Wednesday, May 20, 2009

David Johnston and mental illness


Mr. Johnston is exempt from execution under the Eighth Amendment to the U.S. Constitution because he suffers from such severe mental illness that death can never be an appropriate punishment. Mr. Johnston’s severe mental illness places him within the class of defendants, like those who were under the age of eighteen at the time of the crime and those with mental retardation, who are categorically excluded from being eligible for the death penalty. Cf. Roper v. Simmons, 543 U.S. 551 (2005)

(holding that the death penalty is unconstitutional for defendants under 18 at the time of the crime); Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the death penalty is unconstitutional for mentally retarded defendants).

The United States Supreme Court has long cautioned that the Eighth Amendment’s prohibition against cruel and unusual punishment is not simply a fixed ban on certain punishments, but rather depends on evolving standards of decency for its substantive application. Trop v. Dulles, 356 U.S. 86, 100 (1958) (noting that “the [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”); Weems v. United States, 217 U.S. 349, 368 (1910) (recognizing that the words of the Eighth Amendment are not precise, and that their scope is not static.). The 2006 American Bar Association’s Resolution 122A, urging states to exempt from the death penalty those defendants with severe mental illness at the time of their crimes as described in the resolution, evinces an evolution in standards of decency which must be considered in a proper Eighth Amendment analysis.21

21It bears noting that prior to the United States SupremeCourt’s decisions holding that mentally retarded defendants anddefendants under the age of eighteen at the time of the crime are categorically excluded from eligibility for the deathpenalty, the ABA passed resolutions urging the exemption of bothclasses of defendants from the death penalty. See American BarAssociation, Report with Recommendations No. 107 (adoptedFebruary 1997); American Bar Association, Recommendation (adoptedFebruary 1989); American Bar Association, Recommendation (adopted

Mr. Johnston has suffered continuously from severe mental illness since before the time of the crime for which he was convicted and sentenced to death. He has been diagnosed with organic brain damage with aphasia (indicating left hemisphere brain damage effecting language functions); schizophrenia with 1st order symptoms of hallucination, delusion, thought disorder, and paranoid features (PC-R. 243-42). He falls within the class of persons who are so much less morally culpable and deterrable than the “average murderer” as to be categorically excluded from being eligible for the death penalty, no matter how heinous the crime. Cf. Simmons, supra; Atkins, supra. Given his severe mental illness, Mr. Johnston is constitutionally protected from execution because the death penalty is an unconstitutionally excessive punishment for Mr. Johnston for the same reasons delineated in Atkins and Simmons. In Gregg v. Georgia, 428 U.S. 153, 183 (1976), the United States Supreme Court identified retribution and deterrence of capital crimes by prospective offenders as the social purposes served by the death penalty. In Atkins, the U.S. Supreme Court stated that “[u]nless the imposition of the death penalty on a mentally retarded person measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.”

August 1983).

526 U.S. at 320, quoting Enmund v. Florida, 458 U.S. 782, 798 (1982). The Atkins Court ultimately found that neither justification for the death penalty was served by its imposition on mentally retarded individuals.

As to the first justification, retribution, the court concluded that the legislative trend against imposition of the death penalty on mentally retarded offenders “provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal.” Id. at 316. The Atkins Court opined that “If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution.” 526 U.S. at 319. The court explained some reasons for the lesser culpability of mentally retarded offenders:

Mentally retarded persons frequently know thedifference between right and wrong and arecompetent to stand trial. Because of their impairments, however, by definition they havediminished capacities to understand and processinformation, to communicate, to abstract frommistakes and learn from experience, to engage inlogical reasoning, to control impulses, and tounderstand the reactions of others. ... [T]hereis abundant evidence that they often act onimpulse rather than pursuant to a premeditatedplan, and that in group settings they arefollowers rather than leaders. Their deficiencies do not warrant an exemption from criminalsanctions, but they do diminish their personalculpability.

Id. at 318. Similarly, in Simmons, the United States Supreme

Court listed several reasons for juveniles’ diminished culpability:

Three general differences between juveniles under18 and adults demonstrate that juvenile offenderscannot with reliability be classified among the worstoffenders. First, ... “[a] lack of maturity and anunderdeveloped sense of responsibility are found inyouth more often than in adults and are moreunderstandable among the young. These qualities oftenresult in impetuous and illconsidered actions anddecisions.” It has been noted that “adolescents are overrepresented statistically in virtually everycategory of reckless behavior.”

* * * The second area of difference is that juveniles aremore vulnerable or susceptible to negative influencesand outside pressures, including peer pressure.

* * * The third broad difference is that the character of a juvenile is not as well formed as that of an adult. Thepersonality traits of juveniles are more transitory, lessfixed.

Simmons, 543 U.S. at 569-570 (internal citations omitted).

The reasoning in Atkins and Simmons applies with equal force

to severely mentally ill offenders such as Mr. Johnston, as some

judges across the county have begun to recognize.22 Mr.

22In a concurring opinion in State v. Ketterer, 855 N.E. 2d48 (Ohio 2006), Justice Stratton addressed the ABA resolution andnoted that “[t]here seems to be little distinction betweenexecuting offenders with mental retardation and offenders withsevere mental illness, as they share many of the samecharacteristics.” Id. at & 245. He concurred in the court=s judgment upholding the death sentence of a severely mentally illoffender, however, because “while [he] personally believe[s] thatthe time has come for our society to add persons with severemental illness to the category of those excluded from applicationof the death penalty, [he] believe[s] that the line should bedrawn by the General Assembly, not by a court.” Id. at & 247. See also Corcoran v. State, 774 N.E. 2d 495, 502 (Ind. 2002)

Johnston’s severe mental illness and neurological impairments

cause him to suffer from the very same deficits in reasoning,

judgment, and control of impulses that lessen his culpability and

render the penological justification of retribution ineffective

against him.

As to the deterrence justification for capital punishment,

the Atkins Court also found that as a result of the limitations

on the ability of a person with mental retardation to reason and

control himself, the death penalty would have no deterrent effect

on his actions. Id. at 2251. Specifically, the Court found that a

mentally retarded individual’s “diminished ability to understand

and process information, to learn from experience, to engage in

logical reasoning, or to control impulses” makes it less likely

that he will conform his conduct to avoid the possibility of

execution. Id. Similarly, in Simmons, the Court noted that “the

(Rucker, J., dissenting) (“I respectfully dissent because I donot believe a sentence of death is appropriate for a personsuffering a severe mental illness. Recently the Supreme Courtheld that the executions of mentally retarded criminals are “cruel and unusual punishments” prohibited by the EighthAmendment of the United States Constitution. There has been no argument in this case that Corcoran is mentally retarded.However, the underlying rationale for prohibiting executions ofthe mentally retarded is just as compelling for prohibitingexecutions of the seriously mentally ill, namely evolvingstandards of decency.”) (internal citations omitted); State v.Scott, 748 N.E. 2d 11 (Ohio 2001) (Pfeifer, J., dissenting) (“Asa society, we have always treated those with mental illnessdifferently from those without. In the interest of human dignity,we must continue to do soY. I believe that executing a convictwith severe mental illness is a cruel and unusual punishment.”).

same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence.” 543 U.S. at 571. In particular, the Court opined, “[t]he likelihood that the teenage offender has made the kind of costbenefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent.” Id. at 572, quoting Thompson v. Oklahoma, 487 U.S. 815, 837 (1988).

Likewise, the justification of deterrence is not served by executing severely mentally ill individuals, as severe mental illness can impair an individual’s ability to control impulses or understand long-term consequences. At his evidentiary hearing, Mr. Johnston presented evidence of his severe mental illness. Dr. Merikangas, a psychiatrist and neurologist experienced in evaluating criminal defendants, testified that Mr. Johnston was "psychotic and has been, at least since he was 17, that he has brain damage, probably from early childhood and that as a result of the organic brain damage and the psychosis, he's more susceptible to the effects of drugs and alcohol and emotional stress and distress" (PC-R. 365). Dr. Merikangas went on to explain Mr. Johnston's complex mental history:

A. Well, very important in his evaluation isthe, is the historical record and the medical records.He was tested at age seven and a half in schools havingan I.Q. of 57. And he was labeled at that time as an educably retarded child. He was noted at that time to be hyperactive, inattentive, difficult to be directed,not benefitting from learning. He was held back in school. And he began almost immediately to get in


trouble with the authorities.

When he was 13, it was recommended that he be

institutionalized because of his psychiatric

difficulties, his learning difficulties and his violent

behavior. And then he was, in fact, hospitalized a

number of different places, including the Central

Louisiana State Hospital and the Conway Memorial

Hospital, in particular. And all of these people, or

most of all these people agreed that he had a severe

mental illness. They varied in light details. Many of

them calling him schizophrenic, which does summarize

fairly well the thought disorder that he has.

He suffers from delusions, hallucinations and a

complex disorder of logical thought, which causes him

not to be able to judge his environment and react to it

in a way that normal people do. In addition to that,

though, he has the physical findings of brain damage.

Which include his being, if I could refer to the, my

notes, he has trouble with coordination on the left

side of his body. Moving his left hand and arm is done

with difficulty. He has changes in his reflexes.

Hyper reflexia. Particularly at the left knee. He has

an altered sensitivity to pin prick. The test is to

touch the patient with a sharp object and have him

report. The entire left side of his face, arm and leg.

There is an asymmetry to his head and his face, which

if you look at him, you will see that the right eye

appears somewhat smaller than the left. He has, when

moving his face spontaneously, it moves asymmetrically.

The right side of his face moving more than the left.

These physical signs are things that accompany

brain damage. The psychological testing also bears

that out. But in my own examination of him, he also

has scoliosis, which is spinal curvature, and although

this is a disease of the bone, the growth of the spine

is controlled by the nervous system and is probably as

a result of his brain damage that he has the spinal


(PC-R. 363-67). Dr. Merikangas also testified that Mr.

Johnston’s “ability to conform his conduct to any kind of

standard, including the requirements of law, is impaired because

he has idiosyncratic delusional thinking, with hallucinations and that he does things based upon fantasies, dreams and thoughts that he cannot distinguish from reality.” (PC-R. 387-88). Further, Dr. Merikangas explained that Mr. Johnson “does not have the mind of an adult. He has a brain damaged mind which is less than that of a normal adult person. . . he is, in a sense a, a child-like person.” (PC-R. 389-91).

Additionally, Dr. Hyman Eisenstein, a neuropsychologist, completed a preliminary neuropsychological evaluation at the direction of undersigned counsel on May 5, 2009. Dr. Eisenstein found that Mr. Johnston operates at a mental age between 6.6 years and 11.8 years based upon the administration of the Peabody Picture Vocabulary Test, Third Edition and the Wide Range Achievement Test, Revision 3.23 Mr. Johnston cannot distinguish between addition and subtraction nor perform the most basic spelling tasks. This is also evidenced by the fact that Mr. Johnston cannot even compute the amount in his canteen account; other inmates must assist him in this task.

Dr. Eisenstein found that Mr. Johnston is very “primitive” in his ability to care for himself and has extreme difficulty in adaptive functioning, both now and in the past. Dr. Eisenstein opined that Johnston’s adaptive functioning places him in the

23 Dr. Eisenstein also administered the TOMM test and there were no indications of malingering whatsoever.

same class of persons as those diagnosed as mentally retarded. Dr. Eisenstein did not have enough time to give the newest IQ test, the WAIS-4. Dr. Eisenstein believes that prior IQ scores artificially inflated Mr. Johnston’s scores. The new test, the WAIS-4, has accounted for the factors that may have artificially inflated these scores. This is due to a reconfiguring of the method in which attention concentration is scored. At an evidentiary hearing this evidence can be produced.

Dr. Eisenstein’s tentative diagnosis is organic brain damage, paranoid schizophrenic, rule out pervasive developmental disorder and autism. This is consistent with prior diagnoses leaving no doubt that Mr. Johnston is severely mentally ill, brain damaged, and operates at a child-like mental level.

Capital punishment’s twin goals of retribution and deterrence would not be served by executing Mr. Johnston. The extensive and compelling evidence of Mr. Johnston’s severe mental illness presented at his evidentiary hearing demonstrates that his significant impairments in reasoning, judgment, and understanding of consequences puts him in the same class as mentally retarded and juvenile offenders in terms of diminished culpability.

Additionally, mental illness, like mental retardation and youth, can impair a defendant’s ability to consult with and assist counsel at trial. Cf. Atkins, 536 U.S. at 321 (“Mentally

retarded defendants may be less able to give meaningful

assistance to their counsel…”). Such was certainly the case with

Mr. Johnston, as is demonstrated by the fact that his trial

attorneys felt he was “continually incompetent” (PC-R. 150). 24

Furthermore, because severely mentally ill defendants,

mentally retarded defendants, and juvenile defendants are

similarly situated with respect to the goals served by capital

punishment, and because there is no rational basis for

24Trial counsel Warren explained:

I could tell him something, and fifteen minutes later, it would become clear that he did not understandwhat I had said. In fact, really couldn't -- I don'tknow if remember is the right word, but did notincorporate it into his consciousness. He made bizarre comments and statements. Was very childish; verydemanding.

It was -- and then, of course, he had a, as thecase developed, you know we learned that he had beencommitted and had received psychiatric treatmentearlier.

I had, at that point, I had been practicing lawabout four years. One of the first cases that I ever became involved in was a first-degree murder case. In fact, the day after I was sworn in, I appeared forinitial appearances for that particular person wherewe, where the insanity defense was a defense.

I have family members who are schizophrenic and Ihave had a lot of, had had even then, a fair amount ofexperience with clients who had psychiatric problems.And he just seemed to me to have severe mentalproblems.

(PC-R. 143-45).

distinguishing severely mentally ill defendants from mentally retarded and juvenile defendants, executing Mr. Johnston would not comport with equal protection under the United States Constitution. See e.g., City of Cleburne, Texas, et al.v. Cleburne Living Center, Inc., et al., 473 U.S. 432, 439 (1985), citing to Plyler v. Doe, 457 U.S. 202, 216 (1982)(“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.”). Mr. Johnston’s severe mental illness and neurological impairments render him ineligible for the death penalty under the Eighth Amendment and the Supreme Court’s reasoning in Atkins and Simmons.

1 comment:

Anonymous said...

The only appropriate punishment is to wipe this stain off of our shoes. His victim (my great grandmother) was of sound mind, and this piece of garbage killed her. He deserved to die 20 years ago. But I'll be glad to see him squirm now.