Elizabeth Kelley, Esq.: Criminal Defense for People with Mental Health Disabilities

We were honored to host Elizabeth Kelley, a criminal defense lawyer whose nationwide practice is devoted to representing people with mental disabilities, as our January 2023 White Collar Support Group Tuesday Night Speaker Series presenter. Elizabeth took on a question our members ask constantly and rarely get straight: what can a mental health diagnosis actually do in a white collar case, and what will it never do? You can watch the full recording above.

If you are carrying a diagnosis into a prosecution, if you suspect there is one and nobody has said it out loud, or if you are watching someone you love come apart under an indictment, this is the hour. Elizabeth is not arguing that a diagnosis is a defense. She is arguing that in most white collar cases it never gets raised at all, and that raising it early and well is where the leverage sits.

Why you may need two lawyers, and how to handle family

She starts before the diagnosis, at who represents you. Charged in a remote district, even a federal one, you may need counsel from Chicago or New York plus local counsel who knows the customs of that prosecutor’s office, that courthouse, and often that judge. She watched one team win largely because the out of town lawyers deferred to the locals, and the jurors said so afterward. Alex Little gives our group the trial lawyer’s version of that choice.

Then comes what she tells every smart, well educated, savvy client, and every family:

The criminal justice system does not operate rationally or logically. And just understand that it has its own customs, its own mores.

She is not telling anyone to accept being railroaded. She is warning that families who decide the judge hates them are usually looking at people just doing their job, and that the family is the biggest variable nobody plans for. Her two words for it are enlist and control. Amy K. Nelson has given our group the spouse’s version of those years, four of them under a federal investigation that never charged anyone.

Competency, insanity, and what a diagnosis actually gets you

Elizabeth uses mental disabilities as her global term, covering bipolar disorder, depression and schizophrenia alongside autism spectrum disorder and intellectual disabilities. Her generalization about our community is that a lot of people charged with white collar offenses have carried something for years, managed it, masked it, and never had it get in the way until now.

So families ask about the two doors they have heard of, and both are usually shut. The bar for incompetent to proceed sits very low:

My variation on that theme is a court could find a ham sandwich competent to proceed.

The insanity standard went the other way after John Hinckley’s trial, so “he did not know what he was doing” can be entirely true and still not fit the definition. The diagnosis goes to work somewhere else: mitigation, a better negotiated plea, a diversion track, sometimes a deferred prosecution agreement. All of which loads the weight onto the expert, and she is specific about vetting one. Decide early what each expert is for, avoid the proverbial hired gun, and know the paper trail before the government finds it. Same early retention argument Anchin makes on the financial side and Doug Passon makes about mitigation.

Prison placement, compassionate release, and reentry with a diagnosis

The question she gets constantly is whether treatment counts. Will the court care that I did an inpatient stay, that I go to AA, that I have been in teletherapy for eleven months? Making it count, she says, is your attorney’s job. Do the treatment for your own sake first.

Placement is where a diagnosis stops being abstract. Federal designations are the unpredictable ones, and she could not recommend a good prison consultant more strongly, with the word good underlined. A reputable one runs your medication list against the prison formulary before you report and asks the court for a specific facility on the judgment entry. Sam Mangel and Craig Rothfeld cover that ground from the consultant’s chair. If the medication does not follow you in anyway, the fix runs through the BOP administrative remedy process, which has to be exhausted on paper before a court will hear a medical complaint at all. Elizabeth is blunt that prisons are the worst place on the planet for someone with a mental health issue, with a few narrow exceptions worth naming.

On compassionate release, she went back through the motions that won for people with mental health issues and found one thing in common. It is not what most people guess, and it begins years before anyone files. Adam Clausen had more than fifteen years without a disciplinary write-up behind him when his came through in 2020. Then reentry, which she calls the second sentence, echoing the collateral consequences panel Jeff moderated at the ABA. For someone carrying a diagnosis that is trauma stacked on trauma, and what cannot be allowed to lapse is continuity of care from day one. Brian Cuban has said much the same to our group from the recovery side.

About Elizabeth Kelley

Elizabeth Kelley is a criminal defense lawyer based in Spokane, Washington with a nationwide practice representing people with mental disabilities, working as first chair counsel and as a consultant to other defense teams. She is the editor of four American Bar Association books, on representing people with mental disabilities, autism spectrum disorders and dementia, plus Suicide and Its Impact on the Criminal Justice System with Francesca Flood. She co-chaired The Arc’s National Center for Criminal Justice and Disability Advisory Board, served three terms on the board of the National Association of Criminal Defense Lawyers, and serves as a Vice President of the ABA Criminal Justice Section Council.