Local judge shaped mental health law

Jan. 22--A jury couldn't decide whether a woman who was eating her feces understood the criminal charges she was facing.

Both the prosecution and defense agreed the woman, who was not charged with a violent offense, should be treated before answering her charges, but it wasn't up to them. It was up to the jury, and she waited longer to get treatment, said Jerry Clark, who was a San Patricio County prosecutor from 1997 to 1999.

That changed when Senate Bill 1057 became effective in 2004. It allowed judges to make that determination.

Robert C. Cheshire, a Victoria district judge at that time, was part of the 16-member task force that drafted the bill.

The law is regarded by many as helpful not only for people who have a mental illness and are caught in the criminal justice system but for taxpayers.

"It was a godsend when that law passed," said Clark, who is now a defense attorney in Victoria. "In a year and a half, I had to do seven or eight of those competency trials, all of which were agreed to. ... That's a heck of a lot of extra cost."

Cheshire learned about mental health issues long before taking the bench in 1994. His father was a general surgeon who delivered babies at hospitals in Victoria and treated the elderly.

"He liked treating the whole family and knowing his patients," Cheshire said.

Cheshire called the Texas Court of Criminal Appeals and volunteered for the task force.

Thirteen years later, he remembers it as a rare moment in Texas politics.

Juries can still be used to determine whether a defendant needs mental health treatment before proceeding with his or her criminal case if the defendant requests. But, allowing judges to make the determination with a psychiatrist's report when everyone was in agreement seemed logical by all, Cheshire said.

"It just seemed like it was wasting the jurors' time and creating hardships on the mentally ill who needed to get help," he said. "I decided that it was something that was important to try to change."

Today, about 90 percent of the times when an attorney asks whether the defendant should receive mental health treatment before proceeding, a jury is not called to make that decision, said Brian Shannon.

Shannon was also part of the task force. He's now a professor at the Texas Tech University School of Law in Lubbock.

When a jury was called to make that decision before 2004, pickup juries were prevalent. Pickup juries consist of citizens "rounded up to sit as jurors without all the usual procedures for juror identification and selection," Shannon said.

Assembling a jury that way is problematic because jurors should represent a cross-section of the community.

"Rounding up individuals from the courthouse or from the Wal-Mart parking lot is just very inconsistent with what our expectations are about having a fair and appropriate system," he said.

SB 1057 also made the court-ordered psychiatric exams of defendants more consistent. It mandated that the psychiatrist performing the exams have continuing education.

"On occasion, we did see reports that rambled," Victoria County District Attorney Stephen Tyler said. "This gave them an outline. This kept them focused."

Dr. Joel Kutnick, of Georgetown, examines most defendants in the area using televideo conferencing software.

The state law requires he reports his findings within 30 days. Kutnick usually does so in half the time, enabling defendants to get on a long list of those waiting to be admitted into one of the state's crowded psychiatric hospitals, Cheshire said.

The change in the law was positive, but the mentally ill who need treatment still stay in jails "for an unduly long period of time," Shannon said.

"We need to do a better job as a state to have sufficient resources to handle the demand," he said. "The more efforts we can make in the community with providing mental health services more broadly, the better opportunity we'll have to get people into treatment before they get caught up in the criminal justice system."

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