MAY 2019 | AROUND THE ABA

Deciding on “competency” vs. “sanity” and other challenges of representing people with mental disabilities

Clients with mental disabilities are a part of criminal defense attorneys' practice. This ranges from the white-collar criminal defense lawyer who represents an executive charged with tax evasion to the public defender assigned to represent someone charged after a violent crime.

In the webinar based on the book “Representing People with Mental Disabilities: A Practical Guide for Criminal Defense Lawyers,” editor Elizabeth Kelley moderated a question-and-answer session looking at the challenges and opportunities for defense lawyers in these types of cases. Joining Kelley are chapter authors Dr. Elliott Atkins, a forensic clinical and consulting psychologist based in Philadelphia; Dr. Antoinette Kavanaugh, a forensic psychologist based in Chicago; and lawyer Jennifer Johnson, a founder of the San Francisco Mental Health Court.

Kelley: The terms “competency” and “sanity” are used often in criminal trials. What do these terms mean, and why is it so important for criminal defense lawyers to retain a forensic mental health professional to help prepare their defense?

Atkins: Competency relates to the defendant’s state of mind at the present time; sanity refers to the defendant’s state of mind at the time of the offense. Competency becomes relevant when a defense lawyer discovers a client has trouble following details of the case and assisting with the defense. A forensic mental health professional can evaluate the client and point out issues that interfere with the defendant’s ability to understand events. The Dusky standard defines a defendant as competent to stand trial if two criteria are met:

  • The defendant must have a rational as well as factual understanding of the charges against him or her and the penalties associated with them.
  • The defendant must have the ability to cooperate with an attorney in his or her own defense. 

Kelley: Most defendants are found to be sane at the time of the act, and most are found to be competent to stand trial. How should a defense lawyer proceed?

Atkins: This is where the issue of mitigation comes in. Lawyers often have a client that does not meet the rigid standard of insanity, but still grapples with limited cognitive abilities or psychological conditions that impede assisting with their defense. A mental health professional can offer the lawyer and/or the judge information and insight about who the defendant is and how they perceive their own actions. This information can be used to negotiate a plea deal, or be helpful during the sentencing phase.

Kelley: How can a criminal defense lawyer best help during the evaluation process?

Atkins: First, I want to observe the lawyer dealing with his client. How well do they communicate? A professional can help a lawyer deal with a client’s resistance to disclosing certain issues central to the case. Depending on the defendant’s personality disorder, the lawyer will want to look at medical records, work records or military records that shed light on the defendant’s background and history. The lawyer and the doctor will determine which records are most relevant.

Kelley: Sometimes a prosecutor or even the court is skeptical about a diagnosis, and says a defendant is malingering. What does this mean?

Atkins: Every evaluator has to be skeptical that the interviewee is providing useful and accurate information. Malingering means they’re faking their illness. There are ways to deal with this. Evaluators can use psychological tests, look at the stressors in the defendant’s life, study the records and interviews with witnesses to rule out — or confirm — malingering.

Kelley: Dementia is often used in defense, especially as people are living longer.  What can lawyers do to be aware of these issues?

Atkins: The client’s ability to understand what is going on could be affected by the brain. Tumors, neurological problems and the loss of cognitive abilities due to aging will be found during a competency evaluation.

Kelley: Mental health professionals assist with evaluations. Are there other ways you help the defense team?

Atkins: A doctor can help the lawyer communicate and work with the defendant, to get past emotional problems the client has and be more effective in the defense role.

Kelley: Switching gears, what are some of the issues for a defense lawyer working with a juvenile defendant?

Kavanaugh: Studies show that the adolescent brain functions and operates differently than the adult brain. Two of the physical differences are pruning, or cutting away growing neurons that aren’t actively being used, and myelination, which assures that messages in the brain travel efficiently throughout the body.

During an MRI, a doctor can see how the brain is functioning when a person performs a task. Since the mid-1990s, we know that because of physical changes in the brain that can’t be controlled, juvenile defendants can’t make decisions the way adults do. The cognitive control system lets a person stop and think rationally, think it through in terms of behavior, so it may be impossible for some juveniles to act in a rational way, especially around their peers.

Other factors in an adolescent’s life may affect their decision-making skills, such as:

  • Trauma/neglect
  • Mental stress
  • Substance use

“It’s important to understand why kids make what an adult considers a terrible decision — it often represents their level of brain function,” Kavanaugh said.

Kelley: Tell us how specialty courts and behavioral courts might make a difference when you have a client with mental illness.

Johnson: The expansion of specialty courts, such as mental health courts and diversion courts, allows lawyers to use information about a client’s mental health to achieve good outcomes for people in the criminal justice system.

Problem-solving courts are no longer a novelty, they’ve become an essential part of reforming the system. The key to their success is that they are collaborative and nonadversarial, which can be hard for lawyers to relate to because it challenges our notions of our work, but also offers opportunities to reduce recidivism and improve life outcomes. The policy goal of treatment courts is to reduce the jail population. In these courts, we want to respect the dignity of the people going through them, and get them the help they need.

Another goal is to remove barriers to community re-entry. Having a record is by itself a barrier, so when defendants successfully complete a program and get better, they’re less likely to return to a life of crime.

Specialty courts have a therapeutic atmosphere, and a multidisciplinary team approach that works to plug the gaps a defendant can fall through. Treatment courts also offer a high level of court supervision, as well as direct dialogue between client and judge. “The client can speak directly to a figure of authority, and advocate for themselves and create a narrative about how this program is going to work for them,” Johnson said. “That is a very powerful tool.”

Specialty courts are growing, and include drug courts, veterans’ courts, transitional aged youth courts, elder courts, homeless courts and re-entry courts for formerly incarcerated people.

This program was sponsored by the ABA Criminal Justice Section; Law Practice Division; Section of Civil Rights and Social Justice; Health Law Section; Solo, Small Firm and General Practice Division; Standing Committee on Pro Bono and Public Service; Commission on Disability Rights; and the Center for Professional Development.

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