Working With Experts: Bringing Mental Health Professionals onto the Team & Protocols for Referral Questions

1. Working With Experts: How and When to Bring Mental Health Professionals onto the Team & Protocols for Referral Questions and Other Communications Danalynn Recer Gulf Region Advocacy Center www.gracelaw.org

2. “Mental Health”: Broaden Our Understanding • Not just mental illness, • Not just established facts. • Not necessarily a diagnosis, • Not just mood & emotional disturbances • Not just psychiatric/psychological illness • Dynamic narrative of functional status. • Questions that must be asked and answered. • Development over time with a plot. • Includes cognitive functioning, verbal processing, memory • Relationship of Neurologic/Biologic Status with perception, behavior, presentation

3. Issues • Legal Questions: • Competency to stand trial; Sanity; Voluntariness of statements; waivers; mens rea for crime; Mental Retardation; Mitigation; prison adaptation; competency to be executed. • Relationships • Between the team and the client & client’s family • Between the client and family, jailers, prisoners, etc. • Science of Mental Health

4. Issues • Behavior • Of the client in the jail, in the courtroom • Client & family’s cooperation with investigation • Client & family’s reception of the plea • Of the team with the client, family & toward client in the courtroom

5. Core Defense Team MUST Drive the Bus: • Delegation without Abdication • No one-stop shopping • Experts cannot run the show • Attorneys and Mitigators working collectively MUST: • Select appropriate experts; • control testing and evaluations; • Write careful referral questions; • control access to information.

6. Core Defense Team MUST Learn and Discuss: • Appropriate Evaluation and Testing Standards • Dangers and Benefits of Diagnosis • Dangers and Benefits of Different Areas of expertise. • Accept that Client’s “mask” • Recognize signs and symptoms (but don’t diagnose!)

7. The Right Time to Hire Experts • The Methodology of Medicine vs. Law • Consulting vs Evaluating vs Testifying • Too Soon vs Too Late • What information will Change? www.gracelaw.org

8. Hiring the Right Experts • Field & Qualifications • Specialization • Clinical vs. Forensic • Culturally Appropriate www.gracelaw.org

9. Written referral question • What are the social, psychological, developmental, familial, cultural, religious and environmental factors that played/play a role in shaping our client’s development and functioning? • How did/do each of these factors shape our client’s social and psychological development and functioning? www.gracelaw.org

10. Giving Experts Access to Information • Filter and Control ALL Data Going to Testifying Witnesses • Subjective information; exercise of discretion • Review all data in expert’s file • Interim Memos Seeking Guidance • “Not to be relied upon for expert opinion” • Sanitized Social History • YOU write reports (if necessary) www.gracelaw.org

11. Giving Experts Access to Witnesses • Carefully Vetted Witnesses • Anticipate and Deal with Problems • Inoculate witness, limit to what they really know • Collateral evidence to refresh witness’ memory before expert visits • But, Don’t Sandbag Your Own Witness • What will state have access to? www.gracelaw.org

12. Essential Activities • detailed social history • chronology of life events - especially school history • summary of key data • respondent identification and availability

13. What must be done -- IMHO • Have to be able to move folks away from the stereotypes. • Have to be able to educate folks about “mild” mental retardation. • Have to find more powerful ways to convey this information. • Have to be able to summarize the MR prongs with clear, visually- oriented arguments.