Why must we learn mental illness? Because we represent the citizen (and non-citizen) accused of crime. Consequently, we often represent the mentally ill, the addicted, the intellectually disabled, and the mentally impaired. Statistics show a supermajority of our clients have never finished high school, for whatever reason. Many have an underlying mental illness impairing their ability to conform their behavior to the law or the classroom. Often, this impairment comes paired with a substance abuse disorder.
This practice area is filled with tough mental health and intellectual disability cases and presents the practitioner with extraordinary responsibility. To best serve these special clients, the law and facts demand we be well-versed about the intersection of criminal law and mental health. Our state legislators found these issues important enough to write many statutes—so we need to find it important enough to read them. As Gerry Spence taught, “It all begins with YOU.” Are you ready to practice law on another level, particularly felony criminal defense? If so, thank you for your work and for considering this article. I hope you find it helpful.
The reality of the law enforcement model is that police officers search for low-hanging fruit. As a result, the mentally ill and intellectually deficient walk, or drive, themselves into the law enforcement trap more often than high-functioning men and women. High-functioning people are less likely to commit crimes and are more likely to avoid detection. Most importantly, people with mental illness “self-medicate” with addicting drugs so they can feel “better” or “normal.” They are typically in denial of their mental health and substance abuse problems. Drugs alter behavior and lead to crime. A person’s drug abuse history, whether medical or criminal, is a clue there might be a mental illness problem afoot. Over sixty percent of all drug addicts have an underlying mental illness fueling their addiction.1 My trusted licensed chemical dependency expert firmly believes there is always an underlying personal trauma driving a substance abuse disorder.
No one wants to be known as someone with serious mental illness or a drug addiction. These are not only disabilities but social and personal stigmas. And denial is not just a river in Egypt, as they say, but a primary state-of-mind for the untreated mentally ill and the addicts. The burden is on the defense attorney to discern what mental illness or impairment the client may have now, how it may help their defense, and how defending their case may get them on the path to recovery—both in the mental health and accompanying addiction sphere. This attention to detail will also reduce the elevated risk of an ineffective assistance of counsel finding in these types of cases. By being the client’s knight in shining armor, and by getting them on a path to recovery and victory, the defense lawyer checks off most of the boxes in a true investigation of the case.
Courts of Appeals Are Finding Lawyers Ineffective for Failing to Investigate Mental Health and Mental Impairment
Representing the mentally ill is a large part of a full-time criminal defense practice and has become the primary focus of many felony punishment cases. I gravitated toward this practice area after a lifetime of familial interaction with bipolar disorder, major depressive disorder, and some substance use issues. And capital murder cases, where the law of effective assistance of counsel progresses most quickly, have transformed “future dangerousness” defenses into “mitigation” as the primary punishment issue. Why do we spare their life? Why do we let them remain in society?
Some attorneys avoid putting on mental health evidence, fearing it may backfire with some juries. That’s a decision to make, but only after a full investigation, as mental health mitigation and investigation is a primary focus of motions for appeals and post-conviction writs alleging ineffective assistance for failure to investigate punishment evidence. See Porter v. McCollum, 558 U.S. 30 (2009) (finding defense counsel’s failure to uncover and present punishment evidence regarding defendant’s mental health, family background, or military service ineffective). These claims come as quickly as a motion for new trial filed by a savvy appellate lawyer and may drag on for years through the writ process. Therefore, the defense practitioner must make a competent mental health investigation to either: 1) rule it out as an issue, or 2) make a reasonable judgment about whether to include it as part of the defense case.
One cannot strategically fail to investigate the client’s mental health history. But one can strategically not utilize the evidence after a proper investigation. “Under Strickland, an attorney has the duty ‘to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’” Conrad v. State, 77 S.W. 3d 424, 426 (Tex.App.—Fort Worth 2002, pet. ref’d) (quoting Strickland, 466 U.S. 668, 691 (1984)). “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 690) (failure to uncover and present Defendant’s history of sexual abuse at punishment was ineffective assistance). “Failure to uncover and present mitigating evidence ‘cannot be justified as a tactical decision when defense counsel has not conducted a thorough investigation of the defendant’s background.’” Lampkin v. State, 470 S.W.3d 876, 913 (Tex.App.—Texarkana 2015, pet. ref’d) (quoting Shanklin v. State, 190 S.W.3d 154, 164 (Tex.App.—Houston [1st Dist.] 2005, pet. dism’d)). Consequently, by completing a full mental health investigation, the punishment case becomes both much more effective to present and very less subject to later challenge. As David Botsford warned, “The client of today is the enemy of tomorrow.”
If you rely on court appointments for a living or extra income, an ineffective finding can cut off your ability to accept court appointments for a year under your county’s Indigent Defense Plan (and longer if the judge presiding blocks you indefinitely). You can be prevented from appointment as lead counsel on capital trials, appeals, or writs. Tex. Code Crim. Pro 11.071, 26.052. You can also lose your board certification. So don’t risk your livelihood, key sources of income, and especially your client’s well-being by being pressured into a quick plea when there are evidence-based concerns about their mental health or intellectual disability.
How to Efficiently Investigate a Client’s Mental Health History
Step 1—Ask the Client
The first task in the investigation is not rocket science. Ask the client whether they have a history of mental illness and what medication, if any, they take. This is important to ask in the first interview, along with whether they have an addiction or any military veteran status. Mental health court, drug court, or veteran’s court are options that may be the easiest road to recovery in your county.
Persons accused of crimes are often under-educated and under-medicated, so to speak. They may also be traumatized by their arrest and incarceration. They may not remember all their mental health diagnoses from childhood, or they may simply not disclose it despite being in their best interest. Nonetheless, at the first client interview you may often notice mental illness if you converse long enough. Prolong the interview if you observe racing or very slow speech or other abnormalities suggesting mental impairment. The longer you talk with the client, the more likely you will see or hear something needing further investigation.
A lengthy interview is also important since many people suffering from a mental illness (everything from minor depression to schizophrenia) have learned to adapt their behavior to hide and minimize their disorder. A person with mental illness is still looked down upon in our society. If you represent an adult defendant, they’ve spent much of their developmental life working around, over, and through their disorder. Often, they will do whatever it takes to mask it from you and the general public. They just want to be “normal,” too.
It’s great when a client volunteers they have a diagnosable mental illness. But more often it’s your detective work that picks up on it, or at least on the clues. How does the client look? Bad hygiene or disheveled appearance? Even blank/distant/empty stares or affect can be clues. How do they speak? Rapid or slow speech can be clues, as well. How is their thought pattern? A disjointed thought cycle is a clue. How does interacting with them feel to you? Personality put-offs, weird vibes, and sad feelings can be clues. What behavioral history can you observe from their criminal history? A long line of addiction-related or violent crimes may be red flags for mental illness or substance abuse disorders.
First interview clues are convenient, but you must regularly visit at length with the client to understand them well. Ask them if they have a history of mental illness and ask what doctors they’ve seen, since getting their records under HIPPA or subpoena is the next important step. By the way, criminal subpoenas, including those from the defense, are not protected by HIPPA and do not need a special court order. Some offices request a HIPPA release out of an abundance of caution. I provide it if the client is competent to sign one.
Sometimes you learn about the client the easy way, but other times you must really dig. Surprising is how many head trauma cases are out there. Look for them. Ask your clients if they have a history of head trauma. What car accidents have they experienced? Have they fallen on their head or suffered a concussion? Football is still king in Texas, along with Bob Wills.
The client is your most accessible punishment witness. I usually call the client at punishment, especially if they did not testify at guilt-innocence. The judge or jury may want to hear what they have to say and may want to make a connection at some point during the trial. As John Hunter Smith once noted, punishment is an “all cards on the table” setting. And even though there’s usually a bad card or two with mental illness and substance abuse, consider playing the entire hand. Get the client accustomed to your potential questions and cross-examination. Lastly, aggravated cases may be the most appropriate times for your client to apologize, and that’s hard to do without testifying. The value of their apology should never be under-estimated!
Step 2—Ask the Client’s Family and Friends
Equally important, it’s essential to speak with the client’s family to get a better understanding of their entire family. Defense lawyers may dread receiving repeated phone calls from family members and friends of inmates, usually asking the same questions over and over. However, avoid isolating oneself from the client’s family. They may well be a goldmine of information critical to your pre-trial mental health investigation.
If the client’s family acts “crazy” towards you, that’s a BIG CLUE to dig deeper into your client’s mental health, family history, and addiction patterns. It’s also a big tell of the pressure cooker within which your client may live and helps you find the “enabler” in their life, if one exists. In an addiction situation, the enabler may need intervention and counseling, too. And the sign of a good in-patient drug counseling center is the availability of family counselors. Enablers must be taught to draw boundaries. Moreover, the client’s primary influencer can be best at getting them to accept a “no brainer” plea deal, if offered.
Personally, I still answer my primary office calls using my iPhone. I want to speak with everyone who can be somewhat civil, and it helps me learn quickly the most about my clients. In my experience, the client’s mother or father is the one who remembers best the client’s medical or mental history, medicine and doctors’ names. These medical records are key to corroborating their mental illness and life story since the State’s primary rebuttal argument is malingering, he hasn’t sought help timely, or “everyone is bipolar these days.” Obtaining these records proves your client’s story, and jurors love to read these records in a punishment case.
Family members and friends are the best sources of material regarding the client’s background. How did they do in school? Ask momma. How did they behave growing up? Ask momma. Did they have special needs in school? Ask momma. Did you ever take them to a psychiatrist or counselor? Ask momma. Of course, daddy may also know, and I’m not trying to be biased. But often our clients are in orange jumpsuits because daddy or momma or both daddy and momma just weren’t around. Lack of parenting leads to a high risk of behavioral problems and a higher risk of landing in county jail. Your client’s mitigation case may be begging for this discovery, so talk to the family and it will reveal itself ninety percent of the time.
This is not the end of your mental health mitigation case, but it’s the end of the beginning—and it must be done.