Monday, October 8, 2007

Amicus Brief: In Support of Floyd Brown

The Arc of North Carolina filed an Amicus Brief in support of Floyd Brown. Today a hearing was held in this case. We will continue to update you as information becomes available.

Read the Amicus Brief:



Interest of Amici Curiae

1. Carolina Legal Assistance (“CLA”) is North Carolina’s designated Protection and Advocacy System (“P&A”) authorized under federal law to protect and advocate for the rights of individuals with disabilities. See 42 U.S.C. §10801 et seq.; 42 U.S.C. § 15041 et seq. CLA is mandated to “protect the legal and human rights of individuals with developmental disabilities” and to “pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for, the rights of such individuals within the State who are or who may be eligible for treatment, services, or habilitation.” 42 U.S.C. §15041, 15043.
2. The case of Floyd Brown (“Mr. Brown”), who has mental retardation[1], is of particular interest to CLA because of CLA’s long commitment to the equitable treatment of persons with mental retardation when they encounter the criminal justice system, whether as a victim, witness, or defendant. Mr. Brown’s fourteen-year confinement to Dorothea Dix Hospital – without a trial on the charge that confines him – highlights a troubling system capable of abuse by law enforcement and State officials. Mr. Brown has suffered unequal treatment and violation of his rights because his mental retardation renders him incapable to stand trial. For fourteen years Mr. Brown has been committed to a psychiatric institution for treatment to “gain” capacity when he has mental retardation, a condition from which he cannot “recover.” Without relief by this Court, Mr. Brown will remain confined at a psychiatric hospital as long as the criminal charge against him is not dismissed with prejudice – a fate that violates basic notions of fair play and Mr. Brown’s right to due process under the law. See U.S. Const, Amendment 14; N.C. Const, art. I, § 19; Jackson v. Indiana, 406 U.S. 715 (1972).
3. The Arc of North Carolina (“The Arc”) is a statewide membership organization which is incorporated as a non-profit corporation under Chapter 56B of the General Statutes of North Carolina. The mission of The Arc is to secure “for all people with mental retardation and other developmental disabilities the opportunity to choose and realize their goals of where and how they learn, live, work and play.” The Arc has 45 local chapters throughout North Carolina and approximately 4500 members, the great majority of whom are people with mental retardation or other developmental disabilities and their family members.
4. The goal of equitable treatment of people with mental retardation in the criminal justice system has been a priority of The Arc for many years. For example, Arc members and staff were actively involved in the legislative effort leading the passage of Senate Bill 173 in 2001 which created N.C. Gen. Stat. §15A-2005, prohibiting application of the death penalty to a defendant with mental retardation.

Source of Authority to File
5. Amici have filed with the Court a Motion for leave to file this Brief in support of Mr. Brown’s Application for the Writ of Habeas Corpus.

6. It is well settled that it is fundamentally unfair for the State to proceed against a defendant who is not competent to stand trial. Drope v. Missouri, 420 U.S. 162, 172 (1975). North Carolina’s Criminal Procedures Act (“Chapter 15A”) expressly prohibits trying, convicting, sentencing or punishing a criminal defendant “for a crime when by reason of mental illness or defect he is unable to understand the nature and object of the proceedings against him, to comprehend his own situation in reference to the proceedings or to assist in his defense in a rational or reasonable manner.” N.C. Gen. Stat. § 15A-1001(a). “The objective of the statute is to ensure that a defendant will not be tried or punished while mentally incapacitated.” State v. Aytche, 98 N.C. App. 358, 361, 39 S.E.2d 43, 45 (1990). The bar against trying an incompetent defendant is deemed “fundamental to an adversary system of justice.” Drope at 172. The principle promotes the individual’s interest in avoiding an unjust conviction as well as the societal interest in the reliability of the criminal process. See State v. McRae, 139 N.C. App. 387, 389, 533 S.E.2d 557, 559 (2000).
7. In 1993, Mr. Brown was found incapable of proceeding to trial based upon a report of Robert Rollins, M.D. (“Dr. Rollins”), then Director of the Forensic Psychiatry Division of Dorothea Dix Hospital (“Dorothea Dix”). In his report, Dr. Rollins opined that Mr. Brown’s “mental retardation impairs his ability to understand his position with regard to the law, understand the nature and object of the proceedings against him, conduct his defense in a rational manner, and cooperate with his attorney.” Def’s Ex. 2 (Competency Evaluation dated 8/11/93) (emphasis added)[2]. Dr. Rollins further concluded in 1993 that “[e]verything considered,” he did not “foresee there is going to be any significant improvement in Mr. Brown’s situation.” Id.
8. Based upon Dr. Rollins’s report, the trial court found Mr. Brown incapable of proceeding to trial. Def’s Ex. 4 (Order dated 8/17/93). Under Chapter 15A, if a trial court determines a defendant is incapable of proceeding, the trial court then “shall determine whether there are reasonable grounds to believe the defendant meets the criteria for [civil] involuntary commitment under Part 7 of Article 5 of Chapter 122C of the General Statutes.” N.C. Gen. Stat. § 15A-1003(a).
If the [trial court] finds reasonable grounds to believe that the defendant meets the criteria, [the trial court] shall make findings of fact and issue a custody order in the same manner, upon the same grounds and with the same effect as an order issued by a clerk or magistrate pursuant to G.S. 122C-261. Proceedings thereafter are in accordance with Part 7 of Article 5 of Chapter 122C . . . .


9. The trial court failed to make findings as to whether Mr. Brown met the criteria for involuntary commitment under Chapter 122C. Rather, the trial court merely concluded Mr. Brown was a “House Bill 95 patient” and committed Mr. Brown to Dorothea Dix for “such treatment as will enable him to become competent to proceed.” Def’s Ex. 4 (Order dated 8/17/93). The trial court further ordered that Mr. Brown could not be released “except under a Court Order finding him capable of proceeding.” Id.
10. The trial court also failed to order Dorothea Dix staff to report on the likelihood of Mr. Brown’s gaining capacity to proceed as required by Chapter 15A. See N.C. Gen. Stat. § 15A-1004(a). However, a review of Mr. Brown’s psychiatric evaluations and Chapter 122C evaluations from 1993 to 2000 reveal multiple determinations by physicians that Mr. Brown will never gain the capacity to proceed to trial. In Dr. Rollins’s initial forensic psychiatric evaluation in August 1993, Dr. Rollins stated he could not “foresee there is going to be any significant improvement in Mr. Brown’s situation.” Def’s Ex. 2 (Competency Evaluation dated 8/11/93). In his September 1993 psychiatric evaluation, Dr. Rollins stated he “[did] not believe he will regain competency for trial.” Def’s Ex. 6 (Competency Evaluation dated 09/28/92). In March 1995 and again in July 1996, Freerk Wouters, M.D. (“Dr. Wouters”), the attending psychiatrist at Dorothea Dix, opined Mr. Brown “[w]ill never regain competence to proceed due to M[ental] R[etardation].” Amici Ex. 1 (Examination and Recommendation dated 3/30/95); see Amici Ex. 2 (Examination and Recommendation dated 7/1/96) (emphasis added). In March 2000, Dr. Rollins again opined it was “unlikely that Mr. Brown ever will regain competency for trial.” Amici Ex. 3 (Forensic Outpatient Summary dated 3/16/00).
11. Mr. Brown is diagnosed with mild mental retardation. Contrary to its name, mild mental retardation is a substantial disability. Every individual with mental retardation has, as acknowledged by the Supreme Court, “major cognitive and behavioral deficits, i.e., ‘subaverage intellectual functioning’ and ‘significant limitations in adaptive skills such as communication, self-care, and self-direction.’” Atkins v. Virginia, 536 U.S. 304, 318 (2002). These cognitive and adaptive limitations leave the person who has mental retardation with “a reduced ability to cope with and function in the everyday world.” Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 442 (1985). Moreover, the Supreme Court in Atkins recognized the vulnerability of this population in the criminal justice system, when the Court ruled it was cruel and unusual punishment to apply the death penalty to persons with mental retardation. Atkins at 317 (noting “some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards”).
12. Since he was a small child, Mr. Brown’s IQ has consistently been determined to be in the low 50s, placing him at the lowest level of mild mental retardation and on the border of moderate mental retardation.[3] When he reached age 16, Mr. Brown continued to function at the level of a kindergartener, academically and socially. Def’s Ex. 28 (Mr. Brown’s School Records, p 38). At age 16, Mr. Brown was unable to tell time, handle money, write his own name and address, and read and understand basic words such as “exit” and “stop.” Def’s Ex. 32 (Mary Helen Gaddy Affidavit ¶¶ 5-13); Def’s Ex. 33 (Shirley Lindsey Affidavit ¶ 6-15); Def’s Ex. 28 (Mr. Brown Brown’s School Records, p 53); Def’s Ex. 31 (Order Declaring Defendant to be Mentally Retarded ¶ 19). At age 26, four months before his arrest on the pending charge, Mr. Brown was evaluated by the McLaurin Vocational Training Center, a sheltered workshop for people with developmental disabilities that Mr. Brown attended from 1988 until his arrest in 1993. That evaluation placed Mr. Brown’s IQ at 54 and reported that Mr. Brown continued to have substantial functional limitations in self-direction, language, and mobility, and he continued to be unable to tell or understand time. Def’s Ex. 35 (McLaurin Center Records, pp 14-15, 22-23). The McLaurin Center evaluation is consistent with Dr. Rollin’s initial evaluation of Mr. Brown, in which Dr. Rollins noted that, after his arrest, Mr. Brown did not know dates and had poor vocabulary. Def’s Ex. 7 (Competency Evaluation dated 12/1/94).
13. The mental health staff at Dorothea Dix agree that, due to Mr. Brown’s mental retardation, he was not capable of making the confession the District Attorney alleges Mr. Brown made. Dr. Rollins described the confession as “too educated, too sophisticated, too relevant, too cohesive for Mr. Brown.” Def’s Ex. 37 (Hearing on Motion to Suppress, Vol 1 pp 164, 167). Mark Hazelrigg, Ph.D., a psychologist who has worked with Mr. Brown since 2001, averred that “[t]he alleged confession is not representative of the way Mr. Brown speaks. . . . As a whole, the alleged confession is too detailed and organized for even a normally intelligent person.” Def’s Ex. 38 (Mark Hazelrigg Affidavit ¶ 5, 11). Research on adaptive skills and personality characteristics of persons with mental retardation indicates those persons are highly suggestible to leading questions and false information supplied by interrogators and are more likely to respond to coercion and pressure than the average typically-functioning individual. Solomon M. Fulero & Caroline Everington, Assessing the Capacity of Persons with Mental Retardation to Waive Miranda Rights: A Jurisprudent Therapy Perspective, 28 Law & Psychol. Rev. 53, 55 (2004). Moreover, the Supreme Court has noted the heightened vulnerability of defendants with mental retardation to making false confessions. Atkins at 320.
14. Mr. Brown is indeed in a “cruel legal limbo.” Def’s Application for Writ of Habeas Corpus, ¶ 1; see also Scott Michaels, Man Held Without Trial for 14 Years (Oct. 2, 2007), available at (attached as Amici Ex. 4). Based solely on the alleged confession, the Anson County District Attorney has refused to dismiss the charge with prejudice, instead dismissing the charge with leave to reinstate should Brown gain capacity to proceed to trial. Despite medical opinion and legal findings that Mr. Brown does not have capacity to proceed to trial, the trial court also has refused to dismiss the charge, as would be permitted by N.C. Gen. Stat. § 15A-1008. For the fourteen years the charge has remained viable, Mr. Brown has remained a “House Bill 95” patient at Dorothea Dix, a status prohibiting the mental health staff from releasing Mr. Brown to an appropriate, supervised placement.
15. Mr. Brown’s continued confinement at Dorothea Dix violates his rights to due process and equal protection under Article I, Section 19 of the North Carolina Constitution, the Fourteenth Amendment, and Jackson v. Indiana, 406 U.S. 715 (1972). In Jackson, the Supreme Court considered the very question presented by Mr. Brown’s case: the due process and equal protection rights of individuals who are committed to institutions because they are not capable of proceeding to trial. The Court found that the United States Constitution requires that, at a minimum, “the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Id. at 738. The Court therefore held that due process prohibits a state from continuing to confine a person charged with a criminal offense for more than a reasonable period to determine whether there is a substantial likelihood that he may be restored to capacity to stand trial in the foreseeable future and, further, that the state must demonstrate that the person is making progress toward that goal. Id. The Court also held that the state deprived Jackson, who would never be restored to competency to stand trial, of equal protection by subjecting him to a more lenient commitment standard and to a more stringent standard of release than those available under civil commitment. Id. at 724.
16. Amici contend that the designation of Mr. Brown as a “House Bill 95” patient, and his subsequent indefinite confinement without any reasonable likelihood of becoming competent, violate the principles of Jackson. Amici acknowledge the procedural difference between Jackson and the present case – namely, that after being committed under a criminal statute, Mr. Brown was then committed pursuant to our civil commitment statutes. Amici contend, however, that the “House Bill 95” designation renders that procedural difference meaningless.
17. Under N.C. Gen. Stat. § 122C-277, the attending physician of a mental health facility must unconditionally discharge a civilly committed patient once the physician determines the patient is no longer in need of inpatient commitment. However, if the patient was initially committed “as the result of conduct resulting in his being charged with a violent crime for which he was found . . . incapable of standing trial” the physician cannot discharge the patient but instead must notify the Clerk of Superior Court that the physician recommends release, and a hearing must be held to determine the appropriateness of release under Chapter 122C. N.C. Gen. Stat. § 122C-277.
18. Upon information and belief, a “House Bill 95” patient cannot be recommended for release from Dorothea Dix as long as a charge of a violent crime is pending against that patient, and regardless of whether the patient (i) no longer poses a risk of danger to self or others or (ii) is incapable of standing trial. This policy is evidenced by the 122C forms in Mr. Brown’s file entitled “Examination and Recommendation to Determine Necessity for Involuntary Commitment.” As far back as June 18, 1995, Dr. Wouters opined on the form that Brown was “ready for discharge” but the legal process and Thomas S. process were “both slow.” Amici Ex. 5 (Examination and Recommendation dated 6/18/95). Despite being “ready for discharge,” Dr. Wouters still checked the box indicating Brown was dangerous to others “because of an accompanying [to his mental retardation] behavior disorder,” thus keeping Brown involuntarily committed. Id. On August 22, 1996, Dr. Wouters noted that Brown had “exemplary behavior” but the same “dangerous” box was checked. Amici Ex. 6 (Examination and Recommendation dated 8/22/96). On February 14, 2001, B.D. Worf, M.D. noted Brown had been behaviorally stable “for some time” and yet, again, the “dangerous” box was checked. Amici Ex. 7 (Examination and Recommendation dated 2/14/01). From February to May 2001, two different physicians noted on the reports that Brown’s treatment team recommended placement in a “safe, structured, supervised group home if approved by the legal system.” Amici Ex. 8 (Examination and Recommendation dated 4/10/01) (emphasis added); see Amici Ex. 7 (Examination and Recommendation dated 2/14/01); Amici Ex. 9 (Examination and Recommendation dated 5/23/01) (noting Mr. Brown “has improved but remains HB-95 status. He may be able to proceed with placement at a closely supervised group home setting if allowed by court”) (emphasis added).
19. In 1984 our appellate court upheld the constitutionality of § 122C-277 (formerly § 122-58.13) based on the understanding that people were not “committed indefinitely” as proscribed by Jackson. See In re Rogers, 63 N.C. App. 705, 306 S.E.2d 510 (1983), disc. rev. denied, appeal dismissed, 309 N.C. 633, 308 S.E.2d 716 (1983), appeal dismissed, 465 U.S. 1095, 80 L.Ed.2d 117 (1984) (upholding constitutionality of former G.S. 122-58.13). In the present case, given our mental health facilities’ policy and practice of not recommending release for House Bill 95 patients under Chapter 122C and instead continuing to recommend involuntary commitment, amici posit that Mr. Brown is in fact committed indefinitely, absent judicial inquiry and intervention.
20. Dorothea Dix psychologist Elizabeth Donegan issued a report in February 2003 that, after taking “competency classes” for ten years, Mr. Brown was capable of proceeding to trial. Def’s Ex. 14 (Evaluation dated 2/10/03). Unfortunately, her report did not end Mr. Brown’s stalemate in the process. Once in court, it was apparent to the trial court that Mr. Brown was in fact unable to participate. The trial court found Mr. Brown incapable of proceeding to trial once again and he was returned to Dorothea Dix, where he remains today.
21. Despite Floyd Brown’s clear incapacity to stand trial and his fourteen years of confinement, the District Attorney will not dismiss the charge. In Mr. Brown’s case, as in Jackson, there is a “denial of due process inherent in holding pending criminal charges indefinitely over the head of one who will never have a chance to prove his innocence.” Jackson at 740.

22. In a case such as this, where a defendant with mental retardation has remained confined for fourteen years on a questionable charge with no opportunity to stand trial, our system must address whether Mr. Brown is entitled to some chance for freedom. Amici contend this case is appropriate for habeas relief to determine the lawfulness of Mr. Brown’s continued confinement under Chapters 15A and 122C of our General Statutes.

[1] Many professionals now use the term “intellectual disabilities” instead of “mental retardation.”
[2] Throughout this Brief, Amici will refer to and incorporate by reference Defendant Floyd Brown’s Exhibits to his Application for the Writ of Habeas Corpus.
[3] People with mental retardation are classified in a system of four categories: mild, moderate, severe, and profound. “Mild" mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70. “Moderate” mental retardation is typically used to describe people with an IQ level of 35-40 to 40-55. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 42 (4th ed., 2000).

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