Toll Free (877) 721-4732
Phone (617) 206-1942


Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call (617) 206-1942.

Posted On: December 6, 2012

WHAT IF BOSTON WOMAN CHARGED WITH ASSAULT ON MBTA HAS MENTAL HEALTH ISSUES?

Yesterday, Attorney Sam’s Take began discussing the case of 52-year-old Madina Clayton of Boston (hereinafter, the “Defendant”). She was arrested for assaulting men on the MBTA Green Line train Tuesday evening. While she did not physically make contact with anyone, the reports of her behavior are certainly bizarre. It also turns out that there was a default warrant out for her arrest in a similar matter.

You may think that it would be appropriate, at her arraignment, that the Defendant would be sent for some kind of evaluation for mental illness.

While I do not know the details of yesterday’s arraignment, I have seen these types of cases before.


The role of law enforcement in cases of mental illness, usually involving some type of assault, is frequently misunderstood. That misunderstanding often proves tragic…sometimes fatal.

While officers do get some training about handling the situation with folks experiencing psychotic episodes, they tend to approach the situation with their usual approach. The approach to control the situation and clear out the threat…or perceived threat.

That means with force and intimidation. It is what they are trained to do. Eliminate the perceived threat and get it into custody. Once the arrest is made, a choice must be made whether to bring the person to a hospital (usually if they are out of control) or bring them to court for arraignment.

At least at the onset of a case, the court’s interest in the mental health issue is whether the now-defendant is competent to stand trial. That question has a very limited scope. The issue is whether the person understands the process enough that he or she can assist in the defense. It is usually initially examined by questions like “Do you know who that person is”, indicating the judge or the defense attorney. If the person understands their roles, the person is usually deemed competent.

Of course, whether the person seems to be a threat is something which may also be considered at the arraignment. The remedy if the answer is “yes” is generally to hold the person without bail in jail. This is the Dangerousness Hearing we have discussed in the past.

There are two other times in which mental health comes into question. One is to determine whether the defendant was mentally able to appreciate actions taken at the time of the alleged crime. In other words, the so-called “Insanity Defense”. Of course, that will either be accepted or rejected at the end of the case (usually around a year after the initial arrest). As in the question of competence, the burden to convince a jury that a defendant should not be held responsible for his or her actions is a heavy one as the issue is considered fairly narrowly.

The other time a defendant’s mental state is considered is when the prosecutor and defense attorney discuss possible disposition for a plea bargain. Generally, it will not effect whether the Commonwealth is looking for a plea of “guilty”. The question is whether, as part of the plea bargain, the Commonwealth will be lenient in terms of period of incarceration.

“Well, Sam, if it is clear that there might be a mental health issue, doesn’t the system treat the case differently from the start?”

No. And that is a problem. The normal “one size fits all” approach of law enforcement or the courts, in my opinion, is not always appropriate. In fact, it can make matters worse.

Stuart Soldier has just come back from Iraq. Like many veterans, he suffers from PTSD and a few other emotional ailments for which he cannot seem to get the proper treatment. One night, he breaks with reality and is seen in the living room holding a firearm and yelling for his fellow soldiers to “Get Down!”

The police are called…whether by the family or by concerned neighbors.

Now, if he stays in his “battle state”, the sight of strangers (police officers) approaching him with guns and giving him orders may well be a recipe for disaster. However, what else can they do?

Too often, the result in injury or death.

Clearly, the situation is tragic. It is, however, understandable from all sides. People called the police because they are the ones who restore order and protect the public. The veteran thinks he is back in war. The officers are protecting the peace (seeking to remove the threat) any way they know how. Their first priority, however, is to keep everyone safe and if it looks like the veteran is going to fire at them, or someone else, they are going to open fire and kill him.

This scenario is tragic enough. Sometimes, however, it gets worse.

Remember…police officers will treat this situation as they will other situation when they are called.

What if the "suspect" is not really a threat, but someone is reporting that he or she is?

That is where we will pick up tomorrow.