Description of 2010 FMHAC Legal Track

The legal track of training at the 2010 FMHAC annual conference will examine current issues with Incompetency to Stand Trail commitment. Incompetency to Stand Trial (IST) in a criminal case exists when the defendant is, as a result of a mental disorder or developmental disability, unable to understand the nature of the proceedings or to assist counsel in the conduct of a defense in a rational manner (Pen.C. §1367). To determine whether or not a defendant is IST, the court must appoint one, and may appoint more, psychologists or psychiatrists (Pen.C. §1369(a)) to evaluate the defendant and give an opinion as to incompetency. After an adjudication (Pen.C. §1369(b)) that the defendant is IST, the Superior Court must choose among commitment alternatives (Pen.C. §1370(a)(1)(B)(i)) to achieve “restoration of competency” (Pen.C. §1372). Similar non-statutory proceedings are used for IST minors in juvenile delinquency proceedings. However, the juvenile law does not have provision for commitment of IST juveniles. In addition, recent case law incorporates developmental immaturity into the underlying causes for juvenile IST.

Traditionally, defendants found IST in felony cases have been committed to the State Hospitals. Recently, several practical problems related to State Hospital commitment have become highly problematic for judges, lawyers and State Hospital clinicians. In Juvenile Delinquency proceedings, IST minors face a patchwork of IST restoration alternatives and yet unresolved issues related to developmental IST. The Courts and attorneys for both the prosecution and defense have struggled to address these problems with seemingly meager legal tools. The purpose of the 2010 legal track is to explain the practical problems related to IST commitment, identify for attendees both the informal and legal tools available to resolve them and provide a forum and common ground for discussion of these problems among judges, lawyers and clinicians.

The practical problems related to adult IST commitment are 1) there are months-long delays of State Hospital IST admissions in criminal cases with attendant trial delays and continuing county jail custody, 2) there is insufficient capacity to treat and restore IST defendants in State Hospitals as well as in the local community, 3) evidence exists that a portion of State Hospital committed IST defendants do not meet commitment criteria or may be malingering, 4) inadequate documentation is available to the State Hospital to support IST admission, 5) there are inadequate alternatives to state hospitalization of IST defendants and 6) there are significant legal and clinical issues related to IST treatment in county jails. The practical problems related to Juvenile IST cases are 1) because there is no statutory authority to treat IST minors, ordering appropriate treatment for restoration is highly problematic, 2) the necessary standards and legal and clinical thresholds to support developmental immaturity IST are still vague and incomplete, 3) clear parameters do not exist for court orders related to IST restoration.

The legal track will address the issues and challenges related to IST commitment in five sessions, three of which will consist of panels of experts. The coverage and participants for each session are as follows.

Session 1. Legal Track Introduction: Is Incompetency to Stand Trial a Hot Topic, or what?  Presenter David Meyer, Esq., Institute of Psychiatry, Law and the Behavioral Sciences, USC Medical School. This session will pose the issues and challenges as described above and will introduce the remaining panelists.

Session 2. Wednesday March 24, 2010 at 2:00 PM. Enforcement of court orders and treatment issues after State Hospital commitment. Panelists: Melinda Bird, Esq., Disability Rights California; Hon. Edward Berberian, Jr. (or representative), Marin County District Attorney; Nona Klippen-Hughes, Assistant Public Defender Santa Clara County; David Finnell, MD, Chief of Forensics Atascadero State Hospital. This panel will address approaches to these State Hospital-related IST issues.
•	Litigation and court-related issues
•	Framing commitment orders and coping with delay of admissions
•	State Hospital capacity and enforcement of commitment orders
•	Sickness vs. malingering? 
•	Right to treatment, right to refuse treatment and current issues with Sell vs. United States and Penal Code §1370(a)(2)(B) in the State Hospital
•	Restoration of competency under Penal Code §1372 and maintenance of competency after return
•	Streamlining State Hospital commitments, evaluation of restoration likelihood and return to court.
•	Enforcing commitment orders under In Re Mille
•	After In Re Mille. How temporary is temporary treatment under Penal Code §1369.1

Session 3. Wednesday March 24, 2010 at approximately 3:30 PM. Enforcement of court orders and treatment for restoration of competency in jails, local community and CONREP. Panelists: Hon. Wendy Lindley, Orange County Superior Court; Debra Dorfman, Esq., Disability Rights California; Ken Carabello, Pres, FMHA; Mark Grabau, Pres. Elect, FMHA; Mary Marx, Clinical District Chief Los Angeles County DMH. This panel will address approaches to these local community-related IST issues.
•	Legal aspects of commitment and treatment in the local community under Penal Code §§1370(a)(1)(B)(i) and 1370.01(a)(1)(B)(i) 
•	Litigation and court-related issues
•	Legal issues with treatment in jail custody under Penal Code §1369.1
•	CONREP treatment of IST under Penal Code §1600 et seq.
•	Is there potential for long-term treatment in jail beyond medication after In Re Mille?
•	Framing and enforcing commitment orders for IST treatment in the local community
•	Availability of outpatient IST treatment
•	The make-up of outpatient treatment programs that successfully restore IST defendants
•	Right to treatment, right to refuse treatment and current issues with Sell vs. United States and Penal Code §1370(a)(2)(B) and 1370.01(a)(2)(B) in the context of IST treatment in the local community after In Re Mille and OAC vs. Mink

Session 4. Thursday March 25, 2010 8:30 AM. Incompetency to stand trial in juvenile delinquency proceedings. Presenter: Sue Burrell, Esq., Youth Law Center. This presenter will describe approaches to these juvenile IST issues.
•	Standards of incompetency in delinquency cases
•	The evolving IST issue of developmental immaturity
•	Treatment orders with respect to IST juveniles
•	Enforcing treatment orders in delinquency proceedings
•	Issues arising from Sell vs. United States and Penal Code §1370(a)(2)(B) in delinquency proceedings

Session 5. Thursday March 25, 2010 at approximately 10:30 AM. Issues related to alienists, court-appointed experts and the adequacy of court-ordered evaluations. Panelists: Hon. Kurt Kumli, Santa Clara County Superior Court; Hon. Maria Stratton, Los Angeles County Superior Court; Hon. Ed Berberian, Jr. (or representative), Marin County District Attorney; Lynn Maskel, Director, University of California, San Diego, School of Medicine, Forensic Psychiatry Fellowship; Leslie Caldwell, Chief Deputy Public Defender of Solano County. This panel will describe approaches to IST evaluators and evaluations issues.
•	Training and minimal and optimal qualifications of courtroom IST experts
•	Standards and quality assurance approaches to expert witness appointments
•	Optimizing the content of Penal Code §1369 evaluations and reports; validity and reliability of evaluation techniques
•	Identifying developmental/degenerative/organic and post age-18 neurological causes of incompetency to stand trial.
•	Qualifying experts and expert testimony: Kelly/Frye, Daubert, Evidence Code §402 motions, and effective voir dire of experts
•	Identifying malingering and validating illness