Papers by John Philipsborn
NACDL Champion, 2008
Part I of this article (attached), was published in the NACDL Champion in 2008, and was also circ... more Part I of this article (attached), was published in the NACDL Champion in 2008, and was also circulated during continuing education programs for criminal defense lawyers. It was aimed at providing a basic frame from which lawyers could plan their interactions with forensic mental health professionals assessing competence to stand trial.
This article focuses on “future dangerousness” as that concept has been addressed in death penalt... more This article focuses on “future dangerousness” as that concept has been addressed in death penalty litigation, with attention to recent rulings and literature addressing how the assessment of future dangerousness is conceptualized in death penalty cases. The Supreme Court has left the definition of future dangerousness to the 30 some legislatures and court systems in death penalty jurisdictions. The Court has made clear its view that the scientific and technical issues involved can be “sorted out” by jurors. The conclusion here, hardly a novel one, is that the Supreme Court’s casual treatment of future dangerousness in relation to the death penalty should be reconsidered, especially where courts allow predictions of future dangerousness by psychiatrists, psychologists, social scientists or correctional institution staffers.
Psychology, Public Policy, and Law, 2004
Based on the review of capital cases from various jurisdictions involving issues of competence to... more Based on the review of capital cases from various jurisdictions involving issues of competence to stand trial, this article examines the standards, literature, and varying practices associated with competence assessments and adjudications. The author, who is an experienced criminal defense lawyer with capital trial and postconviction litigation experience, examines the implications of disparities in the approaches and definitions used in dealing with competence assessments and suggests solutions to improve the standards of practice related to these important assessments. [I]f a man in his sound memory commits a capital offense. .. [a]nd if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence?-4 Blackstone, Commentaries 24 The Supreme Court of the United States has succinctly, and repeatedly, stated that "the criminal trial of an incompetent defendant violates due process." 1 But, here is the rub: There are remarkable variations in the ways competence is assessed and adjudicated, even from between courts within a single state. 2 The approaches used by mental health professionals and lawyers are no less variable. 3 The impact of this state of affairs on death penalty litigation cannot be doubted, if for no other reason than because a number of published (and controlling) competence-related court decisions issue from death penalty cases. John T. Philipsborn, AB, MEd, JD, a criminal defense lawyer in San Francisco, has written for, and lectured to, groups of criminal defense lawyers, particularly capital case defenders, on mental state and competence issues, and contributed to the chapter on competence and mental state experts in the California Death Penalty Manual. I thank my former colleague Kurt Lipschutz, who edited this article.
Practice guides to mental health assessments of competence to stand trial do not use the few deta... more Practice guides to mental health assessments of competence to stand trial do not use the few detailed court rulings involving extensive litigation of competency to stand trial issues as instructive guides on matters focused on by judges. Forensic examiners and lawyers may find these rulings useful sources of foundational information. This article presents an experienced criminal defense lawyer’s review of rulings that forensic examiners and lawyers should consider especially when the issue of competency to stand trial is likely to be contested and litigated.
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Papers by John Philipsborn