Mental Illness & Criminal Law: What is Legal Competency?

October 17, 2020

By Criminal Defense Laywer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

“Competency” is the ability to stand trial.  Texas law provides a complex web of procedures which deal with making sure an accused is mentally capable of being tried.

“Incompetency Defined”

It is defined by Tex.Code.Crim.P. 46B.003 which holds:

(a) A person is incompetent to stand trial if the person does not have:

(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or

(2) a rational as well as factual understanding of the proceedings against the person.

(b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.

Translation:  competency is a somewhat low threshold.

A Rational, Factual Understanding Isn’t Enough

A misnomer is where a person understands basics about their charge such as the nature of the accusation, the role of defense counsel, the prosecutor and the judge – that they are okay to be tried.  Even judges make this mistake.

The person’s “sufficient present ability to consult with the person’s lawyer” is also crucial.  Often highly intelligent and high functioning defendants can still sometimes not have a coherent discussion with counsel.

Many people suffering from things like severe anxiety, manic behavior, or racing thoughts simply can’t keep it together for the time it takes for their lawyer to properly advise them – let alone try to get details to mount an effective defense.  To me, this is the very essence of “incompetency.”

Suggestion of Incompetency

If a lawyer is concerned their client may have enough issues which affect their ability to stand trial – the lawyer can and should file with the Court a “Suggestion of Incompetency.”  It puts the case on pause though it does sound a bit harsh.  The prosecution can file the motion and in some instances the Court can make the suggestion as well.

The trial judge then appoints a mental health professional to do a competency evaluation.  The Court then holds a hearing after the evaluation is complete and finds either defendant is competent to stand trial or he/she is incompetent for the purposes of trial.  If they are competent then the case resumes.

What Happens When the Accused is Found to be “Incompetent”

Mental health professionals attempt to restore the accused to competency through mental health treatment.  It can be in-patient or out-patient depending on the severity of the charge, whether the person is on bond, and the resources available to the county.

Any confinement in a state hospital cannot exceed the maximum punishment range for the charge.  In other words the maximum punishment for assault causing bodily injury is 1-year.  In theory a person could be confined for the entire year being ‘restored’ but no longer.

Mental health providers routinely update the Court and if the person is restored to competency — sometimes as simply as getting a person the correct medication — the case then proceeds.

What Happens When the Defense And Prosecution Disagree About Competency?

Most of the time the Judge, prosecution and defense agree on competency issues.  In cases where we don’t, Defendant has the right to invoke a right to a jury to prove they are, in fact, incompetent to stand trial.  This would be a way of demanding help for mental illness where the prosecution and/or Judge minimize the impact of mental health or see it as an excuse to avoid responsibility for a crime.

Why Would Someone’s Own Lawyer File a Suggestion of Incompetency Which Could Result in Confinement?

This is a fantastic question.  And perhaps they shouldn’t for this very reason depending on the severity (or lack of severity) of the charges.  A lawyer hired to defend a client from the charges they are facing.  A client needs to be able to fight those charges.  If a lawyer were to enter into a plea bargain or have the client participate in a trial they doesn’t understand – this could very often lead to a far worse result than mental health restoration in a state hospital.  Again – this precise issue is a fantastic debate without a clear answer.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.


Mental Illness & Criminal Law: Mental Health Bonds

October 16, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Texas law does provide an avenue for the mentally ill to get out of jail without having to pay a bond.  Not everyone who suffers from mental illness is entitled to relief under Texas law.  As you might expect, Texas law lags in different areas for various reasons.

 

Mental Health Bonds

 

Tex.Code.Crim.P. 17.032 allows for a mental health bond.  The judge is required to let the person get out of jail for free — i.e. not have to pay a bond amount — provided they comply with the statute.

Here are the qualifications for a Mental Health Bond:

  • They cannot be charged with a violent offense;
  • They cannot have been previously convicted of a violent offense;
  • They must be examined by mental health personnel with the County;
  • The report by the County must conclude –
    • Defendant suffers from mental illness or intellectual disability;
    • Defendant is otherwise legally competent to stand trial;
    • Defendant is recommended to receive mental health treatment or treatment for the intellectual disability;
  • The Judge must also find the county is capable of treatment.

If all of these criterion are met, then the Judge is required to release Defendant.  Typically a treatment plan is implemented which may include in-patient or outpatient services along with a host of other requirements the person must comply with.

Shortcomings of the Mental Health PR Bond Statute

The statute isn’t perfect.  Many counties don’t have the infrastructure or ability to treat the mentally ill – so a person can actually be kept in jail because their county is unable to treat them.

Also, the mental health release provision allows people in a certain “box” or range of mental illness too — if a person is mentally ill, yet not so deteriorated they are legally incompetent for trial — then they qualify for the bond.  If they are too mentally ill, then they don’t qualify.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

 


Lessons From Marijuana Legalization in California

October 9, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

I recently started doing a podcast.  Since I love talking it’s really been a blast.

My guest yesterday was a lawyer in California named Josh Schneiderman.  Josh works for a 450 lawyer firm with offices around the Southwest named Snell & Wilmer.  He represents businesses and companies in California in the cannabis industry.  By all accounts it is a cutting edge practice.

You can watch the podcast here.

Here are some major takeaways from the discussion:

While cannabis is legal in California, it is still prohibited by the Federal Government

This creates major headaches in far reaching areas you might not anticipate.  For example, if you are trying to patent a particular cannabis product – the Federal Government won’t grant you a patent.  Or, if you need a loan from a federally backed lender – you can forget that too.  Or, if you need bankruptcy protection you can’t get that either.  And the list goes on and on.

Some Banks and Credit Unions Will Take Cannabis Money – But it’s a Challenge

If a bank is going to take cannabis money — usually cash — they have a complex scheme of checks and audits they are responsible for to make sure they aren’t taking black market deposits.  That includes in some cases detailed direct analysis of the grower or retailer of the marijuana which larger and more sophisticated banks are unwilling to do.

The Cannabis Industry is Still Largely Based on Cash

Credit card companies are intimidated and scared by some of the regulatory nightmares and possible liability – so many in the legal cannabis supply chain still operate on cash.  That forces others in the chain to do the same.

These observations were the “tip of the iceberg.”  We discussed much much more including the path Texas seems to be on towards potential legalization and the pitfalls along the way.  I hope you’re able to watch.  It was truly a fascinating discussion!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is designated as a Texas Super Lawyer by Thomson Reuters.

 


Complete Texas Law Guide to CBD, Marijuana & THC

October 10, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

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Let’s start with the easy stuff:

CBD Products : (Cannabidiol) are now legal in Texas as long as it contains no more than 0.3% THC (dry weight).  The Governor signed a bill into law effective September 1, 2019 legalizing CBD.

Medical Marijuana:  Legal if you have been diagnosed with parkinson’s, multiple sclerosis (MS), ALS, terminal cancer, and several seizure disorders AND you have a prescription for it.  Also, it cannot be smoked but must be consumed in an oil or inhaler form.

Marijuana:  Still illegal — but here’s all the hubbub:

For Legal Novices: In court the state must prove what is called the “Corpus Delicti” of every crime (Corpus Delicti is latin for ‘body of the crime’).  That means they have to prove a crime was actually committed.  In a murder case – it means they need to prove someone actually died — in a drug case it means someone actually possessed something illegal.  Remember the Dallas fake drug scandal?  It was a big stink because it’s just not a crime to possess sheet rock or gypsum even if you think it’s cocaine, anthrax or weapons grade plutonium.

The new CBD law makes it extremely difficult for law enforcement to know or prove whether the marijuana they arrest someone for has a concentration of 0.3% THC or not.

But Remember:  (1) possession of marijuana is still a crime.  Just because enforcement is difficult and/or problematic for the State doesn’t make it legal; and more importantly (2) This problem is temporary for two reasons —  First, the State may hone-in on an efficient testing system; and second — it’s a good bet the legislature will try to fix this loophole in 2021 which may be in time to meet the statute of limitations for an arrest made in 2019.

For the Legally Advanced:  This has created a nightmare in determining probable cause and reasonable suspicion to search a vehicle, seize evidence, and make an arrest.

For a police officer to search a vehicle they must have probable cause they will find evidence of an offense committed in their presence.  The odor of burned marijuana has very commonly been a staple of instant probable cause.  But here’s the question now: since the odor of burned marijuana isn’t necessarily indicative of a criminal offense (because someone could smoke cannabis without the active THC ingredient — or an ingredient of less than 0.3%) then does that vitiate the probable cause as well?

Assuming the odor of burned marijuana no longer supports probable cause (and that is a big assumption) then a search based on the odor of burned marijuana would be illegal and subject to the exclusionary rule.  The exclusionary rule prevents evidence from an illegal search from being used against you in court — aka “fruit of the poisonous tree.”  In other words, you win.

Stay tuned!

*Jeremy Rosenthal is Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing contained in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.


10 Principles of Defending People: #1 Put Yourself in Your Client’s Shoes (But Only for a Moment)

June 9, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Over the past few weeks, I’ve been writing about what I think the top principles are when defending a person in the criminal justice system.

Here are no’s 2 – 10 to recap:

#1 Put Yourself in Your Client’s Shoes

There is much overlap in the principles I’ve suggested in this series.  You can make the argument this principle is really a combination of many of the other principles.

I must always remind myself my client and/or the people who love them often feel:

  • Scared
  • Confused
  • Angry
  • Uncertain
  • Embarrassed
  • Ashamed
  • Singled-Out
  • Hopeless
  • Worried
  • Anxious
  • Alone
  • Different
  • Abused

And even then I’m sure I’m over-simplifying what they must often be going through.  Criminal litigation is bet-the-farm type stuff.  People can lose their freedom and/or livelihood.

Lawyers have to appreciate just how important they are to their client and how much power they have in their client’s matters.  Just having an anxious client see my phone number pop up on their caller ID will ruin some people’s day even if I’m just asking a quick question or giving a small update.

Sometimes the simplicity of the golden rule is directly on target.  How would I, Jeremy Rosenthal, want someone handing the most important matter I could have in my entire life or even decade to conduct themselves?  Prepared… yes.  Organized… yes.  Knowledgable… yes.  Experienced… yes.  And on, and on and on.

Why wouldn’t I do my best to try and be the same way for another human who is experiencing many, if not all, of the emotions discussed above?

But Wait a Second…

There is an extremely important distinction.  I am not my client.

I am often asked by clients or their loved ones, “what would I do if I were in their situation.”  My answer is canned — but true:  “I’m not in your situation.”

I tell them I don’t know what keeps them up at night.  I don’t know what they want to be doing with their life in 10 years.  I don’t know if their great aunt Lucielle would spin in her grave if she knew they didn’t fight charges like the ones they’re facing.

The hard balance for any lawyer is putting themselves in their clients shoes and feeling the gravity of the situation — but remaining the detached expert who can give objective advice.  If I suffered from all of the emotional landmines I outlined above there is no way I could do my job.  I just have to remember they are always there.

Some lawyers do too good of a job putting themselves in their client’s shoes.  They stay there.  It can be problematic because the lawyer gets so wrapped up in the client’s problem — it becomes the lawyer’s problem too.  The lawyer loses objectivity, is less objective in their evaluations, arguments, and representation.

Lawyers need to put themselves in their client’s shoes… at least for a little while.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.