A little-known case in Alaska raises essential questions about the meaning of criminal intent under law: Can a man be convicted of assault for endangering others when the crime occurs while he is suffering from a brain hemorrhage? Does a prosecutor, who knows the defendant has suffered brain damage at the time of the offense, have a duty to permit jurors to learn about the injury? And can a trial judge force a defendant to submit to psychiatric examinations against the defendant’s will?
William Palmer, 69 years old now, had a rough go of it in September 2009, on that much all sides agree. According to case briefs and an Alaska Court of Appeals ruling chronicling this strange story, Palmer was living near Sutton, Alaska, with his girlfriend, Kay Anderson, when things began to turn. Palmer suffered a seizure and a stroke, and then began acting so strangely, so disoriented and lacking in balance, that Anderson thought it would be a good idea to hide his guns.
It turned out to be not such a good idea. When Palmer couldn’t find his guns he called 911 to report that they had been stolen. He then gave the phone to Anderson, who told dispatchers that she feared for her life and that Palmer had been firing a weapon at their home. Six state troopers showed up at the Palmer residence responding to what amounted to a domestic violence call. Palmer must have found those hidden guns because when the police first arrived at his home he brandished an assault rifle, and refused to drop it, asserting his constitutional right to bear arms. Then he dropped the rifle he was waving but appeared to be wearing a revolver in a shoulder holster.
Palmer threatened the police — he told them to “stand down.” When Anderson came out of the house, and Palmer turned to speak to her, the police jumped him. After a struggle in which only Palmer was (slightly) injured, Palmer was subdued, arrested and charged with assault. The police later said he smelled of alcohol and that his eyes were bloodshot but there were only empty shell casings in that pistol. It was the sort of encounter that might have turned deadly — for Palmer or the cops or both — but didn’t. And the police afterward applauded themselves for their delicate handling of the case.
Palmer’s arrest did not stop his erratic behavior, however. He was arraigned later that day, and his judge was so alarmed by Palmer’s demeanor in court that he ordered a competency hearing. Afterward, in jail that day, Palmer defecated on food tables, smeared his own feces all over them, and “exhibited confused speech” and “an unsteady gait,” according to the court record in the case. Soon, Palmer was transferred to a local hospital, where he was diagnosed as suffering from a brain hemorrhage caused by a ruptured brain aneurysm.
Frank Ellenson, a neurologist in Anchorage with no involvement in the case, told me Friday that Palmer’s symptoms, his odd behavior, were entirely consistent with his medical condition at the time, right down to the loss of balance that might have been caused by the aneurysm bulging out of its blood vessel and pressing into parts of Palmer’s brain. His physical ailment, in other words, created cognitive disabilities and it was this combination — a temporary physical defect causing a temporary mental defect — that subsequently created the legal problems this case has seen since.
On the day of his arrest doctors performed emergency surgery to repair the damage to Palmer’s brain. Even after the surgery, court records indicate, Palmer “remained severely mentally impaired — his speech was incomprehensible, he lacked short-term memory, he was agitated and violent,” so much so that he had to be kept in four-point restraints after he was transferred back to the jail from the hospital. Around this time, Palmer was evaluated by Dr. Lois Michaud, the state’s chief forensic psychologist, who found Palmer’ mental and physical condition to be so poor that Palmer didn’t even understand what had happened to him.
Three weeks later, at the request of both the judge and the defense, Dr. Michaud saw Palmer again. This time the patient — still incarcerated — was “oriented and alert” although his recollection of the episode with the state troopers was still muddled, court records say. Palmer was diagnosed around this time, in November 2009, as having “dementia secondary to a cardiovascular accident, which is now resolved” meaning, in medical parlance, that Palmer was regaining some of his cognitive functions. Dr. Michaud told this to Palmer’s judge, who promptly deemed him competent to stand trial.
We do not know, seven years later, why prosecutors chose to proceed with an assault case against a man whose brain, indisputably, was hemorrhaging at the time of the alleged crime. Palmer’s attorney likened the facts of the case to the classic example of the driver who has a heart attack while driving a car, a scenario in which few prosecutors ever would press charges (and for which few juries would vote to convict).
The prosecutor, Rachel Gernat, is still in Alaska. She declined to explain why she prosecuted Palmer given his medical condition, but she did wonder in an email Monday evening why I was focusing on the case “given that, in the larger scheme of criminal cases, it is a more minor felony case.” She also disputed the notion that this was a victimless crime by noting that the initial 911 call, from Kay Anderson, was for a potential domestic violence episode and that the officers themselves were victims because Palmer had pointed a weapon at them. But the nature of the crime was never in question here; the question always has been whether Palmer’s injury precluded him from having any intent to commit it.
Zachary Brown, Palmer’s defense attorney at trial, did not respond to a request to discuss the case. He’s now working in the attorney general’s office in Washington state. The assistant public defender in Palmer’s case, Nate Peters, now is a trial judge in Bethel, Alaska. Everyone, it seems, has moved on.
Not only did Gernat proceed to try Palmer but prosecutors also filed a request with the trial judge to block Palmer’s attorney from sharing with jurors any evidence of his client’s brain aneurysm or the two competency exams the state’s own psychologist had given him. Prosecutors didn’t want Palmer’s jury to know that the defendant was brain-damaged on the day he confronted those state troopers in his front yard and that he was still intellectually disabled for days, even weeks, after the episode.
Here Alaska law and trial tactics come into play in our story. Palmer’s attorney had two primary options for the defense of his client. He could assert that Palmer suffered from a “diminished capacity” to commit a criminal act because of “mental disease or defect.” (Essentially, his mental impairment was a condition.) Or he could assert that Palmer’s conduct was involuntary because of the brain injury. (Essentially, it was an event.)
If Brown, the defense attorney, had chosen the “mental disease or defect” option, the judge would have been required to order two psychiatrists or forensic psychologists to examine Palmer and report their findings to all the parties. Palmer would have had the burden of proving that he suffered from this “disease or defect.” In effect, this course would have required Palmer to testify against himself by submitting to the psychological exam and having its results introduced as evidence.
This the defense team chose not to do. Instead, they chose to tell jurors that the brain hemorrhage he suffered rendered his conduct “involuntary” and absolved him of any criminal intent. Palmer’s attorney moved to dismiss the indictment, citing Dr. Michaud’s initial evaluation of Palmer, in which the doctor had deemed Palmer to be significantly impaired.
The prosecutors argued that Palmer had to assert that his medical condition was a “mental disease or defect” — and that he could not do so because he had not given the state and the judge adequate notice of that defense. Palmer’s lawyer argued that jurors should be told that the defendant’s physical impairment, and not some mental disease, was the cause of his conduct that day. And prosecutors insisted that because of the inadequate notice the conclusions of the state’s own forensic psychologist could not be shared with jurors.
The judge agreed with prosecutors. Either Palmer would have to submit to the court-ordered psychiatric evaluations or be precluded at trial from telling jurors about the brain aneurysm, the judge ruled. Palmer’s attorney chose not to subject his client to the exams and the case went to trial with all sides understanding that jurors would not be told about the most essential fact of the assault case.
At trial, the troopers testified that Palmer’s “slurred speech, impaired balance, and blank unfocused stare” made them think he was drunk and thus dangerous. The judge and the attorneys knew that this testimony was misleading. (We do not know how much those police witnesses knew about Palmer’s brain injury.) So Palmer’s attorney again asked the judge to be able to explain to jurors why, in fact, his client was acting drunk. Again, the judge denied the defense the opportunity to tell jurors the truth. Palmer was found guilty.
For Palmer, the story gets a little better from here. At sentencing, after Palmer’s girlfriend testified more about his behavior shortly before his arrest, the same judge who had refused to allow Palmer’s lawyer to tell jurors about the brain damage concluded that Palmer was suffering from a “mental disease or defect” that rendered him “not himself on the night of the incident.” He gave Palmer a seven-year sentence with six years suspended.
Today, Palmer is a free man, having served his time, and a new lawyer is challenging the way his trial was handled. In July, a state appeals court said the trial judge erred in precluding evidence of the aneurysm without first hearing from Palmer’s expert witnesses who were poised to testify about that “involuntariness” defense. Now state attorneys are challenging that ruling and may yet win. Stephen Gillers, the legal ethicist, told me last week that the central question of the case, “whether as a matter of law or a matter of fact his illness at the time of the incident made voluntariness impossible,” has yet to be answered.
Supported by the Louis Lowenstein Award for Criminal Justice Commentary.