Prozac is defense in killings at bar, Southgate resident on trial over deaths in 2002 — (Detroit Free Press)

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Detroit Free Press, Wayne County News

January 23, 2004

BY SUZETTE HACKNEY, FREE PRESS STAFF WRITER

The Prozac made him do it.  That’s how Christopher Bernaiche’s attorneys explain why the 27-year-old Southgate resident lost at a pool game, got into a fight and then returned to a Gibraltar bar with a gun Dec. 27, 2002. Police say he shot up the place — firing at least 20 bullets — killing two men and injuring three others.

In one of the state’s first cases where Prozac-induced rage is being used as the primary defense in a homicide case, the legal community is keeping an eye on Wayne County Circuit Court.

Bernaiche is being defended, in part, by Andy Vickery, a Houston lawyer who has successfully sued the makers of Prozac, Eli Lilly and Co., saying the drug has side effects that can cause suicide, anger and violent behavior.

“Maybe he is opening the door for something new here,” said Marshall Tauber, president of the Criminal Defense Attorneys of Michigan, referring to Vickery. “This defense hasn’t been used very often in Michigan. Nationally, there are a few cases here and there. It’s mostly been unsuccessful.”

Bernaiche is charged with two counts of first-degree murder, three counts of assault with intent to murder and possession of a firearm during the commission of a crime. If convicted, he would face life in prison with no chance of parole. His trial is expected to last at least two weeks.

On Thursday, during opening statements, Vickery said Bernaiche was mentally ill at the time of the shooting. That mental illness, which he called substance-induced mood disorder, caused Bernaiche to react violently and to ultimately kill.

“This is a case about drug-induced violence,” Vickery said. “His doctor said, ‘Take these pills; they’ll make make you feel better.’ He had no clue what kind of chemical time bomb was ticking away in his body.”

Prozac and other drugs are in a class known as selective seratonin reuptake inhibitors, or SSRIs. Prozac is the most widely used of these drugs. The group also includes the brand names Paxil, Zoloft and Luvox.

The drugs generally work by shoring up the brain’s level of seratonin, a beneficial neurotransmitter, by preventing the body from prematurely siphoning it out of the central nervous system.

Eli Lilly has faced more than 300 lawsuits over Prozac’s alleged side effects, but has maintained the drug’s safety as well-documented.

But Vickery said Bernaiche’s dosage of Prozac had been doubled two months before the shooting. He said Bernaiche intended on killing that night — but he wanted to kill himself. Vickery said Bernaiche talked to his mother and brother from his cell phone, saying his good-byes.

“He said, ‘I love you. It’s all over. I’m going to take my own life.’ ” Three days after the shooting, Vickery said Bernaiche tried to commit suicide.

David Moran, an assistant law professor at Wayne State University, said a Prozac defense is difficult to prove because a lawyer has to show that not only was a defendant involuntarily intoxicated by the drug, but that the intoxication rendered him incapable of controlling his impulses, and that he could not distinguish right from wrong.

“It’s a tough row to hoe,” Moran said. “All forms of all mental defenses tend not to work very often.”

George Ward, a former Wayne County assistant chief prosecutor, said the trial will become a battle of the experts. And the prosecution will work to prove that Bernaiche had time to consider his actions and knew right from wrong because he fled from the bar and threw the weapon under a car.

Contact SUZETTE HACKNEY at 313-223-4536313-223-4536 or hackney@freepress.com.

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

CHRISTOPHER BERNAICHE, Petitioner, Case Number 2:09-cv-11296

Honorable Victoria A. Roberts  v.  JEFFREY WOODS, Respondent.

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, AND DENYING A CERTIFICATE OF APPEALABILITY

This matter is before the Court on Christopher Bernaiche’s petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Petitioner was convicted in the Wayne Circuit Court of two counts of first-degree premeditated murder, MICH. COMP. LAWS § 750.316, three counts of assault with intent to commit murder, MICH.COMP.LAWS § 750.83, and felony firearm.

The trial court sentenced him to life without parole for the murder convictions, parolable life for the assault convictions, and a consecutive two-year sentence for the firearm convictions. The petition raises four sets of claims: (1) the prosecutor committed multiple acts of misconduct; (2) a Food and Drug Administration (“FDA”) warning issued a month after trial that Prozac can lead to aggressive or violent behavior, entitles Petitioner to a new trial; (3) Petitioner was  denied the effective assistance of counsel at trial and on appeal; and (4) the state courts failed to hold an evidentiary hearing on Petitioner’s ineffective assistance of counsel claims.

The Court finds that Petitioner’s claims are without merit; the petition will be denied. The Court also denies Petitioner a certificate of appealability.

Facts and Procedural History

 Petitioner’s conviction arise from an incident in which he shot five people at a bar, killing two of them.   The trial evidence revealed that Petitioner went to a bar and was playing pool and drinking when an altercation occurred that caused him to be forcibly ejected from the bar. He sustained some injuries during the fight. Petitioner announced that he wanted to come back in the bar, and wanted the person he fought with to come outside. John Clark, another patron, told Petitioner it was best to go home. Petitioner told Clark that he would be back.

Petitioner left, returning about forty-five minutes later with a gun. Petitioner entered the bar, fired his gun until the clip was empty, reloaded, and fired until the second clip was empty. When he walked back into the bar, Petitioner said, “let somebody fuck with me now.” Petitioner fired into the air, and at people, moving down the bar towards the pool area. Petitioner left the bar, threw the gun under some vehicles in the parking lot, got in his truck, and drove away. When arrested by the police, he asked an officer to take it “easy on me,” and added that, “I only did it because they beat my ass earlier.”

Various patrons and employees of the bar testified to the shooting. Kristian Peters heard ten to twelve gunshots. She was shot in the left shoulder and right arm. Steven Purdy heard a “pop,” and saw a gunshot directed at Stull that hit him in the back. Stull, according to the medical examiner, had four gunshot wounds, and a grazing wound. The medical examiner who performed the autopsy on Kruszewski testified that he suffered eight gunshot wounds. Judy Clark testified that Petitioner fired one shot into the air. Clark could not say how many times Petitioner fired the gun, but it was multiple times. John Clark testified that Petitioner fired a shot into the air and then into Stull. Clark testified that Petitioner fired more than three shots at Stull, and that Petitioner fired gunshots continually, emptying one clip and then reloading. Uselton testified that Petitioner shot the bar up.

Rice heard over twenty gunshots. He saw Petitioner shoot Stull, Kruszewski, and he recalled that

Petitioner fired two shots at him. One shot went into the padding of the bar and the other was down toward the bottom of the paneling of the bar.  These are the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C.

Defendant’s convictions arise from a December 27, 2002, altercation in which he fatally shot two people and wounded three others. At trial, defendant presented a defense of involuntary intoxication causing legal insanity, claiming his conduct was caused by the effects of the antidepressant drug Prozac. Defendant began taking Prozac approximately two months before the events at issue, and his physician had doubled his dosage just a few days before the incident. At trial, defendant presented Dr. Peter Breggin as an expert witness to support his defense that his violent behavior was caused by the effects of Prozac. Dr. Breggin testified that he specializes in clinical psychopharmacology, the study of how psychiatric drugs affect patients. Dr. Breggin indicated that he had substantial experience testifying at trials involving psychiatric drugs, including selective serotonin reuptake inhibitor (SSRI) drugs, the class of drugs that includes Prozac. Dr. Breggin testified that the Prozac drug defendant was taking both stimulated and depressed defendant, leaving him susceptible to uncontrollable violent urges which prevented defendant from conforming his behavior to the requirements of the law. Dr. Breggin explained

that defendant displayed the symptoms of mania and akathisia while on Prozac, which were precursors to the violent episode. FN1 FN1. Mania causes a person to feel very important and intolerant of anything that irritates him, and akathisia is a feeling of restlessness and an urge to be in constant motion.

The prosecutor relied on two experts, Dr. Philip Margolis, a psychiatrist employed by the Wayne County Jail, and Dr. Stephen Norris, a psychologist employed by the Center for Forensic Psychiatry, to rebut defendant’s insanity defense. Drs. Margolis and Norris did not give testimony that directly contradicted Dr. Breggin’s theory that Prozac may cause some individuals to become aggressive and violent, but both opined that defendant was not legally insane while on Prozac because he maintained the capacity to appreciate the wrongfulness of his actions and to conform his actions to the requirement of the law.