THE RULE 11 REVOLVING DOOR

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

Defense lawyers in Indiana challenged that policy in the late 1960s. John Jackson was an illiterate deaf mute with the mental capacity of a preschool child. (The evidence, by the way, overwhelmingly showed that Jackson truly was handicapped.)

In 1968, a shopkeeper had caught Jackson stealing $9 worth of merchandise.
After the urging of two court-appointed psychologists, a judge ruled Jackson permanently incompetent and committed him to a state mental hospital. But the U.S. Supreme Court in 1972 said such indeterminate detentions are illegal. Jackson was freed after almost four years.

The high court left the question of how long is too long up to each state. Arizona settled on six months as enough time to evaluate and possibly restore someone to competency. Extensions occasionally have been permitted.

A new law that goes into effect October 1 allows Arizona authorities to detain the potentially restorable for up to 15 months--with a six-month extension to be allowed in some cases.

The Supreme Court followed its landmark ruling in Jackson with others in the mental-health arena. In the mid-1970s, the court held that a defendant must be able to:

* "Consult with his attorney with a reasonable degree of factual understanding."

* "Have a rational, as well as a factual, understanding of the proceedings against him."

* "Be able to assist in preparing his defense."
If someone doesn't meet those criteria, the high court said, a judge may find him incompetent to stand trial.

Ardrey McFarland II
Ardrey McFarland's legal saga exposes almost every flaw in the Rule 11 system. But it also shows how those in charge occasionally make bona fide efforts to right things, whatever the hassle to themselves and others.

Mentally retarded and deaf, McFarland is by most accounts a likable man. He makes ends meet by working menial jobs and collecting Social Security disability income. He sports an "I Love You" tattoo on the top of his left hand and appears, to most people, as unthreatening, eager to please.

McFarland also is a pedophile. The 38-year-old Phoenix man has been judged incompetent to stand trial on five sex-related charges since 1984--including a case in which he allegedly molested his own 2-year-old daughter.

But McFarland remains a man without a facility. Prison is out of the question; and public hospitals won't keep him for more than a few days because his primary diagnosis is retardation, not illness.

"This court considers him to pose a substantial danger to others by virtue of the fact that [he] has a long history of offenses victimizing children," Judge Pro Tem Mike Jones wrote of McFarland in June 1994. "[But] Mr. McFarland is not civilly committable even though he is incompetent and may be considered a danger to others."

In September 1976, Scottsdale police alleged that he walked up to a car; the children inside it were waiting for their parents. He asked the youngsters to step out, but they refused. A police report says McFarland then pulled down his pants, exposed himself and tried to pull a 7-year-old girl through an open window. He fled when the kids started screaming.

McFarland pleaded guilty to a reduced misdemeanor charge of contributing to the delinquency of a minor. He was put on probation, but was again arrested in 1977 for masturbating in front of several young girls.

McFarland's attorneys didn't ask the courts to find him incompetent under Rule 11. Still, he again escaped a felony conviction.

McFarland steered clear of the law until 1984, when Phoenix police arrested him on suspicion of raping a woman in his apartment complex. A police report indicates that McFarland confessed through a sign-language interpreter.

"I sleepwalk and had sex with woman," he said. "She said stop, then started beating my head."

McFarland's attorney this time requested a Rule 11 examination of his client. The legal strategy worked. A judge found McFarland permanently incompetent to stand trial, and ordered him to the Maricopa Medical Center for evaluation. The hospital released him within a week.

In January 1988, Phoenix police arrested McFarland on suspicion of molesting his 2-year-old daughter. The allegations, as spelled out in police reports and other documents, were repulsive:

McFarland was alone with the baby at his apartment. When his wife and two of her friends returned, they walked in on the sight of a naked McFarland lying on top of his naked child making coital motions.

According to police reports, McFarland's wife--who also is mentally handicapped--told her friends not to worry, that Ardrey hadn't been doing that sort of thing for a long time. The friends called the cops.

A medical examination concluded that McFarland hadn't penetrated the baby, but there was semen around, if not inside, her genitals.

"I had a little problem with my little daughter," McFarland told authorities, again through an interpreter. "She was playing with her diaper, and I slipped on it and fell on her with my penis on her stomach. She's okay. Three women came in and saw. They said it was child molestation. But I wasn't doing anything."

Mental-health experts again found McFarland incompetent under Rule 11.
"Talking to Mr. McFarland is somewhat like sticking a wet finger into the wind," concluded Donald Tatro, a clinical psychologist. "You get a sense of the direction of things, but nothing very tangible or specific is learned. . . . There is virtually no chance that he would improve and be able to competently stand trial at a later date."

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