June 8, 2009

CA court: SVP defendant must be competent

Appellate court bucks national trend

In another important SVP decision, a California appellate court has ruled that it is Unconstitutional to civilly commit a sex offender who is incompetent to stand trial.

The courageous decision in the case of Ardell Moore tackles head-on the fiction that merely labeling something as "civil" takes away the due process protections that automatically confer to criminal defendants:

"Irrespective of the fact a commitment under the SVPA [Sexually Violent Predator Act] is labeled civil rather than criminal, the defendant’s liberty is severely curtailed," the Court pointed out.

Ardell Moore is diagnosed with paranoid schizophrenia. Mental health evaluators have described him as floridly psychotic and delusional.

In its well-articulated decision, the court detailed much the same rationale as has long been recognized for criminal defendants. When a defendant is put on trial while incompetent, he becomes "a mere spectator," not able to correct erroneous information, assist his attorney, or testify effectively on his own behalf. All of this substantially increases the probability of a sham proceeding and a resultant miscarriage of justice.
"An incompetent defendant will have no opportunity to discuss his prior behavior and motivating reasons for such behavior with the state's evaluator or with a defense expert, or be able to explain to a jury why the state expert’s rationale for the diagnosis and volitional impairment is not justified. A defendant who is incompetent is at a great disadvantage, as he cannot meaningfully testify in his own behalf, cannot cooperate with his own counsel, nor assist his defense experts in understanding the basis for his behavior or provide evidence to rebut an evaluator’s potentially erroneous conclusion."
The appearance of a kangaroo court has not bothered courts in four other states -- Massachusetts, Iowa, Missouri and Texas -- which have all approved trials of incompetent SVP defendants based on the legal fiction that the proceedings are "civil."

Those cases are:
  • Massachusetts: Commonwealth. v. Nieves (2006) 846 N.E.2d 379
  • Iowa: In re Detention of Cubbage (2003) 671 N.W.2d 442
  • Missouri: State ex rel. Nixon v. Kinder (2003) 129 S.W.3d 5
  • Texas: In re Commitment of Fisher (2005) 164 S.W.3d 637
The unanimous opinion by the Court of Appeal in the Second Appellate District (Los Angeles) was a case of first impression, meaning the issue had not previously been addressed by a California appellate court.

Leaning heavily on last year's opinion in People v. Allen, in which the California Supreme Court held that defendants in SVP proceedings have a Constitutional right to testify over the objection of their attorneys, the court reiterated that "in every case" an SVPA defendant has the constitutional right to testify and to present his side of the story, and "mental competence is a prerequisite to the exercise of that due process right. Absent mental competence, a defendant cannot testify or participate meaningfully in the SVPA proceeding."

Moore was convicted in 1987 of kidnapping, forcible rape and forcible rape in concert and was sentenced to 25 years in state prison. As his parole date neared, he was flagged by state evaluators as a possible Sexually Violent Predator.

Two state evaluators, licensed psychologists Beryl Davis and Gary Zinik, testified against him at his trial. Both testified that he suffered from paranoid schizophrenia and was off his medications and too incoherent to talk with them when they tried to evaluate him. Despite his inability to rationally engage with them, they opined that he would likely reoffend sexually if released.

Testified Davis, "When we talk about volition and somebody's ability to control their behavior, when you're florid psychotic, you lose that volitional control, and somebody with a sexually [sic] preoccupation and inability to control themselves sexually would be a significant high risk."

Not surprisingly, after waiving his right to a jury trial Moore lost his trial and was civilly committed. The trial judge ruled that his incompetency did not matter, because the proceeding was civil and not criminal. Quoting from the Massachusetts case of Nieves, the court held:
"We see no reason why the public interest in committing sexually dangerous persons to the care of the treatment center must be thwarted by the fact that one who is sexually dangerous also happens to be incompetent."
Since 2000, Moore has been housed off and on at Atascadero State Hospital, where he has remained floridly psychotic, according to subsequent evaluators.

In early 2007, psychologist Vianne Castellano, Ph.D. evaluated Moore and opined that he was incompetent to stand trial: "He is neither able to understand the nature and the purpose of these proceedings nor is he able to cooperate in a rational manner with his counsel or the psychological evaluators."

The appellate ruling means his case will be remanded to the trial court for a new determination of whether he is competent to stand trial. If he is found incompetent, he will be entitled to competency restoration treatment at a state hospital.

As the appellate justices pointed out in their unanimous opinion, there is no real down side. In the event that an SVP defendant is found incompetent to stand trial, neither public safety nor state finances are affected. The defendant remains in custody in a state hospital, as he would have been had he been civilly committed, and "the fiscal burden to the state remains essentially the same."

The ruling is HERE. A previous appellate opinion in the case is HERE.

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