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.

Raising competency is seen by many in the system as a way in which lawyers manipulate the system and so the system responds by making sure that the more serious the crime the less likely a criminal defendant is to be found not competent. even though competency to stand trial is completely unrelated to the severity of the offense.

Courts, prosecutors and many mental health professionals utilize the argument concept of malingering to rebut a claim of incompetence. Malingering is a fancy word for “faking it.” Thus, it is terribly important that the criminal defendant obtain all of the available records prior to the time of the alleged offense so as to rebut that the defendant is using this as a ploy now that they are in trouble.

It’s important to contact a Milwaukee Criminal Defense Attorney at this time

Once a defendant is found incompetent they are often sent to state competency schools, usually located within state mental hospitals where paraprofessionals engage in the process of trying to get the incompetent defendant competent by having them memorize answers to various questions. The techniques employed by state competency mills must be discredited at any subsequent hearing where the State claims the defendant is now competent.

As in all areas of criminal defense, the defense experts must be chosen carefully and it is essential that the Milwaukee criminal defense attorney have a breadth of knowledge in the area of mental and physical disorders such that the state’s expert can be successfully discredited.

Predicting-restorability-of-defendants.pdf  (137kb pdf)