Mental Disease or Defect
The ability of the accused to assist his or her attorney in their case is a right guaranteed to every defendant under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Dusky v. U.S. If the accused is not competent to assist his or her counsel, the charges must be dismissed. The failure of a criminal defense attorney to raise the issue of his or her client’s competency is, in many jurisdictions per se, ineffective assistance of counsel.
An accused may not be competent for a whole variety of reasons: the accused may be retarded, the accused may be suffering from a physical ailment that is incapacitating, the accused may suffer from a mental illness, or simply be too young to understand the choices that are exclusively the defendant’s choices. It is critical that the Milwaukee criminal lawyer make the call whether the accused has the capacity to make the choices that are his and his alone. Often lawyers without malice make the choices for their incompetent clients, as it is consistently resonates with their role as counselor and protector. Should the lawyer make those choices, that lawyer is depriving his client of rights guaranteed exclusively to him or her under the Fifth, Sixth and Fourteenth amendments to the Federal Constitution.
Incompetence is not a defense to a crime. If a defendant is found incompetent, the proceedings are suspended until either the client regains competency or a court finds that the client is not likely to regain their competency within a specified period of time that is usually much shorter than the time the accused is facing.