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'Elegant Solution'? 

Criminal defense attorneys, left out of a solution for defendants not competent to stand trial, aren't happy about it

click to enlarge Eastern State Hospital in Medical Lake
  • Eastern State Hospital in Medical Lake

As Washington's Department of Social and Health Services grapples with a federal order to provide criminal defendants with adequate and timely mental health services, the rights of some of those defendants remain hazy.

In an email obtained by the Inlander, a DSHS employee articulates an "elegant solution" for people whose mental state prevents them from understanding criminal charges. For these people, DSHS proposed that prosecutors delay scheduling a hearing to dismiss charges for at least seven days; it also suggests scheduling such hearings on a day when the jail transports people to the state mental hospitals.

The email indicates that DSHS talked with the Washington Association of Prosecuting Attorneys (WAPA) and reached out to the Washington Association of Sheriffs and Police Chiefs (WASPC) for input on whether such an agreement would work. But no one consulted the defense.

The proposed solution could mean an incompetent individual spends "at least seven days more [in jail] before the case is dismissed, and possibly longer," says Cindy Arends Elsberry, felony resource attorney for the Washington Defender Association. She adds that the DSHS's proposal "runs afoul of the spirit of Trueblood" case.

In the ongoing Trueblood v. DSHS class action case, U.S. District Court Judge Marsha Pechman ruled it unconstitutional for defendants to wait more than seven days in jail for competency services. The original ruling came down in April 2015 and gave DSHS nine months to comply. Although the agency has made progress toward reducing average wait times, defendants still wait for weeks, and Pechman imposed per-day, per-person fines.

The leaked email prompted a five-page written response from Assistant Attorney General Amber Leaders. The letter denies that DSHS suggests "a criminal dismissal be delayed for the purpose of admission to the state hospital," and says DSHS is searching for a solution that would ensure that bed space is available and that people are not held in jail after their cases have been dismissed.The letter also argues that those not competent to stand trial are not a part of the Trueblood case.

Spokane County public defender Kari Reardon, who originally called attention to the "collusion" among the state groups (DSHS, WAPA and WASPC), disagrees.

"Their need for services is not diminished by the state hospital opining that they're not competent," she says. "That actually indicates their need for services is increased. And if no order's been entered dismissing the criminal charge, in my opinion, they're still members of the [Trueblood] class."

The AG's letter also says the proposed fix was in part a response to a 2015 change in state law, which allows those found not guilty by reason of insanity to be held in jails for a maximum of seven days, but is silent for those found incompetent.

For those cases, a report from the hospital explaining that a person is incompetent triggers a hearing to decide whether to dismiss the case. If that report is not filed in a timely manner, the defendant is sent back to jail. It's at this point in the case, defense attorneys say, DSHS is suggesting prosecutors delay scheduling a dismissal hearing.

Typically, if the hospital opines that the person is incompetent, the criminal charge is dismissed and the individual is evaluated for a civil commitment — what's known as a "civil flip." Last year the state flipped 108 cases, according to data provided by the Office of the Attorney General; the majority of the accused in those cases waited less than seven days in jail.

The letter from the assistant attorney general also indicates that the proposal discussed with the state's prosecutors and police leaders is only one possible solution.

"Legislation to amend the statutory language is also being considered for the 2017 Legislative session. However, new legislation may not be enacted (if at all) for many months, and interim solutions also need to be considered."

If that's the case, defense attorneys wonder why they weren't consulted. For Arends Elsberry of the Washington Defender Association, that is perhaps more troubling than the suggested solution itself.

"The defense community is in a far better position to provide feedback concerning the effect DSHS's proposal would have on the health and wellbeing of individuals whose cases will be dismissed due to their incompetency," Arends Elsberry writes. "County jails are not designed to provide mental health treatment. Using jails to hold people whose cases are being dismissed due to their incompetency to stand trial is inhumane and puts them at risk of grave harm." ♦

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