Determining Trial Competency Is a Prerequisite, Not an Option

Counsel: Thanks for your message about last week’s examination of my client.
Doctor: Or lack thereof.

Counsel: Apparently so. What happened?
Doctor: Ultimately, nothing.

Counsel: Did the jail remember the Zoom appointment this time?
Doctor: They’re the ones who called to remind me.

Counsel: Was the laptop they use for video arraignments working this time?
Doctor: No, so the jailer let us use her laptop.

Counsel: Sound quality? Picture quality?
Doctor: Almost as good as that video of your client confessing on the night of the arrest.

Counsel: Thanks for reminding me.
Doctor: Even better than that video of your client cleaning out the cash register at the …

Counsel: Again, thanks. So, what happened?
Doctor: Your client wouldn’t do it.

Counsel: Wouldn’t complete the testing? Wouldn’t talk about the facts of the case?
Doctor: Wouldn’t come out of the cell.

Counsel: Too ill, maybe? Too confused? Too scared? Too psychotic?
Doctor: The jail staff said your client was calm, polite, and reasonable, and told them that “I don’t need this examination because there’s nothing wrong with me.”

Counsel: Is there anything you can do with this information? I mean, how can this be rational participation when a client doesn’t participate at all? Is there anything you can send me?
Doctor: I can send you a bill. It took them 30 minutes to switch laptops, and then 45 minutes to remember to come back and tell me about the refusal. In any event, because I didn’t actually examine your client, I don’t know what—if anything—might be the underlying mental condition, and I don’t have any sort of firsthand information about your client’s grasp of the nature and potential consequences of these proceedings.

Counsel: I was afraid this was going to happen. For one thing, my client tried to fire me three days before the examination, saying, “you just want me to be found incompetent because they’re not paying you enough to try this case, and you can’t get them to take an offer.”
Doctor: How does that make any sense, when it’s taken all this time to set up these competency exams?

Counsel: Aha! Can you base an opinion on that?
Doctor: Not enough, and besides, I wasn’t there.

Counsel: Yeah, I know. It gets better. You probably haven’t heard this yet—and I only just found out about it myself—but apparently my client turned down an examination with the state’s doctor too, two days before you made your own attempt, and the judge told me this morning that if it didn’t go any better with you, then we’re “done” with competency in this case.
Doctor: “Done”? We haven’t even started. “Done,” as in “off to the state hospital”?

Counsel: “Done,” as in “the Court will no longer concern itself with competency issues.”
Doctor: Is that a direct quote?

Counsel: Oh, yes. Third person all the way. Last week in the judicial center cafeteria it was “the Court will have the potato salad.”
Doctor: Was there any sort of explanation?

Counsel: Next time you come over here on a Wednesday, try the potato salad yourself. It’s to die for.
Doctor: Was there any sort of explanation about the judge not being “concerned” anymore?

Counsel: “By refusing to be evaluated, this defendant has forfeited the right to a competency defense.”
Doctor: Is that another direct quote?

Counsel: “Competency defense.” I swear.
Doctor: How are you supposed to settle a case with a client who may not understand what’s going on?

Counsel: Well, to be fair, at this point I don’t know what’s going on either.
Doctor: How are you supposed to go to trial with a client who may not understand what’s going on?

Counsel: In a word, “repeatedly” … because, of course, I’d need to appeal this case, and then I’d wind up having to try it again a year or two from now.
Doctor: Because …

Counsel: Because the competency issue was never settled. Because the court may have tried someone who wasn’t capable of proceeding.
Doctor: Could the appellate court look at the recorded trial and conclude something like “this defendant was observed to interact capably with counsel, accepted a reasonable and proportionate offer midtrial, and allocuted coherently and responsively at sentencing”?

Counsel: Yes, they could. They shouldn’t, but they could. The right thing to do would be to send the case back downstairs with instructions for a nunc pro tunc competency evaluation.
Doctor: “Now for then”?

Counsel: Not bad!
Doctor: I started out majoring in Latin, until I started wondering how I was supposed to pay my college loans when I got out. So, basically, it’d be a do-over?

Counsel: Presumably … although there’s no way to be sure that the same thing would—or, essentially, wouldn’t—happen again when things got back on track.
Doctor: What are you going to do now?

Counsel: I’m kind of caught between two unacceptable options. I can try to find out what my client’s goals are for this case, and attempt to offer some advice in return. In other words, malpractice, because my client has yet to say anything to me that makes sense. Or I can simply attempt to muddle through, disregarding my client’s expressed wishes and doing whatever I want. In other words …
Doctor: Malpractice?

Counsel: Yeah.
Doctor: Given these choices, what’s your best option?

Counsel: First of all, I’m going to document every single aspect of this matter, even more thoroughly than usual.
Doctor: To cover yourself?

Counsel: That’s a welcome byproduct of the process, but the identity of the party whose needs come first never changes.
Doctor: The insurance company? Yeah, I know: the client.

Counsel: There’s someone else who needs to go on the record, too: the judge.
Doctor: Didn’t the judge already rule on this issue?

Counsel: Actually, no … and that’s the problem. “No longer concerning yourself” with something and referring to a “defense” that doesn’t exist is no substitute for ruling that a defendant either is or is not competent. In some jurisdictions—unfortunately, not this one—the statute specifies that there has to be a full-blown competency hearing whenever the issue is raised. No stipulation allowed.
Doctor: But here …

Counsel: If I have a clear decision on how the court regards my client’s competency as opposed to my client’s consequences, then at very least I know where we technically stand.
Doctor: Do you run into these problems a lot with this judge?

Counsel: The truth is, this is an excellent judge. I understand why the court doesn’t want to reward people for thumbing their noses at the system.
Doctor: Except you.

Counsel: That’s part of the system—lucky for all of us.

Our readers were also promised a “balanced approach,” so here goes. Prosecutors also have an interest in moving matters forward and needn’t merely sit on the sidelines when defendants refuse to participate. Institutional observation at a forensic psychiatric facility—whatever its shortcomings—may yield at least some insights, and may result in a successful evaluation if refusal was really a byproduct of the unavailability of medical treatment.

Please feel encouraged to contact Dr. Drogin at [email protected] with any questions about the nonnegotiable nature of trial competency determinations, or with any suggestions for future topics.