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Judicial Resource Safeguarding the Right to Counsel for All 2006

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A Judicial Resource: Protecting
Constitutional Rights of Defendants
with Mental Impairments


efendants with a serious mental illness (schizophrenia, bipolar disorder, or major
depression) comprise approximately 16 percent of those involved in the criminal
justice system. Studies show that another 4 to 10 percent of defendants have mental
retardation, however these estimates may be low due to poor screening instruments.1
With a quarter of all defendants at high risk of having difficulty understanding and protecting
their constitutional rights, it is imperative that law enforcement, attorneys, and judges to take an
active role in ensuring that due process guarantees extend to all who come through the system.
Under the Texas Code of Criminal Procedure, judges participate in protecting the
constitutional rights of defendants. For example, provisions in the Code allow competence
to be raised by the court sua sponte, and require admonishments be read to the defendant
so that the court can convince itself of a “knowing waiver” of rights before a plea may be
accepted.2 This makes it important for judges to recognize signs of mental illness or mental
retardation, as well as how a mental impairment may affect a defendant’s ability to understand
and protect his or her constitutional rights.

Recognizing Mental Illness and Mental Retardation
It is critical that judges and other court personnel adopt procedures and employ screening
tools that can help accurately identify defendants with a mental illness or mental retardation.
While most jails employ some form of screening, these tools are often inadequate and may allow
some defendants to pass through the legal system without their mental disability being identified.

Mental Illness
According to the Texas Health and Safety Code, a mental illness “substantially impairs a
person’s thought, perception of reality, emotional process, or judgment; or grossly impairs
behavior as demonstrated by recent disturbed behavior.”3
A mental illness in no way affects a person’s intelligence (in fact, many persons with mental
illness have high intelligence), but a “substantially impaired” thought process or perception
of reality may affect the ability of that person to perceive accurately what is going on around
him or her. For example:

• Schizophrenia impairs a person’s ability to think, make judgments, respond emotionally,
remember, communicate, interpret reality, and/or behave appropriately so as to grossly
interfere with the person’s capacity to meet the ordinary demands of life. Symptoms

Continued on following page

A Judicial Resource
may include poor reasoning, disconnected and
confusing language, hallucinations, delusions, and
deterioration of appearance and personal hygiene.4

• Bipolar Disorder or Manic-depressive Illness is

characterized by a person’s moods alternating
between depression and mania (exaggerated
excitement). The manic phase of bipolar disorder
is often accompanied by delusions, irritability,
rapid speech, and increased activity.5

• Major depression is much more severe than

common feelings of temporary sadness. People
suffering from major depression may completely
lose their interest in daily activities; feel unable
to go about daily tasks; have difficulty sleeping;
be unable to concentrate; have feelings of
worthlessness, guilt, and hopelessness; and
may have suicidal thoughts.6

Some Texas courts partner with mental health
personnel in the community to help accurately screen
defendants for mental illness and mental retardation.

Mental Retardation
Mental retardation is a developmental disability that
generally refers to substantial limitations in a person’s
present levels of functioning. These limitations may
be manifested by: 1) delayed intellectual growth;
2) inappropriate or immature reactions to one’s
environment; and/or 3) below average performance
in academic, psychological, physical, linguistic, and
social domains.7
The Texas Health & Safety Code defines mental
retardation as “significantly subaverage general
intellectual functioning that is concurrent with
deficits in adaptive behavior and originates during
the developmental period.”8
Persons with mental retardation have a limited
ability to learn and process information.9 While
mental illness may be temporary, mental retardation
is usually lifelong.

Mental retardation is:
• Rarely identified at the time of the arrest.
• Rarely identified at the time of police

• Rarely identified at arraignment.
• Infrequently identified at pretrial.
• Occasionally (10%) identified at trial.
• Often not identified until the person is in
prison or even on death row.

Mental retardation is usually determined based on
both an IQ test (with a score of around 70 or below)
and a measurement of a person’s adaptive behavior.10
Adaptive behavior describes the way people care
for themselves and relate to others in the course
of daily living.11 Because mental retardation is a
developmental disability, onset must have occurred
before the person’s 18th birthday.12
Even “mild” mental retardation constitutes a
substantial disability. An IQ in the 60 to 70 range is
approximately the scholastic equivalent to the third
grade.13 In fact, the American Association on Mental
Retardation discarded the “mild-moderate-severeprofound” classification system due to its concern
that “mild mental retardation” was incorrectly
viewed as something less than a “considerable
There are several characteristics of persons with
mental retardation that make in difficult for them to
understand and protect their constitutional rights.
These include:
• Acquiescence. When asked a yes/no question,
persons with mental retardation are significantly
more likely to answer “yes” regardless of the
appropriateness of the response.

A Judicial Resource
• Concrete thinking. Persons with mental
retardation have difficulty thinking abstractly.

Mental Illness & Mental Retardation May
Affect Due Process

• Outer-directed behavior. Failures in academic
and social settings may cause some individuals
with mental retardation to rely more on social
and linguistic cues provided by others when
they are trying to answer questions.

A mental illness or mental retardation may affect
a defendant’s ability to understand his/her rights,
including Miranda warnings.16 Also potentially
compromised are a defendant’s ability or capacity to:
1) make “voluntary” statements or confessions; 2) give
a reliable statement; 3) understand court proceedings;
4) knowingly, voluntarily, and intelligently waive
constitutional rights, including the right to counsel,
right to be present, right to trial and appeal, and right
to testify; and 5) meaningfully participate in trial
preparation and at trial.17

• Strong desire to please others & deference to
authority figures. Many persons with mental
retardation want to provide a “socially desirable”
response, so much so that they often will answer a
question incorrectly just because they think they
are telling the interviewer what he or she wants
to hear. They also may defer to an authority
figure’s version of events, even if it is inaccurate.
They are more likely to be influenced by leading
questions and coercion during an interrogation.
• Difficulty with social intelligence. Persons
with mental retardation cannot easily decipher
the motives of other people and act on that
information appropriately. As a result, they are
more easily deceived than the general population.
• Problems with language and attention span.
Persons with mental retardation often have
difficulty expressing themselves and understanding
the ordinary flow of language. They may have
short attention spans and have difficulty
remembering events.
The stigma of mental retardation is so great that
individuals with mental retardation will often mask
their disability with a “cloak of competence” in
order to avoid its detection. This is true even when
the consequences of having the disability identified
would be beneficial to the person.
Persons with mental retardation often have learned
ways to avoid having their disability detected, and
will go to great lengths to cover it up,15 making the
defendant vulnerable at keys points in the criminal
justice system.

Steps Judges Can Take To Protect
Due Process
There are several points at which a judge must
ascertain whether a defendant is competent to
protect or waive constitutional rights—and then
ensure that legal protections are met:

• Miranda warnings. At the defendant’s initial

court appearance following arrest, the magistrate
is required to inform the defendant of his or her
Miranda rights.18

• Assistance requesting counsel. The magistrate
also must ensure that, if needed, the defendant
receives help filling out forms to request
appointment of counsel.

• Ordering an examination. If the magistrate has

reasonable cause to believe that the defendant has
a mental illness or mental retardation, article
16.22 of the Code of Criminal Procedure
requires the magistrate to order an examination
by the local MHMR.19

• Release on personal bond. If a 16.22

examination reveals a mental illness or mental
retardation and the examining expert recommends
treatment, the magistrate is required to release
the defendant on personal bond (unless good
cause is shown otherwise) if the defendant is

A Judicial Resource
competent, is not charged with a violent offense
(the list of offenses is included in the statute), and
the local MHMRA determines that appropriate
community-based services are available.20

in person in writing in open court, and the
court must enter its consent and approval on the
record.23 This is done to ensure a knowing and
voluntary waiver of the right to jury trial.

Diverting the defendant away from jail and into
community-based treatment ensures that he or she
receives proper services and/or medication so that
the defendant does not decompensate and become

• Competency. A defendant’s competence to stand

• Guilty plea protections. If the defendant enters

a guilty plea at arraignment, the court is required
to admonish the defendant according to art.
26.13 of the Code of Criminal Procedure.21 The
statute does not allow the court to accept a guilty
plea “unless it appears that defendant is mentally
competent and the plea is free and voluntary.”22

• Jury trial protections. If the defendant wishes

to waive his right to a jury trial, it must be done

trial may be raised by the court at any stage of
the proceedings.24

• Pre-sentence investigation. If a defendant who

has been convicted of a felony appears to the judge
to have a mental impairment, the pre-sentence
investigation must include an evaluation
which determines defendant’s IQ and adaptive
behavior score.25

Ensuring the integrity of the judicial system relies on
all of its stakeholders to be vigilant to the problems
some defendants may have in safeguarding their
constitutional rights.

Deborah Fowler
Legal Director
Texas Appleseed
1 T A, M I, Y C  
C L ( . ); T A, O 
D: J  D  M R
2 T. C C. P. art. B.().
3 T. H  S C art. .().
4 T A, M I, Y C,  
C L, supra n. , at .
5 Id.
6 Id.
7 T A, O  D: J  D
 M R  ().
8 T. H  S C A. § ..
9 T A, supra n. .
10 Id. at 6-7.
11 Id.
12 Id. at 8.

13 Id. at 8.
14 Id. at 8.
15 Id. at 15.
16 Id. at 15. Miranda warnings are written at the 7th grade reading
level–posing a significant challenge to anyone with an intellectual
17 Id. at 11-20.
18 T. C C. P. art. .()
19 T. C C. P. art. .
20 T. C C. P. art. .
21 T. C C. P. art. ..
22 Id. at art. .(b).
23 T. C C. P. art. 1.13(a); see also Sluis v. State,
11 S.W.3d 410, 412 (Tex. App. – Hous [14th Dist.] 2001, no pet.).
24 T. C C. P. art. B..
25 T. C C. P. art. . §(i).

Safeguarding Right to Counsel for
Defendants With Mental Illness or
Mental Retardation
“Even the intelligent and educated layman has small and sometimes no skill in the science of law. If
charged with crime, he is incapable, generally, of determining for himself whether the indictment is
good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be
put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant
to the issue or otherwise inadmissible.... Without [the guiding hand of counsel], though he be not
guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
- Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963)
(quoting Powell v. Alabama, 287 U.S. 45, 68-69 (1932)).
In most Texas counties, fewer than 10 percent
of misdemeanor defendants facing possible
imprisonment receive appointed counsel.1 A number
of other defendants retain counsel or freely choose
to represent themselves.
However, across Texas, monitors have observed
courts routinely accepting unrepresented guilty pleas
without obtaining constitutionally valid waivers of
the right to counsel or complying with state indigent
defense laws. Defendants with mental health issues
are particularly vulnerable to waiving their right to
counsel without understanding the consequences.
Defendants with mental illness or mental retardation
may be incapable of exercising their right to counsel
if a magistrate sends them back to jail to fill out
a counsel request form without providing them
“reasonable assistance” in completing such forms as
required by law.2
The rights of such defendants are further
compromised in courts where prosecutors and judges
spend only a few minutes with an unrepresented

defendant before entry of a plea. Not only may
defendants’ mental health issues go unidentified, but
such defendants may believe they must discuss their
case with the prosecutor — particularly in those
courts where the prosecutor calls the docket and
manages the courtroom, or where the judge does
not consider counsel requests until every defendant
has been contacted by the prosecutor with a plea
bargain offer.
Failure to obtain a valid waiver of the right to counsel
harms defendants, but it also creates significant
liabilities for Texas counties by undermining the validity
of convictions and exposing judges and prosecutors
to potential legal and/or disciplinary action.
Courts can protect defendants and the integrity of
their own proceedings by taking precautions against
involuntary waivers of the right to counsel:

• In most counties, the procedures followed at

magistration are not sufficient to elicit a valid
waiver of the right to counsel.3 Thus, the court
Continued on following page

Safeguarding Right to Counsel
of jurisdiction is responsible for obtaining a
waiver even if a defendant already appeared
before a magistrate for an article 15.17 hearing
and did not request counsel.

• The court cannot assume that a defendant who has

not asked for counsel has validly asserted the right
to self-representation. Prior to self-representation,
the right to counsel must be affirmatively waived.4

• No contact between unrepresented defendants

and prosecutors should be allowed before
obtaining a valid waiver of the right to counsel.
Failure to obtain a waiver before prosecutorial
contact can raise doubts about the voluntariness
of any subsequent waiver and expose the
prosecutor to disciplinary action.5

• All requests for counsel, including oral requests,

should be documented. No waiver of the right to
counsel should be elicited after a defendant has
requested counsel. Any waiver initiated by the
state after a request for counsel has been made
is invalid per se.6

Case Study: Is Justice Being Served?
Ray (not his real name) is a 17-year-old diagnosed
with major depression and dysthymic disorder.
He entered a vacant, unlocked apartment in his
complex, and subsequently was charged with
criminal trespass, a class B misdemeanor.
Ray’s mother accompanied him to the courthouse
for his first court appearance. He did not have
enough money to hire a lawyer and, in the absence
of counsel, his mother planned to help him explain
his mental health issues to the court. Ray also
needed his mother’s help to fill out the paperwork
necessary to request a court-appointed lawyer, but
court personnel prevented her from entering the
courtroom with her son.

• Written documents should not be relied upon

While he was on his own in the courtroom, Ray
was encouraged to talk to a prosecutor and evaluate
a plea bargain offer. The court did not elicit an
effective waiver of the right to counsel before he
spoke to the prosecutor. Neither the court nor the
prosecutor recognized that Ray had mental health
issues that might impact his ability to knowingly
waive counsel or understand the proceedings
without the assistance of counsel. When he came
out of the courtroom, his mother learned Ray had
pleaded guilty and that he had not been given a
court-appointed lawyer.

• Any defendant requesting court-appointed

Ray has not been able to get a job since he entered
his guilty plea. He currently is on probation, and his
mother is worried that he will get into more trouble
soon because he is unable to pay his probation fees
without a job.

exclusively when obtaining a waiver of right to
counsel. Defendants may have mental health
or literacy issues that prevent them from
understanding the written waiver, and courts
look beyond written waivers to surrounding
circumstances when evaluating the validity
of an alleged waiver.7
counsel should receive reasonable assistance in
completing counsel request forms. A correctly
completed counsel request form is not
required in order for a request for counsel
to be constitutionally valid.

Because of the questionable validity of any waiver of
the right to counsel obtained from a defendant with
mental illness or mental retardation, courts should

“[The court]...did this to my son without knowing
about his deeper issues,” Ray’s mother said. “They set
up my son to fail.”

Safeguarding Right to Counsel
adopt procedures that require the appointment
of counsel for defendants who are suspected of
being mentally incapable of requesting counsel
for themselves. Many counties have included this
requirement in their indigent defense plans.8

defendants with mental health issues. Not every
defendant will choose to have a lawyer, but courts
must ensure that decisions to waive the right to
counsel and to assert the right to self-representation
are knowing and voluntary.

Proceeding without counsel holds serious
consequences for the large number of criminal

Andrea Marsh
Texas Fair Defense Project

1 Misdemeanor appointment rates can be calculated using caseload
and appointment information reported by Texas counties to the
Office of Court Administration, which is available at http://tfid.
2 T. C C. P. art. 15.17(a).
3 Cf. Iowa v. Tovar, 541 U.S. 77 (2004).
4 Faretta v. California, 422 U.S. 806, 835 (1975).

Dominic Gonzales
Fair Defense Project Director
Texas Criminal Justice Coalition


T. D R. P ’ C 3.09.
Michigan v. Jackson, 475 U.S. 625, 635 (1986).
See id.
See T E J C  T A, Q 
I C P G I D  A
C C 5 (2002).

J. Chrys Dougherty,
Chair Emeritus

Graves, Dougherty,
Hearon, & Moody* Austin

R. James George,

George & Brothers, LLP,* Austin

Ronald Lewis,

Marshall & Lewis, LLP,* Houston

Joe Crews,

Crews & Elliott, P.C. ,* Austin

Michael Lowenberg,
Immediate Past Chair

Gardere Wynne Sewell LLP, * Dallas

Sarah J. Clark

Mark Curriden

Vinson & Elkins, LLP,* Dallas

Allene D. Evans

Perry & Haas, L.L.P. ,* Austin

David Gerger

David Gerger & Associates,* Houston

Robin Gibbs

Gibbs & Bruns L.L.P. ,* Houston


is a public interest organization that engages
the volunteer efforts of lawyers and other professionals to pursue systemic change
to achieve greater justice for Texas’ most vulnerable populations.
Texas Appleseed would like to thank Andrea Marsh and Dominic Gonzales for their
contributions to this monograph. We also would like to thank the members of our
Steering Committee: Judge Gladys Burwell, Probate Court of Galveston County;
Judge Nancy Hohengarten, Travis County Court at Law #5; Judge Philip Kazen,
227th Criminal District Court, Bexar County; Judge Jan Krocker, 184th Criminal
District Court, Harris County; Judge Reva Towslee-Corbett, 335th District Court,
Bastrop County; Judge Martha Trudo, 264th District Court, Bell County; and
Judge Kristin Wade, County Criminal Court of Appeals, Dallas County.
We are also grateful to our Advisory Committee: Daniel H. Benson, Paul Whitfield
Horn Professor of Law, Texas Tech University School of Law; William J. Edwards,
Deputy Public Defender, Los Angeles County, CA; David Evans, Executive
Director, Austin Travis County MHMR; Jaime Gonzalez, Chief Public Defender,
Hidalgo County, TX; Beth Mitchell, Senior Attorney, Advocacy, Inc.; James R.
Patton, Ed.D., Adjunct Associate Professor, The University of Texas at Austin;
Brian D. Shannon, Associate Dean for Academic Affairs; Susan Stone, J.D., M.D.,
Executive Coordinator, Mayor’s Mental Health Task Force Monitoring Committee;
Charles “Tex” Thornton, Professor of Law, Texas Tech University School of Law;
Sarah Trimble, Assistant Public Defender, and Walter Norris and Karen Thompson,
Caseworkers, Mental Health Unit, Dallas County Public Defender.

Sean Gorman

LeBoeuf, Lamb,
Greene & MacRae, LLP,* Houston

Carla Powers Herron

Shell Oil Company, Houston

Gregory Huffman

Thompson & Knight LLP,* Dallas

Tommy Jacks

Jacks Law Firm, Austin

Susan Karamanian
Washington, D.C.

Charles Kelley

Mayer, Brown, Rowe & Maw LLP,*

Layne Kruse

* * * * * * * * * * * * * * * * * * * * * * * * * * *

Fourth in a series. For copies of other monographs,
A Better Model: Ensuring Equal Justice for Persons
with Mental Illness & Mental Retardation
Judicial Options: When Clients are Incompetent to Stand Trial
Judicial Options: Personal Bond Statutes and Defendants
with Mental Illness or Mental Retardation

Fulbright & Jaworski L.L.P. ,* Houston

Benigno (Trey) Martinez
Martinez, Barrera &
Martinez, L.L.P. ,* Brownsville

Tracy McCormack

see our website,
* * * * * * * * * * * * * * * * * * * * * * * * * * *

University of Texas School of Law, Austin

Carrin F. Patman

Bracewell & Giuliani, LLP,* Houston

Thomas P. Perkins, Jr.

David Sharp

Beirne, Maynard & Parsons, L.L.P. ,*

Allan Van Fleet

Greenberg Traurig, LLP,* Houston

Mark L. D. Wawro

Susman Godfrey L.L.P. ,* Houston

Luis Wilmot

 E6HI R>K:GH>9: DG>K:, SJ>I: 

San Antonio

*affiliations listed for
identification only

December 2006