img_2120-3.jpgWhen I began the practice of law as a prosecutor, years ago, I encountered a case in which the alleged complainant was mentally ill.  He was not competent and had been determined so by several different courts.  I never forgot that case or that young man, how incapable he was of appearing in court, testifying, standing up for himself and navigating his way through the system.  I remember my visits with him to this day.

I have relived those memories over the years defending people accused of crimes, some of whom were mentally ill or inform.  Sadly, our legal system fails these people.  Repeatedly.  Over and over again.  The system is on the verge of doing so again in a case that our firm is handling.  The sister of a friend is charged with a crime. They turned to us to represent her.  Sadly, she has an intractable, irreversible medical and psychiatric condition that renders her incapable of participating in the legal system in a meaningful way.  She is incompetent to stand trial.  When we raised the issue at first, the Court resisted — suggesting that in court questioning of our client revealed that she was competent and able to assist.

When we persisted, we were instructed to bring our records.  We did.  We returned with tests, options, letters, etc.  We had anecdotal and professional opinions that she was incompetent.  The Court opined that we had “just” established the threshold for a formal evaluation.  Six (6) weeks later, the state’s experts agreed — she was incompetent and not capable of being restored to competency with treatment.  Her disease is genetic and organic.  It will not get better with medication.

When we returned to court, we found ourselves in this so-called “grey area”: the court opining that it could not dismiss the matter, the prosecution indicating that it could not prosecute her but that it would not agree to dismiss the case.  The prosecution admitted that it could not prosecute her any further but that it “intended to prosecute her.”  In other words, the prosecutor did not want to dismiss the case and the Court did not want to dismiss the case leaving our client, too mentally ill to be prosecuted, still being prosecuted: neither the prosecution nor court, today at least, was willing to step and do what was necessary to protect our client from further prosecution.

Sure, I argued.  The whole time I thought of that young man from 22 years ago … the one that the system could not protect.  It seemed cruel and unusual then.  Twenty-two years later, I can’t wrap my brain around the fact that the system has not progressed at all in protecting people like him and our client. So, next week we return to court to implore those to do the right thing — it is cruel and unusual to continue to prosecute her.  I am hopeful that next week’s hearing proves me wrong and that the system has improved but if today is any lesson or indication, I have my doubts.


Neil Rockind