Judicial Notebook

David Broder of the Washington Post Writers Group recently noted that a recent Columbia Law School study should ultimately transform the debate on the death penalty. In reporting the study's description of the legal system in capital cases as "broken," Broder wrote that the study focused in part on defense lawyers who fail to investigate significant legal issues pertaining to their clients' mental illness.

Broder highlighted an Oklahoma case "in which, according to the report, 'appointed counsel, who received no funding for expert or investigative services and was paid the statutory maximum of $3,200, failed to investigate...extensive evidence of petitioner's mental illness and likely incompetence to stand trial. DNA testing subsequently established the innocence of this prisoner.'" That case, Williamson v. Oklahoma, 812 P.2d 384 (1991), along with the habeus corpus granted by Williamson v. Reynolds, 904 F.Supp. 1529 (E.D. Okla., 1995), affirmed by Williamson v. Ward, 110 F.3d 1508 [10th Cir. (Okla.), 1997], may provide guidance for setting a minimum standard of practice for investigating clients' mental illness as well as being aware of and skillful with psychological knowledge relevant to trial outcome in matters including eyewitness testimony, repressed memory, malingering and battered women's syndrome.

A mishandled case

Strickland v. Washington, 466 U.S. 668 (1984), set out basic criteria for determining whether an attorney's performance falls below minimum standards of reasonableness and whether a reasonable probability exists that, but for these errors, the result of the case would be different. Legal scholars have criticized the case as sorely mishandled, its flaws yielding an ongoing pattern of unsatisfactory interpretations by most appellate courts (see Perlin, 1996). Strickland lacks detail concerning an attorney's duty to investigate a client's symptoms and history of mental illness as they may bear on the trial.

Williamson not only raises the bar concerning an attorney's duty to investigate such issues, but also demonstrates two flaws in the status quo now documented in empirical research: 1.) Attorneys who handle serious cases continue to confuse concepts of competency and insanity; and 2.) Throughout the legal system, attorneys who need to know the most about mental health often know the least due to insufficient funding of legal services for indigent clients (Bright, 1990, Saul, 1991).

In the case, defendant Williamson was reported to have an extensive history of mental illness, including schizophrenia, and bizarre, confused thinking, beginning in adolescence. He had been found incompetent to stand trial but this finding was later reversed in an unrelated bad check charge. He had also received treatment at various mental institutions. According to the record, the attorney did not make a referral for competency evaluation since Williamson had been found competent in the past and knew right from wrong, two invalid reasons for failing to refer for evaluation. Furthermore, the attorney complained that he "could not spend all of his time on this case, and that he needed to attend to his other work," a claim perhaps justified by the fact that his maximum fee allowed by law for the case was $3,200. However, Federal District Court Judge Seay admonished him for basing his decisions "on both inadequate information and a misconception of the law," holding that counsel "performed well below the prevailing norm" in not conducting even a cursory review of the medical records that would have indicated reason for cautious handling of the case. Similarly, Tenth Circuit Judge Seymour further criticized counsel's failure to present any evidence of the petitioner's patterns of eating, sleeping and medication compliance, although she also blamed the paucity of funding for attorney and investigator services.

Implications for psychology

Several questions remain. In how many capital or even noncapital cases are psychological aspects overlooked or misaddressed? The recent execution of Gary Graham in Texas followed a trial that relied on testimony from a single eyewitness and no physical evidence tied to the defendant. Might his conviction have been prevented with the use of psychological expertise on the subject of eyewitness accuracy? What should the standard of practice be for attorneys in recognizing psychological dimensions in a case that may play a significant role at trial? Whatever standard is eventually agreed upon, it is clear that suitable investigative resources and training are needed for defenders of indigent clients. Perhaps aspiring defense lawyers should take courses in abnormal psychology, assessment and mental health law and make use of relevant knowledge in the courtroom. Even though they should not be required or expected to act as armchair psychologists, the Columbia Law School study suggests that their purchasing a copy of the Diagnostic & Statistical Manual IV and studying it on occasion might not be a bad idea.