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Virginia courts wrestle with case involving homicide defendant diagnosed as having a dissociative identity disorder.

The diagnosis of dissociative identity disorder (DID), and its precursor--multiple personality disorder, has long been controversial. Indeed, it may be the most controversial diagnosis introduced into the criminal justice system. It involves "[t]he presence of two or more distinct identities or personality states (each with its own relatively enduring pattern of perceiving, relating to, and thinking about the environment and self)," with at least two of these identities recurrently taking control of the person's behavior. This disorder results in an "[i]nability to recall important personal information," and cannot be explained by ordinary forgetfulness or the use of a substance (e.g., alcohol intoxication) or a general medical condition. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUALS OF MENTAL DISORDERS: TEXT REVISION 529 (4th ed. 2000) (DSM-IV-TR).

This diagnosis can be traced back at least to Freudian psychoanalytic theory and its assertions regarding the suppression from consciousness of traumatic childhood and other events and their recall through therapy. The diagnosis received some attention when it became the focus of a series of popular books and movies, including "The Three Faces of Eve" and "Sybil." However, it received much greater attention after vigorous lobbying by interested therapists resulted in its inclusion in the 1980 edition of the DSM.

The ensuing proliferation of the use of this diagnosis and related treatments, however, was itself relatively controversial. The recovery of childhood memories has been a central feature of the treatment of this condition. However, the reliability of these recovered memories and a diagnosis of DID has been the subject of considerable dispute, including what constitutes an appropriate use of them in litigation. CHRISTOPHER SLOBOGIN ET AL., LAW AND THE MENTAL HEALTH SYSTEM: CIVIL AND CRIMINAL ASPECTS 148-57 (5th ed. 2009). Indeed, the validity, reliability, and impact of a DID diagnosis have been a central feature of a long-running case in Virginia.

This case centers on a woman who married her husband in 1993. In early 2000, the marriage began to unravel. The woman contacted her mother-in-law frequently and expressed concerns about her husband's fidelity. During one conversation she stated that she would see "[her husband] dead before he [left her] for another woman." However, her mother-in-law later noted that she was not alarmed by the threat and noted that her daughter-in-law also consistently stated that she loved her husband and that he was her "whole life." Nevertheless, the woman contacted an attorney, expressed concern to him about her husband's drinking and possible infidelity, as well as the safety of her two sons from a previous marriage who still lived at home, and asked him to represent her in a potential divorce proceeding. Although he was unable to represent her, he agreed to help her find another attorney. On March 20, 2000, he called to inform her that the lawyer he recommended would be unavailable for about a week. The woman, sounding unconcerned about the delay, told the attorney that she and her husband were having an anniversary dinner that evening. Earlier that day, however, her mother-in-law had contacted her son to ask about the state of the marriage, to which he replied, "things are worse, I've had all I can take, I'm leaving tonight."

Nevertheless, the couple had dinner as planned, but when they returned home the husband was observed to be yelling and "stomping around." That evening at 8:37 p.m., the woman telephoned the lawyer and reported that she had shot her husband. The lawyer instructed the woman to call "911," which she did. The "911" operator described the woman's tone during their hour-long conversation as alternating between lucid and hysterically disoriented. The woman at times was unable to discern with whom she was speaking, occasionally asked to speak to her "mommy," and at one point appeared to be addressing her mother directly. Several times she cried hysterically without responding to the operator's questions and repeatedly asked for help, stating, "He is going to kill me."

When police officers reached the house, the woman approached the door with a cordless telephone in her hand, then turned around and retreated inside. A few minutes later she ran out of the house screaming that her husband was trying to kill her. Once outside, she alternated between hysterical and calm behavior. The police found her husband's body facedown in the kitchen, shot five times.

Indicted for first-degree murder, the woman's mental status was evaluated by a forensic psychiatrist and a clinical psychologist. They both concluded that the woman had a propensity to dissociate (i.e., that she periodically divorced her emotions and actions from her conscious awareness) and that the trauma of her husband's death had caused her to experience a dissociative state. However, neither believed that she suffered from DID or any other mental disorder that would support an insanity defense. While the woman introduced their testimony to establish that she suffered from amnesia after the shooting and to rebut the prosecution's argument that her behavior on the night of the shooting was intended to conceal her guilt, she did not pursue an insanity defense. The jury found the woman guilty of second-degree murder.

Shortly after her conviction the woman exhibited unusual behavior. She told jail personnel that she was twelve years old and did not belong in the "strict school" because she had done nothing wrong. As a result, she underwent additional evaluations by the mental health professionals who had previously assessed her. They concluded that she was suffering from a severe mental illness that left her incompetent to assist counsel in her defense. Further, both raised the possibility that she was suffering from DID with a "split off," altered identity.

The woman was found incompetent to participate in the sentencing phase of her trial and committed to Central State Hospital for evaluation and treatment, where she remained for eight months. While at Central State, staff consulted with an authority on dissociative disorders, who diagnosed her as having DID, although staff disagreed with this diagnosis.

The woman was ultimately found competent and the sentencing phase began. The defense made a motion for a retrial based on its "newly discovered" evidence of DID, asserting that this evidence could be used to establish at a new trial that the woman was insane at the time of the crime. The trial judge deferred ruling on the motion until the completion of the sentencing hearing. During this hearing, testimony was produced by the defense that the woman suffered from DID. A clinical psychologist testified that the woman had three separate "alter" personalities. In addition to the host personality of "Janice," there was (1) "Jacob," a strong, forceful male "protector" personality, (2) "Jean Bugineau," a French-speaking personality, and (3) "Janice Nanney," a twelve-year-old child. One psychiatrist testified that the woman's "host" personality, Janice, had no memory of shooting her husband, as the "protector alter" and "Jean" had done the shooting.

Nonetheless, the jury sentenced the woman to thirty-two years of imprisonment. During the competency hearing and the sentencing phase of the trial, the woman disrupted the proceedings with verbal outbursts, challenging statements made by the prosecutors. After sentencing, counsel for the woman renewed the motion for a new trial, asserting that the defendant should be permitted to use this evidence in conjunction with an insanity defense. The trial judge, however, rejected this motion. A series of appeals has followed that focus on this ruling.

First, a panel of the Virginia Court of Appeals--on a 2-1 vote--reversed the trial court's ruling. After a detailed recitation of the facts of the case and the views of six mental health professionals who evaluated the defendant, the appellate panel noted that because of its reluctance to disturb a verdict, the party seeking a new trial must meet a high threshold to establish that newly discovered evidence justified a new trial. The majority ruled, nonetheless, that this threshold was met here as the woman's counsel had exercised "reasonable diligence" before trial in seeking a basis for an insanity defense and the DID evidence constituted "new evidence" that only came to light after the guilt-phase hearing was completed.

The majority reasoned "that diagnosing [DID] is difficult because the various alter personalities are 'cautious, distrusting and hidden' and are not easily discernible, particularly to the untrained or inexperienced eye." The court added that "people with [DID] cannot restrain their alter personalities from recurrently taking and relinquishing control of their behavior. The shifts between and among the alter personalities can occur very quickly. Furthermore, ... the switching by the alter personalities tends to increase when the host personality is frightened." The majority found this newly discovered evidence supported the defendant's assertion of "having had her behavior taken over by one or more of her protector alter personalities at the time of the shooting, [and thus the defendant] was not responsible for shooting her husband."

The majority acknowledged that the defense had introduced DID-related evidence during the sentencing hearing to little apparent effect as a relatively lengthy sentence was imposed. However, it contended that the jury was influenced by the weaker evidence it heard during the guilt phase, which led it to find the belated introduction of the DID evidence unpersuasive. The majority concluded that without this prior experience, a jury might accept the defendant's DID-based insanity defense and thus the defendant was entitled to an opportunity to do so at a new trial. Orndorff v. Commonwealth, 605 S.E.2d 307 (Va. Ct. App. 2004), http://www.courts.state. (scroll down to the mid-point of this document to find the majority's opinion).

However, this ruling was appealed to the Virginia Court of Appeals sitting en banc. On a 7-3 vote--with the majority opinion written by the judge who had dissented in the three-judge panel decision--the court concluded that the trial judge did correctly deny the defendant's motion for a new trial. Once again, an extensive review was provided of the events surrounding the shooting and the ensuing psychiatric evaluations, the "unusual behavior" manifested at the jail after the guilty verdict was issued, and the diagnosis of DID. The majority concluded here that "evidence of [the defendant's] DID was discernible and available at the time of trial through the exercise of reasonable due diligence." The court determined that the defendant "exhibited the clinical symptoms of [DID] ... necessary for a correct diagnosis before trial" and "either were present and unrecognized ... by [her] experts as significant or could have been discovered by asking the right questions or interviewing the right people."

Further, the majority added, "the diagnosis of DID was really just a different diagnosis of a known condition" and it was unwilling "to hold that affixing a new label to a known set of behavioral patterns constitutes newly discovered 'evidence.'" In addition, the majority asserted that the defendant had "failed to show the new diagnosis of DID would have produced an opposite result at a new trial because the jury heard the evidence during the sentencing phase and rejected it." The full court noted that the evidence presented to this jury was extensive and the jury had "found it unconvincing even as possible mitigation of punishment."

The court also rejected the defendant's argument that she had been incompetent at the time of her sentencing. The court noted the reports submitted by the treatment team at Central State Hospital that indicated that her dissociative episodes were generally quite brief, lasting from just five to six minutes, that she could easily refocus, that she could avoid dissociative episodes by not putting her head down, and that a "lot of her behavior was strictly manipulative and controlling," with a volitional component. Orndorff v. Commonwealth, 613 S.E.2d 876 (Va. Ct. App. 2005), opncavwp/1325024.pdf (the first half of this document contains the opinions issued by the court sitting en banc).

This case was then appealed to the Virginia Supreme Court, where another reversal ensued. This court ruled that the trial judge erred in refusing to grant defendant's motion for a new trial based on after-discovered evidence of a mental disorder that might have supported an insanity defense. Again, the facts and the defendant's mental state were reviewed in detail. While acknowledging that ordering a new trial based on a claim of "after-discovered" evidence is granted "only under unusual circumstances," the court determined that the defense had exercised reasonable diligence in obtaining psychiatric and psychological evidence prior to trial. The court noted that she had procured two mental health professionals with the appropriate expertise in these matters, both had been asked to determine whether the defendant had any mental disorders that might be relevant to her defense, both performed a thorough analysis based on the available facts, both initially concluded that the defendant did not suffer from DID or any other mental disorder that could potentially support an insanity defense, and both agreed that her DID disorder was not fully revealed until she manifested the personality of a twelve-year-old child following the guilty verdict. Thus, the defendant's DID could not have been ascertained by "reasonable diligence" prior to trial.

Further, the Virginia Supreme Court ruled that a different outcome might have been reached if the defense would have had the DID evidence prior to trial. The court did not believe the jury's verdict in the sentencing phase was an indicator of what a new jury would have decided because it believed that the sentencing jury had already resolved crucial credibility issues against the defendant during the guilt phase of the trial.

Thus, the Virginia Supreme Court ordered the case remanded back to the trial judge for a reconsideration of the matter. The court, however, declared that it was premature to decide whether a defendant who suffers from DID and commits an act allegedly performed by one of the defendant's "alter" personalities may assert an insanity defense. The court noted that no Virginia appellate court has yet decided this issue and that other jurisdictions where this issue has been raised (including the Tenth Circuit of the U.S. Court of Appeals, Georgia, Nebraska, Ohio, Washington, and West Virginia) have split on whether to recognize a DID-based insanity defense.

The Virginia Supreme Court did determine that the trial court's finding that the defendant was competent to stand trial for the sentencing phase after being treated at Central State should be allowed to stand. The court noted that the trial judge received evidence from a psychiatrist and a psychologist at Central State who each concluded, based on extensive contact with the defendant over an eight-month period, that the defendant's mental condition "did not render her unable to understand the proceedings or to assist counsel in her defense" and that they had been successful in "densensitizing" her to topics that were likely to be raised at trial that could cause her to dissociate and provided her with means to stop these episodes if they did occur. Orndorff v. Commonwealth, 628 S.E.2d 344 (Va. 2006), opinions/opnscvwp/1051478.pdf.

As a result, this case was remanded to the trial judge to determine whether a new trial should be ordered. However, the trial judge again denied the defendant's motion for a new trial, concluding that a new jury hearing evidence of the defendant's DID would not reach a different result than that reached at the first trial. The matter was again appealed to a three-judge panel of the Virginia Court of Appeals. These three judges included one from the majority, one from the dissent, and one who had not participated in the prior en banc hearing. Notwithstanding the Virginia Supreme Court's ruling, they all agreed the trial judge this time had ruled correctly.

They noted that the trial judge had found that the defendant had not experienced a lengthy childhood trauma involving "horrible" physical or sexual abuse and that such trauma was necessary for a person to develop DID. They also cited the trial court finding that there was strong evidence from the staff at Central State indicating that the defendant was characteristically trying to manipulate the evidence against her. The trial judge added that the defendant had attended graduate psychology and law courses; altered the scene of the offense; called her attorney before calling 911 after the shooting; attempted to bribe a witness to help her with her self-defense defense; told a jail cellmate that she "could be five or twelve, whenever she wanted to be, and she was going to beat them doctors at Central State"; raised her insanity defense only after the original jury rejected her claim of self-defense; and vacillated between normal and bizarre behavior based on whether the trial appeared to be proceeding in her favor.

Thus, the three-judge panel concluded, the trial court did not abuse its discretion when it determined that the defendant's "new" evidence was not credible and would not produce a different result, and the trial judge correctly refused the defendant's motion for a retrial. Orndorff v. Commonwealth, No. 049507-4, 2009 WL 909746 (Va. Ct. App. Apr. 7, 2009), opncavwp/0495074.pdf.
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Author:Hafemeister, Thomas L.
Publication:Developments in Mental Health Law
Date:Jan 1, 2009
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