ILNews

Indiana courts grappling with requirement to use psychiatrists in insanity evaluations

Back to TopCommentsE-mailPrintBookmark and Share

Although members of the Indiana Legislature’s Commission on Courts appeared to be skeptical of a proposal to revise the statute concerning insanity evaluations, their concerns may be trumped by the need to be pragmatic.

Currently, courts in Indiana are required to appoint at least one psychiatrist to the team evaluating criminal defendants who enter a plea of insanity. However, judges say they are having trouble finding psychiatrists who are both qualified and willing to do the evaluations.

Courts in Evansville and Fort Wayne only have one psychiatrist in each community that they can call upon for help. Fitting the evaluation into one the doctor’s schedules can be difficult. If the lone psychiatrist in the area is too busy or has a conflict of interest, then these courts must look (and pay an added expense) for psychiatrists in other counties.

All the while, the accused usually wait in jail.

“It’s a nightmare,” said Beverly Corn, public defender for Vanderburgh County. “We’re talking months before an evaluation. We’re not talking days or a few weeks. We’re talking months.”

As a way to address long delays, the Indiana Psychological Association has proposed that the General Assembly eliminate the requirement for a psychiatrist from the statute. Doing so would give courts more flexibility by allowing them to appoint a team of only psychologists and help alleviate the problems caused by too few psychiatrists.

The association presented its idea during the Sept. 24 hearing of the Commission on Courts.

Already, Indiana’s statute provides courts with the option of also including a psychologist or physician in the evaluation. Psychologists receive an extensive amount of academic as well as clinical training and are well-qualified to assess the mental health of defendants, the association told the commission members.

However, Dr. George Parker, a certified forensic psychiatrist and associate professor of clinical psychiatry at Indiana University School of Medicine, argued against making the statutory change. He maintained that because of their medical school training, psychiatrists are “uniquely qualified” to assess any medication issues and physical conditions of the defendants being evaluated.

The members of the commission seemed to agree.

Indiana Supreme Court Chief Justice Brent Dickson pointed to the growing use of medications and drugs and questioned if psychologists have enough knowledge of pharmacology. Likewise Rep. Patrick Bauer, D-South Bend, bluntly stated he did not think a psychologist had the necessary training in chemicals or brain functions to be a “worthy substitute” for a psychiatrist.

Psychiatrist shortage

The commission’s discussion did not offer any alternative solutions for the shortage that is presently plaguing the state courts.

Indiana is not alone in grappling with the problem of finding psychiatrists. Across the country the number of these specialists is decreasing as medical school graduates choose the more lucrative practices in order to pay their school loans.
 

pigman-robert.jpg Pigman

As a long-term remedy, Vanderburgh Superior Court Judge Robert Pigman is unsure what the courts could do. In Evansville, the judiciary has reached out to every medical practitioner and has spoken to the local medical association trying to recruit more psychiatrists to do evaluations.

Although insanity pleas are very rare – totaling maybe 10 out of the roughly 33,000 felony cases handled each year in Vanderburgh County – when they are filed the court has only one psychiatrist available. And if that doctor cannot do the assessment, then the court has to tap the psychiatrist 55 miles up the road in Knox County.

The situation can become more complicated if members of the evaluating team submit contrary findings. Then the court has to schedule time during the jury trial for the experts to appear. With psychiatrists as well as psychologists having full calendars, Pigman said the court may have to deviate from the requirement that testimony be given after the close of evidence.

Pigman would like to see the Legislature remove the mandate for psychiatrists. This could ease some of the stress, he said, while still giving courts the option of appointing a psychiatrist if deemed necessary.

North in Allen County, the situation is much the same. Only one local psychiatrist is willing to evaluate defendants for the court and when that individual is not available, the county has to rely on a psychiatrist in Indianapolis.

Given the time it takes for the court to find a psychiatrist and appoint an evaluating team, coupled with the difficulty of scheduling the assessment and allowing time for the professionals to submit their reports, Fort Wayne attorney Michelle Kraus said the process is moving well if the report comes back 90 days after filing the petition.

Kraus asserted courts should not be bound by a requirement for a psychiatrist or have to pay attention to titles. Rather, the court should be allowed to enlist the help of the best qualified experts and appoint the professional it deems most qualified.

Competency

Two years ago, the General Assembly relaxed the rules on competency evaluations, removing the requirement that a psychiatrist be appointed there as well. The result, many say, has been good.

Even Parker said he has not noticed a significant impact on his practice since the change in the law. Yet, speaking after the commission hearing, he emphasized competency evaluations have a safety net in that the individual deemed not competent will be sent to a psychiatric hospital for observation and treatment.

“It’s not the same for insanity evaluations,” he said. “Once the jury or judge decides that somebody was or was not insane, it’s done, except for appeal. So it’s a higher stakes evaluation, the insanity evaluation.”

Fort Wayne forensic psychologist Stephen Ross said the psychiatrists are using the same arguments now that they made against changing the competency statute.

Most insanity evaluations do not need someone with extensive medical training, he said. Psychologists have the skills to do the retrospective analysis that is required in insanity evaluations.

When Ross evaluates a defendant, he reviews all the available records from physicians, schools and the Department of Correction. He also talks to family members and others who are close to the individual. Then he will spend upwards of an entire day with the defendant, administrating a battery of tests and taking two to three hours to interview.

“The important thing is that you need to be thorough in the evaluation and make sure you look at all the data because you could be setting up for an appeal if the evaluation has defects,” he said.

Parker said he will try to determine if mental illness played a role by interviewing the defendant and looking at the pertinent records.

He conceded that cases where a physical condition has caused a change in a person’s mental state come along maybe once every two or three years. But they do occur, and the evaluation can mean the difference between the defendant being found not guilty by reason of mental defect or guilty but mentally ill.

Although Corn sees a statutory change as making the process more efficient, she maintained psychiatrists should still provide evaluations in capital cases. There, the medical training and understanding of biology would “add just a little bit more.”

When the punishment is the most severe, the attorneys and courts have a “moral and legal duty” to bring in every person necessary to educate and help the jury make a good decision, she said.

Second guessing

As for credentials and training, Pigman said he understood the argument in favor of psychiatrists who have the medical background while psychologists do not.

“That is a concern and I think that is a legitimate concern,” he said. “On the other hand, this is a real practical problem in the state.”

Pigman noted that he believes psychologists have more in-depth training in cognitive and behavioral studies than psychiatrists. Kraus concurred. In her experience, she said, the psychologists spend hours evaluating the defendant before issuing a report, while the psychiatrists have based their opinion only on the 40 minutes they spent talking to the individual.

Allen Circuit Court Judge Thomas Felts serves on the Commission on Courts and heard the testimony by both sides. He indicated he was undecided but he did understand the need to be pragmatic.

“I do note, just from the availability standpoint, that it seems more beneficial to have more qualified people be they psychologists or psychiatrists,” he said. “If this proposal would make that available number higher, I would generally be in favor of that unless I could find some reason not to.”

Sometimes, Corn said, because of the wait to be evaluated, people just give up. The defendant may have been in jail long enough to receive treatment so he or she becomes able to participate in the trial. These cases produce lingering questions that nag at the attorneys about whether or not they did a disservice.

“I think everybody walks away second guessing themselves,” Corn said.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

ADVERTISEMENT