ASSIGNMENTS: G.L. c. 123, § 12(e) and § 35
As a general rule, attorneys certified by CPCS to accept mental health assignments are to be assigned in proceedings under G.L. c. 123, § 12(e) [i.e., 3-day commitments to mental health facilities] and G.L. c. 123, § 35 [i.e., 30-day commitments for alcohol- and substance-abuse]. However, because this is often impracticable given the emergency nature of these cases, a bar advocate may be assigned when the court is unable to locate mental health counsel. Where such an assignment is made, the court should indicate on the Notice of Assignment of Counsel (NAC) form that the appointment was an “emergency assignment” and either CPCS Offense Code #1017, for a § 12(e) assignment, or CPCS Offense Code #1018, for a § 35 assignment. The attorney should indicate on his/her Request for Payment (RFP) form that the appointment was an “emergency assignment.”
MENTAL HEALTH ASSIGNMENTS IN CRIMINAL PROCEEDINGS (G.L. c. 123, §§ 15-18)
Apparently there remains some (perhaps understandable) confusion as to whether criminal defense counsel or mental health counsel is to be appointed in proceedings under the various forensic provisions of G.L. c. 123. As a general rule, criminal defense counsel should continue to represent a defendant for whom he/she has been appointed throughout all stages of the criminal proceeding, including hearings as to whether certain forensic examinations are to be ordered and hearings as to a defendant’s competence to stand trial. However, should a petition to commit be filed subsequent to such an examination, mental health counsel should be appointed to represent the defendant, but for purposes of a commitment hearing only. Specifically,
Criminal defense counsel should continue to represent a defendant in respect to the following issues:
§ 15(a): whether a preliminary competence to stand trial and/or criminal responsibility examination should be ordered;§ 15(b): whether a more comprehensive competence and/or responsibility examination should be ordered; if so, whether such an examination should be conducted on an inpatient or outpatient basis; if inpatient, whether a requested 20-day extension should be granted;
§ 15(d): whether a defendant is competent to stand trial (i.e., competence hearing);
§ 15(e): whether an examination “in aid of sentencing” should be ordered;
§ 16(a): whether an examination of an incompetent defendant or insanity acquittee should be ordered;
§ 16(b) or § 16(c) : whether a defendant against whom a commitment or recommitment petition has been filed is or remains competent to stand trial (i.e., competence hearing){but see below};
§ 17(a): whether a defendant is competent to stand trial (i.e., competence hearing);
§ 17(b): whether there is sufficient evidence to support a conviction; and
§ 18(a): whether an examination of a person held in a place of detention pending trial should be ordered. [Examinations of post-trial clients also may be conducted, but criminal defense counsel typically will no longer be involved.]
[In all of the above situations, except where a hearing on competence prior to a recommitment under § 16(c) is conducted, the court having jurisdiction over the criminal proceedings will be involved.]Mental health counsel (or bar advocate or public defender if certified or trained to accept mental health appointments, respectively) should be appointed to represent a defendant or insanity acquittee in the following proceedings or in respect to the following issues. (In all cases involving an untried defendant, mental health counsel must consult with criminal defense counsel as to their mutual client’s interests.):
§ 15(e): a hearing on a petition to commit filed as a result of an “aid in sentencing” examination;
§ 16(b) or § 16(c): a hearing on a petition to commit or recommit {but see below};
§ 16(e): a hearing on a petition to commit filed by a district attorney in response to a facility’s notice of intention to discharge or notice of intention not to petition for recommitment;
§ 16(f): a hearing on a petition to commit an incompetent defendant filed by a facility subsequent to the dismissal of charges;
§ 18(a): a hearing on a petition to commit a prisoner or a defendant held at a place of detention pending trial; and
§ 18(c): a hearing on a petition to commit a previously committed prisoner whose criminal sentence has expired.