Thank you, Atwp.
This is a far more complex issue than can be condensed into a FlaglerLive comment.
By the grossest oversimplification, the common law has developed and redeveloped rules and statutes to deal with the insane and incompetent defendant. The results aree often controversial, as it is in this case.
In 1843, Mr. Mc’Naughten was found not guilty by reason of insanity in an English courtroom for the murder of one of Queen Victoria’s favored government ministers. She ordered the revision of England’s common law approach to the prosecution of the insane. Florida is one of about half of the states that still adheres to the Mc’Naughten Rule. The purpose of the rule is to aid a judge or a jury in the determination of whether an accused knew at the time of the act whether the act was right or wrong under the law due to insanity. This is a most difficult test to administer. But in theory punishment is useless to those who do not understand that punishment is even needed.
Regarding incompetency, that, too, is a very complex issue. There are many factors to be considered. Many experts (I do not claim expertise in either field) debate the factors and how they should be considered by judges. Can a person be competent at one moment and incompetent the next, i.e., is competency transitory? If a person is incompetent, by definition, can that person aid, can that person assist, can that person inform, his or her attorney during trial? For a time longer than I can remember, an incompetent defendant cannot receive a fair trial, not because the judge can’t give a fair trial or a jury cannot participate in a fair trial, but because the facts on which a fair trial is to be based cannot ever be complete due to the incompetency of the defendant. Procedural due process requires notice of the charge(s) and a right to be heard. If a defendant cannot understand the charge and if a defendant cannot give voice to any defense, then it is impossible to conduct a fair trial within the definition of the Due Process clause of the state and federal constitutions.
The umbrella term of “dementia” (there are many types of cognitive disorders that fall within the definition of dementia) means that a person diagnosed with such a condition cannot be healed, cannot be restored to a life without symptoms of dementia. If a person is deemed incomptent to stand trial due to dementia, there will never be a trial.
The truly unfortunate aspect for a court is that the legislature has never defined dementia in the chapter (916) that controls the court’s authority to deal with such cases.
A court cannot place a defendant with the Department of Children and Families (DCF) because the statute requires that those who are placed with DCF be “restorable” to competency. If a person cannot be restored, it is illegal for a judge to order someone into DCF care. DCF attorneys aggressively appeal any order placing an unrestorable defendant to their care; they almost always win.
The Agency for Persons with Disabilities (APD) can only receive into its care under court order those who meet the statutory definition for intellectually disability. Such a designation almost always occurs prior to a person reaching the age of 18. It is, therefore, illegal for a judge to order a defendant who is diagnosed with some form of dementia at the age of 80 or so to APD. APD lawyers also aggressively appeal such orders and almost always win.
There is a huge hole in the statutes that define care for the mentally ill or the intellectually disabled. If a judge cannot place Mr. Kidd with either DCF or APD, then there are few legal means to address the issue.
The defense can move to secure release under the terms of Chapter 916, but the legislature hasn’t defined dementia. The remedies differ between mental illness and intellectual disability. If a person is permanently incompetent within the DCA sphere, then the rules require a waiting period before a court can order the release of a defendant and the dropping of charges. If a person is permanently incompetent due to intellectual disability, then a court can immediately release a defendant and dismiss the charges. Which remedy is the judge supposed to apply when dementia remains undefined?
Nearly a decade ago, I had such a client. She shot and killed her nephew at the age of 96. A specially trained neuropsychologist evaluated her using the few evaluative tools approved within her profession for persons over the age of 85. She determined my client to be permanently incompetent, with symptoms of two different forms of dementia. It took me 11 different motions, complete with threats by DCF and APD lawyers that they would appeal whatever the judge did, but the case was resolved. Each motion attracted television news attention. While office rules forbad my speaking with the press, I did so anyway. I emphasized each time that the government wanted my client to die in the county jail. It would not agree to any form of release. It knew that my client could never be tried. It intended to appeal anything the judge would do, and it would likely win. The county jail staff lacked the resources to treat my client. She would simply waste away, if the prosecution had its way. After the 11th motion appeared on the Jacksonville evening TV news, I received a call from lead counsel for APD out of Tallahassee. He told me that he had received orders from the governor’s lead attorney; he was to stop fighting me and find a place for my client. Regional APD counsel later told me her staff had contacted over 200 facilities that were licensed to provide care for those suffering with dementia. None would accept my client. I then received a call from regional DCF counsel. They, too, had been ordered to stop fighting me. DCF had a facility that accepted women over the age of 65, but only for those who are in prison. If female inmates develop symptoms of dementia, they are transferred to the specialized facility. The problem, of course, is how can an incompetent person be sentenced to DCF care without a trial or a plea. The State offered to place her in the facility without a plea or trial, but only if the judge placed her with DCF. An illegal order was prepared. The judge, having no other option, agreed. The State then dropped the charges. Was I right to agree? No one in her family would take her in, as she had killed a beloved family member who had taken her in after he saw her living alone in squalor in Jacksonville. She lacked resources to start a new life if she were released. No private treatment facility would take her. Every time I argued her motions she demanded that I get her released. When I told her that I was arguing her motions, she would loudly announce for all to hear that if she had a gun, she would shoot me. One option was to leave her in the county jail where she was commonly aggressive to the female corrections officers. If they gave her a cane to walk, she would strike them. If they gave her a wheelchair, she would try to run them over. As I pointed out earlier, the jail lacked any resources to provide care to an inmate with dementia. The only other option was the specialized facility on the State Mental Hospital grounds. The judge signed the illegal order to place her with DCF and DCF refrained from appeal.
Bailiffs heard over and over again my arguments. Other corrections staff heard over and over again my arguments. When my client was transported into DCF custody, for months afterwards all I had to do was walk into that jail and corrections staff would go out of their way to come up to me and thank me. The idea, apparently, that they would have to deal with her violent behavior for who knows how many years had become oppressive. They knew that the prosecutors were willing to let them handle the problems.
The courts are supposed to bring disputes to a permanent close. Our founding fathers knew very well that many people cannot bring their own disputes to a close. The courts are not here to make people happy, to provide vengeance, to suit the whim or caprice of the vengeful FlaglerLive commenter. The courts are here to provide finality, justice, mercy, punishment.
As an aside, for whatever reason, whenever I saw my client, she called me her “Italiani” lawyer and asked if I had smuggled in oxtails over rice smothered in gravy for her to eat.
