Representing the Mentally Ill (Part Five)

And, when your client makes incriminating statements of whatever nature to your competency expert, you have the ability to decide whether presenting that expert is worth bringing up these statements. They are privileged as long as you do not call your expert or disclose his report. You don’t have to even disclose to the State that you have had an expert who reviewed your client for insanity. MOVE EX PARTE. You are allowed to. You don’t get to do any of this with competency evaluations. If the expert finds your client to be incompetent, you can move for a competency evaluation which you know your client will fail. In that case, demand to be present when the evaluator speaks to your client to help him get through the interview without further incriminating himself. You have a right to be present, and the evaluator will honor that right.

You have read over 1500 words about representing the mentally ill, but without any mention of the insanity defense thus far. I believe most juries like the insanity defense about as much as they like suppression charges. They are “technicalities.” But, if you have nothing but an insanity case to present, by all means present it and request every applicable jury charge. If you truly have a not guilty by reason of insanity, sometimes the state will AGREE to such a finding before the Court because your client is then shipped to the State hospital for up to the maximum range of punishment unless two doctors certify that he is safe to be on the street.

Remember, the State gets to have their expert interview your client if you present an insanity defense and an expert who has interviewed your client. Dangerous grounds. However, in the right case it is the way to go. But, remember that mental illness can also be a ground to negate intent without an insanity defense. There was a recent case where a client was on capital trial for shooting police officers who he thought were Muslim terrorist invaders, and it was error for the court to not let him put on expert testimony that he believed this to be true, and was acting in self defense due to his insanity. Thus, he was not “intentionally” shooting at police officers. Very rare case, but something to remember.

Finally, outside of family, utilize your community centers that were formerly known as MHMR. They have to have “community” in the name somewhere, so google them or ask your client and family who their caseworker was if they have had treatment at MHMR. These caseworkers can make wonderful witnesses and third party sources of information. Like any other medical resource, you will have to get your client to sign a waiver for them to talk to you and provide you records. But, make sure you find out what information your client has disclosed to these workers before you call them as witnesses. Dangerous ground, indeed.