Capital Defense and Mental Health on South Padre Island

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Capital Trial

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Texas Criminal Defense Lawyers Association

Capital Defense Seminar Table of Contents

-Speaker

Topic November 18, 2021

Mike Charlton

One Client, Many Lawyers

Dennis Reeves

The Play of 46B and 46C in Capital Litigation

Rick Wardroup

Legislative Update/Modifications in CCP Chapter 38

Jill Patterson

Creating and Delivering the Narrative

Pat McCann

Winning the Case with the Jury Charge

Kim Brown Panel

Trauma as a Mitigator, Discovering, Developing and Presenting the Evidence Current Issues in Capital Litigation, a Statewide Survey

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Capital Defense Seminar November 19, 2021 Beach Resort 100 Padre Blvd.

South Padre Island, TX 78597

Topic: One Client, Many Lawyers

Speaker:

Michael Charlton PO Box 51075 Eugene, OR 97405-0994 (541) 636.2793 phone charltonlegal@gmail.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

One of the most difficult tasks in criminal defense is post conviction proceedings, whether those proceedings occur in State Court or Federal Court. In State proceedings, habeas cases are encumbered by a procedure first introduced in the 1930’s when the only possible route to a new trial was to demonstrate a lack of jurisdiction in the trial court.

The most common challenge was to assert fundamental defects in charging instruments.

Factual challenges, which would require evidentiary hearings, were unknown until the late 1960’s when challenges to the fairness of the death began to emerge. Texas did not change the system until the mid 1990’s and then by only providing funds, and later a state post conviction public defender. The result deprives applicants of any viable means of discovery and leaves too much power in the hands of prosecutors who often submit findings without any meaningful opportunity to challenge those findings. Trial courts simply sign the proposed findings which the Court of Criminal Appeals ratify without any briefing from the petitioner.

Federal courts and Congress imposed requirements that so narrowed the ability of the federal court as to almost effecting erasing Habeas Corpus entirely.

Compounding all of the legal hurdles is the hostility between trial counsel and counsel in post conviction. No one wants to be thought of as ineffective but given the obstacles, and the inability to compel discovery in either State or Federal Court, IAC is

often the only pathway available to prisoners.

Ineffective Assistance of Counsel: Must it Be Inherently Confrontational

Primus of the University of Michigan Law School has suggested some alternative pathways. Primus, Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms of Constitutional Ineffectiveness. 72 Stanford Law Review, p. 1581, June 20230. Her contention is that courts have given too much prominence to the traditional standard of Strickland Washington, 466 U.S. 668 (1984), (hereinafter referred to as Strickland).

Problems within the criminal system are well known; indigent services often make effective assistance impossible. High case loads, judicial process, insufficient funding, often interfere with a trial lawyer’s ability to effectively represent a client facing the death penalty. Because of these burdens, “the number of cases where judges have deemed trial counsel constitutionally ineffective is vanishingly small.” Primus at pp. 1583-84. Courts routinely presume that defense counsel’s actions that might appear to be cases of IAC are in fact strategic choices. Prejudice is even more difficult to establish.

The Strickland test, however is not the sole pathway. Primus divided the potential issue into 4 categories: Structural, Personal, Episodic,and Pervasive. These four concepts are all supported by Supreme Court precedent. Her contention is that the standard two pronged test (deficient trial counsel performance and resulting prejudice) only applies to “the episodic form.” Id at 1585. The remaining cases all fall within other categories. The categories interact with one another Because these categories interact with one another, they can best be understand in the Table used by Professor Primus: Personal Episodic representation includes failures to object, or file motions fail to introduce an item of evidence, etc. As noted, these events are all evaluated under the standard Strickland framework. They are isolated instances attributable to the trial

counsel. Structural Episodic instances are attributable to the State or the system itself.

The thrust of this paper and presentation is to suggest alternatives. Professor Eve

pretrial line u[ pr the denial of counsel for short periods in important parts of a trial.

Personal Pervasive IAC is attributable to to trial counsel and that pervades the entire trial.

Is counsel asleep or intoxicated? Does trial counsel fail to investigate, or make arguments etc. Pervasive structural IAC is attributed to the state or the system and pervades the entire process, as in denying counsel altogether or a counsel’s high caseload that prevents adequate investigation.

For our purposes, we focus only on structural episodic and structural pervasive.

A good place to start is the case of State of Texas v. Robert Fratta. Fratta was charged with hiring two people to kill his wife. He refused to talk to the police when arrested and a then denied responsibility. His codefendants however gave confessions. To corroborate the accomplice testimony, the state planned to put on two witnesses who were jail house snitches. The codefendants were offered plea deals but turned them down. The deals were simply too onerous and they were expected to testify against Fratta in return.

The offers were the withdrawn; the codefendants repudiated their statements and then claimed to be innocent. The prosecution was left with the two informants Fratta’s defense team realized that the informants needed to be undermined; without that challenge, the state’s case would be much weaker.

The defense was able to generate a mountain of evidence to impeach the informants, including reports from other police agencies that the two were simply not truthful. A few days before jury selection, defense subpoenas were served on those officers who then immediately told the DA’s office that they would have to testify for the defense.

Midway into the evidence and without giving notice, the prosecution put on a police

officer who started to read the confessions of the two co-defendants. The defense

These would include the failure of the Court to provide an attorney at a post charging

permitted to read the confessions.

The defense realized that Fratta would likely be convicted and decided to make the trial court’s decision the focus of their case. During closing argument, they argued to the jury that there was no way they could challenge the codefendants’ confessions because the court refused to compel the prosecution to produce the two men. Not surprisingly, the jury convicted Fratta and handed down a death sentence. The claim was denied on appeal and in state post conviction.

In federal court, James Rytting , a Houston attorney, was appointed and he promptly made the 6th Amendment claim his focal point. The Federal District Court, who almost never granted habeas relief, ordered a new trial for Fratta emphasizing the jury argument propounded by trial counsel. The Fifth Circuit agreed and concurred with the new trial order.

Even though Fratta’s case was based on the right to cross examination, the strategy can apply here as well.

How to Develop a Defense with IAC issues in mind.

It’s worth repeating again that we are not talking about traditional IAC claims; trying to make yourself ineffective just to get a new trial would be very perilous for your law license.

The purpose is to put yourself in a position to exploit errors by the trial court and the state. To accomplish this, you have to conduct your investigation and trial presentation by complying with ABA Guidelines for Death Penalty cases. The Guidelines

have frequently been cited as standards for litigating death penalty claims and for

vociferously objected on 6th amendment grounds but were overruled and the officer was

the development of your case.

Developing your team If you are appointed to represent an accused in a capital trial, plan your case around the ABA guidelines. Make sure you have enough time to develop the case. All of us recognize that we have an office to maintain and a family to support. Having enough time to develop the case will very likely limit other cases that you would ordinarily take to pay your bills. Insist that you get the trial court to approve an hourly payment agreement that allows you to bill your county on a monthly basis This has to allow you to have the ability to keep the doors open and the family fed and represent the client adequately, The same issue applies with co-counsel. That person has to (1) have enough experience and skills to handle the case. Using cocounsel for his or her training purposes imposes all of the work on you and that’s not a good place to be. (2) Make sure they get an hourly rate payable every month as well.

Find a qualified investigator that can handle both the trial and the penalty phase.

You can also use someone who can do both. Extensive background in death penalty work is essential either way. The likely outcome of using someone without that experience is an almost conviction for your client and probable death sentence. If there is no such person in your community, call Rick for a recommendation.

Developing trust Ask yourself how many times do you go to the County jail to talk to your client?

How many times to you take their calls? How often do you visit with their family to keep them abreast of the case status? How often do you put some money for the client to use the jail commissary? Most of the time, these things aren’t done. Getting information for use in

the penalty phase can be seriously impaired if you haven’t established trust. Frequent

evaluating claims of ineffective assistance. You should cite to these guidelines throughout

will work well. A client that has a hard time trusting will often soften that resistance if his family supports your efforts.

Discovery Most DA’s will provide some discovery but as we’ll discuss, that’s not enough. The following steps can yield some very good results.

(1) Go to the crime scene and make sure the entire team does the same. Knowing the environment of the crime is essential in understanding the case and it can provide useful information. Take a lot if you can get access.

(2) Never ever accept the state’s forensic evidence. It is almost always wrong. State crime labs are overworked and have too many cases. They can’t recruit competent technicians because most simply are underfunded. This includes state labs, local labs, and even the FBI or other federal agency labs.

(3) Most forensic reports ( and in my experience, all ) are rudimentary and misleading.

The standards of practice for decent certified labs requires a report to be sufficiently detailed that your expert can reproduce the testing using the exact same procedure. Most law enforcement labs don’t even some close. You might get a two page report and that is it.

A good report will have photos or at least drawings for everything the lab did. There should also include all of the computer generated results. There should be an inventory of all of the evidence seized and how it his stored. Photos can make this possible. If you don’t get this information voluntarily, try to get the court to order it, again claiming effective assistance.

(4) Insist on an evidence view. Ask or get the trial court to allow this. You might find a lot of evidence that was never tested in the lab. You mind find all of or a lot of the evidence

stored in Ziplock bags or something similar; that might be fine for food in the refrigerator

visits can establish that trust. Meeting with the client’s family to keep them up to date

you have a good case for contamination of the evidence. Some labs and police agencies often leave evidence simply lying around on tables.

(5) fnd out what procedures were used to collect evidence at the crime scene. Did the scene officers put on protective gear and use gloves? Did the forensic team take samples of ambient air ( are away from the direct crime scene)? Were items placed together into one bag? Did the police take ambient air samples before collecting evidence? All of these pose risks of contamination.

(5) Make sure all of the relevant evidence at the crime scene was collected and sent to the lab for testing. I’ve seen cases where police officers don’t send all of the evidence to the lab.

With all of demands to the Court, make certain that you assert that your ability to provide competent assistance and that that assistance depends on your being allowed to accomplish these tasks. Make it clear on the record that the failure to provide this evidence is not your fault. It’s the prosecution’s fault for not providing this info and if the Court doesn’t issue the order, it’s only making that issue worse for the State.

Penalty phase Everyone loses a trial phase at some point; you have to be prepared for the penalty and that’s especially true in a capital case.

You have to understand some uncomfortable truths about the Texas Death Penalty Scheme. Everyone knows that the concept of future dangerousness is almost meaningless.

Every state uses it either as an element (Texas) or as part of the state’s general presentation. The data are overwhelming that defendants sentenced to life in prison almost (1) never get out and (2) almost never commit a violent crime in prison.

What this element really stands for is whether the client inherently evil.

Prosecutors often find it easier to convince a jury that your client is simply too evil to be

but they are porous. If you see multiple items stored either in the open or in food baggies,

have to show otherwise.

The Centers for Disease Control, in partnership with Kaiser Permanente have published studies of what occurs in a child’s life and how those events correlate with a later events in adulthood. To do this these two agencies developed a list of Adverse Childhood Experiences occur in a child’s life, and that serve as a predictor for adverse outcomes in life. The report breaks their findings into four categories: individual and family risk factors, community risk factors, individual and family protective factors, and community protective factors.

The vast majority of children will face some risk factors but those factor can be offset by the presence and of protective factors. Our client, however, will often experience a great many of the risk factors and almost no protective factors. A copy of these factors is at the end of this paper. These ACE factors have generated hundreds of papers establishing their validity.

It cannot be emphasized enough that your mitigation investigators develop evidence using these factors as a guideline. Cover every factor. I’ve seen cases where clients were exposed to almost every risk factor with no protective factors.

Once you get this picture developed, you will have a better idea of just what kind of expert testimony you will need. Obtaining school records can help you decide whether to test for intellectual disabilities or fetal alcohol issues. There are child development experts that can place all of this into a understandable context. If the client’s family moved around

a lot, education experts can describe the impairments caused by this phenomenon.

allowed to live. Juries that accept this at face value simply see the client as inhuman. You

Every judge worries about costs. In my practice, I learned to divide my requests into segments. The first would be in aid of the investigation. You can’t argue brain damage without neuropsychological testing. Intellectual disability also requires testing.

Forensic evidence has to be subjected to testing, even if the police crime labs results seem obvious. In the Stephen Barbee case, Richard Ellis, the attorney, and Nicole Van Toorn the investigator, found many failings of the medical examiner, failings that required his termination from the ME’s office. I’ve seen cases where police agencies failed to send all of the evidence including, in one case, the victim’s undershirt. Once it was produced in post conviction, the state’s expert had to change his opinion. Fingerprints that are placed consistent with innocence can be very useful. Any impressions evidence, such as tire prints or shoe wear prints are often subject to challenge. Ballistics have the same issues. Arson cases are very difficult to prosecute because of the poor forensics. You can go on and on.

Preface your funding requests first as a need to investigate whether you even have an issue. You should inform the court that these experts will prepare results and testify only if useful information is developed. Discuss with your experts precisely what they need to have to form an opinion. That should be part of your discovery requests or your in camera request for funding.

A smart prosecutor would not oppose these requests but a lot of DA’s will, especially if they think the judge will more likely favor them rather than you. These denials provide the basis of structural IAC; it’s not your fault that the evidence wasn’t developed. But you have to make as good a record as you can. Consider using affidavits of family members that produce useful ACE evidence, draft an affidavit for the experts to demonstrate what might be relevant evidence if they were only able to conduct testing. All of these arguments

should emphasize that you cannot effectively represent your client without the data.

Funding

at every opportunity until the judge says no, even if you have to ask for the deed to the courthouse. Tenacity will pay off in some cases and you can feel better about yourself for trying.

A friend of mine once told me that the key to getting relief for a client was to object

Definition: An isolated instance of trial attorney ineffectiveness that is attributable to the governmentor the structure of the system.

Examples:

Examples:

Episodic •

Defense attorney fails to objectto inadmissible evidence because the attorney simply missed that it was inadmissibleor was not paying attention.

•

Defense attorney fails to file a pretrial motion to suppress or exclude evidence due to an erroneous understanding of theapplicable law.

Definition: Trial attorney ineffectiveness that is attributableto the trial attorney herself and that pervades the entire process.

Examples:

•

State denies defendant an attorney at a postindictment,pretrial lineup.

•

State denies defendant an attorney for a matter of moments during an insignificant part of a trial.

Definition: Trial attorney ineffectiveness that is attributable to the government or the structureof the system and that pervades theentire process.

Examples:

Pervasive •

Defense attorney is drunk or sleeping throughout the trial.

•

Judge denies defendant anattorney altogether.

•

Defense attorney does not investigate, make arguments, or question witnesses at trial despite having the opportunityto do so.

•

High caseloads prevent defenseattorney from being able to meet client pretrial, investigatethe case, research, or present a defense.

Risk and Protective Factors |Violence Prevention|Injury Center|CDC

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Violence Prevention

Risk and Protective Factors Did you know that negative experiences in childhood and the teenage years may put children at risk for chronic health problems, mental illness, and substance use in adulthood? These negative experiences are known as adverse childhood experiences (ACEs). ACEs are potentially traumatic experiences, such as neglect, experiencing or witnessing violence, and having a family member attempt or die by suicide, that occur in childhood (birth to 17) that can a!ect children for years and impact their life opportunities. Fortunately, we can prevent ACEs and we can educate parents, communities, and policymakers about how to help children grow up in a safe and stable environment.

This page explores risk factors (things that increase the likelihood of experiencing ACEs) and protective factors (things that protect people and decrease the possibility of experiencing ACEs). Individual, family, and community factors can a!ect the likelihood of these experiences, but they may or may not be direct causes of ACEs. Because ACEs include many di!erent types of experiences, including abuse, neglect, household challenges, and other traumatic events that may occur outside the home such as bullying, teen dating violence, and witnessing community violence, there are many risk and protective factors that apply to the range of di!erent ACEs. This page lists examples of the many common risk and protective factors that are related to multiple ACEs, but may not be related to all ACEs. This list is not meant to be exhaustive. It is also important to note that experiencing some ACEs can increase the risk of experiencing other ACEs. Although some risk and protective factors are at the individual and family level, no child or individual is at fault for the ACEs they experience.

Please note the term “caregiver” will be used throughout to refer to parents and those who care for children but may not be biological parents.

Risk Factors Individual and Family Risk Factors • Families experiencing caregiving challenges related to children with special needs (for example, disabilities, mental health issues, chronic physical illnesses) • Children and youth who don’t feel close to their parents/caregivers and feel like they can’t talk to them about their feelings • Youth who start dating early or engaging in sexual activity early • Children and youth with few or no friends or with friends who engage in aggressive or delinquent behavior • Families with caregivers who have a limited understanding of children’s needs or development • Families with caregivers who were abused or neglected as children • Families with young caregivers or single parents • Families with low income • Families with adults with low levels of education • Families experiencing high levels of parenting stress or economic stress • Families with caregivers who use spanking and other forms of corporal punishment for discipline • Families with inconsistent discipline and/or low levels of parental monitoring and supervision • Families that are isolated from and not connected to other people (extended family, friends, neighbors)

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• Families with high con"ict and negative communication styles • Families with attitudes accepting of or justifying violence or aggression

Community Risk Factors • Communities with high rates of violence and crime • Communities with high rates of poverty and limited educational and economic opportunities • Communities with high unemployment rates • Communities with easy access to drugs and alcohol • Communities where neighbors don’t know or look out for each other and there is low community involvement among residents • Communities with few community activities for young people • Communities with unstable housing and where residents move frequently • Communities where families frequently experience food insecurity • Communities with high levels of social and environmental disorder

Protective Factors Individual and Family Protective Factors • Families who create safe, stable, and nurturing relationships, meaning, children have a consistent family life where they are safe, taken care of, and supported • Children who have positive friendships and peer networks • Children who do well in school • Children who have caring adults outside the family who serve as mentors/role models • Families where caregivers can meet basic needs of food, shelter, and health services for children • Families where caregivers have college degrees or higher • Families where caregivers have steady employment • Families with strong social support networks and positive relationships with the people around them • Families where caregivers engage in parental monitoring, supervision, and consistent enforcement of rules • Families where caregivers/adults work through con"icts peacefully • Families where caregivers help children work through problems • Families that engage in fun, positive activities together • Families that encourage the importance of school for children

Community Protective Factors • Communities where families have access to economic and #nancial help • Communities where families have access to medical care and mental health services • Communities with access to safe, stable housing • Communities where families have access to nurturing and safe childcare • Communities where families have access to high-quality preschool • Communities where families have access to safe, engaging after school programs and activities

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• Communities where adults have work opportunities with family-friendly policies • Communities with strong partnerships between the community and business, health care, government, and other sectors • Communities where residents feel connected to each other and are involved in the community • Communities where violence is not tolerated or accepted ACEs don’t have a single cause, and they can take several di!erent forms. Many factors contribute to ACEs, including personal traits and experiences, parents, the family environment, and the community itself. To prevent ACEs and protect children from neglect, abuse, and violence, it’s essential to address each of these factors.

Page last reviewed: January 5, 2021

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Criminal Defense Lawyers Project

Capital Defense Seminar November 19, 2021 Beach Resort 100 Padre Blvd.

South Padre Island, TX 78597

Topic: The Play of 46B and 46C in Capital Litigation

Speaker:

Dennis Reeves PO Box 2097 Lubbock, TX 79408-2097 (806) 775.1526 phone dreeves@rpdo.org

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Capital Defense Seminar November 19, 2021 Beach Resort 100 Padre Blvd.

South Padre Island, TX 78597

Topic: Legislative Update/Modifications in CCP Chapter 38

Speaker:

Rick Wardroup 915 Texas Ave Lubbock, TX 79401-2725 (806) 763.9900 phone rwardroup@tcdla.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Capital Defense Seminar November 19, 2021 Beach Resort 100 Padre Blvd.

South Padre Island, TX 78597

Topic: Creating and Delivering the Narrative

Speaker:

Jill Patterson 9003 Memphis Dr. Lubbock, TX 79423-3617 (806) 438.2385 phone jill.patterson@ttu.edu

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Writing a Life Narrative: What Does The Plotline Look Like?

Leslie Jill Patterson, PhD, Narratology and Narrative Nonfiction

So you’ve spent months gathering boxes and notebooks and discs filled with data, anecdotes, family legends, and photos regarding your client’s story. You’ve organized timelines, family trees, chaos maps, witness Excel files. You know there’s a story here, but it’s overwhelming how massive the narrative looks. Where to begin? What outline to hang it all on? When attempting to negotiate a deal, what do you include in a pretrial narrative? What facts, details, and evidence will combat the tale that the DA’s office and law enforcement have been building against your client and embedding in the public narrative? What does the story look like that will compel a prosecutor to take death off the table, to stop asking a group of jurors to decide your client must not live. This guide, an addition to my presentation, will teach you three plotlines around which you can write a life narrative for pretrial negotiations. Of course, these plotlines can work for post-conviction materials, as well.

The Linear Narrative of Death Traditional stories follow a linear arc—the most familiar of all plotlines. Aristotle gave us the form, and Shakespearean tragedies obey it. Based on cause and effect, one event triggering the next, these narratives suggest that life unfolds in a forward, mannerly direction until a goal or climax is reached.

In Act 1, we’re given the background information necessary to understand the dramatic situation; in Act 2, the conflict increases and we become concerned the story will end tragically; until Act 3, when the impending calamitous event does occur and we feel vindicated for our foresight and also enraged that the villain was allowed to act when everyone saw his dastardly deeds coming. In Act 4, we learn more information that will either solidify our assessment of the events or change it, and by the end of the story, in Act 5, we TCDLA Capital Clinic, Fall 2021

Patterson 1

are given the last bit of intel. In TV dramas, this is the moment when a big reveal surprises everyone; in a capital trial, this is the moment when prosecutors have pulled off the conclusion they’ve fought for. However violent or vengeful it requires jurors to be, they’re convinced that only a death verdict can purge their anger and restore their sense of justice, the good guy victorious, the bad guy punished, may God have mercy on his soul because we aren’t going to.

Telling a linear story requires no imagination and little effort. It obeys a sequential timeline; in this way, it writes itself. In capital cases, prosecutors choose this narrative structure for trial presentations because it automatically situates the defendant in the role of villain or antagonist and then builds the line of thought they want jurors to follow. They build Acts 1, 2, and 3 in the merits phase, working toward the peak moment when they have thoroughly depicted the murder, the grisly photographs and autopsy reports under the jurors’ noses, at which point they pause to let the jury deliberate guilt or innocence, which frequently takes less than an hour. By the time prosecutors conclude Acts 4 and 5 in the punishment phase and it’s the defense team’s turn to narrate, it’s absurd to think the jury will let us relocate the defendant into the leading role, to think they will hear his story and not the victim’s if we tell it. They’ve been convinced for days that only a death verdict will set the world upright again. Prosecutors have concluded the story—it’s finished, he’s guilty, let’s go home—whereas defense attorneys are starting back at once upon a time as we try to explain the three generations that brought our clients to this moment.

Because the bifurcated structure of a capital trial and the pre-conditioned response of jurors so closely mirrors the narrative of a traditional tragedy and its punitive outcomes, it’s never a good idea to attempt a linear life narrative at trial. Jurors have been primed to vote for death, and the victim’s family members are demanding justice from the gallery. Perhaps linearity seems advantageous since you’ve already worked up a chronological timeline by this point—and so the content lines up for you without much effort—but our clients’ lives have been traumatic because chaotic; they have not been given linear or predictable lives. It is possible to successfully use a traditional linear narrative before trial, presented to a prosecutor behind closed doors to obtain a Life or LWOP offer, but it’s far more effective to utilize plotlines meant specifically for oppositional narratives—as in, counter or subversive stories—when trying to stop the machinery of the death penalty.

Stories that don’t follow a traditional arc know the established rules of storytelling but are choosing, with great intent, to buck or flaunt them. Their beginnings rarely start in the beginning.

Their conclusions take us to places we don’t recognize and didn’t see coming (whereas linear stories map and forecast what lies ahead, miles before we arrive at The End). Women writers, writers of color, writers with disabilities, LGBTQIA+ writers embrace these forms more often than not to question society’s codes of behavior: What should we label strong? What should we label criminal?

What should we label healthy? What should we label normal? Their stories defy the customs, habits, “truths,” and “facts” traditional stories have plugged for centuries. And because they don’t follow predictable plotlines, their stories require attention: readers must pay attention—something different is happening here—and they do because they’re intrigued by the strange journey but also because it feels oddly as if they’re participating, putting in their two cents, writing the story with the teller, instead of being led by a leash. Loosened from strict timelines, oppositional scaffolding can even make room for the range of data in a capital story, the endless amount of it, even the seemingly “irrelevant” or “random” facts that we know play a key role but which prosecutors love to silence.

The Linear Narrative of Grace Twenty-four hours after the Twin Towers fell in 2001, photographs of the jumpers, who had leapt from the buildings every two minutes on the morning of September 11th, were erased from the TCDLA Capital Clinic, Fall 2021

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Associated Press and all other news outlets, as well as every documentary film distributed nationally for fifteen years afterward. Because the stigma against suicide is so engrained in American culture, the New York City coroner’s office insisted there were no jumpers and released statements claiming that people had simply been “blown from the building.” And we were relieved and bought into that lie because in those immediate hours afterward, we didn’t understand the conditions in the towers, how desperate people above the crash sites were. Maybe we didn’t want to know. Honestly, I’m not sure we could have stood any more traumatic facts. It was easier to hate or judge the possibility of suicide than believe anyone jumped.

In the documentary, The Falling Man, director Henry Singer attempts to identify one of the jumpers in a photo taken by journalist Richard Drew and featured repeatedly in news articles before the jumpers was censored and erased. 1 In the movie’s first act, Singer establishes the conditions at the top of the towers: temperatures exceeded 1,100 degrees Fahrenheit, and because the smoke was so suffocating inside, the trapped victims broke open windows in hopes of breathing fresh air, which instead only fed the flames. It is impossible to tell a story without a consideration of the triggers inside the places where critical events occur. You must know as much about the setting as you do your client’s background. On September 11th, it mattered how faraway the street below looked to those waiting for help to arrive, how many flights of stairs they knew rescuers needed to climb. It mattered that phone lines were tied up, many of the trapped unable to reach family members and hear their voices of hope. The plumes of suffocating smoke mattered most to any victims who were asthmatic. Pretty quickly, in that environment, conditions either deluded a person into believing they would survive or persuaded them they could not.

In the film’s second act, Singer meets with witnesses and attempts to identify the jumper. In the third act, the climax, he attends the funeral of the man he believes is the jumper—with the sole purpose of asking his grieving daughter, a devout Catholic, if she recognizes her suicidal father in the photos. Furious, the girl yells at Singer. Her father would have never given up. Her father would have fought to come home. Her father would never abandon her. In this moment, Singer, via the traditional plotline, allows us to commiserate with the daughter. We share her rage, so conditioned are we to be angered by suicide. How dare anyone accuse victims of jumping! How dare they jump!

But in the fourth movement, Singer goes back to the drawing board, so to speak, and this time, in Act 4’s turn, he interviews witnesses who worked at the Top of the Tower restaurant, to see if they knew the jumper, who appeared to be wearing a chef’s jacket. He shares more details about the flight downward: each fall lasted ten seconds, the jumpers reaching speeds of 150 miles per hour, some of them losing their clothes in the wind, as the man in Drew’s photo lost his chef’s jacket. In sharing these specifics, Singer aligns us with the jumpers. We are in flight with them.

In the final and fifth act, Singer schedules an appointment with the woman he believes is the jumper’s sister. In her own home, having invited Singer inside, this woman knows what’s coming.

The photograph Singer sets before her is not a surprise punch to the gut. Immediately, she recognizes her brother’s high-top sneakers, and she breaks down, weeping—not because she cannot believe her brother took the dive, but because, she tells us, her brother was, in fact, an asthmatic, and she is so grateful he had ten beautiful seconds of fresh air before he died. Suddenly, sneaky storyteller that he is, Singer has persuaded us to abandon our judgment about suicide. With the sister, we, too, are relieved that the man in the photo, the Falling Man, is her brother. His jump is a blessing now, not a damnation.

On any capital defense team, if we’re going to deliver a life narrative that follows a traditional, linear storyline, then we must remember that in our version, the defendant is not the antagonist but the lead. We cannot situate the murder he is accused of committing as the climactic event in Act 3.

1

The Falling Man is loosely based on Tom Junod’s Esquire article of the same name.

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We must reorder the events—because this is the defendant’s story, not the victim’s. In Acts 1 through 3, we must make room for the prosecutor to feel rage, but we are focusing it elsewhere, on the traumas our clients themselves have suffered but survived, barely. Perhaps an incident in our client’s youth is the pinnacle tragic moment when his/her/their life was forever altered at the peak of Act 3.

What follows in Acts 4 and 5 of our story must give the prosecutor the space to sit with the defendant, to bond with him the way we aligned ourselves with the jumpers and then with the Falling Man’s sister in Singer’s documentary. The prosecutor will need to feel that he has purged his/her/their anger so he can feel comfortable making a life offer—not as an “acquittal” or as a failure to wreak vengeance, but rather as a righteous act of mercy. That offer must feel to him as cathartic as a death verdict originally did. 2 The Cubist Story In Picasso’s cubist paintings—The Weeping Woman or Girl with Mandolin, for example—he challenges our ideas about perspective. Are our faces and bodies really symmetrical? Is there an ideal according to which all bodies must be shaped? Does grief look the same on every face? Does it even remain consistent on any one person’s face?

Because his work shatters the image we expect to see, giving multiple thumbnails of the same image from different angles, we are jolted out of complacency. We cannot look at his paintings in the same If you’re forced to tell this story at trial, your team will have an even more difficult time transforming a linear narrative into a life narrative. The plotline of your story must still belong to your client, but now the guilty verdict becomes the climax at the end of Act 3, the moment at which your client’s life changed forever—meaning there is no reason to fear that our client will ever reenter society, but that will likely not feel like enough justice for the jurors who expect a strict good guy vs. bad guy morality tale. Your linear tale will also suffer at trial if you don’t have the “big reveal” for the jurors in Act 5; plus, a chronological story that lasts three generations feels as if it might never end. If you’re standing in front of a jury, telling a chronological story, there are so many pitfalls to land in.

2

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old way we’ve always admired art. These portraits force us to look closely, to ask what is happening, and to decide what the image means. We become partners with the artist.

In the cubist tale, the storyteller offers multiple perspectives on one subject, all of them accurate, and by the finale (Act 5, if you’re still thinking in traditional terms), the whole of these perspectives stitch together in a surprising re-vision of the subject, so much more insightful than our traditional take and thus more powerful. The story shifts what we once considered “a consensus.”

In Rochelle Spencer’s essay, “Thirteen Ways of Looking at a Black Woman,” 3 Spencer challenges the sexualized vision of Black women that white America has always peddled. In thirteen brief scenes—they’re numbered—she explores how white America portrays Black women in magazines, “sees” them in classrooms and on commuter trains, “interprets” them in history, how Google manages searches about them, what Steve Harvey says about them, what the New York Times says, what Fox News says, what Black women learn to see in the mirror, and, ultimately, by Scene 13, what we should all now understand about the way America “looks” and thus “reads” and “judges” in general, In the process of addressing and revising the way America sees Black women, Spencer is attempting to revise the way America sees in general.

If a capital defense team wants to build a cubist narrative, Spencer’s essay provides a good example to mimic: •

The numbered scenes. The team should figure out their key scenes—the ones they wish to share with a prosecutor before trial or as part of post-conviction arguments. How many are there? You can delete or include others as you put the story together, depending on your needs. Don’t let your number rise above fifteen. With thirteen points, Spencer’s essay is only six pages long.

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The title. You may choose not to use a title when you deliver this narrative to a DA’s office, 4 but using one in-house when discussing and developing the story will help your team determine the content that matters most. Thirteen Ways of Looking at a Black Man. Fifteen Ways of Looking at a Homeless Man. Ten Ways of Looking at a Victim (meaning, your client). Twelve Ways of Looking at Intellectual Disabilities.

Another way to generate the subject for your cubist narrative is to consider it a “Study of” a particular topic. For example, in Sarah Gorham’s essay entitled “Study in Perfect,” her “visions” include a look at different objects that exemplify various definitions of perfection: the perfect sleep, the perfect barn, the perfect paper towel, the perfect being, the perfect flower, the perfect tea, the perfect solution, the perfect word, the perfect conversation, a perfect book binding, the verb tense we call “perfect”; the perfect water; and the perfect ending. Gorham questions where our standards for perfection come from, how they might vary depending on the situation, how the perfect version of one thing might mean the opposite of the thing itself (i.e., the perfect ending isn’t the one that makes you glad you’ve finished reading the essay but rather one that makes you want to read the essay again).

Here’s how you might work for your client’s story: Let’s say you want to write a “Study in Grief”—the emotion propelling your defendant to act in the crime scene. Along your client’s life path, grief may have been a deep sorrow (he is overcome with grief), a disaster (as in, a

I’ve provided copies of all the essays I discuss in this paper. The Falling Man can be watched on YouTube at https://www.youtube.com/watch?v=iRPMn2Kty_E, or you can catch it at least once every September when history channels on TV begin honoring the anniversary of 9/11.

3

If you do use a title when delivering the story, you’ll be reassuring a likely put-out prosecutor how quickly he can finish this narrative—it only lasts fifteen, thirteen, twelve, ten moments.

4

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home comes to grief, catching fire), a criticism or misery (his father gives him grief), a surprise (good grief!), a hassle (the grief of getting meds when you have no money), etc. Each of your key moments/visions could exemplify the sustained grief that has haunted and influenced your client’s life.

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Length of key moments. Spencer’s thirteen “visions” last a variety of lengths—some several paragraphs, some only one or two paragraphs, some only one sentence. This, too, causes the reader to set up and pay attention—because it’s a surprise with each new vision and because it’s also magical when your narrative accomplishes in one sentence what it took several paragraphs elsewhere. This is not the same-old/same-old linear story. Something unusual is happening here.

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What counts as a “way of looking.” A single line from a celebrity or a line from a newscast count as one of the ways of looking in Spencer’s essay. For your goals, this may mean a single line from a mental health expert, a catchphrase from social media, a quote from a police report or witness. Those three sections in which Spencer includes only a single line about Black women voiced by outlets we traditionally trust are very powerful. They make exactly the point she needs to make—in only one sentence! Other “ways of looking” might include a more in-depth “moment” considering schizophrenia, poverty, the treatment of undocumented immigrants, war brides, PTSD, or even the customary way administrators hide students of color with ID issues, sometimes in alternative schools, so they don’t harm a district’s scholastic record even though it harms the student’s record. It depends on what the overall topic of your cubist narrative is.

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The story thread. Oppositional stories need a dot-to-dot line, a trail of breadcrumbs, something that resembles plot and acts as guide. In Spencer’s essay, several clips focus on classrooms—what is happening to her as a student or how her own students react when learning how America looks at Black women. Another handful of clips talks about her experience as a victim of rape. The essay “looks” as if the thirteen sections are unrelated, and it does cover a lot of different terrain, but those clips that share a subject (the classrooms, her rape) give the reader something to expect in the same way we expect linear tales to give us the next day, then the next month, and then, finally, the climax. In Spencer’s essay, readers start to look for another classroom scene or another development in the rape thread, and Spencer gives it to them so they will continue moving forward in her narrative. In your defense team’s narrative, these sub-threads could focus on key moments of the crime scene, or key moments in a childhood incident, or key moments in an interview with a crucial witness, 5 or the places on your chaos map, or the various family members with an accompanying anecdote about each one proving that mental illness or substance abuse or [fill in the blank] has recurred in the family for generations.

5 In Beverly Lowry’s essay, “The Shadow Knows,” she attempts to explain why teenage boys might kill their fathers.

Though the sections are not numbered, “The Shadow Knows” is a cubist essay. It offers multiple perspectives on a murder that took place in Rush Springs, Oklahoma, via scenes that exemplify the patriarchal culture in Rush Springs, how our country in general buries stories of domestic violence, how a single family in particular can build a tradition of it, and even how Lowry herself feels increasingly uncomfortable as a woman visiting this community. Additionally, there is a thread of scenes that focuses on an interview Lowry held with the victim’s father. Lowry shows us a bit of the interview, interrupts it with some cultural information, then returns to the interview. She makes this back-and-forth move multiple times throughout the essay, inserting the key points the father makes where they can best comment upon and support the points Lowry hopes to make about domestic violence and its consequences.

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•

The revised vision. Your team should ask: What is it that we want the prosecutor to realize when we ask him/her/them to re-look at race, homelessness, childhood trauma, or ID issues (or whatever your main concern is) from various perspectives? By the time he/she/they finish our narrative, what new way of seeing this issue might help him/her/them lean toward mercy?

The Braided Story The braided story is more controlled than the cubist story: rather than ten, twelve, thirteen, or fifteen different glimpses, it allows room for only three subjects, and each subject must wait for and then take its turn as the focus in the plotline’s repeating pattern, which resembles a braid. Each time one of the three subjects returns to center-stage, it is enriched by what the reader has learned from the other two strands in its absence. In her essay, “Beasts of the Field,” Aimée Baker examines the Fragility of her brother’s mental health by contrasting him with the determined, even unyielding, rats that took over her family’s farmhouse the year her brother attempted to kill himself the first time. The three subjects in her essay: 1) her brother’s declining health that year, 2) the rat infestation and how her father asked her and her brother to help him exterminate them, and 3) the communal nature, diseases, and over-population of rats in the world at large. For each of four seasons (spring, summer, winter, and fall), we see the rats on her family’s property, learn more about their survival skills, then watch her brother lean closer and closer to his suicidal tendencies. Nothing disturbs the rats; nothing can save her brother. Her family’s attempts at solving both problems are equally crude and ill-fated. As the essay moves along, it becomes more and more apparent that though her brother is suffering from severe depression, he is also threatening Aimée’s life routinely whenever their parents aren’t watching. He becomes as invasive and adamant as the rats, and Aimée realizes she is not always hoping his suicide attempts will fail. It is a tough essay about sibling love, mental illness, and survival.

In Tim O’Brien’s short story, “How to Tell a True War Story,” he uses three strands to braid his narrative: 1) a look at the systemic violence in the narrator’s troop when he was serving in Vietnam (several of his troop members torture and kill a baby water buffalo after losing one of their friends to an exploding hand grenade), 2) a look at PTSD among soldiers (as signified by his troop “hearing things” while on patrol and so calling in an ordnance strike when there was no cause for alarm); and 3) the narrator’s repeated attempts to explain the reality of war to the reader and his friends/family as well as strangers back in the States. The three strands are inextricable. Each one exists because the others do; the narrator’s experience with violence is a tangled mess he can’t unknot, even so many years after the war ended. The stories depicted in strands 1 and 2 are chopped apart and spread throughout, the reader getting a short glimpse of each one, bit by bit, until finally we understand the beginning, middle, and end of both traumatic stories—the shocking outcomes, the heartbreak, the

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grief afterward. Strand 3 operates as running commentary. The narrator, several decades past the war, describes the various times he has attempted to explain what life was like in Vietnam, always failing to tell it “right.” No one ever hears much less understands him.

What strategies can defense teams take away from these two braided tales if they wish to use the form for a life narrative?

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The plotline. Though both Baker’s essay and O’Brien’s story do not follow chronological or cause-and-effect routes, they both offer the reader a surrogate plotline: for Baker, the brother’s move toward a suicide attempt (will he or won’t he?), and for O’Brien, the circumstances of Lemon’s death (How did it happen? What made this combat death so destructive that the troop members went on a rampage in a nearby village?). There is, in other words, forward movement in this form however repetitive and circuitous it might be.

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Juxtaposition. Every time Baker situates a clip about her brother after or before a clip about the rats, she does not have to tell us she is comparing her brother to the rats; we understand that simply by their proximity to one another in her narrative. Every time O’Brien gives us a little more information about Lemon’s and the water buffalo’s deaths, we know we are not going to understand what the narrator is attempting to tell us because these scenes are surrounded by all the moments in which the narrator has tried previously to explain the war and failed. We intuit what we are supposed to understand only because we see all his other listeners refusing to hear it. In a life narrative that is braided, think of the allegedly “irrelevant” or “unrelated” topic you can connect to the crime simply by placing it in close proximity to your analysis and depiction of the crime. The connection becomes more and more apparent every time you make the juxtaposition.

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White space. On the practical side, a braided narrative allows you to avoid writing transitions; the white space between each section signals the jump or shift to the next thread’s turn. All you must do is make sure you land precisely in the first sentence of any clip, situating the reader, cueing them to what strand they’ve just entered. If you have a strand providing commentary on a mental health topic, you don’t have to reintroduce the topic every time, or state the expert’s name again, all you have to do is drop the key word— schizophrenia, intellectual disability, depression—into the first sentence of the clip, and you’re good to go. Eventually, if you follow the braided pattern strictly, your reader/listener will be prepared for the next strand; they will learn the order in which the strands are appearing.

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The third strand. Both pieces show you how to incorporate and use factual and/or historical evidence inside a story in a way that does not stall the narrative’s pace even as this third strand interrupts to comment upon the drama while it unfolds. In both manuscripts, the third strand appears to sit “outside” the drama, to be “irrelevant,” and yet what we learn in the third strands (the history and survival skills of rats, and the inability of soldiers to explain their experiences) is what allows us to understand the other two threads. The third strand provides commentary, acts as voice-over, and if used in a life narrative, it will give the capital defense team a chance to explain even as they tell the story. The explanation becomes the story, and deciding what the third strand will be in a life narrative that is braided is crucial to its success.

For example, in a life narrative regarding a client who killed a cop while high on Xanax, the three strands might be 1) the defendant’s growing dependence upon drugs and his multiple attempts to step back; 2) the crime scene (a grocery store where the client, high on

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Xanax, was attempting to shoplift a meal because he was completely out of money); and 3) all the ways law enforcement denied recognizing that he was inebriated while simultaneously behaving as if they knew exactly how inebriated he was and they took advantage of that fact.

Or, let’s say the same client isn’t high on Xanax, but is autistic: 1) we’d still need the crime scene (a grocery store trip from the perspective of someone with autism); 2) past events that indicate the client did, in fact, suffer from autism; and 3) commentary on autism and its effects on the human brain and decision-making. The commentary clips of the third strand should interrupt the “story” at the precise moment where a particular explanation is needed or where an explanation can confirm what the “story” is saying about the crime scene.

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The difficult, unlikeable character. Both Baker’s essay and O’Brien’s story tell us about young boys who are drawn to violence as well as self-destruction and why, and though the normal response to these young men would be revulsion, the reader instead experiences a desperate desire to save them. To help Baker’s brother as well as Baker herself. To get the narrator of O’Brien’s story out of Vietnam, both physically and mentally. We sympathize with these characters rather than fating them to a death we hope they experience sooner rather than later. Nontraditional forms make room for these types of characters and unexpected reactions to them.

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The end. Because a braided essay has three endings every time the writer completes a full rotation of the three strands—each strand entering center-stage and then leaving it again— the writer has multiple, countless opportunities to write a departing sentence. Every strand is an opportunity to make a final point. Some of the concluding sentences in Baker’s essay: Whether or not the rats would survive the winter and return was not a question that had an answer.

It’s harder to find the rats that perished.

“He didn’t die?” I asked my father. Not this time.

By the end of the essay, the concluding sentences in the rat clips could very well stand in for concluding sentences about the brother in his clips. Literal statements take on metaphorical meaning and symbolic weight. Of course, if you’re not skilled at writing or recognizing a powerful concluding sentence, you might not want to attempt this form.

•

Reader participation. The braided story requires, again, that the listener or reader participate. They feel as though they are making narrative decisions as they read because they are, in fact, deciding what the core meaning of these stories are. The strands loop in and out, the story making a point in each one, again and again, but the story’s overall meaning comes from what these strands accomplish together. The brief moments of illumination, offered momentarily by each strand as it sits center stage, form a larger, coherent whole, and in figuring out what that whole is, the reader/listener believes he/she/they are writing the story themselves. They are not; the braided story works subliminally. The author is always in control.

•

Fragments. The braided story does not require long, drawn out scenes. Like the cubist story, the form can work very well off quick scenes, making the writer’s job easier. A strand’s appearance in the story could be as short as one paragraph or one sentence, just as happens in the cubist story.

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•

Association and Intuitive Connections. Because the braided story frequently brings disparate objects together (rats and someone’s brother!), they work off dissidence. They show new, unexpected relationships. They complement and clash. They make random, chance associations—all of which leads to the re-visioning that nontraditional stories thrive on. The entire goal of the nontraditional story is to persuade the listener or reader into thinking about a hard topic in a new, revelatory way.

Final Comments Writers do not sit down at their desks, preparing to write about a particular topic or tell a short story in a particular form. We try on all the forms. What will the story look like if we use a linear structure—what details will we be able to include but what details will we be forced to eliminate?

How does cause-and-effect influence the way readers will interpret our ending? If we try a braided form, which three subjects become key? What plot-points will we have to let go of then? How will these changes alter our ending? What will our story or essay come to mean in a braided rather than linear form? Or if we adopt a cubist form, perhaps only one strand is going to recur—what happens to the others? What moments in the story will we expand into full scenes and which ones will become only a sentence in length?

Trying on different forms requires that your team brainstorms the story, that they rehash again and again what the key points are. Maybe you will remember details of the story you’d forgotten.

Maybe, as you consider the shape of your life narrative, all the different forms it might take, you will learn that something everyone thought was crucial to the story really isn’t. Maybe you’ll learn that something you thought meant nothing—something you had dismissed—is actually the keystone. All the associational thinking (in contrast to cause-and-effect logic) that comes with nontraditional story-building forces your brain to recall and reorganize and re-see in exactly the same way that these narratives require readers and listeners to rethink and re-see. Finding the perfect form for delivery will, in itself, strengthen your team’s familiarity with and understanding of your client’s story.

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“How to Tell a True War Story” (1990)

by Tim O’Brien This is true.

I had a buddy in Vietnam. His name was Bob Kiley but everybody called him Rat. A friend of his gets killed, so about a week later Rat sits down and writes a letter to the guy’s sister. Rat tells her what a great brother she had, how strack the guy was, a number one pal and comrade. A real soldier’s soldier, Rat says. Then he tells a few stories to make the point, how her brother would always volunteer for stuff nobody else would volunteer for in a million years, dangerous stuff, like doing recon or going out on these really badass night patrols. Stainless steel balls, Rat tells her. The guy was a little crazy, for sure, but crazy in a good way, a real daredevil, because he liked the challenge of it, he liked testing himself, just man against gook. A great, great guy, Rat says.

Anyway, it’s a terrific letter, very personal and touching. Rat almost bawls writing it.

He gets all teary telling about the good times they had together, how her brother made the war seem almost fun, always raising hell and lighting up villes and bringing smoke to bear every which way. A great sense of humor, too. Like the time at this river when he went fishing with a whole damn crate of hand grenades. Probably the funniest thing in world history, Rat says, all that gore, about twenty zillion dead gook fish. Her brother, he had the right attitude. He knew how to have a good time. On Halloween, this real hot spooky night, the dude paints up his body all different colors and puts on this weird mask and goes out on ambush almost stark naked, just boots and balls and an M-16. A tremendous human being, Rat says. Pretty nutso sometimes, but you could trust him with your life.

And then the letter gets very sad and serious. Rat pours his heart out. He says he loved the guy. He says the guy was his best friend in the world. They were like soul mates, he says, like twins or something, they had a whole lot in common. He tells the guy’s sister he’ll look her up when the war’s over.

So what happens?

Rat mails the letter. He waits two months. The dumb cooze never writes back. ***** A true war story is never moral. It does not instruct, nor encourage virtue, nor suggest models of proper human behavior, nor restrain men from doing the things they have always done. If a story seems moral, do not believe it. If at the end of a war story you feel uplifted, or if you feel that some small bit of rectitude has been salvaged from the larger waste, then you have been made the victim of a very old and terrible lie. There is no rectitude whatsoever. There is no virtue. As a first rule of thumb, therefore, you can tell a true war story by its absolute and uncompromising allegiance to obscenity and evil. Listen to Rat Kiley. Cooze, he says. He does not say bitch. He certainly does not say woman, or girl. He says cooze. Then he spits and stares. He’s nineteen years old—it’s too much for him—so he looks at you with those big gentle, killer eyes and says cooze, because his friend is dead, and because it’s so incredibly sad and true: she never wrote back.

You can tell a true war story if it embarrasses you. If you don’t care for obscenity, you don’t care for the truth; if you don’t care for the truth, watch how you vote. Send guys to war, they come home talking dirty.

Listen to Rat: “Jesus Christ, man, I write this beautiful fucking letter, I slave over it, and what happens? The dumb cooze never writes back.” ***** The dead guy’s name was Curt Lemon. What happened was, we crossed a muddy river and marched west into the mountains, and on the third day we took a break along a trail junction in deep jungle. Right away, Lemon and Rat Kiley started goofing off. They didn’t understand about the spookiness. They were kids; they just didn’t know. A nature hike, they thought, not even a war, so they went off into the shade of some giant trees— quadruple canopy, no sunlight at all—and they were giggling and calling each other motherfucker and playing a silly game they’d invented. The game involved smoke grenades, which were harmless unless you did stupid things, and what they did was pull out the pin and stand a few feet apart and play catch under the shade of those huge trees.

Whoever chickened out was a motherfucker. And if nobody chickened out, the grenade would make a light popping sound and they’d be covered with smoke and they’d laugh and dance around and then do it again.

It’s all exactly true.

It happened nearly twenty years ago, but I still remember that trail junction and the giant trees and a soft dripping sound somewhere beyond the trees. I remember the smell of moss. Up in the canopy there were tiny white blossoms, but no sunlight at all, and I remember the shadows spreading out under the trees where Lemon and Rat Kiley were playing catch with smoke grenades. Mitchell Sanders sat flipping his yo-yo. Norman Bowker and Kiowa and Dave Jensen were dozing, or half-dozing, and all around us were those ragged green mountains.

Except for the laughter things were quiet.

At one point, I remember, Mitchell Sanders turned and looked at me, not quite nodding, then after a while he rolled up his yo-yo and moved away.

It’s hard to tell what happened next.

They were just goofing. There was a noise, I suppose, which must’ve been the detonator, so I glanced behind me and watched Lemon step from the shade into bright sunlight. His face was suddenly brown and shining. A handsome kid, really. Sharp gray eyes, lean and narrowwaisted, and when he died it was almost beautiful, the way the sunlight came around him and lifted him up and sucked him high into a tree full of moss and vines and white blossoms. ***** In any war story, but especially a true one, it’s difficult to separate what happened from what seemed to happen. What seems to happen becomes its own happening and has to be told that way. The angles of vision are skewed. When a booby trap explodes, you close your eyes and duck and float outside yourself. When a guy dies, like Lemon, you look away and then look back for a moment and then look away again. The pictures get jumbled; you tend to miss a lot. And then afterward, when you go to tell about it, there is always that surreal seemingness, which makes the story seem untrue, but which in fact represents the hard and exact truth as it seemed. *****

In many cases a true war story cannot be believed. If you believe it, be skeptical. It’s a question of credibility. Often the crazy stuff is true and the normal stuff isn’t because the normal stuff is necessary to make you believe the truly incredible craziness.

In other cases you can’t even tell a true war story. Sometimes it’s just beyond telling.

I heard this one, for example, from Mitchell Sanders. It was near dusk and we were sitting at my foxhole along a wide, muddy river north of Quang Ngai. I remember how peaceful the twilight was. A deep pinkish red spilled out on the river, which moved without sound, and in the morning we would cross the river and march west into the mountains. The occasion was right for a good story.

“God’s truth,” Mitchell Sanders said. “A six-man patrol goes up into the mountains on a basic listening-post operation. The idea’s to spend a week up there, just lie low and listen for enemy movement. They’ve got a radio along, so if they hear anything suspicious—anything— they’re supposed to call in artillery or gunships, whatever it takes.

Otherwise they keep strict field discipline. Absolute silence. They just listen.”

He glanced at me to make sure I had the scenario. He was playing with his yo-yo, making it dance with short, tight little strokes of the wrist.

His face was blank in the dusk.

“We’re talking regulation, by-the-book LP. These six guys, they don’t say boo for a solid week. They don’t got tongues. All ears.”

“Right,” I said.

“Understand me?”

“Invisible.”

Sanders nodded.

“Affirm,” he said. “Invisible. So what happens is, these guys get themselves deep in the bush, all camouflaged up, and they lie down and wait and that’s all they do, nothing else, they lie there for seven straight days and just listen. And man, I’ll tell you—it’s spooky. This is mountains. You don’t know spooky till you been there. Jungle, sort of, except it’s way up in the clouds and there’s always this fog-like rain, except it’s not raining—everything’s all wet and swirly and tangled up and you can’t see jack, you can’t find your own pecker to piss with. Like you don’t even have a body. Serious spooky. You just go with the vapors—the fog sort of takes you in....And the sounds, man. The sounds carry forever. You hear shit nobody should ever hear.”

Sanders was quiet for a second, just working the yo-yo, then he smiled at me. “So, after a couple days the guys start hearing this real soft, kind of wacked-out music. Weird echoes and stuff. Like a radio or something, but its not a radio, it’s this strange gook music that comes right out of the rocks. Faraway, sort of, but right up close, too. They try to ignore it. But it’s a listening post, right? So they listen. And every night they keep hearing this crazyass gook concert. All kinds of chimes and xylophones. I mean, this is wilderness—no way, it can’t be real—but there it is, like the mountains are tuned in to Radio Fucking Hanoi. Naturally they get nervous. One guy sticks Juicy Fruit in his ears.

Another guy almost flips. Thing is, though, they can’t report music. They can’t get on the horn and call back to base and say, ‘Hey, listen, we need some firepower, we got to blow away this weirdo gook rock band.’ They can’t do that. It wouldn’t go down. So they lie there in the fog and keep their mouths shut. And what makes it extra bad, see, is the poor dudes can’t horse around like normal. Can’t joke it away. Can’t even talk to each other except maybe in whispers, all hush-hush, and that just revs up the willies. All they do is listen.”

Again there was some silence as Mitchell Sanders looked out on the river. The dark was coming on hard now, and off to the west I could see the mountains rising in

silhouette, all the mysteries and unknowns.

“This next part,” Sanders said quietly, “you won’t believe.”

“Probably not,” I said.

“You won’t. And you know why?” He gave me a long, tired smile. “Because it happened. Because every word is absolutely dead on true.”

Sanders made a little sound in his throat, like a sigh, as if to say he didn’t care if I believed it or not. But he did care. He wanted me to believe, I could tell. He seemed sad, in a way.

“These six guys, they’re pretty fried out by now, and one night they start hearing voices. Like at a cocktail party. That’s what it sounds like, this big swank gook cocktail party somewhere out there in the fog. Music and chitchat and stuff. It’s crazy, I know, but they hear the champagne corks. They hear the actual martini glasses. Real hoity-toity, all very civilized, except this isn’t civilization. This is Nam. “Anyway, the guys try to be cool. They just lie there and groove, but after a while they start hearing—you won’t believe this—they hear chamber music. They hear violins and shit. They hear this terrific mama-san soprano. Then after a while they hear gook opera and a glee club and the Haiphong Boys Choir and a barbershop quartet and all kinds of weird chanting and Buddha-Buddha stuff. The whole time, in the background, there’s still that cocktail party going on. All these different voices. Not human voices, though.

Because it’s the mountains. Follow me? The rock—it’s talking. And the fog, too, and the grass and the goddamn mongooses. Everything talks. The trees talk politics, the monkeys talk religion. The whole country. Vietnam, the place talks.

“The guys can’t cope. They lose it. They get on the radio and report enemy movement—a whole army, they say—and they order up the firepower. They get arty and gunships. They call in air strikes. And I’ll tell you, they fuckin’ crash that cocktail party.

All night long, they just smoke those mountains. They make jungle juice. They blow away trees and glee clubs and whatever else there is to blow away. Scorch time. They walk napalm up and down the ridges. They bring in the Cobras and F-4s, they use Willie Peter and HE and incendiaries. It’s all fire. They make those mountains bum.

“Around dawn things finally get quiet. Like you never even heard quiet before. One of those real thick, real misty days—just clouds and fog, they’re off in this special zone—and the mountains are absolutely dead-flat silent. Like Brigadoon—pure vapor, you know?

Everything’s all sucked up inside the fog. Not a single sound, except they still hear it.

“So they pack up and start humping. They head down the mountain, back to base camp, and when they get there they don’t say diddly. They don’t talk. Not a word, like they’re deaf and dumb. Later on this fat bird colonel comes up and asks what the hell happened out there. What’d they hear? Why all the ordnance? The man’s ragged out, he gets down tight on their case. I mean, they spent six trillion dollars on firepower, and this fatass colonel wants answers, he wants to know what the fuckin’ story is.

“But the guys don’t say zip. They just look at him for a while, sort of funnylike, sort of amazed, and the whole war is right there in that stare. It says everything you can’t ever say. It says, man, you got wax in your ears. It says, poor bastard, you’ll never know— wrong frequency—you don’t even want to hear this. Then they salute the fucker and walk away, because certain stories you don’t ever tell.” ***** You can tell a true war story by the way it never seems to end. Not then, not ever.

Not when Mitchell Sanders stood up and moved off into the dark.

It all happened.

Even now I remember that yo-yo. In a way, I suppose, you had to be there, you had to hear it, but I could tell how desperately Sanders wanted me to believe him, his frustration at not quite getting the details right, not quite pinning down the final and definitive truth.

And I remember sitting at my foxhole that night, watching the shadows of Quang Ngai, thinking about the coming day and how we would cross the river and march west into the mountains, all the ways I might die, all the things I did not understand.

Late in the night Mitchell Sanders touched my shoulder.

“Just came to me,” he whispered. “The moral, I mean. Nobody listens. Nobody hears nothing. Like that fatass colonel. The politicians, all the civilian types, what they need is to go out on LP. The vapors, man. Trees and rocks—you got to listen to your enemy.” ***** And then again, in the morning, Sanders came up to me. The platoon was preparing to move out, checking weapons, going through all the little rituals that preceded a day’s march. Already the lead squad had crossed the river and was filing off toward the west.

“I got a confession to make,” Sanders said. “Last night, man, I had to make up a few things.”

“I know that.”

“The glee club. There wasn’t any glee club.”

“Right.”

“No opera.”

“Forget it, I understand.”

“Yeah, but listen, it’s still true. Those six guys, they heard wicked sound out there.

They heard sound you just plain won’t believe.”

Sanders pulled on his rucksack, closed his eyes for a moment, then almost smiled at me. I knew what was coming but I beat him to it.

“All right,” I said, “what’s the moral?”

“Forget it.”

“No, go ahead.”

For a long while he was quiet, looking away, and the silence kept stretching out until it was almost embarrassing. Then he shrugged and gave me a stare that lasted all day.

“Hear that quiet, man?” he said. “There’s your moral.” ***** In a true war story, if there’s a moral at all, it’s like the thread that makes the cloth.

You can’t tease it out. You can’t extract the meaning without unraveling the deeper meaning. And in the end, really, there’s nothing much to say about a true war story, except maybe “Oh.” True war stories do not generalize. They do not indulge in abstraction or analysis.

For example: War is hell. As a moral declaration the old truism seems perfectly true, and yet because it abstracts, because it generalizes, I can’t believe it with my stomach.

Nothing turns inside.

It comes down to gut instinct. A true war story, if truly told, makes the stomach believe. *****

This one does it for me. I’ve told it before—many times, many versions—but here’s what actually happened.

We crossed the river and marched west into the mountains. On the third day, Curt Lemon stepped on a booby-trapped 105 round. He was playing catch with Rat Kiley, laughing, and then he was dead. The trees were thick; it took nearly an hour to cut an LZ for the dustoff.

Later, higher in the mountains, we came across a baby VC water buffalo. What it was doing there I don’t know—no farms or paddies—but we chased it down and got a rope around it and led it along to a deserted village where we set for the night. After supper Rat Kiley went over and stroked its nose.

He opened up a can of C rations, pork and beans, but the baby buffalo wasn’t interested.

Rat shrugged.

He stepped back and shot it through the right front knee. The animal did not make a sound. It went down hard, then got up again, and Rat took careful aim and shot off an ear. He shot it in the hindquarters and in the little hump at its back. He shot it twice in the flanks. It wasn’t to kill; it was just to hurt. He put the rifle muzzle up against the mouth and shot the mouth away. Nobody said much. The whole platoon stood there watching, feeling all kinds of things, but there wasn’t a great deal of pity for the baby water buffalo. Lemon was dead. Rat Kiley had lost his best friend in the world. Later in the week he would write a long personal letter to the guy’s sister, who would not write back, but for now it was a question of pain. He shot off the tail. He shot away chunks of meat below the ribs. All around us there was the smell of smoke and filth, and deep greenery, and the evening was humid and very hot. Rat went to automatic. He shot randomly, almost casually, quick little spurts in the belly and butt. Then he reloaded, squatted down, and shot it in the left front knee. Again the animal fell hard and tried to get up, but this time it couldn’t quite make it. It wobbled and went down sideways. Rat shot it in the nose. He bent forward and whispered something, as if talking to a pet, then he shot it in the throat. All the while the baby buffalo was silent, or almost silent, just a light bubbling sound where the nose had been. It lay very still. Nothing moved except the eyes, which were enormous, the pupils shiny black and dumb.

Rat Kiley was crying. He tried to say something, but then cradled his rifle and went off by himself The rest of us stood in a ragged circle around the baby buffalo. For a time no one spoke. We had witnessed something essential, something brand-new and profound, a piece of the world so startling there was not yet a name for it.

Somebody kicked the baby buffalo.

It was still alive, though just barely, just in the eyes.

“Amazing,” Dave Jensen said. “My whole life, I never seen anything like it.”

“Never?”

“Not hardly. Not once.”

Kiowa and Mitchell Sanders picked up the baby buffalo. They hauled it across the open square, hoisted it up, and dumped it in the village well.

Afterward, we sat waiting for Rat to get himself together.

“Amazing,” Dave Jensen kept saying. “A new wrinkle. I never seen it before.”

Mitchell Sanders took out his yo-yo. “‘Well, that’s Nam,” he said, “Garden of Evil.

Over here, man, every sin’s real fresh and original.” *****

How do you generalize?

War is hell, but that’s not the half of it, because war is also mystery and terror and adventure and courage and discovery and holiness and pity and despair and longing and love. War is nasty; war is fun. War is thrilling; war is drudgery. War makes you a man; war makes you dead.

The truths are contradictory. It can be argued, for instance, that war is grotesque. But in truth war is also beauty. For all its horror, you can’t help but gape at the awful majesty of combat. You stare out at tracer rounds unwinding through the dark like brilliant red ribbons. You crouch in ambush as a cool, impassive moon rises over the nighttime paddies. You admire the fluid symmetries of troops on the move, the harmonies of sound and shape and proportion, the great sheets of metal-fire streaming down from a gunship, the illumination rounds, the white phosphorous, the purply black glow of napalm, the rocket’s red glare. It’s not pretty, exactly. It’s astonishing. It fills the eye. It commands you. You hate it, yes, but your eyes do not. Like a killer forest fire, like cancer under a microscope, any battle or bombing raid or artillery barrage has the aesthetic purity of absolute moral indifference—a powerful, implacable beauty—and a true war story will tell the truth about this, though the truth is ugly.

To generalize about war is like generalizing about peace. Almost everything is true.

Almost nothing is true. At its core, perhaps, war is just another name for death, and yet any soldier will tell you, if he tells the truth, that proximity to death brings with it a corresponding proximity to life. After a fire fight, there is always the immense pleasure of aliveness. The trees are alive. The grass, the soil—everything. All around you things are purely living, and you among them, and the aliveness makes you tremble. You feel an intense, out-of-the-skin awareness of your living self—your truest self, the human being you want to be and then become by the force of wanting it. In the midst of evil you want to be a good man. You want decency. You want justice and courtesy and human concord, things you never knew you wanted. There is a kind of largeness to it; a kind of godliness. Though it’s odd, you’re never more alive than when you’re almost dead. You recognize what’s valuable. Freshly, as if for the first time, you love what’s best in yourself and in the world, all that might be lost. At the hour of dusk you sit at your foxhole and look out on a wide river turning pinkish red, and at the mountains beyond, and although in the morning you must cross the river and go into the mountains and do terrible things and maybe die, even so, you find yourself studying the fine colors on the river, you feel wonder and awe at the setting of the sun, and you are filled with a hard, aching love for how the world could be and always should be, but now is not.

Mitchell Sanders was right. For the common soldier, at least, war has the feel—the spiritual texture—of a great ghostly fog, thick and permanent. There is no clarity.

Everything swirls. The old rules are no longer binding, the old truths no longer true.

Right spills over into wrong. Order blends into chaos, love into hate, ugliness into beauty, law into anarchy, civility into savagery. The vapors suck you in. You can’t tell where you are, or why you’re there, and the only certainty is absolute ambiguity.

In war you lose your sense of the definite, hence your sense of truth itself, and therefore it’s safe to say that in a true war story nothing much is ever very true. ***** Often in a true war story there is not even a point, or else the point doesn’t hit you until twenty years later, in your sleep, and you wake up and shake your wife and start telling the story to her, except when you get to the end you’ve forgotten the point again.

And then for a long time you lie there watching the story happen in your head. You listen to your wife’s breathing. The war’s over. You close your eyes. You smile and think, Christ, what’s the point? ***** This one wakes me up.

In the mountains that day, I watched Lemon turn sideways. He laughed and said something to Rat Kiley. Then he took a peculiar half step, moving from shade into bright sunlight, and the booby-trapped 105 round blew him into a tree. The parts were just hanging there, so Norman Bowker and I were ordered to shinny up and peel him off. I remember the white bone of an arm. I remember pieces of skin and something wet and yellow that must’ve been the intestines. The gore was horrible, and stays with me, but what wakes me up twenty years later is Norman Bowker singing “Lemon Tree” as we threw down the parts. ***** You can tell a true war story by the questions you ask. Somebody tells a story, let’s say, and afterward you ask, “Is it true?” and if the answer matters, you’ve got your answer.

For example, we’ve all heard this one. Four guys go down a trail. A grenade sails out.

One guy jumps on it and takes the blast and saves his three buddies.

Is it true?

The answer matters.

You’d feel cheated if it never happened. Without the grounding reality, it’s just a trite bit of puffery, pure Hollywood, untrue in the way all such stories are untrue. Yet even if it did happen—and maybe it did, anything’s possible—even then you know it can’t be true, because a true war story does not depend upon that kind of truth. Happeningness is irrelevant. A thing may happen and be a total lie; another thing may not happen and be truer than the truth. For example: Four guys go down a trail. A grenade sails out. One guy jumps on it and takes the blast, but it’s a killer grenade and everybody dies anyway.

Before they die, though, one of the dead guys says, “The fuck you do that for?” and the jumper says, “Story of my life, man,” and the other guy starts to smile but he’s dead.

That’s a true story that never happened. ***** Twenty years later, I can still see the sunlight on Lemon’s face. I can see him turning, looking back at Rat Kiley, then he laughed and took that curious half-step from shade into sunlight, his face suddenly brown and shining, and when his foot touched down, in that instant, he must’ve thought it was the sunlight that was killing him. It was not the sunlight. It was a rigged 105 round. But if I could ever get the story right, how the sun seemed to gather around him and pick him up and lift him into a tree, if I could somehow recreate the fatal whiteness of that light, the quick glare, the obvious cause and effect, then you would believe the last thing Lemon believed, which for him must’ve been the final truth. *****

Now and then, when I tell this story, someone will come up to me afterward and say she liked it. It’s always a woman. Usually it’s an older woman of kindly temperament and humane politics. She’ll explain that as a rule she hates war stories, she can’t understand why people want to wallow in blood and gore. But this one she liked. Sometimes, even, there are little tears. What I should do, she’ll say, is put it all behind me. Find new stories to tell.

I won’t say it but I’ll think it.

I’ll picture Rat Kiley’s face, his grief, and I’ll think, You dumb cooze.

Because she wasn’t listening.

It wasn’t a war story. It was a love story. It was a ghost story.

But you can’t say that. All you can do is tell it one more time, patiently, adding and subtracting, making up a few things to get at the real truth. No Mitchell Sanders, you tell her. No Lemon, no Rat Kiley. And it didn’t happen in the mountains, it happened in this little village on the Batangan Peninsula, and it was raining like crazy, and one night a guy named Stink Harris woke up screaming with a leech on his tongue. You can tell a true war story if you just keep on telling it.

In the end, of course, a true war story is never about war. It’s about the special way that dawn spreads out on a river when you know you must cross the river and march into the mountains and do things you are afraid to do. It’s about love and memory. It’s about sorrow. It’s about sisters who never write back and people who never listen.

Thirteen Ways of Looking at a Black Woman - Lunch Ticket

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Thirteen Ways of Looking at a Black Woman

by Rochelle Spencer I. Twice a week, on Mondays and Wednesdays, I saw them. Oiled, buttered up, ready for consumption.

And though black writers hate to describe skin color in terms of food, it’s true: their bodies were all the shades of brown you’d see on a Thanksgiving dinner table.

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That’s not the important thing.

This is. Heads tucked down, asses pushed out, they’d mastered the Kim Kardashian pose, though they hadn’t quite figured out how to achieve her money or status.

It’s interesting how the kiosk owner had set it up. These black women dominated the magazine rack.

The rows of glossy brown bodies tumbling out of bikinis seemed to have been placed almost strategically in front of The New Yorker. New York Magazine. The New York Times. Psychology Today. An old issue or two of Wired.

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Issue Archive Issue 12: Winter/Spring 2018 Issue 11: Summer/Fall 2017

And I always wondered, who at the 116th Street station was buying these magazines?

I was taking a seminar at Columbia, and was the only black person in it. That could have been an anomaly, but I don’t think so. The first time I ran into a brother who was also in my graduate program, we almost hugged each other.

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So who was buying these magazines? And why had the kiosk owner put them there, smack in the middle of the station?

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Was it to give people something brown to look at as they came and went? Or was it for his own enjoyment? Did he, a forty-something Indian man, get tired of the similarity of the people walking by?

Was positioning a video vixen’s defiantly arched backside in front of the Times his version of an STFU to the world?

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I never had adequate time to ponder these questions. The train would come, leaving fifty minutes to get to Long Island City, Queens, where I taught.

Issue 1: Spring 2012

In any case, it didn’t matter. The moment I exchanged the 1 train for the 7 train, I relaxed. Rather than look away, people looked me in the eye, or at least, in the vague direction of my voice. I felt like an invisible object suddenly gaining form. It’s funny how the more you move away from certain sections of Manhattan, the more you notice the darker and more varied faces, and the intricatealmost-magical way a potpourri of accents blossoms.

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We F**king Exist: Seven Writers on Seven Words Phantom

II. My very first sex dream was about a puppet. That may sound odd, but it’s probably because you don’t hear much about girls and their wet dreams. But I woke up, wet and scared and excited. I could feel my vagina vibrating, and though at thirteen I didn’t know what an orgasm was, I knew I’d had one; I knew I had experienced something. To this day, I can’t figure out what it was about this image that did it for me. If I had to guess, maybe it was the way the puppet moved its genderless, boxy form.

The little brown puppet pushed itself up and down, out and in, in all kinds of crazy, jerky ways. The oddest part of the dream? No matter how hard I tried, I couldn’t tell who held the puppet’s strings.

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III. Historian Evelyn Brooks Higginbotham brought us the most useful term ever: “the politics of respectability.” In Righteous Discontent, Higginbotham describes how black women in the post-Reconstruction era adapted a politics of respectability in order to combat the “widespread assumptions of the black woman’s innate promiscuity.”

The politics of respectability was, in many ways, a

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!

My students were never afraid to express their opinions, and for a while, I attributed their

Today’s Plate: Spotlight: Husband Ghazal and Reckoning

fearlessness to the fact that I was another black woman, just a few years older than most of

Writers Read: Born a Crime Stories from a South African Childhood by Trevor Noah

them, and therefore not

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intimidating. But over time, I

1/8/18, 7:06 PM

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visual fight. Black leaders cautioned black women to keep immaculate homes, dress modestly, and appear clean and neat at all times.

wondered if I was wrong, if

And yet, the politics of respectability always had a vocal undertone.

something else.

what I had thought was selfconfidence was, perhaps,

Most people are familiar with the photograph of a bespectacled Rosa Parks sitting calmly on a bus, but in At The Dark End of the Street, author Danielle McGuire describes how Parks seldom sat; she traveled across the country, investigating cases of violence, including sexual violence. Long before the boycott, Parks was noted for her campaign of justice for Recy Taylor, a black woman who was raped by six white men. Parks, McGuire explains, was tireless in making sure her voice was heard.

She “wrote letters, signed petitions, sent postcards” in support of Taylor.

It’s impossible to hear battle cries in a silent image. Still, the Rosa Parks photograph, which has seeped into our consciousness, is not entirely without noise.

IV. When I Google “black women and rape,” the first website that pops up is www.womenagainstrape.net. The second is from a man claiming that black women were never raped during slavery. Black female slaves, he writes, willingly had sex with the slave master because that was “moving up in the world big time.” The fact that black women were property and thus could not legally give their consent either does not enter the man’s consciousness or is something he does not wish to discuss.

V. Before I taught at a community college, I taught at a historically black women’s college. My students were never afraid to express their opinions, and for a while, I attributed their fearlessness to the fact that I was another black woman, just a few years older than most of them, and therefore not intimidating. But over time, I wondered if I was wrong, if what I had thought was self-confidence was, perhaps, something else.

One year, I brought pictures of women – black, white and Latina, dressed similarly, in bathing suits and biking shorts – to a couple of my composition classes. I held a stopwatch and asked students to write their immediate reaction to each picture. We’d been reading personal essays from both ordinary women and prominent feminist scholars. Because the pictures were from women’s and men’s magazines, I expected to have a conversation on the male gaze. But that’s not what happened.

A Word from the Editor Justice work is inextricable from our journal and our parent institution. In my time at Lunch Ticket—two years and four issues—I’ve been surrounded and supported by the student volunteers who make this journal run, who make our community a safe, powerful, and sacred space. From this space I’ve written to you to describe our collective mourning—how each successive issue finds us confronting new instances of “white supremacy and terrorism in our streets, in our churches, in our institutions of higher learning.” I must now add Charlottesville, Las Vegas, and Sutherland Springs to our litany, our dirge. …

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“She looks alright,’” one student said, and pointed to a white swimsuit model. “But we can’t wear things like that. It looks different on us.”

“Black women can’t wear bathing suits?” I wondered.

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“We can’t have all our meat hanging out,” the student answered. “It looks disgusting.”

Other students nodded, though their bodies were similar to the ones they were critiquing.

I went home, tired. How do you get to a place in life where you are disgusted by the images that resemble you most?

VI. Black women: Steve Harvey says you can’t get a man.

VII. Black women: The New York Times says you can’t get a man.

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VIII. Black women: Fox News says you can’t get a man. And yet, ironically enough, you’re still a whore.

IX. I spent my teen years wrapped in a cocoon of ugliness. Other than my butt, my body was on the slim side, and in the South, in the 1990s, you didn’t want to be shaped this way. You wanted to look like one of the models from Bell Biv DeVoe’s Poison video; you wanted a round butt and thick thighs, attached to a tiny waist.

But my shape (or lack thereof) and other aspects of my ugliness – frizzy hair, acne, braces – desexualized and freed me. I played with dolls longer than I should have. I read novels and became immersed in my own little world. I had a long, extended childhood, which ended abruptly when I spent a summer in California.

The aesthetic was different there. For the first time, because of my body, people overlooked the braces, the frizzy hair.

That summer, I dated a guy a few years older than me. He grabbed me in public, no matter where we were. When I protested, he said, “Look at how you’re dressed. You wouldn’t wear shorts if you didn’t want attention.”

This escalated. A few weeks later, I was in bed clawing my way from him.

“Don’t act like you don’t want it,” he told me. “Look at how you’re built. Like a ho.”

The meanness of the comment made me want to scream. In fact, I did scream, so loudly he jumped away from me.

Who can blame him?

That evening, the force of my voice scared me too.

X. In the Columbia seminar, I was aware of my body from the moment I walked into the classroom. If a reading alluded to a concept outside of black American culture, it was assumed I was unfamiliar with it, but if it mentioned race, the class assumed I was an expert – and then I faced eleven sets of eyes staring at me.

I tried to ignore my body, but over the course of the semester, I grew more aware of it, and less confident, less sure of my abilities. The assumptions about what I had or hadn’t read, what I did or did not know, didn’t just make me want to escape my body, they made me want to crush it up and fold it.

XI. For months after the attempted rape, I couldn’t use tampons. When I was in bed with cramps, my mother would come from the drugstore with a box of Playtex and I’d beg her to go back and get pads.

When I decided to have sex, I found that I couldn’t. My body tightened and prevented anyone from getting close. To others, I seemed normal, outgoing, even flirtatious. But intimacy scared me. I didn’t seriously date.

My body had, without my being fully conscious of it, adopted a politics of respectability. If the world had looked at my body and rejected it, decided it was dirty and tainted, then I – my body – would reject those assumptions, rebel against them.

But the problem with adapting a politics of respectability is that by doing so, you decide that someone else’s version of you is powerful or factual enough to resist.

Still, there has to be a way of resisting that doesn’t destroy you, a way of making yourself visible in a world that doesn’t see you. Or maybe we can never really be seen, though there are moments when we can be heard.

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http://lunchticket.org/thirteen-ways-looking-black-woman/

The man who would later become my husband is a patient person. Because we lived in different cities, we’d been distant friends for years. One night he came into town, and I decided to sleep with him (I made this decision only because, if the sex were bad – or, more likely, impossible – then I’d never have to face him again).

That night, my apartment was so quiet you could hear our breathing, the sound of Atlanta’s traffic, even footsteps from someone outside plodding around the building. But the one thing you didn’t hear was the sound of human voices. I was too nervous to speak.

“Talk to me,” he said after a few minutes. “I don’t care what you say, but say something.”

I didn’t speak, but I did finally relax, knowing I was in a place where I could be heard.

XII. The spring after my first semester at Columbia, I was tired of the isolation, so I registered for a literature class in the African-American Studies Department.

The young, black woman who taught the class was an academic rarity: a brilliant intellectual who was also a good listener.

I loved the class. In my excitement, I talked way too much. One student in the class was as quiet as I was talkative. Like me, he was an older student, but unlike me, he was white – and I assumed Jewish because he wore a yarmulke. He was one of three white students in the class of nine; the other students were multi-racial, Asian, or black. Though he didn’t speak, he looked like he was listening, absorbing everything. I wondered if his silence was because he thought an opinionated student like me would jump all over him simply because he was white. Perhaps my professor wondered the same thing because she nodded in his direction, offered him smiles of encouragement.

We discussed Ralph Ellison’s Invisible Man. It was my third time reading the novel, but the first time I felt I had actually understood it. It seemed more applicable to my life – and where I was at that moment in time – than anything I had ever read.

“The protagonist isn’t an Uncle Tom,” I said. “He’s subversive. Even when he doesn’t realize it, he’s taking his grandfather’s advice and undermining a society that constantly sees him through this veil.”

“But that’s true for everyone. Everyone is seen through a veil,” my quiet classmate said, and everyone looked at him in surprise. “People see this beanie on my head and think they know everything about me. They don’t. They know nothing about me, or what I’m thinking.”

It was the most he had said the entire semester.

XIII. In the weeks since the class ended, I have been thinking of Jack, my shy classmate, of what I would say if I were to see him now, and whether I would even recognize him.

I know now that he’s right. No one is ever really seen. We can only be understood by the traces our images leave behind. We are all mysterious blackbirds.

And yet, even knowing this to be true, even as I write these words, I long for sound. I remain less interested in the way a blackbird appears in a green light than the sound it makes when it takes off and flies.

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Rochelle Spencer has an MFA from New York University, and her work has appeared in African American Review, Calyx, Poets and Writers, Cake Train, The New York Times and other places. A recipient of fellowships from the Vermont Studio Center and the Woodstock Byrdcliffe Guild, she’ll complete a doctorate in 2013.

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1/8/18, 7:06 PM

Writing a Life Narrative: What Does The Plotline Look Like?

Leslie Jill Patterson, PhD, Narratology and Narrative Nonfiction

So you’ve spent months gathering boxes and notebooks and discs filled with data, anecdotes, family legends, and photos regarding your client’s story. You’ve organized timelines, family trees, chaos maps, witness Excel files. You know there’s a story here, but it’s overwhelming how massive the narrative looks. Where to begin? What outline to hang it all on? When attempting to negotiate a deal, what do you include in a pretrial narrative? What facts, details, and evidence will combat the tale that the DA’s office and law enforcement have been building against your client and embedding in the public narrative? What does the story look like that will compel a prosecutor to take death off the table, to stop asking a group of jurors to decide your client must not live. This guide, an addition to my presentation, will teach you three plotlines around which you can write a life narrative for pretrial negotiations. Of course, these plotlines can work for post-conviction materials, as well.

The Linear Narrative of Death Traditional stories follow a linear arc—the most familiar of all plotlines. Aristotle gave us the form, and Shakespearean tragedies obey it. Based on cause and effect, one event triggering the next, these narratives suggest that life unfolds in a forward, mannerly direction until a goal or climax is reached.

In Act 1, we’re given the background information necessary to understand the dramatic situation; in Act 2, the conflict increases and we become concerned the story will end tragically; until Act 3, when the impending calamitous event does occur and we feel vindicated for our foresight and also enraged that the villain was allowed to act when everyone saw his dastardly deeds coming. In Act 4, we learn more information that will either solidify our assessment of the events or change it, and by the end of the story, in Act 5, we TCDLA Capital Clinic, Fall 2021

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are given the last bit of intel. In TV dramas, this is the moment when a big reveal surprises everyone; in a capital trial, this is the moment when prosecutors have pulled off the conclusion they’ve fought for. However violent or vengeful it requires jurors to be, they’re convinced that only a death verdict can purge their anger and restore their sense of justice, the good guy victorious, the bad guy punished, may God have mercy on his soul because we aren’t going to.

Telling a linear story requires no imagination and little effort. It obeys a sequential timeline; in this way, it writes itself. In capital cases, prosecutors choose this narrative structure for trial presentations because it automatically situates the defendant in the role of villain or antagonist and then builds the line of thought they want jurors to follow. They build Acts 1, 2, and 3 in the merits phase, working toward the peak moment when they have thoroughly depicted the murder, the grisly photographs and autopsy reports under the jurors’ noses, at which point they pause to let the jury deliberate guilt or innocence, which frequently takes less than an hour. By the time prosecutors conclude Acts 4 and 5 in the punishment phase and it’s the defense team’s turn to narrate, it’s absurd to think the jury will let us relocate the defendant into the leading role, to think they will hear his story and not the victim’s if we tell it. They’ve been convinced for days that only a death verdict will set the world upright again. Prosecutors have concluded the story—it’s finished, he’s guilty, let’s go home—whereas defense attorneys are starting back at once upon a time as we try to explain the three generations that brought our clients to this moment.

Because the bifurcated structure of a capital trial and the pre-conditioned response of jurors so closely mirrors the narrative of a traditional tragedy and its punitive outcomes, it’s never a good idea to attempt a linear life narrative at trial. Jurors have been primed to vote for death, and the victim’s family members are demanding justice from the gallery. Perhaps linearity seems advantageous since you’ve already worked up a chronological timeline by this point—and so the content lines up for you without much effort—but our clients’ lives have been traumatic because chaotic; they have not been given linear or predictable lives. It is possible to successfully use a traditional linear narrative before trial, presented to a prosecutor behind closed doors to obtain a Life or LWOP offer, but it’s far more effective to utilize plotlines meant specifically for oppositional narratives—as in, counter or subversive stories—when trying to stop the machinery of the death penalty.

Stories that don’t follow a traditional arc know the established rules of storytelling but are choosing, with great intent, to buck or flaunt them. Their beginnings rarely start in the beginning.

Their conclusions take us to places we don’t recognize and didn’t see coming (whereas linear stories map and forecast what lies ahead, miles before we arrive at The End). Women writers, writers of color, writers with disabilities, LGBTQIA+ writers embrace these forms more often than not to question society’s codes of behavior: What should we label strong? What should we label criminal?

What should we label healthy? What should we label normal? Their stories defy the customs, habits, “truths,” and “facts” traditional stories have plugged for centuries. And because they don’t follow predictable plotlines, their stories require attention: readers must pay attention—something different is happening here—and they do because they’re intrigued by the strange journey but also because it feels oddly as if they’re participating, putting in their two cents, writing the story with the teller, instead of being led by a leash. Loosened from strict timelines, oppositional scaffolding can even make room for the range of data in a capital story, the endless amount of it, even the seemingly “irrelevant” or “random” facts that we know play a key role but which prosecutors love to silence.

The Linear Narrative of Grace Twenty-four hours after the Twin Towers fell in 2001, photographs of the jumpers, who had leapt from the buildings every two minutes on the morning of September 11th, were erased from the TCDLA Capital Clinic, Fall 2021

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Associated Press and all other news outlets, as well as every documentary film distributed nationally for fifteen years afterward. Because the stigma against suicide is so engrained in American culture, the New York City coroner’s office insisted there were no jumpers and released statements claiming that people had simply been “blown from the building.” And we were relieved and bought into that lie because in those immediate hours afterward, we didn’t understand the conditions in the towers, how desperate people above the crash sites were. Maybe we didn’t want to know. Honestly, I’m not sure we could have stood any more traumatic facts. It was easier to hate or judge the possibility of suicide than believe anyone jumped.

In the documentary, The Falling Man, director Henry Singer attempts to identify one of the jumpers in a photo taken by journalist Richard Drew and featured repeatedly in news articles before the jumpers was censored and erased.1 In the movie’s first act, Singer establishes the conditions at the top of the towers: temperatures exceeded 1,100 degrees Fahrenheit, and because the smoke was so suffocating inside, the trapped victims broke open windows in hopes of breathing fresh air, which instead only fed the flames. It is impossible to tell a story without a consideration of the triggers inside the places where critical events occur. You must know as much about the setting as you do your client’s background. On September 11th, it mattered how faraway the street below looked to those waiting for help to arrive, how many flights of stairs they knew rescuers needed to climb. It mattered that phone lines were tied up, many of the trapped unable to reach family members and hear their voices of hope. The plumes of suffocating smoke mattered most to any victims who were asthmatic. Pretty quickly, in that environment, conditions either deluded a person into believing they would survive or persuaded them they could not.

In the film’s second act, Singer meets with witnesses and attempts to identify the jumper. In the third act, the climax, he attends the funeral of the man he believes is the jumper—with the sole purpose of asking his grieving daughter, a devout Catholic, if she recognizes her suicidal father in the photos. Furious, the girl yells at Singer. Her father would have never given up. Her father would have fought to come home. Her father would never abandon her. In this moment, Singer, via the traditional plotline, allows us to commiserate with the daughter. We share her rage, so conditioned are we to be angered by suicide. How dare anyone accuse victims of jumping! How dare they jump!

But in the fourth movement, Singer goes back to the drawing board, so to speak, and this time, in Act 4’s turn, he interviews witnesses who worked at the Top of the Tower restaurant, to see if they knew the jumper, who appeared to be wearing a chef’s jacket. He shares more details about the flight downward: each fall lasted ten seconds, the jumpers reaching speeds of 150 miles per hour, some of them losing their clothes in the wind, as the man in Drew’s photo lost his chef’s jacket. In sharing these specifics, Singer aligns us with the jumpers. We are in flight with them.

In the final and fifth act, Singer schedules an appointment with the woman he believes is the jumper’s sister. In her own home, having invited Singer inside, this woman knows what’s coming.

The photograph Singer sets before her is not a surprise punch to the gut. Immediately, she recognizes her brother’s high-top sneakers, and she breaks down, weeping—not because she cannot believe her brother took the dive, but because, she tells us, her brother was, in fact, an asthmatic, and she is so grateful he had ten beautiful seconds of fresh air before he died. Suddenly, sneaky storyteller that he is, Singer has persuaded us to abandon our judgment about suicide. With the sister, we, too, are relieved that the man in the photo, the Falling Man, is her brother. His jump is a blessing now, not a damnation.

On any capital defense team, if we’re going to deliver a life narrative that follows a traditional, linear storyline, then we must remember that in our version, the defendant is not the antagonist but the lead. We cannot situate the murder he is accused of committing as the climactic event in Act 3.

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The Falling Man is loosely based on Tom Junod’s Esquire article of the same name.

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We must reorder the events—because this is the defendant’s story, not the victim’s. In Acts 1 through 3, we must make room for the prosecutor to feel rage, but we are focusing it elsewhere, on the traumas our clients themselves have suffered but survived, barely. Perhaps an incident in our client’s youth is the pinnacle tragic moment when his/her/their life was forever altered at the peak of Act 3.

What follows in Acts 4 and 5 of our story must give the prosecutor the space to sit with the defendant, to bond with him the way we aligned ourselves with the jumpers and then with the Falling Man’s sister in Singer’s documentary. The prosecutor will need to feel that he has purged his/her/their anger so he can feel comfortable making a life offer—not as an “acquittal” or as a failure to wreak vengeance, but rather as a righteous act of mercy. That offer must feel to him as cathartic as a death verdict originally did.2 The Cubist Story In Picasso’s cubist paintings—The Weeping Woman or Girl with Mandolin, for example—he challenges our ideas about perspective. Are our faces and bodies really symmetrical? Is there an ideal according to which all bodies must be shaped? Does grief look the same on every face? Does it even remain consistent on any one person’s face?

Because his work shatters the image we expect to see, giving multiple thumbnails of the same image from different angles, we are jolted out of complacency. We cannot look at his paintings in the same If you’re forced to tell this story at trial, your team will have an even more difficult time transforming a linear narrative into a life narrative. The plotline of your story must still belong to your client, but now the guilty verdict becomes the climax at the end of Act 3, the moment at which your client’s life changed forever—meaning there is no reason to fear that our client will ever reenter society, but that will likely not feel like enough justice for the jurors who expect a strict good guy vs. bad guy morality tale. Your linear tale will also suffer at trial if you don’t have the “big reveal” for the jurors in Act 5; plus, a chronological story that lasts three generations feels as if it might never end. If you’re standing in front of a jury, telling a chronological story, there are so many pitfalls to land in.

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old way we’ve always admired art. These portraits force us to look closely, to ask what is happening, and to decide what the image means. We become partners with the artist.

In the cubist tale, the storyteller offers multiple perspectives on one subject, all of them accurate, and by the finale (Act 5, if you’re still thinking in traditional terms), the whole of these perspectives stitch together in a surprising re-vision of the subject, so much more insightful than our traditional take and thus more powerful. The story shifts what we once considered “a consensus.”

In Rochelle Spencer’s essay, “Thirteen Ways of Looking at a Black Woman,”3 Spencer challenges the sexualized vision of Black women that white America has always peddled. In thirteen brief scenes—they’re numbered—she explores how white America portrays Black women in magazines, “sees” them in classrooms and on commuter trains, “interprets” them in history, how Google manages searches about them, what Steve Harvey says about them, what the New York Times says, what Fox News says, what Black women learn to see in the mirror, and, ultimately, by Scene 13, what we should all now understand about the way America “looks” and thus “reads” and “judges” in general, In the process of addressing and revising the way America sees Black women, Spencer is attempting to revise the way America sees in general.

If a capital defense team wants to build a cubist narrative, Spencer’s essay provides a good example to mimic: •

The numbered scenes. The team should figure out their key scenes—the ones they wish to share with a prosecutor before trial or as part of post-conviction arguments. How many are there? You can delete or include others as you put the story together, depending on your needs. Don’t let your number rise above fifteen. With thirteen points, Spencer’s essay is only six pages long.

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The title. You may choose not to use a title when you deliver this narrative to a DA’s office,4 but using one in-house when discussing and developing the story will help your team determine the content that matters most. Thirteen Ways of Looking at a Black Man. Fifteen Ways of Looking at a Homeless Man. Ten Ways of Looking at a Victim (meaning, your client). Twelve Ways of Looking at Intellectual Disabilities.

Another way to generate the subject for your cubist narrative is to consider it a “Study of” a particular topic. For example, in Sarah Gorham’s essay entitled “Study in Perfect,” her “visions” include a look at different objects that exemplify various definitions of perfection: the perfect sleep, the perfect barn, the perfect paper towel, the perfect being, the perfect flower, the perfect tea, the perfect solution, the perfect word, the perfect conversation, a perfect book binding, the verb tense we call “perfect”; the perfect water; and the perfect ending. Gorham questions where our standards for perfection come from, how they might vary depending on the situation, how the perfect version of one thing might mean the opposite of the thing itself (i.e., the perfect ending isn’t the one that makes you glad you’ve finished reading the essay but rather one that makes you want to read the essay again).

Here’s how you might work for your client’s story: Let’s say you want to write a “Study in Grief”—the emotion propelling your defendant to act in the crime scene. Along your client’s life path, grief may have been a deep sorrow (he is overcome with grief), a disaster (as in, a

3 I’ve provided copies of all the essays I discuss in this paper. The Falling Man can be watched on YouTube at https://www.youtube.com/watch?v=iRPMn2Kty_E, or you can catch it at least once every September when history channels on TV begin honoring the anniversary of 9/11.

If you do use a title when delivering the story, you’ll be reassuring a likely put-out prosecutor how quickly he can finish this narrative—it only lasts fifteen, thirteen, twelve, ten moments.

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home comes to grief, catching fire), a criticism or misery (his father gives him grief), a surprise (good grief!), a hassle (the grief of getting meds when you have no money), etc. Each of your key moments/visions could exemplify the sustained grief that has haunted and influenced your client’s life.

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Length of key moments. Spencer’s thirteen “visions” last a variety of lengths—some several paragraphs, some only one or two paragraphs, some only one sentence. This, too, causes the reader to set up and pay attention—because it’s a surprise with each new vision and because it’s also magical when your narrative accomplishes in one sentence what it took several paragraphs elsewhere. This is not the same-old/same-old linear story. Something unusual is happening here.

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What counts as a “way of looking.” A single line from a celebrity or a line from a newscast count as one of the ways of looking in Spencer’s essay. For your goals, this may mean a single line from a mental health expert, a catchphrase from social media, a quote from a police report or witness. Those three sections in which Spencer includes only a single line about Black women voiced by outlets we traditionally trust are very powerful. They make exactly the point she needs to make—in only one sentence! Other “ways of looking” might include a more in-depth “moment” considering schizophrenia, poverty, the treatment of undocumented immigrants, war brides, PTSD, or even the customary way administrators hide students of color with ID issues, sometimes in alternative schools, so they don’t harm a district’s scholastic record even though it harms the student’s record. It depends on what the overall topic of your cubist narrative is.

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The story thread. Oppositional stories need a dot-to-dot line, a trail of breadcrumbs, something that resembles plot and acts as guide. In Spencer’s essay, several clips focus on classrooms—what is happening to her as a student or how her own students react when learning how America looks at Black women. Another handful of clips talks about her experience as a victim of rape. The essay “looks” as if the thirteen sections are unrelated, and it does cover a lot of different terrain, but those clips that share a subject (the classrooms, her rape) give the reader something to expect in the same way we expect linear tales to give us the next day, then the next month, and then, finally, the climax. In Spencer’s essay, readers start to look for another classroom scene or another development in the rape thread, and Spencer gives it to them so they will continue moving forward in her narrative. In your defense team’s narrative, these sub-threads could focus on key moments of the crime scene, or key moments in a childhood incident, or key moments in an interview with a crucial witness,5 or the places on your chaos map, or the various family members with an accompanying anecdote about each one proving that mental illness or substance abuse or [fill in the blank] has recurred in the family for generations.

5 In Beverly Lowry’s essay, “The Shadow Knows,” she attempts to explain why teenage boys might kill their fathers.

Though the sections are not numbered, “The Shadow Knows” is a cubist essay. It offers multiple perspectives on a murder that took place in Rush Springs, Oklahoma, via scenes that exemplify the patriarchal culture in Rush Springs, how our country in general buries stories of domestic violence, how a single family in particular can build a tradition of it, and even how Lowry herself feels increasingly uncomfortable as a woman visiting this community. Additionally, there is a thread of scenes that focuses on an interview Lowry held with the victim’s father. Lowry shows us a bit of the interview, interrupts it with some cultural information, then returns to the interview. She makes this back-and-forth move multiple times throughout the essay, inserting the key points the father makes where they can best comment upon and support the points Lowry hopes to make about domestic violence and its consequences.

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The revised vision. Your team should ask: What is it that we want the prosecutor to realize when we ask him/her/them to re-look at race, homelessness, childhood trauma, or ID issues (or whatever your main concern is) from various perspectives? By the time he/she/they finish our narrative, what new way of seeing this issue might help him/her/them lean toward mercy?

The Braided Story The braided story is more controlled than the cubist story: rather than ten, twelve, thirteen, or fifteen different glimpses, it allows room for only three subjects, and each subject must wait for and then take its turn as the focus in the plotline’s repeating pattern, which resembles a braid. Each time one of the three subjects returns to center-stage, it is enriched by what the reader has learned from the other two strands in its absence. In her essay, “Beasts of the Field,” Aimée Baker examines the Fragility of her brother’s mental health by contrasting him with the determined, even unyielding, rats that took over her family’s farmhouse the year her brother attempted to kill himself the first time. The three subjects in her essay: 1) her brother’s declining health that year, 2) the rat infestation and how her father asked her and her brother to help him exterminate them, and 3) the communal nature, diseases, and over-population of rats in the world at large. For each of four seasons (spring, summer, winter, and fall), we see the rats on her family’s property, learn more about their survival skills, then watch her brother lean closer and closer to his suicidal tendencies. Nothing disturbs the rats; nothing can save her brother. Her family’s attempts at solving both problems are equally crude and ill-fated. As the essay moves along, it becomes more and more apparent that though her brother is suffering from severe depression, he is also threatening Aimée’s life routinely whenever their parents aren’t watching. He becomes as invasive and adamant as the rats, and Aimée realizes she is not always hoping his suicide attempts will fail. It is a tough essay about sibling love, mental illness, and survival.

In Tim O’Brien’s short story, “How to Tell a True War Story,” he uses three strands to braid his narrative: 1) a look at the systemic violence in the narrator’s troop when he was serving in Vietnam (several of his troop members torture and kill a baby water buffalo after losing one of their friends to an exploding hand grenade), 2) a look at PTSD among soldiers (as signified by his troop “hearing things” while on patrol and so calling in an ordnance strike when there was no cause for alarm); and 3) the narrator’s repeated attempts to explain the reality of war to the reader and his friends/family as well as strangers back in the States. The three strands are inextricable. Each one exists because the others do; the narrator’s experience with violence is a tangled mess he can’t unknot, even so many years after the war ended. The stories depicted in strands 1 and 2 are chopped apart and spread throughout, the reader getting a short glimpse of each one, bit by bit, until finally we understand the beginning, middle, and end of both traumatic stories—the shocking outcomes, the heartbreak, the

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grief afterward. Strand 3 operates as running commentary. The narrator, several decades past the war, describes the various times he has attempted to explain what life was like in Vietnam, always failing to tell it “right.” No one ever hears much less understands him.

What strategies can defense teams take away from these two braided tales if they wish to use the form for a life narrative?

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The plotline. Though both Baker’s essay and O’Brien’s story do not follow chronological or cause-and-effect routes, they both offer the reader a surrogate plotline: for Baker, the brother’s move toward a suicide attempt (will he or won’t he?), and for O’Brien, the circumstances of Lemon’s death (How did it happen? What made this combat death so destructive that the troop members went on a rampage in a nearby village?). There is, in other words, forward movement in this form however repetitive and circuitous it might be.

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Juxtaposition. Every time Baker situates a clip about her brother after or before a clip about the rats, she does not have to tell us she is comparing her brother to the rats; we understand that simply by their proximity to one another in her narrative. Every time O’Brien gives us a little more information about Lemon’s and the water buffalo’s deaths, we know we are not going to understand what the narrator is attempting to tell us because these scenes are surrounded by all the moments in which the narrator has tried previously to explain the war and failed. We intuit what we are supposed to understand only because we see all his other listeners refusing to hear it. In a life narrative that is braided, think of the allegedly “irrelevant” or “unrelated” topic you can connect to the crime simply by placing it in close proximity to your analysis and depiction of the crime. The connection becomes more and more apparent every time you make the juxtaposition.

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White space. On the practical side, a braided narrative allows you to avoid writing transitions; the white space between each section signals the jump or shift to the next thread’s turn. All you must do is make sure you land precisely in the first sentence of any clip, situating the reader, cueing them to what strand they’ve just entered. If you have a strand providing commentary on a mental health topic, you don’t have to reintroduce the topic every time, or state the expert’s name again, all you have to do is drop the key word— schizophrenia, intellectual disability, depression—into the first sentence of the clip, and you’re good to go. Eventually, if you follow the braided pattern strictly, your reader/listener will be prepared for the next strand; they will learn the order in which the strands are appearing.

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The third strand. Both pieces show you how to incorporate and use factual and/or historical evidence inside a story in a way that does not stall the narrative’s pace even as this third strand interrupts to comment upon the drama while it unfolds. In both manuscripts, the third strand appears to sit “outside” the drama, to be “irrelevant,” and yet what we learn in the third strands (the history and survival skills of rats, and the inability of soldiers to explain their experiences) is what allows us to understand the other two threads. The third strand provides commentary, acts as voice-over, and if used in a life narrative, it will give the capital defense team a chance to explain even as they tell the story. The explanation becomes the story, and deciding what the third strand will be in a life narrative that is braided is crucial to its success.

For example, in a life narrative regarding a client who killed a cop while high on Xanax, the three strands might be 1) the defendant’s growing dependence upon drugs and his multiple attempts to step back; 2) the crime scene (a grocery store where the client, high on

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Xanax, was attempting to shoplift a meal because he was completely out of money); and 3) all the ways law enforcement denied recognizing that he was inebriated while simultaneously behaving as if they knew exactly how inebriated he was and they took advantage of that fact.

Or, let’s say the same client isn’t high on Xanax, but is autistic: 1) we’d still need the crime scene (a grocery store trip from the perspective of someone with autism); 2) past events that indicate the client did, in fact, suffer from autism; and 3) commentary on autism and its effects on the human brain and decision-making. The commentary clips of the third strand should interrupt the “story” at the precise moment where a particular explanation is needed or where an explanation can confirm what the “story” is saying about the crime scene.

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The difficult, unlikeable character. Both Baker’s essay and O’Brien’s story tell us about young boys who are drawn to violence as well as self-destruction and why, and though the normal response to these young men would be revulsion, the reader instead experiences a desperate desire to save them. To help Baker’s brother as well as Baker herself. To get the narrator of O’Brien’s story out of Vietnam, both physically and mentally. We sympathize with these characters rather than fating them to a death we hope they experience sooner rather than later. Nontraditional forms make room for these types of characters and unexpected reactions to them.

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The end. Because a braided essay has three endings every time the writer completes a full rotation of the three strands—each strand entering center-stage and then leaving it again— the writer has multiple, countless opportunities to write a departing sentence. Every strand is an opportunity to make a final point. Some of the concluding sentences in Baker’s essay: Whether or not the rats would survive the winter and return was not a question that had an answer.

It’s harder to find the rats that perished.

“He didn’t die?” I asked my father. Not this time.

By the end of the essay, the concluding sentences in the rat clips could very well stand in for concluding sentences about the brother in his clips. Literal statements take on metaphorical meaning and symbolic weight. Of course, if you’re not skilled at writing or recognizing a powerful concluding sentence, you might not want to attempt this form.

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Reader participation. The braided story requires, again, that the listener or reader participate. They feel as though they are making narrative decisions as they read because they are, in fact, deciding what the core meaning of these stories are. The strands loop in and out, the story making a point in each one, again and again, but the story’s overall meaning comes from what these strands accomplish together. The brief moments of illumination, offered momentarily by each strand as it sits center stage, form a larger, coherent whole, and in figuring out what that whole is, the reader/listener believes he/she/they are writing the story themselves. They are not; the braided story works subliminally. The author is always in control.

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Fragments. The braided story does not require long, drawn out scenes. Like the cubist story, the form can work very well off quick scenes, making the writer’s job easier. A strand’s appearance in the story could be as short as one paragraph or one sentence, just as happens in the cubist story.

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Association and Intuitive Connections. Because the braided story frequently brings disparate objects together (rats and someone’s brother!), they work off dissidence. They show new, unexpected relationships. They complement and clash. They make random, chance associations—all of which leads to the re-visioning that nontraditional stories thrive on. The entire goal of the nontraditional story is to persuade the listener or reader into thinking about a hard topic in a new, revelatory way.

Final Comments Writers do not sit down at their desks, preparing to write about a particular topic or tell a short story in a particular form. We try on all the forms. What will the story look like if we use a linear structure—what details will we be able to include but what details will we be forced to eliminate?

How does cause-and-effect influence the way readers will interpret our ending? If we try a braided form, which three subjects become key? What plot-points will we have to let go of then? How will these changes alter our ending? What will our story or essay come to mean in a braided rather than linear form? Or if we adopt a cubist form, perhaps only one strand is going to recur—what happens to the others? What moments in the story will we expand into full scenes and which ones will become only a sentence in length?

Trying on different forms requires that your team brainstorms the story, that they rehash again and again what the key points are. Maybe you will remember details of the story you’d forgotten.

Maybe, as you consider the shape of your life narrative, all the different forms it might take, you will learn that something everyone thought was crucial to the story really isn’t. Maybe you’ll learn that something you thought meant nothing—something you had dismissed—is actually the keystone. All the associational thinking (in contrast to cause-and-effect logic) that comes with nontraditional story-building forces your brain to recall and reorganize and re-see in exactly the same way that these narratives require readers and listeners to rethink and re-see. Finding the perfect form for delivery will, in itself, strengthen your team’s familiarity with and understanding of your client’s story.

TCDLA Capital Clinic, Fall 2021

Patterson 10

Criminal Defense Lawyers Project

Capital Defense Seminar November 19, 2021 Beach Resort 100 Padre Blvd.

South Padre Island, TX 78597

Topic: Winning the Case with the Jury Charge

Speaker:

Patrick McCann 700 Louisiana St Ste 3950 Houston, TX 77002-2859 (713) 223.3805 phone writlawyer@outlook.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Capital Defense Seminar November 19, 2021 Beach Resort 100 Padre Blvd.

South Padre Island, TX 78597

Topic: Trauma as a Mitigator, Discovering, Developing and Presenting the Evidence

Speaker:

Kim Brown

916 Main Street 9th Floor Lubbock, TX 79401-3326 (806) 775.5650 phone kibrown@rpdo.org

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Mental Health Seminar Table of Contents

-Speaker

Topic November 18, 2021

Felix Torres Dennis Reeves

What You Need to Know About the State Hospital The Play of 46B and 46C in Capital Litigation

Dr. Sarah Dingus

Eliminate the Wait

Shea Place

Legislative Update

Kyle Clayton Chief Johnny Jaquess Erica Grigg

Distinguishing between Mental Illness and Incompetency Menta l Health in a Jail Setting Lawyer Wellness

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Mental Health Seminar November 19, 2021 Beach Resort 100 Padre Blvd.

South Padre Island, TX 78597

Topic: What You Need to Know About the State Hospital

Speaker:

Felix Torres

P.O. Box 149347 Austin, TX 78714 512-497.7574 phone Felix.Torres@hhs.texas.gov

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Mental Health Seminar November 19, 2021 Beach Resort 100 Padre Blvd.

South Padre Island, TX 78597

Topic: Eliminate the Wait

Speaker:

Sarah Dingus

PO Box 2828 Lubbock, TX 79408 (806) 775.7192 phone sdingus@starcarelubbock.org

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Outpatient Competency Restoration and Jail-based Competency Restoration Many communities offer community-based services to individuals that may be involved in the criminal justice system due to mental illness, among those services are programs focused on competency restoration. The purpose of competency restoration programs is to: ● ● ●

Increase prompt access to services in the least restrictive setting for individuals determined to be incompetent to stand trial (IST).

Provide competency restoration, mental health treatment, and promote community reintegration.

Reduce the number of individuals determined to be IST on the Health and Specialty Care System forensic waitlist (Clearinghouse Waitlist).

Community-based competency restoration programs minimize the cost associated with forensic inpatient treatment in state hospitals, while maximizing community access to services provided by local mental health authorities (LMHAs) and local behavioral health authorities (LBHAs). OCR and JBCR promote the matching of clinical acuity to a continuum of CR services. [This can be rewritten- but we want to get at that it reserves inpatient CR resources for those who need it.]

Resources ● ● ● ●

Texas Texas Texas Texas

Code of Criminal Procedures, Chapter 46B Incompetency to Stand Trial Code of Criminal Procedure, Chapter 17 Bail Administrative Code Jail-Based Competency Restoration (JBCR) Rules Judicial Commission on Mental Health 2nd Edition Bench Book

Frequently Asked Questions (FAQs) 1. Can Jail-Based Competency Restoration (JBCR) providers serve individuals waiting for a maximum-security unit (MSU) State Hospital (SH) bed?

A. Yes, Code of Criminal Procedure (CCP), Article 46B.073(d) requires a court 2/22/2021

to enter an order committing a defendant to a facility designated by the Health and Human Services Commission (HHSC). While defendants who are charged with certain higher-level offenses have historically been required to be placed in a MSU, amendments from the 86th Texas Legislative session allow for clinical discretion for determining appropriate placement of all IST defendants. There is nothing in CCP, Art. 46B.073 (d) that would prohibit a court from allowing a defendant to enter an available JBCR program. In fact, CCP, Art. 46B.091(j)(2) speaks to possible court dispositions of defendants that were admitted to JBCR programs under CCP, Art. 46B.073(d).

2. If an individual needs to go to the SH for an extension from JBCR, how are the timeframes interpreted? Does time pause so they can use the remainder of their 120 allotted days?

A. When an individual in the JBCR program is waiting to be transferred to a state hospital bed after the initial 60-day period of restoration for a felony, the time clock would pause on the initial period of restoration until the defendant is placed in a state hospital facility. If an additional restoration period is needed, the facility can request an extension or seek a secondary commitment. For individuals charged with misdemeanors, assuming the individual has not timed out under CCP, Art. 46B.0095, the time clock would pause until the individual is placed in a state hospital facility. Although the defendant will likely time out prior to being placed in the state hospital since any time spent back in jail awaiting a state hospital would be counted towards the maximum period of commitment.

3. When an individual is in the community on bond with charges that meet the criteria for the MSU waitlist, we have historically served them in OCR per the courts directive. Is this the correct process? Do these individuals need to be placed on the MSU waitlist until reviewed by the Dangerous Review Board?

A. Under CCP, Art. 46B.072, the court may order a defendant to participate in an OCR program if the court determines that a defendant charged with an offense punishable as a felony or a Class A misdemeanor and found incompetent to stand trial is not a danger to others and may be safely treated on an outpatient basis with the specific objective of attaining competency to stand trial, and an appropriate outpatient competency restoration program is available. These individuals do not need to be placed on the MSU list.

4. Due to COVID-19, we have had issues spending down our budget. Will this create an issue moving forward with future budgets?

2 Texas Health and Human Services ● hhs.texas.gov

A. Fiscal Year 2022, and 2023 funding allocations for the performance contract notebook remain the same.

5. The OCR WebCARE admission screens require a court order date entry. Our county does not use court orders for OCR participants. Should this date be the same as the date the hearing was conducted to accept the individual into the OCR program?

A. Under CCP, Chapter 46B, a defendant has to be ordered to an OCR program.

6. The OCR WebCARE admission screens require a court order number entry. Would the cause number be sufficient to use?

A. Yes, the cause number is sufficient.

7. The OCR WebCARE discharge screens require a date restored to competency entry. We often have cases where the court does not proceed with re-evaluation and the case gets dismissed in the interest of justice or for other reasons. What date should we use in this field if the individual is never re-evaluated and restored to competency?

A. If “restored to competency” is not selected in the outcome field, a restored to competency date is not required. The “other” option in the outcome field is a sufficient selection for this scenario.

8. An OCR client has had their final competency evaluation and been found competent. The evaluation was submitted to court and a final hearing was scheduled. Prior to the final hearing, the client absconded from the respite home and a warrant was issued for failure to appear at the final hearing. Did this client successfully complete the OCR program?

A. Yes, the OCR program would be considered completed once the OCR provider notifies the court that the client has attained competency to stand trial pursuant to CCP, Art. 46B.079(b-1)(1).

9. In felony cases, if the defendant cannot be restored within 60 days in a JBCR program and is to be transferred to a state hospital, does the defendant go to the end of the waitlist, or do they go to the front of the list in order to be transferred faster?

3 Texas Health and Human Services ● hhs.texas.gov

A. In JBCR, individuals are placed on the waitlist in the order in which their initial commitment was received.

10. Will every CCP, Art. 17.032 defendant be required to transfer to a State Hospital if a bed comes available while they are actively working the JBCR program? If the defendant is progressing well in JBCR and it appears they will restore within the 60 days, will they be able to remain in JBCR to complete the program?

A. Yes, unless otherwise ordered by the court, the defendant may stay in the JBCR program.

11. Will there be situations where a non-aggravated CCP, Art. 17.032 defendant will be transferred to a State Hospital before the 60 days in JBCR has expired, even when they are progressing well in the program, and it looks like they will restore within 60 days?

A. No, if the client is progressing in the JBCR program, HHSC will not seek to transfer the client to a State Hospital, unless otherwise ordered by the court.

12. Would it be appropriate to use the OCR hearing date for the date an individual is order to the OCR program?

A. No, the date on the court order should be used. OCR program participants are court ordered to receive competency restoration services.

4 Texas Health and Human Services ● hhs.texas.gov

The Texas Toolkit for Rightsizing Competency Restoration Services

October 2021

About the Judicial Commission on Mental Health The Judicial Commission on Mental Health (JCMH) was created by a joint order of the Supreme Court of Texas and the Court of Criminal Appeals of Texas. The mission of the JCMH is to engage to empower court systems through collaboration, education, and leadership, thereby improving the lives of individuals with mental health needs, intellectual and development disabilities, and substance use disorders. For more information, see www.texasjcmh.gov.

About the Texas Health and Human Services Commission The Texas Health and Human Services (HHS) System is comprised of more than 41,000 public servants under two agencies: The Health and Human Services Commission (HHSC) and The Department of State Health Services (DSHS).

These agencies serve millions of people each month and deliver hundreds of programs and services. Additionally, the agency operates 13 state supported living centers, which provide direct services and supports to people with IDD, and 10 state hospitals, which serve people who need inpatient psychiatric care.

About Eliminate the Wait It is time to right size competency restoration services for Texans by taking a holistic approach to this challenge. The Texas Judicial Commission on Mental Health and the Texas Health and Human Services Commission asks judges, prosecutors, defense attorneys, sheriffs and jail staff, police, and behavioral health providers to join their collaborative effort to change how Texas serves people at the intersection of mental health and criminal justice. We all have a role to play to ELIMINATE THE WAIT. This toolkit includes a set of strategies that stakeholders can implement to help ELIMINATE THE WAIT for inpatient competency restoration services in Texas.

Project Team JCMH Staff: Jessica Arguijo Molly Davis, J.D. Kama Harris, J.D. Michael Sipes Kristi Taylor, J.D. Liz Wiggins, J.D.

HHSC Staff: Catie Bialick, M.P.A. Jennie Simpson, Ph.D.

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Suggested Citation Bluebook Citation:

TEXAS JUDICIAL COMMISSION ON MENTAL HEALTH & TEXAS HEALTH AND HUMAN SERVICES COMMISSION, ELIMINATE THE WAIT: THE TEXAS TOOLKIT FOR RIGHTSIZING COMPETENCY RESTORATION SERVICES (1st ed. 2021).

APA Citation:

Texas Judicial Commission on Mental Health & Texas Health and Human Services Commission. (2021). Eliminate the Wait: The Texas Toolkit for Rightsizing Competency

Restoration Services.

Unless specifically noted, all information contained herein is in the public domain and may be used and reprinted without special permission. Citation of this source is required.

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Acknowledgements The JCMH and the HHSC would like to recognize the leadership and support of Justice Jane Bland, Supreme Court of Texas, and Judge Barbara Hervey, Texas Court of Criminal Appeals, Chairs of the JCMH; Sonja Gaines, Deputy Executive Commissioner for IDD and Behavioral Health Services; and Scott Schalchlin, Deputy Executive Commissioner for the Health and Specialty Care System. Thank you, also, to the Supreme Court of Texas, and the Court of Criminal Appeals of Texas.

The JCMH and HHSC would also like to recognize the following contributing authors and editors of this Toolkit: Staci Biggar, J.D.

Biggar Law Firm, LLP

Virginia Brown, Ph.D.

Dell Medical School The University of Texas at Austin

Hon. Nelda Cacciotti

Office of Judicial Staff Counsel and Special Magistration, Tarrant Co.

Kathleen Casey-Gamez, J.D. Texas Indigent Defense Commission

Scott Ehlers, J.D.

Texas Indigent Defense Commission

Alyse Ferguson, J.D.

Collin County Mental Health Managed Counsel

Courtney Harvey, Ph.D.

Colleen Horton

Hogg Foundation for Mental Health

Trina Ita, M.A.

Texas Health and Human Services

Hon. David Jahn

Hon. Pamela H. Liston

Rowlett Municipal Court

Chris Lopez, J.D.

Texas Health and Human Services Commission

Lucrece Pierre-Carr, M.S.S.W.

Denton County Criminal Court No. 1

Texas Health and Human Services Commission

Lee Johnson, M.P.A.

Lee Pierson, J.D.

Texas Council of Community Centers, Inc.

Louise Joy, J.D.

Joy & Young, LLP

Adrienne Kennedy National Alliance on Mental Illness

Hon. Elizabeth Leonard 238th Judicial District Court

Dallas County District Attorney’s Office

Britney Roshner, M.A., L.M.F.T.

Texas Health and Human Services Commission

Sheriff Kelly Rowe

Lubbock County Sheriff’s Office

Simone Salloum, J.D.

Texas Health and Human Services Commission

Texas Health and Human Services Commission

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Rachel Samsel, M.S.W.

Shelley Smith, M.S.W.

Brian Shannon, J.D.

San Marcos Police Department

Texas Health and Human Services Commission

Texas Tech University, School of Law

Melissa Shearer, J.D.

Travis County Mental Health Public Defender

West Texas Centers

Chief Stan Standridge

Felix Torres, M.D., M.B.A., D.F.A.P.A.

Haley Turner, M.S.W.

Texas Health and Human Services Commission

April Zamora, M.Ed. Texas Department of Criminal Justice

Texas Health and Human Services Commission

A special thank you to the organizations who agreed to send their constituents the Eliminate the Wait checklists to ensure that best practices, promising practices, and great ideas were being shared throughout Texas: Texas Center for the Judiciary Texas Association of Counties Texas Council of Community Centers Texas Criminal Defense Lawyers Association Texas District and County Attorneys Association Texas Indigent Defense Commission Texas Justice Court Training Center Texas Municipal Courts Education Center Texas Police Chiefs Association Texas Sheriffs Association

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Table of Contents Overview .........................................................................................................................................6 What’s My Role Checklists* ........................................................................................................ 8 LMHAs, LBHAs, & LIDDAs.......................................................................................................8 Police .......................................................................................................................................... 10 Sheriffs and Jail Administrators ........................................................................................... 12 Courts ......................................................................................................................................... 14 Prosecutors ............................................................................................................................... 16 Defense Attorneys .................................................................................................................. 19 Health and Human Services Commission State Hospital System ................................ 22 Next Steps to Eliminate the Wait ............................................................................................ 24

*Checklists arranged Sequential Intercept Model order.

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The Texas Toolkit for Rightsizing Competency Restoration Services The competency to stand trial process is designed to protect the rights of people who do not understand the charges against them and are unable to assist in their own defense. Like other states across the U.S., Texas faces a growing crisis in the number of people who are waiting in county jails for inpatient competency restoration services after being declared incompetent to stand trial (IST). Not only has this increased costs and overburdened state agencies and county jails but it also is taking a significant toll on the health and well-being of people waiting in Texas jails for inpatient competency restoration services. Meanwhile, resources available to the behavioral health and justice professionals serving our communities are becoming scarce.

More than 1,800 people are currently waiting in Texas jails for Competency Restoration Services.

Over the past 20 years, Texas has seen a 38% increase in people who are found incompetent to stand trial.

Nearly 70% of state hospital beds in Texas are used by the forensic population.

It is time to right size competency restoration services for Texans by taking a comprehensive and integrated approach to this challenge. The JCMH and the HHSC asks judges, prosecutors, defense attorneys, sheriffs and jail staff, police, and behavioral health providers to join their collaborative effort to change how Texas serves people at the intersection of mental health and criminal justice. We all have a role to play to ELIMINATE THE WAIT. This toolkit includes a set of strategies that stakeholders can implement to help eliminate the wait for inpatient competency restoration services in Texas.

“We have a responsibility to work across systems to reduce and prevent justice involvement and connect people to care in the community.

When competency restoration is needed, it should be for the purpose it was intended: to provide stabilization and legal education.”

“We applaud this collaborative effort to raise awareness about competency-restoration services and best practices. It engages courts, law enforcement, and mental health professionals in an effort to better use state resources for people with mental health disorders or intellectual and developmental disabilities who encounter our justice system.”

Sonja Gaines, Deputy Executive Commissioner for HHSC Intellectual and Developmental Disability and Behavioral Health Services

Hon. Jane Bland, Justice, Supreme Court of Texas; Chair, JCMH Hon. Barbara Hervey, Judge, Court of Criminal Appeals of Texas; Chair, JCMH

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Scott Schalchlin, Deputy Executive Commissioner for HHSC Health and Specialty Care System

The Causes

The Solutions

People with a mental illness or an intellectual or developmental disability are often arrested when diversion is appropriate and possible. The Texas Code of Criminal Procedure Art. 16.23(a) states, officers shall make a good-faith effort to divert a person who is suffering a mental health crisis or suffering from the effects of substance abuse to a proper treatment center in the law enforcement agency’s jurisdiction.1

Build a state roadmap for eliminating the wait. JCMH and HHSC are launching the Eliminate the Wait initiative to provide an actionable roadmap for reducing and eliminating the waitlist for inpatient competency restoration services.

Develop tailored resources and technical assistance. Using evidence-based strategies, JCMH and HHSC are working together to develop new trainings and educational materials focused on opportunities for diversion to treatment at all points in the criminal justice system. These will be used by judicial officials, jail staff, local mental health authorities, people who have lived experience with incompetency to stand trial, and the public.

Competency evaluation orders are often tied to a well-intended, but inaccurate, understanding of competency restoration services. Some people view competency restoration as a way to connect a person with mental health treatment. The reality, however, is that competency restoration services have a narrow focus on stabilization, symptom management, and required legal education. This is not the same as providing access to a fully developed treatment plan and treatment services with the goal of longterm recovery and rejoining the community.

Enhance accountability. Through pilot programs, resources, and research, JCMH and HHSC will contribute to our understanding of the public safety and fiscal implications of reducing and eliminating the wait. Millions of taxpayer dollars and thousands of public safety hours are spent each year on services related to competency restoration — from arrest to inmate housing, court proceedings to inpatient state hospital stays, and, finally, to disposition. Eliminating the wait for inpatient competency restoration services brings accountability to public safety and fiscal stewardship.

The process does not currently operate at maximum efficiency. It can take months to over a year from the time incompetency is raised to the final disposition of the criminal case. This is, in part, due to inefficiencies in managing case flow, communicating between parties and scheduling. Sometimes a person who has been restored at a state hospital and returned to jail experiences deterioration of their mental health while waiting for their competency hearing.

The factors in Tex. Code Crim. Proc. Art. 16.23(a)(1) through (4) must also be met. Certain offenses are not eligible pursuant to Tex. Code Crim. Proc. Art. 16.23(b).

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What’s My Role to Eliminate the Wait for Competency Restoration Services?

Local Mental Health and Behavioral Health Authorities, Local Intellectual and Developmental Disability Authorities, and other Behavioral Health Treatment Providers Behavioral health treatment providers are the frontline in reducing the number of people with a mental health (MH), substance use disorder (SUD), or an intellectual and developmental disability (IDD) who become involved in the criminal justice system. These efforts include offering timely crisis response and pre-arrest diversion programs, providing quality community-based services, and establishing positive relationships with criminal justice partners to facilitate a collaborative approach. By connecting people to care outside of the criminal justice system, behavioral health treatment providers can reduce the number of people in need of competency restoration services. If a person is found incompetent to stand trial, providing alternatives to inpatient competency restoration can prevent a person from waiting in jail for an available inpatient bed.

2. Promote Alternatives to Inpatient Competency Restoration

1. Expand Crisis Response and Pre-Arrest Diversion Options □

□

□

□

Do I offer a range of crisis services? □

Do I offer services that are accessible at the earliest signs of crisis, such as walk-in appointments and telehealth, if permitted?

□

Do I offer a range of services for people experiencing acute crisis, such as roundthe-clock mobile crisis teams and shortterm crisis stabilization services?

□

Do I offer follow up services after a crisis care episode that ensure ongoing access to care such as care coordination?

Do I deploy a full range of public safety responses, including partnering with emergency medical services?

□

Do I provide crisis response support to law enforcement through co-response or virtual co-response?

Do I offer outpatient competency restoration (OCR) and/or jail-based competency restoration (JBCR) to provide an alternative to inpatient competency restoration services? If not, have I explored these options?

□

Do I have a process in place for actively monitoring persons under a Code of Criminal Procedure 46B commitment order based on Form Z, the Forensic Clearinghouse Waitlist Template?

3. Provide Services that Reduce Justice-Involvement and Ensure Continuity of Care

Do I have pre-arrest diversion programs and partnerships in place in all counties in my local service area that focus on preventing criminal justice involvement of people with MH, SUD, or IDD, as described in Tex. Health & Safety Code §§ 533.0354 and 533.108? □

□

Have I developed a shared understanding with local law enforcement officers on the scope of their discretion and responsibilities for an emergency detention without a warrant under Tex. Health & Safety Code § 573.001?1 Do I have a range of easy access drop-off options for all counties in my local service area for people who need immediate crisis support?

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If a person has been identified to be incarcerated through the continuity of care query (CCQ), do I have an outreach plan in place with my jail?2

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Do I offer contracted jail-based treatment services?

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Are my staff educated on justice-responsive programs and interventions, such as cognitive behavioral treatment targeted to criminogenic risk, motivational interviewing, forensic intensive case management, and critical time intervention?

□

Are my staff educated on criminogenic risk and need factors that contribute to recidivism?

4. Lead Through Partnership

Additional Resources:

□

Do I coordinate, communicate, and collaborate with criminal justice partners?



□

Do I have representation from criminal justice partners on my advisory board, including police departments, sheriffs’ offices, and courts?

Principles of Community-based Behavioral Health Services for Justice-involved Individuals: A Research-based Guide | SAMHSA Publications and Digital Products

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Tailoring Crisis Response and Pre-Arrest Diversion Models for Rural Communities | SAMHSA Publications and Digital Products

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Forensic Assertive Community Treatment (FACT): A Service Delivery Model for Individuals with Serious Mental Illness Involved with the Criminal Justice System | SAMHSA

□

Do I, or staff, participate in local planning boards and workgroups focused on issues at the intersection of behavioral health and criminal justice?

□

Are criminal justice partners educated on diversion programs available through my organization, including the crisis hotline, mobile crisis response, mental health deputies, co-responder teams, and other like programs?



How to Successfully Implement a Mobile Crisis Team | Council of State Governments Justice Center



Building a Comprehensive and Coordinated Crisis System | Council of State Governments Justice Center

If I provide OCR and/or JBCR services, do I provide education to defense attorneys, prosecutors, and judges on these programs as alternatives to inpatient competency restoration?

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Justice and Mental Health Collaboration Program Implementation Science Checklist Series | Council of State Governments Justice Center

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Roadmap to the Ideal Crisis System: Essential Elements, Measurable Standards, and Best Practices for Behavioral Health Crisis Response | National Council for Behavioral Health

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Cops, Clinicians, or Both? Collaborative Approaches to Responding to Behavioral Health Emergencies | National Association of State Mental Health Program Directors

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Data Collection Across the Sequential Intercept Model: Essential Measures | SAMHSA

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□

Do I actively promote my organization’s diversion programs with criminal justice partners?

□

Do I offer training to criminal justice partners on Mental Health First Aid?

□

Are policies, procedures, and/or processes in place for diversion programs that clarify and outline the roles, responsibilities, and actions of my staff and those of our criminal justice partners?

□

Do I or my leadership team have a direct connection or relationship with each of my criminal justice partners, including law enforcement, jail administration, and the judiciary for each county in my service area?

□

Do I understand the challenges experienced by criminal justice partners in working with my organization as well as in utilizing my crisis and diversion programs?

This document is not intended to expand the requirements in the Statement of Work of the LMHA/LBHA’s Performance Agreement with HHSC. 1

Tex. Health & Safety Code Section 573.001 provides peace officers with broad discretion to make a warrantless apprehension of a person with mental illness, regardless of age, when the officer has reason to believe and does believe that because of the mental illness “there is a substantial risk of serious harm to the person or to others unless the person is immediately restrained.” This belief may be based on information provided by a credible person, the apprehended person’s conduct; or the circumstances under which the apprehended person is found. If a warrantless apprehension is made, peace officers must: Transport the individual to the nearest appropriate inpatient mental health facility or a mental health facility deemed suitable by the local mental health authority, if an appropriate inpatient mental health facility is not available OR Transfer the apprehended person to emergency medical services personnel of an emergency medical services provider in accordance with a memorandum of understanding executed under Texas Health & Safety Code 573.005 for transport to the nearest appropriate mental health facility or, if one is not available, to a mental health facility deemed suitable by the local mental health authority.

Pursuant to Texas Health & Safety Code Section 573.002, give notice of detention to the facility using Notification of Emergency Detention form; without notice, the facility may not hold the person involuntarily.

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When a person is processed into correctional institutions, facility personnel run a CCQ and receive an alert which identifies if the individual has a history of receiving mental health services from state-funded mental health programs.

What’s My Role to Eliminate the Wait for Competency Restoration Services?

POLICE Police officers are the gatekeepers of the criminal justice system. Texas law has granted peace officers discretion in diverting people with a mental illness (MI), substance use disorder (SUD), or an intellectual or developmental disability (IDD) from the criminal justice system without arrest, when appropriate. By doing this, peace officers help ensure that criminal justice system resources are focused on people who truly pose a threat to public safety, thus decreasing the number of people who enter the criminal justice system and reducing demand for inpatient competency restoration services.

2. Create a Culture of Diversion First

1. Plan for a Pre-Arrest Diversion and Crisis Response □

Have I identified pre-arrest diversion and crisis response models that will work for my agency and community (e.g., Crisis Intervention Team training; law enforcement and mental health coresponse; clinician and officer remote evaluation programs; or other interdisciplinary mobile crisis response teams) and developed policies and procedures to support the implementation of these models?

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Do I communicate to my officers the importance of diverting people with MI, SUD, or IDD, when appropriate, from the criminal justice system and connecting them to treatment?

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Do I have an agency policy for interactions with people who have MI, SUD or IDD?

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Per Tex. Code Crim. Proc. Art.16.23(a), are my officers aware that they must make a goodfaith effort to divert a person (1) suffering a mental health crisis or (2) suffering from the effects of substance abuse to a proper treatment center in the agency’s jurisdiction if:

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Do I have a single representative (ideally senior level) that is responsible for overseeing and managing pre-arrest diversion and/or crisis response programs?

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Are policies and procedures in place for crisis responses that clarify and outline the roles, responsibilities, and actions of my staff and those of our behavioral health partners?

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Do I have interagency memoranda of understanding, policies, procedures, and/or agreements to help guide referrals from my agency to local behavioral health providers?

2) it is reasonable to divert the person;

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Do I collect data to help improve pre-arrest and crisis response programs?

4) the mental health crisis or substance abuse is suspected to be the reason the person committed the alleged offense.

1) there is an available and appropriate treatment center in the department’s jurisdiction to which the agency may divert the person; 3) the offense that the person is accused of is a misdemeanor, other than a misdemeanor involving violence; and

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□

Per Tex. Code Crim. Pro. Art. 14.035, are my officers aware of the alternative to arrest release locations for an individual with IDD?

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Are my officers aware of the scope of their discretion and responsibilities for an emergency detention without a warrant under Tex. Health & Safety Code § 573.001?

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Do I actively work across my organization and with local partners to troubleshoot and address barriers to diversion?

□

Additional Resources:

Per CCP 14.035, are my officers aware that they may release a person with IDD who resides in a group home or intermediate care facility to that residence if the officer believes that: (1) incarceration is unnecessary o t protect the person and the other residents, and (2) the officer made reasonable efforts to consult with the person and the staff at the residence regarding that decision?

•

• • •

3. Lead Through Partnerships □

Does my agency coordinate, communicate, and collaborate with behavioral health partners?

□

Do I or my staff participate in local planning boards and workgroups focused on issues at the intersection of behavioral health and criminal justice?

□

Am I aware of diversion programs available through my Local Mental Health Authority (LMHA), Local Behavioral Health Authority (LBHA), and Local Intellectual and Developmental Disability Authority (LIDDA), including crisis hotlines, mobile crisis response, mental health deputies, co-responder teams, and other similar programs?

Have I developed relationships with a broad range of behavioral health partners, including service providers, advocates, substance use treatment providers, housing officials, hospital and emergency room administrators, and other criminal justice personnel?

□

□

Have I explored options at the point of 911 calltaking and dispatch to support pre-arrest diversion and improve behavioral health crisis response?

□

Do I receive training from my LMHA, LBHA, or LIDDA on Mental Health First Aid, a national program to teach the skills to respond to the signs of mental illness and substance use?

□

Do I or my leadership team have a direct connection or relationship with my LMHA, LBHA, or LIDDA leadership and other local behavioral health experts?

□

Do I understand the challenges experienced by behavioral health treatment providers in working with my agency?

• •

•

• •

•

Request Technical Assistance through the Council for State Governments Justice Center: Law EnforcementMental Health Learning Site Program Police-Mental Health Collaboration (PMHC) Toolkit | Bureau of Justice Assistance Mental Health | International Association of Chiefs of Police Law Enforcement Mental Health Support Center | Council of State Governments Justice Center Police Mental Health Collaboration Self-Assessment Tool | Council of State Governments Justice Center Sharing Behavioral Health Information within PoliceMental Health Collaborations | Council of State Governments Justice Center Police-Mental Health Collaborations: A Framework for Implementing Effective Law Enforcement | Council of State Governments Justice Center Responses for People Who Have Mental Health Needs | Council of State Governments Justice Center Cops, Clinicians, or Both? Collaborative Approaches to Responding to Behavioral Health Emergencies | National Association of State Mental Health Program Directors Data Collection Across the Sequential Intercept Model: Essential Measures | Substance Abuse and Mental Health Services Administration

Tex. Health & Safety Code Section 573.001 provides peace officers with broad discretion to make a warrantless apprehension of a person with mental illness, regardless of age, when the officer has reason to believe and does believe that because of the mental illness “there is a substantial risk of serious harm to the person or to others unless the person is immediately restrained.” This belief may be based on information provided by a credible person, the apprehended person’s conduct; or the circumstances under which the apprehended person is found. If a warrantless apprehension is made, peace officers must: • Transport the individual to the nearest appropriate inpatient mental health facility or a mental health facility deemed suitable by the local mental health authority, if an appropriate inpatient mental health facility is not available OR • Transfer the apprehended person to emergency medical services personnel of an emergency medical services provider in accordance with a memorandum of understanding executed under Texas Health & Safety Code 573.005 for transport to the nearest appropriate mental health facility or, if one is not available, to a mental health facility deemed suitable by the local mental health authority.

Give notice of detention to the facility using Notification of Emergency Detention form; without notice, the facility may not hold the person involuntarily.

11

What’s My Role to Eliminate the Wait for Competency Restoration Services?

SHERIFFS AND JAIL ADMINISTRATORS Sheriffs and jail administrators play a critical role in improving the competency restoration process. When appropriate, they can reduce further involvement with the criminal justice system and the need for competency restoration services through jail diversion; early identification of people with a mental illness (MI), substance use disorder (SUD), or intellectual and developmental disability (IDD); and timely interventions, like connection to treatment. Provision of behavioral health services and medications while a person is incarcerated may increase the likelihood that a person’s symptoms improve and reduce the potential for mental health deterioration that may lead to findings that they are incompetent to stand trial. □

1. Identify MI, SUD, and IDD and Provide Treatment and Services in Jail Settings □

□

□

□

Do I provide access to 24/7 telemental health? Tex. Gov’t Code § 511.009(a)(19).

□

Do I provide their prescription MH medications as required by law? Tex. Gov’t Code § 511.009(d).

□

Do I provide mandatory prescription review by qualified medical professional asap? Tex. Gov’t Code § 511.009(d); 37 Tex. Admin. Code Ch. 273.2(12).

□

Am I aware that the Local Mental Health Authority (LMHA) or Local Behavioral Health Authority (LBHA) may be able to provide independently contracted correctional mental health care in my jail, in addition to crisis screenings and assessments already provided?

Am I, and are my staff, familiar with Code of Criminal Procedure (CCP) Article 16.23 and the good faith effort required to divert individuals suffering from MI, IDD, or SUD?

□

□

Do my correctional staff conduct the mandatory Continuity of Care Query1 CCQ) ( for every person at booking and do I have a process in place for notifying my LMHA, LBHA, or LIDDA if there is a match?

□

Do my correctional staff provide MI, SUD, and suicide screenings for every person at booking?

37 Tex. Admin. Code § 273.5

□

Do I have a standard operating procedure in place to screen individuals for mental illness after booking if a mental illness is later suspected?

2. Provide Care and Coordination with Courts and State Hospitals for People Found Incompetent to Stand Trial

Am I familiar with the statutory requirements under the CCP Article 16.22 (requirements first enacted under the Sandra Bland Act)? □

Do I ensure my medical contracts encompass providing court-ordered medications and requesting orders for medication when needed?

Do I have standard operating procedures in place delineating the process for providing timely written or electronic notice to a magistrate of credible information that may establish reasonable cause to believe that a person has a MI or IDD? Tex. Code Crim. Proc. art. 16.22(a)(1). □

Am I in compliance with state and federal laws to provide medical care to inmates, including mental health treatment? □

Do I have a process in place to facilitate court-ordered medications?

Do I have a policy on prescriptions in jail that is shared with defense attorneys to assist in getting timely information to provide medication?

Am I aware that I am responsible for the medical records of a defendant while that defendant is confined in my jail? If so, do I have appropriate procedures surrounding the collection and maintenance of the 16.22 reports, as now required under CCP 16.22 (b-1)?

12

□

Do I work with my LMHA or LBHA to monitor people on CCP 46B commitments?

□

Have I discussed operating a Jail-Based Competency Restoration program with my LMHA/LBHA?

□

Do I ensure that once a person is returned to my jail after restoration at a state hospital, I continue to provide medication prescribed by the state hospital and mental health services to prevent deterioration prior to an appearance in court per CCP 46B.0825?

□

Have I established a method to promptly provide updates to the courts on competency cases, competency returns, competency deteriorations and other changes to assist the court in prioritizing and proactively addressing the competency cases?



Request Technical Assistance from the National Institute of Corrections on providing mental health care in jails.



Managing Mental Illness in Jails: Sheriffs are Finding Promising New Approaches | Police Education and Research Forum



Jails: Inadvertent Health Care Providers.

How County Correctional Facilities are Playing a Role in the Safety Net | Pew Charitable Trusts



Mentally Ill Persons in Corrections | National Institute of Corrections



Does my agency coordinate, communicate, and collaborate with mental health partners, including judges, the state, and defense attorneys?

Adults with Behavioral Health Needs Under Correctional Supervision: A Shared Framework for Reducing Recidivism and Promoting Recovery | National Institute of Corrections



Do I or my staff participate in local planning boards and workgroups focused on issues at the intersection of mental health and criminal justice?

Resources for Interactions between Law Enforcement and Individuals with Mental Health Issues | NATIONAL SHERIFFS’ ASSOCIATION



Standards of Care: Mental Health in Our Jails and Prisons…Now What? | Justice Clearinghouse



Data Collection Across the Sequential Intercept Model: Essential Measures | SAMSHA



Just and Well: Rethink How States Approach Competency to Stand Trial | The Council of State Governments Justice Center

□

□

Additional Resources:

Is there one point of contact between my agency and the courts to address specific MH issues? (e.g., coordinating bench warrants or transportation to and from the state hospital and county jail.)

Am I, and is my staff, aware that Texas Health and Human Services Commission offers resources on 46B processes, including resources for requesting court orders for administration of medication?

3. Lead Through Partnerships □

□

□

Am I aware of diversion programs available through my LMHA/LBHA, including crisis hotlines, mobile crisis response, mental health deputies, co-responder teams, and other similar programs?

□

Do I receive training from my LMHA/LBHA on Mental Health First Aid, a national program to teach the skills to respond to the signs of mental illness and substance use?

□

Do I, or my leadership team, have a direct connection or relationship with my LMHA/LBHA leadership and other qualified local mental health experts?

□

Do I, or my leadership team, have a direct connection with the courts and/or mental health court liaisons?

□

Do I understand the challenges experienced by behavioral health treatment providers in working with my agency?

□

Have I developed a relationship with the qualified mental health experts used by magistrates in my community for 16.22 evaluations?

□

Do I accept and disclose information about defendants with MH/IDD challenges, to serve the purposes of continuity of care and services as permitted by Health & Safety Code §614.017?

1When

a person is processed into correctional institutions, facility personnel run a TLETS CCQ and receive an alert that identifies if the individual has a history of receiving mental health services or IDD services from state-funded mental health/IDD programs. An exact or probable match from the CCQ serves as credible information.

13

What’s My Role to Eliminate the Wait for Competency Restoration Services?

JUDGES AND COURT STAFF Judges play an essential role in helping eliminate the wait for competency restoration (CR) services. By leading and facilitating the collaboration of parties, courts can connect people with the appropriate mental health treatment and services. Furthermore, Judges ensure the legal system is more just, compassionate, and fair by promoting practices that help those with mental illness (MI) and Intellectual and Developmental Disabilities (IDD) receive the necessary treatment to prevent recidivism, thus balancing community needs and judicial economy.

2. Create a Culture of Diversion First

1. Identify and Meet Mental Health and IDD Needs at the Earliest Point □

Do I receive timely notice of credible information from jail administration that may establish reasonable cause to believe that an individual is a person with MI or IDD? Tex. Code Crim. Proc. (CCP) art. 16.22(a)(1).

□

Do I (or the Magistrate Judge) order the 16.22 Interview if reasonable cause is found (from the jail admin or from an alternative source)?

□

Do I send copies of the Collection of Information Report (16.22 Report) from the Interview to the defense counsel, prosecutor, trial court with jurisdiction, sheriff, and personal bond office/pretrial supervision office? CCP art. 16.22(b-1).

□

Have I, or has my county, developed a process for effective and efficient ordering, collecting, distributing, and consideration of 16.22 requests, interviews, and reports?

□

Is this process written in a procedure manual for others to follow in the future?

□

Do I (or the magistrate judge) appoint an attorney (if applicable) as soon as possible?

□

If MI or IDD is evident, am I appointing someone with training and experience on mental health (MH) and IDD and related legal issues?

□

Am I in communication with my Sheriff about the issues that arise in my court if the jail does not ensure individuals in custody: □ Have access to 24./7 telemental health and telehealth? Tex. Gov’t Code § 511.009(a)(19). □ Are being provided their prescription MH medications as required by law? Tex. Gov’t Code § 511.009(d).

□

□

□

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Are the 16.22 Reports and risk assessments being used for decisions about bail, appointment of counsel, treatment, specialty courts, & community supervision conditions? CCP art. 16.22(c)(1) - (5).

□

On misdemeanor cases, am I considering treatment or diversion alternatives first, and using competency evaluations only as a last resort when alternatives are not available or appropriate?

□

Are diversion alternatives being considered for individuals when appropriate?

□

Have I considered outpatient or inpatient MH treatment instead of competency restoration? Has the option for Outpatient Competency Restoration (OCR) been discussed with Defense and State?

□

If the offense charged does not involve an act, attempt, or threat of serious bodily injury to another person, have I considered CCP art. 16.22(c)(5) to release the defendant (D) on bail with charges pending, enter an order transferring D to the appropriate court for court-ordered outpatient mental health services under Tex. Health & Safety Code Ch. 574? CCP art. 16.22(c)(5); HSC 574.0345.

3. Consider Alternatives to State Hospital if CR is Necessary □

Am I aware that competency restoration services (CRS) are not comprehensive mental health treatment? □

Have I considered utilizing a MH liaison position in the courts to connect with the jails and treatment providers, and to coordinate between courts with criminal jurisdiction and those with probate jurisdiction over civil commitments?

Does my Local Mental Health Authority (LMHA) or Local Behavioral Health Authority (LBHA) have a MH liaison already? Is my court able to communicate with this person effectively and quickly regarding specific cases and dockets?

Have I developed a specialty court as required under Tex. Gov’t Code § 125.005?

14

The g oal of CR is to return the client to a competent state that would allow resumption of the adjudication process. While symptoms of mental illness may be reduced during the client’s time in CR services, CR is not a substitute for comprehensive MH treatment.

□

Have I considered Outpatient Competency Restoration or Jail-Based Competency Restoration in lieu of inpatient CR? CCP art. 46B.071.

□

I am aware if OCR and JBCR is available in my community. If not available, am I aware of what I can do to advocate for the creation of one or both in my community?

□

Upon an indication of restoration, have I approved funding for the defendant to be re-evaluated after stabilization to see if Dis still incompetent CCP art.

46B.0755?

6. Education and Awareness

4. Create Efficient Court Policies for People who Receive Inpatient CR Services at the State Hospital (SH) □ Have Iassigned one point-of-contact between my

□

Do I require training for the defense bar on best practices for clients with MH/IDD including identification, interaction, protections in Texas law, and diversion options? Have I considered partnering with JCMH, or other appropriate attorney educator to create needed training?

□

Do I foster an open dialog about the common misunderstandings associated with Competency Restoration Services (CRS)? □ Many times, r equests for competency evaluations are attributable to a well-intended, but inaccurate, understanding of CRS. Some view CR as a method for connecting individuals to mental health treatment. □ The reality, however, is that CRS are narrowly focused on stabilization, symptom management, and required legal education. This is not the same as providing access to a fully developed treatment plan and services with the goal of long-term recovery and a positive place in the community.

□

Does my Court utilize a list of attorneys with specialized knowledge in MH or IDD for complex cases?

Court and the SHl?

□

Have I sent a letter annually to the SH notifying them of my point-of-contact, who should receive all communication (name, email address, fax, and phone)?

□

Have I established an efficient process for communicating with the SH using email?

□

Does my Court coordinate with the probate court to have medication proceedings when applicable, and start medication orders immediately, while the person awaits transport to SH? See Health & Safety Code § 574.106 (MI); § 592.156 (IDD); CCP art.

46B.086.

If D is on court ordered medications, have I ordered another competency evaluation after stabilization or a check for evidence of immediate restoration under CCP art. 46B.0755?

□ □

□ □

Do I schedule status conferences periodically, as needed, while the client is at SH? Do I urge the Defense and State Attorneys to continue to work on the case while waiting for the individual to return from SH?

Do I have a separate fee schedule to pay attorneys with specialized MH/IDD knowledge more for handling these types of cases?

□

Is my referral process to a mental health court in written form and shared with referral sources?

□

Who are the referral sources (e.g., prosecutors, defense attorneys, judges)? Are they familiar with identification of individuals with mental illnesses and understand potential judicial responses?

□

Are all the judges and attorneys in my community aware of the diversion options?

□

Is my policy of preferential settings for cases in which an individual has been restored to competency and returned to the county written for lawyers to know and abide by the procedures? CCP Art. 32A.01

Do I coordinate bench warrants to and from the SH?

Does my court set cases preferentially when an individual has been restored to competency under

CCP 46B.084 and returned to my county? CCP art.

32A.01.

□

□

Does the point-of-contact communicate with my coordinator to set the person on a docket quickly upon returning from the SH or other CR program?

5. Leading through Partnerships □

Has my Court gathered key stakeholders to meet regularly to improve communication regarding diversion?

□

Has my community planned and established colocated services?

□

Are the agencies and individuals listed in Health & Safety Code § 614.017 Exchange of Information accepting and disclosing information about defendants with mental health/IDD challenges, including jails, LMHAs, attorneys, judges, probation, TDCJ, and others?

Additional Resources: 

Judicial Commission on Mental Health, Texas Mental Health and Intellectual Disabilities Law Bench Book (3d ed. 2021-2022)

http://benchbook.texasjcmh.gov/. 

CMHS National Gains Center, Practical Advice on Jail Diversion: Ten Years of Learnings on Jail Diversion from the CMHS National GAINS Center (2007),

http://www.pacenterofexcellence.pitt.edu/documents/PracticalA dviceOnJailDiversion.pdf.



Texas Appleseed et al., Mental Illness, your Client and the Criminal Law: A Handbook for Attorneys Who Represent Persons with Mental Illness (4th ed. 2015), https://www.texasappleseed.org/sites/default/files/Mental_Healt h_Handbook_Printed2015.pdf.

15



Alyse Ferguson, Chief Attorney, Collin County Mental Health Managed Counsel, Practical Ideas for Counties to Streamline Competency Restoration and Save Money (2020) http://iemvirtual.com/wp-content/uploads/2020/11/PracticalTips-for-Competency-Restoration_.pdf.



Brian D. Shannon & Daniel H. Benson, Texas Criminal Procedure and the Offender with Mental Illness 102-03 (6th ed. 2019) https://3394qh4fg22b3jpwm94480xg-wpengine.netdnassl.com/wp-content/uploads/sites/12/2019/10/Shannon-6thEdition-Oct-2019-for-NAMI-Texas-website.pdf.

What’s My Role to Eliminate the Wait for Competency Restoration Services?

PROSECUTORS Prosecutors play a critical role in helping to eliminate the wait for competency restoration (CR) services. If appropriate, diversion and connection to treatment is ideal to reduce further penetration into the criminal justice system and the need for CR services. Provision of mental health (MH) services and medications while a person is incarcerated may increase the likelihood that the person’s symptoms improve, reducing the likelihood that the person is found incompetent to stand trial (IST), or leading to the immediate restoration of a person previously found incompetent to stand trial. □

1. Identify and Meet Mental Health and IDD Needs at the Earliest Point □

Does Magistrate Judge order a 16.22 Interview if reasonable cause is found? Does the Magistrate Judge send me a copy of the Collection of Information Report (16.22 Report) in a timely manner?

□

Is there a mechanism in place for the 16.22 reports to be maintained and then sent to the trial court and defense attorney once they are assigned? CCP art. 16.22(b-1).

□

Do I suspect MH or IDD issues while reviewing discovery? Have I noted this in the file? Have I brought this to the attention of the defense attorney? Do I take this into account when deciding the disposition of the case and alternatives offered?

□

Do I participate and attend collaborative meetings with key personnel to review cases and address MH and IDD issues early in the process?

Have I reviewed the case and determined if a case should be filed and, if so, at what charging level? Did I consider MH issues or IDD during this process?

□

Have I considered a defendant’s 16.22 report and risk assessments in my decisions about bail, jail diversions, treatment, and community supervision conditions? Tex. Code Crim. Proc.

(CCP) art. 16.22(c)(1) - (5).

□

Can I agree to a reasonable bond amount and appropriate bond conditions? Or for a nonviolent offense/prior, a PR Bond? CCP art.

17.032; 17.03.

□

If I am recommending that a defendant is released on personal bond, have I consulted with the defense attorney to determine what, if any, conditions are reasonable, helpful, and doable in this person’s circumstances?

CRS are narrowly focused on stabilization, symptom management, and required legal education. This is not the same as providing access to a fully developed treatment plan and services with the goal of long-term recovery and a positive place in the community.

□

□

During negotiations and discussions with the defense attorney, am I open to options other than a competency evaluation? For example: □ Can I agree to inpatient or outpatient mental health treatment instead of sending the defendant to the state hospital (SH) for inpatient competency restoration? □ If the offense charged does not involve an act, attempt, or threat of serious bodily injury to another person, can I agree to using CCP 16.22(c)(5) to leave charges pending in criminal court and divert the defendant to the appropriate civil court for court-ordered outpatient mental health services under Tex. Health & Safety Code ch. 574? CCP art. 16.22(c)(5); HSC 574.0345. □ Is this a case suitable for a straight dismissal under CCP art. 46B.004(e)?

□

Have I considered the possibility of dismissal with:

2. Work Toward Diversion First □

Am I aware that competency restoration services (CRS) are not comprehensive mental health treatment?

□ □ □ □

16

a treatment plan; a referral to outpatient mental health services; a referral to an assisted outpatient treatment program (with or without civil/ probate court supervision); or a transfer to appropriate court to commence civil commitment proceedings? CCP Art. 46B.151; Tex. Health and Safety Code Ch. 571, 574.

□

Have I screened the case for possible entry to diversion programs or specialty courts?

□

If I decide to dismiss a defendant’s case, have I given notice to the defense attorney that allows them to communicate this with their client and assist with a discharge plan or transportation upon release?

Have I considered whether the potential to adjudicate this case upon restoration is worth the potential personal a nd societal damage caused by months long wait in the jail before a hospital bed becomes available (i.e., loss of public benefits, disconnection mental health services in the community, loss of housing, loss of connections to community supports, job loss, trauma, or displacement)?

Am I holding the defense to their burden of proof (BOP) / meeting my BOP? □ Typically, there is a presumption that the defendant (D) is competent, and defense must prove incompetency by a preponderance of the evidence. CCP 46B. 003(b); Dusky v. U.S. , 362 U.S. 402 (1960). □ If the D has a previous, unvacated IST finding, was committed for restoration, & was found not likely to be restored, then the D is presumed incompetent, and the State must prove competency Beyond a Reasonable Doubt. Manning v. State , 730 S.W.2d 744 (Tex. Crim. App 1987).

□

□

□

4. Continue to Work on Cases when the Defendant Must Wait for Inpatient CR Services at the SH

Am I suggesting a competency evaluation or inpatient competency restoration services only as a last resort?

3. Consider Alternatives to State Hospital if Competency Restoration is Needed □

Have I o c nsidered Outpatient Competency Restoration (OCR) or Jail-Based Competency Restoration (JBCR) as an alternative to inpatient and/or SH competency restoration? CCP art.

46B.071.

□

I am aware if OCR and JBCR is available in my community? If not available, what can I do to advocate for either or both in my community?

17

□

Am I continuing to communicate with the defense attorney while the defendant awaits transfer to the SH?

□

Have I considered what evidence might fall under the Michael Morton Act specific to MH or IDD cases and produced all evidence that is material to any matter involved in the action? Have I subpoenaed relevant medical, psychological, or education records of the defendant?

□

Have I considered what constitutes Brady in mental health and IDD cases and produced all evidence to the defense that is in possession of the State and tends to negate the defendant’s guilt or mitigate their punishment? Have I reviewed the defendant’s previous cases for information, records, or orders that should be produced to the defense?

□

Have I considered the mitigation evidence produced by the defense when making an offer on this case? Have I considered offering deferred adjudication?

□

Am I working with the court and defense counsel to obtain a fast court setting upon the defendant’s return from SH or another CR program? Have I requested a preferential case setting under CCP art. 32A.01?

□

Am I advocating that the defendant receive mental health treatment in custody while awaiting transfer to or after returning from SH?

□

If necessary, have I filed an application with the probate or other appropriate court to order the administration of medications in custody to help prevent deterioration (or coordinated with the county attorney to file the application)? Health & Safety Code § 574.106 (MI) or § 592.156 (IDD); CCP art. 46B.086.

□

If the Defendant is on court ordered medications, have I requested another competency evaluation after stabilization or a check for evidence of immediate restoration under CCP art. 46B.0755?

□

Is this case one where the defendant is unlikely to restore per 46B.071(b)? Have I considered proceeding under Health & Safety Code subchapters E or F (civil commitment with charges pending or dismissed)?

Additional Resources:

5. Create Education and Awareness □

Have I been trained on best practices for cases where a D has MI/IDD including identification, interaction, protections in Texas law, and diversion options? Consider working with JCMH



□



Does my office actively discuss educational resources, community resources, and court practices and procedures for individuals with MI or IDD?

□

CMHS National Gains Center, Practical Advice

on Jail Diversion: Ten Years of Learnings on Jail Diversion from the CMHS National GAINS Center (2007), http://www.pacenterofexcellence.pitt.edu/doc uments/PracticalAdviceOnJailDiversion.pdf.

Am I communicating with my office about my successes in diversion techniques for individuals with MI or IDD?



Texas Appleseed et al., Mental Illness, your

Client and the Criminal Law: A Handbook for Attorneys Who Represent Persons with Mental Illness (4th ed.

2015), https://www.texasappleseed.org/sites/default /files/Mental_Health_Handbook_Printed2015. pdf.

6. Lead Through Partnerships □

Mental Health and Intellectual Disabilities Law Bench Book (3d Ed. 2021-2022) http://benchbook.texasjcmh.gov/.

or other appropriate attorney educator for needed training.

□

Judicial Commission on Mental Health, Texas

Am I regularly engaging with the LMHA, LBHAs, LIDDAs, other prosecutor’s offices, the defense bar and/or public defenders or managed counsel offices, pretrial services, probation, and the courts to meet formally and regularly to improve communication, policies, and procedures regarding mental health / IDD diversion?



Alyse Ferguson, Chief Attorney, Collin County Mental Health Managed Counsel, Practical

Ideas for Counties to Streamline Competency Restoration and Save Money (2020) http://iemvirtual.com/wpcontent/uploads/2020/11/Practical-Tips-forCompetency-Restoration_.pdf.

Are the agencies and individuals listed in Health & Safety Code § 614.017, Exchange of Information, accepting and disclosing information about defendants with mental health/IDD challenges, including jails, LMHAs, LBHAs, LIDDAs, attorneys, judges, probation, the Texas Department of Criminal Justice, and



18

Brian D. Shannon & Daniel H. Benson, Texas Criminal Procedure and the Offender with Mental Illness 102-03 (6th ed. 2019) https://3394qh4fg22b3jpwm94480xgwpengine.netdna-ssl.com/wpcontent/uploads/sites/12/2019/10/Shannon6th-Edition-Oct-2019-for-NAMI-Texaswebsite.pdf.

What’s My Role to Eliminate the Wait for Competency Restoration Services?

DEFENSE ATTORNEYS Defense Attorneys can help eliminate the wait for competency restoration (CR) services. With best practices and current policies, defense attorneys advocate for their clients to receive mental health treatment, find an amicable resolution to the case, and prevent their clients from languishing in jail waiting for inpatient CR services. By focusing on these goals for their individual clients, defense attorneys contribute to the overall effect of reducing the total number of people on the competency restoration waitlist.

2. Work Toward Diversion First

1. Identify and Meet Mental Health (MH) and Intellectual and Developmental Disabilities (IDD) Needs at the Earliest Point

□

Am I knowledgeable about local MH & IDD resources?

□

Is the Magistrate Judge ordering a 16.22 Interview if reasonable cause is found?

□

□

If I believe my client needs a 16.22 interview, am I asking the Magistrate to order one?

Have I established a contact within my LMHA, LBHA, and/or LIDDA?

□

□

Am I receiving a copy of the Collection of Information Report (16.22 Report) in a timely manner?

Am I working closely with my LMHA/LBHA/LIDDA or mental health jail/court liaison to discuss alternatives to incarceration available in my community?

□

Am I meeting with my client as soon as possible?

□

If my client has not been charged with or previously convicted of a violent offense, have I advocated for my client’s release on a MH personal bond? CCP art. 17.032; 17.03.

□

During bond hearings, do I use my client’s 16.22 report and risk assessments to advocate for my client on decisions about bail, diversion, treatment, and possible community supervision conditions? Tex. Code Crim. Proc. (CCP) art.

16.22(c)(1) - (5).

□

If my client is being released on personal bond, have I made arrangements to ensure that the client has the transportation and other supports necessary to adhere to bond conditions?

□

Am I aware that competency restoration services (CRS) are not comprehensive MH treatment? □ CRS are narrowly focused on stabilization, symptom management, and required legal education. This is not the same as providing access to a fully developed treatment plan and services with the goal of long-term recovery and a positive place in the community.

□

If my client wants to pursue MH treatment as part of their criminal court process, am I zealously advocating for it?

□

At this meeting, am I asking my client about their MH and IDD history?

□

To the greatest extent possible, am I exploring with my client the risks and benefits of all possible options, to include making a choice about whether the client wants to address their MH issues as a part of this criminal process or not?

□

If necessary, am I re-visiting a client to re-evaluate their mental state if circumstances change?

□

Am I asking my clients if they are receiving their prescription medications in jail? Tex. Gov’t Code § 511.009(d).

□

If my client is not receiving their medication, am I communicating with the jail, magistrate, and trial court about this issue?

□

Have I established communication with the jail MH liason to get updates about my client and relay information for the client’s benefit.

□

Do I ensure that my client and/or their family knows how to provide proof of client’s valid prescription to the jail?

□

Am I considering poverty, cultural differences, and language differences when determining whether to raise issues related to MH, IDD or competency?

□

□

Have I investigated whether my client was ever previously found incompetent to stand trial and the subsequent procedural history?

Have I made sure the prosecutor understands the distinction between CRS and comprehensive MH treatment?

□

Have I advocated for the court and prosecutor to consider outpatient or inpatient MH treatment instead of competency restoration for my client?

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□

If the offense charged does not involve an act, attempt, or threat of serious bodily injury to another person, have I used the 16.22 report to advocate for CCP 16.22(c)(5) diversion, which leaves charges pending in criminal court and diverts the defendant to the appropriate civil to the appropriate court for court-ordered outpatient MH services under Tex. Health & Safety Code ch. 574? CCP art. 16.22(c)(5); HSC 574.0345.

3. Consider Alternatives to State Hospital if CR is Necessary □

Have I considered, or asked the Court to consider Outpatient Competency Restoration (OCR) or Jail-Based Competency Restoration (JBCR)? CCP art. 46B.071.

□

I am aware if OCR and JBCR is available in my community? If not available, what can I do to advocate for either or both in my community?

Have I tried negotiating for a dismissal with: □ a treatment plan; □ a referral to outpatient MH services; □ a referral to an assisted outpatient treatment program (with or without civil/probate court supervision); or □ a transfer to appropriate court to commence civil commitment proceedings? CCP art.

46B.151; Tex. Health & Safety Code ch. 571, 574.

□

Do I work with my LMHA/LBHA ahead of the competency hearing to create an OCR plan before the hearing? CCP art. 46B.072.

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Have I specifically made the request for OCR or JBCR on the record?

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Have I specifically requested these alternatives in my motion and proposed order?

□

Am I only using CR when it is necessary and the best resolution for my client that does not cause unnecessary delay or harm to my client? ABA STANDARDS RELATING TO COMPETENCE TO STAND TRIAL § 7-4.2(e) (1989).

4. Continue to Advocate for Individuals Who Must Wait for Inpatient CRS at the State Hospital (SH)

□

Have I considered using Ake v. Oklahoma , 470 U.S. 68, 71 (1985), (possibly ex parte with a sealed motion) for appointment of an expert for psychological assessments instead of going down the CR path to achieve the same goals, evaluations, or evidence?

□

□

□

□

□

If necessary, am I requesting funding from the court for psychological evaluations (rather than competency evaluations) for decisions about trial, sentencing, and community supervision?

Am I continuing to communicate with my client while they are awaiting transfer to SH to determine if they may have stabilized while waiting in jail (with appropriate MH treatment) to see if incompetency is still an issue in the case?See TEX. DISCIPLINARY RULES OF PRO. CONDUCT, R. 1.16 Clients with Diminished Capacity .

□

Am I meeting my burden of proof (BOP) / holding the state to their BOP? □ Typically, there is a presumption that the defendant is competent, and defense must prove incompetency by a preponderance of the evidence. CCP 46B. 003(b); Dusky v.

U.S. , 362 U.S. 402 (1960). □ If client has a previous, unvacated Incompetent to Stand Trial (IST) finding, was committed for restoration, and was found not likely to be restored, then client is presumed incompetent, and state must prove competency Beyond a Reasonable Doubt.

Manning v. State , 730 S.W.2d 744 (Tex. Crim. App 1987).

If stabilization has occurred before transfer, have I requested another competency evaluation or a check for evidence of immediate restoration under CCP art. 46B.0755?

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Am I advocating for mental health treatment for my client while they are awaiting transfer to SH or other CR program?

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Am I continuing to communicate with my client once they go to the SH? See TEX. DISCIPLINARY RULES OF PRO. CONDUCT, R. 1.16, Clients with Diminished Capacity .

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Am I continuing to progress this case and communicate with the prosecutor while waiting for my client to return from the SH?

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Am I communicating with the SH regarding the direct release of my client? Do I work with my LMHA, L BHA, prosecutor, and court to make a plan to set PR bond and have my client released from SH to community living arrangement?

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Am I working with my court to obtain a fast court setting upon my client’s return from SH, or other CR program? Have I requested a preferential setting under CCP art. 32A.01? If necessary, have I filed a motion for a speedy trial under art. 32A.01?

If the prosecution agrees to dismiss my client’s case, have I communicated this with my client and assisted with a discharge plan or transportation upon release? Have I made the prosecution and the court aware of the need to communicate and coordinate with the client, so they a re not abruptly released without understanding what happened or transportation or plan?

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□

□

Am I monitoring my client’s cumulative period (in custody, SH, inpatient CR, JBCR) to see if they have reached their maximum period of confinement under CCP art. 46B.0095?

Additional Resources: 

Am I working to make sure my client continues to receive their prescription medications while in custody after returning from SH? Tex. Gov’t Code § 511.009(d).

□

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Am I regularly engaging with the LMHA, Prosecutor’s offices, other defense bar and/or public defenders or managed counsel offices, pretrial services, probation, and the courts to meet regularly to improve communication, policies, and procedures regarding mental health / IDD diversion?





Am I communicating with my defense bar, Public Defenders Office, or Managed Assigned Counsel about my successes in diversion techniques for clients with mental illness or IDD?

Alyse Ferguson, Chief Attorney, Collin County Mental Health Managed Counsel, Practical Ideas http://iemvirtual.com/wpcontent/uploads/2020/11/Practical-Tips-forCompetency-Restoration_.pdf.



other appropriate attorney educator CLEs for needed training.

□

Client and the Criminal Law: A Handbook for Attorneys Who Represent Persons with Mental Illness (4th ed. 2015),

for Counties to Streamline Competency Restoration and Save Money (2020)

Have I been trained on best practices for clients with MH/IDD including identification, interaction, protections in Texas law, and diversion options? Consider attending JCMH, or Does my defense bar, public defender office (PDO), or managed assigned counsel program (MAC) actively discuss education resources, community resources, and court practices and procedures to benefit clients with mental illness or IDD?

Texas Appleseed et al., Mental Illness, your

https://www.texasappleseed.org/sites/default/fi les/Mental_Health_Handbook_Printed2015.pdf.

Are the agencies and individuals listed in Health & Safety Code § 614.017, Exchange of Information, accepting and disclosing information about defendants with MH/IDD challenges, including jails, LMHAs, LBHAs, LIDDAs, attorneys, judges, probation, the Texas Department of Criminal Justice, and others?

□

CMHS National Gains Center, Practical Advice on Jail Diversion: Ten Years of Learnings on Jail Diversion from the CMHS National GAINS Center (2007),

http://www.pacenterofexcellence.pitt.edu/docu ments/PracticalAdviceOnJailDiversion.pdf.

6. Education & Awareness □

Mental Health and Intellectual Disabilities Law Bench Book (3d Ed. 2021-2022)

http://benchbook.texasjcmh.gov/.

5. Leading Through Partnerships □

Judicial Commission on Mental Health, Texas

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Brian D. Shannon & Daniel H. Benson, Texas Criminal Procedure and the Offender with Mental Illness 102-03 (6th ed. 2019) https://3394qh4fg22b3jpwm94480xgwpengine.netdna-ssl.com/wpcontent/uploads/sites/12/2019/10/Shannon6th-Edition-Oct-2019-for-NAMI-Texaswebsite.pdf.

What is Health and Human Services doing to Eliminate the Wait for Competency Restoration Services?

While a full array of community-based services can reduce the need for inpatient care, the Texas Health and Human Services Commission’s (HHSC) State Hospital System (SHS) is a critical component of the behavioral health continuum of STATE HOSPITAL FORENSIC care, providing inpatient psychiatric care to adults in nine of its state psychiatric hospitals. The state hospitals serve people with various mental health (MH) needs, including forensic patients who have been determined to be incompetent to stand trial or acquitted as not guilty by reason of insanity, and civil patients who are at risk of harming themselves or others or at risk of significant deterioration. HHSC is working to transform and modernize the delivery of inpatient psychiatric care and services at the state hospitals through several major initiatives, including expanding state hospital capacity and renovating and replacing the state hospital infrastructure. In addition, HHSC has prioritized efforts to transform the delivery of inpatient psychiatric forensic care and services by implementing strategies that achieve treatment and operational efficiencies and change.

State Hospital System Initiatives

Jail In-Reach Learning Collaborative

The SHS is implementing initiatives that will improve the efficiency and quality of the delivery of forensic services within the SHS while enhancing collaboration with external stakeholders. As described below, these initiatives use a variety of strategies that have direct and/or indirect impacts on the SHS’s waitlist and/or forensic patient lengths of stay.

Educating and collaborating with external stakeholder community-based teams to support active forensic waitlist monitoring of individuals awaiting in jail for state hospital admission and court-ordered competency restoration through: 

clinical consultation services that may assist with psychiatric stabilization,



trial competency re-evaluations in the event of immediate restoration while awaiting state hospital transfer,



Collaborating with stakeholders across the behavioral health and justice continuum of care to actively manage the forensic waitlist to:

legal education on options for alternative case dispositions, and



identify individuals committed to the SHS who may benefit from alternative dispositions [e.g. individuals with neurocognitive disorders (dementia), Intellectual and Developmental Disabilities (IDD) diagnoses, medical comorbidities, or found not likely to restore within the foreseeable future], and

enhanced continuity of care following an individual’s restoration to competency and return to jail to prevent clinical decompensation and unnecessary rehospitalization.



Our Partners: Local mental Health Authorities, Local Behavioral Health Authorities, judges, prosecutors, defense attorneys, sheriffs, jail administrators, jail psychiatric providers, and the Judicial Commission on Mental Health’s Community Diversion Coordinators across 13 counties.

Collaboration and Coordination Waitlist and Admissions Management





educate, coordinate and provide technical assistance, including the evaluation of cases, to jail staff, district attorneys, defense counsel, and the judiciary, as needed.

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Additional Resources:

Enhancing the Delivery, Quality, and Efficiency of Competency Restoration Services

Outpatient Management Plans: Creating a Statewide Approach for Successful Not Guilty by Reason of Insanity (NGRI) Transitions to Community Living (webinar)

Competency Restoration Curriculum Standardization The SHS is developing a simplified and standardized competency restoration curriculum for use at all state hospitals to improve treatment efficiencies and patient movement through the competency restoration process.

HHSC Contact: Felix Torres, MD, MBA, DFAPA Chief of Forensic Medicine, State Hospital System Email: Felix.Torres@hhs.texas.gov

Outpatient Management Plan Quality Improvement Initiative The outpatient management plan (OMP) is a document presented to the court that is used to prescribe the services, supports and requirements a patient must adhere to when transitioning from the SHS to the community. The SHS has developed a simplified and standardized OMP to improve the quality of the plans so that a greater number are approved by the court on the first submission.

Trial Competency Examination Quality Improvement Initiative To enhance how trial competency evaluations (TCE) are conducted in the SHS, this initiative includes: 

developing and implementing a standard report form that allows for the SHS to extract necessary forensic data found in the TCEs,



developing an enhanced pool of qualified forensic evaluators in the SHS by implementing an evaluator registry, and



implementing a TCE peer review process to improve the quality of TCEs completed in the SHS.

State Hospital System Forensic Treatment Data Enhancement

The SHS has been implementing mechanisms for reporting and collecting accurate forensic-related data, including data from a standardized clinical screening of competency, to help make datainformed decisions and develop data-informed interventions for the continuous quality improvement efforts in the delivery of forensic treatment services.

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Next Steps Over the next year, the JCMH and the HHSC will: • Develop additional resources to support the Eliminate the Wait Campaign.

• Offer Sequential Intercept Model Mapping to communities who seek to better understand how individuals with mental and substance use disorders come into contact with and move through the criminal justice system, with the goal of identifying resources and gaps in services at each intercept and developing local strategic action plans.

• Offer targeted technical assistance to stakeholders who seek support in implementing the Eliminate the Wait checklists.

For more information on how to get involved, visit http://texasjcmh.gov/ & contact forensicdirector@hhs.texas.gov.

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Jail Based Competency Restoration- StarCare/Lubbock County This session will explore Jail Based Competency Restoration (JBCR) services that are provided by StarCare (LMHA) at the Lubbock County Detention Center. JBCR is a behavioral health services program implemented by the Health and Human Services Commission (HHSC) to implement the Mental Health Grant Program for JusticeInvolved Individuals, as directed by Senate Bill (S.B.) 292, 85th Texas Legislature, Regular Session, 2017.

Individuals who have been found Incompetent to Stand Trial (IST) are court ordered to complete competency restoration in this jail setting and are screened to ensure they are able to be treated in the least restrictive environment. The purposes of this program are to (2) reduce the length of stay, (3) to increase connection to treatment, and (4) reduce rates of recidivism, arrests, and incarcerations amongst individuals with mental illness, in addition to reducing wait times for individuals with mental illness placed on forensic commitment to a state hospital. Topics covered will include average wait times, Eliminate the Wait Initiative, restoration processes, time frames, competency vs. insanity, essential relationships, and frequently asked questions. This presentation will be facilitated by Dr. Sarah Dingus, Director of Forensic Mental Health for StarCare.

Sarah L. Dingus, PhD, LPC Director of Forensic Mental Health Location: 3502 N. Holly Ave. | Lubbock, TX 79403 Mail: PO Box 2828 | Lubbock, TX 79408 O: 806-775-7192 | C: 214-205-0313

PO BOX 2828 | LUBBOCK, TX 79408-2828 | 806-766-0310 | STARCARELUBBOCK.ORG

FIND HOPE HERE

NATIONAL JUDICIAL TASK FORCE TO EXAMINE STATE COURTS’ RESPONSE TO MENTAL ILLNESS

Leading Reform:

Competence to Stand Trial Systems A Resource for State Courts1

August 2021

THE ISSUE The majority of state hospitals maintain bed-wait lists of defendants who have been court-ordered for competency to stand trial evaluation or restoration services. A 2017 report found that in some states these waits are around 30 days, but three states reported forensic bed waiting lists of six months to a year. At any given time, there were at least 2,000 defendants waiting in jail for these beds.2 During the pandemic these waits have skyrocketed, and in just three states combined, over 3,000 people were reported waiting in jail for a resoration bed. These are pre-trial defendants, sometimes charged only with misdemeanor offenses, all of whom are presumed innocent. And yet, many of them will spend far longer in jail or otherwise confined than they ever would have had they pled to or been convicted of the underlying offense.

BACKGROUND Of the countless ways in which mental illness and the justice system intersect, one of the most direct is when courts and judges are involved in an order for evaluation and ultimate determination of a defendant’s competency to stand trial.3 Any defendant, their counsel, the prosecutor, or the court can raise a concern that the defendant may be incompetent to stand trial in any criminal proceeding, from misdemeanors to capital murder. The United States Supreme Court in Dusky v.

U.S. (1960) held that in order for a defendant to be found competent to stand trial, a defendant must have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and a "rational as well as factual understanding of the proceedings against him.”

If incompetence is raised, the defendant is evaluated by a mental health professional; and based on that evaluation (or evaluations) and other information, the court makes a determination of legal competency. If an individual is found incompetent, a process of restoration to competency generally commences.

During both the evaluation and restoration phases, defendants are often held involuntarily, or committed, either in jail or in a locked treatment facility.

In Jackson v. Indiana (1972), the U.S. Supreme Court held that the nature and duration of an incompetent defendant’s commitment must bear a relationship to the purpose for which they are committed.

But for a variety of reasons people are often held for periods of time that bear no rational or proportionate relationship to the nature of the offense they are alleged to have committed, their level of risk to the community, or their clinical needs.

what they thought was working and what was not working relative to the competency processes.

That two-day conversation set a solid path for identifying systemic problems and potential solutions to those problems.4 In an effort to understand all aspects of these issues, Task Force members and National Center for State Courts (NCSC) staff also engaged with other partner organizations and experts. Shortly after the NCSC focus group met, the Council for State Governments Justice Center (CSG), convened a remarkable group of experts from around the country to have a similar discussion, but from a broader perspective.5 A result of that convening is the CSG product Just and Well: Rethinking How States Approach Competency to Stand Trial.6 This report builds on both the original interim recommendations to the Task Force and the Just and Well strategies to provide specific emphasis and implementation considerations from the perspective of the courts.

In the context of competency to stand trial, due process requires that accused persons understand the charges against them and be able to meaningfully assist in their defense. Due process also requires a limit on the restrictions on the accused's freedom during the evaluation and restoration process. These two seemingly simple propositions of due process are often interpreted and implemented in such inconsistent and ineffective ways that our systems frequently do more harm than good. In this area of the intersection of behavioral health and the justice system, the courts have an integral role and significant responsibility to identify and understand the issues and provide the leadership for change.

Many state courts are currently engaged in competency system and broader behavioral health system reform. Two regional Conference of Chief Justices and Conference of State Court Administrators summits were held in 2019, and the resulting technical assistance initiatives provided thereafter offered additional opportunities for discovery about what is and is not working, and how states are finding ways forward.7 Teams from Hawaii, North Dakota, Indiana, and Ohio, among others, identified the competency processes, and specifically the misdemeanor competency process, as area in need of reform.

One of the first steps undertaken by the Task Force was the selection of eight trial judges from around the country who were asked to focus on

2

State courts in each of these states initiated or participated in drafting legislation to reform the competence to stand trial systems in their states during the last year.

and same-day competency evaluation process used in the Superior Court in Hollywood. They also recently met remotely to consider the impact of the pandemic on competency issues around the country, and several of these judges now serve as members of the Competency Subcommittee of the Task Force (the Subcommittee).8 The Subcommittee examined and refined the original interim recommendations,9 and their final recommendations were considered and approved by the Task Force in August, 2021.

There have also been other efforts to gather data, identify and research best practices, and collaborate with experts on competency, including webinars, phone conferences, and joint resource development. The original focus group of trial judges reconvened in Los Angeles to observe the Los Angeles County misdemeanor and felony diversion program, housing resources,

RECOMMENDATIONS

1. Divert cases from the criminal justice system The involvement of the criminal justice system with people with mental illness is all too often a result of “nowhere else to go.” Unlike when someone suffers a physical health emergency, there frequently is no 24/7 emergency mental health response infrastructure. When a mental health emergency happens, the same 911 call is made, but instead of a ride in the back of an ambulance to the hospital, often the call results in a ride (with handcuffs) in the back of a police cruiser, to jail.

From there, the involvement of the courts is almost inevitable. And once the courts are involved with someone who exhibits symptoms of a mental illness, legal competence is a natural issue to be raised, and an array of delays, incarceration, and other problems inevitably follow.

There are, however, alternatives to this scenario, and these alternative approaches often work better for the individual as well as the community and use limited resources and available dollars more wisely. Because jails and courts struggle to effectively address serious mental illness (SMI), moving individuals in an out of these systems can make people with SMI worse. Diverting people who experience mental health symptoms to a system where treatment can be addressed at the right level of need as something more akin to our physical health processes and facilities is a better option. Trained 911 dispatchers, mobile crisis units, co-responder models, CIT trained law enforcement, and well-designed crisis stabilization facilities are evidence-based, effective, and more humane alternatives.

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Looking forward, the recently created mental health crisis line alternative, 988, should also be utilized as a proactive diversion and care coordination opportunity. The greater the availability of these options, the fewer people will be subjected to the criminal justice and competency systems, and the better the outcomes for people with mental illness, courts, and public safety.10 These diversion opportunities also arise at each point in the competency process, and off-ramps from the criminal justice system to treatment and civil alternatives, including voluntary treatment, the use of Psychiatric Advance Directives, and even involuntary civil commitment when appropriate — such as the use of Assisted Outpatient Treatment (AOT) — should be considered at each of these points.

Interventions should be tailored to the needs of the individual and the community at the evaluation stage, prior to restoration, upon return from restoration, and prior to and as a part of sentencing or other case disposition. Even individuals found incompetent to stand trial and unrestorable could take advantage of the right “off-ramp” opportunities for diversion and be linked to appropriate community services to reduce their risk of offending and returning to the competency system.

COMPETENCE PROCESS FLOWCHART

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2. Restrict which cases are referred for competency evaluations Even when the criminal justice system is invoked, there are still ways to divert people with mental illness from the competency road. The first potential point of diversion occurs when someone chooses to raise the issue of competency.

The constitutional standard for raising competence is quite low. The U.S. Supreme Court found in Pate v. Robinson that a hearing is required whenever there is a “bona fide doubt” about the defendant’s competency. In recent years the trend of raising competence has dropped steadily in some jurisdictions, yet skyrocketed in others, which suggests that local legal cultures, practical circumstances in specific jurisdictions, and individual discretion around legal strategy are driving the numbers rather than principled public policy choices.

Legally, all defendants are presumed competent, and judges are under no obligation to order an examination unless there are sufficient grounds to do so.

Certainly, defense counsel have an obligation to explore all possible legal strategies on behalf of their clients, but it does not follow that competence should be raised every time there is a colorable argument. Newer defense lawyers, for example, may not have seen how the process really plays out as a practical matter and may not be aware of better alternatives to pursue for their clients.

In some circumstances, it may be appropriate to take competency off the table as a policy matter, by rule or by statute, and several jurisdictions currently prohibit the use of the restoration process for certain classes of pretrial detainees. There is a growing consensus that individuals charged with misdemeanors, for example, should rarely be subject to the competency process. They often end up incarcerated, waiting for an evaluation, then waiting for the report, then for a hearing, then for a restoration bed to open (most often in a state mental hospital), and then they begin a restoration process that on In some circumstances, average takes several months. Next, if restored, they are frequently it may be appropriate returned to jail to wait their turn for a final court hearing to formalize to take competency off that status, and then they are able to restart the criminal trial process. By then, they have been in jail and confinement for far the table as a policy longer than they ever would have been had they been convicted matter, by rule or by and sentenced on day one. Often the result is that the case is now statute, and several dismissed or pled to, with a sentence of “time served.”

Of course there are exceptions to this scenario, and the fact that someone has been charged with only a misdemeanor tells us little to nothing about their criminogenic risks, needs, or danger to the community. But Jackson says and due process requires that the nature and duration of an incompetent defendant’s commitment

5

jurisdictions currently prohibit the use of the restoration process for certain classes of pretrial detainees.

must bear a relationship to the purpose for which they are committed. The nature of most competency systems in our country are inherently disproportionately onerous and ponderous when applied to someone charged with a misdemeanor.

Even proposing the “bright line” of misdemeanors versus felonies as a way to presumptively cull cases from the competency system is potentially problematic, however. One risk is that defendants will be charged with felonies, when possible, in order to keep all disposition options on the table for the prosecution and the court. This dynamic is especially pronounced when there are only two options – competency evaluation or traditional prosecution. The better answer is to have a continuum of responses available to the prosecutor and court. A clinical and risk screening and assessment would suggest the appropriate level of treatment intervention and supervision required. This continuum could include: > A direct handoff to standard community-based treatment; > Diversion to a treatment program affiliated with the criminal justice system, potentially including some level of community supervision; > Referral to civil court options, such as civil commitment to a hospital or to Assisted Outpatient Treatment, if the defendant is treatment non-adherent,11 and is clinically appropriate; and > Other civil options such as guardianship.

Each of these options would ideally include appropriate supports, such as case management to ensure and coordinate rehabilitative or habilitative resources, such as housing, job training, public benefits, and the like.

If there are other effective options in which system players have confidence, the competency process will be used more sparingly, and more appropriately. By diverting defendants to appropriate targeted interventions and services and reserving the competency to stand trial mechanism for fewer cases and for circumstances for which the process is more proportionate, resources would be better spent and the outcomes for everyone, including the defendants, would be better.

3. Develop alternative evaluation sites Although some states have shifted competency evaluations to sites outside of state hospitals, they continue to take place in any number of locations — in the community, jails, courthouses, state hospitals, and in other designated secure facilities. Which of those options is used depends largely on what is available in that jurisdiction and what that jurisdiction has chosen to fund, not on what would be the most clinically appropriate. Generally, there is only one option in a jurisdiction.

Judges, when informed by appropriate screen and assessment results and by behavioral health professionals, are in the best position to make the determination

6

about which setting, among a range of options, is most appropriate for individual defendants. This decision should be in the context of a statute or rule that presumes that evaluations take place in the least restrictive setting appropriate for each individual’s demonstrated criminogenic risk and clinical needs.

But judges cannot order evaluations in a setting that does not exist. Courts and judges have a role in advocating for these options, because if more of the less expensive outpatient, communitybased options for evaluation existed, there would be less need to wait in jail for the evaluation, fewer transportation and other logistical issues, and perhaps better evaluations. Some of these other options are discussed in Recommendation 7.

4. Develop alternative restoration sites Similarly, there is usually only one option for restoration services in a jurisdiction, and that remains most commonly the state hospital. This likely leads to delays, jail time, and a loss of liberty that is disproportionate to the purpose for which incompetent defendants are being restored. Some states require, and others permit restoration in a psychiatric hospital. The result is that restoration services are provided only in an in-patient setting in the majority of states. Often this limit on restoration settings means there are a limited number of beds, which creates a bottleneck for the entire process and increases jail time for these defendants as they wait for a restoration bed. These realities point to the better options of diversion from the restoration process and to community treatment alternatives whenever possible.12 Treatment should generally be provided in the least restrictive setting that is appropriate, so unless there is a safety to the community concern or other clinical issue, treatment should be in the community. State statutes and rules should clearly presume less restrictive placements, and that presumption should only be overcome when the judge, again informed by objective assessment data and input from forensic professionals, finds that restoration services cannot safely or effectively be provided in the less restrictive communitybased setting.

As community settings are developed and emphasized, care must be taken to maintain adherence to best practices and quality care. Decentralizing the provision of restoration services could potentially lead to inconsistent adherence to evidence-based practices, but that should not cause hesitance to move to a presumption in favor of community treatment. Instead, it should inform a system of accountability and appropriate oversight to ensure quality care. Uniform standards of care and consistent reliance on objective determinations of treatment placement eligibility are even more important as the number of restoration sites is increased and decentralized.

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The advantages of decentralization outweigh the consistency concerns. The opportunities for integration of long-term community treatment and support with the short-term restoration episode are tremendous. Transitions from large restoration facilities to jail, and from jail to the community are frequently catalysts for a defendant's regression and decompensation. Changes in settings, medications, and therapeutic alliances are often problematic, and those changes can be minimized if appropriate, integrated, community settings are preferred.

Perhaps the most controversial experiment in competency restoration is jail-based restoration. Several states, under pressure to find alternatives to the long waits for restoration beds in state psychiatric facilities, have attempted to provide restoration services in jail. It should be acknowledged that this strategy does usually reduce the overall number of days the defendant is detained.

There are, however, a number of concerns about this approach. First, although jails are required to provide community-based standards of mental health services, often this is not the case. Moreover, the nature of a jail’s mission for pretrial populations is to help detain defendants at risk of failing to appear and to protect public safety. As such a jail is not an appropriate setting if there is a significant need for behavioral health treatment. A recent Journal of the American Academy of Psychiatry and the Law review of best practices and recommendations for forensic evaluations in jails13 agreed with the American Psychological Association’s (APA) guidance that that competency evaluations should occur in environments that “provide adequate comfort, safety, and privacy” to ensure validity of assessments.

Surely the same notion applies to restoration treatment as well.

Perhaps the natural result of this incongruity is that jail-based restoration efforts focus more on the other two components of restoration services — legal education, and medication. As discussed below, legal education has not been found to be particularly effective. Medication in jails can be critical, but may also implicate another set of problems when jail medication formularies are limited, especially with respect to certain medications that may have better results in maintaining stability of symptoms, such as long lasting injectable medications. Instead, given the transient populations within jails, they are often set up to prescribe daily dose medications, and there may be limited options of those that are readily available.

Daily dosing has its own problems with medication lines, refusals and compliance, but also with medication continuity once a person leaves the jail and hopefully transitions to more sustainable long Transitions from term injectables.

large restoration facilities to jail and from jail to the community are frequently catalysts for regression and decompensation.

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Considering each of these factors, the recommendation is that community restoration should be the presumptive placement, and that jail-based restoration should only be considered when: > It is clear that the individual does not have a more acute clinical treatment need; > The only alternative is a wait of many months for a treatment bed that is not medically necessary; > The jail program is treatment focused and has appropriate medications available; > There are clear efforts at continuity between the restoration program and other settings where the person may be sent; and > Even then, because of the importance of addressing conditions of confinement in jails more broadly, funding separate jail restoration should be only a temporary option while other system reforms are in progress.

5. Revise restoration protocols The seminal guide to best practices in competency evaluation and restoration is the AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial.14 The authors evaluated the available research to determine best practices for, among other things, restoration approaches. While some states focus almost entirely on legal education in an effort to allow the defendant to demonstrate their ability to “consult with his lawyer with a reasonable degree of rational understanding,” others prioritize treatment of the underlying mental illness.

This should not be an either/or approach, and there is some consensus that, given that most individuals found incompetent to stand trial have challenges stemming from symptoms of serious mental illness, medication is the most important catalyst for successful restoration. One meta-analyses of the research further concluded that “(t)he benefit of adding educational programs to medication protocols for competency restoration of non- developmentally disabled defendants has not been clearly established.”15 There is an evolving recognition that there is value in all three approaches — medication, individualized treatment, and legal education, to varying degrees depending on the individual defendant’s overall needs. As such, given the value of restoration slots or beds, and given the potential for backlogs and delays to ripple through other parts of the system, care must be taken to prioritize getting defendants what they need when they need it rather than making restoration a one-size-fits-all strategy in one state hospital location.

The duration of time individuals spend in restoration programs is another important consideration. The rate of successful restoration for individuals with serious mental illness is relatively consistent across the various systems (80% to 90%), but the length of time defendants spend in restoration programs

9

around the country varies greatly. Some studies identified mean restoration periods of 60 days, while others documented mean times of a year or more.

One factor in the length of the process is the court’s involvement in oversight and monitoring. When court involvement is too passive, the length of the restoration process can be longer, and the Jackson requirement for alacrity and proportionality lands at the court’s doorstep. Active court oversight of the restoration process and collaborative involvement with treatment professionals is more likely to produce energetic restoration efforts and a more timely, effective, and constitutionally compliant process.

Court reviews of the process should occur early and often, and clinical discharge readiness decisions should be met with timely court consideration and authorization. When the courts control the back door of the restoration units, new individuals wait for admittance. Partnership with the treatment providers and trust in them to establish individual readiness for discharge from programs once clinically appropriate should be taken into account by judges.

Active court oversight of the restoration process and collaborative involvement with treatment professionals is more likely to produce energetic restoration efforts and a more timely, effective, and constitutionally compliant process.

While there is evidence that a court review of restoration status at 30 days is too soon, 45 days seems to be a potential sweet spot at which sufficient time has passed to allow medications to work and progress to be made. One of the AAPL reviewed studies found that almost half of the defendants in that sample were restored at the 45-day mark. While there is not sufficient research to recommend setting hard restoration timelines, this dynamic does have implications for case management, and perhaps initial status or review hearings should presumptively be set 45 days from the initiation of restoration services.

6. Develop and impose rational timelines Beyond the Jackson directive to limit the length of pre-trial detention, there is no specific, uniform constitutional timeline for the various stages of the competency process. In Oregon Advocacy Center v. Mink,16 the 9th Circuit, citing Jackson, found that Oregon violated a defendant’s due process rights if the defendant was not transferred to the Oregon State Hospital within seven days of a court’s commitment to the hospital for restoration. This is one of very few times a court has specified a required timeline, and that timeline only speaks to one part of the process. However, to the extent this fixed timeline poses significant logistic and resource challenges, it should serve as a catalyst for proactive collaboration among system partners to themselves develop workable and appropriate timelines rather than leave it to civil rights litigation.17

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Delays can and do occur: (1) waiting for an evaluation after competence is raised, (2) waiting for the evaluation report and for a hearing on the findings of that report, (3) waiting for a judicial decision after that hearing, (4) waiting for a restoration slot after incompetence is determined, (5) waiting for restoration status reports and hearings on those reports, and finally, (6) waiting for a final legal determination of restoration. A separate issue arises when a defendant is deemed unrestorable. The length of detention and the resolution of those cases is another issue that states should review, including an examination of the processes for potentially transitioning to a civil commitment in those circumstances.

At each of these steps in the process there is an opportunity for delay, and also an opportunity for speed and efficiency. While there is no single time-standard answer for all jurisdictions, it is crucial that individual states address this timeliness issue and establish presumptive timelines through tailored statutes or rules, as applicable. While some of the steps are largely controlled by case management decisions of the court discussed below, others are cross-jurisdictional and cross-branch issues that require the synchronization of several disparate parts. They, therefore, require collaborative consideration of each of the following timing issues: > The time from when doubt is raised to evaluation should be as brief as possible. Often defendants are incarcerated at this point, and frequently this is at a time shortly after arrest and perhaps a mental health crisis. A clinical response should be prioritized, and that response may inform the timing of an evaluation. In some circumstances it may be appropriate to wait for the defendant to stabilize, such as in the case of stimulant psychosis. > The time from the administration of the competency evaluation until a judicial determination of competence should also be brief. While largely a judicial scheduling issue, jurisdictions should ensure that evaluators, counsel, and the court all communicate about delays, and that scheduling these hearing be prioritized by each. There are also ways in which report templates and other aspects of evaluator training can facilitate quick turnaround times, and those are discussed in the next section. > Once a person is found incompetent, the Jackson considerations come into play, and the obligation to initiate restoration service promptly begins. While Mink finds that taking more than seven days to begin treatment violates the constitution, each jurisdiction (outside of the 9th Circuit) should carefully consider what timeline target makes legal and practical sense for them, while also considering that not all defendants need to go into a state hospital for restoration, and thus timely access should include access to alternative community-based restoration sites and models. > As discussed above, the first court review of the restoration process should occur quickly, as a significant portion of this population attains competence shortly after clinical stabilization, and often appropriate medication. Subsequent court reviews should also be frequent and meaningful, i.e., the court should ensure that the defendant is transported, that meaningful reports have been prepared and reviewed by all parties, and that treatment progress is maintained. Court liaisons or navigators can be particularly helpful in ensuring that these hearings are meaningful and productive, and that progress is maintained. Their role is discussed further below.

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> The maximum time a person can be maintained in a competency restoration program varies wildly from state to state. Often the possible duration is tied to maximum potential periods of incarceration, but those periods of time may be wholly incompatible with Jackson, and should be reviewed. There is also often confusion about the process to be followed when those time limits are reached — whose responsibility it is to file for a civil commitment, for example. These processes should be clear, and appropriately quick.

As difficult as that synchronization of disparate parts and interests may be, the payoffs could be huge.

A recent effort to apply mathematical modeling to delays at each part of the competency process identified some remarkable opportunities: The model validates that relatively small changes to specific variables that are determined or influenced by public policy could significantly reduce forensic bed waits. The following examples illustrate the outcomes projected by modeling data from the sample states: > Diverting two mentally ill offenders per month from the criminal justice system in Florida reduced the average forensic bed wait in the state by 75%. From an average wait of 12 days in early 2016, the average wait fell to three days. > Reducing the average length of stay for competency services by less than 2% in Texas — from 189 to 186 days — increased forensic bed capacity sufficiently to reduce bed waits from 61 to 14 days. > Increasing the number of forensic beds by 11% in Wisconsin — from 70 beds to 78 beds — reduced IST bed waits from 57 days to 14 days.18 These savings and improvements should be a strategic priority for all state courts and for our competency system partners.

7. Address operational inefficiencies At each step of the process there are opportunities for refinement. Below are examples, but these are only some of the operational opportunities to improve the overall effectiveness of the competency system.

Evaluator training, availability, and speed In many states, the availability of qualified forensic examiners causes significant delays. One common cause of the lack of availability is funding for positions and compensation rates for the examiners, both of which should be addressed, but there are other operational strategies that have worked in some jurisdictions.

For example, in Massachusetts, every district and superior court has access to same day clinical competency evaluations conducted by state behavioral health staff or contracted providers of the state behavioral health system. Although thousands are done each

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year, this allows for “screening” to take place so that only the most ill are referred for further evaluation as inpatients — where they likely clinically belong.

In Los Angeles, a small roster of psychiatrists is paid relatively well for conducting evaluations on a known schedule, for a set number of defendants, for a predetermined number of hours, at the same place each time. This predictability encourages engagement of the psychiatrists and consistency in their evaluations. Once a defendant is referred for evaluation and transported to the Hollywood court, they are Evaluator availability evaluated in the morning, the disposition is in the afternoon, and and efficiency can transportation is immediately accomplished. Not every jurisdiction may be able to achieve this level of efficiency, but the principles that also be dramatically underly this success are replicable, and more of those principles are enhanced by the discussed below.

emerging option of video forensic evaluations.

While in almost all cases the availability, qualifications, compensation, and training of forensic evaluators is not a responsibility of the judiciary, assuming control of all of those factors is an option. This would require strong clinical involvement to ensure clinical quality, but Arizona’s court system sets the qualification for evaluators, trains them, and directs payment to them. While this may be a unique circumstance, it should not be completely foreign to court systems, many of which directly employ mediators, custody evaluators, interpreters, and other direct service providers in instances where the performance of those services is integral to the operation of the courts.

Another useful strategy that endeavors to make the most efficient use of evaluator resources is the consolidation of evaluations. In some places this means bringing evaluators to the courthouse to do batched evaluations, in conjunction with a consolidated calendar to ensure sufficient volume to make it worth it. In other cases, it may mean regionalization of competency cases to bring the defendants from a number of smaller jurisdictions to one evaluation site.

Evaluator availability and efficiency can also be dramatically enhanced by the emerging option of video forensic evaluations. As more jurisdictions are using teleservices for more purposes, often behavioral health related, there is more opportunity for assessment and evaluation of those strategies. The research results so far are quite encouraging. An initial randomized control trial conducted pre-pandemic and reported in the Journal of the American Academy of Psychiatry and the Law found that using a telemedicine evaluation produced assessment scores consistent with the in-person evaluations, that patients had no preference for in-person versus remote evaluations, and that the evaluators preferred the in-person option.19 Given the rapid shift in the use of video technology for evaluations in the COVID-19 context, the preference of clinicians and courts may also evolve as more is learned about the values of more widespread use of this technology.

A 2018 review of that study and others that have followed, and the emerging legal findings, concludes that “[T]he use of (videoconferencing) can be a viable way to meet the demand for timely adjudicative

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competence evaluations… [These] evaluations make the most sense when they improve the efficiency of services while maintaining the same standards of quality of traditional evaluations...,”20 which they seem to have great potential to do.

To the extent that the obstacle to greater use of remote technology for evaluations (and other assessment and treatment) is attitudinal, recent events have likely increased everyone’s level of comfort and proficiency with virtual options.

These strategies all support the model of evaluations taking place somewhere other than in a psychiatric hospital, though around the country that is still the most prevalent practice. The other emerging custodial approach is to conduct evaluations in jails, which is an option in at least nine states. While ironically this may in fact reduce the amount of time defendants spend in jail awaiting an evaluation, there are serious questions about the appropriateness of conducting forensic inquiries in jail. An entire 2019 Journal of the American Academy of Psychiatry and the Law article is devoted to the incongruity between the professional guidelines that specify such evaluations “should take place in quiet, private, and distraction-free environments,” and the realities of a jail environment.21 Some states have office space in courthouses devoted for evaluations even if the evaluee is required to be detained in jails. However, in some jurisdictions evaluators navigate space within the jail where issues of privacy and noise can hamper quality of the assessments. More data and research on these options are needed.

Translating behavioral health system processes and requirements to a criminal justice context, and vice versa, has shown to benefit all of the system players by saving resources and more effectively delivering behavioral health services and access to justice.

Evaluation templates Regardless of how well trained an evaluator may be, different professional backgrounds, experiences, training, and preferences lead to different approaches to evaluation processes and reports. These differences can be helpful, such as the different perspectives of a psychologist and a psychiatrist. But when the reports themselves are dramatically different in content, style, and structure, delays and miscommunication may result. A number of states employ evaluation report templates, so that the readers — judges, lawyers and other clinicians — have a consistent experience in reviewing a report.

This can ensure that all required statutory elements are addressed, factual background and detail are consistent, and conclusions and recommendations are legally sufficient. Different approaches and assessment tools can still be accommodated, but the presentation would be consistent. Whether a template is used or not, there should at least be specific drafting guidelines, and adherence to those guidelines ought to be required.22

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Multiple opinion requirements The issue of how many evaluations and expert opinions are needed to make an informed decision about competency is largely an issue of local or state legal culture. Many jurisdictions are satisfied with one evaluation. Some allow for a second evaluation if an opponent disagrees with the initial results, and some jurisdictions begin with a requirement for two evaluations, and then an automatic “tie-breaker” if the opinions differ. There are some jurisdictions that allow even more than three forensic evaluations, though to what end is not clear. If more than one evaluation is required, one time-saving measure employed in some jurisdictions is to have the evaluators conduct the evaluation collaboratively, at the same single interview.

Various parties may push for multiple evaluations, including the litigants and the judge, each for various reasons. While legal customs (and the statues and rules that enshrine them) are difficult to change, two things may gradually discourage this resource drain. First, if the timelines discussed above are imposed for the evaluation process for the time from referral to report, multiple evaluations may become impractical.

Second, below is a recommendation that competency teams be deployed — a team would consist of a judge, prosecutor, defense counsel, and a small cadre of neutral, objective evaluators. Some existing programs have found that the secret to efficient and fair processing of competency cases is trust; trust developed over time by frequent interactions, and enduring relationships. If the actors all had more experience with and trust in the evaluators, perhaps there would be less of an inclination to seek redundant evaluations, resources would be saved, and timeliness enhanced.

Case managers and court liaisons Several states have begun to use court connected or court employed personnel to provide case management-like functions for the court. Colorado calls them court liaisons, Washington calls them forensic navigators, other states refer to them as boundary spanners, but the function is essentially the same: bridge the behavioral health and criminal justice systems to more effectively manage individual defendants’ circumstances.

In a competency context, this case management role can facilitate the pairing of defendants and evaluators, identify services that would allow the evaluation and restoration process to occur in the community instead of a custodial facility, ensure appropriate attention is paid to timelines and resource coordination, and generally make sure that cases do not fall through the cracks. Translating behavioral health system processes and requirements to a criminal justice context, and vice versa, has shown to benefit all of the system players by saving resources and more effectively delivering behavioral health services and access to justice.

Court case management – centralized calendars, frequent reviews, and teams How an individual judge and a court system manage competency cases can make a dramatic difference in the process.

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> Centralized calendars Calendaring practices are another area of longstanding legal culture, and change can be difficult.

Depending on the size of the jurisdiction, competency cases may be few and far between, or they may be an everyday occurrence. In either event, combining whatever cases there are and sending them to one judge (or more if the volume requires) will result in a more proficient judge.

Law school, and most law practices, do not develop fluency in issues of psychotropic medication, therapeutic alliance, the DSM-5, and the myriad of other terms and issues that are the everyday concerns of competency to stand trial proceedings. But the nuances and context of these and other issues are central to getting it right in these cases. That fluency only develops with repetition and exposure to those issues. Court staff also benefits from repetition with these terms and processes.23 Another advantage of consolidation or centralization is that the ancillary resources implicated in competency cases are just that — ancillary, and they (forensic evaluators, treatment providers, hospital staff, community providers, public defender social workers, etc.) are rarely dedicated only to these cases. Bringing them together at a consistent time and place with familiar faces and predictable processes is more efficient for them and for the court. > Frequent reviews Because of the huge impact that timeliness can have, frequent reviews at each stage can have an important effect. Cases — and people — can languish if the system players are not held accountable. The delays mentioned earlier, from referral for an evaluation to delivery of the report, from the order of commitment to restoration to transportation to a facility or to release to a community resource, and from status report to status report from a restoration services provider, all benefit from court oversight and accountability. Human nature is to procrastinate, and frequent brief but meaningful and productive court reviews provide deadlines that spur action and progress. > Teams Centralized, coordinated calendars and frequent reviews are much easier if there is a competency team — judge, prosecutor, defense counsel, and evaluator(s). This team can also include whatever other resources are involved, such as a forensic navigator or case manager, state hospital representative, local mental health provider, etc.

Some of the benefits to a team approach have been alluded to above, but essentially the advantage is proficiency. As with the judge, prosecutors and defense counsel learn about the mental health system and mental illness through experience,

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Without abdicating their legal and ethical responsibilities, team members can nonetheless reduce the nonproductive steps in the adversarial process and focus on the operant ones.

and with more experience comes the same more nuanced, contextualized understanding of competency law, psychiatry, and community behavioral health resources. That understanding allows them to be better advocates, and hopefully that leads to more just results.

A team approach also makes scheduling much easier for the court and for the other partners.

Continuances and no-shows decrease if everyone has the same calendar and the same regular, predictable schedule.

But the most important benefit of the team approach is the efficiency that comes with predictability and trust among team members. Without abdicating their legal and ethical responsibilities, team members can nonetheless reduce the nonproductive steps in the adversarial process and focus on the operant ones. That predictability and trust can lubricate the otherwise clunky competency machine and make it run more smoothly.

8. Address training, recruitment and retention of staff Many of the inefficiencies in the competency process have their roots in the lack of a sufficient behavioral health workforce. If there are too few qualified evaluators, for example, jurisdictions either lower the evaluator qualifications or they have waitlists for evaluations, or both. More forensic psychiatrists and psychologists are needed, and some systems have begun to actively incentivize that career track, but progress is slow. Communities have also expanded competency evaluations to other disciplines including social workers, and this can be another consideration. Again, with the use of video technology, more efficient access to an appropriate workforce may be facilitated.

Rural communities are particularly understaffed, and incentives to locate in those communities could be helpful. As noted, technology solutions are part of this issue, but likely cannot be the only answer. Attention to the racial and ethnic makeup of evaluators and others is also necessary, in order to promote trust and confidence in evaluators and the evaluation process.

The solutions are bigger than those that the judiciary alone can implement, but courts do have a stake in the outcome and a role in sounding the siren and focusing attention on the professional resource shortage problem.

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9. Coordinate and use data Some policymakers and funders respond most acutely to personal stories that illustrate a need, and others gravitate to data. The competency to stand trial problem certainly has no shortage of the former, but more and better data is also needed. The coordination of law enforcement, behavioral health, jail, and court data is difficult.

There are disparate data elements, definitions, client identifiers, and technical systems.

Money is one motivator for good data collection and coordination, and some of the best data come from jurisdictions where a managed behavioral health care system demands it. Arizona has such a system, and the crisis care continuum there is gaining notoriety because of those data. They show that early intervention and diversion from the criminal justice system saves money, so investment in those strategies takes priority.

The courts have a significant role in identifying common data elements and coordinating data collection with law enforcement, jail, and treatment partners.

SAMHSA developed an “Essential Measures” guide for data collection across the SIM,25 and the National Center for State Courts has a recently retooled behavioral health data elements guide as well.26 However, it is not clear that there is a consensus about what competency process data should be collected or that there is any urgency about compiling those data.27 This coordination and compilation can be a bit of a Sisyphean task, but one that state courts should nonetheless pursue to help drive system improvements.

The courts have a significant role in identifying common data elements and coordinating data collection with law enforcement, jail, and treatment partners.

10. Develop robust community-based treatment and supports for diversion and re-entry

The first recommendation above is to divert people with serious behavioral health issues and their cases from the criminal justice system, but a common refrain in the mental health context is, divert to what? 24 The simple answer is to divert to treatment, but the treatment system is often anemic at the prearrest community level, at the post-arrest correctional level, at the pre-trial and post-conviction level, and at the point of re-entry to the community. All system partners readily agree that the entire treatment continuum needs to be strengthened.

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Concomitantly, there needs to be a continuum of legal avenues to access those services. Criminal court avenues exist, albeit imperfectly, and are often used out of necessity, but a range of civil legal options that can be used to access treatment are also essential. AOT, guardianships, conservatorships, psychiatric advance directives, and other less restrictive options that can be accessed at different stages of a person’s diversion and re-entry path are essential to long-term success.

Re-entry to the community from wherever the person exits the competency process needs to be coordinated, seamless, community focused, and with abundant supports, including transitional and supported housing. As much effort needs to be made to ensure a successful community reintegration as was made to intervene in the first place, or all of the resources spent to achieve stabilization and wellness are for naught.

As judges are increasingly expected to assume a problem-solving role rather than a strictly adjudicative one, the need for appropriate treatment options becomes more imperative. It is perhaps unfair to ask judges to manage defendants with mental illness and to hold them accountable for those outcomes without providing the courts the treatment tools and dispositional resources they need. This is one reason that courts and judges have such a substantial interest in leading change in this arena.

Treatment in this context is not just strictly mental health treatment, but also involves aspects of care related to substance use disorder treatment, supports for individuals with intellectual and developmental disabilities, and culturally competent services for veterans, as well as ancillary supports like case management, cognitive behavioral therapy related to criminogenic risks and needs, and wrap around services. Homelessness is also often a companion to mental illness and arrest, and judges and communities are always in need of housing options for defendants with mental illness who are entangled in the competency web — pre-trial, and upon community reentry. Robust treatment, supervision and support options throughout the process are essential if we are to expect better system outcomes and better outcomes for the individuals involved.

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Re-entry to the community from wherever the person exits the competency process needs to be coordinated, seamless, community focused, and with abundant supports, including transitional and supported housing.

CONCLUSION The competency to stand trial process is just one segment of the broader intersection of mental health and the criminal justice system, but it is one that is squarely within the judiciary’s ambit. Significant system reform requires strong partnerships with local entities and with state entities in other branches of government.28 For both institutionally necessary and for altruistic reasons, courts and judges should embrace the issues and actively pursue solutions.29 The complexity of the system and the siloed nature of the services cry out for collaboration and for leadership; and the judiciary is in a unique position to not only convene, but to lead.

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APPENDIX A While the rules, statutes, resources, and processes related to competency to stand trial differ widely from state to state, there are common issues, and there is significant room for improvement in all states.

This checklist provides a brief, task-oriented roadmap to assessing and reforming your competency system. It should be read in close conjunction with the companion Task Force product Leading Reform: Competence to Stand Trial Systems – A Resource for State Courts, and the resources identified therein..

1. Convene an interdisciplinary team to examine all aspects of the competency system and to make and advocate for recommended changes This team should include legislators, executive branch representatives including the state mental health authority, local mental health providers, court administrators, prosecutors, defense counsel, jail administrators, state mental hospital representatives, competency evaluators, judges, and others as appropriate in your system.30

2. Review Leading Reform: Competence to Stand Trial Systems – A Resource for State Courts and the materials referenced therein Issues specific to statewide court systems are described, and the resources cited provide additional research, context, and insight helpful to court leaders and their partners. This may also be the time to consider the resources you have, and potentially to seek assistance from experts in the field, including technical assistance from the National Center for State Courts.

3. Identify and gather data related to the competency process Court filing and disposition information, jail data including screen and assessment results and relevant wait times, evaluation outcome and timeliness data, restoration outcome and timeliness data, and other overall timeliness and wait time or waitlist information.

4. Review the crisis care and justice system diversion systems for opportunities to divert people with mental illness from the criminal justice system31 5. Identify opportunities to divert defendants from referral to the competency evaluation mechanism This includes statutory or rule changes, and prosecutorial initiatives to link defendants directly to treatment rather than to an evaluation, either with a dismissal, a diversion agreement, or a referral to Assisted Outpatient Treatment, if appropriate.32

6. Identify existing competency evaluation protocols, develop outpatient community options, and create a presumption to use those community sites unless unsafe or clinically inappropriate This may require funding stream changes, and development and training of a new cohort of community-based evaluators.

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7. Identify existing competency restoration locations and processes, develop outpatient community options, and create a presumption to use those community sites unless unsafe or clinically inappropriate This may require funding stream changes, and development and training of a new cohort of community-based restoration treatment providers.

8. Revise restoration protocols and timelines Review best practices for restoration interventions and emphasize clinical treatment resources. Develop consensus about reasonable timelines for referral to and commencement of treatment, and about the reasonable duration of restoration services. Legislative change may be needed for some reforms.

9. Examine the qualifications, selection, and training of evaluators Limit the number of automatic evaluations ordered, and then set the qualifications of evaluators as “high” as feasible given a potential reduction in the number of evaluations and set firm timelines for the completion of evaluations. Create a protocol for remote evaluations, particularly for rural areas. Develop a robust evaluator training curriculum, with a requirement for continuing education.

10. Collaboratively develop an evaluation template and require its use Seek input from forensic psychiatrists, judges, prosecutors, and defense counsel to create a template that is consistent and meets legal and clinical needs.

11. Consider the creation (or expansion) of a court-connected case management role Also called forensic navigators, boundary spanners, and court liaisons.

12. Centralize or consolidate competency calendars and implement a team approach Refer cases in which competency is raised to one calendar, with the same judge, counsel, and added case management resources.

13. Establish a requirement for frequent, meaningful court reviews once a defendant is referred to restoration services 14. Identify benchmarks for process improvement using reliable data Regularly review those data to identify trends, impediments, and progress.

15. Identify gaps in the continuum of community treatment and supports for those transitioning out of the justice system, and advocate for additional services Improvements in the rest of the process won’t be sustained if defendants cycle back through the system because of a lack of community support, so specific gaps in the continuum of services should be identified and solutions advocated for collaboratively.

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ENDNOTES

Prepared by Richard Schwermer, National Center for State Courts consultant and retired Utah State Court Administrator under the auspices of the National Judicial Task Force to Examine State Courts’ Response to Mental Illness (Task Force), established on March 30, 2020 by the Conference of Chief Justices and Conference of State Court Administrators. This brief summary includes a description of the Task Force membership and charge.

https://www.treatmentadvocacycenter.org/storage/documents/emptying-new-asylums.pdf These prevalence numbers have surely only increased as a result of the COVID-19 pandemic.

Different jurisdictions use different terms for these cases. Some call them Incompetent to Stand Trial (IST), some call them aid and assist cases, others refer to them as fitness to proceed, or by a procedural rule number or statutory reference. For purposes of this paper, we refer to them as Competency to Stand Trial (CST) cases. This frame recognizes that competency to stand trial relates to competency for criminal defendants and is distinct from competency to make personal or treatment decisions that might be heard in civil courts.

A summary of that focus group discussion can be found online here.

Participants included forensic psychiatrists, researchers, state mental health directors, prosecutors, defense counsel, advocates for people with mental illness, legislators, judges, and others.

CSG drew from an extensive inter-branch and interdisciplinary advisory group to describe competency to stand trial nationally and provide ten strategies for state policymakers. The report reflects a partnership of NCSC, the National Association of State Mental Health Program Directors, and the National Conference of State Legislatures, in addition to the project conveners, the Council of State Governments Justice Center and the American Psychiatric Association Foundation through the work of the Judges and Psychiatrists Leadership Initiative. This group represents the threebranch nature of this issue, of which the courts are a critical component.

West and Midwest Region summits, focused on behavioral health issues in the courts, were conducted prior to the formation of the Task Force; the remaining regional summits are scheduled to be held in 2021 and 2022.

Subcommittee members include: Judge James Bianco, Judge Matthew D’Emic, Travis Finck, Sim Gill, Dr. Debra Pinals, Walter Thompson, and Judge Nan Waller. Additional liaison members are Lisa Callahan, Hallie-Fader Towe, and Bonnie Hoffman.

Competence to Stand Trial was published in 2020 as part of the Interim Report to the Task Force

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There is also a separate subcommittee of the Task Force focusing on diversion at all stages of the SIM, and those more comprehensive Diversion Subcommittee recommendations should be reviewed and adopted as well.

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Some jurisdictions also require that the non-adherence to treatment has been demonstrated to contributed to rehospitalizations and re-arrests.

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Los Angeles County has an impressive community restoration program that utilizes dozens of neighborhood residential settings as locations for housing, treatment, and case management.

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Distractions in Forensic Evaluations, http://jaapl.org/content/early/2019/05/16/JAAPL.003842-19

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American Academy of Psychiatry and the Law, https://www.aapl.org/docs/pdf/Competence%20to%20Stand%20 Trial.pdf

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http://www.wsipp.wa.gov/ReportFile/1121/Wsipp_Standardizing-Protocolsfor-Treatment-to-Restore-Competencyto-Stand-Trial-Interventions-andClinically-Appropriate-Time-Periods_Full-Report.pdf

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Oregon Advocacy Center v. Mink, 322 F.3d 1101 (9th Cir. 2003)

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Unreasonable delays in the evaluation and restoration processes have been the impetus for lawsuits in at least a dozen states, and most if not all of them have resulted in findings of unlawful delay.

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https://www.treatmentadvocacycenter.org/storage/documents/emptying-new-asylums.pdf

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http://jaapl.org/content/35/4/481

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Luxton and Lexcen (2018), Professional Psychology: Research and Practice Vol. 49, No. 2, 124-131, accessed at https://www.researchgate.net/publication/324488313_Forensic_competency_evaluations_via_ videoconferencing_A_feasibility_review_and_best_practice_recommendations

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Distractions in Forensic Evaluations, http://jaapl.org/content/early/2019/05/16/JAAPL.003842-19

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See e.g., Massachusetts Competency to Stand Trial Report Guidelines

Some courts use existing Mental Health Court teams to manage competency cases.

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http://www.bazelon.org/wp-content/uploads/2019/09/Bazelon-Diversion-to-What-Essential-Services-Publication_ September-2019.pdf

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https://store.samhsa.gov/product/data-collection-across-the-sequential-intercept-model-sim-essential-measures/ PEP19-SIM-DATA

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https://www.ncsc.org/__data/assets/pdf_file/0019/38026/State_Court_Behavioral_Health_Data_Elements_Interim_ Guide_Final.pdf

GAINS/PRA workbook elements

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Task Force resources for leading this reform at the state and local levels, respectively, include Leading Change Guide for State Courts and Leading Change: Improving the Court and Community’s Response to Mental Health and CoOccurring Disorders

Appendix A is a checklist for court leaders to use as a framework for beginning that pursuit.

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The Task Force resource, Leading Change for State Court Leaders provides an outline for leading broader behavioral health system change, and may be relevant for this narrower purpose as well

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Helpful resources include Crisis Services: Meeting Needs, Saving Lives and Roadmap to the Ideal Crisis System

See Implementing Assisted Outpatient Treatment: Essential Elements, Building Blocks and Tips for Maximizing Results

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www.ncsc.org/behavioralhealth

Practical Ideas for Counties to Streamline Competency Restoration and Save Money1 1. Assign One Point-of-Contact Between your County and the State Hospital. Send a letter annually to the state hospital notifying them of your point-of-contact, who should receive all communication (name, email address, fax, and phone).

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Communicate with the State Hospital via Email or Fax. Use email or fax to save wait time when the state hospital notifies the county that the defendant is ready to be transported to or from the hospital.

3. Start Medication Orders Immediately. When a person is on a competency order, consider filing an application with the probate or other appropriate court to initiate medications in custody before transport to help prevent deterioration. (These orders will require a doctor to file.)

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Urge Defense/State Attorneys to Continue to Work on the Case While Waiting for the Defendant to Return. Speed up the insanity defense process by getting the orders for insanity prior to the time the person returns. Although the report cannot be completed until competency is restored, the expert can begin to review the discovery, medical records, and any other permitted documentation before the defendant returns from the state hospital to save time on the evaluation process. Attorneys should continue working on competency cases to address discovery issues, plea offers, and all case information possible during the hospitalization to allow for speedy resolution once returned.

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Coordinate Bench Warrants. Once the contact person has received notice that an individual has been restored and can return to the jail, schedule a bench warrant within 3 days to cut time in getting the person back into the county jail.

6.

Develop a Policy of Quick Court Settings Upon Return from State Hospital or Other Competency Restoration Program. Have the county point-of-contact communicate with the court to set the defendant on a docket quickly upon returning from the state hospital or other competency restoration program. Section 32A.01 of the Code of Criminal Procedure relating to “speedy trial[s]” generally requires “the trial of a criminal action against a defendant who has been

Alyse Ferguson, Chief Attorney, Collin County Mental Health Managed Counsel, Practical Ideas for Counties to Streamline Competency Restoration and Save Money presentation at the JCMH Curriculum Committee Meeting (July 7, 2020).

determined to be restored to competency under Article 46B.084 . . . be given preference over other matters before the court, whether civil or criminal.” The only exception in terms of docket priority would be “the trial of a criminal action in which the alleged victim is younger than 14 years of age.”

There are varying deadlines depending on the size of the county. 2 7.

Develop a Policy of No Free Passes. To help prevent decompensation of the defendant, make a judicial policy that an attorney may not pass a setting on a client who has returned from the state hospital unless he or she appears before the court.

8. Hear Cases Before Medication Orders Expire. Urge the judges in your community to hear the cases of returning defendants with medication orders before the orders expire: (i) 180 days after the defendant’s return from State Hospital to jail, or (ii) upon disposition of the case. Tex. Health and Safety Code Section 574.110.

9. Set Weekly Medical Meetings to Review Specific Cases. Utilize Tex. Health and Safety Code Section 614.017 to exchange information with the LMHA(s), jail command staff, the prosecutor, and defense attorney. Use these meetings as a time to review the status of cases with competency issues. Keep a running list of the following: • • • • • •

2

Who needs to be on the competency radar?

Who has improved?

Is outpatient competency restoration an option?

Who needs to be moved?

Is it time for the prosecutor to look at a case for dismissal?

Court notifications on those who are deteriorating or at risk.

o

Reconsider defendants for outpatient restoration services after they have been stabilized in the county jail. This can shorten your jail’s waitlist for the state hospital.

o

After medical meetings, email the court any updates or reminders that action may need to be taken soon. For example, a client is deteriorating in jail or a medication order is about to expire.

TEX. CODE OF CRIM. PROC. Art. 46B.084, §§ (a) – (d); See also Brian D. Shannon, Texas Criminal Procedure and the Offender with Mental Illness at 94 – 98. Available at https://namitexas.org/texas-criminal-justice-guide/.

Criminal Defense Lawyers Project

Mental Health Seminar November 19, 2021 Beach Resort 100 Padre Blvd.

South Padre Island, TX 78597

Topic: Legislative Update

Speaker:

Shea Place

1122 Colorado St Apt 1910 Austin, TX 78701-2141 (512) 477.6424 phone shea@allenplacelaw.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Please note this video was recorded August 20, 2021, prior to the date most of the new laws were enacted on September 1st. Please review the legislative update paper on the TCDLA website for more information on these bills. Below is an update on the special sessions.

The Texas Legislature met in three special sessions in 2021. While the major issues were an election bill (which did lower the punishment for improper voting to a misdemeanor) and redistricting, these sessions also considered changes to the bail system. Also, the Governor opened the call to consider a bill concerning treatment of dogs, which he vetoed during the regular session. Here are the results of the three bills that affected the criminal justice system.

•

The Constitutional amendment to deny bail on a multitude of offenses failed to pass. In one version or another, the Legislature has considered a constitutional amendment to deny bail in regular session in 2017, 2019 and 2021 and all three 2021 special sessions.

•

SB 6, often referred to as the bail bill, did pass in the 2nd called session and will go into effect in December of 2021. As filed, there were 3 major sections of this bill and two of these sections passed: o The bill requires a public safety report, often referred to as a risk assessment, to be performed by a magistrate on all charges Class B or higher. OCA will develop and assist counties in this endeavor. The bill also reforms training for magistrates. o The bill restricts the usage of personal bonds on a long list of offenses as well as limiting the usage of personal bonds on individuals charged with probation violations in specific circumstances. o The third section of the bill, which did not pass, was a limitation on charitable bail organizations. Although the section of the bill limiting these organizations did not pass, the bill does provide some additional reporting requirements for charitable bail organizations. o The following sections are modified or added by SB 6: Code of Criminal Procedure: 1.07/15.17/17.02/17.021/17.03/17/0501/17.071/17.15

•

SB 5, passed in the 3rd called session, prohibits tethering unattended dogs outdoors without certain protections and bans restrictive restraints. This law becomes effective in January 2022 and can be found in Health and Safety Code 821.101/102 and 103.

Criminal Defense Lawyers Project

Mental Health Seminar November 19, 2021 Beach Resort 100 Padre Blvd.

South Padre Island, TX 78597

Topic: Distinguishing between Mental Illness and Incompetency

Speaker:

Kyle Clayton

11882 Greenville Ave. Suite 107 Dallas, TX 75243 (972) 644.8686 phone kclayton@priceproctor.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Mental Health Seminar November 19, 2021 Beach Resort 100 Padre Blvd.

South Padre Island, TX 78597

Topic: Menta l Health in a Jail Setting

Speaker:

Chief Johnny Jaquess 4300 Community Ave. McKinney, TX 75071 jjaquess@co.collin.tx.us

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Mental Health Seminar November 19, 2021 Beach Resort 100 Padre Blvd.

South Padre Island, TX 78597

Topic: Lawyer Wellness

Speaker:

Erica Grigg

3303 Nothlad Drive Suite 205 Austin, TX 78731 (512) 474.6061 phone Erica.Grigg@TlapHelps.Org

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA

OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases.

From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education.

TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas.

TCDLA continues to foster these relationships and develop additional affiliations.

As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

WWW.TCDLA.COM

TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers.

New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments.

With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form).

Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported.

The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission.

Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements.

Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county.

As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process.

Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate.

The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study.

Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases.

While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases.

The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions.

To learn more about this research please visit the study website at http://texaswcl.tamu.edu.

WWW.TIDC.TEXAS.GOV

MARCH 2014

WWW.TCDLA.COM

Texas Criminal Defense Lawyers Educational Institute Make a Difference Support an Attorney The Texas Criminal Defense Lawyers Education Institute (TCDLEI) is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staff. Your generous tax-deductible contribution to the Texas Criminal Defense Lawyers Educational Institute can be applied in several ways to fund a variety of legal and educational services for our membership.

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TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION 6808 HILL MEADOW DR., AUSTIN, TEXAS 78736