Evelyn Delahoz was once regarded as independent and outspoken. After she was shot in a robbery on July 3, 1995, however, she was described quite a different way.
The shooting paralyzed Delahoz from the chest down. She needed assistance with everyday activities, would not speak and had difficulty sleeping. Delahoz refused to talk about the incident and when she did, she became hysterical.
Detectives working on the case visited Delahoz three times in May, 1997. When they tried to interview her about the case, she cried and was unable to narrate the events of the shooting. Her body shook visibly. By the third visit, she was able to talk with detectives despite becoming hysterical when viewing a photo array.
Delahoz was examined by two forensic psychiatrists. Dr. Robert Berger, for the prosecution, found that Delahoz was suffering from Post-Traumatic Stress Disorder (PTSD). Her symptoms, he found, included nightmares, spontaneous bouts of crying and avoidance in speaking about the shooting. Dr. Berger noted that when he interviewed her, she was visibly upset and showed signs of motor agitation. At other times, he found, she showed signs of psychic numbing, speaking blandly about the incident. Dr. Berger stated that due to PTSD, Delahoz had been unable to assist detectives or to testify in open court between July 1995 and May 1997.
Dr. Robert Goldstein, for the defense, also examined Delahoz. He diagnosed her as suffering from an adjustment disorder with anxiety and depression. This disorder, he noted, has a six-month duration. Dr. Goldstein found that while she was depressed during the interview, Delahoz was actually making an excellent adjustment to her handicap. He did not believe she was suffering from PTSD. Both Drs. Berger and Goldstein stated that the intensity and duration of Delahoz's symptoms were the reason for their difference of opinion.
The court was left to decide whether or not Delahoz's condition was an "exceptional circumstance" for purposes of delaying the trial. If it was, the time from July 1995 to May 1997 would be excluded from speedy trial calculations.
Holding: Delahoz had indeed experienced a horrifying event that radically changed her life. While most cases dealing with emotional availability concerned abused children, the court found that Delahoz had suffered emotional and psychological trauma as severe as her younger counterparts. The time in question, therefore, was excluded from the speedy trial calculations.
Case Update: The defendant was eventually convicted. "It was a 50-50 shot," said Daniel McCarthy, Chief Trial Counsel for the Bronx County District Attorney's Office, "that it would either push her into a depression or have a beneficial effect [on the case's outcome]." Despite the risk and Delahoz's concern with seeing "the guys," McCarthy said, she was a good witness. After testifying, he added, Delahoz appeared both physically and mentally wiped out.
Defense counsel Paul Markstein said the ruling was morally right but legally wrong. Markstein said he believed that the hearing was one-sided and that the court seemed to encourage or "curry" the testimony of the prosecution's witness while trying to call into question that of the defense's expert.
Markstein said the ruling opens a Pandora's box. The PTSD exception will cause a slippery slope of people (like rape victims, for example) raising an issue of PTSD that may be unfounded. He added that the defendant was convicted due to reasons other than Delahoz's testimony.
Mack has filed an appeal, which Markstein said will not come to court for another two years.
As for the victim, McCarthy added that she is living in the Dominican Republic where her family is caring for her and she is doing well.
| Rachel Yehuda, Ph.D. Director of the Post Traumatic Stress Disorder Program Mount Sinai School of Medicine and Bronx Veteran Affairs Hospital |
Dr. Yehuda comments: Most people who have experienced a traumatic event become upset when they are reminded of the event. However, people who suffer from PTSD—about 25 percent of trauma survivors—react to reminders of a past trauma in a substantially more exaggerated way. Not only do they become extremely distressed by past memories, but they actually develop physical symptoms like palpitations, sweating, and other symptoms of panic—similar to the fear reactions that were present at the time they experienced the trauma. The physical symptoms that occur with traumatic memories can be incapacitating.
By avoiding situations or activities that remind them of the traumatic event, PTSD sufferers can minimize the intolerable physical and emotional distress that occurs with traumatic memories. People with PTSD are often unable or unwilling to participate in aspects of litigation that involve being re-exposed to traumatic material because it quite literally interferes with their attempts to reduce their posttraumatic symptoms. Forcing trauma survivors to confront reminders of traumatic events against their will, or before they are emotionally ready to tolerate exposure to such stimuli, can interfere with the natural process of recovering from trauma and prolong the victim's illness by literally overwhelming the victim with more episodes than are tolerable.
One of the hallmarks of PTSD is that the victim feels vulnerable to further victimization. If the victim feels that the court system is more concerned with the rights of the perpetrator than with the pain and trauma suffered by the victim, the PTSD sufferer is likely to feel re-victimized, which in turn, will feed his or her anxiety and promote isolation and avoidance. As a result of this sensitivity, the PTSD victim may become emotionally unavailable, and uncooperative, even before he or she is called on to actually testify about the traumatic event in court.
"Punishing the perpetrator is often done at the expense of prolonging the victim's illness. Exposure to reminders of the trauma in a non-therapeutic manner can cause the victim to exhibit behaviors that seemingly undermine the legal proceeding and weaken the attorney's ability to maximize justice (even when justice is purportedly on the victim's behalf)."
Criminal cases may be particularly difficult for a PTSD victim because a criminal conviction may not offset the pain suffered during trial. With the power to prosecute in the hands of the district attorney, a victim may feel more vulnerable than his or her fellow sufferers in civil court, where arguably the victim as plaintiff has independently chosen to seek relief.
Mack raises the difficult issue of illness exacerbation. Punishing the perpetrator is often done at the expense of prolonging the victim's illness. Exposure to reminders of the trauma in a non-therapeutic manner can cause the victim to exhibit behaviors that seemingly undermine the legal proceeding and weaken the attorney's ability to maximize justice (even when justice is purportedly on the victim's behalf). Plaintiffs in civil court may be more motivated to withstand these consequences if they may recover financial damages. The ability to sustain legal proceedings may often provide a good barometer for the severity of a plaintiff's illness.
WHY VICTIM'S TRAUMA PREVENTS PARTICIPATION IN PROSECUTION:
- Twenty-five percent react to reminders in an extremely distressed way
- Feelings court is more sensitive to rights of perpetrator
- Participation interferes with emotional recovery
- Prosecution is state controlled, not victim controlled
- No support available
To the extent that an attorney understands the nature of PTSD, he or she can be helpful by informing trauma survivors, and potential PTSD sufferers, that the process of litigation may exacerbate their PTSD. When possible, prosecutors should help victims if they wish to be excused from participation, or if they request a delay due to emotional unavailability. Indeed, PTSD usually does improve over time, and it is certainly possible that a client would be in far better emotional shape to participate in the future without jeopardizing their mental health. An attorney should encourage clients with PTSD to seek psychiatric care, or engage a victim's advocate to assist the victim with these issues. Understanding the tendency of a client to avoid reminders of the trauma will help the attorney deal with some of the inevitable frustrations and delays that these symptoms may produce in legal proceedings.
| Robert Ward, J.D. Professor New England School of Law |
Professor Ward comments: Mack tackles the thorny question: Does the government's failure, due to an adult victim's emotional condition, to prosecute within specified time limits violate the defendant's right to a speedy trial?
Every criminal defendant is guaranteed the right to a speedy trial by the Sixth Amendment to the U.S. Constitution. As added protection, many jurisdictions have enacted their own speedy trial provisions to ensure that cases will be prosecuted expeditiously. Charges not tried within the statutory time frame are dismissed. In U.S. v. Ewell, 383 U.S. 116 (1966), the U.S. Supreme Court enunciated a number of reasons as to why the right to a speedy trial is important.
First, the right prevents undue incarceration. Many pretrial detainees are not good candidates for bail because of the seriousness of the charges or the danger of flight. These defendants are locked up until trial. Second, the right is intended to minimize the embarrassment, stigma and anxiety that attaches to being publicly accused of engaging in criminal acts. Lastly, the passage of time may prevent the defendant from securing evidence, which might help to prove his or her innocence.
Jurisdictions like New York have enacted speedy trial statutes that typically establish concrete time lines (ranging from 60 to 180 days) in which the defendant must be brought to trial. The clock commences to run when the suspect is formally charged. Should the government fail to start trial in a timely manner, the suspect can ask the court to dismiss the charges.
Neither the constitutional nor statutory speedy trial right is absolute. The time limit can be expanded. Often this happens because the conduct of the defendant causes delay. Upon demonstration of uncontrollable circumstances, the government may request an extension. The government's need for an extension may arise due to the unavailability of physical evidence or a witness. In either case, it is required that the prosecution demonstrate diligence in its pursuit of the witness or evidence. Witnesses can be unavailable in fact—death, illness or out-of-state—or their testimony may be unavailable. Many times a material witness may refuse to testify by asserting their Fifth Amendment right against self-incrimination or by refusing to talk out of fear. Most cases focusing on the victim's physical unavailability have generally centered on physiological injuries.
In Mack, the court had to determine if Delahoz's inability to testify due to emotional trauma would satisfy the unavailability exception requirements. Evidence existed to prove that after her paralysis, Delahoz had extreme difficulty talking about the circumstances surrounding her injuries.
Mack's request for dismissal on the grounds of a speedy trial violation required the court to determine whether Delahoz was actually unavailable. This was not a case where delay was sought because of documented physical injuries (surgery and recuperation, for example). Nor was this a situation where the witness was a child victim of sexual abuse. While there had been cases of trial delay involving a child witness who was unable to testify within the statutory time frame, the Mack court had no similar precedent concerning adults. The court, therefore, analogized Delahoz's condition to the emotional state of a child witness/victim in a sexual assault case. In doing so, it found that Delahoz was the victim of an extremely violent act that radically altered her life. The court stopped short of specifically finding that Delahoz suffered from PTSD (but without consequence, since the record was clear that the injury made testifying at an earlier time impossible).
Mack makes sense. If emotional vulnerability is an adequate basis for postponing a trial where a child is the victim, there is no logical or legal reason why the same analysis ought not apply to a severely traumatized adult.
