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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
(2005). 20. LaHood v. State, 171 S.W.3d 613, 618 (Tex. App.—Houston [14th Dist.] 2005), pet ref ’d (citing Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon 2006)). 21. King, ante note 7, at 215–26. 22. King, ante note 7, at 219. 23. Texas Disciplinary Rules of Professional Conduct, Rule 3.03(a)(1) Comment 2, 60 (2005) (quoting that there are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation, and in fer ring that there are circumstances where that is not the case). 24. Texas Disciplinary Rules of Professional Conduct, Preamble: A Lawyer’s Responsibilities (7), 5 (2005) (stating that within the framework of these Rules many difficult issues of professional discretion can arise, and that the Rules and their Comments constitute a body of principles upon which the lawyer can rely for guidance in resolving such issues through the exercise of sensitive pro fessional and moral judgment). 25. A.B.A. Crim. Justice Mental Health Standards 7-4.2(c) (1989). 26. King, ante note 7, at 234 (commenting that such an approach is not jus tified by history, necessity, or logic and undermines the integrity of the attorney-client relationship and, therefore, the integrity of the criminal justice system). 27. King, ante note 7, at 235. 28. 1 Crim. Prac. Manual §3:3 (2009). 29. Ante at n. 28. 30. Tex. Penal Code Ann. §30.05(d) (Vernon 2009) (stating that Criminal Trespass is a class B misdemeanor, except when it meets any of the requirements that heighten the crime to a class A misdemeanor). 31. Tex. Code Crim. Proc. Ann. art. 46B.004(a) (Vernon 2009). 32. Sisco v. State, 599 S.W.2d 607, 613 (Tex. Crim. App. 1980). 33. O’Beirne v. Overholser, 193 F. Supp. 652, 661 (D.D.C. 1961). 34. King, ante note 7, at 238. Jeanette Kinard is Director of the Travis County Mental Health Public Defender Office. A long-time criminal defense attorney, Jeanette has a Bachelor’s Degree from UT-Austin and a law degree from U of H in Houston. She is a frequent speaker, state wide, on the topic of the mentally ill in the criminal justice system. She is a member of the State Bar of Texas, Austin Crim i nal Defense Lawyer’s Association and Texas Criminal Defense Lawyer’s Association. Seminars spon sored by CDLP are funded by a state grant administered by the Texas Court of Criminal Appeals.
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