THE RULE 11 REVOLVING DOOR

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

"They roll over and just let these cases fade away without a whimper," Potts says. "It's like they're getting flimflammed."

Mostly because of Jan Alt's loud insistence, however, prosecutors refiled the charges against Luman in February. For starters, Alt says, she berated County Attorney Richard Romley in a phone call.

"I called him a wimp," she says, "because his office was just going to let the guy walk away from everything."

Alt also sought help from the White House, the governor, the American Civil Liberties Union and anyone else who came to mind.

"Jay-Jay would be out committing more crimes if I hadn't made such a stink," she says, using Luman's nickname. "That's ridiculous. It's like no one used their common sense until they started studying him at the jail."

The observations of forensic personnel at the county jail, combined with other information, convinced Judge Pro Tem Michael Jones this May that Luman was competent--and always had been. He ordered Luman to stand trial on the child molestation, theft and aggravated DUI charges.

Luman pleaded guilty in the Alt theft case and is set to be sentenced July 25. (Prosecutors dropped the other charges as part of a plea bargain.)

But the issues concerning legal competency go beyond frauds … la Luman.
New Times studied more than 100 Maricopa County files involving Rule 11 defendants, including cases documenting violent crimes, pedophilia and common burglary.

The record shows that most Maricopa County jurists take the easy way out when considering Rule 11 decisions, often routinely rubber-stamping the opinions of mental-health experts about a defendant's competence.

The problem with that process: The files reveal that many private psychological examiners accept at face value what defendants tell them during crucial, one-time competency evaluations.

"It takes hours upon hours of observation and interaction to see what someone is really about," says chief of forensic psychiatry Potts. "You just can't know much about someone in one little sit-down. You may get badly burned."

The evaluators also often incorrectly equate incompetence with mental maladies such as psychosis, says Maricopa County presiding civil judge Robert Myers.

"Where do I start?" says Myers, who has vast experience in this area of the law. "Many mental-health types don't really know what legal competence is. Just because you have a mental illness or you are slow doesn't mean you're incompetent. Some of the reports I've read are shockingly poor. Unfortunately, we then have judges who make dispositions based on ignorance."

It's also clear that Maricopa County's judges have few options in cases involving mentally retarded defendants. Each year, the judges order dozens of supposedly permanently incompetent defendants who pose "a danger to self, a danger to others or (who are) gravely disabled" to the Maricopa County Hospital for evaluation.

Placing the incompetent in the hands of mental-health pros sounds wise. But Arizona law excludes retardation from its list of mental disorders; mentally handicapped people cannot be committed to hospitals for treatment because by definition they aren't sick.

Mental illness is an often reversible thinking disorder that may occur regardless of a person's IQ. The retarded have a learning deficiency and may or may not be mentally ill.

Psychiatrists and psychologists admittedly are far more knowledgeable about and interested in mental illness than in retardation.

This emphasis can mislead judges who rely so mightily on these experts.
"Where mental health and criminal justice meet is a gap the size of the Grand Canyon," says assistant public defender Robert Ellig, who has represented hundreds of Rule 11-eligible clients.

Even the Arizona Court of Appeals seems at a loss.
"It presents a question of statewide importance that is likely to recur," appellate judge Joe Contreras wrote in December 1994.

That's an understatement.
In 1994, mental-health experts in Maricopa County evaluated 400 defendants in full Rule 11 proceedings. Judges ruled that about 70 percent were competent to stand trial. But the other 30 percent, or 110 defendants, had charges against them dismissed under the provisions of Rule 11.

Those percentages differ dramatically from the rates in other jurisdictions surveyed for this story.

In California, more than 90 percent of the defendants found incompetent are considered restorable to the level of mental functioning necessary for assisting in their own trials. But in 1994, only a third of this county's incompetents was ruled possibly restorable. Without fanfare, many of those defendants were released from custody soon after their cases were dismissed.

Twelve freed defendants--including Jim Luman--had been accused of crimes of violence or offenses against children.

"It's a complex problem that almost screams at you," says Judge Pro Tem Mike Jones, one of few local jurists who has tried to forge innovative solutions. "It's a maddening, sad, highly imperfect area of the law."

A Short History
In 1901, a 19-year-old New York man accused of burglary was declared mentally incompetent to stand trial. The judge committed the man to a maximum-security mental hospital. In 1965, the accused man, then 83, still was a patient at the hospital, theoretically awaiting restoration to competency.

A scanning of legal journals indicates the case was not unique. Until the early 1970s, incompetent defendants around the nation could be held as long as the courts saw fit, without ever being convicted of a crime.

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