I am handling an agg sex assault of a child case against a Defendant who is MR. He has already gone to NTSH and has returned "not likely to regain competency". I have been proceeding under 46B to have him committed to NTSH while keeping my indictment pending in the criminal court instead of dismissing the indictment and having him committed in the civil court. This will be a jury trial on the request of defense counsel. Has anyone done this? I'm particularly interested in finding out of I'll likely be able to put on evidence of the crime to show that he creates a substantial risk of injury to others. Also, wondering if anyone has called the professionals from NTSH and if so how they did. Finally, I'm curious as to what the jury charge looked like. My Judge did a draft and I have concerns. Please let me know if you've ever handled one of these. Thanks

I have had to subpoena a doctor from Vernon's. He was not very cooperative. I think I decided I would try to avoid using him in the future. If you agree that he is incompetent what are you trying before a jury????

How many of you have really crazy Defendants sitting in your jails waiting for a spot at Vernon's? I have 2 that we've been housing for over 9 months.

The jury trial goes to the civil commitment. The defense attorney is trying to make a record because he believes the statute is unconstitutional. So, I have to prove the Defendant is MR, that he presents a substantial risk of injury to others or himself, or that he essentially can't take care of himself, that these later two conditions (or just one of them) are the case BECAUSE of his MR, and that he needs to be in a supervised facility. I'm worried that I may not be able to show that he sexually abused the children, and without this evidence there really is no danger. He has no criminal record. He likes sex with kids. He's been in jail almost two full years except the 90 days he was in NTSH.

While in criminal court, this case is held subject to the rules of the Health & Safety Code, when not otherwise in conflict as 46B will prevail.

Talk to your counterparts in Austin who commonly do MH/MR commitments and see if they will assist. This is an MR commitment under Chapter 593. Sec. .052 gives you the standard for commitment, the evidentiary standard is beyond a reasonable doubt (in contrast to MH commitments where it is clear and convincing -- here because the commitment is indefinite in length, as MR is not a condition which can be remediated). Note that Sec. .041 requires as a pre-condition a DMR (determination of mental retardation).

The standard of dangerousness or deterioration is not difficult to meet and little recitation of the criminal acts are necessary, save for procedurally advising the trier of fact (jury unless waived) of how and why the case is before them. The issue of lack of legal competency is not a one-to-one equivalent to incapacity, or to meeting the H&S standard for civil commitment. But a simple introduction of the defendant's functional abilities will make the issue very clear.

The more interesting legal question is how you go about deciding when to drop the criminal charges and rely upon indefinite commitment in the civil system -- which has something to do with to what facility the defendant is committed and how much you trust them to provide continuing supervision and treatment for an indefinite period.

I forgot to mention that under Jackson v. Indiana we are prohibited from confining this defendant indefinitely with an expectation or purported goal of restoration -- at some point we have to consider other alternatives. In Harris County we had a rather brutal murder committed by a mentally retarded, Vietnamese, male, who could scarcely say his own name. He was not competent and repeated evaluations came to the same conclusion. We were able to ensure indefinite commitment at Mexia....

Good luck.

Floyd, do you have a voir dire you've used? Allison

Allison -- be aware that while Floyd is our friend and very helpful, he is not a prosecutor. He's on the other team! We still like him and he's welcome to visit our forum.

And from my experience, a very honest expert, even when hired by the defense as a mitigation expert. He speaketh the truth. I was duly impressed.

In my other life, Jane, I have prosecuted 500-800 cases in MH/MR commitments - though only a handful of those involved jury trials, as is common in such circumstance. (And have represented the proposed patient in 800-1000 cases over the past decade. As well I have written a half-dozen appeals in these cases, most for the State.) So, no, sorry, I can't go to the barrel and pull up a voire dire -- for in most of those civil cases, we were glad to have a jury member who was breathing.

But, I would be concerned to seek jurors who could listen carefully both to the issue of whether the def was MR - which is one issue - but then not necessarily conclude that merely because of MR he is also incompetent. There is not a 1:1 correspondence between MH/MR and incompetence. Consequently I would look carefully at the evidence supporting MR - but also argue that even if such existed, that doesn't lead to incompetence. (Remember the courts have said that a youngster with the mental ability of a 7 year old was competent (the cite escapes me but I can find it).)

The bottom line is that you need to have 1 or 2 local experts who can confirm or disconfirm Vernon's conclusions. At the same time, I have seen very few cases, if any, where an MR def could successfully argue - Vernon having said he was not restored -- that he could manage his life and did not need further treatment. Remember it is not both dangerousness and deterioration, but either-or...