OPENINGOPENING THETHE DOOR:DOOR: JUSTICEJUSTICE FORFOR DEFENDANTSDEFENDANTS WITHWITH MENTALMENTAL RETARDATIONRETARDATION A Handbook For Attorneys Practicing in Texas Texas Appleseed 512 E. Riverside Drive, #212 Austin, Texas 78704 web site: www.texasappleseed.net RESOURCE Special thanks to Houston Endowment for their generous support of this handbook. A COLLABORATION OF T EXAS A PPLESEED AND HOUSTON ENDOWMENT OPENING THE DOOR: JUSTICE FOR DEFENDANTS WITH MENTAL RETARDATION A HANDBOOK FOR ATTORNEYS PRACTICING IN TEXAS A collaboration of Texas Appleseed and Houston Endowment First Edition October 2005 Our Team Deborah Fitzgerald Fowler, Senior Attorney, Texas Appleseed** Maggie Wilensky, Legal Fellow, Texas Appleseed Annette LoVoi, Executive Director, Texas Appleseed Janis Monger, Deputy Director, Texas Appleseed TEXAS APPLESEED MISSION Texas Appleseed’s mission is to promote justice for all Texans by using the volunteer skills of lawyers and other professionals to find practical solu- tions to broad-based problems. Texas Appleseed has worked on some of the state’s most pressing issues. Our work to improve the rights of poor people in the criminal justice system alerted us to the special needs of defendants with mental retardation and their families. We hope this hand- book will help attorneys better represent defendants with mental retardation. Texas Appleseed Board Officers J. Chrys Dougherty, (Chair Emeritus), Graves, Dougherty, Hearon & Moody*, Austin Michael Lowenberg, (Chair), Gardere Wynne Sewell LLP*, Dallas R. James George, (Chair-Elect), George & Brothers, LLP*, Austin Joe Crews, (Secretary-Treasurer), Crews & Elliott, P.C.*, Austin Allan Van Fleet, (Immediate Past Chair), Vinson & Elkins LLP*, Houston *affiliations listed for identification purposes only **primary author Texas Appleseed 512 E. Riverside Drive, #212 Austin, Texas 78704 Tel: (512) 804-1633 Fax: (512) 804-1634 Web site: www.texasappleseed.net Texas Appleseed presents the information in this handbook as a service to attorneys who represent defendants with mental retardation. While we worked to pro- vide accurate and up-to-date information, this handbook is not intended to provide legal advice. Non-lawyers should seek the advice of a licensed attorney in all legal matters. Texas Appleseed makes no warranties, express or implied, concerning the information contained in this handbook or other resources to which it cites. First Edition © 2005, Texas Appleseed. All rights are reserved, except as follows: Free copies of this handbook may be made for personal use. Reproduction of more than five (5) copies for personal use and reproduction for commercial use are prohibited without the written permission of the copyright owner. The work may be accessed for reproduction pursuant to these restrictions at www.texasappleseed.net. Acknowledgments This handbook is generously supported by a grant from Houston Endowment. We are grateful to the Texas Appleseed officers and board of directors who have given their time and legal expertise to the project. We also would like to thank Maggie Wilensky, our Legal Fellow, for her excellent research and tireless editing. Texas Appleseed would also like to extend our gratitude to our outstanding consulting committee, without whom this hand- book would not have been possible: Denise Brady Leigh Ann Davis Director of Public Policy Assistant Director of Professional & Mental Health Association in Texas Family Services Austin, Texas The Arc of the United States Fort Worth, Texas Drew Dixon William J. Edwards Director of Intervention Services Deputy Public Defender The Arc of Dallas Office of the Public Defender Dallas, Texas Los Angeles, California Fort Worth, Texas David Evans Lilli Hallaam Executive Director Former Director, Criminal Justice Austin-Travis County MHMR Information Initiative Austin, Texas The Arc of Dallas Dallas, Texas Beth Mitchell Amy Mizcles Senior Managing Attorney Director of Governmental Affairs Advocacy, Inc. The Arc of Texas Austin, Texas Austin, Texas John Niland James R. Patton, Ed. D.* Director, Capital Trial Project Adjunct Associate Professor Texas Defender Service University of Texas Austin, Texas Austin, Texas Ollie J. Seay, Ph.D Susan Stone, J.D., M.D Director, Master’s in Health Psychology Program Susan Stone & Associates Texas State University Rosanky, Texas Austin, Texas Ronald J. Tabak, Esq. Special Counsel and Pro Bono Coordinator Skadden, Arps, Slate, Meagher & Flom LLP New York, New York *Co-Author, Section 12 TABLE OF CONTENTS About This Handbook 1 Top Ten Things To Keep in Mind As You Represent A Client With Mental Retardation 3 Section 1: What Is Mental Retardation And Why Should You Care? 5 Section 2: What Problems Do Individuals With Mental Retardation Face In The Criminal Justice System? 11 Section 3: The Initial Interview 21 Section 4: Helpful Hints For Obtaining Information 25 Section 5: Dual Diagnosis 29 Section 6: The Fair Defense Act 33 Section 7: Pretrial Options 35 Section 8: Competence Evaluations And Trials 39 Section 9: The Insanity Defense 47 Section 10: Use Of Expert Witnesses, Mitigation, And Sentencing Strategies 51 Section 11: Atkins And Progeny: A Short Summary And A List Of Resources 59 Section 12: Critical Information About Definitions And Diagnosis 65 Resources for Help 75 Appendix 1. Alternate Miranda Warnings 2. Glossary of Commonly Prescribed Psychotropic Drugs 3. Glossary of Common Mental Health Terms 4. Sample Competence Report, Dr. Ollie J. Seay 5. Flowchart – Involuntary Medication following Finding of Incompetence, Beth Mitchell, Advocacy, Inc. 6. Motion for Pre-Trial Determination of Issue of Mental Retardation, John Niland, Texas Defender Service. 7. Affidavit of James Robert Flynn, Provided by John Niland, Texas Defender Service. 8. Adaptive Behavior – Background Questions to Ask Credible Informants (AAMR (2002) Version), Dr. James R. Patton. 9. Adaptive Behavior – Background Questions to Ask Credible Informants (DSM-IV-TR Version), Dr. James R. Patton 10. Funding Motion for Mitigation Specialist, John Niland, Texas Defender Service. 11. Motion to Preclude the Death Penalty as a Sentencing Option, John Niland, Texas Defender Service. 12. Motion to Prohibit Inappropriate Testing of Defendant in Prosecution Experts Assessment of Mental Retardation, William J. Edwards, Los Angeles County Public Defender. 13. Sample Voir Dire, William J. Edwards, Los Angeles County Public Defender. ABOUT THIS HANDBOOK Texas Appleseed issued its Fair Defense Report: Analysis of Indigent Defense Practices in Texas five years ago. Our work to assess the condition of indigent persons in the criminal justice system revealed the special needs of defendants with men- tal retardation and the inadequate representation they often receive. Defense attorneys, like other court officials, often fail to recognize mental retardation. Even when attorneys recognize clients as having mental retardation, many attorneys are not familiar with the special procedures and laws that apply to persons with mental retardation. Lack of knowledge can be compounded by the client’s desire to get out of jail quickly. Together, these factors may result in a defendant pleading guilty to an alleged offense when he or she is not competent to do so. When an intellectual disability impairs the defendant’s abil- ity to understand what is happening to him or her or to participate in his or her own defense, it is imperative that attorneys and court personnel are well-versed in the special procedures that exist to divert vulnerable clients away from the criminal justice system. The Fair Defense Report revealed many other shortcomings in the treatment and representation of defendants with mental retardation. Except in death penalty cases, attorneys rarely request and courts rarely appoint mental retardation experts. Many attorneys lack expertise in finding, evaluating, and questioning experts; at the same time, few credible and impartial experts are available to conduct evaluations. As a result, attorneys may not use experts to advocate for their clients in crit- ical areas such as mitigation and sentencing. The general lack of understanding of mental retardation and habilitation options contributes significantly to harsher sentences, longer stays in jail, and frequent revocations of probation for defendants with mental retardation. This handbook is part of Texas Appleseed’s ongoing effort to improve legal representation for criminal defendants who have mental retardation. It was developed and reviewed by experts in intellectual disabilities and attorneys experienced in crimi- nal law. However, it is not a comprehensive guide on the law pertaining to mental retardation or on how to represent defen- dants with intellectual disabilities. Attorneys should use this handbook as a starting point for their work with adult clients who have mental retardation. We hope it will alert attorneys to some basic legal options they may want to consider, and give them some ideas about where to go for assistance. We encourage attorneys who represent defendants with mental retardation to go the extra mile for their clients. It could make all the difference. 1 2 TOP TEN THINGS TO KEEP IN MIND AS YOU REPRESENT ACLIENT WITH MENTAL RETARDATION 1. IF YOUR CLIENT HAS MENTAL RETARDATION, HE OR SHE MAY TRY TO “MASK” THE DISABILITY: As a result, law enforcement, judges, and even you may have difficulty identifying your client as a person with mental retar- dation. If you suspect your client has mental retardation, investigate further. Do not rely