Barbara Romo is district attorney for the 13th Judicial District, which includes Valencia, Sandoval and Cibola counties.
The recent special legislative session was of particular interest to me and my office for its purported emphasis on public safety issues. Since the session only lasted five hours, however, in the end there was not much to see.
Barbara Romo is district attorney for the 13th Judicial District, which includes Valencia, Sandoval and Cibola counties.
I did notice a good deal of media attention on the issue of competency/incompetency, something which my staff routinely faces. It was stated repeatedly and misleadingly that if a defendant is found incompetent then the case is dismissed. Although often used interchangeable, competency and insanity are two separate legal concepts. This article will discuss competency.
To be found incompetent to stand trial means a defendant is not able to contribute to his/her own defense by aiding his/her defense attorney, nor be able to understand the court process and the respective roles of the judge, prosecutor and defense attorney. In these situations, the case is stayed, and the defendant is sent for evaluation professionally by a psychologist or psychiatrist based on standardized tests. It is up to the judge to determine if the defendant is to be held in custody or not during this process.
If a defendant is found not competent to proceed in a criminal trial, and the court finds that the defendant is not dangerous the case must be dismissed.
On the other hand, if a defendant has been found incompetent and has been charged with murder, rape, aggravated arson or a crime involving the use of a firearm then my office will proceed with a “dangerousness hearing”. After the hearing, if the court finds by clear and convincing evidence that the defendant did commit the crime charged and is dangerous (a lower standard than beyond a reasonable doubt required to convict before a jury) then the court will order the defendant be sent to the State Hospital in Las Vegas, NM (NMBHI) to receive treatment to aid in returning to competency. Some individuals can be treated to competency and others cannot–depending on the mental health needs of the individual.
If the defendant’s condition is such that s/he cannot immediately 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 defendant could have been sentenced if convicted of the charged crime.
Senate Bill 10 was an attempt to address issues relating to competency proceedings; although 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, for cases involving non-violent crimes, the bill would provide the opportunity for a defendant to opt for treatment voluntarily in which case all the parties must agree. These are cases that would ordinarily result in a dismissal if the defendant was found incompetent. Some of the challenges that must be overcome in these bills are the availability of resources. Do we have the facilities necessary to provide such treatment? The other challenge has to do with the ethical responsibility of defense lawyers. They cannot agree to their client opting voluntarily for treatment if they have already been deemed incompetent, meaning they do not have the capacity to give voluntary consent.
Perhaps, as some have asserted, the bills addressing this issue weren’t quite ready. While these bills attempt to fix the issue of the revolving door of incompetent non-violent offenders, lawmakers must always realize the broader implications that need to be considered in order to meet the intended goals of what on the surface is a good idea. While it was hoped the special session would be able to address this critical issue, at least a meaningful conversation has been started with our lawmakers with the goal of protecting the rights of those with mental disabilities while also protecting the community.
Opinion: Competency vs. Incompetency
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Barbara Romo is district attorney for the 13th Judicial District, which includes Valencia, Sandoval and Cibola counties.
The recent special legislative session was of particular interest to me and my office for its purported emphasis on public safety issues. Since the session only lasted five hours, however, in the end there was not much to see.
I did notice a good deal of media attention on the issue of competency/incompetency, something which my staff routinely faces. It was stated repeatedly and misleadingly that if a defendant is found incompetent then the case is dismissed. Although often used interchangeable, competency and insanity are two separate legal concepts. This article will discuss competency.
To be found incompetent to stand trial means a defendant is not able to contribute to his/her own defense by aiding his/her defense attorney, nor be able to understand the court process and the respective roles of the judge, prosecutor and defense attorney. In these situations, the case is stayed, and the defendant is sent for evaluation professionally by a psychologist or psychiatrist based on standardized tests. It is up to the judge to determine if the defendant is to be held in custody or not during this process.
If a defendant is found not competent to proceed in a criminal trial, and the court finds that the defendant is not dangerous the case must be dismissed.
On the other hand, if a defendant has been found incompetent and has been charged with murder, rape, aggravated arson or a crime involving the use of a firearm then my office will proceed with a “dangerousness hearing”. After the hearing, if the court finds by clear and convincing evidence that the defendant did commit the crime charged and is dangerous (a lower standard than beyond a reasonable doubt required to convict before a jury) then the court will order the defendant be sent to the State Hospital in Las Vegas, NM (NMBHI) to receive treatment to aid in returning to competency. Some individuals can be treated to competency and others cannot–depending on the mental health needs of the individual.
If the defendant’s condition is such that s/he cannot immediately 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 defendant could have been sentenced if convicted of the charged crime.
Senate Bill 10 was an attempt to address issues relating to competency proceedings; although 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, for cases involving non-violent crimes, the bill would provide the opportunity for a defendant to opt for treatment voluntarily in which case all the parties must agree. These are cases that would ordinarily result in a dismissal if the defendant was found incompetent. Some of the challenges that must be overcome in these bills are the availability of resources. Do we have the facilities necessary to provide such treatment? The other challenge has to do with the ethical responsibility of defense lawyers. They cannot agree to their client opting voluntarily for treatment if they have already been deemed incompetent, meaning they do not have the capacity to give voluntary consent.
Perhaps, as some have asserted, the bills addressing this issue weren’t quite ready. While these bills attempt to fix the issue of the revolving door of incompetent non-violent offenders, lawmakers must always realize the broader implications that need to be considered in order to meet the intended goals of what on the surface is a good idea. While it was hoped the special session would be able to address this critical issue, at least a meaningful conversation has been started with our lawmakers with the goal of protecting the rights of those with mental disabilities while also protecting the community.