Posted on 25 September 2009

Florida Supreme Court Justice Barbara Pariente, center, shares a moment with University of Miami School of Law Dean Patricia D. White, left, and Bruce J. Winick, Silver-Rubenstein Distinguished Professor of Law and professor of psychiatry and behavioral sciences, during the dedication ceremony for the school’s new Therapeutic Jurisprudence Center. Pariente delivered the keynote address at the ceremony, which was held last Thursday at UM’s Lowe Art Museum and attended by several distinguished individuals, including President Donna E. Shalala and Board of Trustees Chair Phillip T. George.

The new center, which is directed by Winick, will study how courts can use therapeutic jurisprudence to help offenders solve the psychosocial problems that often are responsible for their repeated court involvement. The interdisciplinary center will conduct theoretical and empirical research; publish scholarly books, articles, and reports; and train judges and lawyers. It will also conduct community programs and host conferences, symposia, and other educational programs. In addition, the center will participate in existing and future clinical and skills training programs at the law school, helping to train students in the interpersonal skills needed for effective lawyering and counseling.

South Florida residents strike back at intruders

By Robert Nolin and C. Ron Allen

South Florida Sun Sentinel

September 11, 2009

With handguns and baseball bats, South Florida residents in recent days have been striking back at home invaders, beating and even killing those who violate the sanctity of their homes.

Two cases occurred in Palm Beach County. Thursday night, during a struggle, a Wellington homeowner shot and wounded one of two men who broke into his home. On Sept. 5, a group of men in a Lake Worth home turned the tables on a burglar, seizing his baseball bat and using it to break his arm.
And early Thursday in Miami, a man who jumped a fence and entered a home’s yard ended up dead after a confrontation with the father and son who lived there. His manner of death has not been released by police, who still are investigating.

Such instances are hardly a trend, experts say, but rather a fluke of circumstances. And they probably don’t represent an increase in frustrated homeowners fighting back.

“You have to look at each case individually,” said George L. Kirkham, a criminologist at Florida State University. “There’s a lot of tension right now in people’s lives generally because of the economy. I don’t know to what extent those kinds of factors may play into it.”

Use of deadly force against intruders is allowed under Florida law, but prosecutors and criminologists caution homeowners that there are limits to when they can harm an intruder.

Florida’s Castle Doctrine has long provided that homeowners can use deadly force against intruders, but the homeowner must have a reasonable belief that he or she is in danger of death or great bodily harm. When acting within the limits of the law, homeowners who kill or injure intruders typically are not charged.

“You can use reasonable force in self-defense or to protect your property,” said Bruce Winick, a professor of law and psychiatry at the University of Miami. However, he said, “I don’t think you can use this as a license to kill.”

For example, if an intruder surrenders or is incapacitated, a homeowner cannot use deadly force; to do so would risk criminal charges.

“We still have a bit of frontier mentality here in Florida, this idea of ‘Yes, you can shoot to kill,’ ” Winick said. “I wouldn’t advise people to kill people just because someone comes on your property.”

In 2005, the “Stand Your Ground” law went into effect. It expands the Castle Doctrine to say a person can respond to an attack with deadly force not only in the home but anywhere in public.

Winick fears the law can send the wrong message. “To the extent homeowners understand that law, it may give them a signal that they can do anything,” he said.

Brian Cavanagh, veteran homicide prosecutor with the Broward State Attorney’s Office, shares that view.

“The ‘Stand Your Ground’ law, I hate it, and I think I can speak for most prosecutors and law enforcement officers,” he said. “It’s a dangerous, dangerous law, especially if it’s misinterpreted by citizens who think it gives them the right to use unbridled force. It doesn’t give you or anybody a carte blanche right to use force. Anybody who thinks that way better read the law.”

Cavanagh, who makes decisions on whether to charge people in self-defense cases, said the threshold is whether people have a reasonable belief they are in immediate danger. If they don’t, they shouldn’t respond with deadly force, he said.

But in the heat of a confrontation with an invader, homeowners often don’t have the luxury of examining their emotions.

“People react in these situations,” said Jeff Marcus, chief of the felony division at the Broward State Attorney’s Office. “I doubt that they’re stopping to ponder the Castle Doctrine.”

Robert Nolin can be reached at rnolin@SunSentinel.com or 954-356-4525.

Copyright © 2009, South Florida Sun-Sentinel

Palm Beach Post Staff Writer

Saturday, April 18, 2009

WEST PALM BEACH – Milagro Cunningham’s lawyer described him as autistic and argued before a jury last week that he was insane at the time he beat and raped an 8-year-old girl, then left her to die buried under concrete blocks in a Lake Worth trash bin.

The case may be among the first in Florida in which autism was termed a mental illness that formed the basis of an insanity defense.

Elsewhere, attorneys for diapered NASA astronaut Lisa Nowak, who was charged with attacking a romantic rival in February 2007, have said she suffers from a high-functioning form of autism called Asperger syndrome. They have preserved Nowak’s right to argue that she was insane at the time of the encounter because of Asperger syndrome and a host of mental afflictions.

Other autistic defendants claiming insanity or asking for relief based on their disability include a Massachusetts teenager who fatally stabbed a classmate, a Minnesota man who killed a young woman whom he had lured to his home via craigslist, and a New Jersey man convicted of sexually assaulting a child.

With autism’s rising profile and its skyrocketing rates of diagnosis comes the question: Is autism-made-me-do-it a new defense du jour?

Bruce Winick, a University of Miami professor of law, psychiatry and behavioral sciences, said it’s an extremely rare claim in an insanity case. And it is far less likely than other afflictions, such as schizophrenia, to be a successful defense under Florida law, he said.

Florida’s insanity law requires that a person have a mental infirmity, disease or defect and, because of that condition, not know what he was doing or its consequences, or not know what he was doing was wrong.

Most often, Winick said, insanity defenses involve some kind of psychosis or cognitive impairment.

“For example, ‘I thought I was squeezing a lemon, and it really was a throat,’ ” Winick said.

Autism could prevent a person from being able to distinguish right from wrong, “but in most cases it won’t,” Winick said.

Autism is a developmental disability and a neurological disorder that affects normal brain functioning, according to the Autism Society of America. It cripples social development and communication.

Dr. Jon Shaw, chief of child and adolescent psychiatry at the University of Miami’s medical school, said autism rates have soared in part because of better diagnostic tools. Twenty years ago, the rate was three or four per 10,000 people; today, some estimate it at one in 150, he said.

There is no scientific correlation between violence and autism. To equate autism with legal insanity is completely “fallacious,” Shaw said.

In Cunningham’s case, five doctors differed on whether he is autistic. Two said yes; three said no.

Cunningham, now 21, confessed to police that he was angry at not being invited to the movies by other teens in the house where he was staying when he attacked the girl in May 2005.

“Something in my mind told me to do something bad,” he told police. “I’m so sorry. I can’t control myself.”

Dr. Abbey Strauss, a psychiatrist, testified that Cunningham was autistic and, separately, insane at the time of the crime. He said many people with autism have brain abnormalities, documented in sophisticated medical imaging called PET scans, as in Cunningham’s case.

“You have to remember … people who have autism and bad PET scans are known to be impulsive, known to be aggressive and can’t control themselves,” Strauss testified.

Jurors rejected Cunningham’s autism-and-insanity claim and convicted him of attempted second-degree murder and other charges. He could face up to life in prison when sentenced next month.

For the girl’s mother, Machele Humose, the defense’s claims seemed invented.

She knew Cunningham before the attack and called it “crazy” and “ludicrous” that he was autistic.

“He’s a pedophile. That’s his problem,” Humose said.

10:53 AM CDT on Saturday, April 11, 2009

By DIANE JENNINGS / The Dallas Morning News
djennings@dallasnews.com

Everyone agrees Andre Thomas is crazy.

In 2004, he cut out the hearts of his wife and her two children and pocketed them. Before his murder trial, he plucked out his right eye. In January, while on death row, he ripped out his other eye and swallowed it.

Thus far, courts say Thomas is not insane.

His case is a classic example of the complexities of Texas’ insanity defense law – and why some mental health advocates are pushing to change it. Several bills pending in the Texas Legislature would do just that.

With medication and treatment, Thomas eventually was found mentally competent to stand trial, because he could communicate and assist his attorney in his defense. At trial, he was found to be sane at the time of the crime because he knew the difference between right and wrong. And he may be found competent to be executed if he understands what execution means and why he is being killed.

Thomas is “clearly ‘crazy,’ ” a judge on the Texas Court of Criminal Appeals wrote in a concurring denial of his appeal last month, “but he is also ‘sane’ under Texas law.”

Death penalty opponent Maurie Levin, an adjunct professor at the University of Texas School of Law, is appalled. “There is something just horribly wrong with a system that permits somebody as severely mentally ill as Andre Thomas to be found competent to stand trial or sane at the time of that crime,” said Levin, who consulted with Thomas’ defense attorney.

“We need to change the law,” said Brian Shannon, a Texas Tech law professor, because a mentally ill person may know their conduct is wrong but be unable to fully comprehend the situation because the illness affects his “emotional state and thinking and reasoning ability.”

Some defendants, such as Thomas, know killing is wrong but say God is telling them to do it.

Proposed legislation

Shannon supports bills pending in the Legislature to broaden the law, in all cases, not just capital cases, to say that a defendant must “appreciate,” not just “know,” the difference between right and wrong and that the wrong should be a moral one, not just legal.

Such changes, which have been proposed in past sessions, would bring Texas closer to the federal standard on insanity. Supporters are hopeful for passage this time, but for now, the Texas law is similar to that in other states.

“Texas is right within the norm,” said Bruce Winick, who teaches law at the University of Miami, and psychiatry and behavioral sciences at the medical school. “People aren’t going to say, ‘Oh, there goes Texas again.’ ”

Texas, like many states, narrowed the insanity defense in the 1980s amid outrage over John Hinckley’s acquittal in the attempted assassination of President Ronald Reagan. Hinckley has been confined to a mental hospital since 1982.

Shannon said Texas law also should change to inform jurors what happens to defendants found not guilty by reason of insanity. They do not “just walk free,” he said.

A bill authored by Rep. Senfronia Thompson, D-Houston, would allow jurors to be told that such defendants are sent to a mental hospital if acquitted. Long-term hospitalization is not guaranteed, but “even if someone gets well and is discharged, there’s still oversight by the court,” Shannon said.

Prosecutors oppose efforts to broaden the not guilty by reason of insanity defense.

“The people who are truly mentally ill, to the degree that their functioning is impaired, I think they are protected by the existing system,” said Karla Hackett, who handled the Thomas appeal for Grayson County.

Thomas’ attorneys had numerous opportunities to explain the effect of his mental illness to jurors. In the weeks before the murders, Thomas heard voices, behaved strangely and left mental facilities without treatment.

But jurors also heard how he planned the crime, intentionally avoided detection, then turned himself in to authorities. Prosecutors said drinking and drug use also contributed to his psychotic episodes.

“There’s no doubt he has mental illness,” Hackett said, but “ why does he have mental illness?” Under Texas law if the illness is caused or worsened by “voluntary intoxication” such as drug or alcohol abuse, “you don’t get to claim insanity.”

Levin said the prosecution is implying that “if he hadn’t been intoxicated, he wasn’t crazy, he was faking. I think Andre’s actions since the crime – including gouging out his eye pretrial and taking out a remaining eye three months ago – have proven them wrong.”

Jurors weigh in

Jurors heard experts from both sides, but didn’t buy the argument that Thomas’ mental illness meant he shouldn’t be held criminally accountable, Hackett said.

Thomas’ appellate attorneys, who declined to comment, claim his trial counsel was ineffective. Appellate courts have disagreed and deferred to the jury’s judgment.

“What angers people is when they don’t know the whole case,” Hackett said. “It’s, ‘Oh, my gosh, he’s got no eyeball, I can’t believe they’re doing this, he must be crazy.’ Well, don’t say that until you’ve been there, until you’ve sat in the jury box for six weeks.”

Hackett said changing the wording of the law would “open up a whole new area of litigation. Now we’re going to argue, what does the word appreciate mean? Whose morals?”

Williamson County District Attorney John Bradley said the current law “strikes the appropriate balance.”

Informing jurors about what happens if the defendant is found not guilty by reason of insanity would make the process less objective, Bradley said. He thinks jurors might speculate about what could happen and be “frightened into convicting the defendant” if they understood the limits of judicial oversight when a defendant is found not guilty by reason of insanity.

High court ruling?

Winick, the University of Miami instructor, expects the U.S. Supreme Court eventually to weigh in on the issue. So far, the court has ruled only that an inmate must be competent to be executed. Last summer the high court also ruled a mentally ill defendant cannot represent himself in court.

But the court has not ruled on whether an inmate may be forcibly medicated to render him competent – and therefore eligible for execution. That issue may be ripe for the Supreme Court to decide.

Winick thinks the court ultimately may have to rule whether it is unconstitutional to impose the death penalty on someone who is sane but mentally ill. That issue is a “natural extension,” he said, of the court’s decisions prohibiting execution for the mentally retarded and juveniles because they have less ability to understand the consequences of their crimes.

Ron Honberg, director of policy and legal affairs for the National Alliance on Mental Illness, said it probably would be years before the issue reaches the court. The decisions regarding mental retardation and juveniles relied heavily on the fact that more than half of the states had abolished the death penalty for those individuals. So far, only a handful of states are even considering a ban on executing the mentally ill. Texas is not among them.

DETERMINING INSANITY

Under current state law, mentally ill defendants undergo tests of mental competence at several stages:

1. Before trial: Defendants must be able to understand the trial process and be able to communicate with their attorney and understand the proceedings. A judge may make the determination at an examining trial where the defendant is represented by an attorney and may present evidence from experts. The defendant may request a jury decision.

2. At the time of the crime: If the defendant claims at trial to be not guilty by reason of insanity, he must prove he did not know his conduct was wrong while committing the crime. As in any criminal trial, he may request a judge or a jury.

3. At the time of execution: If the case results in a death penalty, an inmate cannot be executed if he does not understand what it means to be executed and why he is being put to death. If a claim of incompetence is made, a judge must hold a hearing to determine competency. Lower courts differ on whether an inmate may be forcibly medicated to achieve competency, which makes him eligible for execution. The U.S. Supreme Court has not ruled on forcible medication.

SOURCE: Dallas Morning News research

By Dianna Cahn

South Florida Sun-Sentinel

March 23, 2009

Copyright © 2009, South Florida Sun-Sentinel

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Autism is not a defense against a violent crime, said Bruce J. Winick, a UM law professor. For the state to prosecute, Brinegar merely has to be competent to stand trial.

The real question is whether he knew right from wrong.

”If he knew he was doing wrong, even though he might not appreciate his feelings, it wouldn’t amount to an insanity defense under Florida law,” Winick said.

…Bruce Winick, a law professor at the University of Miami, said the second jury stalemate “tells a story. The jury doesn’t trust the government’s credibility here. It’s a trumped-up, overblown case.

”We’re paying the freight for prosecutors, defense lawyers, judges, jurors — everyone,” he added. “Don’t we have better things to do with our criminal justice system than to make the defendants run the gantlet over and over again?”

The jurors did not comment. Bruce J. Winick, a law professor at the University of Miami who followed the case, said the mistrial showed public skepticism of the pre-emptive terrorism-related arrests.

“Politics played too important a role in this prosecution,” Professor Winick said. “We should follow our normal prosecution pattern, which is to gather the evidence.”