Rule 11.7 Subsequent hearings on competency.

Committee Comments to Rule 11.7 as Amended Effective October 1, 1996

Rule 11.7(a) is intended to ensure that the status of all defendants adjudicated incompetent under Rule 11.6(c)(2) will be thoroughly reviewed at reasonably frequent intervals. This review process is intended to obviate the very real danger that the defendant could be incarcerated without a trial for a number of months or years on minor charges when the defendant’s condition would not justify civil commitment (e.g., in any case where the defendant is incompetent but poses no danger to himself or herself or to others). See, e.g., Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir.1974); Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974). Competency hearings are normally considered to be a protective device for the defendant; it is a denial of due process to try a person who is unable to defend. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); cf. Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974).

In Jackson v. Indiana, 406 U.S. 715, at 738, 92 S.Ct. 1845, at 1858, 32 L.Ed.2d 435, at 451 (1972), the Supreme Court held:

“[A] person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.”

A six-month period of detention and treatment is sufficient “to determine whether there is a substantial probability” of a restoration to competency.

A person subject to involuntary civil commitment has the right to counsel at all significant stages of the commitment process. See, e.g., Lessard v. Schmidt, 349 F.Supp. 1078, 1097 (E.D.Wis.1972), judgment vacated on other grounds, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974); Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974). In addition, such a person, if indigent, has the right to appointed counsel. Id. In Lynch, the court held that counsel must be appointed long enough before the final commitment hearing to assure the opportunity for adequate preparation. Counsel must also be given the names of the examining experts and any others who may testify at the hearing in support of commitment. Lynch also requires a reasonable opportunity to inspect any pertinent documents and records in the case. 386 F.Supp. at 389.

Rule 11.7(b) permits the circuit court, in regard to the subsequent hearing, to appoint new or additional psychologists or psychiatrists, if it deems their appointment necessary.

Rule 11.7(c) provides that once the defendant has been determined to be competent the trial on the criminal charge shall commence. However, it also gives the defendant the right to require that the proceedings shall begin anew when there are reasonable grounds to believe that the defendant was prejudiced by the earlier incompetency. A defendant who was unable to comprehend the nature of a proceeding might well have been unable to present defenses at that proceeding. There may also be a constitutional issue of speedy trial involved. See comment to Rule 11.6.

Rule 11.7(d) directs the trial court, upon a finding that the defendant is still incompetent, to reconsider the alternatives presented in Rule 11.6(c)(2) and (c)(3). Jackson held that the defendant’s continued commitment must be justified by an appropriate showing by the State. The initial findings of the court or jury are not relevant to the court’s options at this point. The issues of the defendant’s mental condition and dangerousness must be considered anew.