Mental Health Cases in Misdemeanor Courts

There was a long commentary in the Chronicle a day or so ago written by fellow former HCCLA prez, Robb Fickman. Part of his commentary was regarding those with mental health issues being warehoused in the jail. Galveston County Judge Susan Criss posted the article on her Facebook page, and spoke in favor of the general gist (or is that jist or jest - who knows, who cares) of the article. I want to comment on some experiences I have had regading persons with mental health issues who are locked up for minor offenses.

First, I will acknowledge that businesses have the right to keep their doorways & property clear & free of beggars & others who may interfere with consumers who may feel harassed, afraid, or otherwise uncomfortable. But some times, in fact I believe more times than most people would think, the police end up arresting the accused simply because they do not have anything else they can do with them, and the person, obviously ill, is not following direction to stay off or away.

Anyway, today I had a guy who had been in jail since April for trespassing. The man has some issues, no doubt. It is obvious to anyone who talks to him for more than a few seconds. He was found to be incompetent and ordered sent to Rusk (the State's mental health - loosely used term - facility). But instead, he sat, and sat, and sat, and sat - in jail until finally today "we" or I (but really it was a cooperative effort) decided enough is enough. But is it?

I do not know why the man did not get sent to Rusk, but this happens frequently. I know THAT because I take appointed cases in one misdemeanor court on a somewhat regular basis (love that court & all the staff) & I see quite a few of these cases. It is kind of a joke when you pick up a trespass file that the first thought is - another psych case. (I don't mean that unkind - it is just that is what the mentally unstable tend to be incarcerated for - simply trespassing. For some reason - at least in the cases I have handled - the accused tends to keep going back to the same place over and over. Maybe it is a comfort thing - they feel connected to the place. This, of course, does not make it any better for the property owner.)

[Once I had a lady who swore a particular house was hers. She harassed the true owners frequently - actually entering their house & treating it like her own. The true owners got to know her family & would call them to come get her but then at some point, the house was sold. New owners move in only to come home & find that they are locked out. The client had called a locksmith & convinced him that the house was hers and all the locks needed to be changed! This case was a nightmare as the woman was fairly intelligent & had piles of papers (which made no sense) but which she used to show me and everyone that the house was hers. This was a private hire case, and her family was very supportive & eventually the case was dismissed when the accused was put into mental health treatment program. But I digress. What made it so difficult is she could see her logic and was very good at arguing her point, but she had no logic and her point was not based in fact or law, and it was impossible to get that across to her. And, so she did not think she needed, nor did she want, treatment!]

Jail is not a good place. I wouldn't want to put anyone in there - especially Harris County - unless s/he is a hardened, dangerous criminal. (There are many reasons including (1) it stinks, (2) people get beat up & killed in there by each other & apparently the popo, (3) there are apparently dangerous creatures like brown recluse spiders that visit, (4) disease is apparently pretty rampant, and the list goes on.

Because the jail is SO bad, I especially do not like the way the system works with regard to the mentally ill - they commit an offense & go to jail. They are in jail for at least a couple of days before they see a lawyer who says, "something just ain't right about this guy" and requests that he be "psyched" (aka checked out by a doctor to see if he competent to stand trial.) If he is found to be incompetent, he is sent to a mental health facility to regain competency & then comes back to face the charges. (Let me say here that most of the time when this happens - in fact, every time in my experience - the case gets dismissed.) But the P O I N T is that a sick person is sitting in jail because his sickness caused him to not understand, or to conduct himself in some unlawful (not dangerous in my cases) way.

So, my guy today has been sitting in jail since April, with a court order made about 25 days after his arrest, ordering that he be sent to Rusk. But he has not gone yet! Can you imagine that you have an untreated disease that caused you to act in a way that is unlawful - let's say it is unlawful to puke on the sidewalk. You puke because you are sick. You go to jail because you puked, but instead of treating you to help you get better, you continue to sit in jail sick.

The point is that the system just blows when it comes to the mentally ill. I can complain & make calls & like today, find a sympathetic prosecutor who dismissed the case. (After all, the guy did at least 4.5 months more in jail than he would have done if he had not been sick, and had been capable of understanding the situation. It isn't his fault the system has failed him.) But did I do him a disservice because you know what, he is still sick.

(The man had trespassed on some property - where he had been warned not to go - by going into the port-a-potty. Hhhmmm. I understand he had been told not to go to this property before, but wouldn't it have been worse if he had just "done his business" out in public? In fact, it is a crime to urinate (and probably defecate - though I have not checked it out & don't really care as far as this writing is concerned) in public. And, it is just gross.)

It is a terrible position to be in for the prosecutor on occasion when the facts are worse & they, like the fair prosecutor today, actually care, and a terrible situation for me. Do I fight to get a sick man released because he has been in too long, or do I do what is right for his mental health - and leave him sit while I do what little I can to get him sent to the hospital. (Obviously the person in the worst position is the accused who, I'll say it again, is sick.) If the person does not get help, one can usually assume by their record it is going to happen again. (Not in the case today, but in the majority of cases. The guy today actually was better than he was the last couple of times I saw him.)

As defense lawyers, we are supposed to do what the client wants (within reason - we can't help them commit crimes, etc.) But what do you do when they cannot really tell you what they want? Frankly, my thought is that it is doing the client NO good to sit in jail, and is probably harming him. Even if I think he might be helped in treatment, am I violating my obligation to act in his best interest to have him continue to sit in jail hoping to get that treatment? Where do we draw the time line? And is it fair to the sick person?

We are in dire need of a place to temporarily house those who police believe may be mentally ill, or who the lawyers think need to be assessed, and it should not be the disgusting jail.

Would you want to sit in jail waiting on the liver transplant you need? Somehow, I rather doubt it.