CRIMINAL COURT CONSULTATION CRITICAL ISSUES IN AMERICAN PSYCHIATRY AND THE LAW was edited for THE AMERICAN ACADEMY OF PSYCHIATRY AND THE LAW (TRI-STATE CHAPTER) Officers Stephen Rachlin, M.D. President Michael H. Bell, M.D. Councillor Henry C. Weinstein, M.D. Past President Stephen B. Billick, M.D. Councillor Stanley Kern, M.D. Vice-President Ezra Griffith, M.D. Councillor Harold I. Schwartz, M.D. Secretary Howard Owens, M.D. Councillor Robert L. Goldstein, M.D. Treasurer Sheldon Travin, M.D. Councillor Richard Rosner, M.D. Founding President Howard V. Zonana, M.D. Councillor Volume 1 Edited by Richard Rosner, M.D. Volume 2 Edited by Richard Rosner, M.D. Volume 3 GERIATRIC PSYCHIATRY AND THE LAW Edited by Richard Rosner, M.D., and Harold I. Schwartz, M.D. Volume 4 JUVENILE PSYCHIATRY AND THE LAW Edited by Richard Rosner, M.D., and Harold I. Schwartz, M.D. Volume 5 CRIMINAL COURT CONSULTATION Edited by Richard Rosner, M.D., and Ronnie B. Harmon, M.A. Volume 6 CORRECTIONAL PSYCHIATRY Edited by Richard Rosner, M.D., and Ronnie B. Harmon, M.A. A Continuation Order Plan is available for this series. A continuation order will bring delivey of each new volume immediately upon publication. Volumes are billed only upon actual shipment. For further information please contact the publisher. CRIMINAL COURT CONSULT ATION Edited by RICHARD ROSNER, M.D. Clinical Projessor, Department of Psychiatry, New York University School oj Medicine Diplomate, American Board oj Forensic Psychiatry and Medical Director, Forensic Psychiatry Clinic jor the New York Criminal and Supreme Courts (First Judicial Department) Department of Mental Health, Mental Retardation, and Alcoholism Services of the City of New York New York, New York and RONNIE B. HARMON, M.A. Administrative Director, Forensic Psychiatry Clinic jor the New York Criminal and Supreme Courts (First Judicial Department) Department of Mental Health, Mental Retardation, and Alcoholism Services of the City of New York New York, New York PLENUM PRESS • NEW YORK AND LONDON Library of Congress Catalog Card Number 88-657025 ISBN-13:978-1-4612-8058-3 e-ISBN-13: 978-1-4613-0739-6 DOl: 10.1007/978-1-4613-0739-6 © 1989 Plenum Press, New York Sof tcover reprint of the hardcover 1st edition 1989 A Division of Plenum Publishing Corporation 233 Spring Street, New York, N.Y. 10013 All rights reserved No part of this book may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording, or otherwise, without written permission from the Publisher To our spouses, M. Bernice Rosner, M.S.N. and Michael A. Cherni Contributors Richard T. Andrias • Supreme Court of the State of New York, New York, New York; New York County Criminal Court, New York, New York Niels C. Beck • Department of Psychiatry, School of Medicine, Univer sity of Missouri-Columbia, Columbia, Missouri J. M. W. Bradford • Department of Psychiatry, Faculty of Health Sci ences, University of Ottawa, Ottawa, Ontario, Canada; Forensic Psy chiatry and the Sexual Behaviors Clinic, Royal Ottawa Hospital, Ottawa, Ontario, Canada J. Richard Ciccone • Department of Psychiatry, University of Roches ter School of Medicine and Dentistry, Rochester, New York M. P. Duncan III • Texas Court of Criminal Appeals, Austin, Texas Alan R. Felthous • Department of Psychiatry and Behavioral Sciences, University of Texas Medical Branch-Galveston, Galveston, Texas Naomi Goldstein • Department of Psychiatry, New York University School of Medicine, New York, New York vii viii CONTRIBUTORS Robert lloyd Goldstein • Department of Psychiatry, College of Physi cians and Surgeons, Columbia University, New York, New York Abraham L. Halpern • Department of Psychiatry, New York Medical College, Valhalla, New York; Department of Psychiatry, United Hospital Medical Center, Port Chester, New York Ronnie B. Harmon • Forensic Psychiatry Clinic for the Criminal and Supreme Courts, New York City Department of Mental Health, Mental Retardation and Alcoholism Services, New York, New York Bruce Harry • Department of Psychiatry, School of Medicine, Univer sity of Missouri-Columbia, Columbia, Missouri Ingo Keilitz • Institute on Mental Disability and the Law, National Cen ter for State Courts, Williamsburg, Virginia Howard Owens • Forensic Psychiatry Clinic for the Criminal and Su preme Courts, New York, New York; Department of Psychiatry, New York University School of Medicine, New York, New York Michael L. Perlin • Director, Federal Litigation Clinic, New York Law School, New York, New York Irwin N. Perr • Department of Psychiatry, Robert Wood Johnson Med ical School, University of Medicine and Dentistry of New Jersey, Piscataway, New Jersey; Rutgers Law School-Newark, Newark, New Jersey Robert L. Sadoff • Department of Psychiatry; Center for Studies in Social-Legal Psychiatry, University of Pennsylvania, Jenkintown, Pennsylvania Richard Schuster • Comprehensive Rehabilitation Consultants, 310 Madison Avenue, New York, New York; Department of Psychol ogy, Derner Institute, Adelphi University, New York, New York CONTRIBUTORS ix Sheldon Travin • Department of Psychiatry, Bronx-Lebanon Hospital Center, Bronx, New York; Albert Einstein College of Medicine, Bronx, New York Alan J. Tuckman • Department of Psychiatry, New York University School of Medicine, and private practice, Pomona, New York Foreword During the 1980s, those of us who were involved in forensic psychiatry have seen an increase in the interest in our subspecialty. This increased interest has been from psychiatrists, lawyers, judges, and correctional officials as well. As a part of this demand for our services, there has also been an increase in the demand for detailed quality in our reports and testimony. Whether this is the result of the educational efforts of the American Academy of Psychiatry and the Law, the establishment of the American Board of Forensic Psychiatry, the stimulation of thought by the publication of this series, Critical Issues in American Psychiatry and the Law, or Supreme Court decisions such as Ake v Oklahoma is anybody's guess. My experience as an observer of the development of the patient's rights movement was that there was a coalescence of numerous forces, such as the new human rights movement, the active mental health bar, and the development of neuroleptics. I therefore suspect that there are a multitude of factors contributing to the new interest in forensic psychia try and the elevation of the standards of forensic experts. Regardless of the causes, those who are practicing forensic psychiatry today are ex pected to conduct more thorough evaluations and to report findings more completely. No longer will simple conclusory statements be accept able. The forensic psychiatrist is expected to present data in a clear, understandable, detailed, reliable, and competent fashion whether testi fying or in a report. At present, the criminal justice system is attempting to evaluate its functioning in order to streamline its operations and coordinate its efforts. Ingo Keilitz, who is director of the Institute on Mental Disability and the Law of the National Center for State Courts, has made a good start in the mental health area. His chapter, "Mental Health Services to xi Xll FOREWORD the Courts: A System Isolated from Judicial Administration," represents a new and somewhat unique view of the system, although I might be prejudiced because of the excellent history of the development of the Medical Office of the Circuit Court for Baltimore City (previously the Supreme Bench of Baltimore). I do, however, have some concerns about Keilitz's recommendations for integration olthe courts' mental health services with the judicial system. My concerns are related to the ques tions raised by Howard Owens in his chapter, 'Judges and Psychiatrists: The Question of a Collaborative Relationship." The integration of these systems could lead to issues of control and interference. Freedom is necessary for good clinical judgments by psychiatrists. It is difficult enough to avoid becoming burned-out by repeated exposure to serious criminal behavior and to lose that therapeutic edge that is such a neces sary and expected part of the clinician. To add to this task the possibility of pressure and coercion from the judicial system, which has its own political, social, and professional needs, could be too much. A vital bal ance, encouraged by independence and freedom, is essential for a well functioning court clinic. Keilitz's chapter is not an outline for reform but only a first look at these two systems, which work independently in the same place-the courthouse. When you read these two chapters by Owens and Keilitz, see what you think. Some of us may not appreciate the impact that psychiatric disorders have on the case flow of the criminal justice system. When we stop to consider the number of pretrial forensic cases in our public mental hospitals, it should come as no surprise that the criminal justice system has to stop and wait for a large number of defendants to return from the hospital. Judge Richard T. Andrias's discussion not only looks at these issues but also presents a concise legal review of the pretrial issues. On the same pretrial subject of competency, an always competent and cogent J. Richard Ciccone presents the history and clinical deter mination of and the legal issues surrounding competence to stand trial. In a later chapter, another aspect of this issue is examined by Naomi Goldstein in her comprehensive and detailed discussion, "Malingering and the Evaluation of Competency to Stand TriaL" The intriguing case of Colorado v Connelly raises issues that should be of concern to the forensic evaluator. Michael L. Perlin deals with these in his usual sharp and perceptive fashion. Robert L. Sadoff defends the insanity defense with his usual vigor, whereas Abraham L. Halpern attacks it in the same fashion. Wherever you stand on this issue, these two chapters present just about all of the arguments. Many forensic psychiatrists are unaware of some of the special pleas that may be available in a single state. It is interesting that although