Editor's Comment: Becoming the Blessing - By Sarah Roland

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Tuesday, October 31st, 2017

It’s that time of year again. The beginning of holiday season. The time when family gatherings—whether dreaded or welcomed—become commonplace. The time of year when we get to see those relatives whom we haven’t seen or talked to since the year before. And let’s just go ahead and acknowledge it: We all have one—at least one—“crazy” relative. And as the joke goes, if you don’t know who that person is in your family, it’s probably you!

All kidding and levity aside, it is a tremendous problem when people with mental health issues collide with the criminal justice system. We all have, and have had, clients with mental health issues. It generally takes considerable extra time and patience to handle these cases. We have to remind ourselves and our staff not to get irritated when the client calls multiple times or asks the same question repeatedly. We all have the shared experience of frustration when our incompetent clients languish in county jails awaiting transfer to a state hospital only to then miraculously regain competency before the order of commitment expires but then again lose that “competency” en route back to the county facility. We have a shared confusion about the different provisions in Article 46B. We owe it to these clients, especially these clients, to be at our very best levels of advocacy. After all, these are the clients who truly cannot speak for themselves.

To that end, it is imperative that we keep up with the changes and additions to the law governing competency. I am grateful to Dr. Jennings for his article in this issue outlining the statutory changes to Article 46B. Please take the time to read and digest these changes. I also encourage every practitioner in the criminal justice system—judges, prosecutors, and defense lawyers alike—to have and read Texas Criminal Procedure and the Offender with Mental Illness: An Analysis and Guide (5th ed. 2016) (available for download at http://namitexas.org/wp-content/uploads/sites/12/2014/12/2016-NAMI-Texas...). This is an invaluable resource when trying to properly navigate the criminal justice system for a client with mental illness.

It is equally important to remember that even clients who may be legally competent often do have mental health issues. Be sure to not discard these issues once competency is es­tab­lished. After all, these mental health issues may provide the very ammunition necessary for a proper defense and/or mitigation of the criminal accusation. Remember, an accused’s mental impairment at the time of the alleged incident can provide a defense to the criminal conduct. In some instances, evidence of mental impairment may negate the specific mens rea necessary for the statutory offense. See Jackson v. State, 160 S.W.3d 568, 573–74 (Tex. Crim. App. 2005) (noting that Texas does not have a diminished capacity defense but acknowledging that evidence of mental impairment can be used to provide a failure-of-proof defense in which the defendant claims that the State failed to prove that the defendant had the required state of mind at the time of the offense). Remember also that we have a constitutional and statutory duty to investigate cases for guilt as well as for any possible punishment. See Wiggins v. Smith, 123 S.Ct. 2527 (2003); Williams v. Taylor, 120 S.Ct. 1495 (2000); Guideline 4.1, SBOT Performance Guidelines for Non-Capital Criminal Defense Representation; Section 4-4.1(a), ABA Standard on Criminal Justice. As we know all too well, many times our fights with prosecutors and in courtrooms are not about whether our client committed the offense but rather what is a just and fair punishment given all the surrounding circumstances.

Be sure to take advantage of mental health treatment diversion courts when available, too. Mental health court, and other courts that take a rehabilitative focus, can provide help for our clients in dealing with the underlying issue(s), thereby helping our clients with the instant case, and possibly preventing them from encountering the justice system again altogether.

It is also worthwhile to look around your community for housing options and employment options for clients with mental health issues. How many mentally unwell people are arrested for minor offenses like criminal trespass or theft? Pointing our clients in the direction of second-chance housing or other facilities that provide apartments or rooms to mentally unwell people or matches them with employment opportunities can be life-changing. We often recommend AA or substance abuse treatment centers to clients with chemical dependency because we understand that treating the underlying issue will improve the person’s life, let alone the offer they may get on a specific case. Referring a person with mental illness to housing and em­ployment options accomplishes the same thing. Yes, this is beyond what we, as the defense lawyer, are expected to do. But many, if not most, of us became lawyers to help the most vulnerable members of our community—so why not take the opportunity to do exactly that?

This holiday season, let’s all remember to be thankful for what we have and to be a blessing to some of the most vulnerable among us.