Criminal Procedure -- competency.

Byline: WISCONSIN LAW JOURNAL STAFF

Wisconsin Court of Appeals

Criminal

Criminal Procedure -- competency

Where postconviction proceedings cast into doubt whether the defendant was competent at the time of trial, it was error to deny the defendant's motion for a new trial.

"Although obvious hazards attend retrospective competency hearings, including the passage of time, '"mere passage of time may not make the effort meaningless."' Johnson, 133 Wis. 2d at 225 (citation omitted). In fact, '(t]he passage of even a considerable amount of time may not be an insurmountable obstacle if there is sufficient evidence in the record derived from knowledge contemporaneous to trial.' Id. (citation and quotation marks omitted). Here, although there was no pretrial competency evaluation done and Smith did not testify at the postconviction hearing, two medical experts each provided evaluations, based on numerous historical and legal documents, concluding that Smith was incompetent at the time of his trial and sentencing. Nonetheless, the postconviction court concluded that Smith's experienced defense counsel, and the judge who presided over both the trial and the sentencing, were in better positions to observe Smith. Because neither raised concerns, the postconviction court concluded that Smith, in fact, was competent both during trial and at sentencing. The postconviction court weighed more heavily the uninformed competence opinions of defense counsel and the trial court-who knew nothing of Smith's extensive mental health history, the DOC records, the jail records or the two experts' opinions-and discounted the experts' evaluations. In so doing, the postconviction court erred. As shown...