Competency/Fitness to Stand Trial

Updated 6/25/08


Competency to Stand Trial – Civil Commitment Proceeding: Competency not Required
State v. Ronald D. Luttrell, 2008 WI App 93
For Luttrell: Steven Prifogle, SPD, Milwaukee Trial
Issue: Whether a ch. 980 SVP respondent is entitled to § 971.14 competency evaluation.
Holding:
¶8        It is true, of course, that both Wis. Stat. § 971.13 and Wis. Stat. § 971.14 once applied to Wis. Stat. ch. 980 commitments, see Smith, 229 Wis. 2d at 726, 600 N.W.2d at 261, but that was because a specific statute, Wis. Stat. § 980.05(1m) (2003–04), required it, see Smith, 229 Wis. 2d at 726­–727, 731–732, 600 N.W.2d at 261, 263–264. … Section 980.05(1m) (2003–04), however, was repealed effective August 1, 2006 . …

¶10      Luttrell’s contention that he is entitled to a competency hearing under Wis. Stat. § 971.14 also ignores the special indicium of a civil commitment, which, per force, cannot depend on whether that person is competent. Thus, significant mental impairment is a condition to commitment under Wis. Stat. ch. 51, Wisconsin’s civil mental-commitment chapter, see Wis. Stat. § 51.20(1)(a), as it is under Wis. Stat. ch. 55, Wisconsin’s protective-placement-system chapter for persons who are unable to properly care for themselves, see Wis. Stat. § 55.001. [5] Accordingly, competency is not a prerequisite to either civil mental-commitment or civil protective-placement proceedings. … The same principle applies to Wis. Stat. ch. 980.

The court also dispatches the argument that, by failing to overturn Smith explicitly, the legislature evinced intent to keep that holding on the books, ¶8 n. 3:
… As we have seen in the main body of this opinion, Smith relied on § 980.05(1m) (2003–04) in holding that persons subject to ch. 980 proceedings are entitled to a competency hearing under Wis. Stat. § 971.14. By repealing § 980.05(1m) (2003–04), the legislature overturned case law that used § 980.05(1m) (2003–04) to give to persons subject to ch. 980 proceedings certain rights enjoyed by defendants in criminal cases even though those rights are not otherwise granted by ch. 980. Simply put, Smith’s determination that § 980.05(1m) (2003–04) engrafted § 971.14 onto ch. 980 is not applicable here because § 980.05(1m) (2003–04) is no longer on the books.
One other thing, neither here nor there. It’s generally not a good sign when, even though the issue is purely one of law and therefore an abstraction, the court starts out its overview with a recitation of the horrible albeit irrelevant details of the crime, ¶2.
Burden of Proof.
State v. Leo E. Wanta, 224 Wis.2d 679, 592 N.W.2d 645 (Ct. App. 1999).
For Wanta: James M. Shellow.
HOLDING: Wanta argues that Wis. Stat. § 971.14(4)(b) is unconstitutional, because it requires proof of incompetence by clear and convincing evidence when the defendant claims that s/he is competent (vs. proof of competency by mere greater weight of evidence when the defendant claims incompetence). The court construes the challenge to be one of equal protection. § 971.14(4)(b), the court holds, aims to protect two competing rights - not to be prosecuted when incompetent, and not to be deprived of liberty without due process - and the court applies a strict scrutiny standard. Proof of incompetence by the higher burden of clear and convincing evidence diminishes the risk that a competent defendant would be deprived of liberty and is therefore "clearly constitutional."
Discharge Procedure
State v. Keith M. Carey , 2004 WI App 83, PFR filed 4/22/04
For Carey: Paul LaZotte, SPD, Madison Appellate
Issue/Holding:
¶10. Pursuant to Wis. Stat. § 971.14(5)(a), if the court finds that a defendant is not competent, but is likely to become competent, it may commit the defendant to the custody of the department of health and family services for a period of time not to exceed twelve months or the maximum sentence for the most serious offense with which the defendant is charged, whichever is less. In this case, however, the court determined that Carey was incompetent and not likely to become competent within the allotted time. Therefore, Carey could not be committed pursuant to subsec. (5)(a). … Thus, when a circuit court discharges a defendant from a commitment under § 971.14(6)(a), the circuit court, pursuant to § 971.14(6)(b), may immediately order that the defendant be taken into custody and held pursuant to Wis. Stat. ch. 51. Thereafter, further proceedings under ch. 51 or Wis. Stat. ch. 55 may occur. Here, after the court discharged Carey, the State invoked § 971.14(6)(b) by seeking and accomplishing Carey's detention under ch. 51, and later, under ch. 55.

...

¶12. … [T]he State, once it learns that a defendant discharged under para. (a) may become competent, may move the court to order the defendant to undergo a reevaluation of his or her competency to stand trial. This is precisely what happened here. The second sentence of para. (a) grants the court the power to order the reevaluation of the competency of the defendant when the defendant is released from custody. Accordingly, in this case, the circuit court had the authority by virtue of subsec. (6)(d) and the second sentence in subsec. (6)(a) to order the competency examination.

...

¶14. While Carey is technically right that the circuit court committed him under Wis. Stat. § 971.14(6)(b), it is subsec. (6)(a) that specifically envisions and authorizes the court to order a civil commitment under subsec. (6)(b). Furthermore, although Billy Jo W. v. Metro, 182 Wis. 2d 616, 645, 514 N.W.2d 707 (1994), is not directly on point, our supreme court's comments in that case concerning the purposes of § 971.14 are instructive. There, our supreme court recognized that the legislature had interwoven the provisions of Wis. Stat. chs. 51 and 971 to accommodate the constitutional protections against perpetual, unjustified confinement on the one hand and the interests of the public in prosecuting criminal defendants on the other hand. Billy Jo W., 182 Wis. 2d at 645. Thus, in furtherance of the latter, § 971.14(6) provides that the criminal court retains jurisdiction over the defendant, who can be prosecuted once he or she regains competency. Billy Jo W., 182 Wis. 2d at 644-45 (citing State ex rel. Porter v. Wolke, 80 Wis. 2d 197, 204, 257 N.W.2d 881 (1977)). This both ensures that a competent defendant does not escape the consequences of his or her criminal behavior and protects the public from a potentially dangerous competent individual.

¶15. … We, therefore, hold that that the circuit court had the authority under Wis. Stat. § 971.14(6) to order a redetermination of Carey's competency to stand trial and we remand the matter for further proceedings.

Doubts Arising between Plea & Sentencing: need for retrospective hearing.
State v. Michael W. Farrell, 226 Wis.2d 447, 595 N.W.2d 64 (Ct. App. 1999).
For Farrell: Kevin M. Schram.
HOLDING: Finding of incompetency subsequent to plea proceeding is a factor to consider but in and of itself neither creates doubt as to prior competency nor requires retrospective competency hearing.
Evidence -- Consideration of Current Counsel's Opinion
State v. Jeffrey J. Meeks, 2002 WI App 65, overruled in State v. Jeffrey J. Meeks, 2003 WI 104
For Meeks: Howard B. Eisenberg, Dean, Marquette Law School
Issue: Whether the trial court’s competency ruling overlooked current counsel’s opinion that the defendant was incompetent.
Holding:
¶23. We agree with Meeks's unstated premise-in almost all cases where competency is at issue, defense counsel is in a uniquely advantageous position to advise the court whether the defendant understands the proceedings and is able to assist in the defense.…

¶24. Thus, a careful court will recognize the singular value of counsel's opinion and carefully consider it, in light of all the evidence at a competency hearing.…” In this case, the trial court followed that prescription.

(The opinion stresses that the issue is very close, and the trial court could well have come to the opposite conclusion. ¶24 n. 8.)
(Update: The supreme court's reversal on the ground of breach of attorney-client privilege, would seem to overrule this holding. State v. Jeffrey J. Meeks, 2003 WI 104.)
Evidence -- Consideration of Defendant's Demeanor in Prior Case
State v. Jeffrey J. Meeks, 2002 WI App 65, overruled in State v. Jeffrey J. Meeks, 2003 WI 104
For Meeks: Howard B. Eisenberg, Dean, Marquette Law School
Issue: Whether the trial court properly considered defendant’s demeanor in a previous case.
Holding: “¶27. As Meeks all but concedes, his understanding of the 1997 legal proceeding was relevant to the court's determination of his competency to proceed in 2000. The judge did not testify, but did carefully consider the transcribed record and her recollection of the 1997 proceeding. That was proper. We see no substantive difference between a judge's observations of a defendant's demeanor at the time competency is challenged and the judge's observations of the defendant at an earlier proceeding; both may be probative. See Byrge, 2000 WI 101 at ¶44 n.18 (‘The circuit judge has a unique vantage [point] from which to make a competency determination because the judge has significant personal exposure to the defendant.’).”
(Update: The supreme court's reversal on the ground of breach of attorney-client privilege, doesn't seem to overrule this holding, State v. Jeffrey J. Meeks, 2003 WI 104.)
Evidence -- Consideration of Prior Counsel's "Character"
State v. Jeffrey J. Meeks, 2002 WI App 65, overruled in State v. Jeffrey J. Meeks, 2003 WI 104
For Meeks: Howard B. Eisenberg, Dean, Marquette Law School
Issue: Whether the trial court, in ruling on competency, improperly relied on its perceptions of the defendant’s attorney in a prior case, in stressing that that attorney hadn’t raised competency.
Holding:
“¶19. ‘A trial court sitting as fact-finder may derive inferences from the testimony and take judicial notice of a fact that is not subject to reasonable dispute, but it may not establish as an adjudicative fact that which is known to the judge as an individual.’ State v. Peterson, 222 Wis. 2d 449, 457, 588 N.W.2d 84 (Ct. App. 1998) (footnotes omitted). Here, the court's judicial notice was of undisputed facts, and its knowledge of Ms. Scholle had not been gained ‘as an individual,’ but rather, as a court, in its formal role.

“¶20. Meeks did not object to-and still does not dispute-the court's comments about Ms. Scholle. The court observed that Ms. Scholle was ‘accustomed to dealing with people in the real world’ and ‘ha[d] tried [a] case before [the court of a] mentally ill man, and who [was] ... acutely conscious of the cultural milieu from which so many of her clients and the clients of the state public defender's office come.’ The court's observations were relevant to its explanation of why it was giving considerable credit to the fact that Ms. Scholle, in representing Meeks previously, had never deemed it appropriate to raise the competency issue.”

(Note: The opinion stresses that neither the attorney’s testimony nor her credibility was disputed; where credibility is at stake, and the trial court has a preformed notion of that credibility, then recusal is warranted. ¶21 n. 7.
Update: The supreme court's reversal on the ground of breach of attorney-client privilege, doesn't directly overrule this holding, but does bring it into question. State v. Jeffrey J. Meeks, 2003 WI 104.)
Reopening Competency Determination
State v. Jeffrey J. Meeks, 2002 WI App 65, overruled in State v. Jeffrey J. Meeks, 2003 WI 104
For Meeks: Howard B. Eisenberg, Dean, Marquette Law School
Issue: Whether the trial court erred in failing to order an additional competency evaluation after counsel raised renewed doubt as to competency.
Holding:
¶46. Denying Meeks's requests for additional competency evaluations and/or hearings, Judge Konkel referred to Judge Lamelas's competency determination and concluded that because Meeks had not offered anything to establish a change in his condition since that determination, no further competency evaluation or hearing was required. Judge Konkel's findings were not clearly erroneous; his conclusion was correct.
(Note: Post-competency determination, a couple of different doctors expressed concern as to competency; one’s concern was “serious,” sufficiently so that he strongly recommended re-examination. ¶59. These recommendations were discounted, apparently, because they were based on review of prior reports, rather than any “new” development. ¶¶61-62.)
(Update: The supreme court's reversal on the ground of breach of attorney-client privilege, doesn't directly overrule this holding, but does bring it into question. State v. Jeffrey J. Meeks, 2003 WI 104.)
Standard of Review
State v. Jeremy J. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477, affirming as modified published decision of court of appeals, 225 Wis. 2d 702, 594 N.W.2d 388
For Byrge: Steven P. Weiss, SPD, Madison Appellate
ISSUE: Whether competency determinations are reviewed deferentially.
HOLDING: Because a competency determination "pivots on factors only a trial court can appraise," the court "do(es) not disturb our holding in ( State v. Garfoot, 207 Wis. 2d 214, 558 N.W.2d 626 (1997)) and adhere(s) to the clearly erroneous standard for reviewing circuit court determinations in competency proceedings." ¶¶44, 45.
Go To Brief
Sufficiency of Evidence
State v. Jeffrey J. Meeks, 2002 WI App 65, overruled in State v. Jeffrey J. Meeks, 2003 WI 104
For Meeks: Howard B. Eisenberg, Dean, Marquette Law School
Issue: Whether the evidence supports the trial court’s conclusion of the defendant’s competency, which relied largely on lay testimony as opposed to the experts, who thought the defendant incompetent.
Holding:
“¶15. The court's consideration of the lay testimony was particularly appropriate in this case where, as appellate counsel concedes, Meeks ‘can relate facts regarding his crime and can even answer questions about the historical facts,’ but where, appellate counsel asserts, Meeks ‘has no comprehension or understanding of the legal process.’ Because the defense was seeking to establish that Meeks was too cognitively impaired to proceed, it was logical for the State to counter with evidence establishing that his mental condition had not changed since the time Scholle represented him and that, when she did so, Scholle deemed Meeks competent to proceed.

“¶16. ‘Only the trial court can judge the credibility of witnesses who testify at the competency hearing,’ and weigh their testimony. Garfoot, 207 Wis. 2d at 223. Moreover, while ‘a competency inquiry focuses on a defendant's ability at the time of the present proceeding, not on the defendant's competency at some point in the distant past,’ State v. Farrell, 226 Wis. 2d 447, 454, 595 N.W.2d 64 (Ct. App. 1999), the defendant's past mental condition may be relevant to the present determination of competency, see id.; see also State v. Weber, 146 Wis. 2d 817, 827, 433 N.W.2d 583 (Ct. App. 1988).

“¶17. Here, unquestionably, the record reflects the court's careful consideration of all the evidence and its measured evaluation of the interplay between the opinions of the mental health professionals and the more remote information from the lay witnesses. See Farrell, 226 Wis. 2d at 455 (‘The court considers all the factual evidence presented to it when determining whether a reason to doubt competency exists.’). We see no error.”

(Update: The supreme court's reversal on the ground of breach of attorney-client privilege, invalidates the specific result, because the trial court relied on the attorney's testimony for its conclusion of competency. State v. Jeffrey J. Meeks, 2003 WI 104.)  
Time Limits for Competency Exam.
State ex rel. Michael J. Hager v. Marten, 226 Wis.2d 687, 594 N.W.2d 791 (1999), affirming unpublished decision.
For Hager, Gerhardt F. Getzin, SPD, Wausau.
HOLDING: The issue is whether the § 971.14(2) time limit, requiring completion of competency exam w/in 15 days "of the arrival of the defendant at the inpatient facility," was violated. Resolution turns on whether the court specifically ordered an inpatient exam. No written order was entered, helping to create an unfortunate ambiguity. The trial court merely ordered an exam "at Winnebago." This did not, in and of itself, specify whether the exam would be inpatient or outpatient. The court has the authority to order an inpatient exam, § 971.14 (2)(a), in which case the 15-day time limit begins running when the exam is ordered. Otherwise, if an exam is merely ordered, then the department has discretion under § 971.14(2)(am) to determine whether it will be in- or out-patient. And, under this provision, then the time limit for an inpatient exam is triggered by arrival at the facility. Hager wasn't transported to the facility, instead languishing for five months in jail. But given the lack of precision in the judge's order, the statutory 15-day time limit didn't begin to run because he wasn't sent to Winnebago and the statute therefore wasn't violated. Hager could have, the court intimates, asserted a statutory speedy trial violation, § 971.10, but failed to do so. The court also suggests that a written order would have clarified the judge's intent with respect to whether he was ordering an inpatient exam (immediately triggering the other time limit). The concurrence laments the lack of written competency order, and concludes that a § 971.14(2)(a) order for inpatient exam must be in writing to trigger the relevant limitation period. "Michael Hager fell through the cracks" largely because of this failure, given that a written order provides "notice of what action must be taken."