Three days before our death penalty case was to start and after 2 and half months of picking the jury, defense has now claimed defendant is incompetent. They got a Doctor to back them up, and now we may have to have a full blown contested competency hearing. This is the case where the defendant killed a Dallas Cop and is also claiming he is mentally retarted. ANY SUGGESTIONS???
Josh you know full well that competency hearings don't often blow cases, they merely delay adjudication. And, think of it this way, thorough evaluation at this stage prohibits a claim of MR at some later post-conviction writ stage. Gee, just send him to Vernon, I don't think that Dr. Jumes, et. al. are all that easily fooled.
Very tricky stuff. If the evidence presents a bona fide doubt as the competency of the defendant, then the judge must suspend the trial and hold a separate trial on the issue of competency to stand trial. The defense had the obligation of informing the judge as soon as they had any evidence of possible incompetency. Of course, we are all wondering if they held back the evidence to use it to strategically interrupt the trial.
The lesson for the rest of us is to stay very alert to any evidence of incompetency and request an evaluation if there is ANY evidence supporting incompetency. That way, we don't let the defense dictate the issue.
Sometimes judges are reluctant to spend the couple of thousand dollars in a capital case on a forensic evaluation. It is money well invested.
Of course, you have the right to have the judge appoint an independent expert to conduct a separate forensic evaluation. Good luck.
By the way, there is some suggestion by at least one court of appeals that the bona fide doubt standard has been lowered by an amendment to the competency law: read this thread.
Happened to me on the day I was to start testimony on death capital murder. 1. Get Judge to grant at least a one week reset if possible. 2. Go to jail and see if defendant has been acting weird all the time or just recently. 3. Question the expert why this is just coming up now - jury convened for competency will pick up on that quickly. 4. Do not accept the defense atty saying he can stand trial later because the burden will shift to you if he is found incompetent to stand trial. 5. Get a psych you trust - understand, I do not like this field of experts -it is so subjective as to verge on useless - I would trust a jailer or cop telling me the def is "crazy" as oppose a shrink. 6. Stress how mentally ill you must be to not understand such a easy concept of people deciding whether you committed a crime 7. Ask the defnse atty if he plans to testify that his client is incapable of aiding his defense - if so, what was he talking to the defendant about for all these months.
Posts: 62 | Location: Richmond, Texas, USA | Registered: May 07, 2003
Despite Fred's pessimistic view of shrinks (and after all consider that were he wearing a six gun rig, he would look a lot like Wild Bill Hickock), there is remarkably stable data coming out of Georgetown and the American Criminal Law Review which shows that - nationally - less than one of ten defendants referred for a competency appraisal is opined to be incompetent. Look at Harris County: We dispose of over 100k cases annually, less than 2000 are ever referred for competency evaluations (actually more like 15+ percent), in fewer than 200 is the def ultimately regarded as incompetent - and in most cases there is substantial agreement between the shrinks. (Moroever, after restoration attempts the number falls to a handful..) Remember also that competency appraisals are a present-sense determination - and if a def is seen while in a floridly psychotic state, there may be significant interference with his ability to answer the 46B.025 questions/issues cogently. But after even a short period of aggressive treatment, the vast majority are restored. Fred may even remember a case in which we were both involved wherein the def was certainly immature and even odd, but undeniably competent (and sane).
I do agree that it is important to find a shrink who is knowledgeable about not only the mental health issues but the legal definition of incompetency and can start with Dusky and cite the caselaw to support his interpretation of the clinical data, e.g. the statement in Mata that there must be evidence of recent (moderate to severe) mental illness, or at least mild to moderate mental retardation.
You have a problem - see Jackson v. Indiana, restoration of persons truly incompetent because of MR is rare, but you are in serious straits if that is a successful effort. On the other hand, look at the H&S definition of incompetency, talk with me back channel viz. who your experts are (as well as opposing).
I guess you need to know, too, the validity of his mental retardation claim and if he is at all MR, just how retarded is he? I would think you could be slightly retarded and be competent, especially after those great competency classes they put people through at Vernon. It does seem weird that the issue is just now coming up so close to trial, but if you don't get to the bottom of everything now, you risk a) getting surprised in a bad way in the middle of trial, or b) getting your case reversed.
Posts: 515 | Location: austin, tx, usa | Registered: July 02, 2001
You may want to consider that a person can be competent to stand trial, not insane, and still incompetent to be executed. Even if you can get through trial, beware of Panetti. JB is absolutely correct, litigate the issue now. The SCOTUS has really lowered the threshold post-Ford.
JAS
Posts: 586 | Location: Denton,TX | Registered: January 08, 2007
Lizcano's attorneys withdraw request for competency trial 03:23 PM CDT on Tuesday, September 25, 2007
By JENNIFER EMILY / The Dallas Morning News jemily@dallasnews.com Defense attorneys representing a man accused of killing a Dallas police officer withdrew their request for a trial to determine his competency on Tuesday.
Juan Lizcano�s attorneys said last week they believed he was mentally retarded to such a degree that he did not understand the charges against him or help in his own defense at his capital murder trial. They wanted a jury to decide whether he was competent.
But defense attorneys changed their mind after a court-appointed forensic psychologist told the judge by telephone Tuesday that he believed Mr. Lizcano was competent to stand trial in the slaying of Officer Brian Jackson.
�We�re not certain he�s incompetent,� said Brook Busbee, one of Mr. Lizcano�s attorneys said in court.
Initially, State District Judge Andy Chatham denied the request for a competency trial because there was not enough evidence. But then Monday afternoon he changed his ruling after the defense provided additional information. The competency trial was scheduled to begin Tuesday.
Ms. Busbee has previously said that Mr. Lizcano scored 48, 60 and 62 on IQ tests. All are below the generally accepted threshold of 70 for mental retardation.
A defendant is presumed competent unless proven otherwise. Mental retardation does not automatically mean a defendant is not competent to stand trial. Competent defendants must be able to assist their attorneys with their defense and have a grasp of the charges against them.
The court-appointed psychiatrist�s examination of Mr. Lizcano has not been submitted to the court. But Judge Chatham said the report will be sealed until the attorneys request to see it.
Mr. Lizcano�s attorneys said they began to question Mr. Lizcano�s competency because they believed he did not understand when they asked him about striking jurors during jury selection.
Mr. Lizcano is accused of killing Officer Jackson in November 2005 when the officer responded to a domestic disturbance call from Mr. Lizcano�s former girlfriend.
She told police that he had repeatedly threatened her at her Old East Dallas home.
Officer Jackson, 28, was shot as he and other officers searched for Mr. Lizcano outside the woman�s home. The fatal shot entered through Officer Jackson�s underarm, an area not protected by his bulletproof vest.
Mr. Lizcano came to the U.S. from Mexico illegally about five years ago. He was arrested on a misdemeanor terroristic threat charge five weeks before the shooting. Authorities say he threatened his girlfriend with a knife.
He was arrested days later on a charge of driving while intoxicated.
The federal Immigration and Customs Enforcement agency has said they did not flag Mr. Lizcano for deportation because the charges were not serious enough to come to the attention of agents at the jail.
Mr. Lizcano�s capital murder trial was scheduled to begin next week.
One wonders, though, whether the defense will renew the competency claim on appeal, saying that a potentially incompetent defendant can't waive the right to a trial on the competency issue. Have the cake and eating it, too.
'course, the appellate sidekick was tending to other matters when this all went down, and I missed the actual hearing, but my understanding in that defense counsel assured the Court her client was now competent based on the evaluations. We did not allow them to "waive" the competency claim because, as you astutely note, John, you can't waive a due process claim if you're incompetent
Posts: 146 | Location: Dallas, Texas USA | Registered: November 02, 2001
