Decision-making in criminal defense: an empirical study of insanity pleas and the impact of doubted client competence.

Author:Bonnie, Richard J.

This Article presents an empirical study of attorney-client decision-making in a sample of 139 criminal cases in which the key decision was whether to pursue a clinically supported insanity defense. The study is of interest for two reasons: first, it augments the general literature on attorney-client interactions in criminal defense;(1) second, it sheds light on the relation between client involvement in decisions regarding the defense or disposition of criminal cases and defense attorneys' perceptions of their clients' competence.

The competence of criminal defendants to make decisions is of particular importance in the wake of the Supreme Court's 1993 decision in Godinez v. Moran.(2) In holding that the constitutional standard for competence to plead guilty is the same as the standard for competence to stand trial, the Court pointed out that defendants are called upon to make numerous decisions in the course of a criminal case, whether or not the case is tried.(3) To our knowledge, this article presents the only systematic study of the relation between client competence, as perceived by their attorneys, and decision-making participation.


    In previous studies, we have investigated attorney-client interactions in random samples of criminal prosecutions and in a sample of tried cases.(4) Three main findings emerged from these studies. First, more than half of the defendants are described by their attorneys as passive participants in the overall defense,(5) with about one in ten described as uninvolved or "extremely passive."(6) Second, about ten percent of clients are described by their attorneys as recalcitrant, i.e., as rarely or never accepting the attorneys' advice.(7) Interestingly, passivity and recalcitrance are reported less frequently when attorneys are asked to focus specifically on situations in which the law requires personal client participation, such as the decision to plead guilty or, in tried cases, the decision to waive a jury trial, than when attorneys are asked to characterize clients' overall participation in decision-making.(8) The third main finding emerging from our previous research is that attorneys have some doubt about the mental capacity of their clients in eight to fifteen percent of felony cases, although mental health assessments are sought in less than half of these cases.(9) The prevalence of reported client passivity is substantially higher among clients whose competence is doubted than among clients whose competence is unquestioned by their attorneys.(10)


    The rate of perceived mental impairment in the general defendant populations sampled in our previous studies was too low to permit a thorough examination of the relation between client mental impairment (as perceived by their attorneys) and attorney-client interaction. Because the rate of perceived impairment is likely to be substantially higher in a population of defendants with clinically supported insanity claims, these cases present an opportunity to study the impact of perceived impairment on the decision-making process.(11)

    Decisions concerning the insanity defense also provide an interesting context for studying broad questions relating to the allocation of decision-making prerogatives in criminal defense. It is clear, for example, that attorneys are obligated to adhere to the instructions of competent clients who refuse to plead insanity.(12) It is not clear, however, that this norm entails the further obligation to facilitate client participation in decisions to pursue, or not to pursue, the defense. Thus, a study of insanity plea decisions presents a unique opportunity to explore the practical meaning of the legal norm of client autonomy in criminal defense.

    1. METHOD


    The Center for Forensic Psychiatry (CFP) in Ann Arbor, Michigan, is a state-operated forensic hospital that conducts pre-trial evaluations for courts throughout the state. The CFP's computerized database was utilized to identify all cases for calendar years 1990 through 1992 in which the CFP's forensic examiner had returned a clinical opinion supportive of the insanity defense.(13) One hundred seventy-six such cases were identified. Data were retrieved from CFP case records regarding client characteristics (e.g., demographics, diagnostic and treatment information) and historical variables of interest (e.g., prior criminal record, history of prior psychiatric treatment). Information regarding attorney-client interaction and decision-making was obtained by CFP staff members in telephone interviews with the defendants' attorneys.(14)


    Archival and interview data were entered on an eighteen-page research protocol designed specifically for this study. Two pages were devoted to data from the CFP case record, while the remainder of the protocol recorded attorneys' responses to inquiries about (i) case outcomes; (ii) strategies; (iii) attorneys' perceptions of clients' attitudes, competence, and level of participation in case decisions; and (iv) interactions with clients about whether to pursue the not guilty by reason of insanity (NGRI) defense made available by the CFP examiner's report.


    The telephone interviews were conducted from duly 1991 through December 1993. Beginning with cases evaluated at the CFP during the 1990 calendar year, successive waves of about twenty cases each were selected for follow-up. A letter was sent on CFP letterhead to the attorney's office; it described the study and advised the attorney that a CFP staff member would be calling in the near future to conduct a telephone interview about the case. Initial phone contacts attempted either to complete the telephone interview or to set a specific date and time for a subsequent call during which the attorney could be debriefed regarding the case. In most cases, multiple phone calls were required to arrange the interview. As protocols were nearing completion for one wave of mailings, another group of letters was sent out.

    Protocols were completed for 139 of the 176 cases (77%). Incomplete protocols typically resulted from difficulty reaching an attorney who had changed offices since the CFP evaluation; in a few cases the attorney was contacted but reported little or no memory for specific details and impressions about the case. Based on information recorded in the CFP records (e.g., offense, defendant's diagnosis, demographic characteristics), the completed cases were not significantly different from the uncompleted ones.

    1. RESULTS


    The 139 defendants whose attorneys were debriefed were predominately white (69%) males (87%) who were charged with a felony (93%) and were unemployed (77%) at the time of arrest. Most (73%) had been previously convicted of a felony charge and had previously received treatment in a psychiatric hospital (82%) on one or more occasions.

    As expected with this sample, the overwhelming majority (n = 118, 85%) received a primary diagnosis of a major psychiatric disorder: schizophrenia (n = 77, 55%); mood disorder (n = 25, 18%); delusional disorder (n = 9, 6%); or other psychosis (n = 7, 5%). Other primary diagnoses included: organic disorders (n = 8, 6%); mental retardation (n = 4, 3%); alcohol/drug abuse or dependence (n = 3, 2%); and autistic disorder, anxiety disorder, adjustment disorder, or organic personality disorder (1 each). Primary diagnosis for one case was missing.


    These defendants were referred to the CFP for pretrial evaluation of their criminal responsibility (100%) and their competence to stand trial (89%).(15) Of those referred for competence evaluation, more than half (64%) were found by the examiners to be clearly competent, some (6%) were believed to be marginally competent, and the remainder (30%) were found to be incompetent at the time of evaluation. Most defendants had been hospitalized at some point during the pretrial phase of their cases, either to restore competence (37%) or for other psychiatric treatment (32%). Interestingly, most of the defendants (90%) were on medication, usually anti-psychotic drugs, during the evaluation.

    Based on the written CFP Report, it appears that most (85%) of the defendants cooperated during the evaluation. Among the 21 defendants who were uncooperative, 13 refused to answer any questions, 11 were thought to have concealed pathological symptoms, and 4 were thought to have malingered (i.e., fabricated psychiatric symptoms).


    Attorneys were asked to rate the client's participation in the decision to seek the CFP evaluations. In most cases, the client willingly...

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