January 1st, 2016

Criminal responsibility at heart of case

Every so often a case comes along that raises a curious question. One such case is Commonwealth v. Shin, cited as 86 MASS. App. Ct. 381 (2014).

The case is presented as having a single issue: “whether at the time of the incident the defendant was criminally responsible?”

The facts of the case, abridged from those presented in the published decision, are that “the defendant lifted his hand and touched the victim between her legs on her upper thigh, within ‘two inches’ of her genital area.”

This event occurred on a crowded trolley car in Boston, Massachusetts. The victim pushed the defendant away and said “watch your hands.”

The transit officers identified the defendant from videotape footage from the station where both victim and defendant exited and then “determined the defendant’s name and home address from his transportation access card or ‘Charlie’ card” (see footnote 3 of the appellate court’s written opinion).

The events related above are represented as occurring on Jan. 20, 2011. There is some prior notable mental health history of the defendant as presented in the appellate court’s written opinion.

Specifically, between 2005 and 2009, he (the defendant) was hospitalized by court order on six occasions. [an extensive footnote in the written opinion describes more history of prior events including a previous diagnosis that “defendant was psychotic” (2009) and a period of time thereafter where he was “ordered to wear a monitoring ankle bracelet.”] “In May 2007, a guardian was appointed for the defendant with Rogers authority to consent to medication.” [see Rogers v. Commissioner of Dept. of Mental Health, 390 MASS. 489 (1983)] (from appellate court’s written opinion).

This case however is not an ordinary case. There is a curious question in this case.

There is a long standing understanding in the law that as a general rule, voluntary drunkenness (today add: drug usage) is not a defense to a criminal offense. A defendant cannot claim a lack of intent to have committed a crime by voluntarily rendering himself (herself) incapable of knowing or forming the intent to do a criminal act by ingesting alcohol (or drugs).

In this case, the defendant had been taking medication which to an extent allowed him to function, but when he did not take his medication, he was unable to function, for the most, part acceptably.

To use the words from the appellate court’s written opinion, “When he willingly takes his medication his symptoms are muted although never in complete remission.”

It would seem that the trial judge, hearing the case without a jury, believed there was an analogy between holding someone criminally responsible who willfully induces alcohol or drugs and then commits a crime with the defendant here, who for a variety of reasons, refused to take medication that “muted” his urges. And, having not taken his medication, he then committed a crime.

Under this theory, the trial judge found the defendant guilty of indecent assault and battery on a person 14 years of age or older.

The defense at trial had presented evidence through an expert, who had some historical contact with the defendant, that the defendant, at the time of the event in this case, was unable “to appreciate the wrongfulness of his conduct or conform his behavior to the requirement of the law.”

This description would be a presentation of “whether at the time of the incident the defendant was criminally responsible” for his actions. However, even aware of this history, the prosecution did proceed by charging and trying the defendant here.

Both analyses, 1) that the defendant put himself in this position by not taking his medication and 2) that the defendant was legally not responsible for his actions at the time of the incident, have some merit.

There are those who agree with the trial judge. This is a case of “first-impression.” This means that this case is the first case in which a court in Massachusetts answered this question. Why is that? This cannot be the first time such a case has occurred. Is it possible that this appellate court reached this result only because of the long history of mental illness here?

Probably not, because the court, in its second to last paragraph of the written opinion states, “Finally, we note that the Commonwealth’s argument, taken to its logical extreme, could be used to argue that every mentally ill defendant who had even taken helpful medication in the past, but discontinued it, was criminally responsible.”

Additionally, this case raises a number of secondary questions. Since this defendant had a prior Rogers order allowing others to make the taking of medication decisions for him, should the issue of willfulness or purposefulness of the defendant not taking medication have been decided as it was by the trial judge?

Would this case have been better handled as a civil mental case, that the defendant was a threat to himself and/or others rather than as a criminal case? If convicted in a criminal case, what would jail or probation do to change any condition in this case, now or in the future, other than providing a punishment?

Although not directly addressed by the appellate court’s decision, some of the possible answers to these questions may have affected the outcome.

Edward M. Stern, J.D., has a private law practice in Newtonville, Mass., Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.

By Edward Stern J.D.

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