Mental Health Seminar

Mental Health FEBRUARY 4, 2021

Austin, Texas Course Directors: Alyse Ferguson and Rick Wardroup Register online at www.tcdla.com Seminars spon­sored by CDLP are funded by the Court of Criminal Appeals of Texas.

MENTAL HEALTH SEMINAR SEMINAR INFORMATION Date Location Course Director Total CLE Hours:

February 4, 2021 Livestream Event Alyse Ferguson and Rick Wardroup 6.75 Ethics: 0

Thursday, February 4, 2021 Time

CLE

8:15 am

8:30 am

1.25

9:45 am

Daily CLE Hours: 6.75 Topic

Ethics: 0 Speaker

Opening Remarks

Alyse Ferguson and Rick Wardroup

I Thought I Went to Law School; I Know Nothing About Social Work

Melissa Shearer

Break

10:00 am

1.00

What I Look for in Your Initial Meeting with a Client

Vickie Rice

11:00 am

1.00

What Expert Do I Need and What Testing Should be Ordered?

Joanne Murphey Ph.D.

12:00 pm

Lunch Line

12:15 pm

1.25

Lunch Presentation: Trauma 101

Megan Leschak

1:30 pm

1.00

Recognizing Signs of IDD

James Patton

2:30 pm 2:45 pm 4:00 pm

Break 1.25

Incompetency – Creative Solutions

Robert Sullivan and Greg Joiner, Ph.D.

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Mental Health Seminar Table of Contents

Speaker

Topic Thursday, February 4, 2021

Melissa Shearer Vickie Rice Joanne Murphey Ph.D. Megan Leschak James Patton Robert Sullivan and Greg Joiner, Ph.D.

I Thought I Went to Law School; I Know Nothing About Social Work What I Look for in Your Initial Meeting with a Client What Expert Do I Need and What Testing Should be Ordered?

Trauma 101 Recognizing Signs of IDD Incompetency – Creative Solutions

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Mental Health Seminar Table of Contents

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Mental Health Seminar February 4, 2021 Livestream

Topic: I thought I Went to Law School; I Know Nothing About Social Work Speaker:

Melissa Shearer (512) 854-3030 Phone melissa.shearer@traviscountytx.gov Email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

References & Resources

The Role of Social Work in Criminal Defense Practice Presented by Melissa Shearer, February 4, 2021 TCDLA Mental Health Seminar

Alexis Anderson, Lynn Barenberg & Paul R. Tremblay. Professional Ethics in Interdisciplinary Collaboratives: Zeal, Paternalism and Mandated Reporting, Clinical Law Review 13, (2007): 659-718 Jane H. Aiken & Stephen Wizner. Law as Social Work, 11 WASH. U. J.L. & POL’Y. 63(2003).

Cynthia G. Lee, Brian J. Ostrum & Matthew Kleiman, The Measure of Good Lawyering: Evaluating Holistic Defense in Practice, 78 ALB. L. REV 1215 (2015).

Brigid Coleman, Lawyers Who Are Also Social Workers: How to Effectively Combine Two Different Disciplines to Better Serve Clients, 7 WASH. U. J. L. & POL’Y 131 (2001).

Heather B. Craige, William G. Saur & Janice B. Arcuri, The Practice of Social Work in Legal Services Programs, 9 THE JOURNAL OF SOCIOLOGY & SOCIAL WELFARE 307 (2014).

Paula Galowitz, Collaboration Between Lawyers and Social Workers: Re-examining the Nature and Potential of the Relationship, 67 FORDHAM L. REV. 2123 (1999).

Susan McGraugh, Carrie Hagan, & Lauren Choate, Shifting the Lens: A Primer for Incorporating Social Work Theory and Practice to Improve Outcomes for Clients with Mental Health Issues and Law Students Who Represent Them, 3 MENTAL HEALTH L. & POL’Y J .2 (2014).

Sarah Buchanan, Roger M. Nooe, Defining Social Work within Holistic Public Defense: Challenges and Implications for Practice, SOCIAL WORK, VOLUME 62, ISSUE 4, October 2017, Pages 333–339, https://doi.org/10.1093/sw/swx032

National Association of Social Workers, Standards for Social Work Case Management, (2013).

Thea Zajac, Social Work and Legal Services Integrating Disciplines: Lessons from the Field, Legal Aid Association of California, (2011).

Susanne Pringle, Texas Fair Defense Project, Strengthening Juvenile Defense Representation by Partnering with Social Workers, A Holistic Approach, (2015).

Camille Glasscock Dubose and Cathy O. Morris. The Attorney as Mandatory Reporter, TEXAS BAR JOURNAL (MARCH 2005).

Presented by Melissa McRoy Shearer

TCDLA Mental Health Seminar Live Stream Event February 4, 2021

THE ROLE OF SOCIAL WORK IN CRIMINAL DEFENSE PRACTICE

About Me

WHY I'M HERE TALKING TO YOU ABOUT SOCIAL WORK

AGENDA I. Introduction to Social Work II. Mental Health Clients: Impact of Social Work and Law Collaboration III. Differences/Tensions Between Two Helping Professions IV. Safeguards to address professional differences & build collaborations that benefit your clients

What is Social Work?

Global Definition of the Social Work Profession—International Federation of Social Workers “Social work is a practice-based

profession and an academic discipline that promotes social change and development, social cohesion, and the empowerment and liberation of people. Principles of social justice, human rights, collective responsibility and respect for diversities are central to social work. Underpinned by theories of social work, social sciences, humanities and indigenous knowledges, social work engages people and structures to address life challenges and enhance wellbeing. The above definition may be amplified at national and/or regional levels�.

Source: International Federation of Social Workers

NATIONAL ASSOCIATION OF SOCIAL WORKERS

mission of the social work profession is to enhance human wellbeing and help meet the basic human needs of all people, with particular attention to the needs and empowerment of people who are vulnerable, oppressed, and living in poverty.

The primary

Source: National Association of Social Workers

TEXAS BOARD OF SOCIAL WORK EXAMINERS • Licensed Baccalaureate Social Worker (LBSW) • Licensed Master Social Worker (LMSW) • Licensed Clinical Social Worker (LCSW) Source: Texas Board of Social Work Examiners

Social Work School • • • • • • •

Human Behavior in the Social Environment Social Welfare Policy Social Work Research and Evaluation Direct Practice with Individuals, Families, Groups Organizing Communities and Organizations Advocacy in Social Work Practice Field Placement

LAW SCHOOL Contracts Civil Procedure Criminal Law Property Torts Constitutional Law Legal Writing Evidence Professional Responsibility

MENTAL HEALTH CLIENTS: IMPACT OF SOCIAL WORK AND LAW COLLABORATION

Presence can….

• Ease the burden and stress on the attorney; provide a team to process difficult situations; provide social support • Expand attorney capacity to develop and analyze relevant facts and needed to defend client and improve outcomes • Assist in building trust between attorney and client • Model interviewing and people skills, not taught in law school, necessary to gain insight necessary provide zealous representation for clients with extensive trauma history Skill in ….

• Empathetic interviewing that provides insight into client's situation can increase attorney competence to handle matter • Understanding of human behavior in the social environment and systems that impact clients • Crisis intervention, evaluation, and connection to resources Paula Galowitz, Collaboration Between Lawyers and Social Workers: Re-examining the Nature and Potential of the Relationship, 67 FORDHAM L. REV. 2123 (1999).

DIFFERENCES/TENSIONS BETWEEN TWO HELPING PROFESSIONS Law

Social Work

Adversarial process/Litigation

Cooperative process/problem solving

Zealous advocacy for stated interest

Safeguard best interest

Protect legal rights

Enhance client well being

Protection of individual rights

Consideration of third parties and community

Address legal problem

Address underlying cause of problem

Analytic (break whole into parts)

Synthetic (put parts together to assess whole)

Focus on outcome

Focus on process

Value professional autonomy

Value professional collaboration

Alexis Anderson, Lynn Barenberg & Paul R. Tremblay. Professional Ethics in Interdisciplinary Collaboratives: Zeal, Paternalism and Mandated Reporting, Clinical Law Review 13, (2007): 659-718

Common Ethical Concerns/Professional Tensions • Attorney Client Privilege/Confidentiality • Social workers that are integrated into the defense team, are subject to the ethical bounds and privilege of the attorney.

• Social workers that are not integrated into the defense team, but merely consultative, are not subject to the attorney's ethical bounds, and the scope of information sharing should be limited to the agreed upon role.

• Mandatory reporting of child abuse or neglect • Texas law: Any person, including attorneys and social workers, with reason to believe a child or an elder person has or will suffer abuse or neglect, is a mandatory reporter.

• Allegiance to client’s wishes, even when they are not in their best interest Social workers that are integrated into the defense team, are subject to the ethical bounds and privilege of the attorney.

Susanne Pringle, Texas Fair Defense Project, Strengthening Juvenile Defense Representation by Partnering with Social Workers, A Holistic Approach, (2015).

Camille Glasscock Dubose and Cathy O. Morris. The Attorney as Mandatory Reporter, TEXAS BAR JOURNAL (MARCH 2005).

SAFEGUARDS TO ADDRESS PROFESSIONAL DIFFERENCES & BUILD COLLABORATIONS THAT BENEFIT YOUR CLIENTS

#1 Mutual understanding and respect for each discipline's values, ethical principles and duties.

#2 DEFINE THE ROLE*, PRACTICE MODEL AND ACTIVITIES THAT STRUCTURE THE COLLABORATION Advocate Mitigation Specialist Investigator Case Manager Expert Witness Consultant Research Evaluator Supporter

Supporter Clinician Legal Case Support Liaison Crisis Intervention Re-Entry Case Management Psychosocial Assessment

*CAVEAT: THIS IS NOT AN ALL-INCLUSIVE LIST OF ROLES

#3 DEFINE THE ROLE, PRACTICE MODEL AND ACTIVITIES THAT STRUCTURE THE COLLABORATION Practice Model

Description

Consultant

Provides professional consultation to the attorney but does not provide any direct services to client. (Parallel)

Expert Witness

Limited role. Interviews client and collateral information sources, reviews records and makes clinical assessment including analysis of mitigating factors and recommendations (Parallel)

Multi-Disciplinary/ Direct Service Provider

Social worker’s role with client is completely independent from the lawyer’s practice. Social worker and attorney only interact to refer clients to one another. (Parallel)

Inter-Disciplinary/ Integrated team member

Social worker is employed by the law firm as a member of the defense team. Scope of services provided are determined by lawyer, client and social worker. (Integrated)

Practice Model Determines the Structure of the Collaboration Parallel: Consultant, Expert, Direct Service Provider

Integrated: Interdisciplinary member of defense team

Source: Sarah Buchanan, Roger M. Nooe, Defining Social Work within Holistic Public Defense: Challenges and Implications for Practice, SOCIAL WORK, VOLUME 62, ISSUE 4, October 2017, Pages 333–339, https://doi.org/10.1093/sw/swx032

Example #1 Role

Practice Model

Structure

Details

Psychosocial Assessment

Consultant

Parallel

Scope

Narrow, case specific

Decision Making

Independent; authoritarian

Communication

Horizontal, hierarchical

Relationships

Consultative

Focus

Specific

Setting

Separate

Example #2 Role

Practice Model

Structure

Details

Case Worker employed by local mental health authority

Direct Service Provider

Parallel

Scope

Narrow, case specific

Decision Making

Independent; authoritarian

Communication

Horizontal, hierarchical

Relationships

Consultative

Focus

Specific

Setting

Separate

Example #3

Role

Practice Model

Structure Details

Legal Case Support, intensive case manager

Integrated team member

Integrated

(PD/firm employee)

Scope

Broad: Multiple responsibilities

Decision Making

Participatory

Communication

Vertical, interactive

Relationships

Collaborative

Focus

Holistic

Setting

Shared

Questions?

Texas Criminal Defense Lawyers Association

Mental Health Seminar February 4, 2021 Livestream

Topic: What Expert Do I Need and What Testing Should be Ordered?

Speaker:

Joanne Murphey Ph.D.

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

What Expert do I need and What Testing Should be Ordered?

Joann Murphey, Ph.D. Mental Health Seminar

Austin, TX February 4, 2021

What role do psychological tests play in legal proceedings?

• Personality measures of various types are often proffered in court proceedings: • Judging parental fitness for custody purposes (e.g., Lefkowitz v.

Ackerman, 2017) or in termination of parental rights.

• To determine the causes of legally relevant mental health symptoms (e.g. posttraumatic stress often arising from military service in combat zones).

• Intellectual and social functioning to determine the outcome of Social Security and other disability proceedings.

• Tests for measuring malingering, or faking, in cases in which a criminal defendant is asserting incompetence to stand trial or insanity at the time of a crime.

Judges and Risk Assessment

• Judges may rely on risk assessment instruments for several scenarios • Offender sentencing • Length of incarceration • Should offender remain incarcerated despite completing a prison sentence?

• Intelligence tests as tools in death penalty cases

What exactly is a psychometric test?

Understanding indices and constructs

•Single item indicators: • “How important is religion in your life?”

Example: Two ways to measure “religiosity”

• The least important thing in my life • Not very important • Somewhat important • Very important • The most important thing in my life

Psychometric measurement with multiple items: “Tell us how important these aspects of religion are in your life�

0 = Not important

1 = Somewhat important

2 = Very important

3 = Most important thing in my life

Church attendance Prayer

Reading the Bible Attending Bible study Volunteering at my church Giving money to my church Belief in God Low religiosity

High religiosity

Psychometric measurement with multiple items: “Tell us how important these aspects of religion are in your life�

0 = Not important Church attendance

1 = Somewhat important

2 = Very important

X

Prayer

X

Reading the Bible

X

Attending Bible study

X

Volunteering at my church

X

Giving money to my church

X

Belief in God Low religiosity

3 = Most important thing in my life

X

Subject 1 responds as shown above

High religiosity

Psychometric measurement with multiple items: “Tell us how important these aspects of religion are in your life�

0 = Not important

1 = Somewhat important

2 = Very important

Church attendance

3 = Most important thing in my life

X

Prayer

X

Reading the Bible

X

Attending Bible study

X

Volunteering at my church

X

Giving money to my church

X

Belief in God Low religiosity

X

Subject 2 responds as shown above

High religiosity

Beck Anxiety Inventory (BAI) Below is a list of common symptoms of anxiety. Please carefully read each item in the list. Indicate how much you have been bothered by that symptom during the past month, including today, by circling the number in the corresponding space in the column next to each symptom.

How do we know the accuracy of psychometric indices and inventories?

Assessing validity and reliability

If scale is broken but shows the incorrect weight daily, it is in fact reliable (e.g., repeated measures of my weight are the same each day) , but it is not valid because it is showing the incorrect weight

In Court Proceedings: Reliability and Validity are Context Specific

In Court Proceedings: Reliability and Validity are Context Specific • Example 2: Tools that are known to have good psychometric properties with some populations may not be appropriate for use on populations who were not part of the norming samples.

• For instance, influential cases in Australia and Canada ruled inadmissible the use of riskassessment tools to evaluate indigenous people who were not part of the tools’ validation sample

Like a good scale: The most accurate psychometric instruments Score high on both reliability and validity

Psychometric Testing and the Courts • Judges often have the responsibility of evaluating the admissibility of expert evidence. • This gatekeeping function is designed to ensure that only reliable and valid expertopinion testimony is allowed as evidence (Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993; Fed. R. Evid. 401, 2019; Fed. R. Evid. 702, 2019; Frye v. U.S., 1923).

Psychometric Testing and the Courts • Yet judges frequently have trouble evaluating the scientific merits of various expert methods, and major investigations have revealed that courts routinely admit evidence with poor or unknown scientific foundations

Companies that provide psychological assessment tools:

The Business of Psychometric Testing

Pearson Clinical

Psychological Assessment Resources

Stoelting

Western Psychological Services

Pro-Ed

Multi-Health Systems

These companies sell thousands of psychological assessment tools, many of which are revised and republished with updated versions over time.

But not all psychometric assessments are created equal Published research has shown that 59.5% of the educational and psychological tests were evaluated as either unfavorable, mixed, or neutral by professional reviewers.

Additionally, many tests currently in use have not been sufficiently validated.

History of Psychometric Testing • Sir Frances Galton (1822-1911), the father of modern psychometrics, pioneered efforts to measure physical, psychophysical, and mental abilities in his London Anthropometric Laboratory • Galton defined psychometry as the “art of imposing measurement and number upon operations of the mind”

Assessing the quality of psychological measurements

Legal Standards for the Admission of Expert Testimony Language • “A witness qualified as an

expert by knowledge, skill, experience, training, or education, may testify . . . if

• (1) the testimony is based upon sufficient facts or data, • (2) the testimony is the product of reliable principles and methods, and • (3) the witness has applied the principles and methods reliably to the facts of the case.”

Case Law

Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)

General Electric Co. v. Joiner (1997)

Kumho Tire Co. v. Carmichael (1999)

Daubert Standard • Daubert set forth four factors that courts might consider in evaluating reliability:

• (a) whether the method used by the expert has been subjected to empirical testing • (b) whether the error rate for the method is known (or potentially known) • (c) whether the method used by the expert survived the scientific peer-review process and was published in a peer-reviewed journal (from which a court is expected to find help in evaluating the soundness of a study’s methodology), and • (d) whether the procedure or test used by the expert is generally accepted within the relevant scientific community.

What psychological assessment tools do clinicians use in forensic settings?

Evidence from Published Research

Corresponding Author: Tess M. S. Neal, School of Social & Behavioral Sciences, Arizona State University E-mail: tess.neal@asu.edu

There are several strong tests used by clinicians in forensic practice; most tested by clinicians and researchers

In addition, there is a positive relationship between the overall psychometric strength of tools and their general acceptance, although generally unfavorable evaluations are also generally accepted.

Psychometric Testing in Forensic Settings: Areas of Concern • Of those for which there is evidence about general acceptance in the field (N=179) • Only about two thirds are generally accepted (n = 119 of 179, 67%).

• For 16.8% of these tools, evidence concerning general acceptance was conflicting (n = 30 of 179) • And for the remaining 16.8% (n = 30 of 179), the evidence was clear that they are not accepted in the field.

Case-Law Analysis: Are Courts Scrutinizing Psychological-Assessment Evidence?

• Based on Daubert and the federal rules of evidence: five admissibility criteria : • Fit: is the notion that the evidence must answer the legal question presented.

• Qualifications: refer to whether the expert has the specialized knowledge or skills necessary to offer the opinion proffered.

• Helpfulness: (added value) • Prejudicial impact: expert testimony should not taint juries • Reliability: refers to evidence that is amenable to some type of scientific verification process.

30 Exemplar Tool Names, Acronyms, Number of Cases Citing Each, and Number of Cases With an Admissibility Challenge

Assessing Psychometric Instruments for Acceptance and Quality

Exemplar tools and the infrequency of legal challenges • Admissibility issues were neither raised nor discussed in most of these cases • Out of 372 cases in which more than a mere mention of one of the 30 exemplar tools occurred, only 19 involved a challenge to a tool’s admissibility or the admissibility of testimony relying on the tool

Frequency and type of successful challenges • On those few occasions when challenges did take place, they often failed.

• Only 6 of the 19 cases challenged (32%) succeeded (that is, the psychological assessment evidence was ruled as inadmissible and excluded from evidence 32% of the time challenges were raised).

• Most challenges were multifaceted, but the challenger’s claim usually focused on fit, on or the other type of validity, or both

Why so few challenges?

Thank You Q&A

Texas Criminal Defense Lawyers Association

Mental Health Seminar February 4, 2021 Livestream

Topic: Trauma 101 Speaker:

Megan Leschak, LMSW

Context Mitigation Albuquereque, NM (828)775-1734 Phone megleschak@gmail.com Email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

National Alliance of Sentencing Advocates & Mitigation Specialists (NASAMS) Session Information Sheet Requested Session For: CERTIFICATE PROGRAM Session Information Workshop Title: Trauma 101: Identification, Exploration and Presentation Brief Session Description (this description will go into program materials. 150 word maximum.)

During this session we will discuss common causes - and symptoms - of psychological trauma to include interpersonal, environmental, and socially engineered forms of stress. We will explore ways to gather trauma histories to reduce harm and promote healing. Additionally, we will consider compelling presentations intended for courtroom proceedings and negotiations with the state or government.

Learning objectives, takeaways, or other information that will help us evaluate your proposal: Participants will learn to: 1.

2.

3.

4.

Identify various causes of psychological trauma and emotional harm Understand common trauma symptoms and corresponding behaviors Conduct thoughtful trauma-informed interviews Craft compelling presentations detailing trauma histories

Please check all that apply: Room Set-up: __X_Classroom ___Theatre ___Rounds ___ __ No preference NOTE: The standard set up is classroom with a head-table, LCD with screen.

_________________________________________________________________________________________ AV Needs: _X_LCD Projector (for power point) _X__ Sound for video feed during presentation ____ Flip Chart

_____ Podium

_____ No AV

_X__Internet access during presentation

Session Format: _______

Panel Presentation (3-5 people providing parts of an overall presentation)

___X___

Lecture (1-2 presenters providing expertise) - with group discussion and participation

_______

Interactive or Facilitated Discussion (1-2 presenters providing expertise and also drawing out the experience and knowledge of the audience).

Presenter Information 1

2019 NASAMS SESSION: DESCRIPTIONS & GOALS

Presenter 1 and Session Leader: Name: Megan Leschak Title: Mitigation Specialist Organization: Context Mitigation City & State: Baltimore, Maryland Email: meganleschak@contextmitigation.com Phone: 828-775-1734 Biography (100 word maximum): _____see separate attached BIO

Megan Leschak, LMSW is the co-owner of Context Mitigation, a private firm providing mitigation services for clients in both state and federal courts. Megan began her forensic social work career at the Maryland Office of the Public Defender in Baltimore City where she was awarded a Soros Open Society Institute Fellowship to highlight for the court the impact of structural racism, poverty, and violence on defendants. She subsequently worked as a mitigation investigator in the Delaware Federal Defender Capital Habeas Unit and as the social work supervisor for the New Mexico Law Offices of the Public Defender. Megan earned her MSW from the University of Maryland where she co-created and facilitated the course Racism and Racial Equity in Social Work Practice. Megan has trained attorneys, investigators, and social workers at forensic conferences nationwide.

Presenter 2: Full Contact Information Name: Title: Organization: City & State: Email: Phone: Biography (100 word maximum): _____see separate attached BIO 2|Page

2019 NASAMS SESSION: DESCRIPTIONS & GOALS

• •

•

Special Request: For special request please attach.

NLADA/NASAMS recommends that workshops have no more than 3 presenters.

Send your completed form no later than COB February 8 2020 to NLADA via email to Lori@Expand-NOW.com

3|Page

Interpersonal

Socioenvironmental

Structural

The Polyvagal Theory provided us with a more sophisticated understanding of the biology of safety and danger, one based on the subtle interplay between the visceral experiences of our own bodies and the voices and faces of the people around us. It explains why a kind face, or a soothing tone of voice can dramatically alter the way we feel.

Bessel van der Kolk

Hands in water

Breathing exercises

Move body (walk, stretch, jumping jacks)

Draw an outline of your feet on the floor in your mind

Recite something (song/poem/speech)

Use math or numbers

Use an anchoring phrase - my name/ birthday/favorite color

Imagine leaving painful feelings behind (in a box, walking/biking away)

Rate distress before and after using techniques on a scale of 1-10

Hold ice

Red and orange shows census block groups in Southern California where close proximity to federal Superfund sites overlaps with a high percentage of low-income and minority residents.

Texas Criminal Defense Lawyers Association

Mental Health Seminar February 4, 2021 Livestream

Topic: Recognizing Signs of IDD Speaker:

James Patton

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Mental Health Seminar February 4, 2021 Livestream

Topic: Incompetency-Creative Solutions Speaker:

Robert Sullivan The Law Office of Robert Sullivan, P.L.L.C. 1217 Avenue K, Lubbock, Texas 79401 (806)741-0000 Phone (806)765-8150 Fax sullivan.law@live.com

Greg Joiner Ph.D. gregjoinerphd@gmail.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Incompetency & Creative Solutions A N I N - DEPTH LOOK AT CCP CHA PT E R 4 6 B A N D P R AC T ICA L A P P L ICATI ONS

PLEASE FEEL FREE TO CONTACT US! THE LAW OFFICES OF ROBERT SULLIVAN, P.L.L.C. 1217 AVENUE K, LUBBOCK, TEXAS. 79401 PHONE # (806)-741-0000 FAX # (806)-765-8150 SULLIVAN.LAW@LIVE.COM

GREG W. JOINER, PH.D. gregjoinerphd@gmail.com

Why Discuss Mental Health and the Law?

Why Discuss Mental Health and the Law?

BECAUSE YOU ALREADY PRACTICE IT!

Why Discuss Mental Health and the Law?

BECAUSE YOU ALREADY PRACTICE IT!

If you Have Ever Represented Three People in Jail…

If you Have Ever Represented Three People in Jail…

If you Have Ever Represented Three People in Jail…

If you Have Ever Represented Three People in Jail…

Then Statistically you have Represented Someone with a Mental Illness!

Then Statistically you have Represented Someone with a Mental Illness!

Then Statistically you have Represented Someone with a Mental Illness!

The Numbers are Staggering‌.

The Numbers are Staggering‌. ◌45% of all Federal Inmates have a Mental Illness

The Numbers are Staggering…. ◦45% of all Federal Inmates have a Mental Illness

◦Up to 65% of State Prison or County Jail Inmates have one

The Largest Hospital in the State of Texas

The Largest Hospital in the State of Texas

THE HARRIS COUNTY JAIL HOUSTON, TEXAS

THE HARRIS COUNTY JAIL HOUSTON, TEXAS On June 12th, 2020, the Houston Chronicle Reported the Jail had an Inmate Population of 8,117.

Meanwhile….

Has less than 2,500 beds under their direct control

They contract out for less than 2,500 additional beds

Mental Health in America

Mental Health in America â—Ś 1 in 5 Americans have a Mental Illness

Mental Health in America â—Ś 1 in 5 Americans have a Mental Illness â—Ś 1 in 6 Americans is on Mental Health Medication

46B INCOMPETENCY

46B INCOMPETENCY â—¦ 46B.002

46B INCOMPETENCY â—¦ 46B.002

This Applies to Every Felony

46B INCOMPETENCY â—¦ 46B.002

This Applies to Every Felony and Every Misdemeanor Punishable

by Confinement

46B INCOMPETENCY â—¦ 46B.003

46B INCOMPETENCY â—¦ 46B.003

Everyone is Competent!

46B INCOMPETENCY â—¦ 46B.003

Everyone is Competent!*

46B INCOMPETENCY ◦ 46B.003

Everyone is Competent!*

*Unless they aren’t.

46B INCOMPETENCY ◦ 46B.003

Everyone is Competent!*

*Unless they aren’t. (ex: Prior Court Order)

46B INCOMPETENCY â—¦ 46B.003

46B INCOMPETENCY â—Ś 46B.003

Defendant must have two things to be competent. And they must be competent at all stages of the proceedings.

46B INCOMPETENCY â—Ś 1. Sufficient present ability to talk with their lawyer, with a reasonable degree of rational understanding

46B INCOMPETENCY â—Ś 1. Sufficient present ability to talk with their lawyer, with a reasonable degree of rational understanding OR

46B INCOMPETENCY â—Ś 1. Sufficient present ability to talk with their lawyer, with a reasonable degree of rational understanding OR â—Ś 2. Rational and factual understanding of the proceedings.

46B INCOMPETENCY ◦ 46B.003

Burden of Proof is by the “Preponderance of the Evidence”

Signs of Possible Incompetency •Defendant is not oriented (Does not know who, where, when, or what’s happening). Some think they are in a hospital.

•History of Inpatient or Outpatient Psychiatric Treatment.

•Nature of Offense – •Throwing rocks while standing in the middle of a busy street.

•Theft of objects they have no use for.

•Assault of Police/EMS – while attempting suicide.

•Burglary of Habitation – stole food but not cash or gun that were in plain view, then took a nap in the bedroom.

•Repeatedly calls 911 because the FBI is after them.

Signs of Possible Incompetency Communication – •Cannot Communicate with you.

•Cannot make eye contact or makes strange eye contact (intense stare).

•When you ask them a question, you get a million details but no answer to your question or you get an answer to unasked, irrelevant question.

Thinking – •Unusual beliefs (Delusions) •Drones, Helicopters are following them.

•The NSA, FBI, Cartel is after them or they are Secret Service or DEA Agent.

•They think they are Jesus, etc.

Signs of Possible Incompetency Mania Wired for sound, Video and Satellite TV – talking 90 miles a hour about 900 different things. Can’t quit talking.

Unusually happy or positively excited about their current situation.

Ants in their pants – Can’t be still, always moving. Cannot focus.

Depressed Suicidal – have a plan, a lethal plan.

Express – hopeless, helpless, or worthless.

No energy, can’t sleep, no appetite, skipping meals. Losing weight.

Poor hygiene or NO hygiene.

No eye contact.

Signs of Possible Incompetency •Hallucinations •Sometimes they hide hallucinations; especially, if they have been in Psychiatric Hospital and do not want to return.

•Signs of possible hallucination – •Ask them. “Do you see/hear people others do not.”

•Staring an empty space/corner of the room.

•Look like they are listening to something else.

•Tell someone to shut up (when no one is there).

•Ask for you to repeat many statements.

•Their concentration is very spotty.

•Mumble, talk under their breath.

Signs of Possible Incompetency •Attorneys seem hesitant to talk about symptoms.

•You are not practicing medicine if you tell a doctor your child has been running a fever. This is not diagnosing (practicing medicine) but is telling the doctor information necessary for them to make a diagnosis.

•I want to talk with defense attorneys and welcome them to evaluation.

•Tell evaluator what you see. WE NEED your observations!!

•We don’t expect you to use professional terms.

•We need your information/observations to open the door, so the Flying Monkeys get out!

46B INCOMPETENCY â—¦ 46B.004

A Prosecutor, Judge, or Defense Attorney can file a motion suggesting incompetency

46B INCOMPETENCY ◦ 46B.004

A Prosecutor, Judge, or Defense Attorney can file a motion suggesting incompetency

◦ A.K.A. You will file

46B INCOMPETENCY ◦ 46B.004

A Prosecutor, Judge, or Defense Attorney can file a motion suggesting incompetency

◦ A.K.A. You will file ETHICS!

46B INCOMPETENCY ◦ 46B.004

A Prosecutor, Judge, or Defense Attorney can file a motion suggesting incompetency

◦ A.K.A. You will file ETHICS!

You are a bad Attorney if you don’t!

46B INCOMPETENCY â—¦ 46B.004

Merely raising the issue triggers an informal inquiry

46B INCOMPETENCY ◦ 46B.004

Merely raising the issue triggers an informal inquiry

◦ “Is there evidence, from any credible source, that would support a finding of incompetency?”

46B INCOMPETENCY ◦ “Is there evidence, from any credible source, that would support a finding of incompetency?”

If the answer is YES, and the Judge does not appoint an expert to examine…

46B INCOMPETENCY Forcing Somebody who is Incompetent through a case?

46B INCOMPETENCY AUTOMATIC DUE PROCESS VIOLATION! (both State and Federal)

46B INCOMPETENCY â—¦ 46B.005

46B INCOMPETENCY â—¦ 46B.005

Either Prosecution or Defense can Ask for a Trial to Make this Informal Determination

46B INCOMPETENCY â—¦ 46B.005(d)

46B INCOMPETENCY â—¦ 46B.005(d)

You can Raise the Issue of Incompetency anytime Before Sentence is Pronounced

46B INCOMPETENCY â—¦ 46B.006

Counsel Must Be Appointed

46B INCOMPETENCY ◦ 46B.006

Counsel Must Be Appointed

◦ 46B.007

Admissibility of Statements

46B INCOMPETENCY ◦ 46B.006

Counsel Must Be Appointed

◦ 46B.007

Admissibility of Statements

ETHICS!

46B INCOMPETENCY ◦ 46B.006

Counsel Must Be Appointed

◦ 46B.007

Admissibility of Statements

ETHICS!

Only as strong as a Judge willing to enforce it.

46B INCOMPETENCY â—¦ 46B.009

Time Spent Under this Chapter Counts Toward Possible Sentence

46B INCOMPETENCY ◦ 46B.009

Time Spent Under this Chapter Counts Toward Possible Sentence

◦ 46B.0095

Maximum Period of Restoration is Maximum Possible Sentence

46B INCOMPETENCY ◦ 46B.009

Time Spent Under this Chapter Counts Toward Possible Sentence

◦ 46B.0095

Maximum Period of Restoration is Maximum Possible Sentence (unless out-patient services and misdemeanor then it is 2 years)

46B INCOMPETENCY â—¦ 46B.011

No Interlocutory Appeals Allowed

46B INCOMPETENCY â—¦ 46B.021

Process of Doctor Appointment

46B INCOMPETENCY ◦ 46B.021

Process of Doctor Appointment

◦ 46B.021(f)

Court, on Timely Request, Must Give Your Own Expert Reasonable Opportunity to Examine Defendant

46B INCOMPETENCY â—¦ 46B.021

Process of Doctor Appointment

46B INCOMPETENCY ◦ 46B.021

Process of Doctor Appointment

◦ 46B.022

Mandatory Doctor Qualifications

46B INCOMPETENCY ◦ 46B.021

Process of Doctor Appointment

◦ 46B.022

Mandatory Doctor Qualifications

◦ 46B.024

Factors Reviewed by Doctor during the Examination

46B INCOMPETENCY 1) the capacity of the defendant during criminal proceedings to: (A)

rationally understand the charges against the defendant and the potential

consequences of the pending criminal proceedings; (B) disclose to counsel pertinent facts, events, and states of mind; (C) engage in a reasoned choice of legal strategies and options; (D) understand the adversarial nature of criminal proceedings; (E) exhibit appropriate courtroom behavior; and (F) testify;

46B INCOMPETENCY (2)

as supported by current indications and the defendant's personal history, whether the

defendant: (A) is a person with mental illness; or (B) is a person with an intellectual disability;

(3) whether the identified condition has lasted or is expected to last continuously for at least one

year;

46B INCOMPETENCY (4) the degree of impairment resulting from the mental illness or intellectual disability, if existent, and the specific impact on the defendant's capacity to engage with counsel in a reasonable and rational manner; and (5) if the defendant is taking psychoactive or other medication: (A) whether the medication is necessary to maintain the defendant's competency; and (B) the effect, if any, of the medication on the defendant's appearance, demeanor, or ability to participate in the proceedings.

Components of Incompetency Lack of Factual Knowledge OR Rational Understanding Factual Knowledge Sufficient Intellectual Ability (IQ) – 65-70 possible, below 65 very doubtful.

•Charge, classification. Maximum sentence.

•General Rules of Probation and Consequence of not following.

•Definition of G & NG pleas and Court’s response to each.

•Plea-bargain means less time with G plea and lost rights.

•Details of Allegation - when, where, what.

•When they can talk in Court.

•When they can talk Bad behavior in Court is punished.

Components of Incompetency Lack of Factual Knowledge OR Rational Understanding Rational Understanding •This is a difficult. And seems to be different from Court to Court.

•Competent Defendants: •Will not have a perfect rational understanding.

•Can logically communicate to you about non-trial related situations.

•Have adequate verbal reasoning ability.

•Understand: •They don’t have to plead Guilty if they did the crime.

•A trial is an argument. Between who and about what.

•Don’t have to testify.

•The nature and quality of the evidence.

46B INCOMPETENCY ◦ 46B.025

What’s in the Report

46B INCOMPETENCY ◦ 46B.025

What’s in the Report…

46B INCOMPETENCY ◦ 46B.025

What’s in the Report… and what’s not (Sanity).

46B INCOMPETENCY ◦ 46B.026

Doctor’s Report Due in 30 Days

46B INCOMPETENCY ◦ 46B.026

Doctor’s Report Due in 30 Days

◦ 46B.071

Options How to Proceed Forward if the Defendant is Incompetent but Restorable

46B INCOMPETENCY ◦ 46B.026

Doctor’s Report Due in 30 Days

◦ 46B.071

Options How to Proceed Forward if the Defendant is Not Competent but Restorable

◦ 46B.0711/.072

Possible Bond Provisions

46B INCOMPETENCY â—¦ 46B.073

Restoration for those Not on Bond

46B INCOMPETENCY ◦ 46B.073

Restoration for those Not on Bond

◦ 46B.073(c)

Those Cases that Require Restoration in a Maximum-Security Facility

46B INCOMPETENCY ◦ 46B.073

Restoration for those Not on Bond

◦ 46B.073(c)

Those Cases that Require Restoration in a Maximum-Security Facility

◦ This Transfer is MANDATORY

46B INCOMPETENCY â—¦ 46B.073

Timeline for Restoration is 60-Days for a Misdemeanor. Felony it is 120Days.

46B INCOMPETENCY ◦ 46B.073

Timeline for Restoration is 60-Days for a Misdemeanor. Felony it is 120Days.

◦ 46B.080

A One-Time Extension can be ordered for an additional 60-Days

46B INCOMPETENCY ◦ 46B.073

Timeline for Restoration is 60-Days for a Misdemeanor. Felony it is 120Days.

◦ 46B.080

A One-Time Extension can be ordered for an additional 60-Days

ETHICS!

46B INCOMPETENCY ◦ 46B.073

Timeline for Restoration is 60-Days for a Misdemeanor. Felony it is 120Days.

◦ 46B.080

A One-Time Extension can be ordered for an additional 60-Days 46B.079 (Check their Work!)

ETHICS!

46B INCOMPETENCY ◦ 46B.073

Timeline for Restoration is 60-Days for a Misdemeanor. Felony it is 120Days.

◦ 46B.080

A One-Time Extension can be ordered for an additional 60-Days

46B INCOMPETENCY ◦ 46B.073

Timeline for Restoration is 60-Days for a Misdemeanor. Felony it is 120-Days.

◦ 46B.080

A One-Time Extension can be ordered for an additional 60-Days

◦ 46B.085

Only One Restoration Per Offense Allowed!

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ Court Shall Notify You of Defendant’s Return Within One Business Day

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ You then have Three Business Days to Go and See Them Again

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ If You are Contesting the Doctor’s Report…

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ If You are Contesting the Doctor’s Report… You Must File a Written Objection, Within 15-Days…

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ If You are Contesting the Doctor’s Report… You Must File a Written Objection, Within 15-Days…

Of the Report Itself!

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ The Court Itself is Under a Deadline

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ Court Must Enter an Adjudication of Competency Within 20-Days of Report or 5-Days upon Defendant’s Return to Court…

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ Court Must Enter an Adjudication of Competency Within 20-Days of Report or 5-Days upon Defendant’s Return to Court… WHICHEVER IS SOONER!

46B INCOMPETENCY ◦ 46B.084

◦ ETHICS!

Timeline Upon Client’s “Return to Court”

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ ETHICS!

Get your own expert

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ ETHICS!

Get your own expert… again!

Questions for Hearing re-Competency •Ask me (evaluator) to define incompetency.

If I quote statute, ask me to put it in layman terms.

•Ask me how long I spent with the Defendant. Some evaluators are QUICK! •Ask me if I considered the possibility of malingered incompetency and how I ruled it out.

•When I state a defendant can or cannot meet a criteria of Competency, – Ask me AEB (AS EVIDENCED BY). This may be in the report but not all evaluators provide it.

•Ask me how the Defendant’s Mental Illness or Mental Defect is affecting competency.

•Ask me to explain why I think a Defendant is Restorable or Not Restorable.

46B INCOMPETENCY â—¦ 46B.101

46B INCOMPETENCY ◦ 46B.101

It Didn’t Work… Now What?

46B INCOMPETENCY â—¦ 46B.101

Civil Commitment with Charges Pending

46B INCOMPETENCY ◦ 46B.101

Civil Commitment with Charges Pending

◦ Ties into Health and Safety Code, Subtitle C, Title 7.

46B INCOMPETENCY ◦ 46B.101

Civil Commitment with Charges Pending

◦ Ties into Health and Safety Code, Subtitle C, Title 7.

(Difference between IDD and MH clients)

46B INCOMPETENCY ◦ 46B.101

Civil Commitment with Charges Pending

◦ Ties into Health and Safety Code, Subtitle C, Title 7.

46B INCOMPETENCY ◦ 46B.101

Civil Commitment with Charges Pending

◦ Ties into Health and Safety Code, Subtitle C, Title 7.

Short Term versus Long Term

46B INCOMPETENCY â—¦ 46B.108

46B INCOMPETENCY â—¦ 46B.108

Redetermination of Competency

46B INCOMPETENCY ◦ 46B.108

Redetermination of Competency

◦ Can be Raised by Head of Facility, the Court, the Prosecutor, Defense Counsel, or the Defendant.

AGAIN, FEEL FREE TO CONTACT US! THE LAW OFFICES OF ROBERT SULLIVAN, P.L.L.C. 1217 AVENUE K, LUBBOCK, TEXAS. 79401 PHONE # (806)-741-0000 FAX # (806)-765-8150 SULLIVAN.LAW@LIVE.COM GREG W. JOINER, PH.D. gregjoinerphd@gmail.com

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