A committee of criminal justice and mental health experts met regularly last year as the debate over Ardrey McFarland's legal fate raged. The sessions did not always go smoothly.

"There are so many angles on this," says Superior Court Judge Robert Myers, who chaired the committee for a time. "We had public defenders saying that 'restoration to competency' is a code word for conditioning defendants to parrot concepts. We had psychiatrists who talked about pedophilia. We had people who had put together a lot of numbers on things.

"We did a lot of talking--and then proposed some things."
In the end, the committee asked the state Legislature to amend the laws concerning incompetence to stand trial.

The Rule 11 Committee, as it dubbed itself, had an advocate in Senator Patty Noland. The Tucson Republican sponsored Senate Bill 1273, which Governor Fife Symington signed into law at the end of the spring session.

"It is the intent of the Legislature to address the [Rule 11] problem by providing secure treatment alternatives, subject to legislative appropriation, for these offenders," the law says.

Part of the law goes into effect July 13. But the key components won't kick in until this October and October 1996.

After this October 1:
Judges who rule a defendant incompetent to stand trial must order restoration treatment, "unless there is clear and convincing evidence the defendant will not be restored to competency within 15 months." A judge may order an additional six months of treatment if a defendant "is making progress" toward restoration.

The most substantive change is slated to go into effect October 1, 1996. Then, the state is to provide a locked facility--probably at the Arizona State Hospital--where incompetent defendants deemed "a threat to public safety" will undergo treatment.

An Ardrey McFarland, for example, would be out of harm's way as doctors and other professionals worked with him.

Also starting in October 1996, judges who say a dangerous defendant is permanently incompetent, even after restoration attempts, "shall order the public fiduciary to file a guardianship for that person."

The fiduciary "shall take whatever steps are necessary to ensure that the person participates in treatment or training programs . . . including admission to a secure facility, subject to availability."

To some defense attorneys, the new Arizona law is chillingly reminiscent of the days when nonconvicted "incompetents" floated in a netherworld between the criminal justice and mental health systems.

Those familiar with the new law agree that a defense lawyer is sure to mount an appellate challenge. But other legal problems also loom.

The Public Fiduciary Office--which went to court last year when a judge ordered it to intervene in the McFarland case--is certain to fight the new law.

"The office is not organized for criminal clients," deputy county attorney John Barron III wrote a state Senate staffer last February during the legislative debate about incompetence issues. "Guardianship is not the appropriate vehicle for those clients . . . It is more appropriate that Probation Services act as 'guardian' for those clients."

However the new law actually is applied, jail psychiatrist Jack Potts says he is confident it's a step in the right direction.

"We are trying to fill in the cracks, bit by bit," says Potts. "The phrase 'crying need' comes to mind.

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Paul Rubin
Contact: Paul Rubin