Appendix — Torvik v. Levine

9 2-48 40)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992) | BPS™

PATRICIA TORVIK, MAY 19 19%

and ee

OFFICE OF SHE

STEPHANIE TUBBS JONES, L-_-—--——

Petitioners,

VS.

MICHAEL G. LEVINE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

LEE FISHER

Attorney General

JOHN J. GIDEON

Assistant Attorney General

COUNSEL OF RECORD

TIMOTHY J. MANGAN

Assistant Attorney General

State Office Tower, 26th Fioor

30 East Broad Street

Columbus, Ohio 43266-0410

(614) 644-7233

STEPHANIE TUBBS JONES

Cuyahoga County

Prosecuting Attorney

FRANK C. GASPER

Assistant Prosecuting Attorney

Justice Center

Courts Tower, 9th Floor

1200 Ontario Street

Cleveland, Ohio 44113

(216) 443-7800

COUNSEL FOR PETITIONERS

APPENDIX

TABLE OF CONTENTS

PAGE

Slip Opinion, Levine v. Torvik, Nos. 92-3625/3712,

United States Court of Appeals for the Sixth Circuit,

Pen U, CUE -wkiek a wee en eee eek ee eee A-1

Judgment, Levine v. Cuyahoga County Court of Common

Pleas, No. C-3-85-493, United States District Court

for the Southern District of Ohio, Western Division,

WOE TE: TE No hk ewan eee A-26

Decision, Levine v. Cuyahoga County Court of Common

Pleas, No. C-3-85-493, United States District Court

for the Southern District of Ohio, Western Division,

PE Cs oa ee ee ee eee eae A-27

Decision, Levine v. Cuyahoga County Court of Common

Pleas, No. C-3-85-493, United States District Court

for the Southern District of Ohio, Western Division,

ee Pre re nd eh Ahn ra teh A-34

Report and Recommendation, Levine v. Torvik,

No. C-3-85-493, United States Magistrate,

GUE SE © ENN AGA CORE eS a RAE eee aA ees A-38

Entry, State of Ohio v. Michael G. Levine, No. 90-415,

Supreme Court of Ohio, June 13,1990 .......... A-56

Slip Opinion, State of Ohio v. Michaei G. Levine,

No. 56203, Court of Appeals of Cuyahoga County,

Eighth Appellate District, January 25,1990 ....... A-57

Judgment, State of Ohio v. Michael G. Levine,

No. CR-047714, Court of Common Pleas of

Cuyahoga County, July 11,1988 ................ A-81

Bench Opinion, State of Ohio v. Michael G. Levine,

No. CR-047714, Court of Common Pleas of

Cuyahoga County, July 11,1988 ...........0.... A-82

Order, Levine v. Torvik, Nos. 92-3625/ 3712,

United States Court of Appeals for the

Sith Corcult, Apt 46, TGS 6 ids sea cue eeeeae A-86

Ohio Revised Code §5122.01(A) and (B) ........... A-88

Ohio Revised Code §5122.15(H) 2... ee ee ee eee A-88

Nos. 92-3625/3712

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MICHAEL G. LEVINE, )

Petitioner-Appellee, )

V. ) ON APPEAL from the

United States District

PATRICIA TORVIK, ) Court for the Southern

District of Ohio

Respondent-Appellant, )

STEPHANIE TUBBS JONES, _ )

Intervenor-Appellant. )

Decided and Filed March 1, 1993

Before: GUY and RYAN, Circuit Judges; and CHURCHILL,

Senior District Judge.*

RYAN, Circuit Judge. Respondent Patricia Torvik,

Superintendent of the Dayton, Ohio, Forensic Center, and

intervenor Stephanie Tubbs Jones, the Cuyahoga County,

Ohio, Prosecuting Attorney, appeal from the district court's

decision to issue a conditional writ of habeas corpus

directing that Michael G. Levine be released from the custody

of the forensic center. They also appeal from the district

court's order staying future state court proceedings in

connection with Levine. The two appeals, which have been

consolidated, present a number of issues. For the reasons

* The Honorable James P. Churchill, Senior United States District Judge

for the Eastern District of Michigan. sitting by designation

A-2

discussed below, however, we conclude that both the

conditional writ of habeas corpus and the stay were properly

entered, and we shall, therefore, affirm.'

On September 26, 1979, Michael Levine was found not

guilty by reason of insanity, following an Ohio state court

prosecution, on charges of aggravated burglary, extortion,

kidnapping, attempted murder, and aggravated murder. He

was committed to the custody of the Ohio Department of

Mental Health.

Levine has a history of mental illness dating back to 1966.

At that time, he was arrested for forging checks and briefly

admitted to a psychiatric hospital, where he was diagnosed

as ‘schizophrenic reaction, schizo-affective type, associated

with depression, severe, improved.” He began seeing a

psychiatrist, Dr. Levendula, in 1973, and at one point was

rehospitalized. He was diagnosed then as ‘manic depressive

psychosis, explosive personality.” During his psychotherapy

with Dr. Levendula, Levine threatened to kill the doctor and

his family, and told the doctor that he desired to kil! an

unnamed 25-year-old woman. Nonetheless, in 1979, about

a week prior to the crimes for which Levine is now committed,

Dr. Levendula was becoming convinced that he had achieved

a “therapeutic triumph” because Levine's condition seemed

so much improved. Levine was behaving very calmly in

therapy, and had agreed to grant his then-wife a separaticn.

Unfortunately, Dr. Levendula’s “therapeutic triumph” was

illusory. Levine and an accomplice kidnapped Julius and

Georgene Kravitz, a prominent Cleveland couple, with the

intention of extorting money for a business venture. During

the course of the crime, Levine shot both of the Kravitzes;

Julius Kravitz died, while Georgene Kravitz managed to

escape.

' We shall, for the sake of convenience, refer to the Respondent and

the intervenor, collectively, as “Ohio” or “the state.”

A-3

A bench trial was held before the Cuyahoga County Court

of Common Pleas, where Levine was found not guilty by

reason of insanity. The expert witness testimony at trial

focused on Levine's lack of remorse for his crimes, and

emphasized that Levine would function much better in an

institutionalized, structured surrounding than in the

unstructured “real world.” After trial, Levine was hospitalized.

During this period, he wrote a series of letters to his now

ex-wife containing vicious threats of harm, including thinly

disguised threats to kill her. The last of these letters was

written in February 1980.

During his commitment, Levine received medication only

briefly; he has been without medication for almost twelve

years. He has also been largely without psychotherapy

during this time.

Ohio statutes provide that a person found not guilty by

reason of insanity is entitled to periodic hearings:

The court shall hold a full hearing on applications

for continued commitment at the expiration of the

first ninety-day period and at least every two years

after the expiration of the first ninety-day period

. : If the court, after a hearing for continued

commitment finds clear and convincing evidence

that the respondent is a mentally ili person subject

to hospitalization by court order, the court may

order continued commitment....

Ohio Rev. Code Ann. §5122.15(H) (emphasis added). Ohio

statutes define ‘mental illness” and “mentally i!! person

subject to hospitalization” as follows:

“Mental illness” means a substantia! disorder of

thought, mood, perception, orientation, or memory

that grossly impairs judgment, behavior, capacity

to recognize reality, or ability to meet the ordinary

demands Of life.

Ohio Rev. Code Ann. §5122.01(A).

A-4

“Mentally ill person subject to hospitalization by

court order’ means a mentally ill person who,

because of his illness... [rlepresents a substantial

risk of physical harm to others as manifested by

evidence of recent homicidal or other violent

behavior, evidence of recent threats that place

another in reasonable fear of violent behavior and

serious physical harm, or other evidence of present

dangerousness....

Ohio Rev. Code Ann. §5122.01(B) (emphases added). In other

words, a person must be both mentally ill and presently

dangerous in order to be hospitalized.

Levine underwent commitment hearings to assess his

condition in November 1979; Apri! 1980; November 1980; and

January and February 1982. Each time, his request for release

was denied, but Levine did not appeal. In September 1983,

the Dayton Mental Health Center (DMHC) notified the state

trial court that Levine no longer required hospitalization. A

hearing was held in December 1983. The presiding judge

concluded that Levine was still mentally ill, although in

remission, and subject to hospitalization under Ohio law

Levine appealed the trial court's decision. The Onio Court

of Appeals affirmed in October 1984. Levine then appealed

to the Ohio Supreme Court, which, in December 1984.

dismissed the appeal! for lack of a substantia! constitutional!

question.

Levine filed a petition for writ of habeas corpus in federal

court in June 1985. While the petition was pending, Levine

waived the periodic state hearings to which he was entitled.

A magistrate judge concluded in 1988 that there had been

sufficient evidence presented for the state trial court to

conclude that Levine was a mentally ill person subject to

hospitalization by court order, but that there nad not been

enough evidence to order him confined to a maximum

security facility. The magistrate judge's decision was

appealed to this court and we vacated his decision on the

grounds that the magistrate judge nad been without

jurisdiction because consent was improperly urged upon

A-5

the parties under 28 U.S.C. 8636(c). On remand in July 1988,

the magistrate judge recommended that the district court

adopt the magistrate's earlier decision as the district court's

findings of fact and conclusions of law.

A week after that recommendation, Levine's counse

informed the district court that the state trial court had

conducted a new commitment hearing at the beginning of

July 1988, and had again recommitted Levine to the forensic

center. The magistrate judge therefore withdrew his earlier

recommendation, and eventually concluded that tne

constitutional issues presented by the 1983 commitment had

been mooted by the 1988 recommitment

Levine began again with the process of exhausting nis

State court remedies, now as to the 1988 recommitment. The

trial court's decision was affirmed in the state court of

appeals, and the Ohio Supreme Court again denied Levine's

motion to appeal. In June 1990. following Levine's new

petition in the district court for a writ of habeas corpus, the

magistrate judge recommended that the district court issue

a writ ordering a conditional discharge, this time finding tnat

there was insufficient evidence in 1988 to conclude tnat

Levine was mentally i!!. He reasoned as follows

[In 1988,] all of the mental health professionals

including the treating professionals, conciuded Mr

Levine was not presently mentally il. For this Court

to conclude, in the face of that testimony, that there

is evidence from which a reasonable trier of fact

could conclude to a Clear and convincing degree

that Mr. Levine is mentally ii! and subject to

hospitalization by court order would be to deny

any impact to the Due Process Clause in this case.

The district court “concurf{red] with the Magistrate Judge's

conclusion that Levine is being confined in violation of the

Constitution of the United States, and that he shouid be

A-6

granted an immediate release subject to [certain] conditions

...2 In an order dated June 25, 1992, the district court issued

its final decision: that Levine be released within 96 hours.

Upon motion by the state of Ohio, this court granted a stay

of the writ.

The district court then learned that the state trial court

had again directed, without giving notice to Levine or his

attorney, that a new confinement hearing be held. In order

that the issues surrounding the 1988 confinement hearing

not be mooted (as had happened with the 1983 issues), the

district court stayed the state court proceedings, pending

resolution of this appeal.

The issues raised in this appeal can be divided into two

categories. The first assignments of error we discuss

challenge the district court's grant of habeas relief based

on Levine’s due process claim, while the remainder are

2 The conditions, recommended by Dr. Rizk, a consulting psychiatrist for

the Cuyahoga County Court of Common Pleas, as stated by the district

court, are:

1. The defendant should reside in a different county, away

from the victim's family;

2. Follow-up once every two weeks at a community mental

health center or by a private psychiatrist or psychologist:

3. The court must be notified within 24 hours in case of the

defendant's failure to attend his appointments without an

excuse;

4. The community mental health center, private psychiatrist

or psychologist should be required to write to the court

progress reports about the defendant's condition once every

six months;

5. Incase of any signs of deterioration in the mental condition

of the defendant, immediate rehospitalization should be

pursued and the court informed within 24 hours.

A-7

concerned with the district court's stay of the state court

proceedings.

I.

A.

The state contends that the district court erred in

concluding that there was insufficient evidence adduced at

the 1988 hearing to support Levine’s continued commitment.’

This court applies a de novo standard of review to the district

court's decision in a habeas corpus case. United States v.

Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam). We

review the factual findings of the district court under a clearly

erroneous standard, Bose Corp v. Consumers Union of United

States Inc., 466 U.S. 485, 497-501 (1984), and give complete

deference to state court findings unless they are clearly

erroneous. Sumner v. Mata, 455 U.S. 591, 597 (1982) (per

Curiam).

Levine's constitutiona! claim is that although there was

no detect in Ohio's procedures for determining whether he

should be released, the trial court failed to properly apply

those procedures. As a result, Levine argues, he was

recommitted despite a complete absence of evidence

justifying recommital, and he was therefore denied due

process of !aw as guaranteed by the Fourteenth Amendment.

This type of due process claim was considered by the

Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979):

We reject the state's argument that since the district court's release

order was only conditional, the district judge must have considered

Levine to be mentally ill, because under Ohio law, a conditional release

order requires a finding of mental illness. (Otherwise, the committed

individual is released unconditionally.) However, the fact that the district

court included conditions for Levine's release in its grant of haveas

relief does not mean that it was acting pursuant to Ohio law, and finding

Levine to be mentally ill. Instead, the district court was imposing

conditions pursuant to its broad discretion to fashion a habeas writ.

Hilton v. Braunskill, 481 U.S. 770 (1987). Furthermore, the district court

explicitly found that Levine was not mentally ill. The government's

argument is therefore without merit.

A-8

[A] person cannot incur the loss of liberty for

an offense without notice and a meaningful

opportunity to defend. ... [T]he most elemental

of due process rights [is] freedom from a wholly

arbitrary deprivation of liberty.

ld. at 314 (citation omitted). Jackson stated the constitutional

standard for reviewing the sufficiency of the evidence: “[T]he

relevant question is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements’ of the

relevant determination to be made. /d. at 319.

Foucha v. Louisiana, _— U.S. _. , 112 S. Ct. 1780 (1992),

is the most recent Supreme Court statement concerning the

kind of determination to be made here. There, the Court

held that an insanity acquittee ‘may be held as long as he

is both mentally i!l and dangerous, but no longer.” /d. at 1784.

The potential for future danger cannot justify indefinite

coinmitment in the case of an insanity acquittee who is no

longer mentally ill, any more than the possibility that a

convicted criminal will commit future crimes can alone justify

his confinement. /d. at 1784 n.4. Ohio law, by defining a

mentally ill person subject to hospitalization as one who is

mentally ill and who presents a danger to himself or others,

is in accord with this constitutional standard.

In re Burton, 11 Ohio St. 3d 147 (1984), is the leading Ohio

case interpreting the state’s law on the subject. The

defendant there was a mental! patient whose mental illness

was in a state of remission as a result of psychotropic

medicine. The court interpreted Ohio statutes regarding

court-ordered hospitalization to mean that

4

As discussed below, thereis a controversy over the appropriate burden

of proof to be applied here. Jackson, which considered a criminal

conviction, applied a “beyond a reasonable doubt” standard, which

neither party suggests should be used. Otherwise, though, the reasoning

of Jackson applies here, although the adjudication at issue here is not

a criminal prosecution.

a person subject to hospitalization must represent

a substantial risk of physical harm to himself or

other members of society at the time of the

commitment hearing. The individual's present

mental state must be evaluated upon current or

recent behavior as well as prior dangerous

propensities of the person. The General Assembly

has... provided the trial court with broad discretion

to review the individual's past history in order to

make a well-informed determination of his present

mental condition.

Id. at 149 (emphasis added). A court should apply a “totality

of the circumstances” test in making this determination,

considering:

(1) whether, in the court's view, the individual

currently represents a substantial risk of physical

harm to himself or other members of society; (2)

psychiatric and medical testimony as to the present

mental and physical condition of the alleged

incompetent; (3) whether the person has insight

into his condition so that he will continue treatment

as prescribed or seek professional! assistance if

needed; (4) the grounds upon which the state relies

for the proposed commitment; (5) any past history

which is relevant to establish the individual's

degree of conformity to the laws, rules, regulations

and values of society; and (6) if there is evidence

that the person’s mental! illness is in a state of

remission, the court must also consider the

medically suggested cause and degree of the

remission and the probability that the individual

will continue treatment to maintain the remissive

state of his illness should he be released from

commitment. The trial court is not limited to

considering any of the above factors. The court

may, in its discretion, consider other relevant

evidence....

Id. at 149-50.

A-10

The state contends that Dr. Rizk testified that Levine is

mentally ill. We disagree with this narrow interpretation of

his testimony. He in fact testified that Levine showed no signs

or symptoms of mental illness:

[Counsel for the state]: Now, in your field, when

you put a label of, and maybe for want of a better

word, label of remission on an individual, that sti!

notes that they still have that condition; correct,

whether it is active or inactive or in remission?

[Dr. Rizk]: In remission means, to me, that

somebody suffered from an active illness at one

point in time, and at the present time, he is not

showing the signs and symptoms of that specific

iliIness, or showing very little of It.

[Counsel for the state]: Doctor, after you examined

Mr. Levine, did you have an opinion as to his current

—__._—s- mental status?

[Dr. Rizk]: Yes, | did....What! wrote in my report

actually is that, major affective disorder, bipolar,

depressed, in full remission.

(Emphasis added). Furthermore, a// eleven expert witnesses

testified that Levine was not currently displaying any signs

or symptoms of active mental illness and that he had shown

no such signs since at least 1982. We note that, according

to Dr. Rizk, this diagnosis of a mood disorder in full remission

will remain with Levine for life; in other words, no matter

how well he behaves in the future, no behavior can ever

produce a more favorable diagnosis.

The state also contends that the testimony of Drs. Rizk,

Pasha, and Bertschingez supports the conclusion that Levine

was dangerous. Again, we disagree. All of these expert

witnesses were of the opinion that Levine should not be

hospitalized, but they were reluctant to predict his future

dangerousness because, in their view, such predictions are

unreliable. However, none of them were of the opinion,

implicitly or explicitly, that Levine was dangerous in 1988.

Further, there is nothing in the hearing record to indicate

that Levine has made any recent threats or engaged in any

recent violent behavior, in fact, the uncontradicted testimony

was that Levine has shown no signs of dangerousness since

1982.

In finding, in 1988, that Levine was mentally ill and

dangerous, the state court first focused on testimony the

court had received at Levine's criminal trial in 1979: “[t]he

evidence was abundantly clear that [Levine] suffered chronic

illness [schizophrenia] for which there was-no cure.” Stating

that “past history is crucial,” the judge went on to reject

the testimony of each of the expert witnesses, concluding

as follows:

Given the fact that psychosis is an illness for which

there is no known cure, | find that the perhaps

wel! meaning doctora! diagnosis of remission and

recommendation of conditional release to be in

error. Or, stated in a more legal sense, the testimony

not to be credible.

It is true that, under Ohio standards as set out in /n re

Burton, itis perfectly permissible for the trial court to consider

evidence of past behavior in assessing an insanity acquittee's

present mental status. However, as this principle was applied

by the state of Ohio, it amounts to an irrebuttable presumption

that Levine can never be released. In applying Ohio's

definition of “mental illness’ to any particular case, medical

testimony is obviously of singular importance, because it

is ordinarily through the testimony of medical professionals

that a court can best understand whether an individual has

the “substantial disorder of thought” that is required for a

finding of ‘mental illness” under Ohio Rev. Code Ann.

§5122.01(A). This is not to say that nonmedical testimony

is worthless; but for the trial court to disregard a// the 1988

medicai testimony as unworthy of credence in favor of the

lay testimony concerning Levine’s past heinous acts, and

thereby to conclude he is still mentally ill, does not meet

Ohio's statutory standards as explained by Ohio's courts.

lf it were sufficient for the state merely to demonstrate that

Levine was mentally ill at the time he was found not guilty

by reason of insanity, it would be pointless for the state to

mandate hearings at two-year intervals to determine whether

a committed individual should be released.

We conclude that no evidence was adduced in the 1988

hearings that would allow a rational trier of fact to find the

elements of mental! illness and dangerousness as defined

in Ohio statutes and case law. We see no alternative but

to conclude that there was constitutionally insufficient

evidence to support the state court's recommitment of Levine.

The state suggests that in reaching this same conclusion,

the district court improperly failed to accord adequate

deference to earlier state court findings of fact. Despite de

novo review of the petition for habeas corpus, this court

does give complete deference to evidence-supported state

court findings. Lundy v. Campbell, 888 F.2d 467, 469-70 (6th

Cir. 1989), cert. denied, 495 U.S. 950 (1990). The district court,

and this court, should presume that state trial or appellate

court findings of fact are correct unless it is shown by

convincing evidence that they are not. See Sumner, 455 U.S.

at 597; see also 28 U.S.C. §2254(d). However, this presumption

applies only to basic, primary or historical facts, and not

to mixed questions of law and fact. See Smith v. Jago, 888

F.2d 399, 407-08 (6th Cir. 1989), cert. denied, 495 U.S. 961

(1990).

A number of courts have held that the question of mental!

competency is a mixed question of law and fact. See, e.g.,

Dixon v. Jacobs, 427 F.2d 589, 595 n.17 (D.C. Cir. 1970); see

also Drope v. Missouri, 420 U.S. 162, 174-75 (1975); Card

v. Singletary, 963 F.2d 1440, 1443-44 (11th Cir. 1992). We

agree. Because the state court’s determination that Levine

was mentally ill and dangerous was a mixed question of

fact and law, it is not entitled to section 2254(d)'s presumption

of correctness. Moreover, in concluding that there is

insufficient evidence to justify the recommittal of Levine,

A-13

neither the district court nor this court has improperly

rejected any findings of fact by the state court. We have

not substituted our judgment on the credibility of the

witnesses, or reweighed the evidence, or favored one

expert's testimony over another in reaching the conclusion

we do — because there is simply no evidence whatever

in the record to support the state court's conclusion in 1988

that Levine was mentally ill and dangerous. The state judge

based his conclusion that Levine was mentally ill and

dangerous on the fact that he was once diagnosed as having

schizophrenia, an incurable disease. His decision that the

expert testimony was not “credible” was nota true credibility

determination. Instead, it was the out-and-out rejection of

unanimous expert opinion solely because it conflicted with

‘the court's long held opinion that Levine was mentally il!

and that “psychosis is an illness for which there is no known

cure.” A determination of that kind is not entitled to a

presumption of correctness.

C.

There is a question of the appropriate burden of proof

to be applied by the federal court upon a habeas hearing,

in the determination that the evidence is insufficient to

Levine's recommitment. Ohio statutes provide that once a

person is found not guilty by reason of insanity and is

committed to an institution, that person is entitled to biannual

hearings at which it must be shown by clear and convincing

evidence that he is still mentally ill and subject to

hospitalization by court order. Ohio Rev. Code Ann.

§5122.15(H). The district court concluded that it should apply

the clear and convincing standard mandated by state law

in determining whether the state court's finding comported

with due process, but noted that the standard was really

a moot question since, by any standard, there would be

insufficient evidence.

The state claims that Jones v. United States, 463 U.S. 354

(1983), mandates that this court review the evidence using

a preponderance of the evidence standard. In Jones, the

Supreme Court held that the standards of the District of

A-14

Columbia Code relating to the initial commitment of a person

found not guilty by reason of insanity were constitutionaily

permissible. It concluded that the “preponderance of the

evidence standard comports with due process for

commitment of insanity acquittees.” /d. at 368.

We believe, however, that Jones does not prescribe the

standard for our case. The Jones Court alluded to the wide

variety of approaches in the various states for committing

insantiy acquittees; some jurisdictions provide automatic

commitment, while others use civil commitment procedures,

while others have unique standards. /d. at 370 n.20. The

Court did not indicate that any of these procedures were

constitutionally suspect, and did not adopt any particular

commitment procedures or burden of proof as being the

constitutionally-mandated measure. Further, Jones spoke

only to the initial commitment following acquittal, as opposed

to release following commitment. It is this latter circumstance

that is at issue in this case, and the Jones court specifically

declined “to decide whether the District's procedures for

release are constitutional.” /d. at 363 n.11. Jones does not,

therefore, provide clear authority for what the constitutionally

required burden of proof is in a habeas proceeding of this

nature.*

Nonetheless, we also disagree with the district court's

conclusion that the state of Ohio created a liberty interest

assuring that insanity acquittees may not be recommitted

on a showing of less than clear and convincing evidence.

A state cannot be said to have a federal due process

obligation to follow all of its procedures; such a system would

result in the constitutionalizing of every state rule, and would

not be administrable. See Engle v. Isaac, 456 U.S. 107 (1982).

In a habeas case, the federal court inquiry should be whether

the state’s procedures have passed federal constitutional

5

We note, moreover, what the parties to this appeal apparently failed

to recognize: in Jones, the burden was on the committed individual

to prove sanity, rather than on the state to prove mental iliness. No

one has suggested here that the burden should be on anyone other

than the state.

A-15

muster, not whether there was an error in the state's applying

its own law. In other words, the constitutional issue is whether

the state court's application of its constitutionally adequate

Standard was so erroneous as to raise an independent due

process violation. See Maglaya v. Buckhoe, 515 F.2d 265.

268 (6th Cir. 1975). Therefore, the state procedural “clear

and convincing” standard is not constitutionally mandated

for Levine's case.

We conclude that this court should review the evidence

presented to the state court at the 1988 hearing to determine

whether any rational trier of fact could have found by a

preponderance of the evidence that Levine was mentally

ill and dangerous.* As we have already made clear, the state

failed to meet this standard, and Levine's recommitment is

not supported by sufficient evidence.

D.

The next question is whether Levine waived habeas corpus

review of his constitutional claim of insufficient evidence by

failing to fairly present the claim to the state courts. In

petitioning for a writ of habeas corpus under 28 U.S.C. §2254,

a state prisoner must first fairly present his claim to the state

courts to provide them with an opportunity to remedy any

constitutional infirmity in the conviction. Riggins v. VcMackin,

935 F.2d 790, 792-93 (6th Cir. 1991). If a petitioner fails to

present his claims to the state courts and is thus barred

from pursuing relief in those courts, he wil! not be allowed

to present his claims in federal court unless he can show

cause to excuse his failure and actual prejudice to his defense

at trial or on appeal. Wainwright v. Sykes, 433 U.S. 72, 77-

91 (1977). A petitioner “fairly presents” his claim to the state

courts by citing a provision of the Constitution, federal

decisions using constitutional analysis, or state decisions

We emphasize, however, that we do not reach this conclusion because

of Jones, which neither purports to set a constitutionally required

Standard, nor speaks to the precise set of circumstances before us

employing constitutional analysis in similar fact patterns.

Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987).

The state contends that Levine did not raise his

constitutional claim at the state court level, and that he was

therefore barred from presenting it at the appellate level.

In Ohio, an appellate court may, in its discretion, refuse to

consider a claim that might have been called to the trial

court's attention but was not raised until the appeal. See

State v. 1981 Dodge Ram Van, 36 Ohio St. 3d 168, 170 (1988).

An alleged procedural default becomes a bar to habeas

corpus review of a federal claim only if the last state court

to review the claim has clearly and expressly based its

decision on the claimed procedural default. The procedural

default must be independent of the federal question and

adequate on its own to support the state’s decision. Coleman

v. Thompson, —_— U.S. —_— , 111 S. Ct. 2546, 2557 (1991).

There is a presumption that there is no procedural default

(and thus no adequate and independent state ground for

a state court decision) if the decision “fairly appears to rest

primarily on federal law, or to be interwoven with the federal!

law, and when the adequacy and independence of [the] state

law ground is not clear from the face of the opinion.” /d.

(Citation omitted).

Our review of the record reveals that Levine did present

his constitutional claim to the state appeliate court, and that

the court of appeals disposed of his claim on the merits.

Levine's first assignment of error to the court of appeals

was that the state trial court judgment was based on

insufficient evidence under state law. The second

assignment of error was thatif, in the alternative, the evidence

was sufficient under Ohio law, then Ohio law must be

unconstitutional. Within that assignment of error, the

petitioner raised the due process argument raised here: that

due process prohibits confinement of a person found not

guilty by reason of insanity when that person is no longer

mentally ill and dangerous, and that the evidence before

the trial court could not have rationally led it to that

conclusion. Therefore, Levine framed the sufficiency of the

evidence argument as a constitutional issue.

A-17

We must next consider, then, whether the state court of

appeals disposed of the constitutional claim solely on the

grounds of the state procedural bar.’ If it did, federal habeas

review would be barred. We are satisfied, however, that the

state court of appeals disposed of the petitioner's federa!

constitutional claims substantively, based on federal!

constitutional law, by reasoning as follows:

The defendant, in his second assignment of error,

raises various claims challenging the

constitutionality of Ohio’s statutory commitment

scheme as applied in this case. Our review of the

record dicloses that the defendant has waived

these claims since he failed to raise them with the

trial court.... Furthermore, this court in substance

addressed and overruled these claims in the

defendant's prior appeal... . Accordingly, we

overrule the defendant’ second assignment of

error and affirm his recommitment to the Dayton

Mental Health Center.

(Citations omitted) (emphasis added.)® The “furthermore”

language employed by the court makes it clear that the state

procedural bar was not the “independent state ground” for

the holding, but rather, that the court was relying on the

rationale it employed in 1983 for its dismissal of Levine's

second assignment of error in 1988. And the 1983 decision

unquestionably rested on federal constitutional law, citing

the Fourteenth Amendment; Jones, 463 U.S. at 354; and

Robinson v. California, 370 U.S. 660 (1962), in support of

the court's reasoning.

We note that, as Levine's counsel pointed out in oral argument, the

state trial court was necessarily aware of these constitutional questions

at the time of the 1988 state hearing, because Levine had long before

filed a petition for habeas review of the 1983 hearings, in which the

same questions were raised.

The state court of appeals decision is the last state court judgment

for these purposes, because the state supreme court's decision was

not explained. See Yist v. Nunnemaker, 111 S. Ct. 2590, 2594 (1991).

A-18

We conclude that the constitutional insufficiency of the

evidence claim made in Levine's habeas petition is a claim

that was fairly presented to the state court. This court is,

therefore, not barred from considering his constitutional

claim.°

| E.

Finally, the state protests the district court's decision to

expand the record before it to include evidence of the 1992

psychiatric evaluations of Levine which, of course, was not

presented to the state courts. The state contends that the

expansion was not proper under Rule 7 of the Rules

Governing Section 2254 Cases in the United States District

Courts, because the materials admitted were not relevant

to the claim raised by his habeas corpus petition: whether

there was constitutionally sufficient evidence presented at

the 1988 hearing to recommit Levine. Moreover, the state

contends that even if the evidence were relevant, the district

court's decision to consider it was made too quickly, without

giving the state an opportunity to respond.

Rule 7 reads in relevant part:

(a) Direction for expansion. If the petition is not

dismissed summarily the judge may direct that the

record be expanded by the parties by inclusion

of additional materials relevant to the determination

of the merits of the petition.

% We note. moreover, that even were we to conclude that Levine failed

to fairly present his constitutional claim to the state court, we would

be able to consider it now by applying the doctrine of Murray v. Carrier,

477 US. 478, 496 (1986). There, it was established that in the

extraordinary case “where a constitutional violation has probably

resulted in the conviction of one who is actually innocent,” a court

may consider the claim even absent a showing of cause and prejudice.

ld. This rare exception could be applied here, where the constitutional

violation demonstrated by Levine has resulted in the confinement of

one who is actually not mentally ill.

eV

A-19

Rule 7, 18 U.S.C. foil. §2254. This court reviews a district

court's decision to expand the record under Rule 7 for an

abuse of discretion. Ford v. Seabold, 841 F.2d 677, 691 (6th

Cir. 1988), cert. denied, 488 U.S. 928 (1988).

With regard to Levine’s motion to expand the record, the

district court stated:

This Court notes that the Magistrate Judge's Report

and Recommendations are based upon the

medical testimony elicited at the July, 1988,

confinement hearing, held almost four years ago.

However, Levine has filed a Motion to Supplement

the Record (Doc. #140), seeking to have this Court

consider his latest psychological evaluations. Since

itis imperative that this Court's decision be based

upon the most up-to-date medical evidence

- available, Levine’s Motion to Supplement the

record is sustained.

The district court then devoted two paragraphs to

considering the new information, which was substantially

the same as the 1988 information. It concluded by adopting

the Report and Recommendations of the magistrate judge

in its entirety which, as the district court explicitly noted,

was issued before the record was expanded to include the

1992 information. The court then entered judgment for Levine

on his petition for writ of habeas corpus.

We agree with the state that the 1992 evidence had no

relevance to the issues before the district court. Nonetheless,

it is evident from the district court's judgment that to the

extent the court took that information into account in

rendering its decision, the effect was merely cumulative. It

is quite apparent that there is more than an ample basis

for the district court's judgment. Thus, although it may have

been an abuse of discretion to admit this evidence, the error

was harmless.

A-20

ll.

A.

The state argues that the district court had no authority

to grant a stay of state court proceedings simply in order

to prevent the 1988 commitment order from becoming moot.

We disagree. Under the Federal Habeas Corpus Act, the

district court has authority to grant a stay of all state court

proceedings that have tne effect of defeating or impairing

the federal court's jurisdiction. The Act provides that

[a] justice or judge of the United States before

whom a habeas corpus proceeding is pending,

may, before final judgment or after final judgment |

of discharge, or pending appeal, stay any

proceeding against the person detained in any

State court or by or under the authority of any State

for any matter involved in the habeas corpus

proceedings.

28 U.S.C. §2251."

In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court

emphasized “the fundamental policy against federal

interference with state criminal prosecutions.” /d. at 46. As

explained in Perez v. Ledesmam 401 U.S. 82 (1971),

fo]nly in cases of proven harassment or

prosecutions undertaken by state officials in bad

faith without hope of obtaining a valid conviction

and perhaps in other extraordinary circumstances

1

The state also appears to suggest that the government's appeal, on

June 26, of th district court's issuance of the writ of habeas corpus

served to divest the district court of jurisdiction. We note, however, that

the district court retained jurisdiction over matters “in aid of the appeal.”

Jankovich v. Bowen, 868 F.2d 867, 871 (6th Cir. 1989). Staying the state

court proceedings was necessary to perserve the status quo set by

this court (namely, the stay of the issued writ) and so was clearly a

matter “in aid of the appeal” that the district court had jurisdiction to

order.

A-21

where irreparable injury can be shown is federal

injunctive relief against pending state prosecutions

appropriate.

ld. at 85. The district court utilized a three-step test to

determine whether the stay was appropriate, analyzing: 1)

whether substantial claims are set forth in the petition; 2)

whether there is a demonstrated likelinood that the petition

will prevail; and 3) whether there are extraordinary

circumstances attending the petitioner's situation that would

require the grant in order to make the writ of habeas corpus

effective. Cf Bundy v. Wainwright, 808 F.2d 1410. 1421 (11th

Cir. 1987); O'Bryan v. Estelle, 691 F.2d 706, 708 (5th Cir 1982).

It found that the first two prongs of the test were already

met, since it had already granted Levine's habeas petition.

It found extraordinary circumstances existed because

the state court trial judge has scheduled a

commitment hearing that has absolutely no legal

possibility of making valid or constitutional. after

the fact, a confinement which this Court has

determined to be invalid of [sic] unconstitutional

....[W]hile this Court's Order remains unreversed

and unvacated, the state court has no legal

foundation or authority to confine Levine for the

purpose of further mental evaluations or a further

confinement hearing.

(Footnote omitted). The district court further noted that if

a confinement hearing were to be held, the hearing would

render the 1988 confinement order moot before the

constitutionality of that order can be determined in federal

court. This would result in dragging “Levine into a

Kafkaesque cycle of proceedings from which there is no

escape....” The court noted that this " ‘twilight zone’ scenario

is not a mere hypothetical! possibility [since a] new

confinement order, issued... in 1988, has already served

to moot a previous decision of this Court's Magistrate which

ordered Levine's release.” We think it is plain that the district

court's careful analysis led it to the correct conclusion. We

find no merit in the state's argument.

A-22

The state next argues that the district court abused its

discretion in staying the state court proceedings because

it gave the state inadequate time to respond to the motion.

Counsel for the state received the motion on the afternoon

of Thursday, July 2, 1992. The district court issued the stay

on the morning of Tuesday, July 7, 1992. The intervening

time included a three-day holiday weekend. Therefore, the

state claims, it had inadequate time to respond. Furthermore,

it argues, there was no justification for expediting the order,

because the state court was not close to making a ruling

on Levine's further commitment.

The locai rules of the Southern District of Ohio permit

twenty-one days in which to file a memorandum in opposition

to a motion, but also allow a court to afford “an early hearing

on any motion with or without the filing of memoranda by

the parties.” S.D. Ohio R. 7.2(a)(2), 7.1(a)(3). This local rule

is analogous to Fed. R. Civ. P. 6(d), requiring that a motion

be served at least five days before it is decided by the court,

although the local rule trumps Rule 6(d)’s notice provisions.

Rose Barge Line, Inc. v. Hicks, 421 F.2d 163, 164 (8th Cir.

1970). Application of Rule 6(d) has been reviewed under the

abuse of discretion standard, and a court may shorten the

period of notice for good cause shown. /n re Grand Jury,

524 F.2d 209 (10th Cir. 1975), cert. dismissed, 425 U.S. 927

(1976); United States v. Taulbee, 476 F.2d 804 (9th Cir. 1973);

Herron v. Herron, 255 F.2d 589 (5th Cir. 1958).

In its order granting the stay, the district court wrote:

Unbeknownst to this Court, ... the Cuyahoga

County Common Pleas Court had issued an order

on June 29, 1992, without notice to evine or his

counsel, directing state authorities to transport

Levine from the DMHC to Cuyahoga County for

a hearing on continued confinement. Although

counse! for Levine and for Respondent Torvik had

agreed that Levine's confinement hearing would

be postponed pending the outcome of federal

A-23

litigation, [the Ohio court] set a hearing for July

1, 1992. ... Levine has now asked this Court to

.issue an order staying further proceedings in state

‘court. . . pending resolution of Torvik’s

appeal....

(Citations and footnotes omitted.) This more than adeauately

explains what is extraordinary and unique about this case,

and why the district court viewed the expedited decision

as necessary. Thus, because the district court adequately

explained its decision to expedite the order, and because

in view of the circumstances,’ five days was an objectively

reasonable amount of time to respond, we find thatthe district

court did not abuse its discretion.

C.

The state argues that the district court abused its discretion

because the stay is inconsistent with its writ of habeas

corpus. The state asserts that the district court's conditional!

writ releasing Levine expressly required the continuing

supervision of the state tria! court, because it required that

the court 1) be notified within 24 hours in case of Levine's

failure to attend this psychiatric appointments; 2) receive

progress reports about Levine's condition every six months;

and 3) be informed in the event of any psychological

deterioration. Thus, it reasons, the stay of the state court

proceedings is irreconcilable with the district court's

mandate in the writ that the state trial court continue to

exercise jurisdiction.

We again disagree. It is clear from the face of the stay

that its purpose is to enjoin further commitment hearings

that would moot Levine's current petition for writ of habeas

corpus. It is equally clear that mandating that the state court

be apprised of warning signals about Levine's behavior does

? We note that the district court ruled on other motions in as few as

three days. We conclude that the government should therefore have

anticipated an expedited decision on such an important motion.

A-24

not implicate those concerns. There is, therefore, no difficulty

in reconciling the two district court decisions.

IV.

For the foregoing reasons, we AFFIRM the district court's

grant of a writ of habeas corpus conditionally releasing

Michael Levine from the custody of the state of Ohio. We

direct that Levine be released from custody forthwith. In so

doing, however, we also direct that certain changes be made

to the conditions of his release set forth by the district court.

For ease of reference, we recapitulate all of those conditions,

in their amended form:

1. The defendant shall reside in a different county

than Cuyahoga, away from the victim's family;

2. The defendant shall receive follow-up once

every two weeks at a community mental health

center or by a private psychiatrist or clinical

psychologist, with the first visit to be within 72 hours

after release;

3. The Cuyahoga County Court of Common Pleas

must be notified within 24 hours in case of the

defendant's failure to attend his appointments

without an excuse;

4. The community mental health center, private

psychiatrist or clinical psychologist shall be

required to send progress reports to the Cuyahoga

County Court of Common Pleas detailing the

defendant's condition once every six months;

however, the first report should be submitted within

30 days after release; and;.

5. In case of any signs of deterioration in the

mental condition of the defendant, immediate

rehospitalization should be pursued and the

Cuyahoga County Court of Common Pieas

informed within 24 hrs.

A-25

We also AFFIRM the district court's stay of state court

proceedings.

A-26

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

FILED, JUNE 25, 1992

MICHAEL G. LEVINE

JUDGEMENT IN A CIVIL CASE

v.

CUYAHOGA COUNTY COURT

OF COMMON PLEAS

Case Number: C-3-85-493

Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury has

rendered its verdict.

x Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard and

a decision has been rendered.

IT 1S ORDERED AND ADJUDGED that judgment is entered

in favor of the Petitioner Michael G. Levine and against the

Respondent Cuyahoga County Court of Common Pleas.

June 25, 1992 Kenneth J. Murphy

Date Clerk

/s/

(By) Deputy Clerk

ae a

A-27

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

FILED, JUNE 25, 1992

MICHAEL G. LEVINE,

Petitioner,

Vs. Case No. C-3-85-493

-CUYAHOGA COUNTY COURT : Judge Walter Herbert Rice

OF COMMON PLEAS, .

Respondent.

DECISION AND ENTRY ADOPTING REPORT AND

RECOMMENDATION OF THE UNITED STATES MAGISTRATE

JUDGE (DOC. #121); PETITIONER'S PETITION FOR WRIT

OF HABEAS CORPUS (DOC. #1) AND MOTION TO ISSUE

WRIT (DOC. #104) SUSTAINED, SUBJECT TO THE

CONDITIONS RECOMMENDED BY DR. RIZK:

RESPONDENT'S MOTION TO SUPPLEMENT RECORD

(DOC. #138) SUSTAINED; PETITIONER'S MOTION TO

SUPPLEMENT RECORD (DOC. #140) SUSTAINED;

JUDGMENT TO BE ENTERED IN FAVOR OF THE

PETITIONER AND AGAINST THE RESPONDENT:

TERMINATION ENTRY

On July 31, 1991, this Court issued a Decision and Entry

(Doc. #134) adopting the Report and Recommendations of

the United States Magistrate Judge (Doc. #121) and

conditionally authorizing the release of Petitioner Michael

G. Levine, subject to the conditions recommended by Dr.

Rizk. This Court has now finished reviewing the completed

record and is prepared to supplement its July 31, 1991, Entry,

which is both hereby incorporated by reference and attached

to this Decision and Entry for purposes of providing essential!

_ background information.

A-28

This case was referred to the United States Magistrate

Judge pursuant to 28 U.S.C. § 636(b)(1)(A), (B) and (C) (Doc.

#85). In accordance with that section, this court has

conducted a de novo review of those portions of the Report

and Recommendations to which objection has been made.

See also Hill v. Duriron Co., 656 F.2d 1208, 1213 (6th Cir.

1981). Upon review, this court finds that the Magistrate

Judge’s Report and Recommendations are in conformity both

with the facts and with tne law. The Court hereby adopts

the reasoning and citations of authority therein.

Since the filing of this Court's July 31, 1991, Entry,

Respondent has filed a Moticn to Supplement the Record

(Doc. #138). While the Court will sustain that Motion, nothing

contained therein affects the disposition of this case.

Respondent argues that Levine may legaliy be confined on

the basis of his prior dangerous propensities. In support of

this argument, Respondent seeks to supplement the record

with various items of correspondence from Levine to his

former wife. Respondent further contends that Levine has

shown no remorse for his actions.

This Court, however, is quite familiar with the referenced

correspondence, the same having been incorporated into

the record some time ago. See Doc. #21. Those ietters were

given full consideration by this Court and by the Magistrate

Judge. Similarly, the testimony with which Respondent seeks

to supplement the record regarding Levine's purported lack

of remorse has been highlighted on numerous occasions

during the course of this litigation and has been fully

considered

This Court agrees that certain statements made by Levine

to his doctors and to his wife are frightening, to say the

least. However, the letters were written almost a decade ago,

and no medical authority has been brought forward to testify

that whatever mental or emotional defect caused Levine to

write those letters still exists or that the rage expressed in

those letters is capable of manifesting itself upon his release

from confinement.

A-29

Similarly, this Court finds the issue of remorse to be a

red herring. While remorse may well be one of the presumably

numerous factors which a psychiatrist or psychologist will

consider in determining a patient's mental health, that issue,

Standing alone, is of little value to a reviewing court. First,

as demonstrated by Petitioner's Response (Doc. #139), an

evaluation of whether a criminal feels “remorse” for his

misdeeds is highly subjective and open to debate. More

importantly, there is no requirement that Levine actually fee!

sorry for what he did. Under the law, the proper inquiry is

whether he is presently suffering from a mental illness or

deficiency which poses a threat to society. This is a

determination which must be based upon expert testimony.

Accordingly, the question of remorse is relevant only to the

extent that Levine’s medical examiners find it relevant.

This Court notes that the Magistrate Judge's Report and

Recommendations are based upon the medical testimony

elicited at the July, 1988, confinement hearing, held almost

four years ago. However, Levine has filed a Motion to

Supplement the Record (Doc. #140), seeking to have this

Court consider his latest psychological evaluations. Since

it is imperative that this Court's decision be based upon the

most up-to-date medical evidence available, Levine’s Motion

to Supplement the Record is sustained.

A status report on Levine's mental condition was signed

_by Or. Thomas L. South on May 8, 1992. Dr. South notes

that Levine has not received psychotropic medication since

1979, has been an exemplary patient, has not had a

psychiatric diagnosis (has shown no signs of any kind of

psychotic disorder) since his admission to the Dayton

Forensic Unit in 1983 and has not exhibited any behavior

which suggests that he is a danger to himself or to others.

Since Levine has shown no evidence of mental illness in

the past nine years, Dt. South recommends his release into

the community.

On May 13, 1992, a panel consisting of Dr. Massimo De

Marchis, Dr. Salah M. Samy and Dr. Vinod Dhar was convened

in order to review Dr. South’s report and to independently

lr

evaluate Levine. The panel unanimously agreed with Dr.

South's assessment which indicated that Levine does not

presently suffer from a mental disorder as defined in Ohio

Rev. Code § 5122.01(A) and concluded that Levine should

be released into the community. The panel found no evidence

that Levine constitutes a danger to himself or to others (either

as aresult of a mental disorder or as aresult of mere antisocia!

behavior).

lf there were previously any question as to this Court's

absolute duty under the Constitution, all such doubts have

been dispelled by the United States Supreme Court's recent

pronouncement in Foucha v. Louisiana, 60 U.S.L.W. 4359

(U.S. May 18, 1992). In Foucha, the Court held that once

an individual committed to a mental institution recovers his

sanity, “the basis for holding [the individual] in a psychiatric

facility as an insanity acquittee has disappeared, and the

State is no longer entitled to hold him on that basis.” /d.

at 4361.

In the Foucha case, the Supreme Court ruled that the

petitioner was entitled to release by virtue of the recovery

of his sanity, despite the fact that his examining experts would

not certify that he did not pose a danger to himself or to

others. Here, however, four experts have opined that Levine

does not pose such a threat to the community. Therefore

under the authority of Foucha, this Court has no option but

A-31

to order Levine released from confinement, subject to the

conditions recommended by Dr. Rizk.’

Since announcing its preliminary decision on July 31, 1991,

this Court has received 157 letters from residents of the

Cleveland area, each and every one of which has implored

this Court not to release Mr. Levine. This Court appreciates

the sincerity of those persons who took the time and trouble

to write these letters. Were this Court a layman, unschooled

in the law and in the requirements which must be met by

the state in order to achieve continued hospitalization of

Mr. Levine, the Court might well have written such a letter

himself. However, this Court has no choice in the matter,

given the present state of the record. If there are those who

disagree with the present state of the law, recourse must

be had to the Ohio General Assembly in Columbus for relief.

This Court has no choice but to follow the law as it is written

and as it has been interpreted by the highest courts of both

the United States and the State of Ohio. This Court must

follow the law and make a decision on the basis of the

evidence in the record. This is the same burden both

understood and assumed by Cuyahoga County Court of

Common Pleas Judge John Angelotta, upon the record, at

the beginning of the proceedings on July 6, 1988, an

obligation which he then proceeded to ignore by ordering

1

The conditions recommended by Dr. Rizk are:

1. The defendant should reside in a different county, away

from the victim's family;

2. Follow up once every two weeks at a community mental

health center or by a private psychiatrist or psychologist;

3. The court must be notified within 24 hours in case of the

defendant's failure to attend his appointments without an

excuse;

4. The community mental health center, private psychiatrist

Or psychologist should be required to write to the court

progress reports about the defendant's condition once every

six months;

5. Incase of any signs of deterioration in the mental condition

of the defendant, immediate rehospitalization should be

pursued and the court informed within 24 hours.

A-32

the continued hospitalization of the Petitioner, not only in

spite of a factual record totally devoid of evidence which

would have supported such a conclusion, but also in the

face of enormous and overwhelming evidence to the

contrary.

Equally disturbing is the performance of the Ohio Attorney

General's Office throughout the course of Mr. Levine's

hospitalization. Despite arguing strenuously that Mr. Levine's

mental health has not been restored, and that Mr. Levine

remains a threat to society, the state has not produced,

despite years of litigation, one shred of evidence to that effect.

The state was well aware of the importance of Mr. Levine's

July, 1988, comptency hearing, given the fact that the

Magistrate Judge had previously concluded the evidence

presented by the state at Mr. Levine’s 1983 competency

hearing was insufficient to support continued confinement.

Not only did the state not take steps to cure this evidentiary

deficiency in the 1988 hearing, but it relied upon the testimony

of a medical expert (Dr. Rizk) whose opinion does not support

the state’s legal position (Dr. Rizk, who testified on behalf

of the state, opined that Levine's disorders are in full remission

and that Levine should be granted a conditional release from

confinement).

Wherefore, based upon the above, the Report and

Recommendations of the United States Magistrate Judge

(Doc. #121) are adopted in their entirety. Petitioner's Petition

for Writ of Habeas Corpus (Doc. #1) and Motion to Issue

Writ (Doc. #104) are sustained, subject to the conditions

recommended by Dr. Rizk. Respondent's Motion to

Supplement the Record (Doc. #138) is sustained. Petitioner's

Motion to Supplement the Record (Doc. #140) is sustained.

Judgment will be entered in favor of Petitioner and against

Respondent.

Petitioner is to be released within 96 hours, to wit: not

later than 4 p.m. on Monday, June 29, 1992.

The captioned case is hereby terminated upon the docket

records of the United States District Court for the Southern

A-33

District of Ohio, Western Division, at Dayton.

June 25, 1992 /s/

WALTER HERBERT RICE

UNITED STATES DISTRICT JUDGE

Copies mailed to:

Dalma C. Grandjean, Esq.

Franklin J. Hickman, Esq.

Timothy J. Mangan, Esq.

Henry J. Hilow, Esq./ Timothy Dobeck, Esa.

Stanley Chesley, Esq.

A-34

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

FILED, JULY 31, 1991

MICHAEL G. LEVINE,

Petitioner,

VS. : Case No. C-3-85-493

CUYAHOGA COUNTY COURT : Judge Walter Herbert Rice

OF COMMON PLEAS,

Respondents.

DECISION AND ENTRY ADOPTING REPORT AND

RECOMMENDATIONS OF THE UNITED’ STATES

MAGISTRATE JUDGE (DOC. #121); PETITIONER'S PETITION

FOR WRIT OF HABEAS CORPUS (DOC. #1) AND MOTION

TO ISSUE WRIT (DOC. #104) CONDITIONALLY SUSTAINED

On September 26, 1979, Petitioner Michael G. Levine was

found not guilty of murder by reason of insanity. Since that

time, he has been confined in a maximum security facility

for persons acquitted by reason of insanity. Levine filed a

Petition for Writ of Habeas Corpus (Doc. #1) on June 25,

1985. He filed a renewed Motion to Issue Writ (Doc. #104)

on March 22, 1990. This case has had a long and tortuous

procedural history which is well documented in the latest

Report and Recommendations of the United States

Magistrate Judge (Doc. #121) and in the extensive briefing

of the parties. Accordingly, the procedural history wil! not

be revisited here.

Tne Court has conducted a thorough review of the record,

and reviewed de novo the portions of the Magistrate Judge's

Report and Recommendations to which specific objections

have been raised. The Court finds that the Report and

Recommendations accurately state the facts and the law,

A-35

and same are hereby adopted in their entirety. The Court

concurs with the Magistrate Judge's conclusion that Levine

is being confined in violation of the Constitution of the United

States, and that he should be granted an immediate release

subject to the conditions recommended by Dr. Rizk. Since

the Court has adopted the analysis contained in the Report

and Recommendations, the Magistrate Judge's findings wil

not be repeated at length. The Court does, however, wish

to briefly address Respondent's Objections (Doc. #123) to

the Report and Recommendations.

Respondent first complains that he was not given an

opportunity to file a return of writ in response to the expanded

record. A review of the record, however, reveals no request

by Respondent for an extension of time in which file a more

comprehensive response. Nor has leave to supplement the

Objections been sought by Respondent despite the fact that

tne Magistrate Judge’s Report and Recommendations were

filed over a year ago. Therefore, Respondent's protestations

that he has not had an opportunity to file a more complete

response are somewhat disingenuous.

Respondent next argues that Levine’s procedural default

bars review by this Court. While it may be true that Levine

did not preserve his appeal as to the correct constitutional

standard for commitment to a maximum security facility, it

is clear beyond peradventure that Levine argued to the trial

court that his confinement was unconstitutional in that it

was based upon insufficient evidence. That argument was

addressed by the court of appeals and review was denied

by the Ohio Supreme Court. Since Levine has properly

exhausted that constitutional claim in state court, he is not

barred from presenting it to this Court.

Respondent next argues that the Magistrate Judge erred

in applying the state standard of clear and convincing

evidence rather than the federal constitutional standard of

a preponderance of the evidence. The Court agrees with

the Magistrate Judge that since Ohio has chosen to apply

a clear and convincing evidence standard, it has tnereby

created a liberty interest in not being confined on a lesser

A-36

showing of mental illness. However, the Court would

emphasize that this is a moot question; there is no evidence

from which it could reasonably be concluded that Levine

is presently insane. Even if the state is held only to the

preponderance standard, it has not met that burden.

Respondent contends that the Magistrate Judge

improperly failed to apply the § 2254(d) presumption of

correctness to the state court findings, and substituted his

own credibility findings. Section 2254(d)(8) expressly allows

a federal court to reject state court factual findings which

are not fairly supported by the record. While the Court agrees

that the trial court had every right to reject the conclusions

of Levine's experts, even the state’s own expert, Dr. Rizk,

found that Levine's disorders are in full remission and that

he should be granted a conditional release. At the state court

hearing, Respondent could not produce one single

examining professional who could opine that Levine is

presently insane or recommend his continued confinement.

Therefore, it cannot be said that the trial court's factual

findings are fairly supported by the record.

Finally, Respondent argues that there is sufficient evidence

to support the trial court’s conclusions. As just noted, the

record is devoid of any expert opinion suggesting that Levine

fs Currently insane or poses a threat to society. The state

also presented no evidence of recent behavior such as

threats, aggressive action, etc., which might suggest that

Levine retains a propensity for violence. Respondent's own

medical expert recommended release. There is absolutely

no evidence which supports Levine's continued confinement.

The Court is of the opinion that Levine is being held in

violation of the Constitution of the United States. The Court

notes, however, that the transcript of Levine’s 1988

confinement hearing has not been filed with the Court.

Therefore, this Order, directing Levine’s release from

confinement subject to the conditions recommended by Dr.

Rizk, is made conditional upon its filing. Upon receipt, the

Court shall review said transcript. If the evidence therein

is consistent with the characterization of the evidence by

A-37

the parties and by the state court of appeals, a final decision

shall issue forthwith.

Wherefore, based upon the above, the Court hereby adopts

the Report and Recommendations of the United Sates

Magistrate Judge (Doc. #121) in their entirety. Petitioner's

Petition For Writ of Habeas Corpus (Doc. #1) and renewed

Motion to Issue Writ (Doc. #104) are conditionally sustained

subject to the filing of the above referenced transcript, which

must be filed not later than ten days following date of receipt

of this entry.

/s/

WALTER HERBERT RICE

UNITED STATES DISTRICT JUDGE

Copies mailed to:

Dalma C. Grandjean, Esq.

Franklin J. Hickman, Esq.

Timothy J. Mangan, Esq.

George J. Sadd, Esq.

Stanley Chesley, Esq. (Counsel for Amici Curiae)

A-38

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

FILED, JUNE 29, 1990

MICHAEL G. LEVINE,

Petitioner, : Civil Action No. ©-3-85-

493

- vs - Judge Rice

Magistrate Merz

PATRICIA TORVIK,

Respondent.

REPORT AND RECOMMENDATIONS OF UNITED STATES

MAGISTRATE

This habeas corpus action, brought pursuant to 28 U.S.C.

§ 2254, is before the Court upon Petitioner's Motion to Issue

Writ (Doc. #104) and Judge Rice’s Recommittal (Doc. #113)

of the issues raised by objections to the Magistrate's prior

Report and Recommendations of March 21, 1989 (Doc. #99).

PROCEDURAL HISTORY

On May 1, 1979, Michael Levine and an accomplice

kidnapped Julius Kravitz, a well-known Cleveland

philantropist, and his spouse. When the Kravitzes failed to

produce the demanded ransom, Mr. Levine shot them both.

Mr. Kravitz died the next day and Mr. Levine was indicted

for kidnapping, burglary, extortion, murder, and attempted

murder. After a bench trial before the Honorable John

“Angetotta of the Cuyahoga County Common Pleas Court,

Mr. Levine was found not guilty by reason of insanity.

Under Ohio Revised Code §2945.40, an Ohio trial court

which finds a defendant not guilty by reason of insanity must

then “conduct a full hearing to determine whether the person

A-39

is a mentally ill person subject to hospitalization by court

order’ under the standards of Ohio Revised Code §5122.01.

Judge Angelotta conducted such a hearing, found Mr. Levine

to meet the statutory standard, and ordered that he be

confined in the Lima State Hospital, then the Ohio maximum

security facility for persons acquitted by reason of insanity.

Mr. Levine was later transferred to the Dayton Forensic center

when it replaced Lima State.

Ohio Revised Code §2945.40(E) provides that committed

NGAI acquitees have the same hearing rights as to continued

commitment as those civilly committed under Ohio Revised

Code §5122.15(H): after the first ninety days of commitment,

every one hundred eighty days thereafter upon demand, ard

every two years whether or not demanded. After each such

hearing, which is held by the trial judge who made the original

finding of not guilty by reason of insanity, continued

commitment may be ordered only if the person is found,

by clear and convincing evidence, to be at that time a mentally

ill person subject to hospitalization by court order.'

Under O.R.C. §5122.15(H), Judge Angelotta held release

hearings in November, 1980, and May-December, 1983. On

each occasion he found Mr. Levine to be, by what he

characterized as clear and convincing evidence, a mentally

ill person subject to hospitalization by court order.

Mr. Levine filed his original Petition for habeas corpus

in this Court on June 21, 1985. He alleged that he was

confined by Respondent's predecessor in office, Roger

Mendenhall, in violation of his constitutional rights in that

he had been committed involuntarily either upon

unconstitutionally infirm evidence or pursuant to a

‘ “Clear and convincing evidence” is the constitutionally required

burden of proof for involuntary commitment for those civilly committed

Addington v. Texas, 441 US. 418 (1979). A lesser standard of proot is

constitutionally required for those charged with crimes and found not

guilty be reason of insanity, Jones v. United States, 463 US. 354 (1983)

but Ohio has chosen statutorily to use the civil commitment standard

for those found not guilty by reason of insanity.

A-40

constitutionally infirm statute by Judge Angelotta upon the

record in 1983. Mr. Levine was entitled to additional! state

hearings in 1985 and 1987, but waived them because of

the pendency of state appellate process and this litigation.

The Magistrate, sitting with the unanimous consent of the

parties, held a brief evidentiary hearing in the fall of 1987

to clarify the evidence which had been presented to Judge

Angelotta in 1983. In an Opinion and Decision granting the

writ of habeas corpus on March 30, 1988, (Doc. #69), the

Magistrate concluded that there had been constitutionally

sufficient evidence presented in 1983 for Judge Angelotta

to conclude that Mr. Levine was a mentally ill person subject

to hospitalization by court order, but that there had not been

constitutionally sufficient evidence to order him confined in

a maximum security facility. Ohio law requires that the burden

of proof be satisfied on each of these points and no

psychologist or psychiatrist had recommended confinement

in a maximum security facility. The Magistrate granted the

writ conditionally, ordering that Mr. Levine be released unless

the State had granted him a hearing within sixty days to

determine if he was then a mentally ill person subject to

commitment by court order and ordering a “presently

appropriate commitment if he is so found.” (Opinion and

Decision at p. 19).

On appeal, the Sixth Circuit vacated this decision on the

grounds the Magistrate acted without jurisdiction, consent

having been improperly urged upon the parties under 28

U.S.C. §636(c). (Order, Doc. #83). Upon remand, the matter

was recommitted to the Magistrate (Doc. #85), and the

Magistrate recommended on July 18, 1988, that District Judge

Rice treat the Opinion and Decision as a report and

recommendations and adopt them as the Court's findings

of fact and conclusions of law. (Report and

Recommendations, July 18, 1988, Doc. #86).

One week later, Mr. Levine’s counsel! advised this Court

for the first time that Judge Angelotta had conducted a new

commitment hearing on July 5, 7, and 11, 1988, and had

again committed Mr. Levine to the Dayton Forensic Center

A-41

(Doc. #88). On the same day, the Magistrate withdrew his

Report and Recommendations (Entry, Doc. #89) and ordered

the parties to brief the question whether the new commitment

order rendered the questions raised by the prior commitment

moot (Scheduling Order, Doc. #90).

The parties briefed the mootness question; in addition,

Mr. Levine moved to expand the record to include the 1988

proceedings. On March 21, 1989, the Magistrate issued a

new Report and Recommendations (Doc. #99), concluding:

1. The question whether there was constitutionally

sufficient evidence to support the 1983 finding that Mr. Levine

was a mentally ill person subject to hospitalization by court

order was moot because Mr. Levine was no !onger committed

as a result of that order.

2. The question whether Judge Angelotta applied the

correct legal standard in determining where Mr. Levine

should be confined in 1983 was not moot because it was

capable of repetition yet avoiding review, since future

commitment decisions regarding Mr. Levine would be made

by Judge Angelotta yet the time required to complete the

state appellate process might repeatedly prevent review in

this Court.

3. Therecord should not at that time be expanded to include

the 1988 proceedings since Mr. Levine had not exhausted

his available state remedy of appeal from tne 1988

commitment order.

Respondent objected to this Report and

Recommendations (Doc. #101) and the Report was ripe on

the objections at the time Mr. Levine filed his pending Motion

to issue Writ (Doc. #104) and has now been recommitted

to the Magistrate for reconsideration under Fed. R. Civ. P.

72(b).

A-42

OPINION ON ISSUES PRESENTLY PRESENTED

MOOTNESS

The Magistrate adheres to his prior opinion that the issue

of the constitutional sufficiency of the evidence upon which

Mr. Levine was committed in 1983 is moot since Mr. Levine

is no longer confined under that commitment order and it

cannot legally result in his confinement or any other collateral

legal consequence in the future. Sibron v. New York, 392

U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968).

However, the issue of the constitutionality of the standard

applied to determine Mr. Levine's place of confinement in

1983 is not moct. Indeed, succeeding history proves that

it was and remains capable of repetition and quite possibly

evading review: since the Magistrate’s Opinion in 1988, Judge

Angelotta has again apparently applied the same standard

to again commit Mr. Levine to a maximum security facility

and the repeated application may evade review if new

commitment hearings, scheduled for July, 1990, are held

before the District Court reaches this case for decision.

EXPANSION OF THE RECORD AND EXHAUSTION OF

| STATE COURT REMEDIES

In March, 1989, the Magistrate recommended that the

record not then be expanded to include the 1988 proceedings

because Mr. Levine had not then exhausted his available

state court remedies (Report and Recommendations, Doc.

#99, pp. 6-8) and suggested that he file a “new petition”

if he suffered an adverse decision in the Ohio Court of

Appeals on appeal from the 1988 commitment.

Mr. Levine filed his Motion to Issue Writ after that adverse

decision by the Ohio Court of Appeals but before the Ohio

Supreme Court had acted on his appeal to it. The parties

argued at some length over whether that further exhaustion

step was required, but that argument is now moot: on June

13, 1990, the Ohio Supreme Court denied Mr. Levine’s motion

to appeal and dismissed his claimed appeal of right. (State

A-43

of Ohio v. Levine, Case No. 90-415) (Appendix MM to Doc.

#119). Plainly, Mr. Levine has now exhausted al! available

state court remedies.

Mr. Levine seeks to expand the record in this case rather

than filing a new petition. While the Magistrate recommended

a new petition in the March, 1989, Report, that

recommendation was based on the Magistrate's expectation

that the District Court would have decided the questions

raised in that Report and terminated this case before the

Ohio Court of Appeals reached its decision. That turned out

not to be the case, and there is no good reason to insist

on the formality of a new petition. Mr. Levine's Motion to

Issue Writ presents the issues raised by the 1988 proceedings

with a clarity far beyond that often found in habeas corpus

petitions, so there is no prejudice to the State, which has

to respond to the much less clearly presented petitions of

pro se litigants. Tne State has also had ful! opportunity to

respond to Mr. Levine's arguments; it suggests no functiona!

purpose of insisting on a new petition.

PROCEDURAL DEFAULT

Respondent asserts this Court may not reach the merits

of Mr. Levine's constitutional claim because he procedurally

defaulted in presenting that claim to Judge Angelotta.

Where a state court fails to address the merits of a

defendant's constitutional claim because of a state

procedural bar to the presentation of that claim, a federa!

court is likewise barred from reaching the merits in a

subsequent habeas action unless the defendant's procedura!

failure is excused by cause and prejudice. Wainright v. Sykes,

433 U.S. 72 (1977).

The State claims procedural default because the Ohio

Court of Appeals wrote:

The defendant, in his secor J assignment of error,

raises various claims’ challenging the

constitutionality of Onio’s statutory commitment

A-44

scheme as applied in this case. Our review of the

record discloses that the defendant has waived

these claims since he failed to raise them with the

trial court. See State v. 1981 Dodge Ram Van (1988),

36 Ohio St. 3d 168, 170. Furthermore, this court

in substance addressed and overruled these claim

in the defendant's prior appeal. See State v. Levine,

supra, slip opinion at 7-9.

State of Ohio v. Levine, Case No. 56203 (Cuyahoga County,

January 25, 1990), slip opinion at 27.

This ruling by the Ohio Court of Appeals does not bar

this Court from reaching the merits of the issues raised in

Mr. Levine’s Motion to issue Writ because the Court of

Appeals did reach and decide on the merits the sole

constitutional issue presented here: the constitutional

sufficiency of the evidence supporting the commitment order.

It is unclear what constitutional claims Mr. Levine raised

in his second assignment of error in the Ohio Court of

Appeals, since the brief in question has not been filed with

this Court by either party and the Ohio Court of Appeals

opinion does not spell out which constitutional claims it is

treating as procedurally barred. However, it is clear that Mr.

Levine raised in the Cuyahoga County Common Pleas Court

and again on appeal the question of the constitutional

sufficiency of the evidence to support his continued

commitment to a maximum security facility. His first

assignment of error was that “clear and convincing evidence

does not support the trial court’s judgment.” State of Ohio

v. Levine, supra, slip opinion at 1. It is precisely that issue

whicn the Ohio Court of Appeals spends the first twenty-

seven and one-half pages of its twenty-eight page opinion

discussing. That same issue of course formed the core of

Mr. Levine’s initial Petition related to the 1983 commitment

hearing and was central to the Magistrate's original Opinion

and Decision granting the writ, an Opinion which Judge

Angelotta acknowledged receiving from both the Magistrate

and Mr. Levine’s counsel (Doc. #118, Appendix LL). That issue

is the sole issue argued in the Motion to issue Writ (Doc.

A-45

#104). While the Court of Appeals opinion meets the express

reliance test of Harris v. Reed, 489 U.S. __ , 103 L. Ed.

2d 308, 317 (1989), the constitutional claims it refused to

consider are not those now presented here.

THE MERITS OF PETITIONER’S CLAIM

The evidence presented to Judge Angelotta is

constitutionally insufficient to permit a finding that Michael

Levine was in July, 1988, a mentally ill person subject to

involuntary hospitalization by court order.

In making its determination whether the evidence is

constitutionally sufficient, this Court is governed by the

standard set forth in Jackson v. Virginia, 443 U.S. 307, 319

(1979):

[T]he relevant question is whether, after viewing

the evidence in the light most favorable to the

prosecution, any rational trier of fact could have

found the essential elements of the crime beyond

a reasonable doubt... This familiar standard gives

full play to the responsibility of the trier of fact fairly

to resolve conflicts in the testimony, to weigh the

2vidence and to draw reasonable inferences from

basic facts to ultimate facts.

Of course, with respect to involuntary commitment of the

mentally ili, the constitutional standard is proof by clear and

convincing evidence, Addington v. Texas, 441 U.S. 418 (1979),

a standard embodied in the governing Ohio statute, Ohio

Revised Code §5122.15(B). See Sheffel v. Sulikowski, 62 Ohio

St. 2d 128, 403 N.E. 2d 993 (1980).

Moreover, the crucial question is whether a person is

presently mentally ill. Uniess a person is presently mentally

ill and dangerous to others, he cannot constitutionally be

committed against his will. O'Connor v. Donaldson, 422 U.S.

563 (1975); Jones v. United States, 463 U.S. 354 (1983).

A-46

For purposes relevant to this case, Ohio defines a mentally

ill person subject to hospitalization by court order as

[A] mentally ill person who, because of his illness:

(2) Represents a substantial risk of physical harm

to others as manifested by evidence of recent

homicidal or other violent behavior, evidence of

recent threats that place another in reasonable fear

of violent behavior and serious physical harm, or

other evidence of present dangerousness;

Ohio Revised Code §5122.01(B)(2). “Mental illness” is defined

as “a substantial disorder of thought, mood, perception,

orientation, or memory that grossly impairs }'!agment,

behavior, capacity to recognize reality, or inability to meet

the ordinary demands of life.”’” Ohio Revised Code

§51422.01(A).

At pages 25 through 28 of the Motion to Issue Writ, Mr.

Levine’s counsel summarizes the evidence at the 1988

hearing which shows Mr. Levine is neither presently mentally

ill nor presently dangerous as a result of mental illness:

1. Dr. Rizk, who has examined Mr. Levine many times in

the last ten years, testified that Mr. Levine currently (June

24, 1988) shows no signs of a substantial disorder of thought,

mood, perception, orientation, or memory, nor did he show

any signs of mental illness when examined in December,

1982, December, 1983, or November, 1985. He opined that

Mr. Levine's diagnosis of major affective disorder, bipolar,

depressed, in full remission would remain with Mr. Levine

for life, but did not mean there were any present signs or

symptoms.

2. Dr. Pasha opined that Mr. Levine is not mentally ill, and

recommended a discharge as early as January, 1985.

3. Dr. Mcintosh, who has spent over 1,000 hours with Mr.

Levine as his ward psychologist sine 1983, found no evideice

A-47

of mental disorder; his conclusions are supported by the

results of three separate Minnesota Multiphasic Personality

Inventories (“MMPI”) given to Mr. Levine over those five years.

4. Dr. Appelbaum, a non-treating expert, examined Mr.

Levine and reviewed the records. He opined that Mr. Levine

had no diagnosable mental disorder.

5. Dr. Bertschinger, director of the Lake County Psychiatric

Clinic, opined in 1988 that there was no mental illness.

The same expert witnesses aiso agreed that Mr. Levine

does not represent a danger to anyone (Doc. #104, pp. 28-

29).

The record is absolutely clear the Mr. Levine's remission

is not the result of medication; he has had no psychotropic

medication since May, 1981. Even group therapy at the

Dayton Forensic Center was long ago discontinued.

As indicated in the Magistrate's initial Opinion and Decision

in this case, Ohio law requires two separate findings in an

involuntary commitment proceeding. Once a person has

been found mentally ill and subject to hospitalization by court

order, the court is to make one of the commitments provided

for in Ohio Revised Code §5122.15(C). Ohio Revised Code

§5122.15(E) further provides:

(E) In determining the place to which, or the person

with whom, the respondent is to be committed, the

court shall consider the diagnosis, prognosis,

preferences of the respondent, and projected

treatment plan for the respondent and order the

implemention of the least restrictive alternative

available and consistent with treatment goals and,

in the case of a person found not guilty by reason

of insanity, with public safety. If the court determines

that the least restrictive alternative available that

is consistent with treatment is inpatient

hospitalization, the court's order shal! so state.

A-48

By adopting this statute, Ohio has created a liberty interest

in its citizens of which it may not deprive them without due

process of law. Furthermore, such a liberty interest may be

independently protected by the Fourteenth Amendment; the

Supreme Court has emphasized that the nature and duration

of commitment must bear some reasonable relationship to

the treatment purpose for which the person is confined. Jones

v. United States, supra.

There is absolutely no evidence upon which a reasonable

trier of fact could find that Mr. Levine requires confinement

in a maximum security facility; none of the mental health

professionals testifying in 1988 opined that such confinement

was necessary; ali recommended a less restrictive

commitment or, in most cases, outright release.

Perhaps recognizing the overwhelming weight of the

psychiatric evidence in Mr. Levine's favor, the State makes

no comment in its Memorandum Contra about the mental

health testimony (See Doc. #112).

Judge Angelotta was of course forced to deal with the

mental health testimony. His opinion finding Mr. Levine

mentally ill quotes for several pages from mental health

testimony at the time of the initial trial, upon which he had

found Mr. Levine not guilty by reason of insanity, or the release

hearing in 1980, which resulted in an unappealed

recommitment. He essentially belittles the testimony offered

in 1988 (Doc. #104, Appendix HH). He calls Dr. Appelbaum’s

testimony “insulting and offensive” (/d.). He questions the

credibility of Dr. John Davis, Medical Director of the Ohio

Department of Mental Health because he perceived him as

boastful about his crédentials (/d.). His “evaluation” of Dr.

Mcintosh’s testimony is as follows:

Dr. Mcintosh. This man is a psychologist, not a

psychiatrist. A psychiatrist is a medical doctor. Only

a medical doctor can give a medical opinion in

a court of law.

A-49

Dr. McIntosh must come from the same school as

Dr. Davis. Stated more succinctly, | question the

integrity of the release process as practiced by

the Ohio Department of Mental Health.

(Id.) He dismissed Dr. Bertschinger’s testimony because he

said he received compensation from both sides.

Judge Angelotta then summarized his reaction to the

evidence:

This Judge cannot deal with maybes and

probablies [sic]. | need yes and no. Either one is

mentally ill or he is not mentally ill.

Doctors can diagnose a broken leg. Doctors can

diagnose a heart attack. Doctors can only perhaps

diagnose mental illness. The state of a person's

mind is obviously a matter of opinion.

Given the fact that psychosis is an illness for whicn

there is no known cure, | find that the perhaps

weil meaning doctora! diagnosis of remission and

recommendation of conditional release to be in

error. Or, stated in a more legal sense, the testimony

not to be credible.

(/d.) In other words, Judge Angelotta reached his conclusion

that Mr. Levine is mentally ill-subject to hospitalization in

a maximum security facility by finding. all the evidence before

him to be incredible and relying on his own projection from

the 1979-80 evidence that Mr. Levine was stil! mentally ill.

The Ohio Court of Appeals dealt with the evidence at

considerably more length. (See State v. Levine, Case No.

56203, slip opinion attached to Doc. #104 as Appendix JJ).

The opinion first summarizes the account of the surviving

victim about the offense in 1979 and Mr. Levine's ex-spouses

testimony about his violent behavior as late as 1980 (/d. at

2-4). The court then treats the trial testimony Upon whicn

A-50

Mr. Levine was found not guilty by reason of insanity and

Lima State reports from 1980 which concluded he was sti!!

mentally il! and a danger to others (/d. at 4-9).

The Court of Appeals then treats the subsequent

psychiatric reports, noting:

1. The panel of Drs. Rizk, Davis, & Vermeulen in 1983 found

no mental illness as defined by state law and recommended

transfer to a less restrictive facility.

2. Dr. Alquizola in May, 1983, found no thought or affective

disorder but recommended continued psychotherapy.

3. The panel of Drs. Pasha, Trevino, and Martin found no

mental illness or personality disorder and recommended

discharge.

4. The same panel in November, 1985, found no mental

illness and that Mr. Levine was not subject to hospitalization.

Dr. Rizk had been called as the State’s only expert witness.

He essentially repeated his testimony from before: Mr. -evine

is diagnosed as having a major affective disorder, bipolar,

depressed, in full remission which would be characterized

by mood swings when not in remission. He said it was

impossible to predict when a person in remission may suffer

a relapse. He noted that life at the Dayton Mental Health

Center was structured and thus involved less stress than

normal daily life and that stress had triggered Mr. Levine's

bouts with depression in the past. He noted, however, that

Mr. Levine had shown no symptoms of mental illness since

1981 despite cessation of medication, and recommended

that he be granted conditional release.

The Ccurt of Appeals noted that Dr. Davis, Medica! Director

for the Ohio Department of Mental Health, found Mr. Levine

had no mental illness and recommended release after a

thirty-day observation period in a civil hospital.

A-51

Dr. Pasha, Mr. Levine's treating psychiatrist since 1986,

found no mental illness and accordingly testified that Mr.

Levine had no specific treatment plan (Slip opinion at 15).

He found Mr. Levine to be no threat to others and to have

reacted quite normally to a number of stressful situations.

Dr. Mcintosh, Petitioner's ward psychologist, testified to the

same effect. Dr. Appelbaum, an examining but non-treating

psychiatrist, found no mental iliness and low risk of danger

to others, but recommended outpatient monitoring. Dr.

Bertschinger, another examining but non-treating

psychiatrist, reached the same conclusions.

Upon its review of this evidence, the Ohio Court of Appeals

concluded:

We find that the trial court properly exercised its

discretion in ordering the defendant's continued

commitment. Substantial evidence establishes that

the defendant suffers from a mental illness as

defined under R.C. 5122.01(A). Dr. Rizk diagnosed

the defendant as having a ‘major affective disorder,

bipolar, depressed’. Nine other mental health

professionals have at various times diagnosed the

defendants as having similar mental disorders. Both

the state’s expert witness and the defendant's

expert witnesses testified that these diagnoses

represent substantial mental disorders which are

chronic in nature and incurable.

(Slip Opinion at 23, emphasis added).

In reaching its conclusion, the Ohio Court of Appeals relied

on /n re Burton, 11 Ohio St. 3d 147, 464 N.E. 2d 530 (1984)

and DeVeau v. United States, 482 A. 2d 1239 (D.C. App. 1984)

[cited by the Ohio Court of Appeals as 483 A. 2d 307]. In

Burton the Ohio Supreme Court adopted a “totality of the

circumstances” test for deciding upon hospitalization under

§5122.01(B) and held that

Factors wnich are to be considered by the court

inacommitment hearing include, but are notlimited

A-52

to, the following: (1) whether, in the court's view,

the individual currently represents a substantial risk

of physical harm to himself or other members of

society; (2) psychiatric and medical testimony as

to the present mental and physical condition of

the alleged incompetent; (3) whether the person

has insight into his condition so that he will

continue treatment as prescribed or seek

professional assistance if needed; (4) the grounds

upon which the state relies for the proposed

commitment; (5) any past history which is relevant

to establish the individual’s degree of conformity

to the laws, rules, regulations and values of society;

and (6) if there is evidence that the person's mental

illness is in a state of remission, the court must

also consider the medically suggested cause and

degree of the remission and the probability that

the individual will continue treatment to maintain

the remissive state of his illness should be released

from commitment.

464 N.E. 2d at 534.

Applying the sixth Burton factor, the Ohio Court of Appeals

found that three factors predominated in explaining Mr.

Levine's remission. First it held, based entirely on evidence

from 1980 and before, that he modified his threatening

behavior in order to be released. Secondly, it found that he

lives in a highly structured environment and that the build

up of stress in the normal world would create a substantial

risk of future violence in the event of future personal or

business failure. Third, it held that because he has previously

had periods as long as eight years during which he

functioned well, and his illness is periodic, the eight years

he has been symptom free are not conclusive.

With respect to the first point, if Mr. Levine is controlling

his threatening behavior, that wou'i seem to prove that the

behavior is not the result of mental illness, but the Ohio

Court of Appeals holds his ability to contro! threatening

behavior against him.

A-53

As to the second and third points, the Ohio Court of Appeals

analysis would permit Mr. Levine's confinement indefinitely

in the face of all the psychiatric testimony. The court says

he is well because he is in a structured environment and

speculates that he would not do well in a less structured

environment, despite all the medical recommendations for

something less than maximum security. As to the third point,

the question is how long Mr. Levine must be symptom-free?

In his testimony at the evidentiary hearing in this Court,

Dr. Rizk, the State’s expert witness, expanded on the

likelihood of relapse given a number of years without

symptoms. He testified that when he testified in 1983 that

there was a probability of relapse in Mr. Levine's case, he

meant a 51% probability and that probability would decrease

with time. Of course Mr. Levine has now gone nine years

with no medication, no relapse, and no symptoms.

The Ohio Court of Appeals, stil! analyzing the cause of

remission under the Burton standard, found there was a

likelihood Mr. Levine would not seek treatment because he

does not believe he is mentally ill (Slip Opinion at 25). But

all of the doctors have told Mr. Levine, as well as the Ohio

courts, that there is no need of treatment because Mr. Levine

is not mentally ill. There is simply no evidence that his

remission is brought about by treatment which he needs

to continue if released because he has received no treatment

for nine years (seven years as of the 1988 hearings).

The Ohio Court of Appeals relies on a letter Mr. Levine

wrote to his wife in March, 1980, saying his crime was “an

act of rebellion against society, and its lies and false beliefs.”

(Slip Opinion at 26). The court observes that the mental! health

professionals have not interpreted this “revealing statement,”

but the court interprets it as an accurate statement of Mr.

Levine's motivation at the time of the murder. However, this

letter was written at a time when psychiatric testimony was

the [sic] Mr. Levine was mentally ill; his continued

commitment in 1980 was not even appealed. The court may

be suggesting that he was not in fact mentally i!) wnen ne

committed the crime, but that determination is res judicata.

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Finally, the Ohio Court of Appeals relies on the brutal nature

of the crime Mr. Levine committed and concludes that

supports his confinement in a maximum security facility.

The Ohio Court of Appeals’ reasoning does not support

its conclusion. As the Supreme Court held in Jones v. United

States, 463 U.S. 354 (1983), confinement of those acquitted

by reason of insanity must be for the purpose of treatment;

the nature and duration of the confinement must bear some

reasonable relation to that purpose. The confinement must

be based on both continuing illness and continuing

dangerousness. The Ohio trial and appellate courts in this

case have found continuing illness and dangerousness in

the face of a// the mental health testimony to the contrary

and in the face of Mr. Levine's being symptom free without

treatment for seven years.

The Magistrate believes that the Constitution permits some

inference of continued illness and dangerousness from past

behavior and on that basis was willing to accept those

findings on the 1983 record? However, the State’s expert

witness in this case concedes the power of that inference

declines over time.

Nothing in this Report should be read as exhibiting

sympathy for Mr. Levine. If he had been found sane at the

time of the offense, there is no question that his continued

confinement would be constitutional. But as long as someone

has been found not guilty by reason of insanity, he or she

«nay not be punished, Jones v. United States, 463 US. at

369, and continued confinement without treatment or any

need for treatment is punishment, pure and simple.

Here, al! of the mental health professionals, including the

treating professionals, concluded Mr. Levine was not

presently mentally ill. For this Court to conclude, in the face

2

A very substantial body of literature, however, questions medical or

legal ability to predict future dangerousness from past behavior. See

Justice Brennan's dissent in Jones v. United States, supra.

A-55

of that testimony, that there is evidence from which a

reasonable trier of fact could conclude to a clear and

convincing degree that Mr. Levine is mentally ill and subject

to hospitalization by court order would be to deny any impact

to the Due Process Clause in this case.

This Court should issue a writ of habeas corpus ordering

Mr. Levine's conditional discharge forthwith.

June 28, 1990. /s/

Michae! R. Merz

UNITED STATES MAGISTRATE

A-56

THE SUPREME COURT OF OHIO

1990 TERM

To wit: June 13, 1990

State of Ohio, 7

Appellee, Case No. 90-415

V. ENTRY

Michael! G. Levine,

Appellant.

Upon consideration of the motion for leave to appeal from

the Court of Appeals for Cuyahoga County, and the claimed

appeal! as of right from said Court, it is ordered by the Court

that said motion is overruled and the appeal is dismissed

sua sponte for the reason that no sukstantial constitutional

question exists therein.

COSTS:

Motion Fee, $40.00, paid by Stege, Delbaum & Hickman

Co., L.P.A.

(Court of Appeals No. 56203)

/s/

THOMAS J. MOYER

Chief Justice

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COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

COUNTY-OF CUYAHOGA

NO. 56203

STATE OF OHIO

JOURNAL ENTRY

Plaintiff-Appellee

and

-VS-

OPINION

MICHAEL G. LEVINE

Defendant-Appellant:

DATE OF ANNOUNCEMENT

OF DECISION: JANUARY 25, 1990

CHARACTER OF PROCEEDING: Criminal appea' from

Common Pieas Court

Case No. CR-047714

JUDGMENT: Affirmed

. DATE OF JOURNALIZATION:

APPEARANCES:

For Plaintiff-Appeliee: For Defendant-Appellant:

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HENRY HILOW FRANKLIN J. HICKMAN, ESQ.

Assistant Prosecuting Attorney Stege, Delbaum & Hickman

Justice Center Co., L.P.A.

1200 Ontario Street Standard Building

Cleveland, Ohio 44113 Suite 1620

1370 Ontario Street

TIMOTHY J. MANGAN Cleveland, Ohio 44113-1701

Assistant Attorney General

State Office Tower

26th Floor

30 East Broad Street

Columbus, Ohio 43266-0419

ROBERT J. MAREK

6175 SOM Center Road, #200

Solon, Ohio 44139

J.-F. CORRIGAN, J.:

The defendant’ appeals from the trial court's judgment

ordering the defendant's continued commitment of a

maximum security mental health facility. On September 26,

1979 the trial court found the defendant not guilty by reason

of insanity of the aggravated murder of an elderly man, the

attempted aggravated murder of the man’s wife, and

associated kidnapping, aggravated burglary, and extortion

charges. The trial court, in 1980 and 1983, denied the

defendant's requests for release made pursuant to R.C.

2945.40. This court affirmed the trial court's latter order of

continued commitment. See State v. Levine (Nov. 5, 1984),

Cuyahoga App. No. 47976, unreported. This appeal arises

from the proceedings on continued commitment held in July

of 1988.

The defendant, in two assignments of error, argues that

(1) clear and convincing evidence does not support the trial

court's judgment, and (2) Ohio’s statutory scheme for the

For the sake of clarity, the appellant is referred to as defendant herein,

although he was found not guilty by reason of insanity.

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commitment of those found not guilty by reason of insanity

is unconstitutional as applied to him. These claims lack merit,

so we affirm the trial court's commitment order.

At the hearing on recommitment, the state argued that

the defendant was “mentally ill’. as defined under R.C.

5122.01(A) and that by virtue of his illness posed a danger

to others thus requiring his hospitalization as provided under

R.C. 5122.01(B)(2). The defendant claimed that he had

exhibited no symptoms of mental illness for seven years and

that he was effectively free of any mental illness which would

permit the state to continue his psychological commitment.

Since our review requires a consideration of the totality of

the circumstances in this case, we feel compelled to

thoroughly recount the evidence adduced atthe commitment

hearing. Cf. /n re Burton (1984), 11 Ohio St. 3d 147, paragrapn

one of the syllabus.

The state introduced the testimony of the dececent’s

widow who survived the defendant's attack and the

deposition testimony of the defendant's former wife. The

decedent's widow testified in regard to the nature of the

offense which resulted in the defendant being found insane.

The defendant's wife testified concerning tne defendant's

behavior during their marriage.

The decedent's widow testified that on May 2, 1979 at

approximately 7:30 a.m., the defendant and another man

came to the coupie’s apartment claiming to be police officers.

Upon entering the apartment, the two men drew guns and

the defendant in a “cold” and controlled manner, ordered

the decedent to telephone his stock broker to sel! the

decedent's stock for a certain amount of cash. However,

the decedent explained that he could not readily obtain casn

for such a stock transaction. Thereupon the defendant and

his accomplice conducted the couple to an automobile and

drove them to a loca! motel. Tnere tne decedent pleaded

for the couple's lives and promised to raise enough money

to satisfy the defendant's demands. However, tne defendant

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expressed dissatisfaction with the amount of these offers.

The defendant and his accomplice then escorted the two

to the automobile and drove aimlessly through the

neighborhood. At one point, they stopped in order to permit

the decedent to call his banker from a public telephone.

However, the decedent failed in his attempt to contact his

banker and he returned to the automobile. After driving for

a short while the decedent said “something” to the defendant

and the defendant turned around and shot the decedent

to death and then shot the decedent's wife.

The defendant's wife testified that she has known the

defendant since the two dated in high school in the early

1960's. She testified that during the time that they dated until

their marriage in 1968, the defendant would periodically have

sudden violent outbursts during which he would beat her.

On one occasion the defendant broke her nose. The witness

testified that periods of calm followed the defendant's violent

outbursts.

The witness testified that the defendant exhibited no violent

behavior during the first six years of their marriage. However,

in 1974, the defendant was hospitalized for one week in order

to treat depression. Thereafter the defendant came under

the regular care of psychiatrist, Dr. Pezso Levendula. While

under the doctor's treatment, the defendant again

experienced outbursts of violent behavior followed by

periods of calm. The defendant's former spouse testified that

the defendant vented accumulated persona! and business

stress in vioient outbursts against others. She stated that

in 1978 during a domestic quarrel, the defendant pulled a

phone out of a wall, punched a hole through the closet door,

threw household items against the walls of their home, and

smashed pictures and mirrors throughout tne house. The

defendant further grabbed his wife’s eyeglasses from her

face and shot holes in the wife’s automobile with a gun.

The witness testified that the defendant was under Dr.

Levendula’s care at the time of the murder.

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The defendant's wife further testified that the defendant

skillfully manipulated people. She stated that shortly after

the trial court committed the defendant after finding him not

guilty by reason of insanity, the defendant told her that he

would be free from incarceration in three months “because

he knew what he was doing.” The witness said that during

1979 and 1980 she received threatening letters and telephone

calls from the defendant. These threats discontinued after

she notified the local media. During this period the defendant

also made grandiose promises to the couple's three children.

She stated that she has had no contact with the defendant

since that time.

The defense introduced as evidence fourteen reports of

mental health professionals who did not testify at the hearing

but who had treated or examined the defendant at various

times since 1966. These reports provide a comprehensive

mental history of the defendant.

In 1966 the defendant obtained a release from jail, where

he had apparently been incarcerated on a forgery charge,

in order to admit nimself at a local hospital for treatment

of depression. He remained hospitalized for thirty-four days.

His treating physician entered the following diagnosis of the

defendant upon his release: “Schizophrenic reaction, schizo

affective type, associated with depression, severe,

improved.”

In 1974, the defendant again sought treatment for

depression and remained hospitalized for twenty-eight days.

The defendant admitted that he had an “urge to kill someone”

and described himself as a “walking bomb”. At this time

the treating physician diagnosed him as being a manic

depressive with “unipolar depression” and an “explosive

personality”.

Dr. Levendula, in a report prepared for the defendant's

counsel, in 1979 stated that he had treated the defendant

since 1973. The defendant first came to him complaining

of depression. During the next six years the doctor saw the

defendant on a regular basis two to eight times a month.

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The defendant revealed to the doctor homicidal and suicidal

urges. The defendant's voluntary hospitalization in 1974 came

as a result of the doctor’s recommendation. The doctor stated

that the defendant's homicidal and suicidal tendencies

appeared to have abated at this time through psychotherapy

and anti-psychotic medication.

In late 1978 and early 1979 the defendant, apparently

reacting to the stress of maintaining his private business

and the threat of separation from his wife, exhibited

increasingly violent tendencies.

On April 21, 1979, the doctor went to the defendant's house

at the request of his wife who claimed that the defendant

was in a violent rage and threatened her safety and the

safety of the couple's children. Upon his arrival, the defendant

appeared calm and denied his violent behavior. Three days

later the defendant met the doctor at his office. The doctor

stated in his report that the defendant appeared composed

at that time. Seven days after this final meeting with the

doctor, the defendant murdered the victim.

The doctor refrained from pronouncing a Clinical diagnosis

of the defendant in his report. He merely stated his opinion

that at the time of the crime the defendant had a defect

of the mind that so impaired his reason that he did not

appreciate the wrongfuiness of his acts and could not refrain

from committing them.

A defense psychiatrist, Dr. Emanuel Taney, filed a report

in 1979 in support of the defendant's claim that he was legally

insane at the time of the crime. The psychiatrist based his

report upon an interview with the defendant, reports from

other doctors on the issue of insanity, and the defendant's

medical records. He diagnosed the defendant as having “a

psychotic illness” which prec!uded his ability to refrain from

committing the criminal acts and which precluded his ability

to appreciate the wrongfulness of his acts.

The defendant also submitted as evidence the evaluations

of two court psychiatrists and one court psychologist ordered

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and received by the trial court in conjunction with the sanity

determination in 1979. See R.C. 2945.39.

Dr. Phillip J. Resnick of the county court of common pleas

psychiatric clinic examined the defendant for approximately

five hours over the course of four separate meetings in June

and July of 1979. In relation to the actual crime, the defendant

told him that “all the frustration went out of me with those

bullets.” The defendant claimed that he had never felt such

peace of mind. He felt no compassion or remorse for the

victim. The doctor diagnosed the defendant as having

“schizo-affective schizophrenia’ and an “explosive

personality”. He described the defendant at the time of his

evaluation as being ‘not actively psychotic.” The doctor, in

his evaluation of the defendant's mental status, stated that

the defendant had both suicidal and homicidal potential for

the future.

A second court psychiatrist, Dr. Stuart Younger, examined

the defendant for one hour on August 29, 1979 and for fifteen

minutes on September 5. This doctor too based his report

both upon his interviews with the defendant and records

filed with the trial court. He diagnosed the defendant as

having a “major” psychiatric i/iness which could variously

be labeled ‘manic depressive iliness’, “psychotic

depression”, “paranoid schizophrenia” or “schizo-affective

schizophrenia”. He described the defendant as having a

“[p]ersonality disorder characterized by impulsiveness,

outbursts of violence, amorality, and disregard for the feeling

of others.” The doctor stated:

“Although | saw no evidence of psychotic mental

iliness in my clinical interviews with the defendant,

ine history of psychosis in the two hospitalizations

and on the psychological testing *** is impressive.

My opinion from reading the various reports and

my interview with the defendant is that the severity

of the illhess waxes and wanes and at times tne

defendant is in remission by which | mean there

is no evidence of psychotic mental i!iness.”

ine lRtliiiai eile

A-64

Both court psychiatrists concluded that the defendant was

legally sane at the time of the attacks.

A clinical psychologist, Dr. Stanley Althoff, administered

various psychological tests to the defendant in June of 1979.

He determined that the defendant had “average” intelligence.

His initial clinical impression of the defendant was of a “mildly

depressed, impulsive, generally intact fellow.” However, he

stated tests revealed the defendant as being “prone to

episodic and violent affect storms where he likely explosively

[sic] releases stored up primitive aggression.” He found the

defendant to be “moderately manipulative” of others. The

doctor concluded,

“The outstanding feature of [the defendant's]

psychological testing is his preoccupation with

violence and destruction. ***. The results of the

psychological [testing] suggests a diagnosis of

schizophrenia, schizo-affective type, (depression),

with strong paranoid features.”

Two status reports written in 1980 by Dr. Lewis Lindner,

the clinical director at Lima State Hospital where the trial

court first committed the defendant, show that the defendant

continued to suffer from several mental impairments. The

report filed by the doctor in July of 1980 reveals the defendant

to have been “superficially cooperative’, concealing

considerable anger and hostility. The defendant appeared

preoccupied with vengeance against those perceived to

have wronged him. He manifested no remorse for his actions.

He diagnosed the defendant as being a paranoid

schizophrenic with a narcissistic and paranoid personality.

The doctor’s report of the panel review conducted by staff

members for the defendant in October of 1980 shows the

defendant to have been “extremely obsessed” with his 'egal

situation. The panel concluded that the defendant stil!

suffered from mental illness which posed a danger to others.

However, based upon the fact he had not exhibited recent

violent behavior, the panel recommended his transfer to a

civil mental hospital.

A-65

In response to this panel recommendation, the trial court

requested a review by a court psychiatrist, Frank Miller. The

doctor, in his report dated November 6, 1980, stated that

the defendant continued to exhibit no remorse for his acts.

He noted from the defendant's secretive conduct with Dr.

Levendula that the defendant “is capable of great deception.”

He diagnosed the defendant as having partia!ly remitted

“paranoid schizophrenia” and concluded that the defendant

remained dangerous and accordingly required continued

commitment in a maximum security facility.

In 1983, a panel consisting of Department of Mental Health

psychiatrists: Magdi Rizk, Jonn Davis, and John Vermeulen,

reviewed the defendant's mental status and submitted their

report to the trial court. They based their report, filed March

17, 1983, upon a two-hour interview of the defendant,

interviews with facility staff members, and a review of the

records in the case.

The panel found that the defendant had been generally

cooperative with staff members. Since the time of his

admission to the hospital on October 5, 1979, the defendant

had failed to exhibit violent or suicidal behavior or symptoms

of psychosis. His doctors discontinued prescribing anti-

psychotic medication in May of 1981. At the time of the review,

the defendant occasionally received small dosages of anti-

depressant medication in order to treat mild depression.

Before the panel, the defendant stated in explaining the

crime: “A senseless act of violence, it is hard for me to

believe that | took a human life ***.’’ The consensus of staff

members was that his mental iliness was in complete

remission. They reported that except for one time when the

defendant made verbai threats against the trial judge, he

had not exhibited physically aggressive or threatening

behavior.

The panel diagnosed the defendant as having a “Major

affective disorder, [b]ipolar depressed in full remission” and

a narcissistic personality disorder. They concluded that at

that time the defendant was not suffering from a mental illness

A-66

as defined under state law. However, the panel reported that

the defendant would always require treatment to combat

depression or psychosis to which he is predisposed. The

panel recommended his transfer to a less restrictive facility.

Dr. Tito Alquizola, staff psychiatrist at the Dayton Mental

Health center where the defendant was transferred to on

May 17, 1983, filed a status report concerning the defendant

on January 14, 1985. Based upon his review of the

defendant's records and an hour-long interview with the

defendant, the doctor reported that the defendant had

exhibited no symptoms of an affective disorder since his

admission to the facility. The doctor stated:

“It is possible that such symptomatologies as had

been observed before the offense are psychiatric

facets which [the defendant] shows when under

severe pressure such as is inevitable in the less

structured outside world. *** [I]t is quite possible

that the absence of very real pressures, such as

maintaining domestic and other relationships,

responding to business pressures, that freedom

from such stress are enough to prevent the

recurrence of his previous symptoms.”

The doctor concluded that the defendant had no thought

or affective disorder which required treatment of any kind.

However, he recommended continued psychotherapy in

order to monitor the possible recurrence of symptoms of

his previous mental disorders.

The Department of Mental Health formed a panel of two

staff psychiatrists, Dr. Jaseem Pasha and Dr. Joseph Trevino,

and one consulting psychologist, Dr. Thomas Martin, to

address Dr. Alquizola’s recommendation that the defendant

be discharged from the Dayton Mental Health Center. The

panel concluded that the defendant suffered from no mental

iiiness or personality disorder, nor represented a substantial

risk of physical harm to himself or others. The panel refused

to speculate concerning his future potentia! for violent

behavior, merely noting that those with a prior history of

] “ a

violent behavior have a greater propensity for violence in

the future than those without a history of violence. The pane!

accordingly recommended the discharge of the defendant.

The same panel evaluated the defendant at the end of

1985. In a report dated November 12, 1985, the pane!

reaifirmed its earlier conclusions, stating: ‘[The

defendant's] period of ‘insanity’ was of brief duration and

extremely self-limited, and clinically resolved itself

completely without the aid of any anti-psychotic

medications.’ Once again, the panel concluded that the

defendant was not subject to hospitalization.

At the hearing on recommitment, the state called as its

only expert witness Dr. Magdi S. Rizk, a court psychiatrist.

The state further called, as if on cross-examination, Dr. Jonn

Davis, the Medical Director for the Ohio Department of Menta!

Health.

The defendant called as its expert witnesses Dr. Pasha,

the defendant's treating psychiatrist at the Dayton Menta!

Health Center, Dr. William Mcintosh, psychology director at

the center, and two experts in forensic psychiatry, Dr. Pau!

Appelbaum and Dr. Kurt Bertschinger.

Dr. Rizk testified that he examined the defendant once

in 1979, once in 1982, once in 1985, once in 1987, and once

in 1988. He initially examined the defendant in connection

with his eligibility for civil commitment after his being found

not guilty by reason of insanity. The doctor testified that from

his examination of the defendant and the defendant's records,

he diagnosed the defendant has having “major affective

disorder, bipolar, depressed, in full remission.” He further

concluded that the defendant suffered from narcissistic

personality disorder.

The doctor explained that the term “major affective

disorder” meant that the individual suffered from severe

mood swings. The illness is characterized by swings of mood

between severe suicidal depression to reckless euphoria.

-

ee

A-68

The witness defined the term “bipolar depressed” as

describing an individual with a past history of manic attacks.

The doctor testified that an individual who has a specific

mental illness in remission either exhibits no symptoms of

the illness or exhibits only mild symptoms. He stated that

one cannot predict when a person in remission may suffer

a relapse.

The witness testified that the defendant's history indicated

that stress triggered the defendant's bouts of severe

depression. He opined that the Dayton Mental Health

Center's structured atmosphere involved less stress than

normal daily life. He stated that the defendant's exposure

to these outside pressures could possibly result in a relapse

of his condition. However, he stated that the defendant

currently shows no signs of a substantial disorder of thought,

mood, perception, orientation, or memory.

The witness testified that during his interviews the

defendant expressed remorse for his actions. Because the

defendant had exhibited no violent behavior or symptoms

of mental illness without medication since 1981, and because

he had cooperated with the facility's staff in his treatment,

the doctor recommended that the defendant be granted his

conditional release. The conditional release as

recommended by the witness, would involve continued

biweekly contact with a mental health professional and

notice to the trial court within twenty-four hours of the

defendants failure to attend one of those sessions.

Doctor Davis testified that he examined the defendant once

in 1982 as part of a panel review and once in 1988. He

testified that his 1988 examination of the defendant lasted

from one to two hours. The doctor denied advising the

defendant concerning strategy to obtain his release.

However, he admitted telling the defendant, “when you

approach [the trial judge], you have to approach it like a

poker game; aim high but be willing to settle in the middie

ground.” He further admitted discussing with the defendant

tne alternative to seeking conditional release as opposed

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to unconditional release. He denied being predisposed

toward obtaining the release of the defendant.

The witness testified that the defendant currently has no

mental iliness. He admitted diagnosing the defendant in 1982

as having an affective disorder, bipolar depressed, in

remission with a narcissistic personality disorder. However,

he hypothesized that that initial diagnosis may have been

incorrect since the defendant had had no psychotic episodes

for six years even though his medication had been

discontinued.

The doctor recommended that the defendant be

conditionally released to a civil hospital where he would

remain for 30 days undergoing observation. Thereafter, he

recommended that the defendant be released into society.

Dr. Pasha, in testifying on behalf of the defendant, stated

that he had been the defendant's treating psychiatrist at the

Dayton Mental Health Center since July of 1986. He further

testified that prior to that time he participated in a pane!

review of the defendant's mental! status in November of 1985

and personally examined him once in January of 1985. Tne

witness said that as his treating psychiatrist, he sees the

defendant generally once a week.

The doctor testified tnat since 1986 the defendant had

been assigned to the least restrictive ward in the facility

and has been afforded maximum privileges. The doctor has

not oberserved any symptoms of mental i!iness in the patient,

and accordingly, the defendant does not have a specific

treatment plan.

The witness testified that since nis admission to tne center

there is no documented instance where the defendant

exhibited behavior which would Nave placed another in fear

of harm. He further testified that he personally nas not

observed such behavior. He conciuded that the defendant

does not represent a threat of imminent daiiger to himself

or others.

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The doctor related several instances where the defendant

reacted to what the doctor described as “stressful” situations

in a normal manner. In the summer of 1987, the facility

temporarily transferred the defendant from the least

restrictive ward to the center's maximum security ward to

discipline him for the possession of certain banned personal

articles. The facility transferred him back to the maximum

privilege ward after a week. He was again transferred to

the maximum security ward shortly thereafter for three and

a half months for an undisclosed reason. In 1988, the state

transferred the defendant to the county jail in Cleveland in

order for him to undergo examinations conducted by a court

psychiatrist. Due to an administrative error, the defendant

remained at the jail during the weekend rather than being

immediately transfered back to the Dayton Mental Health

Center.

In each of these instances, the defendant complained

bitterly to authorities, but exhibited no vioient behavior. The

defendant further made vague threats that “someone would

pay’ for these actions. Dr. Pasha testified that the defendant's

response to each of these inconveniences fell within the

range of normal behavior. He interpreted the defendant's

threats as being threats of administrative and legal actions

rather than being threats of physical harm to any one

individual.

The witness admitted that the defendant had previously

been diagnosed in 1966 as “schizophrenic reaction, schizo

affective type.’’ He stated that such a diagnosis indicated

a chronic mental illness which has no known Cure.

The doctor, in conclusion, stated that the defendant did

not have a mental illness as defined by statute. He

recommended a release of the defendant with court ordered

follow-up psychiatric and psychological monitoring. The

doctor recognized that the defendant had some emotional!

stress problems that did not amount to a mentai illness.

However, he opined that the defendant would adjust “pretty

well’ to outside stresses because he had developed effective

coping strategies during his commitment. The doctor stated

A-71

that the defendant had a “fair to good” chance of never

being involved with the iaw again. He did not believe that

the defendant could have concealed a mental illness from

him or other staff members during his stay at the mental

health center.

Dr. William Mcintosh testified that he had been the

psychology supervisor at the Dayton Mental Health Center

since March of 1980 and the psychologist assigned to the

defendant's ward since February of 1985. He stated that he

has conducted formal psychological examinations of the

defendant in 1983, November of 1985, June of 1986, May

of 1987, December of 1987, and April of 1988. Tne doctor

testified that he sees the defendant either casually or formally

on a daily basis. He estimated his total amount of personal

contact with the defendant as exceeding one thousand

hours.

The witness described the defendant as being non-

aggressive and well-behaved. He opined that the defendant

expresses his anger and frustration in a norma! manner.

He testified that the defendant was twice transferred from

the privileged unit at the center to the most restrictive ward.

The first transfer resulted from the discovery by staff members

that the defendant possessed a cigarette lighter, a nail clipper,

and vitamin supplements in violation of the facility's

regulations. The second transfer occurred for a reason

undisclosed to him by the facility's administration.

However, the doctor claimed the administrators did not

transfer him for a clinical reason, nor did ne observe or

discover recorded instances of violent misbehavior. Dr.

Mcintosh testified that these transfers extremely upset the

defendant because he considered them unjust. However,

the defendant's reactions to those transfers fe!! within the

limits of normal behavior. His threats that “someone wou'd

pay’ constituted more of a genera! expression of anger and

frustration as opposed to a rea! threat of narm to anotner

A-72

Dr. Mcintosh testified that during the defendant's

commitment at the center the doctor observed no sign that

the defendant had a substantial disorder of thought, mood,

perception, orientation, or memory. Repeated psychological

tests conducted on the defendant revealed no sign of mental

illness. The witness stated that the validity components of

these psychological tests indicated that the defendant took

the tests in a “reasonably open” and “forthright” manner.

The doctor testified that during his commitment at the

center there have been no instances of direct physical

agaression involving the defendant. The doctor has observed

no characteristics of dangerous behavior in the defendant

and concluded, based upon both his current and past

behavior, that the defendant poses no current threat of

danger to anyone. The doctor recommended the conditional

release of the defendant with court-ordered monitoring by

a mental health professional.

The witness agreed that various mental health

professionals had previously diagnosed the defendant as

having various chronic, incurable mental illnesses. However,

he concluded from his examinations and the review of the

defendant's medical history that those diagnoses were

incorrect according to current standards.

The witness agreed that the defendant would experience

substantially different stresses in the outside world than the

stresses he faces within the mental health facility.

Dr. Appelbaum testified that he reviewed the defendant's

entire treatment record and examined the defendant in May

of 1988 for approximately four hours. The doctor stated that

he found no evidence that the defendant suffered from a

substantial disorder of thought, mood, perception orientation,

or memory.

In determining whether the defendant posed a danger to

others, the doctor first noted that the defendant had exhibited

no violent behavior since 1982. He deemed the

circumstances of the defendant's commitment to be highly

ee

A-73

stressful and further considered as exacerbating this stressful

situation the defendant's failures to obtain his release. He

found the absence of violent outbursts during his

commitment to be even a more compelling factor in light

of the stressful circumstances. In addition, the witness took

into account the defendant's apparent lack of vengeful

motives and the current absence of the symptoms of mental!

disorder evident at the time of the crime. Based upon his

consideration of these factors the doctor opined that the

defendant represents a low risk of danger to others during

a period of several months following his release. The doctor

stated that he could not make a prediction based upon

reasonable medical certainty beyond that period because

he could not predict the environmental factors that could

impact the defendant. He offered that continued professional!

outpatient monitoring of the defendant would be required

after his release in order to assess the defendant's reaction

to stresses encountered in the outside world.

The doctor testified that during his interview the defendant

expressed remorse concerning the crime and the harm

caused to the victims’ family and his own family.

Dr. Bertshinger testified that he examined the defendant

in March of 1988 for approximately two hours at the behest

of the Department of Menta! Health. He further spent two

and one-half hours reviewing the defendant's clinincal

records.

The doctor testified that based upon the interview and

the defendant's records the defendant suffered from no

mental illness. He doubted that the defendant has been able

to conceal a mental illness since the records of the Dayton

Mental Health Center disclosed that the defendant has

exhibited no symptoms of mental illness since his admission.

The witness further stated that he was satisfied that the

defendant posed no threat to others. Dr. Bertschinger based

his opinion upon the fact that the defendant had exhibited

no violent behavior since his commitment at the menta

health center in 1982. The doctor recommended the

conditional release of the defendant which would include

A-74

a transitional two-month commitment at a civil mental

hospital followed by indefinite outpatient monitoring.

The trial court, upon considering this evidence, determined

that the defendant was mentally ill as defined by R.C.

5122.01(A) and subject to hospitalization pursuant to R.C.

5122.01(B)(2). Accordingly, the trial court ordered his

recommitment to the Dayton Mental Health Center.

The defendant, in his first assignment of error, argues that

clear and convincing evidence does not support the trial

court’s recommitment order.

A trial court may order the continued commitment of an

individual where clear and convincing evidence establishes

that that individual is a mentally ill person subject to court-

ordered hospitalization. See R.C. 2945.40(C); R.C. 5122.15(C).

“ ‘Mental illness’ means a substantial disorder

of thought, mood, perception, orientation, or

memory that grossly impairs judgment, behavior,

Capacity to recognize reality, or ability to meet the

ordinary demands of life.”

R.C. 5122.01(A). R.C. 5122.01(B) provides in relevant part:

“ ‘Mentally ill person subject to hospitalization

by court order’ means a mentally ill person who,

because of his illness:

kek &

(2) Represents a substantial risk of physical

harm to others as manifested by evidence of recent

homicidal or other violent behavior, evidence of

recent threats that place another in reasonable fear

of violent behavior and serious physical harm, or

other evidence or present dangerousness;

A-75

eo 2 ae

In making the determination of whether a person is subject

to hospitalization under R.C. 5122.01(B), the trial court must

consider the “totality of the circumstances.” Cf. /n re Burton

91984), 11 Ohio St. 3d 147, paragraph one of the syllabus

(commitment upon determination that defendant

incompetent to stand trial).

“Factors which are to be considered by the court

inacommitment hearing include, but are notlimited

to, the following: (1) whether, in the court's view,

the individual currently represents a substantial risk

of physical harm to himself or other members of

society; (2) psychiatric and medical testimony as

to the present mental and physical condition of

the alleged incompetent; (3) whether the person

has insight into his condition so that he will

continue treatment as prescribed or seek

professional assistance if needed; (4) the grounds

upon which the state relies for the proposed

commitment; (5) any past history which is relevant

to establish the individual's degree of conformity

to the laws, rules, regulations and values of society;

xx"

Id. at 149-150. A trial court must evaluate a person's present

mental state in light of his current behavior, recent behavior,

and his past dangerous propensities. /d. at 149.

While the trial court must consider the expert medical

testimony in determining whether continued hospitalization

shall be ordered, the question of release is ultimately one

of law. Cf. DeVeau v. United States (D.C. App. 1984), 483

A.2d 307, 312 (construing analogous District of Columbia

code section). Accordingly, the trial court is not required to

accept the consensus of medical opinion concerning the

issues of whether an individual has a mental illness or

whether an individual poses a danger to society. Cf. id.

The trial court has broad discretion in making the

a

A-76

determination as to whether commitment shall be continued.

Cf. id., at 149-150. Accordingly, this court shall not reverse

the trial court's commitment order absent an affirmative

showing that the trial court acted unconscionably, arbitrarily,

or unreasonably. Cf. id.

We find that the trial court properly exercised its discretion

in ordering the defendant's continued commitment.

Substantial evidence establishes that the defendant suffers

from a mental illness as defined under R.C. 5122.91(A). Dr.

Rizk diagnosed the defendant as having a “major affective

disorder, bipolar, depressed”. Nine other mental health

professiona!s have at various times diagnosed the defendant

as having similar mental disorders. Both the state's expert

witness and the defendant's expert witnesses testified that

these diagnoses represent substantia! mental disorders

which are chronic in nature and incurable.

We recognize the Dr. Rizk testified that the defendant's

mental illness is in “full remission’. An individual whose

mental illness is in a state of remission is subject to continued

commitment pursuant to R.C. 5122.01(B) if there is a

“substantial likelinood” that the individual's release will result

in physical harm to others. /n re Burton, supra, at 150. This

determination shal! be made on a case by case basis. Cf.

State v. Levine, supra.

The circumstances in this case warrant the defendant's

continued commitment. In determining whether a person who

nas a mental! illness in a state of remission poses a danger

to society the trial court must consider (1) the cause of the

remission, and (2) the probability that the individual will

continue treatment to maintain the remissive state of his

iliness upon his release. Cf. /d,

Three factors predominate in explaining the defendant's

‘remission’. First, the defendant's modification of his

threatening behavior coincided with his appreciation of the

ega! consequences of his conduct. The evidence discloses

tnat tne prospects for release highly motivate him to conform

nis conduct to social norms.

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Secondly, the defendant currently lives in a highly

structured environment. While we are cognizant that the

defendant does not exist in a stress-free vacum, the stresses

the defendant currently must deal with differ in kind and

in degree with the stresses encountered in the outside world.

The evidence substantiates the fact that the build-up of stress

triggers the defendant's violent behavior. Accordingly, the

defendant's current release would involve the substantial risk

that any future personal or business failure would cause the

defendant to react violently.

The third factor to be considered in explaining the fact

that the defendant currently fails to exhibit symptoms of

mental illness is the periodic nature of his disorder. The

defendant's history prior to the offense discloses that the

defendant has had periods for as long as eight years during

which he has functioned at a very high level. Approximately

eight years have passed since the last time the defendant

exhibited violent tendencies. Given the likelinood that (1)

the fact that the defendant is currently motivated to obtain

his release, and (2) the fact that he currently resides in a

relatively stress-free environment are circumstances whicn

serve to inhibit the frequency of his periodic violent outbursts,

release at the current time would be premature.

In evaluating the probability that the defendant would

continue treatment upon his release, three factors impress

this panel. First, the paucity of evidence that tne defendant

feels remorse and/or sorrow with regard to the attack on

the victims or that the defendant fully appreciates nis

condition. At the hearing the defendant represents througn

counsel that he has no mental iliness. Thus, itis problematica

that upon his release the defendant would seek neip in

ensuring the continued remission of his i|/ness.

Moreover, the defendant appears to jack fundamenta

insight into why he committed the offense. Tne record does

not reveal that the defendant believes that his acts of vio'ence

resulted from a mental iliness. To the contrary, tne record

reveals that the defendant may fee! tnat ne acted for non

pathological reasons. Throughout nis interviews with menta

EEE

A-78

health professionals the defendant has characterized the

plan which resulted in the killing as a “money-making

scheme’. The defendant in one letter to his wife indicated

that the crime “was an act of rebellion against society, and

its lies and false beliefs.’

Nowhere in the record does it indicate that any of the

mental health professionals ascertained what Mr. Levine

meant by that revealing statement. A reasonable

interpretation of the statement is that somehow the brutal!

kidnapping, wounding and murder were justified and were

motivated by a sincere desire to protest the “lies and false

beliefs’ of society.

In concluding that the trial court properly ordered the

defendant's recommitment, we are also mindful of the nature

of the offense which resulted in the defendant's

nospitalization in a maximum security mental! health facility.

Ten years ago, the defendant brutally slew an elderly man

and severely wounded his wife. This circumstance, in

conjunction with the circumstances discussed above,

requires the trial court to act with deliberate caution prior

to permitting the defendant to reenter society. For these

reasons we also conclude that pursuant to R.C. 5122.15(E),

the decision of the trial court that the Dayton Mental Heaith

Facility constitutes the least restrictive setting for appellant's

commitment is justified since that determination is consistent

with both his treatment needs and public safety concerns.

State v. Johnson (1987), 32 Ohio St. 3d 109.

Accordingly, we overrule the defendant's first assignment

of error and affirm the trial court's commitment order.

2 It should be noted in 1982 a review pane! of Department of Mental

Health psychiatrists reviewed Mr. Levine's status and found that since

the time of his admission to the hospital on October 5. 1979 he failed

to exhibit violent or suicidal behavior or symptoms of psychosis. The

letter to his wife was written on March 18, 1980.

———— ee

nt

A-79

The defendant, in his second assignment of error, raises

various Claims challenging the constitutionality of Ohio's

statutory commitment scheme as applied in this case. Our

review of the record discloses that the defendant has waived

these claims since he failed to raise them with the trial court.

See State v. 1981 Dodge Ram Van (1988), 36 Ohio St. 3d

168, 170. Furthermore, this court in substance addressed

and overruled these claims in the defendant's prior appeal.

See State v. Levine, supra, slip opinion at 7-9.

Accordingly, we overrule the defendant's second

assignment of error and affirm his recommitment to the

Dayton Menta! Health Center.

Judgment affirmed.

It is ordered that appellee recover of appel!ant its costs

nerein taxed.

The court finds there were reasonable grounds for this

appeal.

lt is ordered that a specific mandate issue out of this curt

directing the Common Pleas Court to carry this judgment

into execution. The defendant's conviction having been

affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shal! constitute the mandate

pursuant to Rule 27 of the Rules of Appeliate Procedure.

SWEENEY, P.J., and

PARRINO*, J., CONCUR.

/s/

JOHN F. CORRIGAN

JUDGE

*Judge Thomas J. Parrino, Retired of the Eighth District Court

of Appeals, sitting by assignment.

A-80

N.B. This entry is made pursuant to the third sentence of

Rule 22(D), Ohio Rules of Appellate Procedure. This is an

announcement of decision (see Rule 26). Ten (10) days from

the date hereof this document will be stamped to indicate

journalization, at which time it will become the judgment

and order of the court and time period for review will begin

to run.

STATE OF OHIO IN THE COURT OF

CUYAHOGA COUNTY ) SS. COMMON PLEAS

MAY TERM, 1988

To WIT: _YULY 1 1988

STATE OF OHIO Plaintiff : No. —CR- 047714

VS. INDICTMENT

- AGGRAVATED MURDER

MICHAEL G. LEVINE ATTEMPT AGGRAVATED

- MURDER. KIDNAPPING

Defendant :. AGGRAVATED BURGLARY

EXTORTION

JOURNAL ENTRY

PETITIONER RESTS. ARGUMENT. COURT FINDS

PETITIONER LEVINE TO BE A MENTALLY ILL PERSON,

SUBJECT TO HOSPITALIZATION BY COURT ORDER

PETITIONER LEVINE RECOMMITTED TO DAYTON

FORENSIC CENTER. PER 2945.40. REVISED CODE OF

OHIO. RETURN ORDERED.

JUDGE /S —

JOHN L. ANGELOTITA

561 MED 07/13/88 09:17

A-82

State of Ohio vs

Michae! Levine

MONDAY, JULY 11, 1988 PROCEEDINGS

THE COURT: Ten years ago Michae! J. Levine snot and

killed Mr. Julie Kravitz and wounded his wife.

This Judge was obliged, under the law, to determine

whether the then Defendant was guilty of murder or whether

or not he was not guilty be reason of insanity

Testifying for the now Petitioner were, among others,

psychiatrists Dezlio Levendula, Emanuel! Tanay, Frank Miller.

Medica! records of the 1966 commitment of St. Vincent

Charity Hospital and a 1974 commitment at Mt. Sinai Hospital

authored by psychiatrists Charles Centa and Dr. Manue

Arlen were received in the evidence. Psychologica’!

evaluations were also received in the evidence.

Diagnosis included schizophrenia, manic depressive,

major affective disorder bipolar.

Now, regardless of what label you put on the illness, al!

of the doctors agreed that Michae! J. Levine was psychotic.

The evidence was abundantly clear that he suffered

chronic illness for which there was no known cure.

Believing the above-named doctors, | made a finding of

not guilty by reason of insanity.

Mr. Levine was committed to the Lima State Hospital. Since

then Dayton Forensic Center is the substituted hospital of

commitment.

Today the question before this Judge is whether or not

the Petitioner, Michael J. Levine, is a mentally i!l person

subject to hospitalization by court order. Again, | ask that

the record reflect that | charge myself with the applicable

law.

A-83

VS At this hearing the past few days, al! the doctors agreed

ne that past history is relevant. Some say past history is crucial.

Past history includes the fact that Mr. Kravitz was killed and

Mrs. Kravitz was wounded by reason of a sudden outburst

of anger and violence.

The record is replete with other such instances of anger

and violence, whether they be upon Dr. Levendula, Judge

ne Angelotta or Mrs. Linda Levine, and the record includes other

sundry and lesser instances or events.

Also in evidence is the colloquy between Dr. Resnick and

TS, Michael Levine, and | quote Dr. Resnick: “Shooting at a

er. side of beef or a rabid dog. No remorse. Feeling no worse

nt initially than if | had killed an ant. All the frustration went

ital out of me with those bullets. | never felt such peace of mind.

Je He reports that he felt he had no control over his actions.”

Cal Unquote.

And then the most troublesome statement of ali, again

ve, quoting Dr. Resnick: “Mr. Kravitz continued to say ‘lm

dying.’ This meant nothing to Michael Levine. When he left

Mr. Kravitz dying in the car, he felt no compassion or remorse.

al He did not feel he was shooting a human being.”

Past history tells us that in unstructured situations, he is

‘ed prone to viclence and destruction. He becomes

overwhelmed when emotions are stimulated. Primitive

aggression would most accurately describe his responses

of and his actions. He decomposes, as the doctors would say.

The letters to Mrs. Linda Levine, an after the fact

ice occurrence, are most grievous. They generally express a

of desire to kill, should the Petitioner be released. | genuinely

fear for the life of this lady.

not Now, | appreciate that all the doctors who testified at the

ion hearing suggest that Mr. Levine should be conditionally

hat released.

ble

_——

A-84

Dr. Rizk tells us that he is quote ‘vulnerable if under stress,

a liability,’ unquote.

Dr. Pasha suggests that the prognosis is quote, “fair to

fairly good” unquote; that cnances are that quote “he will

not become involved with the law again,” unquote.

Dr. Appelbaum has familiarized himself with this case only

over the past several months. Essentially he tells us that

all of the doctors and all of the psychologists who have

cared for and treated this patient over the years are wrong

in their diagnosis. How insulting and offensive.

Then we have the Medical! Director of the Ohio Department

of Mental Health, Dr. John M. Davis. When this fellow was

questioned as to this credentials, he states, quote, ‘‘Where

do you want to begin?” unquote. Upon further inquiry as

to credentials, he states, “How much time do we have?”

unquote. Must | say more?

The medical evaluation of Mr. Levine as conducted by

Dr. Davis was recorded on tape. We have not heard this

tape recording in open court. | find that it is not necessary

to hear the tape because the doctor admits on cross

examination that he did 90 percent of the talking; that the

Subject matter of the discussion was release strategy.

The doctor admits that he told Mr. Levine that release is

like a poker game. Approach Judge Angelotta aiming high

but settle in low.

This testimony of Dr. Davis really doesn't deserve further

comment.

Dr. Mcintosh. This man is a psychologist, not a psychiatrist.

A psychiatrist is a medical doctor. Only a medical doctor

can give a medical opinion in a court of law.

A-85

S. Dr. Mcintosh must come from the same school as Dr. Davis.

Stated more succinctly, | question the integrity of the release

process as practiced by the Ohio Department of Mental

tO Health.

Dr. Bertschinger, a witness receiving compensation from

both sides. This Judge cannot deal with maybes and

ly probablies. | need yes and no. Either one is mentally il! or

at he is not mentally ill.

/e |

1g Doctors can diagnose a broken leg. Doctors can diagnose

a heart attack. Doctors can only perhaps diagnose mental

iliness. The state of a person's mind is obviously a matter

nt of opinion.

AS . |

re Given the fact that psychosis is an iliness for which there

aS is no known curre, | find that the perhaps well meaning

- a doctoral diagnosis of remission and recommendation of

conditional release to be in error. Or, stated in a more legal

sense, the testimony not to be credible.

Dy

lis The State of Ohio has proven by clear and convincing

ry evidence that Michael J. Levine is a mentally il] person whose

Ss mental illness represents a substantial disorder of thought,

he mood and perception that grossly impairs his judgment,

behavior and capacity to recognize reality or ability to meet

the ordinary demands of life.

is

gh In finding Michael J. Levine to represent a substantial risk

of physical harm to others. | find him to be dangerous.

ler lt is therefore, ordered that Michael! J. Levine be

recommitted to the Dayton Forensic Center.

ist. Mr. Ryan, please adjourn the court.

tor

(Proceedings concluded.)

—

A-86

FILED, APRIL 14, 1993

Nos. 92-3625/3712

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MICHAEL LEVINE

Petitioner-Appellee,

V. . ORDER

PATRICIA TORVIK

Respondent-Appellant

and

STEPHANIE TUBBS-JONES

Intervenor-Appellant

BEFORE: GUY and RYAN, Circuit Judges; and CHURCHILL,

Senior District Judge.*

In separate filings, the appellants have petitioned for

rehearing and moved for an order staying issuance of the

mandate pending application to the Supreme Court for a

writ of certiorari or, in the alternative, staying issuance of

the mandate pending application to the Supreme Court for

a stay. The appellee has responded in opposition to the

motion for stay of the mandate.

Upon consideration of the petition for rehearing, it is

ORDERED denied.

The motion for stay of the mandate is granted conditionally

and issuance of the mandate is stayed for 30 days beyond

The Honorable James P. Churchill, Senior United States District Judge

for the Eastern District of Michigan, sitting by designation

A-87

the seven-day period automatically allowed by Fed. R. App

P. 41(a) when a petition for rehearing is denied

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

s/Leonard Green

BEST AVAILABLE COPY

A-88

OHIO REVISED CODE § 5122.01 Definitions

(A) “Mental illness” means a substantia! disorder of

thought, mood, perception, orientation, or memory that

grossly impairs judgment, behavior, capacity to recognize

reality, or ability to meet the ordinary demands of life.

(B) “Mentally ill person subject to hospitalization by court

order” means a mentally ill person who, because of his

illness:

(1) Represents a substantial risk of physical harm to

himself as manifested by evidence of threats of, or attempts

at, suicide or serious self-inflicted bodily harm;

(2) Represents a substantial risk of physical harm to

others as manifested by evidence of recent homicidal or

other violent behavior, evidence of recent threats that place

another in reasonable fear of violent behavior and serious

ohysical harm, or other evidence of present dangerousness;

(3) Represents a substantial and immediate risk of

serious physical impairment or injury to himself as manifested

by evidence that he is unable to provide for and is not

providing for his basic physical needs because of his mental

illness and that appropriate provision for such needs cannot

be made immediately available in the community; or

(4) Would benefit from treatment in a hospital for his

mental illness and is in need of such treatment as manifested

by evidence of behavior that creates a grave and imminent

risk of substantial rights of others or himself.

OHIO REVISED CODE § 5122.15(H) Full hearing;

disposition; mandatory hearing on continued commitment

(H) If, at the end of the first ninety-day period or any

subsequent period of continued commitment, there has been

no disposition of the case, either by discharge or voluntary

admission, the hospital, facility, board, agency, or person shal!

discharge the patient immediately, unless at least ten days

VWe

d

nt

A-89

before the expiration of the period the designee of the

attorney general, the attorney the board designates, or the

prosecutor files with the court an application for continued

commitment. The application of such attorney or tne

orosecutor shal! include a written report containing tne

diagnosis, prognosis, past treatment, a list of alternative

treatment settings and plans, and identification of the

treatment setting that is the least restrictive consistent with

treatment needs. The attorney the board designates or the

prosecutor shall file such written report at least three days

prior to the full hearing. A copy of the application and written

report shall be provided to the respondents counse

immediately

The court shal! hold a full hearing on applications for

continued commitment at the expiration of the first ninety-

day period and at least every two years after tne expiration

of the first ninety-day period

Hearinas following any application for continued

mimitment are mandatory and may not be waived

} 1 receipt of a pers involuntarily committed under

section. or the person’s counse!, made more tnan one

lee wl . ahets wT ~Attor \'a + f ata

indred eighty days after the persons last full nearing

nandatory or requested, the court shai! hold a full hearing

yn the person's continued commitment. Upon tne application

»f a person involuntarily committed under this section or

section 2945.40 of the Revised Code, supported by an

affidavit of a psychiatrist or licensed clinica! psychologist,

alleging that the person is no longer mentally il! subject to

hospitalization by court order, the court for good cause snown

may hold a full hearing on the person's continued

commitment prior to the expiration of one hundred eighty

days after the person's last full hearing. Section 5122.12 of

the Revised Code applies to all hearings on continued

commitment.

If the court, after a hearing for continued commitment finds

clear and convincing evidence that the respondent is a

mentally ill person subject to hospitalization by court order,

EEO

A-90

the court may order continued commitment at places

specified at division (C) of this section.

Whenever a hospital, facility, board, agency, or person

intends to discharge a person who was found incompetent

to stand ‘trial and whose commitment resulted from an

affidavit filed pursuant to division (C) of section 2945.38 of

the Revised Code, the chief clinical officer of the hospital,

board, agency, or facility or the person shall give notice of

the discharge to the prosecutor and, when the respondent

is committed to a public hospital, to the attorney genera!

at least ten days prior to the date on which the person will

be discharged. Whenever a hospital, facility, or person

intends to discharge a person who was found not guilty by

reason of insanity and whose commitment was pursuant to

section 2945.40 of the Revised Code, the chief clinical officer

of the nospital or facility or the person shall not discharge

the person until he has complied with division (F) of section

2945.40 of the Revised Code.

A-91

Respectfu

LEE FISHER

Attorney Genera

JOHN J. GIDEON

Assistant Attorney Gener

COUNSEL OF RECORD

State Office Tower, 26t

30 East Broad Street

Columbus, Ohio 43266-041(

(614) 644-7233

COUNSEL FOR PETITIONERS