One Stop Therapy: The Legal Solution
There are two basic
ways to use our client’s medical condition to minimize the impact of the
criminal prosecution: Legal Defenses and Mitigation.
Florida Criminal
Law: Litigation
There are two basic
legal defenses where our client’s brain illness is important:
Incompetency and Insanity. Both involve expert evaluation of
mental functioning and a judge makes the final determination based upon
the expert evaluations. There are one to three evaluations of the
defendant. When a defendant is evaluated, they are normally evaluated
for both Incompetency and Insanity at the time of the incident which
resulted in their arrest.
Incompetence
is a severe, current, mental impairment. A criminal defendant is
Incompetent to Proceed where they cannot effectively participate in the
defense of their case. For example, they may not be able to testify
competently or communicate with their attorney effectively. An
incompetent defendant may ramble on about things that are unimportant in
their case, be confused about what happened or refuse talk at all due to
paranoia.
Upon a legal finding
of incompetence, a defendant’s legal proceedings are suspended until
competence is regained. The time frame for restoring competence varies
from a few months to several years. In rare cases, it may never be
regained. Occasionally, incompetence may give rise to a Motion to
Dismiss the charges, but this, too, is very rare.
Insanity
is legally different than incompetence. Insanity under Florida law
means that a defendant, regardless of their sanity later, was unaware of
what they were doing at the time of the incident due to mental illness
or they were aware but under delusion.
Insanity is a
complete defense to most crimes, but an acquittal based upon insanity is
treated differently than a normal verdict of ‘Not Guilty.’ When someone
is found to be ‘Not Guilty by Reason of Insanity,’ a judge will make
specific findings and do one of three things:
-
Discharge the
defendant without any restrictions. This almost never happens.
-
Discharge the
defendant and order that the defendant comply with an outpatient
mental health treatment program, or;
-
Discharge the
defendant and order the defendant committed to the Florida State
Hospital for inpatient treatment according to a treatment plan
created by government appointed medical doctors and psychologists.
Legally,
incompetence and insanity are very rare since the level of mental
dysfunction must be quite severe. Most clients who suffer from mental
illnesses are neither legally incompetent nor insane, yet they
have substantial behavioral problems that significantly impair their
lives. If left untreated, they will often bounce in and out of the
legal system until one day, the doors stay shut for many years, possibly
a lifetime.
Florida Criminal
Law: Mitigation
Most One Stop
Therapy cases involve damage control in order to minimize the impact of
problem behavior in the context of Florida criminal law. Damage control
(mitigation) comes in many forms. Some of the ways include:
-
Reductions or
substitutions of more serious charges for less serious charges
-
Reducing the
number of counts prosecuted
-
Reducing
incarceration time periods
-
Eliminating
incarceration
-
Substituting
incarceration for community control, house arrest, or probation,
and;
-
Acceptance into
diversion programs which results in eventual dismissal of legal
charges.
In some cases, the
evaluation, diagnosis and treatment plan are used to negotiate with the
State Attorney directly. In other cases, they are used to affect the
judge’s decision when the State will not agree to go along with our
settlement suggestion. In either scenario, client confidentiality is
maintained unless it advantageous to release the information. When it
is released, we inoculate it as much as possible in the event settlement
is not possible and trial becomes necessary.
Florida's state criminal law expressly recognizes mental
illness as a legal ground for mitigation: Florida Rule of Criminal
Procedure 3.992(b) specifically states that a defendant's mental
illness, disease or defect (when unrelated to substance abuse) is a
legal ground for a downward departure from the mandatory sentencing
scheme of the Florida Punishment Code. UPDATE: SPECT Brain Imaging
renders the substance abuse exclusion meaningless in most cases because
we are able to show with great scientific accuracy whether a brain
system is over active, under active or working correctly. In many cases
where people chronically using substances such as drugs or alcohol,
there is a brain system malfunction unrelated to substance abuse.
Make no mistake, SPECT will show the impact of substance abuse upon the
human brain, and the damage caused by it. However, an examination by a
trained nuclear medicine psychiatrist will also show the brain system
dysfunction that causes the self medication. In other words, the
pre-existing brain system dysfunction causes the self medication. Our
entire knowledge of how brain systems work has been changed since the
legislature changed this area of mitigation: Knowledge has replaced
ignorance.
The proper treatment
of brain illnesses can affect just about any criminal case settlement.
How much it affects settlement options depends on a variety of factors
and is case specific. In every case, the proper treatment of brain
illnesses will improve the client’s quality of life.
