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Not crazy after all these years

It was a drug deal gone bad, and about as bad as it could be, at least for Shane Gulleman:  he'd driven from Indiana to Cincinnati to buy Oxycontin from Joseph Harris -- what, they don't have Oxycontin in Indiana? -- and a couple days later they found Gulleman's body in his car, dead from multiple gunshot wounds.

Harris was charged with the murder, and asserted he was incompetent to stand trial and also entered a plea of not guilty by reason of insanity (NGRI).  A psychologist from the court clinic evaluated Harris, and determined he was neither incompetent nor insane. 

She also determined Harris was faking it.  The State called the psychologist as a witness in its case-in-chief, and she was allowed to testify that Harris was malingering, was "feigning some systems and probably exaggerating others."

The Supreme Court's decision last week in State v. Harris was supposed to resolve the question of when a defendant's statement to an examining psychologist could be introduced at trial.  And, by a unanimous vote (French concurred only in judgment), the court held that the psychologist's testimony shouldn't have been admitted.  But from the facts of the case, that was a pretty easy call, and it's questionable whether the decision will have much broader application.

There are two basic situations where a defendant can be compelled to submit to a psychiatric examination.  The first is where he raises the issue of insanity; obviously, in those circumstances, it would be unfair to allow the defense to present experts on the issue without allowing the State to have its experts examine the defendant.  The second is where incompetency is raised.  Note that this can be raised by the court or the prosecution, not just the defendant. 

Can the statements he makes be used by the prosecution against him?  The lead case on this is the Supreme Court's 1981 decision in Estelle v. Smith.  In that case, the trial court ordered Smith, who was on trial for capital murder, to undergo a psychiatric examination to determine his competency.  The doctor -- Texas' famed "Dr. Death" -- found him competent, but then took the stand for the state and told the jury that Smith was a "very severe sociopath" and would be forever a danger to society.  Smith was accordingly sentenced to death, but the Supreme Court reversed, holding that Smith should have been advised that the statements could be used against him, and thus violated his right against self-incrimination.  On the other hand, six years later in Buchanan v. Kentucky, the Court held that when the defendant presents a claim of a mental issue -- in that case, extreme emotional disturbance -- the state can rebut it with evidence of their expert's evaluation.

Then, of course, there's the Ohio statute, in this case, RC 2945.371(J).  That section prohibits the use of any statement made by a defendant in an evaluation for competency or sanity from being used on the issue of guilt, and prohibits any evidence of the evaluation if the defendant didn't initiate it or attempt to introduce any psychiatric evidence.

Harris' entry of the NGRI plea would seem to allow the evidence, and its admission certainly would have been upheld if he'd pursued that defense, but he didn't.  The criminal rules specify how an NGRI plea has to be made -- it has to be in writing -- but don't specify how it can be withdrawn.  The court decides that Harris had implicitly withdrawn the defense by subsequently filing a notice of alibi -- kinda hard to argue that I was crazy when I killed the guy, but I was someplace else when he got killed -- and explicitly withdrew the defense at trial by telling the judge that he was doing so and wouldn't present any psychological testimony on that issue or anything else.  (Interestingly, at trial Harris' primary argument was self-defense, which, had he kept the NGRI plea, would have presented an interesting potpourri of defenses:  I wasn't there, but if I was and shot the guy, it was because he was threatening me, or if he wasn't, I thought he was because I'm nuts.) 

Given all that, the outcome was easy to predict.  Not entirely, though; French, in her concurrence, notes that the issue wasn't the admission of any statements of Harris, it was the introduction of the psychologist's interpretation of Harris as feigning any psychiatric conditions.  But that concurrence focuses on the statute, which specifically refers to statements that "a defendant makes in an evaluation or hearing."  She still agrees that the testimony violated Harris' right against self-incrimination.

 As I've mentioned before, the Supreme Court insists that it doesn't do error correction, but apparently will take in a case every now and then and basically decide, "Well, we don't do error correction, but as long as we're all here, let's correct some error."  That may be the situation with Harris; it's helpful, but it really doesn't break any new ground.  

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