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Monday, September 21, 2009

Ind. Courts - More on: Briefs for upcoming argument in Thomas v. FSSA

Updating this ILB entry (which includes the briefs) from Sept. 16, for the case set to be argued this Wednesday, Sept. 23rd before a Court of Appeals panel at the IU-Indy Law School courtroom, Charles Wilson of the AP has this long story today about the case. Some quotes:

INDIANAPOLIS -- Two mentally disabled men placed indefinitely in an Indiana state hospital until they might become competent to stand trial on child-molestation charges want to be released to group homes or other community-based care, but the state contends the men are too dangerous for such settings.

The American Civil Liberties Union of Indiana argues in a lawsuit that Steven Thomas and Derrick Dausman may never be ready for trial and they would be better served in community care than in Logansport State Hospital. But, the ACLU says, the state Family and Social Services Administration doesn't offer alternative placement for criminal defendants.

The Family and Social Services Administration and the state attorney general's office argue that a restricted setting is the best place to care for potentially dangerous patients, and deciding placement is within its prerogative as a state agency. * * *

According to court records, [Steven] Thomas has the emotional and cognitive skills of a 5- or 6-year-old. [Derrick] Dausman has an IQ in the low to mid-50s and is regarded as mildly retarded.

Judges in both cases found the men had insufficient comprehension to stand trial and committed them to the FSSA's Division of Mental Health and Addiction, which placed them in the state hospital about 68 miles north of Indianapolis in 2008.

Both men were assigned teams of doctors and social workers whose goal was to raise the men's mental comprehension to the point where they could stand trial.

The FSSA said in a court brief that the doctors who treat the men say both are progressing toward competency. But two psychiatrists cited by the ACLU were skeptical that either would ever be competent to stand trial.

That, the ACLU argued, amounts to a lifetime commitment in the state hospital.

"One of the great dangers is people deemed unfit to stand trial ... can be literally institutionalized for the rest of their life," said John Dickerson, executive director of the advocacy group Arc of Indiana, which is not a party in the lawsuit.

FSSA's policy keeps it from placing anyone facing criminal charges anywhere but in a state hospital. The ACLU claimed that goes against state law requiring care in the least restrictive setting available and violates the men's federal constitutional right to due process. But a Marion County judge ruled in favor of FSSA, and the ACLU appealed.

The attorney general's office, which represents FSSA, argues that the social services agency is simply using its discretion and operating within the constraints of its budget. But its chief argument is public safety. * * *

ACLU attorney Gavin Rose said the decision on whether Thomas and Dausman pose a threat should be up to medical professionals. "The people who do that right now are lawyers," he said.

He noted that two doctors -- one court-appointed, the other the Division of Mental Health's own medical director -- thought Thomas and Dausman belonged in community care.

Posted by Marcia Oddi on September 21, 2009 06:10 PM
Posted to Upcoming Oral Arguments