Written by attorney Daniel P. Hilf

Mental Illness and Michigan Criminal Charges

Many individuals charged with criminal offenses in Michigan suffer from some form of mental illness. Just because someone is mentally ill does not necessarily mean that a criminal charge will be dismissed or reduced. Outside of a plea bargain or deferred sentence (both of which are not always available), dismissal of criminal charges due to mental illness occurs when a person charged with a crime is determined to be incompetent to stand trial for a total period of at least 15 months or 1/3 of the maximum sentence the Defendant could have received if convicted of the charge against him or her, whichever is lesser. A Defendant can also have a criminal charge dismissed if he or she is deemed to be not guilty by reason of insanity(which is also referred to as being not criminal responsible). According to Michigan Compiled Law 330.2020(1) a Defendant to a criminal charge shall be presumed competent to stand trial. He or she shall be determined incompetent to stand trial only if he or she is incapable because of his or her mental condition of understanding the nature and object or the proceeding against him or her or of assisting in his or her defense in a rational manner. Generally, competence to stand trial includes things such as: understanding Constitutional rights (right to the assistance of a lawyer; right to a jury trial; right to cross examine witnesses; right to compel witnesses to testify; right remain silent; right to testify in own defense, etc., etc.). Competency also involves the Defendant understanding the charges brought forth against him or her, and being able to assist his or her lawyer in defense of the charges in a rational manner. An individual can be deemed to be incompetent due to mental illness, mental disability, or mental retardation. According to Michigan Compiled Law 768.21a an individual is legally insane if, as a result of mental illness (as defined under Michigan law) he or she lacks the substantial capacity to either appreciate the nature and quality or the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law. Mental illness or being mentally retarded in and of itself does not otherwise constitute a defense of legal insanity. Mental illness is defined as a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or the ability to cope with the ordinary demands of life. An individual is considered to be mentally retarded if he or she has significantly sub-average general intellectual functioning which originates during the developmental period and is associated with impairment in adaptive behavior. An individual who was voluntarily under the influence of alcohol and/or drugs at the time of the alleged offense is not considered to have been legally insane and is unable to use this as a defense. This defense is otherwise referred to as the defense of diminished capacity. A Defendant is not allowed to argue diminished capacity as a basis for acquittal due to the voluntary ingestion of alcohol and/or drugs. The issue of mental competency or legal insanity is usually raised to the Court by the Defendant's lawyer. However, there is no limitation by Michigan law for this issue to be raised by the presiding Judge or the Prosecution. The Court usually (but not always) grants a motion made to have a Defendant evaluated for competency, criminal responsibility, or both. An evaluation as to competency and/or criminal responsibility is done by either the Center for Forensic Psychiatry or another facility that is officially certified by the department of mental health to perform the examination. Testing done by the Center for Forensic Psychiatry or other certified facility is deemed to be neutral, and not biased toward either the Prosecution or Defense. The Defendant does not have to be in custody to be evaluated, however, if the Defendant is in custody arrangements are made to transport him or her to the location designated for the evaluation to occur. From the date the competency and/or criminal responsibility evaluation is ordered by the Court, it usually takes between 60 and 90 days for the Court and the attorneys to receive a copy of that report. A delay for a forensic evaluation is usually considered to toll or temporarily suspend a Defendant's speedy trial rights. If the Defendant is hospitalized for treatment, or incarcerated awaiting treatment, he or she usually receives credit towards any sentence that he or she ultimately receives if he or she is convicted as charged, or convicted of a lessor offense. The forensic testing usually consist of standardized mental health and psychological testing that is deemed reliable by the psychological community, an interview of the Defendant, observations of the Defendant, and a review of the Defendant's psychiatric history including medications and prior mental health treatment. The results of the evaluation can be challenged in Court, and expert witnesses can be employed to challenge the findings by either side. In order to pursue a defense of legal insanity the Defense must affirmatively provide the Prosecution with proper notice of its intent to assert this defense sufficiently in advance of trial. The notice should be in writing, filed immediately with the trial level Court, and served upon the Prosecution. Sometimes the pursuit of an insanity defense is not in the best interest of the Defendant. A person who is deemed to be not guilty by reason of insanity is committed to the State for an unspecified period of treatment. It becomes the decision of a probate Court Judge to determine how long the treatment is needed. Treatment usually begins in a structured, hospitalized setting which severely limits the individual's freedom. Medications are also forced if not taken voluntarily by the individual. The probate Judge decides when the person is deescalated to a less secure setting (for example, a group home, a parent's home, etc.), and usually follows the advice of the NGRI committee (a panel of doctors who make decisions as to an individual's treatment regiment and progress). Hence, in many cases the individual can end up detained a lot longer in a mental institution than otherwise if the accusation was resolved through plea or trial in the criminal justice system. Even if an individual is ultimately deemed competent and not legally insane at the time of the alleged crime, his or her mental health status may prove instrumental in achieving a great result. A Defendant's mental health issues may be important in convincing a Prosecutor to dismiss or reduce charges. It also may be instrumental in convincing a Judge to impose a lenient sentence or to sentence below sentencing guidelines. In many cases, the involvement of the Court can help a mentally ill individual seek and maintain treatment that he or she otherwise would not do on their own and ultimately get the person's life back on track. A Judge or Jury may be persuaded that a person on trial should not be convicted due to their mental status at the time of the incident. Individuals with mental health issues that are charged with crimes need experienced criminal defense lawyers, such as the lawyers at Hilf & Hilf, PLC. One of the most important aspects of criminal defense is the ability to persuade a Court to reach the correct result. Many Courts are guided by fear and misinformation. Someone with a mental health condition may not be able to understand or accept the extent of their illness, and may be unable to properly articulate important information to the Court about himself or herself in an accurate, effective manner in order to receive a just result. An experienced criminal defense advocate will make every effort to educate and illuminate the Court as to the nature of the case, and to express the needs of the client in a way that takes mercy, compassion, and justice into the highest consideration. With due diagnosis issues (individuals with both a mental illness and a substance abuse issue), a plan needs to be implemented to address all aspects of the individual's condition when possible to allow that person to move onto a happy and productive life. Sometimes in life you only have one opportunity to reach the right result. ** Hiring the right criminal defense lawyer** may be one of the most important decisions you make for yourself and your family. There are many lawyers who claim to do more than what they are able - just as there are many surgeons in the world that are no better than butchers. Do not settle for a legal hack job. Practicing law is a skill that develops over time with experience, commitment, dedication, and God given talent. There are no amateur attorneys at ** Hilf & Hilf, PLC** – only professionals that are guided by the humanity in the individuals we serve, and the drive not to settle for what is easy over what is right

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