Representing People with Dementia: A Practical Guide for Criminal Defense Lawyers
Edited by: Elizabeth Kelley
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This excerpt is taken from a chapter on Testing by Margaret S. Russell, Esq. and Dr. Robert Ouauo in Representing People with Dementia: A Practical Guide for Criminal Defense Lawyers, Elizabeth Kelley, ed. |
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The number of older adults in the United States is rising, as is the incidence of dementia. As a result, older adults are more likely to come into contact with the justice system, and individuals with dementia are appearing in courts at an unprecedented rate. One out of every eight Americans 65 years or older has diminished mental capacity, as well as one out of every four over age 75, and one out of every two over age 85. Recognition and diagnosis of dementia could impact all phases of criminal litigation. In criminal practice, dementia is raised in conjunction with a defendant’s competency or to prove that a defendant is not guilty by reason of mental defect. It may also come into play in the selection of witnesses, the assessment of victims’ claims, and sentencing considerations. Due to cost and/or time concerns, dementia is often raised and diagnosed in error after quick screening procedures, rather than a full multifactorial investigation. As a result, legal practitioners must understand the basis of dementia diagnosis and be diligent in probing the methods used to diagnose and establish dementia in a court of law.
A full multifactorial diagnosis, including medical, neurological, and neuropsychological evaluation, scans, and even genetic testing, should be used to diagnose and establish dementia in a criminal court of law.
Medical Testing: A variety of laboratory tests might be used to help diagnose dementia or rule out other conditions. These tests can include hypertension, cholesterol, blood count, drug and alcohol toxicology screens, cerebrospinal fluid analysis (spinal tap), and analysis of thyroid functions. Other tests that might improve the accuracy of a dementia diagnosis include tests for kidney, liver, or blood glucose problems; B12 level; and tests for HIV and syphilis – infections known to cause dementia. In the context of one’s personal and medical history, the overall cognitive profile and pattern of relative strengths and weaknesses can help determine the presence of cognitive dysfunction and which brain systems may be implicated. At a minimum, a mental health evaluation of competence to proceed should include a review of the defendant’s history, current functioning, and understanding of the impending execution and the reasons for it.
Neuropsychological Testing: There is considerable clinical as well as biological variability that occurs in different dementing illnesses. Neuropsychological testing can be an important part of the differential diagnostic process in dementia. Standardized tests offer an opportunity to detect subtle cognitive abnormalities and differentiate dementia from normal aging. Neuropsychological examinations can also help differentiate dementia syndromes such as Alzheimer’s disease from cognitive impairment associated with psychiatric disorders, such as depression. Additionally, neuropsychological testing is more sensitive to identifying dementia disorders than cognitive screening. Regardless, even with the most sophisticated evaluations, it will not be clear in many individuals’ first examination whether a small degree of cognitive impairment represents a change consistent with dementia, so follow-up examinations are commonly needed to track progression
Brain Scans: Brain scans may be used to identify strokes, tumors, or other conditions that can cause dementia. Degeneration of the brain’s cortex (outer layer) or “cortical atrophy,” common in many forms of dementia, can be visible on a brain scan. The brain cortex normally appears wrinkled, with ridges (called gyri) and grooves (called sulci) in brain tissue. In individuals with cortical atrophy, the progressive loss of neurons causes the ridges to become thinner and the grooves to grow wider. As brain cells die, the ventricles (or fluid-filled cavities in the middle of the brain) expand to fill the available space, becoming much larger than normal. Brain scans identify these changes in the brain’s structure that suggest Alzheimer’s disease and other types of dementia.
Genetic Testing Research on genetic predispositions of dementia is rapidly developing. It has been established that there is a link between the APOE allele and its variants and both increased and decreased risk of developing Alzheimer’s kel51328_RepresentingDementia.indb 62 10/28/22 9:50 AM Chapter 5 • Testing 63 disease. (See Liu et al., Apolipoprotein E and Alzheimer Disease: Risk, Mechanisms, and Therapy (2013)). Genetic testing in dementia diagnosis is both novel and rapidly developing.
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Mental Disability and the Criminal Justice System |
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A podcast which provides information - and hope - to people with mental disabilities ensnared in the criminal justice system, as well as to their families and attorneys. |
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They’re Not Cops. They Don’t Have Guns. But They’re Responding to More 911 Calls.
People experiencing mental or behavioral health crises and addiction have often been subject to police use of force, arrest and incarceration. In last week’s newsletter we touched briefly on some efforts around the country to change that, and this week we take a deeper look.
One of the most common new approaches — and one that has rapidly gained traction since 2020 — are civilian co-responder programs, in which behavioral health specialists, often social workers, show up to certain emergency calls alongside police. These can include situations like suicide threats, drug overdoses, and psychiatric episodes. Typically, the officers on the team have special training in crisis intervention. These programs are often popular with law enforcement, while some critics argue that they don’t do enough to remove police from the situation.
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IL inmates stuck in jail despite mental health court orders
ILLINOIS – Dozens of inmates in Illinois are stuck in jails, despite court orders that they instead be treated in mental health hospitals. FOX 2 spoke with sheriffs from southern Illinois to Springfield who are taking action to protect prisoners they claim the state is ignoring.
One example is 26-year-old Keajion Jennings, who received a court order for mental health treatment in the hospital. Instead, he remains locked in jail.
The former U.S. Airman spent military time in Guam, then returned home with multiple personalities, according to his mother, Yvonne Roby. She remembers the first sign of concern.
“I said good evening, love. How are you?” She said, “He paused, and his response was good evening, God. Then I knew something was wrong.”
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He Was Sick, So They Sent Him to Prison
Alex Mirzaoff needed help. His bipolar disorder had been getting worse. A judge from a mental health court in Rochester, where the 29-year-old had regular appearances for past shoplifting charges, decided that he had become dangerous and needed full-time care at a supportive housing facility.
The closest group home had a waitlist, so the judge sent him to the county jail. But the jail wasn’t equipped to provide Mirzaoff with the care he needed.
The sheriff found a solution in a process called “boarding out.” He sent Mirzaoff, who hadn’t been convicted of a crime, to Attica Correctional Facility, a maximum security state prison. Most boarding out occurs when officials transfer people between county jails, which hold people awaiting trial and on short sentences for minor crimes. But every year, they send dozens more to state prisons, throwing them, temporarily, into the brutalities of long-term confinement.
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Maine wants to keep housing some criminal defendants with mental illness in prison
Innocent until proven guilty is a bedrock principle of American justice. But in Maine, some criminal defendants with mental illness spend time in the state’s only maximum security prison before they ever face a jury.
In 2021, the Legislature temporarily granted the Department of Health and Human Services the power to transfer certain violent criminal defendants who have been ruled incompetent to stand trial from psychiatric hospitals to the Maine State Prison. Three years later, proponents say the law has improved safety at the Riverview and Dorthea Dix Psychiatric centers, while the small number of patients moved to the prison’s Intensive Mental Health Unit have received quality care.
“The evidence has shown that this is a successful program,” said Rep. Sue Salisbury, D-Westbrook, who is sponsoring a bill that would eliminate the statute’s sunset provision and extend its life indefinitely. “After listening to the experts both at Riverview, at IMHU, at DOC (Department of Corrections) … I feel really strongly that this is the right way to move forward.”
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When Police Encounters With Autistic People Turn Fatal
Last Saturday, a San Bernardino sheriff’s deputy shot and killed Ryan Gainer, an autistic Black 15-year-old, outside his home in Apple Valley, California. The shooting, which is under investigation, came after Gainer chased the deputy with a large bladed garden tool, according to police and body camera footage released by the department. The teen’s family had called 911 when he became upset during a disagreement, broke a glass door and struck a relative. They told CNN that by the time deputies arrived, Ryan had calmed down and apologized.
The death has fueled outrage and refocused attention on the question of how emergency services respond to situations where people are in mental or emotional distress.
“The mix of race and disability status greatly increases the potential for deadly interactions with police,” said Mia Ives-Rublee, director of the Disability Justice Initiative at the Center for American Progress, a progressive think tank. “Families shouldn’t have to think twice about calling for help, worrying whether it will end in tragedy.”
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The Alarming Findings Inside a Mass Shooter's Brain
Last fall, an Army reservist killed 18 people at a bowling alley and restaurant in Lewiston, Maine, before turning the gun on himself.
Dave Philipps, who covers military affairs for The Times, had already been investigating the idea that soldiers could be injured just by firing their own weapons. Analyzing the case of the gunman in Lewiston, Dave explains, could change our understanding of the effects of modern warfare on the human brain.
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