Incompetent Waco defendants in legal limbo

The Waco Tribune-Herald has a depressing report today ("Mentally disabled men in legal limbo," behind paywall) on a pair of competency restoration cases gone awry, where District Attorney Abel Reyna appears prepared to keep charges pending indefinitely - racking up significant county expenses for periodic evaluations - out of some misconceived hubris:

Two mentally disabled men who reportedly committed minor felony offenses remain on a legal merry-go-round because the McLennan

County District Attorney’s office will not dismiss the charges and a doctor has deemed that they never will be competent to stand trial.

A third mentally disabled man had been caught up in the judicial system with the other two until he died of cancer in April.

The district attorney’s office dismissed the felony burglary of a habitation case against him two days before he died, but only after the man’s attorney convinced prosecutors that his illness rapidly would overtake him.

The direct costs are racking up while the men wait for months on end in legal limbo:

While the criminal cases are pending, the men and their families or caregivers are required to come to court every 120 days for a status hearing. The law says the men must be re-examined by a mental health professional paid for by the countyevery 120 days to judge their competency and their lawyers are paid by the county for each court appearance.

A psychiatrist is paid $600 for each examination and the lawyers are paid about $150 for each court appearance.

The three men have been examined three times each and been in court three times each, costing taxpayers about $6,750 in fees so far. And that does not include the cost for the brief stints they spent in the McLennan County Jail.

One of the men is retarded with an IQ of 55 who broke into a doughnut shop ... wait for it ... because he wanted a doughnut. Even the doughnut shop owner doesn't want him prosecuted, but the DA won't dismiss charges.

Said the doughnut thief's attorney, "“The system is not accounting for people who have this kind of impairment,” [attorney Michelle] Tuegel said. “These people do not need to be committed or taken out of the placements they have. I realize if they have violent tendencies, that is one thing. But this guy has done great in his placement [a group home in Temple] for over a year now and he has never shown any signs of violent behavior.”

The article closes with a lament from an observer uninvolved with the case that, in instances like this, the criminal justice system has become a if not the primary point of entry for access to mental health services.

Dr. Lee Carter, a Waco psychologist who is appointed by the court to make competency determinations but has not been involved with these men, said the cases illustrate flaws in the mental health system, which have worsened in recent years because of state budget cuts to such services.

“Frankly, I don’t know the answer to this situation,” Carter said. “This is a perfect example of how the legal system has in too many ways become a mental health provider for the community.

“You get a certain number of people who are mentally retarded or certainly mentally ill who commit offenses, if not minor offenses, who keep coming through the legal system. I think the fact that these people keep coming through the courts highlights for the public at large that we are not doing a good job of caring for those in our midst who have special needs.”

Grits agrees with that sentiment, but that doesn't let Abel Reyna off the hook. Prosecutors are given discretion in such cases exactly to allow them to resolve intractable situations like this one. His failure to exercise it, not to mention his disdain for the rights of the accused, is on him.

In the big picture, though counties can't solve the problem by themselves. Last session, the Texas Legislature declared that defendants accused of misdemeanors couldn't be detained pretrial pending competency restoration for longer than the maximum length of their sentence. At a minimum, that same stricture should be extended to state jail felonies. But there needs to be more thought to how competency restoration is handled in more serious cases, including violent felonies, where decades may pass without competency being restored.

Until lately, competency restoration has been a legal and policy backwater that few people were even fully aware of outside of a few legal and medical specialists. However, a recent court ruling and competition over scarce resources at Texas state mental hospitals have pushed the issue to the fore. Time now for state policy makers to afford the subject much greater focus and resources during the 83rd Legislature. The problem only grows the longer they ignore it.