a Redo

In the Friday, March 1, 2019 edition of the Arkansas Democrat-Gazette, B section, was a story entitled, “State unveils redo of defendant mental exams.” If you didn’t read it then I suggest that you should, and also the case Ake v. Oklahoma.

The “redo” that the state of Arkansas is in the process of implementing, will “streamline the legal process for criminal defendants whose mental health has been called into question.”

For those that have been following my case, you know that one of our arguments is the State of Arkansas failed to provide an adequate evaluation due to biases and outside influences. The fact that the evaluation failed to note or contemplate the impact of my history of child sexual abuse, domestic abuse, or coercion of my abuser to commit the crimes makes it hard to deny.

“The program restructures the procedures for providing mental evaluations in criminal cases, and also has the goal of improving the lives of defendants whose untreated or under-treated conditions.”

Imagine what could have been done in 1997, under these new guidelines to change the outcome of my case and lead to the prosecution of Jack Walls. What might the court have learned and been provided with, if that evaluation had properly documented and then explained the grooming, manipulation, sexual abuse, threats, and coercion that I faced as a victim of Jack for a decade? Or, what would such evaluation have done to undermine the failure to investigate fully by Larry Cook, as well as those he was responsible for, and establish that my mother catching Jack molesting me as the motive for the murders not a failed robbery on my part?

In 1997, the impact of child sexual abuse, complex trauma, and the like were not even recognized and, lacking that informed context, how could an evaluation be adequate?

“The behavioral services division is responsible for arranging the forensic mental evaluations for defendants whose fitness to stand trial has been called into question.”

It should also be responsible for the poor performance of any of those that are paid to conduct those evaluations and ensure that the court has adequate information to determine the influences on the mental state of the defendant before, during, and after the circumstances that lead up to the charges.

“The evaluations are to diagnose defendants for possible mental illness and determine whether they understand the criminal proceedings and can assist in their defense.” 

“A finding that a defendant is mentally ill can lead to a secondary evaluation for criminal responsibility to determine whether the defendant knew right from wrong at the time of the offense and was able to control his behavior at that time.”

One must also ask why does it take finding one mentally ill for the state to evaluate for criminal responsibility? State law requires the evaluation, in the form of a report, but does it go far enough to ensure that the same adequately informs the court of one’s mental state? Ake v. Oklahoma, clearly established that when an indigent “defendant demonstrates…that his sanity at the time of the offense is to be a significant fact at trial,” the State must “provide the defendant with” access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.”

Ake clearly established that when certain threshold criteria are met, the State must provide a defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. Ake does not lay out that a defendant must first prove that he is mentally ill because the term “mentally ill” becomes a matter of opinion and subjective interpretation of the testing and evaluation procedure. As long as the defendant is 1) indigent; 2) his mental condition was both relevant to the punishment he might suffer; and 3) seriously in question then the state is required by clearly established federal law. Why should a defendant be provided someone “independent from the prosecution” to effectively conduct an appropriate examination and assist the defense?

The court in the Ake decision clearly understood that State evaluators and prosecutors obviously work for the State, and any results of testing and evaluation as well as the information provided by the prosecutor is subjectively slanted towards prosecuting the defendant. The prosecution is looking to show one’s “blameworthiness” and the defense is seeking to show limited “culpability” through often the same circumstances and factors. How can one mental health evaluator provide both, accurately and objectively, and be considered impartial while offering both sides enough to ensure unbiased and fair consideration of the court?

While I am sure that the new standards are meant to offer a more constitutional representation of what every defendant should receive, it still does not offer enough to create an impartial and unbiased informing of the court or provide even the basic evaluation standard as discussed in McWilliams v. Dunn by the U.S. Supreme Court.

Currently, the Arkansas evaluation is unconstitutionally hampered by the restriction that one must first prove that they are insane to be eligible for what should be mandatory so that it is constitutionally effective. How can one contribute to his own defense, without effective interpretation of his mental state, by someone that has been trained in that process, and who hasn’t had their objectivity compromised by other State agents? In fact, a psychiatrist may, among other things, “gather facts,” “analyze the information gathered and, from it, draw plausible conclusions,” and “know the probative questions to ask of the opposing party’s psychiatrists and how to interpret their answers.”  No state evaluator is going to do that, in Arkansas, for the defendant of a public defender, whose job is to represent those who can’t afford to pay for such in their defense. Why would the state pay for aiding the defense when their job is to prosecute to the fullest extent of the law, and such independent evaluation outside their control and biases would call for compassionate sentencing with rehabilitation in mind?

I applaud the leadership of DHS for wanting to reform this critical part of court procedure, yet we must ask if the reform goes far enough to ensure justice is the outcome for all defendants.

“Without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high. With such assistance, the defendant is fairly able to present at least enough information to the jury, in a meaningful manner, as to permit it to make a sensible determination.”

The U.S. Supreme Court recognized that evaluation is done by evaluators hired by and paid for by the State, and that means it is their job to support state agents in the process of prosecuting defendants. What constitutional violations exist for a biased evaluation, no mental evaluation hearing, and a history of child sexual abuse erased?

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