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First Circuit denies habeas relief that counsel was ineffective in failing to request competency evaluation.

The First Circuit Court of Appeals has denied habeas corpus relief to a petitioner who was convicted of first degree murder in Massachusetts who allowed his 11-month old son to die based upon his religious beliefs. He argued that his counsel at trial was ineffective because he had an obligation to seek a competency to stand trial evaluation and that he failed to raise an insanity or diminished capacity defense. Robidoux v. O'Brien, 643 F.3d 334 (1st Cir. 2011).

The defendant in this case was a member of a religious sect led by his father that believed that a number of institutions, including the legal system, medical system and mainstream religion were invalid and its members were instructed to eschew doctors and medicines. The evidence showed that until he was about 8 months old, the child was thriving and well nourished, but about that time the defendant's sister got a "leading," instructing that the mother should feed the child only breast milk in limited quantities. Thereafter, the infant began to fail. The defendant and his wife failed to take the infant to a doctor or to provide him with a proper diet. The day after the sect conducted a special meeting to pray for the child, he died. After concealing the body in his sister's house for several months, the defendant buried the baby in Maine. The police located the body a year after the burial when a defector from the sect reported the death to authorities.

At trial, the defendant argued that the prosecution could not prove the cause of death was malnutrition, based upon the testimony of his forensic expert that the infant could have died from any number of causes. The chief medical examiner testified that the condition of the decomposed body was indicative of severe malnutrition due to starvation. The defendant testified in his own defense that he had no intent to harm the child. The jury convicted him of first degree murder and he was sentenced to life in prison.

In seeking habeas corpus relief, the defendant argued primarily that his counsel should have pursued an insanity or diminished capacity defense based upon three affidavits, the first from a psychologist who never interviewed the defendant stating that the defendant was unable to appreciate or understand that it was wrong to deprive his son of solid food. The Director of the New England Institute for Religious Research stated that the defendant's father exercised undue influence over him and other sect members that made it impossible for counsel to present an adequate defense. The defendant himself filed an affidavit stating that counsel discussed the insanity defense with him, but he refused to talk with a doctor or psychotherapist prior to trial due to his religious beliefs.

The trial court found that counsel properly defended the case based upon the judge's own observations of the defendant in court, the answers provided in colloquies from the bench, and his testimony at trial, even though he presented a rambling eve-of-trial motion to represent himself saying the government had no jurisdiction to try him, which she found appeared a tactic to delay trial. No fact-finding hearing was conducted on his competency to stand trial.

The First Circuit articulated the standard in ineffective assistance of counsel cases that there must be proof that counsel fell below the minimum standards of representation and there was a reasonable probability that the deficiency altered the outcome of the case. Where raising a particular defense is a strategy choice, counsel will be given special deference. On the other hand, if substantial indications exist that the defendant was not competent to stand trial, counsel is not faced with a strategy but with a settled obligation under Massachusetts and federal law to raise the issue with the court and seek a competency evaluation. Competency is a functional concept focusing on the defendant's part in the trial, namely whether the defendant understands the nature of the proceedings against him and is able to assist counsel in his defense. In this case, it appears that he argued that the government had no legitimate authority over him, but he engaged in an intelligent and articulate colloquy with the court and as a witness. There was no evidence that the defendant had ever suffered from a mental illness or that he failed to understand the proceedings or cooperate with counsel. Although state court findings are generally accorded no deference absent an evidentiary hearing, there was no evidence presented that a competency hearing was necessary.

In addition, the 1st Circuit held that the defendant could decline to assert an insanity defense and refuse a psychiatric examination, which he apparently did. His current defense counsel argued that he suffered from a delusional disorder based on his religious illusions that God and prayer, not ordinary nourishment, would protect his son. He also argued that his diminished capacity prevented him from forming the necessary intent to support a conviction for first degree murder. The appellate court held that there was no evidence to support a mental illness and that the law provides for the denial of medical care in certain situations based upon religious beliefs, such as for example, those held by Christian Scientists and Seventh Day Adventists, but the evidence, including the defendant's own testimony indicated that he understood the risk.

Developments in Mental Health Law is published electronically by the Institute of Law, Psychiatry and Public Policy (ILPPP) with funding from the Virginia Department of Behavioral Health and Developmental Services. The opinions expressed in this publication do not necessarily represent the official position of either the ILPPP or the Department.

Developments in Mental Health Law is available as a pdf document via the Institute of Law, Psychiatry and Public Policy's website, Publications and Policy/Practice section If you would like to be notified via email when new issues of Developments are posted to the website, visit the website and at the bottom of the homepage click to join the ILPPP e-mail list.

Letters and inquiries, as well as articles and other materials submitted for review by the editors, should be mailed to DMHL, ILPPP, P.O. Box 800660, University of Virginia Health System, Charlottesville, VA 22908, or to, or to

(1) Marilyn Tavenner, former Virginia Secretary of Health and Human Resources, is currently the Acting CMS Administrator and President Barack Obama has nominated her for appointment as the permanent administrator.

ii Section 482.13 Condition of Participation: Patient's rights

(e) Standard: Restraint or seclusion. All patients have the right to be free from physical or mental abuse, and corporal punishment. All patients have the right to be free from restraint or seclusion, of any form, imposed as a means of coercion, discipline, convenience, or retaliation by staff. Restraint or seclusion may only be imposed to ensure the immediate physical safety of the patient, a staff member, or others and must be discontinued at the earliest possible time.

(1) Definitions. (i) A restraint is--

(A) Any manual method, physical or mechanical device, material, or equipment that immobilizes or reduces the ability of a patient to move his or her arms, legs, body, or head freely; or

(B) A drug or medication when it is used as a restriction to manage the patient's behavior or restrict the patient's freedom of movement and is not a standard treatment or dosage for the patient's condition.

(C) A restraint does not include devices, such as orthopedically prescribed devices, surgical dressings or bandages, protective helmets, or other methods that involve the physical holding of a patient for the purpose of conducting routine physical examinations or tests, or to protect the patient from falling out of bed, or to permit the patient to participate in activities without the risk of physical harm (this does not include a physical escort).

(2) Restraint or seclusion may only be used when less restrictive interventions have been determined to be ineffective to protect the patient, a staff member or others from harm.

(3) The type or technique of restraint or seclusion used must be the least restrictive intervention that will be effective to protect the patient, a staff member, or others from harm.

(4) The use of restraint or seclusion must be-

(i) In accordance with a written modification to the patient's plan of care; and

(ii) Implemented in accordance with safe and appropriate restraint and seclusion techniques as determined by hospital policy in accordance with State law.

(5) The use of restraint or seclusion must be in accordance with the order of a physician or other licensed independent practitioner who is responsible for the care of the patient as specified under [section] 482.12(c) and authorized to order restraint or seclusion by hospital policy in accordance with State law.

(6) Orders for the use of restraint or seclusion must never be written as a standing order or on an as needed basis (PRN).

(7) The attending physician must be consulted as soon as possible if the attending physician did not order restraint or seclusion.

(8) Unless superseded by State law that is more restrictive-

(i) Each order for restraint or seclusion used for the management of violent or self-destructive behavior that jeopardizes the immediate physical safety of the patient, a staff member, or others may only be renewed in accordance with the following limits for up to a total of 24 hours:

(A) 4 hours for adults 18 years of age or older;

(B) 2 hours for children and adolescents 9 to 17 years of age; or

(C) 1 hour for children under 9 years of age; and

(ii) After 24 hours, before writing a new order for the use of restraint or seclusion for the management of violent or self-destructive behavior, a physician or other licensed independent practitioner who is responsible for the care of the patient as specified under [section] 482.12(c) of this part and authorized to order restraint or seclusion by hospital policy in accordance with State law must see and assess the patient.

(iii) The Report may be accessed at:

(iv) See CMS Interpretive Guideline [section] 482,13(e), Tag A-0154.

(v) See CMS Interpretive Guideline [section] 482.13(e)(1)(i)(C), Tag A-0161.

(vi) See e.g., the Virginia Health Care Decisions Act, [section] 54.1-2981 et seq. (governing advance directives and substitute consent in absence of advance directive); Virginia Code [section] 37.2-1000 et seq. (guardianship proceedings); Virginia Code [section] 37.2-400 and 12 VAC 35-115-70,-145,-146 (human rights statute and implementing regulations assuring rights of individuals receiving behavioral health services); Virginia Code [section] 37.2-1100 et seq. (judicial authorization for treatment); Virginia Code [section] 54.1-2970 (two physician/dentist provision).

(vii) Virginia Code [section][section] 37.2-1101,-1102.
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Publication:Developments in Mental Health Law
Date:Dec 1, 2011
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