Competency vs. Incompetency

The recent special legislative session held interest for me and my office for its emphasis on public safety issues. Since the session only lasted five hours, in the end there was not much to see.

I did notice in much of the reporting the issue of competency/incompetency which my staff faces daily. It was stated repeatedly and incorrectly that if a defendant is found incompetent then the case is dismissed.

To be found incompetent to stand trial a defendant must not know right from wrong, not be able to contribute to his/her own defense by aiding his/her defense attorney, nor be able to understand the court process. In these situations, the case is stayed, and the defendant is sent for evaluation professionally by a psychologist or psychiatrist pending agreement by all parties- the Judge, the Defense Attorney and my office.  It is up to the judge to determine if the defendant is to be held in custody or not during this process.

If in this situation and after the evaluation a defendant is deemed not competent to proceed in a criminal trial, and the court finds that the defendant is not dangerous the “court may dismiss the case…in the interests of justice.” (NMSA Section 31-9-1.2, 1978)

If a defendant has been found incompetent but has been charged with a murder, rape, aggravated arson or a crime involving the use of a deadly weapon then my office will proceed with a “dangerousness hearing”.  If the court finds by clear and convincing evidence that the defendant did commit the crime charged (a lower standard than beyond a reasonable doubt) then the court will order the defendant be sent to the State Hospital in Las Vegas, NM to receive treatment to aid in returning to competency. If the defendant’s condition is such that s/he cannot be brought back to competency the court may order the defendant to remain in the State Hospital, a locked secured facility for as long as the crime charged allows.

Some people believe that a person who is mentally incompetent will always be and cannot be treated. There are occasions for example, when someone is found to be incompetent because of drug use, and/or because they are not taking the drugs for a mental illness which would facilitate their competency. Within 30 days the facility is required to submit an evaluation of an assessment and treatment plan and report on the cooperation of the defendant to receive and participate in treatment designed to return them to competency. The timeline for this is usually 9 months. If, however, after 30 days the facility (through the department of health) the defendant has been sent to says they don’t have the capacity to meet the medical needs of him/her they may refuse the defendant.  In these cases, then a motion is made for a hearing to determine dangerousness. If the defendant is determined not to be dangerous then it is likely the case will then be dismissed. If after 9 months the defendant is still not deemed competent but is making good progress, then it is possible to amend the treatment order for more time.

In the case of Senate Bill 10 relating to competency proceedings which in the end was not taken up by the legislature in the special session, the bill was intended to fill some of the gaps in the current law. For example, to provide the opportunity for a defendant to opt for treatment voluntarily in which case all the parties must agree. For non-violent cases that would ordinarily result in a dismissal if the defendant was found incompetent. One of the missing links in this case would be the question of capacity. Do we have the facilities necessary to provide such treatment?  The other question has to do with the ethical responsibility of a defense lawyer. They cannot agree to their defendant opting voluntarily for treatment if they have already been deemed incompetent which means they do not have the capacity to voluntarily agree.

Perhaps, as has been stated, the bills weren’t quite ready, I am not the qualified judge of that. I just know that there is an entire world that needs to be considered in order to meet the intended goals of what on the surface is a good idea to increase the safety of our communities.  On more than one occasion a piece of legislation that looks good on paper has come down to the District Attorneys to execute without consideration for our budgets and staff capacity. We step up to the challenge always understanding that nothing is ever going to be perfect, and we have to start the necessary change somewhere.

BRADY GIGLIO LAWS- What are they? What is their impact?

Recently we have found ourselves facing a situation in which a law enforcement officer in one of our counties described a situation in court which could affect the outcome of the case, which was not truthful, a violation of Brady Giglio Laws. Law enforcement officers and prosecutors are understandably held to a higher standard. The public expects nothing but utmost integrity from law enforcement officials. So, it is not surprising when a local prosecutor or a law enforcement officer gets into trouble, it gets more media attention than it would ordinarily receive if it involved someone who has not been entrusted with upholding the law. While picking up criminal charges might affect someone’s job, lacking integrity during an investigation or during the prosecution of a case can have bigger consequences beyond the person’s job.

 A 1963 Supreme Court case, Brady v. Maryland, mandates that the prosecution disclose any evidence favorable to the defendant that is material to either guilt or punishment to prevent miscarriages of justice and ensure all relevant evidence is available to the defense. The Supreme Court later expanded on the Brady ruling in 1972 in Giglio v. United States holding that any information that could challenge a witness’ credibility must be disclosed to the defense as well.

This Supreme Court ruling spawned the creation of a list in the law enforcement community, which has become known as the Giglio List. When a law enforcement officer has been found to be untruthful, the prosecution must inform the defense in any case in which that law enforcement officer is a witness, and at a minimum, the officer will have to answer those past indiscretions during cross examinations during every subsequent trial.

Gratefully, in our district it is rare to find a law enforcement officer to be untruthful. However, since in one of our district’s counties, a law enforcement official was found by a Court to have been untruthful in an affidavit for a warrant the case was dismissed by the Court and my office now must review every case in which that officer is a witness,  to determine whether these cases have  been tainted because of the officer’s lack of integrity to such an extent that they too must be dismissed.

The situation we face was particularly egregious and potentially had significant consequences not only for one case but for all cases (as mentioned above) this officer engaged in, and the officer’s future employment. Once an officer makes the Giglio list, S/He can never be removed from the list. If the officer continues a career in law enforcement, the past indiscretion must be disclosed, and the officer will have to respond to it in every case the officer is involved in, and the district attorney then has to make a decision whether every case that officer is a witness in is prosecutable based on officer’s lack of integrity for that one particular case.

Another challenge is determining what constitutes material evidence. The subjective nature of this standard can lead to disputes over whether certain evidence should have been disclosed. The Courts must then assess whether the nondisclosure of evidence would have had an influence on the outcome of the trial.

In instances where prosecutors have failed to disclose Brady or Giglio material, either intentionally or inadvertently, such misconduct can result in wrongful convictions and undermine public trust in the legal system. In my office, prosecutorial misconduct is ground for immediate dismissal. The Brady and Giglio laws play a crucial role in safeguarding the rights of defendants and ensuring the integrity of the criminal justice system. By requiring the disclosure of exculpatory and impeaching evidence, these laws help prevent wrongful convictions and promote transparency in legal proceedings.

Since taking office, ongoing education, oversight, and accountability have been a priority. The effective implementation of these rules depends on the diligence and integrity of all legal practitioners.

COWBOY, THE COURTHOUSE DOG

When I took office in January two years ago, one of the projects that was important for me to initiate was to establish a Courthouse Dog Program in my office and get a Courthouse Facility Dog for the District. Ultimately, I’d like a dog for each of the three offices in my district but that will require more funds and grants, so we’ve started with one. We have worked with Assistance Dogs of the West and were fortunate that they awarded us a grant for our Courthouse Dog. It took some time for the right dog to choose us and for the initial training to be completed but six months ago, Cowboy, a Standard Poodle joined our team. Cowboy lives with his primary handler Nina Salazar, who also heads up our Pre-Prosecution Diversion Program. Nina has been through training on her own, and continues to work with Cowboy who comes to work with her every day.

Scientific research shows that the presence of dogs reduces stress in humans. In fact, my offices are all dog friendly. I find that the presence of dogs in our offices contributes to the creation of a calm, happy work environment for the staff, reducing the stress of our stressful work.

Courthouse Facility Dogs are different than Assistance dogs. While there are assistance dogs to aid those who are deaf, or those with mobility problems and seeing eye dogs for example, facility dogs don’t have public access under the 2010 American’s with Disabilities Act because they do not provide assistance to a person with a disability. However, Courthouse dogs must pass the same public access tests that Assistance Dogs do to prove that they can be unobtrusive and well behaved in public.

Courthouse dogs are trained to work in a variety of environments specific to the judicial system: prosecutors’ offices, and courtrooms for example, to provide calm support and a sense of safety to victims and witnesses of traumatic crimes.

Cowboy just spent days supporting a victim in a trial that involved kidnapping, assault and rape. He sat with her through breaks in the trial and right after she testified. At one point during her testimony the victim broke down while on the stand. When she came out to take a break she was in tears and right away Cowboy went to her and laid his head in her lap calming her enough to continue her testimony. While Cowboy’s training is still on-going so is the training for our office. Our attorneys and victim advocates are also learning that they need to bring Cowboy and the victims together earlier in the process so that Cowboy will have established a relationship with the victim.

One of our judges and many of the defense attorneys have welcomed this program and Cowboy wholeheartedly. Some are still coming around. Sometimes people are concerned about dog hair or the potential for mess. Cowboy is hypoallergenic so allergies are not a concern. In general, when people realize the extent of training Cowboy and indeed all service and facility dogs have been through their concerns are alleviated. The benefit of a legally neutral companion during the prosecution of heinous crimes is primarily to help the most vulnerable traumatized victims and witnesses tell their stories. However, Cowboy is available to any witness who needs him. Cowboy allows victims, children, and adults alike, to feel as comfortable as possible to tell their stories to a jury and helps reduce the stress and trauma of reliving a horrifying event in order to do so.

The use of Courthouse Dogs in the United States has grown exponentially since 2003. In New Mexico there are approximately 13 such working dogs, seven of which are working for district attorney offices. We are happy to be one of them and hope that once everybody becomes comfortable with this new approach, that even those who are unsure, be it defense attorneys or judges and other witnesses, all will see that a Courthouse Facility Dog, in this case Cowboy, is only here to support the victims in the service of the truth so justice prevails.