Defendant is incompetent. Wants a jury trial. Case is a felony.
1) Does competency trial get heard in District court or can County court hear it?
2) How many jurors?
In district court. 12 jurors. Civil rules.
Defendant is plaintiff and gets to start. He has to prove he is incompetent, as there is a presumption of competency. By preponderance of the evidence.
Should be a short trial if everyone agrees he is incompetent (except the defendant).
Thanks, very little question on competence from prosecution or defense attorney. I expect defendant will testify.
Always interesting when defendant testifies.
I had a competency trial in which the defendant's lawyer said she was incompetent, both the defendant and I agreed she was competent (even though she did have a raging mental disease). Jury agreed she was competent.
Then, at trial, defense lawyer argued she was insane. Defendant and I disagreed on that one as well. Defendant wanted self-defense (she shot her landlord because he was a CIA spy trying to assassinate her). Jury convicted.
Very interesting to see how everyone lined up.
Sorry I was late in picking this up, Gordon. John is very correct viz. the procedure. Please look, however, at 46.071(b) -- as there was a change effective 9/1/2011, such that if your def is found "unlikely to be restored", you bypass a .073 commitment and go directly to a 102/103 (or dismissal depending on the gravity of the case). Inasmuch as restoration commitments - at your local facility - cost approximately $37k, and require +-100 days, we don't go for that unless necessary. The upshot is to ensure that you have a finding on that issue.
Thanks. Trial is scheduled for 25 May.
Call me anytime if you need so to do. Note that a jury verdict must be unanimous, 46B.052. It is arguable whether the jury must make the determination of likelihood of restoration, or that is a judicial finding. For if the latter, then it is a single issue matter. Folks differ on that issue. Judge Carruthers in SA argued recently that the jury should also decide on whether the def meets civil commitment criteria. I say "no", for several reasons beyond the scope of this note.
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