Contextualizing Competency Denny LeBoeuf Capital Post-Conviction Project of Louisiana

Reasons to litigate competency Competency as super-discovery litigation tactic mitigation Affects all the ways to win

Conceptualizing Competency Incompetence is equivalent to absence: what would happen if she weren’t here? Dual source of prohibition: his understanding and his ability to assist counsel “wide range of manifestations and subtle nuances”

Competency as Super- Discovery The negatives: A “neutral” (read, “unfriendly”) plus an avowedly unfriendly evaluation of your client Premature disclosure of mitigation

Competency as Super- Discovery Some positives: Discovery of stuff you can’t get with a release Another arena in which to demonstrate to the decision-makers that the discovery rules are unfair to your client

Super-Discovery: what you get Everything in the contemporaneous witness statements, crime scene evidence, and co-defendant’s statements that conceivably relates to mental condition Jail logs, medical logs, mh workers’ notes Prosecutor, police files on priors, on co- defendants

Super-Discovery: what you get Access to cellmates Gov’t’s mitigation rebuttal file Brady/Kyles on every bit of mental condition evidence Docs from prior incarcerations

Litigating Competency At the competency hearing(s): A chance to flip the panel members, neutralize them, or find limited agreement A chance to control the timing of the govt’s choice of expert, and an early shot at that expert on the stand

Litigating Competency At suppression hearing: All waivers are suspect; what is knowing or voluntary for him, given his impairments? Client is unable to remember/disclose conditions of interrogation Client’s confession was product of delusion, dissociation

Litigating Competency CONFESSIONS: ALWAYS CONSIDER WHAT “INHERENTLY COERCIVE” PSYCHOLOGICAL PRESSURE MEANS TO THIS IMPAIRED PERSON What are her pre-existing vulnerabilities?

Litigating Competency Change community perceptions of your client, the case Accustom your client to litigation of his mental condition Leverage a plea

Litigating Competency At every stage of trial: tailor objections, observations, bench conferences, and housekeeping to his mental state Ask for mid-trial competency hearing Decompensation – for him MAKE THE RECORD

Competency and Mitigation Cognitive Impairments Psychosis Organic dysfunction Medical diseases with mental state consequences Dual Diagnoses Trauma

Cognitive Impairments If mr, not only no death but no trial If less than mr, not competent to assist counsel with mitigation investigation Learning disabilities – what is “knowing”?

Psychosis and Organic Dysfunction Medication, now and then Medication at trial Medication – forced meds, forced withdrawal Psychosis plus Non-forensic experts and lay witnesses

Dual Diagnosis Specialty – Journal “Overshadowing” De-compensation under stress more likely Multiple or unusual symptoms

Trauma Flashbacks Dissociative episodes Memory disturbances Somatic symptoms “PTSD plus”

4 WILLIAM BLACKSTONE COMMENTARIES, If a man in his sound memory commits a capital offense, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried, for how shall he make his defense?

4 WILLIAM BLACKSTONE COMMENTARIES, If, after he be tried and found guilty, he loses his sense before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.