I recently answered a question posted by a fellow attorney on the criminal defense chat boards. I’ll share the discussion here:

Question:

I have an initial appearance for a client in Ohio state court charged with rape of a four month old. He has been adjudged an Incompetent Adult and is under guardianship.

My questions are (1) without a criminal standard competency to stand trial/ competency to understand his rights, may the court proceed with the initial appearance, and if it tries, would it be appropriate to object for the above reasons; and (2) do I need to go and find his guardian and ensure her presence at the initial appearance to ensure that the ward’s best interests are protected under the probate/ guardianship umbrella?

I have dealt with competency issues in DC Federal and DC Superior Court. Our PDS maintains a really excellent guide to criminal defense, and I’ll confess to relying on them when handling these types of issues. From their guidance:

PDS DC Criminal Defense Guide – Section 3.2(I)(A)(1)

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  • Competence to stand trial requires that the accused have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding,” and a “rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402 (1960).
  • Trial of one who is incompetent violates due process. Cooper v. Oklahoma, 517 U.S. 348 (1996); Medina v. California, 505 U.S. 437 (1992); Drope v. Missouri, 420 U.S. 162 (1975);Pate v. Robinson, 383 U.S. 375 (1966).
  • It is not enough for the individual simply to be “oriented to time and place and [have] some recollection of events.” Dusky, 362 U.S. at 402.
  • A person who “lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Drope, 420 U.S. at 171.

Unless a defendant is competent, the State cannot put him on trial. Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so.

Riggins v. Nevada, 504 U.S. 127, 139-140 (1992) (Kennedy, J., concurring) (citing Drope, 420 U.S. at 171-72).

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Specific to your case, I would imagine the State would argue that your client is a threat to the community, and that no safe guards could guarantee that he would not be a danger. At the initial appearance, if you lack proof of incompetence to prove to the Court (you mentioned her was previously adjudged incompetent – but the exact meaning of that might vary from the level of incompetence necessary to vitiate criminal culpability) that the client cannot proceed, a motion for competency determination combined with a plea of not guilty based on inability to stand trial (Dusky standard) should get you through the initial hearing. In terms of detention (if required – and be prepared for it, given the repugnant nature of the allegations), the argument would be (a) home detention to avoid harm to the mentally incompetent adult in the detention facility, (b) supervision by the Guardian to ensure compliance with GPS home detention monitoring. If the 4 month old lives in the home where your client resides, that is another kettle of fish. Absolutely have the Guardian present. That individual can testify to the (a) competency of your client, (b) the reason a guardian was appointed in the first instance, (c) an what safeguards can be put in place if the court releases your client on home detention pending a competency hearing. You need to be prepared to argue (even over the Guardian) that the court has appointed a guardian for the purpose of ensuring the safety of both your client AND the community. If the argument against dangerousness is unsuccessful, then a request for commitment to an inpatient psychiatric facility would be the second option. (I can probably dig up a cite for that somewhere if you need it).

The argument would be that an individual who is not capable of understanding the charges against him, cannot be then detained on the basis of those charges. That’s a Drope argument, and trumps state law. If the Court refuses this, a habeas hearing would be appropriate.

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