Found Deceased CO - Gannon Stauch, 11, Colorado Springs, El Paso County, 27 Jan 2020 *Arrest* #49

[MsMarple]

Good Evening.

View attachment 263833 View attachment 263834

I could get lost in that chocolate - thanks!

 

[momrids6]

I hope TS insists on testifying because she will get her backside handed to her as many times as she can take it.

I believe she will demand to testify. IMO, she watched Arias, she thinks she is smarter; and will convince/win over a jury............

 

[Lovethesouth]

More doc on website bout the mental evaluation and the cost and how many hours it will take .... the Dr may take that back after meeting with her but we will see..

Colorado Judicial Branch

 

[cujenn81]

defense don't want second assessment recorded, I wonder why!!
The first competency evaluation was recorded, but the defense argued it shouldn’t have been, and they don’t want the second one recorded. Both sides have a copy of the first recording, but have been ordered not to watch it until the judge decides it’s okay.
9:46 PM · Sep 8, 2020 from Colorado Springs, CO·Twitter for iPhone











Julia Donovan KRDO

@JuliaDonovanTV
·
1h

Replying to
@JuliaDonovanTV
Both sides were told to submit briefings on why they should/shouldn’t be allowed to watch the recording, then the judge will decide.

On what grounds? I wonder... is there any valid reason why they shouldn’t record it? I can’t think of one. They certainly recorded the evaluations they conducted of James Holmes at Pueblo. Then they played the recordings for the courtroom (and I know this because I watched his trial). ’Course... that was a death penalty case and the matter of his guilt relied solely on his mental state during the commission of the crime. Still, I can’t think of one single reason why they wouldn’t record it.

 

[cujenn81]

Wow. Good research work @MoeInVA.

But that bill/law doesn't apply here, I don't believe.

In the research note (from your link) it is stated (bold added by me) "The bill does not apply to competency evaluations, which determine, prior to entering a plea in a criminal case, whether a defendant is competent to proceed."

It appears the bill only applies to "insanity" and "impaired mental condition" evals when either of those is asserted by the defense. Those are really a different kettle of fish.

One thing that makes competency evals a bit different is that the state can call for one of those (unlike the above kinds of evals.)

I'm not an attorney but calling for a competency eval could be a way for an unscrupulous DA to make a defendant answer questions. So he/she being entitled to a videotape of the eval would seem kind of screwy.
JMO

Ahhh... well that makes sense.

 

[NCWatcher]

On what grounds? I wonder... is there any valid reason why they shouldn’t record it? I can’t think of one. They certainly recorded the evaluations they conducted of James Holmes at Pueblo. Then they played the recordings for the courtroom (and I know this because I watched his trial). ’Course... that was a death penalty case and the matter of his guilt relied solely on his mental state during the commission of the crime. Still, I can’t think of one single reason why they wouldn’t record it.

I see in your next post @cujenn81 you saw my earlier post and ended up agreeing.

But I did want to make a couple more points. As I've said, I'm not an attorney so I may be using terms incorrectly. But in an insanity pleading asserted by the defense during a trial's guilt phase, the defendant's mental health is an important evidentiary matter for the finders of fact/jury to consider. It's an affirmative defense in that the defendant is in effect saying, "I did it but here's why I shouldn't be found guilty." (Or in states that have "guilty but insane" verdicts vs "not guilty by reason of insanity" verdicts here's why I'm insane.) The defendant is not saying "I didn't do it (SODDI), but just in case you think I did do it, here's why I shouldn't be found guilty."

So the "here's why" is a big deal for consideration by the jury. So being able to see or hear the defendant's mental health evals on tape makes perfect sense.

And during the punishment phase, mental health has a similar role when asserted by the defense as a mitigating factor. And in both cases, the state will attempt to portray the defense's "here's why" evidence in a different and much less favorable light to the defendant. (Usually, anyway...sometimes the state is more neutral on mitigating evidence after a guilty verdict has been reached.)

For the state to speak to the evidence in court, the DA has to see that evidence and it has to be brought into court since the DA can't testify to it.

A competency evaluation plays an entirely different role. The jury will never hear it during the trial. If the jury did, it would essentially be a matter of having forced the defendant to testify against herself. If the issue of her competency is raised by anyone (her team, the state, the judge), she doesn't have the usual right to remain silent and very likely wouldn't have been given a Miranda warning at the eval (despite being in custody) that she would have been given during police questioning. And it's not in the interest of justice and our society for defendants to clam up at competency evals. Plus, her competency at the time of trial legally has nothing to do with her mental status at the time of the crime.

I'll be very interested in the judge's ruling but I was pretty surprised the competency evaluation was recorded. Or if it was to be recorded for use by the psychiatric team during the evaluative process (not surprising that could happen), there was ever an issue of the tapes being supplied to the state. That's a frightening idea to me. It has ramifications for people's rights way beyond LS's situation.

JMO

 

[crhedBngr]

Good Morning!

 

[FLmom777]

I'm glad they found him before now. Hurricane Sally flooded that area with lots of rain. He could have washed away with the way it is.

 

[Lovethesouth]

Wow don’t know why I looked but more doc put on judicial site today (dang they work on Saturday)
Colorado Judicial Branch

 

[crhedBngr]

Good Afternoon.

 

[crhedBngr]

Good Morning!

Justice for our dear, sweet Gannon!

 

[crhedBngr]

And, donuts and coffee . . .

 

[missingm]

Wow don’t know why I looked but more doc put on judicial site today (dang they work on Saturday)
Colorado Judicial Branch

Thank you. I don't like the lawyer's argument to prevent the recording. They are saying that because recordings are required in insanity pleadings, that the absence of any requirement means that it is prohibited.

Unfortunately lawyers and some judges like this logic. It should fail.

 

[Seattle1]

On what grounds? I wonder... is there any valid reason why they shouldn’t record it? I can’t think of one. They certainly recorded the evaluations they conducted of James Holmes at Pueblo. Then they played the recordings for the courtroom (and I know this because I watched his trial). ’Course... that was a death penalty case and the matter of his guilt relied solely on his mental state during the commission of the crime. Still, I can’t think of one single reason why they wouldn’t record it.

Both prosecution and defense have copies of the recorded evaluation but the judge ordered them not to watch until he rules. Either way, I believe we will learn the legal reason for the objection to recording the evaluation.

Spencer Wilson@Spencer_WNews

A #LeteciaStauch update in court for the murder of #GannonStauch. . State Hosptial DID find her competent to stand trial. . Defense is asking for a SECOND evaluation, due in 63 days. . DA’s office expected this. No argument.
12:59 PM · Sep 8, 2020 from Colorado Springs, CO·

Spencer Wilson@Spencer_WNews

A few extra things: Defense is claiming the first competency evaluation should not have been recorded, does not want the second one recorded. Judge says he will look into it. Both prosecution and defense have copies, but were ordered not to watch until a ruling.
1:26 PM · Sep 8, 2020 from Colorado Springs, CO

ETA: I believe the statute provided by the defense makes it clear that competency exams are not required to be recorded pursuant to CRS 16-8-106(1)(b) and (108(1)(a).

Just the same, recording the competency evaluation did not appear to violate any rule other than the preference of the defendant and her counsel.

https://www.courts.state.co.us/user.../El_Paso/Stauch/Exhibit B to Pleading D19.pdf

 

[NCWatcher]

Thank you. I don't like the lawyer's argument to prevent the recording. They are saying that because recordings are required in insanity pleadings, that the absence of any requirement means that it is prohibited.

Unfortunately lawyers and some judges like this logic. It should fail.

Well, to each his/her own, but I thought the arguments in the brief were sound myself.

Normally a mental health evaluation wouldn't be recorded or if it was, the recording wouldn't be seen/heard by anyone but the evaluation team members for reasons of medical privacy. It certainly wouldn't be made available to both parties in a court case and to the judge. We have had medical privacy laws and laws governing the behavior mental health practitioners for a pretty long time (including the responsibility to safeguard a patient's privacy.)

Those laws haven't always been followed but they've existed. I don't think, as a nation of laws, we want to say merely being accused of a crime automatically removes a person's usual rights to medical privacy. Nor do we want to say medical practitioners aren't bound by the ethics of their profession in government work. (We saw the results of that thinking at places like Auschwitz and in the US, in government-funded studies like the Tuskegee Syphilis Study and the Cincinnati Radiation Experiments.)
I may be wrong, but I think it's mainly medical privacy/practice laws that normally would prohibit videotaping and sharing of the recording of a mental health eval. (Sharing the results of a court-ordered evaluation in a report is obviously not at issue.)

The relatively recent CO statute (effective January 2017) cited in the brief addresses the recording of insanity evals/diminished capacity evals and mandates an exception to those laws for the recording of two specified kinds of evals--- evals that relate directly to the elements of the crime (insanity defense/mens rea) and/or to the punishment to be levied (diminished capacity/mitigation).

So to me, it does make sense to say if that special statute--the statute initially cited by the court--- does not clearly and specifically create an exception to existing law and make X allowable, X is not allowable. Otherwise, one could argue the statute applies to just about anything court-related that might have a mental health component including things like custody hearings, workplace harrassment claims, slander/libel claims, or requests for restraining orders. But even if my interpretation is wrong, it seems the judge erred in relying on that particular statute to justify recording.

I may be in the minority on this issue on WS. But I'm really curious-- for those who think LS's competency eval should be recorded, why? It seems there have to be reasons beyond the DA wants it done.

Is it so non-experts (and the press) can second-guess whether the experts came to the correct conclusion about LS's competency? Or for the DA to try to do that if a defendant is found to be incompetent? Laws already allow a second evaluation to be requested by the judge or by either party. And laws already allow (actually require in most cases) periodic re-examination of incompetent defendants.

And if it is to allow second-guessing, then during investigations of any case that could go to court should all experts and evaluators not only have to write reports but also be required to videotape their full evaluations/examinations for use in court? Autopsies, rape exams, DNA tests at each stage start to finish, bullet comparisons (not just the final slides showing microscopic barrel and firing pin patterns but everything that was done including the loading/firing of test bullets), as well as each fingerprint lift and each luminol test at a crime scene?

One could plausibly argue those latter kinds of evals/exams/evidence collection should be videotaped in full because they relate to the crime itself and to the evaluation of the defendant's guilt, rather than to a defendant's competency for trial.

Or is it that there is something different about mental health data (vs other kinds of medical and non-medical data) where it's thought anyone can evaluate raw data? That possessing an MD with a specialty in psychiatry or a PhD in clinical psychology doesn't really mean the person has more specialized knowledge than a layperson relevant to evaluation of mental health?

Or is it so the DA can get extra information about the defendant through a "back door" to later use at trial? Or even so the DA can acquire a potentially incriminating tape for use at trial? If so, doesn't that raise potential 5th amendment issues?

When they are asserted, insanity and/or diminished capacity are issues a defense has chosen to raise as defenses to guilt and/or punishment. So evidence related to those defenses is certainly fair game for a jury to see/hear and for the DA to argue against.

Competency isn't in the same category. The issue of competency isn't a legal defense nor when it is raised, it's not always by the defense. The question of pre-trial competency legally can also be raised by the DA or the judge. And there won't be a jury to hear anything from the DA until the defendant is deemed competent, after all. So why should preparations be made to ensure the DA and/or jury can hear competency evidence?

In doing a bit of googling, I came across this interesting article related to psychiatric exams and the 5th Amendment:
Court-Ordered Psychiatric Examination Versus a Criminal Defendant's Fifth Amendment Rights

While the article focuses on a SCOTUS case that used a diminished-capacity defense due to meth intoxication at the time of the offense as well as chronic meth use (NOT pre-trial competency) in discussing its ruling the court upheld Estelle v. Smith, 451 U.S. 454 (1982). In that case, SCOTUS found (italics added by me)
"..compelled statements made to a psychiatrist for a competency evaluation cannot be used during the sentencing phase of trial to prove a defendant's future dangerousness. The Court noted that, in Estelle, the defendant did not rely on mental-state defenses or introduce psychiatric testimony."

So I'd think competency evidence here wouldn't have a role to play at trial. So far, LS has not raised a mental health defense. And if she were to do that, evidence to support that affirmative defense wouldn't come from the competency evaluation. So I really don't understand the rationale for thinking recording is justified. Maybe someone could explain? Also do we know when the judge is expected to rule?

Thanks.

JMO

 

[Niner]

snipped by me...

Also do we know when the judge is expected to rule?

from my notes from 9/17/20:

Discussed re-video recording of sanity/competency evaluations; defense requests release of video recording & court requests parties to brief the issue. Defense requests that next evaluation not be recorded; opening brief due 9/28/20; response brief due 10/16/20 & reply brief by 10/30/20.

 

[missingm]

Well, to each his/her own, but I thought the arguments in the brief were sound myself.

Normally a mental health evaluation wouldn't be recorded or if it was, the recording wouldn't be seen/heard by anyone but the evaluation team members for reasons of medical privacy. It certainly wouldn't be made available to both parties in a court case and to the judge. We have had medical privacy laws and laws governing the behavior mental health practitioners for a pretty long time (including the responsibility to safeguard a patient's privacy.)

Those laws haven't always been followed but they've existed. I don't think, as a nation of laws, we want to say merely being accused of a crime automatically removes a person's usual rights to medical privacy. Nor do we want to say medical practitioners aren't bound by the ethics of their profession in government work. (We saw the results of that thinking at places like Auschwitz and in the US, in government-funded studies like the Tuskegee Syphilis Study and the Cincinnati Radiation Experiments.)
I may be wrong, but I think it's mainly medical privacy/practice laws that normally would prohibit videotaping and sharing of the recording of a mental health eval. (Sharing the results of a court-ordered evaluation in a report is obviously not at issue.)

The relatively recent CO statute (effective January 2017) cited in the brief addresses the recording of insanity evals/diminished capacity evals and mandates an exception to those laws for the recording of two specified kinds of evals--- evals that relate directly to the elements of the crime (insanity defense/mens rea) and/or to the punishment to be levied (diminished capacity/mitigation).

So to me, it does make sense to say if that special statute--the statute initially cited by the court--- does not clearly and specifically create an exception to existing law and make X allowable, X is not allowable. Otherwise, one could argue the statute applies to just about anything court-related that might have a mental health component including things like custody hearings, workplace harrassment claims, slander/libel claims, or requests for restraining orders. But even if my interpretation is wrong, it seems the judge erred in relying on that particular statute to justify recording.

I may be in the minority on this issue on WS. But I'm really curious-- for those who think LS's competency eval should be recorded, why? It seems there have to be reasons beyond the DA wants it done.

Is it so non-experts (and the press) can second-guess whether the experts came to the correct conclusion about LS's competency? Or for the DA to try to do that if a defendant is found to be incompetent? Laws already allow a second evaluation to be requested by the judge or by either party. And laws already allow (actually require in most cases) periodic re-examination of incompetent defendants.

And if it is to allow second-guessing, then during investigations of any case that could go to court should all experts and evaluators not only have to write reports but also be required to videotape their full evaluations/examinations for use in court? Autopsies, rape exams, DNA tests at each stage start to finish, bullet comparisons (not just the final slides showing microscopic barrel and firing pin patterns but everything that was done including the loading/firing of test bullets), as well as each fingerprint lift and each luminol test at a crime scene?

One could plausibly argue those latter kinds of evals/exams/evidence collection should be videotaped in full because they relate to the crime itself and to the evaluation of the defendant's guilt, rather than to a defendant's competency for trial.

Or is it that there is something different about mental health data (vs other kinds of medical and non-medical data) where it's thought anyone can evaluate raw data? That possessing an MD with a specialty in psychiatry or a PhD in clinical psychology doesn't really mean the person has more specialized knowledge than a layperson relevant to evaluation of mental health?

Or is it so the DA can get extra information about the defendant through a "back door" to later use at trial? Or even so the DA can acquire a potentially incriminating tape for use at trial? If so, doesn't that raise potential 5th amendment issues?

When they are asserted, insanity and/or diminished capacity are issues a defense has chosen to raise as defenses to guilt and/or punishment. So evidence related to those defenses is certainly fair game for a jury to see/hear and for the DA to argue against.

Competency isn't in the same category. The issue of competency isn't a legal defense nor when it is raised, it's not always by the defense. The question of pre-trial competency legally can also be raised by the DA or the judge. And there won't be a jury to hear anything from the DA until the defendant is deemed competent, after all. So why should preparations be made to ensure the DA and/or jury can hear competency evidence?

In doing a bit of googling, I came across this interesting article related to psychiatric exams and the 5th Amendment:
Court-Ordered Psychiatric Examination Versus a Criminal Defendant's Fifth Amendment Rights

While the article focuses on a SCOTUS case that used a diminished-capacity defense due to meth intoxication at the time of the offense as well as chronic meth use (NOT pre-trial competency) in discussing its ruling the court upheld Estelle v. Smith, 451 U.S. 454 (1982). In that case, SCOTUS found (italics added by me)
"..compelled statements made to a psychiatrist for a competency evaluation cannot be used during the sentencing phase of trial to prove a defendant's future dangerousness. The Court noted that, in Estelle, the defendant did not rely on mental-state defenses or introduce psychiatric testimony."

So I'd think competency evidence here wouldn't have a role to play at trial. So far, LS has not raised a mental health defense. And if she were to do that, evidence to support that affirmative defense wouldn't come from the competency evaluation. So I really don't understand the rationale for thinking recording is justified. Maybe someone could explain? Also do we know when the judge is expected to rule?

Thanks.

JMO

But medical privacy has already been decided to not apply in these cases as the full report is released to the prosecutor in all of these court related cases. That was simply the law beforehand. However, in the case of competency as a defense and sentencing there was a bill passed a few years ago requiring video and audio recording.

Since the bill did not touch competency evals, the law (which required the report be given to the court and did not prohibit anything) should stand as it was when it was written. I don't believe a new law that doesn't touch upon another section should alter the meaning of that section.

Now does the court have the authority to order the recording? Since the defense is limiting its argument to the effect of the new law I have to assume that the recordings have always been allowed as a specific requirement. The order itself appears to have been written incorrectly.

 

[NCWatcher]

But medical privacy has already been decided to not apply in these cases as the full report is released to the prosecutor in all of these court related cases. That was simply the law beforehand. However, in the case of competency as a defense and sentencing there was a bill passed a few years ago requiring video and audio recording.

Since the bill did not touch competency evals, the law (which required the report be given to the court and did not prohibit anything) should stand as it was when it was written. I don't believe a new law that doesn't touch upon another section should alter the meaning of that section.

Now does the court have the authority to order the recording? Since the defense is limiting its argument to the effect of the new law I have to assume that the recordings have always been allowed as a specific requirement. The order itself appears to have been written incorrectly.

I'm not sure about medical privacy not applying at all in these cases. There are gradations. And there is a big difference between a summary report containing an expert's professional opinion/recommendations following an evaluation and a many hours-long videotape of an evaluation just as there would be a big difference between an autopsy report and a videotape of the actual autopsy. (And if there wasn't a difference, the DA wouldn't be asking for a recording!)

As a general rule, for example, in a psych eval, raw data and test responses typically aren't supplied in the report. Further, even in cases where a mental health evaluation can be recorded (or must be like under that new CO statute) cameras are typically turned off during adminstration of certain copyrighted tests to ensure security, integrity, and validity of the tests. While that limitation doesn't relate to medical privacy, it shows there are limits to videotaping even when videotaping is required.

I'm not sure what you mean by using "competency as a defense." The bill that was enacted in 2017 requiring recording explicitly addressed "insanity" and "diminished capacity" defense evals. And the appended research note indicated the bill doesn't apply to competency evals. As the defense brief notes though, a bill's research note from its sponsors isn't part of the statute itself. So the words used in the actual statute must apply. And the word "competency" apparently does not appear in the bill.

It sounds like you believe recording of LS's competency evaluations should be allowed from your responses. And that's fine. I do think the defense attorneys dropped the ball by not objecting sooner as it does make it appear the only issue is that the judge cited the wrong statute. I think there's a bit more to the issue.

Regardless, it's still not clear to me why people on WS think recordings should be done and delivered to all parties. For example, how do people square 5th amendment issues with required recording of a pre-trial competency eval? (Not the other types of evals the defense can choose to pursue to use during the actual case as part of the defense, but pre-trial competency-- an issue that a jury will never be called upon to judge.) That's what I don't get.

JMO

 

[MoeInVA]

I agree with @missingm - the defense argument seems weak. Yes - the wrong law was cited. But you need to explain why a recording is harmful to your client/ your client's rights. And the fact that the law was updated to require taping in some mental health evaluations but not in competency evaluations does not mean recordings are prohibited in competency evaluations. At all. Such an argument makes little sense to me.

It sounds like you believe recording of LS's competency evaluations should be allowed from your responses. And that's fine. I do think the defense attorneys dropped the ball by not objecting sooner as it does make it appear the only issue is that the judge cited the wrong statute. I think there's a bit more to the issue.

I agree that defense dropped the ball by apparently not objecting sooner - this seems like the biggest error here. Also, the judge (and/or his clerk) dropped the ball by not realizing the statute cited by the prosecution did not apply. (A mistake I made up thread and I think is easily made by a lay person like me, but we hope the lawyers and judges in the state are at least as thorough as @NCWatcher was in catching my error pretty darn quickly!)

Regardless, it's still not clear to me why people on WS think recordings should be done and delivered to all parties. For example, how do people square 5th amendment issues with required recording of a pre-trial competency eval? (Not the other types of evals the defense can choose to pursue to use during the actual case as part of the defense, but pre-trial competency-- an issue that a jury will never be called upon to judge.) That's what I don't get.

It is a complicated issue and one I had absolutely no knowledge of before it came up in this case and I started to do the research.
I think there are absolutely benefits and drawbacks to video recordings. JMO, I am not sure what's right, but since NC did a good job laying out concerns, here are a few benefits I see:
-- In some cases there are suggestions that forensic interviewers manipulated interviewees or a forensic interviewer guided toward a particular outcome. If there is a recording for all to see, a judge or attorney can see for themselves how an interview went and if they believe an interview was improper or disagree with the evaluation report, they are better empowered to dispute it if they see the video. This could really help lawyers on both sides and give the judge transparency. Shining more light on the process seems potentially helpful for the right and just outcome.
-- Many forensic interviewers face heavy case loads and a recording may be helpful for writing the report or testimony (if testimony is relevant for competency evaluators, if there are appeals down the line etc). That doesn't mean it would need to be shared with all parties though.
-- With severe backlogs of competency evaluations keeping many people in jail or hospitals longer than sometimes necessary, delaying justice, some experts have suggested virtual evaluations (via video) so more can be done more quickly. Again, it doesn't mean they would be shared.
-- It seems that there are many protections written into law about how a competency evaluation can be used and how it cannot be used. But I am not familiar enough with the process to say if those are sufficient.

Personally, I think if the defense had made a strong argument against recoding in the beginning, the judge likely would have sided with defense preference. But now they are coming in late with a pretty weak argument in my opinion so while I think defense opinion should probably rule in such a question (when recording is optional under the law), who knows?! JMO IMO

 

[crhedBngr]

Good Morning.