Seeking Help for Mental Illness Is Not "Terrorism"
I became aware this month of the criminal charges against Shawn Foglesong that ended on Tuesday, June 11. A jury found him "not guilty of making [a] terrorist threat against [a] school crowd," as headlined in the June 12 Daily Mail.
The only reported statement of Foglesong didn't sound to me like a "terrorist threat." Rather, it seemed that someone had been criminally prosecuted for trying to be cured of a mental illness.
Kanawha County Prosecuting Attorney Mark Plants was quoted extensively by the Daily Mail. So I called John Sullivan, one of the public defenders who represented Foglesong, for his perspective, and to make sure that there wasn't something else about Foglesong or his prosecution that I was missing.
Especially in light of Plants' reported statements, I believe Foglesong's prosecution was so wrong that it requires more public discussion. I hope that, on further consideration, those responsible for enforcing the law will tell us that they agree.
Foglesong was charged under W. Va. Code § 61-6-24(b) for "knowingly and willfully threaten[ing] to commit a terrorist act."
The preceding subsection (a) defines a "terrorist act" as one that is "(A) Likely to result in serious bodily injury or damage to property or the environment; and (B) Intended to: (i) Intimidate or coerce the civilian population; (ii) Influence the policy of a branch or level of government by intimidation or coercion; (iii) Affect the conduct of a branch or level of government by intimidation or coercion; or (iv) Retaliate against a branch or level of government for a policy or conduct of the government."
This is a felony charge, and anyone convicted "shall be fined not less than $5,000 nor more than $25,000 or confined in a state correctional facility for not less than one year nor more than three years, or both."
Did the Legislature expect this statute to make felons of mental patients who tell those treating their illness about their symptoms? I hope not, but that's what happened here:
* Foglesong's purported "threat" was nothing he said or did to the "civilian population," to any "branch or level of government," or even to the "school crowd" in the somewhat misleading Daily Mail headline.
It was his statement to a counselor, the day after being admitted to Highland Hospital, during his first, private counseling session. He told the counselor, as reported by the Daily Mail, that he "had thoughts of shooting people at a high school football game ... in hopes of drawing police fire unto himself."
* Under W.Va. Code § 27-3-1(a), "Communications and information obtained in the course of treatment or evaluation of any client or patient are confidential information."
Foglesong's counselor and others at Highland decided to make others, including law enforcement officers, aware of what Foglesong had shared about his thoughts during his initial counseling session.
There is no such duty to report in our state, but W.Va. Code § 27-3-1(b)(5) creates an exception to the confidentiality rule to "protect against a clear and substantial danger of imminent injury by a patient or client to himself, herself or another."
In light of what happened later, the Highland staff may now wish they had maintained Mr. Foglesong's confidence.
* Foglesong stayed at Highland for two weeks of treatment. Under professional care, he stopped having the thoughts about the football game.
Deemed no danger to himself or others, he was discharged.
* Hours after his discharge from Highland, Mr. Foglesong was arrested at his friend's house. He faced criminal charges solely for what he had privately told his counselor about his thoughts, during that initial session at Highland two weeks earlier.
* W. Va. Code § 27-5-3 allows for involuntary commitment for treatment upon testimony from a qualified witness before a judge or a mental hygiene commissioner that a person "is likely to cause serious harm to himself, herself or to others if not immediately restrained."
* But that is not what was done with Foglesong. After all, he had just been released from Highland because the professionals who treated him determined that he posed no danger.
* No one has asserted that Foglesong was a danger by the time he was arrested. He was free to return home, a threat to no one, if he posted the required $125,000 bond to secure his appearance at trial.
* But when he didn't post bail, Shawn Foglesong remained in jail for nine months, all the way from September until last week, when he was acquitted.
Any of us, or friends or family, may one day need treatment like that Foglesong sought.
It's also common knowledge that you might be found so ill that you could be committed, even involuntarily, until such time as you could safely be released.
I expect Foglesong knew, too, but he was responsible and brave enough to tell someone about his terrible thoughts.
Under a dubious, novel interpretation of § 61-6-24(b), the first statute quoted above, people like Foglesong are, in effect, now being told to keep their mouths shut.
According to Kanawha County prosecutors, if you have thoughts of hurting others and share them-even in confidence, with a treating professional-then you are a criminal who has "threatened" a "terrorist act."
"The fact that those words are uttered is a crime," Plants said. "The only other alternative is not to prosecute and that's just not acceptable. At the end of the day, we can never go wrong by presenting evidence to a jury and letting them decide."
How can Plants say that, when his office has just helped to keep an innocent man jailed for more than 250 days?
It would have been far better for him to have declined comment, rather than tell the public that his office will do the same thing to the next troubled person he hears about.
Plants was also reported to have said: "Could you imagine what would happen if we didn't do anything and something happened?"
If that is the new, craven test for whether to prosecute "threats" of "terror," then there will need to be more jails, or at least more courtrooms.
Only a jury of his peers had the courage to let Foglesong out of the cell where he spent Halloween, Thanksgiving, Christmas, New Year's Eve, Valentine's Day, and every other day since last September for doing what each of us should want him to do-seek help.
We should worry less about people like Foglesong, and more about scaring people away from treatment as a result of his misguided prosecution.
Plants should give this more thought, and then assure the people of Kanawha County that they needn't fear imprisonment for talking to a counselor.
@tagline:Melick has practiced law in Charleston for 30 years.