Navigating Mental Health Criminal Defense

Despite the recent advent of Mental Health Courts in some jurisdictions, judges and prosecutors are often poorly informed about mental illness and unsympathetic to the obstacles faced by mentally ill defendants charged with a crime. At Kilgore & Rodriguez, we have experience in handling mental health cases and a record of success in navigating the complexity of raising a mental health defense.

The initial consideration for a mentally ill defendant is whether he is competent to stand trial. In Georgia, a defendant is competent to stand trial if he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and he has a rational as well as factual understanding of the proceedings against him. If competency is raised, the court will order a mental health professional at the Department of Behavioral Health to conduct an evaluation into defendant’s competency. A report will be provided to the court and attorney for the defendant.

If the court finds that the defendant is NOT competent to stand trial, the court may order further evaluation to determine whether there is a substantial probability that the accused will attain mental competency in the foreseeable future. The court will retain jurisdiction and defendant will be transferred to custody of DHS. OCGA § 17-7-130(c).

If court does not find client is mentally incompetent to stand trial, the defendant can file a Notice of Special Plea of Mental Incompetency to Stand Trial. The State will then be entitled to a copy of the competency evaluation. OCGA 17-7-129. Defendant can then request a jury trial to determine his competency to stand trial. OCGA 17-7-130(b)(2).

Understanding Legal Insanity Defense

Insanity is an affirmative defense which goes to the defendant’s mental state at the time of the offense, not his mental competency to stand trial. Georgia recognizes two distinct ways a defendant can be legally insane and therefore not criminally responsible:

  1. Lack of mentally capacity to distinguish between right and wrong in relation to the act, omission, or negligence.
    OCGA 16-3-2.

  2. Because of a mental disease, injury, or congenital deficiency, defendant acted because of a delusional compulsion which overmastered his will to resist committing the crime. OCGA 16-3-3.

In Georgia, the defendant bears the burden of proving by a preponderance of evidence that he was legally insane at the time of the offense. If found not guilty by reason of insanity, the defendant will be remanded to the custody of the Department of Behavioral Health where he will be evaluated, treated, and confined to a State Mental Hospital, often for many years, if not forever. Maddox and Carlos have worked closely with psychologists and administrators at State Mental Hospitals in Georgia and understand the forensic STEP system employed by the Department of Behavioral Health for the evaluation, treatment, and release of defendants found not guilty by reason of insanity.

Whenever an insanity defense is interposed, jurors in Georgia also have the curious option of returning a verdict of GUILTY BUT MENTALLY ILL. However, a guilty but mentally ill verdict is legally indistinguishable from a verdict of GUILTY. In both instances the defendant is remanded to the Georgia Department of Corrections (state prison). Sadly, state prisons are not equipped to treat moderately or severely mentally ill patients. To the contrary, state prisons can be an incredibly dangerous place for those suffering from mental diseases such as schizophrenia or type 1 bi-polar disorder. Maddox and Carlos strongly believe that the mentally ill in the criminal justice system should be treated in a safe and secure environment (state mental hospital), rather than warehoused in state prison.


Mental Health Case Results

Malice Murder


Teenager with schizophrenia suffered from delusions that his mother was poisoning him. K&R worked with numerous psychologists and psychiatrists to explain how the killing of his mother resulted from symptoms of schizophrenia and not merely a malignant heart. The jury returned a verdict of NOT GUILTY BY REASON OF INSANITY on malice murder, which allowed the judge to commit the young man to a state mental hospital for the treatment which he needs.

- Cobb County, 2017
Aggravated Assault


Young man with some mental limitations arrested for assaulting his mother during disagreement in the home. K&R worked with both the family and the District Attorney’s Office to get the young man released from jail and have the 20-year felony charge reduced to a misdemeanor.

- Cobb County, 2016
Malice Murder


KSU student and former Navy veteran suffered from schizophrenia and intense religious delusions that God had blessed him with certain spiritual gifts of prophesy and the ability to fly. When his mother rejected his delusions as demon possession, our client shot his mother to death, believing she was the anti-Christ. He was found NOT GUILTY BY REASON OF INSANITY and committed to a state mental hospital.

- Cobb County, 2015
Malice Murder


Young man being treated for schizophrenia stabbed his mother to death - believing that she was going to kill him. After presenting expert testimony which explained how his actions resulted directly from a delusional compulsion beyond his ability to control, the jury returned a verdict of NOT GUILTY BY REASON OF INSANITY. He is now being treated in a State Mental Hospital.

- Cobb County, 2011

What Our Clients Are Saying


“From the moment I called on the phone to the moment our case was dismissed, I had confidence that we had the BEST representation available. I will make sure to spread the word to other parents of children with special needs!” – Carol