By H. Michael Steinberg Colorado Criminal Defense Lawyer
Introduction – Your Criminal Defense Lawyer is a Lawyer
There is no question that a person charged with a crime in Colorado is under enormous stress that can affect the mental and physical health of that person, as well as family and even close friends. Further, relationships at work or at school can also be impacted by a criminal charge to include the financial strains of funding the defense of the case.
While there is clearly some overlap between the role of an attorney and the role of a true mental health professional, they are educated and trained to perform very different tasks.
Coping With the Emotional and Physical Reactions After Being Charged with a Crime
I have witnessed one or more of the following common physical and mental reactions to the stress of being accused in a criminal case.
Clients:
May have problems recalling details about the case;
May have difficulty remembering discussions about the procedures and the law that apply to their case;
May feel nervous, fearful, anxious, and hopeless about their future;
May feel detached from others, emotionally numb, irritable, restless, and have outbursts of anger or rage;
May have emotional swings, from tears to laughter;
May have feelings of shame, betrayal by others (including their lawyer), and feelings of isolation from family and friends;
May increase their use of alcohol or drugs in an attempt to cope or self-soothe;
May lose interest in everyday activities and obsess about the status and the stages of the case;
May be jumpy, easily startled, guarded, or hyper-alert;
May have trouble concentrating, have nightmares, memories, or even serious and painful flashbacks.
It is natural to turn to the criminal defense lawyer to discuss these manifestations of stress and fear. That lawyer may appear to be the only person who can help you with the case and the logical nexus to a feeling of a “team approach” to the defense of a criminal case is to unwittingly attempt to transfer the lawyer into a therapist.
Most lawyers have no training in helping their clients cope with the impact of the stresses of a criminal case. While they may try to act as a therapist during the inevitable exchanges of information necessary to defend the case, the lawyer’s role is to focus on the factual and legal issues related to the defense of your criminal case in court.
When a client is driven to call constantly, to email, or text their lawyer, it actually ends up making it more difficult for that lawyer to do what they are tasked to do – to effectively defend the criminal case.
It is understandable for clients to want to quickly bring closure to a criminal case. The stresses, as noted, can sometimes be unbearable, but the additional burdens of assisting clients with their mental health needs can impact their approach to defending the case.
The skills of experienced criminal defense lawyers are they are good reasoners, legal researchers, effective writers, and persuasive speakers. They are trained to be good negotiators and, over time, successful advocates.
Experienced criminal defense lawyers are innovative, clear-eyed, objective thinkers and good problem-solvers but they must also understand when their limitations and when it is time to refer their clients to mental health professionals.
The Lawyer as “Counselor” – A Lawyer IS Tasked to Help You Understand Your Case
A criminal defense lawyer, while not a trained therapist, does have an obligation to make certain his or her client understands the legal processes and issues that they will confront in and out of court. They should make every effort to explain the realities of the criminal justice system and what will happen at each and every critical stage.
For example, should a case go to trial, the client must be prepared to understand the way evidence is admitted, courtroom procedural rules, and the general navigation of the case from jury selection to jury verdict.
This obligation should also include an understanding of the “unwritten rules” of the criminal justice system which includes such things as plea bargaining, the Judge assigned to the case, the District Attorney’s approach to this type of charge, etc., (a sort of “inside baseball” view of the process which every experienced criminal defense lawyer should know).
To effectively fulfill this role, the client must have the capacity to hear and comprehend this advice and counseling.
Emotions Can Run High Especially in Serious Criminal Cases
It is clear that emotion permeates everything we do. Criminal cases are no exception. Emotions can complicate important decisions that clients need to make throughout a criminal case.
Lawyers need to understand the ways that emotions impact their clients. Specifically, whether their client’s emotional state is interfering with clear and objective thinking. Is the client’s emotional state impacting that client’s ability to communicate their thoughts and ideas or to decide the questions that can only be made by the client with the advice of counsel?
Lawyers, like everyone else, may have a hard time accurately reading their client’s emotions. The consequences of misreading a client because of “emotional interference” can lead to a devastating result in a criminal case. For lawyers to better manage their client’s natural reactions and to understand and to effectively manage “emotional triggers,” the suppression of emotions, and those emotions that can interfere with clear lines of communication, the criminal defense lawyer should turn to the mental health profession for help.
Even lawyers who try to be helpful and sympathetic to their clients and offer mental health advice, that advice may not only be unhelpful it may be counterproductive.
Criminal Defense Lawyers Should Seek the Professional Advice of a Medical Mental Health Professional for their Clients
What works is this: a partnership where the lawyer and the mental health professional join together to help the defendant.
The Defendant’s Need for the Help of a Mental Health Professional
It is never too early or too late to seek therapy. At the investigative stage, after consultation with their lawyer, starting therapy may make an enormous difference in gaining clarity of the defendant’s feelings.
Those accused of a crime are under extreme stress and may find consulting with a mental health professional such as a therapist helpful. A therapist, trained to understand the criminal justice system, can assist the accused by carefully walking that defendant through key issues in the case by developing the necessary coping mechanisms that may assist in making the difficult decisions that must be made at each stage.
Therapists can and do serve an essential role in helping a defendant through the inevitable increased physical and mental health challenges following an arrest and the filing of charges. That role includes helping that person to cope with the criminal justice process and to gain insight and control over their emotions and behaviors.
A therapist can also assist at the trial stage of a criminal case when preparing for trial. The fears and anxieties surrounding a trial are very real and a defendant’s mental state is tested to extremes that may be unprecedented in their lives.
The Lawyer’s Need for the Mental Health Professional
A unified approach between a criminal defense lawyer and a qualified therapist can help both mental health patients who are charged in criminal cases and those charged in criminal cases who also struggle with mental health issues.
A close partnership between attorneys and mental health professionals secures the best possible results in the short and in the long term. There are two action plans at work that bind together to ensure not only the clearest communication between lawyer and client – but also work to help the accused attain the best chance at success either from a settlement of the case or, if there can be no plea agreement, at trial.
At trial, psychologists can help the defendant to effectively communicate his testimony to the jury and to assist the accused to manage their anxiety or even overconfidence if those become issues.
Mental health professionals can:
1. Help the criminal defense lawyer better understand and interact with the client.
2. Help educate the client as to every stage of the criminal case and the emotional impact of that stage of the case.
3. Help to build trust with both judges and district attorneys by providing a better understanding of the reasons why a criminal act may have, or could not have occurred and provide unique insight into both.
4. Help to construct the terms and conditions of a sentence that serves the goals of the defense to rehabilitate the defendant and to prevent the primary goal of the state, recidivism in the form of future crimes.
Another Important Role for the Therapist – Providing Mitigation Information About the Defendant to Achieve the Best Result
The “crime master narrative” is the widely held belief that people commit crimes solely based on free and autonomous “bad” decision-making.
Of course, this is not true.
Many prosecutors and judges have little or no insight into the motivations of those charged with crimes in their courtrooms and the role of mental illness. Lawyers receive little or no training or education on mental health issues in law school or later on the job, in understanding those individuals suffering from mental illness and why they commit crimes.
While things are slowly changing, as a former career prosecutor, I am well aware that prosecutors well understand the concept of punishment, the safety of the public, and the dangers of being “too light” on crime. The overarching fear of prosecutors and judges is that the person before them will re-offend and escalate their crimes potentially leading to career-ending headlines in the media.
It has been my experience that prosecutors well understand that they are charged with the responsibility, not to simply seek convictions, but to “do justice.” A prosecutor fundamentally believes in a just, fair, and responsible criminal justice system. They well understand that the themes of doing justice in the individual case and protecting society from crime are not always mutually exclusive.
When a defendant suffers from some form of mental illness, cursory single-page mental health evaluations provided by many criminal defense lawyers do not bridge the pre-existing “trust gap” that the sometimes cynical players in the system customarily feel.
Judges and prosecutors have little time or incentive to put their trust in a one-page analysis of a defendant’s mental health needs when the crime committed may have had a very serious and even lifetime impact on the victim in a case.
On the other hand, it has been my experience that the more detailed and individualized a mental health evaluation, the more weight that evaluation may have on the decision-makers in the criminal justice system. Therapists are uniquely qualified to bridge the mental illness education gap in our criminal justice system.
When judges and prosecutors are educated on the role a defendant’s mental illness played in the development of a criminal act, and that analysis is followed by a well-conceived treatment plan that has been individualized for the defendant suffering from that mental illness, the goals, justice, and mercy can be achieved.
The Psychological Evaluation as a Tool to Assist the District Attorney and the Court
All criminal defense lawyers know that to persuade a judge or prosecutor to “see” the defendant clearly you must provide information that assists them to reach the correct and most just conclusion. A thoughtful analysis of a case provided by the lawyer coupled with a thorough mental health examination of the defendant providing a comprehensive view of the person and ending in an evidence-based concrete treatment plan may be the difference between a disastrous and a great result in a criminal case.
Summary and Conclusion – The Criminal Defense Lawyer & the Mental Health Professional – Different Roles
There is no question that criminal defense lawyers and mental health professionals have the same goals. Both professionals want their clients to successfully navigate the criminal justice system and obtain the best possible result for a defendant to return to a stable and healthy life.
But here is the rub: criminal defense lawyers are aggressive litigators who use every arrow in their quiver to benefit their charge – the accused. While a mental health professional is not tasked with that kind of ethical responsibility.
The therapist may not fathom the intensity of the defense lawyer’s approach at defending their clients in court and may, at times, misunderstand or even disagree with the lawyer’s strategy and tactics.
These differences in approach must be understood by both professionals and intelligently worked out to successfully reach their common goal – the well-being of their mutual client.
“A person charged with a crime requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
United States Supreme Court – Powell v. Alabama, 287 U.S. 45, 69 (1932)
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Never stop fighting – never stop believing in yourself and your right to due process of law.
You must make a responsible choice for a Colorado Criminal Defense Lawyer – we encourage you to look at our firm. Over the last 35 plus years, H. Michael has studied and written about nearly every area of criminal law, procedure, trial, and courtroom practice. He is passionate about getting the best result in each of the cases he defends. By studying the law and writing these articles, he hopes to not only master the law but help you in your understanding of your case in some small way.