Tuesday, April 15, 2008

Representing The Incompetent Criminal Defendant

Paranoia led him to think that as his lawyer
I was conspiring with the prosecutor and the judge to get him ...


The Cool Justice Report
April 15, 2008

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com

I recently had the pleasure of presenting a lecture on ethics to the Connecticut Trial Lawyers Association. One of the subtopics was representing the mentally incompetent criminal defendant.

After more than 30 years in criminal defense work I have found that the appearance of a mentally incompetent defendant is not an uncommon occurrence.

Dealing with the mentally ill client presents significant challenges to the criminal defense lawyer. Often the client is unable or unwilling to communicate with his lawyer. Those suffering from paranoia often begin to view the lawyer as an antagonist. My experience has run the gamut from the nearly catatonic teen accused of killing his father to the traumatically brain injured paranoid schizophrenic railing to the court that his lawyer is out to get him. In each instance the lawyer owes an obligation to the client to provide an adequate defense; a task made more difficult because of the client's mental illness.

In the first instance, mental competence to stand trial differs from the standard that pertains in an insanity defense. One can be mentally competent and still qualify for an insanity defense. The converse is also true: the incompetent defendant may not have been legally insane at the time of the commission of the crime.

The focus in an insanity defense is upon the defendant's state of mind when the crime was committed; while competency evaluates the defendant's mental state during the proceedings. The insanity defense requires proof that at the time of the commission of the crime the defendant was suffering from a mental disease or defect and as a consequence was either unable to conform his conduct to the requirements of law or unable to distinguish wrong from right.

The law requires that any criminal defendant be competent to understand the proceedings and assist in his defense: Section 54-56d(a) C. G. S. provides that: "A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense."

The defense lawyer, the prosecutor or the judge can initiate the process of evaluating competence. In most instances the defense lawyer is in the best position to raise the issue. When a competency request is made to the court, the judge will order an evaluation by a team trained in competency issues. In most instances in Connecticut, the court will order the accused confined at Whiting Forensic Institute, a secure mental health facility located at Connecticut Valley Hospital to conduct the evaluation. Time restrictions are set by the court for the completion of the evaluation, at which time a formal hearing is conducted.

The test for competency is two pronged: first, the defendant must be able to understand the nature of the proceedings against him. This means having an appreciation of not only the charges but also the roles of the prosecutor, defense lawyer and judge. In addition, the defendant must be able to assist in his own defense. In one murder case I handled, the accused was a college graduate who had majored in criminal justice. Because of this he knew the buzzwords associated with a criminal trial. He had sustained a self-inflicted gunshot to the head at the time of his arrest. This brain damage was in addition to a diagnosis of paranoid schizophrenia. That paranoia led him to think that as his lawyer I was conspiring with the prosecutor and the judge to get him. Despite his understanding of the nature of the proceedings his mental and organic deficits clearly interfered with his ability to assist.

In that type of circumstance the court can order the accused confined and forcibly medicated to restore competence. In the situation where the accused cannot be restored to competence after a statutorily proscribed period, the charges are dismissed. The court can order a civil commitment proceeding to be undertaken as well. If at some later time it is determined that the individual is competent the charges can be reinstated. In one particularly notable case a murder defendant suffering from brain damage and confined to a wheelchair was found to be incompetent and the charges were eventually dismissed. It later came to the attention of the state's attorney that this person was not only attending college but was on the dean's list. He was re-arrested and convicted. He appealed and the judgment was affirmed. He went from the halls of academia to a prison cellblock.

A lawyer faced with the dilemma of representing the difficult mentally ill client can seek aid from the court by requesting the appointment of a guardian ad litem. The guardian serves as the legal representative of the accused for the duration of the proceedings, and can make recommendations and decisions for the mentally disadvantaged accused person. An alternative is to seek the appointment of a conservator who is then legally empowered to make decisions for the ward. In either circumstance the lawyer and the court are assured that the rights of the mentally disabled defendant are being protected.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website, www.meehanlaw.com

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