I can’t breathe, ……….. Ma’am, …….. Seriously, …….. I can’t breathe.  MB’s mother quickly released her hold on me and we started to laugh at the situation.  A laughter that washed away the tears streaming down her cheeks.  MB’s mother somewhat embarrassed, apologized.  None were needed.  I was as happy as she about what just happened in court.  In the more than four months since I first met MB’s mother, this was the first time we were able to smile about her son’s case.  It was nice to be able to bring her a certain amount of joy because of how deeply she stands by and loves her son in spite of the fact that he has been involved with the criminal courts for the vast majority of his life.  This day was the first time since we first met her that I was able to provide her with “good news”.  In criminal defense, especially when you handle primarily violent felonies, “good news” is a relative term.  Compared against the potential outcome of her son’s case, to be sentenced to serve one year in the local jail was a positive result.

MB is a relatively young man, but has a long and violent history.  He is chronically mentally ill, having been diagnosed as paranoid, schizophrenic, with anger impulse control issues.  When he stops taking his medications his symptoms are the most pronounced; symptoms which are even further exaggerated when he is confronted with the aggressive actions of law enforcement.  In the months which preceded my representation of MB, he had been accepted into and was participating in Mental Health Court.  He had been doing quite well, which for MB was quite an accomplishment.    He was meeting with his counselors, taking his medications, and attending court as scheduled.  All signs had been good.  Unfortunately, as can happen with people who are mentally ill, the better he felt, the more he believed he could manage his symptoms on his own.  He stopped taking his medications and stopped meeting with his counselor.  One day when he went to court for an update, the case manager told the judge how poorly MB had been performing.  Upon receiving this information, the judge immediately ordered that he be taken in, which neither MB nor his attorney had been told would occur.  Deputies closed in quickly.  It was a significant show of force for a procedure which is usually handled more calmly.  MB’s history preceded him.  The deputies acted, presuming there would be a violent response.  Instead, the outcome of this encounter was predetermined and provoked by their actions.  Scared, confused, unmedicated, MB’s symptoms caused him to fight back.  He struggled with the deputies, resulting in one getting injured.  Even though MB did not intend to hurt anyone; even though he did not cause the resulting injuries; MB was charged with Assault in the Second Degree, a violent felony in New York State.  This is when I started to represent MB.

When I first tried to visit MB in jail, he was not allowed out of his cell.  When the jail did allow me to see him, they required that he remain shackled.  I asked to see him unshackled, but the jail refused.  The jail deputies constantly told me how violent and uncontrollable MB was, to which I responded that I did not care.  He was my client and I wanted to be able to see him as I chose.  My requests were not granted.  The narrative I repeatedly received was the same being provided the District Attorney and every Judge before whom MB appeared.  The picture of MB being painted was not the MB I knew.  The MB I knew was calm, cooperative, and conversational.  He smiled when we spoke.  He was both engaging and engaged in his case.  He was not violent.  Not angry.  MB was motivated to get back on track.  He just wanted to return to treatment.  To pick up where he had been when he was doing so well.  He explained that on the day of his arrest, he didn’t know what was going on.  His mind was fuzzy.  Everything happened so fast.  Out of nowhere, with no notice; no opportunity to absorb what was happening.  The cloud of his symptoms blurred his understanding of what had been happening.  Now that the cloud had been lifted by his medications.  He was truly sorry the Deputy got hurt.  

I attempted to persuade the District Attorney not to indict MB and instead, allow him to reengage in Mental Health Court.  In the alternative, allow him to go on probation, where he could continue to take advantage of community based services and treatment.  Jail is not where people with mental illness should be forced to go to receive treatment.  My requests fell on deaf ears.  The mental health court judge refused to release him so he could return to treatment.  After he was indicted, I unsuccessfully tried to convince the superior court judge to do what the DA refused.  I was told the only way we could dispose of his case was either a plea with a sentence to state prison or a trial that very likely could end up with an even longer sentence. 

MB’s mother pleaded that I do everything to help get her son back into treatment.  She had been pleased with how much progress he had been making in mental health court, explaining it was the best he had done with managing his symptoms since he was a teenager.  She desperately did not want to see him go to state prison.  When we would speak, I would dance around the likely outcome of his case.  One day in court, she asked me straight out whether her son was going to state prison.  When I answered her question, she broke down in tears.  I felt awful; helpless.  I wanted so desperately to help MB, but was failing.  When I returned to my office from court, I felt like MB needed someone better than me.   Someone who could get him the disposition he needed.  The disposition he deserved.  Someone who could save him.  I truly began to believe I was not the lawyer MB needed.  He deserved better than me.

I was starting to lose hope for MB.  But then I was renewed.  Recharged to push forward with a fire and a knowledge I did not have before.  During the second week of September, I attended the Intensive Training Program developed by Colette Tvedt, Indigent Defense Training and Reform Director and Diane Price, Indigent Defense Training Manager, for the National Association of Criminal Defense Lawyers, titled “Clients, Not Cases: Skills for Outstanding Representation”, held at Syracuse Law School.  It was a wonderful program filled with some amazing presenters.  Towards the end of the first day, Colette Tvedt gave a presentation on “Empathetic Representation of the Mentally Ill”, which was absolutely amazing.  Even though I consider myself fairly well in tune with the effect mental illness has on those we represent, I took a lot away from Colette’s presentation.  It is a must see for all lawyers (new or experienced).  It should also be seen by prosecutors, judges, and the police.  If more people see her presentation (and are open to its message), I believe the way in which people with mental illness are treated by the criminal courts would improve dramatically.  However, getting people to be open to these lessons is a major barrier to achieving this progress.  Too many judges, prosecutors, police officers, and probation officers are completely closed minded to the needs of the mentally ill.  Even experienced, dedicated defense lawyers think they know everything about representing people with mental illness, believing they don’t need to learn anything else.  These fixed mind sets are unfortunate and frustrating.  No matter how much we think we know, how expert we think we are, there is always more we can learn.  If we are open to learn, programs like Colette’s can and will improve our ability to effectively represent the people we serve. 

I walked away from Colette’s presentation, inspired to fight even harder for MB.  Renewed in my drive not to allow him to go to state prison.  I scheduled his case for another conference, which started like all the others. Every proposal I suggested was quickly shot down.  But I was undeterred.  I kept fighting—getting on my Scrappy Doo as my wife likes to say.  I kept presenting information I had learned during Colette’s presentation.  Finally, the judge said that state prison was the best and only way to “treat” MB and two years behind bars was the best thing for him and the community.  I again drew on what I had learned during Colette’s presentation, responding that for a chronically mentally ill person, prison will do nothing but cause MB to further deteriorate.  I explained to the judge and the DA that MB will not receive proper treatment in state prison.  Instead, he will likely be locked up in solitary confinement for the duration of his bid.  When he is ultimately released, he will be even more mentally ill and less treatable than before.  My response was more confrontational than is usual for me in this type of a setting, but I was not going to accept state prison as an outcome.  To my surprise, the judge did not immediately say no.  When asked; “What do you want for your client ?”  my response (knowing that some element of jail time was required) was “Sentence him to local jail for one year.  That way he won’t be locked in solitary.  He will have access to his medications.  He will be able to see mental health counselors.  He will be able to see his mother.  Give him a chance to be treated, not warehoused.  Give him a chance to get better”.  The judge agreed to consider my request, adjourning the matter for two weeks.

When I returned two weeks later, MB’s mom stopped me before I entered the courtroom.  She wanted to know what the judge was going to do.  I told her I didn’t know and that we would find out together.  I told her what I thought might occur and she started to cry.  We both entered the courtroom hoping for the best, but expecting the worst.  When MB’s mother released her breathtaking embrace of me after we left the courtroom, she was crying again.  Only now they were tears of joy.  Joy that her son wasn’t going to state prison.  Joy that she’d be able to see him during his sentence.  Joy, because at least there was hope he might be able to improve.  MB understood the opportunity he was being given, promising to use it to his advantage.  I don’t know if he will, but I do know that at least he now has a chance to improve, something he never would have had if we had let him be sent to state prison.

As lawyers, many times we achieve success by standing on the shoulders of others.  I am glad that I could help deliver this opportunity to MB, but the true hero here is not me, its MB’s mother, who remains committed to her son when so many others would have been justified in giving up, and Colette Tvedt, because of her passion for our cause; her commitment to raising the level of indigent defense representation; and her support for all us in this fight for true justice.  I could not have given MB and his mother this chance had it not been what Colette provided me through her amazing ability to educate and to inspire.  It is important that we should “never stop learning because life never stops teaching”.  I leaned because Colette is an amazing and inspiring leader.  I improved my craft because I kept an open mind and was willing to learn and not succumb to the mindset that I knew it all.  I used my newly gained knowledge to improve the life of at least one of my clients and will continue to use to help even more in the future.  I write this piece to give full credit to the person who deserves all the praise for this positive result and to encourage more to be open to learning new ways.  I received the hug and the credit for the positive result.  But I never could have made it to that place to be able to help MB without the knowledge and inspiration provided me by Colette Tvedt.  I received the hug from MB’s mother that she truly deserved.