The courtroom does not pause for panic attacks, flashbacks, or delusions. It moves on a timetable with a dress code, while the mind sometimes moves off-road without a map. When a person with a serious mental health condition is charged with a crime, a criminal defense lawyer has to straddle both worlds. The job is to translate psychological reality into legal terms, to make judges and juries see the person behind the charge, and to fashion outcomes that are both lawful and humane. That sounds lofty. On a Tuesday morning in arraignment court, it looks like a stack of records, a psychiatrist on hold, a skeptical prosecutor, and a client who trusts you enough to tell the truth.
Mental health in criminal cases isn’t a niche topic. Rough estimates put the prevalence of serious mental illness among incarcerated people between one in six and one in four, depending on the facility and the study. Jail cells do not make good clinics. Early intervention can spare a person years behind bars and save the community money and harm. But you need someone who knows the terrain. That someone is often a criminal defense lawyer who has built muscle memory around questions like: Is this capacity, culpability, or care problem? Do we press hard on insanity, or aim for treatment court? Which expert actually understands schizoaffective disorder and can survive cross-examination?
Let’s walk through how a seasoned defense attorney threads that needle, from the first uneasy meeting to the closing argument that can change a life.
The first conversation: listening for what isn’t said
You do not start with diagnoses. You start with the story. The file says burglary at 3 a.m., broken window, house vacant. The client says, “Someone was chasing me,” then stares at the floor. A good criminal defense lawyer listens for gaps and loops: repeated references to being watched, long unexplained stretches of time, a history of lost jobs after strange incidents, prescriptions that stopped six months ago because “they made me slow.” Sometimes the facts read like a crime report, other times like a clinical vignette disguised as trespass.
I once met a client who had been arrested for shoplifting a dozen canned soups and a ladle. He insisted he was preparing for “the storm.” He lived alone, slept three hours a night, and had not seen a doctor since his father died. He didn’t ask for a plea deal. He asked whether the court would allow him to keep a backpack packed by the door. The most important thing in that first hour was not the charge. It was the why. The why determines everything that follows.
Lawyers are not diagnosticians, and we shouldn’t pretend to be. But we can pick up risk flags: a history of psychiatric hospitalizations, traumatic brain injury, prior mental health diversion, suicide attempts, current medication, voices or visions, profound mistrust of institutions. Sometimes the flag is quieter: a neat person now disheveled, or a nervous laugh while describing a violent incident. These cues push the case toward evaluation.
Competency: the gate that controls the road ahead
Before we argue insanity, before we talk plea offers, we have to ask a procedural question: can this client rationally understand what is happening and assist in their defense? Competency is the ticket to ride the criminal process. If the client cannot understand the charges, the roles of courtroom players, or the stakes, the case pauses. This is not mercy. It is due process.
The standard differs by jurisdiction, but the heart of it is practical: Can the person talk to their lawyer in a way that makes sense? Can they weigh options, even if they choose badly? I have had smart clients who were floridly psychotic that week and could not track a five-minute conversation. I have also had clients with low IQs who were rock-solid competent, realistic about risks, and better at spotting bad plea offers than some lawyers.
A defense attorney who suspects incompetency should request a formal evaluation, usually by a court-appointed psychologist or psychiatrist. That request is sometimes unpopular. Prosecutors roll their eyes and whisper “delay tactic.” Judges worry about crowded dockets. But a fair process depends on a rational participant. If a client is found incompetent, the case pauses for restoration, which can mean medication, therapy, or education about court. Good lawyers do two things during restoration. First, they keep the client engaged, because nothing erodes trust faster than months of silence. Second, they keep the case warm, collecting records and interviewing witnesses, so that when competency is restored, they are not starting from scratch.
Insanity: narrow, technical, and sometimes right
Insanity defenses are not get-out-of-jail-free cards. They are legal standards with sharp edges. The most common flavors in the United States say, in essence, that at the time of the offense, because of a severe mental disease or defect, the person either did not know what they were doing, or did not know it was wrong. That is not the same as “was mentally ill.” You can be very ill and still legally sane. You can also be intoxicated and delusional for reasons unrelated to a mental disease and still not qualify.
Mounting an insanity defense requires nerve and paperwork. You need comprehensive records: hospitalizations, medication history, therapy notes, affidavits from relatives. You need an expert who knows how to explain complex states of mind to ordinary people. And you need to prepare for a fight, because once you raise insanity, the prosecution gets its own expert, and your client’s mental health becomes fair game.
There is also the practical question of outcome. A not guilty by reason of insanity verdict does not mean home by dinner. It usually means commitment to a secure hospital with periodic reviews. That hospital can hold a person longer than the prison would have. Some clients prefer a defined prison term to an open-ended hospital commitment, especially if they fear forced medication. Others find treatment humane and stabilizing. The lawyer’s role is to lay out the trade-offs candidly and align the strategy with the client’s values, not the lawyer’s comfort.
Diminished capacity and intent: when the mind fogs the element
Not every case is about legal sanity. Often, the mental state issue is narrower and more surgical. Many crimes require proof of a specific intent: intent to steal, to kill, to defraud. If a person’s mental condition made that specific intent unlikely, the offense might drop from burglary to trespass, or from murder to manslaughter. That shift can change a sentence from decades to years.
This is where a defense attorney earns the fee. The question is, what was the mental movie running in the client’s head at the critical moment? Did the client break the window to escape a persecutor only he perceived, or to take a television? Was the fatal blow an overreaction during a psychotic break, or a calculated ambush? Evidence matters. Text messages, surveillance footage, prior conduct, symptom timeline. A psychiatrist can explain how auditory commands can swamp judgment, but a jury will be more moved by a neighbor who says the client spent hours pacing and talking to no one the night before.
Diminished capacity defenses live or die on clarity. Jurors can handle nuance if you hand it to them in a straight line: this disease looks like this; it matters in this specific way; it explains this action but not that one. A criminal defense lawyer who drifts into jargon loses the room and the client along with it.
The power of social history
Judge the person, not just the act, is an easy slogan. Doing it well takes work. A mitigation investigation crafts a narrative that connects the dots: childhood trauma, poverty, early substance use, untreated bipolar disorder, the first arrest, the first hospitalization, the first medication that worked, the month it ran out. For some clients, you can literally map symptom flare-ups against eviction notices and petty offenses. Courts respond to detail. They do not respond to generic pleas for mercy.
I worked with a veteran who had been honorably discharged with undiagnosed PTSD. He drank to sleep, then to wake. He had three misdemeanors in two years, each one more frantic than the last. The police reports read like a guy who couldn’t handle his liquor. His VA records told a different story: nightmares about a particular road outside Kandahar, a startle reflex that could rattle windows, a list of medications that would knock a horse off its feet. With those records in hand, the prosecutor shifted from reflexive toughness to grudging empathy. The judge gave probation with treatment conditions. That was not charity. It was precision.
A good https://penzu.com/p/ac83b6853d30bfa4 social history is not an excuse machine. It is a context engine. It gives the court a reason to choose a path that fits the person and protects the public.
Experts: choosing, preparing, and surviving cross
Experts can make or break the mental health defense. Not every brilliant clinician is a good witness, and not every smooth witness can handle technical questions. A criminal defense lawyer needs to vet experts for three things: clinical rigor, forensic experience, and courtroom stamina. An expert who has published on psychosis but falls apart when asked about malingering will not help. An expert who testifies every week for one side will be painted as a hired gun.
Preparation is mutual. You give the expert complete records, not a curated folder that supports your theory. If there is a damning jail call where the client sounds calculating, disclose it. Better to workshop the problem than have it explode at trial. You also need to prepare your client for the evaluation. That does not mean telling them what to say. It means explaining the process and the stakes, so they are not defensive or evasive. Honesty helps everyone, even when the truth is messy.
On cross-examination, prosecutors love hypotheticals. They strip away facts, add a few spicy details, and hope the expert sticks to a position that looks silly in the new setting. A well-prepared expert stays moored to the actual record and refuses to play pretend. The jury will forgive precise limits. It will not forgive an expert who looks like an advocate in a lab coat.
The prosecutor’s perspective: anticipate it, address it
Most prosecutors are not villains. They worry about safety and fairness, and they have seen too many defendants wave the word “depression” like a hall pass. A mental health defense that insults their intelligence will be swatted away. A defense that faces the messy facts and offers a concrete plan gets traction.
Think about what keeps a prosecutor up at night. Recidivism, victim impact, headlines. If your client assaulted a stranger in a psychotic break, then refused medication, the government will fear a repeat. Meet that fear with something sturdier than hope. Offer a treatment plan with specifics: provider names, appointment dates, medication monitoring, housing stability, community support. Include verification mechanisms. If the plan depends on a bed at a facility with a three-month waitlist, don’t promise miracles. Identify interim steps that reduce risk.
When you must try the case, address the state’s theme before they do. Jurors tend to believe the first coherent story they hear. If the state’s story is, “He planned this,” then you must show why the evidence looks like planning but is not. Maybe the notes on a phone are intrusions from a manic episode, not a blueprint. Maybe the multiple visits to the scene are perseveration, not surveillance. Yes, the line is thin. But a thoughtful defense bridges thin lines with facts, not flourishes.
Juries: what they understand, what they fear
Most jurors know someone with anxiety or depression. Fewer have seen psychosis up close. Hollywood has not helped. Jurors may fear unpredictability more than malice. They also fear being manipulated. A criminal defense lawyer must therefore teach gently. Avoid buzzwords. Build in examples from everyday life before widening the frame. Remind them that the law sets the bar, and that bar is not sympathy. Respect the difference, then show how your client clears the legal threshold.
People tolerate nuance if the narrative has anchors. Show them stable markers: documented hospitalizations, consistent symptoms, objective testing, timelines. If the client improved on medication, explain what changed and why. If symptoms wax and wane, anchor the offense in a documented high point of illness. Do not sanitize ugliness. Acknowledge harm. Jurors lean toward defendants who accept responsibility for actual consequences even while disputing legal culpability.
Sentencing: where most mental health work pays off
Most cases resolve before trial. Sentencing becomes the fulcrum. Here, the lawyer’s job shifts from combat to choreography. Weaving together expert reports, treatment options, family support, and risk mitigation, you present a plan that a judge can sign without holding their breath.
This is where numbers matter. Judges like specifics: therapy weekly for 12 months, medication management biweekly, compliance checks monthly, residential program for 90 days, then transitional housing for 6 months. They want names and contacts. They want to know who will drive the client to the appointment the week after release. They want measurable benchmarks and consequences for noncompliance. A promise without a plan is a shrug in a suit.
I once proposed a hybrid sentence for a client with schizoaffective disorder who had an assault on his record but a clean year on depot medication. The plan had three planks: a short jail term to satisfy the retributive itch, immediate transfer to a dual-diagnosis program with a guaranteed bed, and a graduated reporting schedule coordinated with the clinic. The judge asked five pragmatic questions about transportation, relapse, and bed availability. We had answers. He signed.
Specialty courts and diversion: not a silver bullet, but a useful tool
Mental health courts and diversion programs vary widely. Some are excellent, staffed by clinicians who understand relapse and staffed by judges who know the difference between a slip and a slide. Others are box-checking factories that punish symptoms. A criminal defense lawyer scouts these programs like a recruiter. Who runs them? What are the success rates? How often do they terminate participants? What happens on a bad month?
Diversion can be pre-plea or post-plea. Pre-plea is kinder to records but riskier for prosecutors. Post-plea gives the court leverage through a guilty plea held in abeyance. Both models can work if the program fits the client, not the other way around. A person with chronic paranoia might fail in a group-heavy program but thrive with intensive one-on-one therapy and medication support. A lawyer who forces a square peg into a round diversion slot sets the client up to fail, then takes a victory lap on day one. That is malpractice in a nice suit.
Substance use, dual diagnosis, and the messy middle
Mental health issues and substance use often travel together. Courts sometimes treat them like a married couple that should quietly solve their problems in the hall. The law does not like intoxication as a defense, and juries do not like defendants who seem to have chosen the fuel that lit the fire. Yet anyone who has worked with psychosis knows that people self-medicate with whatever is at hand. Sorting intent from intoxication is hard. Avoid simple slogans. Acknowledge the role of substances and explain how they interact with the underlying illness. If the medication regimen reduced the need to use, show that arc with dates and dosages. If the client relapsed after a medication change, trace the sequence. Complexity handled cleanly can be persuasive.
Clients who decline help: autonomy and risk
Some clients refuse treatment. They do not like side effects, or they mistrust doctors, or symptoms tell them medication is poison. The law respects autonomy more than it respects a lawyer’s anxiety. Unless the client is incompetent or a court has ordered treatment, you cannot force it. That leaves the defense in a tricky bind. Do you push a mental health defense that highlights behavior your client will not change? Or do you adjust the plan to reduce risk without medical intervention?
This is where harm reduction makes sense. Housing stability, employment, family structure, and predictable routines can buffer symptoms. Conditions like curfews or stay-away orders from triggers can help. The plan may be less elegant, but an imperfect plan that a client can live with beats a perfect plan they will sabotage on day two.
Confidentiality, privilege, and the art of disclosure
Mental health evidence lives in a thicket of privacy rules. Defense lawyers guard privilege, but a mental health defense requires disclosures that might expose unflattering facts. Choosing what to share and when is strategic. Turn over enough to prove the point, but do not gift-wrap every diary entry unless you must. If you anticipate a mental health defense at trial, consider filing motions in limine to limit irrelevant but inflammatory material. And prepare your client for the personal exposure. A blindsided client is a brittle witness.
Practical checklist: building a defensible mental health strategy
- Gather records early: hospitalizations, therapy notes, medication history, prior evaluations, school records, military records, and family affidavits if helpful. Screen for competency immediately and revisit it if symptoms spike; object to proceedings if rational participation is doubtful. Choose the right theory for the facts: insanity, diminished capacity, mitigation, or diversion. Do not force a square peg. Retain qualified experts, share the warts, and stress test opinions against expected cross-examination. Construct a treatment and supervision plan with dates, names, verification methods, and fallback options; bring the plan to plea or sentencing, not promises.
The ethics underneath the tactics
Representing a client with serious mental illness tests a lawyer’s compass. The pressure to do something can push a lawyer into paternalism, making choices for a client “for their own good.” That violates the core premise of defense work, which is agency. The right way is slower. Explain the options, the consequences, the uncertainties. Check comprehension. Document decisions. Be clear about what you can and cannot do. When the client is competent, their informed choice controls, even when that choice makes you queasy.
There is also the duty to the court and public. A lawyer should not pretend a brittle plan is sturdy. If a client with a history of violence is cycling off medication, you must adjust conditions or address risk openly. Credibility buys outcomes. Judges remember the lawyer who does not sugarcoat.
Why this work matters beyond one case
When defense lawyers handle mental health wisely, something larger happens. Police learn to expect plans, not pleas. Prosecutors see that treatment can reduce recidivism more than a short prison term. Judges discover they have options beyond the usual two boxes. Families see that the system can respond to illness with structure, not just punishment. And clients, maybe for the first time in years, see a path that is not just survive the month.
I have watched a client go from nightly delusions and panicked flights to stable housing, part-time work, and a stubborn pride in making it to therapy on days he would rather not. He still carries a laminated appointment card. He jokes that it is his second ID. The charge that started his case was scary. The plan that resolved it was boring. Boring wins.
Final thoughts whispered from the hallway
A criminal defense lawyer is not a therapist, though we sometimes feel like one with a suit and a file cart. The real craft is translation. Translate symptoms into legal categories, pain into plans, chaos into calendars. Keep your eye on the two clocks that always tick in these cases: the legal clock that measures deadlines and statutes, and the human clock that measures relapse and recovery. If you respect both, you can deliver a defense that keeps faith with the law and the person standing next to you, which is the whole point of the job.
Law Offices Of Michael Dreishpoon
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Experienced Criminal Defense & Personal Injury Representation in NYC and Queens
At The Law Offices of Michael Dreishpoon, we provide aggressive legal representation for clients facing serious criminal charges and personal injury matters. Whether you’ve been arrested for domestic violence, drug possession, DWI, or weapons charges—or injured in a car accident, construction site incident, or slip and fall—we fight to protect your rights and pursue the best possible outcome. Serving Queens and the greater NYC area with over 25 years of experience, we’re ready to stand by your side when it matters most.