Mental Health

Mental Health

Rick Wardroup

Mental Health Course Director

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:

November 19, 2020 Livestream Event Alyse Ferguson and Rick Wardroup 6.25 Ethics: 1.0

Thursday, November 19, 2020 Time

CLE

8:30 am

Daily CLE Hours: 6.25 Topic

Ethics:1.0 Speaker

Opening Remarks

Alyse Ferguson and Rick Wardroup

8:45 am

1.0

Initial Interviews- Clients Diagnosed with Mental Illness or IDD

Nicky Boatwright

9:45 am

1.25

The Basics of Competency Litigation

Dr. Floyd Jennings

11:00 am 11:30 am

Lunch Break 1.0

Lunch Presentation: The Lawyer : Second Hand Trauma Terry Bentley Hill

ETHICS

12:30 pm

1.0

1:30 pm 1:45 pm 3:45 pm

Investigations in MI/IDD cases

Nancy Piette

Break 2.0

Mental Health Policing: Using it

Jon O’Toole Scott Soland Matt Goheen

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 Table of Contents

Speaker

Topic Thursday, November 19, 2020

Nicky Boatwright Dr. Floyd Jennings Terry Bentley Hill

Initial Interviews-Client Diagnosed with Mental Illness or IDD The Basics of Competency The Lawyer: Second Hand Trauma

Nancy Piette

Investigations in MI/IDD Cases

John O’Toole Scott Soland

Mental Health Policing: Using It

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 November 19, 2020 Livestream

Topic: The Basics of Competency Litigation Speaker:

Floyd L. Jennings 1201 Franklin St 13th Flr Houston, TX 77002-1929 Floyd.Jennings@pdo.hctx.net (713) 274-6701

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

Scenario Consider the following scenario, which is all too common: A defendant is arrested and is obviously mentally ill upon arrest, as well as having a long mental health history. The person is housed in a mental health unit within the jail and tells you, as counsel, “I don’t want to go to no hospital.”

However, you fear that he will not be able to get through a plea agreement. And, even if the defendant is charged with a misdemeanor and not a felony, you know that at the very least it will require 30 days to obtain a competency evaluation—if not longer. As well, were the defendant found incompetent the person would languish for 3 months awaiting space in a com-

petency restoration program, which itself would last another 60 days, at best. Thus, even with a misdemeanor matter, be it a Class B or Class A, the likelihood is that the person will remain longer in custody—because he or she is mentally ill—than would have occurred had mental illness not been a factor, or had been brought to the attention of the court and the person pled out.1 Moreover, the foregoing in-custody period is exacerbated by the shortage of space in restoration programs. What do you do?

Overview Representing mentally impaired clients inherently creates a conflict between the expressed desires of the client and activity by

counsel in the best interest of the client. Herein, I will explicate this conflict and proffer at least one solution to the dilemma: “Do I act solely as my client wishes, or do I try to find an outcome which is in his/her best interest, even if the client is opposed?”

And, if so, under what conditions?

Duty of Counsel Tex. Disciplinary Rules Prof ’l Conduct R. 1.02 plainly states: (a) Subject to paragraphs (b), (c), (d) and (e), (f), and (g), a lawyer shall abide by a client’s decisions:

(1) concerning the objective and general methods of representation;

(2) whether to accept an offer of settlement of a mat­ ter, except as otherwise authorized by law;

(3) i n a criminal case, after consultation with the law­ yer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.

The necessity for zealous representation, respecting the client’s wishes, is not a laudable goal to which only lip service is given, but the very essence of justice. The presupposition, however, is that the client is not legally incapacitated—either in the civil sense, which would require appointment of a guardian,2 nor in the sense of being incompetent to stand trial. See Koehler v. State, 830 S.W.2d 665 (Tex. App.—San Antonio 1992), for a discussion of the differences between incompetence in a criminal proceeding and incapacity in the civil sense.

The aforementioned scenario captures the heart of the con­ flict. Examine, however, the comment to Rule 1.02(12), which states that the lawyer is legally authorized to represent the client and such is “established and maintained by consenting adults who possess the legal capacity to agree to the relationship.” 3 That section, however, does not address the circumstance of the person who has legal capacity in the civil sense, but is believed, and later opined and found, to be incompetent to stand trial in a criminal proceeding, inasmuch as the person is lacking either a rational and/or factual knowledge of the proceedings against them—or is unable to relate to their attorney with a reasonable degree of rational understanding.4 The Disciplin­ ary Rules, however, contain a requirement that counsel always demonstrate attention and respect, even to the most disabled client. See Rule 1.03(5).

When a lawyer reasonably believes a client suffers a mental disability or is not legally competent, it may not be possible to maintain the usual attorney-client relationship. Nev­

ertheless, the client may have the ability to understand, deliberate upon, and reach conclusions about some matters affecting the client’s own well-being. Furthermore, to an increasing extent, the law recognizes intermediate degrees of competence. . . .The fact that a client suffers a disability does not diminish the desirability of treating the client with attention and respect.

Counsel’s duty regarding disclosure of information that is confidential and may be privileged concerning the defendant’s mental state is admittedly not discussed in the Disciplinary Rules. Such information may well include the defendant’s desire to avoid treatment, though such would but perpetuate the defen‑ dant’s disturbed behavior and place the defendant in a position where he or she would be harmed by others, if not themselves.

However, by analogy, just as counsel would be obliged to disclose to the court information appertaining to the defendant’s plan to commit a crime, harm others or even self, the Rules cite Rule 5.03(d)(1), Tex. R. Evidence, “indicate the underlying public policy of furnishing no protection to client information where the client seeks or uses the dictates of lawyer to aid in the com‑ mission of a crime or fraud.” So, similarly, no protection should exist for information disclosed in the interest of protecting the defendant from himself or herself, or others.

Related, though more narrowly focused, is the circumstance in which counsel has reason to believe that introduction of the client’s history of mental illness is the only viable defense, but the client objects to any suggestion he is mentally ill. Such was the case in the Kaczynski case.5 In that case, the 9th Circuit ultimately held that the trial court acted properly, though the defendant had argued that in exchange for the United States renouncing its intention to seek the death penalty, his guilty plea was involuntary because his counsel insisted on presenting evidence of his mental condition, contrary to his wishes, and the court denied his Faretta request to represent himself. The 9th Circuit also held that a criminal defendant in a capital case has no constitutional right to prevent his appointed defense counsel from presenting evidence in support of an impaired mental state defense at trial.

The Kaczynski case should put to rest the notion that de‑ fense counsel could be censured for introducing to the court any evidence of the defendant’s mental state in connection with the offense. To be sure, an insanity defense would require the consent of the defendant to go forward, though such is also predicated on the fact that at the time of trial the defendant is also competent. In that regard, note that it would be impossible to engage a defendant in his/her thinking at the time of the act with which charged unless the person is both competent and

consenting. Nonetheless, Ross 6 is quite correct that “no ethical code or rule dictates which course a criminal must take when a client, her judgment apparently clouded by mental illness, resists following counsel’s advice. This is one of those cases that is at the margins of ‘ethical decisionmaking.’ ” But even speaking more narrowly as to the issue of com‑ petence, I am inclined to argue that counsel’s role should be tightly circumscribed, such that even if a decision arose when the court’s attention were to be called to the defendant’s history of mental illness and current mental state, counsel could rely upon information readily available to all parties—e.g., jail mental health screening, history of any jail-based mental health services, and general references to inability to relate to the defendant or the defendant’s obvious behavior, such as inattention to personal hygiene, disturbances created in hold-over prior to appearing before the court, as well as any utterances by the defendant to the court that are patently strange, if not bizarre (any of which would constitute that modicum of information necessary to trigger an informal inquiry, and likely competency evaluation).7 In the foregoing illustration, counsel’s duty is met without necessity for abrogation of any otherwise privileged informa‑ tion. The next element related to duty, of course, is to carefully read the examination provided by the court-appointed exam‑ iner—as examiners may not always follow the exact language of Tex. Code Crim. Proc. art. 46B.024 and .025 viz. the content of competency examinations. An opinion of incompetency, and finding of same, will trigger a mandatory competency restora‑ tion commitment—to outpatient services if the person can be safely treated on an outpatient basis (and such is available), otherwise to a jail-based program (again if available, and only to an inpatient restoration program if other options are not available or if the examiner recommends such).8

Discussion of the Ethical Dilemma When counsel acts in a fashion as described earlier, with the full knowledge that the defendant harbors quite different wishes, then counsel is exercising what in health law or probate settings is called “substituted judgment,” as counsel is substituting his/ her judgement for that of the client—i.e. surrogate decisionmaking. And thus, inherently, counsel is acting in manner that diminishes the client’s autonomy.9 Ross speaks eloquently of the weight of such a decision and argues convincingly, I be‑ lieve, of the necessity to limit the scope thereof. She says, “At a minimum, criminal defense lawyers should reserve surrogate decision-making for those occasions when a mentally ill cli‑ ent’s best interests outweigh the client’s right to autonomous decision-making.”

This means looking long term at therapeutic interests as having greater weight to establish autonomy and functioning— even if hospitalization for restoration is required, and even if that hospitalization results in a somewhat longer period of “confinement” (to the extent that hospitalization is considered “confinement”) than might occur were the defendant to take a plea, with such supports by counsel and preparation as would make it possible for the person to get through a plea agreement with any degree of rational understanding. To do otherwise is to argue that society has no parens patriae duty to provide treatment services to persons sorely in need of same, though the parents patriae doctrine has long been the basis of involuntary or court-ordered mental health services, going back to the time of Edward I in the 13th century.10 Like marriage, decisions to exercise substitute judgment by counsel “are not to be entered into unadvisedly . . . but discreetly.” And, perhaps, as well, with a certain degree of humility based on the fact that in any par‑ ticular case, counsel may well be wrong—practically speaking, though not unethical.

I would further argue that in addition to duties to the men‑ tally disturbed client, counsel has a duty to the court. That duty is part of the constitutional protections provided to defend, and so that failure to disclose that a defendant has not the requisite mental state to be able to participate in the proceedings, knowl‑ edge of same, or capacity to relate to counsel would constitute a constitutional violation and a fundamental breach of counsel’s duty to the client, including the duty of ethical and zealous representation. Moreover, when counsel raises the issue, then there is an opportunity for that entity which is legally authorized to evaluate the defendant’s state of mind to offer an opinion— providing another set of eyes who see the defendant from a professional perspective. Evaluation of defendants for whom there is some evidence of incompetency constitutes another set of protections for the rights of the person.

Conclusions The upshot of the foregoing is that raising the issue of a defen‑ dant’s possible incompetency is proper, affords constitutional protections to the defendant, honors the legal process, and, in fact, is part and parcel of the duty of zealous representation and satisfies counsel’s duty to the court as well. However, any disclo‑ sures should be circumscribed and limited insofar as possible to asking the court to take notice of behaviors exhibited by the defendant which are readily available to all parties. Moreover, exercise of substituted judgment does diminish, to a greater or lesser extent, the autonomy of the defendant but is in the defendant’s best interests.

Endnotes 1. Torrey, E. F., Steiber J., Exekiel, J., et al. Criminalizing the Seriously Mentally Ill: The Abuse of Jails as Mental Hospitals. Washington, DC: Public Citizen’s Health Research Group, 1992. See also Teplin L. Criminalizing mental disorder: the comparative arrest rate of the mentally ill. Am Psychol 39:794–803, 1984 23.

2. Tex. Disciplinary Rules Prof ’l Conduct R. 1.02(12) and (13).

3. Ibid., 1.02(12) 4. Tex. Code Crim. Proc. art. 46B.003 5. United States v. Kaczynski, 239 F3d 1108 (9th Cir. 2001) cert. denied 535 U.S. 993 (2002). See also Ross, Josephine (1998). Autonomy vs. a Client’s Best Interests: The Defense Lawyer’s Dilemma When Mentally Ill Clients Seek to Control Their Own Defense. 35 Am. Crim. Law Rev. (1997–1998).

6. Ibid., Ross at 1345.

7. Tex. Code Crim. Proc. art. 46B.004 would allow the issue of competency to be raised by either party, and only a “suggestion” of incompetency which means “a representation of incompetency from any credible source” would trigger an informal inquiry by the court. In contrast to an earlier period “the court is not required to have a bona fide doubt as to the competency of the defendant in order to order an examination.”

8. Ibid., art. 46B.071 9. Op. cit. Ross at 1345.

10. See discussion by Custer, Lawrence B. (1978) The Origins of the Parens Patriae Doctrine. 27 Emory L. J. (1978)

Floyd L. Jennings, JD, PhD, ABPP, is an attorney as well as a Diplomate in Clinical Psychology. Floyd, the Chief of the Misdemeanor Mental Health Division of the Harris County Public Defender, was in private practice of clinical psychology for over 30 years (including for some 20 years on the clinical faculty of UT Medical School–Houston). He is the author of over 50 publications, largely dealing with legal and ethical matters for mental health practitioners. Floyd also regularly lectures for TCDLA on topics of mental health law, competency, and sanity in criminal proceedings, as well as ethical and legal issues for mental health practitioners. He is also a contributor to the bench book mental health issued by the Judicial Commission on Mental Health. He is a graduate of UT Southwestern Medical School in Dallas and the UH School of Law. He can be reached at Floyd.

Jennings@pdo.hctx.net.

TCDLEI Memorializes Fallen But Not Forgotten . . .

Charles Baldwin Quinn Brackett Peter Bright Jack H. Bryant Phil Burleson Charlie Butts Ward Casey Byron Chappell Emmett Colvin Rusty Duncan C. David Evans

Elaine Ferguson C. Anthony Friloux Jr. Jim Greenfield Richard W. Harris David Hazlewood Odis Ray Hill Weldon Holcomb Floyd Holder W. B. “Bennie” House David Isern

Hal Jackson Knox Jones Joe Kegans George F. Luquette Carlton McLarty Ken Mclean Kathy McDonald George R. Milner Brian E. Murray Harry Nass

Anthony Nicholas David A. Nix Rusty O’Shea Charles Rittenberry George Roland Travis Shelton Robert William Tarrant Charles Tessmer Doug Tinker Don R. Wilson Jr.

Texas Criminal Defense Lawyers Educational Institute To memorialize someone or give a shout out, email chattersley@tcdla.com

Texas Criminal Defense Lawyers Association

Mental Health Seminar November 19, 2020 Livestream

Topic: The Lawyer: Second Hand Trauma Speaker:

Terry Bentley Hill 3131 McKinney Ave Ste 800 Dallas, TX 75204-2432 terry@terrybentleyhill.com

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

THE LAWYER: SECOND HAND TRAUMA

TERRY BENTLEY HILL, Dallas Law Office of Terry Bentley Hill

TCDLA MENTAL HEALTH SEMINAR November 19, 2020

The Lawyer: Second Hand Trauma________________________________________________________________________

TABLE OF CONTENTS INTRODUCTION .......................................................................................................................................................... 1 TRIGGER WARNING ................................................................................................................................................... 1 THE LANGUAGE OF DEPRESSION .......................................................................................................................... 1 STOP MINDING YOUR OWN BUSINESS ................................................................................................................. 2 THE POWER OF ONE. NO SUPERPOWERS NECESSARY. ................................................................................... 2 THERE IS HELP ............................................................................................................................................................ 2

i

The Lawyer: Second Hand Trauma________________________________________________________________________

PRACTICING LAW WHEN LIFE HAPPENS: STOP MINDING YOUR OWN BUSINESS “I had a client’s father hug me today and tell me that I helped ‘restore his faith in the system.’ Some days are better than others.” Dallas Criminal Defense Attorney INTRODUCTION It is not easy being a lawyer. The competitive, pressurized, adversarial, combative, win-at-all-costs legal profession practiced by smart, type-A, personalities is driving many attorneys to drink…literally. Attorneys work in a pressure-filled profession that, for many, in order to cope, leads to substance use disorders, depression and anxiety.

The burn-out rate for lawyers is as high as any profession, and depression and anxiety in the legal community is higher than any other profession. And, the results can be tragic.

By now most attorneys have heard the startling statistics regarding the well-being of lawyers,1 so a message to the 21% of attorneys with drinking problems, the 61% experiencing anxiety, the 46% living with depression and the 11% with suicide ideation2: You are not alone and there is help.

TRIGGER WARNING The State Bar of Texas has long addressed the impact substance use has on the profession. More recently, with the increase in attorney suicides, the Bar’s focus includes mental wellness and mental health issues and suicide prevention.

This is a subject I learned the hard way, both as the spouse of a struggling attorney, and the subsequent depression I experienced following his death by suicide. I experienced the devastating toll that untreated mental health issues have on the sufferer and the family, and how stigma keeps people trapped in the shadow of shame. Alcohol and depression coupled with a failed marriage and legal issues resulted in the worst possible outcome for me and my four daughters.

When a person dies by suicide, the ripple effect impacts at least 114 people3, some for the rest of their lives.

Suicide is like a bomb going off and everyone left behind slowly dies of radiation poisoning. Sally Conway, Executive Director of the Grace Loncar Foundation.

THE LANGUAGE OF DEPRESSION We don’t know what we don’t know. Depression speaks a language, which most people are not familiar. I missed verbal clues throughout my marriage. I believed the myths of suicide, for example, if a person talks about dying, they are less likely to take his/her life. Many people experiencing depression and suicide ideation telegraph their distress in several ways: Verbal

Depression

Substance Use Disorder

All or Nothing Thinking

Consistent feelings of sadness or hopelessness.

Using alcohol or drugs to bolster performance.

Everyone will be better off without me.

Lack of interest in people, things or activities previously enjoyed.

Using substances on the job.

I am a burden to my family, friends and colleagues.

Increased fatigue or loss of energy., restlessness or irritability.

I have no friends.

Change in appetite, weight or sleep patterns

Failing to show for appointments, meetings, depositions, court appearances.

Failing to return phone calls.

1

See Patrick Krill, Ryan Johnson and Linda Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, Journal of Addiction Medicine, Feb. 2016, Vol. 10, Issue 1, pp. 46-52.

2

See Lee Taft, A Toll On Lawyers. Exploring how the medical error disclosure movement can apply to the legal profession. Texas Bar Journal, June 2017, p. 360. texasbar.com 3

See Elana Premack Sandler, LCSW, MPH, The Ripple Effect of Suicide|NAMI: National Alliance on Mental Illness, Sep. 2018. nami.org 1

Practicing Law When Life Happens: Stop Minding Your Own Business

Chapter 5.1

I wish I could die.

Isolation

Declining quality of work.

Life is too hard. No one would miss me if I were gone.

Diminished ability to remember, think clearly, concentrate or make decisions

Avoiding law partners, staff, colleagues, clients, friends and family.

I am a complete failure. I’ve let everyone down. I might as well die.

Thoughts or expressions of death or suicide.

Making excuses for, or lying about, frequency or amount.4

STOP MINDING YOUR OWN BUSINESS Often people struggling with depression do not realize they have depression. The onset can be slow and gradual effectively becoming a new normal as the condition worsens, and substance use disorder is a progressive disease that can be fatal if untreated.

For that reason, it takes us, the collective legal community, to willingly step out of our comfort zone when we spot the symptoms and compassionately approach the sufferer and ask one simple question: Are you ok? That question can save a life.

Nine years after the first suicide in my family, my 14-year-old daughter died of depression. Because of the indescribable pain and grief, the only way I could deal with the tragedy is to have a purpose for the suffering. That included learning as much as possible about mental health issues, specifically depression and suicidal ideation.

Think of suicidal crisis like helium filling up a balloon. As the crisis increases, the air in balloon stretches the material to the point of popping.

By connecting with that person, by validating their pain/loneliness/hopelessness/despair, some of the suicidal pressure can be released and the crisis abated.

THE POWER OF ONE. NO SUPERPOWERS NECESSARY. Struggling with mental health issues can be isolating and lonely. Loneliness is an affliction that one person can cure. Do not fear asking your friend, family member or colleague 1) if they are thinking of hurting themselves, 2) if there is a plan, and 3) if they have means to carry out the plan. The idea will not plant an idea in their head, they are already thinking it. Then suggest they call their family or doctor or 9-1-1.

“Hello Terry, I saw you in Corpus Christi and you may have helped me save my daughter’s life. She’s 14years-old and she spoke the language you talked about…’I have no friends,’ ‘I have no one to sit with at lunch,’ etc. I remembered to ask her the questions…have you thought about hurting yourself (answer yes), have you thought about killing yourself (answer yes), do you have a plan?? (SILENCE)!! It was the most deafening silence ever?? We took her to the emergency room, and we are treating her for depression.” A mom.

THERE IS HELP Studies show the most effective treatment for depression and other mental health issues is three-fold: 1) medication, 2) cognitive behavior therapy and 3) peer support.

For Texas attorneys, Judges and law students, the Texas Lawyers Assistance Program offers crisis counseling, coaching and referrals. The calls to TLAP are respectful and confidential. Know the number: 800-343-8527. TLAP provides struggling attorneys with help, not discipline, and by calling TLAP it fulfills our ethical obligation to report under 8.03 of the Texas Rules of Disciplinary Procedure.

Terry Bentley Hill can be contacted at terry@terrybentleyhill.com

4

TLAP Desk Reference 2

Texas Criminal Defense Lawyers Association

Mental Health Seminar November 19, 2020 Livestream

Topic: Investigations in MI/IDD Cases Speaker:

Nancy Piette 3207 Cimmaron Ave Midland, TX 79705-6210 nancy.piette@att.net (432) 556-1154

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

RECORDS AUTHORIZATION - CPS

TO WHOM IT MAY CONCERN: By the original of this authorization, or any photostatic reproduction hereof, I hereby authorize and permit Private Investigator, NANCY PIETTE, her agents, employees, or representatives, to contact any and all investigators, caseworkers, or other employees of the Texas Department of Human Services - Child Protective Services, and to speak with these individuals about any investigations in which I, XXXXXXXX, have been involved. I further request that any and all employees of the Texas Department of Family & Protective Services - Child Protective Services furnish to Private Investigator, NANCY PIETTE, her agents, employees, or representatives thereof, full and complete reports, evaluations, records, letters, narratives, logs or other documents that in any way relate to me and are on file with the Texas Department of Family & Protective Services - Child Protective Services. Such records should be immediately released upon request by the above person or persons or by their representatives. This Authorization for Release of Records and Information is to remain in effect until such time as I revoke it in writing.

Dated:

Signature: XXXXXXXX DOB: XX-XX-XXXX

My name is XXXXXXXX, my date of birth is XX-XX-XXXX. I am presently incarcerated in the XXXXXXXX in XXXXXXXX, Texas. I declare under penalty or perjury that I signed the foregoing authorization.

Executed on the

day of

, 2020.

XXXXXXXX

RECORDS AUTHORIZATION - JUVENILE RECORDS

TO WHOM IT MAY CONCERN: By the original of this authorization, or any photostatic reproduction hereof, I hereby authorize and permit Private Investigator, NANCY PIETTE, her agents, employees, or representatives, to obtain any and all juvenile records with respect to me, including but not limited to, instruments filed with the juvenile courts, including, but not limited to, petitions, orders, social histories, commitments, as well as, police reports, juvenile detention records, Texas Youth Commission records, or other such documents which relate to me when I was a juvenile. This authorization is with respect to any records within the State of Texas. I further permit NANCY PIETTE to contact any court clerks, attorneys, juvenile probation officers, juvenile correction officers, counselors, or other individuals, and to speak with these individuals regarding the particulars of any case in which I was involved in when I was a juvenile. Such records should be immediately released upon request by the above person or persons or by their representatives. This Authorization for Release of Records and Information is to remain in effect until such time as I revoke it in writing.

Dated:

Signature: XXXXXXXX DOB: XX-XX-XXXX

My name is XXXXXXXX, my date of birth is XX-XX-XXXX. I am presently incarcerated in the XXXXXXXX in XXXXXXXX, Texas. I declare under penalty or perjury that I signed the foregoing authorization.

Executed on the

day of

, 2020.

XXXXXXXX

RECORDS AUTHORIZATION - JAILS/PRISONS

TO WHOM IT MAY CONCERN: By the original of this authorization, or any photostatic reproduction hereof, I hereby authorize any and all representatives within any county jail, city jail, penal facility, detention center, or other place of incarceration, including but not limited to, Texas Department of Criminal Justice or XXXXX County Jail to furnish to Private Investigator, NANCY PIETTE, her agents, employees, or representatives, any and all documents that may be on file with respect to me, XXXXXXXX, such records to include, but are not limited to, the judgment and sentence, disciplinary records, incident reports, admission summaries, classification records, medical and/or mental health records, or other documents that in any way relate to me. I further give NANCY PIETTE permission to speak with any representatives of any such facilities. Such records should be immediately released upon request by the above person or persons or by their representatives. This Authorization for Release of Records and Information is to remain in effect until such time as I revoke it in writing.

Dated:

Signature: XXXXXXXX DOB: XX-XX-XXXX

My name is XXXXXXXX, my date of birth is XX-XX-XXXX. I am presently incarcerated in the XXXXXXXX in XXXXXXXX, Texas. I declare under penalty or perjury that I signed the foregoing authorization.

Executed on the

day of

, 2020.

XXXXXXXX

RECORDS AUTHORIZATION - SCHOOL

TO WHOM IT MAY CONCERN: By the original of this authorization, or any photostatic reproduction hereof, I hereby authorize and permit Private Investigator, NANCY PIETTE, her agents, employees, or representatives, to obtain any and all school records with respect to me, including but not limited to, enrollment records, reports cards, transcripts, individualized education plans, evaluations, testing and diagnostic information, enrollment forms, immunization records, or other such documents which in any way relate to me. I further permit them to contact any teachers, principals, assistant principals, counselors, diagnosticians, registrars, or other school officials and to speak with these individuals regarding any knowledge they may have that in anyway concerns me. Such records should be immediately released upon request by the above person or persons or by their representatives. This Authorization for Release of Records and Information is to remain in effect until such time as I revoke it in writing.

Dated:

Signature: XXXXXXXX DOB: XX-XX-XXXX

My name is XXXXXXXX, my date of birth is XX-XX-XXXX. I am presently incarcerated in the XXXXXXXX in XXXXXXXX, Texas. I declare under penalty or perjury that I signed the foregoing authorization.

Executed on the

day of

, 2020.

XXXXXXXX

RECORDS AUTHORIZATION - EMPLOYMENT

TO WHOM IT MAY CONCERN: By the original of this authorization, or any photostatic reproduction hereof, I hereby authorize and permit Private Investigator, NANCY PIETTE, her agents, employees, or representatives, to obtain any and all employment records with respect to me, including but not limited to, income tax related information, applications, evaluations, termination notices, payroll information or other such documents which relate to me. I further permit them to contact any employees, co-workers, supervisors, or employers, and to speak with them regarding any knowledge they may have that in anyway concerns me. Such records should be immediately released upon request by the above person or persons or by their representatives. This Authorization for Release of Records and Information is to remain in effect until such time as I revoke it in writing.

Dated:

Signature: XXXXXXXX DOB: XX-XX-XXXX

My name is XXXXXXXX, my date of birth is XX-XX-XXXX. I am presently incarcerated in the XXXXXXXX in XXXXXXXX, Texas. I declare under penalty or perjury that I signed the foregoing authorization.

Executed on the

day of

, 2020.

XXXXXXXX

AUTHORIZATION FOR THE USE AND DISCLOSURE OF PROTECTED HEALTH INFORMATION 1.

I hereby authorize (hereinafter referred to as “Healthcare Provider” to use and disclose protected health information from the records(s) of: Patient’s Name: Birth date:

XXXXXXXX XX-XX-XXXX

2.

Copies of the following records shall be used and disclosed: Complete Health Records

3.

I understand that the records used and disclosed as granted on this authorization form may include information relating to Human Immunodeficiency Virus (“HIV”) infection or Acquired Immunodeficiency Syndrome (“AIDS”); treatment for or history of drug or alcohol abuse; or mental or behavioral health or psychiatric care.

4.

I understand that copies of the records indicated above will be sent or faxed to Nancy Piette, Private Investigator, 3207 Cimmaron, Midland, Texas 79705, 432-556-1154 or 432/689-2373 (fax).

5.

I understand that to the extent any Recipient of this information, as identified above, is not a “covered entity” under Federal or Texas privacy law, the information may no longer be protected

by Federal and Texas privacy law once it is disclosed to the Recipient and, therefore, may be subject to re-disclosure by the Recipient.

6.

Description of the purpose of the requested use and/or disclosure: as evidence and for evaluation of a pending criminal case.

7.

I understand that I may revoke this authorization in writing at any time except to the extent that the healthcare provider has already relied on this authorization. I understand that I may revoke this authorization by sending or faxing a written notice to the Privacy Officer at the officer of the healthcare provider or by faxing written notice to healthcare provider, and by stating my intent to revoke this authorization.

8.

Unless otherwise revoked, I understand that this authorization will expire, by law, 90 days from date of this authorization unless I otherwise specify. I desire this to be in effect for one year from the date of signing.

9.

I understand that the healthcare provider may not condition or alter my treatment based on my completion of this authorization form.

Dated:

Signature: XXXXXXXX DOB: XX-XX-XXXX

My name is XXXXXXXX, my date of birth is XX-XX-XXXX. I am presently incarcerated in the XXXXXX in XXXXXX, Texas. I declare under penalty or perjury that I signed the foregoing authorization.

Executed on the

day of

, 2020.

XXXXXXXX

4885-G March 5, 2012

R EQUEST FOR C ASE R ECORDS RECORDS MANAGEMENT GROUP Use this form to request a copy of an Adult Protective Services, Child Care Licensing, or Child Protective Services case record. The Records Management Group (RMG) adheres to and complies with all statutes and rules pertaining to the entitlement, redaction, and release of the case records RMG maintains. Additional information regarding requests for case records, including entitlement guidelines, can be found at: http://www.dfps.state.tx.us/policies/caserecord.asp Please fill out the fields below by typing or by printing legibly. An asterisk (*) indicates this information is required.

A. What type of case record are you requesting from DFPS? Adult Protective Services (APS)

Child Care Licensing (CCL)

Child Protective Services (CPS)

B. What do you know about the case record? Please enter as much information as you can.

Case Name (APS or CPS) or Facility Name (CCL):

Case Number:

Case Dates (approximate dates case was open):

*Names of the primary children and/or adults involved in the case:

*Dates of Birth:

*Social Security Numbers:

Any other identifying information, including former names:

C. Who are you and how can we reach you if we have questions? *First Name

Middle Initial

*Are you involved in the case that you are requesting? Yes

No

*Last Name

If yes, were you ever in DFPS foster care as a child? Yes

No

If you are requesting the record for a case in which you are NOT involved, please select one of the three options below.

1. I am an attorney.

2. I have a court order.

I am representing:

My bar card number is:

It authorizes me to request these records on someone else's behalf and a copy is included with this request.

3. I am not either of the above.

However, I believe I am authorized to request these records on someone else's behalf because:

*Telephone Number (include area code):

Fax Number (include area code):

E‐mail Address:

D. Where do you want your copy of the case record mailed? *Mailing Address (street or P.O. box):

*City:

*State:

*Zip Code:

E. Can you agree to the following?

• •

I believe that all of the above information on my request is true and correct to the best of my knowledge.

I have included a copy of my valid driver's license or other picture identification to verify my identity.

*Signed: _____________________________________________________

*Date: __________________________

Exceptions: Please contact us if you were formerly in DFPS foster care and have trouble sending a copy of your picture ID. If you are an attorney and you have provided your bar card number, a copy of your picture identification is not required.

If you have questions about this form or other records‐related issues, please send an email to Records.Management@DFPS.STATE.TX.US or call us toll‐free at 877‐764‐7230

Send by mail the completed form and all required documents to: Department of Family and Protective Services, Attn: RMG (Y‐937), P.O. Box 149030, Austin, Texas, 78714‐ 19030 Page 1 of 1

Nancy Piette, M.Ed. Private Investigator - License A11826 Mitigation Specialist 3207 Cimmaron Midland, Texas 79705 432-556-1154 432-689-2373 (Fax) nancy.piette@att.net

Date Via - Email

Attorney Name Attorney Address

Re:

REPORT OF INVESTIGATION

Attached is a summary of my interview with XXXXXXX. Should you require any additional information, please do not hesitate to contact me.

Sincerely,

Nancy Piette

Report of Investigation - Attorney-Client Privilege

Face to Face Interview with: Dates: BACKGROUND/FAMILY: !

DOB

!

POB

!

Parents Names, where they live, occupation now and as client was growing up. I include stepparents.

!

Siblings Names, where they live, occupation

!

Spouses, Significant Others, Baby Mamma/Daddy

!

Children

EDUCATION: !

Schools attended

!

Special Education v. Regular Education

!

Learning Disorders

!

English Second Language

!

Held Back

!

Grades and Conduct (conduct can show behavioral issues or self-contained classrooms owing to mental illness not diagnosed early on)

!

Graduation

!

Colleges v. Trade/Vocation Schools

!

Certificates

Report of Investigation - Attorney-Client Privilege

Page 2 of 4

!

GED - where did they get their GED (if willingly v. in prison)

EMPLOYMENT: !

Jobs held

!

Reasons for Termination

RESIDENCES: !

I usually get this when I cycle through education

HEALTH: !

Physical: Head injuries, loss of consciousness, etc.

!

Mental: Any psychiatrists, psychologists, counselors Any medications prescribed Any diagnoses - when, by whom

!

Abuse/Trauma: Any CPS involvement - if so, explore Can use ACE’s checklist

SUBSTANCE USE DISORDER HISTORY: !

Date when first used, frequency of use, any outpatient and/or inpatient

CRIMINAL HISTORY: !

Any arrests and/or convictions - when, what charge, disposition

!

Any competency and/or insanity in past cases

GANGS: TATTOOS:

Report of Investigation - Attorney-Client Privilege

Page 3 of 4

RELIGION: INCIDENT: !

Background With Complaining Witness

!

Days leading up to the incident and the incident

!

Witnesses

REVIEW OF DISCOVERY !

Are they able to assist and engage

!

Noteworthy questions/comments client made during the interview

MISCELLANEOUS !

Catch all

Report of Investigation - Attorney-Client Privilege

Page 4 of 4

Texas Criminal Defense Lawyers Association

Mental Health Seminar November 19, 2020 Livestream

Topic: Mental Health Policing: Using It Speaker:

Jon M. O'Toole 105 N. Benge Street McKinney, TX 75069-4357 j.otoole@collincountylaw.com (972) 548-7167

Scott Soland 6610 Mildred Rd Needville, TX 77461 scott.soland@fortbendcountytx.gov (832) 473-2677

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

Nearly every day we hear about a police-citizen interaction involving a citizen with a mental health illness. The stories range from arrests by a police officer of someone not acting “normal,” to the tragic and horrific death of either the citizen or the officer. Following her arrest in 2015 for failing to signal a lane change, Sandra Bland was found dead in her jail cell.1 Her death and the following investigation prompted a significant changes in mental health policing in Texas with the passing of the Sandra Bland Act.2 As part of the changes in the Sandra Bland Act, officers in Texas have increased their specialized training for dealing with citizens suffering from mental illnesses in the form of Crisis Intervention Team (CIT) training.3 When representing any client, an officer’s training can be an important piece of evidence in the case. However, in a client with mental illness, that training is even more important. It can change the initial interaction from a relatively simple misdemeanor offense to a much more serious offense based on the training the officer received and how he applied that training. As a defense attorney there are some specific actions you can take both pre-trial and at trial that could greatly affect the outcome of the client’s case.

History of Mental Health Policing For many years, officers in Texas received only 16 hours of training in dealing with mental health citizens as part of the police academy.4 Historically, the focus of officer training was not on de-escalation or crisis intervention tactics, but instead on controlling the scene during citizen-officer encounter.5 Officers were taught to take control of the scene, typically with

1

Montgomery, D. (2019, May 7). Sandra Bland, It Turns Out, Filmed Traffic Stop Confrontation Herself. Retrieved from https://www.nytimes.com/2019/05/07/us/sandra-bland-video-brian-encinia.html.

2 Sandra Bland Act, SB 1849, 85th Legislature. (2017).

3 Id. 4 Senate Research Center (2017, May 3). Bill Analysis, SB 1849, 85th Legislature. (2017).

5 Harris, C. & Wilson, R. (2018). Crisis Intervention Training (CIT) 40 HR, Instructor Guide, Course 1850. Austin, Texas.

authoritative voices and commanding body language.6 The need for this type of training was compounded by a movement away from institutionalization and reductions in community resources for mental health treatment which resulted in increased interactions for people with mental illness and the criminal justice system.7 The intersection of policing and mental health is not novel, but its impact is as far reaching; according to one investigation, of 990 fatal officerinvolved shootings, 25% of the deceased individuals displayed signs of mental illness.8 In the Texas case of Sandra Bland, the interaction between the trooper and Ms. Bland that fateful day in 2015 and the death of Ms. Bland three days later, made such an impact that law enforcement officer training was increased from 16 hours of de-escalation training thrown in between fire arm training and patrol techniques to 40 hours taught by experienced mental health officers and mental health professionals.9 In addition to increased training, every law enforcement agency is required to make “good faith effort to divert a person suffering a mental health crisis or suffering from the effects of substance abuse to a proper treatment center in the agency’s jurisdiction…,” for non-violent misdemeanor offenses.10 In addition to diversion procedure changes, the Sandra Bland Act made it easier for defense attorneys to secure personal recognizance bonds for their clients suffering from mental illness, by making changes to the requirements under 17.032 of the Code of Criminal Procedure.11

6

Id. Collier, L. (2014). Incarceration Nation. Monitor on Psychology, Vol. 45 (No. 9), pp.56. Retrieved from https://www.apa.org/monitor/2014/10/incarceration.

8 Harris C. Instructor Manual.

9 Sandra Bland Act. 10 Id; Texas Code of Criminal Procedure Art. 16.23.

11 Sandra Bland act; Texas Code of Criminal Procedure 17.032.

7

CIT Training In 1987, Memphis Police officers responded to a call involving a young man threatening people with a knife.12 When officers arrived, they ordered him to put down his knife and he refused; the officers then shot him multiple times, killing him.13 It was later determined the young man had a history of mental illness and from this tragic incident the Memphis Police Department CIT was born.14 As the training took hold and spread, the training was dubbed the “Memphis Model,” creating uniformed police officers with additional training in de-escalation techniques that could respond to calls involving citizens in mental health crisis, assess the situation and the individual in crisis, and decide to transport the person to a mental health facility instead of the local jail.15 This de-escalation would lead to decreased incidences of violence and injury to the individuals, the police, and the community.16 Instead of sending a patrol officer with minimal training, the Memphis Model envisioned a team approach: officers, mental health and addiction professionals, the individuals and their family and community working together to place the individual with mental health treatment instead of in a jail cell at the beginning of the criminal justice system.17 Texas previously acknowledged the need for mental health training prior to the Sandra Bland Act, and then changed the required training to include the 40-hour

12

University of Memphis. The CIT Program: Background. Retrieved from: http://www.cit.memphis.edu/overview.php?page=1.

13 Id. 14 Id. 15 Id. Retrieved from: http://www.cit.memphis.edu/overview.php?page=2.

16 CIT International, Inc. CIT is More Than Just Training…It’s a Community Program. Retrieved from: http://www.citinternational.org/What-is-CIT. 17 Id.

course in CIT with the passage of the Sandra Bland Act in 2017.18 Every officer in Texas is now required to complete 40 hours of de-escalation and CIT techniques.19 The Texas Commission on Law Enforcement (TCOLE) requires all CIT instructors to be certified TCOLE certified instructors and be a Mental Health Officer or 2-year member of the Crisis Intervention Team and a TCOLE certified Mental Health Peace Officer or CIT instructor.20 If the course is taught by a non-law enforcement person TCOLE requires the instructor be a licensed mental health professional with a master’s degree or higher as long as the professional has at least two years working with law enforcement and the course is coinstructed by a licensed peace officer.21 TCOLE urges all courses use a subject matter expert, especially when teaching the mental health diagnostic portion.22 Officers should receive instruction on the most common mental health conditions encountered by officers, effective communication skills during a mental health crisis, how to prepare emergency detention requests, jail diversion and alternative options, and how to access mental health resources in their local jurisdictions.23 At the end of the CIT training, officers have learned to slow situations down, look for indicators of mental illness, avoid crowding personal space, communicate in an understanding, non-threatening way, and build rapport with an individual. The officer who utilizes these techniques will be able to de-escalate an encounter instead of putting themselves in a position that requires an increased use of force.24 Traditionally, officers have been trained to give orders,

18

Sandra Bland Act Id. 20 Harris, C. Instructor Manual.

21 Id. 22 Id. 23 Id. 24 Harris, C. & Wilson, R. (2018). Crisis Intervention Training (CIT), Course 1850. Austin, Texas.

19

take control of a situation with force, lie or make promises that can’t be kept to elicit information from the citizen, crowd the person and use body language to project a sense of power and dominance, however, officers responding to a mental health call or a crisis call are instructed to remain calm, move slowly, remove distractions, give space and use understanding language.25 CIT training is not meant to replace the other training officers receive, but is intended as an additional tool to use when encountering a mental health crisis.26 The role of the defense attorney in cases involving CIT While our clients with mental illnesses aren’t more inclined to commit crimes, their family members or other community members who witness a mental health crisis are likely to call the police or 911 during the crisis, prompting a police presence. Making the officer the firstline responder in handling the clients with a mental health crises.27 When our clients are then approached by an officer, who should have his 40 hours of CIT training, as defense attorneys we should ask: did the officer follow his training, did his actions affect, prompt or encourage our client’s actions, could this negate an element of the offense or perhaps provide some mitigating evidence that may be useful in the punishment phase? When it comes to specific offenses such as criminal trespass, failure to identify, assaultive offenses, and drug offenses, our client’s actions related to the officer’s actions may escalate a ticket to an arrestable offense, or even a misdemeanor offense to a felony offense.28

25

Webb, F. (2015). Responding to the Mentally Ill: A Guide for Texas Peace Officers.

Margiotta, N. (2015). A Five-Legged Stool… a Model for CIT Program Success!!! How a Crisis Intervention Team Program can be More than Just Training. The Police Chief. October 2015.

27 PowerDMS. (2019, April 3). Policing the Mentally Ill: How Changes in Tactics and Best Practices Impact Your Department [Blog]. Retrieved from: https://www.powerdms.com/blog/policing-the-mentally-ill-tactics-bestpractices/ 28 Id. 26

When faced with a client charged with an offense during a mental health crisis begin by investigating the mental health of your client. This should be part of your defense preparation any way, as courts have held a failure to investigate mental health is ineffective assistance of counsel.29 Begin by talking to family members, locating and subpoenaing medical records— including jail medical records, perhaps even having your client evaluated by a psychologist or psychiatrist for a up-to-date diagnosis.30 As with any case involving a mentally ill client, the defense attorney should consider both competency evaluations and an insanity defense.31 To assist you in both case preparation and a potential trial consider retaining—or if your client can’t afford an expert, having one appointed to the case—a mitigation specialist, case manager, or social worker as they can be invaluable tools for the client.32 When it comes to documents, defense attorneys are familiar with typical medical records, including mental health hospitals or in-patient/out-patient treatment facilities; but, don’t forget to request or subpoena the Mental Health Assessment (MHA) and the Early Identification of Mental Illness (EIMI) and any other mental health records from the jail. These records are required to be kept by the jail under the Sandra Bland Act, and can be a wealth of information.33 On these records the jail staff list medications taken, if your client is suicidal, mental health issues such as hallucinations, doctors and professionals seen by your client, and other pertinent mental health information.34 As the medical history of the client is developed through records, a clearer picture may present itself regarding competency, insanity, the need or availability for a mental health

29

Porter v. McCollum,558 U.S. 30 (2009) (per curiam).

Texas Appleseed. (2015). Mental Illness, Your Client and the Criminal Law (4th ed.). Austin, TX: Texas Appleseed.

31 Id. 32 Texas Task Force on Indigent Defense. (2010). Representing the Mentally Ill Offender, an Evaluation of Advocacy Alternatives. Austin, TX: Task Force on Indigent Defense; Ake v. Oklahoma, 470 U.S. 68 (1985).

33 Sandra Bland Act 34 EIMI, MHA forms 30

personal recognizance bond. Competency is not simply the ability for the client to identify who’s who in the courtroom, it is the client’s ability “at the time of trial,” to, “ (1)..consult with [the lawyer] with a reasonable degree of rational understanding or (2) [have] a rational, as well as a factual, understanding of the proceedings against him or her.”35 The defense attorney may want to consider asking more than simply if your client knows who the judge is and what the prosecutor’s job is in the case.36 Your client should be able to assist in formulating potential defenses, locating witnesses, point out errors or mistakes in testimony or statements in the case.37 Competency concerns can be raised at any time in the criminal case.38 Chapter 46B of the Code of Criminal Procedure contains the procedures for the competency evaluations, the motions needed, the requirements of the report from the evaluator, what is required if the client can or can’t regain competency, and protections for the statements made during the evaluation by your client.39 Unlike competency, which is determined at the time of the trial of the case, insanity is the effect of your client’s mental illness on his ability to know his conduct was wrong at the time of the commission of the action.40 Insanity is an affirmative defense and must be pleaded by the defense attorney prior to trial with notice to the prosecution.41 The defense attorney must prove insanity by a preponderance of the evidence.42 An insanity defense will require an expert, doesn’t have some of the protections for the evaluations that competency has, and has specific rules governing the effect of a finding of not guilty by reason of insanity on the outcome of your client’s case.43 While notice is required, as a defense attorney you can elect to request an insanity 35

Texas Code of Criminal Procedure Art. 46B.003(a) Texas Appleseed. Mental Illness, Your Client and the Criminal Law. 37 Id. 38 Id. 39 Id. 40 Id. 41 Texas Penal Code Section 8.01; Texas Code of Criminal Procedure Art. 46C.051 42 Texas Penal Code Section 8.01 43 Texas Appleseed. Mental Illness, Your Client and the Criminal Law. 36

evaluation ex parte and wait until the evaluation and report are completed before giving notice.

This will allow you to keep the report privileged if you elect not to pursue an insanity defense. If your client is in jail pre-trial and can’t afford to bond out, it may be wise to seek their release under a 17.032 of the Texas Code of Criminal Procedure. To qualify for a personal bond for mental health reasons the client must: (1) not be charged with or been previously convicted of a violent offense as defined by the code, (2) be examined by a mental health expert that concludes in writing that your client has a mental illness, is competent to stand trial, and recommends treatment, and (3) there are services available.44 Participation in treatment is required as a condition of the bond.45 The term “violent offense” is defined in the code, and the term “conviction,” includes a client who has been charged with these offenses, convicted, placed on deferred adjudication for one of the enumerated offenses.46 The term “violent offense” however does not include assault of a peace officer.47 In addition to collecting records and information about your client, also get the information about the officers involved in the arrest. TCOLE will provide an officer’s training and certification report on request as long as the request satisfies the Texas Public Information Act.48 TCOLE will even provide a certified copy of the records, which would allow the defense attorney to overcome a hearsay objection when attempting to offer them into evidence.49 Some district attorneys’ offices are beginning to designate their police officer witnesses as experts, specifically in police training and procedures. This designation opens those witnesses up to

44

Texas Code of Criminal Procedure Art. 17.032 Id. 46 Id. 47 Id. 48 Texas Commission on Law Enforcement. (2019). Public Information Act. Retrieved from: https://www.tcole.texas.gov/content/public-information-act.

49 Id., Texas Rules of Evidence Rule 803 45

challenges as experts and other evidentiary issues under Rule 700-705 of the Texas Rules of Evidence.50 Any witness designated as an expert can testify as to their opinion as an expert only if their testimony will “assist the trier of fact.”51 The voire dire provisions in TRE 705 are some of the best way to first, test the qualifications of the officer as a CIT expert, and secondly, to determine what information the officer may have used to form his opinions. In preparation for a trial involving any client, but especially one with a mental illness, it is important to file the 702, 703, 705 motions requesting the court to conduct a hearing outside the presence of the jury on the expert’s qualifications and the evidence the officer used to formulate that opinion.52 This pre-trial preparation will allow a defense attorney defending a client with mental illness to be ready at trial to cross examine the state’s witnesses, especially in regard to their expertise on mental health policing, CIT training, and any effects of their actions on your client’s actions. There are many methods for cross-examination, but several points overlap most methods. Always ask leading questions, don’t let the witness get away with explaining his point of view. That is what redirect is for. Tell your story of the case; if you’re wanting to establish the officer instigated your client’s actions by failing to use his CIT training tell that story. If you are trying to establish that your client couldn’t commit one of the elements of the offense because of his mental illness, use the CIT officer to support and explain the crisis your client was facing.

Additionally, you can use the officer’s training and “expertise” in mental health to establish by expert testimony your client did not have the particular mens rea of the offense charged because

50

Texas Rules of Evidence Texas Rules of Evidence Rule 702, Sterling v. State, 800 S.W. 2d 513 (Tex.Cr.App. 1990).

52 Texas Rules of Evidence Rule 705 51

of their mental disease or defect.53 Finally, make sure you maintain control of the crossexamination, know the answers or don’t ask the question.

Conclusion The interactions between citizens suffering mental illness and police are increasing, and this increase is causing changes in law enforcement training and then in prosecution and defense of our mental health clients. Improvements in training requirements for officers are important to make society safer, but officers should be utilizing these new tools appropriately, accurately and effectively. As defense attorneys we educate ourselves on the latest science behind blood alcohol testing, or the techniques and psychology behind child witnesses in crimes against children cases. We should be as vigilant and knowledgeable about our clients with mental health concerns. With appropriate preparation the defense attorney, standing between the state and their client, can utilize this training to protect their client and effectively represent them in any criminal prosecution.

53

Ruffin v. State, 270 S.W. 3d.586 (Tex.Cr.App. 2008).

MORE RESOURCES 1. TCOLE Materials and Updates, CIT training is course 1850: https://www.tcole.texas.gov/content/course-curriculum-materials-and-updates-0 2. CIT Texas: https://www.texascit.org/ 3. CIT International: http://www.citinternational.org/ 4. Local Mental Health Authority locator: a. https://www.dshs.texas.gov/mhservices-search/ b. http://www.dshs.texas.gov/mhsa-crisishotline/ 5. National Alliance for Mental Illness: www.nami.org 6. Autism Spectrum specific information: www.autismspeaks.org

Attorney Competency Checklist Overt signs of mental illness are relatively easy to detect and should signal the need for a competency examination. Such signs include: ___Incoherent or rapid speech. ___Speech that is circular or takes a long time to get to the point. ___Responding to unseen stimuli (talking to self) ___Agitated motor behavior (unable to remain still, shaking, etc.) ___Limited responsiveness (not responding to questions) ___Poor hygiene.

Covert signs of mental illness that can impact competency are more difficult to detect. Individuals who are paranoid and delusional often mask their symptoms out of mistrust of you. Such signs to look for and may signal the need for a competency evaluation are: ___Starring with limited blinking. ___Strange or stiff and rigid posture. ___Avoiding eye contact. ___Being guarded/ suspicious/hostile. ___Responding to questions with “yes or no� answers, providing limited details. ___Looking around the room, indicating possible hallucinations. ___Turning their heads as if listening to something else.

If you suspect your client may be delusional or paranoid, ask the following questions in a nonjudgmental manner: 1. Everyone has special abilities. What are your special abilities or powers? Do you have a special relationship with God? 2. Are you concerned that the government or some other authority is monitoring your thoughts or behaviors?

3. Does it ever feel that people are putting thoughts in your mind against your will or are stealing your thoughts?

4. Have you ever noticed that the television or radio sends special messages to you?

If your client answers in the affirmative to any of these questions, a competency exam is indicated. Of note, it is very important that you take a non-judgmental stance with paranoid/delusion clients if you wish to obtain information. Any sign that you are judging them will be interpreted to mean that you are part of the system, conspiracy, plot, etc. that is out to harm them.

If you want to assess your client’s mental status, ask the following: What time is it?

What date is it?

How old are you?

When is your birthday?

Spell “world� backwards.

Count backwards from 30 by 3’s.

Who is the U.S. president? Who was the president before him?

What happened on 09-11-2011?

Most individuals, including mentally ill, individuals can perform adequately on the aforementioned questions/tasks. However, those who are severely disorganized will have difficulty performing these simple tasks.

Malingering Assessment: There is a subset of individuals who try to feign mental illness. Signs to look for which may indicate a need for a competency evaluation in order to rule out malingering include: ___Being hostile. ___Immediately asserting they are mentally ill without being asked. ___Claiming to hear voices or having visual hallucinations all the time. ___Speaking coherently when the topic is of interest to them but acting bizarre at other times. ___Claiming that mental illness caused them to commit the crime without being asked to describe their mental state.

Screening Form for Suicide and Medical/Mental/Developmental Impairments County: Date and Time: Name of Screening Officer: Inmate’s Name: Gender: DOB: If female, pregnant? Yes ☐No ☐Unknown ☐ Serious injury/hospitalization in last 90 days? Yes ☐No ☐If yes, describe: Currently taking any prescription medications? Yes ☐No ☐If yes, what: Any disability/chronic illness (diabetes, hypertension, etc.) Yes ☐No ☐If yes, describe: Does inmate appear to be under the influence of alcohol or drugs? Yes ☐No ☐If yes, describe: Do you have a history of drug/alcohol abuse? If yes, note substance and when last used

*Do you think you will have withdrawal symptoms from stopping the use of medications or other substances (including alcohol or drugs) while you are in jail? If yes, describe

*Have you ever had a traumatic brain injury, concussion, or loss of consciousness? Yes ☐No ☐If yes, describe: *If yes, Notify Medical or Supervisor Immediately Place inmate on suicide watch if Yes to 1a-1d or at any time jailer/supervisor believe it is warranted “Yes” Requires Comments IF YES TO 1a, 1b,1c,or 1d BELOW, NOTIFY SUPERVISOR, MAGISTRATE, AND MENTAL HEALTH IMMEDIATELY Is the inmate unable to answer questions? If yes, note why, notify supervisor and place on suicide watch until form completed.

1a. Does the arresting/transporting officer believe or has the officer received information that inmate may be at risk of suicide?

1b. Are you thinking of killing or injuring yourself today? If so, how?

1c. Have you ever attempted suicide? If so, when and how?

1d. Are you feeling hopeless or have nothing to look forward to?

IF YES to 2-12 BELOW, NOTIFY SUPERVISOR AND MAGISTRATE. Notify Mental Health when warranted 2. Do you hear any noises or voices other people don’t seem to hear?

3. Do you currently believe that someone can control your mind or that other people can know your thoughts or read your mind?

4. Prior to arrest, did you feel down, depressed, or have little interest or pleasure in doing things?

5. Do you have nightmares, flashbacks or repeated thoughts or feelings related to PTSD or something terrible from your past?

6. Are you worried someone might hurt or kill you? If female, ask if they fear someone close to them.

7. Are you extremely worried you will lose your job, position, spouse, significant other, custody of your children due to arrest?

YES

NO

8. Have you ever received services for emotional or mental health problems?

9. Have you been in a hospital for emotional/mental health in the last year?

10. If yes to 8 or 9, do you know your diagnosis? If no, put “Does not know” in comments.

11. In school, were you ever told by teachers that you had difficulty learning?

12. Have you lost / gained a lot of weight in the last few weeks without trying (at least 5lbs.)?

IF YES TO 13-16 BELOW, NOTIFY SUPERVISOR, MAGISTRATE, AND MENTAL HEALTH IMMEDIATELY 13. Does inmate show signs of depression (sadness, irritability, emotional flatness)?

14. Does inmate display any unusual behavior, or act or talk strange (cannot focus attention, hearing or seeing things that are not there)?

15. Is the inmate incoherent, disoriented or showing signs of mental illness?

16. Inmate has visible signs of recent self-harm (cuts or ligature marks)?

Additional Comments (Note CCQ Match here): Magistrate Notification Date and Time: Electronic or Written (Circle)

Supervisor Signature, Date and Time:

Mental Health Notification Date and Time:

Medical Notification Date and Time:

MENTAL HEALTH ASSESSMENT

SO:

Name:

DOB:

D Mental Illness/ Mental Retardation

D No Mental Illness/ Mental Retardation

D Meets Inclusion Criteria for MI/MR

D Does Not Meet Inclusion Criteria

Q Chronic in Nature

•

D Will deteriorate if untreated

Not Chronic in Nature

D Will not deteriorate if untreated

Previous

HX/TX

Current

Meds/Med Compliance Symptoms (at time of

interview)

Diagnosis

Recommended Treatment D Hospitalization for stabilization of symptoms

• Psychiatric/Medication Evaluation referral to Facility Psychiatrist D 1:1 Supportive Contact/ Counseling • Group Therapy (If Applicable) D Drug/Alcohol treatment •

Other:

D Competency Evaluation Recommended

QJvlHP Signature:

Date:

DO NOT FILE with the court record information is confidential

STATE OF TEXAS

COUNTY OF _____

_

____________________ In the matter of the condition of: Residential Address: Date of Birth: Other identifying information:

___________________ __________________ __________________ __________________

Statement of Emergency Detention by a Law Enforcement Officer Agency: __________________ Officer: __________________ I am a law enforcement officer and have reason to believe, and do believe that: __________________, is mentally ill and, by reason of that mental illness, evidences behavior with a substantial risk of serious harm to self or to others unless the person is immediately restrained; Otherwise set forth in the Texas Health and Safety Code 573.001 My belief is based on specific and recent behavior; (acts, attempts, threats or omissions) evidence of severe emotional distress and/or deterioration in mental condition. This behavior was observed by me or reliably reported to me as stated below: When: __________________________________________________________ Where: __________________________________________________________ Description: __________________________________________________________ __________________________________________________________ __________________________________________________________ Witnesses to the behavior deemed dangerous (including officers) Name

Relation

Address

Phone

The individual,___________________was detained at (name of facility),__________________ on (date)____ at (time)____________ Signature of Officer

Agency

Printed name

Telephone

Signature of receiving agent

Facility address

Printed name

Telephone

HEALTH AND SAFETY CODE TITLE 7. MENTAL HEALTH AND INTELLECTUAL DISABILITY SUBTITLE C. TEXAS MENTAL HEALTH CODE CHAPTER 573. EMERGENCY DETENTION SUBCHAPTER A. APPREHENSION BY PEACE OFFICER OR TRANSPORTATION FOR EMERGENCY DETENTION BY GUARDIAN This section was amended by the 85th Legislature. Pending publication of the current statutes, see S.B. 344, 85th Legislature, Regular Session, for amendments affecting this section.

Sec. 573.001. APPREHENSION BY PEACE OFFICER WITHOUT WARRANT. (a) A peace officer, without a warrant, may take a person into custody if the officer: (1) has reason to believe and does believe that: (A) the person is a person with mental illness; and (B) because of that mental illness there is a substantial risk of serious harm to the person or to others unless the person is immediately restrained; and (2) believes that there is not sufficient time to obtain a warrant before taking the person into custody. (b) A substantial risk of serious harm to the person or others under Subsection (a)(1)(B) may be demonstrated by: (1) the person's behavior; or (2) evidence of severe emotional distress and deterioration in the person's mental condition to the extent that the person cannot remain at liberty. (c) The peace officer may form the belief that the person meets the criteria for apprehension: (1) from a representation of a credible person; or (2) on the basis of the conduct of the apprehended person or the circumstances under which the apprehended person is found. (d) A peace officer who takes a person into custody under Subsection (a) shall immediately transport the apprehended person to:

(1)

the nearest appropriate inpatient mental health facility;

or (2) a mental health facility deemed suitable by the local mental health authority, if an appropriate inpatient mental health facility is not available. (e) A jail or similar detention facility may not be deemed suitable except in an extreme emergency. (f) A person detained in a jail or a nonmedical facility shall be kept separate from any person who is charged with or convicted of a crime. (g) A peace officer who takes a person into custody under Subsection (a) shall immediately inform the person orally in simple, nontechnical terms: (1) of the reason for the detention; and (2) that a staff member of the facility will inform the person of the person's rights within 24 hours after the time the person is admitted to a facility, as provided by Section 573.025(b). (h) A peace officer who takes a person into custody under Subsection (a) may immediately seize any firearm found in possession of the person.

After seizing a firearm under this subsection, the peace officer shall comply with the requirements of Article 18.191, Code of Criminal Procedure.

Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1, 1991.

Amended by Acts 2001, 77th Leg., ch. 367, Sec. 5, eff. Sept. 1, 2001.

Amended by: Acts 2013, 83rd Leg., R.S., Ch. 318 (H.B. 1738), Sec. 1, eff.

September 1, 2013.

Acts 2013, 83rd Leg., R.S., Ch. 776 (S.B. 1189), Sec. 1, eff.

September 1, 2013.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1366, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 1236 (S.B. 1296), Sec. 21.001(33), eff. September 1, 2015.

This section was amended by the 85th Legislature. Pending publication of the current statutes, see S.B. 344, 85th Legislature, Regular Session, for amendments affecting this section.

Sec. 573.002. PEACE OFFICER'S NOTIFICATION OF DETENTION. (a) A peace officer shall immediately file with a facility a notification of detention after transporting a person to that facility in accordance with Section 573.001. (b) The notification of detention must contain: (1) a statement that the officer has reason to believe and does believe that the person evidences mental illness; (2) a statement that the officer has reason to believe and does believe that the person evidences a substantial risk of serious harm to the person or others; (3) a specific description of the risk of harm; (4) a statement that the officer has reason to believe and does believe that the risk of harm is imminent unless the person is immediately restrained; (5) a statement that the officer's beliefs are derived from specific recent behavior, overt acts, attempts, or threats that were observed by or reliably reported to the officer; (6) a detailed description of the specific behavior, acts, attempts, or threats; and (7) the name and relationship to the apprehended person of any person who reported or observed the behavior, acts, attempts, or threats. (c) The facility where the person is detained shall include in the detained person's clinical file the notification of detention described by this section. (d) The peace officer shall give the notification of detention on the following form:

Notification--Emergency Detention NO. ____________________ DATE:_______________ TIME:_______________ THE STATE OF TEXAS FOR THE BEST INTEREST AND PROTECTION OF: ______________________________________ NOTIFICATION OF EMERGENCY DETENTION Now comes _____________________________, a peace officer with (name of agency) _____________________________, of the State of Texas, and states as follows: 1. I have reason to believe and do believe that (name of person to be detained) __________________________ evidences mental illness.

2. I have reason to believe and do believe that the above-named person evidences a substantial risk of serious harm to himself/herself or others based upon the following: __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________ 3. I have reason to believe and do believe that the above risk of harm is imminent unless the above-named person is immediately restrained.

4. My beliefs are based upon the following recent behavior, overt acts, attempts, statements, or threats observed by me or reliably reported to me: __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________

5.

The names, addresses, and relationship to the above-named person of

those persons who reported or observed recent behavior, acts, attempts, statements, or threats of the above-named person are (if applicable): __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________ For the above reasons, I present this notification to seek temporary admission to the (name of facility) _________________________ inpatient mental health facility or hospital facility for the detention of (name of person to be detained) __________________________ on an emergency basis.

6. Was the person restrained in any way? Yes â–Ą No â–Ą _________________________ BADGE NO. _____________________ PEACE OFFICER'S SIGNATURE Address: _________________________ Zip Code: ____________________ Telephone: ______________________

A mental health facility or hospital emergency department may not require a peace officer to execute any form other than this form as a predicate to accepting for temporary admission a person detained under Section 573.001, Texas Health and Safety Code. (e) A mental health facility or hospital emergency department may not require a peace officer to execute any form other than the form provided by Subsection (d) as a predicate to accepting for temporary admission a person detained under Section 573.001.

Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1, 1991.

Amended by: Acts 2013, 83rd Leg., R.S., Ch. 318 (H.B. 1738), Sec. 2, eff.

September 1, 2013.

Sec. 573.003. TRANSPORTATION FOR EMERGENCY DETENTION BY GUARDIAN. (a) A guardian of the person of a ward who is 18 years of age or older, without the assistance of a peace officer, may transport the ward to an inpatient mental health facility for a preliminary examination in accordance with Section 573.021 if the guardian has reason to believe and does believe that: (1) the ward is a person with mental illness; and (2) because of that mental illness there is a substantial risk of serious harm to the ward or to others unless the ward is immediately restrained. (b) A substantial risk of serious harm to the ward or others under Subsection (a)(2) may be demonstrated by: (1) the ward's behavior; or (2) evidence of severe emotional distress and deterioration in the ward's mental condition to the extent that the ward cannot remain at liberty.

Added by Acts 2003, 78th Leg., ch. 692, Sec. 6, eff. Sept. 1, 2003.

Amended by: Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1367, eff. April 2, 2015.

Sec. 573.004. GUARDIAN'S APPLICATION FOR EMERGENCY DETENTION. (a) After transporting a ward to a facility under Section 573.003, a guardian shall immediately file an application for detention with the facility. (b) The application for detention must contain: (1) a statement that the guardian has reason to believe and does believe that the ward evidences mental illness; (2) a statement that the guardian has reason to believe and does believe that the ward evidences a substantial risk of serious harm to the ward or others; (3) (4)

a specific description of the risk of harm; a statement that the guardian has reason to believe and

does believe that the risk of harm is imminent unless the ward is immediately restrained; (5) a statement that the guardian's beliefs are derived from specific recent behavior, overt acts, attempts, or threats that were observed by the guardian; and (6) a detailed description of the specific behavior, acts, attempts, or threats. (c) The guardian shall immediately provide written notice of the filing of an application under this section to the court that granted the guardianship.

Added by Acts 2003, 78th Leg., ch. 692, Sec. 6, eff. Sept. 1, 2003.