CRIMINAL COMPETENCIES

1. CRIMINAL COMPETENCIES

2. History • Mute by malice or by visitation from God…”piene forte et dure” • Trial of certain individuals is fundamentally unfair...Blackstone 18th century • In 1835 the would be assassin, Richard Lawrence, of Andrew Jackson was declared unfit for trial

3. FUNDAMENTAL RIGHTS • 14th amendment…due process • 6th amendment…right to fair trial

4. PURPOSE • It safeguards the accuracy of the trial • It helps guarantee a fair trial • Those found guilty understand why they are being punished • It preserves the integrity of the trial

5. STANDARDDUSKY v US (1960) • 33 y/o man who along with two teen age boys while intoxicated raped a young girl…Dx Chronic Undifferentiated Schizophrenia • The individual must understand the charges against him • He must be able to cooperate with his attorney in his own defense (rational as well as factual understanding) not merely oriented to person, place, and time

6. INSANITY DEFENSE REFORM ACT of 1984 • Incompetence requires that “present mental disease or defect renders the defendant unable to understand the nature and consequences of the proceedings against him or to assist in his defense”

7. BURDEN of PROOF • Cooper v Oklahoma (1996) • Charged with murdering an 86 y/o man • Oklahoma required the burden of proof to be clear and convincing evidence • The burden of the proof rests with the defendant. • The standard is preponderance of the evidence

8. ASSESSMENT • Competence is a legal concept • Evaluation includes: • Current mental status • Defendant’s understanding of the charges • Defendant’s understanding of the legal process • Ability to work with an attorney • Capacity not refusal. • Reasonable degree of understanding not perfect or complete

9. ASSESMENT TOOLS • McGarry’s Competency Assessment Instrument • 1973 • Semi-structured interview • 13 items • 5 point scale • Scoring not standardized • Reliability not investigated

10. McGarry’s Rating Scores • 1.Total incapacity • 2. Moderately impaired • 4. Mildly impaired • 5. No impairment • 6. No data

11. McGarry’s Competency Assessment Criteria • 1. Appraisal of available legal defenses • 2.Unmanageable behavior • 3. Quality of relating to attorney • 4. Planning of legal strategies, including pleading guilty to lesser charges where pertinent • 5. Appraisal of role of: judge, jury, defendant, defense counsel, district attorney, witnesses • 6. Understanding of court procedure

12. 7.Appreciation of charges • 8. Appreciation of nature and range of possible penalties • 9. Appreciation of likely outcome • 10. Capacity to disclose to attorney available pertinent facts surrounding offense including; defendant’s movements, timing, mental state, and actions at the time of the offense

13. 11. Capacity to realistically challenge witnesses • 12. Capacity to testify relevantly • 13. Self defeating v self serving motivation

14. OTHER TOOLS • Georgia Court Competency Test (GCCT) (1979) • MacArthur Competency Assessment Tool-Criminal Adjudication (1997)…three axes: understanding, reasoning, and appreciation • Competence Assessment for standing Trial for Defendants with Mental Retardation (CAST-MR)…competent retarded defendants still scored low

15. DISPOSITION • Jackson v US (1972) • Argued under due process and equal protection 14th and cruel and unusual punishment 8th • “Due process requires that the nature and duration of the confinement bears some relation to the purpose” • There must be a substantial probability that the defendant will regain competence. • PA the duration must not be longer than the maximum if found guilty or 10 years whichever comes first, except in homicide

16. COMPETENCE and AMNESIA • Amnesia does NOT generally preclude competence…case by case basis • Easy to fake…impractical...could escape incarceration and confinement • Wilson v US (1968) • Involved head injury secondary to trauma suffered during accident following high speed chase after robbery and carjacking • Factors to be considered • Ability to assist attorney • Ability to testify on own behalf • Evidence could be extrinsically reconstructed • Extent government assisted in reconstruction • Strength of the prosecution's case

17. ESTELLE v SMITH • Information gathered in competency assessment was used in penalty phase of a death penalty case • Information gathered during competency assessment should be considered privileged

18. UNITED STATES v WESTON (2001) • Charged with murdering two Capital Police Officers in Washington DC • The government must prove that restoring competence to stand trial is necessary to accomplish an essential policy • The government’s purpose reached it zenith in this case (murder of federal officers in a place crowded with bystanders where government conducts its business • Medication did not limit ability to present an insanity defense

19. FORCED MEDICATION AND COMPETENCEUNITED STATES v SELL (2002) • Mail fraud, Medicare fraud and money laundering. He also tried to kill the arresting FBI agent and a witness who was going to testify against him. He had a history of psychotic disorder • Court upheld involuntary medication to restore competency • Criteria: • Essential state interest that outweighs the individual’s liberty • No less obtrusive way of fulfilling its interest • Clear and convincing evidence • Medication appropriate and likely to restore competency • Likelihood and gravity of side effects do not outweigh benefit • In the best medical interest of the patient

20. SELL v UNITED STATES (2003) • Supreme court granted cert • Involuntary medication for restoration of competence: • An important government interest is at stake • The medication must further the state’s interests…likely to restore competence…side effects will not interfere with the defendant’s ability to assist counsel • Medication must be necessary…less intrusive means considered • Medication must be medically appropriate The Court did not refer to the heightened scrutiny standard…the “essential state interest”

21. COMPETENCE to CONFESS • Miranda Rights • Right to remain silent • Intent to use suspect’s statements against him in court • Right to an attorney • Right to a court appointed attorney for indigent suspects

22. CAPACITY to WAIVE • The waiver must be knowing…must understand the right that is being waived • The waiver must be intelligent…product of rational reasoning • The waiver must be voluntary…coercion

23. FALSE CONFESSIONS • Voluntary false confessions…without coercion, out of a desire for notoriety, a need to expiate other guilt, or an inability to distinguish fact from fantasy • Coerced Compliant false confessions…confessing is the only way to escape from a stressful interrogation (usually retracted) • Coerced internalized false confessions An innocent person temporarily internalizes the police implication of guilt during the interrogation…prolonged emotionally intense interogation, police repeatedly voice certainty of guilt, produce seemingly incontrovertible proof, and offer an explanation for failure to recall committing the crime

24. EVALUATION OF MIRANDA WAIVERS • Jurisdiction’s Miranda warnings • Copy of signed waiver and any related documentation • Transcripts of audio or video recordings • Arrest records and confession transcripts • Education records • Criminal records • Relevant medical and psychiatric records • Focus evaluation on the defendant’s understanding at the time of the interrogation…reading ability • Consider malingering

25. COMPETENCE TO ENTR A PLEA AND WAIVE COUNSEL: GODINEZ v MORAN (1993) • Defendant shot and killed a bartender, a bar patron, and took the cash register. Nine days later he shot and killed his ex-wife, shot himself and slit his wrists • Pled not guilty and found competent. Later he fired his attorneys and changed plea to guilty • The standard for pleading guilty and waiving right to counsel is not a higher standard than the standard for CTST It is no more complicated than the sum total of decisions made during course of trial

26. DissentJustice Blackmun • “A defendant who is utterly incapable of conducting his own defense cannot be considered competent to make a decision (to waive assistance of counsel), any more than a person who chooses to leap out of a window in the belief that he can fly, can be considered competent to make such a choice, To try, convict, and punish one so helpless to defend himself contravenes fundamental principles of fairness and impugns the integrity of our criminal justice system”

29. Edwards v Indiana (2008) • Does the sixth Amendment grant a defendant found competent to stand trial the right to represent himself • May states adopt a higher standard for competency to represent oneself at trial than that articulated for competency to stand trial? • If a state finds a defendant competent to stand trial is it entitled to find the defendant not competent to represent himself at trial?

30. Facts • July 12 1999, after stealing a pair of shoes, Ahmad Edwards shot at a security guard, and FBI agent, and a bystander • Charged with attempted murder, battery with a deadly weapon, criminal recklessness and theft • December, 1999 he files notice of insanity defense and petition to determine competence to stand trial

31. Court appointed psychiatrist and defense psychiatrist diagnosis him with schizophrenia • August, 2000 court finds him incompetent to stand trial and commits him to the state hospital • One year later he is returned as competent • In 2003 he is once again found incompetent and returned to the state hospital • In 2004 he is found competent to stand trial

32. First Trial • His petition for permission to represent himself is denied • Trial court found him guilty of criminal recklessness but could not reach verdict on attempted murder and battery • Second trial for remaining charges

33. Second Trial • Petition for permission to represent himself is again denied • Held although competent to stand trial not competent to represent self • Based on communicationswith the court • Second trial returns guilty verdict on remaining charges • He is sentenced to thirty years

34. Decision • Does the sixth Amendment grant a defendant found competent to stand trial the right to represent himself • Constitution does not forbid states from insisting on counsel for those competent to stand trial but who suffer from severe mental illness to the point that they are not competent to represent themselves

35. Proposed Assessment • Competent to stand trial…Dusky standard • Waiver must be knowing, intelligent, and voluntary • Reasons for waiver • Capacity to communicate with the court • Capacity to understand the risks and benefits • Reasonable capacity to present his case

36. COMPETENCE to be EXECUTED • Defendant must know he is being executed and the reason for the execution • Ford v Wainright (1986) • Reasoning • Unable to provide counsel with information leading to vacating sentence • Madness itself is punishment • Cannot make peace with God • No deterrent effect • No retributive effect • Offends humanity

37. FORCED MEDICATION COMPETENCE to be EXECUTED • State v Perry (1992) Louisiana S.Ct. • Defendant killed his mother, father, nephew, and 2 cousins. He had a history of schizophrenia since the age of 16 • Medication cannot be forced to achieve competence to be executed

38. COMPETENCE to TESTIFY • Until 1970’s children under certain age were presumed incompetent to testify. Mentally disabled persons were routinely barred from testifying’ • Federal Rules of Evidence Rule 601 (1975) Person is competent to be a witness unless their testimony is irrelevant or likely to mislead the fact finder or they are unable or unwilling to declare they will testify truthfully

39. CAPACITIES of TESTIMONY • Ability to observe an event • Ability to remember an event • Ability to communicate the memory • Ability to distinguish truth from falsehood • An understanding of what it means to tell the truth under oath

40. CASE STUDY Case of John Patrick

41. Facts • In 2003, JP, a single WM, was charged with Criminal Homicide for the murder of an elderly suburban woman. • JP met his victim after being hired as a temporary landscaper at her home. • Living in his car and abusing substances • He reportedly received a sign to make an effort to change his circumstances.

42. Was interrupted robbing the house by unexpected arrival of victim . • Thought of leaving but instead threw her to the ground and stabbed her repeatedly. • Stole her checkbook and withdrew money from the bank days later. • Arrested at a friend’s home after reportedly drinking 10 beers. • He confessed his crime while in custody.

43. Past History • Legal: criminal mischief as teen, DUI x3 2001and 2004, poss. of cocaine few weeks before current arrest • Military: other than honorable discharge • Psychiatric: no history of treatment • Substance abuse: hx of THC, ETOH use as teen. ETOH dependent since 1999 • Background: conceived by rape • Precipitant: failed relationship with married woman and told to leave his mother’s home

44. First Evaluation • Referred: plans to plead guilty without the withdrawal of death penalty • c/o having “lost his mind” and “voices inside his head” • No current SI; admitted to past “suicidal urges” • Axis I:ETOH Dependence THC Abuse • Axis II:Borderline Personality Disorder with antisocial features • Assessed as competent to stand trial

45. One Month Later • MSE: Appeared thinner and withdrawn. Sporadic eye contact. Depressed mood. Dysphoric affect SI to “split his head open.” • Axis I: r/o Adjustment Disorder, r/o Malingering • Axis II: Mixed Personality Disorder (Narcissistic & Schizoid features) • Rec: Forensic Hospitalization (mentally ill and danger to self) x 90d. Remained CTST

46. Hospitalization 2006 • Cut wrists superficially & attempted hanging after withdrawal of guilty plea that was initially entered without removal of death penalty. • Assessed incompetent to stand trial secondary to depression • Court committed to state hospital

47. Psych testing: maladaptive personality traits / lack of remorse / significant anxiety / some depression / impulsivity • Axis I: Adjustment Disorder, ETOH Dependence, Cocaine Abuse, THC Abuse • Axis II: Maladaptive Personality Traits (Borderline & Antisocial) • Rx: VPA 1500mg/d, Desyrel 100mg HS, Fluoxetine 40mg/d, Hydroxyzine 50mg HS • Assessed as competent to stand trial

48. County Jail • Refused medication, food and some fluids x 3d. Stayed in cell w/blankets over his head. • MSE: Stared bizarrely at clock and made no eye contact. Remained mute throughout assessment. • Axis I: Depression NOS, r/o MDD, r/o Malingering

49. JP made multiple requests to return to the state hospital to get help for an insanity defense. • Threatened suicide if not returned. • Staff report increased oral intake and more spontaneous conversation. Medication compliant. • SI but could guarantee safety unless sentenced to life

50. JP planned to represent himself on the basis of NGRI. He believed he could “could make the jury see his true problems years earlier.” • Regarding attys. JP believed they: • Were indifferent • Thought his case was hopeless • Were upset about his withdrawal of guilty plea • Had made deal with the prosecution • DA attempting to include the killing of an elderly person as an aggravator