 |
| Owl give you one chance . . . |
By Elizabeth Kruska
Let’s have a little bit of a refresher about competency in criminal cases. The government cannot prosecute someone who is not competent to be prosecuted. Competence in the criminal court context is a little different than competence in other areas. Someone could need to have a guardian for purposes of their finances, but be perfectly competent to stand trial in a criminal case. The relevant question is whether a defendant has the present ability to consult with his lawyer with a rational degree of understanding, and whether the defendant has a factual understanding of the proceedings.
Sometimes a person just can’t do it. Whether it’s because of mental illness or even potentially because of organic brain issues, like dementia, a person just might not be able to communicate with his or her lawyer or understand what’s going on.
Even though sometimes it seems clear that someone is or isn’t competent, the court needs to make findings before ruling on the question of competence. The way to get to that ruling is to have testimony from someone qualified to make that determination. That person usually is a forensic psychiatrist.
Any party in a criminal case can, at any time, ask the court to order a competency evaluation of the defendant. This is because: (a) the state cannot prosecute someone who isn’t competent; and (b) competence is fluid. A defendant may be fine at the time of his or her arraignment, and then suffer some sort of downturn that leads to an inability to communicate or understand.
Also, once someone is not competent, they can become competent again. For example, someone who takes medication for a mental illness may, for whatever reason, stop taking their medication. That could lead to the person not being competent. But if they start taking their medication again, they may be back to being competent.
Often a defense attorney is the one who asks for a competency evaluation, or alternatively, will get one done on their own. This makes sense; the defense lawyer is the one who is spending the most time with defendant and has a sense about whether or not the defendant is able to communicate about the case and understand what’s going on.
If the court appoints a doctor to do an evaluation, it’s someone who is independent, and whose task it is to determine whether or not the person is competent.
So, you might think that a “defense strategy” is to get a defendant declared incompetent so the State can’t prosecute. That’s sort of a hard strategy to see through, because if the person really is competent, the evaluating doctor is going to figure that out. Or, if the doctor finds the person to be not competent and there’s a contested hearing, the court may find the person to be competent. You might also think, “Gee, it seems like the State should also be able to send in an expert to examine the defendant and decide if the defense expert is full of baloney.”
The State thought the same thing in this particular case. SCOV disagrees.
If a defense lawyer gets a competency evaluation done, and if that evaluation shows that the defendant—in that expert’s opinion—is not competent, the State’s remedy is to ask the court to order an independent evaluation. Then that expert goes in, evaluates the defendant, and generates an opinion.
There still needs to be a hearing on competency and the court still needs to make findings that the defendant is competent (or not). It’s entirely possible that different experts come to different conclusions for different reasons, and it’s up to the judge to rule on the ultimate question of competency after such a hearing.
All this takes us to Mr. Christopher Sharrow. In 2013 he was charged with second-degree murder. The defense lawyer sought a competency evaluation through the court. The evaluation happened, but the defense lawyer moved to have it re-done with a different doctor because the first doctor did the evaluation without the defense lawyer present.
So, the court ordered a second evaluation to be done by a separate doctor. The second doctor wanted to review the first doctor’s report, and also asked for an additional neuropsychological consultation, saying it was necessary for the second doctor to render an opinion. Funding was denied for the neuropsychological consultation. The second doctor, feeling unable to render an appropriate opinion, asked that someone else do an evaluation.
Doctor number three gets appointed by the court, does an evaluation, and finds Mr. Sharrow not competent.
Simultaneously, the defense lawyer engaged their own expert—Doctor Four—to do an evaluation as well. The opinion doesn’t say this, but I’m guessing Doctor Four was chosen because of the possibility of neuropsychological issues, and that Doctor Four would be someone who could help provide that information to the defense.
The State received a copy of Doctor Three’s report and hired Doctor Five. The State asked the court to order that Doctor Five could go visit with the defendant and also do an evaluation.
The Defense objected, because the court had no authority to allow such an evaluation. The court ruled in favor of the State, and the Defense filed for interlocutory appeal.
Oh, yeah. Interlocutory appeal. That’s something that doesn’t happen very often, because courts do not want to deal with cases in a piecewise manner. But, sometimes there’s a dispositive legal question that needs to be reviewed. This is precisely one of those questions.
So, the matter goes to SCOV who reverses the trial court and does not permit the State to send in its own expert.
Here’s why. The statute regarding competency evaluations specifically says that any party can ask the court to order that an evaluation be done, and that the court-ordered evaluation be done by a neutral expert. The statute also provides that with such a neutral expert, no information provided by the defendant could be used against him or her.
While the statute does contemplate that there must be a hearing on the matter—and sometimes those hearings are contested hearings—nothing in the statute authorizes the State to conduct its own competency evaluation. There is an additional rule that allows for the State to seek a psychological evaluation of a defendant, but that’s only where sanity is raised as a defense. Competency and sanity are related, but are very different questions, and that rule does not apply to competency.
Oh, also, it’s probably not constitutional for the Court to order a defendant to submit to a competency evaluation for the State. Once someone is charged, the State doesn’t get to talk to defendants anymore (thank you, Sixth Amendment!). Allowing a State-ordered evaluation would potentially give the State protected defense information that it otherwise would not be permitted to know.
Anyway, this is the kind of situation where a defendant’s interest in competency greatly outweighs the State’s interest in a prompt disposition of a criminal case. If a defendant is wrongfully found to be competent, there’s a serious problem of continuing prosecution of someone who can’t be prosecuted. On the other hand, if a person is found to be incompetent, it is entirely possible that competence could be subsequently restored and the prosecution could take place later.
And, it’s not as if people who are not competent to stand trial are just booted out the courthouse door. A defendant is held in jail or “another suitable place” pending a competency hearing. If the court finds the defendant to be not competent, the case moves to a hospitalization hearing.
If the State is not in agreement with the defense or court-appointed expert’s findings, the State may certainly use other methods to challenge the opinion, just the same way it would challenge the veracity or credibility of any other witness.
A final note—SCOV notes in a footnote (read the footnotes! Always!) that a court-appointed expert is meant to be truly neutral. Neither the State nor the Defense is supposed to try to influence the neutral expert.
If you want to read another summary of the same case due to our editor's apparent inability to properly update the assignment list, click here.
Comments
Post a Comment