The Parasomnia Defense How to Present and Persuade

The Parasomnia Defense How to Present and Persuade Juries of Unusual Mental Health Defenses Jay H. Ferguson Thomas, Ferguson & Mullins, LLP 119 East Main Street Durham, NC 27701 (919) 682 -5648 ferguson@tfmattorneys. com

State v. Joseph A. Mitchell Initial Information http: //www. wral. com/news/local/story/8328173/

State v. Joseph A. Mitchell Initial Information

State v. Joseph A. Mitchell Initial Information • • • Killed son, attacked son & daughter Attempted suicide/in hospital Upper class neighborhood Unemployed for long period of time Great father, involved with his children • House was in foreclosure • No memory of events

State v. Joseph A. Mitchell Charges • • First Degree Murder (non-capital) Attempted First Degree Murder No other charges: felony child abuse, assault by strangulation

State v. Joseph A. Mitchell Evidence

State v. Joseph A. Mitchell Evidence

State v. Joseph A. Mitchell Evidence

State v. Joseph A. Mitchell Evidence

Bizarre/Odd Facts • Joe on computer ½ hour before • Goes to garage, puts on gardening gloves and wife’s jacket • Why wear the mask? • Strangulation of kids/suicide attempt with knife • Repeatedly turns lights off/on • Repeatedly attacks middle child 3 times • Daughter just pushes him away

Other Facts • Office in disarray • EMT/Medical records • Wife says: – Joe not sleeping well – Under a lot of stress due to $$ – Never argued – Good father BAD FACTS - Not truthful about his past - Prior knife incident with ex-wife

State v. Joseph A. Mitchell Evidence of Motive? FALSE

State v. Joseph A. Mitchell Preparation of Mental Health Defense

State v. Joseph A. Mitchell Expert Witness Mandate: • PREPARATION • PRESENTATION • PROTECTION

PREPARATION • First, make sure you are talking to the right “expert”. • Must make sure the expert understands the questions being asked and standards being applied before beginning an evaluation. • Don’t assume that “forensically trained” experts know all they need to know about life in a courtroom. • Investigate proposed expert.

What Data should I provide the expert(s) that will examine my client? – Question: Under what circumstances do you simply not provide an expert “all” of the data you possess? • Can you safely determine what is irrelevant? • Can you be sure that the government won’t “introduce” your expert to data you did not provide them with the jury there to enjoy the bloodbath? • If defense strategy necessitates “holding back” data, should you advise your expert? • Is there any chance that the withheld information would modify your experts conclusions? If you aren’t sure, do you want to risk finding out the answer at the same time the jury does?

What Data should I provide the expert(s) that will examine my client? – While it is generally best to provide collateral records early in process, there may be benefit in allowing expert to complete initial examination of client “cold”. • Avoids potential that prior evaluations will influence findings • Improves weight and credibility of experts findings to extent it is in line with prior records which examiner had not reviewed at time of initial evaluation

Build Your Defense on a Strong Foundation • Need to make sure expert has considered all areas of collateral, even if it seems unrelated to question at hand, because sometimes the "devil" is hiding in the details – Example: daughter with heritable sleep disorder – Example: State Psychologist’s informal notes about prior confused arousal of defendant

Communication is vital • Attorney and expert need to spend enough time together to make sure that they each fully and completely understand the conclusions/opinions of the evaluation. – This is a process that takes some time (especially in complicated cases) but many good defense presentations have grown out of these “bull sessions” – Coordination of other experts

Expert Summaries and Reports • Let expert know what you need (formal report, summary letter, nothing in writing at all) and when you need it with as much advance notice as possible. • Be sure expert understands what must be included in report, and (when applicable) what should not go there and/or is likely to be redacted by Court if included. • Draft reports – A somewhat controversial topic. – Are drafts protected work product? – When is it OK for an attorney to suggest changes/edits to a report? • • Factual errors Inadmissible data Extraneous data NOT changes to forensic conclusions unless conclusions based on factually inaccurate data • NOT removal of information in report if that data is “relied on” for opinion or if removal would weaken foundation of conclusions contained in report.

Know EVERYTHING Your Expert Knows • Experts probably shouldn't look at (or have) any collateral records until you have already reviewed them. • This means expert shouldn't go out doing investigation/collateral collection on own. • It’s great to provide fair summaries of voluminous discovery if possible – but give the actual documents too.

State v. Joseph A. Mitchell Diagnosis DSM-5

State v. Joseph A. Mitchell Defense of Automatism

Pre-Trial Strategy • Wait for good plea • How much to disclose to DA? • Very few motions – only ones deemed necessary – Access to computers – Order to allow us to provide information to State’s mental health expert – Order requiring recordation of interviews by State’s expert with client – Order requiring all notes of State’s expert

Trial Strategy • Great Father + Bizarre Facts + No Motive = Reasonable Doubt • Two defenses: – Automatism – No malice • Felony Murder? – No motion to disclose theory of murder – Forced State to disclose - Harbison inquiry

VOIR DIRE (Civil Cases)

VOIR DIRE (Wymore) The only goal of trial is to get Life for your client.

VOIR DIRE (Modified Ball/Wymore for non-cap cases) The only goal of trial is to get Liberty for your client.

VOIR DIRE (Modified Ball/Wymore for non-cap cases) The only goal of jury selection is to get jurors who will say “Not Guilty. ”

VOIR DIRE (Modified Ball/Wymore for non-cap cases) • Jurors who will listen to mental health evidence with an open mind • Jurors who will not shift the burden of proof • Jurors who will apply the “fully satisfied” or “entirely convinced” standard of reasonable doubt

VOIR DIRE (Modified Ball/Wymore for non-cap cases) • What v. Why • What was your first reaction when I told you Mr. Mitchell caused the death of his son? • How do you feel about the law that requires the state to FS or EC you that Mr. Mitchell acted intentionally? – With malice in his heart and mind?

PREPARATION (Trial) • Get input from expert on how to best present the evidence – Exhibits – Structure of direct • Practice direct • Practice cross – Vulnerable: $$, jukebox expert, one-sided expert, etc. • Use video if necessary

PRESENTATION • Tether the testimony to the science • Use DSM-5 or scientific criteria as format

PRESENTATION • Tether the testimony to the science • Use DSM-V or scientific criteria as format • Concede what needs to be conceded • No surprises for your expert • Don’t read the expert’s report • Corroborate as much as you can with other witnesses, documents

PRESENTATION • All cases have "warts" • It's important to identify and discuss them before an expert is on the stand • Address these weaknesses on direct, especially if it's clear the state is going to get into it anyway – Enhance credibility – Takes the sting out

Put the Jury in Your Client’s Shoes for a While Although expert needs to know all case details inside and out, at the end of the day it is most useful for the jury to hear the defendant’s “story” in a way that is as straightforward and as understandable as possible. – Watch for excessive use of technical language – Expert needs to be approachable – No place for ego Goal is to help the jurors understand that it could've been them or a family member in the same situation

Battle of Experts • You MUST Prepare, Present and Protect your expert better than your opponent • Diligent preparation and organized, effective presentation will protect the expert • How to attack opposing expert?

Cross of Adverse Expert • Investigate expert – CV, writings, prior testimony, professional boards, trainings • Know her report • Know what she reviewed • Know what she didn’t review • Know what she ignored/missed • Use an expert to help with your cross

Cross of Adverse Expert • Experts aren’t super-humans! • Biases: Always for state • Lack of expertise (or outside expertise) • Garbage in /garbage out • Incorrect methodology • Errors in assumptions, information, etc. • Confirmation bias

Tale of Two Experts GEORGE CORVIN, MD (Defense Psychiatrist) • http: //www. wral. com/search/? jump=1&qs=joseph +mitchell+psychiatrist • How TO testify NANCY LANEY, Ph. D. (State Psychologist) • http: //www. wral. com/search/? jump=1&qs=joseph +mitchell+psychologist • How NOT to testify

LESSONS LEARNED 1. Don’t prepare your opponent 2. Any case can be won (or lost) 3. Don’t make an opponent try a case that can be resolved 4. You don’t have to accept an inadequate offer

Questions?

Thank you to George P. Corvin, MD for his assistance in the preparation of this presentation. George P. Corvin, MD North Raleigh Psychiatry, PA 5530 Munford Road, Suite 119 Raleigh, NC 27612 gcorvin@gmail. com