
The greatest honor of all is having someone who is struggling with a mental health condition appointed to you or their family choosing to hire you…
…So, don’t screw it up. Do you understand what it means for someone to have a mental health condition/diagnosis? I often feel that many criminal defense lawyers know that a client has a mental health condition. It is easy – do they act differently? Do they perceive the world through an awkward lense, or just seem “off”? Do they outright just say weird things or talk to people who are not there? Do they talk about people who don’t exist who are trying to harm them? The list goes on and on. It’s not hard to see these things make someone “different.” But what do lawyers really do with this information? Sometimes, it is hard to know what is the right thing to do, and that is so understandable. Other times, could we be not thinking deeply enough about that client such that their cases are ignored, mishandled, or totally misunderstood? I allege the latter is more common than not.
I have wondered if mental health conditions in clients tend to spook the attorney that is called to represent that client. I have thought the high maintenance nature of listening to that client has made many over-burdened attorneys with massive caseloads think about the time drain it will take to discuss a case with an "insane" person. I mean, have you really sat down and talked to a truly insane person? No. Not your spouse or girlfriend. A truly off-the-wall, storyteller of a client? I have. Call me crazy (I might be!), but I have. Guess what? They aren’t all that “off,” guys.
Watching the Mental Decline of a Repeat Visitor
Some attorneys know what I am talking about here. Sometimes an attorney gets that revolving door client; arrested one day, bonded out the next, back in for something new, and back out on bond…and back in for something serious and bond is revoked or not granted. This pattern presents itself in many ways and the list goes on to say, sometimes this client comes back after a fast-track plea and does as many fast-track pleas as they can before they get really stuck, and it is concluded that person needs treatment. Every now and again, attorneys get a really serious charge just out of nowhere and the client in in custody for (generally) one of two things: Arson in the 1st Degree or Aggravated Assault. These can be a combination of both charges all at once or combined with fancy little charges like Arson in the 1st Degree with Criminal Trespass, Terroristic Threats, and Indecent Exposure, or maybe Arson in the 1st Degree and Criminal Damage in the 2nd Degree with Terroristic Threats (misdemeanor or felony). No matter how you cut it, these are your almost characteristic combinations of mental health charges. Are those Drug combos, you ask? Not always…think Burglary (first or second degree) and Theft, and on a Holy Roller kind-of-trip kind-of-day, Aggravated Assault/Battery (depends on if they come at you or break a part on you) and Terroristic Threats. This all sounds horrible! It is, and can be, but think of this, there is something going on in that person’s mind that is inhibiting them from being safe for themselves or towards others…what is it? I could never know what is inside someone’s head, but I do try to understand it. I feel that our job requires it if we are to do any good and restore peace to the charged person’s life, let alone their family’s life.
The Onset
Let’s start with probably the most common repeat visitor – the person suffering from addiction. Imagine the first time you are appointed to represent someone charged with possession of methamphetamine. When you meet them, they are probably agitated if they are still coming down from drugs. This article will not discuss the likelihood that the meth charge really will come out as fentanyl once the drugs are tested by the Georgia Bureau of Investigations (GBI), but it will discuss how meth/cocaine/fentanyl and many other drugs will change that person fundamentally and even mentally past that of the disease of addiction. Once you get past that initial agitation of the client coming down from the high of the ”meth,” you will realize that they are itching to get out of that jail, will bond if they are bondable, and will be gone for a long time and you will not talk to them in a while. One day, you might get reappointed to them for the same charge or something different, but it will have everything to do with the drug that put them there on the first charge. And I am sure you could predict that they are acting a little differently than the first time you met. They might be talking about something strange…maybe being itchy or seeing bugs. Maybe they won’t eat the food in jail because the food has bugs in it. They might say nothing of the sort but say that they go around, “praying for people,” and God blesses them. They might even claim to own a church! I don’t suggest we try to challenge or degrade someone’s religion, but I mean to explain to you that if you don’t ask that extra question about which church they own and how they got ordained in the streets, you might go on believing what they are saying. More likely than not, the drugs are starting to scramble their brains, and they are not in their right mind. This is the onset of the mental illness that drugs may kick off in someone’s mind, and demonstrate the onset of that illness.
The Disturbance
After the onset of the mental illness, you might see your client bond out one more time before coming back a third, and you see they are worse off than when they left when you saw the onset. They may have had a very disturbing event occur while they were out on bond due to their drug use or due to some event that triggered them to go back into their delusions or psychosis. That drug use over time or that one event that triggered them might disturb them so much that they continue to loop it like trauma due to the paranoia and other psychotic delusions that have since overcome their once stable mental state. That disturbance, despite their speaking to you in ways that simply don’t make sense, might just be a result of being raped on the streets, beaten by another homeless paranoid and ill person, or their perceiving something from their mental illness that was simply not there. This disturbance will then loop into paranoia and they will talk to you about it over and over. You will need to speak to them through it and see if you can determine if they are still competent to stand trial, etc., but you will also wonder why they never really get better about it the longer they sit and well, “sober up.” Maybe because if drugs started it, the client got past the part where the drugs change them so significantly that they can “come down,” from them and be normal again. Sometimes they are fundamentally changed by the drugs or the traumatic event that they are not able to be taken out of that delusion or world they perceive that they live in.
Devolution
I have already alluded to the devolution that follows when the lawyer representing a mentally ill, usually co-morbid client, realizes that their client is not “coming down” from the high or the event that kicked off all this stress in the “Onset” and beginning of the client’s legal problems. This is the beginning of the devolution of the mental state of the client, and they will continue to show no improvement and need medication. They will need a mental health evaluation to see how the medical profession can help them through their newfound illness and if they are ever returned to the stress they were exposed to before (drugs or stressful event), they will continue to devolve and need more help. Sometimes, that client might devolve to the point they are no longer able to discuss much of anything with you, let alone their legal rights or the judicial system, until you become confident they are no longer competent to stand trial. This, in my experience, has happened with mostly drug use and hard street life with clientele who repeatedly bond out and catch new charges.
The devolution usually will take the attorney to the point that they see all kinds of new charges when the client has not only a drug induced psychosis issue, but has developed a type of schizophrenia or some other psychotic disorder. This is when I have seen charges concerning arguments between household members that end in arson, aggravated assault, criminal damage (usually 2nd degree due to there usually not being that threat to human life element that the 1st degree criminal damage carries, that is usually shooting up a house and the like). Those arguments are usually rooted in paranoia or the family trying to help the client that is in and out of their right mind.
Possible Reasons for the Mental Illness
Dual Diagnoses/Comorbidity
This article is meant to make fellow attorneys understand that sometimes our clients struggle with mental health conditions, but sometimes clients bring mental health issues on through drug use, as described above. This is not to say it is anyone's fault (EVER!) that they suffer from mental health conditions!!! There are not a lot of resources in Georgia to help those who are struggling with mental health as much as there are programs for those suffering from addiction. Oftentimes, addiction and mental health run together. When they do not coexist, we have other issues. Some programs in Georgia that help with the intersection of mental health and drug addiction are ITF, Mental Health Court, Veteran’s Court, and going through one’s own insurance to use a local mental health hospital such as Summit Ridge, or maybe Georgia Regional if we discuss legal competency issues. We simply don’t have enough resources to really help those struggling with mental health issues, but I love these programs and have see that the best success comes from someone you can show is competent and put them through a program that gets them back on their feet, working and interacting with others, such as the treatment courts like Mental Health or Veteran’s Court. I have seen many other presentations of mental health issues that simply just don’t fit these molds. Or, I see more borderline competency questions that show me that person is not open to treatment and wishes to just be left alone…for more reasons than one, and I cannot say I have a good answer for how to help that person. Sometimes that person cannot and will not accept help. That is part of the conundrum that is mental health and most of mental health diagnoses show us that person is justified, but that does not mean they don’t need some help and resources.
Bad Trip?
We all have heard about that one friend that tries everything. Whether that friend was someone you knew in college or someone you know now. More likely than not, they told you a wild tale about their most recent thing they tried, and that tale ends with something horrifying, outlandish and funny. That is not to say the story is a good thing for that friend to have done, but it might be so strange/crazy/stupid that it becomes funny to the listeners. A friend told me a tale a long time ago, where he went out with friends, and they all bought mushrooms. Yes, magic mushrooms, and I thought how dumb it was to even possess those when I personally, back then, thought they were poisonous and could kill you, later to learn they were a Schedule I Controlled Substance and very illegal. My journey to criminal defense was an innocent one as I thought many items like mushrooms were not drugs but that they were deadly and somehow people survived eating them and the survivors would trip out instead. Well, I was like fifteen years old when I heard that tale, so we think what we think. Back to the friend. He told me that he decided to keep eating said mushrooms and I was clearly enthralled with his ability to survive such a deadly item, and he had a “bad trip” and got scared. I busted out laughing (relieved that he was not hospitalized) thinking it was so stupid that he got scared, and thought his being scared should have turned into the thought that he was lucky to be alive. Ignorance is bliss. Now I represent people charged with having said mushrooms and I know much much better now, but that personal note was for some comic relief for my readers. That bad trip, however, is sometimes something that many people with mental health conditions today, never came back from. Something happens, I suppose, that changes the way they think or perceive things, and they never fully come back to the reality they once lived in. Others are lucky, move on just fine and become like Ozzy Osbourne and live forever while being totally cracked.
That one bad trip can either turn the person who used that drug away forever or cause them to never live without it. Sometimes that extreme high was so high they never want to come down. Same goes for meth and fentanyl. Mostly meth burns out those brain cells and I see more and more clients returning for my representation with a thick tongue, a wild look in their eye, and a paranoia about normal things. That one bad trip or one day you get really high, you never are the same again, so that client keeps using and gets more and more mentally ill than before. I have also noticed that the drugs that need to be “cooked” create this effect more so than others. I have a theory after watching documentaries and asking clients what they do to the drugs they take to get so high (of course, I try to get them treatment and I counsel them well on how they are harming their bodies), and they often report they cooked the drug in question with something else. I watched a documentary where a man followed a drug dealer that would cook crystal meth with alcohol, and it would “make people crazy, and they always come back.” Well, that matched up with some of my clientele. The more chemicals you bake into a drug, the crazier you are, I assume the translation is, "the fewer brain cells you shall have."
Sometimes there is a drug addiction and mental health comorbidity, and you may never know what came first, the chicken or the egg. My lack of medical knowledge leads me to believe we all have a mental predisposition for something, and then some drug or traumatic event kicks off the mental health condition, and the rest is asking how our brain processes that combination of stress, drugs and rock n’ roll with the genetic chaos. Now, this does not mean that someone doesn’t just get burnt out, but I am discussing those who have a genetic predisposition to a certain mental illness that ultimately use drugs of different types that unlock that predisposition, revealing the mental illness.
Was the Predisposition to the Illness Always There?
Now this is a question for the experts. The mental illness that is outwardly presenting itself now, might have been there all along. How do we know that? By asking questions. Sometimes these questions will remain unanswered due to your client not being able to tell you with any certain accuracy by the time you represent them due to their illness. However, there might be a way to trace back when the illness started so long as your client gives you consent to speak to their loved ones, if available. Sometimes you can explore the history of the mental illness through client consent to obtain medical records through HIPAA waivers and the like. Many times, unfortunately, you will find that your client is unable to tell you who their family is/was, and sometimes anything they remember about their childhood. Sometimes it is just too late by the time you represent them to learn anything at all.
The experts such as clinicians will be able to tell you more about your client, but the bottom line is sometimes your client has no medical history because you are simply not dealing with someone who ever had any resources provided to them, so they have nothing documented on paper. When that is true, sometimes the only way to know the answer is to see if your client was committed to Georgia Regional at any time, presuming that you have legitimately questioned competency and wait for another evaluation to determine if they are competent. Usually that evaluation will tell you if they have a history of coming in and out of competency. That may be the only thing you will ever know, and it will tell you if you have a shot at restoring that client.
From my experience with mental health clients, I would suppose the predisposition presumes that there was a predisposition or else the reason they are unwell now would be for entirely random reasons. To be predisposed to mental illness presumes that something was there, and some event kicked it off. But could it be true that there is no predisposition and that person just burnt-out sufficient brain cells and are now who they are outwardly presenting? I am a lawyer, not a doctor, and more research is needed for me to understand this. I suppose both could be true since I have watched perfectly good friends burn out from alcohol and drug abuse, but I could never say I knew they had some predisposition to have a mental illness. This question might be better answered by looking deeper into whether marijuana causes schizophrenia/delusions/poor development in young people or if it unlocks what is already there. I have read both theories, but I would assume that if both can be true, both theories could be true at the same time, and we might consider it is based on the individual and if they are neurologically programed to have the onset or delicacy of mind at a certain age that a substance could unlock or attack and deteriorate.
Underlying Traumatic Event?
It might be weird, but there are some things you just can’t make up. Trust me. Sometimes the hurt runs so deep, that we act, well, “funny,” and no one can be expected to understand…right? Or should we be EXPECTED to understand? We are by nature intolerant to what seems foreign to us, or not in line with our social construct. We are judgmental. Have you ever experienced a horrible event that upset you so greatly, that you fundamentally changed your opinion about something you never thought you had an opinion about? Did you find yourself forming new habits that were just strange, OCD or overly repetitious for no reason? I knew a guy that would make the sign of a cross 7 times before putting his car into drive and going anywhere. Wonder what trauma caused that? A car collision? Loss of someone on his way to meeting with them? Fear about arriving to the destination to do what he was sent to do? Rituals are quite often trauma-based... After watching people and representing people with pretty serious mental health conditions for the time that I have, I could think of so many reasons. So, does making the sign of the cross repeatedly, religiously, and unfailingly each time you get in your car that weird? Or is it justified? Maybe treatment would help someone with that incessant “need,” but maybe I will get there eventually with that person but not yet. Perhaps, for now, I am just watching. Then, one day, I will ask some pretty deep questions.
If I come across a client that cannot stop doing something, I always think, I need to sit and watch this person a while and have a totally normal conversation with them. Let them keep talking. Let’s see how far I can get with them as to learning about the criminal charges on the warrant I am looking at and then see what happens with those gestures or words as I dig about the criminal charge. If they don’t talk much about it, or don’t recall much (lie or truth), let’s consider if they actually remember that event. If they remember more and more, then we might consider they had a psychotic episode and now they somehow regained memory about the event. Maybe, they are ashamed and are getting more comfortable…maybe both. Does their agitation grow as I dig and loop back to the criminal event? Can I squeeze out what they were thinking when they committed the infraction? Ooooo yes, I bet I can! Did they get in a fight with a family member or significant other and then leave and commit the crime? What was that fight about? What is your client hiding about themselves??? Watch them, watch them! They will tell you. Something about that criminal infraction will tell you what they are hiding. If they used feces to commit the infraction, let’s consider psychosis. But why is that person psychotic? Do they have a point? If I were traumatized and hurt so badly, perhaps I would think shitty things too. (Pun intended!). I understand it is a mess for the deputies in the jail and the nurse staff caring for them, but there are ways to speak peace over the situation. I have thought so poorly of certain things, that I kind of get it. Do you blame them?! I don’t. What if that person says they hate you and all beings of your gender? Do you blame them?! I sure as hell don’t. Does my nail polish offend their religious tendencies?! YES, it does. Why? Am I the wrong attorney for this person? Perhaps. But then again, maybe I am the perfect one to talk to them. Let’s listen closer.
Watch and learn. Let’s speak peace to the client. You don’t need to apologize for being their attorney. If they hate you, ask why, and you will know who hurt them. I had one heck of a ride some time ago and I loved that client and my heart goes out to her to this day. She was appointed to me after about 15 months of being in jail. She hated her attorney for seemingly ridiculous reasons. Cool. Here I come. This woman would talk to me and we would chat for an hour and a half or more at a time when I would visit her in the jail. I observed that she loved to spit within minutes of hanging out with her. I kind of loved that about her…others did not. (Understandable…perhaps I am perverse.) Let’s debunk why someone with a mental health condition spits…rather, why do you think they spit? Why does a “normal” person (heh, define normal.) spit? They spit to cleanse their mouth of something, whether figurative bad words, something awful they just heard, or they got something in their mouth that they wish to purge. So, we should consider that spitting has something to do with cleansing. If that person spits all the time, then we consider the compulsivity of the action is a mental health condition in itself, and if they do it when something triggers them, we understand something else about their reasoning. I asked the client why she spat all the time. I cannot tell you what she said. Does spitting mean the same thing as throwing feces? No, not from what I have seen during my practice…one day I will debunk the fecal incidents and what they have to do with psychosis when I have some articles and people who are much more learned than I to interview and share with you. But, for now, let’s consider if spitting means you as the lawyer need to ask if that person was disgusted by something. I would encourage you to dig further and figure out what that person is trying to purge. It is horribly sad because that means something really awful happened to that person. You might sit down and ask a slew of questions and find out that one of your darkest traumas match theirs…the way your mind processed it and put it into action is simply, well, just different.
The bottom line is that someone who has a mental health condition might be telling you something with the most annoying and disgusting actions, because something really disgusted them and they cannot now process it to escape it. That deserves compassion, patience and time to figure out how you can help that client. Sometimes it does mean that you find out they are not in fact competent to stand trial, but sometimes, that first impression where you wonder if they are competent, leads to the conclusion that they in fact are, and you can get them help before resources are expended on “restoration,” of an entirely hurt person. I have come very late into cases where I see a motion filed on someone who has sat in jail for a long time because their attorney claimed to not be capable of having a “productive discussion” with them, and thus the motion for competency evaluation (usually misnamed or written in a way that shows the attorney does not fully understand what they are asking but just know the client is not competent) was still outstanding for the client to eventually be taken to Georgia Regional for said evaluation by the time I got to them. I will then sit and talk to the client for a long time and sometimes time their delusions until I see if they know what they are charged with, know what a plea is, know my role and the prosecutor’s and the judge’s role, and then see if I can get them to know exactly what a jury and bench trial are, and then see where to go from there. After they successfully answer those questions, sometimes they will dip back out of reality. I will try to let them go a while and see if I can bring them back to talking about their case. I will wait a couple weeks, and then I will come back and see if they are processing what I said a few weeks ago. If they do, I run it again. And again, until I am confident that they understand why they are in jail. Guess what? Georgia Regional can only do better by force-feeding meds when needed. That’s a whole different side of this article. So, if I do my due diligence and attempt to communicate, and not claim I am a medical professional, but go in there and really listen, I might find out what traumatized my client, and what led them to commit the act they are charged with, understand why that trauma and mental illness created that criminal act, and see what I can do to help them. I have since lead more people into treatment courts and watched them thrive. Some might have really great jobs too with sweet employers that really love them.
The last note I have to make about this is that if your client is sent to Georgia Regional for your failure to listen to them, and they are force-fed medication because they are competent but psychotic and noncompliant spitters, you have just re-traumatized them. Competency is an extremely LOW standard and consists of whether your client can tell you what their charges are, how they might have committed them, and if that is in fact illegal to do that act, as well as the understanding of the judicial system, i.e. your role, the judge’s role, and the prosecutor’s role alongside with the difference between taking a plea, and going to trial and the two types of trials. Generally, Georgia Regional will ask all that for you, but you should try to do that up front. Takes patience. Takes time and gaining client trust through compassion and sometimes just being sweet. Thank you, have a good day.
It’s in the Genes
Here is one for you: Have you had a client who has a family member in their history that had something similar to what they had? You might have family members calling you and telling you that. What do you do when your client’s family tells you something that you don’t know anything about??? You stay polite, make sure your client is fine with you speaking with their family, and dig!
Does it Run in the Family?
This circumstance is the hardest of all for me to understand. That is likely because I am not a mental health professional capable of diagnosing anyone. I am a mere lawyer with legal knowledge and the willingness to watch and listen. I have had several clients that had variations of schizophrenia that ran in their family. All the different types of schizophrenia confuse me. One time, I had someone who had a family member waaaay back that had catatonic schizophrenia. What the heck is that?! Sounds like quite the feat to suffer from something that sounds that serious. Well, let’s make it short and sweet. That person might be competent to stand trial, but there will be a clear demarcation in their criminal background that tells you very likely when that mental health condition started to affect them. Let me break this down.
You are appointed to represent a client that is way “off,” delusions and paranoia combined when you meet them for the first time in jail. They might even be in a turtle suit! Poor things are usually made worse by being arrested as the things they are paranoid about are coming true; i.e. people coming to get them and kill them, etc. Of course, the police are not trying to kill them, but they already have that notion in their mind that someone (unnamable, usually, or a non-existent person/imaginary friend) are coming to kill them. So, when someone comes to arrest them, the fight is on. You can do all you can to use the strategies I discussed that I have employed above, and they can work for sure, but this is about how you debunk what is going on and if you can get them help.
The first thing you should do is, with the client’s consent, talk to their family and see if you can obtain a HIPAA waiver from their psychiatrist’s /psychologist’s office (if they have a history of going to one), and then get their criminal history from the prosecutor. If they have never sought help, do not despair. See if you can get a HIPAA from any jail they have been to. The client can then sign the HIPAA waiver so long as you explain to them that YOU will have access to ALL said records to try to help them. DO NOT share them with anyone. You stick those records in your file and guard them with your whole life. Then, when the case later closes, deliver them to your client upon their request.
Once you have both the criminal history and any mental health or health history of that client, see where they reported needing help to the medical professional and compare that with the dates the criminal charges started. See how they match up. Call the family and see what is going on in their family and listen for any issues with the parents or if they divulge anything about family history. If you hear that this psychosis, schizophrenia, bipolar disorder, etc. started with grandma, then ask if there was anything known about grandma and if she is still alive/where she is. This will tell you more than you think. This means that something about your client’s age/stress level/drug use or whatever in that cross section in time where they sought medical/mental help and the criminal actions started, meant something. This could mean your client was predisposed to schizophrenia this whole time (grandma’s genes) and if you know anything about schizophrenia, there is usually a high stress or extreme event that kicks it off and the client was never the same. Sometimes it is a breakup! Another reason to be gentle with each other.
Then, once you figure all of that out, it is time to visit your client again! See if you can discuss that one year where everything went awry. See what it was that put them over the edge and you will know what happened to them that opened up that genetic predisposition to that mental health condition and caused all this trouble for them. See if you can discuss the possibility if they are ill. If they won’t, see if they will agree with you that something about that time was not right. Over time, you will likely have some time either while they are out on bond or stuck in jail, to inspect discovery and give it to them. Go over it with them and see if they see the same things you see. You might just bring them back to reality. Make sure they understand what they are looking at, and be sure that you are asking those competency questions along the way. If you are satisfied and the client shows interest in wanting help and a full life full of work or school, see if you can find a program to help them move past those tough genes. Then, they might just have a chance at forming normal relationships. Of course, this is all assuming we have no questions about competency and we are satisfied with there being criminal responsibility.
Already Diagnosed with Something Inconsequential?
Your client’s family might tell you something just unfitting. This happens and they legitimately think this kind of diagnosis matters. Sometimes it just doesn’t have anything to do with your client’s actions at the time of the crime, and you need to have a kind manner with the family, but tell them that condition is kind of not a defense and there might not be a reason to get your client treatment court for something they are tired of, but your client is dealing with as an independent individual. When you met with your client, the charge might not match say, bipolar disorder. Then, you need to have some candid conversations with your client about the family mentioning their diagnosis and see what they have to say. This is another example of why listening is so important and so is confidentiality. If your client then tells you they stole from a store not because they were off their meds, but they wanted that thing, you might run it by them to get evaluated for kleptomania, but you might just ask them if they did it because they wanted to, or got in with a drug and theft ring. This, my friends, if when you must consider that not everything is mental health, but is a struggle for meaning in one’s life, which is perhaps treatable through therapy, but not your classic mental health case. Your client’s family can be helpful, but they may be so flustered with your client they are searching for answers themselves…which can also be confused with mental health…hey, not everyone is "crazy." Sometimes it just is. Sometimes it’s adolescence. Sometimes it is just being stupid and committing dumb, dinky crimes.
Competency
For the final issue! I have discussed this competency issue for a while now. I have touched on it in other sections but never really fleshed it out. Competency to stand trial, as I have mentioned, is a very LOW standard! Just like probable cause, hehe!…sorry, I had to stick that one in there. Competency to stand trial and Competency at the time of the crime are very similar issues but yet different. Both discuss if your client can basically know why they were arrested or in jail. However, Competency at the time of the crime is a bit different and discusses if your client was operating under some defect of mind at the time of the crime such that they did not know that what they were doing was wrong let alone illegal. On the other hand, competency to stand trial is much broader and governs similar questions but is discussing that your client does not, at any time, understand the reason they were arrested, their charges, the legal process of the judicial system and how a case moves towards trial, what is means to plea guilty or have a trial, and the roles of the attorneys and the judge. It gets blurry when your client responds generically and says something like, “The judge says if I am guilty or not.” Well, kind of…I always go further when they give me an answer like that. Sometimes they say something like, “The prosecutor gives me a plea bargain, and I say guilty.” Well, not quite. I always ask more. The key here is to get the client not just to understand they can plead guilty but that they understand the entire process and that guilty has a flipside – NOT GUILTY and what happens if you say that. When your client cannot give you better answers or they give you worse answers, have at it, I say file the motion regarding competency to stand trial. Then, Georgia Regional will send out a psychologist to evaluate your client and if they participate (sometimes that is a way incompetency presents itself), then, you will get a written report provided to you from the Judge’s office discussing what the findings were about your client. You can choose to share this or not with the prosecutor. That process aside; That is competency in a nutshell in the beginning stages of your questioning it.
After your client is found incompetent, you might file a Special Plea of Incompetency if they can be restored and the Judge will issue an order essentially telling Georgia Regional to come do the restoration process at the jail or take them to Georgia Regional for further attention. Here is my main issue with cases upon which I come in late: I see too many of these motions filed on generic schizophrenic patients where the attorney cited, “I could not have a competent conversation with my client.” Sure, I have written that, but I mean something like, they don’t know the judicial process let alone that I am appointed or retained to defend them against these criminal charges. Others seem to throw their hands up at simply talking to the supposed “insane” person who cannot talk about anything other than the inane. I sit and talk to all kinds of “crazy people,” and find out how much I understand their pain. I later will ask all the competency questions, and I am very often satisfied and see what I can do to help that person live their fullest and best life if they demonstrate willingness with me to do so.
Out of filing a motion questioning the client’s competency to stand trial, I have wondered if there is an ethical problem there in filing those motions without understanding them and their consequences. One consequence is hearing that Georgia Regional and medical professionals have the ability, under the law, to force your client to take medications and participate in treatment. Of course, they do this in the most legal way possible, but could it be true that your client is competent, crazy as in mentally ill, and not wanting to be forced to do something they have refused to do even if it is in their best interest? What if that re-traumatizes them and leads to other mental illness presentations down the road due to that being a high stress event over which they had no control? I am simply suggesting we should be more patient and do as much as we can to be right when we file that motion. That is not to say that we are not wrong when there are language barriers and interpreters involved in our making this judgement call, but that is to say we should do all we can not to re-traumatize our clients who might seem a little out there, but have legitimate trauma-based reasons for their actions that we act like are such a nuisance.
Speed and the Race to Plea
Lastly, but certainly this is not all the ways I could write about mental health, when you have someone who is in and out of competency who is competent but seems to be slipping, what do you do? I would suggest visiting them while working a plea out for them on the side in case they want to and can take it, while they are in jail, and seeing each time if they understand what you are doing for them. I suggest that you race against their competency issues to get their case closed so long as you do not see their understanding of what you are doing slip. If you do see this problem, you might have to start all over with filing for competency, restoring them, and trying again. This is very frustrating, and staying on top of your client’s progress is key so you don’t miss a window in which you can get them into a program that allows them to stay restored and not restored and cycling through that stressful process while in jail.
Conclusion
I hope this article helped you “see” more. Mental health cases are important work, and are often overlooked in my opinion. They are a slippery slope between being mishandled due to ignorance or due to the inherent communication issue that is having a mental health condition. It is easy to suffer as the attorney with both due to not being able to read minds. The only cure for that, is to measure how your client has changed and listening and doing your due diligence to learn all you can about the client and the situation. If that client can be given a way to live a full life, I suggest you find every reasonable and lawful way to help them seek treatment and do just that. You might make more of a difference in someone’s life just because you sat down, closed your eyes, and thought things through. That itself fights against the struggles that a mental health client is facing. You should always consider them as fragile as the porcelain doll that they were, that broke perhaps not too long ago. Mental health is a history lesson in understanding humanity.
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