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Criminal defense attorneys and prosecutors frequently lock horns on philosophical grounds. But the most recent clash of wills is decidedly more pragmatic — it involves the fate of Andrea Pia Yates. At issue is Texas’ prohibition against informing a jury about what will happen to a defendant if he or she is found not guilty by reason of insanity. Observers of the Yates trial, which involves a Houston mother charged with drowning her children, contend that withholding such information makes it harder for the accused to plead the defense successfully. “For all the jury has been told, if they can acquit [Yates] for reasons of insanity, she just walks out the door. But that’s not true. That really is a big point that the jury should be informed about,” says Houston solo Michael Ramsey. “I think it’s going to be a major problem for the state of Texas if that law doesn’t change.” Stanley Schneider of Houston’s Schneider & McKinney calls it fundamentally unfair because the jury is expected to decide the case in a vacuum. Like Ramsey, he’s referring to Article 46.03(1)(e) of the Texas Code of Criminal Procedure, which provides: “The court, the attorney for the state, or the attorney for the defendant may not inform a juror or a prospective juror of the consequences to the defendant if a verdict of not guilty by reason of insanity is returned.” The provision originated from a legislative backlash following the 1981 attempted assassination of President Ronald Reagan, says Brian Shannon, a professor at Texas Tech University School of Law who co-authored the book “Texas Criminal Procedure and the Offender With Mental Illness” with Daniel Benson. A number of state legislatures cut back the scope of the insanity defense after 1982, when the shooter, John F. Hinckley Jr., was found not guilty by reason of insanity after the shootings, says Shannon. One of Texas’ changes was to eliminate the level of instruction to the jury when the criminal procedure code was amended in 1983. “The perception was that the insanity defense was a huge escape hatch for individuals, where in reality — then as now — it is seldom invoked and rarely successful,” says Shannon. Dick DeGuerin of Houston’s DeGuerin & Dickson agrees. “You start with the fact that the jury doesn’t like the insanity defense anyway,” he says. “They think it’s just some lawyer’s trick to get someone off by claiming they were crazy. But if a jury doesn’t know that a ‘not guilty by reason of insanity’ verdict means that automatically the person is going to be locked up in an insane asylum, if they think that the person is going to be let back out on the street … they’re afraid.” DeGuerin adds, “I’m all for changing that and letting the jury know what happens.” What happens is spelled out in Article 46.03(4) of the Texas Code of Criminal Procedure. Basically, the trial court retains jurisdiction over the defendant who, if he or she has caused serious bodily injury to another, is automatically committed to a maximum security unit of a facility designated by the Texas Department of Mental Health and Mental Retardation until eligible for transfer to a “nonsecurity” facility pursuant to the statute. The statute sets forth a timeline for various examinations and hearings regarding the person’s mental condition. Based on its determinations, the court will designate the appropriate facility and course of action for the acquitted person. For instance, within 30 days after acquittal, there must be a hearing to determine whether the person is presently mentally ill and meets the criteria for involuntary commitment. If so, he or she will be committed to a mental hospital. The commitment order must be for a period not exceeding 90 days. However, such a person may only be discharged by court order in accordance with statutory procedures. If the court determines that the defendant does not meet the criteria for involuntary commitment, he or she must be released. The court also may order a “prescribed regimen of medical, psychiatric, or psychological care or treatment on an outpatient basis.” The court must periodically review the continued need for treatment. In some cases, individuals may be hospitalized in treatment facilities for longer periods than they actually might have served under a criminal sentence, notes Schneider. “It’s ironic that we trust the jury with major decisions — whether someone is going to live or die, whether they are guilty or innocent — but then treat them like children, saying you can’t know what the effect of your verdict is,” says Benson, a criminal law professor at Texas Tech. THE CONSEQUENCES Ironic, maybe, but such information is “irrelevant,” contends Tarrant County Assistant District Attorney Charles “Chuck” Mallin. By not instructing the jury about the procedures following an insanity finding, Mallin says, the jury is “not bogged down with any notion of what the consequences are because it is not their concern.” Texas courts have held that Article 46.03(1)(e) does not deny fundamental fairness to the defendant, says Williamson County District Attorney John Bradley, who confronted the issue in the 1999 case Diana Dial v. Texas. Moreover, the statute prescribing the disposition of one found not guilty by reason of insanity is deemed a guideline for the court and not for the jury’s consideration. In Dial, the defendant unsuccessfully sought a jury instruction setting out the statutory procedure for civil commitment if a verdict of not guilty by reason of insanity was returned. The defense wanted the issue to come out because it sought to reassure the jury that a finding of not guilty by reason of insanity would not leave the defendant free to “run around and hurt somebody again,” says Bradley. The state, represented by Bradley, wanted to follow the statute. “The jury should not be making the decision based upon speculation as to the consequences,” says Bradley. “That way, they tend to make their decisions on the basis of an outcome rather than the facts.” “It’s not speculative at all,” says DeGuerin. If you read that statute carefully, you know that the person is going straight into a hospital, he says. “No judge in his or her right mind would do otherwise or they would be unelected so quick, they’d have to start looking for honest work.” A person found not guilty by reason of insanity “is going to the hospital, and they are going to stay there until what is undoubtedly going to be a contested hearing,” says DeGuerin. The prosecution, he adds, will contest any certification by the hospital that the person no longer needs treatment. “Hinckley has been in for 20 years,” says DeGuerin, and has no chance of ever getting out. “No judge would allow it.” In the absence of being able to tell the jury the consequences, DeGuerin says it would be effective in the Yates case as evidence comes in from the psychiatrists to elicit from them that she is in need of a long period of hospitalization and treatment. The jury will hopefully get the message. Benson says it would be important for the defense to try to build in a constitutional issue — and complain on federal grounds — that having to go before a jury on an insanity defense where the jury is purposely kept in ignorance about the real meaning of its verdict deprives the defendant of due process of law. The defense would request an instruction, the judge would be confined by the statute, and the case would be appealed and potentially petitioned for cert to the U.S. Supreme Court. “We had the same problem with not telling the jurors the consequences of the death sentence versus life imprisonment,” notes Professor Neil McCabe of South Texas College of Law. The U.S. Supreme Court determined in 1994′s Simmons v. South Carolina that when a capital defendant’s future dangerousness is at issue and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, due process entitles the defendant to inform the jury of his parole ineligibility. However, notes McCabe, that holding has not been extended to informing the jury of the consequences when they come back with a not-guilty-by-reason-of-insanity verdict. McCabe believes this is because no one knows exactly what will happen if a defendant is found not guilty by reason of insanity. Another reason, he notes, is that informing the jury of the consequences would invade the province of the trial judge, who will make that determination. In Dial, Dial urged that she was deprived of federal constitutional due process by the refusal to give the requested charge. However, the 3rd Court of Appeals in Austin in an unpublished opinion noted that there had been no trial objection on this basis, nor did Dial challenge the constitutionality of the statute. The 3rd Court hastened to add, however, that in 1994′s Robison v. Texas, the Court of Criminal Appeals held as a matter of Texas public policy that the trial court is not required to instruct juries as to the consequences of a verdict of not guilty by reason of insanity. “The matter should be left to the Legislature which has already spoken,” the Dial court said, citing precedent. DeGuerin says he believes the Yates case and the wide attention it has received, “particularly with lawyers pointing out this terrible conundrum in the law that you can’t tell the jury the consequence of its verdict,” provides a good rationale for change. The problem is, DeGuerin says, prosecutors don’t want it changed. But Bradley is skeptical about the true benefit such change would offer defendants. “Essentially, what the jury would be told is that [the defendant] could be civilly committed, but at any time where they allegedly regain their sanity, they are going to be released,” says Bradley. “If you tell those jurors that right after they’ve heard evidence that this person brutally murdered someone under some psychotic episode, they are going to be fairly skeptical about using the not-guilty-by-reason-of-insanity verdict.” Be careful what you wish for, adds Bradley, “because in most circumstances [the defense] would then be arguing on appeal that, having told the jury about the consequences, the jury then misused it and convicted the defendant out of fear rather than facts alone.”

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