The Definition of Insanity in the State of Texas is Outdated.

In 1843 Daniel M'naghten was acquitted in the murder of the English prime minister's secretary by reason of insanity, prompting then-Queen Victoria to call for a reappraisal of the law. The result was a standard adopted in both English and American courts, which can be summarized in a single question: Did the defendant know his conduct was wrong at the time he committed the crime? Unless a person was mentally disabled to the extent that they were unable to comprehend that they were committing a crime, they could still be found criminally responsible regardless of  the presence of a severe mental illness.
The rule, established by the English House of Lords, states:
"Every man is to be presumed to be sane, and ... that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of mind, and not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong."

The M'Naghten Rule focuses on whether a criminal defendant (a) knew the nature of the crime or (b) understood right from wrong at the time it was committed. One of the two distinct criteria must be met in order for insanity to be an effective defense. Some courts differ as to whether the "wrong" in question refers to moral or legal wrong (or both). Additionally, some states have eliminated the first part of the test in which a defendant is ruled legally insane for not fully understanding what he or she has done.

More realistic standards were adopted by many states, including Texas, in the 1970's; the courts decided that even if the defendant knew their conduct was wrong, they would not be found guilty if they had been ''incapable of conforming their conduct'' to the requirements of the law. This more modern standard recognized that, as a result of a mental illness, an individual might know he or she is doing wrong but still lack the ability to keep from doing it. In 1981 John Hinckley shot and wounded President Ronald Reagan and three other men: Hinckley's acquittal by reason of insanity shocked the nation. Texas quickly dropped the element of ''conforming conduct'' and reverted to a strict ''knowledge-based'' standard almost as broad as the old M'Naghten rule.

The current Texas insanity defense and the requirements to raise the defense is codified in Texas Penal Code Section 8.01:
Insanity (a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.
(b) The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

The result is that a defendant rarely prevails on an insanity defense in Texas; few defendants, even those who are seriously mentally ill, delusional, and perhaps unable to control their behavior, are incapable of knowing at some basic level that their conduct is unlawful. If defendants know that their conduct is prohibited by law, or wrong in a legal sense, then they are sane for purposes of the Texas insanity defense. Consequently, many defendants who need long term psychiatric treatment and secure hospitalization are convicted and go to prison.

The Model Penal Code Test

In 1972 the American Law Institute (ALI) developed a new rule for insanity as part of the Model Penal Code. This rule, found in § 4.01 of the Code, says that a defendant is not responsible for criminal conduct where (s)he, as a result of mental disease or defect, did not possess a "substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law." Therefore, using the MPC test, a legally insane individual must have been diagnosed with a mental defect (typically by a court-appointed mental health professional) and either did not know right from wrong or lacked the ability to control an impulse that led to the incident.

The Model Penal Code test is much broader than the M'Naghten Rule and the Irresistible Impulse Test. Legal insanity requires the inability to understand right from wrong under the M'Naghten rule, while the Irresistible Impulse Test requires the inability to control an impulse. The MPC rule asks whether defendants are able to fully understand the criminality of their conduct or able to conform their conduct to the law, combining these two elements.
Twenty-one states currently use a modified version of the Model Penal Code rule.

Although the Texas Legislature hastily abandoned the ALI insanity test and returned to a limited variation of M'Naghten in 1983, there has never been a corresponding narrowing of the test for juveniles. Indeed, the insanity defense for juveniles in Texas is not designated as an "insanity defense" in the Family Code; instead, section 55.51, which delineates the provisions for the defense, is entitled "Lack of Responsibility for Conduct as a Result of Mental Illness or Mental Retardation" and provides the following standard:
"A child alleged by petition to have engaged in delinquent conduct or conduct indicating a need for supervision is not responsible for the conduct if at the time of the conduct, as a result of mental illness or mental retardation, the child lacks substantial capacity either to appreciate the wrongfulness of the child's conduct or to conform the child's conduct to the requirements of law."
This contrast between the Family Code and the Penal Code results in an anomalous situation in Texas: a juvenile defendant will have the benefit of an appropriate, modern insanity test, while an adult defendant only has available the old nineteenth-century M'Naghten right-wrong test, with all of its shortcomings.

In recent years, several organizations have called for Texas to restore a two-prong insanity standard that would include a volitional component; The National Alliance on Mental Illness "...supports the retention of the 'insanity defense' and favors the two- prong test that includes the volitional as well as the cognitive standard" and the Mental Health Association in Texas has urged that Texas change its insanity law.

The determination of sanity should not rely only on a century-old premise of whether the defendant knew right from wrong in the legal sense. This narrow definition ignores the medically recognized symptoms of mental illness, which often include powerful visual and auditory delusions. Any workable insanity defense should also incorporate the question of whether the defendant's mental illness impaired or altered the defendant's ability to understand or comply with legal definitions of right and wrong.

George Parnham is an expert on the defense of individuals with mental illness and a passionate advocate for legal reform of their treatment in the criminal justice system.
If you have been accused of a crime, please contact us today for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case.
For more information visit Parnham & Associates.

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References:
THE TIME IS RIGHT TO REVISE THE TEXAS INSANITY DEFENSE: AN ESSAY ; Brian D. Shannon, Associate Dean for Academic Affairs and Charles ''Tex'' Thornton Professor of Law, Texas Tech University School of Law

Psychiatric Treatment in Criminal System:Part III

Harris County, Texas is the most populous county in the state and the third-most populous county in the United States. Its county seat is Houston, the largest city in Texas and fourth-largest city in the United States.
Harris County also  has one of the most underfunded public mental health systems in a state that consistently ranks last, or almost last, in per capita mental health spending. Community-based mental health care is funded mostly by state government, and for years, the Texas Legislature starved its public system. In 2003 Texas lawmakers slashed funding, and thousands of people who relied on the system were suddenly ineligible.
Many went into crisis and were picked up by police or wound up in emergency rooms, where they stayed briefly, stabilized, and were released, still unable to get treatment in the community.

In Texas, a defendant found not competent to stand trial in a violent offense is supposed to be committed for treatment in North Texas' Vernon State Hospital in order to attempt to restore competency.
Texas’ mental health hospital system was designed and built a century ago, when Texas was very rural and good treatment options for mental illness weren’t available. Large campuses of 60 to 90 acres, often in rural areas of the state, were built to house 3,000 patients each. Most patients sent to these facilities weren’t expected to recover.

Although these hospitals still  play an essential role in the mental health delivery system, many of them are functionally obsolete. Many are abandoned, decaying and considered a safety hazard. Buildings used for clinical care are in reasonable condition but poorly designed for modern care, with convoluted hallways with poor visibility from nursing stations. Higher-acuity patients require more caregivers, further crowding already limited common spaces.

A recent Department of State Health Services study determined that five state hospitals- Rusk, Austin, San Antonio, Terrell and North Texas at Wichita Falls - were beyond repair and should be replaced. Furthermore, the buildings and facilities at the Big Spring, Kerrville and North Texas at Vernon state hospitals, as well as the Rio Grande State Center, El Paso Psychiatric Center and Waco Center for Youth, should be repaired and renovated, and the unused, decaying buildings on these campuses should be torn down, the report said.

Because of the lack of beds in Vernon Hospital particularly, the Harris County Jail has now become the largest mental health facility in Texas and the second largest in the USA. It has more beds dedicated to the mentally ill than all other hospitals in the state, combined. Inmates may wait months before being transferred to Vernon.

When it comes to criminal law cases, an experienced and effective criminal defense attorney can mean the difference between a prison sentence and reduced or dismissed charges. The lawyers of Parnham & Associates are dedicated to defending the rights of the accused and our criminal defense attorneys are committed to the presumption of innocence.

 

Texas Insanity Defense: Houston Lawyer Part II

In the state of Texas, the insanity defense and the requirements to raise the defense is codified in the Texas Penal Code Section 8.01:

Insanity
    (a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.

    (b) The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

An "affirmative defense" allows a defendant to avoid legal responsibility for the charged offense while still admitting guilt; essentially, it provides an excuse or justification for why the action transpired. An affirmative defense has the ability to mitigate the legal consequences of an unlawful action.

In Texas, the insanity defense is available only when there is proof that, because of severe mental disease or defect, the accused did not know his/her conduct was wrong. Very few defendants, even those who are seriously mentally ill and delusional, are incapable of knowing at some level their conduct is wrong or unlawful.

Some individuals with severe, untreated mental illness have symptoms of auditory or visual hallucinations that are quite real to them. While in a delusional state they may be unable to appreciate their acts are either legally or morally wrong.
Importantly, a defendant found not guilty by reason of insanity does not walk out of the courtroom a free person. Instead, that person will be committed for treatment in a maximum security facility and for a disposition within 30 days in cases where there was dangerous conduct. In cases where there was no dangerous conduct, the person will be will be detained for a civil commitment proceeding .

Unfortunately, Article 46C.154 provides that neither party nor the court shall inform the jury of the consequences to the defendant if a verdict of not guilty by reason of insanity is returned. In others words, the jury will not be informed that a person found Not Guilty by Reason of Insanity will not be released – although this seems like it would be relevant and pertinent information for a juror to know when they are struggling with finding a person guilty or not guilty.

George Parnham's insistence that juries and legislators consider context and mental capacity will help move focus from verdict to treatment and catalyze a societal shift from outraged condemnation to awareness and primary prevention. He is totally committed to ensuring that his clients are heard and, to whatever extent possible, understood. In instances where misrepresentation or misstatement about the factual circumstances of an accusation have been leaked to the public, whether intentionally or not, it is imperative to "set the record straight" and do whatever can be done to level the playing field of public opinion.

Criminal defense strategies applied in these situations need to be created for the particular offense, evidence involved and based upon the defendant's needs. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. We will work tirelessly to ensure the best possible outcome for your case. .

Legal Competency: Houston Lawyer

In this first segment of a three-part series of videos discussing Mental Competency and the Insanity Defense, criminal defense attorney George Parnham discusses legal competency as applied to a criminal defense strategy.

There is an important distinction in the difference between competency and criminal responsibility:

• The issue of competency is determined by evaluating whether a defendant is able to adequately assist his attorney in preparing a defense, make informed decisions about trial strategy and determining whether or not defendant has a rational, as well as factual understanding of the process.
• Insanity (or lack of criminal responsibility) refers to whether a defendant can be held legally responsible for his or her criminal behavior.

Competency largely deals with the defendant's present condition, while insanity addresses the mental condition at the time the crime was committed.
Insanity is a legal concept, not a psychiatric concept. Having a diagnosed mental disorder is not sufficient reason, from the court's point of view, to relieve a defendant from all responsibility for illegal acts they may commit: the mental disorder must be of such a degree as to render the individual incapable of knowing that his/her conduct was wrong.

For more information on Mental Incapacity and Insanity Criminal Defense please visit insanitydefenseattorney.com 

The Code of Criminal Procedure, Chapter 46B states that a person is incompetent to stand trial if the person does not have:

1. sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or 
2.  a rational as well as factual understanding of the proceedings against the person. Further, article 46B.003 states that a defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.

Further, the statute states that "A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence."

There is an elaborate procedural process established for determining whether the accused is competent, and ,if so, for restoring the accused to competency through medical effort and returning him to court to stand trial. There are three stages in the pretrial competency determination procedure:

• Stage One - the trial court must be made cognizant that there is a doubt as to the defendant's competency; the court has the right to require examination of the defendant and may appoint disinterested experts to examine the defendant; the court gets the reports; 
• Stage Two - the trial court conducts a hearing to decide if if any evidence exists that might rationally lead to a conclusion that the defendant is incompetent; if evidence of incompetency is produced, the trial judge is required to empanel a jury (not the trial jury) to determine the defendant's competency; 
• Stage Three -the jury (not the trial jury) decides whether the defendant is competent to stand trial by answering two special issues, i.e., whether the defendant is competent to stand trial and, if not, whether there is no substantial probability that the defendant will attain competency to stand trial within the foreseeable future.

Based on the jury's findings regarding incompetency and the probability of restoration, the court will either commit the defendant for restorative care for a period not to exceed 18 months or, if competency cannot be restored, proceed with civil commitment proceedings.
Sometimes competency to stand trial cannot be restored. If the defendant is found competent , the trial proceeds. If the defendant is found incompetent after trial has begun, the trial court declares a mistrial; jeopardy doesn't prevent retrial if competency is later restored. Incompetency to stand trial is not a defense to criminal responsibility.

Art. 46.05 in the Texas Code of Criminal Procedure provides that a person who is incompetent to be executed may not be executed. This statute is in response to Ford v. Wainright, and provides that the condemned person may raise the issue of competency to be executed by a motion with attached affidavits, records, or other evidence. Paragraph (e) indicates that if the condemned has previously filed similar motions and has been found to be competent to be executed, there is a rebuttable presumption of competency. If the trial court determines that the condemned has not made a substantial showing of incompetency in the motion, the trial court will deny it.

Art. 46.05 defines incompetency to be executed as the defendant being unable to understand that he or she is to be executed, that the execution is imminent, and the reason why he or she is being executed.  The condemned has the burden of proving incompetence to be executed by a preponderance of the evidence.
If the trial court determines that the condemned has made a substantial showing of incompetency, they must then order at least two mental health experts to examine the condemned to determine if they are, indeed, incompetent. These experts then report back to the court, the prosecution and the defense attorney. If a stay of execution is issued by the court of criminal appeals, the trial court periodically shall order that the condemned be reexamined to determine if the condemned is no longer incompetent to be executed.

Mr. Parnham's insistence that juries and legislators consider context and mental capacity will help move focus from verdict to treatment and catalyze a societal shift from outraged condemnation to awareness and primary prevention. He is totally committed to ensuring that his clients are heard and, to whatever extent possible, understood. In instances where misrepresentation or misstatement about the factual circumstances of an accusation have been leaked to the public, whether intentionally or not, it is imperative to "set the record straight" and do whatever can be done to level the playing field of public opinion.

Criminal defense strategies applied in these situations need to be created for the particular offense, evidence involved and based upon the defendant's needs. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. We will work tirelessly to ensure the best possible outcome for your case.

Houston Lawyer: Shannon Miles Found Mentally Incompetent

On August 28, 2015, at approximately 8:30 p.m., Harris County sheriff's deputy Darren Goforth was shot and killed in Cypress, Texas, while pumping gas. A 30-year-old man named Shannon Miles, who held a minor criminal history prior to the shooting, was named as the prime suspect. He was arrested the next day and charged with capital murder in relation to Goforth's death.

In the months since Miles was arrested experts for both the defense and the prosecution examined him and came to separate conclusions that he is unfit to go to trial. Prosecutors agreed with Miles' defense team that he is "schizophrenic and episodically psychotic" and incompetent to stand trial, meaning he will be committed to a state mental hospital until he can understand the charges against him. However, 61 other inmates are currently waiting for a bed in the same hospital and it will be months before Miles is moved from the Harris County Jail.

Under Texas law, a suspect can stand trial only if he meets a legal definition of competency, meaning he understands the charges against him and can aid lawyers in his defense. Miles' situation is similar to some of Houston's most infamous cases that have also raised the issue of the competency of the defendant, including Andrea Yates, the Clear Lake mother charged with capital murder in the 2001 drowning deaths of her five children, and Robert Gillham. Gillham, who has never been to trial, was accused of arson in 2009 and has been trapped in "...a revolving door of competency and incompetency" for more than six years;  repeatedly sent to state hospitals where his competency is restored, then returned to the Harris County jail where his condition deteriorates again, restarting the cycle.

Houston Texas Criminal Defense Attorney George Parnham is currently advocating for implementation of local mental health services in the Harris County criminal justice system. Mr. Parnham's insistence that juries and legislators consider context and mental capacity will help move focus from verdict to treatment and catalyze a societal shift from outraged condemnation to awareness and primary prevention. He is totally committed to ensuring that his clients are heard and, to whatever extent possible, understood. In instances where misrepresentation or misstatement about the factual circumstances of an accusation have been leaked to the public, whether intentionally or not, it is imperative to "set the record straight" and do whatever can be done to level the playing field of public opinion. 

Criminal defense strategies applied in these situations need to be created for the particular offense, evidence involved and based upon the defendant's needs. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. We will work tirelessly to ensure the best possible outcome for your case.

Use of Mental Health Evidence When the Insanity Defense is not Relied Upon

The state of Texas does not recognize diminished capacity as an affirmative defense in cases not based on an actual Insanity Defense. Despite this, there is a line of cases that suggest that mental illness can be used to defeat the proof of the allegation of the prosecution in the particular offense. The Judge has discretion to allow this evidence, and Code Crim. Proc. art. 38.36(a) provides that  "In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense."

For more information on mental health and Insanity Defense visit www.insanitydefenseattorney.com. If you have been accused of a crime, please contact us today at (713) 224 - 3967 for a free consultation.

Death Penalty for the Mentally Ill: Scott Panetti

A Documented 30 Year History of Mental Illness:

Scott Panetti received his first diagnosis of schizophrenia in 1978 at the age of 20. Between 1981 and 1992, he was hospitalized 14 times at six different institutions for showing symptoms of psychosis characterized by tangential and circumstantial thinking, hallucinations, delusions, grandiosity, and paranoia. Extensive medical records chronicle these symptoms.

In 1986 Panetti experienced a psychotic episode during which he tried to "...wash the devil from the walls of his house" and buried the family's furniture in the backyard, believing the devil was in it. He nailed the curtains shut so that “the neighbors would not film him.” Shortly before the murders in September 1992 Sonja Alvarado tried to have him committed after he "...came after her with a knife". She took his guns to the local police but they simply returned them, claiming they had no legal right to prevent Panetti from having them.

At no point was there any suggestion that he is malingering or faking symptoms.

In July 1994 a competency hearing was scheduled to determine whether Panetti was fit to stand trial. In Texas, these hearings are held before a jury: in most other states a judge determines competency with input from psychiatric professionals. The jury was unable to come to a consensus, and the judge declared a mistrial. At a second competency hearing Panetti’s lawyer testified that in the previous two years he had had no useful communication with Panetti because of his client’s delusional thinking. A psychiatrist for the defense concluded that Panetti was not competent to stand trial; a psychiatrist for the prosecution agreed with the previous diagnoses of schizophrenia, and noted that Panetti’s delusional thinking could interfere with his ability to communicate with counsel. The same doctor reported that Panetti did not know what year it was and could not identify the president.
Yet he still concluded that Panetti was competent to stand trial, and the jury agreed.

At both competency hearings Panetti was medicated with large doses of antipsychotic drugs.

In 1995 Panetti experienced what he calls an “April Fool’s Day revelation”: he believed that God had cured his schizophrenia, and stopped taking his medications. He also became convinced that he could not trust his lawyers, whom he thought were conspiring with the police and the courts; after trying to fire them the judge apparently held no further competency hearing and allowed him to represent himself. When his trial began in September of that year court documents claim that his defense could be "...described charitably as bizarre"; in fact Scott Panetti conducted his defense dressed as a cowboy in a purple suit and a hat.

•  He attempted to call more than 200 witnesses, including John F. Kennedy, the pope, Anne Bancroft, and Jesus Christ. (The last he later recanted: “Jesus Christ, he doesn’t need a subpoena. He’s right here with me, and we’ll get into that,” Panetti said in court.)
• He interrogated one prospective jury member as to whether the person had any “Indian blood,” before launching into a tirade about an event he called “Wounded Elbow”—conflating the battle of Wounded Knee with something to do with the Ayatollah Khomeini. 
• He cross-examined himself on the stand, addressing his alter ego “Sarge.”
• He disposed of documents prepared for him by backup counsel, convinced that the prison guards were colluding against him. He presented no mitigating evidence.
• The judge declined to accept crucial medical records because Panetti had drawn all over them. 

 A psychiatrist who had assessed Panetti prior to trial and witnessed the proceedings says Panetti was “acting out a role of an attorney as a facet of the mental illness, not a rational decision to represent himself at trial.” After less than two hours of deliberation, the jury found Panetti guilty of murder and recommended capital punishment. (Life without parole was unavailable in Texas at the time.) In post-conviction proceedings the judge determined that he was incompetent to waive counsel.

Panetti v. Quarterman:

In 2007 Panetti’s case went to the U.S. Supreme Court, which held that the 5th Circuit Court of Appeals’ standard for assessing his competency for execution was unconstitutional. In Panetti v. Quarterman (2007), the court emphasized that evaluating Panetti’s factual understanding of the meaning of his execution and its consequences was not sufficient in light of his severe mental illness. The objectives of capital punishment, the court wrote, are not served “if the prisoner’s mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of these concepts.”
Both the district court and the 5th Circuit ignored the court’s direction. Neither attempted to reconcile how a severely mentally ill man like Panetti, whose delusions and reality are so intertwined that he believes the judges and the State of Texas are conspiring with Satan to execute him, can possess a rational understanding of the connection between his crime and death sentence.

The District Court showed a fundamental misunderstanding of the nature of delusions when it found that Panetti’s delusions were not “constant,” citing an earlier visit between Panetti and his parents. Panetti’s parents would have no reason to “press his buttons” or place him under stress with challenging questions, unlike the experts who are tasked with evaluating competency. In any event, the district court overlooked evidence that Panetti did, in fact, speak of his delusions with his parents: he spoke repeatedly of his efforts to fulfill his destiny and bring the word of god to the men on death row. For example, Panetti called the trial judge in his case a “devil worshipper” and explained: “Some of (these Death Row inmates) are possessed with devils. They’re anti- Christian, Satanists. So that’s why I’m here to deal with that.”

On appeal the 5th Circuit upheld this limited understanding of competency for execution. Under the 5th Circuit’s view, if a court can single out any shred of evidence that appears to show a prisoner’s rational understanding of the reason for his punishment, his delusional belief system and decades of severe mental illness are simply irrelevant.

The state does not dispute that Panetti believes that he would be executed for saving souls on death row, not for murder. It cannot be said that such a prisoner has the capacity to accept responsibility for his crime. If he doesn’t have a rational understanding of the link between his crime and his execution, the death penalty fails to serve its purpose as a punishment.
The courts should listen to the doctors who study psychotic disorders. The district court and the 5th Circuit’s reasoning downplays Panetti’s severe mental illness and how his delusions control his mind.

Request for Clemency:

In October 2014,  a district judge signed a warrant setting Scott Panetti's execution date for December 3, 2014. Panetti’s attorneys only discovered this when they read it in the newspaper two weeks later; the office of District Attorney Bruce Curry did not notify them, as is the pattern and practice of capital law in Texas. Panetti’s attorneys might have used that time to attempt to save his life. Texas has been scheduling executions in 2015: they pushed Panetti’s ahead so it can happen in 2014.

Petitions from over 50 national evangelical leaders as well as former Congressman Dr. Ron Paul  are being submitted to the Texas Board of Pardons and Parole and State Governor Rick Perry requesting them to consider granting Scott Panetti’s clemency petition and commute his death sentence to life in prison. The petitions claim that:
"The execution of Scott Panetti would be a cruel injustice that would serve no constructive purpose whatsoever. When we inflict the harshest punishment on the severely mentally ill, whose culpability is greatly diminished by their debilitating conditions, we fail to respect their innate dignity as human beings."

The U.S. Supreme Court should take Panetti’s case and clarify a precise standard for determining a prisoner’s competency for execution. Current law has left the lower courts with unfettered discretion in determining which prisoners will be executed. If we want to live in a just, humane society, we cannot continue to fail to protect people with severe mental illness from execution.

Houston criminal attorney George Parnham is an expert on the defense of individuals with mental illness and a passionate advocate for legal reform of their treatment in the criminal justice system.

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References:
Attorneys for Scott Panetti appeal to the Texas Court of Criminal Appeals: TDACP
Massive Failures of Justice: Why Texas is about to execute a profoundly mentally ill man; Boer Deng and Dahlia Lithwick, Slate.com
Evangelical letter of Support, Panetti clemency (.pdf)
Dr. Ron Paul clemency letter (.pdf)

Medical Records Confidentiality: Houston Lawyer

Medical records have an unusual legal status in that they are not only a physicians’ primary business records, but also confidential information that is at least partially controlled by the patient. Unlike the traditional lawyer–client privilege, there is no common law physician–patient privilege.
Medical ethics has always demanded that physicians respect their patient’s confidences, and in recent years many states have enacted medical privacy laws. These laws usually limit the dissemination of medical information without the patient’s consent, but provide certain exceptions such as allowing for the discovery of medical information when the patient has made a legal claimed based on that information, or if the patient poses a threat to the public health.

These privacy laws modify the presumption that medical records, as a business record, are subject to discovery in cases against medical care practitioners. In cases where medical records are at issue in litigation against a medical practitioner (other than cases brought by a patient), medical records are protected from discovery unless the plaintiff can show a compelling reason why the records are necessary to prove the case. Even then, the court supervises the discovery and generally requires that all patient- identifying information be removed.
If the case is brought in federal court, such as in an antitrust or false claims case, then the state law protections do not apply. Although federal judges try to protect patients’ confidential information when possible, there are many situations, such as a Medicare fraud prosecution, where the complete records will be discoverable.

The federal government does not provide a general protection for medical privacy outside of federal institutions, but there is a federal law that protects records dealing with treatment for alcoholism and substance abuse.
The Federal Confidentiality of Substance Abuse Patient Records Statute, section 543 of the Public Health Service Act (42 U.S.C.A. § 290dd-2) establishes confidentiality requirements for patient records maintained in connection with the performance of any federally-assisted alcohol or drug abuse program providing alcohol or drug abuse treatment, diagnosis, or referral for treatment. The term "federally-assisted" is broadly defined to include federally conducted or funded programs, federally licensed or certified programs, and programs that are tax exempt. Certain exceptions apply to information held by the Veterans Administration and the Armed Forces. 

As part of the Conditions of Participation for Medicare/Medicaid and Joint Commission requirements, providers must protect patient confidentiality.

Rule 509 of the Texas Rules of Evidence states that:
 "There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding."


In Texas civil proceedings, confidential communications between a physician and a patient relative to any professional services are considered privileged and may not be disclosed. Any records of the identity, diagnosis, evaluation, or treatment of a patient that are maintained by a physician are also considered confidential.  The provisions rule 509 apply even if the patient received the services of a physician prior to the enactment of the Medical Liability and Insurance Improvement Act.
Exceptions may be made in cases when the proceedings are brought by the patient against a physician, such as cases involving malpractice, or in license revocation proceedings when the patient is a complaining witness and disclosure is relevant to the claims (or defense) of the physician. Additionally, exceptions may be made in the following situations:

• the patient or someone authorized to act on the patient's behalf submits a written consent; 
• to substantiate claims for medical services rendered, if the records are relevant to an issue of the physical, mental or emotional condition of a patient when that condition is a part of the party's claim or defense, 
• in disciplinary investigations or proceedings against a physician provided that the identity of the patient is protected,
• in certain involuntary civil commitment proceedings, proceedings for court-ordered treatment or probable cause hearings,
• in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an "institution"

 If you have been accused of a crime, please contact us today for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case. Call (713) 224-3967 for a free consultation or click here for our convenient online submission form.

8th and 14th Amendments Violated by Capital Life Sentence Without Parole

Capital Life without Parole is Unconstitutional.

Amendment VIII:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Amendment XIV (Section 1):
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

From November 1981 through January 1982 the US Supreme Court argued the case of Eddings v. Oklahoma (455 U.S. 104).
Eddings, a 16-year-old youth, was driving a car on the Oklahoma Turnpike when he momentarily lost control of the vehicle. He was signaled to pull over by an Oklahoma Highway Patrol officer; when the officer approached the car Eddings stuck a loaded shotgun out of the window and fired, killing the officer.

The State moved to have Eddings certified to stand trial as an adult, where he was charged with murder in the first degree: the District Court found him guilty upon his plea of nolo contendere. The Oklahoma death penalty statute provides in pertinent part that  "In the sentencing proceeding, evidence may be presented as to any mitigating circumstances or as to any of the aggravating circumstances enumerated in this act." However, even though the Oklahoma Statutes list seven separate aggravating circumstances; the statute nowhere defines what is meant by "any mitigating circumstances."

 At the sentencing hearing, the State alleged three of the aggravating circumstances. In mitigation, Eddings also presented substantial evidence of his troubled youth. Psychological reports stated that Eddings had a sociopathic or antisocial personality, was treatable, and could be rehabilitated by intensive therapy

At the conclusion of all the evidence, the trial judge weighed the evidence of aggravating and mitigating circumstances. He found that the State had proved each of the three alleged aggravating circumstances beyond a reasonable doubt, but he would not consider in mitigation the circumstances of Eddings' unhappy upbringing and emotional disturbance. Finding that the only mitigating circumstance was Eddings' youth and finding further that this circumstance could not outweigh the aggravating circumstances present, the judge sentenced Eddings to death.

In this case, the Supreme Court held that the death sentence must be vacated as it was imposed without "the type of individualized consideration of mitigating factors . . . required by the Eighth and Fourteenth Amendments in capital cases (as per Lockett v. Ohio, 438 U.S. 586, 606).
Further, they stated that:

 "The Eighth and Fourteenth Amendments require that the sentencer... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." 

Another case with similar repercussions was Miller v. Alabama, in which the Court held that mandatory sentences of life without the possibility of parole are unconstitutional for juvenile offenders. The decision of the court was based on two consolidated cases, Jackson v. Hobbs, (10-9647) and Miller v. Alabama, (10-9646).

Both cases involved 14 year old juveniles; Kuntrell Jackson was involved in a robbery with two other teenagers, one of whom killed a store clerk. Jackson was charged as an adult and given a life term with no parole. In the second case Evan Miller was convicted of murder after he and another boy set fire to a trailer where they had bought drugs from a neighbor. He too was given a life term with no parole.
The United States Supreme Court heard oral arguments in both cases on March 20, 2012. In an opinion delivered by Justice Kagan on June 25, 2012, the Court held that:

Mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments and that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.

Justice Kagan’s majority opinion stressed “...the evolving standards of decency that mark the progress of a maturing society.”

Although the Supreme Court has ruled that juveniles cannot not be sentenced to life in prison without the possibility of parole, the Texas Penal Code Sec. 12.31 still mandates life without parole in capital murder cases involving adult defendants where the death penalty is not sought. As in the Oklahoma statutes, the judge may be precluded from considering mitigating circumstances such as the psychological condition of the defendant while still considering all of the aggravating circumstances. Due to this inherent imbalance, aggravating circumstances in capital murder cases consistently outweigh any possible mitigation.

Houston attorney George Parnham believes that the impact of mandatory life sentencing in capital cases involving defendants with mental illness violates both the 8th and 14th amendments to the United States Constitution. In March of 2009 George Parnham, along with Texas State Rep. Jessica Farrar, introduced legislation to modify the penalty phase of trials in which a mother’s mental illness was a mitigating factor. This legal modification has been accepted by other countries, but not yet in the U.S.
Mr. Parnham’s insistence that juries and legislators consider context and mental capacity will help move focus from verdict to treatment and catalyze a societal shift from outraged condemnation to awareness and primary prevention.

Texas mother on trial for death of baby

The trial is underway for Narjes Modarresi, charged with capital murder in connection with the death of the child in April 2010.
According to HPD, Modarresi initially said the baby was taken in his stroller in the 8000 block of Woodway by a man in a mid-sized brown or beige sedan. But after a lengthy interview with investigators, Modarresi led them to a wooded area near Buffalo Bayou where her son was buried alive in a shallow grave.
Defense attorney George Parnham said Modarresi had an extensive history of mental illness including bipolar disorder and post-partum depression. Parnham also represented Andrea Yates, the Houston woman who drowned her five kids in 2001.


While her family says Modarresi has a history of mental illness, it's unclear whether there was any official diagnosis of post-partum depression. George Parnham, an expert on post-partum depression, said the public should withhold judgment.
"I understand that the mother's Iranian, and there may be a cultural issue, whereby she has added pressure not to speak to relatives about examples of post-partum issues," he said.

"When we're dealing with a mother who's suffering post-partum psychosis, her reality -- and the reality in which she makes a a decision -- is different," he said.

Mother who drove van with 3 kids into Florida Surf charged with attempte...

Erin Burnett of CNN's "Up Front" program interviews criminal defense attorney George Parnham and psychotherapist Robi Ludwig about possibilities of the insanity defense as applied in the case of Ebony Wilkerson. Wilkerson has been arrested and charged with 3 counts of attempted murder after driving a minivan carrying her three young children into the ocean surf off Florida. Bystanders and officers helped rescue 32-year-old Ebony Wilkerson and her children, ages 3, 9 and 10, from their minivan as it was almost submerged on Daytona Beach. Hours before driving into the ocean, Wilkerson had talked about demons when she left her sister's house in Daytona Beach. Her sister called Daytona Beach police, who later stopped Wilkerson and noted that she "...was suffering from some form of mental illness, but she was lucid and did not provide any signs that she met Baker Act requirements". The Florida Mental Health Act, commonly known as the Baker Act, allows authorities to involuntarily take people into custody if they seem to be a threat to themselves.

Mental Illness and Firearms