Transcript of Initial Competency Hearing

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1 Transcript of Initial Competency Hearing Participants: The Honorable William F. Dressel, President of the National Judicial College (and retired judge) serving as the Judge The Honorable Michael J. Finkle, Judge, King County Superior Court, Washington narrating and serving as the Prosecutor Russell Kurth, Esq., Associate Counsel for the Accused, Seattle Washington serving as the Defense Attorney Cody Herbst acting the part of the Defendant, Robert Barnes Opening Narration Judge Michael J. Finkle What you're about to see is a hearing at which the competency issue is raised initially. Typically, it is a defense attorney who raises the issue, and typically it is with a client who has been in custody. In this example, there's going to be an immunity agreement between the prosecution and defense there s no immunity statute, but there is an agreement between the parties that anything the defendant says, once competency is raised, cannot be used against the defendant. The hearing probably won't take very long, but there will be some questions the judges ask. Hearing Prosecutor: Okay, this is coming on before the Mental Health Court, before the designated mental health docket, this is Criminal Case The matter is before the Court at this time upon request of defense counsel. Mr. Kurth, you requested to have a hearing? Yes, Your Honor. Russell Kurth here for Mr. Barnes. While we're here for an arraignment hearing, we are asking the Court not to proceed to arraignment but, instead, to order an evaluation on ability to proceed that is, an evaluation under RCW 1077 [Washington statute used for purposes of the mock proceeding]. People agree that's the issue that we need to address at this time? Your Honor, we have no objection to the Court engaging in whatever colloquy is necessary. Thank you. And could you please tell me your name?

2 You can sit or stand, Mr. Barnes, it's up to you. (Mr. Barnes stands up behind the defense table.) Uh, my name is Robert Barnes. Okay. And, Mr. Barnes, do you, where are you at this time? In this courtroom (gesturing with his arms). Okay. And can you tell me why you are in this courtroom at this time? Uh... misbehavior? Okay. And have you discussed this misbehavior with your counsel? Yeah, I have. Okay. And is he getting I don't want you to tell me his advice or anything but have you engaged in a discussion with him about the consequences of this misbehavior and what your options are? Somewhat. Okay. And, do you understand is this a civil or criminal or what type of proceeding are you before the Court on? Do you know? Can you tell me? Uh, this is criminal. Okay. And, what is my role in this proceeding? Uh, that would be to say if I'm guilty or not guilty. Okay. And the person seated over here to your right (pointing to the prosecution s table), what role do they play? To get me in trouble pretty much. And why would they be able to get you in trouble? Uh, for, like I said, things that I've done. And what is your attorney's role here? What is their job, so to say? I, I, really hope he's going try to get me out of trouble. And, so, if you were to plead guilty, what would that mean? 2

3 Uh... that means I'm going to jail. Okay. If you pled not guilty, what would that mean? That means I'm gettin' outta here. Huh. And, if I were to ask you at this point, are you confident that you'll have an opportunity to have your case heard and an opportunity to present evidence, what would you say? I would say I'd be heard. And, Your Honor, with the Court's permission, I will assist the Court in the colloquy. Please. Given that we have an immunity agreement with the Prosecutor, and I've given I ve just spoken to Mr. Barnes I think I can help elucidate why we're raising this issue. The Court would appreciate that. Thank you, Your Honor. Mr. Barnes (standing next to, and facing, his client), you understand what you're charged with, right? Yes. And we did talk about this. Why did that come about? Why are they charging you with felony harassment? There s a woman who was she was giving me false signals. She was showing me she really wanted me. So I, I did some things that were probably inappropriate to the rest of the world and uh, that's why we're here. What kind of signals was she giving you? (Gesturing with his arms.) Well, at home, she s flashing the lights on and off; she s, you know, she s kind of whispering at me doing certain things that any girl anybody would think, this girl s trying to get your attention, you know? 3

4 Prosecutor: And is she talking to you, when you hear her whispering to you do you see her in front of you as well? She's right next to me (gesturing toward the distance with his arms) so, yeah, I was watching her I m seeing what she's doing. I want to go over because she s giving me signals trying to get me to go over there. Do you have any beliefs that play into your actions? My Lord is my whole belief. My Lord is going to guide me in the right direction. Whether I did anything, right or wrong anything He s... this is why I m here (gesturing, with his arms extended out) this is the whole reason I m here. This is why everybody is around here. Do you recognize that the Judge is in control of the courtroom and not the Lord? Of course I do, but He's still, He's still the leader of the Judge He s still going to tell us what is going to be happening right here, right now. So the ultimate arbiter is God, not the Judge. Yes, yes. Your Honor, I'll ask more questions if you wish but I think this is sufficient to demonstrate a good faith basis. Defense asks for an evaluation from the Court. Okay. People's response? Your Honor, we'll submit the issue to the Court. Thank you. You may be seated. The Court appreciates counsel's assistance; I do have to indicate that, at least based on my initial questions, I apparently didn't get at what the issue is, and the Court does find that, based upon the evidence, that there is an issue as to whether or not the defendant is competent as defined by statute that the defendant be able to assist the counsel and understand the nature of the proceedings to such a degree based upon the degree of evidence that there should be an evaluation of the defendant's competency. So the Court is, therefore, going to order that the defendant be remanded pursuant to statute and that there is prepared an evaluation of the defendant's competency, with that evaluation being done within the time period as provided for by the statute; and that the Court is to be advised 30 days prior to completion of that evaluation; and that the defendant then be returned to Court for further proceedings. People? 4

5 Prosecutor: That s acceptable to the People, Your Honor. Defense? Your Honor, I understand the Court s ruling. Mr. Barnes, do you recognize what the Judge is asking you to do? Yeah. Okay, what is that? To make me pay for what I've done. Um, no. What he's asking you to do is to speak to a mental health professional. I know you don't believe you have a mental illness, and nobody here is telling you that you do. We are asking you to speak to an evaluator, though, so that we can determine how to best proceed with your case (Under his breath, leaning back in his chair, with his hands on the sides of his head) No.... I'm trying to protect your rights, and the Judge has ordered this. And I know you don't want to speak to that evaluator, but will you please do so? No. If the Judge orders you to, will you? If God orders me to, I will! If you don't speak to the evaluator, as the Judge ordered you to do, you are going to lose your liberty for longer, so I can't get you everything you want right now, but I can encourage you to speak to the evaluator because the Judge has ordered it. And you said the Judge took orders from a Higher Being. Okay. Now, Mr. Barnes, when you return to the facility, somebody will be coming to talk with you because, as your counsel has indicated, it is in your best interest at this time to engage with that person. You promise me that you will do that? 5

6 (Mr. Barnes is sitting with his fists clenched and his arms extended out, looking off into the distance.) Yes. Thank you. Defendant is remanded. Anything further, Mr. Kurth? No, Your Honor. We ll be in recess. Closing Narration Judge Michael J. Finkle There are several interesting facets to the hearing you just saw. First, this is what starts the entire competency process the judge issuing an order for the evaluation. The standard is not tremendously high: as long as the judge has reason to believe that competency may be at issue, then, according to two Supreme Court cases, the judge must order some form of evaluation. In this particular proceeding, you may have noticed the defense attorney played a very large role: The defense attorney is the one who raised the issue; the defense attorney even conducted part of the colloquy with the defendant because there was an immunity agreement, as he announced. If you'll notice, the judge was asking questions was getting some answers that would probably make it difficult to determine whether or not to order an evaluation. The judge is really trying to determine whether what the defendant does in court corroborates what defense counsel has said. Without an immunity agreement, it would not have been possible for defense counsel to ask the series of questions that he did, or to tell the court specifically what his concerns were. That's one reason it is a best practice to have the immunity agreement. It is also a best practice to hold an initial hearing such as the one held here because the risk is if the court simply orders an evaluation without any discussion in court, there is a very real risk that people will be ordered into a psychiatric facility to be evaluated when they don't need it, or they'll be kept in custody longer when it's not appropriate. So part of it is for the judge to make sure that things don't go where they shouldn't. The last thing to point out it s something very subtle but defense counsel used the phrase, ability to proceed, and the reason for that is at least in my experience using the word incompetent or not competent or finding you incompetent to stand trial is not a very kind way of expressing it to a defendant who may be undergoing some very real mental health issues right at the time, so the phrase, ability to proceed, connected with a statutory section, ability to proceed, under [Washington statute] RCW 1077, conveys what the judge needs but keeps the hearing in a manner that maintains dignity for the defendant. So, hopefully, you've gained something out of this. Even though it's a short hearing, it's very crucial because it starts the whole process rolling. 6

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