Capital Litigation Webinar: Mitigating Mental Health Defenses
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Capital Litigation Webinar: Mitigating Mental Health Defenses

– [Allie] Good afternoon everyone. Welcome to the Mitigating
Mental Health Defenses webinar. All of our participants are currently on listening only mode. To listen to today’s presentation, you will need to connect the audio from your computer via the platform. Please click the audio symbol
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slide you see on your screen. As a note, we will be
recording this webinar today. We will also conduct a
question and answer session at the end of the presentation. So, please write down any questions you may have during the event and would like to ask
during the Q&A session. To kick off our event today, Sasha Beatty from the Association
of Prosecuting Attorneys will introduce our speaker. – [Sasha] Thank you. Good afternoon. My name is Sasha Beatty and
I am deputy general counsel at Association of Prosecuting Attorneys. APA is a private non-profit
located in Washington, D.C. serving prosecutors as well
as their law enforcement and community partners. Thank you for joining this
capital litigation webinar today. This presentation is made
possible by Grant 2018-CP-BX-K002 awarded by the Office of Justice Programs, through the Bureau of Justice Assistance Capital Case Litigation Initiative. APA is very appreciative of
their financial assistance and commitment to improving
the justice system. Additionally, a thanks to BJA’s National Training and
Technical Assistance Center for providing the platform
for today’s webinar. Points of view or opinions
in this presentation are those of the presenter and do not necessarily represent the views of the U.S. Department of Justice or the Association of
Prosecuting Attorneys. Today’s webinar, Mitigating
Mental Health Defenses will be presented by Ed McCann of the Montgomery County Pennsylvania District Attorney’s Office, Ed McCann, Jr. joined
the Montgomery County District Attorney’s
Office February 1, 2016 as the first assistant district attorney after serving for 26 years in the Philadelphia
District Attorney’s Office. In his role as first assistant, McCann oversees the day to day
administration of the office, as well as supervises the legal staff and the nearly 9,000 cases prosecuted by the office annually. McCann is a frequent speaker and educator conducting national
trainings for prosecutors, law enforcement, and social workers in the investigation
and prosecution of cases of physical abuse of children
and domestic violence. He is also a frequent instructor
on mental health defenses and homicide investigation
and prosecution. And with that, I will now
turn it over to our presenter. – [Ed] Good afternoon, everybody. I appreciate the introduction, Sasha. I just wanted to tell you
a little more about myself in terms of the experience I’ve had in this particular topic. Been a prosecutor for 30 years. I was the chief of the homicide unit in Philadelphia for about seven years. So I was involved in a
lot of investigations of serious crimes where mental
health defenses were used, both at the guilt phase of the case, and obviously in the
penalty phase as well. The first slide sort of sums up what I hope you can get
out of this presentation and that’s talking about
how the focus on these cases while it’s tempting to focus
on the mental health evidence that it’s important to focus on your case and on your burden of proof as your primary job as a
prosecutor in these types of cases. Of course, you have to address the defense but don’t make the case about the defense. Make the case about your victim, make the case about
the facts of your case. That’s the most important
thing to remember when you’re doing these cases. As I said, you want to focus
on the crime and victim. Cases rarely rise and fall on whether a defendant
has a mental illness but the defense is almost
always going to make it about the mental disease or defect. In short, the mental infirmity defense or the mitigation evidence is used to provide an explanation for the defendant’s behavior, and we see that in terms of even how defense attorneys are trained. I excerpted this from a defense attorney criminal practice report book, you want to prove that
the syndrome evidence that you advance explains your client’s conduct. You want to build a bridge
from the mental disorder to the conduct which gave
rise to the charged crime. And you could see as prosecutors how that could be problematic. And we really have to focus on our case, on our burden of proof, and not allow that to happen, not allow the case to
essentially be hijacked in terms of the mental infirmity
defense or the mitigation. So when I talk about focusing on the crime and on the victim, these are some issues that
you might want to consider when you’re first evaluating your case. When I talk about the
defendant’s physical capacity, I’m talking about his
ability or her ability to actually perform the
act that you’re charging. But more importantly, in terms of the mental infirmity issues, you want to look for evidence
of planning and deliberation, evidence of calculation, evidence of concealment, flight, and basically any evidence that the defendant knew
what he or she did was wrong by society’s standards. And the way I sort of sum that up is talking about an intact
awareness of wrongfulness in terms of intact, in terms of their cognitive abilities. How do you anticipate these defenses? It really could sort of jump out at you even if you’re not a very
experienced prosecutor. You can look at cases where
there’s lack of apparent motive, seemingly random types of
attacks like spree crimes. If you have a homicide case where you see real
overkill type of evidence. And cases that sound crazy
even to a prosecutor. We hear a lot of really bad things and deal with the dark side
of people all the time. But when I look at these
two cases in particular, when I talk about
Commonwealth versus Heidnik and Commonwealth versus Graham, even really experienced prosecutors would look at a case like this and say, “This is definitively going to be a case “where mental infirmity
defense is going to be used.” Heidnik was a case where the defendant kidnapped, tortured, and raped six women. He killed two of them
and kept them prisoner in a pit in his basement. And Harrison Marty Graham, the Commonwealth versus Graham referred to in this presentation, he killed seven women, wrapped
their bodies in sheets, and piled them in his bedroom. And he was evicted from his apartment due to persistent foul odors and that’s when the
bodies were discovered. You have cases like that
kind of jumps out at you that the defense may be some type of mental infirmity defense. Then obviously a defense
background can make a difference in terms of your knowledge of perhaps this person has
been previously treated for a mental disease. Maybe just got out of the hospital for an involuntary commitment,
things of that nature. These are all sort of situations where you might want to think about anticipating the fact
that this could happen. Anticipating mitigation
in a homicide case, again, circumstances of the offense, the family history, and that can mean a lot
of different things, can mean a family history
for mental illness but also potentially family history of neglect of the children,
things of that nature. You’re often going to see
organic brain disorder, child head injury type of evidence in a first-degree murder, a case where it could
potentially be a capital case. Post-traumatic stress disorder, which I’ll talk a little
bit more about later in this presentation. But if you have a defendant who has served potentially in the military or something of that nature, a defendant who lives in a neighborhood where there’s a significant
amount of violence, you may have post-traumatic
stress disorder type of evidence come out in mitigation. Then of course, drug and alcohol abuse is always a big issue in mitigation. So what can you do
during the investigation? There’s certain things
that you can focus on and think about during the
course of the investigation even of these types of cases. Eyewitness observations. Obviously, again, getting back to what
I talked about earlier in the presentation. What is the evidence of how the defendant conducted himself or herself
during the course of the crime? Was there behavior that suggested
calculation, deliberation, understanding the wrongfulness
of his or her conduct? The suspect’s behaviors as observed by those who are
interactive with the suspect. And that means in a case
where you might think that you’re going to have
a mental infirmity defense, what do the police say about
the defendant’s behavior at or about the time of
arrest and thereafter? What do other folks say that may have come into
contact with him or her, including people like
potentially EMS workers, hospital workers, other people
that may have had contact with the defendant right around
the time of the incident. A defendant’s family and friends. Particularly early in the investigation, you may get some cooperation from them about what his or her behavior was like in the immediate time
leading up to the incident. I already talked about
interaction with the police. If you have sort of videotaped interviews, which obviously is a really good practice, you may be able to see some behavior there during an interrogation, where it’s obvious that
a defendant’s behavior evidences that he
appreciates what’s going on and that he’s able to waive his rights and able to articulate what has happened. And then any other aspects
of a suspect’s life. A really good example of this would be in the Heidnik case. Now, it’s obvious that anybody that would imprison women and kidnap them, and sexually assault them
in sort of a serial way may have some serious mental disturbances. However, he clearly wasn’t insane. And one of the ways that that was proved was the fact that he had a
bunch of investment accounts where he was making tens of thousands in
dollars from investments. He was a very smart and wise investor. Sort of shows that in
other aspects of his life he was cognitively intact. Those are the kinds of
things you want to look for. How does he handle his money? How does she perform in her
job, things of that nature. What other aspects of the suspect’s life can shed some light on the issues here? When should you consult with an expert? The best answer to that
would be as soon as possible. Can be difficult I know because
we all have resource issues in terms of our ability to perhaps afford a forensic psychiatrist or something of that nature but to the extent that you’re able to, consulting with an expert
early in the process is a really good process. The quote from the case that started off this presentation,
the John du Pont case, which of course they made
a movie out of that case but in any event in that case, the prosecutor, Joe McGettigan, told me that he consulted an expert while the defendant was
still in a stand off with authorities before
he was even arrested. And in fact, the first
person that he had called, had already been called
by the defense attorney. That’s an extreme example perhaps, but gives you some insight into the fact that it’s important to consult an expert as early as you possibly can. And records which we’re going
to talk about at length here are really important
in terms of evaluating the credibility of these defenses and helping you make the right decisions. So when we talk about records. Records to me, the most important records would be the records that are
sort of objective records, not things that happened after the arrest, not testing that happened after the arrest but stuff that you can look back on that tells you a story
about the defendant’s life in real time in terms of when it happened, rather than having something created after the fact by somebody
that’s evaluating. This will be something that
you can really take a look at and get some objective measure
of a defendant’s behavior. So what kind of records give
you that type of information? School records, I think,
are really relevant. You get a chance to see how
someone performed in school, you get a chance to see
their disciplinary issues, if they had any at the time. Juvenile and Child
Protective Services records are also really important. When I was in Philadelphia, one of the things that
I took the most stock in were these types of records, in terms of whether to evaluate, whether to even proceed
with a capital case on a defendant or not. Sometimes these records
show horrific treatment of a defendant at the time
that they were growing up and that may really shed some light on whether it’s a case that
you really want to proceed with as a capital case, based on some significant mitigation that you might be able
to find in those records. Those records can be really
revealing and important. Employment and military
records, for obvious reasons. The defendant’s criminal record and if you can get pre-sentence and psychiatric or psychological reports if they were prepared at the time, those are really important as well. Probation and parole records to see how the defendant has
done on probation and parole, how he interacts with his
probation and parole officers, if he’s compliant, things of that nature, could be some drug testing records. Medical and psychiatric
records with the caveat that we’re going to talk about in terms of potential privileges, but a defendant who
places his mental status in issue in the case, those records will certainly be relevant. Prison records can be helpful as well. I don’t think there as helpful as all the rest of the records that I’ve previously talked about, but particularly in a
mental infirmity defense, you may see how the
defendant is now adjusting given the fact that they are
under psychiatric medication or you want to know if
they’re in the medical wing of the prison, how the doctors and nurses are
interacting with the person, things they may be saying. A lot of times those records
can be really helpful in terms of a prosecution
of these types of cases. So there are some privileges
and confidentiality that goes along, particularly with psychiatric records which I’m going to talk about in a second. HIPAA gets thrown around a lot by people that don’t
want to give you things, but essentially there is a law enforcement exception to HIPAA concerning getting a
court order or a warrant. A grand jury subpoena usually
will take care of any issues that HIPAA might bring. You may have to limit
the scope of your search depending on certain issues, but for the most part you’re going to be able
to get these records assuming that they’re
relevant for the case. I would still be very careful
about mental health records until such time as those records become definitively relevant in terms of the defendant’s intention to proceed with a mental
infirmity defense. Most states have the psychotherapist-patient
privilege codified, that’s Pennsylvania’s right there. Some states have the proposed but never enacted Federal
Rule of Evidence 504. So you should look to
your own states to see, as I said, some states do
have this Rule of Evidence 504 that was never enacted federally, but in some states it has been enacted. And that basically says, “There’s no privilege under this rule “as the communication
is relevant to an issue “of the mental or emotional
condition of the patient “in any proceeding in which he or she “relies upon a condition “as an element of his or
her claim or defense.” So basically what that means
is that assuming a defendant is going to put on mitigation evidence that includes his mental
health or her mental health, or is going to proceed
with a diminished capacity or insanity defense in the case that there’s no privilege
for those records. At that point, you’re entitled to get them although I would always
seek the court’s approval in getting psychiatric records. Many states elevate the
psychotherapy privilege at the same level as the
attorney-client privilege, meaning that it’s a pretty
highly valued privilege and something that is very hard to pierce unless it’s the specific circumstances that we’re talking about here. Prior records of
treatment when a defendant that serves a mental infirmity defense, or a case where a defendant is going to put on some
mental health evidence for the purposes of mitigation. In Pennsylvania, a
defendant is not entitled to psychological counseling
records of a victim or witness. However, that’s not the case everywhere. Several states have allowed access to such records even in the
face of an absolute privilege. So you have to do your research
for your particular state. For example, the Kentucky Supreme Court found that the defendant’s constitutional rights to confrontation prevail over an evidentiary privilege in allowing defense counsel access to a rape victim’s psychotherapy records, and I’ve cited a case there too. Many states have allowed at
least in camera inspection of such records upon a preliminary showing that the records may contain
exculpatory material. You really have to make
sure you understand what the law is of your state because it’s not necessarily a bar for victim or witness
records in all states as it is in Pennsylvania. Now, in terms of a case
where a defendant decides that he or she is going to proceed with a mental health defense
or mitigation evidence that’s going to include
mental health evidence, they must submit to an examination by the prosecution’s expert. The prosecution is entitled
to reciprocal discovery of mental status examinations and expert reports of such examinations if the defendant is using
a mental infirmity defense. In terms of procedures, some states have statutes
that govern such examinations. I’ve put an A.L.R second cite for that, and then other states
allow for such examinations by court order and there’s an
A.L.O fourth cite for that. So, A.L.R is actually something that’s a really a good resource if you can find a specific
topic that you’re looking for because they collect cases from each state in terms of specific procedures. So those two A.L.Rs are a good resource to find out what your state’s law is in terms of examinations, how they’re ordered. Whether it’s a statutory issue or it comes from case law. So who should be present
at this examination? One of the big questions
I’ve always gotten when I present on this material is about defense counsel being present. And again, in Pennsylvania, in certain cases judges let
defense counsel be there in others they don’t. There’s no definitive law. You can check your law in
that A.L.R fourth citation that I put in the materials here about rights of an accused
in criminal prosecution, the presence of counsel or court-appointed or approved psychiatric examinations. So there’s no one right answer for that. You have to kind of look at
it in a state by state way. I think it’s really important
to get the raw notes of the examination that
the defense administers, as well as any psychological testing. I’ll tell a quick story about raw notes. I had a case, the first
insanity case that I tried, a murder case back in 1997 where I had a case where
a Vietnamese defendant killed a Buddhist monk in
a temple in Philadelphia by stabbing him many, many
times somewhere over 50 times and then went to the police
station covered in blood and said, “I want to report a homicide,” which was obviously in our mind. He clearly had some
potential mental illness but had an intact awareness
of what he did being wrong. The defense hired a
Vietnamese psychologist to be one of the defendant’s
witnesses in the case, one of the defendant’s
experts in the case. And I asked for his raw
notes and in fact got them, and they were all in Vietnamese. Fortunately, when I
worked in Philadelphia, we had a victim-witness coordinator who had come over from Vietnam
as a U.S. citizen at the time and was able to translate
these notes for me and it was very incriminating
for the defendant because it said that he was
afraid of getting caught in these raw notes that I got. That’s an extreme example of how raw notes can really help out. But I think it’s really important because a lot of times you
may see, if you get raw notes, you may see certain aspects of what the defendant
tells his or her experts that are left out of the ultimate report that’s filed in the case. The defendant must submit to an independent psychiatric examination if he or she intends to introduce mental health expert testimony
in mitigation as well. In Pennsylvania, the results
of such an examination are to be sealed until the penalty phase. In other words, the
prosecution is not entitled to get the result until
the penalty phase starts. So if there’s no penalty
phase in the case, then you never get access to it. It kind of hampers you somewhat, but I can understand how
that rule sort of guarantees or helps to guarantee the
defendant’s right to a fair trial without having that evidence come forward in the guilt phase, because it’s probably
not going to be relevant in the guilt phase. He or she has a right
to go through the trial potentially arguing that
you didn’t prove your case and you should not be allowed to use the information that you get in terms of mitigation in your case. And several courts agree with that including Georgia, South Carolina, and Tennessee Supreme Courts, and several United States District Courts. However, Arizona and California have found that such a
procedure need not be followed, and that you can have access to the mental health expert’s report, the independent expert’s
report, or your expert’s report prior to mitigation being
presented by the defense. And just one final thing on that issue, and we’ll talk about
that a little bit more when we talk about how
to deal with experts in terms of cross-examination and how you put your own experts on. But obviously, that hampers
your preparations somewhat, particularly if you don’t
have much of a break between the end of the guilt phase and the beginning of the penalty phase. But it’s just something that
is a factor in many states in terms of the law of when you get access to your expert’s testimony, or not testimony but his or her report in the particular case. We’ll talk about competency to stand trial for a few minutes. A person is incompetent when he or she is “substantially unable “to understand the nature or object “of the proceedings against him or her, “or to participate and assist
in his or her defense.” Did the defendant have sufficient ability at the pertinent time to
consult with his or her lawyers, with a reasonable degree
of rational understanding and have a rational as well
as factual understanding of the proceedings against him or her? A defendant is presumed competent and must prove her incompetence by preponderance of the evidence, and the decision as to
a defendant’s competency rests within the discretion
of the trial judge. In other words, just because
you have a psychiatrist or psychologist that makes an opinion that a defendant is incompetent, that doesn’t end the inquiry. The judge’s determination
is what decides the day in that particular issue. As I said, expert testimony is
relevant but not dispositive. And I think this is a particular area where it’s really important to see how is the defendant functioning in other areas of his or her life? And the example that I like to talk about in this issue is a defendant
named John Keosaian, who was an elderly defendant
in his 80s close to 90 who shot and killed a man in Philadelphia back in the early 1990s. And he had a dispute with this victim, who was in fact his accountant and somebody that had
done some work for him. And he ends up shooting
and killing this guy and then being found incompetent for a long period of time based on experts opining
that he had dementia and that he was not
capable of understanding what was going on in court
or helping his lawyer in terms of preparing for the trial. There was a suspicion among the prosecutor and
the detectives in this case that in fact Keosaian was not incompetent and that he really did
know what was going on. So essentially what they did is Keosaian had moved to the shore. He lived in Ocean City, New Jersey, which is about an hour and
a half from Philadelphia. And they surveilled him
for a series of days and watched him driving around Ocean City, making stops at the post
office and other places going shopping, driving his wife, and in fact going to a fishing
pier and going fishing on it on a regular basis. Essentially the proof that he
was living his life normally, that he appeared to be
able to go to the bank, go to the post office, navigate the roads, things of that nature, ultimately persuaded the judge that Keosaian was in fact competent and he ended up standing trial and being found guilty
of first-degree murder. Insanity. It’s a really high bar, and it’s hard to prove, and it should be and you don’t see a lot of these cases. But we actually have two
in the office right now and one of our prosecutors
just tried one recently within the last month. Through my career, I’ve
tried three insanity cases, which I think is pretty much the most that I’ve ever heard of someone trying. But I’ve been a prosecutor
a little over 30 years now. So I have had the opportunity
to do some of these cases. In Pennsylvania, notice is required and I think that’s the
case in most states. Check your state’s notice requirements to see what must be included. In Pennsylvania, you have to set forth the mental disease or defect and the names of witnesses
they intend to call to prove that mental infirmity defense and then it requires the
Commonwealth prosecution to file reciprocal notice with witnesses that we intend to call to disprove the mental infirmity defense. So you want to check your state’s rules of criminal procedure
and make a determination if you have one of these cases, what it is that has to be filed. Pennsylvania uses the M’Naghten
rule which most states use. “The defendant is
absolved of responsibility “if, at the time of committing the act, “due to a defect of reason
or disease of the mind, “the accused either did not
know the nature and quality “of his or her act, “or did not know that the act was wrong.” And we break it down here. The defendant must first prove
a mental disease or defect and then the definition
of incapable of knowing what he or she was doing refers to a defendant’s ability to know the physical
aspects of his or her act. So it’s rare that you will have an insanity defense that
focuses on this first part, because it’s pretty easy for you to prove that the defendant at the
time she stabbed somebody or he shot somebody, knew that they were firing a gun, or that they were stabbing a human being. The second part, the second
aspect of the insanity defense is usually the one that you will see in terms of where the battle
is going to be during the case. And that is, “Even
though a person believes “that an act is right, “under his or her own
individual moral code, “he or she is not insane, “if he or she knows that the act is wrong “under society’s generally
accepted moral standards.” So that’s where most insanity cases, where the litigation is going to be, where the fight is going to be. Was the defendant aware
of the wrongfulness of his or her conduct? You’ll get the rare case where a defendant is claiming they didn’t know what they were doing in
terms of their physical act, they weren’t aware of the fact that they were stabbing
somebody or shooting somebody. But those are pretty rare cases. And if in fact that would be true, you would really see somebody who had some pretty
serious mental disability. Some states have abolished
the M’Naghten rule in favor of a men’s rea approach. Idaho and Kansas are two examples of this. The men’s rea approach allows evidence of mental disease or defect as it bears on the mental
element of a crime, but it abandons lack of ability to know right from wrong as a defense. The U.S. Supreme Court accepted certiorari to consider whether that
meets constitutional standards in a case called State versus Kahler, which I’ve cited to here. Several justices had
written about Idaho’s law a few years ago wanting
to take that case on. But the court did not. Only three justices wanted
to take that issue on, but this time they did accept certiorari and I expect that that opinion will come down sometime next year. Guilty but mentally ill is
available for a defendant who offers an insanity defense. A mentally ill person
is one who “as a result “of mental disease or defect, “lacks substantial capacity “either to appreciate the wrongfulness “of his or her conduct, “or to conform his or her conduct “to the requirements of law.” This is not a potential
verdict in a capital case, but it is a potential
and justified verdict in many cases where a
defendant is mentally ill, however, does not meet the
test of the insanity defense. And I’ve had cases, one of
which I’ll talk to you about at some length in a few minutes, where I’ve actually invited the jury to find a defendant
guilty but mentally ill based on the fact that I thought the mental illness was clear, but also that the defendant
had an intact ability to appreciate the
wrongfulness of his actions. Diminished capacity in Pennsylvania, and you’ll have to look at
the laws in your own states, but essentially, you can see
general criminal liability, but challenges his or her capacity to premeditate and deliberate. It’s really a defense
for first-degree murder, for willful, intentional,
premeditated murder, to reduce it to a lesser degree of murder. If “psychiatric testimony is competent “on the issue of specific intent to kill, “if it speaks to mental disorders “affecting the cognitive functions “necessary to form a specific intent.” So let’s talk about how you
apply this to the trial. As I said at the beginning
of the presentation, don’t forget that your first job is to prove either first-degree murder or whatever other charges
believed charged in your case, but I say take advantage
of the narrowed issues. One of the things about
these kinds of defenses is that a defendant’s going
to admit criminal liability. So you really can focus your case on whatever the main issue is going to be in terms of the mental infirmity defense. Typically, whether the defendant’s conduct shows that he or she was
aware of the wrongfulness of what he or she did. Most importantly, focus on
the facts, not the illness, especially when cross-examining
and presenting experts. We just got an expert report on a case where an insanity defense
is going to be offered. As I said, we have two cases where that’s a possibility here right now in Montgomery County. And this particular
case is a double murder where a woman killed two people who she hadn’t seen in a really long time. Clearly it’s motiveless, and she clearly does have a
significant mental illness, although I think that
there’s a lot of evidence to suggest that she knew
that what she did was wrong. But importantly for the last point that I’m making on this slide, about two-thirds of the
report centers on her history and the findings of the
particular examination. Less than one-third of it, I would submit, focuses in on what this
psychiatrist applies in terms of the facts of the case. And that’s really where
you want to cross-examine, and that’s what you want to focus on. You don’t want to have a debate
about the mental illness, about the person’s history, about the tests that the psychiatrist imposes on the defendant. You really want to stick to the facts that hopefully show that
the defendant’s conduct shows that he or she is aware
of the wrongfulness of it and that hopefully show that the defendant is capable
of calculation, premeditation, things of that nature. So let’s talk about a case that I prosecuted back in Philadelphia, very sad case where an
insanity defense was offered and hopefully this will
help you understand what I’m talking about when I talk about how you can
apply these overall issues to an actual trial. So that’s a picture of, the
woman is my victim in this case, or was my victim in this case, her name was Lea Sullivan and that’s her father
who was also a doctor. Lea was going to Jefferson
University Medical College at the time that she was killed. And this picture was taken on the day that she got her white coat, which is apparently a huge
deal for medical students and as I said, her father
was a doctor as well, and was very proud of her. And I think this is a woman who would have made just amazing
contributions to our world. She was a graduate of Harvard, she was going to medical school, she was somebody that
really cared about people and I think that she would
have made a huge difference had she lived to be a doctor. In any event, one Sunday afternoon, she was walking to this Whole Foods on South Street in Philadelphia, and was actually beaten
to death on the street with a baseball bat by
a guy named Nader Ali who had been a classmate
of hers at medical school, and sort of tragically for him as well, he dropped out of medical school based on some problems
that he started having as a result of the mental illness that he started experiencing
in his early 20s. This is one of the photographs
of the defendant’s car at the time that the officers searched it with a warrant after he
was arrested the next day. You see that there’s
binoculars in the seat here, which showed that he was
essentially stalking her. Even though he didn’t
really know her that well, and they never had a previous relationship before this incident happened. Yet he put the baseball bat
in the trunk of his car. Again, that’s a picture taken of the search of the car the next day. These are the injuries that Lea received, several blows with this baseball bat by a guy who was much bigger than her and two skull fractures
at the top of her head. And that’s a picture that
was taken at the autopsy as the other ones were as well. So this is how I started
my closing argument. In a case where again,
two experts testified, one for the Commonwealth,
one for the defense, there was a lot of evidence about psychiatric testimony, about the defendant’s hospitalization. But again, I wanted to bring the jury back to why we were here. And this is how I started or right at the beginning of my closing. I said that “I’m not going
to start this closing “talking about insanity “because that’s just their defense, “and they didn’t prove it. “What I told you when I
stood up in front of you “at the beginning of this case, “is that I would prove this
was a first-degree murder. “And that’s what I did prove. “So that’s what we’re
going to talk about first.” Again, just to reiterate
what I said earlier, you want to make it about the victim and the facts of the case, and really make that paramount. And that’s what I tried to do
here in this closing argument. This slide is actually an
actual slide, somewhat modified, from my closing argument, which I went through with the jury, and I talked about all
these facts of the case that showed that there was planning, that there was premeditation, and that there was
specific intent to kill. So I talked about planning the crime, that he targeted and stalked the victim, which I had evidence of, I mean, I had the binoculars but I also had some E-ZPass records that show that he came from
his house in New Jersey, to try to see her in the
suburbs of Philadelphia, I talked about how he snuck up on her that he outweighed her by 100 pounds, that it’s up close and personal, which is an argument I would make in any case that I was trying to show malice and specific intent. That he used a severe amount of force, which is what I had shown
you earlier in those slides, but also the medical examiner that performed the autopsy talked about how great the force was to
cause two skull fractures and the brain injuries she received. Talked about repeatedly
using a deadly weapon on a vital part of the body and made the argument that their
common sense and the reason would have told them before
they ever came into a courtroom, that if somebody did something like this, outweighing her and
hitting her like he did that of course he would kill her. That is common sense. That the fact that it resulted
in her death was obvious. Later, I transitioned into the
other part of this evidence that he knew what he did was wrong. He wore a ski mask during this attack, obviously concealing himself, I thought was important to show. The fact that he attacked her from behind. The fact that he stopped the attack when only one person out
of the probably hundreds that were on the street at that time, actually went up to the
defendant and yelled at him to leave Lea alone and stop the attack. It was actually a woman who was a security guard
in the nearby store. He fled the scene after that. In a statement to his own doctor, the doctor that testified to the defense he said that he knew it was a dirty job. So I used that statement in terms of talking about how he knew that what he did was wrong. And the statements to the
Commonwealth expert, Dr. O’Brien, he said he knew what he was doing would be viewed by others as wrong, which was really important in terms of the overall law obviously. That whether he believed that in some sense it was justified, that he knew that others
would believe it was wrong and that’s enough to obviate the insanity defense right there. And then talked about controlled behavior because in this particular case, he had actually initially
knocked on her apartment door looking for her. And Lea’s roommate was there. And he did not do the
crime in the apartment because Lea’s roommate and Lea’s roommate’s boyfriend
were home at the time. He waited until Lea,
about 45 minutes later, went to the store, and that’s when he decided to do it, when he got her by herself. So let’s transition into talking about preparing cross-examination
of an expert witness for the defense in a case like this. So these are some of the questions that I usually ask and
talk with my lawyers about these types of situations about what you want to look for. So the expert’s background in general, does the expert have a clinical practice? I think that’s a really
important question. Does the expert still treat patients, or is the expert just someone
who goes from case to case and testifies as an expert? But when I say an ideologue, you’ll see, particularly
in capital litigation, that certain experts will
testify in these cases because of their personal belief that the death penalty is morally wrong, and they always testify for one side, which I think is another issue
that you want to look for. You hopefully can find your own experts that don’t just testify for the state or for the Commonwealth, that they’ll testify to both sides. Prior testimony can be really important. So if you have one of these cases, one of the things that I think is really important to do is either if you’re in a larger office, go around and see if
anybody has any transcripts with this particular expert, or more importantly, I think, is even try to touch base with your state DA’s
association about the expert. Have them put out an email to everyone. Does anybody have any transcripts
of this particular expert? That can be really important. What is the meaning of the conclusion that the expert draws? And I’m going to talk a little bit more about that in a second when I talk about a
particular case I handled where an expert claimed that he diagnosed the defendant as suffering from PCP intoxication at the time of the crime. You really want to dissect the report, what is left out? And a lot of times what’s left out is any meaningful discussion by the expert of the facts of the case and that’s obviously the
most important thing here. And then raw notes which
I’ve talked about before. You want to get the expert’s raw notes of his or her examination
of the defendant. Does the report comport
with the testimony? You’ll be surprised how often an expert will go up and
testify in a case like this and testify to something
that’s not anywhere in the report that you have. That something gets
added at the last minute. And that’s obviously
something really important to cross-examine on. If you have prior transcripts, does that testimony conflict with the testimony being
given in this particular case? You want to go and get as
many concessions as you can and look at omissions. And finally, and I think this is a really good way to
frame a lot of these cases and that is, what does
your common sense tell you? Is in fact this defense expert acting like The Great and Powerful Oz or trying to make this case
about their testimony solely, and not about the actual
facts that happened? And I always talk about that in terms of when these
types of experts testify and everything they say is pretty much at odds with the record, or essentially, the only way that the jury would find the defendant not guilty is to believe the expert’s testimony. Then basically I always tell the jury, it’s essentially like the Wizard of Oz, where they’re trying to
tell you to pay no attention to the man behind the curtain but he is just a man and he’s not in any greater position to decide this case than you are. Here’s some examples of confessions
that a colleague of mine cross-examined a doctor in a capital case in the murder of a police officer. And again, I think these
are really good examples of concessions frame that this doctor in fact
agreed with for the most part because he had testified to these types of issues previously and almost had to agree
to what was said here. And I think the last piece,
“In reading testimony “that you have given in other cases, “the essential symptom of an
Antisocial Personality Disorder “is that the person can be
deceitful, is that correct?” That’s a really good confession to get for the defense expert
in a death penalty case. The first point on this slide, the defendant recalls details
before and after the incident but his memory fades out right
at the moment of the crime. You’re going to see that
happen a lot in these cases. And that makes no sense because what mental disease or defect affects you only at the
time of the incident and not before and not after? But if you get the expert to agree that the defendant’s memory falls out right at that moment of the crime, that can be a good concession. The second point, again, a quote from a
defense expert’s report. The last one is the case that
I talked to you about already where the young woman was killed in broad daylight in Philadelphia. The expert in that case
talked about this delusion that he had about a
kabbalistic sage, Ari Hakadosh. And he’s the only person,
this defense expert, that the defendant ever
referenced a delusion to, and that seems kind of significant to me. So that’s the question that I asked, “Is there any reference to his delusion “in the voluminous records of this case, “other than his conversation with you?” And he said, no, he didn’t see it, that that was a product
of his investigation. So presenting your own expert on rebuttal. I think one of the most important things you have to do is give
your expert everything. Don’t omit anything from your case. Make sure that they are fully familiar with the records of the case and don’t forget to give them everything. You want to know your expert’s record in terms of testimony that he or she has given from other cases. Again, the key is the behavior
at the time of the incident, not the defendant’s illness. And you want your
experts to focus on that, and that’s how you want to present it. Illness as the motivation is different than illness as an excuse. And did the defense open
the door to questions about the dispositions of the case? So what I mean by that, is that if a defendant is found not guilty by reason of insanity, there’s procedures in place that their case will be reviewed to see if they should
be civilly committed. But very often, at the time of your trial, which is going to be
probably at least a year, if not longer, out from the time of the
commission of the crime, after a defendant’s been treated, after he or she has had
psychiatric medications, a lot of times at the time of the trial, they are no longer a danger
to themselves or to others. So if the defense gets up
in their opening statement and starts talking about ladies and gentlemen don’t
worry about your verdict here because if you find him not
guilty by reason of insanity, the judge is going to be
the determining factor in seeing what happens to the defendant. And that’s happened to me
on a couple of occasions where defense attorneys or defense experts actually said something of that nature. And at that point, you
can ask the question if the defendant is in
fact a danger to himself or to others now as
this trial is going on. And if the answer to that question is no, then clearly at that point, he or she is not going to be able to be involuntarily committed, and essentially will be put on the street. And Sartin issues, obviously, again, we talked about
that a little bit before, it’s going to be
difficult to navigate that in terms of your preparation because a lot of times the judge may not break very long between the time of a conviction
for first-degree murder and the time that the
penalty phase starts. But in these particular cases, that’s what you’re going
to have to deal with. You’re going to have to
deal with short preparation, hopefully get at least a day. But it makes it a lot more difficult because I know most of you probably want a lot more time to prepare than what you may get in
that type of situation. All death penalty states allow a defendant to
present mitigating evidence of mental illness to a jury as a reason not to
impose a death sentence. Look at your state’s statutes and see what the mitigating factors. Some of them say extreme mental
or emotional disturbance, some substantially impaired
in his or her capacity to appreciate criminality, or conform his or her conduct. In Pennsylvania, evidence of
mental or emotional disturbance must relate to the time of the offense. And under the “substantially impaired “in his or her capacity to
appreciate criminality,” the standard for proving a claim
of involuntary intoxication is the same in both the
guilt and penalty phase. So, you have to look to your state’s law if you have that voluntary intoxication, meaning that a defendant is so intoxicated that he or she is unaware of their faculties and sensibilities. That’s what the standard
is in Pennsylvania. It’s a pretty high standard to escape responsibility
for first-degree murder and for voluntary intoxication. Even if it doesn’t establish one of the mitigating circumstances, mental health expert
testimony may be relevant to establish the catch-all mitigator, and all states pretty much
have that catch-all mitigator. So the testimony is almost
certainly going to be relevant, even if it doesn’t establish one of those other
mitigating circumstances that we discussed, the specific ones. So when we look at this
point, as I made earlier, but the expert’s report and testimony meet the diagnostic criteria in the DSM-5, which I think there’s a
updated version to six now but the Diagnostic and Statistical Manual of Mental Disorders is sort of the Bible for diagnosing mental illness and substance abuse
disorder and other things. Now, I’m not trying to tell
you that you want to argue, because you don’t, with the
expert about their diagnosis. But what you can do is you can ask them if certain things that
are required in the DSM were present in this case. And in the case I had, where a guy killed a
Philadelphia police officer in the line of duty, the defense expert diagnosed the defendant at the time of the incident
with PCP intoxication. So if you look in the DSM, there’s specific things that
are required to be present before you can diagnose
someone with PCP intoxication. And I won’t go through all of them but a lot of them have to do with physical aspects of the defendant at the time of the incident. And in this particular case, he was shot by other officers and taken to the hospital right away. And out of the eight physical aspects that need to be present for PCP intoxication to have occurred, basically, there’s eight factors, and the DSM says two or more
of these have to be present. Exactly none of them were
present in this particular defendant when he got to the hospital, and it’s things like whether his eyes are making repetitive,
uncontrolled movements, hypertension, tachycardia, none of this stuff was physically present in the defendant at the
time of his hospitalization. So clearly in that particular case, the PCP intoxication diagnosis was not backed up by the evidence that existed at the time that he was admitted to the hospital. And then you ask the question, is defense evidence
mitigation or is it a roadmap? Essentially, is this how we got here? Is this how he got to this point where he committed this act? So I talked about the
first part of this already, does the defendant’s evidence
meet the statutory test? Does the evidence prove
his or her capacity to appreciate the criminality
of his or her conduct and to conform her conduct
to the requirements of law? Is there corroboration of
the defendant’s history? Again, I talked about that
when we talked about records, what’s objective? what exists from his
childhood or his upbringing that will show you this, or is this just something
that’s being created after the crime to put on a case? Because that can make a big difference. In my role as the chief of
homicide in Philadelphia as I said earlier, I would meet with defense attorneys and go over mitigation with them before the final decision
was made to seek death. And in many, many cases, if there were records that were generated during the defendant’s
childhood or after that that corroborated certain
aspects of litigation. If I thought that they
were weighty enough, then we would not go forward
with the death penalty. So I think it’s important in terms of your own preparation and your own decision making to evaluate those records. Again, relate the
circumstances of the crime and the defendant’s background, and his or her words and actions before, during, and after the crime to the mitigating circumstances. And in this case, that’s an excerpt from the testimony in the case I was talking about earlier, the PCP intoxication. There’s nothing about the
events that’s documented, that he was an individual
incapable of functioning because he was intoxicated. And that was consistent
with what he told me himself that he was not intoxicated like that. And in that particular case, the defendant was hospitalized, as I said, because he was shot by other officers. He wrote a note inquiring
into the condition of the police officer
when he first came to after the operation. And the doctor that we hired said that that reflects the awareness that he did the shooting
and is in big trouble, and his reported lack
of memory of the offense is not accurate. And then again, he said, he, as an individual, provides
different versions of things at different points in
time to different people. So finally, we’re going to cover, for a couple minutes here, Atkins claims. Atkins claims deal with somebody that’s claiming
an intellectual disability. In Pennsylvania, there’s no
statute governing such claims. And the Supreme Court has decided that bench hearings are appropriate to determine Atkins claims on Post Conviction Relief Act petitions. But a jury is going to
decide then, obviously, in terms of the mitigation
issues in a penalty phase. Although some states have
different procedures, so you need to see if you have a statutory or judicially created way
to handle these claims. The burden is on the defendant
to prove mental retardation by a preponderance of the evidence, and a finding of mental
retardation should be unanimous. The jury should pass on the Atkins claim before proceeding to
aggravators and mitigators, and the state decides the definition of mental retardation procedures to be used in these hearings. The definition of mental retardation incorporates three concepts: limited intellectual functioning, significant adaptive limitations, and age of onset, appearance
has to be prior to age 18. And the Pennsylvania
Supreme Court has found that the defendant needs to prove this by preponderance of the evidence. And turning back to the DSM, the DSM under “intellectual disabilities” has four categories, mild, moderate, severe, and profound in terms of neurodevelopment disorders, and obviously as you go up the chain, it’s less likely that somebody would be somebody that
wouldn’t fit the definition that Atkins talks about here. Preparing for the Atkins hearing. School records are crucial, especially any IQ testing. And again, these are situations
where we got them ourselves, school records to show that a defendant had developmental delays, was in a type of special education classes that would tell you that
he had some potential or she had some potential
intellectual disabilities. In those cases, if I saw those cases, I saw IQ testing, I saw special education classes, those are cases that we
just would not proceed as capital cases based on the fact that we did not think that under
Atkins we could meet our burden. But there are other cases where that’s in fact not present. You have to make the determination
on a case by case basis. But school records are crucial, because they will document what the defendant’s intellectual
abilities were growing up in the relevant time period. On juvenile records, if the defendant has been in
the juvenile court system, and obviously Child Protective
Services records too. Employment records. SSI records, if the defendant
has been deemed to be disabled and is receiving SSI payments, and people who knew the defendant. You probably a lot of times may not get necessarily cooperation from the defendant’s family, but you try to maybe find
schoolmates, teachers, people that had contact with the defendant up until the time that the crime occurred. And again, facts of the crime are key. Is there evidence of planning, deliberation, flight, factors like that? Those are all important in making these types of determinations. And some common defense arguments will be that the structured
setting on the prison makes our client look smarter. But if the client is capable
of getting a G.E.D in prison, the chances are that they’d
meet the Atkins standard are probably pretty low. Blaming the lack of evidence
on the school system: my client fell through the cracks. That may have some
credibility to it, it may not. It depends. You have
to look at the records and see what level of functioning that the defendant had
at the time in school and hopefully you’ll get
some good school records. And basically the practice effect and the Flynn effect is this idea that if someone takes a test several times that that would explain the fact that their scores got elevated. And then finally that
adaptive deficit testing is used retrospectively and shouldn’t be. In other words, testing that determines what the defendant’s intellectual capabilities are in terms of not just school work, but in terms of day to day life. Believe that’s the last
slide in the presentation. So if anybody has any questions, I’d be happy to answer them at this point. – [Allie] Thank you, Ed. I know we are a few
minutes after four o’clock, so anybody that needs to drop off, feel free to do so. But we will stick around
and answer a few questions. So if you do have a question, you can submit it through the Q&A box on the right of your screen, or you can email it to
[email protected] and we’ll be reading
your questions out loud for the presenters to answer. We’ll give folks a few minutes
to submit any questions. So, Ed, we do have one question for you, how much do you feel the subject
of mental health defenses in capital cases might hinge
on a battle of the experts? Additionally, if we learn nothing else from this presentation
when it comes to experts, what would you say your top
three takeaways would be when preparing your experts for trial? – [Ed] Okay, so the first question, I mean, you would hope
that it’s not going to be a battle of the experts. I think it should be
a battle of the facts. That should be the most important thing. So, if the focus is on the facts it won’t be a battle of the experts and sometimes that can happen in terms of how usually the defense wants to make it a battle of the experts. But I’m hoping that I guess
the most important thing that I would talk about
in terms of my takeaways, in terms of the second
part of the question would be to make sure that your expert focuses on the facts more than anything. The other two things I
would say is, by all means, have a thorough knowledge
of your expert’s past in terms of how she has
potentially testified previously, having transcripts, having prior reports that your expert has done so that you have the ability
to deal with that if necessary, in terms of potential cross-examination. And then finally, making sure that your
expert has everything. Don’t omit any relevant piece
of evidence in your case in terms of the discovery. I usually give my experts everything that I would
give the defense counsel in a case in terms of having
them prepare the report. And even if it’s something that’s not particularly relevant
to what they have to do, at least they would have
had a chance to look at it and make that determination themselves. – [Allie] Thank you, Ed. We have one more question. For states which do not have restrictions on experts being present during state examination of defendants, what are your expert’s
views on evaluations with third-party witnesses in attendance? Our experts won’t agree to do evaluations under these conditions. – [Ed] That’s a really good question. A lot of experts don’t like that. But I mean, obviously I’ve
dealt with it both ways, but the common practice in Pennsylvania is to allow defense
attorneys to be present if they want to be. So, the only thing I could say to that is if your expert doesn’t want to do that, I understand that, but I’d potentially explain to her or him that this is the law that
we’re dealing with here. That the third party is not allowed to participate
in the evaluation, they’re not allowed to say
anything during the evaluation, but they are allowed to be present in terms of being witnesses and taking notes and whatever. I think that’s a really good question but that is the law in
some states that I know of that third parties are
permitted to be present. Again, I think we’re going away from that. There is a case in Pennsylvania that said, at least in the PCRA context, that the defense attorney
wasn’t permitted to be present but practice in Philadelphia
when I was there was pretty much always
to allow a third party to be present if they chose to be present. – [Allie] Thank you, Ed. That looks like it was our final question. So thank you all for submitting questions. If anything comes to mind after
today’s presentation ends, please feel free to submit your question to the BJANTTAC email on the screen and then we’ll make sure to
get that answered for you. We will also be sending a follow up email with a copy of today’s presentation
to everybody registered, so you can look out for that. And we thank everybody for being here and their time this afternoon. You will see a survey link at
the end of this presentation when we end the meeting, and we would really appreciate it if you’d take a moment
to complete that survey. It’ll only take a few minutes. But this concludes the
end of the presentation. Thank you all.

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