GUILTY BUT MENTALLY ILL

I wasn’t his lawyer when a former client was charged with murder. He was represented by the Public Defender’s Office and they asked for my help.

 I previously represented the defendant when he was hit by a pickup truck making a right hand turn in a crosswalk. Fortunately, he wasn’t hurt too bad and I was able to get him a quick  insurance settlement. I realized he wasn’t in his right mind while handling his wreck case but he denied there was anything wrong. His mother, however, told me a different story. She began by telling me how proud she was of her son. He’d gone to college and had good job in Atlanta running a drug rehabilitation clinic before a blood vessel ruptured in his brain. She told me the doctors were amazed he’d survived but said he suffered permanent brain damage, was unable to work, and had to return home so she could take care of him.

Caring for him with no money coming in to help pay his living and medical expenses was exhausting. The small insurance settlement I got for him would help but not for long. His mother confided her biggest  struggle was dealing with the behavioral changes brought on by his brain injury. He’d get to not liking the way his medicine made him feel, stop taking it, causing his emotional outbursts would go from bad to worse. She told me of one incident. He lived upstairs and would shut himself in for days on end. She brought his a spaghetti dinner and left it by his door. He didn’t like spaghetti and threw the plate down the stairs leaving the mess for her to clean up. She struggled to coax him back onto his medicine and told me she was at her wits end. I asked why he wasn’t receiving Social Security disability benefits and Medicaid to help with expenses and she didn’t even know Social Security would pay for disability. More for her benefit than his, I agreed to file a Social Security and disability claim for him.  

To support his claim I had to gather his medical records from the hospital and doctors in Atlanta where he was treated for his ruptured brain aneurysm. It was only then that I began to understand the full extent of his brain injury. The bleed on his brain was truly life threatening. As the blood pulsed from his ruptured blood vessel, it caused the surrounding brain tissue to be compressed and swell. The doctors induced a coma and performed an open craniotomy to clip the ruptured blood vessel and evacuate the accumulated blood but, by that time,  extensive damage had been done to the surrounding brain tissues. Post surgery radiographic studies showed the complete absence of a significant area of his brain that had died.  The doctors said it was a miracle he ever woke up from the coma. He had health insurance through his job that paid not for his hospital and surgeon expenses, physical therapy so he could learn to walk again, and speech therapy to learn to speak again but, before his recovery was anywhere near complete, his insurance lapsed when he couldn’t return to work.

Like 99.9% of people who file for Social Security disability, he was turned down the first go round. I knew physically there were still hundreds of jobs he could perform and worked to supplement the record on reconsideration that his disabling problem was his mental impairment, not physical. I met with his doctors and got them to complete a questionnaire tracking the Social Security listing of impairments regulations for mental impairments. His doctor not only completed the form, they wrote an eye popping warning that without proper treatment and medication he was a danger to himself or others. The doctor’s letters did the trick and the Social Security Administration relented and awarded him benefits on reconsideration. 

The client faded from my memory until I read in the paper he’d been arrested and charged with murdering his mother. The paper described how he was apprehended riding his bicycle down a busy street covered in his mother’s blood. When the police stopped him to investigate he was incoherent. When they checked his home, they discovered his mother had been beaten to death with a cast iron fry pan. Later in custody, after he allegedly calmed down and became coherent again, the police report said he  confessed he’d killed his mother. I didn’t doubt he did it but  doubted the reliability of his alleged confession.

He was ably represented by the Public Defenders Office. When they asked if he had any medical records documenting his brain injury, he remembered I’d gotten all his medical records from Atlanta when I represented him for Social Security disability. They called me and I gave them everything I had.  I commented how sad what happened was and how I knew how much he loved his mother.   

The public defender was experienced enough to know it would take a competency hearings, court ordered evaluations and counter-evaluations, followed by more hearings taking months upon months before a lengthy and expensive trial of competing experts arguing over his criminal culpability could be held. The prosecutor also understood and agreed with his Public Defenders he needed treatment. They agreed the best way to get it for him was to plead to guilty but mentally ill.

The law changed after the assassination attempt on President Reagan making it almost impossible to get a not guilty by reason of insanity verdict. Since then the best you hope for was a guilty but mentally ill. Under the new guilty but mentally ill rule, a person who suffers from a mental illness and commits a murder can be found or plead guilty but mentally ill and get sent to a hospital for treatment instead of to prison. In a perfect world this would make sense. But in reality, once the good doctors at the State Hospital found the defendant was “cured” or, more likely, sufficiently medicated, he would be sent to prison anyway to do the mandatory 30 years for murder.

Still, guilty but mentally ill was my old client’s only option. At least he wouldn’t go to prison initially but to a hospital where he would get at least marginal care and hopefully the medication he needed. Missing alarge part of his brain it was unlikely he’d get cured and be sent to prison. How the guilty but mentally ill rule works in the real world is probably a lot for you the reader to take in, so imagine how hard it was for my former brain injured client to understand. When the public defender discussing the guilty but mentally ill plea offer with him, he didn’t understand and asked to see his lawyer who he apparently thought I still was.

I knew and respected his PD lawuyer and accepted her invitation for an in-person meeting with her and my former client at the jail before I had a chance to think through the potential ethical problems that would arise. When I had time and tried thinking them through, I realized there were no easy or good answers to the ethical problems raised. Each question about one ethical problem raised another. Could I rely on what the PD said, or would I have to independently review the case file to verify everything to know how to advise the clienthim? Could I rely upon my knowledge and experience dealing with him in the past to know what would be best for him today? To what extent are lawyers ethically bound to help current and former clients in need? To help fellow lawyers in representing their former clients. To help see the wheels of justice don’t grind another helpless defendant to a pulp. I arrived for the meeting at the jail still having no clear answer to any of these questions. In the real world that’s how ethical problems come at a lawyer.

The PD had arranged for a private room at the jail where we could meet face to face. My former client was already in the room with his Public Defender when I made it through the rigamarole getting in to see him. He was glad to see me and tried to stand up to shake my hand but was handcuffed to an eye hook bolted to the table. He looked more disheveled than when his mother was caring for him but otherwise appeared to be in good health. I let his PD take the lead asking questions and I saw that he listened carefully and responded appropriately to what was being said.

To my relief it turned out my advice wasn’t needed. He freely admitted what he’d done and understood there had to be consequences. He said he’d given a lot of thought to it and had decided pleading guilty but mentally ill was what he wanted to to. I listened as his PD explained all the risks and benefits of the plea and as he said he understood he could end up in prison anyway but his mind was made up.

Now, did I think he really understood the advice he was given, or that he freely, voluntarily, and intelligently decided to accept the plea? I had no way of knowing and, thankfully, wasn’t asked for my opinion. As a lawyer and a human being my heart broke for his mother he loved and for him stricken by an incurable brain injury. I was thankful for the thankless job the Public Defenders Office does handling impossible cases like this one every day. 

For years afterward I would receive letters from the defendant still in the hospital. Letters hand written on the borders of articles torn from magazines and newspapers. They were letters on disjointed topics of no particular rhyme or reason. Initially, I did my best to write him back thanking him for his letters and inquiring how he was doing. but gradually stopped when all I would receive in return were more clipping covered in cryptic comments. At least I knew he remained in the hospital and was receiving what medical care they had to offer.  I write this story to illustrate being a criminal defense lawyer is hardly ever as black or white as people think. More often it presents problems with no easy answers.