UNUSUAL CRIMINAL DEFENSE PLANNED IN SLAYING

Author: TAD DICKENS

Attorneys for a Roanoke woman charged in her mother's slaying are turning to a rarely used defense - involuntary intoxication.

Cindy Gail Countess, 48, was taking two antidepressant drugs during the month or so before her mother's death, Assistant Public Defender Anna Bagwell said last week.

"It is a clash of prescription medications that are at issue in Ms. Countess' case," Bagwell told Roanoke Circuit Judge Clifford Weckstein.

A little more than a year has passed since the early morning when police found Edna Dooley's body in the bathroom of the home she shared with Countess in the 2000 block of Carvin Street Northeast. The 83-year-old Dooley died of blunt force trauma, police said, without elaborating. In June 2002, a city grand jury charged her daughter with murder.

Bagwell and fellow Assistant Public Defender Darren Welch are using a strategy based on an 80-year-old Virginia common law that can allow for acquittal - if a defendant can show that she didn't know right from wrong at the time of a crime because of trickery or because of a doctor's mistake.

But the pill won't necessarily go down easy, said a criminal defense lawyer who won such a case in the mid-1990s.

"Involuntary intoxication is very difficult to demonstrate, because you have to show that you are not complicit in the intoxication," said Bill Hassan of Fairfax.

Hassan said he has only used the defense once in 25 years of criminal defense work.

But it is gaining more attention in Virginia and nationwide because of the public's growing use of prescription antidepressants.

In a hearing this week, Bagwell told Weckstein about civil and criminal court verdicts and medical journal articles that showed such medications as Paxil and Zoloft can cause suicidal and homicidal thoughts for a very small percentage of patients.

Countess had been taking both Zoloft and Paxil, Bagwell said.

A larger combination of drugs led to an acquittal in Fairfax lawyer Hassan's case. He said his client, Aman Khaliqi, was convicted in General District Court of assaulting a Fairfax police officer who was trying to arrest him on other charges. Khaliqi's family hired Hassan to handle the circuit court appeal.

Hassan was able to show a circuit judge that Khaliqi had recently been committed to a private psychiatric hospital that treated his symptoms by prescribing about seven psychotropic medications. Some of the medications were not supposed to be prescribed together, and at least one was 10 times the usual dose, Hassan said.

"They had just medicated him into zombiehood," Hassan said.

He has received several calls since then for people hoping to pursue a similar defense, but Hassan said he is reluctant to take the cases.

"What I've almost universally told them is my situation was so egregious, and so patently obvious, that it is almost a bad example, if you know what I mean," he said.

But a far less extreme example proved successful recently in the same jurisdiction, according to a February article in Virginia Lawyers Weekly. A Fairfax judge dismissed a driving under the influence charge against a man who was drinking alcohol while taking Paxil.

Judge Michael Cassidy found that the defendant was never told he could become intoxicated by combining the two, so he did not knowingly violate state law against drunken driving, according to the article.

Roanoke Assistant Commonwealth's Attorney Alice Ekirch argued that Weckstein should not allow the defense.

In the courtroom, she noted that Countess' attorneys had at first sought a psychiatric evaluation for a possible insanity defense but switched course after Ekirch requested a separate examination for prosecution purposes. Bagwell said that such an evaluation could jeopardize Countess' right to remain silent.

Ekirch said Countess' attorneys were "trying to get through the back door what they couldn't get through the front door."

Trial was set for Wednesday and Thursday.

Copyright (c) 2003 The Roanoke Times

Contact Florida DUI Attorneys

Contact a DUI Lawyer now for a free case review.