• '-Oft! - Voice For The Defense Online

Conclusion
In a decision of the United States District Court for the District
of Columbia, O’Beirne v. Overholser, which was later reversed,
Judge Holtzoff attacked the defense counsel’s choice to seek an
incompetency order for a misdemeanant by saying:
It may not be inappropriate to observe that counsel
for defendants in borderline cases in which the offense
is of a type that would carry at most a short term of
im pris on ment, frequently do their clients a disservice
when they request a mental examination. Often the
out come of the examination is that the defendant is
found competent and yet will have been incarcerated
for several months in the criminal ward of a mental hospi
tal amidst madmen while the study of his mental state
is being conducted; and if he is eventually convicted and
sentenced to imprisonment, his incarceration is prolonged
that much longer. On the other hand, if he is
ac quit ted on the ground of insanity, he runs the risk
of being incarcerated for a much longer period than
might have been the case if he were sentenced to a short
term in jail. Counsel for defendants are advocates and
must have the courage to represent their clients’ best
in ter ests within the orbit of ethical practice. . . . If the
de fen dant is actually in need of mental treatment, his
coun sel would serve him better by securing treatment for
him on the civil side of a mental institution, possibly as
a voluntary patient, if and when an opportunity to do so
arises. Mental examinations and the defense of insanity
are better reserved for capital cases, as well as for cases
in which the defendant runs the risk of being sentenced
to imprisonment for a long term. 33
Dr. John King has remarked about this quote that the obser
va tion is unremarkable to any attorney who has “wrestled”
with this difficult issue. 34 What is remarkable is that there are
at tor neys who mistakenly neglect advocating for their mentally
ill client’s best interest because they believe that they lack the
dis cre tion to choose whether or not to motion for a competency
evaluation.
The Texas Bar rules and the Code of Criminal Procedure
are both constructed to allow for attorney discretion when confronted
with a defendant who might need a competency eval uation.
Using this discretion by actually weighing what is in the best
interest of the client might call for the defense counsel to avoid
the competency issue. This is especially true when the charge
is minor, such as Criminal Trespass, a class B misdemeanor. As
the stories of Shiela, Richard, and Bobby illustrate, there are
some situations where the answer to what is in the client’s best
in ter est is not a routine motion for a competency evaluation.
In these instances, forgoing the competency evaluation and
buy ing the client more time outside state custody is in those
de fen dants’ best interest, and should be considered side by side
with the issue of competency.
Notes
1. Jennifer S. Bard, Re-Arranging Deck Chairs on the Titanic: Why the In carceration
of Individuals with Mental Illness Violates Public Health, Ethical, and Consti
tutional Principles and Therefore Cannot Be Made Right By Piecemeal Changes to
the Insanity Defense, 5 Hous. J. Health L. & Pol’y 1, 42 (2005) (emphasizing that
the majority of the seriously ill are incarcerated for minor misdemeanors).
2. Tex. Penal Code Ann. §12.22 (Vernon 2009).
3. Criswell v. State, 278 S.W.3d 455, 457–58 (Tex. App.—Houston [14th
Dist.] 2009) (stating that a conviction obtained while the defendant is legally
in com petent violates due process of law).
4. Doris J. James & Lauren E. Glaze, Mental Health Problems of Prison and
Jail Inmates (2006), at 1, http://www.ojp.usdoj.gov/bjs/pub/pdf/mhppji.pdf.
5. Marc A. Levin, “Expand Program to Divert Mentally Ill from Prisons:
New Approach Can Save Money, Improve Safety,” Houston Chronicle, April
23, 2009, at B11, available at http://www.chron.com/CDA/archives/archive.
mpl?id=2009_4728379.
6. Ante, at n. 5.
7. John D. King, Candor, Zeal, and the Substitution of Judgment: Ethics and
the Mentally Ill Criminal Defendant, 58 Am. U.L. Rev. 207, 212 (2008) (stating
that a nearly five-fold increase in the number of mentally ill incarcerations has
occurred over the last 50 years, with a national incarceration rate of 162 per
100,000 inmates in the mid-1950s and a current incarceration rate that is over
700 per 100,000 inmates).
8. Ante, at n. 7 (stating that the institutionalization rate of people in mental
hospitals has dropped from 339 to 20 per 100,000 over the last 50 years, and
also that the shift from institutionalization to incarceration of the mentally ill
in the United States is well documented).
9. James and Glaze, ante note 4, at 1.
10. Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1-2) (Vernon 2009)(This is
often referred to as the Dusky standard since the standard was formulated by
the Supreme Court in Dusky v. United States, 362 U.S. 402, 402 (1960). However,
the Dusky standard requires both (1) and (2), while the Texas standard only
re quires either (1) or (2) to establish competency).
11. Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon 2009).
12. Tex. Code Crim. Proc. Ann. art. 46B.004(b) (Vernon 2009) (“If evidence
suggesting the defendant may be incompetent to stand trial comes to the attention
of the court, the court on its own motion shall suggest that the defendant may
be incompetent to stand trial”).
13. Tex. Code Crim. Proc. Ann. art. 46B.004(a) (Vernon 2009) (“Either party
may suggest by motion, or the trial court may suggest on its own motion, that
the defendant may be incompetent to stand trial”).
14. Pate v. Robinson, 383 U.S. 375, 378 (1966).
15. Godinez v. Moran, 509 U.S. 389, 396 (1993); Tex. Code Crim. Proc. Ann.
art. 26.13(b) (Vernon 2009).
16. Tex. Code Crim. Proc. Ann. art. 46B.073(b) (Vernon 2009); Brian D.
Shannon & Daniel H. Benson, Texas Criminal Procedure and the Offender with
Mental Illness: An Analysis and Guide 88 (4th ed., National Alliance on Mental
Illness 2008).
17. Tex. Code Crim. Proc. Ann. art. 46B.0095(a) (Vernon 2009).
18. Texas Disciplinary Rules of Professional Conduct, Rule 1.02(g), 11 (2005)
(emphasis added).
19. Texas Disciplinary Rules of Professional Conduct, Rule 3.03(a)(1), 59