February 27, 2024 • 50 mins
Elizabeth Kelley joins the show this week sharing her expertise representing people struggling with mental illnesses or mental disabilities. Elizabeth, Sara and Jim begin the show by discussing the difference between these two, “illness” and “disability”, and how those afflicted are treated in the criminal justice system. They also discuss more specifically about individuals on the autism spectrum and the misunderstandings of this diagnosis that are prevalent throughout the country and justice systems state by state. Later they talk about dementia, not guilty by reason of insanity defense, and how to best persuade judges and prosecutors that drug addiction is a symptom of mental illness and self-medication, and neither an excuse nor voluntary. Before wrapping, Sara and Jim ask Elizabeth about cases involving brain injuries, lack of suitable treatment and conditions in jails and prisons for the mentally ill, and how courts across the nation are educating themselves on this forgotten disease within the criminal justice system.
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Music – Caleb Fletcher
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Music – Caleb Fletcher
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Transcript
Episode Transcript
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(00:22):
Hello, and welcome to the Presumption. And here is Jim Griffin. Hi,
Jim, Hey, Sarah, howare you today? Good? How
are you? And Matt our wonderfulproducer, Hey guys, and my wonderful
friend Elizabeth Kelly. Welcome Elizabeth tothe Presumption. Thank you so much for
inviting me, Sarah. Of course, So Elizabeth and I, before I
(00:44):
get into who she is, metat an acdo I think at my very
first meeting in San Francisco many manyyears ago. She was one of the
women who was very welcoming and Iencouraged me to get on the board and
do all these wonderful things. Andit's been an organization that I've been a
proud member of ever since. SoI've always appreciated you. I've always you
(01:08):
know, followed all the great workthat you do. And I have to
say, Jim, you know,back then, I was like, why
is this woman doing just this specificniche you know, it was a new
criminal defense lawyer, and I waslike what what, like this is all
she does? You know? Andof course, I mean, you know,
once like oh, you know,yeah, once I got into the
grind, I was like, yeah, okay, all right, So obviously
(01:30):
our podcast as its mission. Partof its mission has been to shed light
on mental illness in the criminal justicesystem. We call it the forgotten disease.
And there's really nobody better than you, Elizabeth, to talk to us
about your entire career defending those withmental disabilities. And for those of you
who don't know our listeners and viewers. Elizabeth is a criminal defense lawyer with
(01:53):
a nat nationwide practice focused on representingpeople with mental disabilities. She's the editor
of Representing People with Mental Disabilities,A Practical Guide for Criminal Defense Lawyers,
published in twenty eighteen, Representing Peopleon the Autism Spectrum, A Practical Guide
for Criminal Defense Lawyers published in twentytwenty, and then the same sort of
idea, but representing people with dementia. And these were all published by the
(02:16):
American Bar Association. She serves asthe vice chair of the AB's Criminal Justice
Section Council and on the editorial boardof Criminal Justice Section Magazine. She also
co chaired the Criminal Justice Advisory Panelof the Arts National Center for Criminal Justice
and Disability and the AB's Commission onDisability Rights, also serving on the advisory
(02:37):
board of the Neuroscience Center of FordhamUniversity School of Law. She lectures across
the US as well as abroad onrepresenting people with mental disabilities. So I
want to turn it over to Jimfirst because I just want to sort of,
you know, for us to haveclarity on the basics right, mental
illness, mental disability, What exactlyare we talking about? Well, Elizabeth,
(03:00):
Wow, that is a that iscertainly an impressive resume, and you
have distinguished yourself in this area ofthe law. And I know you make
a distinction between mental illness and mentaldisability. I'm not sure we all understand
what that is and how it playsout in the criminal justice system. So
can you educate us on the distinctionbetween certainly, thank you for that question,
(03:25):
And the question is crucially important,particularly when as a criminal defense lawyer,
I am sitting down with a prosecutoras well as advocating to a court
explaining why my client committed the conductthat he or she is charged with,
(03:46):
as well as advocating for the appropriateaccommodations within the criminal justice system. Mental
disabilities is my global term which refersto mental illness as well as intellectual and
developmental disabilities. Mental illness refers toconditions like bipolar disorder, schizophrenia, major
(04:11):
depression, post traumatic stress disorder,intellectual and developmental disabilities refers to conditions like
autism spectrum disorder, fetal alcohol spectrumdisorder, or what we used to call
mental retardation. Now an individual mayhave one or more diagnoses. So for
(04:34):
instance, an individual with autism spectrumdisorder may also have schizophrenia, or an
individual with bipolar disorder may also sufferfrom substance abuse disorder. But nonetheless,
it's very important to understand the particularcharacteristics of each diagnosis and how an individual
(05:00):
manifest the symptoms of each individual diagnosis. Elizabeth, does a drug induced psychosis?
Which does exist? I mean,does that fall within your realm of
expertise? It falls within my realmof expertise. Its particular significance varies from
(05:23):
jurisdiction to jurisdiction, because as youas you said, the long term effects
of drugs may may exert a profoundimpact on an individual, but a court
may very well consider that voluntary andas such, I'm glad Jim brought this
(05:49):
up because I had it in mynotes to ask you later on. We
just had a case in Ventura countyhere in California, which is I don't
know if you're familiar, but it'sa nightmare of a of a county to
be in. I certainly don't liketo pick up cases there. Very very
conservative, very challenging to deal withthe prosecution's office there. Anyway, my
(06:12):
friend Michael Goldstein, who Elizabeth,you might know his dad from any CDL.
I forget his father's first name,but he and Bob Schwartz were the
defense counsel on the case. Andthis woman was a nurse or I'm sorry,
she was an audiologist at UCLs isa doctor, and she was given
(06:32):
this weed by her boyfriend who wasIt was extremely potent, this weed,
like I've read about that case,yes, yes, and it came with
this warning label and all of this, and she went nuts and she stabbed
him I think over one hundred timesor something like that. She stabbed herself
(06:54):
over forty times. She lived.He didn't a friend of his time to
fight at the trial that that hewas given the same pot and talked about
all the crazy things that happened tohim as a result of smoking that weed.
So the woman gets, I believe, convicted of involuntary manslaughter and gets
(07:15):
probation and everyone went nuts. Psychosis, my ass psychosis, you know what
psychosis. She took it because shewanted to take it. You know,
all these arguments that you're talking about, you know, the voluntariness. But
I guess it depends, right,if this person is not a podthead they're
smoking something for the first time.It comes with all kinds of warnings.
There's a real thing. And whenI speak to therapists, they say,
(07:38):
look, psychosis is fleeting. Youcan be in psychosis now and find minute
fluid state. It's a state,and depending upon how the statutes read,
it could have very well been thatshe lacked the intent to commute the con
(08:00):
So at that point, you're talkingabout traditional men's rail arguments. Within the
field of mental disabilities. You're typicallyarguing competency insanity, and typically voluntary intoxication
is not recognized as an affirmative defenseunder the major heading of not guilty by
(08:28):
reason of insanity, but it variesfrom jurisdiction to jurisdiction. Okay, So
look, you were just telling Jimabout the different types of disabilities and the
distinction between disability and mental illness,including individuals who are on the spectrum.
(08:50):
Now, I've personally never defended anybodyon the spectrum. I've had victim Dara,
you probably did, but you maynot have recognized it. And on
the spectrum are often very good aboutmasking their symptoms, particularly girls and women.
Well, and they're also functional inmany areas of life. They could
(09:13):
be more functional than we are.Yes, yeah, yeah, highly intelligent
exactly. So maybe I did.But let me say knowingly, I don't
think knowingly I've represented anybody on thespectrum, but I've certainly had accusers who
and it was very challenging also inthat respect to just to cross examine,
(09:33):
to interview all of that. SoI want to talk to you a little
bit about this. You know,how is it like you You recently represented
a man this was really interesting tome, named Devlin Thompson, who was
sentenced for attacking a police officer duringthe January sixth riot at the at the
(09:56):
US Capitol, And it seems likethe court didn't it wasn't swayed by this
whole presentation of you know, hislack of men's rea because he was on
the spectrum. Well, I thinkI think it's important to recognize the symbolism,
if you will, of the insurrectionon the Capitol. And as I
(10:20):
have said to some people, thejudge was very thorough in his reading of
our sentencing memorandum, and he consideredall of the arguments. But I think,
but didn't he have to say,didn't you also say, this guy's
been holding a job at ninety thousanddollars a year or so, Well,
(10:41):
let me let me get to that. But but I think at bottom,
the judge was profoundly offended by whatthe march on the Capitol meant. Now,
going going back, what what thejudge said in that particular context is
very very typical of what many judgesand also prosecutors say. That is to
(11:07):
say, if you present to thecourt your client with a constellation of symptoms,
they don't always understand how it canbe contradictory. So, for instance,
in that particular instance, my clientwas on the autism spectrum. Indeed,
(11:28):
he was diagnosed many years before,and the current evaluations I had of
him were very clear cut. Butby the same token, this client was
indeed functional in some areas. Hefor instance, had held a job and
(11:50):
it was a very responsible job.But some people are unable to square the
concept of a developmental disability like autismspectrum disorder, where the client is very
intelligent with the fact that indeed theyare impaired in many areas of their life,
(12:18):
not the least of which is theirsocial communication, their ability to understand,
and their executive functioning. So,for instance, on another level,
you can have a client with anintellectual disability, and you can explain to
(12:39):
the court all of the ways inwhich your client has difficulty functioning, but
then the court points to the factthat, well, he graduated from high
school. What you then have toexplain is that he went to school during
the era when one was basically givena courtesy diploma and was in special education
(13:05):
courses all the way through high school. So it's the diagnoses are often fraught
with different nuances, and different factsin a client's life may be contradictory to
(13:28):
a mental disability. That's one ofthe reasons why it's very important during the
course of a forensic evaluation for theexpert to interview family, friends, neighbors,
coworkers, to amass that longstanding socialhistory to explain how they've always been
(13:54):
like this. No, they arenot manufacturing this diagnosis for per less of
litigation, and also to reach backand get school records, treatment records,
hospitalization records, military records, whathave you. Well, you know what,
Yeah, of the clients that yourepresent who say have a mental disability
(14:20):
have been undiagnosed until you know theencounter of the criminal justice system, and
then you know, then you're calledin. It's it's a healthy percentage for
a couple of reasons. First ofall, if they are older, and
excuse me by older, I meanforty onward, they may have gone to
(14:43):
schools. We're old, Matt's not. Basically, they may they may have
gone to school when educators, aswell as their families, we're not conversant
in different kinds of medical of mentaldisabilities and simply dismissed certain behaviors as being
(15:09):
odd or abnormal, or he'll growout of it, or she'll change beyond
that. Even in families where theaccused is in their say, twenties or
so, and their family is relativelywell educated, it could have been that
(15:35):
for years they have known that theirnow adult child was different, but they
were unable to get an accurate diagnosis, and accordingly, they were unable to
obtain for their now adult child theappropriate accommodations that would have made it easier
(16:00):
to manage the symptoms of that diagnosis. You know, it's interesting because when
you think back to you know,like my parents' generation, it's very different
today, you know, thankfully.You know, when I have a cousin
who is severely OCD. He's probablyclose to sixty years old now, he
(16:22):
won't even leave the house. Butwhen he was a kid, I remember
him turning the light switch on andoff like a million times and wanting a
certain people just dismiss that as beingodd. Be cute, yeah, and
like he wanted like certain number ofkisses and specific part of his cheek from
his mother before going to bed,and it was like, oh, how
cute my son is, you know, so loving. Well, it wasn't
(16:47):
cute, it was OCD. Andit got so bad that, you know,
I mean, it's literally as handicappedhim, can't hold a job,
can't leave the house. But now, thankfully, I think we're, like
you said, we're EDU hit itenough and you know, and more open
to treatment than I think other generationswere. So I want Jim to dig
(17:10):
into dementia with you, because Ithink that's so fascinating, and idea can
ask a quick question before Jim doesthat. Yeah, I'm just curious.
It sounds like part of this processis having to essentially prove that these symptoms
are not manufactured. And my questionis what percentage of it is manufactured?
(17:32):
Like it's it seems to me likea TV stereotype. But that can't possibly
You can't possibly have clients that arelying about this, So why is that
even a question? Yeah, Iwould say that probably during the course of
my career, I had one individualwho, and I don't want to say
was faking it, but he wasprobably exaggerating his symptoms. That being said,
(17:59):
the vast majority of my clients ninetynine percent have a diagnosable mental disability,
and there is a nexus between theirdisability and the conduct of which they
are charged. But for people whodon't have experience with mental disabilities, they
(18:26):
could be cynical about the diagnosis,and also if they are a victim or
if a family member is a victim, they could very well be inclined to
dismiss it as a charge or diagnosisconveniently manufactured for purpose of litigation. You
(18:55):
may have heard or even remember thecase of John Hinckley, who attempted to
assassinate President Reagan, and he wasfound not guilty by reason of insanity,
and that started to perpetuate the myththat defendants were getting off all over the
(19:18):
case, all over the place byclaiming not guilty by reason of insanity.
And in addition, many insanity statuteswere made more rigorous in order that fewer
people would be able to meet thatvery very high legal burden. Sure,
(19:42):
let's let's talk briefly about dementia.And it was not one of my cases,
but it was someone who I knewand respected growing up. He was
he held the positions of authority inour community, and as he got older,
he was at the YMCA and hewas in the pool and there was
a kid that bumped into him,and he's, you know, an elderly
(20:04):
man just started beating on the kidfor you know, no reason. He
gets arrested for assault, and youknow, everyone is just shocked, and
you know, it turns out,you know, I mean, he had
some dementia going on that Frankly,he had not been diagnosed before. How
often do you see that we aregoing to be I have seen it.
(20:25):
I continue to see it, andwe are going to be seeing more of
it because Jim and Sarah and Matt. As the population lives longer, that
population is going to have more physicalinfirmities as well as cognitive infirmities, and
(20:47):
dementia is part of that. SoJim, that formerly well behaved, respected
gentleman, lost his inhibitions, losthis filters, and committed an offense which
during his prime he never would havecommitted. And one of the challenges we
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have is to figure out how toaccommodate this population within the criminal justice system.
First of all, the standard definitionof incompetent of competent to proceed doesn't
necessarily apply, because if someone isfound incompetent to proceed, then the court
(21:38):
will order a period of restoration.There's no way an individual who has dementia
will ever be restored. The metaphorI use with families is once they fall
off the cliff, they will neverbe brought back. The us that can
(22:00):
be done is to manage those symptomsand to understand that in the coming weeks
and months and years, those symptomsare only going to intensify. Beyond that,
our jails and our prisons are notequipped to to to treat and to
(22:25):
house individuals with with with dementia.They require intense medical attention and also they
can be very disruptive and are Ourprison institutions are built on on order and
(22:45):
strict codes of conduct which people withdementia simply cannot abide by. We know,
we had Peter Eliasberg of the ACLUas a guest not too long ago,
and he was talking about our conditionshere in LA and the jails here
and how we treat mental I mean, we just don't have programs. They
(23:07):
need programs, they need care.And what they do is they basic meditation,
the proper medication and medications some basicyeah, basic whatever, minimum standard,
substandard, whatever it is that theygive them and then they chain them
to the bench and they leave themthere for because they just don't know where
to put them, you know.So it's really yeah, oh yeah,
(23:29):
I mean it's it's dehumanizing. Butbeyond that, if someone has a mental
illness or any kind of mental disability, a custodial environment is only going to
traumatize them. And most of theseindividuals will one day be back in our
(23:55):
neighborhoods, in our communities, andif they were damaged individuals going in.
We do not want them to beeven more damaged individuals when they emerge,
not only from a humanitarian standpoint,but also from the standpoint of they could
(24:18):
commit additional crimes if they are notappropriately if they are not humanely dealt with
by the criminal justice system. Right, and no mistake, jails and prisons
were never intended to be therapeutic environments. Would you say, Jim, I
think you're about to ask her aboutnot guilty by reason of insentity? Oh?
(24:42):
Yeah, I'm very curious in Imean, you kind of touched on
how that they've made it less possibleor more restrictive for people to claim NGI
based on mental disability mental illness.But can you tell us, can you
give us an example of where amental illness or mental disability in a case
(25:04):
that you've been involved in has ledto NNGI or at least was partially successful
in that quest. Well, firstof all, a good NNGRI case is
very very rare. That being said, the most successful, or if you
will, the most promising cases arethose where a doctor, either a psychologist
(25:33):
or a psychiatrist gets into the jailand interviews the person as soon as possible
after the alleged crime, when thatperson is probably still flooridly psychotic, and
before any medications that the jail isgiving that person take effect. And some
(26:00):
conditions are more inclined to produce successfulinstances of NNGRI, like bipolar disorder,
schizophrenia, schizo affective disorder you mentionedearlier a relative who had OCD. Yeah,
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very very rarely is an individual withOCD able to mount a successful NGRI
defense, But the conditions where psychosisis prominent usually hold the most promise.
(26:48):
Yeah, I mean early in mycareer, I remember I had a guy
was a quarter pointed case to me. He was on a bus and he
stabbed the bus driver. But hewent into the psychosis and he thought that
he's being attacked, you know,I mean that was a it wasn't an
act. And and and yeah,and and some of those delusions come because
(27:10):
of the fact that they suffer fromPTSD, right, I mean, and
the and they are fleeting right attimes. I mean, you could have
the lor what you're talking about.You could go into just a rage of
PTSD, for example, and andthen and then shake out of it and
be lucid after the fact. Isuspect. I don't know. You're absolutely
(27:32):
right about that. It's a fluidstate, right, and it makes it
all that more challenging the now.I mean, we talked about not guilty
by reason and sanity, and ourlisteners may not know exactly what the legal
definition is. Can you sort ofgive us a layperson's rendition of what it
means to be not guilty by reasons? Well, there are there are over
(27:52):
fifty different definitions of nngr I orng I as you say, in California,
we Jim's in South Carolina, thoughwe're somewhat insane here. But but
every every jurisdiction has its own definitionof not guilty by reason of insanity.
(28:22):
And the the challenge is that themental health expert, uh based on their
their thorough evaluation of an individual bythorough I mean interview with with the accused,
his or her family, friends,neighbors, review of records, has
(28:48):
to fit all of that into avery narrow and confining legal definition. Mm
hm. And whatever that is.I always people always ask me, well,
what about competency, how do youdistinguish it? Whatever that is that
pertains to the time the crime wascommitted. Yeah, exactly exactly how PA
(29:12):
trial. Yeah, Competency insanity arevery very different inquiries. Competency assesses a
person's present ability to proceed with theirlegal case, and you, you be
accused, must be competent at allstage of the proceedings, whether it is
(29:38):
during the initial charging, through pretrial proceedings, through trial, through imposition
of sentence, even as perverses itsounds at the time of execution, and
it's an attorney's responsibility to continually assesscompetent to proceed. Competent to proceed it
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basically has one definition nationwide, andthat's that an individual understand the nature of
the proceedings and have the present abilityto assist counsel with his or her defense.
That as the way it plays out, is a very very low standard
(30:26):
to meet within the legal system.On the other hand, not guilty by
reason of insanity is a very highstandard, and it goes back to assess
one's ability to understand and function atthe time the crime was committed. And
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that's one of the reasons why Isaid earlier that for an NNGRI defense to
be success usful, it is vitallyimportant that the mental health expert meet as
soon as possible, observe as soonas possible after the crime, the individual's
(31:14):
conduct on the switch gears now andtalk about something you mentioned earlier, you
know, voluntary intoxication, voluntary druguse. But we all know that you
know a lot of people with mentalillness, bipolar disorder, for example,
and you know they don't have healthinsurance, they don't have medications to treat
it, and they self medicate withstreet drugs and they get hooked on them.
(31:38):
And so, you know what,how do you persuade judges and more
prosecutors that the defendant's drug use isnot you know, completely voluntarily voluntary,
it's you know, it's self medicatingmental illness for example. That's something it
is. It is a challenge becauseof course drug use is illegal except in
(32:00):
certain certain jurisdictions. But it's alsoimportant to explain to the court that with
many individuals, it's difficult to understandwhere the mental illness ends and the substance
use disorder begins. Indeed, theyare interrelated and both must be treated.
(32:28):
Well. That's why we have dualdiagnosis facilities now. There used to be
a time where we would throw peoplein a treatment center for alcohol you know
for alcoholics, right, and wehad it would work, yeah, and
it didn't work, and they wouldcome out, they would they would go
right back to the substance again,and we would leave the underlying UH issue
completely untreated. You know. Oneof the interesting things. I had a
(32:51):
woman, a young woman who hadbipolar disorder and UH was a meth user.
And to Jim's point, it's exactlywhat she was doing. She hated
the medication that she was supposed totake, she refused to take it.
Her mother couldn't you know, forceher to take it. And then she
was using meth. Was you know, had a drug dealer boyfriend, so
(33:13):
it was easy for her to getit. And I had to jump through
some loops to convince the court.By way of first I had her medical
records from Kaiser showing that she's actuallysupposed to take this medication for bipolar disorder,
that that is her diagnosis. Andthen because she never had substance abuse
treatment, then I had to,you know, put somebody in place to
(33:35):
sort of counsel her and then gether into a treatment center. So it
was like two different tracks. Butthere's no way that a court could look
at someone like that and say she'smaking it up. I mean it was
clear she was, you know itwas. And beyond that, yeah,
there are often profound side effects withdifferent medications, whether it it it dulls
(34:00):
their ability to think and be creative. Uh, weight gain, which in
itself is on healthy, different kindsof ticking following asleep, So that that
that can't be denied. So tellus, Elizabeth, because Jim and I
(34:22):
obviously we have some some mental healthcomponent and almost all of our cases,
you know, once we get toknow the client their history, even if
they're not completely that they don't havea mental illness, there's some sort of
emotional issue and developmental issue that thatyou know, we try to focus on
(34:42):
in their defense. Is so foryou being that you know you're your folks,
the focus of your practice is this, how do you tackle a case?
So what is you know, thisis a compound question. What does
the evaluation process look like? Doyou have a team of experts in place?
Do you start with a evaluation bya particular expert and then go from
there create a roadmap, or youknow, how do you take a deep
(35:04):
dive to get started? You raiseda thousand different questions. First, First
of all, it depends upon howthe client comes to me. Typically,
quite frankly, it's it's the parents. And let's say the parent has been
(35:29):
very involved in their adult child's lifeand is very savvy as to the diagnosis
the way their their adult child manifeststhe symptoms of the diagnosis. UH can
list the various treatment providers, anyfacilities, attempts at accommodations, et cetera.
(35:55):
Based on the diagnosis, I thenwill suggest a qualified mental health expert
or team of experts. So,for instance, in in the case of
someone with autism spectrum disorder, thatis a very specialized field, and I
(36:21):
have a few go to experts.I also know that a good expert will
very will stay in his or herlane. So for instance, that expert
may only want to do a diagnosticreport, and I may need to bring
(36:44):
in a special expert to give anopinion as to future dangerousness, because,
no matter how compelling, a diagnosticreport may be a logical question which a
prosecutor or ultimately a court may ask, will be Okay, I get it,
(37:07):
she has this disorder. He hasthis disorder, but we'll hear she
commit this crime again, And whatare you going to do to ensure that
that does not take place. If, for instance, an individual comes to
me and that individual has a braininjury or some other brain disorder, then
(37:37):
I will more likely than not recommenda neuropsychologist or a neuropsychiatrist. For instance,
if, for instance, I recentlyhad a case where the young man
had schizo encephally, which basically meanshe only had a portion of a brain,
(38:04):
and his parents were very very goodabout giving me a list of all
of the prior treatment providers, aswell as providing a detailed narrative of what
their child was like on a dailybasis, And I brought in a superb
(38:27):
neuropsychologist who draw who drew a veryvery clear line between my client's diagnosis and
the conduct with which he was charged. And this I correct that there are
two things that you have to accomplishthat the most important is drawing that nexus
(38:50):
between the offense conduct and the mentalillness or disability and also satisfying the court
and the government that treatment will deterfuture criminal conduct. Right, I mean,
you got to you got accomplish boththings right exactly exactly and tied into
that ladder point in the case ofsomeone with mental disabilities paint the path forward
(39:20):
for the courts. Not only thatif the client is is released, he
or she will get the appropriate treatmentand accommodations, but also prison would be
counterproductive. Indeed, in some instancesit could be fatal. Yeah, And
(39:44):
that that leads to the next topic. You know, our courts and the
judicial system are they called up withthe issues addressing you know, the mental
disabilities and mental illnesses. And youknow, as you know, you know,
in the I guess adjudicating them guiltversus innocent, that's pretty easy.
(40:06):
It's pretty very pretty almost impossible toget not guilty by reason and insanity.
But point you just touched on iswhat do you do with them once they're
in the court and they plead guilty. I mean, it seems exists get
worse. But you know, there'sno there are not many resources in a
lot of poor states in the South, and you know, you know,
(40:28):
the in between the you know,the coast and the United States. So
we don't have here in South Carolinato do that. I promise you know.
Your point is, as is verywell taken, there is a huge
shortage of appropriate facilities. Whether youare in Anchorage, Alaska or midtown Manhattan.
That being said, in terms ofyour your first question, how how
(40:53):
converse in are courts about mental disabilities? It's not so much how conversant they
are, but how willing are theyto learn. And I have had the
privilege of being in front of somejudges who were very, very eager to
(41:14):
learn, and based on based onthat knowledge, that new found knowledge of
a mental disability and how that disabilitymanifests itself within my client, the court
was happy to make an accommodation.But there is a severe shortage of secure
(41:43):
facilities and treatment facilities, as wellas community based treatment within this country.
And the challenge that any criminal defenselawyer has when advocating for a non prison
sentence is to put together a roadmap showing twenty four to seven exactly what
(42:07):
a client is going to do,and perhaps explain to the court that because
of the geographic area where they live, there's not a perfect facility. But
these are the different kind of resourcesthat the family and council have tried to
(42:29):
weave together. So before we signoff, you mentioned to me off the
record some recent cases you're involved inwith brain injury brain development issues. One
in Indiana, one in California,and one of them defendant was facing The
(42:50):
defendant was facing forty years about probation, which is pretty damn amazing. The
other one he was facing life andhe's going to be out in like eight
years. So what led to theresults? And this is specifically interesting because
it's not a disability, it's ainjury, right brain injury. Well,
in the case of the young manfacing life, the key phrase there is
(43:16):
young man. We know the sciencetells us that the brain is still developing
into the twenties. One may bedeemed an adult at the age of eighteen
in the eyes of the law,but someone in their early twenties is still
(43:42):
functioning as an adolescent. They don'thave a sense of consequences, they're still
tremendously susceptible to peer pressure, andthey don't have the ability to evaluate consequences
like a fully formed adult would be. So in this case, I basically
(44:05):
worked on the mitigation and we wereable to put together a really rich social
history saying that until this hugely unfortunateaccident, this this this person, although
he had never although he had beenin trouble before, didn't receive the appropriate
(44:30):
resources that indeed, the juvenile systemwas more harmful than it was helpful.
And now, as as a youngman, he still hadn't acquired the tools
that he needed to function as anadult, and and that's why he committed
(44:54):
the crime in in in question.In terms of the other individual who had
schizoencephaly, which basically means a portionof a brain and who suffered a head
injury, I described this a bitearlier on. We had a superb neuropsychologist
(45:19):
who drew a line between this youngman's brain and the conduct charge. And
we also had a superb another superbpsychologist who talked about this this person's cultural
background and his early childhood and thetrauma that that exerted on him, and
(45:45):
how as a young person he hadnever really learned how to sort through that
trauma and how to deal with hisissues of anger. What's that condition called?
I feel like I have that today? Skizo and sephale And but okay,
(46:08):
it basically means, literally translated,a split brain. It sounds a
lot like schizophrenia, but it's notschizophrenia, and it certainly isn't a mental
illness. It's an intellectual disability.But before we close, Elizabeth. I
want to share experience with you theduring COVID. When coming out of COVID,
(46:30):
there's a huge backlog of criminal cases. And I had a friend of
mine who's the DA in the areawe call them solicitors, and he asked
me to volunteer to try to cleanup their backlog and a small county in
the state, and I agreed todo so. And there's one one case
that I was I was the prosecutor, but the defendant had like burned his
(46:52):
dad's trailer down that his dad lethim live on behind his dad's house.
The kid had all sorts of mentalproblems and it was you know, and
his dad had taken him in andwith the kid, I don't know what
his diagnosis was, but you know, the dad knew, we all knew
that jail was not the place forhim because he was shitting on himself every
(47:15):
day in the jail, and thejail was saying, you got to get
him out of here, you gotto get him out here, and there's
no there's no place to send himin. And that kid, you know,
he had no there was an opportunity, I'm sure, as a younger
child to get the treatment and healththe tools that he needed. And you
know, by now he's thirty yearsold, and I mean, I mean
(47:37):
we're all just stuck. And Iyou know, I left that position it
was a short term and still hadn'tfigured out what to do with him.
I mean, no one, jailwasn't the answer, but there was no
facility for him resources that. Yeah, we're like the Honestly, I think
we're like the worst country when itcomes to you know, mental health and
the mental health of our homeless andjust the lack of social workers. I
(48:00):
mean really, it's it's definitely nots And even in the case where the
the individual comes from an intact family, think about the burden on on that
family. The the parents are goingto get older, and what's going to
(48:24):
happen to that individual. And whilethat individual was growing up, his or
her presence had a huge impact onthe siblings and they may may very well
have made sacrifices to accommodate their sisteror their brother. So yeah, it's
(48:51):
a challenge and this has been veryhelpful. Lizbeth, thank you for coming
home, well, thank you forthe invitation to call who you've got to
call e Lizabeth Kelly, if Iappreciate your spotlighting this issue. Of course,
my god, and I you knowyou. I rarely go on LinkedIn,
(49:12):
but I was on LinkedIn. Ithink like my my assistant updated my
things. I was looking at itto see if it's okay, and you
popped up with this article in theABA Journal, and I was like,
oh my god, we got totalk about this. This isn't important.
Glad you did. Yeah, thankyou so much for joining us and for
our listeners and viewers. Until nexttime, Jim, well match on.
(49:39):
Yeah, but sorry, that's allright. I just wanted to let people
know that this is your first timelistening to the podcast. Maybe you've joined
because Elizabeth is our guest. We'vegot tons of other great episodes to listen
to. We're available on all thepodcast platforms at the presumption. You can
also check out the YouTube version whereyou can see Sarah popping in and out
(49:59):
of this higher conversation. That's atYouTube dot com, slash at the presumption,
and uh that's also our social mediahandles at the presumption on Twitter,
Instagram, All that good stuff,and thank you all so much for listening,
and now go ahead, Jim andSarah yeah, Sarah. Until next
week we rest
Hello, and welcome to the Presumption. And here is Jim Griffin. Hi,
Jim, Hey, Sarah, howare you today? Good? How
are you? And Matt our wonderfulproducer, Hey guys, and my wonderful
friend Elizabeth Kelly. Welcome Elizabeth tothe Presumption. Thank you so much for
inviting me, Sarah. Of course, So Elizabeth and I, before I
(00:44):
get into who she is, metat an acdo I think at my very
first meeting in San Francisco many manyyears ago. She was one of the
women who was very welcoming and Iencouraged me to get on the board and
do all these wonderful things. Andit's been an organization that I've been a
proud member of ever since. SoI've always appreciated you. I've always you
(01:08):
know, followed all the great workthat you do. And I have to
say, Jim, you know,back then, I was like, why
is this woman doing just this specificniche you know, it was a new
criminal defense lawyer, and I waslike what what, like this is all
she does? You know? Andof course, I mean, you know,
once like oh, you know,yeah, once I got into the
grind, I was like, yeah, okay, all right, So obviously
(01:30):
our podcast as its mission. Partof its mission has been to shed light
on mental illness in the criminal justicesystem. We call it the forgotten disease.
And there's really nobody better than you, Elizabeth, to talk to us
about your entire career defending those withmental disabilities. And for those of you
who don't know our listeners and viewers. Elizabeth is a criminal defense lawyer with
(01:53):
a nat nationwide practice focused on representingpeople with mental disabilities. She's the editor
of Representing People with Mental Disabilities,A Practical Guide for Criminal Defense Lawyers,
published in twenty eighteen, Representing Peopleon the Autism Spectrum, A Practical Guide
for Criminal Defense Lawyers published in twentytwenty, and then the same sort of
idea, but representing people with dementia. And these were all published by the
(02:16):
American Bar Association. She serves asthe vice chair of the AB's Criminal Justice
Section Council and on the editorial boardof Criminal Justice Section Magazine. She also
co chaired the Criminal Justice Advisory Panelof the Arts National Center for Criminal Justice
and Disability and the AB's Commission onDisability Rights, also serving on the advisory
(02:37):
board of the Neuroscience Center of FordhamUniversity School of Law. She lectures across
the US as well as abroad onrepresenting people with mental disabilities. So I
want to turn it over to Jimfirst because I just want to sort of,
you know, for us to haveclarity on the basics right, mental
illness, mental disability, What exactlyare we talking about? Well, Elizabeth,
(03:00):
Wow, that is a that iscertainly an impressive resume, and you
have distinguished yourself in this area ofthe law. And I know you make
a distinction between mental illness and mentaldisability. I'm not sure we all understand
what that is and how it playsout in the criminal justice system. So
can you educate us on the distinctionbetween certainly, thank you for that question,
(03:25):
And the question is crucially important,particularly when as a criminal defense lawyer,
I am sitting down with a prosecutoras well as advocating to a court
explaining why my client committed the conductthat he or she is charged with,
(03:46):
as well as advocating for the appropriateaccommodations within the criminal justice system. Mental
disabilities is my global term which refersto mental illness as well as intellectual and
developmental disabilities. Mental illness refers toconditions like bipolar disorder, schizophrenia, major
(04:11):
depression, post traumatic stress disorder,intellectual and developmental disabilities refers to conditions like
autism spectrum disorder, fetal alcohol spectrumdisorder, or what we used to call
mental retardation. Now an individual mayhave one or more diagnoses. So for
(04:34):
instance, an individual with autism spectrumdisorder may also have schizophrenia, or an
individual with bipolar disorder may also sufferfrom substance abuse disorder. But nonetheless,
it's very important to understand the particularcharacteristics of each diagnosis and how an individual
(05:00):
manifest the symptoms of each individual diagnosis. Elizabeth, does a drug induced psychosis?
Which does exist? I mean,does that fall within your realm of
expertise? It falls within my realmof expertise. Its particular significance varies from
(05:23):
jurisdiction to jurisdiction, because as youas you said, the long term effects
of drugs may may exert a profoundimpact on an individual, but a court
may very well consider that voluntary andas such, I'm glad Jim brought this
(05:49):
up because I had it in mynotes to ask you later on. We
just had a case in Ventura countyhere in California, which is I don't
know if you're familiar, but it'sa nightmare of a of a county to
be in. I certainly don't liketo pick up cases there. Very very
conservative, very challenging to deal withthe prosecution's office there. Anyway, my
(06:12):
friend Michael Goldstein, who Elizabeth,you might know his dad from any CDL.
I forget his father's first name,but he and Bob Schwartz were the
defense counsel on the case. Andthis woman was a nurse or I'm sorry,
she was an audiologist at UCLs isa doctor, and she was given
(06:32):
this weed by her boyfriend who wasIt was extremely potent, this weed,
like I've read about that case,yes, yes, and it came with
this warning label and all of this, and she went nuts and she stabbed
him I think over one hundred timesor something like that. She stabbed herself
(06:54):
over forty times. She lived.He didn't a friend of his time to
fight at the trial that that hewas given the same pot and talked about
all the crazy things that happened tohim as a result of smoking that weed.
So the woman gets, I believe, convicted of involuntary manslaughter and gets
(07:15):
probation and everyone went nuts. Psychosis, my ass psychosis, you know what
psychosis. She took it because shewanted to take it. You know,
all these arguments that you're talking about, you know, the voluntariness. But
I guess it depends, right,if this person is not a podthead they're
smoking something for the first time.It comes with all kinds of warnings.
There's a real thing. And whenI speak to therapists, they say,
(07:38):
look, psychosis is fleeting. Youcan be in psychosis now and find minute
fluid state. It's a state,and depending upon how the statutes read,
it could have very well been thatshe lacked the intent to commute the con
(08:00):
So at that point, you're talkingabout traditional men's rail arguments. Within the
field of mental disabilities. You're typicallyarguing competency insanity, and typically voluntary intoxication
is not recognized as an affirmative defenseunder the major heading of not guilty by
(08:28):
reason of insanity, but it variesfrom jurisdiction to jurisdiction. Okay, So
look, you were just telling Jimabout the different types of disabilities and the
distinction between disability and mental illness,including individuals who are on the spectrum.
(08:50):
Now, I've personally never defended anybodyon the spectrum. I've had victim Dara,
you probably did, but you maynot have recognized it. And on
the spectrum are often very good aboutmasking their symptoms, particularly girls and women.
Well, and they're also functional inmany areas of life. They could
(09:13):
be more functional than we are.Yes, yeah, yeah, highly intelligent
exactly. So maybe I did.But let me say knowingly, I don't
think knowingly I've represented anybody on thespectrum, but I've certainly had accusers who
and it was very challenging also inthat respect to just to cross examine,
(09:33):
to interview all of that. SoI want to talk to you a little
bit about this. You know,how is it like you You recently represented
a man this was really interesting tome, named Devlin Thompson, who was
sentenced for attacking a police officer duringthe January sixth riot at the at the
(09:56):
US Capitol, And it seems likethe court didn't it wasn't swayed by this
whole presentation of you know, hislack of men's rea because he was on
the spectrum. Well, I thinkI think it's important to recognize the symbolism,
if you will, of the insurrectionon the Capitol. And as I
(10:20):
have said to some people, thejudge was very thorough in his reading of
our sentencing memorandum, and he consideredall of the arguments. But I think,
but didn't he have to say,didn't you also say, this guy's
been holding a job at ninety thousanddollars a year or so, Well,
(10:41):
let me let me get to that. But but I think at bottom,
the judge was profoundly offended by whatthe march on the Capitol meant. Now,
going going back, what what thejudge said in that particular context is
very very typical of what many judgesand also prosecutors say. That is to
(11:07):
say, if you present to thecourt your client with a constellation of symptoms,
they don't always understand how it canbe contradictory. So, for instance,
in that particular instance, my clientwas on the autism spectrum. Indeed,
(11:28):
he was diagnosed many years before,and the current evaluations I had of
him were very clear cut. Butby the same token, this client was
indeed functional in some areas. Hefor instance, had held a job and
(11:50):
it was a very responsible job.But some people are unable to square the
concept of a developmental disability like autismspectrum disorder, where the client is very
intelligent with the fact that indeed theyare impaired in many areas of their life,
(12:18):
not the least of which is theirsocial communication, their ability to understand,
and their executive functioning. So,for instance, on another level,
you can have a client with anintellectual disability, and you can explain to
(12:39):
the court all of the ways inwhich your client has difficulty functioning, but
then the court points to the factthat, well, he graduated from high
school. What you then have toexplain is that he went to school during
the era when one was basically givena courtesy diploma and was in special education
(13:05):
courses all the way through high school. So it's the diagnoses are often fraught
with different nuances, and different factsin a client's life may be contradictory to
(13:28):
a mental disability. That's one ofthe reasons why it's very important during the
course of a forensic evaluation for theexpert to interview family, friends, neighbors,
coworkers, to amass that longstanding socialhistory to explain how they've always been
(13:54):
like this. No, they arenot manufacturing this diagnosis for per less of
litigation, and also to reach backand get school records, treatment records,
hospitalization records, military records, whathave you. Well, you know what,
Yeah, of the clients that yourepresent who say have a mental disability
(14:20):
have been undiagnosed until you know theencounter of the criminal justice system, and
then you know, then you're calledin. It's it's a healthy percentage for
a couple of reasons. First ofall, if they are older, and
excuse me by older, I meanforty onward, they may have gone to
(14:43):
schools. We're old, Matt's not. Basically, they may they may have
gone to school when educators, aswell as their families, we're not conversant
in different kinds of medical of mentaldisabilities and simply dismissed certain behaviors as being
(15:09):
odd or abnormal, or he'll growout of it, or she'll change beyond
that. Even in families where theaccused is in their say, twenties or
so, and their family is relativelywell educated, it could have been that
(15:35):
for years they have known that theirnow adult child was different, but they
were unable to get an accurate diagnosis, and accordingly, they were unable to
obtain for their now adult child theappropriate accommodations that would have made it easier
(16:00):
to manage the symptoms of that diagnosis. You know, it's interesting because when
you think back to you know,like my parents' generation, it's very different
today, you know, thankfully.You know, when I have a cousin
who is severely OCD. He's probablyclose to sixty years old now, he
(16:22):
won't even leave the house. Butwhen he was a kid, I remember
him turning the light switch on andoff like a million times and wanting a
certain people just dismiss that as beingodd. Be cute, yeah, and
like he wanted like certain number ofkisses and specific part of his cheek from
his mother before going to bed,and it was like, oh, how
cute my son is, you know, so loving. Well, it wasn't
(16:47):
cute, it was OCD. Andit got so bad that, you know,
I mean, it's literally as handicappedhim, can't hold a job,
can't leave the house. But now, thankfully, I think we're, like
you said, we're EDU hit itenough and you know, and more open
to treatment than I think other generationswere. So I want Jim to dig
(17:10):
into dementia with you, because Ithink that's so fascinating, and idea can
ask a quick question before Jim doesthat. Yeah, I'm just curious.
It sounds like part of this processis having to essentially prove that these symptoms
are not manufactured. And my questionis what percentage of it is manufactured?
(17:32):
Like it's it seems to me likea TV stereotype. But that can't possibly
You can't possibly have clients that arelying about this, So why is that
even a question? Yeah, Iwould say that probably during the course of
my career, I had one individualwho, and I don't want to say
was faking it, but he wasprobably exaggerating his symptoms. That being said,
(17:59):
the vast majority of my clients ninetynine percent have a diagnosable mental disability,
and there is a nexus between theirdisability and the conduct of which they
are charged. But for people whodon't have experience with mental disabilities, they
(18:26):
could be cynical about the diagnosis,and also if they are a victim or
if a family member is a victim, they could very well be inclined to
dismiss it as a charge or diagnosisconveniently manufactured for purpose of litigation. You
(18:55):
may have heard or even remember thecase of John Hinckley, who attempted to
assassinate President Reagan, and he wasfound not guilty by reason of insanity,
and that started to perpetuate the myththat defendants were getting off all over the
(19:18):
case, all over the place byclaiming not guilty by reason of insanity.
And in addition, many insanity statuteswere made more rigorous in order that fewer
people would be able to meet thatvery very high legal burden. Sure,
(19:42):
let's let's talk briefly about dementia.And it was not one of my cases,
but it was someone who I knewand respected growing up. He was
he held the positions of authority inour community, and as he got older,
he was at the YMCA and hewas in the pool and there was
a kid that bumped into him,and he's, you know, an elderly
(20:04):
man just started beating on the kidfor you know, no reason. He
gets arrested for assault, and youknow, everyone is just shocked, and
you know, it turns out,you know, I mean, he had
some dementia going on that Frankly,he had not been diagnosed before. How
often do you see that we aregoing to be I have seen it.
(20:25):
I continue to see it, andwe are going to be seeing more of
it because Jim and Sarah and Matt. As the population lives longer, that
population is going to have more physicalinfirmities as well as cognitive infirmities, and
(20:47):
dementia is part of that. SoJim, that formerly well behaved, respected
gentleman, lost his inhibitions, losthis filters, and committed an offense which
during his prime he never would havecommitted. And one of the challenges we
(21:11):
have is to figure out how toaccommodate this population within the criminal justice system.
First of all, the standard definitionof incompetent of competent to proceed doesn't
necessarily apply, because if someone isfound incompetent to proceed, then the court
(21:38):
will order a period of restoration.There's no way an individual who has dementia
will ever be restored. The metaphorI use with families is once they fall
off the cliff, they will neverbe brought back. The us that can
(22:00):
be done is to manage those symptomsand to understand that in the coming weeks
and months and years, those symptomsare only going to intensify. Beyond that,
our jails and our prisons are notequipped to to to treat and to
(22:25):
house individuals with with with dementia.They require intense medical attention and also they
can be very disruptive and are Ourprison institutions are built on on order and
(22:45):
strict codes of conduct which people withdementia simply cannot abide by. We know,
we had Peter Eliasberg of the ACLUas a guest not too long ago,
and he was talking about our conditionshere in LA and the jails here
and how we treat mental I mean, we just don't have programs. They
(23:07):
need programs, they need care.And what they do is they basic meditation,
the proper medication and medications some basicyeah, basic whatever, minimum standard,
substandard, whatever it is that theygive them and then they chain them
to the bench and they leave themthere for because they just don't know where
to put them, you know.So it's really yeah, oh yeah,
(23:29):
I mean it's it's dehumanizing. Butbeyond that, if someone has a mental
illness or any kind of mental disability, a custodial environment is only going to
traumatize them. And most of theseindividuals will one day be back in our
(23:55):
neighborhoods, in our communities, andif they were damaged individuals going in.
We do not want them to beeven more damaged individuals when they emerge,
not only from a humanitarian standpoint,but also from the standpoint of they could
(24:18):
commit additional crimes if they are notappropriately if they are not humanely dealt with
by the criminal justice system. Right, and no mistake, jails and prisons
were never intended to be therapeutic environments. Would you say, Jim, I
think you're about to ask her aboutnot guilty by reason of insentity? Oh?
(24:42):
Yeah, I'm very curious in Imean, you kind of touched on
how that they've made it less possibleor more restrictive for people to claim NGI
based on mental disability mental illness.But can you tell us, can you
give us an example of where amental illness or mental disability in a case
(25:04):
that you've been involved in has ledto NNGI or at least was partially successful
in that quest. Well, firstof all, a good NNGRI case is
very very rare. That being said, the most successful, or if you
will, the most promising cases arethose where a doctor, either a psychologist
(25:33):
or a psychiatrist gets into the jailand interviews the person as soon as possible
after the alleged crime, when thatperson is probably still flooridly psychotic, and
before any medications that the jail isgiving that person take effect. And some
(26:00):
conditions are more inclined to produce successfulinstances of NNGRI, like bipolar disorder,
schizophrenia, schizo affective disorder you mentionedearlier a relative who had OCD. Yeah,
(26:23):
very very rarely is an individual withOCD able to mount a successful NGRI
defense, But the conditions where psychosisis prominent usually hold the most promise.
(26:48):
Yeah, I mean early in mycareer, I remember I had a guy
was a quarter pointed case to me. He was on a bus and he
stabbed the bus driver. But hewent into the psychosis and he thought that
he's being attacked, you know,I mean that was a it wasn't an
act. And and and yeah,and and some of those delusions come because
(27:10):
of the fact that they suffer fromPTSD, right, I mean, and
the and they are fleeting right attimes. I mean, you could have
the lor what you're talking about.You could go into just a rage of
PTSD, for example, and andthen and then shake out of it and
be lucid after the fact. Isuspect. I don't know. You're absolutely
(27:32):
right about that. It's a fluidstate, right, and it makes it
all that more challenging the now.I mean, we talked about not guilty
by reason and sanity, and ourlisteners may not know exactly what the legal
definition is. Can you sort ofgive us a layperson's rendition of what it
means to be not guilty by reasons? Well, there are there are over
(27:52):
fifty different definitions of nngr I orng I as you say, in California,
we Jim's in South Carolina, thoughwe're somewhat insane here. But but
every every jurisdiction has its own definitionof not guilty by reason of insanity.
(28:22):
And the the challenge is that themental health expert, uh based on their
their thorough evaluation of an individual bythorough I mean interview with with the accused,
his or her family, friends,neighbors, review of records, has
(28:48):
to fit all of that into avery narrow and confining legal definition. Mm
hm. And whatever that is.I always people always ask me, well,
what about competency, how do youdistinguish it? Whatever that is that
pertains to the time the crime wascommitted. Yeah, exactly exactly how PA
(29:12):
trial. Yeah, Competency insanity arevery very different inquiries. Competency assesses a
person's present ability to proceed with theirlegal case, and you, you be
accused, must be competent at allstage of the proceedings, whether it is
(29:38):
during the initial charging, through pretrial proceedings, through trial, through imposition
of sentence, even as perverses itsounds at the time of execution, and
it's an attorney's responsibility to continually assesscompetent to proceed. Competent to proceed it
(30:03):
basically has one definition nationwide, andthat's that an individual understand the nature of
the proceedings and have the present abilityto assist counsel with his or her defense.
That as the way it plays out, is a very very low standard
(30:26):
to meet within the legal system.On the other hand, not guilty by
reason of insanity is a very highstandard, and it goes back to assess
one's ability to understand and function atthe time the crime was committed. And
(30:51):
that's one of the reasons why Isaid earlier that for an NNGRI defense to
be success usful, it is vitallyimportant that the mental health expert meet as
soon as possible, observe as soonas possible after the crime, the individual's
(31:14):
conduct on the switch gears now andtalk about something you mentioned earlier, you
know, voluntary intoxication, voluntary druguse. But we all know that you
know a lot of people with mentalillness, bipolar disorder, for example,
and you know they don't have healthinsurance, they don't have medications to treat
it, and they self medicate withstreet drugs and they get hooked on them.
(31:38):
And so, you know what,how do you persuade judges and more
prosecutors that the defendant's drug use isnot you know, completely voluntarily voluntary,
it's you know, it's self medicatingmental illness for example. That's something it
is. It is a challenge becauseof course drug use is illegal except in
(32:00):
certain certain jurisdictions. But it's alsoimportant to explain to the court that with
many individuals, it's difficult to understandwhere the mental illness ends and the substance
use disorder begins. Indeed, theyare interrelated and both must be treated.
(32:28):
Well. That's why we have dualdiagnosis facilities now. There used to be
a time where we would throw peoplein a treatment center for alcohol you know
for alcoholics, right, and wehad it would work, yeah, and
it didn't work, and they wouldcome out, they would they would go
right back to the substance again,and we would leave the underlying UH issue
completely untreated. You know. Oneof the interesting things. I had a
(32:51):
woman, a young woman who hadbipolar disorder and UH was a meth user.
And to Jim's point, it's exactlywhat she was doing. She hated
the medication that she was supposed totake, she refused to take it.
Her mother couldn't you know, forceher to take it. And then she
was using meth. Was you know, had a drug dealer boyfriend, so
(33:13):
it was easy for her to getit. And I had to jump through
some loops to convince the court.By way of first I had her medical
records from Kaiser showing that she's actuallysupposed to take this medication for bipolar disorder,
that that is her diagnosis. Andthen because she never had substance abuse
treatment, then I had to,you know, put somebody in place to
(33:35):
sort of counsel her and then gether into a treatment center. So it
was like two different tracks. Butthere's no way that a court could look
at someone like that and say she'smaking it up. I mean it was
clear she was, you know itwas. And beyond that, yeah,
there are often profound side effects withdifferent medications, whether it it it dulls
(34:00):
their ability to think and be creative. Uh, weight gain, which in
itself is on healthy, different kindsof ticking following asleep, So that that
that can't be denied. So tellus, Elizabeth, because Jim and I
(34:22):
obviously we have some some mental healthcomponent and almost all of our cases,
you know, once we get toknow the client their history, even if
they're not completely that they don't havea mental illness, there's some sort of
emotional issue and developmental issue that thatyou know, we try to focus on
(34:42):
in their defense. Is so foryou being that you know you're your folks,
the focus of your practice is this, how do you tackle a case?
So what is you know, thisis a compound question. What does
the evaluation process look like? Doyou have a team of experts in place?
Do you start with a evaluation bya particular expert and then go from
there create a roadmap, or youknow, how do you take a deep
(35:04):
dive to get started? You raiseda thousand different questions. First, First
of all, it depends upon howthe client comes to me. Typically,
quite frankly, it's it's the parents. And let's say the parent has been
(35:29):
very involved in their adult child's lifeand is very savvy as to the diagnosis
the way their their adult child manifeststhe symptoms of the diagnosis. UH can
list the various treatment providers, anyfacilities, attempts at accommodations, et cetera.
(35:55):
Based on the diagnosis, I thenwill suggest a qualified mental health expert
or team of experts. So,for instance, in in the case of
someone with autism spectrum disorder, thatis a very specialized field, and I
(36:21):
have a few go to experts.I also know that a good expert will
very will stay in his or herlane. So for instance, that expert
may only want to do a diagnosticreport, and I may need to bring
(36:44):
in a special expert to give anopinion as to future dangerousness, because,
no matter how compelling, a diagnosticreport may be a logical question which a
prosecutor or ultimately a court may ask, will be Okay, I get it,
(37:07):
she has this disorder. He hasthis disorder, but we'll hear she
commit this crime again, And whatare you going to do to ensure that
that does not take place. If, for instance, an individual comes to
me and that individual has a braininjury or some other brain disorder, then
(37:37):
I will more likely than not recommenda neuropsychologist or a neuropsychiatrist. For instance,
if, for instance, I recentlyhad a case where the young man
had schizo encephally, which basically meanshe only had a portion of a brain,
(38:04):
and his parents were very very goodabout giving me a list of all
of the prior treatment providers, aswell as providing a detailed narrative of what
their child was like on a dailybasis, And I brought in a superb
(38:27):
neuropsychologist who draw who drew a veryvery clear line between my client's diagnosis and
the conduct with which he was charged. And this I correct that there are
two things that you have to accomplishthat the most important is drawing that nexus
(38:50):
between the offense conduct and the mentalillness or disability and also satisfying the court
and the government that treatment will deterfuture criminal conduct. Right, I mean,
you got to you got accomplish boththings right exactly exactly and tied into
that ladder point in the case ofsomeone with mental disabilities paint the path forward
(39:20):
for the courts. Not only thatif the client is is released, he
or she will get the appropriate treatmentand accommodations, but also prison would be
counterproductive. Indeed, in some instancesit could be fatal. Yeah, And
(39:44):
that that leads to the next topic. You know, our courts and the
judicial system are they called up withthe issues addressing you know, the mental
disabilities and mental illnesses. And youknow, as you know, you know,
in the I guess adjudicating them guiltversus innocent, that's pretty easy.
(40:06):
It's pretty very pretty almost impossible toget not guilty by reason and insanity.
But point you just touched on iswhat do you do with them once they're
in the court and they plead guilty. I mean, it seems exists get
worse. But you know, there'sno there are not many resources in a
lot of poor states in the South, and you know, you know,
(40:28):
the in between the you know,the coast and the United States. So
we don't have here in South Carolinato do that. I promise you know.
Your point is, as is verywell taken, there is a huge
shortage of appropriate facilities. Whether youare in Anchorage, Alaska or midtown Manhattan.
That being said, in terms ofyour your first question, how how
(40:53):
converse in are courts about mental disabilities? It's not so much how conversant they
are, but how willing are theyto learn. And I have had the
privilege of being in front of somejudges who were very, very eager to
(41:14):
learn, and based on based onthat knowledge, that new found knowledge of
a mental disability and how that disabilitymanifests itself within my client, the court
was happy to make an accommodation.But there is a severe shortage of secure
(41:43):
facilities and treatment facilities, as wellas community based treatment within this country.
And the challenge that any criminal defenselawyer has when advocating for a non prison
sentence is to put together a roadmap showing twenty four to seven exactly what
(42:07):
a client is going to do,and perhaps explain to the court that because
of the geographic area where they live, there's not a perfect facility. But
these are the different kind of resourcesthat the family and council have tried to
(42:29):
weave together. So before we signoff, you mentioned to me off the
record some recent cases you're involved inwith brain injury brain development issues. One
in Indiana, one in California,and one of them defendant was facing The
(42:50):
defendant was facing forty years about probation, which is pretty damn amazing. The
other one he was facing life andhe's going to be out in like eight
years. So what led to theresults? And this is specifically interesting because
it's not a disability, it's ainjury, right brain injury. Well,
in the case of the young manfacing life, the key phrase there is
(43:16):
young man. We know the sciencetells us that the brain is still developing
into the twenties. One may bedeemed an adult at the age of eighteen
in the eyes of the law,but someone in their early twenties is still
(43:42):
functioning as an adolescent. They don'thave a sense of consequences, they're still
tremendously susceptible to peer pressure, andthey don't have the ability to evaluate consequences
like a fully formed adult would be. So in this case, I basically
(44:05):
worked on the mitigation and we wereable to put together a really rich social
history saying that until this hugely unfortunateaccident, this this this person, although
he had never although he had beenin trouble before, didn't receive the appropriate
(44:30):
resources that indeed, the juvenile systemwas more harmful than it was helpful.
And now, as as a youngman, he still hadn't acquired the tools
that he needed to function as anadult, and and that's why he committed
(44:54):
the crime in in in question.In terms of the other individual who had
schizoencephaly, which basically means a portionof a brain and who suffered a head
injury, I described this a bitearlier on. We had a superb neuropsychologist
(45:19):
who drew a line between this youngman's brain and the conduct charge. And
we also had a superb another superbpsychologist who talked about this this person's cultural
background and his early childhood and thetrauma that that exerted on him, and
(45:45):
how as a young person he hadnever really learned how to sort through that
trauma and how to deal with hisissues of anger. What's that condition called?
I feel like I have that today? Skizo and sephale And but okay,
(46:08):
it basically means, literally translated,a split brain. It sounds a
lot like schizophrenia, but it's notschizophrenia, and it certainly isn't a mental
illness. It's an intellectual disability.But before we close, Elizabeth. I
want to share experience with you theduring COVID. When coming out of COVID,
(46:30):
there's a huge backlog of criminal cases. And I had a friend of
mine who's the DA in the areawe call them solicitors, and he asked
me to volunteer to try to cleanup their backlog and a small county in
the state, and I agreed todo so. And there's one one case
that I was I was the prosecutor, but the defendant had like burned his
(46:52):
dad's trailer down that his dad lethim live on behind his dad's house.
The kid had all sorts of mentalproblems and it was you know, and
his dad had taken him in andwith the kid, I don't know what
his diagnosis was, but you know, the dad knew, we all knew
that jail was not the place forhim because he was shitting on himself every
(47:15):
day in the jail, and thejail was saying, you got to get
him out of here, you gotto get him out here, and there's
no there's no place to send himin. And that kid, you know,
he had no there was an opportunity, I'm sure, as a younger
child to get the treatment and healththe tools that he needed. And you
know, by now he's thirty yearsold, and I mean, I mean
(47:37):
we're all just stuck. And Iyou know, I left that position it
was a short term and still hadn'tfigured out what to do with him.
I mean, no one, jailwasn't the answer, but there was no
facility for him resources that. Yeah, we're like the Honestly, I think
we're like the worst country when itcomes to you know, mental health and
the mental health of our homeless andjust the lack of social workers. I
(48:00):
mean really, it's it's definitely nots And even in the case where the
the individual comes from an intact family, think about the burden on on that
family. The the parents are goingto get older, and what's going to
(48:24):
happen to that individual. And whilethat individual was growing up, his or
her presence had a huge impact onthe siblings and they may may very well
have made sacrifices to accommodate their sisteror their brother. So yeah, it's
(48:51):
a challenge and this has been veryhelpful. Lizbeth, thank you for coming
home, well, thank you forthe invitation to call who you've got to
call e Lizabeth Kelly, if Iappreciate your spotlighting this issue. Of course,
my god, and I you knowyou. I rarely go on LinkedIn,
(49:12):
but I was on LinkedIn. Ithink like my my assistant updated my
things. I was looking at itto see if it's okay, and you
popped up with this article in theABA Journal, and I was like,
oh my god, we got totalk about this. This isn't important.
Glad you did. Yeah, thankyou so much for joining us and for
our listeners and viewers. Until nexttime, Jim, well match on.
(49:39):
Yeah, but sorry, that's allright. I just wanted to let people
know that this is your first timelistening to the podcast. Maybe you've joined
because Elizabeth is our guest. We'vegot tons of other great episodes to listen
to. We're available on all thepodcast platforms at the presumption. You can
also check out the YouTube version whereyou can see Sarah popping in and out
(49:59):
of this higher conversation. That's atYouTube dot com, slash at the presumption,
and uh that's also our social mediahandles at the presumption on Twitter,
Instagram, All that good stuff,and thank you all so much for listening,
and now go ahead, Jim andSarah yeah, Sarah. Until next
week we rest
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