Com. v. Nassar
| Decision Date | 20 June 1980 |
| Citation | 406 N.E.2d 1286,380 Mass. 908 |
| Parties | COMMONWEALTH v. James John NASSAR, Third (and a companion case 1 ). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Francis X. Spina, Asst. Dist. Atty., for the Commonwealth.
Joseph W. Monahan, III, Boston, for Patricia Anne Nassar.
Michael J. Ripps, North Adams, for James John Nassar, Third.
Robert D. Fleischner, Springfield, and Marilyn Schmidt, Boston, for Mental Patients Advocacy Project, amicus curiae, submitted a brief.
Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.
On May 15, 1979, after a bench trial in Superior Court, Berkshire County, the present respondents James John Nassar, III, and his wife Patricia Anne Nassar were found not guilty by reason of mental illness of the crimes of child abandonment (G.L. c. 119, § 39) and manslaughter (G.L. c. 265, § 13) incident to the death of their sixteen months old, third child Joshua. Under the provisions of G.L. c. 123, § 16 (a ), the judge ordered the respondents to be committed to the Department of Mental Health (Department) and hospitalized for observation. That observation having taken place, the district attorney petitioned the court under § 16 (b ) for the involuntary commitment of the respondents to a facility. See generally Commonwealth v. Killelea, 370 Mass. 638, 647, 351 N.E.2d 509 (1976). After hearing, at which there was psychiatric testimony for the Commonwealth and for the respondents, the judge (who had not presided at the criminal trial) held that the respondents should be released from commitment, but, being doubtful about his decision involving the interpretation of the statute, he stayed entry of judgment and reported the case to the Appeals Court under G.L. c. 231, § 111, Mass.R.Civ.P. 64, 365 Mass. 831 (1974). We transferred the case here on our own motion. G.L. c. 211A, § 12.
A. We present an outline of the psychiatric testimony, first describing how these witnesses reconstructed the respondents' impulsions leading to the death. The respondents, twenty-five years (James) and twenty-four years old at the time of hearing, had been married some six years and had led a seminomadic, reclusive life, relying largely on handouts from others to keep themselves going. They believe they were sanctified and among those selected to be saved. Through prayers they communicated in a telepathic way with God and were given instructions what to do; but they had to be wary to sense which of the messages were truly from God. Any true instructions were to be obeyed without question. Since the respondents had to be available at all times to do God's bidding, they could not undertake to work for a living, although James occasionally did odd jobs. Nor would they accept welfare help or have dealings with any government agency.
The respondents had had four children. Two of them were born at home and their births were unrecorded. Because of the respondents' manner of life, the care of children was burdensome for them. But they regarded the children as also sanctified. On occasion, in response to God's instructions, the respondents evidently ceased to feed their children, in the belief that the children's fast would help the unfortunate in India. The respondents no longer have custody of the two older children; it is understood that Sarah was given up for adoption in 1974 and Johanna was taken from the respondents in August, 1978, and placed in a foster home. See G.L. c. 119, § 32, 51B.
In September, 1977, the respondents received instructions to abandon Joshua; probably they had some expectation that he would be picked up and cared for by strangers. They believed they had left him at a church in Vermont and not on the steps of a church in North Adams where in fact he was found. When found, Joshua was dead; although no single cause could be ascribed, it was clear that the child was extremely malnourished. The respondents indicated they did not believe the dead child was Joshua. At the time of the abandonment of Joshua, Patricia was pregnant with Elizabeth. According to the respondents, this child, less than a year old, expired in her sleep, and it appears the respondents disposed of the body as garbage. Criminal proceedings against the respondents regarding this event were in process at the time of the § 16 (b ) hearing.
To turn to the psychiatric analyses. The witnesses agreed that the respondents were gravely ill, suffering from chronic schizophrenia, paranoid type. Their divorce from reality was in the form of a strong shared delusional system, originating in religious belief but now corrupted or distorted. In following the will of God as communicated to them, the respondents felt no personal responsibility, and therefore they evinced no emotion about the two deaths or the fate of their other children. Their "affect" was flat. To restore the respondents to normality or something approaching it would require extensive psychotherapy and likely a separation of the pair to break up their mutually reinforcing mental patterns.
What could be expected if the respondents were released? It was common ground among all the witnesses that any children born to the respondents and they were a fecund couple 2 would be in serious peril from them, and there was some inferential suggestion that this might apply to other children as well, at least if they should fall into the respondents' custody over a period of time. There was also agreement that at a stage in treatment where either respondent or both began to overcome the delusional system and started to recognize a responsibility for what had happened to their children, suicidal or aggressive behavior toward others might burst out. With respect to Patricia, in particular, there was testimony of powerful repressed rage and hostility.
These forecasts were contingent on eventual access to children or breakdown of the paranoid system. As to more immediate prognosis, the testimony diverged.
On one side, it was suggested that the divine instructions might call for acts of omission or commission as serious as those in the case of Joshua, or worse, and not limited in object to a child. The orders if "true" would be followed by the respondents in automatic fashion, for they were relieved of any sense of individual responsibility or guilt. Especially if released together, the respondents would continue as prisoners of their delusional system. The Commonwealth, basing itself on this line of testimony, said it would be foolhardy to allow at large persons who had caused one death and were possibly involved in another, had escaped criminal punishment thus far only by reason of mental incapacity at the time, and were still sick and prepared to answer wayward instructions that might be projected by their own diseased imaginations. 3
On the other side, witnesses suggested that the respondents if released would resume their isolated existence and a way of life that had been recessive rather than aggressive. The instructions they had received about Joshua reflected their inability to meet a child's needs and their response of abandonment was essentially negative. These witnesses were willing to extrapolate narrowly from Joshua's case to forecast danger to siblings, but they could see no significant current probability of peril to others or to the respondents themselves.
B. The legal question for the judge was posed by G.L. c. 123, § 8 (a ) 4, as appearing in St. 1976, c. 356, § 3, which, to justify involuntary commitment, requires findings that "(1) such person is mentally ill, and (2) the discharge of such person from a facility would create a likelihood of serious harm." "Likelihood of serious harm" is defined by § 1:
" 'Likelihood of serious harm', (1) a substantial risk of physical harm to the person himself as manifested by evidence of threats of, or attempts at, suicide or serious bodily harm; (2) a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them; or (3) a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person's judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community." 5
There was no question about the mental illness which had manifested itself in the conduct fatal to Joshua, and which continued. 6 As to "likelihood," each subdivision of the definition is predicated or conditioned on the manifestation of described "evidence." It will be seen in the following discussion that subdivision (2) is the critical one, and that there is doubt whether the judge interpreted it as we hold it should have been. Thus the case will be remanded for further proceedings. We subjoin a few other brief comments about the case.
1. Subdivisions (1) and (3) of the definition deal with a prospect of harm to the person whose commitment is sought. As to subdivision (1), the judge correctly held there was no evidence that the respondents had made threats of, or attempts at, suicide or serious bodily harm which "manifested" a "substantial risk of physical harm" to themselves. And as to subdivision (3), it was enough to say evidence was lacking that the respondents were unable to protect themselves in the community; they had, after all, managed to sustain themselves, however marginally, over a period of years.
2. Subdivision (2) deals with the prospect of harm to others. It calls for "evidence of homicidal or other violent behavior" or "evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them." These are two alternative predicates, and we concentrate on the first. We are of the opinion that that predicate was established by...
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