What Happens If Someone Is Found Incompetent to Stand Trial?

Being found incompetent to stand trial does not mean a person will never face his charges. Incompetent to Stand Trial is not a legal defense like Not Guilty By Reason of Insanity is. It is a matter of legal fact that must be decided by the court.

I have been asked numerous times if James Holmes will escape punishment if he is found incompetent. Many people are legitimately assuming the issue of competence will be raised in his case, and it is understandable for people to be worried that it might be a loophole in the law, or a way for him to avoid punishment.

A little background on legal competence to stand trial: it is incredibly important for an individual to understand what is happening in court, to be able to think rationally about courtroom proceedings, and to be able to work with an attorney to assist in developing a defense. In Colorado, where Holmes will be tried, he must have a rational and factual understanding of the criminal proceedings against him and he must have sufficient present ability to rationally cooperate with his attorney to assist in his defense. If he does not have either of these abilities, it must be determined that his "incompetence" is caused by either a mental disability or developmental disability.

If you want to read the actual Colorado law, you can look it up here: C.R.S. 16-8.5-101 et seq.

If a person is not competent but faces trial anyway, there are multiple grounds for appeal if convicted. The person can argue that he had ineffective counsel, he can argue that he did not receive due process, and he can make a claim that he did not have an actual opportunity to confront his accusers, tell his side of the story, or present evidence in his defense. If a conviction (and thus a sentence) is overturned, there is a chance the perpetrator can walk free.

Because of the risk of overturning a conviction on appeal, it is my guess that the Arapahoe County DA will raise the issue of incompetency with the court if the public defender does not. The DA will want to make sure Holmes' competency-related abilities are documented in the record before he faces his charges so there aren't any questions about them afterward if he is convicted.

The Colorado Mental Health Institute
at Pueblo (CMHIP) Campus

With that in mind, what happens if the issue of competency is raised in People v. James Holmes? The judge cannot ignore a request for the competency issue to be examined. The court will order a competency evaluation, and most likely, Holmes will be sent to the Colorado Mental Health Institute at Pueblo, the state mental health hospital, to undergo a competency evaluation. I know most of the psychologists who work at this hospital, and they are excellent. Holmes will be evaluated by some of the best forensic psychologists in the country. After a few weeks of evaluation, these psychologists will offer an opinion on whether or not Holmes is competent. It will then be up to the judge to make the final legal ruling.

If Holmes is deemed competent to stand trial, his legal case will proceed just like normal. If he is found incompetent, he will be remanded back to the hospital in Pueblo, where he will undergo "restoration to competency" treatment. Every 90 days, psychologists will update the court on Holmes' progress in treatment.

One of two things will happen at this point: Either 1) he will be restored to competency and will face his charges just like normal, or 2) he will not be restored to competency and will not face his charges.

But wait, didn't I just write that being found incompetent is not a free pass? How is not facing multiple first-degree murder (and countless other) charges not a free pass? Here is the catch: In Colorado, a person can be locked in a maximum security wing of the state hospital, which is very similar to prison, until he is restored to competency or for the maximum term of confinement that could be imposed for the offenses with which he is charged.

To say it in plain English, if Holmes is not restorable to competency, he will be locked in Pueblo for at least 12 life sentences, even though he was never convicted of a crime. There is a chance that the defense could successfully argue that the court should drop the charges against him if he is unrestorable or that the judge could allow him out of custody on bond, but given the nature of his alleged crimes, both of these possibilities is extremely unlikely.

So, even if Holmes is found incompetent, the only way he will go free is if he is restored to competency, takes his case to trial, and is found Not Guilty on every one of the dozens of charges he faces.

I hope this helps. Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com
www.Facebook.com/drmaxwachtel
www.Twitter.com/mwachtel

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My Reflections On The Aurora Theatre Shooting Tragedy

As life gets back to normal for the rest of the world, there are a few people who cannot stop reliving the early morning assault at the Century 16 movie theatre in Aurora, Colorado. As a professor at the University of Denver, I knew one of the victims well. He was a smart, caring individual. He stood out among his gifted peers as a compassionate therapist. Everyone who met him wanted to be his friend.

I also know his fellow students, some of whom were in the theatre with him. They too are victims of this terrible event, and they are among those who are reliving the shooting. I see the pain in their faces, and I worry about their recovery. I know the research--the risk of substance abuse, the anger, the broken relationships. It terrifies me to think that good people may have experienced a negative life-altering event at such a young age. At the same time, I have hope for these students--they are all trained to help others, and it is my hope that they can support each other and help themselves.

My connection to the shooting is distant at best, but it has still affected me. Given my line of work, I meet with criminals and alleged criminals all the time. Some are drug abusers, some are child molesters, some are murderers. It is easy to run the risk of detaching myself too much from these crimes, thus forgetting the lifelong effects these actions have on the victims, the victims' families, the friends, the teachers, the neighbors, and so on. Like a stone dropped in a calm pond, the ripples radiate far and wide.

The horrible tragedy in Aurora has reminded me in a raw, tangible way that every crime (however big or small) has an effect on a large number of people. I must also remember that every criminal has a story to tell, and there are times when a mental illness or a horrible childhood must be taken into account when explaining the criminal's actions. But, those factors will never completely excuse an individual's actions and they will never take away the pain of those affected by heinous crimes.

I want my life and my work to get back to normal. And it will, soon. But, I do not want to forget my experience over the last few days. I think it will help me to be a better psychologist and be of better service to my clients, victims' families, and the court system.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com
www.Facebook.com/drmaxwachtel
www.Twitter.com/mwachtel

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Special Friday Post: The Aurora Movie Theatre Shooting Was Not A Random Act of Violence

Like many people, I woke up this morning to the horrific news than a man had shot and killed 12 people (and injured many more) at a midnight showing of The Dark Knight Rises in Aurora, Colorado. The news hit me especially hard, probably because of my proximity to the tragedy. If it had taken place across the country, the news still would have been terrible, but it would not have touched me so personally. The movie theatre is just a few miles from where I live. I know people who were in the theatre during the shooting. I have friends who I know went to see the movie at midnight, but I don't know which theatre they went to and I haven't heard from them yet.

And, as a forensic psychologist, my mind immediately turns to the perpetrator. We know very little about him at this point--his name, his age, a few statements he has given to the police. It is easy to think this was just a random act of violence. In the coming months, however, we will learn more about James Holmes, and I am virtually certain he will undergo psychological evaluations. It is rare that the shooter survives during rampages like this--they usually end with the perpetrator killing himself or the perpetrator being killed by the police--and it is my sincere hope that we are able to learn the reasons and motivations behind the shooter's actions.

I do not want to find an excuse for what he did. He does not deserve a free pass. Rather, I want to learn from this event so that we can avoid such awful tragedies in the future. Every person in that movie theatre is a victim, whether he/she was hit by a bullet or not. This reverberations of this event will echo through their lives from this day forward. My heart aches for each of them, and it is my hope that we can honor them by fully understanding what happened and how to avoid it in the future. This was not just a random act of violence, and we are doing a disservice to society if we treat it as such.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com
www.Facebook.com/drmaxwachtel
www.Twitter.com/mwachtel

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Not Guilty By Reason of Insanity: States Must Provide Access to Psychologists, Ake v. Oklahoma (1985)

Glen Burton Ake, arrested in November of 1979
for the murders of Richard and Marilyn Douglas

On October 15, 1979, Glen Burton Ake was arrested for the murders of Richard and Marilyn Douglas. He bound Mr. and Mrs. Douglas with rope, along with their children, Brooks and Leslie. With the family lying on the floor immobile, he shot all four of them. The parents died, but the children survived the attack.

During the course of his legal proceedings, Mr. Ake's competency to stand trial was raised as an issue, and it was determined that he was delusional and struggling with Paranoid Schizophrenia. After several months in a state mental health hospital, he faced trial.

His defense attorneys petitioned the Court to pay for access to a psychiatrist in order to prepare for Mr. Ake's defense, which was going to be Not Guilty By Reason of Insanity. Mr. Ake was indigent and represented by the Public Defender's Office. Thus, he could not afford to hire a psychiatrist privately. The Court denied the request, stating Mr. Ake had no right to access to a psychiatrist. Mr. Ake was later convicted of two counts of murder and sentenced to death.

Mr. Ake appealed his conviction, arguing that his due process rights (Fifth and Fourteenth Amendments) had been violated. A court of appeals upheld his conviction, but the United States Supreme Court reversed the conviction and sent his case back to be re-tried.


The Supreme Court held "(1) that when a defendant in a criminal prosecution makes a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial the Constitution requires that the state provide the defendant access to a psychiatrist if the defendant cannot otherwise afford one; (2) that a defendant is similarly entitled to the assistance of a psychiatrist at a capital sentencing proceeding at which the state presents psychiatric evidence of the defendant's future dangerousness; and (3) that under the facts presented, the defendant's sanity was a significant factor at both the guilt and sentencing phases and that the denial of psychiatric assistance constituted a deprivation of due process." 


Not only did the Court set the precedent that indigent defendants had the right to access to a psychiatrist in sanity cases, but they also had the right to access to a psychiatrist during the sentencing phase in death penalty cases where "future dangerousness" was going to be called into question. In recent years, this ruling has been expanded to mean that indigent defendants in similar circumstances have the right to have access to adequately trained psychiatrists or psychologists.


Mr. Ake faced a new trial and was once again convicted on two counts of first-degree murder. In his new trial, he was sentenced to life in prison, however. Mr. Ake passed away on April 23, 2011 in a prison hospital. It was reported that he had a heart attack. He was 55 years old.


Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com
www.Facebook.com/drmaxwachtel
www.Twitter.com/mwachtel

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Attorneys Must Investigate Their Death Row Clients' Backgrounds: Wiggins v. Smith (2002)

A jury in Baltimore convicted Kevin Wiggins of murder and he was sentenced to death. Mr. Wiggins allegedly robbed and killed a 77 year-old woman in 1988. She was found in her bathtub, and Mr. Wiggins was in her apartment earlier in the day as a painter. He used several of her credit cards on the night of her death. In a bench trial, he was sentenced to death.

During the sentencing portion of his case, mr. Wiggins elected to be sentenced by jury. His attorneys told the jury they would hear evidence about Mr. Wiggins' horrendous childhood in order to explain his actions and potentially receive a lesser sentence. However, they never presented that evidence to the jury. Mr. Wiggins later appealed his sentence, claiming his Sixth Amendment Right to Counsel had been violated because his attorneys had ineffectively presented his case to the jury.

The case worked its way to the Supreme Court, and in a 2002 decision, the majority held that "Trial counsel's failure to investigate the accused's background and to present mitigating evidence of the accused's unfortunate life history at the accused's capital-sentencing proceedings had violated the accused's right, under the Federal Constitution's Sixth Amendment, to the effective assistance of counsel, as such failure by trial had (a) fallen below the standard of reasonableness under prevailing professional norms; and (b) prejudiced the accused's defense."

The Supreme Court ended up granting Mr. Wiggins a new sentencing hearing on the grounds that defense counsel must thoroughly investigate all potential mitigating factors in a capital sentencing case in order to provide effective counsel and to avoid the possibility of prejudicing the client's case. The American Bar Association had already established that a thorough investigation and presentation of mitigating factors was the standard of practice, and the decision in Wiggins v. Smith made that standard explicitly clear.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com
www.Facebook.com/drmaxwachtel
www.Twitter.com/mwachtel

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Schizophrenia & Substance Abuse: A Violent Combination

Substance Abuse dramatically increases the
chances of a person with Schizophrenia
acting out in a violent manner.

People rattle off all kinds of statistics about the risk of violence associated with mental illness. People with mental illness are more likely to commit violent crime than "normal people..." People with mental illness are more likely to be victims than perpetrators... People with Schizophrenia are less likely to assault someone than a non-mentally ill individual... But, are any of these statements true? Where did these assertions come from? What type of bias does the individual asserting these claims have?

In order to answer some of these questions, researchers in the UK looked at the risk of committing a violent crime and how it related to Schizophrenia. In a 2009 study, they looked at thousands of individuals diagnosed with Schizophrenia and compared their arrest rates to thousands of individuals in the population at large.

These researchers discovered that 13.2% of individuals with Schizophrenia had a history of at least one violent crime. They compared this rate to the 5.3% of individuals in the general population with at least one violent crime and concluded that Schizophrenia may indeed be a risk factor for violence.

But, the researchers did not stop there. They continued to parse the data and discovered something interesting:

A vast majority of the 13.2 % of individuals with Schizophrenia who had a history of violence also had a substance abuse problem. In fact, 27% of the Schizophrenia & Substance Abuse group had a history of violent crime. Over 1 in 4 people with Schizophrenia and a substance abuse problem had committed at least one violent crime.

When this group of dually diagnosed individuals was taken out of the Schizophrenia-only group, the percentage of individuals with Schizophrenia who had committed a violent crime dropped to 8.5%, much closer to the violent crime rate in the general population.

These are strong results that make it clear that substance abuse and Schizophrenia do not mix well.  If someone has Schizophrenia and any type of substance abuse issue, he/she is highly likely to commit some sort of violent act--it may not be as dramatic as a killing spree, but the individual is probably more likely to be angry, combative and unpredictable. But, an individual with Schizophrenia and no substance abuse issues is probably no more dangerous than the average person.

Thanks for reading-- Max Wachtel, Ph.D.
CherryCreekPsychology.com
Facebook.com/drmaxwachtel
Twitter.com/mwachtel
YouTube.com/drmaxwachtel

Reference:

Fazel, S., Långström, N., Hjern, A., Grann, M., & Lichtenstein, P. (2009). Schizophrenia, Substance Abuse, and Violent Crime. Journal of the American Medical Association, 301(19), 2016-2023.

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My Interview in the Ft. Collins Coloradoan

Michael Maher (left) posing with Gov. John Hickenlooper
while "behind the scenes" at the High Park Fire.

Fox 31 News in Denver interviewed me a few weeks ago about Michael Maher, a man who impersonated a fire fighter to get behind the scenes of the High Park Fire. He had his picture taken with the Governor, and he posted it on his Facebook page. He is now facing criminal charges related to the event.

Unfortunately, Fox News did not use the footage from my interview in their story. But, last week I was interviewed again by a reporter for the local Ft. Collins newspaper on the same story. You can read the article here:

Ft. Collins Coloradoan 07/08/12: The Psychology Behind Impersonations of Fire Fighters, Police Officers

Thanks for reading-- Max Wachtel, Ph.D.
CherryCreekPsychology.com
Facebook.com/drmaxwachtel
Twitter.com/mwachtel

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Independence Day Edition: How Psychologists Can Take Away A Client's Civil Rights (Temporarily)

On this Independence Day, I thought it might be interesting to discuss the power psychologists have to take away a person's civil rights.

Every state has laws in place that allow psychologists, psychiatrists, masters level licensed clinicians, EMTs, and police officers to place an individual on an involuntary mental health hold. Most state laws are similar to those in Colorado, where I live. In Colorado, an individual needs to be deemed a danger to self, danger to others, or "gravely disabled." Danger to self/others is typically considered to be a risk of committing suicide or homicide. "Gravely disabled" is defined as a person being unable to maintain basic activities of daily living, which places him/her at risk of severe harm (for example, a psychotic person running naked through the streets in the winter).

Once the clinician determines that the person is a danger to self or others or gravely disabled, that person can be placed on a 72-hour mental health hold. For those three days, the person can be held in a hospital involuntarily. If there is a concern the person may leave early, it is considered reasonable to place him/her on a locked unit. The person is in a hospital, but there is another word for a locked building that houses people who are not allowed to leave--jail.

In these cases, we are essentially incarcerating these individuals against their will for up to 72 hours. What follows are the civil rights people lose during that time:

1. Due Process (Fifth Amendment): For three days at least, they are arguably being deprived of "life, liberty, or property" without due process of law.

2. Trial by Jury, Habeas Corpus, Confrontation of Accuser, Right to Counsel (Sixth Amendment): These people can be locked on an inpatient psychiatric unit with no trial and no explanation of the evidence that led to the mental health hold. For those three days, they have no right to have an attorney and are not allowed to confront their accusers in court.

These loss of civil rights need to be put into perspective, however. Assuming a person is mentally incapacitated to the point of being a danger to self or others or being gravely disabled, mental health clinicians have an ethical obligation to act in the best interest of the client and the public. Also, these rights are only temporarily lost--although a person can be held for a maximum of 72 hours, he/she can be released early if the danger or disability improves. If the person remains a danger or gravely disabled after 72 hours, the hospital needs to apply for short-term certification for treatment through a civil court, at which point the client regains all Constitutional Rights and can fight the involuntary hospitalization and treatment in court.

Anti-psychiatry activist clearly upset over
forcing individuals to undergo mental
health treatment

It does not happen often, but I have placed a handful of clients on 72-hour mental health holds over the years. In each instance, I have taken that responsibility very seriously. I understand the ramifications of taking away a person's decision-making ability and civil rights, even for a short period of time. In each instance, I weighed the cost of involuntarily "incarcerating" the individual with the benefit he/she would receive in treatment. I also weighed the potential danger to the public in my decision. It is never easy to make this decision, but sometimes it is important to do so.

Thanks for reading-- Max Wachtel, Ph.D.
CherryCreekPsychology.com
Facebook.com/drmaxwachtel
Twitter.com/mwachtel

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Are People With ADHD More Prone To Panic?

I recently had an attorney ask me this question about a client of his, whom he suspected had ADHD. The client had been pulled over on a routine traffic stop and the police officer noticed he was very anxious, so the client was put through a field sobriety test. He panicked during the test and failed it. He was then arrested for suspicion of DUI.

I dug through the research on ADHD and stress, and I found some interesting information. People with ADHD tend to have lower cortisol levels when confronted with stress than people without ADHD. Cortisol is a chemical released by our bodies when we are anxious. Numerous studies have noted that people with ADHD are less engaged during stressful situations and pay less attention to stressful stimuli. This is true of both teens and adults with ADHD.

Interestingly, people with ADHD also have higher incidents of anxiety-related disorders than individuals without ADHD. You might think it would be the other way around--if people aren't paying attention to stressful stimuli, they should be calmer, right?

Our brains actually work the opposite way. We tend to handle stressful situations better if we confront them head-on, rather than attempting to ignore the situation. In general, people who focus more on their stress during a stressful event will have less anxiety in the long-run than people who are not able to focus on that stress in the moment.

Because of this somewhat surprising finding, it makes sense that people with ADHD, who are less engaged with their stress in the moment, might experience higher overall levels of anxiety. In turn, if someone has anxiety, he/she may be more prone to panic in highly stressful situations, such as a field sobriety test.

There could be many reasons why this particular client failed the field sobriety test. He could have been anxious because he has ADHD. He could have been anxious without ADHD. He could have just been stressed about something totally unrelated. Or, he could have been drunk. But, if he did have ADHD, there is certainly a chance that his brain chemistry and physiology made him more prone to failing the test, even when completely sober.

Thanks for reading-- Max Wachtel, Ph.D.
CherryCreekPsychology.com
Facebook.com/drmaxwachtel
Twitter.com/mwachtel

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