Can a Mentally Ill Person be Charged with the Death Penalty?

13March
2019

The question of whether a mentally ill person can be charged with the death penalty has been debated at length by the U.S. Supreme Court.

It’s a difficult question because there is a lack of consensus about the definition of mental illness. The issue is also becoming moot in Arizona where a prisoner has not been executed for over four years, even though more than 100 people languish on Death Row.

The Death Penalty Information Center points out mental illness can be described in a variety of ways. The website notes the definition in the American Heritage Dictionary of mental illness as a range of conditions “characterized by impairment of an individual’s normal cognitive, emotional, or behavioral functioning, and caused by social, psychological, biochemical, genetic, or other factors, such as infection or head trauma.”

Can mentally ill people receive the death penalty

The death penalty and mental illness

The U.S. Supreme Court has considered the case of mentally ill defendants using the narrower definition of “intellectual disability” which impacts intellectual functioning such as problem-solving, learning, and judgment as well as adaptive functioning impacting independent living, and norms like communication. The condition was previously referred to as “mental retardation.”

In the 2002 case of Atkins v. Virginia, the U.S. Supreme Court concluded the execution of people with mental retardation is “cruel and unusual punishments” in violation of the Eighth Amendment.

The case established protection for people with intellectual disabilities. The justices cited disabilities in areas of reasoning, judgment, and impulse control.

The court said people with intellectual disabilities “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” The justices said people with an intellectual disability were not able to comprehend the death penalty.

The Atkins decision offered less protection than mental health advocates hoped. Prosecutors argued defendants were not intellectually disabled and their real issue was mental illness manifesting as a personality disorder.

States continued to execute people with mental illnesses. The Death Penalty Information Center noted Arizona executed Robert Moorman in 2012. His attorneys argued he was mentally disabled and was sexually abused into his adulthood. Prosecutors argued Moorman’s mental capacity when he committed murder was slightly above the legal threshold for mental impairment. Moorman killed and dismembered his adoptive mother.

Notwithstanding the rulings of the U.S. Supreme Court, mentally ill people are sentenced to death across the United States.

However, the use of the death penalty has stalled in Arizona, raising questions whether it will be used again.

According to a recent report on ABC15, the cost of executions and a shortage of drugs means it’s questionable whether the death penalty will be resumed in the state.

The news report noted a discussion on the death penalty last year. Assistant Federal Public Defender Dale Baich said the state of the death penalty in Arizona is “broken.”

The discussion was raised in an Arizona courtroom during the trial of a defendant accused of the sexual assault and killing of 8-year-old Isabella Grogan-Canella.

Although prosecutors initially wanted the death penalty during the trial of Justin James Rector, the request was withdrawn. They concluded there was no reasonable likelihood of Rector being executed give the “current state of affairs surrounding persons sentenced to death.” Rector received two mental health evaluations.

Like many other states, Arizona has lacked the drugs to perform execution by lethal injection.

The last time a death row prisoner was executed was in 2014 when Joseph Wood was put to death at the Florence State Prison.

Wood was injected with lethal injection drugs but took almost two hours to die. The execution shocked the nation.

By the time Wood finally succumbed after nearly two hours, he had been injected with 750mg each of hydromorphone and midazolam –15 times the amounts stipulated in Arizona’s execution protocol.

Baich said the lack of drugs was one reason why no executions have been carried out for four years. Another is the soaring cost of the death penalty.

In Arizona, county prosecutors hold the power over whether to seek the death penalty. Many are no longer using it.

Maricopa County Prosecutor Bill Montgomery said in 2018 the county had its lowest level of pending capital cases in two decades. Death penalty cases are down in also down in Pima County.

The ABC research found prosecutors are withdrawing notices to seek capital punishment because of the problems in the system as in the Rector case.

The pattern in Arizona reflects the rest of the nation. Death sentences peaked in the 1990s and have fallen steadily ever since. Some states like Maryland abolished capital punishment entirely. Other use it less frequently.  The Death Penalty Information Center noted historic lows in the use of the death penalty in many states in 2018.

At the Garcia Law Firm, we represent mentally ill defendants who have been charged with serious crimes like murders as well as lesser offenses. Please call us today if you or a family member has been charged with a crime at (602) 340-1999.

Posted in Arizona Laws, Mental Health Defenses | Tagged |

Why Arizona’s Insanity Defense is One of the Toughest to Prove in the Nation

7March
2019

Arizona’s insanity defense is one of the toughest to prove in the United States. The harshness of the defense provoked legal challenges in past years. Opponents claimed it failed to meet basic standards of fairness.

The obstacles associated with the defense were challenged in 2006 in the case of Clark v. Arizona. The case reached the U.S. Supreme Court.

Eric Clark shot a police officer dead during a traffic stop. Clark was a diagnosed paranoid schizophrenic. He believed aliens took over his town, according to expert witnesses.

Challenges in Arizona's insanity defense

Arizona’s insanity defense is tough to prove

Clark wanted to use this evidence to prove that he was insane. His attorneys claimed he could not form the criminal intent that prosecutors required to prove his guilt beyond reasonable doubt.

The trial judge ruled Clark could not use the expert testimony. He said the law did not permit the defendant to show he could not form the necessary criminal intent. The court found Clark failed to prove the insanity defense known as the Guilty Except Insane (GEI) defense in Arizona. Clark was convicted to 25 years to life in prison.

The U.S. Supreme Court considered the question of whether a defendant has a Fourteenth Amendment due process right, aside from his insanity plea, to present expert evidence to counter to prosecution’s evidence of Clark’s criminal intent.

The New York Times pointed out the nation’s highest court never ruled that the Constitution requires a state to permit an explicit insanity defense. The insanity defense was abolished by four states – Utah, Kansas, Idaho, and Montana.

However, these states still permitted a defendant to present evidence of his or her diminished mental capacity by using experts to challenge evidence of criminal intent.

Arizona bars the use of this evidence. Defendants who rely on insanity defenses can request a Guilty Except Insane verdict. However, the defendant must demonstrate insanity under a statutory rule that’s narrower than that of most states.

The insanity defense dates back to England in the 16th Century. It was codified in the 19th century with the development of the M’Naghten Rule.

The court in the case decided a “disease of the mind” caused the accused to fail to realize the difference between right and wrong. There are other legal tests such as Durham Rule that found a defendant who is “not guilty by reason of insanity” cannot be convicted of crimes committed as a result of certain mental conditions because willful intent is required. The rule is only used in New Hampshire.

It is difficult but not impossible to bring the Guilty Except Insane defense in Arizona. You should hire a Phoenix-area attorney who is experienced in these cases. Please call us today at (602) 340-1999.

 

Posted in Arizona Laws, Mental Health, Mental Health Defenses | Tagged |

How Often is the Insanity Defense Used?

14February
2019

The insanity defense has been used in some high profile cases. However, it is used sparingly in Arizona and elsewhere in the United States.

According to a PBS report, the insanity defense is used in just 1 percent of felony cases and it is successful in less than a quarter of the cases it is used in. The figures are derived from an eight-state study commissioned by the National Institute of Mental Health in 1991.

Although high-profile cases like those of serial killers Jeffrey Dahmer and John Wayne Gacy highlighted insanity defenses, in reality, they are seldom used. You should hire a lawyer who is specialized in these difficult cases involving mental health.

The insanity defense was first developed in 16th Century England. It was codified in the M’Naghten Rule in the 19th Century.

Use of the insanity defense in Arizona

When the insanity defense is used in Arizona

In that case, a court ruled a “disease of the mind” meant the defendant failed to understand what he did was wrong and was unable to distinguish the difference between right and wrong.

Most states use a variation of the rule. Arizona has a guilty except insane defense. The burden to prove insanity is on the defense.

Many states amended their insanity laws in 1982 when John Hinckley was acquitted of the attempted assassination of President Ronald Reagan on basis of insanity. Hinckley was found not guilty by reason of insanity and committed to St. Elizabeth’s Hospital in Washington. Hinckley was released in 2016. He must live within a 75-mile radius of Williamsburg, Virginia where his mother resides. He must maintain contact with his doctors twice a month while continuing ongoing group and individual therapy sessions, reported CNN.

In the aftermath of the Hinckley case, states started to require defense attorneys to show evidence that the defendant is insane, instead of the prosecutor. Four states – Kansas, Idaho, Montana, and Utah eliminated the insanity plea altogether.

Arizona has a strict interpretation of the insanity defense. The defendant is barred from presenting evidence of diminished mental capacity to negate the prosecution’s claims he acted with criminal intent.

In the case of Clark v. Arizona in 2006, the U.S. Supreme Court held in a 5-to-4 decision that Arizona was entitled to limit the use of evidence from experts about a defendant’s mental state to his insanity defense. A defendant is presumed to be sane until he proves otherwise. Justice Souter argued that allowing the accused to use insanity evidence to show that he could not form the necessary criminal intent would enable him to circumvent that presumption.

Arizona’s guilty except insane (GEI) defense is complicated and requires expert knowledge from a legal professional. Call Bernardo Garcia today if you or a family member has been arrested at (602) 340-1999.

Posted in Arizona Laws, Mental Health | Tagged |

Can You be Arrested for Homelessness? Phoenix Rethinks its Ban

11February
2019

Many homeless people end up in jails. Often they suffer from addictions and mental health issues. Their predicament is exacerbated by laws that criminalize homelessness. Although the authorities arrest homeless people in many parts of the state, some jurisdictions are rethinking their laws.

These include cities in the Phoenix area. Recently, AZCentral reported cities in the area are looking again at whether they can legally arrest someone for sleeping on the streets.

In the fall, the U.S. Court of Appeals for the 9th Circuit ruled the city of Boise, Idaho, did not have the right to cite people in violation of its “urban camping” law.

Arrested for homelessnes

Arrested for homelessness in Arizona

The judges said the law is unconstitutional and amounts to cruel and unusual punishment, AZCentral reported.

Many cities in Arizona have similar laws and are looking again at whether they can be enforced. The 9th Circuit rulings apply to western states including Arizona.

The report noted the city of Tempe has stopped enforcing its anti-homelessness law. Glendale has changed its law. The city of Surprise is also looking at changes. Phoenix is yet to amend its law.

However, the ruling has fundamental consequences for laws that target homeless people. The court concluded cities cannot cite homeless people if no alternative shelter is provided for them, Local governments cannot criminalize the homeless for sleeping outdoors on public property when they have no choice.

The AZCentral report points out shelter accommodation is limited in the Valley area. The main emergency shelter in Phoenix often reaches capacity and people are turned away. Over 1,000 people regularly sleep on the streets in Phoenix.

Arrested for Homelessness – What Are Your Rights?

The ACLU has published a guide to the rights of homeless people in Phoenix. The guide says homeless people should not resist arrest even if they believe it is unfair. They have a right to remain silent and ask to see a lawyer immediately. People arrested for homelessness have a right to make a local phone call that is not overheard by the police.

You do not commit a trespassing offense if you enter non-residential private property that lacks a fence of a “no trespassing” sign.

Homelessness has been outlawed in Phoenix since 2004 under an ordinance that attracted criticism due to its vagueness.

People who are arrested for being homeless should consult a Phoenix area criminal defense lawyer as soon as possible. Call us today at (602) 340-1999.

Posted in Arizona Laws | Tagged |

Outlining Arizona’s Unlawful Flight Laws

22January
2019

Failing to stop after being requested to by a police officer or fleeing from police form part of Arizona’s unlawful flight laws.

These offenses vary in seriousness. You can be charged with a Class 5 felony in certain circumstances.

Failure to stop for a police officer or another law enforcement vehicle constitutes a crime under A.R.S. 28-1595. The statute says a driver who knowingly fails or refuses to stop after receiving a “visual or audible signal or instruction” by a police officer or other traffic enforcement official faces a class 2 misdemeanor.

unlawful flight laws

Arizona’s unlawful flight laws

The driver must give an officer the following information on request:

  1. His or her full name.
  2. The driver’s date of birth.
  3. The driver’s residential address.
  4. A brief physical description including sex, weight, eye and hair color, and height.
  5. The driver’s signature.

Drivers who attempt to flee from police officers face being charged with a class 5 felony under Arizona’s unlawful flight laws. A felony charge may be brought if the driver seeks to outrun or outmaneuver any law enforcement vehicle with official markings.

A prosecutor must prove you intended to flee the stop rather than making a mistake or not realizing you were asked to pull over. The state needs to show a driver knew a law enforcement officer signaled them to pull over, and then failed to do so.

The prosecution must prove that the driver willfully attempted to escape police to prove unlawful flight took place. The state must also provide evidence that the vehicle driven by police was officially marked.

What is the Definition of Unlawful Flight in Arizona?

Under Arizona statute 28-622.01, a driver commits unlawful flight when he or she “willfully flees or attempts to elude a pursuing official law enforcement vehicle” properly marked as a law enforcement vehicle.

Drivers are not required to stop immediately if it’s dangerous to do so. They can wait to pull into a safe place for a highway patrol or police officer. If it’s dangerous to stop on the highway, they have a right to drive to a safe place to stop.

In some cases, drivers may fail to notice a police officer is trying to pull them over. This is a legitimate defense to the felony although it can be hard to prove.

Given that a class 5 felony can land you in prison for two years facing fines of up to $150,000, you should hire an experienced criminal defense lawyer to fight these charges. Please call the Garcia Law Firm at (602) 340-1999.

Posted in Arizona Laws, DUI | Tagged |

When Can you Fall Foul of Arizona’s Gun Control Laws?

11January
2019

Arizona has some of the most liberal gun laws in the United States. However, its reputation for having few rules can land some people in trouble with the law. There are restrictions and many people fall foul of Arizona’s gun control laws.

Under Arizona law, any person 21 years or older, who is not a prohibited possessor, is able to carry a weapon openly or concealed without the need for a license.

In this respect, Arizona is different from many other states that require a concealed carry permit.

To obtain a concealed-weapons permit, you must be 21 or older, and a legal U.S. resident. You must have no felony convictions or mental illness.

What are gun control laws in Arizona?

Gun control laws in Arizona

Arizona’s gun control laws state the holder of a firearm must complete a firearms safety course. The state does not set out minimum requirements for the course and hands-on training with a gun is not necessary.

Arizona’s Gun Control Laws and Mental Health

Under federal law, certain people are prevented from buying or possessing firearms. They include felons, people with a domestic abuse conviction and certain people with a history of mental illness. The provisions relating to firearms and mental health can be confusing.

You are prohibited from buying or possessing a gun in the following circumstances:

  • You have been found to be a danger to yourself or others, you are acutely or persistently disabled or gravely disabled as set out in a court order, and your right to possess a firearm has not been restored;
  • You have been found incompetent, and not subsequently found to be competent.
  • You have been found guilty except insane.

Gun Control Laws and Convicted Felons

Arizona prevents you possessing a firearm if you:

  • Have been convicted of a felony or adjudicated delinquent for a felony and your civil right to possess or carry a firearm is not restored;
  • You are serving a term in a prison or any other correctional or detention facility;
  • You are on probation for a domestic violence offense or a felony offense, or community supervision, parole, work furlough, home arrest or release on any other condition.
  • You are an undocumented alien or a nonimmigrant alien lacking documentation in Arizona.

Firearms are banned in certain places in Arizona. They are:

  • At correctional facilities
  • At a liquor retailer when a sign prohibiting weapons is posted;
  • On grounds of any school
  • At polling places on election day
  • At hydroelectric or nuclear-generating stations.
  • Any event open to the public if the operator makes a reasonable request for you to hand over or remove a weapon from the premises. A sign qualifies as a request. Cities and counties are required to offer on-site storage for guns if a request is made.
  • Facilities where firearms are banned by federal law.

Firearms Banned Under Arizona Gun Control Laws

Although Arizona has permissive gun control laws, some firearms are banned. The state outlaws automatic weapons and rifles with a barrel less than 16 inches or a shotgun with a barrel less than 18 inches.

Modified rifles and shotguns with an overall length of 26 inches are banned along with guns made or adapted to reduce the sounds of the firearm. Arizona bans firearms capable of shooting one or more shots automatically without the need to manually reload the gun.

As in other states, a wide range of other weapons is banned in Arizona, including bombs, mines, grenades, and improvised explosive devices.

There is a wide range of potential sentences for firearms violations in Arizona. If you possess a weapon when you are prohibited from carrying a firearm, you may face a class 4 felony, carrying 2.5 years to 3 years in prison.

When people fall foul of Arizona’s gun control laws, they are often unaware they are doing anything wrong. At the Garcia Law Firm, we have helped people with mental health issues who are charged with firearms offenses. This is a complicated area of the law. Please call us today at (602) 340-1999.

Posted in Arizona Laws, Law Enforcement | Tagged |

Disproportionate Sentencing Along Racial Lines is Revealed in Arizona Report

7January
2019

If you think you’ll receive the same sentencing in the criminal justice system wherever you live and whatever the color of your skin, think again. A new report reveals sentencing often takes place along racial lines in Arizona.

The report was highlighted in November by AZCentral.  It sheds light on sentencing disparities between urban and rural communities in the state and suggests disproportionate sentencing of black people and Hispanics in areas like drug offenses.

The “Cost to Communities” report was released by FWD.us. The organization is a bipartisan nonprofit founded by tech and business leaders.

Sentencing Along Racial Lines

A report reveals sentencing along racial lines

Alarmingly, the report suggests people of color and their communities are hit hardest by the Arizona criminal justice system. The report points to disproportionate sentencing.

The report states the problems in Arizona mirrors a nationwide issue. The report noted communities of color are more likely to be incarcerated and to spend longer periods behind bars.

The disparities are not attributable to differences in offense rates, the report notes. The report states:

“Nationally, criminologists have studied this question for decades, and the most recent study found that a large portion — 45 percent — of racial disparities in imprisonment are not the result of racial disparities in arrest rates. Instead, at numerous points within the criminal justice system, from prosecution to conviction, researchers have identified instances of biased policies, practices, and decision-making.”

The racial disparity is most evident in relation to drug crimes, according to the report.  Drug use is similar across the races, but communities of color are imprisoned at significantly higher rates.

The report notes Arizona’s population comprises about 31 percent of Hispanic people, Hispanics account for 32 percent of arrests for marijuana possession. However, almost 60 percent of the people admitted to prison for marijuana possession are from a Hispanic background.

Hispanic people are also disproportionately sentenced for marijuana distribution. They comprise 42 percent of arrests for the crime and 81.5 percent of those who are jailed for possession, the report states.

While black people use marijuana at a roughly an equal rate to white people, African Americans are being jailed disproportionately in Arizona, according to the report. While Arizona has considerably more white people than black people, the numbers of people jailed from the two groups in Arizona are approximately equal.

The Cost to Communities report also found Arizona’s rural counties are sending more people to jail than its urban areas. The average length of prison sentences fluctuated across the state, ranging from 32.9 months in La Paz to 57.4 months in Maricopa, the report states.

If you have been arrested for a drug offense or another crime in Arizona, you should not assume the criminal justice system will deal with you fairly. An experienced attorney will fight for your rights. Call our Phoenix criminal defense lawyer today for a consultation at (602) 340-1999.

Posted in Arizona Laws | Tagged |

Arizona is the Second Worst State for Addressing Mental Health Issues

13December
2018

Access to mental health services is patchy across the nation. This is particularly the case in Arizona. A recent survey found Arizona is the second worst state in the nation for addressing mental health issues.

The information was revealed in a study from the nonprofit Mental Health America. Mental Health America analyzed the extent of mental illness in each state and the District of Columbia utilizing statistics on adults and youth with a diagnosed condition, suicidal thoughts, and substance abuse issues.

The Phoenix New Times reported on how the group researched the ease of access to care by looking at the percentage of adults and young people with mental illness who reported not receiving treatment for their conditions, having unmet needs, and not being able to see a doctor due to the expense.

addressing mental health issues in Arizona

Arizona has a poor record for mental health services

Only Oregon ranked lower than Arizona in terms of access to mental health care. The best access was found in Minnesota, Massachusetts, Connecticut, Vermont, and South Dakota.

The New Times report noted some improvements in Arizona. Among experts in behavioral health, Arizona’s Medicaid program is seen as a model for the integration of mental health and substance abuse services. Arizona agreed to improve its services for people who don’t qualify for Medicaid and have severe mental illnesses, such as schizophrenia in 2014.

Michael Shafer, president of Mental Health America’s Arizona chapter, told the New Times Arizona’s main failing is in relation to those with less severe and more common conditions such as depression or anxiety.

He said Arizona lacks primary-care physicians who can screen for mental illness and refer patients to specialists before the disease has progressed much too far.

The neglect of people with low-level mental illnesses means they are not getting help. The conditions are becoming more serious before intervention and they may end up in the criminal justice system.

Writing in the Arizona Capitol Times, Scott Cummings, state president of Care1st Health Plan Arizona, warned the suicide rate in Arizona is 60 percent higher than the national average. He said there are many contributing factors like drugs, drugs or access to care.

Cummings called for the state to focus its efforts on integrating screening for mental illnesses into primary and specialty care visits to allow the early identification of those with signs and symptoms of physical and behavioral health conditions to be treated in a holistic way.

The deficiencies in Arizona’s mental health provisions mean many defendants are not getting their needs met before they reach the criminal justice system. An experienced Arizona attorney with a long track record of helping the mentally ill can assist you or a family member after your arrest. Please contact the Garcia Law Firm today for a consultation.

Posted in Arizona, Arizona Laws, Mental Health | Tagged |

How ‘Tough-on-Crime’ Initiatives in Arizona Ignore Mental Health

23November
2018

In 2017, the American Civil Liberties Union brought a lawsuit against the Maricopa County Sheriff’s Office and its former leader, Joe Arpaio, who modeled himself as “America’s toughest sheriff.”

The lawsuit claimed tough on crime initiatives followed by the likes of by Arpaio ignored the mental health issues of inmates and even exacerbated them.

The suit referred to the comments of a psychiatrist who observed “dangerously inadequate” conditions across Maricopa County jails. He described mentally ill detainees who were held in solitary confinement.

controversy over tough-on-crime

Tough-on-crime initiatives disregard mental health

People with mental illnesses are more likely to end up incarcerated than the rest of the population. The National Alliance on Mental Illness states over two million people are arrested and booked into jails each year. A survey by the Treatment Advocacy Center found that people suffering from mental illness are nine times more likely to be locked up in cells than hospitalized, and 18 times more likely to end up in the criminal justice system than in a hospital facility.

The opinion section of the Arizona Capitol Times stated tough-on-crime initiatives are doing little to tackle the issues faced by inmates with mental illnesses. It noted many of them are being held before a conviction.

Uncompromising policies like locking up people with mental illnesses alone and depriving them of access to services, only serve to increase their sense of isolation and hopelessness.

In Alabama, the Southern Poverty Law Center filed a lawsuit last year against the Alabama Department of Corrections. The brief claimed the practice of locking up mentally ill inmates in solitary confinement makes their conditions worse. The lawsuit claimed solitary confinement can create mental illness issues in previously healthy prisoners.

It noted the link between tough-on-crime policies and prison suicides.

The Arizona Capitol Times article stated mental illness and substance abuse affects about 60 percent of the jail population in Pima County. As many as 80 percent of jail detainees have not been convicted of a crime and are still awaiting trial.

However, the leadership of Pima County is looking at alternatives to tough-on-crime measures and long periods of incarceration. The county has embarked on a series of collaborations to implement local criminal justice reform, such as setting up of a Crisis Response Center and Behavioral Health Pavilion. These services are intended to provide integrated care to those who suffer behavioral health crises and to help them avoid unnecessary incarceration.

If you or a family member is suffering from a mental illness, a prison cell is one of the worst places you can be. At the Garcia Law Firm, we provide vigorous defense for the mentally ill. Please call us at (602) 340-1999.

Posted in Arizona Laws, Law Enforcement, Mental Health | Tagged , |

The Importance of Rule 11 in Arizona

21November
2018

During a trial in Arizona, a defense attorney may ask for a Rule 11 evaluation of his or her client. Under Rule 11, the defendant has the right to a full mental examination and hearing when reasonable grounds exist for it.

A Rule 11 hearing may be held when a defendant is suspected of being mentally incompetent. This hearing is granted when there is substantial evidence of mental incompetence. Doctors will determine the mental competency of the defendant at the hearing.

A hearing under Rule 11 of the Arizona Rules of Criminal Procedure may be held when reasonable grounds exist to suggest the defendant is not able to understand the nature of a criminal proceeding against him and to assist in his or her defense.

A Rule 11 hearing in Arizona

The process during a Rule 11 hearing

The rule is meant to establish whether the defendant has sufficient mental ability to understand what is going on. Criminal trials are adversarial by their nature. It’s a format the criminal justice system has followed for centuries. However, this format is a difficult one for people who can’t comprehend the proceedings.

What Happens in a Rule 11 Hearing?

Typically, the process involves two doctors who examine the accused to assess his or her level of comprehension. Typical questions may be:

  1. What is your level of understanding of the proceedings?
  2. What is the role of a jury in a criminal case?
  3. Are you aware of the nature of a plea bargain?
  4. Are you fully aware of the charges against you?

The definition of incompetency under Arizona law is identical with that adopted by the U.S. Supreme Court for the federal courts.

A defendant cannot be tried by a court, convicted of a crime, sentenced or punished for a public offense as a result of a mental defect, illness, or disability, when the defendant is unable to understand the proceedings against him or her or to provide assistance in his or her own defense. A mental illness, defect or disability is defined as a neurological or psychiatric disorder demonstrated by evidence of behavior or emotions caused by an injury or disease and developmental disabilities as set out in A.R.S. § 36-551.

The presence of a mental defect, illness, or disability alone is insufficient grounds for finding a defendant incompetent to stand trial. The deliberations hinge on the narrow question of whether the defendant is aware of the proceedings and is able to advise his attorney.

If both doctors agree a defendant is competent, he or she typically will return to the court and have to face the charges. If the doctors are split, the defendant will usually have to see a third doctor.

When two doctors believe the defendant is not competent to stand trial under Rule 11, the state must determine whether or not it wants to dismiss the charges. A defendant may be sent to a mental health hospital and detained if he is deemed a threat to himself or the community. A defendant not deemed to be a threat may be released.

In some cases, the doctors may decide the defendant is not competent at the time of the trial but could become competent at a later date through treatment or medication.

Under the restoration process, the doctors typically follow a six-month plan. At the end of that time, if they have determined that you are restored, you will go back to the court to answer the charges.

Bernardo Garcia is a veteran Arizona criminal law attorney who offers free consultations in Maricopa County.  If you or a loved one has been arrested for a crime, contact us today for a free consultation.

Posted in Arizona Laws, Rule 11 | Tagged , |