Committee to consider recording interrogations, regulating graffiti, Texas' insane insanity defense and more

Let's point out a few items of interest on the Texas House Criminal Jurisprudence agenda tomorrow.

Record police interrogations
Rep. Terry Canales has a bill on the agenda, HB 1096, which would require police to record custodial interrogations in serious offenses. This is one of a handful of recommendation from the Tim Cole Advisory Panel on Wrongful Convictions that has not yet been implemented. (See this Grits post and the links at the bottom for more background.)

Regulating graff: Two approaches
There are a pair of graffiti-related bills up on Tuesday. One, HB 36 by Menendez, is a straight up enhancement bill as though harsher penalties have ever reduced graffiti in the past. (Naturally, the LBB assumes locking up more people for longer periods will cost no additional tax dollars). The other graffiti bill, HB 3494, is a much more interesting piece of legislation. It would raise the damage thresholds for graffiti punishments and establish a pretrial diversion program requiring community service, restitution, and, with the consent of the property owner, that the defendant clean up the sites they'd despoiled. Menendez's bill amounts to pointless grandstanding that wouldn't affect graffiti levels at all. Moody's bill is on the right track - making both the punishments and penalty categories fit the crime while focusing on restitution and cleanup. But the state should also offer up free spots - say on highway pillars, drainage ditches, concrete berms and the backs of street signs - where graffiti would be allowed. Like other forms of expression, it's appropriate to regulate the time, place and manner but a complete ban is as wrong-headed as it is unenforceable.

Wiping records clean for low-level alcohol and drug offenders
Rep. Alma Allen has proposed HB 1070 which would allow expunction for certain alcohol and drug offenses upon successful completion of probation. I'm for just about anything that facilitates employment upon reentry and provides incentives for good behavior instead of only punishing probationers' missteps.

Reduce penalties for petty drug crimes
Rep. Sylvester Turner has a bill on the dock (HB 2044) which would reduce penalties for less than a gram drug possession from a state jail felony to a Class A misdemeanor, similar to legislation heard last week in this committee by state Rep. Senfronia Thompson (see this discussion). I'm a bit surprised the bill wasn't heard along with Thompson's legislation.

Banning (more) native plants
Rep. Doc Anderson has yet again proposed legislation (HB 124) to ban salvia divinorum, a native Texas plant with moderate psychedelic properties which has emerged as a (mostly unsatisfactory) substitute for more common, illicit substances, but with sickening side effects. Anderson and state Sen. Craig Estes have been trying to pass this same bill since 2007, but with surprisingly little success.

The insanity of Texas insanity defense
Rep. Garnet Coleman will present HB 3765 revisiting the insanity defense in light of difficult and terrible cases like that of Andre Thomas who murdered his family then ripped his own eyes out, eating one of them. If the insanity defense doesn't cover Mr. Thomas' situation then IMO the law is just as deranged as he is. See prior, related Grits coverage. Society has only just begun to think honestly about the implications of major schizophrena and people who hear voices - until now medication or incarceration have been the only two approaches and neither "solution" amounts to much more than a band aid. There are a small minority of dangerous mentally ill people who need to be institutionalized for their own protection and others'. But most people who hear voices will never succumb to such extreme impulses and for those who do there are almost always warning signs. The worst-case scenario arises with people like Thomas who fall through the cracks, never receive meaningful treatment, then are subjected to the harshest possible punishments when tragedy occurs, an outcome that satisfies no justifiable punishment goal save vengeance. (See Brandi Grissom's six-part series at the Texas Tribune on the Andre Thomas case.) Whether or not Coleman's bill provides a meaningful solution, there must be a better way to handle such cases than the way we do things now.

Enhancements here, there and yon
As usual in this committee, the bulk of the rest of the bills involve enhancements, not just for graffiti and salvia but there are also a pair of bills boosting penalties for hit-and-runs, one boosting the charge for assaulting emergency room personnel, another mandating LWOP for repeat sex offenders and restricting their employment (as though that's necessary!), another reducing access to probation for burglary with intent to commit a sex offense and one punishing registered sex offenders for misrepresenting their identity. Honestly, if this committee decided for just a session not to hear any bills creating new crimes or "enhancing" penalties, it would surely reduce their workload by more than half.

CCA ruling let juries hear about mental impairment, but not always from the mentally impaired

A couple of notable items from the Texas Court of Criminal Appeals related to mental illness:

The search for diminished capacity in Texas law
First, from the Fort Worth Star Telegram, Martha Deller has the story, "Appellate rulings sought to set guidelines for mental impairment defenses" (May 10), which opens:

No one knows for certain why a Tarrant County jury rejected a defense related to post-traumatic stress disorder in the murder trial of Marine veteran Eric Acevedo.

But legal experts agree that the Texas Court of Criminal Appeals needs to rule more definitively whether evidence of mental impairment -- short of the tougher insanity defense -- is admissible in deciding guilt or innocence, and if so, when and how it can be used.

Texas hasn't allowed jurors to consider mental health issues, short of insanity, in determining a defendant's guilt. Some other states, though, allow juries to consider whether a mental affliction renders a person incapable of forming the intent to commit a crime.

Acevedo's attorney, Jim Lane, said that Texas needs a way to take into account the mental impairments suffered by an increasing number of combat veterans.

"Insanity has such a different meaning than combat PTSD," he said. "I'd hate to think that everyone coming home from Iraq is crazy, but there is diminished capacity for a combat veteran suffering from PTSD. There should be a niche for that."

Prosecutors fear that allowing mental health defenses could overwhelm the court system with such claims. But an official of the Vietnam Veterans of America says the opposite is true.

The story includes this description of recent CCA rulings on the topic:

Richardson attorney Lydia Brandt concedes that justices have not accepted the diminished-capacity defense per se.

She has argued appeals of lower court rulings disallowing testimony on mental impairment. In one case, the Court of Criminal Appeals in 2005 ruled for the first time that mental impairments can be introduced into evidence. But the justices also said that the trial judge in the case properly allowed the testimony but not the expert's opinion that the man lacked the capacity to intentionally commit the crime.

The court reaffirmed that opinion in 2008, reversing the conviction of a man who shot at police officers. The court said the trial judge erred in not allowing testimony that the man was mentally impaired and believed that the officers were Muslims.

Brandt said the law is still evolving through court opinions, which are making it increasingly clear that all types of mental impairment -- not just PTSD -- are admissible in criminal trials.

But she said she is not surprised that most juries do not accept the mental-impairment defense, just as they haven't accepted the insanity defense.

"I don't think people know what intent means," she said. "I don't think district attorneys know. They're turning it into a strict liability crime. He did it; therefore he intended to do it. That's why prosecutors are so adamantly against a diminished-capacity doctrine."

Judges may deny right of self-representation to the mentally ill
Meanwhile, Liberty and Justice for Y'all brings word of a unanimous CCA case ruling that defendants may be competent to stand trial but incompetent to represent themselves pro se. They were following the lead of SCOTUS in Indiana v. Edwards, a case with which I strongly disagreed which I earlier described thusly:

According to the New York Times, Justice Stephen Breyer's decision emphasized the "spectacle" of letting mentally ill people pontificate on their own behalf in open court:

Noting that the court has referred to the right to self-representation as an aspect of individual dignity, Justice Breyer said dignity was lacking in the “spectacle that could well result” from a mentally ill defendant’s efforts, which he said were “at least as likely to prove humiliating as ennobling.”

Well, Justice Breyer - what about the "spectacle" of filling up our prisons with mentally ill people so deranged that merely allowing them to articulate their own defense to charges against them is too "humiliating" for the courts to bear?

Color me unsurprised that this is one SCOTUS decision where the Texas CCA won't buck and kick against judicial activism by the feds or assert their federalist-based authority to differ with the Supreme Court.

Here's the bottom line for me: If the defendant can't meaningfully participate in his or her own defense, they're not competent to stand trial. If they can, there's little remaining argument for denying them the right to proceed pro se. SCOTUS and the CCA want to have it both ways, so I'll repeat here what I said of the SCOTUS case: "This was an activist decision by judges for judges to make their jobs and lives easier, leaving for some other day any latent concern for either the rights of mentally ill people or the righteousness and public policy consequences of using the criminal justice system as de facto asylums."

UPDATE: A reader sent in this request via email:

I'd like to read your spin on this entry "Judges may deny right of self-representation to the mentally ill," and applying it to the Scott Panetti (Death Row) debacle.

That is a tough hair to split. I'm still working on it.

I responded:

Thanks a lot. On Panetti, I'd reiterate what I said in the post: "If the defendant can't meaningfully participate in his or her own defense, they're not competent to stand trial. If they can, there's little remaining argument for denying them the right to proceed pro se."

And to me (though I'm not a lawyer), the converse would be true. If a judge thinks a defendant incompetent to proceed pro se, they're not going to be able to meaningfully participate in their own defense.

Just pick: They're competent or not. The answer can't (or at least shouldn't) be "both."

Romeo and Juliet, Abraham and Isaac: Who to criminalize?

While waiting yesterday in the House Criminal Jurisprudence Committee hearing for a late bill on which I was testifying, Rep. Garnet Coleman brought forward two very interesting pieces of legislation worthy of note:

HB 3564: Relating to the prosecution of certain conduct constituting the offense of indecency with a child.

HB 2973: Relating to the insanity defense in a criminal case.

HB 3564 would expand the "Romeo and Juliet" defense (consensual sexual partners are within three years of one another's age) to indecency with a child to include gay relationships, or as Rep. Debbie Riddle put it, adding a "Romeo and Romeo" exception.

Throughout all the discussion of the "Romeo and Juliet" exception to the so-called "Jessica's Law" in 2007, that oversight certainly never occurred to me, and I watched the process pretty closely. Good catch.

Coleman's second bill, HB 2973, focuses on a topic discussed here recently on Grits in the context of Andre Thomas, the schizophrenic death row inmate who murdered his family then plucked out both his eyes and ate one: Whether the test for legal insanity should be simply whether the defendant "knows the difference between right and wrong." NAMI-Texas said the current definition is so narrow as to be "meaningless."

Under Coleman's proposed redefinition, it would be an affirmative defense to prosecution if an actor with a severe mental illness or defect "was unable to appreciate the nature and quality of the actor's conduct" or did not "appreciate that the actor's conduct was legally or morally wrong."

Rep. Miklos raised the objection that saying someone's conduct was "morally wrong" was a subjective standard, that everyone's definition of morality may be different. Chairman Gallego added that everyone on the dais likely had a different moral view of abortion, which could make "morally wrong" a moving target.

But George Parnham, a criminal defense lawyer testifying for the bill, did a good job of explaining the standard. He compared the subjective nature of the standard to defendants claiming "self defense" as an affirmative defense in a murder case. When assessing "self defense," juries are asked to consider the relative danger of a situation from the perspective of the shooter. Similarly, if a severely mentally ill person hears voices they believe to be God commanding them to do something, for example, since disobedience to God is wrong in the moral construct of the mentally ill individual, a killer following such "divine" instructions would qualify for the affirmative defense.

The discussion centered mostly around the Andrea Yates case - the mother who drowned her five children in a fit of postpartum psychosis believing it would save their immortal souls.

Somehow, as the discussion went on, I found myself thinking of the story of Abraham in the Bible, ordered by God to take his son Isaac to the top of the mountain and sacrifice his life. Abraham dutifully took Isaac to the appointed spot and tearfully raised his blade, ready and willing to plunge it into the body of his only progeny, when Divine Intervention stayed his hand. Abraham serendipitously found a goat whose horns were stuck in the brambles and sacrificed it instead.

No one else was there with Abraham to verify this story on the mountaintop, but from a modern perspective, we would not be surprised to discover Abraham was a schizophrenic hearing voices he believed to be God. Perhaps it's only by chance of fate that he didn't end his filial line at that moment rather than siring the Jewish people. I found myself wondering how the story about nearly killing Isaac would be viewed if Abraham were evaluated today by a mental health professional? It's as though Andrea Yates had decided at the last minute not to drown her children and instead founded a religion.

Such theological matters aside, Coleman's proposed definition reflects a medical understanding of mental illness rather than taking a black and white, "right and wrong" approach to mental-illness driven tragedies. He referred to current law as the "Hinckley Standard," reflecting changes made to various state laws in the '80s as a backlash after John Hinckley tried to assassinate President Ronald Reagan and was found not guilty by reason of insanity.

Andrea Yates' story, said Coleman, brought that reactionary standard back into focus and inspired this bill. Yates' defense lawyer was one of the witnesses testifying. Another gentleman related a heartwrenching tale of his step-daughter's struggle with schizophrenia and the religious delusions that led her to attack her father with a bow and arrow before she was shot by her father's officeworkers and police. A terrible story. I felt awful for the poor guy and his family.

The committee had an interesting and informative discussion on the subject of people who, as Judge Cathy Cochran wrote recently about Andre Thomas, are "clearly 'crazy,' but ... also 'sane' under Texas law."

I liked both bills. You can watch the video here, beginning at the 4:17:45 mark.