Autonomy versus a client's best interests: the defense lawyer's dilemma when mentally ill clients seek to control their defense.

• Author: Ross, Josephine

1. INTRODUCTION

   The prosecution of "Unabomber" Theodore Kaczynski drew this country's attention to the difficult question of whether a mentally ill client should be able to prevent his lawyers from introducing his mental illness in his defense.(1) Mr. Kaczynski, who was found competent to stand trial despite a diagnosis of paranoid schizophrenia, obdurately resisted his lawyers' plans to portray him as mentally ill during the guilt and sentencing phases of the trial.(2) In his lawyers' opinion, a mental illness defense offered the only hope that Mr. Kaczynski would avoid the death penalty.(3) The lawyers faced a difficult dilemma. By allowing Mr. Kaczynski to waive his best defense, they would give their client autonomy--after all, it was his life. On the other hand, the client's decision to forego his best defense was suicidal and, thus, an incompetent decision.(4) His lawyers chose his best interests over his autonomy, asserting that they had a professional obligation to present the case in such a way as to maximize his chance of success on the merits.(5)

   Should a criminal defense practitioner raise the defense of nonresponsibility against the client's wishes when the practitioner believes a mental illness is preventing the client from following the sound advice of her attorney? Several years ago, I handled a criminal case where I believed my client was mentally ill and that her misdeed was caused by an illness over which she had no control. What clearly seemed the client's best interests lay contrary to her express wishes. I believed that it was in my client's best interests to raise mental illness concerns and, ultimately, to raise a nonresponsibility defense.(6) Yet my client had no conception of her mental illness. Moreover, she clung to a misguided belief that she would win at trial on the merits of the case and be exonerated of any wrongdoing. In the end, I took the unorthodox approach of substituting my judgment for hers, and I asserted mental illness as a defense to the charges. The ultimate result was good--the case was dismissed--but not until my client had spent time locked up in a mental institution for an evaluation. To this day, I am unsure if I made the best ethical decision when I overruled my client's choice of defense.

   By writing about a particular case, I hope scholars will glean the complicated nature of lawyer decisionmaking. I also hope to write something other defense attorneys will consult when facing similar dilemmas. No ethical code or rule dictates which course a criminal defense attorney must take when a client, her judgment apparently clouded by mental illness, resists following counsel's advice. This is one of those questions that is "at the margins" of ethical decisionmaking.(7) Paul Tremblay recently wrote that there should be a body of work created to help guide practitioners in making the multitude of decisions they make in these margins. He posits that "the only true teaching of ethics at the margins will come within real cases."(8) Tremblay's work can be seen as part of a growing body of clinical scholarship that recognizes that theory is more likely to be right when it emerges out of the practice of law.(9)

   The very act of substituting judgment negates a client's autonomy. Thus, even as I advocate surrogate decisionmaking as an option for mentally impaired clients, I recognize the necessity of limiting its scope. At a minimum, criminal defense lawyers should reserve surrogate decisionmaking for those occasions when a mentally ill client's best interests outweigh the client's right to autonomous decisionmaking.(10) Once a lawyer determines a client's judgment is impaired, a lawyer must weigh the client's best interests against the client's interest in self-determination. Inexorably, lawyers will be guided by their own values when they decide whether to substitute judgment for a mentally impaired client. Thus, Mr. Kaczynski's appointed lawyers concluded that Mr. Kaczynski's right to autonomous decisionmaking was outweighed by his interest in having his lawyers save his life by using a mental illness defense--albeit not an insanity defense--while another lawyer proposed to represent him exactly as he wished.(11)

   When I weighed my client's best interests against her right to autonomy, undoubtedly my definition of best interests was a product of my own values, as was the weight I gave to my client's autonomy. I wanted to help this woman get her life back on track and I thought it unfair that she should be branded a criminal. Generally a rights-based lawyer, I found myself pulled by what could be called an ethic of care.(12) Still a zealous advocate, still a protector of rights, I defined her best interests more broadly than most rights-based lawyers, looking at long term therapeutic interests as well as a good outcome for the criminal charges. I valued her autonomy less than another lawyer might because, in my opinion, the disease was destroying her life, disconnecting her from people and from reality. Because I viewed the illness as controlling her decisions, I placed less value on her autonomous decisionmaking. It is inherent in the nature of surrogate decisionmaking that a lawyer's own personal philosophy will influence the lawyer's decision to substitute her judgment for a mentally ill client.(13) It thus follows that a principled exercise of surrogate decisionmaking requires lawyers to examine their own attitudes and values.

   Of the small amount of scholarship addressing whether a lawyer may waive or assert nonresponsibility over a client's objection, most writers oppose surrogate decisionmaking and take the position that, once the client has been found competent to stand trial, the lawyer is bound to accord the client full autonomy in decisionmaking for important decisions such as whether to waive the nonresponsibility defense.(14) One notable exception is Richard Bonnie's seminal article championing surrogate decisionmaking for marginally competent clients who meet the low threshold of competency to stand trial but whose decisions are nevertheless impaired.(15) Bonnie's work is aimed at changing the theory of competency within the legal system to recognize a large class of marginally mentally ill clients who are fit to stand trial under the constitutional standards enunciated in Dusky and Drope, but whose decisionmaking abilities are nevertheless impaired.(16) Bonnie's theoretical proposition is that the law ought to distinguish between "decisionally incompetent" clients and those unfit for trial because they are "incompetent to assist counsel." For the purposes of this Essay, it is immaterial whether readers disagree with Bonnie and insist that, in a perfect system, judges should prevent the trial of all mentally ill defendants when their lawyers declare them unfit to make important decisions such as whether to assert or waive a nonresponsibility defense.(17) As the system now functions, defense lawyers occasionally find themselves representing people adjudicated competent to stand trial who are incompetent to make decisions in their cases.

   Bonnie's work stops short of addressing how a defense lawyer decides if surrogate decisionmaking is the right action to take. In Bonnie's proposed system, a judge serves as gatekeeper. The lawyer who believes his client's decisions are irrational informs a judge who, in turn, determines whether surrogate decisionmaking is appropriate in that case. This Essay examines the benefits and pitfalls of delegating this ethical decision to a judge. Unlike Bonnie, I am primarily concerned with how lawyers should practice within the current system. I am interested in surrogate decisionmaking for both marginally incompetent clients, like Mr. Kaczynski, and for fundamentally incompetent clients like John Salvi whose lawyers believe the judge should have found unfit to face prosecution.(18) This Essay focuses on the difficult and contextual questions facing defense lawyers who are considering overruling their client's irrational decisions.

   My case, like the Kaczynski and the Salvi cases, portrays the confusion that reigns in the criminal courts over the allocation of decisionmaking for mentally ill defendants deemed competent to stand trial. The lack of guidelines in this area--shocking given the prevalence of these issues for practicing defense attorneys--points to larger unresolved questions such as the meaning of competency to stand trial, the value that should be given to autonomous client decisionmaking for mentally ill clients, and, at core, ambivalence over whether to assess blame against the mentally ill.

   My case haunts me still. I am troubled now as I was then by the lack of options available to people who fall into the criminal justice system needing help--skillful psychiatric help--rather than adjudication or punishment.(19) I am troubled as well by the almost impossible choices defense attorneys face when mental illness causes clients to make bad decisions.(20)

   Part II of this Essay describes the facts of the case I handled in which I believed the client's mental illness was affecting the way she wished the case tried. I also describe and weigh the three options available to me as her defense lawyer: (1) following my client's wishes; (2) challenging my client's competency to stand trial; and (3) raising the nonresponsibility defense. Part III raises and addresses the paternalism inherent in surrogate decisionmaking. First, I investigate my reasons for substituting my judgment for that of my client. Second, I consider whether my decisionmaking in this case was influenced by an ethic of care orientation. I examine both the manner in which lawyers tend to make these decisions, and the manner in which we as lawyers should make these decisions. Finally, Part IV proposes changes in the system to alleviate some of the difficulties illustrated by the case.

2. A REAL CASE

   1. Meeting Lee Teplinski

      When Lee Teplinski(21) walked into...