Wednesday, October 9, 2013

KANSAS v. CHEEVER, feathering the reach of the Fifth Amendment

Today the Supreme Court hears a Kansas case called Kansas v. Cheever.

In 2005 Scott Cheever, high on methamphetamines, brain addled by long term abuse of methamphetamines, intentionally shot and killed Greenwood, Kansas County Sheriff Matt Samuels.  Cheever was convicted of murder.  The Kansas Supreme Court reversed.  The State appealed and the case is being argued before the United States Supreme Court.

You'd think that it would be an open and shut case, what with Cheever having confessed to the homicide.  It isn't.  Cheever offered expert testimony that his use of the illegal drug prevented him from being able to form the required mental state necessary to commit the crime.  Kansas responded with the testimony of a court appointed expert who likewise had examined Cheever. 

Let's remember that for a crime to be a crime it takes two parts the actus reus [or the criminal act] and the mens rea [the culpable state of mind].  

Cheever did not raise the defense of mental disease or defect, which would not have applied to a case of self-intoxication. Cheever raised the issue of mens rea.  That distinction now takes this case to the Supreme Court.  On appeal the issue is whether or not the Fifth Amendment proscription against self incrimination applies to the facts of this case. 

The law, as it stands today, is that when the criminal defendant raises the mental disease or defect defense then the state may rebut that defense with the testimony of a court appointed expert.  That is because the defendant raised the issue and when the court appoints the expert the defendant waives the Fifth Amendment rights. 

Here, the Kansas Supreme Court reasoned, Cheever made only the mens rea defense and thus the state cannot use the court appointed expert, violating the rule against self incrimination.  What avenues were open to the state?  Did the defendant provide MRI evidence to demonstrate the necrotic synaptic junctions that addled his brain to the point where Cheever couldn't form the adequate mens rea standard required by statute?  If so that type of evidence can be reviewed and rebutted by the state.  There is no Fifth Amendment violation because the defendant raised the issue and presented the defense.  

It is a fine point of law in the balance of which the life of Scott Cheever hangs.  The alternative to demanding Cheever's execution is called LWOP, that is a life sentence without the possibility of parole.  If his brain is as damaged as he claims he will no doubt serve out his days in a place like the State Hospital in Larned, Kansas.  

The way methamphetamine works on the brain is that it causes a rapid download of neurotransmitters like serotonin, GABA, dopamine, norepinephrine, and epinephrine.  These are the chemicals that permit communication between the brain and the body.  The rapid download is called the rush.  The addict craves the rush and consumes increasingly greater quantities of the drug.  Methamphetamine and cocaine work in virtually the same way on the brain. 

As the addict consumes greater quantities of the illegal drug the reuptake of the neurotransmitters are blocked.  This leaves high concentrations of the drug congesting the synaptic junctions of the brain. This leads to areas of necrosis in the brains of addicts.  These areas of necrosis can be revealed by an MRI or a CAT scan.  The brain of the addict under these circumstances appears to resemble Swiss Cheese, where the holes in the cheese represent the dead areas of the brain.

The link to the briefs in this case are located at

The briefs frame the issues of the case for the Supreme Court in the "QUESTION PRESENTED" section of the brief.  Here are the questions for this case. 

1. When a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant's methamphetamine use, does the State violate the defendant's Fifth Amendment privilege against self-incrimination by rebutting the defendant's mental state defense with evidence from a court-ordered mental evaluation of the defendant?
2. When a criminal defendant testifies in his own defense, does the State violate the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant?