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

“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

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

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

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.

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!)

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?

Hiring the Right Experts Field & Qualifications Specialization Clinical vs. Forensic Culturally Appropriate

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?

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)

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?

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

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