Representing the Mentally Ill Defendant

Representing a client that suffers from a mental illness is incredibly challenging, especially in a criminal case where one’s liberty is at stake. These days courts are increasingly aware of the connection between mental illness and criminality. This is good news for lawyers who are hoping to gain leniency in exchange for mandated treatment. And it also requires lawyers to take extra precautions in representing a mentally ill defendant – it may be deficient for lawyers to do otherwise.

Here are the basic guidelines for when a New Mexico lawyer represents a mentally ill client:

1. Is the defendant legally competent? This is the most important question to answer when you first meet your client, keeping in mind the following:
• A person legally competent can become legally incompetent, and vice-versa;
• A person mentally ill can be legally competent;
• Legal competency is not a defense.
With competency you are the first evaluator to determine whether your client needs to be tested by a psychologist and/or psychiatrist. In New Mexico if the client is unable to consult with his/her lawyer with a reasonable degree of rational understanding – and if s/he does not have a rational and factual understanding of the proceedings, then the lawyer must ask the court to order a competency exam.
The competency exam will hopefully be granted and given soon after the request. If the client is returned competent, the case proceeds; if not, the client is sent to a mental health correctional facility until s/he is restored to competence.

2. Hire experts. If your client suffers from a mental illness it could mean various possibilities for how the case proceeds, such as:
• mitigation, thus a better plea offer;
• a mental health program/treatment;
• a Guilty But Mentally Ill plea/verdict; or
• pursuing the Insanity Defense at trial.
To explore these options you need experts and their reports to support your position. Ideally get a psychologist, as well as a psychiatrist. Each plays a different role. Psychologists are able to perform hosts of tests which can report your client’s IQ, literacy, insight, and the possibility of malingering (exaggeration); they can also explain behavioral issues. Psychiatrists (do not perform tests) are medical doctors who will be able to expound on the scientific part of mental illness, as well as the cognitive, behavioral, and chemical components.

3. Gather information. You must start investigating your client’s health history as soon as possible because it can be a cumbersome task. And your client may not be that helpful. Often the most mentally ill clients are simply unable to explain their condition because they lack insight into their suffering. Family members, if available, can be enormously helpful with this task. After you compile the medical professionals/facilities that treated your client start subpoenaing the records. Be sure to get them signed by a judge. Not surprisingly, everyone seems to respond to “court ordered” fastest.

Now that you have the basics of what you are facing with a client who may suffer from mental illness, contact an attorney today. The lawyers at Lightning Legal Group are experienced criminal and family law practitioners ready to take on your case with great care and skill. Give us a call at 505-247-2390 for a free consultation.


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