THE RULE 11 REVOLVING DOOR

A LOOPHOLE HAS ALLOWED THE MENTALLY INCOMPETENT TO COMMIT CRIME AFTER CRIME, WITHOUT BEING PUNISHED OR PLACED UNDER SUPERVISION

The Rule
Dave Alt faced the prisoner at Madison Street Jail.
"You made a mistake, dude, a big, big mistake," Alt told Jimmy Lee Luman in the fall of 1993. "You won't beat her. Not in your dreams. You might beat the system. But she's gonna haunt you until the day you die."

The "she" Dave Alt referred to was his wife, Janice.
Weeks earlier, a wedding ring and a Liberty gold coin were taken from the Alts' northeast Phoenix home. Police arrested the 34-year-old Luman--who'd been boarding at the Alts'--on theft and trafficking charges.

Jan Alt's late mother had given her the ring and coin as keepsakes, but the items had financial worth as well--more than $10,000. Jan was outraged that Luman, whom she had liked and trusted, had stolen from her.

But Luman had a legal ace up his sleeve. In Arizona, that ace is called Rule 11.

The rarely publicized rule from the Code of Criminal Procedure does not consider guilt or innocence. Instead, it concerns itself with a defendant's legal "competence" to stand trial.

Those accused of crimes in Arizona must be able to understand "the nature and object of the proceeding(s)" or to assist in their defenses. Those who don't may be judged incompetent and "shall not be tried, convicted, sentenced or punished for an offense."

The rule has nothing to do with the famed insanity defense. In truth, lawyers rarely attempt that defense in Arizona or elsewhere. But Rule 11 is a daily fact of life at the Maricopa County courthouse. There, judges must weigh two competing concepts--the state's duty to protect innocent citizens versus the legal responsibility to protect defendants who truly can't help themselves.

The judges do so with varying degrees of success and creativity.
Jimmy Lee Luman was no stranger to legal troubles. When Phoenix police arrested him for stealing from the Alts, he already was facing charges of sexually molesting a 7-year-old girl and aggravated drunk driving.

Alt was convinced Luman would be serving a long prison term, even if she never did recover her stolen valuables. But she didn't know about Rule 11.

She learned all about the rule after Luman conned judges in all three pending cases into believing he was incompetent to stand trial.

Each of the judges relied on the advice of mental-health professionals who had concluded Luman was too stupid to understand the legal proceedings against him.

Those professionals were wrong. Luman had fooled them by literally playing dumb during short competency examinations.

The problems with Rule 11, however, are not limited to con artists like Jimmy Luman. Under the current system, people who actually are mentally incompetent--especially the mentally retarded--are allowed to commit crime after crime without being punished or placed under the supervision they and society deserve.

Jan and Jimmy Lee
Jan Alt is tenacious by personality and profession; she's a bill collector.

She knew firsthand that Luman was faking his alleged mental slowness to authorities. Why, Alt says, the guy was proficient in U.S. history and even wrote poetry.

Luman had vehemently denied any wrongdoing when Alt confronted him early on about her missing ring and coin. But Alt had discovered a handwritten list in Luman's room before the couple booted him out of their home. On it, he had neatly compiled names, addresses and phone numbers of Valley pawn shops.

Records examined by New Times show Luman can recall times, dates and places, as well as most folks. In 1993, for example, he filled out a rental application when he moved into the Alts' home. On it, he scribbled phone numbers, work history, references, Social Security numbers and other data.

Luman, however, presented himself to authorities as a slow-thinking gent whose lack of mental acuity stemmed from a 1990 work-related head injury.

During a Rule 11 examination in August 1993, Luman counted backward and forward at the level of a young child. His attention span also appeared childlike to one psychiatrist, and his understanding of court proceedings almost nil.

"I judged his intelligence to be somewhat marginal," Dr. John DiBacco wrote in his August 1993 evaluation of Luman. "It is clouded by his apparent cognitive confusion, difficulty with recall and vagueness. . . . There must be a real question about Mr. Luman's understanding and responsibility at the time of the alleged crimes."

Dr. Thomas Thomas concurred in his Rule 11 evaluation that month: "[Luman] knew that the county in which he resided started with an `M,' but didn't know what the name of it was. He could not provide the day of the month . . . A review of constitutional rights led to a poor set of responses . . . Defendant is not competent to stand trial."

Neither expert knew about the detailed rental application that Luman had filled out in front of the Alts a few months earlier. In it, he recalled his parents' home county in New Mexico; he also knew Phoenix is in Maricopa County.

Prosecutors never asked any of the judges who found Luman incompetent--Louis Araneta, Jeffrey Hotham and Susan Bolton--to begin a process that is routine in other states--to order an attempt at restoring Luman's competency. The failure of prosecutors to follow up, says Jack Potts, the chief of forensic psychiatry at the Maricopa County Jail, unfortunately is the norm.

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