EQUAL JUSTICE
    Self - Advocacy Workbook

Introduction

Chapter 1
Advocacy, Preparations & Strategies

1-1 Introduction
1-2 Police Contact
1-3 Arrest
1-4 Arraignment
1-5 PreTrial    
1-6 Trial

1 QUIZ
1 ANSWERS

Chapter 2
Prevention

2-1 Aiding & Abetting
2-2 Conspiracy
2-3 Delivery of Controlled Substance

 

                     

 

CHAPTER ONE
ADVOCACY, PREPARATIONS & STRATEGIES

5.  PRE-TRIAL

A.  Competency

When there is any question about the person's "ability to assist in his/her own defense  a competency evaluation should be requested. 

Someone's ability to assist in his/her own defense may include the person's:

  • ability to remember;

  • ability to get to court on the proper days;

  • ability to differentiate between/understand right and wrong; and

  • ability to communicate effectively with his/her lawyer so the lawyer can present a defense.

Competency, in the criminal justice arena, is not the same as competency under any of the laws governing guardianship.  It is more narrow in scope because the evaluation is supposed to assess whether or not the person is able to assist in their own defense.

A defendant to a criminal charge shag be presumed competent to stand trial He shall be determined incompetent to stand trial only if he is incapable because of his mental condition of understanding the nature and object of the proceedings against him or of assisting in his defense in a rational manner.  The court shag determine the capacity of a defendant to assist in his defense by his ability to perform the tasks reasonably necessary for him to perform in the preparation of his defense and during his trial.3

"If the person is found to be not competent
(in Michigan), or not able to assist in his/her own defense:

   The charges may be dropped by the prosecutor, or

   a 15-month program can be put in place designed to "make the person competent" or "able to assist in his/her own defense."

Additionally, this 15-month period can also be "served"  by the individual at home.  But, you must advocate for this! 

If the prosecutor chooses not to drop the charges, but the evaluator has determined that even a 15-month program could not make the person competent, the 15-month period will run and at its end charges will be dropped and the case closed.

B. Advocacy Challenges Regarding Competency

      The issue of legal competency is often frustrating for those supporting and advocating for the accused person for several reasons.  At times, it can be a lengthy process.  Once the judge orders the evaluation, it may take some time before the evaluation can be scheduled, and then it will take additional time before the report is written.  For many people with cognitive/communication disabilities, both the evaluation and all the waiting can be stressful, and the appropriate support should be provided.

Another difficulty with competency evaluations is the variety in evaluators and the subjectivity of the evaluator's conclusions.  Many forensic evaluators are accustomed to working with persons who have psychiatric disabilities, but few have experience with persons who have cognitive/ communication disabilities.  It is very possible for evaluators to wrongly determine competence because they do not understand the nature of various cognitive disabilities.

For instance, an evaluator who may have some experience with persons with mental retardation, may have never worked with someone who has incurred a brain injury (either before or after birth).  Persons with brain injuries may present well socially and may have typical IQs.  But, many have serious problems with judgment, impulse control, memory, focus and sensory integration.  This is particularly true when the brain injury occurred prior to birth due to the consumption of alcohol by a pregnant woman. 

 

Written by: Melissa King, Attorney-at-Law,  King Law Offices; Karen Wolf-Branigin, Wayne State University, Developmental Disabilities Institute; Rachel Pinsky Law Graduate, Wayne State University; Robert Lasker, Belinda Land, Vendalia Collins, Cheryle Trommater, Marsha Katz,
The project staff extend our sincere appreciation to the over 50 people who generously donated their time, support and expertise to the Equal Justice initiative.  Though we cannot thank everyone individually, we particularly acknowledge the following groups and individuals.
The Curriculum Design Board who identified competencies, reviewed materials and curriculum drafts: Jeanice Dagher-Margosian, Michelle James-Mann, Florence Kozak, Gary Margosian, Mark Ptaszek, Penny Ryder, Donna Sabourin, Jim Soden, Bob Stein, Ted Wybrecht
The field test participants and field site coordinators who attended the training in the very earliest stages: Sarah Irvine. People First of Oakland Count

First Edition Spring 1998 --
Equal Justice is a collaborative partnership between Washtenaw Association for Community Advocacy and Wayne State University Developmental Disabilities Institute.  This material was developed and disseminated with funding from the Michigan Developmental Disabilities Council Grant 96620