Criminal : Week of October 23

Reading for 23 October

Remington Center

• Economic Justice Institute (civil equivalent); Remington Center will have prison-based clinics next summer. Completed 1L is a prerequisite.
• An in-house clinic: all student work is supervised in house by clinical faculty. Not like an externship.
• Being a lawyer: being concerned and taking responsibility for someone else's issues. Learning about facts, strategizing, explaining (to client, to judge, etc). All of this is stuff not taught in class.
• Contrast w/law firm internship: class credit, follow case from start to finish, be primary on a case, make less money. Immersion education.
• This is a student program, not a legal services agency, so caseload is managed. It's not a skills clinic-- the goal is judgment and analysis and reflection. It's a high level of practice, however.
• "Legal detainers:" other jurisdictions have holds that keep clients from getting released. This is a common issue for LAIP, and it touches on a number of areas of law.
• PILF: you can get internships via PD here (probably not MSN); also DA, AG, maybe legal aid, etc.

Review (classes 11, 13, 14)

• Right to present evidence
  • What evidence the defense can present (particularly to negate the state's case on intent).
  • What type of evidence is admissible with respect to defendant's mental state (i.e., what can you introduce to raise reasonable doubt)?
  • Mostly you see this in homicide trials, esp. w/expert witnesses: capability of forming mental state, etc., should we go to a lesser included, etc.
  • Due process: fair opportunity to defend against accusations, to call and cross-examine witnesses, and to compel witnesses to appear (compulsory process)
  • The things that can limit rights to present evidence: hearsay, rape shield, relevance, etc.
  • The defense should not use expert testimony to show that the defendant was incapable of forming intent: that's a different framing-- you just want to show whether they actually did act with intent (or not)-- and it is likely to be excluded
• Recklessness and Negligence

  Recklessness	Negligence
  Defendant causes unreasonable and substantial risk of great bodily harm	Defendant causes unreasonable and substantial risk of great bodily harm
  Defendant is aware of the risk	Defendant should have been aware
  Voluntary intoxication is not a defense, if the defendant would have been aware if sober, because the defendant voluntarily put self in that state.
  Note that the law cannot create a presumption of negligence (i.e., just having broken the law is not necessarily indicative or one of these): it's an element that needs to be proved under due process.
  First degree: utter disregard for life (Class B in WI) Second degree: less extreme (Class D in WI)	Ordinary: tort negligence Criminal: higher degree of risk (in terms of potential consequences and/or probability)

  Interesting point: longer sentences make the state custodian of a more geriatric prison population, and therefore carry higher medical fees. So now they make a sentencing exception for old terminally ill prisoners.

  Also, note that (just like intent) it's hard to figure out how to apply the subjective tests (i.e., were they aware) to persons of diminished capacity.

• Strict liability: crimes with no element of intent. Generally not based on common law, these represent the government's attempt to cope with new sorts of harm previously unavailable (i.e., create a high standard of care). These are also easier to prosecute: lots of times it would be practically impossible to establish the actor's state of mind, i.e. in corporate settings where there are many layers between the person who is responsible and the one who does the act.
• Morissette v. United States
  Commentary in class
  Smith: There were probably disgusting spiders on the bomb casings.

  Distinction between "infamous" crimes and "public welfare" offenses. Infamous is more from common law (battery, murder, theft). The others are more regulatory in nature: they derive from the perils of the modern world (dangerous workplaces, high velocity traffic, widely distributed goods, etc.). In general, criminal law is intimately connected with intent; no-intent crimes are intended to make those involved in these potentially dangerous things more careful. Promoting public order and protection.

  There's no bright-line rule articulated for whether or not proof of intent is required: it's a matter of legislative intent to be construed by the court.

• State v. Hermann
  Commentary in class
  Regards sentencing, not public interest vs. common law.

  Look at legislative history to determine legislative intent.

  Underlying conduct is already criminal here. Collova dealt with OAR: you have to know your license was revoked in order to be guilty. Here, though, Hermann can be assumed to know that the drug dealing was illegal. Strict liability is justified on the basis of the presumed negative influence of drugs on school areas. This is a bothersome argument, but there it is.

October 25

Competency to proceed

• Dusky is the standard:
  1. Rational and factual understanding of charges and penalties (procedurally as well: who is the judge, who is the prosecutor, etc.)
  2. Be able to assist counsel (communicate in a factual manner, participate in decisions-- such as pleas, testimony)
• Procedure:
  1. Someone raises the issue that the defendant may not be competent (usually this is the defense attorney; often you can tell this in the first five minutes of meeting with a client)
  2. Hearing where the judge decides whether there will be a competency evaluation (you have to make some showing that there's reason to doubt)
  3. Then we have the competency evaluation (on an outpatient basis, if the person is free on bond at the time; else the examination is often conducted at the jail [old standard was women: winnebago; men: mendota])
     1. One or more experts are appointed
     2. They examine the person
     3. They have 15 days to deliver their report
     4. The form and content of the opinion in the report are specified in procedural materials
  4. Are they
     • Competent
     • Not competent and likely to remain that way
     • Not competent but could become so within the statute time limit (and are they competent to refuse medication?)
  5. Treatment is administered if needed. This includes "competency class," to provide basic information about proceedings. The defense gets nervy about this, because first people are mentally ill but not stupid, and second delusional people may be able to learn to answer competency questions correctly
  6. The hospital wants to medicate: no amount of talking therapy will get you out of depression of schizophrenia; generally they do this
  7. Then we have a hearing to decide how to proceed, based on the opinion:
     • Competent: ok, on with the trial
     • Not competent but treatable: suspend the trial and resume later
     • Not competent and not treatable: convert to civil commitment or guardianship
• Mental Illness: a term of art-- means that it meats a standard in "DSM IV" (the "name-calling book"). Some people have mental health issues, but are not classed as having major mental illness. Some people with a disorder (e.g., antisocial personality disorder) may be badly impaired, particularly combined with alcohol or drugs, and they may not really be able to assist with trial. Psychologists may say this person is not mentally ill, and if the defender would just spend enough time with the person, their oppositional behavior would be overcome. But there is not that much time in the world.
• Brain damage, brain disease, injury, some mental illness, developmental disability are all things that might make you not competent and not likely to become so.
• Some very mentally ill people may be highly competent, or may appear so. So the question is, considering their level of impairment, can they meaningfully assist?
• When you raise competency on a client, they tend to fire you if you are found competent.
• You can raise competency at any time. Sometimes you need to raise it more than once: borderline people tend to deteriorate when they are in jail. Sometimes the court commissioner, acting on guidance from the jail's observations at intake, will raise the matter at the initial appearance. On appeal, it's less of an issue, because the client's degree of participation is much less, and we don't want the appeal to get stalled.
• State v. Johnson
  Commentary in class
  Issues:
  1. Was he deprived of his rights when his attorney failed to raise competency when notified of the issue by his experts?
  2. If so, then is a new trial required, or can we make a determination now about whether he was competent then? ("nunc pro tunc")
  Neither expert offered a formal opinion, because of conflict-of-interest issues. Allegations of ineffective counsel, by the way, are generally handled in a postconviction motion in the trial court.

  Mockner hearings: the Strickland standard. Incompetence hearings. Strickland test:

  • Performance fell below objective standard of reasonableness
  • That failure prejudiced the defence

  Considerations of strategy are inappropriate in matters of competency. Also, the attorney said he felt the client was sufficiently competent: but that determination rests with the court, not with counsel.

  Competency to proceed is a legal determination: even though there are examiners, and the issue is raised by counsel, it is the court that rules someone competent or not. Sometimes they will rule someone incompetent in spite of the doctor's opinion (and sometimes that person goes back to the same place where they were examined, and lo, they get treatment).

---

• 1960's : start of de-institutionalization. Trend away from warehousing (long-term hospitalization) as treatment for mental illness.
• New efforts: MKE is training police to check for signs of mental illness and handle interactions differently; check if people have social workers assigned, etc. Jails have some people w/mental health training as well, hoping to divert some non-serious criminals out of the criminal justice system.
• Competency is about now, not the crime: can you deal with the trial?
• NGI or NGMDD or "criminal responsibility" or "mental responsibility:" state of mind at the time of the crime. Often it's a battle of experts, but at least it's one fixed moment in time.
• Sometimes you don't get arrested or tried until months (or longer) after the offense. It would have been swell to have mental evaluations sooner (i.e., closer to the time of the crime) rather than later. Ideally, you could find that the person has a history of mental illness: it's a bad sign if this is their first encounter with a mental health professional.
• Lay testimony from neutral parties (police reports, former teachers, employers, etc.) can be helpful. Family members are generally excluded for conflict-of-interest reasons.
• Interesting note: the defendant must decide to enter the NGI plea. If they can't they're not competent (and the trial should be halted), but the attorney can't enter a plea on behalf of the client. Ironic, though, that the person has to allege insanity about him or herself.
• "Substantial capacity" either to appreciate the wrongfulness of their conduct, or conform his or her conduct to the law.
• §971.16: process for appointing examiners. Defense has the burden of getting mental health expert testimony.
• For bifurcated trials, generally it's a jury at both phases unless both sides waive it. Note that this is not a popular defense with juries: they are skeptical of it. It is the same jury for both trials. The guilt phase is first.
• At the guilt phase, it must be unanimous. In the MDD phase, 5/6 must agree. Note that not all juries are divisible by 6; in that case, you round up.
• In theory the bifurcated trial gives the defendant two possibilities at acquittal, but some think entering both pleas makes the defendant look more guilty. The jury has to know about both pleas, because in order to qualify them for service, they'll get quizzed about it (do you have strong views about the insanity defense, do you have relatives in mental health care, etc.)?
• There are collateral consequences, even if the plea is a success: commitment, you don't get to own a firearm any more, etc.
• Steele v. Wisconsin
  Commentary in class
  They wanted to introduce mental health testimony (to get a lesser charge, or parole, since this was 1980) in the guilt phase, in order to rebut intent.

  He actually got lots of testimony in, but just not experts: they're for the mental health phase. Don't want to get bogged down in questions of what degree of mental impairment is sufficient to cast doubt on intent.

  Intent is a separate issue: you can be insane and have intent.

  In the guilt/innocence phase, capacity to form intent isn't an appropriate consideration: it's just did they form intent.