The defendant in jury trial #21 was charged with vandalizing a correctional facility. He had ripped a large ADA guardrail off the wall of the jail and was yelling that he was going to “tear this mother fucker apart” if he didn’t get moved from a solitary room back into the main line. He had to be extracted from his cell and inside of it they found a dismantled razor (to get to the razor blade) and 9 nails which had been removed from somewhere inside the facility.

I remember prior to trial the defense attorney indicating that the defendant would not talk to him; only demand that he have his speedy trial. Attempts to try and settle the case were fruitless, so off to jury trial we went.

After I ended the People’s case the defendant became increasingly agitated. His agitation was directed at his attorney and so a special hearing was held to determine whether a new public defender should be appointed. In these hearings the issue is usually based on a breakdown in the attorney-client relationship. As a sidebar: the People are not a party to this type of hearing. It is designed to let a defendant speak freely to the judge about the problems he perceives with his current public defender and gives the defense attorney an opportunity to respond. Excluding the public and the People from the hearing preserves the attorney-client relationship as well as defendant’s right not to incriminate himself.

The request for a new attorney was denied. When we were about to start back up with the trial the defendant began to yell in the courtroom, while court was in session. The Court had to order him removed from the Courtroom based on the ongoing and persistent disruptive behavior.

At that point defense counsel declared a doubt as to the competency of the defendant and criminal proceedings were suspended so a doctor could meet with him could conduct an evaluation. When this happens the questions answered are: (1) Does the defendant understand the nature of the charges and proceeding against him? and (2) Can he assist his defense attorney competently? If someone is found incompetent (aka there is a “no” answer to either of these questions due to a mental illness) they are then treated by the State Hospitals, who work to provide medication and treatment so that they get to a place where the answer to those questions is yes.

Because it takes quite a while normally to restore a person to competency, if they are found incompetent, defense counsel requested a mistrial. It would have been impractical to keep the jury empaneled the entire time we worked these issues out.

Why did it take so long for defense counsel to declare a doubt as to defendant’s competence? While I don’t know the specifics of this case, I do know that defense attorneys often struggle making that choice because in practicality it means that the defendant will remain in custody potentially longer than if he pled or was found guilty in a jury trial. This is because it takes time to generate the reports needed to find someone incompetent and then it takes time for the State Hospital to write a report about where the defendant should be placed. The longest time though is waiting for the defendant to be transported for treatment to begin. This entire time can be spent in custody (usually on felonies, not so much on misdemeanors) and the defendant is getting no services or treatment while they wait.

As an example, just last week we received an update from one of my current defendants who is waiting for treatment. He was number 1,066 on the state-wide list with an estimated date of transport several months away.

From a practical standpoint I believe some defense attorneys choose to tread lightly around the competency issue knowing that if they can get the defendant to a point where they can enter a guilty plea or get through trial they can be released and hopefully get back to the treatment/services they receive when not incarcerated.

I often struggle with these cases as well, knowing that mental health is an issue, but also being accurately aware of the public safety risks of allowing an individual out of custody without assurances that the mental health aspects of their criminality have not been addressed. This push and pull is a constant battle as our Legislature puts more and more pressure on the criminal justice system to both address and fix those in our community who are mentally ill or drug-addicted.

Ultimately, this trial was interrupted when the balancing act was destroyed in a public outburst. Defendant was found incompetent to stand trial after about 2 months of additional court proceedings. He was sent off to the State Hospital for treatment. He returned a year later, plead, and was sentenced. He had accumulated enough credits so that it was essentially time served.