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August 17, 2011

"Lawyers for Defendant in Giffords Shooting Seem to Be Searching for Illness"

The title of this post is the headline of this interesting new piece from the New York Times.  Here is how it starts and ends:

Jared L. Loughner’s grandparents and great-grandparents died years ago, but lawyers defending Mr. Loughner in connection with a Jan. 8 shooting spree outside Tucson are delving into their lives and those of numerous other Loughner ancestors in an apparent effort to show that mental illness runs in the family.

A raft of subpoenas that Reuben C. Cahn, one of Mr. Loughner’s lawyers, issued last month, and then withdrew, indicates that the defense is researching the backgrounds of many of the defendant’s relatives from Illinois, all on his mother’s side....

Legal experts consider the attention on Mr. Loughner’s relatives part of his defense team’s effort to bolster an eventual insanity defense or to argue against the death penalty. “If the defense can show that mental illness runs in the family, they have a stronger case, one that is more convincing to the jury,” said Christopher Slobogin, a professor of law and psychiatry at Vanderbilt Law School. “Short of a brain scan that shows mental defect, a family history of mental illness is the most persuasive evidence that someone had significant mental problems at the time of the crime.”...

Two mental health experts have diagnosed schizophrenia in Mr. Loughner. Because he has been determined a threat to himself and others, Bureau of Prisons psychologists have been forcibly medicating him, which his defense team has strenuously objected to in a series of court filings.

Mr. Loughner’s lawyers have asserted that prison officials may be administering medication to their client so they can prepare him to face the death penalty. “Mr. Loughner has a due-process right to bodily integrity free of unwanted, forcible administration of psychiatric medication,” his lawyers wrote in a recent request for a court hearing on the matter.

Mr. Loughner’s lawyers have also urged the court to order the videotaping of Mr. Loughner’s interviews with prison psychologists. They say he suffers from a condition called echolalia, which makes him repeat whatever is said to him, that the defense wishes to monitor.

August 17, 2011 at 10:45 AM | Permalink

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"Jared L. Loughner’s grandparents and great-grandparents died years ago, but lawyers defending Mr. Loughner in connection with a Jan. 8 shooting spree outside Tucson are delving into their lives and those of numerous other Loughner ancestors in an apparent effort to show that mental illness runs in the family."

Of course it makes not a particle of difference if mental illness runs in the family. The only question is whether LOUGHNER is mentally ill. If he is, he may have a defense. If not, he doesn't. But the mental health status of his relatives has no bearing on anything.

Those who are outraged by Buck v. Bell, which is almost everyone who knows about it, should rebel at the notion that we can insinuate mental illness in Mr. X because Mr. X's ancestors were nuts.

This is just a poorly disguised defense attempt to run the clock, and the meter. In other words, it's the usual death penalty "defense."

Posted by: Bill Otis | Aug 17, 2011 4:08:21 PM

I respectfully disagree with you on this one, Bill. You are correct that the issue is whether Loughner is mentally ill, which is a determiantion that will be made by either a judge or a jury. I would assume that the state and the defense will put up competing psychological experts.

The family history of mental illness is thus very relevant to the credibility of the defense psychologist. Many serious mental illnesses--schizophrenia among them--can be genetically passed through generations. If the prosecution tries to claim that the defense expert is out to lunch, a family history of mental illness is a piece of evidence that can lend further credibility to his/her analysis. Obviously the family history is not dispositive, but it is something I'd like to at least be aware of as a factfinder.

Posted by: Res ipsa | Aug 17, 2011 4:59:10 PM


Res ipsa --

With all respect, the question is not whether the assertion of mental illness is credible. The question is whether it's true.

It order to answer that question, you examine Loughner. Examine him as carefully as you like, but examine ONLY him, because only his mental state counts in his defense.

Put another way, the question is not whether schizophrenia can be passed from one generation to the next. The question is, does he have it? If he does, it doesn't make any difference where it came from. And if he doesn't, it doesn't make any difference where it could have come from but didn't.


Posted by: Bill Otis | Aug 17, 2011 5:46:05 PM

I assume the court will know the legal standard that Bill Otis has just stated. Researching family history is fairly standard medical procedure for any condition that is capable of being inherited. His lawyers would be incompetent if they did not pursue it.

Posted by: Marc Shepherd | Aug 17, 2011 6:09:16 PM

Mr. Loughner appears to be very ill, even to untrained people. When he speaks, he removes all doubt.

That illness makes him very dangerous and explains his crime. Medication sometimes works, sometimes does not, can be taken or refused, etc.

Whether he takes medication or not, he should be executed as soon as possible for public safety purposes, as well as for retribution for his mass murder. Severe mental illness should be a decisive aggravating factor because the crime is not rational, and could happen again for no reason.

In the insanity defense, the lawyer has it backwards. Insanity should compel a mandatory execution. How can the lawyer be so stupid? He is not. He is generating more government work, and rent seeking. These hidden agendas make the insanity defense and all court decisions adverse to public safety ones in bad faith. They are not disclosing their real intent, to steal tax money using pretextual, false reasons.

If anyone believes in prayer, that is all that remains in this airtight rigged, pro-criminal, pro lawyer rent seeking system. Pray Loughner attacks his defense lawyer and inflicts painful injuries. Pray he can reach the judge in court, and inflict serious injury. If the prosecutor and clinician want to be clever, they will stop all attempts to force treatment, and leave him in his natural state.

Posted by: Supremacy Claus | Aug 18, 2011 6:28:17 AM

Bill, I fear you are playing with words - artfully - but playing with them no less, to support your argument. So I have two questions for you, the answers which I expect will clarify your argument to me. Of course, as you know, you've no obligation to answer me, but I hope you will.
1. factfinders decide truth in part based upon the credibility of the assertion, no?
2. If reasonable minds can disagree whether the assertion that the defendant is mentally ill is true or not, doesn't the credibility of the assertion lend weight to its truth?

Whether or not family history of mental illness - on any scale - lends credibility to the assertion that the defendant is mentally ill, is outside my expertise, but, in a close case, it seems that it might.

Posted by: = | Aug 18, 2011 10:16:18 AM

= --

Having been around the track a time or two, let me explain what's actually going on.

Since the entire world knows that Loughner did it, his only chance it to stage an insanity defense. It's easy as pie to pay a shrink for his testimony that client X is insane; every sophisticated defense lawyer has the names of several such reliable shrinks on his Rolodex.

So it's a pretty good bet that, as you suggest, there will be evidence about which reasonable minds can differ about whether Loughner's crazy.

That's the only question the jury should be thinking about. What the defense wants to do is nudge the jury toward its desired answer by trying to convince it that Loughner's RELATIVES were insane, even if it's not convinced that HE was.

To see that it's a stunt, consider this: What would you say if, in a case where factual guilt was in doubt, the prosecution wanted to put on evidence that the defendant's father and grandfather were convicted years ago of the same offense charged against the defendant?

You'd say it was an outrage, and you'd win your motion to exclude it. Even assuming that the proffered evidence showed a "criminal propensity," such a thing is simply too attenuated from the only question properly before the jury -- not whether the defendant might have inherited a "propensity" to do it, but whether, in the here and now, he ACTUALLY did it.

Same deal here. The only question is whether he's insane, not whether by genetics he has a propensity to be insane. There are zillions of people in this world who never act on their inherited, or otherwise acquired, propensities. It's no more than an attempt by the defense to get a "close enough" insanity verdict.

Posted by: Bill Otis | Aug 18, 2011 2:18:47 PM

Bill:
Given that it is a stunt, that it has no value of proof about whether the defendant is mentally ill, then why would the court admit it into evidence? I assume the defense believes there is at least a good chance any evidence it finds of family mental illness will be admitted into evidence, allowable for the jury to consider, otherwise they wouldn't waste the time doing it (I seem to recall one of his lawyers is highly regarded, and even perhaps requested by the court to travel out of state and represent the defendant -- which makes me think such an attorney would not let the team waste time on somethnig so frivolous).

Posted by: = | Aug 18, 2011 4:34:22 PM

= --

The WHOLE POINT is to waste time (and money). Running the clock and the meter has become THE standard tactic of capital defense. Things have come to the point that if defense counsel DIDN'T do it, he be attacked on appeal as ineffective.

Timothy McVeigh's lawyer, who was also very highly regarded, managed to waste almost $14,000,000 of taxpayer money stringing it out and trying to put together some phony story about a third man allegedly involved in the plot. Do you think that was a good investment too?

Posted by: Bill Otis | Aug 18, 2011 6:33:01 PM

Bill:
Well, if that is de rigeur, and again, if it truly is a stunt, wouldn't courts nip that in the bud? I can't imagine the NDVa putting up with such delay tactics...nor can I really imagine most SDNY courts letting that slide. I know there must be pressure on a court to give leeway to a defendant in a death penalty case, lest it be reversed and have to hold a second trial, or allow a jury to render a death sentence when there could be constitutional flaws in the trial, but what you seem to be suggesting is defendants in capital cases will regularly engage in frivolous litigation. Surely US Attorneys are not so naive to let that happen without a fight?

I suppose I just don't believe your premise. I acknowledge I lack the experience that you profess to have (this is an acknowledgment that the medium here is the WWW, and, anyone can be anyone) but what you have suggested means that defense attorneys are running the courts. And that I know is untrue.

Posted by: = | Aug 18, 2011 9:05:45 PM

You didn't answer his question. If the purpose is delay, why would the judge allow it? Stupid judge? Biased judge? Daubert error?

An examination of the family history of mental illness would seem to provide some evidence that Loughner is mentally ill, although not necessarily legally insane. But you can't answer the latter without at least determining the former. I thought it was well known that the offspring of a schizophrenic has a greater chancer of being schizophrenic than someone who has no family history of the disease. So inquiring into family history could provide some evidence of mental illness. What, do you know if under Daubert or some other standard if this is illegimate quackery? Because I don't see how it's dilatory to pursue this line of inquiry.

Posted by: Moron | Aug 18, 2011 9:19:09 PM

= and Moron --

I'm glad to hear you have such faith in the judge. I literally made my living showing a higher court that the trial judge made an error. It happens all the time.

You're also assuming that the trial judge's decision to allow the exploration means he has decided to admit the results of that exploration. But that's not what it means.

He might admit those results, but his present ruling hardly commits him to that outcome. For now, from the court's point of view, the safer route is to allow the fishing expedition (for reasons explained in ='s third sentence), and since the order is interlocutory, the government can't appeal.

Posted by: Bill Otis | Aug 18, 2011 10:49:16 PM

Yes, but you didn't dispute our points. Is the line of inquiry illegitimate? Dilatory? How? I see that it may be safer for the judge to allow the investigation to go forward, before ruling on its admissibility. I don't see much in the way to show that the investigation is inherently suspect. If it yields results, then the evidence will be probative toward supporting mental illness.

Posted by: Moron | Aug 19, 2011 2:11:59 AM

The recognition of mental illness is accurate across cultures and universal. So an Eskimo can accurately tell you if a pigmy is mentally ill. Any shrink who tries to fool the jury will fail.

Posted by: Supremacy Claus | Aug 19, 2011 5:34:08 AM

If I'm not mistaken, family history of mental illness is deemed relevant as a diagnostic factor by the medical profession/DSM/etc. That is good enough for me.

I don't doubt that if a prosecutor thought someone was faking schizophrenia, and he or she had access to family history showing no similar problems, it would be offered as circumstantial evidence tending to make the malingering/faking theory more probable.

Interesting idea to tape interviews with State shrinks. Could be helpful if you are worried shrinks are using a lot of leading questioning and then writing up their findings in a potentially misleading way. But that door swings both ways. Do defense counsel really want their own experts' interviews with client taped and available to the State?

Posted by: Anon | Aug 19, 2011 1:35:28 PM

One little OT objection: Bill, you said you "literally made my living showing a higher court that the trial judge made an error." I don't believe you.

Because that's what *I* do for a living. I've never met an appellate prosecutor who did that "for a living." Appellate prosecutors make their livings explaining that all of the errors we identify in the trial court proceedings are harmless!

A quick Lexis ALLFEDS search for COUNSEL("William G. Otis" w/s appellee") shows 101 cases, whereas COUNSEL("William G. Otis") shows 142, and that includes both Appellant/Petitioner cases and amicus. So I'm going to say that you were defending the trial court's judgment 2-3 times as often as you were challenging it.

Just sayin'.

Posted by: Ohio PD | Aug 19, 2011 2:01:00 PM

Ohio PD --

"Bill, you said you "literally made my living showing a higher court that the trial judge made an error." I don't believe you."

You don't believe in the DP either, so I feel like I'm in good company.

"Because that's what *I* do for a living. I've never met an appellate prosecutor who did that "for a living." Appellate prosecutors make their livings explaining that all of the errors we identify in the trial court proceedings are harmless!"

Actually, they make their livings explaining that all the things the PD "identifies" as errors aren't.

In a sense, though, I plead guilty to your charge. (See how easy it is to say "guilty")! Since the government wins 90% of the time or thereabouts in district court, it's the appellee in almost all in the Circuit.

As you correctly point out, I was the appellee most of the time, but nowhere near 90%. For a government lawyer, my percentage of times appearing as appellant was disproportionately high by a large amount.

There was a reason for this. Since I was the division chief, I hogged all the juicy cases (i.e., the ones in which the district judge ruled against us) for myself. This was especially true for sentencing cases. When it came across my desk in the pre-Booker days, a downward departure was a presumptive appeal. I usually filed the notice of appeal the day of sentencing, confident that I would be able to talk the Solicitor General into going along with it. And almost all the time, that's what happened.

So while in a sense I plead guilty, let me offer some mitigating evidence. When you appear for the government as appellee in a criminal case, especially in the Fourth Circuit as it was then constituted, it was like the proverbial fish in a barrel. Technically you're earning your paycheck, but actually you could do it in your sleep.

Appearing as appellant was a different matter. Those cases tended to be more prominent, got more attention from the US Attorney and Main Justice, and in general tended to be more intellectually challenging (since district judges don't rule against the government for no reason). So I think it's fair, even if not literally correct if you simply count the numbers, to say that I earned my living showing the Circuit that the district court made an error.

And gads do I miss it. I later (after John left) became a political appointee in the last Administration, but I had the time of my life at the podium of the Fourth Circuit.

Posted by: Bill Otis | Aug 19, 2011 8:40:10 PM

"Actually, they make their livings explaining that all the things the PD 'identifies' as errors aren't."

Maybe that's the way it works in the federal system, but it doesn't work that way in Ohio, my friend. I guarantee you that in all of the cases that I supervise (yep, I'm a supervisor as well-5 appellate attorneys), the phrase "the error was harmless" appears about 5 times more often than the phrase "the court did not err" or its functional equivalent. The cops, prosecutors and judges in state courts are far more prone to real error than their counterparts in the federal system. For example, yesterday I reviewed a case for ineffective assistance of appellate counsel, where the appellate court ruled that it was harmless to admit an in court ID--even though the investigating officer had on two separate occasions over the course of a year showed the witness photo lineups and told him that the defendant / suspect was in the lineup (witness could not pick him out), and then at a subsequent physical lineup told the witness the name of the defendant, that he was the suspect, and that he was in the lineup.

Now, I suspect a smart and ethical prosecutor would find a way to present the case without that tainted ID. But not in Ohio. Hence, lots of harmless error.

BTW, while I haven't commented on your C&C posts (I post under a psedudonym because I'm a public employee and don't want my opinions to be attributed to my agency) about the London riots, I generally agree that the rioters are hoodlums rather than class victims. But you really talk squarely out of your rear end with a ideological rather than informed view when you try and attribute the riots to the welfare state. At least when I say I don't believe in the death penalty, I don't pretend I've got some special authority on the point. You should stick with what you know. At least when you're wrong there, you've got something to fall back on!


Posted by: Ohio PD | Aug 20, 2011 6:30:47 PM


Ohio PD --

You might have noticed that Kent and I link to numerous widely published essays all pointing to the culture of grievance and entitlement -- in other words, the culture spawned by the welfare state and its assumptions about human nature -- as being at the bottom of the riots.

As to harmless error: I would only very rarely use that argument, since I regarded it as a weak sister. You also don't endear yourself to the district bench by telling the circuit that they blew it, only it didn't matter.

Not that I cared all that much about endearing myself. As I was saying, the money part of my job was to write the topside briefs running them out of town.


Posted by: Bill Otis | Aug 20, 2011 10:55:25 PM

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