Tourette’s Syndrome and the Law

A comprehensive review of the neurobehavioral mechanisms underlying comorbid issues in TS is outlined. Furthermore using the Westlaw database, a comprehensive review of all cases tried in state and federal courts between 1985 and 2003 in which TS was somehow implicated was performed.

A review of the medicolegal literature yielded a paucity of studies on TS and law. As of October, 2003, TS was implicated in over 150 cases found in the Westlaw federal and state databases, 21 of which were criminal. The other cases could be categorized as civil rights, criminal, education, family, labor and social security cases. The oldest federal case reported was from 1987 while the oldest state case reported was from 1985. Of the 21 criminal cases in which TS was somehow implicated, there are 10 that are relevant to the topic of possible relationship between TS and criminal behavior (Appendix 1).^61–71

In addition to the above cases there are other relevant cases drawing attention to the issue of TS and law. In the United States v. Hall⁷² the appellate court, in dicta, provided an excellent example of when a defendant’s TS may be relevant in a criminal case. Although the appellate issue focused on when medical expert testimony is necessary, the court stated, “Expert testimony may be particularly important when the facts suggest a person is suffering from a psychological disorder. Suppose, for example, it were relevant for a jury to decide whether a person’s use of foul or abusive language was intended to harm another. Most of the time, the jury would be able to assess the circumstances without the need for expert testimony, since foul language is an unfortunately part of everyday life. In some cases, however, the individual might be suffering from Gilles de la TS, which is a rare disorder manifested by grimaces, grunts and in about half of all cases the use of foul language. A defendant wishing to explain his behavior by showing he had TS would need expert testimony on both the condition itself and his own affliction.” This type of case more than likely would be resolved at the trial level, without an appeal, but it draws attention to the need to be aware of potential and unique issues that might arise for a TS patient in the criminal justice system. Better understanding of defendants’ organically based behavior may prevent unwarranted convictions or incarceration.

“Diminished capacity” is not a widely recognized legal principle. Every criminal offense requires the defendant to have a culpable mental state. Similarly, “voluntariness” may be an issue for a defendant with TS. In the United States v. Daniel Dzialo⁷³ case, the defendant was convicted of conspiracy to distribute cocaine, but the court denied his motion to suppress evidence because the defendant claimed that the police illegally obtained his statement. The defendant alleged that he suffered from TS, causing him to involuntarily blurt out matters that were contained in his mind. The court did note that while testifying Mr. Dzialo exhibited various movement and vocal tics and repeatedly emitted animal like squeals. The court based its denial on a review of the relevant literature that failed to provide any evidence that TS might cause its victims to confess to criminal activity. The court went on to state that even if TS somehow impaired Mr. Dzialo’s cognitive or volitional capacity, this was not sufficient, by itself, to conclude that his statements were involuntary for the purposes of due process.

On April 23, 2002, the appellate court reversed and remanded People v. Michael Lempicki.⁷⁴ Defendant was charged with criminal sexual conduct. He moved to suppress his statements made at the time of his arrest and the subsequent complainant’s statements because, in additional to other reasons, he did not knowingly, intelligently and voluntarily waive his Miranda rights and these statements were from the fruits of an illegal arrest. At the hearing on his motion, the prosecution and defense stipulated that the defendant was unable to knowingly, intelligently and voluntarily waive these rights. A report by a psychologist was admitted which stated defendant was diagnosed with autism at the age of five and suffered from TS. It further indicated defendant‘s adaptive skills fell significantly below cognitive levels and defendant‘s intellectual testing placed him at a mildly impaired range of functioning. According to the report, defendant‘s word recognition was at a first grade level and is suggestible and vulnerable to manipulation by others. The trial court concluded the police engaged in misconduct by interviewing defendant after observing his mental limitations. It then granted defendant’s motion suppressing his statements given to the police officer at the time of his arrest as well as the complainant’s statements because it was derived from the defendant’s illegally obtained statement. The appellate court recognized that both prosecution and defendant agreed he could not competently waive his Miranda rights. Contrary to the trial court and agreeing with the prosecution, it held that since the police had probable cause to arrest him, defendant’s arrest was legal. The appellate court also held even though defendant’s post arrest statement was illegally obtained, the derivative testimonial evidence of the victim discovered as a result of defendant’s confession was still properly admitted into evidence.

In a federal case United States v. Santo Rigatuso,⁷⁵ the defendant was indicted on 12 counts of mail fraud and entered a plea of not guilty. The issue before the appellant court was the issue of defendant’s competency to stand trial. Defendant had been psychiatrically evaluated by a government psychiatrist and one retained by defendant. The federal standard for determining competency to stand trial prohibits trial if the court finds that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. The prosecution’s expert testified that defendant has three disorders: 1) obsessive compulsive disorder; 2) narcissistic personality disorder with histrionic features; and 3) TS. He conceded defendant suffers some degree of impairment but this did not infringe upon his ability to relate in an effective manner. Although the defendant’s expert arrived at the same disorders as the prosecution’s expert, he testified that the defendant’s behavior is marked by 18 traits. The defendant’s expert summarizes the behavior as: 1) speech problems marked by excessive expression and lacking detail; 2) preoccupation with how well he is doing; 3) cannot see the forest from the trees; and 4) stubborn insistence. Although both experts agree defendant suffers from mental disorders, they disagree on the issue of whether the disorders make defendant incompetent. The court found defendant had sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and, therefore, was competent to stand trial. The court noted it does not dispute defendant had TS, but in its observations, defendant’s tics are not remarkable in nature and degree. While he did twitch in the mouth and nose area on a regular basis, it was not the type of activity that would cause people to stare at him. The court held finding a defendant competent simply because he passes his attorney a few notes during the competency hearing, or because his nervous tics as the result of TS seems much less severe than anticipated, would border in an abuse of discretion. In the same view, finding a defendant competent on the strength of a federal judge’s “gut” reaction would also be tenuous. But it would be equally abusive to find defendant incompetent because his past and present attorneys find him frustrating to work with. Therefore, the court found defendant competent because he can assist his attorney and assist in his defense.

In another case, defendant Mr. Al Armein was convicted of stalking and 19 other various misdemeanors in Superior Court of San Diego, California. In a not officially published opinion People v. Almed Al Armein,⁷⁶ the appellate court held on May 28, 2002 the trial court did not abuse its discretion by terminating defendant’s right to self-representation. At several preliminary hearings the defendant represented himself. Because of defendant’s history of misconduct in custody the trial court admonished defendant he could maintain his pro se, self-representation, status as long as he acted appropriately. The court instructed him that if he started spitting, urinating or causing a disruption in the courtroom will result in his loss of this status. Mr. Al Armein moved to recuse the judge alleging his racial bias, conspiracy with a prior judge and the prosecution and harassment against defendant. After the defendant used profanity in his argument, the court admonished him not to use language “better suited for a gutter” and instructed defendant “You are in a courtroom. You are going to act like a lawyer.…” The defendant blamed his profanity on his purported TS, which he described as the “cursing disorder.” The prosecution opposed Mr. Al Armein’s motion arguing defendant did not raise any legal ground and his bizarre and outrageous statements raised serious doubt about his competency to represent himself. When the court denied defendant’s motion to recuse, he stated, “I renew my motion for your recusal. You are one dirty, filthy, racist pig, your Honor. I demand your recusal. And I’m sorry if my Tourette’s syndrome acted up again.” The court stated that a person with TS does not have a premonition and ordered a competency hearing. At a subsequent hearing the court found defendant competent based on a psychiatrist’s report stating, “It appears that your conduct at the last hearing was not a result of mental illness or any organic disease. So it was intentional and planned. And in addition to that, it was outrageous; it was contemptible.” The court then terminated defendant’s right to self-representation. The appellate court found the trial court did not abuse its discretion by terminating Mr. Armein’s right to self-representation.

In another opinion State v. Jason Ryan Burford.⁷⁷ the defendant appealed his conviction for murder. At trial a brief mention was made that during the search of defendant’s apartment, police found correspondence from Mensa indicating the defendant “had missed be admitted to that group of people with a high IQ because he was just one IQ short.” Defendant challenged the trial court’s decision to admit this evidence concerning enhanced intellectual capacity because he was not allowed to present evidence concerning TS, a disorder from which he suffers. The appellate court held that at trial the prosecution did not use defendant’s intellectual capacity to demonstrate his ability to plan or commit the crime. The appellate court then noted that evidence of diminished capacity, such as defendant wanted admitted concerning his TS, is expressly prohibited. The appellate court affirmed the defendant’s conviction.

Two cases, Timothy Purcell v. City of Philadelphia⁷⁸ and Timothy Purcell v. Pennsylvania Department of Corrections⁷⁹ show how a TS defendant was treated while incarcerated, either waiting for a trial or serving his sentence. In the first case, Mr. Purcell, a pretrial detainee, represented himself. He explained to the court that he suffered from TS. He complained that prison officials had failed to provide him with needed medical care. Unfortunately, without getting to the merits, the court dismissed this civil rights claim because it was overly broad. His second case more clearly highlights the misconstrued disabilities associated with TS. Mr. Purcell, a convict suffering with TS and comorbidities including ADHD, OCD, and coprolalia, had verbal and motor tics that were frequently characterized by “unpredictable attacks” of tics most severe under stress, anxiety or anger. His condition apparently impaired his ability to interact with others because his tics were often “unavoidable for him and often misunderstood and misconstrued.” It was also noted that stressful situations not only exacerbated his tics, requiring a release of built-up tics, but also led to decreased attention span and inability to concentrate. Mr. Purcell was authorized to have an “infirmary message” that permitted him to return to his cell, when needed, to release his tics and where he could be away from other inmates. Prior, Mr. Purcell had been allegedly subjected to “assaults by guards, inmates who did not understand Tourette’s.” In 1995, Mr. Purcell claimed discrimination by prison staff and submitted his written notice to the superintendent. He received a reply denying discrimination and furthermore was informed that he should “…stop using your Tourette syndrome as a convenient excuse to control your environment.” A second letter written by the superintendent stated, “We are not going to allow you to hide behind your Tourette syndrome diagnosis. You would use it to explain away your problems with the staff. You have got to learn that you are to follow lawful orders and not pick and choose using Tourette syndrome to explain your inability to do what is expected.” Later, Mr. Purcell was scheduled to have a follow up appointment with his psychiatrist and was instructed to report to the medical unit after leaving his daily Computer Aided Drafting and Design (CADD) class. After informing the prison officer that he was not well and needed to return to his cell to release built-up tics he had suppressed for 3 hours, he was again ordered to report to the medical unit. The prison officer charged him with misconduct for failing to obey an order. The prison hearing officer sentenced him to confinement to his cell for 30 days, without telephone access or group therapy sessions for 30 days. He was also permanently removed from his CADD course. Mr. Purcell’s claim of discrimination was granted and he was awarded punitive damages. The court concluded, “Much of this litigation was avoidable had the DOC realized the ADA applies to state penal institutions. Whatever the outcome of trial in this action, it should now be possible to reconcile institutional and inmate needs and avoid such litigation in the future.”

In conclusion, patients with TS may occasionally exhibit legally liable behavior, but the actual frequency of unlawful or criminal activity in TS is unknown. An understanding of the underlying neurobehavioral mechanisms that may predispose TS individuals to such socially unacceptable behavior is critical to the development of appropriate prevention, treatment strategies, and legal defense. Controlled studies designed to investigate the behavioral consequences of TS and comorbid disorders are needed. Insights into neurobehavioral mechanisms which influence problematic behaviors, and information on how such behaviors reach levels of illegality should also be pursued. Finally, programs designed to increase awareness within the professional legal community about TS and other neurobehavioral disorders are needed to provide guidance to the courts and the legal system on how to assess and respond to patients suffering from these disorders.