When Worlds Collide: Mentally Ill Criminal Defendants-part I

• Publication year: 2000
• Pages: 57
• Citation: Vol. 29 No. 6 Pg. 57

29 Colo.Law. 57 Colorado Lawyer 2000.

2000, June, Pg. 57. When Worlds Collide: Mentally Ill Criminal Defendants-Part I

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57

Vol. 29, No. 6, Pg. 57

The Colorado Lawyer
June 2000
Vol. 29, No. 6 [Page 57]

Specialty Law Columns
Criminal Law Newsletter
When Worlds Collide: Mentally Ill Criminal Defendants - Part I
by Lael Montgomery

Colorado statutes and case law envision a nicely compartmentalized, two-track world in which people are either mentally ill or mentally ill and charged with a crime. In the first case, they are deemed to be in need of treatment and in the second, in need of an evaluation to determine whether they are competent to proceed with their criminal cases There is no statutorily described third track for actively psychotic, delusional, or suicidal defendants who are too ill to be in jail and who must be removed to a psychiatric facility for immediate, emergency treatment

Because there is no clear law describing this third track along which an ever-growing number of defendants travel, confusion reigns. In an attempt to dispel some of this confusion for practitioners, Part I of this article describes Colorado's laws on competency. Part II, to be published in the July 2000 issue, will describe the laws pertaining to emergency mental health treatment and the issues that may arise from medicating criminal defendants.

The Criminal World: Competency

CRS §§ 16-8-101 et seq. set forth the law pertaining to incompetency (and insanity) in criminal cases. A person is "incompetent to proceed" in a criminal case if that person suffers from a mental disease or defect that renders him or her incapable of understanding the nature and course of the proceedings, or of participating or assisting in his or her own defense, or of cooperating with his or her attorney.1 The "mental disease or defect" must be severely abnormal and one that grossly and demonstrably impairs the person's perceptions or understanding of reality. The disease or defect may not be drug- or alcohol-induced nor may it manifest only as criminal or anti-social behavior.2 Amnesia that prevents a defendant from assisting in his or her own defense may be sufficient to support a finding of incompetency.3

Moreover, no person shall be tried, sentenced, or executed if incompetent.4 This blunt statutory pronouncement has its genesis in ancient common law practice.

The common law origins of the incompetency doctrine date back to mid-seventeenth century England. Blackstone wrote that a defendant who becomes "mad" after the commission of an offense should not be arraigned "because he is not able to plead . . . with the advice and caution that he ought," and should not be tried, for "how can he make his defense?"5

In 1960, in the case of Dusky v. United States,6 the U.S. Supreme Court first described a standard for determining competence, whether a defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding?and whether he has a rational as well as factual understanding of the proceedings against him." Six years later, it ruled that the principles of due process required that a defendant not be tried or convicted if incompetent.7 Likewise, Colorado originally found authority to prohibit trying mentally incompetent defendants in the common law8 and, later, in the ideals of due process.9

Raising the Issue

A judge may initiate competency proceedings if he or she has "reason to believe" that a defendant is incompetent.10 The "reason to believe" standard is constitutional, violating neither the Due Process Clause nor the Equal Protection Clause.11 Proceeding with a criminal case when the defendant is incompetent, by contrast, would violate due process.12

Concerns about a defendant's competency also can be raised by the district attorney or defense counsel, preferably prior to whatever hearing is scheduled, but during the hearing if that is when questions about the defendant's mental condition become apparent.13 If the issue is first raised at trial and after a jury has been impaneled, no jeopardy will attach.14

In practice, the prosecutor will rarely be in a position to raise the issue because of typically limited contact with a defendant. Defense attorneys have a whole separate set of issues. Among those is maintaining the confidence of a client while bringing that client's mental difficulties to the court's attention. A greater ethical conundrum is presented when the client has been arrested on a minor charge, such as "no operator's license" or the theft of a few dollars worth of groceries, and has been offered "time served" or other minimal sentence, yet appears incompetent to enter a knowing plea. Clearly, beginning a journey through the statutorily mandated competency procedures will mean a much longer deprivation of the client's liberty.15 Colorado law nonetheless requires the defense attorney, as an officer of the court, to raise the issue if he or she sees it.16

Although the court needs only a "reason to believe" a defendant is incompetent to order an evaluation, there is a presumption of competency, and more than mere speculation is required to overcome it. Thus, a defense attorney who told the judge that his client needed an evaluation, but refused to say why, even when offered an opportunity to meet in camera, did not provide the court with enough information to support the order sought.17 Similarly, because insanity and incompetency are two separate concepts, even a prior finding of insanity is insufficient, without more, to refute the presumption of competency.18 The court, however, needs no more than "a doubt" about a person's competency.19

Once that doubt exists?once a judge has reason to believe that a defendant may not be competent to proceed?he or she has a "duty to suspend the proceedings and determine" the issue.20 It is constitutional error if the statutory steps designed to answer that question are not followed.21 A discussion of these steps...