Pointing out Weaknesses in Defendant’s Expert Opinion Does Not Shift Burden of Proof to Defendant
In United States v. Dalasta, 3 F. 4th. 1121 (8th Cir. 2021), the U.S. Court of Appeals for the Eighth Circuit considered whether the district court committed an error in discounting the findings of the defendant’s expert regarding risk of future dangerousness. The court ruled that there was no clear error and the court’s assessment of expert testimony did not improperly shift the burden of proof to the defendant.
Facts of the Case
In 2012, while facing charges for vehicular homicide, Kevin Allen Dalasta underwent a left temporal lobectomy to treat refractory seizures. He received a diagnosis of a major neurocognitive disorder incurred from that lobectomy and the vehicular homicide charges were dismissed because he was found nonrestorable (United States v. Dalasta, 856 F.3d 549 (8th Cir. 2017)).
In 2015, Mr. Dalasta’s parents confronted him about purchases of cellphone games he had made. The confrontation intensified when Mr. Dalasta responded by packing his belongings (including firearms), threatening to leave, and holding a gun to his own chin. Police intervened, and the confrontation ended without injury. The responding officers discovered that Mr. Dalasta possessed his firearms illegally. He was charged by the federal government in Iowa district court with being a prohibited person in possession of a firearm. The district court did not try Mr. Dalasta because he was again found incompetent to proceed. Instead, he was committed to the custody of the Attorney General and evaluated for competency at the United States Medical Center for Federal Prisoners (USMCFP) in Springfield, Missouri. After the evaluation, the court determined that he was unlikely to be restored. He was ordered to remain in the USMCFP for an evaluation of dangerousness under 18 U.S.C. § 4246 (2013).
The government then requested that Mr. Dalasta be committed by petitioning the U.S. District Court for the Western District of Missouri for a hearing on his present mental condition. The government had the burden to prove dangerousness by clear and convincing evidence. At that August 2018 hearing, the government presented a dangerousness report from a Risk Assessment Panel made up of USMCFP clinicians. Two clinicians testified at the hearing for USMCFP, Drs. Robert Sarrazin, Chief of Psychiatry, and Ashley Christiansen, a treating psychologist. Psychologist Richard DeMier, whom Mr. Dalasta requested independently evaluate him, also testified. Dr. Sarrazin, Dr. Christiansen, and the USMCFP panel opined that Mr. Dalasta would be dangerous. In contrast, Dr. DeMier opined that there was insufficient evidence to conclude that Mr. Dalasta was dangerous under 18 U.S.C. § 4246.
Subsequently, the magistrate judge issued a report and recommendation (R&R) that Mr. Dalasta be committed; but, the district court declined to make a ruling given that greater than a year had passed since the panel’s report was submitted. Therefore, an updated risk assessment report was filed by the government. The panel reached the same conclusion of dangerousness while Dr. DeMier again opined that there was insufficient evidence of dangerousness. The panel identified specific concerns about Mr. Dalasta’s intent to possess firearms because of his emotional reactivity, failure to understand that he was legally barred from possessing weapons, limitations in his ability to “perceive situations,” statements that he would use deadly force if threatened, and his imaginary beliefs of being in the U.S. military.
Ruling and Reasoning
Mr. Dalasta, proceeding pro se, appealed the commitment order, arguing that the district court clearly erred by rejecting the opinion of Dr. DeMier. Mr. Dalasta articulated that, in doing so, they rejected his expert’s views for lacking certainty, shifted the burden of proof, and discredited Dr. DeMier’s opinion on the grounds that the government’s experts had spent more time with him. The Eighth Circuit disagreed with Mr. Dalasta.
The Eighth Circuit reviewed the district court’s findings for clear error. The court summarized that all of the examining experts agreed on Mr. Dalasta’s major neurocognitive disorder. What differed was the experts’ opinions on Mr. Dalasta’s risk of future dangerousness. The court specifically reviewed Dr. DeMier’s opinion and the district court’s finding that the expert conveyed “uncertainty or change over time” in rendering opinions about Mr. Dalasta (Dalasta, p 1125), as evidenced by assuming that he would live with his parents and not have access to firearms. The court noted that the district court has “discretion to weigh the credibility of expert opinions” (Dalasta, p 1126).
The Eighth Circuit found that the lower court was entitled to weigh Dr. DeMier’s testimony and compare it to other experts’ opinions. The court disagreed with Mr. Dalasta’s contention that the lower court improperly shifted the burden of proof. Their contrasting analysis of Dr. DeMier’s opinion did not amount to shifting the burden of proof to the defendant, and the lower court did not require him to prove, through his expert, that he would not be dangerous.
The court also reviewed that the magistrate judge had found the panel’s opinion of dangerousness more compelling, in part, because the government’s medical experts spent more time evaluating Mr. Dalasta. The court concluded that, although the government’s experts’ “home-field advantage” of additional time with the evaluee could disadvantage the defendant, this did not rise to the level of an error in this case. As a result, the court affirmed the prior ruling.
Discussion
Involuntary hospitalization of United States citizens is fraught with difficulty and conflicting interests. The balancing of the state’s parens patriae power to civilly commit persons with mental illness against the individual rights enshrined in the Fourteenth Amendment is at times a challenging task. Indeed, indefinite ongoing incarceration of unrestorable defendants deemed dangerous provides tension between protecting public safety and the constitutional rights of the defendant. Some have argued that state jurisdiction should be limited to the length of the original charge (Bloom JD, Kirkorsky SE. Arizona’s insanity defense, Clark, and the 2007 legislature. J Am Acad Psychiatry Law. 2021; 49: 618–622).
In Jackson v. Indiana, 406 U.S. 715 (1972), there was an underlying legal protection of those found incompetent to stand trial; that is, they could not be held beyond a reasonable time to restore them. The caveat that can alter the nonrestorable defendant’s due process protection is dangerousness. Individual states have assembled means to maintain public safety with this select group deemed both dangerous and nonrestorable (e.g., in Or. Rev. Stat § 426.701 (2021) on Commitment of Extremely Dangerous Persons with Qualifying Mental Disorder). Such statutes allow for essentially indefinite detention. When dangerousness affects public safety, the legal system may be less sensitive to individual rights, such as in Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976).
The burden of proof in Dalasta was on the state, with a clear and convincing standard. The Eighth Circuit found that the burden was not shifted to Mr. Dalasta.
Arguably, a panel of government experts at an expert facility that houses the evaluee have an advantage over one plaintiff’s expert. Forensic testimony is based on evaluations which should rely on equal access to records, but again one can argue that multiple government experts concurring is more persuasive than one opposing. In this case, the idea that a group of government experts at one facility would not have more than a “homefield advantage” seems somewhat naive. But a credible expert can certainly attest that more time with a defendant does not always heighten or sharpen one’s objectivity. In fact, this could have the reverse effect. In this case, the government’s calling government expert witnesses does raise the concern that the burden to prove a lack of dangerousness was made more difficult for Mr. Dalasta. The court’s finding that expert opinion was more “compelling” based on the time spent with an evaluee raises the question of what constitutes an adequate evaluation in terms of the number of evaluators and time spent with an evaluee. It also raises the question of whether internal facility evaluators will have an advantage over outside evaluators conducting point in time interviews. As the number of competency cases increases, it is likely that similar challenges will arise. That federal and state statutes permit indefinitely incarcerating nonrestorable defendants deemed dangerous will no doubt invite further scrutiny. Given these considerations, one can argue that the system has, to some extent, shifted the burden to such detained persons to demonstrate they are not dangerous.
- © 2022 American Academy of Psychiatry and the Law
