THE RULE 11 REVOLVING DOOR

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

Tatro, however, added a note of warning: "Ardrey cannot be left entirely to his own devices because of the difficulty he has keeping his impulses under control."

A judge dismissed the child-molesting charges against McFarland in late 1988. Records show he spent six days at the county hospital before being sent home.

McFarland's wife later divorced him. He apparently has not been allowed access to his daughter for years.

In October 1990, police arrested McFarland for again exposing himself to children; in August 1991, for public sexual indecency; and in July 1993, on yet another exposure charge.

The results in 1990 and 1991 were the same: Dismissal of all charges.
But something startlingly different happened during the 1993 case. Frustrated, Mike Jones decided to try something new.

"These type cases go through the system so often that it's ridiculous," he says. "It's amazing to me that there hasn't been a public outcry. We send people to a hospital saying, `Go and sin no more,' knowing it's baloney, and they'll probably be back on the streets right away."

Jones' order in June 1994 set sail on legal waters previously uncharted in Arizona.

Like his colleagues, Jones ruled that McFarland was incompetent and nonrestorable. But he refused to dismiss the pending charges.

"The facts of this case demand continuing supervision by the court," the judge concluded, "not only to protect the community against Mr. McFarland's unchecked pedophilia, but also to ensure that [he] receives the services to which he is entitled."

Jones also imposed conditions of release as if McFarland had been convicted of something: He ordered McFarland to take prescribed medicines, to participate in a sex-offender treatment program, and to seek lodging in a supervised group home.

Jones' novel approach did not go smoothly.
The Arizona Department of Developmental Disabilities (DDD) provides housing and counseling services for mentally disabled sexual deviants. But the agency can't force someone to request services--and, as of June 1994, McFarland never had done so.

"In the context of these Rule 11 proceedings," Jones wrote in his order, "Ardrey McFarland is in need of a guardian to monitor and request services that may be available to him . . . "

Jones told the county's public fiduciary--an agency which represents incompetent people outside the criminal justice system--to apply as McFarland's guardian. Instead of applauding the judge's efforts and agreeing to help, Public Fiduciary Richard Vanderheiden took him to court.

The agency sought legal counsel from the Maricopa County Attorney's Office. Some recognized the irony that Rick Romley's office--which puts bad guys behind bars--was battling to keep a pedophile free from enforced treatment and supervision.

The Arizona Court of Appeals ruled against Jones last December.
The appellate court's unanimous opinion first noted the chasm between Arizona's statutes on civil mental commitment and its criminal rules.

"This gap," Judge Joe Contreras wrote, "has the effect of allowing an individual such as McFarland to repeat a cycle of criminal conduct, arrest and release without either treatment or punishment."

Contreras praised Jones for at least trying "to secure services, treatment, housing and supervision for a criminal defendant who has not and cannot be convicted of a crime."

In the end, however, the appellate court ruled with the public fiduciary.
"The court's intention to intervene and interrupt McFarland's pattern of offense is admirable," Contreras' 13-page opinion concluded. "But resolution of this dilemma ultimately must rest in the hands of the Legislature."

McFarland remains free. His criminal case is in limbo until the Arizona Supreme Court decides if it will consider Mike Jones' appeal. McFarland's attorney, Bob Ellig, says he's heard McFarland is staying out of trouble and is getting counseling.

"The criminal justice system probably just isn't supposed to deal with the Ardrey McFarlands of the world," Ellig says. "But I hope someone out there is keeping an eye on him, and that he's doing the right thing."

Competency Class
Don't have no shame in your game. It don't matter what the other prisoners think because they can't and won't do your time for you. Anytime you talk to your lawyer, tell her to file a Rule 11. If you talk to any doctors, the main thing is you don't know where you are or how you got there, or how long you've been there. You don't know any dates (Except 2525, when the world was still alive). Even if they tell you, you can't remember what they said. Get the Rule 11 law and read it.

--Letter from one Maricopa County prisoner to another, circa 1988

The burly, white-haired man sketches something with a Magic Marker on an easel. Psychiatrist David Biegen then announces that class is in session.

His students are a quintet of prisoners undergoing training in "competency" at the Madison Street Jail.

This class is being held in the middle of the psychiatric pod at the crowded facility. Trying to "restore" potential Rule 11 candidates so they can be tried is part of Biegen's task at the jail.

"What did I just draw?" he asks the men, each of whom is attired in the jail's standard-blue outfit.

"A football field," blurts an inmate named Antonio.
"I can see you're gonna go far in life, sir," the doctor replies, drawing a smile from the young Hispanic man.

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