Thursday, October 18, 2012

Dr. Death And The Violation of The Fifth Amendment: Estelle v. Smith (1981)

Ernest Smith, From Texas Monthly
Magazine, July 1978
Dr. Death makes another appearance in a landmark U.S. Supreme Court Case. In a post from earlier this year, I outlined the case of Barefoot v. Estelle, where Dr. James Grigson stated a defendant was so dangerous he would definitely kill again, despite never having met that defendant. Not exactly psychiatry's proudest moment--and keep in mind, this is a profession that used to scramble people's brains with an ice pick driven through their eye sockets.

In a 1973 murder case from Texas, Dr. Grigson was hired to conduct a pretrial competency evaluation. The case involved Ernest Smith, who was arrested for participating in an armed robbery where an accomplice killed a grocery store clerk. Dr. Grigson reported that Mr. Smith was competent to stand trial and he labeled Mr. Smith a "severe sociopath." Interestingly, Mr. Smith's defense team had no idea that Dr. Grigson had evaluated him until they received the competency report filed with the court (this would never happen today. The process for obtaining a competency evaluation is clear and open).

Mr. Smith's case went to trial, and a jury convicted him. Prosecutors sought the death penalty, and one of the criteria the jury needed to weigh was the future dangerousness of the convicted defendant. Prosecutors called Dr. Grigson as a witness, who had only met with Mr. Smith for the pretrial, court-ordered competency evaluation. He testified that Mr. Smith remained highly dangerous and thus posed a continued risk to society. But really, did you expect Dr. Grigson to have any other opinion? He would have testified that a potted plant posed a danger to society if the death penalty were in question.

Based largely on Dr. Grigson's testimony, the jury decided the prosecution had made its case, and Mr. Smith was sentenced to death.

As is expected in every death sentence case, Mr. Smith appealed his conviction (in fact, an appeal was mandatory in Texas at the time). The case worked its way through the courts and ended up at the U.S. Supreme Court in October of 1980. Mr. Smith argued that by using the forced competency evaluation in his sentencing phase, his Fifth Amendment Rights against self incrimination were violated.

The Court agreed with Mr. Smith's argument. In their decision from 1981, the Court held, "(1) the admission of the psychiatrist's testimony violated the defendant's Fifth Amendment privilege against compelled self-incrimination, since the defendant was not advised before the pretrial examination that he had a right to remain silent and that any statement he made could be used against him at the sentencing proceeding, the defendant's statements to the psychiatrist when faced while in custody with a court-ordered psychiatric examination not being given freely and voluntarily without any compelling influence so that they could be used at the penalty phase only if the defendant had been apprised of his rights and had knowingly decided to waive them, and (2) the admission of the psychiatrist's testimony violated the defendant's Sixth Amendment right to the assistance of counsel, since defense counsel were not notified in advance that the psychiatric examination would encompass the issue of their client's future dangerousness and the defendant was denied the assistance of his attorney in making the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed, the Sixth Amendment right attaching when the doctor examined the defendant in jail and that interview proving to be a "critical stage" of the aggregate proceedings against the defendant."

In other words, the Court was insistent that Mr. Smith's Fifth Amendment Right had been violated because he was never informed during the court-ordered (in other words, forced) evaluation that he had the right to remain silent and that information he provided to the evaluator would be used against him at sentencing. And, the Court took their decision one step further: they held that Mr. Smith's Sixth Amendment Right to Counsel was violated because his defense team was never notified that the competency evaluation would be used to sentence him to death.

In subsequent cases now codified into state laws, data collected in court ordered competency evaluations cannot be used during the trial or sentencing phases of an individual's court case, unless the defendant raises the issue of his mental health as part of his defense and rebuttal testimony is needed.

Dr. James Grigson, trying to blind the photographer,
from Texas Monthly Magazine, July 1978
Interestingly, in a Texas Court of Criminal Appeals opinion on this case, Judge Wendell Odom wrote, "Dr. Grigson's qualifications as a psychiatrist may be fine, but I find no testimony which qualifies him as an expert in predicting the future...It is my opinion that such future-telling testimony is admissible under no theory of law and prejudicial beyond belief...I am unable to find that much of the testimony offered was from this side of the twilight zone," (From Texas Monthly Magazine, 1978).

Thanks for reading-- Max Wachtel, Ph.D.

Saturday, October 13, 2012

My 9 News Interview Regarding Jessica Ridgeway

I was on Denver's NBC Affiliate, 9 News, last night to discuss Jessica Ridgeway and what you might want to look for in order to be vigilant in helping to catch her killer. Here is a link to the video:

This is an absolutely heartbreaking story. I offer my deepest condolences to her parents and the rest of her family. I hope Jessica is at peace now.

Thanks for reading-- Max Wachtel, Ph.D.

Wednesday, October 10, 2012

9 News Story About My 2012 Denver Rock and Roll Marathon Finish

Here is a link to a recent 9 News story about my Denver Rock and Roll Marathon run on September 22, 2012. I dedicated my run to the memory of Alex Teves, one of the victims of the Aurora Theater Shooting and a former student of mine at the University of Denver:

Thanks for reading-- Max Wachtel, Ph.D.

If Police Deny Assistance of Counsel During Interrogations, Confessions Cannot Be Used In Court: Escobedo v. Illinois (1964)

Mugshot of Danny Escobedo, January 1960

Police must inform criminal suspects of their right to remain silent when they are in custody and they must honor a suspect's request to speak with an attorney prior to interrogation. But, this was not always the case. Two landmark rulings from the mid-1960s changed that. The lesser known of the two will be discussed here:

On the night of January 19, 1960, a Chicago man was murdered. This man happened to be the brother-in-law of Danny Escobedo. Early the next morning, Mr. Escobedo was arrested and interrogated. Being a wise suspect, he did not say anything to the police--he did not confirm or deny any wrongdoing. Since he was arrested without a warrant and there was little probable cause to hold him, the police released him from custody on the afternoon of January 20.

A few days later, a man named Benedict DiGerlando was brought into custody and interrogated for the murder of Mr. Escobedo's brother-in-law. Mr. DiGerlando was not as savvy as Mr. Escobedo, and he told police that Mr. Escobedo had shot and killed his brother-in-law because he was regularly beating Mr. Escobedo's sister.

So, on January 30, Mr. Escobedo was brought in again for questioning. This time, the police also brought in his sister, Grace. The police informed Mr. Escobedo of Mr. DiGerlando's statement. Mr. Escobedo once again refused to speak with the police and asked for his attorney. The police refused his request, despite telling him he was in police custody and was not free to leave.

Mr. Escobedo's attorney went to the police station and asked to meet with his client. This request was also denied.

The police interrogated Mr. Escobedo for the next 14 hours and repeatedly refused to allow him to meet with his attorney. During the course of the interrogation, Mr. Escobedo never confessed. However, he made a number of statements that accidentally revealed his knowledge of the circumstances of the crime. That revelation of knowledge amounted to a confession.

Based on his confession during the second interrogation, Mr. Escobedo was convicted of murder. He appealed his conviction, arguing his Sixth Amendment Right to Counsel (made obligatory to the states by the Fourteenth Amendment) had been violated. On appeal, the Illinois Supreme Court upheld his conviction.

However, the US Supreme Court agreed to hear his case. In 1964, the Court reversed his conviction because he was, in fact, denied his Constitutional Right to Counsel. They held that any statements made  while being denied that basic right could not be used against him in a criminal trial. The Court also found it troubling that Mr. Escobedo had never been advised of his right to remain silent (Fifth Amendment) -- Keep in mind, this was pre-Miranda, which was settled in 1966.

At first glance, this case does not seem to have much to do with forensic psychology--there was no argument that Mr. Escobedo was incompetent or had no idea of his Constitutional Rights. In fact, he appeared to be a highly competent suspect and was vigorously attempting to exercise his rights. But, I have worked on a number of cases, in the 2010s, 50 years after Escobedo v. Illinois and Miranda v. Arizona, where the police have not informed suspects of their rights. I have watched police interrogation videos where suspects spill their guts about the crime but have never been reminded of their Fifth and Sixth Amendment Rights. Often, attorneys will miss this key procedural misstep because they are focused on other issues, mainly damage control--how can they defend a client who has just confessed to the police? When I point out the lack of Miranda warning, attorneys then have the ability to enter a motion to suppress the confession, as it was obtained illegally.

Interestingly, the Escobedo case is largely forgotten in the public sphere, since the Miranda ruling came only two years later. Where Escobedo focused mainly on the right to counsel, Miranda shifted the focus to the right against self-incrimination. And, it is these two cases that have arguably had the greatest impact on police and criminal court procedure in the last half-century.

Thanks for reading-- Max Wachtel, Ph.D.

Monday, October 8, 2012

Protecting Even The Most Despicable Of Defendants: Drope v. Missouri (1975)

In the US, we protect our criminal defendants. We assume even the most dastardly individuals are innocent unless proven guilty, and we make sure defendants are able to exercise all of their Constitutional Rights when defending themselves. Let me cite the case of Drope v. Missouri as an example:

In 1969, James Drope was indicted for rape. He was alleged to have forcibly raped his own wife, along with several of his acquaintances. His wife reported to the court that he and four of his friends raped her and subjected her to several other "indecencies." She reported she continued living with Mr. Drope after the rape so that her children would be taken care of, at the insistence of his psychiatrist. She also reported Mr. Drope attempted to kill her several days before his trial began.

Prior to trial, Mr. Drope's defense attorney entered a motion asking the court for a continuance so that he could receive a psychological evaluation and treatment. The motion contained a letter from a psychiatrist stating Mr. Drope did, in fact, need mental health treatment. The prosecution did not object to the motion. Nevertheless, the court denied the motion and set the case for trial.

Mr. Drope's wife testified for the prosecution, and she mentioned she was hesitant about wanting to bring charges against her husband until he attempted to kill her. She described significant, odd behavior on Mr. Drope's part. One behavior she described was Mr. Drope "roll[ing] down the stairs" if he received bad news or if something did not go his way.

On the second day of trial, Mr. Drope did not appear in court. He had shot himself in the stomach in a suicide attempt and was hospitalized. The defense asked the court to declare a mistrial. The court refused, and it ordered the defense to proceed with the trial without Mr. Drope's presence.

Needless to say, Mr. Drope was convicted. His defense team appealed the conviction, arguing he was deprived of his Due Process Rights (Fourteenth Amendment) because the court did not order a mental health evaluation and proceeded with his trial without his presence. An Appeals Court rejected the appeal, but the U.S. Supreme Court decided to hear the case.

In 1975, The Supreme Court unanimously reversed the Appeals Court decision and remanded Mr. Drope's case to the trial court to allow for a retrial, assuming he was competent at the time of the retrial.

The Court held, "(1) the defendant's due process right to a fair trial was violated by the trial
court's failure to suspend the trial pending a psychiatric examination to determine the defendant's competence to stand trial, since the wife's testimony, the psychiatrist's report, and the defendant's attempted suicide were sufficient indicia of incompetency to require such examination, (2) in view of the trial court's failure to inquire into the defendant's mental competency, there was no basis for determining whether the defendant had effectively waived his right to be present at his trial, assuming that such right could be waived, and (3) the defendant's due process rights could not be adequately protected by merely remanding for a psychiatric examination aimed at establishing whether the defendant was in fact competent at the time of the trial approximately 6 1/2 years earlier, the state being free to retry the defendant if he is competent at the time of such trial."

The Court made it clear that individuals must be competent to stand trial at the time of the trial in order to them to adequately exercise their Constitutional Rights and to avoid violations of Due Process. It also made clear that if questions arise about an individual's competency, trial courts have an obligation to suspend proceedings until the person's competency or incompetency can be established. In most states now, merely asking for a competency evaluation is enough to kick off the competency evaluation process--it is not necessary for an attorney to present evidence to the court of an individual's incompetence to start the evaluation procedure.

I do not know what happened to Mr. Drope after the Supreme Court remanded his case back to the trial court. My guess is that he underwent a competency evaluation to determine if he was fit to be tried again, and if he wasn't, he probably received restoration to competency treatment services.

Thanks for reading-- Max Wachtel, Ph.D.

Friday, October 5, 2012

The Pop Psych Project: Morning People Are Happier--Night Owls Are Mostly Cool With That

This picture pretty well describes my mood most mornings.
Researchers from the University of Toronto recently discovered that people who identify themselves as "morning people," or people who pop out of bed early with energy and enthusiasm, are happier than night owls. Interestingly, night owls do not display higher levels of "negative" emotion such as anger or depression when compared to morning people. They just aren't as happy.

In my unofficial, unscientific research on the subject (having one child who is a morning person and one child who is a night owl), morning people seem to be overly enthusiastic in the morning, and night owls appear to be mildly irritated by that enthusiasm.

Thanks for reading-- Max Wachtel, Ph.D.


Biss, R. K., & Hasher, L. (2012). Happy As A Lark: Morning-Type Younger and Older Adults Are Higher In Positive Affect, Emotion, 12(3), 437-441.

Wednesday, October 3, 2012

The Burden of Proof for Competency to Stand Trial: Cooper v. Oklahoma (1996)

In 1989, Byron Cooper broke into a home and was robbing it, when the 86 year-old owner confronted him. Mr. Cooper attacked and killed the owner of the house. The evidence against Mr. Cooper was solid, and the prosecution was going to have little difficulty proving him guilty beyond a reasonable doubt. If you want to read about what he actually did and how he was caught, click on this sentence.

The problem with Mr. Cooper's case, however, was that he had a severe mental illness. He was psychotic, and his psychosis caused him to be terrified of his defense attorney. On at least one occasion, he attempted to run out of the courtroom when he saw his attorney, not because he was trying to escape but because he thought his attorney was evil. Mr. Cooper also refused to wear street clothes in court because they "burned" his skin. He was also fond of curling up in the fetal position on the floor of the courtroom and talking to himself.

Mr. Cooper's defense attorney claimed he was incompetent to stand trial, and Mr. Cooper went through a number of competency evaluations. He also spent time in the Oklahoma State Hospital where he received restoration to competency treatment.

Just prior to his trial, Mr. Cooper's attorney again raised the issue of competency. He went through another evaluation, and the psychologist's opinion was that he was, in fact, incompetent. However, the judge ruled that the defense had not proven Mr. Cooper's incompetency with clear and convincing evidence, thus deciding Mr. Cooper was competent and ordering him to face trial. He was quickly found guilty and was sentenced to death.

Let's back up for a minute: in the United States, we take our court system seriously. Very seriously. The judiciary is enshrined in the US Constitution, and beyond that, five of the ten Amendments in the Bill of Rights deal with protecting individuals from what could otherwise become a tyrannical court system.

Out of this desire to protect an individual's liberty arose the concept of Competency to Stand Trial. In order for a person to be able to exercise his Constitutional Rights, he must be able to understand those rights, make rational decisions regarding those rights, and work with his attorney to assist in exercising his rights. More specifically, an incompetent person who faced trial would be deprived of his Due Process Rights (Fourteenth Amendment).

When a person claims to be incompetent, the defense has the burden of proving the defendant is actually incompetent. The defense attorney must present evidence of the person's incompetence, which is typically done through competency evaluations conducted by forensic psychologists or psychiatrists.

But let's back up a little more: What is Burden of Proof? This is a legal and philosophical concept describing who has the obligation to convince the factfinder to change his/her mind regarding a particular situation. For a competency hearing, the judge is supposed to assume the defendant is competent unless the defense attorney can prove the defendant is incompetent.

There are several levels of proof required for someone in court to meet his/her "burden." They are as follows:

1. Preponderance Of Evidence: The issue is more likely to be true than not true.

2. Clear And Convincing: The issue is much more probably true than not true, and the factfinder must be strongly convinced.

3. Beyond A Reasonable Doubt: This is the highest level of proof required in criminal cases. Although it does not require the factfinder to have absolute certainty, he/she must come to the conclusion that there is no reasonable or plausible explanation for events other than what is being argued.

So, let's get back to Mr. Cooper's case. The judge ruled him to be competent because the defense did not prove his incompetence by clear and convincing evidence. He then went to trial, was found guilty, and was sentenced to death.

His defense attorney appealed this decision, claiming Mr. Cooper's Due Process Rights had been violated. An appeals court affirmed the lower court decision and upheld the conviction and sentence. The defense then appealed to the US Supreme Court. In 1996, the Court issued an unusual unanimous ruling on this case: They decided Mr. Cooper's Due Process Rights had, in fact, been violated. They stated the lower court used the wrong standard with clear and convincing, and instead should have heard the case using the preponderance of evidence standard.

The US Supreme Court claimed the higher standard "imposed a significant risk of an erroneous determination that the accused was competent, and such determination threatened a fundamental component of the criminal justice system...the accused's fundamental right to be tried only while competent outweighed the state's interest in the efficient operation of its criminal justice system."

The Court reversed Mr. Cooper's conviction and sentence and remanded the case back to the lower court to deal with the competency issue using the preponderance of evidence standard.

Due to Cooper v. Oklahoma, all states are now required to use the preponderance of evidence standard when determining whether an individual is competent to stand trial.

Thanks for reading-- Max Wachtel, Ph.D.


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