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StarNewsOnline: Determining incompetency can be difficult
October 09, 2014

Published: Tuesday, October 7, 2014 at 3:00 p.m.



The recent court case to determine New Hanover County Commissioner Brian Berger's competency to stand trial offered a glimpse into the difficulties officials have in determining whether a defendant is able to aid in his defense.

In Berger's case, a defense-requested evaluation found him incapable of assisting his attorney. A second evaluation at the behest of the prosecution found Berger capable. Ultimately, the embattled commissioner whose term is set to end next month was found guilty of violating his probation on charges of impaired driving. Berger was ordered to serve a year of probation and get mental health counseling.

There are a number of challenges defense attorneys face when their clients are unable to assist in their defense, said Shallotte-based defense attorney James Payne.

"The struggles come initially and all land in the defense attorney's lap," Payne said. "It's the defense attorney who first brings it to the court's attention. They say, ‘I've got a problem here communicating with my client. He doesn't understand who I am, he doesn't understand what the judge's role is, he doesn't understand what he's facing and he just can't communicate with me.'"

At that point, a judge can order a forensic examination, and if the client is found incompetent, the judge can order he be committed, Payne said.

"If he's found incompetent, then he is committed until he regains competency," Payne said, "and sometimes that never happens."

In North Carolina, a person can be held indefinitely if deemed incompetent to proceed to trial and a danger to himself or others.

That could mean he sits in a jail if he's deemed nonviolent, or he could be committed to a hospital if he's found to be a harm to himself or others.

In the course of his 25-year career, three of Payne's clients have been committed to psychiatric hospitals for incompetency much like Timothy Tyler Thompson of Castle Hayne, who was deemed incompetent shortly after police say he intentionally drove his pickup truck into a crowded Burger King in 2006.

The most notable of Payne's cases – two of which involved murder charges – is the November 1997 samurai sword slaying of 80-year-old Leland father James L. Cobb at the hands of his mentally unstable son.

Payne's client, Alvino Leonardo Dixon, now 45, is still in a psychiatric hospital. Dixon has yet to be tried – and may never be – in the murder of his father.

State law dictates a judge can order a competency determination to be made within 60 days of an attorney's request for an evaluation. Once a defendant is committed to a hospital, the evaluation must take place within 24 hours and the report must be returned to the court within 10 days. However, there is no state law that orders defendants held in state psychiatric hospitals must receive treatment to regain competency.

"My experience is they go to a state facility and they just languish. If there's a report back that they have regained their competency, then you can proceed. But if there's a determination that they will never regain competency, that's the end of their treatment, they're just warehoused for the rest of their life," Payne said.

Payne said defense attorneys often find themselves not only advocating for their clients in the courtroom, but also in the mental health arena.

"You do have to wear a different hat. And you have to be sensitive to mental illness. I've taken on clients who've had previous attorneys who didn't realize there was a problem, and as soon as I sat down with the client I knew right away something was wrong," he said. "Defending the mentally challenged calls upon a lawyer's skills that law schools can't teach and only years of experience can."

Deby Dihoff, executive director of the National Alliance on Mental Illness North Carolina, said changes in 2012 in the law governing capacity to proceed aims to alleviate the "limbo" many defendants found incompetent, but not dangerous, find themselves trapped in.

"One of the changes were how people were evaluated. If there were misdemeanor charges against someone, the determination of their competency to stand trial was to be done locally, So there wouldn't be such a long wait at the state hospital," she said. "The other change is that if they had already served the amount of time they would have had to serve, for whatever charge, they were to be let go."

The law now states, "When a defendant lacks capacity to proceed, the court shall dismiss the charges when it appears to the satisfaction of the court that the defendant will not gain capacity."

The determination can be made after five years for a misdemeanor and 10 years for a felony.

"It was a good change," Dihoff said. "There's still some judgment that can take place in terms of determining that (a person) is not dangerous, but overall it addresses that limbo."

F.T. Norton: 910-343-2070

On Twitter: @FTNorton