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Criminal Defense Mental Health Legal Challenges Pt. 2: Competency to Stand Trial

Where Part 1 of this series gave a general overview of Competency and Criminal Responsibility and their differences, Part 2 will go into more detail regarding the law, procedures, and practicalities of proceedings involving Competency to Stand Trial. While I will use current Georgia law as the basis of the discussion, it should be noted that the underpinning Constitutional principles are the same, and the law and procedures state-to-state are quite similar.

Competency in the criminal justice context is not the same as might be used in civil proceedings such as Guardianships, capacity to execute a last will and testament, or commitment proceedings. Competency to Stand Trial in a criminal case focuses on the present state of mind of the accused and their ability to relate with their attorney and/or participate in (or waive) their Constitutionally guaranteed proceedings. Thus, the analysis looks at specific criteria that have little to do with a person's ability to go about their daily business effectively and much more to do with threshold determinations of the above-mentioned criteria. Is a criminal Defendant mentally present enough to, with minimal effectiveness, communicate and prepare with their attorney, understand the proceedings, and appreciate and understand the evidence presented against him or her? Generally speaking, those are the basic questions asked by the Courts and evaluated by forensic professionals.

The Ethical Role of the Defense Attorney in Competency Proceedings

Let's go ahead and get this out of the way: there is some debate amongst us defense attorneys as to whether it is our responsibility to pursue and evaluation or competency proceedings in general. I have encountered a relatively small, but vocal, contingent who claim we as defense attorneys should not pursue competency proceedings if our clients do not want us to. The rationale, as best as I can understand it, is that we would be trampling on our clients' desire to move forward with their constitutionally guaranteed rights to trial and would, as a consequence, be violating our ethical responsibilities to honor our clients' wishes with respect to their stated goals.

This argument makes little sense to me for a variety of reasons, but one big one sticks out in my mind: It is precisely these clients' rights to be competent and mentally present at a trial that we, as defense attorneys, are trying to protect by having an expert determine whether they are capable of exercising those rights. To move forward with trial at the request of what we believe to be an acutely mentally compromised individual is an abdication of the very responsibilities we have as defense attorneys to protect a client's rights and our oaths to uphold the Constitution. We would be standing by at a trial like a potted plant as our client is briskly convicted without any real understanding as to what was happening or why he was subsequently going to prison.

I understand (and will discuss in Part 4) the criminally glacial pace at which competency proceedings move in Georgia and most other states, and I presume that is another reason why this vocal minority of defense attorneys would be loathe to pursue them. But that is more reason to (a) get an evaluation going early--as soon as I recognize, after interactions with my client, that competency might be at issue; (b) use common sense to pursue the proceedings only in those cases where it is plainly evident or at least concerning; and (c) stay on top of moving things forward as quickly as possible to minimize the negative impact of delays. It is not reason to jettison a client's Constitutional rights in favor of a skewed interpretation of the Rules of Professionalism. And, invariably, as a case nears trial is the point at which even a rigid Competency denier will concede to the need for an evaluation--months after they could've already gotten one.

Now that you know where I stand on this issue, I'll leave it as philosophical context for the remainder of the discussion.

The Governing Law and Procedures for Competency Proceedings

Law: In Georgia, procedures with respect to competency are statutorily governed primarily by O.C.G.A. §17-7-130 (as opposed to §§17-7-130.1 and 17-7-131, which deal with the Insanity Defense, discussed in Part 3). This statute is a broad one, and covers everything from requesting a court-ordered evaluation, to jury trials aimed at specifically determining an accused's Competency to Stand Trial, to hospitalization and restoration or civil commitment if an accused cannot be restored to Competency. Strangely, though, it does not go into any detail as to what criteria should be considered by forensic evaluators; most of those have been determined by case law, or decisions by appeals courts both state and federal.

Court Order: When it is believed that a Defendant is not competent to stand trial, the proceedings are halted so that forensic psychiatrists or psychologists can evaluate competency and report back to the Court and counsel for the Defendant. While these preliminary determinations for needing an evaluation are typically made by defense counsel, the responsibility also lies with the Court to order an evaluation if the Court observes behaviors which give rise to concerns about the Defendant's mental state. While the statute allows for formal filings, or Pleas in Bar, by defense counsel that would trigger Competency trial proceedings, evaluations for competency usually happen before such a filing is necessary, and the statute allows for those preliminary evaluations to take place on request of defense counsel or sua sponte--by Order of the trial court on its own.

Evaluation: Once an evaluation is ordered, and a referral packet is sent to the state Department of Behavioral Health and Developmental Disabilities (DBHDD), a forensic evaluator, employed by the State, is assigned to perform the evaluation and issue an unbiased report as to whether a Defendant is Competent to Stand Trial. The evaluators consider the criteria I mentioned above, as well as psychological and social history of a Defendant and any observations the evaluator makes while evaluating the individual. While you would think they would go into some detail with respect to the charges themselves and the ability of the Defendant to understand them specifically as that is one of the criteria under consideration, evaluators rarely go into any detail in this regard and speak in general terms as to whether the individual could understand what he or she is being accused of doing. The rationale behind this is that an incompetent defendant has no ability to waive his right against self-incrimination, and by discussing the alleged events themselves, the evaluators risk a Defendant spilling his guts on paper.

This can sometimes be a frustrating conundrum for me as a defense attorney: if my Client can talk with me easily enough and hold a conversation about her case in a general procedural sense, but she has delusions specific to the allegations themselves (and the evaluator skips over those questions when performing the evaluation), I potentially am dealt a report that finds her Competent to Stand Trial when I know that planning a defense with her down the road is going to be a disaster, because her beliefs when it comes to those allegations are not rooted in reality.

Also important to note is that delusions themselves, or for that matter auditory hallucinations (voices), visual hallucinations, or grandiose thoughts, are not a basis for finding a person Incompetent to Stand Trial. They must be analyzed in the context of the legal criteria of (1) ability to relate to and work with the attorney in preparing a defense, (2) ability to participate in, and understand the nature and object of, the proceedings, and (3) to comprehend his own condition as it relates to the proceedings (READ: does he understand what the State is saying he did and can he give an account?). This is where forensic psychiatric evaluations differ from, say, the findings of an individual's treating psychiatrist with respect to avenues of treatment, prognosis for stability, medication recommendations, etc. A previous psychiatric report of this kind cannot substitute for a forensic evaluator's for that reason, and a previous forensic report cannot substitute because we are looking at the here and now, not back in time. They are, however, important pieces of data and a good defense attorney should be gathering as many prior records as possible and forwarding on to the evaluator so that the evaluator is not performing the evaluation in a vacuum.

Order Finding Defendant Incompetent and Hospitalization

Should the evaluator find the the accused is not Competent to Stand Trial, there are a couple of ways the case could move. One in Georgia is that defense counsel can file the above-mentioned Plea in Bar and a trial for competency be had before a jury. This trial would not be a determination of guilt but would rather very specifically whether he is competent to have a trial on the merits of the case before a separate jury.

I have never, in over sixteen years of practicing law in this field, had a jury trial with respect to Competency to Stand Trial, nor will I likely, ever, without pitching a fit. There is no more colossal waste of time than to put to a group of lay people the task of making a finding that they are not qualified to make, especially when the only meaningful evidence would be the report of a neutral, State-employed forensic psychiatrist in most cases. Furthermore, even if an independent psychiatrist is employed by the defense to challenge a State finding of competency, there is little incentive for the State to not simply agree to move the person along to the hospital for treatment based upon said independent evaluator's finding with the assurance that the issue will not rear its ugly head in an appeal later on. I have had few prosecutors try to refuse to consent to a finding that a defendant is not competent after a State evaluator reports that he is not, and each of them got an ass-chewing from me until they relented.

Thus, consent and a subsequent Order by the trial Court finding a Defendant Incompetent to Stand Trial is the typical route, and the Defendant is then (eventually) transported to a State hospital forensic unit for restoration treatment. (NOTE: there are some exceptions to this, namely that non-violent offenders can participate in State-sanctioned outpatient restoration, but the usual route is inpatient State hospital admission.) The goals of forensic professionals in these units are not those of a traditional provider; they are statutorily mandated to stabilizing and restoring someone in their care to Competency so that trial proceedings can commence. That is not to say that treatment in these facilities is cold and calculating. I have admiration for the work of both the doctors and social workers involved in competency restoration work and rely on their work to put my clients in a place to dovetail treatment into an outpatient context and potentially secure a positive outcome in their respective cases. And, I find that despite their mandates they are almost always more than happy to assist me in doing so.

In Georgia, these forensic treatment professionals must report back to the trial court within 30 days with the following questions answered: (1) is the Defendant presently competent to stand trial (if yes, then back to Court he goes); (2) if not, is it likely that the Defendant will become competent in the foreseeable future; and if the answers to questions (1) and (2) are both "no," then (3) does the Defendant meet criteria for civil commitment under O.C.G.A. §37-3-1 as an imminent threat of substantial harm to himself or other as demonstrated by recent overt acts of violence or threats of violence. Typically, the answers to (1) and (2) at this stage are respectively "No" and "Yes" and therefore the hospital is authorized to continue holding and treating the Defendant for up to a total of 12 months until either the answer to (1) is "Yes" or the answer to (2) becomes "No."

In the rare case that a defendant is found unlikely to attain competency in the foreseeable future, or time simply runs out on the hospital, the third question is posed. It is the same question in Georgia as that required to involuntarily commit someone in a civil setting, which in Georgia is presided over by the Probate Court. But, in this case, the criminal court acts as the ultimate finder of fact under those criteria and relies almost exclusively on the finding of the State evaluators. The ultimate judgment comes down either by consent (usually) or via judicial proceedings.

If the defendant is found to meet criteria, then they are hospitalized further and typically transferred to a separate hospital unit for chronic treatment. The criminal court continues to preside over questions of release and those questions are always framed by the commitment criteria of §37-3-1. The variations of ways a person can come back to court for release or continuation of criminal proceedings are too many for this discussion, but suffice it to say that a criminal case is typically dead in the water at this point.

If a defendant is found the proverbial "Not-Not-Not," or not competent, not likely to become competent, and not meeting criteria as dangerous for purposes of civil commitment, they are entitled to release from custody per U.S. Supreme Court law and, once again, their criminal cases are effectively dead, even if the prosecutors don't like it.

Practical Considerations of Competency Proceedings

I'll spend a great deal of time discussing these in Part 4, but generally speaking the main practicality considerations of these procedures, as far as I'm concerned, are (1) the inexcusable length of time it takes to get somebody into the hospital for restoration treatment and (2) using the work of hospital professionals to secure a positive outcome for my clients.

States regularly underfund resources responsible for treating incompetent criminal defendants for reasons I don't think I have to prove or explain. That means that my clients are typically averaging a wait of 9 months or more from the point I ask for an evaluation to the point they hit a hospital bed. While I can convince some judges to Order an expedited track for my clients, it isn't fair to those who are still waiting and is still an inordinate amount of time for a sick person to be sitting in a jail waiting for help. For the most part, this cancer in the court system has gone unchallenged in the appeals courts, though some federal courts in Washington and the 9th Circuit and a handful of state cases have addressed the issue. It's past time for a seasoned appeals attorney to take this issue on.

This is why I try to avoid a competency track at all costs by either working to convince my clients to take medicines on the front end or working to try to convince prosecutors to allow alternatives for these clients. But, if I must pursue competency procedures, I work to keep them moving and as early as possible. I also make it a point to start preparing to take advantage of the work of the hospital professionals so that I'm ready to pounce when my clients are restored. There is nothing more important in my mind, if a person has to suffer through months waiting for help, that they come out in the best position possible to avoid coming back into the system down the road.

Note that I didn't mention trial as a practical consideration, despite the name of the game. That's because the superhuman work my clients do for themselves over the course of treatment is almost always worthy of reward by the prosecuting authorities. A far larger proportion of my cases are ultimately dismissed, I suspect, than those of other more traditional defense attorneys, and that is no testament to my abilities but is rather reflective of the strength and courage it takes for my clients to wrestle down an extremely powerful mind and find the determination to keep exploring it more. The inspiration that provides me is why I still do this work.

Part 3 will explore the Insanity Defense and issues related to Criminal Responsibility.


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