Decisional Competency is a Fundamental Right
by: Abassos • January 17, 2011 • no comments
You know how judges, DAs, and even many evaluators, will focus on a defendant's knowledge of the criminal justice system as the touchstone of competency? It is always bewildering when a client who is floridly psychotic and clearly unable to be a defendant is declared competent because he or she can respond to questions like "Who is the judge?" with answers like "He's the boss of the court." Answers which are often learned verbatim at the OSH competency course. One solution to the problem is to go to the evaluation and personally ask follow up questions like "What does that mean he's the boss of the court?" or more abstract questions like "How would you make the decision between whether to have a trial with a judge or a trial with a jury?" An additional, even more effective solution is to focus the judge or the evaluator on decisional competency: whether the defendant can make the basic decisions that are his alone to make. For example, an attorney is ethically barred from making the decision to plead guilty or go to trial. The client has to make that decision. Which means the client has to be able to understand and process basic information about a plea and compare it against basic information about going to trial and come up with a rational decision between the two abstract choices. I have traditionally educated judges and evaluators by having a conversation with them. But Jesse Merrithew, an MPD attorney, has done me one better and put the argument in a memo to get everyone on the same page:
[Competency Memo]. Here are the guts of the memo:
Mr. XXX has a fundamental right, through the Due Process Clause of the 14th Amendment, not to be tried, convicted, or sentenced if he is not competent. Pate v. Robinson, 383 US 375, 378 (1966). A defendant, necessarily, is incapable of waiving that right. Id. Oregon protects this right through the statutory scheme set out in ORS 161.360 - 161.370. ORS 161.360 codifies the ruling from Pate in its definition of "incapacity:"
(2) A defendant may be found incapacitated if, as a result of mental disease or defect, the defendant is unable:
(a) To understand the nature of the proceedings against the defendant; or (b) To assist and cooperate with the counsel of the defendant; or (c) To participate in the defense of the defendant.
Id. Caselaw has explained that this test involves three parts. The defendant must be able to a) factually understand the nature of the proceedings against him, b) rationally understand the nature of the proceedings against him, and c) "consult with his lawyer with a reasonable degree of rational understanding." Dusky v. US, 362 US 402 (1960). If a defendant does not have this ability, then none of his other constitutional rights can be reliably enforced. Therefore, the US Supreme Court has said that competency is "fundamental to an adversary system of justice." Drope v. Missouri, 420 US 162, 172 (1975).
In order to put this issue in context, it is helpful to remember the decisions a defendant must make when charged with a criminal offense. In December of 2006, the Oregon State Bar Counsel published an article in the bar journal looking at precisely this issue. Mullman, Chris, Bar Counsel: Who Decides? The Lawyer, The Client, or The Court?, 67 Or St B Bull 25 (December, 2006). The article makes clear that the attorney is the defendant's agent. The only choices that the attorney makes are strategic decisions based upon the client's goals. The defendant must choose whether to have a trial or plead guilty, whether to accept, reject, or counteroffer in reaction to a plea offer, whether to have a court or jury trial, whether to testify or remain silent, and, importantly in these types of cases, whether to assert a GEI defense or not. Particular decisions about evidentiary issues or objections may be made by the attorney, but only is the decision is reasonably calculated to achieve the defendant's goals. In order to be competent under the law, the defendant must have the ability to make all of these decisions rationally. In other words, he must understand the risks and potential benefits of each choice, and have the ability to make a rational decision based on that knowledge.
Whenever that ability is called into question, the Court has an obligation to determine the issue of competency. In recognition of the fact that competency can change from week to week or even day to day, appellate courts have placed a continuing obligation upon trial courts to determine competency whenever it is brought into question. State v. Gilmore, 102 Or App 75 (1990) (finding that a motion for a competency hearing is never untimely); Maxwell v. Roe, 606 F.3d 561 (2010) (granting a writ of habeas corpus where the California trial court failed to sua sponte order a competency hearing in the face of evidence of defendant's incompetence). It is not sufficient for a court to simply rely upon a prior opinion of an expert in the face of evidence that circumstances have changed. Maxwell, 606 F.3d at 565.
In this case, as described in the attached affidavit, Mr. XXX has become increasingly psychotic since his return from the state hospital. His competency, if he ever had it, was limited to the ability to recite statutory maximum sentences, the name of his lawyer, and appropriate courtroom behavior. He has never articulated a goal for the representation, is unable to correctly describe the comparative risks of going to trial versus pleading guilty, and is unable to assist me in gathering evidence of his mental illness because he does not believe that he is mentally ill.
Under those circumstances, allowing this case to proceed to trial would violate Mr. XXX's fundamental right to competency.
