Criminal defense for mental disorders and abnormalities
Among the Criminal Lawyers It is known and commented that “when rationally and legally we cannot find another possible defense, we have no choice but to go to the defense for “MENTAL disorder, alteration or illness… : “They are exempt from criminal responsibility:
Anyone who, at the time of committing the criminal offence, due to any anomaly or mental disorder, cannot understand the illegality of the act or act in accordance with that understanding”.
The next paragraph of the paragraph itself says:
“The transient mental disorder will not exempt from punishment when it has been provoked by the subject with the purpose of committing the crime or had foreseen or should have foreseen its commission”.
Generally it is defensively more “profitable”, when it is possible to invoke it, paragraph 2 which deals with the exemption of criminal responsibility in subjects who, “at the time of the commission of the crime, were found < strong>intoxicated by the consumption of alcoholic beverages, toxic drugs, narcotics, psychotropic substances or others that produce similar effects, as long as they have not been sought with the purpose of committing it or had not foreseen or due to foresee its commission, or is under the influence of a withdrawal syndrome, due to his dependence on such substances, which prevents him from understanding the illegality of the act or acting according to that understanding.
The paragraph 3º, is shorter, and also clearer and more decisive when prescribe the exemption of criminal responsibility: “… due to suffering alterations of perception from birth or from childhood, has seriously altered the awareness of reality It is, in short, a topic focused on the clinical history and psychiatric-forensic expertise, generally contradictory on the part of the Prosecutor (Medical-Forensic) and Defender ( Psychiatric experts on behalf of).
Article 21 of the Penal Code, in its first paragraph, for its part, emphasizes that they will be considered simple “mitigating”, the causes expressed above when all the necessary requirements for its application do not meet…
In this article we are going to limit ourselves to arguing cases that, due to their great criminal and social importance, are exceptionally entrusted to the knowledge of the Tribunal del Jurado Popular, as they are, almost exclusively and unfortunately in our Current Criminal Law, murders and homicides...that glaringly forgets to include, among others, sexual assaults and kidnappings < non-homicides>, although their inclusion has been insistently demanded by the most affected social groups…
It is clear to remember that the first and fundamental obligation of the Defense Attorney is to obtain a People’s Jury where the negativesensitivity prior to appreciate the conduct of your sponsor is not so absolute that it prevents objective appreciation of the mental disorders and illnesses related by the defense as grounds for defenses and/or mitigation of the criminal conduct prosecuted. The way to achieve this is through the very carefully elaborated formulation of the prior interrogation of the Jury candidates and the subsequent use of the Recusals allowed by the current Organic Law of the Court of Jury (LOTJ).
In order to understand the ideology and possible prejudice that candidates for Jury might have, the The only viable way is to skilfully focus the questions during your interrogation so that the answers allow you to know your criteria on those specific points that will be the object of the defense, without, on the other hand, it being convenient to show excessively what is intended or, in more words plain, “let us see the feather duster…”.
As Aristotle (384 to 322 B.C.) already warned, in his Rhetoric, of the three constituent elements of < in persuasion, the “ethos” or character of the “persuader” can be the most decisive in achieving the objective; hence Jurors tend to believe less what the Lawyer tells them, affirms or alleges from a party that capriciously, with little motivation, thoughtlessness or too forceful or disrespectful tries to “sell” a defense or mitigation based on something as contingent and slippery as the loss of a human life as a consequence of a criminal act resulting from a serious mental disorder or illness…
BEWARE! That <NOT> the Defense Attorney erroneously believe or suppose that due to the fact that a Jury or their children, parents, relatives or close acquaintances have suffered illnesses or some type of mental or behavioral alterations for this reason, by itself, it will be favorable to the thesis of the exemption or mitigation of criminal responsibility… Not much less!, it can be exactly what < strong>on the contrary, because from their own experience that Jury can perfectly consider that these alterations in mental health have been unfairly considered socially and, in fact, they are NOT capable of producing such extreme and abominable criminal conduct…
I will finish with my personal experience in three cases of parricides courts in Madrid in the same year; all of them extremely bloody (two infanticides and one androcide) that I defended quite successfully (two acquittals and a very light sentence), and the three carried out by women… The I attribute these successes exclusively to the excellent selection and work of the Expert Psychiatrists and to the very good coordination between them and the Defense; without forgetting, of course, that the acquitted women were completely <innocent>…
For all of the above and as conclusion I advise that this be (the rigorous selection of the Psychiatric Experts), apart from and in addition to the careful selection of the Juries, the best working method in a defense as extraordinarily complicated as almost always it turns out to be this one.
Gustavo López-Muñoz and larraz
Director of the Criminal Law Department JL Casajuana Abogados
11/23/2020
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