Duperry v. Kirk

Citation563 F.Supp.2d 370
Decision Date03 July 2008
Docket NumberCivil Action No. 3:06cv951 (SRU).
CourtU.S. District Court — District of Connecticut
PartiesAdam DUPERRY, Petitioner, v. Thomas A. KIRK, Jr., Respondent.

Brett Dignam, Jerome N. Frank Legal Services Organization, Yale Law School, Christopher Nelson Lasch, Yale Law School-Pob, New Haven, CT, for Petitioner.

Jo Anne Sulik, Chief State Attorney Office, Civil Litigation Bureau, Rocky Hill, CT, for Respondent.

RULING ON PETITION FOR HABEAS CORPUS

STEFAN R. UNDERHILL, District Judge.

Petitioner Adam DuPerry brings this petition for a writ for habeas corpus pursuant to 28 U.S.C. § 2254, challenging his continued confinement under the jurisdiction of the Psychiatric Security Review Board (the "PSRB"), which is the division of the Connecticut Department of Mental Health and Addiction Services charged with the custody of persons found not guilty by reason of mental disease or defect. In December 1988, the Connecticut Superior Court found DuPerry not guilty by reason of insanity of felony arson and bomb manufacturing charges. DuPerry seeks a writ vacating his plea of not guilty by reason of insanity on several grounds, notably that his waiver of fundamental constitutional rights when entering his plea was not knowing and voluntary. For the reasons set forth below, DuPerry's petition is granted.

I. Background
A. Charged Offense

On April 21, 1988, DuPerry was arrested and charged with arson in the first degree, in violation of Conn. Gen.Stat. § 53a-111, and manufacture of a bomb, in violation of Conn. Gen.Stat. § 53-80a, in connection with a pipe bomb explosion at the Institute of Living in Hartford, Connecticut on March 24, 1988. Al, A16, A194-95. DuPerry entered an initial plea of "not guilty" and requested a jury trial. After DuPerry's arraignment, on April 25, 1988, Dennis O'Toole, an assistant public defender, was appointed to represent DuPerry. A68, A170.

B. Change of Plea Negotiations and Trial

Following his appointment, O'Toole met with Kevin McMahon, the assistant state's attorney assigned to the case, to discuss a possible plea bargain. A70-71. McMahon initially offered DuPerry a plea deal for a thirty-five year prison sentence, suspended after twelve years, in exchange for his guilty plea. Believing that a mental health defense might be a viable possibility in the case, O'Toole had Dr. Walter Borden, a psychiatrist, examine DuPerry. A174-75. Dr. Borden concluded that DuPerry did not understand the wrongfulness of his conduct at the time he committed the crime and that an insanity defense would be appropriate. A175. After O'Toole presented McMahon with Dr. Borden's report, McMahon requested that DuPerry undergo a similar examination by a psychiatrist chosen by the state. Id. That psychiatrist, Dr. Donald Grayson, reached a similar conclusion about DuPerry.

O'Toole then discussed with DuPerry the possibility of entering a special defense of not guilty by reason of insanity ("NGRI"). O'Toole explained that pleading NGRI, as an alternative to the state's plea deal, would likely mean he would spend less time in a hospital than the proposed plea deal would require that he spend in prison. A176-77. DuPerry testified during his state court habeas proceedings that he decided to follow his attorney's advice to plead NGRI because he believed he would spend significantly less than twelve years in a mental institution. A155, A159. He testified that his attorney did not tell him that, by pleading NGRI, he would risk spending more than twelve years—up to the maximum twenty-five years, or even an indefinite period of time—in a mental institution. A159-60. During the same state court habeas hearing, O'Toole testified that it was "possible], but not likely" that he told DuPerry that he could spend more than twelve years in a mental institution. A177-78. He also stated that it was likely that he informed him of the maximum sentence, twenty-five years, but that he definitely did not inform DuPerry that he could spend an indefinite period, up to life, in a mental institution as a result of pleading NGRI. A178.

O'Toole informed McMahon that DuPerry would pursue a NGRI defense on the basis of the two psychiatrists' reports rather than accept the plea deal. A179-80. O'Toole and McMahon then agreed to conduct a pre-arranged, non-adversarial proceeding in the form of a bench trial. A180. O'Toole believed that a judge, rather than a jury, would be more likely to make a finding of not guilty by reason of insanity. A177. According to their arrangement, once DuPerry waived his right to a jury trial, McMahon would present the state's evidence of the prima facie case against DuPerry and O'Toole would put forward his psychiatric evidence supporting a NGRI defense. A180-81. Neither side would contest the other's evidence. Id.

Pursuant to that agreement, on December 20, 1988, DuPerry waived his right to a jury trial and entered his NGRI plea before Judge Thomas Corrigan in Connecticut Superior Court ("the trial court"). Al. During the two-hour bench trial, the court heard testimony from the two psychiatrists who examined DuPerry and from the state's witnesses who testified about the facts relating to the underlying charges. A2-3. In accordance with their pre-arranged agreement, neither O'Toole or McMahon meaningfully challenged the other side's evidence. A181. After considering the evidence of DuPerry's mental state, Judge Corrigan found DuPerry not guilty by reason of mental disease or defect. A3.

On February 28, 1989, the trial court committed DuPerry to the jurisdiction of the PSRB for a period of up to twenty-five years, pursuant to Conn. Gen.Stat. § 17-257(c).1 A1. DuPerry was confined to the Whiting Forensic Institute (n/k/a the Whiting Forensic Division of Connecticut Valley Hospital), a state mental hospital for acquittees in PSRB custody, where he remains to this day. Id.

C. First Habeas Petition

DuPerry filed his first state court habeas petition in 1995 ("the first habeas petition"), which was later amended in 1997. A9-11. The petition contested the legality of DuPerry's confinement on two grounds—first, that he was no longer mentally ill, and second, that he had been denied effective assistance of counsel at his bench trial in December 1988 because his attorney had failed to inform him of the consequences of choosing to plead NGRI. Id. In January 1998, after a one-day evidentiary hearing, the first habeas court dismissed the petition on the ground that DuPerry had not proven either count by a preponderance of the evidence. A121-27.

The court later granted DuPerry's motion to reopen the first habeas petition in order to present additional grounds. DuPerry filed an Amended Petition on March 24, 1999, which added three new grounds: that DuPerry's decision to plead NGRI was not made knowingly and intelligently (Count Three), that the trial court failed to conduct a canvass of his NGRI plea (Count Four), and that DuPerry was not competent at the February 1989 commitment hearing (Count Five). A128-34. DuPerry amended his petition again in February 2000, withdrawing his lack of competence claim in Count Five, and adding a claim that he was not properly canvassed about his waiver of the right to a jury trial at the December 1988 bench trial (Count Six). A218-22.3.

1. Habeas Court Evidentiary Proceedings and Judgment

In August 2000, Judge Daniel Spallone, sitting as the first habeas court, granted DuPerry's petition, finding that DuPerry had proven by a preponderance of the evidence that he was not expressly canvassed, as mandated by Practice Book Section 39-19.2 A255-56. Judge Spallone further found that DuPerry did not understand the consequences of pleading NGRI. A256. The court based its factual findings on an evidentiary hearing conducted in two parts before Judge Spallone and Judge Thomas Parker.3 A255.

DuPerry testified at the evidentiary hearing, answering questions about his decision to plead NGRI and his recollection of the bench trial proceedings before Judge Corrigan. DuPerry recalled that his attorney told him that he had three options: go to trial, take the plea bargain, or plead NGRI. A156. DuPerry explained that he opted for the "mental health route" because he believed he would be out of custody in less than twelve years. A159. He said he was never advised of the several consequences of pleading NGRI, including that he might be confined for the maximum twenty-five years, or even indefinitely, or that a court could deny PSRB's recommendation for his release. A159-60. On the issue of waiver, DuPerry could not specifically remember waiving his right to a jury trial, nor did he recall the judge speaking with him about the consequences of pleading NGRI. A161. DuPerry testified that the judge did not inform him that, as a consequence of his NGRI plea, he would be committed to the custody of the PSRB for up to twenty-five years, that the PSRB could keep in him custody indefinitely, or that, even if the PSRB recommended his release, a court would have to approve it. Id. DuPerry testified that the judge had not questioned him about the voluntariness of his NGRI plea. A161-62. When presented with the court log by the assistant state's attorney on cross-examination, DuPerry testified that he could not recall what occurred during the log entries indicating that the court had addressed the defendant.4 A163-65.

At the evidentiary hearing, O'Toole testified that he never advised DuPerry about how the PSRB operated. A179. O'Toole explained that, because the PSRB was a relatively new institution at that point in time, he did not have a full understanding about how it worked. Id. Not only was O'Toole, by his own admission, not aware that DuPerry could potentially remain in PSRB custody indefinitely, he did not know that, if the PSRB recommended DuPerry for release, a court would still have to approve it and that the state could actively oppose the PSRB's recommendation for release. Id.

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5 cases
  • Dyous v. Comm'r of Mental Health, SC 19582
    • United States
    • Supreme Court of Connecticut
    • December 22, 2016
    ...petitioner's claim, we review Duperry v. Solnit, supra, 261 Conn. 309, and the federal district court's decision in Duperry v. Kirk, 563 F. Supp. 2d 370 (D. Conn. 2008), which involve the same petitioner, Adam Duperry, and arise from the same underlying set of facts. In Duperry v. Solnit, s......
  • Dyous v. Comm'r of Mental Health
    • United States
    • Supreme Court of Connecticut
    • December 22, 2016
    ...151 A.3d 1251Duperry v. Solnit , supra, 261 Conn. at 309, 803 A.2d 287, and the federal district court's decision in Duperry v. Kirk , 563 F.Supp.2d 370 (D. Conn. 2008), which involve the same petitioner, Adam Duperry, and arise from the same underlying set of facts. In Duperry v. Solnit , ......
  • Hodson v. United States
    • United States
    • U.S. District Court — District of Minnesota
    • February 2, 2021
    ...*2 (D. Minn. Mar. 17, 2015). In doing so, Chief Judge Tunheim distinguished a case from the District of Connecticut, Duperry v. Kirk, 563 F. Supp. 2d 370 (D. Conn. 2008), because Duperry involved a state court's factual finding that an NGRI plea was not knowing and voluntary due to a proced......
  • Ruston v. Jett
    • United States
    • U.S. District Court — District of Minnesota
    • March 17, 2015
    ...under threats, duress and coercion." (Objections at 1.) Ruston asks the court to reach a holding similar to the one in Duperry v. Kirk, 563 F. Supp. 2d 370 (D. Conn. 2008). There, the court held Duperry's NGRI plea constitutionally invalid because it was not made knowingly and voluntarily. ......
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