State laws typically allow the civil commitment of an individual who is dangerous to himself or others because of a mental disease. The procedures that must be followed to secure a commitment order vary from state to state.
When the allegedly dangerous person is brought into the mental health system by a police officer, states typically require a government attorney to represent the interest of the state is seeking a commitment. The person who might be committed has the right to a lawyer and may be entitled to a public defender.
The procedure in North Carolina is unusual. While North Carolina provides a lawyer to the subject of the commitment proceeding, it only requires the state to be represented by counsel when the proceeding is held at a state facility, such as a state-owned mental health hospital.
North Carolina law gives the attorney general discretion to assign or not to assign a lawyer to commitment proceedings held in private facilities. That quirk in the law effectively forces expert witnesses to make legal decisions about what testimony they should give rather than responding to questions asked by a lawyer.
A recent appellate decision asked whether the subject of a commitment receives a fair hearing when the expert witness rather than a lawyer is the person who, as a practical matter, represents the state. The North Carolina Court of Appeals decided that the procedure is fair.
Facts of the Case
Police officers brought Q.J. to the emergency department of the Duke University Medical Center. The officers advised hospital staff that Q.J. was “having thoughts of harming his mother,” had threatened to slit her throat in the past and was threatening suicide.
Dr. Naveen Sharma signed a Petition for Involuntary Commitment of Q.J. The petition represented that Duke University Medical Center was familiar with Q.J., that he had a history of schizoaffective disorder, that he wasn’t taking his medications, and that he had been hospitalized many times in the past under similar circumstances.
Dr. Sharma expressed the opinion that Q.J. needed treatment to prevent further deterioration of his mental condition. Dr. Sharma believed that he would become dangerous without treatment. Dr. Sharma’s petition alleged that Q.J. was unable to care for himself adequately in the community and required inpatient hospitalization for stability and safety.
Based on the petition, a magistrate found that Q.J. was mentally ill and a danger to himself or others. The magistrate authorized a temporary inpatient commitment pending a full hearing. That hearing was held about three weeks later.
Q.J.’s Commitment Hearing
Q.J. was represented by counsel at the commitment hearing. No representative appeared on behalf of the state. Q.J.’s counsel objected to the failure of either the District Attorney’s office or the Attorney General’s office to represent the state. In their absence, a mental health expert from Duke Medical Center was the only individual representing the interests of the state.
Dr. Kristen Shirley testified in support of the commitment petition. She had never evaluated Q.J. Dr. Shirley is not a lawyer. The judge overruled Q.J.’s objection to proceeding with a doctor representing the state in an adversarial proceeding.
The judge began by asking Dr. Shirley to “tell me what it is you want me to know about this matter.” Dr. Shirley testified about the results of Q.J.’s two mental health evaluations following his detention. She opined that Q.J. responded well to medication but has limited insight into his mental health status and was likely to stop taking medication if he was released to the community.
Dr. Shirley testified that Q.J. posed a high risk of decompensating if he were released. In her opinion, decompensation might cause him to become suicidal or homicidal. Dr. Shirley testified that a community treatment team recommended hospitalization to stabilize Q.J.’s condition, including treatment with a long-acting injectable medication. Dr. Shirley recommended a 30-day commitment.
Q.J.’s attorney cross-examined Dr. Shirley. In the absence of any lawyer representing the state, the judge conducted his own redirect examination. The judge found that Q.J. was mentally ill and that the mental illness made him dangerous to himself and others. The judge ordered a 30-day civil commitment.
Expert Witness as Representative of the State
Q.J. appealed. The most significant issue on appeal was whether, in an adversarial system of justice that depends on two opposing parties being represented by counsel, a civil commitment proceeding can proceed when the only advocate for the state is a testifying expert witness, not a lawyer.
When a lawyer represents the state, the lawyer asks questions and the expert witness answers them. The judge’s role is limited to ruling on objections. Under those circumstances, the judge can remain impartial.
With no lawyer representing the state, the judge left it to Dr. Shirley to decide what testimony to give. When the judge invited her to “tell me what you want me to know,” the judge put the expert in the position of making legal judgments about the evidence that the judge should hear. The expert likely had some awareness of the evidence that is required to meet the legal standard for a commitment, but she was trained to make medical judgments, not legal judgments about the relevance of particular facts.
Q.J. complained that placing the expert in the dual role of lawyer and witness raised questions about the judge’s impartiality. The court got the ball rolling by asking Dr. Shirley to tell him what she wanted him to know, arguably asking the kind of question that a lawyer for the state would have asked.
More troubling were the questions that the judge asked on redirect in an apparent attempt to rehabilitate Dr. Shirley’s testimony. On cross-examination, Dr. Shirley admitted that Q.J. had not actually engaged in violent behavior before the police took him into custody, that he made no threats and expressed no suicidal thoughts while he was being evaluated, and that he had no history of harming others. When, on redirect, the judge asked Dr. Shirley if her testimony was that Q.J. was a danger to himself and whether he was a danger to others, the judge was asking the kind of rehabilitative questions that a lawyer for the state would be expected to ask.
The appellate court concluded that North Carolina law does not require the state to be represented by counsel when commitment hearings are held at a private hospital. The court further concluded that there is no constitutional barrier to having an expert witness present all the testimony required to support a commitment without having a lawyer elicit that testimony.
Perhaps because it was unwilling to upset the apple cart of North Carolina’s unusual procedure, the court concluded that the judge always remained impartial. While it is true that judges are entitled to question witnesses to clarify testimony if they do so without becoming an advocate for a party, the judge’s redirect examination was exactly the kind of questioning one would expect from an advocate, not from an impartial judge.
Policy Issues
North Carolina’s commitment procedure places expert witnesses in a difficult position. It is usually improper for a witness to give narrative testimony rather than responding to specific questions. Narrative testimony makes it difficult for opposing counsel to object since no question has been posed to which an objection can be lodged. Narrative testimony also makes it more likely that a witness will stray from the facts that are relevant to the proceeding.
Appellate judges are extraordinarily reluctant to find that trial judges were anything other than impartial. While the record makes clear that the judge acted as an advocate for the state by asking questions to rehabilitate the testimony of the expert witness, the appellate court refused to equate advocacy with partiality. As long as North Carolina continues to leave the presentation of evidence at commitment proceedings to expert witnesses rather than lawyers, the fairness of commitment proceedings — and unfairness to expert witnesses — will continue to be an issue.
