Extracting Their Pound of Flesh, A Fate Worse than Punishment: Strategies to Defend Persons Subject to Prosecutorial and State Hospital Caprice

Dennis Feld, J.D., Michael Recco, J.D. and Arthur Baer, J.D.

Persons found incapacitated to stand trial, or not guilty because of mental disease or defect, may be subject to the caprice of prosecutors and state hospitals, both seeking to extend their authority and control over the defendant’s liberty. In this workshop we will explore advocacy strategies on behalf of persons subject to both the criminal justice and mental health systems, using three examples, revoking an NGRI plea, overreaching orders issued on relief granted under Jackson v. Indiana, and forced medication orders.

I. Background Persons found incapacitated to stand trial, or not guilty because of mental disease or defect, may be subject to the caprice of prosecutors and State hospitals, both seeking to extend their authority and control over the defendant’s liberty. In this workshop we will address problems and issues related to being simultaneously subject to both systems, and strategies for advocacy, and how to protect our client’s liberty. We will use three examples: revoking a plea of not guilty by reason of insanity, challenging the overreach of orders issued upon relief granted under Jackson v Indiana, 406 U.S. 715 (1972), and challenging medication over objection orders.

II. Objectives Using our first example, we will explore a defendant’s right to be fully informed of the consequences of accepting a plea of not guilty by reason of insanity, the defense attorney’s responsibility to fully advise their clients of those consequences, what can be done if a defendant has not been so advised and counsel has provided ineffective assistance in the plea process.

Using our second example, we will explore the validity of orders issued after a finding that a defendant is unlikely to regain the capacity to assist in his own defense, and even if the defendant is likely, he is not making progress toward that goal, and thus, relief under Jackson v. Indiana must be granted, and the defendant must either be released or committed using generally applicable civil commitment procedures. Among the issues to be addressed are the extent of a district attorney’s access, post Jackson, to medical records, treatment providers, residence change and other information; whether further restrictions or obligations may be imposed on such persons, although never convicted, because of the pending indictment; when and how may the criminal case be re-calendared; and the fifth amendment rights of defendants. We will consider the defendant’s right to privacy under the first amendment, state procedural provisions, disclosure requirements for under the Health Insurance Portability and Accountability Act (HIPAA), doctor-patient and related privileges, and what each may mean in the context of Jackson orders.

Using our third example, we will explore the use of forced drugging orders on defendants found to lack capacity to assist in their own defense, and the interplay between the criminal justice and mental health systems. For example, what should be the hospital’s showing be if the defendant appears to have cognitive capacity, but is asserted to be unable to assist in his own defense because of tensions or an inability to work with assigned counsel, which may or may not be caused by an asserted mental disorder. Should the State be required to show that the inability is not based on a legitimate disagreement with counsel, and prove that the assignment of a new counsel is not a less restrictive alternative? Is there, and should there be, a distinction between standard used to authorize such orders in the context of restoring capacity, than used to justify such orders in ordinary civil settings? (i.e., when the primary goal is restoration, rather than general mental health treatment)? And if there is a distinction, how may the distinction help or hurt defendants?

After an initial presentation using case examples and possible approaches; the workshop will invite participants to share ideas about possible strategies to advocate on behalf of defendants in the above circumstances. Among the areas we will cover are:

III.      Legal and Advocacy Strategies

A. Challenging ineffective assistance of counsel in accepting not responsible pleas.

  1. Assessing the information provided to the defendant facing the choice of a not responsible plea.

  2. Assessing whether the plea was knowing and voluntary.

  3. Assessing whether defense counsel met his or her obligation to inform the defendant of such consequences of a not responsible plea.

  4. Assessing whether there was a sufficient allocution when the plea was made and accepted in court.

  5. Making motions to vacate a plea based on ineffective assistance of counsel.

 

B.   Challenging the overreach of orders issued upon relief granted under Jackson v. Indiana

  1. Challenging orders based on violations or privacy under the first amendment.

  2. Challenging orders based statutory privilege.

  3. Challenging orders based on violations of  HIPPA.

  4. Challenging orders based on violations of civil procedure

  5. Challenging orders based on violations of the Fifth Amendment.

 

 

C.  Challenging orders to force drug defendants found to lack capacity to assist in their own defense.

  1. Challenging forced drugging orders based on capacity to make treatment decisions.

  2. Challenging forced drugging orders by showing the adverse effects outweigh benefits in general, and in relation to goal of restoration.

  3. Challenging forced drugging orders because not in defendant’s best interest.

  4. Challenging forced drugging orders based on less restrictive alternatives, e.g., non-medication treatment, appointment of new counsel, alternative preferred treatment.

 

IV.       Learning Goals:  

A. Developing Effective Legal Strategies - Understanding the Possibilities for Use of New Legal Approaches

B. Developing Effective Advocacy Strategies - Understanding the Possibilities for Use of New Advocacy Strategies

C. Brainstorming to Begin to Develop an Outline of Long Term Strategies to Confront Prosecutorial and State Hospital Caprice.