In part two I explored the ethical relationship between the psychiatrist and the court system. Now I will revisit the hired gun side of the psychiatrist, defendant, and attorney relationship.
If a psychiatrist has been hired by the defense, should the psychiatrist say what the defense wants him to? Should the defense psychiatrist accept the role of a hired gun? For instance, a doctor (let us call the Doctor A), might say he has been hired by the defense, and knows the prosecution will find a psychiatrist (whom we’ll call Doctor B) who doesn’t believe the insanity defense is applicable in this case.
Doctor B will say the defense was totally responsible. Doctor A’s job is to be an advocate for the defense because he is a hired gun; therefore his job is to give the best case he can to say the defendant was not responsible at the time of the crime. Does that mean he has to lie or twist the facts? He is there as an advocate for the defendant, and if he has experience as a hired gun for defense cases, he knows why he has been hired and what is expected of him. Or, should he lean towards a higher form of truth, realizing he is there to serve justice? If he finds he believed the defendant was sane, and knew what he was doing at the time of the crime, should he then say that in court?
This is a conflicting decision to make, as it throws the questions of loyalty verses truth and justice against each other. When a psychiatrist goes into the courtroom, he swears to tell the truth, the whole truth, and nothing but the truth. The court system however, does not always allow the truth to come out. He is obligated to answer the questions that are posed to him. If someone does not ask him the right questions, it is out of order for him to volunteer information the court ought to know in order to make a reasonable and just decision. He could be found in contempt of court for presenting information no one has asked to comment on, but that happens to be the most important for the decision.
Given this situation, should the psychiatrist or the expert witness wash their hands of the case, knowing the truth may not be presented? Would it be ethical for the defense psychiatrist, after he has testified on his client’s behalf, to offer a statement to the court, which would help the prosecution’s case because he felt there were some important issues that should be brought out?
In this case, one can only file a “friend of the court” petition with the consent of the parties being defended. It would be doubtful that the defense would consent to having an “off the record” supplementary statement filed by the psychiatrist, saying in effect that while he testified for the defense, he personally believes the defendant is guilty. This would not normally be allowed in court. The courts are mechanisms for dispute resolution and follow their own rules. Thus, injustice is sometimes what comes out of the court, and both the prosecution and the defense would likely agree with this point.
The public may have a jaundiced view of the insanity defense. Sometimes political pressure helps create an atmosphere where the best and right decision cannot be made. On many occasions a defendant will decide not to accept an insanity defense or other psychiatric defense for fear he will have to spend more time in an institution than he would if he pled guilty to a crime.
Many people would agree that given the choice of pleading guilty or walking out of the courtroom on probation, or pleading innocent and running the risk of going to jail, it would be advisable to enter a guilty plea even though you are innocent. Experienced psychiatrists are aware of this when they evaluate patients who are under the belief that if they are innocent, they should plead innocent. Part of the psychiatrist’s job is to explain to the attorneys that the defendant may not be mentally ill – they just don’t understand the court system.
We regularly read, regarding ethical issues, that it is unethical for a lawyer to enter a guilty plea on behalf of his client who is incompetent. Likewise, it is unethical for a lawyer to enter a guilty plea for his client if he knows his client is not guilty. In reality, though, if somebody questions his client’s competence, he will be obligated to have his client spend 30 days in confinement, awaiting a determination of whether he is competent. If he is found incompetent, he will spend 90 days in a state hospital waiting to be released. If however, he enters a guilty plea to begin with, regardless of the fact that he is incompetent to enter a guilty plea, the client on many occasions will walk out the same day.
One could question why the general public complains about the insanity defense undermining public justice, when what often happens is the undermining of justice in the American legal system.
By: Peter Sabbagh
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