Ethics and the Law: A Little Bit Crazy - By Robert Pelton

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Thursday, December 14th, 2017

Another recent tragic event at the Harris County Jail makes it very clear the severity of mental illness. A defendant who was set to plead to life without parole hung himself with bed sheets. Where were the guards? What happened to this poor soul who chose death over prison? What happened to the family he left? What happened to the family that was set to confront him in court in the witness impact statements?

The following is a question that was asked at a recent capital murder seminar in Houston. For years, courts and lawyers and medical professionals have been dealing with mental issues. The responses here are from members of the Ethics Committee. Lawyers joke about being crazy. There may be some truth to that since any lawyer who has extensive experience in dealing with clients with mental issues soon realizes your mind has to absorb and deal with some crazy things and learn to live with it. There are also some major ethical issues that may show up. One of these questions came up at the capital murder seminar, about taking a client off medication to show a jury what their behavior is like when they’re not medicated

Question

The question arises with any incompetent client facing years in prison. The attorney believes the client was insane at the time of the offense, but it may be very difficult to prove at trial because of the lack of evidence gathered at the time of the offense. Is it unethical to advise your client and/or his family members to not take prescribed medications given to restore his competence (assuming there is no Order or Forced medications in place)?

I believe my ethical duty is to present the defendant at trial to the jury in the same state as he was in when the offense was committed so as to present his best case to the jury. By medicating him and making him appear sane (and very different from the way he was at the time of the offense), I am doing the client a disservice because the jury cannot see how the client really was at the time of the offense. I feel like I’m hiding the truth from the jury.

Is it unethical to advise a client to risk incompetency in order to record his appearance so that his mental illness can later be displayed to a jury?

Response by Keith Hampton

I would first want a psychiatrist to tell me what physical effects having him go off his meds will have on him physically. I would also want to know your level of confidence that he will look as crazy as you’re anticipating he will. There are lots of people who are insane at the time of the offense, but don’t often appear to be crazy at all.

That said, I am very sympathetic to the desire to have him filmed. I did a survey of all the murder acquittals by reason of insanity in Texas a few years ago, and virtually every one who was acquitted had been filmed at or near the time of the murders. I saw some of these, and it was easy to see why they were acquitted. Video is superior to witnesses recounting the person’s behavior and definitely superior to simply having experts. I won four verdicts of not guilty by reason of insanity for a vet last year, in part because he was filmed by the dash cam shortly after his crimes.

But back to the question of ethics. If the court has ordered him to take his meds, I think you can tell a client to disobey a law­ful order of a court so long as the client is willing to accept the consequences.

Response by Michael Mowla

When I deal with what I believe to be an incompetent client, I immediately seek an evaluation, and if the client clearly shows ideations of incompetence, paranoia, schizophrenia, etc., I have the evaluation videotaped. I work closely with a qualified shrink, but I stay out of her way so that she can do her job. The shrink appreciates my knowledge of her field, and also appreciates that I don’t micromanage.

Ethics and the Law Dec17-1

In 1963, congress passed an Act called the Community Mental Health Centers Act. After this act, states began receiving federal and state support to offer mental health treatment.

Dr. Geoff Grubb, a childhood friend who became a psychiatrist and was involved in prison reforms with Federal Judge William Wayne Justice, has many stories about his experiences dealing with inmates with mental issues. One thing he has stressed in communicating with me is that we as lawyers should gather all records that exist so that a defendant can be properly evaluated. His recommendation is to get client to do a family tree going back as far as possible to try and find the source of the mental problem. Often it will be discovered there is a history of mental illness in the best of families, which may explain and help the doctor diagnose and treat the illness.