Representing the Mentally Ill (Part Four)

I only ask for competency evaluations now when I believe there is little chance of my client making an incriminating statement in the evaluation. This is more often than not, but I am a lot more protective now. Why? Because, if you have grounds to request a competency expert, you might also have grounds to request an insanity expert. Mental health is the overriding reason we see to request a competency evaluation. Your client or investigation discloses to you that he has been diagnosed with a serious mental illness (bipolar, schizophrenia), then you almost ALWAYS have to ask for a competency evaluation in felony court. The stakes are too high and the risk too great that your client might need treatment before standing trial. But, bipolar and schizophrenic people say some really harsh or threatening things sometimes. A client charged with a 3g offense who also discloses that they are bipolar or schizophrenic presents a HUGE risk of saying harmful or threatening things to the evaluator about their case or the court process. Disclosure of these statements might help a jury decide to go a lot higher on 2-20 or 5/15/25-life than if your client had not had an evaluation.

What is the answer to this problem? Ask for an insanity expert in a mental illness case. If your discussion with your client coupled with their family and/or medical records show that your client does or likely should have a diagnosable mental illness that a juror could find mitigating (or better yet, might be a defense to the crime), you have a duty to ask for an expert. Do not rely on the competency evaluator to be your insanity expert. The evaluator works for the Court. He may be a great punishment witness, but he may not. Either side can call him. But YOUR expert is YOUR expert and under Ake you are entitled to funds if your client cannot employ his own expert. And guess what, an insanity evaluator cannot evaluate your client for insanity unless your client is COMPETENT. Your insanity evaluator could or should be an expert that is also qualified to give a competency evaluation. Thus, if you have a question as to whether your client is competent but do not want him opening his mouth where the state and Court can hear (without you calling him first), an insanity expert will first evaluate the client for competency and only proceed with the insanity evaluation if they are COMPETENT. Woo hoo. Two birds, one stone. And, the price is about the same.