Lawyer talk podcast features advice from a practicing criminal defense lawyer

>> Steve Palmer: Alrighty. Lawyer Talk, off the record, on the air. They don't teach you that in Law School. We teach it right here at Lawyer Talk, at the roundtable. Week in and week out, we got Troy, my law clerk. Law clerk is such a ubiquitous, undefined term, but basically it means that he's working for me. I'm a practicing criminal defense lawyer. And, Troy, you help me out with all sorts of stuff like research and writing and, uh, help, uh, organize and even talk to clients. Also, uh, I, uh, try to make my. I try to use law clerkness, that right Word, the law clerk experience as a learning one, because I indeed learned quite a bit from my mentors, even though they. That was by osmosis. I try to get a little more active in the teaching process, and that's why we're here, because they don't teach you in Law School the actual practical stuff that goes on in a nuts and bolts practice. And I don't think you get more nuts and bolts on the street, uh, slugging it out day and in, day out than you do in a criminal defense practice.

>> Troy Henriksen: Absolutely.

>> Steve Palmer: And we handle all sorts of cases, by the way. We handle, like, I was in Louisville on a federal case yesterday, and, uh, you know, today we'll be in a municipal or common, uh, police court, a local court. So anything from your typical drunk driver speeder all the way up to complex federal stuff. So you're getting a wide array, but in that emerges all sorts of questions that you have. So we have created a series. They don't teach you that in Law School, because they don't. And it's not their job to teach that in Law School. I've always said that there should be, the third year of Law School ought to be more of an externship type thing. There used to be a school, Thomas Cooley up in Michigan, that did that regularly. I don't think they're there anymore, but they required it, and I think required it for good reason, because they don't teach you the stuff you need to know in Law School to go hit the ground running, uh, particularly in the realm of criminal defense. So, anyway, with that, you can check us out at, uh, lawyertalkpodcast.com, where we have all the backlog of episodes, even going way back to the good old days, uh, when we had a whole group at the table.

Let's address the competency stuff and how that works

But, uh, at any rate, you had a question.

>> Troy Henriksen: Um.

>> Steve Palmer: Um, a good one, I think. And ironically, I just answered this on another show. But, uh, uh, anyway, what's your question?

>> Troy Henriksen: So, at the Law School, we had this great program where we would actually go to the jails, and it was a, ah, Book club. We would go read with the prisoners on it. It was. It was an awesome program to actually sit down in there with them. But one time when we're in there, I see a gentleman who's walking around with barely any clothes on, food all over his face. And I was really confused, so I asked one of the guards, I'm like, what. What's going on with this prisoner? And he was telling me that he was at a home for assisted living on, um, um, mentally incompetent, um, um, I, uh, don't know, like, mentally handicapped, one of those people. And he hit a nurse. And because of that, he. They took him to court and they charged him with assault, and then they put him in jail. Somebody who obviously was not competent. They were in an assisted living already, and now they're putting him in jail while they're waiting on these assault charges because a nurse, I guess, took his lunch or something too early.

>> Steve Palmer: Gotcha.

>> Troy Henriksen: And so how can, uh. He's not competent. Competent to sit trial? That's how I view it. But why did they put him in jail? Why didn't they immediately just take him to an assistant, a different assistant living, I guess.

>> Steve Palmer: Well, I mean, the, uh, answer to the second question is, who knows? They put him in jail because the assisted living place or the. Wherever he was, that facility wasn't equipped to handle him. And I'm not saying the jail is any better, but they're like, look, we can't deal with this guy, so now you've got to take him. Uh, and those are hard cases. Like, nobody likes to see that. And I get it. His victim is certainly no less a victim because this guy was incompetent. But, uh, let's take it. Let's sort of address the competency stuff and how that works. I think that'll be the, uh, real meat of this. I think at the outset, what you want to do is we have to separate two things. You've got competency, and then you have insanity. Competency is the question is whether you, the defendant, or whoever's accused of the crime is competent to stand trial. That's a different question than whether the defendant was insane at the Time of the act. Let's start with competency. We, um, get. People call us all the Time. You've probably seen crazy people. They call us and they call us and they call us. I have people calling us because the FBI has bugs in their house. And I had one guy called because there was a. They had this micro, uh, device that, uh, this gentleman claimed that was, uh, inserted under his door and watching him at night. I mean, these people were. Clearly had mental health issues. But the supreme court, the US supreme Court we're talking about, this is true in Ohio, too. Uh, in the case of dusky versus the United States, that's going way back to 1960. Basically, uh, said, you can't force somebody who is incompetent to stand trial. And the supreme Court says, well, what does that mean? What does incompetent mean? And basically there's two parts to it. Um, and I'll use their language, but it's all pretty simple. Uh, whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and two, whether he has a rational standing as rational, uh, understanding as well as a factional understanding of the proceeding against him. So we would always say, look, judge, this guy, I don't think he's competent to assist me as I prepare his defense. I'm trying to talk to him about this stuff. Um, I'm getting nothing back. He's telling me that there's Martians in his house. It's like he can't assist in the defense. And two, I don't think he under. He doesn't understand what's going on in court. He doesn't understand the basic terminology. What a judge does, what the prosecutor does, what the police do, what's gonna happen? Um, how's it work? Um, typically, what happens if I have any basis, um, to think that I will file a motion for a competency evaluation? This is a formal motion, judge. We need a competency evaluation. There's statutory provisions in Ohio, and I'm sure every other State that kick in. And what happens here is the judge will order a competency evaluation at State expense. Typically. Um, and it's a very, uh. There's a battery of tests that have been developed for this, and it talks about, or the idea is to test both things. Does this client understand what's going on? Can he help his lawyer? And can he appreciate what's happening in the courtroom? And, you know, uh, believe it or not, it comes back often that the person is not competent. So that means that the State can't just prosecute. Instead, what they do is, I say, they send him back to trial or to competency school. So then they say, we're going to restore his competency, and they send this person back, and they work with this person, and, uh, they educate this person so they can pass the test. And sometimes I say this sort of tongue in cheek, because it is true. Sometimes I get people come back and they're like, uh, my math teacher used to call it the pancake theory. So you can flip a pancake and it sticks on the ceiling, but it only sticks on the ceiling long enough to take the test, and then it falls off. And that's sort of like the competency school. So they train the guy up to say, yes, I know what a judge does. Yes, I know what police are, and I know what the prosecutor's job is, and I know what my lawyer's job is, and then they can get through the test. Um, now, if the. If the initial testing comes back that the client is, in fact, competent, most of the Time, our procedure permits me to request a second evaluation. I don't have to accept it. Um, and then I can even have a full blown hearing. I get to go to court, and they call. The prosecutor will call their expert. I call my expert, or I get to cross examine the experts and try to establish, yeah, I get it.

If somebody is found incompetent, what do you do? Right

You think he's competent, but he's not. And here's why. Um, and if somebody is found incompetent, the real question is, what do you do? Right? So, uh, there was another case in the US Supreme Court, and this is Jackson versus Indiana, 1972, where the court basically addressed this, where Indiana had a procedure where they basically held the incompetent person almost forever. And Jackson says, no, you can't do that. That violates due process. You can't hold them forever. Uh, there's got to be an end to this. And, uh, typically, people who are incompetent to stand trial, typically, you know, they've got mental health issues beyond this. And I talked in another show I was involved in recently about this, and the person I was talking to was sort of outraged by the fact that a, uh, really serious criminal was not being prosecuted for competency reasons. And to that, I would say, yeah, that sucks. But what are we going to do? You, uh, know, are you just going to prosecute people who don't know what they did or don't, who can't help, can't participate? You know, these are. This is why we have a constitution in our country and not to. You can. You can sort of sing the battle hymn of the republic or something in the background here. But we have, like, we have these protections to protect the. The least of us and the best of us, the worst of us and the perfect citizens. They are here for everybody. And if you take them away for the worst of us, sooner or later the devil turns back on you. Uh, you hear me say this all the Time. We have these protections for everybody, not just some of us. They exist for your presidential candidate. They exist for, uh, the person who kills another person's child. They exist for the person who is wrongfully accused. Because we find it better in our society. Our founders found it better to protect everybody, even though that means sometimes guilty folks get a break. Look, talk about whether the merits of that or not, but it's there. If anybody who studies any philosophy or humanity, uh, interaction, you know, that perfect is unattainable. We try to get as most perfect as we can. And, uh. Or, you know, now that there's an old. Actually, I think it was Steinbeck, you know, now that I don't have to be perfect, we can be good. You know, it's like, let's be good, and let's protect everybody.

Supreme Court said you can't hold incompetent people forever

Uh, now, turning to the next question, any questions on that so far?

>> Troy Henriksen: So you were saying that Supreme Court said, we can't just hold these people incompetent forever. What's, like, the timeline?

>> Steve Palmer: Like, imagine the litmus test, basically, in Indiana, Jackson versus. You can't hold them longer than what the case would have otherwise held.

>> Troy Henriksen: Okay, so, like, if. If you're looking at maximum, like I'm using example, maximum two years. Like, you can't hold them incompetent for.

>> Steve Palmer: Three years, because that's generally what the Jackson versus Indiana decision. And I can't recall off top of my head what the highest statute requires. But typically, you know, those people end up sort of in the system anyway because they're insane. Right? They have. They have problems. But the supreme Court won't let you just hold people because they would say, that's an equal protection problem or it's a due process problem. It's not fair to just because you're incompetent to hold you longer than what you would hold another person who was not incompetent. So that violated equal protection out in Indiana. And so go back to the drawing board, Indiana, and make a better law. And that was in 72.

>> Troy Henriksen: I can do that. I'll run for office out there.

>> Steve Palmer: Yeah, there you go. Go fix it.

Insanity is different than competency, but it's a jury question

Uh, so then the next question comes up, like, all right, what is insanity? And, you know, in criminal law, they teach you sort of the. There's two different tests. You have, like the monoton test, and then you have a, uh, irresistible impulse test, monotonous. Uh, you don't appreciate the nature and consequences of your action. Irresistible impulses. You just flipped out and couldn't control yourself. Ohio sort of. M most states sort of merge those together. And, uh, insanity is different than competency. So you could be both. You could be both incompetent and insane, or you could be insane but not incompetent. And it doesn't even have to be at the Time of trial for insanity. If I go, if I enter a guilty plea or a not guilty plea by reason of insanity, what I'm saying is, judge, at the Time of the offense, my client was insane. Um, and that's a whole different evaluation process. It's not the same as competency they're going to send out. It's very similar in procedure. The judge will order my client to be evaluated. I can do my own private evaluation, and we can determine if my client knew what was going on, appreciated the nature and consequences of an action, and, or had a resistible impulse, whatever the standards are in your jurisdiction. Um, and that gets sent to the court. I can challenge it in court if I don't like the outcome of it. Um, and I can actually go try to prove that at trial. So even if the prosecutor doesn't agree, I get to go to trial, and I am going to prove at trial my client was insane. Um, even though the prosecutor doesn't agree, it's a jury question. It's a factual question. It's an affirmative defense of insanity. So, uh, that's a little bit different. And somebody could be sitting at trial completely sane because they've been restored or they were no longer insane. Uh, uh. And even though I can try to prove an insanity case, so that gets a little more dicey. There's a great movie. I think you could teach Law School in the movies. There's a great movie, Jimmy, uh, Stewart and George C. Scott called anatomy of murder. It was about a murder that happened up on the upper peninsula. And, uh, Jimmy Stewart played this small town, um, small town. He was a fisherman. He liked. He'd rather go fish than, uh, be a lawyer, but he takes on the case. And, uh, anyway, I won't spoil it, but go check it out. Anatomy of murder. But they're talking about an irresistible impulse. George C. Scott was the big city slicker prosecutor they brought in. I won't tell you how it ends because there's some irony to it, but anyway, the idea of it is that you can be insane at the Time, but not at the Time of trial.

>> Troy Henriksen: They did kind of teach this not through a movie, but we watched the, um. It was the interview of the guy. I think it's Ronald Reagan, right?

>> Steve Palmer: Oh, Hinckley Hinkley.

>> Troy Henriksen: Yeah, we watched the interview for Hinckley. We didn't get tested on sandy. So they were just like, we're just going to watch this instead. So they. They kind of taught it through a movie.

>> Steve Palmer: Yeah, there you go.

>> Troy Henriksen: It was kind of interesting.

>> Steve Palmer: Yeah, I mean, that's a great. I mean, look, that guy was nuts. He was wacko. So. And there's a lot of that. There's a lot of that going on in. I think we're seeing it even today. So, look, those protections are here for a reason. Our court, our system says we're not going to prosecute people, uh, and hold people who have legitimate mental health issues to the same standards. We can't. It's not fair. It violates due process. Uh, and there are places that do, you know, there's been. There's been civilizations where those people just get slaughtered. Um, and even in ours at one point, um, there's a case out of the US supreme court called buck versus bell where the famous quote is, one generation of imbeciles is enough. And it talked about whether you could sterilize people who were incompetent or otherwise insane. And that became sort of do some history reading on this. Um, even the Nazis got involved in this, and this is called the eugenics movement. So, uh, look, it's. It's not out of the realm of possibility that this stuff can reemerge. So I think it's important that we study history, uh, lest we repeat it, at any rate. So anyway, they don't teach you any of this in Law School. I guarantee they didn't teach you anatomy, Murray. In Law School? Anatomy of a murder in Law School. I learned that as a kid watching old movies. So Lawyer Talk coming at you with all sorts of stuff. So check out the q and a series. It's. It's like, this is like the Q and a series on steroids. And, um, we got some breakdowns, old and new. Uh, uh, keep coming. So, uh, you got your own questions. I'm happy to do my best to give you some commentary on it. You can, uh, go to lawyertalkpodcast.com, submit it, go to any of the social Media, or go to the socials, as they say, probably in your generation. Check out the socials.

>> Troy Henriksen: I don't know if socials are the right.

>> Steve Palmer: Well, I'm going to say it. Go to the socials. Check it out. Uh, Lawyer Talk podcast, off the record on the air with. They don't teach you that in Law School, at least until now.