In an article today:
Judge approves possible use of 'truth serum' on Colorado massacre suspect
The defendant in the deadly Colorado theater shooting could be given
"truth serum" under a court order issued Monday to help determine
whether he is insane if he pleads not guilty by reason of insanity.
A narcoanalylitic interview is a decades-old process in which patients
are given drugs to lower their inhibition. Academic studies have shown
that the technique has involved the use of sodium amytal and pentothal,
sometimes called truth serum.
...
Sylvester said Holmes also could be given a polygraph examination as part of the evaluation.
After reading a draft of the advisory, Holmes' lawyers objected,
saying a narcoanalytic interview and a polygraph would violate their
client's rights.
Let me preface my comments with these disclaimers:
- I think Holmes is clearly guilty and deserves to be executed.
- The above opinion wouldn't change whether he was found insane or not. Going into a theater and massacring innocent people is, by definition, insane. I really don't care if he knew right from wrong at the time.
Those things said, I think every criminal defendant has rights pre-trial, including a fifth amendment right to avoid self-incrimination. Nobody in our system is required to testify against themselves in criminal proceedings.
However, things are different in civil proceedings. The fifth and sixth amendments were specifically written to address criminal proceedings, and none of our fifth and sixth amendment rights apply to civil proceedings. Mental health determinations are, in every state, handled as civil matters. Because these proceedings involve loss of liberty, involuntary incarceration and suspension of other constitutional rights, I consider this a great injustice, an egregious loophole in our system of protections of individual rights.
I was an observer (friend of the defendant) in such a case. Under our mental health civil commitment procedures, one can be forced, in essence, to testify against oneself via psychiatrict evaluation. One can be incarcerated for indefinite, elastic amounts of time without ever having been charged with or convicted of a crime. One's freedom, one's fundamental civil rights, can be suspended without trial by jury.
One can be kept imprisoned in a mental facility while waiting judgment and observations of the staff and social workers compiled as evidence. Even refusal to take drugs is offered as a sign of mental illness. Disagreeing that one is mentally ill is offered as a sign of mental illness. Being angry that one has been incarcerated is offered as a sign of mental illness. Any failure to be cooperative is offered as a sign of mental illness. The system is designed to isolate a person from their normal life, put them in an infuriating situation, subject to the arbitrary whims of low-paid health-care workers and civil servants, yet being seen to be angry or depressed over the situation is considered a sign of mental illness!
We were very fortunate in the case in which I was involved that the psychiatrist who testified in front of the magistrate (after having spent only an hour with the "patient" and reading the records compiled by other staff) determined -- reluctantly, I might add -- that she was not an imminent danger to herself or others and reluctantly had to release her, though in his opinion she could benefit from more time in that hellhole.
A very innocent, perhaps unusually naive young woman spent more than a week in a mental institution, terrified for her future, while waiting for that ruling. She was enduringly traumatized by the event, which arose entirely out of a bout of frustration when she said some angry things on the phone to me,and which I understood were just venting. We ended the phone call with her a bit calmer and I was on my way to take her to lunch and talk it out with her when disaster struck.
A busybody near her on the street when she was talking to me on her cellphone overheard her, and called the police, who came and told her they were going to take her to someone she could "talk to." Being, as I said, very naive, and still upset, and used to trusting and obeying the police, she complied. She didn't know that with every word of the angry rant she gave the social worker, she was digging herself into a deep and terrifying hole.
By the time I was able to find out where she was and what had happened to her, she was incarcerated. This was a young woman who had never been in trouble in her life, had never hurt anyone, who led a happy, productive life and was a straight-A college student. But, by God, once the mental health system had its hooks in her, they weren't going to let her go until they'd put her through the full wringer.
According to the law in my state, there are numerous steps along the way where a social worker or facility can simply decline to proceed further and release the person. The social worker kept lying to me and to her, giving us hope that at any day she might be released. What I discovered is that, in practice, this is never done, according to her court-appointed attorney who has many years experience with civil commitment. The social worker knew this, too. At all points where they can simply decline to proceed, they rubber-stamp it to the next step, ensuring that the person has to come before a magistrate. I assume that this is done to force it to a legal judgement and also to absolve the facility and staff from any responsibility for the decision: "Hey, the magistrate said so!"
This is a very scary process, because if the person is found by the magistrate to be mentally ill and a danger to herself or others, the commitment goes on her permanent record, and a host of life options are closed off to her forever: firearms ownership, work in the healthcare industry, work in a secure government job, and many other kinds of work, as the commitment will show up on a background check.
All this is, obviously, of tremendous consequence to the person, yet it is done with virtually no constitutional protections, and it is entirely based on extremely subjective determinations by dubiously qualified people.
Thus, in order to protect an innocent like this girl, I have to insist that the system is equally unjust when used against the worst people, like Holmes. Under no circumstances should he be forced to testify against himself in mental health proceedings. And certainly no drugs or polygraphs. These are known with certainty to be very inaccurate. People might say anything under sodium amytal and pentothal and it might seem crazy and it might not be the truth!
I spent days investigating mental health diagnoses while advocating for this young woman (as she was incarcerated the whole time, her ability to defend herself was limited, she needed someone on the outside to do her legwork). What I found was that it's a completely subjective, squishy system of diagnosis. Wrong diagnoses are hugely common, diagnoses are entirely symptomatic and can change based on whether the patient or doctor got up on the wrong side of bed that day!
If you go through the checklists that are published for common use, any one of us could be classified as suffering from Major Depressive Disorder on a bad day. And I'd think being incarcerated against your will and waiting to find out if your life is going to be destroyed qualifies as "a bad day."
The psychoactive drugs they prescribe have effectiveness rates barely distinguishable from the placebo effect, and horrific side effects, yet they prescribe them with abandon -- even prescribing drugs to young adults that are known to increase suicidal thoughts and impulses in their age group, while such a young adult is being subjected to life-altering evaluations that hinge on whether she might be having suicidal thoughts or impulses!
The system is insane and inhumane.
Furthermore, it's entirely irrelevant in the Holmes case. Determine if he shot all of those people. If so, give him the maximum penalty allowed under Colorado law. End of story. He was able to buy the guns, load the guns, drive himself to the theater and shoot the guns. That's plenty of mental competence in my book.
