Some 30 installments ago, this column’s initial offering raised the issue of how difficult it can be to identify “the most reasonable conclusion to be drawn by defense counsel” when striving to act in the client’s best interest. The complexity of this task increases when the “best interest” is more aptly characterized in terms of competing “best interests,” or—far worse—when the choice in question is really between “the lesser of two evils.” Let’s examine how defense counsel might consult with a reputable mental health professional when the time comes to decide whether trial competency should formally be addressed at all.
Counsel: I want to see if you remember a case we had together almost exactly three years ago.
Doctor: That won’t be too difficult.
Counsel: Because you have a mind like a steel trap?
Doctor: Because almost exactly three years ago I was trapped in my house. Most of the jails around the country were still closed and I was doing just a handful of cases online.
Counsel: This was that burglary case where the client wasn’t very cooperative …
Doctor: Oh, that case! “Wasn’t very cooperative,” as in wouldn’t even come out of the cell to get on the computer.
Counsel: You may recall that the judge wanted to enter a finding of competency based on my client’s alleged refusal to cooperate.
Doctor: What happened?
Counsel: I was preparing for an interlocutory appeal when the prosecutor abruptly dismissed the case—probably because we could all see what a lengthy, drawn-out process this was going to be, and in those days we had more than enough other things to worry about. Also, they already had my client down for three other burglaries, two robberies, and driving with expired license tags.
Doctor: How did you do?
Counsel: We beat the expired license tag rap.
Doctor: Fancy lawyering?
Counsel: It turned out that the car was stolen.
Doctor: That’s one for the firm’s website, I’m sure. Why are you asking me about this case now? Is that client out these days and racking up new charges?
Counsel: That client won’t be getting out until you and I are both long retired. What’s got me thinking about the old case is that in that one, I was preparing to force the court to deal with competency, while in the new case, I’m wondering if I need to force myself to deal with competency.
Doctor: What makes you think competency is an issue in the new case?
Counsel: My new client barely made it out of the eighth grade—at 16 years of age, by the way.
Doctor: Prior IQ scores?
Counsel: 66, 62, 59, 91, and 63.
Counsel: I know. When I looked into this, I found out the test was administered by a student and consisted primarily of true-false questions.
Doctor: Work history?
Counsel: The only job the client could recall was “lookout.” I didn’t feel like I needed to go there. The parents seemed to remember a three-day stint at Burger King. Day One was orientation, and Day Three was the exit interview. This client has been on SSI for years.
Doctor: Was there ever a trial competency workup in the past?
Counsel: You’d know because you’re the only one I ever use for these things. This is actually my client’s first offense.
Doctor: So, what’s the charge? Dare I ask?
Counsel: Shoplifting. The client pushed a wheeled cart containing 15 handheld hair dryers through an unmonitored checkout lane at a downtown department store and headed for the parking lot.
Doctor: This doesn’t sound like someone who’d be driving.
Counsel: Never had a car, never had a license, and never learned how to drive. The client was apprehended right outside the store, watching helplessly as a vehicle driven by someone else “took off at a high rate of speed.”
Doctor: Maybe your client should have stuck with “lookout.” Did anyone get a look at the license tag? That’s right: stolen car.
Counsel: It’s like you were there.
Doctor: Should I start working on my alibi? Anyway, I’m not sure why they’re even prosecuting a case like this, as a first offense for someone with an easily established track record of adjudicated disability.
Counsel: That was my first thought, too, but the prosecutor told me that the store is really sore about the high volume of thefts lately—nationwide, not just locally—and that they’re pressing charges in every case, no exceptions.
Doctor: So presumably competency is the way to go here. Where’s the client now?
Counsel: In jail.
Doctor: Ouch. Has anything useful emerged from your visits?
Counsel: My client can’t remember my name, thinks I’m a social worker instead of an attorney, can’t understand why I keep insisting I’m an attorney, and spends most of our time together crying. The conversation keeps on drifting back to “when do I go home,” but it’s not as if my client can explain where “home” is. When I mention words like “judge,” “jury,” “prosecutor,” “plea,” or “sentence,” all I get are blank stares.
Doctor: Should we schedule a competency evaluation?
Counsel: I don’t know.
Doctor: What would the sticking point be? Money?
Counsel: All I’d have to say to get this particular judge to approve funding is that my client never went to college and frowns a lot. Here’s the thing: My client has been locked up now for several months. The store’s pressure not to drop the case won’t extend to preventing the prosecutor from offering me a plea option that would amount to maybe a few more weeks of time than has been served already.
Doctor: What if we put this on a front burner and got the competency evaluation done within the next few days, funding permitting?
Counsel: That would be great, and I appreciate the offer, but the same judge who wants to throw money at these cases is also a stickler for procedure. The statute makes it clear that competency restoration has to be considered. This prosecutor will push for it, and this judge will grant it.
Doctor: The state forensic hospital has a nine-month waiting list …
Counsel: Exactly. No matter what the outcome of the restoration process, my client winds up doing felony time for a misdemeanor offense.
Doctor: Do you really have a choice in the matter? Doesn’t the statute prevent you from stipulating to competency without an examination-based hearing, and isn’t it considered poor form to plead an incompetent client?
Counsel: Not every jurisdiction bars stipulation, and I’m not prepared to keep my client locked up because of a procedural technicality. I’ll make sure everyone knows what I’m doing and why, and I don’t expect much blowback, even if we are talking about hair dryers.
Our readers were also promised a “balanced approach,” so here goes: Prosecutors are encouraged to keep a close eye on trial competency stipulations, to ensure that these aren’t simply strategies to obtain a defendant’s release with an eye toward conducting postconviction competency challenges with the defendant out of custody.
Please feel encouraged to contact Dr. Drogin at [email protected] with any questions about trial competency procedure, or with any suggestions for future topics.