THE RULE 11 REVOLVING DOOR

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

Biegen asks the men what charges they're facing: Assault. Indecent exposure. Burglary. Felony fleeing from a cop.

The fifth student, a white man in his 20s, declines to be specific.
"I'm here for habitual," he says drolly.
"Habitual what?"
"Just habitual."
"Whatever. I'll look you up," Biegen says.

Before he digs deeper into his football-as-courtroom analogy, Biegen asks if anyone has any questions.

"What if you feel you're competent, and they say you're not?" asks Antonio, who was arrested after a series of nonviolent crimes that apparently stemmed from a traffic stop. "I've felt I was competent all along. I understand things fine. I was just acting a little crazy."

"Mistakes are made sometimes," Biegen says. "Be yourself. We'll find out."
The shrink turns to his football field.
"How do you score a touchdown?" he asks.
"I hate sports," grunts an accused burglar named George.
"Working together with your lawyer?" another student asks.
"That's one way," Biegen says. "But who's watching this game?"
"The jury," someone answers.
"You guys are smart. Okay. What pleas can you make in our system?"

"Innocent," four of the five men answer in unison, as the sports hater keeps his silence.

"Sure, sure, sure," Biegen says. "Then there's guilty, but insane, and there's a no-contest plea. Does anyone know what that is?"

Antonio shoots up his hand.
"You're guilty, but you don't want to say the word `guilty,'" he says, as accurately as an attorney. "And you don't want to waste everyone's time."

"What's the fourth thing?" Biegen continues.
The five faces before him are blank.
"I know this doesn't apply to any of you," the psychiatrist jokes.
The precocious Antonio finally gets it.
"You can plead guilty."

"You got it," Biegen says, sounding like Pat Sajak. "Okay. Listen to this, then I'll let you go. Less crime, less time. Less crime, less time."

After the 20-minute session, Biegen returns to his small office on the jail's sixth floor.

"Up here is where I don't have to sugarcoat anything," says Biegen, who also maintains a private practice. "I believe that most mentally retarded defendants can learn basic legal things. We just have to go slowly sometimes. Retardation and mental illness are not the same as incompetent. There was a guy in Tucson who thought the CIA was after his ass. Black helicopters, the whole bit. Paranoid schizophrenic. But he still could assist his attorney in his criminal case."

Assistant public defender Nora Greer isn't thrilled with how the jail's forensics team does business.

"It's a bit dishonest," says Greer, who represents many Rule 11 clients, "because there's an undertone to find as many people as possible competent. It's not skullduggery; it's their job to restore people."

Those who work on the psych pod have no quarrel with Greer's last observation. David Biegen adds that another major part of the forensics team's job is to unmask fakers.

"We are into detective work up here," Biegen says. "We spend hours and hours with someone, compared with the 50 minutes or so that a court-appointed person gets. We watch, listen, interact and document like crazy. They have to be pretty good to get over on us, though it happens, no doubt."

DeWayne Thomas
The headline in the August 2, 1987, edition of the Arizona Republic read, "Familiar Burglar a Thorn to Police: He Repeatedly Returns to Street After Being Found Incompetent."

The story detailed how a mentally retarded, 25-year-old Phoenix man named DeWayne Thomas had been charged with 38 burglaries, ten thefts and numerous other crimes since 1980. (Records show the count is now more than 60 arrests since 1980.)

Thomas was depicted as a homeless man whose pathetic modus operandi was to break into houses and businesses and steal mostly petty items--food, clothing, a tool or two.

Judges in case after case had found Thomas permanently incompetent to stand trial. He'd find his way back to the streets--literally--where the cycle began again.

A court file from the late 1980s describes how Thomas repeatedly burglarized a South Phoenix business. One night, the owner and some employees laid in wait for Thomas, nabbing him as he broke into the building for the umpteenth time. They beat up Thomas, then called the police.

In a joint-court pleading in March 1987, prosecutors and Thomas' public defender agreed something had to be done.

"Unless those in power use those powers to cause a meaningful change in the defendant's behavior," the lawyers agreed, "a violent end is not predicted, but assured."

Thomas, however, has proved them wrong. His continued arrests on burglary and theft charges show he hasn't changed his behavior.

But he's still alive.
"DeWayne is a slow, slow kid with nowhere to go," says jail psychiatrist Jack Potts, who has known Thomas for more than a decade. "He commits stupid crimes. He does stupid things. He is stupid. But he's not evil. He's truly incompetent. His case is a crying shame."

Thomas currently is back at the Madison Street Jail on a new burglary charge. The latest crime occurred in January, six weeks after a judge again found Thomas permanently incompetent to stand trial on a different charge.

Jail records indicate Thomas has spent eight months in jail since July 1993, each time awaiting Rule 11 proceedings that inevitably end the same way: Incompetent. Nonrestorable. Free.

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