A question of sanity

On the evening of September 18, 2013, Alexander Ervin, a 20-year-old man who lived in his own home on the back of his parents’ property, waited patiently for his mother, Leslie, to leave the house. Alex’s brother, Max, age 17, watched Alex pace back and forth with a folding knife in his hand as he opened and closed it repeatedly. At the time, Max didn’t think anything of it, as his brother’s behavior was always a little different because of his autism.
    Alex locked the family dogs in the pantry, then went out on the front porch to watch his mother drive away. Within minutes, Max, from the other end of the house, heard blood-curdling screams. His first thought was that his brother had done something to the dogs. He ran to the room where the screaming was coming from and found Alex with a pipe wrench in one hand and a knife in the other. He was standing over their father, Ray Scott Ervin, who was seated in a desk chair. Ray had been stabbed and was bleeding profusely. Max tried to intervene and stop his brother from attacking his father, and with Max’s help his dad was able to get the pipe wrench away from Alex.
    Alex told his brother in a robotic tone that he was a CIA agent and that he had done this many times before. He also told Max that “that man,” referring to Ray, was not their father but rather an imposter. Ray managed to fight off multiple attacks from Alex and defend himself by hitting Alex in the head with a glass vase over and over until it shattered, ultimately subduing Alex so that Max and Ray could get out of the room. Max stood at the door holding it closed to keep Alex inside while his father ran to call 911.
     Ray, losing significant amounts of blood, was unable to complete the phone call; his bloody fingerprints were left on the phone’s “9” and “1” buttons. Max then called 911 from his cell phone as Ray struggled to breathe as he lay on the kitchen floor. He was hurried to the hospital but was pronounced dead upon arrival. Ray Scott Ervin died from multiple sharp force injuries and the resulting blood loss. He had been struck over the head at least twice with the pipe wrench and was stabbed six times with the knife.
    When officers arrived on scene, they placed Alex in custody. His immediate statement to law enforcement, without being prompted by any question, was, “I want to state that this man has been a child molester and pedophile for eight years.” When he was removed from the house, he was placed on the curb so that EMS could tend to his wounds. When asked by multiple personnel from EMS, the fire department, and the Austin Police Department what his name was, his response was, “Not without my lawyer,” “Not without counsel present,” or “I invoke my Fifth Amendment right.” He was rushed off to the hospital where he underwent surgery for his wounds and finally placed under arrest for murder.

History of mental illness
Alexander Ervin had a history of mental illness and had been diagnosed with Attention Deficit Hyperactive Disorder (ADHD) and Attention Deficit Disorder (ADD). In 2005, he underwent an Autism Spectrum Disorder Evaluation, where Dr. L. Fogle diagnosed him with Asperger’s disorder.
    In 2010, after becoming verbally aggressive with Ray, Alex punched his father in the face, causing a small cut. As a result, Alex was hospitalized for a mental evaluation at the Austin State Hospital. (His parents had the choice of sending him to jail or to the hospital to be evaluated, and they chose the hospital.) In interviews there, family members discussed Alex’s violent tendencies (he was physically aggressive toward his father multiple times) and that they were getting progressively worse. (Alex had had problems with anger and opposition from a young age.) Doctors at the Austin State Hospital ultimately diagnosed him with psychotic disorder not otherwise specified, pervasive disorder not otherwise specified, parent-child conflict, and a history of ADHD. His parents discharged him voluntarily because he refused to follow rules, participate in counseling, and take his medications as prescribed.
    His anger and opposition seemed to be focused toward his father, Ray, even to the point where a week before the killing, Alex lured his dad into the backyard under the pretext of needing help with a yard tool. As Ray bent over to examine the tool, Alex held a pipe wrench over his head. Luckily Ray saw it, grabbed Alex’s arms, and stopped the attack. Alex stated he was “just kidding.” Even though Ray did not call the police following this encounter, his concerns about Alex’s aggression toward him continued to grow. Through other police reports, we learned that because of Alexander’s increasingly violent tendencies, Ray wanted to move out of the house for his own safety. (Alexander lived in a house on the back of his parents’ property while his parents and his brother, Maxwell, lived in the main house. Ray had this separate house built for Alex so that he had a sort of independence from the family. Two other siblings lived away from home at college at the time of the killing and subsequent trial.) He was considering a move back to the Northeast. Ray even told Leslie that he thought he might become a martyr.

A tough position
In our initial meeting with Leslie, we got mixed signals from her. We communicated with her as we would any other crime victim by empathizing with her loss and educating her on the process. She stated that she wanted her son to be locked up for life—but in a mental facility, not a prison. We explained that the only way we could ensure a lifetime incarceration was to argue for lockup in a prison, not a mental hospital. From that point on, she began distancing herself from us, and her communications with Alex’s defense attorney became more frequent. She positioned herself to us as the defendant’s mother, rather than the deceased victim’s wife.
    By the time trial came around, she was a full-on adverse witness to the State. After she originally testified about the loving nature of her relationship with her husband and their solidarity and support for Alex and his mental illness, we had to recall her to testify in rebuttal about all the misleading statements she made to the jury about the nature of her relationship with her husband and their growing concerns of Alex and his aggression. It was clear that she wanted her son to be found not guilty by reason of insanity, rather than guilty of the murder, and placed in a mental hospital.

Insanity and competency
My trial partner, Amy Meredith, and I were aware early on that the defense had hired Dr. Marisa Mauro for both competency and insanity. It’s important to distinguish the difference between these two. Insanity is a snapshot in time, meaning at the time the offense occurred, was the defendant insane? The competency issue addresses his ability to understand, aid, and assist in his defense at the time of trial. Dr. Mauro interviewed Alex twice (for both competency and insanity), and at no time during the process did Alexander exhibit signs of incompetence. He understood what crime he was charged with and even asserted that it was self-defense and his father was the initial aggressor. So there was no issue of competence; it was not a question of “who did it” but rather, whether Alex was sane at the time of the crime.
    It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.1 As most courts have examined it, determining insanity is a two-step process. First, does the person suffer from a severe mental disease or defect? “Defect” refers to intellectual development disorder (IDD), formerly known as mental retardation. Alexander had an IQ above 100 so in his case we were exclusively dealing with mental illness, not defect. The second step is, as a result of the mental illness did he know his actions were wrong? It’s not enough that the offender has a mental illness and then commits a crime, but that crime has to be the result of severe mental illness that prevented him from knowing his actions were wrong. In other words, is the offender experiencing some sort of psychosis or “episode” that would render him unable to know his actions were wrong?
    In preparing for an insanity defense, it’s important for both the prosecutors and the mental-health expert to track the language of the statute. Some will try to change the language from “knowing his actions were right” to “knowing right from wrong” or even if he knew his actions were legal. Those alternatives add a more difficult burden for the State to overcome. For example, knowing your actions were wrong can be construed differently from knowing right from wrong. With “knowing right from wrong,” there is a sense of balancing good and bad in the decision process, as opposed to simply knowing your actions are wrong. The same sort of evaluation exists when asking the question, “Do you think your actions were legal?” Using such language, which is not in the statute, unnecessarily and unfairly makes the State’s burden heavier, so make sure the prosecution’s expert avoids it.
    Before trial, the defense must file a motion if it intends to seek an insanity defense. At trial, the State obviously has the burden to prove the defendant is guilty beyond a reasonable doubt. Once the State rests its case, the burden then shifts to the defense to prove affirmative defenses (in this case, insanity). The defense has the burden of proving the elements of insanity by a preponderance of the evidence, and it does so through the testimony of an expert. It is up to the State to counter that evidence, usually through an expert of its own. From that point, it is up to the jury as the fact-finder to determine whether the defendant is guilty, not guilty, or not guilty by reason of insanity (NGRI).

Battle of the experts
Once the defense expert, Dr. Marisa Mauro, concluded that in her professional opinion Alexander Erwin was insane at the time of the offense, we turned everything over to our expert, Dr. Maureen Burrows, for evaluation. If she had agreed with Dr. Mauro’s opinion, then we would have entered an agreed judgment of not guilty by reason of insanity, and Alex would have been committed. If Dr. Burrows disagreed, then we would need to sit down with her, discuss the reasons she felt he was sane, and determine whether we should try the case in front of a jury.
    Dr. Burrows used all the resources that Dr. Mauro used, including school records, middle school evaluations, medical records, jail records, the interview of witnesses at the scene, and personal interviews with the defendant. Dr. Burrows also added other resources to her evaluation, such as Austin State Hospital records and in-car videos from peace officers at the scene.
    First off, both doctors agreed that Alexander Ervin suffered from severe mental illness. Dr. Mauro diagnosed him with Autism Spectrum Disorder as well as schizophrenia; Dr. Burrows diagnosed him with the same Autism Spectrum Disorder and was considering schizophrenia, but she observed signs of malingering while Alex was in jail so she did not officially diagnose him with schizophrenia. Thus, there was no disagreement as to the first step of the insanity analysis:  Alex had a severe mental disease or defect; both doctors were sure.
    That Dr. Mauro, the defense expert, went so far as to diagnose him with schizophrenia is important, because she used signs and symptoms of schizophrenia present at the time of the offense to determine that Alex did not know his actions were wrong. The State’s expert, Dr. Burrows, wasn’t willing to go that far. From this point forward it was a “battle of the experts” to determine not necessarily who was more credible—both doctors are highly acclaimed and their résumés speak for themselves—but rather whose analysis was more complete and accurate.
    The question became how Dr. Burrows would evaluate Alexander Ervin at the time of the offense to determine whether he knew his actions were wrong. She used police reports, the in-car videos of the officers, which included a brief, on-scene interview of Max (not the official interview at the police department), and EMS reports to find out how he was acting just before and shortly after the killing.
    After taking everything into account, Dr. Burrows concluded that Alex, in fact, knew his actions were wrong and was thus sane. She keyed on Alex’s planning and preparation for the attack (i.e., locking the dogs in the pantry, waiting for his mom to leave the house, Alex’s statement that his father was a pedophile, invoking his right to an attorney, and selectively choosing which questions he answered from officers, EMS, and a surgeon). In her opinion, why would he invoke his right to counsel if he didn’t know he had done something wrong? Alex’s preparations showed that he planned the attack and was in his right mind, not under some psychosis. He also admitted in his interview with Dr. Burrows that if police had been present during the attack, they would not have approved of his behavior and would have told him to stop. Furthermore, during the struggle with Ray and Max, Alex told Max, “Don’t make me hurt you, too,” indicating that he knew that he was hurting someone. When Dr. Burrows sat down with us to give us her opinion and explain her reasons, it all made sense; therefore, we felt that in the interest of justice, this case was worth taking to trial to let a jury decide.

Preparing for insanity
It was important in our preparation for trial to understand all of the illnesses with which Alexander had been diagnosed. To do that, Amy and I had multiple meetings with our expert, Dr. Burrows, in which she explained Alex’s diagnoses of ADD, ADHD, psychosis not specified, and schizophrenia, as well as the differences between Autistic Spectrum Syndrome and Asperger’s disorder. Our clear understanding of these disorders was vital to attack the credibility of the defense expert’s diagnosis as well as explain to a jury why Alex’s autism did not prevent him from knowing right from wrong. For example, schizophrenia is hereditary, and if he were in fact schizophrenic, there would be a family history of it—but there was none. Also, schizophrenia is a form of psychosis; if a person is schizophrenic and not on medication, the likelihood of psychotic episodes is extremely high. Dr. Burrows was convinced that Alex suffered from psychosis not specified, but at the time of the offense he was not going through a psychotic episode. And she wasn’t willing to go so far as to say he was schizophrenic, either.
    It was our argument that Alexander Ervin exhibited no signs of psychosis at or around the time of the offense. Psychosis, plainly put, is “loss of contact with reality.” Our job was to identify for the jury the signs and symptoms shown by a person going into a psychotic episode, including talking to oneself, talking or responding to voices or internal stimuli, hallucinating, delusions, and disorganization. We had to educate the jury not only on the signs of psychosis but also show that Alex had no such signs at the time of the offense. According to law enforcement, he was coherent and cooperative and listened to and followed their commands. He did not appear to be hearing or responding to voices; on the contrary, he had the presence of mind to selectively answer questions while invoking his right to counsel on others.
    How could we explain what Alex told his brother Max about being a CIA agent and his father being an imposter? Dr. Burrows told us that in her interview with Alex, he claimed that his brother had misunderstood him and that his father worked with the CIA (Ray was an attorney whose company had government defense contracts). It was also our argument that Alex was setting up all possible defenses early, as officers at the scene witnessed with Alex’s claim that his father was a pedophile. (There was never any evidence that Ray molested his children or any others; in fact, Max said he was never anything but loving.)

Throwing a curveball
Knowing that the defense was filing an insanity defense certainly changed the way we prepared and even presented our case to the jury. In a regular murder case, we would normally present the evidence we had of potential motive, pre-meditation, and prior aggression with the victim front and center. For example, when Leslie Ervin arrived back at the house and learned of her son attacking Ray, her first reaction (which was caught on a police car’s video) was to tell officers that Alex had been asking her what would happen to the money if Ray were to die—she yelled to an officer that “that’s why he did this.”
    Normally, those things would be presented in the guilt-innocence phase of trial, but instead (with the exception of pre-meditation), we held those back and presented them in rebuttal. Motive and prior aggression, Amy and I felt, showed that Alex knew what he was doing and therefore knew it was wrong. We wanted that to be the last thing the jury heard rather than it getting lost in all of the expert examination.
    We knew all along that the jury could find Alex insane. When he testified, as well as in his jail calls, he spoke in a monotone voice, probably better described as robotic. When he answered questions, he seemed to trail off in his answers and for the most part provided the same narrative over and over to the point that both prosecution and defense had to cut him off numerous times during questioning. The defense built its case off of Alex sounding robotic and out of touch, as well as setting up the question to the jury that if Alex was in his right mind the night of the murder, why would he attack his father with his brother still in the house?
    Alexander was found not guilty by reason of insanity. The jury deliberation spanned over two days, and for much of the time, they were deadlocked six to six. Ultimately, the six jurors originally voting for guilty were persuaded otherwise.
    After speaking to the jury following the verdict, we found out that two things were the deciding factors. The first was the robotic voice in which Alex testified. Despite the numerous times we distinguished the defendant’s actions in court versus his actions the night of the offense, it was hard for jurors to separate the two. The second factor was what Alex said during the attack—about his father being an imposter and Alex being a trained member of the CIA. Those two factors were too much to overcome even with what seemed to be completely coherent responses to officers and EMS immediately following the attack.
    
What happens now
From the verdict forward, some things had to occur in a particular time-frame. A hearing must have happened within 30 days of the verdict, and within those 30 days, Alex must have been examined to determine whether he would be committed to a mental facility. If the doctors determine (and the judge signs off on that determination) that the defendant continues to pose a threat and/or continues to deteriorate mentally, then he is institutionalized at the mental facility. (The state hospital recommended Alex Ervin be institutionalized.) There is a potential for the patient to be committed up to the full range of the punishment for the crime he committed. In this case, because Alex was tried for murder, he could be committed for up to life. If officials at the hospital feel that no further treatment is needed and the patient is no longer a threat, they can recommend release from the hospital. Until then, there is a yearly review by the court while the defendant is hospitalized.

Review, educate, prepare
I encourage anyone prosecuting an insanity case to review, educate, and prepare. First, when examining the facts surrounding the crime, it’s extremely important to focus on the details as close as possible to the time the crime was committed. That includes immediately before, during, and after the offense. Details of the defendant’s actions and state of mind can be pivotal to determining insanity. For example (if prosecutors are dealing with someone with schizophrenia), was the defendant showing signs of a psychotic episode, such as talking to himself? Or did the defendant flee after committing the crime? That can be a sign that he knew he did something wrong. Little details like these can be deciding factors not only with an expert’s determination but also with the jurors.
    Jail records can be another helpful resource to determine the defendant’s mental state because they span from the offense date (usually) to the present. They can show whether the defendant is under a doctor’s care, whether the defendant has been prescribed psych meds, and whether there are any instances of the defendant pretending to act “crazy.” Any incidents of acting “crazy” can contribute to an expert’s evaluation of possible malingering that ends up helping the State’s case.
    Second, educate yourself. Do your best in the weeks and months before trial to learn about whatever mental illness is at issue. Research it to understand the signs and symptoms not only of the illness at issue but also of like illnesses. The more prosecutors are aware of the signs and symptoms, the better we are at questioning our own expert and crossing the defense expert.
    Lastly, prepare. That sounds simple and routine (and obvious), but I’m actually referring to preparation for both expert examinations. Take a thorough look at the defense expert’s report—in fact, take at least five looks. What resources did she use in coming to her determination? What mental illness did she find and why? Many times, both experts are highly qualified and highly touted experts in your community, so attacking their credentials is probably out of the question. So how do you effectively cross the defense expert? Go after the thoroughness of the expert’s report. In our case, the defense expert didn’t review the in-car videos or the Austin State Hospital records when she made her determination. Our argument was, how accurate is her diagnosis and determination if she didn’t listen to the defendant’s coherent responses (showing his solid state of mind) in the videos and if she didn’t look at the one set of records where the defendant was hospitalized? Did the defense expert take into consideration malingering? Did she review jail records? Contrast the defense expert’s conclusions with your own research on mental illness and see if there are any discrepancies or potential signs of malingering.
    Next, look at the State expert’s report. He should use at least all of the same resources that the defense expert used. In our case, our expert used many more resources. Was there a different mental illness diagnosed? When trial prepping, use the prosecution’s expert not only to help educate you on mental illnesses, but also to aid you in preparing for defense expert cross-examination. The State’s expert is there to distinguish his opinion from that of the defense expert, so have him help you attack weaknesses in the defense’s expert evaluation.
    The Alexander Ervin trial didn’t end in the way we had hoped, but after evaluating all of the materials we had, I felt we did the right thing for the right reasons. So at that point, as my director would say, “Let a jury decide.”

Endnote

1 Tex. Penal Code §8.01(a).