Transcript of Post-Restoration 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 Melissa Piasecki, M.D., Professor and Associate Dean, University of Nevada Medical School serving as the Forensic Psychiatrist Cody Herbst acting the part of the Defendant, Robert Barnes Opening Narration Judge Michael J. Finkle What you are going see next is a post-restoration competency hearing. Now, bear in mind that often, both the prosecution and the defense will agree with the opinion rendered by the psychologist or psychiatrist. If that happens, there's still a hearing it s just that there won't be any testimony. In this particular case, we are going to act as though there is some disagreement, so we will take some testimony although it will be very brief. Hearing The Court calls Civil Case 10-4523, People v. Robert Barnes. Counsel for the People. Good afternoon, Your Honor, Michael Finkle, Assistant District Attorney, on behalf of the State. On behalf of the Defendant? Good afternoon, Your Honor, Russell Kurth on behalf of Mr. Barnes. Your Honor, I believe the Court has in front of it Exhibit 1, which is a Supplemental Forensic Competency Evaluation. The parties have stipulated to its admissibility and to its authenticity. I believe that defense has reserved the right to challenge any and all contents of the report. Does Your Honor have it in front of him? Yes, I do. Mr. Kurth, do you agree?
Yes, I do, Your Honor. The Court will, therefore, receive People's Exhibit 1. Do you wish to present any evidence other than Exhibit 1? Yes, Your Honor. Briefly, I would like to call Dr. Elizabeth Jenkins. (Dr. Jenkins approaches the witness stand.) Prosecutor Dr. Jenkins, please raise your right hand. Do you solemnly swear and affirm under the penalty of perjury that any testimony you are about to give is the truth, the whole truth, and nothing but the truth? I do. Once again, please be seated; state your full name and address for the record. It's Elizabeth Jenkins, J E N K I N S, and I'm on Unit B at Western State Hospital. May I inquire, Your Honor? Please. Thank you. Dr. Jenkins, I believe you have in front of you State's Exhibit 1, a Supplemental Forensic Competency Evaluation. Are you the doctor who prepared this evaluation? I am. Were you also the doctor who rendered treatment to the defendant, Mr. Barnes, in this case? And how long was that treatment? That treatment was a little over three months. Prior to commencing treatment, had you had an opportunity to meet with, and conduct an evaluation of, Mr. Barnes' mental condition? 2
I did, yes. And as part of this report, did you conduct a subsequent examination of Mr. Barnes' mental condition? Yes, I did. Has your opinion of Mr. Barnes' competency, or ability to work with his attorney, changed between the time of your initial meeting with him and the time you completed this report? In what manner has it changed? Mr. Barnes, following a little over three months worth of treatment, has had significant improvement in his symptoms of schizophrenia and appears at this time to be competent to stand trial. Thank you very much. Mr. Kurth? May I ask my client if he has any questions? (The Defense Attorney and Mr. Barnes confer.) Your Honor, we don't have any questions. (Mr. Barnes is sitting quietly at the defense table.) Thank you, Dr. Jenkins. Doctor, you may step down and you are excused. People, do you have any further evidence? No, we do not, Your Honor. Does the defense have any evidence? Your Honor, no evidence. I would ask the Court to conduct a colloquy to satisfy itself that the expert's opinion is accurate. I will say, in consultation with my client, that he is doing better. I'm very glad he is; I'm not glad about the circumstances under which that arose his confinement and the involuntary medication but I am very glad that he is doing better today, and I think he may want to express that to you himself. I would like to thank the Lord up above, because I know, now, that He brought all of this around me, and He brought this whole courtroom into my life to make me feel better (placing his right hand over his chest) and 3
how I am now. And I am completely happy that I am all around all of these people so, thank you. Could you tell me your name? Uh, yes, it's Robert Barnes. What's your date of birth? it is 28 It's okay. You're nervous. It's fine. I was born August 31 st of '85. 1985? Yes? And, have you discussed with your counsel why you're in court, why you are in court today? Uh, yes, I have. And what is your understanding of why we're having this hearing today? Because of past things I ve done. I ve very sad to say that I have done that. Have you been able to discuss with your attorney the nature of this hearing? And what is my role what role do I play in this proceeding? You're here to punish me, pretty much, for the things that I've done. Okay. And do you think that your attorney is working in your best interests to help you? Um, as best as he can, yes. And do you understand that if I find that you are competent, then we will then proceed to hold other hearings at which you will be entitled to enter a 4
plea; and have you discussed with your attorney what type of proceedings will come after this? And is there any further do you understand the nature of the charges that have been filed against you? Did your attorney explain those to you? I do now, yeah. Yeah. Do you have any other questions that you would like to ask me? Um, no, Your Honor. Okay, thank you. Thank you. You may be seated. Thank you, Your Honor. People wish to say anything further before the Court makes its findings? No, Your Honor. Mr. Kurth? No, Your Honor. The Court hereby finds, based upon the evidence submitted, that the defendant, Robert Barnes, is competent to proceed and that the Defendant is therefore I believe this case has been assigned over to... let's see it s assigned to Judge Smith; and, according to my calendar, Judge Smith next has available on Monday at 10:00 a.m., so the Defendant is remanded to the custody of the sheriff, to return to appear before Judge Smith this coming Monday at 10:00 a.m. Is that agreeable, counsel? Yes, Your Honor. Thank you. Yes, Your Honor. One more thing, Your Honor, and that is now that my client has been restored to competency, he would like to renew his request to be released to the community on conditions. I don t know if Your Honor will entertain that motion today or entertain it at the next hearing? 5
People? Your Honor, we would like an opportunity to prepare a new bail memorandum; and we would, therefore, ask Your Honor to set it over. We don't need a large amount of time, but we do want to prepare information. In reviewing Judge Smith's docket, it appears that he will have time to do so next Monday and, since it's only a couple of days away, the Court will deny the request at this time but will note in its findings that that issue should be addressed, and that the People are preparing a memorandum for submission. Please share that with the defendant no less than one hour before the hearing. Yes, Your Honor. Okay? Thank you, Your Honor. Thank you. We will be in recess. Closing Narration Judge Michael J. Finkle Even though this is a very brief hearing, there are three points that are well worth noting. The first of those is that the judge conducted a colloquy with the defendant. What that does is, it helps corroborate the doctor's opinion that was given in the report. The reason that's important is because competency is an issue that applies at the very time of the hearing, and the doctor's report was rendered several days prior to the hearing or, in some jurisdictions, maybe a month prior to the hearing which also brings to mind that it is a best practice to advance the hearing as soon as you get the report. Another item that is interesting about the colloquy the judge conducted is that there were some open-ended questions that the judge asked. The defense attorney was fine letting his client speak. That presumes that there is either an immunity statute or an immunity agreement that applied between the parties, in which case anything the defendant says during that colloquy could not be used against him at trial up until the point the judge says I find you competent to proceed. If you're in a jurisdiction that does not have an immunity agreement or an immunity statute, the defense attorney may well object to a lot of the questions the judge asked, or may instruct the client not to answer, because anything that is said could be used against the client especially when there is a post-restoration competency report that opines that the defendant is competent. 6
The final issue was a request by the defense for release of the defendant. The reason that that's interesting is, the rules for bail or release are the same whether somebody's mentally ill or whether they are not mentally ill. The illness may provide some aspect that a judge can look at, but the mere existence of a mental illness is not necessarily reason to release someone on bail or to set bail. In this case, the defense was asking for release, basically, because once the competency issue is eliminated, the argument is that there would be a change in circumstances showing that the defendant is much more capable of coming to court and far less likely to endanger other people and, therefore, bail should either be reduced or should be exonerated. So, three tips that took longer to state than the entire hearing, but they're worth listening to. 7