It seems like I represent a lot of mentally ill criminal defendants. Some cases are too small to involve a mental health expert, such as where a cognitively impaired defendant steals from her group home. Prosecutors are likely to recognize what is truly happening and, if not, a judge is likely to straighten them out. However, when the charges are serious, a defendant’s mental health status can be key and requires special preparation.
First, understand the ground rules. Criminal defense lawyers residents rely on representing diminished capacity clients “shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” This obviously can get complicated and some legal decisions must be made on behalf of the client. For example, if a criminal defendant is delusional but absolutely forbids counsel from and disclosure of that fact, the attorney cannot proceed to trial as though the client is competent. The lawyer must request a formal competency review. On the other hand, if the client is competent, the lawyer must follow client directives regarding mental health defenses.
When seeking a forensic mental health evaluation, I tend to request private evaluations before submitting my client to a state contract evaluator. This way, if the private evaluation brings unhelpful news, it can be withheld and the prosecution cannot use it against the defendant during plea negotiation, trial, or sentencing. For indigent defendants in Maine, the State often will pay for a private evaluation before a state contract evaluation upon a satisfactory explanation as to why a state contract evaluator would not suffice.
When I think my client’s chances for a mental health defense or competency claim are very good, I will go with a State evaluator first for several reasons. A favorable State evaluation shortens the process, the law allows the criminal responsibility portion of the report to be sealed and unavailable to the State unless that defense will be presented at trial, and you can always seek a private evaluation if you don’t like the State eval.
When going with a State contractor evaluation, it helps to talk to the State Forensic Service before submitting a motion to apprise them of the special needs in your case. PTSD issues can be very different from cognitive deficit cases and may require special expertise or experience. From what I have seen, our Forensic Service does what it can to direct cases to appropriate evaluators, so it helps if they know about special considerations beforehand.
A cardinal rule is to personally attend all forensic evaluations — not the administration of the MMPI and the like, but the interview itself. You will see how your client presents and learn things about the case and the evaluator that you otherwise would not have known. I have seen psychologists ask leading questions and talk to cognitively impaired defendants with a parental tone, as though they were talking to a child. During a break, I gently pointed that out, and the evaluator explained that it was purposeful and explained why. I also have seen defendants with diminished capacity correct an evaluator’s mistakes. Witnessing that made me think about my client in a different way. That case still was eventually dismissed for lack of competency because, in part, I had first-hand appreciation that the contours of my client’s functioning were extremely uneven.
Even if all evaluations suggest your client is competent, a hearing may still be prudent. In Maine, the judge is the final arbiter of the legal issue of competency and can rule against the evaluators’ recommendations. If criminal liability is a lock for the prosecution, there may be little risk having your client testify at a competency hearing to demonstrate her inability to answer questions, make complex decisions, or otherwise assist counsel in her own defense.
When appropriate, take the opportunity to be bold with forensic evaluations. Issues that don’t rise to the level of a full defense can be sentencing mitigators provided your client has the ability and drive to work on the issues. Raise mental health issues regarding whether your client thought he was in custody for Miranda purposes and any other issue where mental health and due process fairness issues can be tossed into the same hat.