Bi-polar Disorder & Criminal Charges

If you or a loved one suffers from mental illness and has been accused of a crime, you might read this:

I’m a criminal defense attorney in Tucson, Arizona.

Sadly, over the last year we have seen a sharp uptick in the number of bright and accomplished young people walking into our office for help. Charged with local crimes—domestic violence, shoplifting, alcohol and drug offenses, felony assaults, frauds, arson– they all have one thing in common: They suffer from bi-polar disorder, anxiety & depression, or another mental health DSM-V-diagnosed affliction.

Occasionally the police have taken my clients straight to a mental health facility. Other times the parents themselves check their children into Banner Crisis Response Center (CRC) down on Ajo Way, Palo Verde Behavior Health, Sonora Behavioral Health, Catalina Behavioral Health, or Sierra Tucson.

These clients of ours are almost all accomplished: Honors students in high school, scholarship students in college, graduate and PhD students. None of them have prior criminal records.

My very first case, back when I didn’t have a clue, involved a 16-year -old male who was sneaking around his Tucson neighborhood in the middle of the night, torching his neighbor’s cars— The local newspapers dubbed him the “Midvale Park Arsonist.”

When the police finally caught the Midvale Park Arsonist, he and his parents learned to their chagrin that one of the cars the boy had had torched belonged to a Pima County Adult Probation Officer.

Charged with five separate counts of arson, they transferred this boy from Juvenile Court to Superior Court to stand trial as an adult. He was held in jail on a quarter million- dollar bond.

Through the advice of prior counsel the boy soon pled guilty to multiple counts of arson. The trial judge placed him on seven year’s probation with rigid conditions.

For the next year and half, the young man did remarkably well on probation: He completed mental health in- patient treatment, attended outpatient treatment, took his meds, saw his therapist, made Eagle Scout, swam on his high school swim team, ran on its track team. Graduated.

But then he turned eighteen. And a brand new probation officer was assigned, one with a harder edge. She was immediately dubious as to the young man’s bipolar diagnosis

So she ordered additional evaluations, including the administration of the Hare Psychopathy test. She also insisted that he see a substance abuse counselor of her choosing (even there was no indication that he abused drugs). This substance abuse counselor in turn decided that the boy was not bipolar. In fact, the substance abuse counselor suggested that the young man stop taking his prescribed psychotropic medications, and that he admit to certain highly personal psychosexual fantasies.

The new probation officer, after conferring with the substance abuse counselor then demanded that this 18- year- old boy be subjected to a polygraph test concerning sexual and fire-setting fantasies.

And unbelievable as it sounds, when the results of the polygraph came in, the assigned probation officer, a woman with a law degree no-less ordered the boy to sex offender treatment.

All these new tests, and evaluations and therapies, including sex offender treatment she ordered within a month of her being assigned my client.

Probation officers have a lot of power. They can order “treatment,” testing, and additional evaluations, largely as they see fit. They can impose conditions like no contact with females, no use of the computer, regular drug testing, polygraph examinations. They can even arrest their probationer on the spot for virtually any perceived infraction.

This new probation officer was a middling colleague of the probation officer whose car the boy had torched.

As ordered, after a community college class, on a bright Monday afternoon in October the boy’s parents dutifully drove him over to his first 90 minute sex offender treatment “group” session. It took place in a drab office building on River Road near St. Phillips Plaza.

The facilitator of the group was a pasty man with thinning hair named “Alec,” who contracted with Pima County Adult Probation to primarily to treat sex offenders. As a matter of practice Alec required that everyone participating in his therapy group begin each session by introducing themselves by name and then confess to the group that they are indeed sex offenders: “Hi my name is Kevin and I’m a sex offender.”

They went around in the therapeutic circle.

When they got around to the boy, he introduced himself by his name but he refused to admit he was a sex offender. Alec was perplexed. “Disappointed” is what he said. “You’re in good company here.” Alec said he’d give the boy another chance. To “Let down your guard.” “To be honest.” But the boy steadfastly refused.

Alec then enlisted participants in his treatment group, more than a few of them of them registered sex offenders. They pressured the boy ruthlessly. They belittled him. What’s on your browser? But the boy was steadfast.

Alec asked the boy to leave. He could come back when he was ready. On the way out the door a soft man with small hands and smudged glasses shouted out: “Loser!”

His parents picked him up and drove him home. The boy was in tears.

Early the next morning the probation officer showed up at his house and arrested him for “violating probation.” He did it by intentionally “failing to complete ordered treatment.”

She then booked him back into the Pima County Jail.

The trial judge at the arraignment ordered that he be held without bond. He set it for a revocation hearing at the conclusion of which my client would likely be sent to prison.

The family contacted me. And eventually hired me. Up to that point he had a different lawyer.

To be honest, I had no clue what to do. I went down to see the boy at the county jail. He was a “keep- separate”; he was in green pajamas, and he was pale and had peach fuzz on his face and a forehead mapped with pimples. He had jail breath.

I talked with this boy for close to an hour in a little airless interview room—He was an Eagle Scout, indeed. Recently inducted into Order of the Arrow. The boy had actually won an award for saving the life of a scout leader on a wilderness trip. He had been an honor roll student. He had been on his high school swim and track teams. He was articulate. Soft-spoken. No criminal record.

I left the jailhouse more confused than when I arrived, but pretty sure that whatever he was, this boy was not a sex offender.

Doubting my own abilities, and terrified the judge would send this boy to prison, I eventually decided to reach out to a locally well-known adolescent psychologist. I asked him to do a fresh psychological evaluation of the kid. I wanted to prove to the judge before the revocation hearing that my new client was not a sex offender.

The psychologist went down to the jail and spent six patient hours interviewing and evaluating the boy in the same cramped interview room.

The psychologist concluded definitively in his written report that my client was not a sex-offender, but rather a somewhat normal pubescent teenage male. He also confirmed that my client was definitively bi-polar.

The trial judge, a tough and voluble jurist named Howard Hantman didn’t buy a word of it. When I asked for the boy’s release, based on the strength of the adolescent psychologist’s report, Judge Hantman scoffed, cut me off, announcing with a wave of his hand: “ I’m not letting him out.”

Deflated, I feared deeply then that I would fail to do any good.

It just so happened that my uncle, a lawyer named Bruce Dix, was then serving as the Director of New York State Mental Hygiene Legal Services. He put me in touch with the former Chief Judge of New York’s Highest Court, the New York State Court of Appeals, a man named Sol Wachtler. While serving as chief judge, Judge Wachtler had been arrested by the FBI, charged with extorting money from his ex-mistress, of making lurid phones calls and implied threats of kidnapping. Judge Wachtler pled guilty, was disbarred, and spent thirteen months in prison. Judge Wachtler was bipolar.

By the time I contacted Judge Wachtler he had been released from prison, and was now living back in his home on Long Island. He had begun serving as non-lawyer volunteer, advocating for persons with bi-polar and other mental health disorders.

Judge Wachtler, extremely generous, and painfully honest, spoke with me for almost an hour on the telephone. Judge Wachtler actually offered to write a letter directly to Judge Hantman on behalf of my client. I gladly accepted his offer.

Judge Wachtler’s was a powerful letter. Addressed to Judge Hantman it was both personal and clinical, explaining to a fellow judge the heartbreak and pain of bi-polar disorder, and how it fells the brightest people. Judge Wachtler also addressed in his letter the shortcomings of the judicial and penal system for people with mental illness.

Scowling, Judge Hantman read Judge Wachtler’s letter from the bench, gruffly ordering my client released from jail. He told my client that if he screwed up he’d put him in prison for seven years.

The probation officer was replaced.

Five years went by. My client successfully completed probation.

One day shortly thereafter t he appeared in my office lobby to introduce me to his new fiancé. He was 24 years old now. He had a full-time job and was going to graduate school.

This young man’s case was a lesson to me. On one level it taught me that when I have a mentally ill client, I have to educate prosecutors and judges, no matter how dubious they might be. On a deeper level, this young man helped me to understand the pervasiveness of mental illness particularly as it relates to crime and young people.

Since that case I’ve represented literally dozens of young people who suffer from bipolar and other debilitating disorders, all faced with criminal charges. I have six open cases right now for young people who either are currently housed in local mental health facilities or have been recently released.

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Michael Harwin

About Michael Harwin

Michael’s skill and experience have been recognized repeatedly. He holds an A-V 5/5 preeminent rating by Martindale Hubbell. He has been named one of the top lawyers in Arizona by Southwest Superlawyers, and one of the best lawyers in Tucson by Tucson Lifestyle Magazine. He also has been named one of the best lawyers in the United States by , and given the highest rating possible by AVVO, 10/10 Superb. Amazon Books