The very first entry for this column contemplated the potential consequences of addressing “offhandedly” (if at all) the true “identity” of persons one encounters in the course of criminal defense representation. Let’s examine how counsel might consult with a reputable forensic mental health professional when role confusion surfaces.
Counsel: I’m checking to see if you’ve managed to get started on that new case we sent you two weeks ago.
Doctor: I’d say “checking” is a particularly apt term in this matter. I haven’t received a retainer from your office, but actually I’m not surprised.
Counsel: Neither am I. We just mailed it yesterday. I have to ask, though: Why are you not surprised?
Doctor: Because I don’t recall having spoken to you about any new cases for at least the last few months.
Counsel: Really? Double homicide, tons of local press, answers to the name of “State v. O’Shaughnessy”?
Doctor: I think there’s been some kind of mistake here.
Counsel: So do we. It’s actually our theory of the case.
Doctor: I mean some mistake about my involvement. I’m not sure I can talk about it.
Counsel: In general, you’re not supposed to talk about it … but why not with me? I’m the one who hired you!
Doctor: Were you? You’re still a solo practitioner, right?
Counsel: Unless there’s been a coup. Don’t you remember talking to our new mitigation specialist, Cassie, about …
Doctor: Okay, now I get it. I talked to someone named Cassie for over two hours earlier this month.
Counsel: You’re just remembering it now? I hope we haven’t been working you too hard!
Doctor: I remember it very well, but I thought Cassie was actually your client’s attorney. That’s why I was hesitant to get into the details. I figured when you brought this up that there was some kind of confusion, and frankly I didn’t know how to respond.
Counsel: What gave you the impression that our mitigation specialist was my client’s attorney?
Doctor: She called me up and told me that “I have a client named Mr. O’Shaughnessy, and I’m looking to hire an expert witness to examine him for Manslaughter.”
Counsel: Double homicide.
Doctor: She said “Manslaughter,” and when I asked about the facts in this case …
Counsel: The alleged facts.
Doctor: When I asked about the alleged facts in this case, Cassie told me that the two victims …
Counsel: Alleged victims.
Doctor: Cassie told me that the two alleged victims were allegedly dispatched in some allegedly horrible fashion, and so in my innocent way …
Counsel: “Innocent.” My favorite term.
Doctor: In my innocent way, I asked, “why isn’t this a Murder case?” Cassie replied, “well, currently this is a Murder case, but after you establish my client’s extreme emotional disturbance, we’ll use diminished capacity to get this down to Manslaughter …”
Counsel: Except there’s no such thing as diminished capacity in this jurisdiction.
Doctor: It’s like you were there, except, of course, you weren’t.
Counsel: The more this story unfolds, the more I wish I had been.
Doctor: So, I said to Cassie, “I’m not sure there’s any such thing as diminished capacity in this jurisdiction,” to which she responded, “that’s okay; I practice in a number of different states.”
Counsel: I’m officially getting into a state now myself.
Doctor: I just figured Cassie was new in town, which would make sense because I’m in court here regularly and had never heard of her. Anyway, she said, “I’m pretty sure my client is competent, so you can just skip that part,” and …
Counsel: Actually, our judge insists in this case that we address competency up front because, and I quote, “I don’t want to have to retry this matter two years from now because we didn’t sort out all of the usual concerns when we had the chance.”
Doctor: Okay, I can do that. What about Cassie’s idea that I stuff some civilian clothes into my briefcase so the client can try to leave with me at the end of the exam?
Counsel: Not funny. Alright, a little funny.
Doctor: Allegedly funny.
Counsel: I’m glad we’ve managed to get you on board despite our stumbling out of the blocks. I was concerned when I heard Cassie was talking to experts about this case, but fortunately you’re the only one she actually called, and I said, “great, we use this doctor all the time,” and told her I’d be sending you the usual retainer.
Doctor: The “usual” retainer?
Counsel: I hope this is just a setup for another joke.
Doctor: Unfortunately not. Cassie quoted me a rate 25 percent higher than I usually request. Again, I just figured “new in town.”
Counsel: I’m very sorry about that. Maybe we can figure out some sort of …
Doctor: Don’t give it a second thought. The usual rate is fine. I’d just blow the rest of it at the track.
Counsel: I never told Cassie she was supposed to “hire” an expert. I did ask her to let me know what sort of expert might be helpful.
Doctor: No worries. These things happen.
Counsel: I don’t want them to happen. What I want is to figure out how to keep them from happening. Have you seen this sort of thing before?
Doctor: Sure; a number of times! It wouldn’t be fair to single out mitigation specialists. Over the years I’ve also spoken with investigators, social workers, paralegals, and law students who failed to describe their actual roles up front, either accidentally or on purpose … and before we get into any finger pointing or virtue signaling here, witnesses are occasionally prone to giving people the wrong idea as well.
Counsel: What can I do to prevent this from happening in the future?
Doctor: Just what you’d expect: setting clear expectations about role disclosure as soon as anyone new signs up for the team. The potentially off-putting nature of this kind of instruction can be diffused by pointing out—truthfully, as always—that it’s something you routinely tell everyone, regardless of experience level, as a matter of office policy. There’s something else you can do, too.
Counsel: What’s that?
Doctor: Hire a more attentive doctor. I never should have let things get this far myself. When the hints kept coming that something was awry, I should have tossed in a question like, “so, we haven’t met before; how long have you been practicing law here?” Again, it’s not like I haven’t seen this sort of thing a number of times.
Counsel: Maybe you were distracted by that 25% raise.
Doctor: Not funny. Alright, a little funny …
Our readers were also promised a “balanced approach,” so here goes: Prosecutors may wish to explore when and by whom the expert witness for the defense was contacted, and what requests may have been made at the time. A case that seemingly got off on the wrong foot with unauthorized instruction could be characterized as one in which critical issues went unaddressed and in which irrelevant issues received unwarranted attention.
Please feel encouraged to contact Dr. Drogin at [email protected] with any questions about legal team role acknowledgment, or with any suggestions for future topics.