Cultural Implications with Competency to Stand Trial

State of ConnecticutOffice of the CommissionerDepartment of Mental Health and Addiction SvcOffice of Forensic Evaluations

Presented by:Michael F. Genovese, LCSW

Office of Forensic Evaluations

Four satellite offices

Hartford Norwich New Haven Bridgeport – obviously the best one

The Office of Forensic Evaluations provides the following evaluations for the Superior courts pursuant to specific Connecticut General Statutes

CGS§ 54-56 (d) -Competency to Stand Trial

CGS§ 17a-693 -Alcohol/Drug Evaluation

CGS§ 17a-586 – Periodic report re mental condition of acquittee in the community. (NGRI)

CGS§ 17a-566 – Pre-Diagnostic Evaluation

Differences between a Forensic Evaluation and a Clinical Evaluation

CLINICAL EVALUATION

Purpose of the evaluation is for diagnosis and treatment. The report is confidential. Treatment is more global, client oriented and therapeutic. It is voluntary participation. It is the patient’s word that is generally taken with no collaboration. It can be an unstructured interview. Therapist formulates impressions. It is an on-going process. The therapist is in a supportive and empathic position. The therapist is interpretive of information supplied by an individual. The therapist questions “why” based on the person’s behavior and

motivation.

Differences between a Forensic Evaluation and a Clinical Evaluation

FORENSIC EVALUATION

The court is the client. Opinion lends itself to the legal disposition of charges. Report is not confidential. The evaluation is task oriented and goal directed, may be confrontational Offers an opinion. It is a court ordered examination. Many sources can be used in determining an opinion in relation to the

individual’s presentation. (Corroboration of self-report) It is a semi-structured evaluation. There is observable data. It is (generally) a “one-shot” evaluation. The interviewer(s) is neutral and required to make a report. There are no judgments made regarding the legal situation.

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COMPETENCY TO STAND TRIAL

Adjudicative Competence

A legal construct that usually refers to a criminal defendant’s ability to participate in legal proceedings related to an alleged offense.

CGS§ 54-56 (d) -Competence to Stand Trial

A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.

There is a presumption of competence for all.

Statutory Requirements:

Any party can request an evaluation under 54-56(d)…

Ordered at arraignment by the judge Requested by the defense most times Prosecutor can also request.

Examination of defendant

Presumption of competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by a preponderance of the evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry.

Statutory Requirements:

The examination shall be completed within fifteen days from the date it was ordered.

The examiner or examiners shall prepare and sign, without notarization, a written report and file such report with the court within twenty-one business days of the date of the order.

Examination of defendant

The court may (1) appoint one or more physicians specializing in psychiatry to examine the defendant, or (2) order the Commissioner of Mental Health and Addiction Services to conduct the examination either (A) by a clinical team consisting of

a physician specializing in psychiatry, a clinical psychologist and one of the following: A clinical social worker licensed pursuant

to chapter 383b or a psychiatric nurse clinical specialist holding a master's degree in nursing.

On a team – Consensus of opinion is required.

ASSESSING COMPETENCY TO STAND TRIAL2 Prongs of Competency

1) Capacity to Understand Proceedings

Knowledge of the charges, including the specific allegations and the meaning of the charges

Knowledge of courtroom personnel roles Knowledge of potential and likely penalties Knowledge of available defenses/pleas Appraisal of outcomes of various pleas Capacity to apply this knowledge (rational

understanding - Dusky)

ASSESSING COMPETENCY TO STAND TRIAL2 Prongs of Competency (continued)

2) Ability to Assist in Defense

Ability to collaborate with defense counsel To trust counsel and communicate with counsel in a rational

and relevant manner Ability to seek, comprehend and utilize advisement from

attorney Awareness of their rights to protect themselves Ability to make decisions based upon facts of the case, such

as strength of witnesses/evidence against them, as well as consideration of their attorney’s advisements

DUSKY v. UNITED STATES (1960)

“…the test must be whether he (the defendant) has sufficient present ability to consult with the lawyer with a reasonable degree of rational understanding…and whether he has a rational as well as factual understanding of the proceedings against him.”

Evaluation Process:

Description of the purpose of evaluation Role of the Team Confidentiality Advisement Question and answer format Review of specific legal situation, the general legal system and ability to assist

defense counsel Education Education Education Background information (family, education, employment) Medical, Psychiatric, Substance Use Information (past and present) Mental Status Examination (memory, attention, concentration, abstraction)

*** Review Release of information requests

Formulating an opinion regarding competency

Must be unanimous opinion of team

Additional testing as needed

Obtaining and reviewing collateral

The report…

Reflects the opinion of the team. The team gives an opinion

– the court makes a finding Opinion based on the preponderance of the evidence Answers the questions regarding both prongs of the

statute If an opinion of NC is offered than determine

substantial probability to be restored within maximum statutory timeframe.

If NC – than must speak toward least restrictive setting to be restored.

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Restoration

Restoration

Max of 18 months or the extent of the possible sentence, whichever is shorter. What happens then?

Not clinically focused

Inpatient – WFD Outpatient – LMHA

Outpatient Services

Generally an initial 90 day period (as opposed to 60 days for inpatient), but they meet less often at the LMHA.

Primarily used when education is a major focus of restoration for the defendant.

Barriers: Stability in the community Reliability/compliance Connected to other services is helpful but not necessary Language is usually not a barrier nor a reason for inpt.

CASE STUDY

59 year old male African (Burundi) Monolingual - Swahili Incarcerated on bond 11/21/12 (New Haven) At time of eval. in DOC mental Health facility Education level 12 – Huh? Ok… Mental Health Level 2 – I’ll explain

DOC Mental Health Score

MH2 Assessment: History of mental health disorder that is not currently active or needing treatment; or current mild mental health disorder, not requiring treatment by a mental health professional.

Examples: Individuals with a history of mental health treatment for adjustment disorder, depression, anxiety, attention-deficit hyperactivity disorder, conduct disorder, phobias, eating disorders, brief psychotic episodes, post-traumatic stress disorder, or developmental disorders with no current symptoms and no need for medication or follow-up services

CONNECTICUT DEPARTMENT OF CORRECTION OBJECTIVE CLASSIFICATION MANUAL REV. 4/12 -http://www.ct.gov/doc/lib/doc/PDF/PDFReport/ClassificationManualLibraryCopy.pdf Retrieved 7/1/14

Pending Charges

Assault on a DOC Employee – C FelonyMaximum 10 year sentence.

Failure to Comply with Fingerprinting – TicketNo prison time associated with this.

This told me he had charges pending from another case. This office was not aware of those charges. The plot thickens here.

Prior to the incident that led to arrest

Defendant was housed in a single cell dressed in a red jumper indicative of the unit he was housed on.

He had a history of not following orders given by DOC staff. Why?

By the way following this incident he was transferred to New Haven Correctional (Jail) with the MH score of 2.

Incident that led to his arrest

Defendant was told to come out of his cell. He refused. A code was called and an extraction team was called

because he appeared to take a fighting stance. When the six officers entered into his cell he started to

fight them and bit two officers during the struggle. The defendant “did not cooperate” with the State

Police investigation and therefore he “did not comply with fingerprinting requirements” (he told them he does not speak English)

Issues of Concern

Spoke with the social worker from the Office of Public Defender.

She stated, “He might very well be competent. We are not sure. We are worried he might be psychotic or that a cultural component might come into play. You will see. You have to bow to him before speaking or he won’t acknowledge you.”

Choosing the CST Team

Psychiatrist: Background in Forensics. Versed in immigration law. Spoke seven languages including Swahili. Worked in refugee camps in Burundi.

Psychologist: Seasoned staff.

Licensed Clinical Social Worker: Me ;-)

Members in the interview

The CST team

Social Worker from the Office of Public Defender

Interpreter. He was one of two court certified Swahili interpreters in Connecticut. He had worked with the defendant

The Evaluation

Generally 60 minutes, longer than that is a decent indication there are interfering issues.

Total evaluation took 2 hours and thirty minutes. Interpreter instructed the team to allow him

time to simply establish trust since the defendant started to believe that the interpreter was getting paid to keep him in jail.

More on this in a bit…

Cultural Barriers

Swahili – as described to me from the interpreter and the psychiatrist. In order to covey one English word you may need three or four Swahili words to convey the meaning.

There were very few legal terms that translated into Swahili. One legal word in English could easily translate into a paragraph of Swahili. Apply this to trial Discussion with the attorney

Notice of Non confidentiality

These evaluations are not confidential. Explanation of confidentiality provided in

Swahili“I’ve already given you information.”“I hear you but the interpreter has already sold me out.” – cultural issue (tribe)

>Misunderstood our role.A Def. understanding this is not a requirement.

Cultural Barriers

A number of cultural issues interfered with the defendant’s competence-related abilities:

It was quite difficult to phrase a question related to his factual understanding of his legal case so that he would be able to fully understand what was being asked of him.

There were simple terms that the defendant understood, but nonetheless his appreciation of the term was skewed through his cultural perception and expectations.

Ability to Understand Proceedings

For instance, the defendant accurately described the roles of his attorney and the prosecutor. He said, “[My attorney] defends the person who has been maligned. He gets me honor in the court. The prosecutor is against him. He brings the case against me. The judge makes the decision as to who is correct and not correct.” In regards to the role of a jury, the defendant said, “These people are there to hear both sides of the story and then decide. I do not have to be there.”

While able to give literally accurate descriptions, he was still unable to appreciate that this meant they would not do whatever they wished, according to their whim, because he was powerless.

Cultural Barriers

The defendant was aware of the incident that led to his arrest. He was not familiar with the formal names of the charges nor the maximum penalties they carried. Think about the translation into Swahili in this regard.

However he was focused on the belief that following this incident there was a vendetta out on him and they would come back to kill him; regardless of the amount if education received.

Cultural Barriers

The defendant’s view was that if he told you his story you became his ally. He expected you to discuss what he told you in court to the judge in his favor. He could not distinguish that this was not the role of the interpreter nor that of the team. His perception of the interpreter’s role was marred upon beginning the evaluation because he could not understand why he wasn’t arguing in court for him.

Cultural Barrier

To further this concept:

When he was asked what is a witness? The defendant said, “I have told you my story. You are all witnesses. You can speak for me in court now.” He became angered and confused when the team explained to him their neutral role. The defendant comes from a culture, especially in rural Burundi, where no one in the village would starve unless the whole village starves. The very notion of an “objective evaluation,” while merely detached in our culture, is cruel, inhuman, and unthinkable in his.

Ability to Assist in Defense

Confused because he had probably seen four attorneys by this time. Two at arraignment then two who are defending him.

Unfamiliarity with the US Court System, as well as his cultural perceptions and life experiences, the team was not of the opinion that he would be able to effectively assist counsel in resolving his case.

Unable to engage in any meaningful discussions regarding potential resolutions to his current case.

Not able to step out of his reference in his thinking nor was he able to differentiate between essential and nonessential information for the court.

Unable to grasp the essential information enough to adequately integrate, manipulate, and/or process it to make contextually appropriate and informed decisions regarding his current case.

The defendant could not construct a viable defense strategy or identify plausible outcomes of his case.

Report Conclusion

He is illiterate and has no previous experience with the legal system in this country. The team was of the opinion that the defendant is cognitively intact, with no evidence of a psychotic thought process. On a basic level the language differences are a major barrier to explaining semantic differences and legal terminology. As well, it should be noted that he presents as a person who has been exposed to significant trauma in that he is guarded, hypervigilant, and misinterprets events. This is likely heavily rooted in his life experience and cultural background as well.

Cultural Barriers

The defendant’s deficits are significant and his deficits are rooted in his personality and culture, and given his limited acculturation during the past ten years while living in the United States, there is little chance of significant change within 18 months.

No substantial probability for restoration.

Testimony

Three hours over two days. One hour the first day then two hours on day two.

Probably one hour for each prong then one hour related to substantial probability of restoration.

Judge ruled NC – Restorable – sent him to inpt.

Restoration Services

Eight months in restoration. Multiple updates to the court. There were staff at WFD who spoke Swahili.

Also the court appointed interpreter was available approximately once a week.

Prosecutor was not happy with this. Tried to argue 18 months should be counted only when the court appointed interpreter was available

Restoration Conclusion

The defendant presents with a significant cultural outlook, history of trauma, and mental health issues that influence his restorability.

The defendant was not able consistently to verbalize factual knowledge of the roles of personnel or demonstrate a rational understanding of court processes and how the processes relate to his own legal situation.

He seemed to have difficulty tolerating other viewpoints with respect to his case without interrupting, requesting to talk directly with the judge to tell his version of the event and to speak directly to his accusers in an attempt to resolve his charges.

Court Ruling

Not competent

Not restorable based on cultural barriers

The case in New Haven was still pending…

Conclusion

Questions…

Comments…