The criminal defense lawyers at Futeral & Nelson handle cases for people with special needs, intellectual disabilities, and mental illness. Some people who face these challenges are completely functional in society or are at least very high functioning. Others, however, really can’t distinguish right from wrong. Issues such as impulsivity and lack of control can cause an innocent person to do something bad.
While intellectual disabilities and mental illnesses are two very different things, the court procedures have a lot of similarities. For this reason, we will describe the procedures for both in this one article. These circumstances create a number of issues for the defense lawyer that are not present in most criminal cases. Below, we will explain the primary ways that intellectual disabilities and mental illnesses are handled in a criminal case, including how we interact with the client and what to expect in court.
How Does a Lawyer Communicate with a Client with Special Needs or a Mental Illness?
This question depends on the client. If you are reading this, there’s a good chance you are the parent or guardian of a special needs child or adult. We will rely on you to educate us as to what level of understanding our client has and what terms and phrases we should use when speaking with the person charged with the crime. While our ultimate goal is to defend the charge as successfully as possible, we must also be mindful of the mental state and self-esteem of our client. We want to explain as much as the person can understand without doing damage to their self-esteem.
An additional issue is that of decision-making. If the defendant doesn’t understand what they did wrong, then how is the person supposed to make decisions regarding the case? That is where we need a parent or guardian to step in, and we can guide or refer you to make sure you have the legal decision-making authority if you don’t already. One common way of dealing with this is for the parent of an adult child to ask the Probate Court to appoint a guardian and conservator of the adult child. For a variety of reasons, we need this process to be completed as early as possible. From there, you can make the decisions in your child’s best interests.
Is My Special Needs or Mentally Ill Family Member Fit to Stand Trial in South Carolina?
It all depends on the facts of the case and the circumstances of the defendant. Before we go further, please know that “fit to stand trial” and “competent to stand trial” are often used interchangeably.
The person will need to be evaluated, usually by multiple examiners. Selection of the examiner can be important. Some are known to be very “prosecution-friendly” (too easily find the person competent to stand trial) or very “defense friendly” (too easily find person incompetent to stand trial). We explain the examination process in more detail in the sections below.
The standards for the examiners, and later the court, to review are not the same as determining incompetency in Probate Court. Instead, South Carolina examiners and courts look at a two-prong analysis to determine if someone is competent to stand trial:
- The Cognitive Prong: They first determine whether a person can understand the proceedings, what he or she is being tried for, the reason for punishment, and the extent of punishment.
- The Assistance Prong: They also must determine whether an accused person can rationally communicate with his or her attorney, mainly so that the attorney can appropriately prepare the case for trial.
If both of these prongs are met, then the court will need to determine whether the person will become competent in the foreseeable future. In most cases of intellectual disability of an adult, this will not be the case. In cases of mental illness, sometimes the person can later become fit for trial.
How Do You Determine Whether Someone is Fit to Stand Trial in South Carolina?
First, there needs to be a finding of incompetency. We, as criminal defense lawyers, will often initiate this process on our own to ensure that it is done satisfactorily. However, a judge might initiate such a process on his or her own. The judge may decide to order an examination of the person by two examiners designated by the Department of Mental Health (DMH) if the person is suspected of having a mental illness or designated by the Department of Disabilities and Special Needs (DDSN) if the person is suspected of having an intellectual disability. Another option for the judge is to order the person committed for examination and observation by DMH or DDSN for up to 15 days (with a possible extension of 15 additional days).
Even if the court begins the process, we might make a motion to have an additional examination done by an examiner of our choosing, but the court may prescribe the time and conditions under which the independent exam is done. In some cases, we may even go ahead and get our own exam done early in the case, before the court’s involvement on the issue, and try to reach some agreement with the prosecutor.
The examiner(s)’ report is then reviewed by the court. The report should include (1) a diagnosis of the person’s mental condition as well as clinical findings bearing on the issues of whether or not the person is capable of understanding the proceedings against him and assisting in his own defense, and if there is a substantial probability that he will attain that capacity in the foreseeable future. At the hearing, the court will either:
• Find the person is fit to stand trial, in which case it will resume the criminal proceedings as normal.
• Find the person is unfit to stand trial, and the prosecutor will then be responsible for initiating judicial admission proceedings with the Probate Court. During this time, the court can order the person to be hospitalized, to be detained, or to remain out on bond if the person is on bond.
• Find the person is unfit to stand trial but likely to become fit in the foreseeable future, and it will order the person hospitalized for up to 60 days.
If a person is found unfit for trial, that person can be reexamined approximately every six months thereafter.
What if the Criminal Defendant is Found “Competent to Stand Trial” in South Carolina?
If this is the case, then we have to defend the charge to the best of our ability, despite the communication barriers that sometimes exist. It is possible for a Probate Court to find a person incompetent to manage his or her personal affairs but a Criminal Court to still say the person is fit to stand trial. If we can beat the charge, we will. However, if the evidence against our client does not look favorable to us, and we decide a plea is best, or the client is convicted at trial, then we have to deal with the “sentencing phase.”
The “sentencing” is where the judge decides what the punishment is going to be after a person is convicted. Conviction generally comes because either the defendant pled guilty or because a jury found the person guilty. At the time of sentencing, we present evidence as to the person’s character, such as the person’s past criminal record, whether mitigating circumstances exist, whether the accused is remorseful for their crimes, the possibility of rehabilitation, and a number of other factors. In other words, we are going to argue that our client should not be sentenced the same as others who have committed the same crime.
We can introduce evidence, including hearsay evidence, to make our case. We will ask you what witnesses could come to the sentencing hearing, either to just be present or to actually speak. This list of people could include friends, family, teachers, therapists, or anyone else who might be good for this hearing. We will likely ask you to get together things like IEP’s and evaluations so we can show the judge that your child did not recognize what they were doing, or at least the magnitude of what they were doing when the crime occurred. If jail is on the table, will argue that jail would be an extreme punishment for this type of client and that a probationary sentence with monitoring would be more effective. Ultimately, it all just depends on the extent of your loved one’s disabilities or special needs as to how we will present the case at sentencing.
If we go to trial, we may be able to convince a jury that our client did not have the requisite mental capacity to intentionally or recklessly commit a crime.
What Happens if My Family Member is Found to Have Special Needs or Intellectual Disability?
Either we or the prosecutor will initiate proceedings in the Probate Court or Family Court to see if the defendant should be “involuntarily committed. The court will then set a hearing. The person has a right to an attorney during these proceedings. If you have hired the attorneys at Futeral & Nelson, the fee we quoted you likely includes the Probate proceedings as well.
The examiner(s)’ reports will be reviewed at this hearing. If the court determines that the person needs to be placed with a facility or service program of DDSN, the court will order involuntary commitment (or judicial admission). The court has a lot of discretion as to what type of program to assign the person. Appeals from the court’s decision are allowed.
What Happens if My Family Member is Found to be Mentally Ill?
The prosecutor will initiate proceedings for a judicial commitment by the Probate Court, which will include a certificate of a designated examiner stating that he has examined the person and is of the opinion that he is mentally ill and should be hospitalized. The person has a right to an attorney during these proceedings. If you have hired the attorneys at Futeral & Nelson, the fee we quoted you likely includes the Probate proceedings as well.
The Probate Court will usually appoint two additional examiners, one of which must be a licensed physician. These examiners will report to the court on the person’s mental condition and need for treatment. If this seems redundant with the earlier examinations, remember that the earlier examinations were done to assist in determining whether the person is competent to stand trial, not to address what type of treatment might be needed. The lawyer for the person dealing with mental illness may request an additional examination by an independent designated examiner.
If the examiners have the opinion that the person is not mentally ill so that involuntary treatment is needed, the court will dismiss the petition. If the two court-appointed examiners have different opinions, the court may dismiss the petition, or it may appoint a third examiner who must be a psychiatrist, and the three examiners must then decide on a majority opinion. If the examiners are of the opinion that involuntary commitment is required, the court will schedule a hearing. We can call witnesses at this hearing, including the favorable or unfavorable examiners.
If the hearing proves that the person is mentally ill and needs involuntary treatment, the judge must decide if either the person “lacks sufficient insight or capacity to make responsible decisions with respect to his treatment,” or if “there is a likelihood of serious harm to himself or others.” If either of these conditions exists, the court has a lot of discretion on what to do, including ordering inpatient or outpatient treatment. The treatment can occur in pretty much any type of institution, private or public. Appeals are allowed if either side disagrees with the Probate Judge’s decision. Every six months, the defendant (or an “interested person” such as a family member) can ask for a reexamination to determine whether he or she should be released.
Can We Still Present a Defense if the Defendant is Found Unfit for Trial?
Yes. Even if a person is found unfit for trial, the person’s lawyer in some situations can request an opportunity to offer a defense to the court (except for the defense of insanity). If the court allows this request, the evidence of the prosecution and of the defense will be heard before a judge (without a jury). If the judge believes that certain standards are met, it can dismiss the case altogether without the need for judicial admission proceedings.
What Should I Do if My Child or Family Member With Mental Illness or Intellectual Disability is Accused of a Crime in South Carolina?
Schedule a consultation with the attorneys at Futeral & Nelson immediately. We do not charge a consultation fee for criminal cases. In the meantime, please get together all of the documents relating to the crime, but please also start gathering evaluations, IEP’s, progress reports, and anything else you may have that gives insight on the special condition of your loved one. In addition to what we would normally do to prepare a case for trial, we will also consider all other options available to people with intellectual disabilities or mental illnesses.