Judge urges high court to look at counsel assistance during state psychiatric exam

A judge on the Indiana Court of Appeals affirmed citing court precedent that a defendant who was to be examined by the state’s expert based on his insanity defense has no right to the presence of counsel during the psychiatric exam. But Judge Terry Crone argues the Indiana Supreme Court needs to take another look at this issue.

Thomas L. Esmond faces several criminal charges based on his stabbing of an 8-year-old boy in the chest and arms at a home in Kentland, Indiana. Evaluations by psychiatrists, including two court-appointed ones, found that Esmond was insane at the time of the stabbings. Esmond’s attorney sought to have his client examined to determine his competency to stand trial. The state also sought to have its psychiatric expert evaluate Esmond outside of the presence of his counsel. The trial court granted the state’s motion and its motion to compel Esmond to cooperate with its expert.

Esmond appealed based on the reasoning of the trial court that he could not have his attorney present during the exam because he asserted an insanity defense.

The majority opinion in Thomas L. Esmond v. State of Indiana, 56A05-1404-CR-163, cited Williams v. State, 555 N.E.2d 133, 136 (Ind. 1990), and Taylor v. State, 659 N.E.2d 535 (Ind, 1995), to affirm the trial court. The Supreme Court found in Williams because the examiner is disinterested, the defendant is not facing his adversary in such an examination. In Taylor, the justices expanded on the issue and said that a defendant may not plead insanity and then prevent the state from gathering reliable evidence bearing on that issue. But the state may not use a defendant’s statements during a psychiatric examination to demonstrate his guilt.

“Per Taylor, so long as Esmond’s counsel was informed of the scope and nature of the psychiatric examination, Esmond was entitled only to the opportunity to consult with his counsel before submitting to a psychiatric evaluation by the State,” Judge Paul Mathias wrote. “Here, when Esmond raised his defense of insanity, his counsel was on notice that the State may examine Esmond to rebut the insanity claim. So long as the testimony of the State’s psychiatric expert goes to Esmond’s mental capacity, and not his guilt, there is no violation of Esmond’s right to counsel.”

Crone wrote in his opinion that those two cases effectively compel the COA to affirm the lower court, and he reluctantly concurred.

“If the defendant is incompetent to stand trial, how in the world can he be expected to accurately relate what occurred during an examination by the State’s expert to his attorney?” Crone questioned. He suggested that the exam be recorded to protect the interests of both parties. The success of the insanity defense may ultimately depend on his counsel’s questioning of the expert.

Crone invited the justices to revisit Williams and Taylor and reconsider the presumption that the Sixth Amendment does not entitle a criminal defendant to the assistance of counsel during a psychiatric exam by the state’s expert.