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Green v. Commissioner, part two

III. GREEN'S RELEASE HEARING
A.  The Governing Statute

	[¶25]  With respect to the release proceedings themselves, Green
argues that the court misinterpreted the statutory requirements for release
when it determined that because she was still diagnosed with a mental
illness and still posed a likelihood of danger to the community, she was not
eligible for release.  She argues that the statute requires that an insanity
acquittee's illness be symptomatic in order to continue commitment, and
that if the illness is no longer symptomatic, the statute requires release.
	[¶26]  Statutory interpretation is a question of law and we review such
questions de novo.  See Passamaquoddy Water Dist. v. City of Eastport, 1998
ME 94, ¶1, 710 A.2d 897, 899.  The statutory provision governing release
and discharge of insanity acquittees provides in relevant part:
If, after hearing, the court finds that the person may be released
or discharged without likelihood that the person will cause
injury to that person or others due to mental disease or mental
defect, the court shall order as applicable . . . [r]elease from the
institution, provided that . . . [t]he order for release may include
conditions deemed appropriate by the court . . . .

15 M.R.S.A. § 104-A(1)(A) (Supp. 1999) (emphasis added).  As we noted in
LaDew v. Commissioner of Mental Health and Mental Retardation, the
provisions of the Criminal Code regarding the insanity defense must be read
and applied as an integrated whole with those of Title 15 regarding the
release of insanity acquittees.  See LaDew, 532 A.2d at 1053.
	[¶27]  Because the release provisions provide no definition of "mental
disease or defect," we look to the Criminal Code which provides the
following definition:  "'mental disease or defect' means only those severely
abnormal mental conditions that grossly and demonstrably impair a person's
perception or understanding of reality."  17-A M.R.S.A. § 39(2) (Supp.
1999).  We stated in LaDew that "to be released under 15 M.R.S.A. § 104-A
[an insanity] acquittee must show . . . that the mental disease or defect by
reason of which he was relieved of criminal responsibility no longer exists,
or at least no longer poses a danger to himself or others if he is released." 
LaDew, 532 A.2d at 1053; see also Roberts v. Commissioner of Mental Health
and Ret., 562 A.2d 680, 683 (Me. 1989).  In other words, if an insanity
acquittee can show (1) that he or she is no longer mentally ill, cf. Foucha,
504 U.S. at 76, n.4, or (2) that he or she is no longer a danger, although still
mentally ill, a court may order release.
	[¶28]  Although demonstrating that a mental illness is asymptomatic
or that the insanity acquittee is no longer in the same state as existed at the
time of the acquittee's crime may indicate that there is little likelihood of
dangerousness, it does not mean that the mental "disease or defect" no
longer exists.  Cf. Parrish v. Colorado, 78 F.3d 1473, 1477 (10th Cir. 1996)
("The crux of the issue, then, is not whether the acquittee must be ill in the
medical sense, but whether his mental state fits a constitutionally valid legal
definition.").  Otherwise, an acquittee would be statutorily entitled to release
as soon as his or her condition was brought under control by medication. 
That is clearly not what the statutory scheme contemplates.  In fact, we
noted in LaDew that the statutory scheme governing the insanity defense
had been tightened in response to a public concern that insanity acquittees
were "too quickly being released and too quickly gaining complete
discharge."  LaDew, 532 A.2d at 1053 (citing Report of the Insanity Defense
and Related Statutes and Procedures Study Subcommittee of the Joint
Standing Committee on the Judiciary 15-16, 18-19 (1986)).  Being
asymptomatic is not equivalent to no longer suffering from the mental
illness that served as the basis for acquittal and therefore being
asymptomatic does not automatically entitle an acquittee to release pursuant
to the statutory scheme.
	[¶29]  The trial court in this case denied Green's request for relief
based on its finding that (1) Green still suffers from mental illness that will
be life-long, although she is currently stable because of her regimen of
medication, and (2) at the present time she could not be released without
the likelihood of danger to herself or others.  In other words, the mental
condition that impaired Green's perception of reality when she killed her
mother, i.e., the dual diagnosis of her bipolar and poly-substance abuse
illnesses, still existed, and that condition still created the potential for
danger at the time of the hearing.  Thus, the court did not err as a matter of
law by denying Green release based on these factual determinations.

B.  The Court's Factual Findings

	[¶30]  In Green's last challenge to the court's judgment she argues
that there is insufficient evidence to support the court's findings of fact.  We
review findings of fact for clear error and will reverse a finding of fact only
when:
(1) there is no competent evidence in the record to support it,
or (2) it is based upon a clear misapprehension by the trial court
of the meaning of the evidence, or (3) the force and effect of the
evidence, taken as a total entity, rationally persuades to a
certainty that the finding is so against the great preponderance
of the believable evidence that it does not represent the truth
and right of the case.

State v. Landry, 600 A.2d 101, 103 (Me. 1991) (citing Harmon v. Emerson,
425 A.2d 978, 982 (Me. 1981)); see also LaDew, 532 A.2d at 1054 ("we
must affirm unless the record evidence compelled the Superior Court to
make a finding in favor of the party with the burden of proof.").
	[¶31]  We have previously noted, "[w]hether [the insanity acquittee]
suffer[s] from a mental disease or defect is ultimately a legal, as opposed to a
medical, determination to be made by the court."  Roberts, 562 A.2d at 683. 
All of the experts testified that Green suffered from bipolar and poly-
substance abuse disorders that were life-long illnesses.  The court ultimately
found that Green was dually-diagnosed and controlled her illnesses through
a strong regimen of medications.  Although Green had not suffered the
symptoms of psychosis, delusions, mania or depression for a period of
months, the court was not compelled to find that she no longer suffered
from a mental illness.  Compare Kansas v. Hendricks, 521 U.S. 346, 359
(1997) ("[T]he term 'mental illness' is devoid of any talismanic significance. 
Not only do 'psychiatrists disagree widely . . . on what constitutes mental
illness,' but the Court itself has used a variety of expressions to describe the
mental condition of those properly subject to civil confinement.") (citations
omitted).
	[¶32]  With respect to the likelihood of dangerousness, again the court
had before it evidence that the symptoms of Green's bipolar illness were
controlled by strong medications some of which had addictive properties
and might present problems with respect to her poly-substance abuse
disorder.  The testimony of all of the witnesses, including Green herself,
indicated a long history of relapses and hospitalizations, often precipitated
by the abuse of substances, licit and illicit.  Several of the witnesses
expressed concern over the lack of data regarding any attempts at a more
gradual reintroduction of Green in the community setting.  In other words,
there was no precedent in Green's treatment history subsequent to her
killing her mother for establishing Green's risk of dangerousness off the
ground of AMHI.  The record evidence at this stage in Green's treatment did
not compel a finding by the court that Green presented no likelihood of
danger to herself and others.{5}
	[¶33]  Because there is competent evidence in the record supporting
the court's factual findings, we find no error.  Furthermore, the court
correctly interpreted the statute governing release.  Finally, as discussed
above, our holding in Taylor regarding the burden of proof in release
proceedings does not offend constitutional principles of fairness and justice.
	The entry is:
			Judgment affirmed.
               
Attorney for plaintiff: Peter Darvin, Esq., (orally) 178 Middel Street, suite 402 Portland, ME 04101 Attorneys for defendant: Andrew Ketterer, Attorney General William R. Stokes, Asst. Attorney General (orally) 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . In this case, Green and the State reached a plea agreement establishing these elements. {2} . Because the due process protections of the Maine Constitution are coextensive with those of the United States Constitution, see Fichter v. Board of Envtl. Protection, 604 A.2d 433, 436 (Me. 1992); Penobscot Area Hous. Dev. Corp. v. City of Brewer, 434 A.2d 14, 24 n.9 (Me. 1981), all of Green's Maine due process claims will be analyzed concurrently with her federal due process claims. {3} . In the context of her substantive due process challenge to the burden of proof, Green also argues that because she is asymptomatic, she is no longer "legally insane" and therefore has a substantive due process right not to bear the burden of proof at her release proceeding. However, the question of whether she is still mentally ill as defined by statute is one of the very questions to be answered at the release proceeding, and if she is no longer mentally ill as defined by statute, she is legally entitled to release. See 15 M.R.S.A. § 104-A(1) (Supp. 1999); LaDew v. Commissioner of Mental Health and Ret., 532 A.2d 1051, 1053 (Me. 1987). Green cannot, however, assume the outcome of her release proceedings and then use the assumption as a premise in her argument that she should not have to bear the burden of proof in those proceedings. Additionally, at least one federal court in the context of a constitutional challenge to the continued commitment of an insanity acquittee who was asymptomatic has rejected the analogy between the individual in Foucha who was indisputably not mentally ill and individuals who are asymptomatic. See United States v. Jackson, 815 F. Supp. 195, 198-99 (N.D. Tex. 1993) (rejecting argument that confinement cannot constitutionally continue when acquittee's illness was in remission because of treatment with medication), aff'd, 19 F.3d 1003 (5th Cir. 1994), cert. denied, 513 U.S. 891 (1994). {4} . Similar to the due process clauses of the Maine and United States constitutions, the equal protection clauses found in the state and federal constitutions offer coextensive protections. See School Admin. Dist. No. 1 v. Commissioner, Dep't of Educ., 659 A.2d 854, 857 (Me. 1995); Choroszy v. Tso, 647 A.2d 803, 808 (Me. 1994). {5} . Green also argues that the court abdicated its responsibility by not adding additional conditions to the proposed release plan pursuant to 15 M.R.S.A. § 104-A(1)(A) to allay its concerns regarding Green's potential for dangerousness. Because, however, the court determined that Green still suffered from a mental illness and could not be released, i.e., returned to permanent residency within the community, without the likelihood of injury to herself or others, release was not authorized by section 104-A(1), with or without additional conditions to those proposed by Green. Additionally, the court did approve the modified release treatment plan pursuant to section 104-A(2) recommended in the institutional report. This plan does allow for travel by Green off the ground of AMHI and in the community, but in a more measured way and with greater supervision than that proposed by Green. Therefore, the court clearly met its statutory responsibility, as it ultimately adopted a treatment plan that provided for interaction with the community, but with safeguards it implicitly deemed appropriate.

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