As public defenders, we struggle with challenging clients: clients who don’t trust us, clients who refuse to hear our best advice, and clients who sometimes lash out at us in ways that are difficult to absorb, let alone understand. Most of our challenging clients are mentally ill and a significant percentage of those have poorly documented or nonexistent psychiatric treatment histories which further complicates our task of illustrating the nature and impact of their mental illness for the district attorney, judge, or jury.
Luckily, we can obtain the assistance of a mental health expert but our experts need our help as well. They need a clear referral question (click here for some sample referral questions) and to know as much as possible about our clients’ symptoms. Because our clients are poor and don’t make bond, we often have the unique opportunity to observe them over time during regular jail visits. In addition, we generally have sufficient time to collect a variety of records that can provide evidence of pre-existing mental illness even when the mental illness has been untreated. When we can provide our mental health expert with a clear referral question, in combination with our client’s records and our observations of their mental health symptoms, our expert is far better equipped to assist us.
Most of us know where to look for records (the school system, DSS, etc.), but fewer of us know what to look for when developing an observational record of an individual’s mental illness. An excellent resource to assist in this process is a list of noteworthy behaviors developed by psychologist and mitigation expert, Deana Logan. She suggests that attorneys make note of the following:
- Reality confusion (hallucinations: hearing voices, “seeing things,” olfactory, tactile, and gustatory false sensations; illusions: such as misperception of harmless image as threatening; phobias: irrational fears, such as fear of leaving one’s cell; disorientation: seeming confused about people and surroundings; delusions: consistent false beliefs, such as lawyers out to get him, guard in love with him, food being poisoned);
- Speech and language problems (incoherence, neologisms, and illogicality: nonsensical speech, including new word formations and non sequiturs; poverty of speech and thought: half answers, whether monosyllabic or lengthy but empty; distractibility: changing subjects midsentence; tangentiality: irrelevant answers; derailment: slipping off track from one oblique thought to another; circumstantiality: longwinded and tedious; loss of goal; perseveration: persistent, inappropriate repetition; pressured speech: rapid, racing speech; blocking: mind goes blank mid-thought; paraphasia: substitution of inappropriate words; slurring; monotone; stilted speech; micrographia; hypergraphia; dyslexia);
- Memory and attention issues (amnesia; confabulation: filling in details of faulty memory; hypermnesia: extraordinary ability to recall; limited attention span; selective inattention on emotionally charged issues);
- Medical complaints (hypochondria; self-mutilation; accidentproneness; insomnia; hypersomnia; anorexia and changes in eating habits; blurred vision; hearing problems; ringing in ears; headaches; dizziness; nausea; fatigue; loss of control of bodily functions);
- Inappropriate emotional tone (anxiety; suspicion; depression; hostility; irritability; excitement; flat affect; emotional lability; inappropriate laughter);
- Personal insight and problem solving difficulties (self-esteem too high or too low; frustration; denial of mental problems; difficulty planning; difficulty changing plans when necessary; impaired ability to learn from mistakes);
- Problems related to physical ability (agitation; hypervigilance; psychomotor retardation; slow reactions in movements or while answering questions; clumsiness; tension); and
- Unusual social interactions (isolation/estrangement; difficulty perceiving social cues; suggestibility; emotional withdrawal; disinhibition).
While this list is not exhaustive, it is a helpful starting point when considering what behaviors to record when documenting a client’s mental illness. After careful observation of your client and careful review of all records you can locate, psychiatric or otherwise, you will have a clearer idea of how to maximize the assistance of a mental health expert. Simultaneously, you will have made yourself into a resource for your expert, so that they two of you can work together deciding how best to explain the nature and impact of your client’s mental illness.
 Logan, D.D., Learning to Observe Signs of Mental Impairment, 19:5-6 CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE, FORUM 40 (1992), cited in A Practitioner’s Guide to Defending Capital Clients with Mental Disorders and Impairments (compiled by The International Justice Project and downloadable at http://azcapitalproject.org/wordpress/wp-content/uploads/2011/08/MI-Guide.pdf.