When most people think about the interaction of the justice system and mental health, they turn to Hollywood. They think of an altar boy (like one played by Edward Norton). They imagine him tricking a charismatic lawyer (like one played by Richard Gere) into believing he suffers from multiple-personality. And they see a dramatic not-guilty verdict.
Like most movies and television shows, Primal Fear is entertaining but also inaccurate. It also gives folks an impossible-to-meet understanding of the relationship between the justice system and mental health. As a result, people serving on a jury in a case involving a diminished-capacity defense may have a misunderstanding.
In reality, cases involving diminished-capacity defenses are procedurally complex and often result in underwhelming outcomes. In fact, the North Carolina Court of Appeals issued a 2-1 divided opinion on that topic earlier this month.
A man robbed a convenience store and shot the store’s clerk but claimed he acted with diminished capacity
In July 2015, Dmarlo Levonne Faulk Johnson robbed a convenience store. During the robbery, he fatally shot the store’s clerk and assaulted a police officer while leaving the store. No one disputed that defendant did, in fact, commit the acts at issue. Instead, the criminal prosecution came down to whether or not he was “legally sane” at the time. According to Johnson, “he acted with diminished capacity.”
Johnson was known to have “below-average intelligence” and “suffered from bipolar disorder and depression” before the robbery and shooting. However, it wasn’t until approximately six months after the events that his capacity at the time became an issue.
Around that time, a physician met with Johnson and originally opined that he suffered from a form of personality disorder. Later, however, the doctor changed course and diagnosed Johnson with bipolar disorder. In light of his bipolar disorder, the physician asserted that Johnson acted “with diminished capacity when [he] killed [the clerk].”
Bipolar disorder is a serious and complex mental health disorder that comes with lots of common misconceptions
According to the National Institute of Mental Health, “[b]ipolar disorder (formerly called manic-depressive illness or manic depression) is a mental disorder that causes unusual shifts in mood, energy, activity levels, concentration, and the ability to carry out day-to-day tasks.”
While one of the common misconceptions about bipolar disorder is that it’s rare, the truth is quite the opposite. In the early 2000s, the NIMH reported that “[a]n estimated 2.8% of U.S. adults had bipolar disorder in the past year.”
It also reported that “[a]n estimated 4.4% of U.S. adults experience bipolar disorder at some time in their lives.” And, even more alarmingly, nearly 83% of those cases are considered “serious” (as opposed to “moderate”).
Despite its seriousness and prevalence, people have numerous misconceptions about bipolar disorder. For some, it’s the belief that the disorder is rare, or the assumption that it’s nothing more than ordinary mood swings. Others might believe that manic episodes actually help with productivity. Many still drastically underestimate the seriousness and complexity of bipolar disorder.
Unfortunately, our country’s justice system isn’t immune from these misconceptions either. Last year, The Atlantic published a piece about a Colorado man incarcerated with bipolar disorder. The story painted a heartbreaking picture of a disabled man missing his opportunity for much-needed mental-health treatment while he sat in jail waiting for a competency evaluation.
While Johnson presented his mental health defense, three appellate judges couldn’t agree if his trial was a fair one
In his case, Johnson got the chance to present his bipolar disorder to the jury. And the jury convicted him of first-degree felony murder and robbery with a dangerous weapon anyway. To some, that might mark the end of the story. For others, though, there’s more to it.
On appeal, Johnson took issue with a Durham County Superior Court Judge Rebecca W. Holt’s decision. Judge Holt allowed the prosecution to present jail calls involving Johnson from around the time he first met with the physician who diagnosed him with bipolar disorder. According to the defendant, that decision violated his constitutional rights. At a minimum, Johnson sought an adjournment so his lawyer could have a chance to review those specific jail calls.
But Judge Holt rejected that argument, and two North Carolina Court of Appeals judges agreed with that decision. Judge Chris Dillon, writing on behalf of himself and Judge Phil Berger, Jr., concluded that more time wasn’t necessary. Judge Dillon emphasized that Johnson’s trial attorney “knew for quite a while that recordings of these calls existed.”
That contention is accurate, but context is important. The prosecution waited until the very last minute—the day before trial—to announce its decision to play recordings of nine of the jail calls. Was Johnson’s attorney aware of these calls? Sure. However, the prosecution originally and repeatedly told Johnson’s attorney that they would not present any of the more than 800 such calls during trial.
One judge dissented, writing that the majority decision didn’t adequately address the problematic nature of the effort to discount Johnson’s diminished-capacity defense
This was one of several factors that Judge Donna Stroud focused on in her dissenting opinion. She wrote, “The majority glosses over the actual timing of the production of the phone calls and the State’s repeated assurances it did not intend to use any of the phone calls.” One email from the prosecution that Judge Stroud emphasized stands out: “I do not intend to introduce any of the jail calls….”
Finally, Judge Stroud pointed out the seemingly impossible nature of the suggestion that Johnson’s attorney should have “listen[ed] to the approximately three and a half hours of phone calls”—much less the “90 to 140 hours of calls” total—during a 15-day trial.
Ultimately, Johnson got a chance to present a diminished-capacity defense to a jury. That’s more that some criminal defendants get to say. But, between the Hollywood-created expectations, the common misconceptions about bipolar disorder, and the last-minute nature of the prosecution’s decision to present evidence rebutting the diminished-capacity defense, it’s hard not to wonder whether Johnson’s trial actually reflected the complex and serious nature of bipolar disorder.
Read more about what’s happening in North Carolina law here.