Wednesday, December 11, 2013

Kansas v. Cheever: Shrinking Heads and a Shrinking 5th Amendment

Kansas v. Cheever SCOTUS limits 5th amendment protections for mental evaluations.
The United States Supreme Court has decided Kansas v. Cheever with Justice Sotomayor delivering the Court's unanimous opinion. The decision overturns the Kansas Supreme Court and approves the prosecution’s use of statements a defendant made in a court-ordered psychiatric evaluation to rebut the defense expert's testimony that Cheever lacked the mens rea because of intoxication. Cheever did not consent to the evaluation and never raised a traditional mental health defense. At his trial for the 2005 killing of a Sheriff, the rebuttal evidence was allowed, Cheever was convicted and sentenced to death.

Facts of the Case

In 2005 Scott Cheever was involved in the manufacture and use of methamphetamine. When police arrived, Cheever shot at them and killed a local sheriff. Cheever was prosecuted in federal court at a time when the Kansas death penalty was held to be unconstitutional. In federal court, his attorney filed a notice of intent to introduce expert testimony about defendant's intoxication. The judge ordered Cheever to submit to a psychiatric evaluation and Cheever complied. 

The federal proceedings were suspended and later abandoned when defense counsel became incapacitated. The state court again took up prosecution, now with a death penalty that met constitutional muster. At trial, the defense presented expert testimony that Cheever was intoxicated at the time of the incident and lacked the requisite state of mind to be convicted of capital murder. The court allowed the prosecution to rebut that evidence by offering information and opinion from the federal court psychiatric evaluation. That evidence was admitted over defense objection. Cheever was convicted and sentenced to death. An appeal to the Kansas Supreme court followed.

The Kansas Supreme Court Orders a New Trial

The Kansas Supreme Court reversed the conviction and remanded for a new trial. In so doing, they distinguished the earlier SCOTUS decision in Buchanan v.  Kentucky 483 U.S. 402 (1987). In that case the defense had requested an evaluation and raised a defense based on a mental disease or defect and the Supreme Court allowed rebuttal use of defendant's mental health evaluation statements. Cheever's Kansas court reasoned that intoxication was not a mental disease or defect under state law, Cheever had not requested the evaluation nor had he consented to it or otherwise waived his Fifth Amendment privilege.

The Kansas court's decision instead relied on Estelle v. Smith, 451 U. S. 454 (1981). In that case the Supreme Court held that the trial court improperly admitted statements the defendant made at a court ordered competency evaluation. The court reasoned that the defendant did not initiate the evaluation nor did he attempt to introduce any psychiatric evidence at trial or sentencing. In that case the defendant was never informed that the report could be used against him nor did he execute any proper waiver of his Fifth Amendment rights.

U.S. Supreme Court Reverses & Affirms the Conviction

Today the United States Supreme Court rejects the Kansas Court's reasoning. As best as I can tell, this is their holding:
When a defendant presents evidence through a psychological expert who has examined him, the government likewise is permitted to use the only effective means of challenging that evidence: testimony from an expert who has also examined him. Slip p. 6
That seems pretty limited but the logic that got us there is more troubling. A bit higher on page 6, the court seems to say that presenting evidence which challenges the prosecution's proof of mens rea, acts as a Fifth Amendment waiver tantamount to the waiver of a defendant who chooses to testify in their own defense:
The admission of this rebuttal testimony harmonizes with the principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not allow him to refuse to answer related questions on cross-examination. A defendant “has no right to set forth to the jury all the facts which tend in his favor without laying-himself open to a cross-examination upon those facts.” (Quoting: Fitzpatrick v. United States, 178 U. S. 304, 315 (1900).)
Later in the paragraph, the court quotes this really scary language from Brown v. United States, 356 U. S. 148 (1958) an immigration case which has almost nothing in common with Cheever:
“The interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.” p. 156
Brown involved a witness who denied being a member of the communist party on direct, and then refused to answer questions about her affiliation on cross. The sentence that proceeds the one quoted above is not included in the Cheever opinion. It reads: "[T]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility."

This is pretty wild stuff. The holding and the rational suggest that the defendant waives Fifth Amendment protections merely by presenting evidence that is based on another person's perception of the defendant. At the very least, the decision today puts defense counsel in a challenging position where the court orders a mental evaluation which the defense does not request. Even if the defense attorney never plans to raise a traditional mental health defense the decision here opens the door to a broader use of the defendant's statements to the evaluator. Defense attorneys must attend these evaluations and carefully referee their clients answers or to simply tell the evaluator that the defendant is invoking their fifth amendment right to remain silent.

Check out the case page on SCOTUS blog for further discussion and coverage.

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