Monthly archive

September 2013

Ethics and the Law: Born to Be Wild

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Geoff Grubb, M.D., one of my childhood friends who I met at age seven in Abilene, Texas, became a psychiatrist. He finished high school at age 17, went to medical school, and then became a psychiatrist. He trained at Rusk State Hospital and at the end of his career did psychiatric work at state hospitals all over Texas.

His career was cut short when he had a brain aneurism caused by stress and Type A behavior. The Creator pulled him up after being in a coma for 31 days. He helped me on many of my cases, and sometimes before I could give him all the facts, he stopped me and told me the answer. Dr. Grubb said at least 3 to 5 percent of the population is born with the propensity to become criminals. Some examples are Bonnie Parker, Clyde Barrow, John Dillinger, Al Capone, Ted Bundy, Charles Manson, John Wesley Hardin, and Billy the Kid.

When asked how to prevent crime, Warden Duffy said, “Build a better child.” Warden Duffy was the warden at San Quentin State Prison and had witnessed over 100 executions. Some say we should spend money on mental health programs and lunch programs for poor kids rather than sports stadiums. Our society drives some into a life of crime. When you have a client, go back three generations and see where your client came from, and it will help explain how they got where they are now

The remainder commit criminal acts because of childhood occurrences, environment, peer pressure, poverty, revenge, social, love and/or jealousy (domestic violence), drugs and alcohol, gang-related incidents, ignorance of the law, mental problems, hormonal imbalance, and money. Some see committing criminal acts as a way of survival. After all, going to prison or jail provides them with meals, a place to sleep, and maybe an education. Some individuals are just “rebels without a cause.” Presently (August 2013), there are 8,648 accused citizens in the Harris County Jail, and about 2,589 of them are on psychotropic medications for mental issues, according to Dr. Seale, Medical Director of the Harris County Jail.

Katherine Scardino, one of my Houston friends, recently saved one of those 3 to 5 percent from the death penalty. Even though she did a remarkable and ethical job of presenting a mental health defense, the jury instead gave him life without parole. The evidence Katherine presented was clear and the verdict should have been not guilty by reason of insanity.

Players: State v. Maron Thomas, Austin County, Texas

Death Capital trial May—first week of July 2013
Judge: Jeff Steinhauser
Lead Counsel: Katherine Scardino
Co-counsel: James Rivera
Mitigation: Gina Vitale
Mental Health: PhD Psychologist Dr. Kristi
 Compton, Dallas
Psychiatrist Dr. David Self (Rusk State Hospital,
 Rusk, TX)
Prison Expert: Frank AuBuchon
Crime Scene: Louis Akin (did not testify)

Maron Thomas was charged in Austin County with 5 murders in one criminal transaction. He killed his mother, stepfather, sister, brother, and two-year-old niece, who was beheaded and her head and body separated—meaning head in one room and body in hallway. The murders occurred in the family home. The facts of the crime itself suggested a mental health issue, which included Maron and his brother running naked through the field shortly before Maron killed his brother by shooting him twice—once in the back and once in the neck. Maron had never had any mental health history prior to this one incident. Initially, the investigators and the DA assumed that the killing spree was caused by the ingestion of a controlled substance—like Wet (marijuana with PCP)—but the drug testing done on Maron within hours of the offense indicated that the only drug he had in his body was marijuana. There was no other controlled substance. Maron had no prior criminal history; he was 23 years old. He had lived at home with his family his entire life, and the family had only moved to Bellville within the prior 2 years.

Maron was Muslim and had Islamic literature scattered all over his room. He wore a Kafi (cap) and prayed 5 times a day. He did not have a girlfriend or other friends other than his family. He was very close to his mother. He used marijuana, usually smoking it with his brother and maybe one of his brother’s friends.

The defense believed that Maron was insane at the time of this heinous offense and began mounting an insanity defense.

Lawyer Scardino called Dr. Compton immediately upon being appointed by Judge Steinhauser and asked her to go see Maron as quickly as possible. Within six days of the crime, Dr. Compton was at the Austin County Jail. We all know the value of a mental health expert interviewing the defendant as quickly as possible for the relevancy of testimony to mental state at the time of the crime. Her testimony was crucial to the jury beginning to place credibility on the mental health issue. She saw Maron about five times over the course of this case, and each time, she saw evidence of unrealistic thinking and delusions from a client hearing voices. About one year prior to trial, they hired Dr. David Self, who interviewed Maron four times. Both experts agreed that he was schizophrenic, and that this crime was the result of a schizophrenic episode. Dr. Self was amazing on the stand. He spoke in terms that the jury could understand and he was believable.

Neither Katherine Scardino nor James Rivera believed that Maron Thomas was sane or that he should be on death row. Because of their insanity defense, the mental health experts tes­ti­fied in the guilt phase of the trial. The jury rejected their in­sanity defense, but it was frontloaded to them for the punishment phase of the trial. It was their belief most of them accepted that he was insane, but having five dead people, with a child decapitated, was just too much for the jury. So, Katherine felt the life verdict was a compromise, but one that she gratefully, surprisingly, accepted out of Austin County.

He was, as my West Texas friends say, “Bat s—t crazy and always had been.”

Sometimes the immediate response of jurors is to “lock ’em up and throw away the key,” or “line them up in front of a firing squad.”

When dealing with clients, especially those with mental illness, keep detailed notes. Always try to get family members and friends to help. Remember to get a waiver of attorney/client privilege. One of the hotline calls was regarding a lawyer concerned that his client was boasting he had a live hand grenade. The hotline was able to help the concerned lawyer handle this in an ethical manner. No humans or animals were harmed during the disposition of this ethical and dangerous dilemma.

There are some people, including lawyers, that are crazy, “bat s—t crazy,” and some even really “bat sh—t” crazy. Like other citizens in this category, it is wise not to annoy them. To ethically represent a citizen with mental issues, refer to the end of this article.

Listen to your clients. Get HIPPA releases for medical records and general authorizations to get all school records, jail/prison records, or any other kind of records. If your client has been in the military, get all those records. The records will help you paint a picture of your client. Get a video of the family to show the judge or jury. Closely examine any records your client brings in. We recently had clients counterfeit college degrees, letters of recommendation, and such. We then presented those as evidence and later found out in further court action that the documents were phony. A degree from Harvard is great, but not when the school has no record of attendance.

Leaving Galveston, the first billboard you see is that of a personal injury lawyer. He has them on both sides of the road. He claims to be tough, mean, and smart, stating he wins his cases. About a half mile down the road, the next billboard shows a lawyer saying, “We sue lawyers”—then your usual fare showing furniture stores, car dealers, and carpet companies. Make sure you follow the rules of ethics and document your file so you do not end up getting sued, grieved, or facing a writ.

The state bar is finally getting serious about going after prosecutors, judges, and defense lawyers who have participated in wrongdoing resulting in wrongful convictions. As defense lawyers, we must be mindful of the rules of ethics so they do not try to throw the ball back at us. Lawyering is no joke. It is a serious profession in spite of all the distasteful advertising. Locking a man or woman up for years in cells or cages is an extreme event. Many of the old-time gangsters learned the art of crime after being wrongfully convicted for petty crimes when they were young. John Dillinger is a prime example.

If you have an ethics question or not sure what to do, call the HCCLA Ethics hotline at (713) 518-1738 or the TDCLA Ethics hotline at (512) 646-2734. We are like Las Vegas—we never close. Don’t wait until a process server is at your door with a writ, grievance, or lawsuit. Remember, there are people who are crazy, bat sh—t crazy, and some who are really bat sh—t crazy.

The following information was taken from the Handbook paid for by Texas Appleseed and Hogg Foundation for Mental Health:

Top Ten Things to Keep in Mind as You Represent a Client With Mental Illness

1. Mental illness and mental retardation are not the same: Mental retardation is a permanent condition characterized by significantly below average intelligence accompanied by significant limitations in certain skill areas. Mental illness, on the other hand, usually involves disturbances in thought processes and emotions and may be temporary, cyclical, or episodic. Most people with mental illness do not have intellectual deficits; some, in fact, have high intelligence. It is possible for a person with mental retardation to also have a mental illness. Many of the Texas statutes that address mental illness also address mental retardation, and you should look carefully at those statutes for the differences in how the two are addressed. This handbook does not address mental retardation.

2. You owe your client a zealous representation: You have the ethical obligation to zealously represent your client, which may include exploring your client’s case for mental health issues. It may also include bringing appropriate motions if your client’s mental illness has affected his or her case in any of the ways discussed in Section 1 of this handbook.

3. If your client is incompetent, stop and order an evaluation: If your client is incompetent, he or she may not be able to make informed decisions about fundamental issues, such as whether or not to enter into a plea bargain agreement or, instead, proceed to trial. Do not allow your client to accept a plea bargain, or make any other decisions regarding the case, when you have reason to believe that he or she is incompetent. Instead, immediately request a competence evaluation.

4. Mental illness and incompetence are not synonymous—and you should be concerned about both: Keep in mind that competence to stand trial is distinct from mental illness, so that some clients who are fit to proceed to trial may still have serious mental illness. Even if your client does not have a competence issue, there may still be significant mental health issues in the case that you should explore. Remember, however, that if your client is competent to stand trial, he or she makes the final decision about how to proceed with the case, whether or not to explore mental health issues, and whether treatment should be part of a disposition.

5. An insanity defense may be appropriate: By taking the time to properly inquire about your client’s mental illness and to explore various legal and medical options, you may obtain information that will help you decide if you should explore an insanity defense. If your client receives a not guilty by reason of insanity verdict, he or she will avoid receiving an unjust conviction. However, as discussed further in Section 7 of this handbook, there may be disadvantages to pursuing the insanity defense and you should discuss all of the pros and cons with your client.

6. Mitigate, mitigate, mitigate: Mental conditions that inspire compassion, without justifying or excusing the crime, can be powerful mitigation evidence. Part of your job as an attorney is to present the judge or jury with evidence that reveals your client as someone with significant impairments and disabilities that limit his or her reasoning or judgment. Mitigation evidence can be used to argue for a shorter term of incarceration or for probation instead of incarceration. In capital cases, mental illness and mental health testimony may mean the difference between life and death.

7. Ineffective assistance of counsel and reversible error: An attorney’s failure to request the appointment or otherwise obtain the assistance of qualified mental health or mental rehabilitation professionals when indicated can be a violation of a defendant’s Sixth Amendment right to effective assistance of counsel. This certainly applies to capital cases but also other homicide cases and any alleged offense that suggests mental aberration. A defendant’s prior history of mental impairment may indicate that you need the assistance of a professional evaluation. Ake v. Oklahoma, 470 U.S. 68 (1985). Ake also confirms the claim of indigent, convicted defendants to the assistance of mental health professionals at sentencing proceedings. An appellate judge may find reversible error if a client is truly incompetent or insane and the issue is not raised in court.

8. Overcome your own prejudices before you hurt your client and his or her case: A popular assumption is that mental-state defenses are attempts by bad persons to “get off” or deny responsibility for their behavior. Many people believe that persons with mental illness, by contrast to those with mental retardation, have the ability to fully appreciate the nature of their acts and control them. This denial of psychiatric disability can deeply influence the attitudes of both judges and juries toward expert witnesses and mental health defenses. Part of your job, if you are representing a person with mental illness, is to overcome cynicism toward mental health issues in criminal cases. Mental illnesses are neurobiological brain diseases. A mental illness is a medical illness, not “hocus pocus,” and the people who experience it suffer profoundly. Mental illness can be diagnosed, treated, and sometimes even cured. You do your client a disservice by representing it any other way.

9. Incarceration is particularly harmful to people with mental illness: Jails can be very damaging to the stability, mental health, and physical health of people with mental illness. Numerous studies show that placing mentally ill people in single cells, isolation, or “lock down” can worsen their schizophrenia, depression, and anxiety. Mentally ill and mentally retarded adults are also more likely than others to be victimized by other inmates or jail staff. They are at high risk for suicide. They generally get inadequate, if any, medication and treatment while in jail. As set out in Section 5 of this handbook, you should seek to get your client’s case dismissed quickly and, if appropriate, try to get your client released on bond.

10. Do not let your client get caught in the “revolving door”: Many adults with mental illness are arrested for minor offenses that directly relate to their illness, their poverty, or their disturbed behavior. They cycle repeatedly through the courts and jails, charged with the same petty offenses. This “revolving door” is not only a burden to the courts and the criminal justice system, but it is costly to society, to these individuals, and to their families. By quickly pleading your client to “time served” without exploring his or her mental illness, you may lose the opportunity to help your client get better so that he or she does not re-offend. Attorneys should do their best to link mentally ill defendants to appropriate treatment or services that will help them keep out of trouble. While it is important to get your client out of jail as soon as possible, it is equally important to keep him or her from returning to jail. Releasing persons with mental illness back into the community with no plan for treatment or aftercare is a recipe for revocation and recidivism. Don’t set up your client to fail.