This is a fact specific inquiry regarding the complexity of incomp. & insanity evaluations. If your not interested in these issues, it will bore you, so no sense reading on.

However, if you have knowledge and interest, please read the following narrative and comment on the questions posed. Feel free to comment on other issues you see arising.

Thanks.

Not so Hypothetical Hypothetical!

Say a defendant files a Notice of intent to rely on insanity defense. Court appoints doctor to examine on insanity, and also orders under �46C.103 that doctor also examine for incompetence. Doctor examines and finds that defendant is incompetent, does not examine for insanity, and reports to court defendant is incompetent. Court has incompetency hearing determines defendant to be incompetent based on sole doctor's report, so orders and orders defendant to NTSH.

NTSH after proper evaluation and treatment returns defendant to competence and so finds and reports to the court. Sometime thereafter, Defendant�s attorney provides court with a suggestion of incompetence because the attorney cannot consult with client due to apparent incompetence. So Court appoints another doctor to examine for competency. 2nd doctor finds defendant is incompetent. Based on second doctor�s opinion of incompetence, Court finds defendant incompetent and orders defendant to NTSH.

NTSH after proper evaluation and treatment returns defendant and reports to the court that defendant is competent and further reports that defendant is malingering his symptoms of incompetence, although he does have a significant mental diagnosis and illness.

Attorney files an objection to the finding of competence. The Court appoints both doctors who initially found defendant incompetent and they each file a report that defendant is incompetent to stand trial. Trial on the merits is conducted and after the testimony of the defendant�s experts (the two doctors) and testimony from NTSH�s doctor, the Court found the defendant malingering and competent to stand trial.

So now, the issue of defendant�s sanity at the time of the offense is back on the front burner due to the Notice of the insanity defense originally filed. The court orders that a new doctor be appointed to determine the defendant�s sanity at the time of the offense.

Question: If the new doctor finds that he cannot evaluate the defendant for insanity because he is presently incompetent and so reports to the court. What does the court or the State or the defendant�s attorney do?

#1 The attorney files a motion for a competency hearing and wants a jury. Can the court deny a new proceeding to determine competence???????? Don't think so, but he just made a finding of competence & malingering, doesn't that count?

#2 If he does conduct a trial on incompetence and the jury finds him competent and the next doctor appointed to determine insanity determines too incompetent to evaluate what does the court do???????????

#3 If the jury finds the defendant incompetent, where does the court send him??? To NTSH who has already concluded he is malingering his symptoms??? Is there anywhere else the court can send the defendant??????

Just looking for constructive comments, suggestions and ideas.

Thanks.

I can identify with your situation since I had a contested jury trial on competency a few months ago where the defendant went back and forth to NTSH twice and was found to be malingering.

In answer to #1, I would expedite the process as much as possible. I think the judge can deny a jury trial on competency absent some new evidence that has come to light since the court trial restoring competency. The longer it goes on, the more likely that defense counsel will be able to allege new facts suggesting incompetency.

In answer to #2,the court should inform the doctor that the defendant has been found to be malingering and that the exam should be limited to the question of sanity.

In answer to #3, I think it is back to NTSH.

What is the defendant charged with? Any chance of a plea agreement?

Murder, of course. Attorney won't consider plea while mental issues are pending, especially insanity.

Thanks for responding.