Representing defendants with mental illnesses who are accused of crimes is complex because of communication obstacles, challenges in proving facts such as mens rea, risks of coercion, fluctuating symptoms, and ethical concerns.
This requires attorneys to be patient, highly specialized, and to work with experts to address issues such as competency, insanity defenses, and the pursuit of suitable diversion programs, rather than solely focusing on punishment.
Mental Health Diversion in California (Penal Code 1001.36) allows eligible criminal defendants with qualifying mental health disorders to receive treatment instead of prosecution. If the defendant completes treatment, the court dismisses the criminal charges and may seal the public record.
The Sixth Amendment guarantees all criminal defendants the effective assistance of counsel. This, of course, includes criminal defendants who suffer from serious mental illness.
Mental illness may influence mental health diversion if public safety is at risk. Competence must be established first in all cases.
What are Some Common Mental Health Questions?
Through our years of criminal defense practice, we have discovered there are some common questions people ask on this topic, such as:
- What is mental health diversion in California?
- What are mentally ill criminal defendants?
- Can mental illness dismiss criminal charges?
- Is schizophrenia a defense to a crime?
- How can I find a Penal Code 1001.36 lawyer?
- What is the mental competency to stand trial in California?
- What is the insanity law under Penal Code 1026 PC?
Let's examine issues related to defending clients with a mental illness below.
Key Takeaways
- Mental Health Diversion (PC 1001.36) enables eligible California defendants with conditions such as PTSD or Schizophrenia to have their charges dismissed and records sealed after successful treatment.
- Clients with a mental illness might have difficulty with abstract thinking, process information at a slow pace, deny their condition, or exhibit unusual behaviors such as hallucinations and delusions that can be challenging for lawyers to understand.
- To demonstrate a client's mental state at the time of the crime (mens rea) or to establish a lack of mental capacity (insanity defense), expert psychiatric evaluation is necessary.
- Defendants can quickly become frustrated, agitated, or suspicious, which may hinder their ability to provide information, make decisions such as pleading guilty, or prepare adequately for court.
- Mental illnesses can be fluid and hidden, making it hard for attorneys to recognize symptoms unless they're obvious.
- Vulnerable defendants might falsely confess during interrogations because of pressure from authority figures.
- Recent California legislation (SB 1223) changed who must prove a "nexus" between the illness and the crime.
- If there is no mental health diversion, cases can proceed on the basis of insanity for murder and attempted murder charges. If found insane, the individual may be committed to a state mental hospital rather than a state prison.
Impact of Mental Illness on Culpable Conduct
While California law recognizes the impact of mental illness on otherwise culpable conduct and provides for opportunities such as mental health diversion, which can lead to very favorable outcomes for clients, representing a client who suffers from a serious disorder presents unique challenges for counsel.
While public defenders or appointed counsel do not have a choice in accepting representation of challenging clients, private counsel faces the additional dynamic of negotiating financial issues and questions of privilege and loyalty between the client and their loved ones, who are most often the retaining parties.
Is the Client Competent to Stand Trial?
Inside the courtroom, the most pressing initial issue for counsel is determining whether their client is competent to stand trial.
If defense counsel doubts whether the client understands the nature of the proceedings and can effectively assist in their own defense, the proper course is to invoke Penal Code section 1368, which will result in the case being transferred to mental health court.
In that process, the opportunities for a diversionary outcome are greater. However, this may be the first source of a conflict between counsel and the client, as most defendants in mental health court remain detained while they are evaluated.
The court may also order involuntary medication if suggested by an evaluating psychiatrist, which the client may object to.
The lawyer is placed in the uncomfortable position of advocating for, or at least not objecting to, a course to which the client strongly objects.
It is not unusual for defendants in mental health court to strongly protest that they do not suffer from mental illness at all, even as the unanimous expert evaluations conclude that they do.
Often, involuntary medication is the only remedy for a client suffering from delusions to regain competency to stand trial.
What If the Client Rejects Legal Advice?
Once a client is deemed competent, conflicts often arise over case strategy. The same mental illness that may have led to the offense conduct may cause the client to reject sound legal advice, whether about settlement, motion practice, or discovery issues.
What a client of sound mind might accept as the natural inefficiency of the court process - for example, a necessary continuance while discovery is outstanding - may be interpreted as a conspiracy to deprive the client of his rights.
By not appearing sufficiently outraged in the courtroom, the lawyer risks becoming part of the imagined conspiracy and losing the confidence necessary to achieve a positive outcome for the client. While the lawyer chooses the tactics, the client sets the goals of the representation.
This may ultimately result in a client, for example, demanding a jury trial in a case with overwhelming evidence or insisting on pleading guilty rather than participating in a diversion program.
Counsel must tread the fine line between following the client's instructions and working in the client's best interests, which the client often cannot appreciate.
How Should Defense Counsel Deal with the Family?
For private counsel, the involvement of retaining parties and family members adds another layer of potential conflicts. Loved ones often want to see the client agree to mental health treatment, often involving medication.
At the same time, the client may strongly oppose accepting treatment. While counsel can, and should, try to persuade the client to pursue a course that is in their best interests legally and personally, counsel cannot sandbag the client. This dynamic often comes to a head in the context of pretrial release.
The family may want the client to remain in custody or be released to an inpatient treatment facility because they reasonably believe that if simply released on bond or on his own recognizance, the client will reoffend or suffer another negative outcome.
Defense counsel cannot be consistent with their duty of loyalty and argue for their client's continued detention against the client's wishes simply because the family opposes release.
Arranging Bail Release to an Appropriate Program
In these situations, counsel can work to arrange for pre-trial bail release to an appropriate program by setting up evaluations at the jail and navigating issues of conditional release and placement directly into a mentally health or dual-diagnostic program.
Again, counsel must ultimately persuade the client to cooperate with the program's conditions, which requires maintaining trust and confidence.
Ultimately, the mental health and dependency treatment our clients receive in a private facility is substantially better than languishing in a suicide vest at the local jail facility, where they will further mentally decompensate.
In rare cases, counsel may face a client who, due to mental illness, becomes threatening or abusive to counsel or their staff.
If the issue persists, this may create an irreconcilable conflict in the representation, which can only be addressed by moving the court to withdraw.
Consistent with the duty of confidentiality and the need to prevent prejudice to the client, counsel should not disclose the reasons for the withdrawal to the court or the prosecutor.
If the court insists on disclosure, counsel should do so only ex parte and in camera to minimize any resulting prejudice.
Mental Health Diversion Program (PC 1001.36) Eligibility Checklist
Despite the substantial challenges, representing criminal defendants who suffer from serious mental illness can be extremely rewarding, particularly when the representation results in connecting the client with treatment that may radically change the trajectory of their life for the better.
California law allows for Mental Health Diversion, which has led to many of our firm's clients receiving extensive treatment, having the criminal charges dismissed, and having the public file sealed.
These client are often thankful that we dealt with both their mental health and court case, and their lives are now back on track. To help clients and families determine if they qualify for mental health diversion that includes dismissal and sealing, here is a list of the general criteria:
- Qualifying Diagnosis: The condition must be a DSM-5 disorder, such as Schizophrenia, Bipolar, PTSD, or Major Depression, diagnosed within the past five years.
- Excluded Offenses: Murder, voluntary manslaughter, and most registrable sex offenses are ineligible for diversion.
- Treatment Amenability: A qualified expert must testify that the defendant's symptoms are likely to respond to treatment.
- Public Safety: The court must determine that the defendant does not present an "unreasonable risk" of committing a new violent "Super Strike" felony.
- Consent: The defendant must waive their right to a speedy trial and agree to the treatment plan.
In summary, if you are under investigation or charged with a crime and there are potential issues related to a defendant's mental health, contact our California criminal defense lawyers at Eisner Gorin LLP in Los Angeles for a case evaluation.
If you have one phone call from jail, call us! If you are facing criminal charges,