Wisconsin's Slender Man case: A case study of mental health issues in criminal justice - Part 1 - Competency

Mental Health on Trial Wisconsin’s Slender Man Case:A Case Study of Mental Health Issues in Criminal Justice

Part 1 – CompetencyJeffrey A. Ahonen

“Rescue workers take a stabbing victim to the ambulance in Waukesha, Wis., on Saturday, May 31, 2014. Prosecutors say two 12-year-old southeastern Wisconsin girls stabbed their 12-year-old friend nearly to death” (Richmond, 2014).

“Prosecutors say two 12-year-old southeastern Wisconsin girls stabbed their 12-year-old friend nearly to death in the woods to please a mythological creature they learned about online” (Richmond, 2014).

“[O]ne of the girls told an investigator they began planning to kill their friend in December. The other girl told police they decided to kill her so they could become proxies of Slender Man, who would accept them and let them live with him in his mansion in the Nicolet National Forest”(Richmond, 2014).

Slender Man

http://www.theblaze.com/stories/2015/02/17/eight-disturbing-photos-from-inside-preliminary-hearing-of-slenderman-case/

How does the Wisconsin criminal justice system handle a nightmare?

How does the Wisconsin criminal justice system handle a case involving mental

health issues?

Mental Health Issues in Criminal Justice Proceedings

Is the person on trial competent to stand trial?

Competency

Competency under the LawCompetency has been characterized as “the most significant mentalhealth inquiry pursued in the system of criminal law” (Stone, 1975, p.

200).Wulach (1980) identified four legal and moral aspects of competency:1) The accuracy of the proceedings demands the assistance of thedefendant in acquiring the facts of the case.2) Due process depends on defendants’ ability to exercise their rights, including the rights to choose and assist legal counsel, confront theiraccusers, and testify.3) The integrity and dignity of the process is undermined by the trial of an incompetent defendant, both in terms of inherent morality and outward appearance.4) Finally, the goal of punishment is not served by sentencing a defendant who fails to comprehend the sanction and reasons for imposing it.

Competency in Psychological Conceptualization

Bonnie (1992) proposed a two-pronged model of legal competency fordeveloping corresponding psychological assessments. Foundational competence is a capacity for 1) understanding the charges,the purpose of the proceedings, and adversarial procedure; 2)

appreciating one’s situation as a defendant; and 3) relating relevant facts about the case

to one’s counsel. “This dimension meets the societal need to maintain the dignity of the proceedings and the reliability of the outcome” (Stafford & Sellbom, 2012, p. 419).Decisional competence is the ability to make necessary and sometimes

personally-challenging decisions regarding the case (Bonnie, 1992). “[T]he capacity to make decisions may require reassessment at decision points throughout the proceedings, and that assessment of competence at any one point is in this respect provisional” (Stafford & Sellbom, 2012, p. 419).

Competency under Wisconsin Law “No person who lacks substantial mental capacity to understand the

proceedings or assist in his or her own defense may be tried, convicted orsentenced for the commission of an offense so long as the incapacity endures.” Wis. Stats. § 971.13(1).A competent defendant has a “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and a rational

as well as factual understanding of the proceedings against him.” Dusky v. U.S.,

362 U.S. 402 (1960); State ex rel. Haskins v. Dodge County Court, 62 Wis. 2d 250 (1974).

Competency is a judicial determination, not a medical determination. Notevery mentally disordered defendant is incompetent; the court must

consider the degree of impairment in the defendant's capacity to assist counsel and make decisions that legal counsel cannot make for him or her. State v. Harper, 57 Wis. 2d 543 (1973).

Medically-Assisted Competency “A defendant shall not be determined incompetent to proceed solelybecause medication has been or is being administered to restore or

maintain competency.” Wis. Stats. § 971.13(2). A defendant who requires medication

to maintain competency is deemed legally competent, and the court may order the defendant to take such medication for the duration of the

criminal proceedings; however, stringent limitations are to be followed. Sell v. U.S., 539 U.S. 166 (2003); see also Wis. Stats. § 971.14(5)(c).

Competency Proceedings under Wisconsin Law

The court shall commence an examination “whenever there is reason todoubt a defendant's competency to proceed.” Wis. Stats. § 971.14(1r)(a).

"Reason to doubt" may be raised by a motion setting forth the grounds forbelief that a defendant lacks competency, by the evidence presented in

the proceedings or by the defendant's colloquies with the judge or courtroom demeanor. If neither party makes such a motion, the court itself may be required by due process to order an inquiry where the evidence raises a sufficient doubt. Pate v. Robinson, 383 U.S. 375, 387 (1966); Drope v.

Missouri,420 U.S. 162 (1975); State v. McKnight, 65 Wis. 2d 583 (1974). If a reason to doubt the defendant’s competency arises, the court mustfirst find that there is probable cause to believe that the defendant committed the offense charged. Wis. Stats. § 971.14 (1r) (b); State v.

McCredden, 33 Wis. 2d 661 (1967).


In order to make the determination of competency, the court appoints one or more examiners “having the specialized knowledge determined by thecourt to be appropriate to examine and report upon the condition of the defendant.” Wis. Stats. § 971.14(1r)(b). While a prior version of the

statute required the appointment of a physician to make the examination, the

current version “allows the court to appoint examiners without medicaldegrees, if their particular qualifications enable them to form expert

opinions regarding the defendant's competency” (Judicial Council Committee, 1981).

The appointed examiner “shall personally observe and examine the defendant and shall have access to his or her past or present treatment records.” Wis.

Stats. § 971.14(1r) (e). The defendant also may be examined for competency purposes by physicians or other experts chosen by the defendant or by the district attorney. Wis. Stats. § 971.14 (1r) (g).


The examiner’s written report to the court shall include all of the following:

(a) A description of the nature of the examination and an identification of the persons interviewed, the specific records reviewed and any tests administered.

(b) The clinical findings of the examiner.(c) The examiner's opinion regarding the defendant's present mental

capacity to understand the proceedings and assist in his or her defense.(d) The examiner's opinion regarding the likelihood that the defendant, if provided treatment, may be restored to competency.(dm) The examiner's opinion on whether the defendant needs medication

or treatment and whether the defendant is competent to refuse medicationor treatment. medication or treatment.(e) The facts and reasoning, in reasonable detail, upon which the findings

and opinions are based. Wis. Stats. § 971.14(3).


Copies of the examiner’s report shall be delivered to the district attorney and defendant. Wis. Stats. § 971.14(4)(a).

The court shall hold an evidentiary hearing. At the commencement of the hearing, the judge shall ask the defendant about his or her position on competency. If the defendant stands mute or claims to be incompetent, the defendant shall be found incompetent unless the state proves by the greater

weight of the credible evidence that the defendant is competent. If the defendant claims to be competent, the defendant shall be found competent unless the state proves by evidence that is clear and convincing that the defendant is incompetent. Wis. Stats. § 971.14(4)(b).

If the court determines that the defendant is competent, the criminalproceeding shall be resumed. Wis. Stats. § 971.14(4)(c).


If the court determines that the defendant is not competent, but is likely to become competent within a specified period if provided with appropriate treatment, the court shall suspend the proceedings and commit thedefendant to the custody of the Department of Health Services for treatmentfor a period not to exceed 12 months, or the maximum sentence specified for the most serious offense with which the defendant is charged, whichever isless. Wis. Stats. § 971.14(5)(a) 1).The defendant shall be periodically reexamined. Written reports of all examination shall be furnished to the court, with an indication of whether or not the defendant has become competent. Any report indicating a lack of sufficient progress shall include the examiner's opinion regarding whether the defendant is mentally ill, alcoholic, drug dependent, developmentally disabled or infirm because of aging or other like incapacities. Wis. Stats. § 971.14(5)(b).


Upon receiving a report indicating a defendant has regained competency,or is not competent and unlikely to become competent in the remaining commitment period, the court shall hold a hearing. If the court determines that the defendant has become competent, the defendant shall be discharged from commitment and the criminal proceeding shall be resumed. If the court determines that the defendant is making sufficient progress toward becoming competent, the commitment shall continue. Wis. Stats. § 971.14(5)(c).If the court determines that it is unlikely that the defendant will become competent within the remaining commitment period, it shall discharge the defendant from the commitment, and either release him or commence proceedings for a civil commitment under Chapter 51. The court may orderthe defendant to appear in court at specified intervals for redetermination of his or her competency to proceed. Wis. Stats. § 971.14(6)(a).

CompetencyIn

The Slender Man Case

Competency Proceedings in State v Geyser 06/11/2014 – Motion by defendant for competency examination. Examination ordered by Court; examination to be performed by Wisconsin Forensic Unit.08/01/2014 – Evidentiary hearing on competency report. Court finds that the defendant is incompetent to proceed at this time but is likely to become competent. Defendant remanded to the custody of Department of Health Services and mental health treatment for restoring competency is ordered.12/18/14 – Both prosecution and defense waiver hearing on mot recent competency evaluation. Court finds defendant competent to proceed to trial.

Competency Proceedings in State v Weier 09/15/2014 – Motion by defendant for competency examination. Examination ordered by Court; examination to be performed by Wisconsin Forensic Unit.12/18/2014 – Evidentiary hearing on competency report. Defendant’s expert submits separate report in support of claim of incompetency. Court finds that the defendant is competent to proceed.

Both of the girls have been bound over for trial in adult court, onan anticipated charge of attempted first-degree intentional homicide. (Formal felony charges have not been filed to date.)

ConclusionsCompetency is not a medical determination; it is a legal determination

thatis informed by medical data concerning a person’s mental status. This

legal inquiry is narrow in scope, focusing solely on a person’s mental capacity

for participating meaningfully as a party to a legal case, with an understanding

of the court proceedings against him and an ability to assist his attorney in

defending against the charges. The inquiry into competency does not answer the ultimate question in the criminal case: whether or not the defendant bears criminal responsibility for his actions at the time of the alleged crime.

One therefore ought not be too surprised by the fact that both of the defendants in the Slender Man case have been found competent to stand trial. Mental disorders, which seem rather evident in this case, are grounds for a finding of incompetence only when the degree of impairment affects the capacity for participating in the proceedings.

ConclusionsThe determination of competency follows a proscribed legal proceeding, with full regard for the due process rights of both the defendant and the prosecution. Either party can pursue a finding of the defendant’s

incompetence in the interests of justice.In keeping with Bonnie’s (1992) conceptualization of competency as a

“provisional” finding, judicial inquiry into a defendant’s competency is an ongoing one throughout the proceedings. The dynamic nature of competency is recognized even when a defendant is found incompetent and discharged from the case, since the court can inquire periodically to determine whether the defendant is competent to stand trial.

The matter of competency in the Slender Man case is likewise provisional.

While each defendant now has been found to be competent to stand trial,

those findings are subject to further inquiry. Any change in a defendant’s mental health status during pretrial confinement could alter competency.

ConclusionsThe determination of competency follows a proscribed legal proceeding, with full regard for the due process rights of both the defendant and the prosecution. Either party can pursue a finding of the defendant’s

incompetence in the interests of justice.In keeping with Bonnie’s (1992) conceptualization of competency as a

“provisional” finding, judicial inquiry into a defendant’s competency is an ongoing one throughout the proceedings. The dynamic nature of competency is recognized even when a defendant is found incompetent and discharged from the case, since the court can inquire periodically to determine whether the defendant is competent to stand trial.

The matter of competency in the Slender Man case is likewise provisional.

While each defendant now has been found to be competent to stand trial,

those findings are subject to further inquiry. Any change in a defendant’s mental health status during pretrial confinement could alter competency.

References

Bonnie, R. (1992). The competence of criminal defendants: A theoretical reformulation. Behavioral Sciences and the Law, 10, 291–316.

Howerton, J. (2015, Feb 17). Eight disturbing photos revealed in ‘Slenderman’ stabbing case. The

Blaze. Retrieved from http://www.theblaze.com/stories/2015/02/17/eight-disturbing-photos-from- inside-preliminary-hearing-of-slenderman-case.

Richmond, T. (2014, June 2). 12-year-old Wisconsin girls charged In stabbing. US News. Retrieved from http://www.usnews.com/news/articles/2014/06/03/12-year-old-wisconsin-girls-charged-in- stabbing.

Stafford, K., & Sellbom, M. (2014). Competency to stand trial. In Handbook of psychology Vol 11: Forensic psychology. 2d ed. (pp. 412-439). New York: Wiley.

Stone, A. (1975). Mental health and law: A system in transition. Rockville, MD: National Institute of Mental Health.

Wulach, J. S. (1980). The incompetency plea: Abuses and reforms. Journal of Psychiatry and Law,

8, 317–328.