Learning to Observe Signs of Mentalimpairment

LEARNING TO OBSERVE SIGNS OF MENTAL IMPAIRMENT Deana Dorman Logan, California Appellate Project Introduction Criminal defendants can pose a lot of challenges for their lawyers. Primary among the problems, of course, are the brutal facts of the crimes. In addition, our clients tend to go to great lengths to "aid" the police in solving the crimes through confessions, statements to "snitches" and other such actions. Beyond these crime-related challenges, criminal defendants commonly engage in other behaviors which sometimes seem designed to terminally stress the patience of the assigned attorney. These problematic behaviors can manifest themselves in a number of ways familiar to defense team members. One example is those occasions when you visit the client in his jail or prison setting, and he refuses to come out for the visit, blowing several hours of time that could have been spent constructively working on his case. Also, there are those times when the client does come out but rather than giving you specific answers to the critical questions you arrived with, he stands up, starts pacing back and forth, and rants and raves about some totally irrelevant gibberish. You are then forced to leave after a couple of hours feeling like nothing was accomplished. Another example comes in the form of a motion to remove counsel, a complaint to the judge about "what a terrible lawyer you are," how you have "refused to listen to him" and "called him vile names," all as a "part of a conspiracy to do him in." You, then, are forced to walk that delicate line between acceding to such unfounded charges or further damaging a delicate relationship. A final example is that point in discussing the case when a client laughs as he talks about what happened to the victim. In fact, during each of these typical scenarios, plus the myriad of similar encounters, the client is giving valuable information about significant mental impairment. These seemingly irrelevant or annoying interactions are often more meaningful in fully preparing a case than those times when a client is able to sit quietly and appropriately describe his actions the night of the crime. Most clients who commit violent felonies, particularly capital crimes, suffer serious mental problems. These affect a wide range of legal issues, including mens rea (for the instant crime as well as priors), voluntariness of statements to police or other state officers, waivers, competency to stand trial, ability to testify meaningfully and accurately, and other competencies, as well as mitigation. Preparation for the mental health evaluation of a criminal defendant requires not only full documentation of the family medical and psychiatric history,(1) but also careful observation over time of the client himself. Since we cannot afford to hire mental health experts to spend the time necessary to get a thorough picture of the client's behavior in a variety of settings across a wide expanse of time, the task must fall to those who have continued access to observations -- the defense attorneys, mitigation specialists and investigators. This paper is an attempt to outline for the defense team the types of behaviors identified by mental health professionals as significant signs of psychiatric problems, so that critical observational skills can be learned. Most of the behaviors discussed are general signals of mental disorder rather than definitive symptoms of one particular psychiatric illness.(2) These signs, if properly noted by the legal team and passed on to the mental health expert, will help guide the expert to make a more accurate evaluation. To understand the significance of these observations, it seems helpful to use the analogy of a personal visit to a physician. When you have a medical complaint, you do not go to a doctor chosen randomly, walk in and simply say, "Tell me what is wrong, doc." You try to note the symptoms methodically over some period of time e.g., dizziness on standing, "heart burn" a couple of hours after eating, numbness down left arm for a couple of weeks). For patients who are too young or too ill, a caretaker must do such observation. These monitored symptoms are then submitted to the doctor, who carefully analyzes them in the context of a full family medical history. With this expansive process, augmented by necessary laboratory testing, an accurate diagnosis and treatment plan can more likely be achieved. In the criminal justice arena, we must do no less in our preparation for a mental health evaluation of our clients. Also, because the clients' impairments preclude accurate self-monitoring, the defense team must act as the observational caretakers for the mental status symptoms of the client. These noted signs and symptoms will lend invaluable guidance to the doctor later asked to do the mental health evaluation. Cautions to Note There are some important cautions to observe in undertaking the task of learning to monitor these symptoms. First, although the signals are described in behavioral terms, the scientific name is also listed in most instances. Lawyers need not, and in fact should not, try to master the art of accurately applying technical names to particular actions. This is more likely to be counterproductive because of errors of assignment. The important task is spotting notable behaviors and passing on the observation. The scientific names are provided only as an aid in understanding mental health professionals as they engage in their own jargon. Second, in these days of wide-ranging access by prosecutors through discovery defense attorneys should always be cautious in preserving any critical information in written memoranda. This is particularly true for observations such as those discussed here which may or may not be accurately noted and interpreted by the defense team. Probably the safest route is to make only such cursory notes as will enable the observer to remember particular behaviors. Finally, although defense team members should learn to note potential signs of mental problems, they should never presume to label the clients' performances or behavior "normal." This is a very dangerous practice. Any mistake in observation must favor the client. When the lawyer makes an error by spotting what appears to be a symptom of mental illness, the behavior will get examined by the expert with training to accurately interpret it. Then it can be disregarded if it is not important. However, when a lawyer or investigator labels an area of behavior as "normal," the expert may inappropriately accept that lay analysis and fail to apply a trained eye to a critical area of evaluation. For example, lawyers too often overestimate a client's intelligence simply because he is savvy about the criminal justice system. Also, race bias can lead lawyers to dismiss significant signs of mental impairment as "normal" for those from certain cultural arenas such as "the ghetto" or "the barrio." If these errors by lawyers are accepted as fact by the mental health professional, gross underestimation of impairment may result in serious deterrent to the client. Reality Confusion The most dramatic signs of mental illness which might be encountered by the defense team are the overt psychotic symptoms which show some confusion regarding reality. (See Figure 1.) Hallucinations, a sign of both psychosis(3) and brain damage,(4) can involve sights, sounds, smells, physical sensations or tastes. Although these may lot be a routine part of the legal team's inquiry, any time hallucinations are mentioned or hinted at, the subject should be pursued. Counsel should also look for any evidence that the client is responding to internal stimuli, such as inappropriate smiling, nodding and giggling. An expert will be interested in any reports or suspicions of hallucinations and will want to know what they are like, when they come, and how long they have been experienced. Although hallucinations are dramatic when recognized, a client's reference to them may be so subtle as to avoid detection. One of my clients told me he was having trouble with his vision. At first I ignored this clue, believing he meant he needed new glasses when, in fact, he was alluding to recurring visual hallucinations. Another attorney said she missed references to auditory hallucinations because she lacked a good family history. Her client several times mentioned things his auntie was telling him. Only later did she realize his aunt had died when he was five years old. Spontaneous remarks by the client should also guide the legal team to pursue the possibility of phobias,(5) and delusions consistent false beliefs),(6) other general signs of mental impairment. Phobias are fairly obvious signs of mental problems as are some delusions (e.s., belief his food is being poisoned). One delusion, however, is sometimes easy for counsel to miss because it is perceived as a personal attack on the lawyer. Clients with the false belief that their attorneys are out to set them often prompt defensive behavior in their counsel rather than recognition that persistent beliefs along this line may be a signal of psychosis or paranoia. In addition to following up on the spontaneous occurrence of the preceding psychotic-like symptoms, counsel should also be alert to physical observations of disorientation. During a visit, clients who seem confused about the physical surroundings or the persons in the room may be exhibiting what is termed disorientation.(7) This observation should also be noted for later discussion with a mental health expert once a thorough, documented history is available. Signals of Mental Impairment in Speech Many of the general signs of psychiatric problems can be observed in speech. (See Figure 2.) In fact, oral language is a particularly sensitive manifestation of thought processes and brain dysfunction. Signals of mental impairment in speech can be broken down into several categories.

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