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Criminal cases in mentally ill languish in limbo
JEFF PORTER
DEMOCRAT-GAZETTE
Bill Penix Jr. survived Vietnam. He lived through what
his father calls his "hippie days." He beat a drinking habit.
But he lived less than a month after he became Leland
M. Irby's mental health case manager.
Penix, 39, died of multiple stab wounds during a visit
to Irby's house in Jonesboro on March 27, 1991.
Irby, charged with first-degree murder the day after Penix's
death, has never gone to trial. He has been at the Arkansas State Hospital
in Little Rock most of the time since the slaying, diagnosed as paranoid/schizophrenic.
Irby was 29 when he was charged. He turned 35 on July 14.
Irby's case and a capital murder case filed in 1988 are
the two oldest pending murder cases in Arkansas in which no judgment has
been entered, records from the state Administrative Office of the Courts
and other agencies show. Both cases involve defendants confined at the
State Hospital, kept there because they aren't mentally competent to stand
trial.
Both cases also point to a void in Arkansas law involving
mentally ill people accused of violent crimes. They enter a process that's
open-ended, and their cases can remain pending for years. There may be
no closure for the accused, for victims, for families or for the medical
and law enforcement personnel who have to grope their way through a vaguely
defined process.
Billy Burris, assistant director of the Mental Health
Division of the state Department of Human Services, said the time it takes
to bring a mentally ill defendant to competence can vary widely. Or it
might never happen. To stand trial, defendants have to be able to understand
the proceedings and work with their lawyers.
Prosecuting Attorney Brent Davis of Jonesboro wants to
try every possible avenue to take Irby to trial. He's concerned that, if
acquitted by reason of insanity, Irby could someday be released.
"The concern is that it could happen again," Davis said.
"And we don't want to be in that situation again if we could help it."
Circuit Judge David Burnett of Osceola last ruled in June
1994 that Irby was incompetent to stand trial. He ordered that Irby be
held in the State Hospital and that the case remain "pending indefinitely."
This was despite an October 1993 recommendation from a
State Hospital psychiatrist that Irby be acquitted by reason of insanity.
Dr. O. Wendall Hall wrote to Burnett that, if Irby was acquitted, the hospital
would seek to continue his care and treatment under a 1989 state law that
governs people acquitted because of insanity.
That recommendation was not considered, said Davis, because
the case never reached the point where Irby's guilt or innocence could
be determined.
State law allows judges to acquit defendants based on
reports from the State Hospital. Burnett said there's been no request for
a hearing on the issue, although the case could eventually come to that.
Irby's lawyer, Val P. Price of Jonesboro, declined to discuss details of
the case.
The victim's father, Bill Penix Sr., is a prominent Jonesboro
lawyer. He said he believes that Irby will never be fit for release. And,
if Irby is acquitted, then somehow judged fit for release years from now,
he should be released, Penix said.
"As much as I didn't want my son killed, I don't want
to sell my soul, either," he said. "Freedom is a pretty important thing."
Arkansas has rules that guarantee speedy trials for defendants,
but the rules make an exception for mental incompetence. The period while
a defendant is judged incompetent does not count against the speedy trial
deadline.
Irby's case was inadvertently dismissed in March, according
to Burnett. The judge ordered the case reinstated June 24 after a Arkansas
Democrat-Gazette inquiry brought the matter to Davis' attention. The dismissal
on the case's fifth anniversary date was part of a housecleaning involving
old cases, Burnett said.
Irby's contact with the mental health system goes back
to at least 1983, when he was in his early 20s. That year, according to
Craighead County Probate Court records, he was named in commitment proceedings.
He was named again in a case seeking guardianship in 1986 and in another
commitment case in 1989. Judge David Goodson of Paragould ordered those
records sealed the day after Irby was charged.
While Irby had a troubled past, Bill Penix Jr. had his
own set of difficulties and triumphs.
Penix became an Army corpsman and spent more than a year
in Vietnam. He went through Arkansas State University's registered nurse
program, worked a while in Little Rock, developed a drinking problem and
beat it, then went to work for the mental health center in Jonesboro. There,
his father said, he seemed to find his place.
"Billy always had some misfit he was getting a room for
or getting a prescription filled for," he said.
About 9 a.m. on March 27, 1991, Penix went to Irby's house
-- a small frame structure in a modest northwest Jonesboro neighborhood
-- to draw a blood sample to ensure that Irby was taking his prescribed
medication.
A witness told Jonesboro police that Penix had talked
about a patient who might try to kill him.
Irby's wife told police she ran out of the house to a
neighbor's. The neighbor, Carolyn Brodell, called the police, and Mrs.
Irby took the telephone to report that her husband had pulled a knife on
a man in their home.
Police arrived at Irby's house to find Penix's body on
the living room floor and Irby standing in the room with blood-stained
hands and blood-soaked clothes, according to Lt. J.R. Thomas. Irby told
the police later that he believed Penix was going to cut him to pieces
and throw the pieces into the St. Francis River.
An autopsy report indicates Penix was stabbed more than
20 times with a hunting knife that had a 5/2-inch serrated blade. Irby
told police he bought the knife about a month before the stabbing.
The day after Irby was charged, Price filed a motion to
have him evaluated at the State Hospital. On April 8 -- 12 days after the
slaying -- Dr. Michael J. Simon, a forensic psychologist with the State
Hospital, wrote that Irby was "unaware of the nature of the charges and
the proceedings taken against him."
"At the present time, it is our opinion that at the time
of the commission of the alleged offense, the defendant was not responsible
for his behavior," Simon wrote.
That opinion has not changed, more recent letters from
State Hospital staff members indicate.
On April 22, 1991, Goodson ordered Irby committed to the
State Hospital and ordered the hospital to report back within 10 months.
That report came Feb. 21, 1992, when Hall reported Irby was still unfit
to proceed.
The victim's family became an issue in April 1992. Price
asked Goodson to step aside from the case in favor of a judge who was not
"personally or professionally" close to the victim's parents. Both parents
had practiced law in Jonesboro for more than 40 years. Goodson and six
other judges recused, and the case became Burnett's.
After a May 1992 hearing, Burnett decided that Irby was
competent to stand trial. But the trial did not happen. Burnett granted
Price's request that Irby be taken off his medication -- the anti-psychotic
drug Clozaril -- while awaiting trial in the Craighead County jail.
Price cited a U.S. Supreme Court ruling that said the
state of Nevada couldn't require a defendant to take anti-psychotic medication
against his will. That defendant wanted the jury to see his "true mental
state," according to the 1992 Supreme Court ruling.
In a letter to Burnett, Davis argued that the medication
was needed for the safety of Irby and others and because Irby couldn't
be competent for trial without the medication.
Off the Clozaril, Irby again became incompetent to stand
trial, Burnett ruled.
"He was a totally different person" without the medication,
the judge said in an interview last week. Burnett sent Irby back to the
State Hospital to get back on his medication and ready for trial. That
was the only time Irby was ruled competent to stand trial.
Burnett heard from Hall at the State Hospital again in
October 1993, when the doctor recommended that the judge order Irby acquitted
by reason of insanity.
The last hearing was in May 1994. Burnett again found
Irby incompetent for trial. Simon, the State Hospital psychologist, wrote
to Burnett that Irby seemed to have little understanding of what was happening.
Simon reiterated the State Hospital's opinion that Irby was not responsible
for his actions in March 1991.
People acquitted by reason of insanity go straight to
the State Hospital. Their treatment from that point is governed by Act
911 of 1989. The law requires an evaluation by the state Department of
Human Services, then a hearing in probate court to determine whether the
person acquitted will be committed, typically to the State Hospital. The
department also can petition for conditional release of people acquitted
by reason of insanity. Such requests, if the patient is at the State Hospital,
go to Pulaski County Probate Court. About 50 people were released last
year under Act 911.
The law requires that the department monitor people so
released. The department employs 10 people as monitors for the 221 people
in the program, Burris said.
Those released are placed in the care of community mental
health centers around the state and are required to keep the department
notified of where they're living and to meet other conditions, such as
taking part in therapy or other treatment.
If those conditions aren't met, or if the patient becomes
dangerous to himself or others, the department can petition in probate
court to revoke the conditional release.
Irby's case has prompted some thought among those involved.
Davis, the prosecutor, said the legal system needs more
options in dealing with chronically mentally ill people who pose a threat.
"There is no provision for them in our current legal system,"
he said. Price mentioned a couple of problems with the way the criminal
courts deal with mentally ill people. One is a lack of space in the State
Hospital's Forensic Unit, where patients who are accused or acquitted of
crimes are kept. Both Price and Burris agreed that defendants sometimes
must wait months before getting a court-ordered evaluation at the State
Hospital. That's in spite of the fact that most pretrial psychiatric evaluations
take place at community mental health centers, Burris said. The Forensic
Unit has 60 beds, including beds reserved for patients who also have drug
or alcohol abuse problems. Burris said 147 people had inpatient evaluations
at the hospital during the fiscal year that ended June 30. The evaluations
last 15-20 days.
Price also said juries should be told what happens to
defendants who are acquitted by reason of insanity. Jury instructions given
in Arkansas courts don't include any information about the evaluations
and treatment required under the law. Price lost a state Supreme Court
case last year in which he argued that juries should be given that information.
The court ruling said the information was "inappropriate and unnecessary."
"People do not realize ... you're not just let out completely,"
Price said. "The Legislature needs to pass a bill to allow the jury to
be instructed on this."
Burnett said he recognizes the law requires that a defendant
has to be able to have criminal intent before he can be convicted. The
effect of the insanity defense, though, is "creating a special class or
status of citizen," he said, and that can lead to drawn-out criminal cases.
"And I'm not sure there is a solution to it," he added.
The mental health center that employed Penix revised its
policies for dealing with high-risk patients four months after he was killed.
Steve Johnson, assistant administrator of the mental health center, said
he wasn't sure that Penix's death was the reason for the revision or that
Irby would have been considered high-risk.
The revised policy allows a committee to make decisions
about dealing with high-risk patients. Those decisions could include having
two case managers visit a patient, or arranging for the patient to meet
the case manager at the center or at a public place. A lot of those arrangements
are up to the case manager, Johnson said.
"We have a case manager who will only meet one client
at the grocery store," he said.
If Irby is ever acquitted of the murder charge and sometime
later released from the State Hospital, he could be placed back in the
care of the center. That could force some uncomfortable decisions, Johnson
said: "Who do you assign as his case manager?"
This article was published Monday, July 22, 1996