Representing Clients Who Are Mentally Ill or Mentally Retarded

AuthorAnthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
ProfessionUniversity Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
Pages245-269
245
CHAPTER 12
REPRESENTING CLIENTS
WHO ARE MENTALLY
ILL OR MENTALLY
RETARDED
PART A. OVERVIEW: STAGES AT WHICH
THE RESPONDENT’S MENTAL PROBLEMS
WILL BE RELEVANT
§ 12.01 The Initial Interview and Subsequent
Client Counseling
As explained in § 5.03 supra, the initial i nterview of the child should be conducted out-
side the presence of the child’s parents, siblings, or other relatives. There is far too g reat
a chance that the child will shape his or her account of the events to please a parent or
relative or that the fami ly member will intrude his or her own personal ity and biases into
the interview. The same is true of all subsequent meetings with the client for the pur-
poses of explaini ng the case, preparing the client’s testimony, or counseling the client on
fundamental issues such as whether to plead guilty or go to t rial.
This general rule may need to be modified in the case of some severely mentally
ill or mentally retarded clients. If the client’s mental problems are causing problems in
attorney-client communications (either because of the client’s language problems or com-
prehension difficu lties), it may aid communication to bring in a relative or a friend who
has had longtime dealings with the client. In these circumstances cou nsel will need to
balance the potential benefits of such a procedure against the risks of biasing the results
of the interview or client counseling session.
An alternative to a family member is a mental health professional of some sort—a
psychiatrist , psychologist, neurologist, psychiatr ic social worker, and so fort h. When the
child has a previous relationsh ip with such a professional, counsel should consu lt that
professional and consider bringing the professional into some of the meetings between
the client and counsel. In any event, counsel should seek the professional’s assistance in
246 | Trial M anual for Defense Attorney s in Juvenile Delinquency Ca ses
understanding t he client and the professional’s advice concerning problems and the best
techniques for communicating with the client. If the client has no previous relationship
with a professional, counsel should consider retai ning a professional specially to assist
counsel in understandi ng and communicating w ith the client as well as for other pur-
poses in the case. Dif ficulties and possible adverse consequences of the decision to bring
a new mental health professional into a case are discussed in §§ 12.08–12.10 infra.
Whether or not a family member or a mental health professional is brought in to
assist, counsel who is representing a client with mental problems will obviously need to
take special pains and precautions in evaluating t he client’s perceptions, recollections,
and interpretations of pertinent facts, in eliciting t hose facts through i nterviewing, in
preparing the client to testify or for other court proceedings and for interviews with
court personnel, and in ex plaining and ta lking th rough with the client all of the mat-
ters that bear on decisions that the client must make (such as whether to plead guilty
or contest guilt) and decisions in which the client and counsel both participate (such as
whether certain wit nesses should be called to testif y). Mental illness and mental limita-
tions potentially af fect every aspect of the client’s comprehension and behavior, often in
subtle and nonobvious ways, and so potentially affect every aspect of the client’s inter-
action with counsel. I n the initial interview and subsequent meetings wit h a mentally
ill or mentally retarded client, counsel should be constantly attentive to the areas and
dimensions of the client’s impairment. If counsel decides at some point to apply for court
funds for retention of a psych iatrist or psychologist (see § 12.09 infra), counsel’s previous
observations may provide the fact s necessary to support t he application.
§ 12.02 The Initial He aring
In some jurisdictions judges can order a mental examination of the client at the Ini-
tial Hearing. See § 12.11 infra. As explai ned in § 12.12 infra, counsel should ordinarily
oppose such examinations.
If an exami nation is held, counsel may find that the results are being used against the
respondent at the detention hearing. The respondent’s psychiatric disorders may be cited
by the prosecutor, probation officer, or judge as one of the bases for finding t hat pretrial
detention is warranted by a danger to self or others. See § 4.17 supra. Conversely, a respon-
dent’s mental problems may provide counsel with arguments aga inst detention—or against
detention in particular facilities— especially if those problems would make the respondent
highly vul nerable to physical or emotional abuse in t he facility or if detention would inter-
rupt or adversely affect an ongoing course of therapy in a community-based program.
Counsel also must be cogni zant of the fact that some clients will prefer a hospital sett ing
to a juvenile detention facilit y or will benefit more from detention in the former than f rom
detention in the latter. Thus in cases in which t he court decides to order secure detention
because of the nature of the offense or the respondent’s prior record, a client with mental
problems may direct counsel to seek a court-ordered mental exam ination on an in-patient
basis. Occasionally, counsel may want to give independent consideration to this possibil ity,
although it will very seldom be a wise course of action except in the case of a client with a

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