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  #1  
Old 09-09-2016, 09:41 AM
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There are multiple levels of competency out there. For instance, I'm competent to practice law in several states and federally, but completely incompetent to fly an airplane. I can cure the airplane competence thing by gaining the necessary skills, knowledge, and experience to get a license to fly airplanes. I can be in a hospital suicidal yet still competent to execute a will as long as I understand what a while is, what it does, when it goes into effect, and the natural objects of my bounty. You are competent to do a lot of things, probably most adult things. But, if you're a convicted felon, you are not competent to vote. I am competent to represent you in courts where I am licensed, but I am not competent to remove your appendix.

Somebody could be totally crazy as we understand it and still be competent to stand trial. Competent to stand trial is the only competence that the court is interested in at this juncture. The jail will make sure he doesn't hurt himself or others and he won't be sent to a state forensic mental institution just because he's suicidal in jail.

Competent to stand trial means he

1. understands the charges against him
this means he has a basic name for the charge and a very basic idea of what that charge means. So, murder - killed somebody, burglary - took something from somebody

2. can aid in his defense
he does not HAVE to aid in his defense, just that he is capable of rendering some aid in his defense through the aforementioned ability to communicate with his attorney (I did mention this before, didn't I? I usually do when "I don't like my attorney/don't think s/he's doing enough" things come up)

He can be seeing things, talking to Napoleon, thinking that the zombie apocalypse is upon us, but if he understands the charges against him AND can aid in his defense, he's competent to stand trial no matter what his mental illness may be doing.

Most attorneys know when their client MUST go to the state forensic unit to become competent. It's usually pretty obvious. Most times mental health stuff is only relevant at sentencing as a mitigating factor, and even then there are some crimes where you want to avoid bringing up mental health issues (sex offenses, especially child sex offenses, for example). Failure to ask for a competency hearing up front is usually not relevant to a zealous defense.

In case you're wondering what happens if your LO asks for a competency hearing, here's the basic schtick:
1. the judge questions him briefly. This won't happen if your LO himself asks for a competency hearing as asking for something like that usually implies some level of competence, usually enough to stand trial. Remember, the competency level to stand trial is very low. Enough understanding of the system to say, "I think I need a competency hearing because I don't think I'm competent" - no.

2. assuming the Judge believes that there may be a question as to the person's competence, he will order an evaluation. This evaluation is done by a psychologist or psychiatrist at the jail. That expert will write a report based upon his interview with the Defendant. The State, Defense, and Judge will get a copy of that report.

3. If the State and Defense agree with the report, a joint recommendation will be given to the Judge who will generally act accordingly. If there's a disagreement, then a competency hearing will be scheduled. The Defendant will usually motion for a separate, independent evaluation in the interim. Usually that's granted, and a second expert is appointed to evaluate the Defendant and prepare yet another report.

3.a. there's a hearing in which the two critical questions - does the Defendant understand the charges, and can the Defendant aid in his defense - are the questions that the judge must answer. Usually, the court finds a person competent to stand trial. People with IQ's in the 50's have been found competent to stand trial. People in comas are not competent to stand trial. People who don't speak English in Iowa don't get a translator except at arraignment and sentencing and are still considered competent to stand trial despite the language barrier (most judges order up a translator for an actual trial, but not plea negotiations - this is really fun when you don't speak the language of your client, let me tell you. Thank God for Google Translate and friends from college - Hungarian anybody?)

4. Once there is a finding by the court that the defendant is not competent to stand trial, the judge makes a decision as to when the defendant will be competent, and what's necessary to become competent. Sometimes, it's just an order to be properly medicated in jail for the next 30 days. Sometimes it's a trip to the State Forensic Hospital until he's competent.

5. State Forensic Hospital - he's placed in a ward, usually an open ward with locked doors with others who are incompetent to stand trial. there, he's medicated, and the treatment modalities are behavioral. An orderly/psych tech will help him to understand the charges against him and what it means to aid in his own defense. Nobody will care about the purple people he sees in the corner. Nor will they do much in terms of talk therapy. The goal is just to answer those two questions, and usually get him sedate enough to not act up in court. Most of the guys I've had there have stayed 30-60 days. There can be a ton of violence, and it is very much like a prison (the orderlies/psych techs are trained corrections officers who have taken additional training to deal with psych patients). It is not a fun environment, 4 point restraints are liberally used, as are quiet rooms. Court ordered forced medication and ECT are more commonly used in a State Forensic Hospital than in any private facility I've ever seen, even when clients have wanted ECT, they are not as likely to do it as a first line treatment in a private hospital than a state forensic unit.

5. Once he has the minimum level of competency, he comes back to jail, and awaits trial.

Oh, and here's a big distinction - competency to stand trial is COMPLETELY different from insane at the time of the crime. Don't mix them up.

The other thing that drives Defendants nuts and makes them think that their attorney (PD or private) is not doing anything - justice runs slow. Mostly I don't want more than a few brief contacts with my client before I get discovery from the state. Discovery from the State helps frame the case and tells me what's going on, where the weaknesses of the State's case are, and how to advise my client as to chances at trial v. good plea offers. Most Defendants, otoh, want to tell me their story right up front - the adrenalin of the situation makes especially first time offenders very talkative. They get frustrated when I'm not interested in hearing their story right then and there, and I don't want to hear it then and there because I don't have the evidence, frequently clients lie then and there and want me to see their lie as plausible ("these are not my pants" cases, among others), and I want them to calm down, help me look at and understand the evidence the State actually has. It is very common for a few months to go by before we have a conversation that the Client considers "real" (though as a private attorney who takes court appointments and keeps my active client list down, I'm a soft touch and do tend to talk outside of the basic court documents with clients. I'm especially sensitive to making sure family relationships are maintained as best they can while a parent or child is in jail - comes from having a brother constantly in and out of prison and what that did to my parents).

Long post, but let's review:

1. competence to stand trial is the only thing that anybody is interested in at this point
2. the vast majority of Defendants with mental health issues, even with florid symptoms, are competent
3. there are legal reasons why mental health issues may not be a good thing to present to the court
4. It usually takes a minimum of 60 days from a judge ordering a competence hearing for a disputed competence hearing to actually occur (and that depends largely on the availability of psychologists and psychiatrists, not just the calendars of lawyers and judges)
5. if adjudicated incompetent, the Defendant goes to the State Forensic Hospital to become competent. The treatment there centers on those two questions - understanding the charges, and being able to aid
6. the actual mental wellbeing of the Defendant is irrelevant to the Courts
7. Incompetent to stand trial is very different than insane at the time of the crime
8. Somebody who is incompetent does not avoid trial or criminal process - it's just delayed, the time taken to make the person competent charged to the Defendant, stalling the count on any Speedy trial demand
9. it takes time for the criminal justice system to work, and that's frustrating to most defendants, competent or not.
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  #2  
Old 07-07-2017, 10:38 PM
bamaaubie bamaaubie is offline
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Thanks for the clarification, could you please be a bit more specific as to what the legal reasons are, for why mental health issues may not be a good thing to present to the court?

Last edited by bamaaubie; 07-07-2017 at 10:39 PM.. Reason: original post was very long
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Old 07-08-2017, 07:56 AM
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Old 07-08-2017, 10:13 AM
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Quote:
Originally Posted by bamaaubie View Post
Thanks for the clarification, could you please be a bit more specific as to what the legal reasons are, for why mental health issues may not be a good thing to present to the court?
Anytime a mental health issue proves an element. Non exhaustive examples:
1. any mental illness in sex offender cases where there's the risk of civil commitment
2. a cluster B personality disorder or treatment resistant psychotic disorder in cases where future dangerousness is an element
3. addiction where use of chemical substances is an issue
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Old 07-08-2017, 10:51 AM
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Quote:
Originally Posted by yourself View Post
Anytime a mental health issue proves an element. Non exhaustive examples:
1. any mental illness in sex offender cases where there's the risk of civil commitment
2. a cluster B personality disorder or treatment resistant psychotic disorder in cases where future dangerousness is an element
3. addiction where use of chemical substances is an issue
Thanks for the quick response, lets speak hypothetically...

Lets say i have a client, that had attempted suicide, was alcoholic, had been diagnosed with a cluster B personality disorder, was taking several prescribed medications and was several times over the DUI limit at the time of an alleged offence.

Lets say in our hypothetical case that the points 2 & 3 that you raise are relevant and i understand the element of consideration of the repetition of a crime in the future, but shouldn't they also present a mitigating factor in the current case?

Also,

Would a competency hearing decide whether or not the client was competent at the time of the alleged offence and therefore acted with or without intent or is that a moot point too?

I hope that makes sense, thanks in advance!
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Old 07-08-2017, 12:42 PM
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Quote:
Originally Posted by bamaaubie View Post
Thanks for the quick response, lets speak hypothetically...

Lets say i have a client, that had attempted suicide, was alcoholic, had been diagnosed with a cluster B personality disorder, was taking several prescribed medications and was several times over the DUI limit at the time of an alleged offence.

Lets say in our hypothetical case that the points 2 & 3 that you raise are relevant and i understand the element of consideration of the repetition of a crime in the future, but shouldn't they also present a mitigating factor in the current case?

Also,

Would a competency hearing decide whether or not the client was competent at the time of the alleged offence and therefore acted with or without intent or is that a moot point too?

I hope that makes sense, thanks in advance!
you're speaking of several different things. This post dealt only with competency to stand trial, not possible defenses during trial.

Insanity is completely different from competence to stand trial. Competence deals with whether the case can proceed because the person is so floridly mentally ill that he cannot understand the charges against him or aid in his defense. Insanity deals with his state of mind at the time of the offense. You're probably staying, "aren't they the same thing?" No. there's a completely different standard applied in court to whether or not somebody was insane (a legal term of art) at the time they committed the offense and whether they understand the charges against them and can aid in their own defense (competency)

Insanity in the US is generally defined by some variation of the M'Naghten Rule, a standard of insanity that came out of England before the Civil War. It basically asks whether, at the time of the offense, the person knew what he was doing was wrong, or did not understand what he was doing and that the act was a direct result of a mental disease or defect. It is a very difficult standard to meet and people with florid schizophrenia routinely meet that standard. It works as a defense in something like 2% of cases in which it is raised.

So, here's an example: Dude is hearing voices and has seen god. God has ordered him to kill his neighbor. He goes next door and kills his neighbor. He says that the reason he killed his neighbor is because God ordered him to do it and he'd rather obey God's law than man's law. This man is sane - he appreciated the nature of his act, knew it was wrong, and did it anyway. Is he competent? Dunno. We must get an evaluation that answers the questions - does he know what he's charged with, and can he aid in his own defense.

In this way, people are routinely found guilty of crimes despite untreated major psychiatric disorders.

Now, you're raising a "diminished capacity" defense which says, "yeah, I did the crime, but because I was under the influence of drugs/alcohol, I should not face the same sentence as others". It admits that there should be punishment, but that punishment should be more lenient than usual.

The first question that must be raised be the defense is whether or not a diminished capacity defense is applicable. You have somebody who's attempted suicide. Big deal. Nobody cares when it comes to a matter of justice. Suicide is something that the hospitals and mental health courts consider only if there's a grave risk that the person is a continued danger to himself or others. That the person was released from the hospital (assuming the person even went there) indicates the person was not in grave danger of a repeat incident. Further, the person is then responsible for follow-up care including going to the hospital for a repeat admittance should his/her symptoms become worse.

It has no bearing on a criminal case.

Cluster B personality disorders are notoriously untreatable. Prisons are filled with people with Cluster B's (in fact, antisocial personality disorder lists imprisonment as one of its possible criteria, making a very large segment of prison ASPD). Cluster B's may impact a person's cognition, but never enough to meet the criteria of an insanity plea (with the possible exception of a borderline in psychotic crisis). There is a reason these are considered Axis 2 disorders, not Axis 1 like bipolar or schizophrenia - they are a pattern of behavior, cognition, etc that differ from societal standards. The person does not lack the mental capacity to know the law and adhere to it - the person just appreciates it differently from the rest of us.

Anyway, a Cluster B will not get a person to a NGRI, nor will it work as a diminished capacity defense. It may work in sentencing to help ameliorate the sentence, but that is doubtful as Cluster B's are intractable, usually have more than one run in with the law, and the disorders are seen as indicative of the need to protect society from that person as the person chose to break the law.

As for alcoholism - voluntary intoxication is never the basis for a NGRI nor is it the basis for a diminished capacity defense. Involuntary intoxication can be used for diminished capacity, but voluntary intoxication, especially as you mention DUI, is never an excuse. Not even black out drunk is an excuse.

In your hypothetical, it sounds like all of these disorders were diagnosed before the alleged incident. If so, bringing up the mental health concerns can further backfire since the person had access to services in lieu of offending. This differs greatly from the 18 year old experiencing his first psychotic break who discovers himself back on the earth he grew up on, with no angry aliens trying to wipe him out, the last vestige of humanity in the galaxy, who committed his offense during this sort of psychotic break. Can't murder a person if you fully believe that you are murdering a space alien. Take that same person, treat him so that the voices and delusions go away and then he chooses to not take his meds (for whatever reason), and he offends again, and you have a serious problem with responsibility. Same goes for an alcoholic, with or without other psychiatric conditions, who chooses to drink and then chooses to drive. The law could not care less if the alcoholic drinks or stays sober - the minute the alcoholic gets behind the wheel of a car - that is a choice outside the realm of the claim of alcoholism as a disease.

Anyway, we are far afield from the original post dealing with competency.

My point is:
  • competency - deals with whether or not the court case can go on due to a person's inability to appreciate what he's charged with or an inability to aid in his own defense. It's a right now sort of thing
  • insanity - deals with mental state at the time of offense. It looks back and asks whether the person knew what he was doing, or knew what he was doing was wrong. Think of it roughly as a "cop at the elbow" test - if the person would not have acted in the exact same way if a cop was standing at his elbow, he's sane. And even if he would have acted that way, he might still be sane.
  • diminished capacity - looks back at the crime and says that because of some extenuating circumstance, the person should not be held as liable as another person. This decreases the degree of the crime, but still imposes a penalty. So, Murder 1 becomes some flavor of manslaughter - that sort of thing.

Hope this clarifies a bit. Sorry for anybody represented by your hypothetical.
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Old 07-08-2017, 01:59 PM
bamaaubie bamaaubie is offline
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Thank you for your colourful and detailed explanation. Yes you are correct i was misinterpreting the the defence of mental disease or defect and assuming that a competency hearing would have distinguished between being competent to stand trial and the state of mind at the time of the alleged offence.

In my hypothetical the person plead NGRI, they had checked themselves into and out of hospital, being diagnosed borderline and bipolar, had self harmed, they hadn't driven but was intoxicated to the equivalent of several times over the drink drive limit.

The defence lawyer entered a plea of NGRI but never sought an independent medical professionals opinion or even sought any medical history or in fact called any witnesses at all in defence.

At trial the judge stated the need to hold a competency hearing, the lawyer responded, not if i change the plea, then at a side bar with the judge, he changed the plea to a standard not guilty plea.

That's why the original post on competency grabbed my attention and i'd wondered that if the competency hearing had been held then there may have been a different outcome, but from what you've said i guess not.

Post conviction remedies were fruitless, even though an independent clinical neuropsychologist determined that at the time of the alleged offence our person was in no fit state to do anything, let alone form the requisite intent to commit a crime, the same judge dismissed the evidentiary hearing anyway.
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Old 07-08-2017, 03:10 PM
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Okay, I'm armchair quarterbacking a game I didn't witness, so block of salt time.

NGRI admits the person did the deed. Suddenly, the State has the burden to prove nothing. That shift of burden is really problematic in that if there's any doubt about anything, or if evidence can be challenged to create a reasonable doubt - it's a non issue. Illegal search and seizure? Non-issue. Didn't read the Miranda warning? Non-issue. want to challenge the confession? Non-issue.

The Defendant has said, "I did the deed and but for my insanity, I should be found guilty"

The burden then shifts to the Defense to show that the person was insane at the time of the offense. This is a tough nut to crack as you're going to get reports from the State's doctors about the Defendant. Those reports will do a diagnosis, talk about cognition, and all that stuff, but usually conclude that the Defendant knew what he was doing and that what he was doing wass wrong.

If the defendant is doing things on the State's dime, then the attorney has to motion for the appointment of another psych eval. If not on the State's dime, then they hire whomever they want, providing they can afford rather stiff expert witness fees for the eval, etc.

But, something tells me that the State's eval was devastating, devastating enough that there was no way to win a battle of the experts (Battle of the Experts - where both sides hire experts who say the exact opposite of what the other's saying). Juries do not like Battles of the Experts. They do not like mental health based defenses. It takes a lot of work to get a jury to understand that a person should be treated in a forensic mental unit at the state hospital, sometimes for the rest of their lives, instead of going to prison.

Anyway, all of that aside, it sounds like the Defense attorney decided the best route was to not try to prove that the Defendant was insane, and instead concentrate on the elements of the case and forcing the State to prove each and every element beyond a reasonable doubt.

The appeal brought up Ineffective Assistance of Counsel for making that strategic decision. The Appellate court shot that down stating in essence that a strategic decision is a strategic decision and just because you didn't like the outcome doesn't mean you can go back and retry the case with the other strategy.

This said, there's no reason why the mental disorders were not brought up at sentencing unless it was a sex crime, there's a violent offender's registry in the state, or there's another reason why bringing up mental issues would not have served the client. There may well be a strategic reason for not bringing this stuff up - dunno.

You're in Alabama, right? You should know that the guy who was executed the other day was diagnosed by the defense team with delusional disorder among other things. Their experts said that this should mitigate his sentence enough to drop him down to LWOP.

No dice. Fwiw, the State's experts who assessed him before the first trial diagnosed him with borderline personality disorder. Evidence of his mental state was never heard by the courts.
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Old 07-08-2017, 05:24 PM
bamaaubie bamaaubie is offline
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Yes, you are pretty much spot on with everything, the quack found what the state pay him to do, every time, he knows what side his bread is buttered on, i don't believe the attorney did everything he could to mount an effective defence, he didn't motion for any independent evaluation, hell his client had been in jail 18 months and then went to prison before ever seeing the discovery. There was evidence that raised a reasonable doubt but it was never pursued vigorously, there were a couple of witnesses for the state that lied, changed testimony etc. the "trial" lasted half a day and it was over...Rolltide!
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