Competency to Stand Trial

Current Standard

courtmartialdefenselawyers10.57.12 2RCM 909(a) states that “[n]o person may be brought to trial by court-martial if that person is presently suffering from a mental disease or defect rendering him or her mentally incompetent to the extent that he or she is unable to understand the nature of the proceedings against them [sic] or to conduct or cooperate intelligently in the defense of the case.” See also 18 U.S.C. § 4241(d). The accused is presumed to have capacity to stand trial. RCM 909(b).

Old Standard

“No person may be brought to trial by court-martial unless that person possesses sufficient mental capacity to understand the nature of the proceedings against that person and to conduct or cooperate intelligently in the defense of the case.” MCM, RCM 909 (1984).

Differences between the standards

Mental disease or defect required (need not be “severe”).

“Unable to understand” vs. “sufficient mental capacity.”

United States v. Proctor, 37 M.J. 330, 336 (C.M.A. 1993). The Court found that in determining competency to stand trial, the true issue is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has rational as well as factual understanding of the proceeding against him. It is not enough that he is oriented to time and place and has some recollection of events.

United States v. Lee, 22 M.J. 767, 769 (A.F.C.M.R. 1986).   The Court held that “[t]he question is whether the accused is possessed of sufficient mental power, and has such understanding of his situation, such coherency of ideas, control of his mental facilities, and the requisite power of memory, as will enable him to testify in his own behalf, if he so desires, and otherwise to properly and intelligently aid his counsel in making a rational defense.”

United States v. Schlarb, 46 M.J. 708 (N-M. Ct. Crim. App. 1997).   In this case the defendant did not establish a lack of mental capacity to stand trial where she testified clearly and at length on four occasions, showing a clear understanding of the proceedings.

bestmilitarydefenseucmjdefenselawyer95Indiana v. Edwards, 554 U.S. 164 (2008). In a case where the defendant wants to represent himself, the Supreme Court held that the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant is mentally competent to represent himself. The Court may determine that a defendant who is mentally competent to stand trial is not competent to represent himself.

Compared to Amnesia.

Amnesia is not equivalent to a lack of capacity. The ability of an accused to function is absolutely critical to the fairness of a criminal trial. In deciding whether an accused can function, a military judge can apply factors set out in Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968): (1) the extent to which the amnesia affects the accused’s ability to consult and assist his lawyer; (2) the extent to which the amnesia affects the accused’s ability to testify on his own behalf; (3) the extent to which the evidence could be extrinsically reconstructed, in view of the accused’s amnesia; (4) the extent to which the Government assisted the accused and defense counsel in reconstruction; (5) the strength of the Government case; and, (6) any other facts and circumstances that would indicate whether the accused had a fair trial.

United States v. Axelson, 65 M.J. 501 (A. Ct. Crim. App. 2007). The Court stated that the defendant’s failure to recall facts pertaining to an offense does not preclude defendant from pleading guilty so long as, after assessing the Government’s evidence against him, he is convicted of his own guilt. 

UCMJ art. 76b and RCM 909.

Interlocutory question of fact

RCM 909(d) allows the military judge to conduct an incompetence determination hearing either sua sponte or on request of either party.

The Defense has the burden of proof by a preponderance of the evidence. 

If the sanity board concluded that the defendant is not competent, the military judge shall conduct a competency hearing.

The military judge determines whether the accused is competent to stand trial.   See United States v. Proctor, 37 M.J. 330 (C.M.A. 1993); Short v. Chambers, 33 M.J. 49 (C.M.A. 1991). However, once a sanity board is requested, the military judge must consider the sanity board report before ruling on the defendant’s capacity to stand trial. United States v. Collins, 41 M.J. 610 (A. Ct. Crim. App. 1994).

Hospitalization of the accused

bestmilitarydefenseucmjdefenselawyer173An accused who is found incompetent to stand trial shall be hospitalized by the Attorney General for a reasonable period of time, not to exceed 4 months, to determine whether his condition will improve in foreseeable future, and for an additional reasonable period of time. The additional period of time ends when: the mental condition improves so that trial may proceed, or, charges are dismissed.

Upon a finding of incompetence, if the convening authority agrees, there is no discretion regarding commitment. United States. v. Salahuddin, 54 M.J. 918 (A.F. Ct. Crim. App. 2001); see also RCM 909(e)(3) and 18 U.S.C. § 4241(d).

The four-month time period may be extended if the Government proves by clear and convincing evidence that “a substantial probability exists that the continued administration of antipsychotic medication will result in a defendant attaining the capacity to permit the trial to proceed in the foreseeable future.” United States v. Weston, 260 F. Supp. 2d 147, 154 (D.D.C. 2003).

Involuntary Medication 

United States v. Weston, 255 F.3d 873 (D.C. Cir. 2001). The Court concluded that the government could involuntarily administer antipsychotic drugs to a defendant in order to restore the defendant’s competence so that the defendant could stand trial.

Sell v. United States, 539 U.S. 166 (2003). Defendant was charged with fraud. A federal magistrate found him incompetent to stand trial and ordered his hospitalization to determine whether he would attain capacity to allow his trial to proceed. Sell refused to take antipsychotic drugs. Determining that forced medication solely for trial competency purposes may be rare, the Supreme Court held that the Constitution permits involuntary medication to render a mentally ill defendant competent to stand trial on serious criminal charges if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial’s fairness, and, taking account of less intrusive alternatives, is necessary to significantly further important governmental trial-related interests.   See also United States v. Bush, 585 F.3d 806 (4th Cir. 2009).

If the defendant recovers and is competent to stand trial, the director of the facility notifies the GCMCA and sends a copy of the notice to accused’s counsel. GCMCA must take prompt custody of the defendant if the defendant is still in a military status. The director of the facility may retain custody of the person for not more than 30 days after transmitting the required notifications.

No Recovery

bestmilitarydefensedefenseattorneys9.58.00PMcopyIf the defendant does not improve and the director of the facility where the defendant is confined certifies that the defendant is presently suffering from a mental disease or defect and his release would create a substantial risk of bodily injury to another person or serious damage to property, the director notifies the GCMCA. The district court then conducts further hearings.

Waiver

Moore v. Campbell, 344 F.3d. 1313 (11th Cir. 2003. The Court of Appeals determined that the “state court’s determination that a capital defendant in Alabama can forfeit his right to be competent – that is mentally present – at trial” was not contrary to or an unreasonable application of clearly established Supreme Court precedent, if only because the issue has not been yet decided by the Supreme Court.

Post-trial

Under RCM 1107(b)(5), the convening authority may not approve a sentence while the defendant lacks the mental capacity to cooperate and understand post-trial proceedings. Similarly, an appellate authority may not affirm the findings when the defendant lacks the ability to understand and cooperate in appellate proceedings. RCM 1203(c)(5).   In Thompson v. United States, 60 M.J. 880 (N-M. Ct. Crim. App. 2005), the appeal was stayed because the appellant did not have the mental capacity to assist with the appeal.