What to Do if a Criminal Defendant
Seems Incompetent
By Brett C. Trowbridge, Ph.D., J.D.
This article supported by The Trowbridge Foundation
Reprinted with permission from:
Washington Criminal Defense, a joint publication of the Washington Association
of Criminal Defense Lawyers and the Washington Defender Association:
Vol. 17, No. 2, May 2003
Criminal defense attorneys are often at odds with their mentally ill
defendants, especially if attorneys want them evaluated for competency
and/or other mental defenses. Such clients often become upset when their
lawyers want them to be evaluated at state hospitals, especially since
hospital commitments often postpone their trials. Time needed for court-ordered
evaluations by state hospitals does not count for speedy trial purposes,
although after conviction that time should be included as part of the
sentence (see RCW 10.77.090(2)).
Court-Ordered State Hospital Evaluation
There are other reasons why a court-ordered state hospital competency
evaluation may not be advantageous. Evaluators at state hospitals will
usually collect extensive background information (including criminal history)
that your client may not want revealed. If the client is less than forthcoming,
the report may brand your client as “uncooperative” even if
asserting his right against self-incrimination (RCW 10.77.020(3)). Your
client may not enjoy close confinement with extremely mentally ill prisoners.
He may complain about the food, staff, few recreational opportunities,
and the long drive to and from, etc. Besides, the attorney may fear the
prosecution will obtain information about the case itself that he does
not want revealed.
Inpatient, Outpatient, or Jail Evaluation
Not all state hospital evaluations have to be done on an inpatient
basis. An outpatient evaluation can be negotiated if the defendant is
not in custody. If the defendant is in custody, the state hospital may
be willing to send an evaluator to the county jail to evaluate the defendant
there, particularly if the defendant is willing to waive the statutory
requirement for two evaluators. See State v. O’Neal, 23 Wn. App.
899 (1979). Hospital administrators may prefer to do a jail evaluation
if your client might be an escape risk, or might be assaultive towards
other patients.
No Evaluation
The client’s objections to a state hospital competency evaluation
may seem particularly germane when the crime charged is a relatively
minor one, such that the client could plead guilty and be released with
“time served” or serve a short additional sentence. Many
attorneys allow defendants to plead guilty even if the defendant is
mentally ill, if the attorney believes the defendant will make it through
the “statement of defendant upon plea of guilty” form, and
any questions the judge has during the hearing on the guilty plea. See
CrR 4.2(d), which states, “The court shall not accept a plea of
guilty without first determining that it is made voluntarily, competently
and with an understanding of the nature of the charge and the consequences
of the plea.”
If the defendant does not want to plead guilty, but instead wishes to
go to trial asserting some “crazy” version of reality, the
attorney may have no choice but to ask for a competency evaluation.
For example, if the defendant wants to take the stand, and say he had
to throw rocks through windows to free people the devil was holding
inside, the attorney would clearly be foolish to go ahead with the trial
without an evaluation.
Defense Evaluation
Sometimes, the circumstances of the alleged crime itself may contain
bizarre elements that cause the Court to be concerned, in which case
you may not be able to avoid a state hospital evaluation. Often, however,
the attorney may be aware of peculiarities in the defendant’s
thinking that are not obvious to the prosecutor or the Court. Some defense
attorneys may decide to ask for an evaluation in hopes that the defendant
will receive treatment he needs even if he does not desire it.
One approach is to move the Court to appoint a defense Mental Health
Expert (MHE), usually a psychologist or psychiatrist. Most courts will
allow such motions on an ex-parte basis so the prosecutor is not immediately
aware an appointment has been requested. However, in smaller counties
the prosecutor will often find out if a MHE visits the jail. If the
defendant is out-of-custody, it is sometimes difficult to persuade a
defendant who does not feel mentally ill to go to the MHE’s office,
and a defendant in custody may decline to cooperate with the evaluation.
In order to convince the Court to make an appointment, it will have
to be convinced there are sufficient grounds to doubt the defendant’s
competency. If the defendant has funds, he can pay for his own expert.
If he is indigent, government funds can be provided. Judges tend to
be fairly easily persuaded when requests for MHEs are made.
MHEs should be provided a copy of the Information and police reports,
as well as a Court Order allowing access to the defendant (if he is
in custody) and ordering payment of fees if the defendant is indigent.
The MHE should also be provided whatever information the defense attorney
has about any mental history. MHEs who do not routinely do such evaluations
should also be provided with the legal standards for competency and
any other legal issues/questions the attorney wishes addressed (i.e.
insanity, diminished capacity, etc.). It may be necessary to ask for
a continuance in order for the MHE to have time to complete his work.
Defense Expert Appointed before State Hospital Evaluation
Many attorneys prefer to have their defendants evaluated by a state
hospital rather than a defense MHE. If the defendant is obviously mentally
ill, this approach may be preferable since even if the defense MHE finds
the defendant incompetent, the prosecutor will almost always ask for
a state hospital evaluation anyway. If the state hospital deems that
the defendant is incompetent, this opinion will almost always be accepted
by the prosecutor and by the Court ending any dispute about that issue.
Many attorneys are not aware that the defendant has the right to have
his own MHE appointed before the state hospital evaluation, and to have
that MHE (or the attorney himself) present for the state hospital evaluation.
If the defendant is indigent, the defense MHE will be paid from DSHS
funds (RCW 10.77.020(2)). Thus, in most cases it is advisable to have
a defense expert appointed before the state hospital evaluation as,
“read together, RCW 10.77.020(2) and RCW 10.77.060 contemplate
the appointment of an MHE prior to the appointment of a (state hospital)
panel.” State v. Griffith, 91 Wn. 2d 572 (1979). The purpose of
the expert is to assist in the defense, not to help prepare the defendant
for the state hospital evaluation (Griffith at 579). Having a defense
MHE present at the state hospital evaluation may cause the evaluator
to do a more thorough job, and be more willing to consider the case
from a defense-oriented point of view.
Competency Hearing
A competency hearing is required “whenever a defendant has pleaded
not guilty by reason of insanity, or there is reason to doubt his or
her competency”. RCW 10.77.060(1). Unless an insanity defense
is asserted, a competency hearing is required only if the court makes
a threshold determination that there is reason to doubt the defendant’s
competency. If the court doubts the defendant’s competency, the
court must conduct a competency hearing in accordance with statutory
procedures. Seattle v. Gordon, 39 Wn. App. 437 (1985), review denied,
103 Wn. 2d 1031 (1985), State v. Lord, 117 Wn. 2d 829 (1991). The decision
as to whether there is “reason to doubt the defendant’s
competency” is within the trial court’s discretion, and
the burden is on the defense to support the motion by a factual basis.
State v. Lord, 117 Wn.2d 829 (1991).
Standards for Competency
Few criminal defendants are found permanently incompetent to stand
trial. The standard for competency is low, so even retarded and mentally
ill defendants usually meet it, especially after a course of treatment
for “competency restoration.” The U.S. Supreme Court ruled
the Fourteenth Amendment’s due process clause prohibits the conviction
of a person who is not competent to stand trial. Drope v. Missouri,
420 U.S. 162 (1975).
The constitutional standard for competency to stand trial as enunciated
by the U.S. Supreme Court is whether the accused has “sufficient
present ability to consult with his lawyer with a reasonable degree
of rational understanding” and to assist in his defense with a
“rational as well as factual understanding of the proceedings
against him.” Dusky v. U.S., 362 U.S. 402 (1960). Washington law
affords greater protection by providing “no incompetent person
may be tried, convicted, or sentenced for the commission of an offence
so long as such incapacity continues”. RCW 10.77.050.
Incompetency cannot be waived, because an incompetent person cannot
enter into any plea agreement. Personal Restraint of Fleming, 142 Wn.
2d 853 (2001). The two-part test for legal competency for a criminal
defendant in Washington is as follows: “(1) whether the defendant
understands the nature of the charges, and (2) whether the defendant
is capable of assisting in his defense.” State v. Ortiz, 104 Wn.
2d 479 (1985), Personal Restraint of Fleming, 142 Wn. 2d 853 (2001).
The competency standard for pleading guilty or waiving right to counsel
is the same as the competency standard for standing trial. Godinez v.
Moran, 509 U.S. 389 (1993), State v. Jones, 99 Wn. 2d 735 (1983), State
v. Hahn 106 Wn. 2d 885 (1986). For competency to waive counsel, an additional
third requirement that the defendant must “knowingly and willingly”
decide to waive counsel is added to the general two-part competency
test. State v. Hahn, 106 Wn. 2d 885 (1986), citing Faretta v. California,
422 U.S. 806 (1975). RCW 10.77.020(1) provides that such an inquiry
may also review whether the defendant understands the nature of the
charges and the range of possible punishments and possible defenses
to the crimes. See State v. Hutchinson, 135 Wn. 2d 863 (1999), cert.
denied 525 U.S. 1157 (1999). If the defendant is receiving medication,
he will still be competent to stand trial if the medication enables
him to understand the proceedings and assist in his defense. RCW 10.77.090
(7).
Defendants often claim they do not remember the incident, or say they
have only a spotty recollection of what happened due to intoxication
on alcohol and/or drugs, major mental illness, or poor memory due to
cognitive problems because of organic brain damage or brain disease,
or developmental disability (mental retardation). Courts are supposed
to examine the facts of a particular case to determine whether the defendant’s
inability to recall events affects his right to a fair trial. A strong
state’s case, the existence of physical evidence linking the defendant
with the crime, and the availability of other defense witnesses are
viewed as indications that the defendant’s recollections of events
is not critical to a fair trial. State v. Harris, 114 Wn. 2d 419 (1990).
In the author’s experience, claims of amnesia rarely result in
findings of incompetency, even though attorneys often assert that the
defendant’s amnesia makes it impossible for him to assist in his
defense.
Determining Competency
When MHEs evaluate a criminal defendant to determine competency to
stand trial, they first diagnose the defendant’s mental condition.
Since mental diagnoses are arrived at using historical factors, MHEs
generally take a detailed history of the defendant’s life. There
are only two categories of diagnoses which could cause incompetency:
so-called “major” mental illness (such as schizophrenia
or bi-polar disorder that cause hallucinations and/or delusions), and
mental retardation/brain damage, which could cause a person to be incompetent
due to poor cognitive functioning.
Felonies
Major mental illness is usually treatable with psychotropic medications.
If a state hospital finds a defendant charged with a felony incompetent
to stand trial due to major mental illness, an additional period of
“evaluation and treatment” will usually be ordered lasting
up to an additional 90 days pursuant to RCW 10.77.090, during which
medications may be administered even over the objection of the defendant.
In the vast majority of cases, after the 90 days the state hospital
reports the defendant has regained competency.
These persons are no longer floridly psychotic. Their delusions, although
often still present, do not motivate their behavior to the prior extent,
and they usually realize society does not believe their delusions. They
are “competent” in the sense that they can discuss the alleged
incident calmly, though their explanation may still be disjointed and
unreasonable. They are often not really able to make strategic decisions
about how to handle their case, but Washington law does not require
that a defendant be able to make decisions about trial strategy in order
to be competent, State v. Benn 120 Wn. 2d 631 (1993), State v. Ortiz
104 Wn. 2d 479 (1985) cert. denied 476 U.S. 1144 (1986). If such patients
are sent to jail to await further proceedings, they frequently refuse
to take their medications there, since they cannot be forced to take
medications in jail absent civil commitment proceedings (RCW 71.05);
they may therefore again “decompensate” and again become
incompetent to stand trial.
In the rare case that a defendant charged with a felony is not thought
to be competent after the first 90-day “extension,” a second
90-day extension can be ordered (RCW 10.77.090 (2)). At the end of the
second 90-day extension, the defendant has the right to a jury trial
on the issue of incompetency. If the court or jury finds he is still
incompetent, they must decide that he is dangerous and substantially
likely to regain competency with more treatment before another period
of treatment can be ordered. This finding will be hard to make after
over six months of treatment that has not caused him to regain competency.
Unless he meets both conditions, the charges must be dismissed without
prejudice and he must either be released or civilly committed. RCW 71.05;
RCW 10.77.090 (3). By this point the defendant may not meet the “recent
overt acts” test for civil commitment standards, although he may
still be civilly committable as “gravely disabled.” See
RCW 71.05. These statutes were enacted because in 1972 the U.S. Supreme
Court held that a criminal defendant found incompetent to stand trial
cannot be committed indefinitely unless found dangerous. Jackson v.
Indiana 406 U.S. 715 (1972).
Developmentally Disabled Defendants
The vast majority of defendants charged with felonies who suffer from
an acute major mental illness are eventually found to be competent after
treatment with psychotropic medications. Most defendants who are diagnosed
as retarded or brain damaged are also found to be competent to stand
trial. In one case, the defendant had an IQ of 49 to 59, could not say
what the shape of a ball was, thought Longfellow was Jesus, and thought
there was one day in a week, but the trial court’s finding he
was competent was upheld upon appeal even though the experts agreed
the defendant was totally unable to assist in trial strategy decisions.
State v. Ortiz 104 Wn. 2d 479 (1985). In another case, the defendant’s
competency was upheld despite an IQ ranging from 49 to 63, and the fact
he had been ruled incompetent due to his presumably incurable developmental
disability for a number of other earlier serious felony charges. State
v. Minnix, 63 Wn. App. 494 (1991). In a recent case, experts agreed
the defendant had an IQ of 60, and sometimes there were 10 minutes of
silence between when he was asked questions and when he answered, but
his competency was also upheld upon appeal. State v. Lawrence, 108 Wn.
App. 226 (2001). That court stated, “Based on Lawrence’s
ability to articulate to the experts a description of the allegations
and his version of what happened on the night of the alleged rape, we
conclude he had the ability to assist his counsel in a defense.”
RCW 10.77.090 (3) provides that if a court finds a developmentally
disabled (mentally retarded) defendant charged with a felony incompetent
to stand trial, it shall stay the proceedings for no longer than 90
days while the defendant undergoes evaluation and treatment for competency
restoration. If after 90 days the court still finds the defendant incompetent,
the charges must be dismissed without prejudice unless the court finds
the defendant is dangerous and finds probability that the defendant
might regain competency in the near future. If charges are dismissed
due to incompetency, the state’s only option is a civil commitment.
In many cases in which retarded individuals are civilly committed to
a state hospital after a finding of incompetency to stand trial when
the charges are for violent crimes, the Division of Developmental Disabilities
(DDD) will place the individual in a DDD group home with 24-hour supervision
and alarms on the doors and windows. If the individual leaves the group
home his “less restrictive alternative” (LRA) will be revoked,
and he will be detained and sent back to a state hospital.
Misdemeanors
All of the above illustrates that defendants charged with felonies
rarely have their charges dismissed because of incompetency to stand
trial, but the issue is somewhat different for those charged with misdemeanors.
If the defendant is charged with a non-felony crime and has no history
of violent acts, he cannot be recommitted after the initial period of
commitment lasting up to fifteen days, and charges against him must
be dismissed without prejudice if he is still incompetent to stand trial,
although civil commitment proceedings may still be brought against him
if appropriate. See RCW 10.77.090(1)(d)(i).
If the charge is non-felony but the defendant does have a history
of having committed “an offense involving actual, threatened,
or attempted physical harm to the person,” (RCW 10.77.090(1)(d)(i)(A))
the Court may order him committed for up to an additional fourteen-day
period (beyond the initial up to fifteen-day commitment used to evaluate
his competency) if he is still thought to be incompetent to stand trial.
After the end of that fourteen-day period of commitment, charges must
be dismissed if it is thought that the defendant has not regained competency,
although again civil commitment proceedings under RCW 71.05 may be initiated
if appropriate.
Courts of limited jurisdiction must often conduct “mini-trials”
on the issue of whether the currently charged offense or any previous
offense “involved actual, threatened, or attempted physical harm”;
the burden is on the state to prove the offense(s) did meet that test.
Usually the judge makes the decision by reading the police reports concerning
the offense(s) and/or taking testimony from the defendant if he or she
chooses to testify.
Seattle District Court has an innovative Mental Health Court funded
by special grants, presided by Judge Mark Chow; it was established about
five years ago after a fireman was stabbed and killed by a mentally
ill man. Defendants with questionable competency are evaluated by Western
State Hospital. Those evaluated as incompetent but with a history of
violent crimes may go through mini-trials on the issue of whether they
have a history of violence. Those with no history of violence have their
charges dismissed after the 15-day period of observation. Those with
histories of violence may be committed for an additional 14-day period
of “competency restoration” as mentioned above.
If a mentally ill defendant is thought to be competent, he may volunteer
for Mental Health Court (with agreement of the prosecution) and agree
to certain individualized conditions of treatment in lieu of prosecution,
sometimes under a straight “diversion”, sometimes with a
deferred prosecution, and sometimes with an agreement that if the treatment
requirements are not met a trial will be held with a stipulated order
of continuance (SOC) under which the police reports may be admitted
as evidence.
Clinicians from Seattle Mental Health are in court on a day-to-day
basis for both jail calendars and regular calendars. Their job is to
attempt to integrate services such as treatment, housing, and vocational
programming in a holistic fashion and develop individualized treatment
plans. Both public defenders and prosecutors develop expertise in working
with the mentally ill. The program claims a 51 percent “success
rate” in the sense of completion of the treatment requirements
and ultimate dismissal of charges. Under the program, many police officers
receive special training in handling the mentally ill. Police have discretion
to take the mentally ill to Harborview Hospital for “triage”
instead of jail if they appear to be so disturbed as to be civilly committable.
Juveniles
It is clear that RCW 10.77 also applies to juvenile court proceedings.
State v. E.C. 83 Wn. App. 523 (1996). In western Washington state-requested
evaluations of juveniles for competency to stand trial are usually conducted
at Child Study and Treatment Center (CSTC). Delinquent populations have
below average intellectual functioning and a higher amount of major
mental illness and are thus more likely than non-delinquent children
to be incompetent to stand trial. Cotto, R. et al. (1992), Prevalence
of Mental Disorders in the Juvenile Justice System. In J. Cocozza (Ed.)
Responding to the Mental Health Needs of Youth in the Juvenile Justice
System, pp. 7-48 (Seattle). Delinquent children have also been determined
to have poor understanding of court proceedings due merely to immaturity
and developmental delay. Conden, V & McKea, G (1995) Competency
to Stand Trial in Juvenile Delinquency Proceedings: Cognitive Maturity
and the Attorney-Client Relationship, Journal of Family Law, 33, 629-660.
This raises the question of whether the standard for competency should
be lower in the juvenile justice system, but clearly children tried
as adults must meet adult standards for competency. A recent study by
the MacArthur Foundation tested non-delinquent children, and found that
one third of the 11 to 13 and one fifth of the 14 and 15 year olds could
not understand the proceedings or help lawyers defend them. Grisso,
T, et al. (2003) Juveniles’ Competence to Stand Trial: A comparison
of Adolescents’ and Adults’ Capacities as Trial Defendants,
in press, Law & Human Behavior, (available at http://www.mac-adoldev-juvjustice.org/).
Competency to Choose a Defense
Does a finding of competency to stand trial require a finding of competency
to choose a defense? Many mentally disabled defendants are found competent
to stand trial, but have limited insight into their conditions, and
have very poor judgment regarding trial strategy. Many do not wish to
view themselves as mentally disabled.
In 1983 the Washington Supreme Court held that a defendant who is competent
must be able to “broadly control his own defense, …to decide
within limits, the type of defense he wishes to mount, …and the
right to make fundamental decisions about the course of the proceedings.”
State v. Jones, 99 Wn. 2d 735 (1983). The Court held that the standard
of competency to stand trial includes the level of competency required
to plead to an information, requires the ability to make necessary decisions
at trial, and to understand and choose between alternative decisions
at trial. Furthermore, the court held that a competent defendant must
be able to avail himself of all constitutional rights during the course
of a trial, to plead, to waive the right to counsel, to waive the right
to remain silent, and must have at least some ability to consult on
trial strategy. State v. Jones, 99 Wn. 2d 735 (1983). This suggests
that a mentally ill defendant who has been declared competent can decline
to plead insanity.
A competent defendant cannot be forced to plead insanity if the Court
finds his waiver of the insanity defense to be intelligent and voluntary.
Id at 743-47, State v. Hahn, 106 Wn. 2d 885 (1986); State v. McDonald
96 Wn. App 311 (1999). Furthermore, a competent defendant may waive
his right to counsel and represent himself if the waiver is made knowingly
and intelligently. State v. Hahn 106 Wn. 2d 885 (1986). He may be able
to waive his right to counsel even if he is of borderline intelligence
and illiterate. State v. Imus 37 Wa. App. 170, review denied, 101 Wa.
2d 1016 (1984).
One might conclude from the cases cited that a fair number of defendants
might be found incompetent based on their inability to assist their
lawyers in choosing between alternative defenses. However, there is
a competing line of cases that holds defendants need not be able to
assist in making strategic decisions in order to be able to assist their
attorneys, e.g. State v. Ortiz 104 Wn. 2d 479 (1985), which seemingly
conflicts with State v. Jones, 99 Wn. 2d 735 (1983), decided just two
years earlier.
In one death penalty case, the author testified the defendant’s
delusional belief that “Pete” would kill his family if he
testified through allocution in the penalty phase caused him to be unable
to assist in his defense, but the Washington Supreme Court did not consider
this to go to inability to assist in his defense, but rather was thought
to go toward his inability to choose trial strategy, and thus his competency
was upheld. State v. Benn, 120 Wn. 2d 631 (1993).
Indeed, one Washington case states that “ability to assist at
trial” is a “minimal requirement”, State v. Harris,
114 Wn. 2d 419 (1990). More prosecution-oriented expert witnesses often
claim a defendant is competent based on ability to learn the roles of
courtroom personnel. Indeed in one case involving a developmentally
delayed defendant, the Washington Supreme Court upheld the trial court’s
finding of competency in part because the defendant “understands
that there is a judge in the courtroom, that a prosecutor will try to
convict him of a criminal charge, and that he has a lawyer who will
try to help him.” State v. Ortiz, 104 Wn. 2d 479 (1985), cert.
denied 476 U.S. 1144 (1986). However, a defendant’s understanding
of courtroom personnel and their responsibilities does not establish
that a defendant is competent to stand trial if the weight of expert
testimony indicates that the defendant is incompetent. State v. Swain
93 Wn. App 1 (1998).
Defense Attorney’s Options
All of this suggests that a defendant is likely to eventually be found
competent despite his mental disability. He may have benefited to some
degree from treatment, but probably lacks insight, and therefore will
likely be difficult to handle as a defense attorney. A defense attorney
had three approaches available: (1) go to trial on the merits, (2) attempt
a mental defense (such as diminished capacity or insanity), or (3) try
to negotiate a plea-bargain and encourage the defendant to plead guilty.
Even if the State’s case is weak, going to trial will be fraught
with peril if the client wants to take the witness stand since mentally
disabled clients may make a poor impression on the jury, and/or may
be unpredictable on cross-examination. If the attorney does not think
he should take the stand, can he prevent him from doing so?
What if the attorney’s advice is that the defendant should plead
insanity, but he does not wish to put on a mental defense? If the attorney
attempts to have him plead insanity he must be apprised of and understand
the nature of the charges against him, and the consequences of the plea.
The insanity plea must be made “voluntarily and intelligently,”
and the state has the burden of showing that these constitutional requirements
are satisfied. State v. Brasel, 28 wn. App. 303 (1981). Will the client
be able to meet these requirements? A competent defendant may waive
the insanity defense; if you feel this is the wrong decision, what can
the attorney do?
What if the attorney’s judgment is that a plea-bargain is the
best approach? It is clear that even if the attorney thinks a guilty
plea makes sense, and even if the client wants to plead guilty, the
attorney cannot hide from the Court any expert opinion that asserts
he is incompetent to stand trial or plead guilty. That would open the
attorney up to a later claim of ineffective assistance of counsel because
the client would have been deprived due process. See Personal Restraint
of Fleming, 142 Wn. 2d 853 (2001). Furthermore, even if he pleads guilty,
the client could later have misgivings and could obtain MHE opinion(s)
that he was incompetent to enter a guilty plea. See State v. Marshall
144 Wn. 2d 266 (2001). Besides, the Court may decide the defendant is
not competent to enter a plea—a defendant is incompetent to plead
guilty if he is incapable of properly appreciating the peril posed by
the prosecution and of rationally assisting in the defense to the charge.
State v. Marshall 144 Wn 2d 266 (2001).
To sum up, there are many ways a mentally disabled client may resist
his lawyer’s sound advice, and may insist on pursuing a course
that seems ill-advised to the lawyer. Often times the only way to resolve
these vexing dilemmas is to attempt to withdraw from the case. In order
to do this, the lawyer must obtain the judge’s permission; see
RPC 1.15 B (3) which allows a lawyer to withdraw from a case if there
is no material prejudice. Obviously the decision to withdraw will have
to be made in a timely fashion.
