Permanently incompetent to stand trial

Lane Williams and Kirk Lowry from the Disability Rights Center of Kansas won in State v. Johnson, No. 96,526 (Kan. Oct. 30, 2009), affirming Judge Becker's dismissal of a Reno County DUI-manslaughter prosecution. This case has a fairly long history, as described in the opinion. As noted in the opinion, Mr. Johnson drove a vehicle into a tree, killing the passenger and himself suffering coma-inducing brain injury. The state subsequently charged Mr. Johnson with DUI-manslaughter. To make a fairly long story shorter, the district court found that, due to "widespread and severe deficits in memory, nonverbal reasoning, sensory perception, and processing speed, including permanent impairment in these areas," Mr. Johnson would not be able to assist in his defense and, therefore, was incompetent to stand trial. As required by statute, Mr. Johnson was committed for treatment and evaluation. The evaluator opined that because of the brain injury, there was not a substantial probability that Mr. Johnson would be competent to stand trial in the foreseeable future. As required by statute, the district court then requested that SRS begin with involuntary committment proceedings. And here's where it gets difficult.

A letter from Kansas Advocacy and Protective Services (the predecessor to the Disability Rights Center) infomed the district court that SRS can only proceed on involuntary committment for persons that are "mentally ill." But a person with a brain injury, like Mr. Johnson, is not mentally ill and not subject to involuntary commitment. The district court considered this information and originally held that the statute did not require it to order a futile act. Because Mr. Johnson could not be prosecuted and could not be involuntarily committed, the district court order the charges dismissed.

The state appealed that order in 2004. I was Mr. Johnson's attorney at that point. The COA reversed Judge Becker's order, reasoning that the district court failed to order SRS to begin involuntary commitment proceedings. After the COA decision, the Disability Rights Center entered its appearance and filed a petition for review, which was denied. (In a very candid moment in the instant opinion, the KSC acknowledges that "Inexplicably, the Supreme Court denied Johnson's petition for review, and the case was remanded to the district court.")

So, the case returned to the district court and the district court followed the COA's order and ordered SRS to begin involuntary commitment proceedings. Because SRS acknowledged in its petition that Mr. Johnson was not subject to involuntary commitment, the district court quickly dismissed the involuntary commitment proceedings and notified the district attorney.

The state then filed a request for a new competency hearing, because it had been four years since the previous competency hearing. The district court found that the state had not presented any evidence justifying a new competency hearing and again released Mr. Johnson from custody. And, again, the state appealed. And, again, the COA revered and ordered the district court to conduct further proceedings. But, this time, the KSC granted the petition for review.

The KSC reviewed the relevant statutory provisions and acknowledged the gap between the competency statutes and the involuntary commitment statutes and reviewed some of the legislative grappling with this very problem.

Although K.S.A. 22-3303(1) mandates that the district court order SRS to commence proceedings to involuntarily commit a defendant who has been adjudged incompetent to stand trial with no substantial probability of attaining competency in the foreseeable future, SRS cannot legally comply with that order under K.S.A. 59-2945 et seq. if the incompetency is due solely to an organic mental disorder such as traumatic brain injury.

. . . .

One can only imagine the consternation and frustration the district court and SRS must have experienced when faced with an appellate court mandate to do that which could not be done.

The KSC noted that the legislature has attempted to strike a balance between these competing concerns by amending the statute to allow involuntary commitment of persons in these situations who are charged with higher level offenses. But Mr. Johnson did not fall within those amended statutory provisions.

Finally, the KSC considered whether the district court erred by failing to hold a new competency hearing.

The district court was absolutely correct in its assessment of the relevance of the dismissal of the involuntary commitment proceedings. That action simply meant that there was no probable cause to believe that Johnson was a mentally ill person subject to involuntary commitment for care and treatment because his sole diagnosis was an organic mental disorder. An organic mental disorder is, however, a mental defect within the meaning of the competency statutes. As noted previously, the district court understood the distinction; the prosecutor should have understood it as well.

The KSC also flatly rejected the COA's second opinion that there were grounds for a new competency hearing:

the experts' opinions directly refute Johnson II's assertion that passage of time since the last medical evaluation of Johnson's cognitive abilities provides a reasonable ground to believe he is not competent. If the diagnosis is permanent and irreversible brain damage, the relative date of that assessment is immaterial.

As a result, the KSC reversed the COA and affirmed Judge Becker's dismissal without prejudice.

There's a lot of good language in this decision on competency issues. In particular, the KSC acknowledges the fact that competency involves not just understanding, but ability to assist in the defense. It seems to me that a lot of the hack evaluations that are done really focus only on understanding. Failure to investigate the nature of the defense and the defendant's ability to assist in that defense may be a fertile ground for cross-examining some of these "doctors."

I also wonder about this legislative fix noted by the KSC. Persons can be involuntarily committed for the rest of their lives, without treatment and, therefore, without hope of release, based on an allegation by the state? As noted by the KSC, such a result is "akin to a life sentence without possibility of parole" for a person that has been convicted of no crime. That seems to have some pretty obvious and big Due Process implications.

Here is coverage of the case in the Hutch News.