be forcibly medicated. (March 3, 2007)

Staley's attorney appealed the order, arguing that it was unconstitutional for his client to be forced to take drugs that would restore his competency and make him eligible to be put to death. On September 12, the CCA ruled that the trial court's order was not "an appealable order" and that it would not consider overturning Judge Salvant's ruling.

According to Chuck Mallin, the Tarrant County assistant district attorney who heads the office's appellate division, the state will now have to seek a new competency hearing. Staley's attorney plans to appeal in federal court.

Read the article in the Ft. Worth Star-Telegram:
http://www.star-telegram.com/state_news/story/233512.html

***

In its Recommendation and Report on the Death Penalty and Persons with Mental Disabilities, the American Bar Association found that "... treating a condemned prisoner, especially over his or her objection, for the purpose of enabling the state to execute the prisoner strikes many observers as barbaric and also violates fundamental ethical norms of the mental health professions. ... There is only one sensible policy here: a death sentence should be automatically commuted to a lesser punishment (the precise nature of which will be governed by the jurisdiction’s death penalty jurisprudence) after a prisoner has been found incompetent for execution."
http://www.ndrn.org/issues/cj/ABA%20Resolution-%20feature%20article305.pdf

***
Here is the full opinion of the Court of Criminal Appeals:

"This is an appeal from the trial court's order compelling appellant to take his anti-psychotic medication. We will dismiss the appeal.

The record before the Court reflects that appellant is an incompetent-to-be-executed, death-row inmate with no scheduled execution date. Appellant's scheduled execution date of February 23, 2006, was set aside by the trial court based on a finding that appellant was incompetent to be executed. (1) The trial court also found that appellant is schizophrenic and that, as his scheduled February 23, 2006, execution date approached, appellant "refused to voluntarily take any psychotropic medications" to treat his schizophrenia. The trial court also found that appellant "appeared to be asymptomatic" during periods that he "was voluntarily taking" his medication. The trial court concluded that appellant, "during periods when he was not taking medication, posed a danger to himself." The trial court also concluded that, because "symptoms of [appellant's schizophrenia] have, in the past, been alleviated by anti-psychotic medication, treatment by these drugs would be in [appellant's] best medical interests." The trial court ordered that appellant voluntarily take his medication and that he be compelled to do so if he refuses. (2)

Appellant appealed from this order. He claims, among other things, that it is unconstitutional for the State to compel him to take anti-psychotic medication to restore his competency so that the State can execute him. (3) The State claims in a motion to dismiss this appeal that the trial court's order is not an "appealable order" under Tex. R. App. Proc. 25.2(a)(2). (4)

We agree. Section 5(a), Tex. Const., provides, in relevant part, that this Court "shall have final appellate jurisdiction coextensive with the limits of the state . . . in all criminal cases of whatever grade, with such exceptions and under such regulations as may be provided in this Constitution or as prescribed by law." Article 44.02, Tex. Code Crim. Proc., provides that "[a] defendant in any criminal action has the right of appeal under the rules hereinafter prescribed." Appellant does not cite, nor have we found, any constitutional or statutory provision or any rule that would authorize this appeal from the trial court's interlocutory order. (5)

The appeal is dismissed."

http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=15889