Sherman & Plano, TX Criminal Defense Lawyer Blog

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.

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.

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.

But, you MUST also speak to client’s relatives to get a better understanding. We lawyers all dread getting repeated phone calls from family members and friends of inmates asking us the same questions over and over. However, you cannot isolate yourself completely from your client’s family and put up the “ethical” shield of not discussing their case. If their family acts “crazy” towards you, that can be a big clue to look into your client’s mental health. The apple doesn’t usually fall far from the tree.

Plus, the law states clearly that you have a duty to investigate ALL aspects of your client’s case and to zealously represent them accordingly. Not investing mental health and mental retardation facts regarding your client is a HUGE way to get found ineffective down the road. If you rely on court appointments for a living, this can cut of your ability to take court appointments for a year (and longer if the judge presiding blocks you indefinitely). Do not risk your livelihood, key sources of income, and especially your client’s well being by being pressured into a quick plea when there are concerns about mental health. The state has an interest in a valid conviction, too.

Cops look for low hanging fruit. Thus, the mentally ill and intellectually borderline or deficient are often found in their trap more easily compared to high functioning men and women. High functioners are less likely to commit crimes, and more likely to avoid detection. Also, people with mental illness “self medicate” with addicting drugs so they can both “feel better” and remain in denial of their mental health status. Drugs lead to crime. A long drug history is a clue that there might be a mental illness problem. Again, NOBODY wants to be known as a person with serious mental illness. It is not only a disability but a social stigma. You have to find out for yourself and for your client’s best interest what mental illness or retardation they may have and how it can help their case. Don’t want to do this? Find another job.

Representing the mentally ill is a big part of any true criminal defense practice. Citizens accused of crimes are normally undereducated and under medicated, so to speak. The statistics bear that too many have not finished high school for whatever reason, and many have an underlying mental illness that impairs their ability to conform their behavior to the law. If you don’t want to deal with “crazy” people or don’t want to take on tough mental health or intellectual disability cases, you need to find a different area in which to practice law. If you care about your criminally accused clients and want to do the best job possible for them, to understand them and present their best case, the law demands that you be very aware of where criminal law and mental health interact. Our state legislators have found these issues important enough to write many applicable statutes, so you need to find it important enough to read them.

At the first client interview, you can often notice mental illness if you conversate long enough. However, most people suffering from mental illness, from minor depression to severe bipolar or schizophrenia, have learned to adapt themselves to hide and minimize their disorder. Being a person with mental illness is something still looked down upon in our society. If you are representing an adult defendant, they have spent much of their developmental life working around, over and through their disorder. Often, they will do whatever it takes to mask their disorder from the general public. They want to be “normal.” While it is great when a client volunteers that they have a diagnosable mental illness, often your early detective work must pick up on it, or at least on the clues. How does my client look? How do they speak? How is their thought pattern? How does interacting with them feel? What behavioral history can you pick up from their criminal history?

First-interview clues are great, but you have to continue to visit and talk to your client to get to know them well. Ask them if they have any history of mental illness or any history of head injuries. Sometimes you learn the easy way. One of the most surprising things to me in my practice is how many head trauma cases there are out there. Look for it.