Mental Illness & Criminal Law: The Insanity Defense

October 18, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Not guilty by reason of insanity (“NGRI”) is a defense where the accused did not appreciate the difference between right and wrong because of their mental illness or impairment.

In Texas, though, the insanity must be a complete defense.  That is, the person’s criminal act must be entirely because of the insanity or whatever false delusion they were having.  If they even slightly had the ability to decipher right from wrong then the law does not allow for acquittal under the insanity defense.

Mens Rea

Most crimes have what the law calls a “culpable mental state.”  Mens Rea is latin for “guilty mind.”  When a person commits assault, murder, theft or runs an illegal casino – they do so with the culpable mental state which accompanies the crime.  That is, they either intend, know or in some instances are reckless as to whether the illegal result occurs.

A criminal charge punishes a criminal act when accompanied with a criminal mind – or so the theory goes.

An Insanity Defense Negates the Mens Rea

Where there is no guilty mind most cases would not allow a person to be ‘punished.’

Here is of how NGRI works or wouldn’t work:

  • Where someone is under the delusion the world is under attack by aliens – and Wal-Mart has graciously opened their doors so that everyone can grab whatever supplies they need and run for the hills… this could be an insanity defense for theft because under the person’s delusion, they are still not committing theft.  Wal-Mart authorized them to take the supplies given the circumstances.
  • Where a person is under the delusion the newspaper delivery person is a North Korean soldier flinging a grenade a their house – and the person returns fire in self defense, they could actually be acquitted due to NGRI because if that delusion were true, the defendant wouldn’t be committing a crime.
  • On the flip side — let’s say someone heard voices in their head which were unrelenting telling them to take supplies from Wall-Mart for whatever reason.  This might not be NGRI because the person still knew taking was wrong.

There are many more variations and real world examples can be both far fetched at times and in other instances gruesome and tragic.

What Happens When the Court Finds Someone Not Guilty By Reason of Insanity?

The Court retains jurisdiction over the person.  The person can often times be committed to a State Hospital where they can be treated or restored.

The period for restoration cannot exceed the maximum punishment.  But in some instances like in murder cases – that could result in lifetime confinement in a State Hospital.

A person acquitted based on an insanity defense cannot expunge their record – so public records would always remain about their situation.

Misnomers About the Insanity Defense

Texas puts the burden on the accused to prove insanity.  It can also only be done where Defense has expert testimony from a professional who can establish the person could not in any way decipher right from wrong.

Many folks understandably get upset with people who plead insanity or are acquitted due to insanity and see it as an easy escape hatch to avoid consequences.   NGRI is a difficult mountain to climb for criminal defendants, though, and the reward for winning is normally going to a State Hospital for an undetermined amount of time plus a permanent criminal record – though not necessarily a conviction.

*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.

Mental Illness & Criminal Law: What is Legal Competency?

October 17, 2020

By Criminal Defense Laywer Jeremy Rosenthal

(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.