Representing the Mentally Ill (Part Three)

It is always nice to hear when your client says “I am leaving my case in God’s hands” or “I know Jesus will win my case for me.” I never know what to say in response to this, except that Jesus won’t be there to testify, and Biblical figures in general are not amenable to service of process. There is actually a case on that. In all seriousness, these types of statements and other hyper religious approaches to their case are GREAT grounds for requesting a competency evaluation. Plus, the law does not require you to believe that your client is incompetent to ask for an evaluation. It requires you to have a reason to believe that they might be incompetent to request an evaluation. Even if you believe they are competent but have questions, you might be wrong about it. You are no expert. You are an attorney. Get an expert to review your client unless you have no doubt about their competency.

Competency evaluations are dangerous tools in themselves, though. Under the law, the statements made to the evaluator are NOT privileged. That’s right. Your client is making statements that can be used against him in a court of law when he does his evaluation. 9 times out of 10, probably even more, this is okay. 95% of cases result in plea bargains, right? Well…mentally ill clients can make really ill-advised statements and can make really ill-advised trial decisions (though some turn out to make us look like geniuses when the jury sympathizes with our mentally ill client.) There are two other mental approaches to evaluations, competency or insanity: 1) a court is more likely to give a competency evaluation when requested and 2) the DA is less likely to oppose a competency evaluation because it covers both sides. Sounds great, but this practice is not about covering your ass. It is about covering your clients.