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.

"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.

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."

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.

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.

Jail probably is a better place for Thomas than his last-known residence--a burned-out home in South Phoenix owned by his mother. Thomas stayed alone in the shell for weeks, surviving without electricity or water.

Around that time, the public fiduciary--Thomas' limited guardian since March 1994--asked the state to place Thomas in a locked facility that's not a jail. The state indicated it has no such secured settings.

Then, in a memorandum filed February 27, the fiduciary tried to slide out of its role as Thomas' guardian.

"Without the availability of a secured placement," the office's Michael Strauber wrote, "there is nothing that will prevent Mr. Thomas from continuing to commit crimes for which he cannot be found competent to stand trial."

DeWayne Thomas' latest Rule 11 evaluation is pending.

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