Presence of Counsel in Competency Evaluation

Facts of the Case

In June 1983, George E. Banks was convicted by jury trial of 12 counts of first-degree murder, one count of third-degree murder, and other offenses related to events in September 1982, when he killed 13 people, most of whom were his own children and their various mothers. He had offered an insanity defense in the capital case. On sentencing, the jury upheld the death penalty requested by the state.

On October 5, 2004, the Governor of Pennsylvania signed a warrant for Mr. Banks’ execution, scheduled for December 2, 2004. On November 19, Mr. Banks’ mother, Mary Yelland, filed a “next friend” petition, alleging that her son was incompetent to be executed under the Ford v. Wainwright (477 U.S. 399 (1986)) decision, which held that the Eighth Amendment prohibits the execution of defendants who are found by the court to be insane. The trial court denied the petition because the time for filing such a motion had lapsed. Ms. Yelland appealed to the Supreme Court of Pennsylvania, which stayed the execution and ordered the trial court to have a competency hearing, specifying that the evaluation be completed in a specific time. What followed were a series of delays in scheduling and completing the evaluation.

In April 2005, the defense counsel asserted a right to be present during the commonwealth's psychiatric examination by forensic psychiatrist Timothy Michals, MD. Neither the state's attorney nor the court commented on that defense assertion. The trial court directed the parties to schedule the psychiatric examination within 10 days. The examination was not completed within the specified time frame, and on July 25, 2005, the Pennsylvania Supreme Court ordered the trial court to hold the hearing by October 3, 2005. Although scheduled for October 3, the hearing was not held because Mr. Banks had a contagious skin condition that precluded his presence at the hearing. The competency hearing was rescheduled for October 24, 2005, and was held at the correctional institution because of an exacerbation of Mr. Banks’ skin disorder. At that hearing, the defense moved that, because Mr. Banks had been examined by the state's psychiatrist without notice to the defense, the testimony of the expert should be barred. The trial court rescheduled the competency hearing for January 2006, and scheduled a hearing in December to rule on the defense motion. At that hearing the trial court ruled in favor of the motion and barred the testimony of the state's expert, ruling that the commonwealth could hire a new expert under the condition that defense counsel be present during the examination. The state filed a motion for reconsideration on the basis that the trial court had never included in the original order for a competency evaluation an assertion that the defense had a right to be present at the examination. The trial court denied the state's motion. Another psychiatrist hired by the state refused to conduct the evaluation under the condition imposed by the trial court that defense counsel be present.

The competency hearing was held on January 30, 2006, and the defense called three experts who testified that Mr. Banks “lacked a rational and factual understanding of his death sentences and the reasons for and implications of the same” (Banks, p 236). The Commonwealth provided no expert testimony, and on February 27, 2006, the trial court ruled that Mr. Banks was incompetent to be executed. The state appealed the propriety of the trial court's competency ruling to the Supreme Court of Pennsylvania.

Ruling and Reasoning

The Supreme Court of Pennsylvania overturned the ruling of the trial court that excluded the testimony of the state's expert and remanded the case to the trial court to hold another competency hearing that would include testimony of the state's expert. The court further directed the trial court to proceed with the competency hearing in a timely fashion, stating that it “is not to be diverted by tangential motions and assertions by counsel” (Banks, p 239).

In its ruling, the supreme court cited Ford v. Wainwright, in which the U.S. Supreme Court held that the Eighth Amendment prohibits states from executing a person the court has determined to be insane. It held, “We leave to the State the task of developing appropriate ways to enforce the constitutional restriction” (Ford, p 416). The court rejected the defense argument, based on Estelle v. Smith, 451 U.S. 454 (1981), that Mr. Banks’ Fifth and Sixth Amendment rights were violated when he was examined by the state's expert without the presence of counsel. The court held that the Smith ruling does not establish a constitutional right to have counsel present during evaluation and further that having an attorney present during the psychiatric interview could be disruptive.

The Supreme Court of Pennsylvania elaborated that although the U.S. Supreme Court had not addressed whether there is a constitutional right to counsel during court-ordered psychiatric examinations, six federal circuit courts had determined that the constitutional rights of defendants had not been violated when they were examined without defense counsel present. The court held that the trial court had erred in barring the state expert from testimony at the competency hearing because the trial court had never included an order for the defense counsel to be present in the original competency order, the supreme court had not included such an order when it directed the trial court to hold a competency hearing, and no appellate court had ruled the presence of defense counsel at an evaluation conducted by the state to be constitutionally required. Moreover, the court held that by barring the state's expert just weeks before the competency hearing, the trial court had deprived the state of adequate time for preparation for that hearing.

Dissent

Two justices dissented. Their dissent was based on two factors: first that the state had not followed the trial court's directive to secure another expert and evaluation in presence of counsel and, second, that there was compelling and consistent evidence of Mr. Banks’ psychosis over time that corresponded to the defense expert's opinions of his mental state. The previous evidence was sufficient to preclude the need for another evaluation.

Discussion

In this case, the Supreme Court of Pennsylvania followed the precedent set by circuit courts that have rejected the constitutional right of defendants to have an attorney present during evaluations for competency to be executed. The defense's effort to extend legal representation through the evaluation process was fueled by the finality and severity of the consequence of the finding of competency—the carrying out of the execution. Courts’ (and society's) interest in all aspects of capital cases demonstrates an appreciation for the serious and immutable punishment of death. When the person on death row is mentally ill, the challenges are far greater. Unlike the decisions in Atkins v. Virginia, 536 U.S. 304 (2002), and in Roper v. Simmons, 543 U.S. 551 (2005), in which the U.S. Supreme Court categorically barred the execution of persons who are mentally retarded and those who committed capital offenses before the age of 18, respectively, the decision in Ford v. Wainwright has barred the execution of persons deemed insane. But insanity is a legal status considered neither permanent nor incontestable. It is the complex and fluid nature of mental illness that contributes to the many cases that seek to clarify the nuances of insanity and the potential for restoration. Indeed, incompetency for any legal proceeding, including execution, is considered in most cases to be a state that can fluctuate with treatment and other conditions. In most cases a person found incompetent to stand trial is restored to competency; in some cases, a person found competent can experience decompensation that renders him or her incompetent at a later evaluation. The restoration procedure is linked to the ultimate goal of accomplishing the legal process.

When the question of competency involves the capacity to be executed, the goal of restoration is to remove the state of insanity so that the execution can proceed. The standard for competency to be executed is defined under Ford v. Wainwright. The Ford ruling allowed states to determine both insanity and what follows the determination that someone is incompetent to be executed. Amnesty International, among others, has identified the difficulty left by the Ford ruling: Although the Ford Court identified some of the components necessary to demonstrate a constitutionally minimum definition of insanity, application of Ford presents challenges because the Court did not define insanity or mandate procedures that courts must follow in determining whether a defendant is insane. U.S. Court of Appeals for the Fourth Circuit, 28 April 2005 [Amnesty International, 2006, p 120. Available at http://www.amnesty.org/en/library/info/AMR51/003/2006. Accessed September 22, 2008]. In some jurisdictions, an inmate found incompetent to be executed can remain indefinitely on death row with no prescribed treatment or alteration in sentence.

Providing expert testimony related to competency in general is a mainstay of forensic work. However, the death penalty complicates the question of competence at any stage of the case. The guidelines of the American Medical Association Council on Judicial and Ethical Affairs (CEJA) deems physician participation in the evaluation of competency to be ethical as long as a judge makes the final determination; however, it is unethical for psychiatry to participate in the restoration to competence of death row inmates. In 1989, the Board of Ethical and Social Responsibility in Psychology of the American Psychological Association opposed psychologists’ participating in evaluations of competency to be executed unless it be for the purpose of “bringing new information which might change the legal verdict and subsequent death sentence” (Agenda, Meeting of May 5–7, 1989, p 117). Other psychologists view participation in evaluations as ethical but still controversial. Enduring are the ethics-related and professional challenges around death penalty cases, especially those that involve persons with mental illness. The legal decisions from the courts have served both to clarify and obfuscate the situation. It is unlikely that the ambivalence and collective emotion around the death penalty will be resolved by court rulings.