Criminal defendants stuck in yearslong legal limbo with incompetency findings | Courthouse News Service
Tuesday, November 28, 2023
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Criminal defendants stuck in yearslong legal limbo with incompetency findings

According to the Colorado Department of Human Services, 1,567 defendants were referred to the state last year for competency restoration. That’s nearly triple the rate it was in 2017, when just 553 defendants entered state custody for treatment.

DENVER (CN) — On Nov. 27, 2015, a man pulled into the Planned Parenthood Colorado Springs Health Center armed with four SKS rifles, two handguns, a shotgun, a rifle and a propane tank. The 57-year-old man intended to wage war against the fertility clinic which provides abortions. He fired 198 bullets at patients and staff, killing three innocent people.

They are remembered as: 44-year-old police officer and champion ice skater Garrett Swasey; 29-year-old Iraq War veteran and father of two Ke'Arre Stewart; and 35-year-old Jennifer Markovsky, a mother of two who accompanied a friend at the clinic.

Nine others were injured.

The armed man, Robert Dear, was apprehended at the scene and quickly professed his guilt to the court. Seven years later, he has yet to stand trial or be sentenced.

For the better half of a decade, Dear has consistently failed mental competency evaluations, indicating he is unable to participate in his own defense, making it unconstitutional to prosecute him.

According to the Colorado Department of Human Services, 1,567 defendants were referred to the state last year for competency restoration. That’s nearly triple the rate it was in 2017, when just 553 defendants entered state custody for treatment.

A lack of centralized data leaves it near impossible know the number or outcome of competency evaluations nationwide, but some studies estimate 50,000 to 60,000 are given annually.

“These evaluations determine whether or not he is even capable of being prosecuted, whether his mental health is such that he is capable of being prosecuted, such that his constitutional rights are protected,” explained legal analyst David Beller, who practices criminal defense at Recht Kornfeld in Denver.

A growing number of defendants are deemed mentally incompetent each year. But Beller considers the cases relatively rare and the trial bar low: a defendant can stand trial as long they understand the charges against them well enough to help defend themselves.

“James Holmes was undoubtedly mentally ill," Beller said, of the man convicted of killing 12 at an Aurora movie theater in 2012. "His history and his conduct showed he suffered from debilitating mental illness, and even with him being an extreme example, he was found not only competent, but sane at the time he committed the acts, so mental illness does not necessarily equate to incompetency.”

Last year, nearly a quarter of patients undergoing state treatment in Colorado, 320, were deemed restored, according to the state Department of Human Services. This number does not include patients who were removed from treatment after charges were dropped.

Research published in the Journal of the American Academy of Psychiatry and the Law estimates 75 to 90% of defendants nationally are restored to competency within six months of treatment. A limited survey also found older defendants less likely to be restored and that the longer a defendant undergoes treatment, the less likely it is to work.

“One of the issues we can run into is quality of treatment,” said Scott Kirkorsky, a board-certified forensic psychiatrist who completed about a dozen competency exams last year. “Most genuinely incompetent defendants are incompetent because of a psychotic disorder and psychosis requires medication in nearly all cases for treatment.”

Common drivers of incompetency include schizophrenia, schizotypal personality and delusional disorders. When a defendant isn’t being prescribed the proper medication or refuses to take it, restoration can be delayed.

But restoration is not equivalent to rehabilitation or recovery.

“Competency restoration does not equal mental health care,” said Shannon Scully, senior advisor for justice and crisis response policy at the National Alliance on Mental Illness. “Mental health care often looks at long term wellness and engagement.”

“We hear from a lot from family members that have loved ones in the justice system waiting to be restored to competency,” Scully said. “They often believe that that process is going to lead to their loved one getting on the road to recovery, and that's just not the case in terms of the goals of competency restoration.”


The Bureau of Justice Assistance estimates anywhere between 44% of people in jails and 35% of people in prisons have a mental health condition. But Scully points out most of their charges are for nonviolent crimes.

“A majority of people with mental health conditions in the justice system have committed nonviolent, very low-level misdemeanor crimes or offenses,” Scully said, “A lot of judges identify that this is not something that that needs to go to trial and divert that person into mental health care within the community.”

While many attorneys see competency restoration as vital to the criminal justice system, the delays can be painful for victims of violent crime.

“Anytime there's a delay in a case, it often can be harmful to the victims and to the community,” said 20th Judicial District Attorney Michael Dougherty, who is prosecuting a defendant accused of killing 10 at a grocery store in Boulder last year. The defendant was found mentally incompetent in December and transferred to the state mental health hospital in Pueblo.

“When a defendant is found incompetent by doctors and by the court, that does not mean the case is over, but it certainly means the case is going to be delayed,” Dougherty said. “We recognize that any delay in a serious case, such as a murder case, is frustrating and disturbing to everyone involved.”

For some, the criminal trial and resulting conviction brings a sense of closure.

Kalissa Braga, a mother who survived the STEM School Highlands Ranch shooting in 2019, testified before both convicted murderers at sentencing.

“It was a way for me to find closure, being able to say hey, look at what you've affected, like my five-year-old started kindergarten that fall and had to do half days, because she couldn't be at school all day yet,” Braga said.

Braga volunteered to serve lunch at the school on May 7, 2019, with her then-five-year-old daughter and an 11-month-old baby she was babysitting when the first shots rang out. Braga barricaded herself into a bathroom with the children and waited in the dark for law enforcement.

Braga knows two other moms who were in the school that day: one sat through the trial with her and the other wanted nothing to do with it. For Braga, the trial filled out the hazy timeline, helping her understand what she had heard outside. At the end, reading her statement to each defendant was therapeutic.

“I think you'd have to find closure another way," Braga said to victims caught in court limbo. "Maybe it's writing that statement or writing that letter to that person, and even if you don't send it, maybe it's just a way of getting that feeling out there.”

Even when the justice system delivers a speedy trial, the process can leave victims feeling deflated.

“When your loved one is a victim of a violent, senseless crime, whether it's individually or in a mass setting, it's not possible to get closure through the system,” said George Brauchler, former district attorney for the 18th Judicial District. Brauchler prosecuted the Aurora Theater shooter and the two students who attacked STEM School Highlands Ranch.

Brauchler said the criminal justice system isn’t designed to bring closure, but he sees the important role it plays for the community at large.

“For most out there, they feel like this is a guy who is avoiding accountability and responsibility and justice, that he's somehow beating the system,” Brauchler said. “Now, there is a legitimate reason, under the Constitution, that we require people to be mentally competent to stand trial, but I'm telling you that the victims, in this case, don't care about that. They want to know that this guy is going to be held accountable.”

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