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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. (
Facts of the case excerpted from the NAMI newsletter.) 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. 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.
by Robin Sax
There’s not a week that goes by when someone doesn’t ask me, “How can you prosecute sex crimes without getting ill, jaded or miserable?” Well, while my job is challenging, I consider it an honor and privilege to give young victims a voice, a place to regain trust, and a place to heal. But today, I‘d like to tackle a different question: “What would you do to the change the system?”
So, if I were judge, jury, and lawmaker, here’s my answer. And by the way, I’ll be brutally honest, even if I think you won’t like what I have to say.
1. First, I believe there should be mandatory sentencing schemes in all jurisdictions. Mandatory sentencing schemes should not require specific additional factors that a jury would have to prove beyond a reasonable doubt. Under many current statutes, a case involving two victims would make a case eligible for a mandatory life sentence. If, however, the jury convicted one victim and not the other (which happens very often because jurors like to throw a “bone” to the defendant), then the case may no longer hold a mandatory life sentence.) I believe the existence of the multiple-victim factor alone should qualify a case for an enhanced penalty.
2. I believe that the Supreme Court should overturn the Crawford decision. Under current law, if a victim dies or is legally unavailable for a court appearance, the victim’s prior statements made to the police or hospital would be inadmissible, due to the defendant’s right to confront and cross-examine the witness. I am in favor of the law prior to the recent Crawford decision that allows for admitting victims' or unavailable persons' previous statements made under certain conditions that ensure reliability.Why should a defendant benefit from the death or legal unavailability of his or her victim?
3. Our jury system sounds wonderful in theory Under the Constitution, each person charged with a crime is entitled to have the case heard by a jury of one’s peers., “peers” are people selected from our community who listen to the evidence and determine what the facts are in the case, while the judge decides on the legal issues.
“A jury of one’s peers” is based on the supposed impartiality of a random sample of the population. It assumes that the average accused will share more similarities than differences with a random sample of the population, and therefore will be judged by people who are likely to give the accused a fair shake.
The problem with this theory is twofold. First, those of us who are not “average” will have a much smaller likelihood of having a jury that comprises our peers. Second, the mechanisms of the “voir dire” process, or jury selection, increases the problem by creating juries composed of a greater percentage of poor, uneducated, unintelligent people, with very little experience with the justice system, than their natural prevalence in society.
The solution to this imbalance is a professional jury system. Professional jurors would be laypersons educated for the task. They would be taught to understand the rules of evidence, the trial process and instruction, and would be tested thoroughly on their objectivity. Most important, a professional jury would have no motivation other than ensuring that due process was followed. The complexities, nuances, and intricacies involved in a child sexual assault warrant a professional jury both because of the difficulty of the case and the great danger of releasing a predator back into society if a jury makes the wrong decision.
4. We need better supervision of registered sex offenders. Some ways to improve supervision include requiring registered sex offenders to register their computer Internet accounts, IP addresses, telephone numbers--not just their physical address. They should be required to inform authorities of international travel and there should be an integrated international registration system (like that for known terrorists) to monitor the “comings and goings” of registered sex offenders. Registered sex offenders should also be subject to lifetime counseling and therapy, and not only conditions of parole or probation.
5. Money and time should be available to train the professionals in this field. This goes for all the agencies involved, including law enforcement, prosecutors, advocates, therapists, judges, probation, and parole officers. It's important, of course, to stay current on the latest advances and laws in this area. Additionally, studies show that training and resources alleviate burnout and serve to inspire and motivate people in this line of work.
6. Right now, it’s standard procedure to assign prosecutors and law enforcement to handle sex crimes for a limited time before rotating them to another area of crime. The benefit of being in a vertical unit (handling all aspects of a case from beginning to end) is that there is a high degree of specialization and high accountability for those involved.
The whole theory behind vertical prosecution is to have a group of people trained in this highly difficult area so that they become specialists. However, all too often, once a prosecutor or detective reaches about a year or so in the unit, they get transferred.The bureaucratic thinking is that prosecutors and detectives should be cross-trained in all areas of criminal law, and that specializing narrows a prosecutor’s or detective’s skills. In the sex crimes area, where cases are so sensitive and the victims have their own special needs, I believe that lawyers and detectives should be assigned for a minimum of five years. Also, I believe lawyers and law enforcers should be assigned to these units only if they want to be there. This is not the type of unit for someone who doesn’t have the requisite passion or a tough enough stomach to handle these cases.
7. Specific courtrooms should be designated and designed for child sexual assault (and child abuse) cases, so they are 100% devoted to the needs and realities of kids who testify. For example, courtrooms can be painted in “kid friendly”colors like pastels, so they look more like a classroom than the typical large, windowless, intimidating enclosure. The chairs on the witness stand should be appropriately “kid sized” and adjustable so that a child’s feet can reach the floor. Further, the judges in these cases should be especially trained to handle them, and to be very familiar with the laws pertaining to child testimony. They would thus be able to use their discretion to protect the child and assist the child when giving testimony. This system can be modeled after the drug courts that are in place in many jurisdictions, where specific courts are devoted to drug addicts and focus on treatment, as opposed to punishment. These courts work with the defendants to address their issues and are sensitive to the needs of addicts.
8. There should be limits to an attorney’s ability to cross-examine and badger kids. One of the basic tenets of our Constitution is that criminal defendants have the right to confront and cross-examine the witnesses against them. It often seems that our criminal justice system offers greater protection to the accused than to the child victim involved in a sexual abuse prosecution.
9. Finally, in recent years, legislators have been concerned about defendants who escape punishment for sexually molesting young children because the children are afraid to testify in the defendant's presence. To address this problem, many states have enacted special rules that authorize judges--in certain situations--to allow children to testify via closed-circuit television. The defendant can see the child on a television monitor, but the child cannot see the defendant. The defense attorney can be present where the child is testifying and can cross-examine the child. Closed-circuit TV should be allowed more readily than its current use.
10. Currently, admissibility of expert testimony requires the prosecutor to jump thorough a number of legal hoops. And even when admitted, the admissibility tends to be for extremely limited purposes. Expert testimony should be welcomed and encouraged (from both sides) in order to assist jurors in understanding the unique issues when it comes to child sexual assault. The very things that the defense highlights as a way to discredit a child are the factors that can make a disclosure more credible if put into perspective by an expert. These include delayed disclosure, recantation, minimization, self blame, lying first in order to protect the abuser or fearing they are in trouble, and understanding why “smart” kids engage in risk-taking behavior.
11. Defense attorneys should be as sensitive and compassionate about victims as they are about their own clients. There must be legislation to stop re-victimizing the victim through the court process and to cease casting blame on the victim for being a crime victim.
12. Cases involving children should go to trial as soon as possible and definitely no later than six months from the filing. Currently, the most expeditious cases are tried in roughly a year from the date it was filed (not necessarily reported). Unlike fine wine, an aging case never gets better for the prosecution as time goes by.
13. As an alternative to jail and/or prison there should be live-in/lock-down facilities that are meant to work with, treat, and study sex offenders. Like drug rehabilitation, there should be facilities where we can take a low-level sex offender off the streets to ensure the safety of the public and treat them (if possible) or at least learn from the offender.
14. There should be amendments to the rule against double jeopardy (which means you can’t be tried twice for the same offense) to enable the re-opening of proceedings against acquitted defendants where there is compelling new evidence. This will apply to a range of grave offenses, including those involving serious sexual offenses.
15. There should be a total ban, or at least limitations, on what a child sexual assault defendant should be allowed to do in the criminal process. For example, if representing himself, he should not be able to personally direct or cross-examine the complaining children who are witnessing against him. He should not be able to access all the discovery information that a defense attorney (an officer of the court) would normally receive, such as the victim’s school records, rape exam photos, and other confidential records.
16.If a case is appealed after a conviction, it may take two or three years before a court determines whether or not the defendant is entitled to a new trial. If the defendant is granted a new trial, the prosecution would need to bring the victim in to testify again. The new or old testimony could then be presented as “inconsistencies” from the first testimony, thus casting doubt on the victim’s credibility. If the cause for appeal has nothing to do with the victim’s testimony, the victim should not be made to return to court and the entire prior testimony should be stipulated as accurate and complete.
There is no greater concern in society than the concern people have for children. Whether it is providing a better earth, protecting kids from wars, terrorism, criminals, or abuse, our society prides itself on shielding our young. And with good reason--children are powerless to take on the perils of our world on their own. We can give children the voice that they so desperately deserve if our leaders, lawmakers, and voters spoke up on and acted to protect the children we brought into this world.
POSTS FROM ROBIN SAX DO NOT REPRESENT THE OPINIONS OF THE LOS ANGELES COUNTY DISTRICT ATTORNEY OR THE LOS ANGELES COUNTY DISTRICT ATTORNEY'S OFFICE.
by Lucy Puryear, M.D.
