Hi, I am Elle, and this is Quid Pro Quo, your friendly neighborhood forensics-like podcast, striving to provide a good example of a positive societal outlet for the weird kids in our lives. The Quid Pro Quo podcast deals with crime, psychology, and related themes. Listener discretion is advised. This is episode 3, Fit to be Tried.
I started my podcast journey several months ago by asking my own friends, what do you want to know about forensics psychology? A friend of mine who goes by at Gaelic Hero on Twitter had this to say in response. I'm really curious about the insanity defense trope, what qualifies as mentally unfit to stand trial. Just about any violent offender is diagnosable with something, I'd think.
I was expecting this exact line of questioning, but not quite in the form it came. What really struck me at the time was that while this was presented as if it was one cohesive question, this is actually a minimum of three questions once you get deep into theory and philosophy, touching on several very distinct and disparate factors. This signals to me that these are all concepts which definitely need clarification. Mental fitness at all levels of the trial process is kind of a darling subject of the press.
Since aside from the facts of the crime itself, it's a whole other bustling an hill to poke at. It's a subject rife with juicy questions about human mental function and antisocial behavior, with answers that can vary wildly depending on which professional or pundit you ask. In other words, media candy. Because of this, we hear mental saddest questions get bandied about pretty interchangeably, but for a forensic psych expert, lumping them together makes about as much sense as asking your cat loving friends the best way to care for a sick rat it.
An absolute base, all three sides of his question deal with mental status, but one refers only to the time of the crime, one refers only to the time of the trial process, and one refers to the way our society chooses to conceptualize socially acceptable and unacceptable behavior. The insanity defense side of it is a shockingly complicated question with a long history of stories which are fascinating and upsetting by varying degrees. The insanity defense, though surprisingly rare, is pretty interesting, so it will probably be relevant to a number of episodes all by itself. Likewise the way we conceive of the source of criminal behavior is a subject that would be equally at home in a podcast about forensic psychology, or history, or even theology.
For the purpose of today's episode, I'm going to stick with the most straightforward part of the question, fitness to stand trial. According to Matthew D. Falbion, MD of the Texas District and County Attorneys Association, for most individuals including those with severe and persistent mental illness, competence to stand trial is not an issue. Nationally, competency evaluations occur at a rate of 50,000 to 60,000 per year, with only 20% of those evaluated deemed incompetent to stand trial.
So going back to the base of it, I am speaking as a citizen of the United States with the relevant psychological and legal background to that location. The bedrock of this question in my current legal system is the Sixth Amendment of the US Constitution. If you are not familiar with the US Constitution, or maybe a few years out of your last civics class, the Sixth Amendment reads as follows. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
There are multiple applicable causes at work here. The first thing is the dead basic fact that you get to have a trial in the first place. After that you have to understand what you are on trial for, and finally you have to be able to understand what's going on with the witnesses both for and against you. There are countries which allow what is called trial in absentia, but the US is not one of them.
So let's start with the most obvious and absurd circumstance as a test case. If someone is stone dead, they simply cannot fulfill these criteria. We can dig up, pun completely intended, all the red-handed evidence on the misdeeds of dead people that we want, but they cannot effectively stand trial. Without a serious shift in the apparent metaphysical laws of the universe, and maybe a psychic, the deceased accused cannot be informed of the charges, they cannot mount a defense, and they cannot face their accuser.
Even if you set up a full trial with a jury, and all the evidence in the world, the accused cannot participate, and we as a society simply don't consider that just. Likewise if someone is in a coma, even if they can physically attend trial, they can't fulfill these necessary functions. A defendant needs to be able to interact with their accusers and their legal assistants to ensure that all necessary functions of the trial are carried out fairly and fully informed as possible. It doesn't matter how much someone may know about the circumstances the defendant experienced, they are still considered to be in no position to ask and answer the necessary questions for mounting a solid defense from the defendant's point of view.
Interestingly, amnesia in a defendant has provided to be a prickly issue. In sometimes in places, the simple presence of amnesia itself was sufficient to disqualify a defendant for trial. Depending on the scope of their amnesia, they cannot be considered able to provide informed assistance in their defense. As always, fear of faking to get out of punishment is high, and so most courts are now careful to avoid blanket rules which qualify or disqualify a defendant due to a specific condition, and will assess the extent to which amnesia functionally affects the trial process.
These cases will typically move forward, provided careful consideration is made for the specific limitations of the defendant. So then the question becomes, now that we've decided someone needs to be there, exactly how there does a person have to be, to be considered able to participate in their own defense. This is honestly a massively contentious question which brings into question our very definitions of intelligence, clarity, and sometimes even person shit. There is no easy answer here.
The broad standard for competency for trial in the US was set during a 1960 Supreme Court case known as Dusky v. United States. As with most of the really formative Supreme Court cases, the story behind the Dusky trial is pretty unpleasant. In 1958, 33-year-old Milton Dusky kidnapped and raped a 15-year-old girl.
Upon his arrest, he was referred for a mental health evaluation where a psychiatrist testified that Dusky was, quote, unable to properly understand the proceedings against him and unable to adequately assist counsel in his defense as he was clearly suffering from severe schizophrenia. If it gives you some framework, here's an excerpt of the report on his mental fitness. As a reminder, this is the report which was submitted at the initial determination by the judge that he was fit to stand trial. In the report, the legal testing done at this institution on September 17, 22, and 24, 1958 indicate a personality which has decompensated to a psychotic degree of severity and thus implying the personality loss of capacity to master conflict situations and to meet reality demands.
Prominent among the test findings were evidences of fear, inadequacy, anxiety, impulsiveness, poor reality contact, lack of ego strength, auditory and visual hallucinations, depression, nervous tension, morbid preoccupation with hostility, suicide, murder, sexual indulgence, and such a common sense of anxiety. The testers recommended he be left in treatment for an additional 60 days to become fully cognizant, but because Dusky was oriented and able to provide some details regarding the kidnapping incident, he was ruled to be competent to stand trial and was convicted of kidnapping and sentenced. This was later challenged in the Supreme Court and overturned in favor of a new trial, in case you were wondering, he was also convicted at that point. According to the ultimate Supreme Court decision, it is not enough for the district judge to find that the defendant is oriented to time and place and has some recollection of the events, but also the subject of the court's decision.
This standard also currently applies to competence to plead guilty and competence to waive one's attorney due to the later Supreme Court decision in Godinas v. Moran in 1993. You might have noticed that that's some pretty open language and the states are left to make their own decisions about what exactly constitutes being reasonable, rational, and having understanding. Defendants sometimes have changeable conditions which may cause their level of competence to vary over time based on any number of factors.
Typically, the goal in these cases is to do whatever possible to restore the defendant to a mental state where they are able to participate in the legal process, but these efforts can vary in success depending on why there is a problem in the first place. One excellent example of what we might see when this process does exactly what it's supposed to are the trial proceedings following the January 2011 spree shooting by Jared Lofner. As a refresher, in January 2011, Lofner targeted U.S. representative Gabrielle Giffords in a shooting attack outside of the Tucson, Arizona supermarket.
This alternative is to be a result of the first time that the judge has been arrested This ultimately resulted in six deaths and 13 injuries. He was immediately subdued by victim and bystanders at the scene. In May 2011, he was deemed unfit to stand trial due to severe paranoid schizophrenia. He was reportedly upset and in denial about this diagnosis, but even during the fitness proceeding, Lofner was agitated and blurted confusing remarks to the court, eventually requiring his removal to a separate room in order to complete the proceeding.
According to the judge, Lofner's mental illness was such that he did not trust his own lawyers. The judge also said that the doctors who examined him also determined Lofner could not stay on task and gave nonsensical responses to simple questions, and he agreed with their determination based on his own observations. Lofner was remanded to custody in a mental health facility to undergo treatment for schizophrenia with hope that, with voluntary adherence to prescribed medication, he would be restored to a state where he could then participate in his defense. Under federal law, a defendant in this position must now be re-evaluated for competency every four months.
As with people in the population at large, if a defendant is deemed dangerous to themselves or others, they may be involuntarily committed until such time that they recover, if ever, and their right to refuse treatment may be fairly limited. In July, Lofner was deemed a suicide risk, and federal appeals panel allowed authorities to force him to take anti-psychotic medication. Dr. Christina Peetz, a forensic psychologist who seemed to have been the point person in the determinations, later told the judge that Lofner is one of the worst mentally ill patients she's ever seen.
In August 2012, Lofner was finally deemed fit to stand trial and return to court to plead guilty. This was part of a plea deal which stipulated that he would not attempt to pursue an insanity defense. His charges would be reduced somewhat, and he would not receive the death penalty. He's a different person in appearance and affect the judge said about Lofner who was present in the courtroom.
He's tracking today, he appears to assist his lawyers. Court's own observations are that there's no question he understands what's happening today. Aside from the time it took to return Lofner to mental competence, this was as ideal a result as you're going to get in a murder case. A disorderly and disoriented defendant, this laying florid evidence of psychosis is a much easier call for the judge to make.
Not all mental competency determinations are so cut and dry. Oh, by the way, did I mention that it is the judge who ultimately decides whether defendant is competent? In the vast majority of cases, the defense and counsel are in agreement with the expert's findings. These cases end up being pretty straightforward and the judge will typically go with the recommendations of the psychological expert.
But in the case of disagreement, the question goes to the court, who is not bound by the evaluator's recommendations. A mental health professional can make all the recommendations they want, but in the end it's a legal question, and this is why the really contentious higher profile cases have seeming armies of expert psychological witnesses on each side, ready to get out West Side Story Snap Fight Style for the agreement of the judge. There are a lot of test-designed to gauge competence, but the trend nowadays seems to involve a combination of the typical diagnostic tests with additional trial-specific tests which take time to teach defendant about courtroom procedure and then quiz them on what they've been taught to test for their level of understanding. For a fully functioning defendant, this handily helps build any knowledge gaps they may have.
But for a questionable defendant, expressing understanding of the complexity of the trial process can present a real challenge, so using this as a gauge for functionality makes a lot of sense. Defendants with intellectual disabilities are in a uniquely tenuous position with regards to their ability to know, understand, and assist with their trial. The likelihood of a change in their condition is also considerably lower, barring a fleeting condition like an acute but healing traumatic brain injury. The dusty standard is definitely skewed more toward mental clarity, but determinations of exactly what points someone has the intellectual capacity to stand trial is the stuff of entire textbooks and highly specialized practice well beyond the scope of this podcast.
Intellectually challenged individuals tend to be tricky to get a good read-on. They may have already experienced a lifetime of function testing and familiarity and ease with testing should never be confused with actual ability. As someone who posted through most of their early schooling due to excellent testing skills, I can personally test that. Some people being evaluated may be overly agreeable in an effort to please the tester, and an unprepared tester or leading question could easily confuse agreement with comprehension.
I will provide a link in the episode write-up to a discussion of a New Jersey appellate court case, the state VMJK. This case provides an excellent example of how absurdly complicated it can get when a judge who just wants to get things underway is making a determination of competency in someone who is making all efforts to do well on the tests and who is not florally disordered or screaming nonsense across the courtroom. Make no mistake, even with a growing number of testing protocols to choose from and a general tendency toward agreement between psych experts and legal teams, competency determinations can get extremely ugly. The 2002 Supreme Court decision in Atkins v.
Virginia barred the execution of people with intellectual disability as unconstitutional cruel and unusual punishment. And Hall v. Florida in 2014 made it illegal to use arbitrary cookie cutter determinations of mental capacity for these cases. These decisions have done a lot to force courts to address the limitations of these determinations, but the highly controversial January 2015 executions of intellectually disabled killers Warren Hill in Georgia and Robert Led in Texas really highlight just how little agreement there is in these issues.
In the case of Warren Hill, the request for a stay of execution directly citing the Hall v. Florida case was denied by the exact same Supreme Court who decided on Hall in the first place. I'm sure this will be a subject we touch on again, but for now I hope this has provided a reasonable cookie overview of the concept of play in determining competence to stand trial. If you want to weigh in on this question or if you have other questions about true crime and forensic psych, seek me out at Quid Pro Quo Cast on Twitter, Facebook, Gmail, at the.com, and wherever fine internets are sold.
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