Jay H Ferguson Thomas Ferguson amp Mullins LLP 119 East Main Street Durham NC 27701 919 6825648 fergusontfmattorneyscom State v Joseph A Mitchell Initial Information httpwwwwralcomnewslocalstory8328173 ID: 805548
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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
Slide2State v. Joseph A. MitchellInitial Informationhttp://www.wral.com/news/local/story/8328173/
Slide3State v. Joseph A. MitchellInitial Information
Slide4State v. Joseph A. MitchellInitial InformationKilled son, attacked son & daughterAttempted suicide/in hospitalUpper class neighborhoodUnemployed for long period of timeGreat father, involved with his childrenHouse was in foreclosureNo memory of events
Slide5State v. Joseph A. MitchellChargesFirst Degree Murder (non-capital)Attempted First Degree MurderAttempted First Degree MurderNo other charges: felony child abuse, assault by strangulation
Slide6State v. Joseph A. MitchellEvidence
Slide7State v. Joseph A. MitchellEvidence
Slide8State v. Joseph A. MitchellEvidence
Slide9State v. Joseph A. MitchellEvidence
Slide10Bizarre/Odd FactsJoe on computer ½ hour beforeGoes to garage, puts on gardening gloves and wife’s jacketWhy wear the mask?Strangulation of kids/suicide attempt with knifeRepeatedly turns lights off/onRepeatedly attacks middle child 3 timesDaughter just pushes him away
Slide11Other FactsOffice in disarrayEMT/Medical recordsWife says:Joe not sleeping wellUnder a lot of stress due to $$Never arguedGood fatherBAD FACTSNot truthful about his pastPrior knife incident with ex-wife
Slide12State v. Joseph A. MitchellEvidence of Motive?
FALSE
Slide13State v. Joseph A. MitchellPreparation of Mental Health Defense
Slide14State v. Joseph A. MitchellExpert Witness Mandate:PREPARATIONPRESENTATIONPROTECTION
Slide15PREPARATIONFirst, 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.
Slide16What 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?
Slide17What 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 findingsImproves 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
Slide18Build Your Defense on a Strong FoundationNeed 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 disorderExample: State Psychologist’s informal notes about prior confused arousal of defendant
Slide19Communication is vitalAttorney 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
Slide20Expert Summaries and ReportsLet 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 errorsInadmissible dataExtraneous dataNOT changes to forensic conclusions unless conclusions based on factually inaccurate dataNOT removal of information in report if that data is “relied on” for opinion or if removal would weaken foundation of conclusions contained in report.
Slide21Know EVERYTHING Your Expert KnowsExperts 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.
Slide22State v. Joseph A. MitchellDiagnosisDSM-5
Slide23State v. Joseph A. MitchellDefense of Automatism
Slide24Pre-Trial StrategyWait for good pleaHow much to disclose to DA?Very few motions – only ones deemed necessaryAccess to computersOrder to allow us to provide information to State’s mental health expertOrder requiring recordation of interviews by State’s expert with clientOrder requiring all notes of State’s expert
Slide25Trial StrategyGreat Father + Bizarre Facts + No Motive = Reasonable DoubtTwo defenses: AutomatismNo maliceFelony Murder?No motion to disclose theory of murderForced State to disclose - Harbison inquiry
Slide26VOIR DIRE(Civil Cases)
Slide27VOIR DIRE(Wymore)The only goal of trial is to get Life for your client.
Slide28VOIR DIRE(Modified Ball/Wymore for non-cap cases)The only goal of trial is to get Liberty for your client.
Slide29VOIR DIRE(Modified Ball/Wymore for non-cap cases)The only goal of jury selection is to get jurors who will say “Not Guilty.”
Slide30VOIR DIRE(Modified Ball/Wymore for non-cap cases)Jurors who will listen to mental health evidence with an open mindJurors who will not shift the burden of proofJurors who will apply the “fully satisfied” or “entirely convinced” standard of reasonable doubt
Slide31VOIR DIRE(Modified Ball/Wymore for non-cap cases)What v. WhyWhat 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?
Slide32PREPARATION (Trial)Get input from expert on how to best present the evidenceExhibitsStructure of directPractice directPractice crossVulnerable: $$, jukebox expert, one-sided expert, etc.Use video if necessary
Slide33PRESENTATIONTether the testimony to the scienceUse DSM-5 or scientific criteria as format
Slide34Slide35PRESENTATIONTether the testimony to the scienceUse DSM-V or scientific criteria as formatConcede what needs to be concededNo surprises for your expertDon’t read the expert’s reportCorroborate as much as you can with other witnesses, documents
Slide36PRESENTATIONAll 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 credibilityTakes the sting out
Slide37Put the Jury in Your Client’s Shoes for a WhileAlthough 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 languageExpert needs to be approachableNo place for egoGoal
is to help the jurors understand that it could've been them or a family member in the same
situation
Slide38Battle of ExpertsYou MUST Prepare, Present and Protect your expert better than your opponentDiligent preparation and organized, effective presentation will protect the expertHow to attack opposing expert?
Slide39Cross of Adverse ExpertInvestigate expert – CV, writings, prior testimony, professional boards, trainingsKnow her report Know what she reviewedKnow what she didn’t reviewKnow what she ignored/missedUse an expert to help with your cross
Slide40Cross of Adverse ExpertExperts aren’t super-humans!Biases: Always for stateLack of expertise (or outside expertise)Garbage in /garbage outIncorrect methodologyErrors in assumptions, information, etc.Confirmation bias
Slide41Tale of Two ExpertsGEORGE CORVIN, MD (Defense Psychiatrist)http://www.wral.com/search/?jump=1&qs=joseph+mitchell+psychiatristHow TO testifyNANCY LANEY, Ph.D. (State Psychologist)http://www.wral.com/search/?jump=1&qs=joseph+mitchell+psychologistHow NOT to testify
Slide42LESSONS LEARNEDDon’t prepare your opponentAny case can be won (or lost)Don’t make an opponent try a case that can be resolvedYou don’t have to accept an inadequate offer
Slide43Questions?
Slide44Thank you to George P. Corvin, MDfor his assistance in the preparationof this presentation.
George P. Corvin, MD
North Raleigh Psychiatry, PA
5530 Munford Road, Suite 119
Raleigh, NC 27612
gcorvin@gmail.com