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THE 2006 PRACTITIONER'S GUIDE TO - Washington Association of

VIEWS: 6 PAGES: 137

									                                THE 2008 PRACTITIONER’S GUIDE TO
                                    HANDLING COMPETENCY AND
                        INSANITY ISSUES IN COURTS OF LIMITED JURISDICTION



                                          By Michael J. Finkle
                                  Assistant City Attorney Supervisor
                                 Public and Community Safety Division
                                    Seattle City Attorney’s Office1



                                                  Prepared for

                        Washington State Association of Municipal Attorneys
                                        Spring Conference
                                      April 30-May 2, 2008
                                     Whistler, B.C., Canada




1
  This Guide reflects the views and conclusions of the author; those views and conclusions are not necessarily those
of the Seattle City Attorney, the Seattle City Attorney’s Office, or any division or section thereof. The author makes
neither express nor implied warranties in regard to the use of these materials and/or forms. Each attorney must
depend upon his or her own legal knowledge and expertise in the use or modification of these materials. If you
would like to receive e-mail copies of this Guide or any of the form orders contained in the exhibits, please contact
the author by telephone at 206-684-7734, or by e-mail at mike.finkle@seattle.gov.


                                                      Page 1
                                                 TABLE OF CONTENTS

PART I—INTRODUCTION. ...................................................................................................... 7
PART II—THE BASICS.............................................................................................................. 7
     A.   Relevant Statutory Schemes................................................................................. 7
          1.      What statutory provisions should I become familiar with? .................. 7
          2.      Will you cover civil commitment in this Guide? .................................... 8
     B.   Defining the Terms. .............................................................................................. 8
          1.      Why should I read the glossary of terms in question 2? ....................... 8
          2.      What are some of the important words and phrases I should know? . 8
PART III—SUMMARY OF RELEVANT STATUTORY PROVISIONS. .......................... 12
     A.   Initiating the Process. ......................................................................................... 12
          1.      What are the primary statutory provisions I should look at as a
                  starting point? ......................................................................................... 12
          2.      Which provision starts the competency or sanity process? ................ 12
          3.      How does the process start? ................................................................... 13
          4.      What is the first step in the process? ..................................................... 13
     B.   Finishing the Process. ......................................................................................... 14
          1.      What happens if the Court finds a nonfelony defendant is
                  incompetent? ........................................................................................... 14
          2.      What happens if a nonfelony defendant is acquitted by reason of
                  insanity? ................................................................................................... 14
          3.      But what about RCW 10.77.065, which you haven’t mentioned yet? 14
PART IV—COMPETENCY ISSUES....................................................................................... 14
     A.   How and When Competency Issues Arise. ....................................................... 15
          1.      Is there a stage in the criminal case at which competency is more
                  likely to be raised? .................................................................................. 15
          2.      Even though most issues arise at in-custody arraignment, what about
                  out-of-custody cases? .............................................................................. 15
          3.      Can competency issues arise after a disposition in a case? ................. 16
          4.      Are there times when the Court should retract the evaluation order?
                  ................................................................................................................... 16
     B.   Concurrent Criminal Proceedings in Other Court Systems. .......................... 17
          1.      What happens if the defendant is facing competency proceedings in a
                  nonfelony case in another municipal or district court? ....................... 17
          2.      How should the Friendly Municipal Court proceed in the preceding
                  example? .................................................................................................. 17
          3.      What if the other competency matter is a felony? ............................... 18
          4.      How would Friendly Municipal Court obtain information from the
                  simultaneous Urban District or Urban Superior Court matter? ....... 18
     C.   Concurrent Civil Commitment Proceedings in Other Court Systems. ......... 19
          1.      What happens if a restoration-eligible defendant is arraigned on the
                  criminal charges and then civilly committed?...................................... 19
          2.      What are the Courts’ options for handling the preceding issues? ..... 20
          3.      Does the analysis change if the defendant is competent at the time he
                  or she is civilly committed? .................................................................... 21



                                                              Page 2
     4.          What happens if the defendant is civilly committed before
                 arraignment can take place? .................................................................. 21
     5.          What happens with the time-for-trial period if competency is at issue
                 but arraignment can’t occur because the defendant has been civilly
                 committed out of the jail?....................................................................... 22
     6.          What happens with the time-for-trial period if it is not known
                 whether competency at issue but arraignment cannot occur because
                 the defendant has been civilly committed out of the jail? ................... 22
     7.          What are the alternatives when time-for-trial period would expire
                 before the civil commitment ends. ......................................................... 23
D.   Conducting the Competency Hearing. .............................................................. 23
     1.          What is the burden of proof, and who bears it?................................... 24
     2.          What is a mental disease or defect?....................................................... 24
     3.          How much understanding of the proceedings must the defendant
                 possess to be competent? ........................................................................ 25
     4.          What is encompassed in being able to assist in one’s own defense?... 25
     5.          How does the defendant’s IQ level enter into the equation? .............. 25
     6.          What about other impediments to communication? ........................... 26
     7.          What about the defendant’s ability to help choose trial strategy? ..... 27
     8.          Is there a different standard for a defendant’s competency to waive
                 rights?....................................................................................................... 27
     9.          What are the logistics of the competency hearing?.............................. 28
E.   Competency Restoration Treatment for Incompetent Nonfelony Defendants.
     ............................................................................................................................... 28
     1.          What happens if the Court finds the defendant incompetent? ........... 28
     2.          What is a “serious offense”? .................................................................. 28
     3.          What happens if an incompetent nonfelony defendant is charged with
                 a “serious” offense?................................................................................. 29
     4.          What does competency restoration treatment consist of?................... 29
     5.          How long is the inpatient treatment period? ........................................ 29
     6.          How long is the outpatient treatment period? ...................................... 30
     7.          What if it appears from the outset that the defendant is unlikely to be
                 restored? .................................................................................................. 31
     8.          What happens if the defendant is restored to competency before the
                 end of the restoration treatment period? .............................................. 31
     9.          What happens if a restoration-eligible defendant is not restored after
                 treatment, or if treatment is unlikely to succeed? ................................ 31
     10.         How does the process work for in-custody defendants?...................... 31
     11.         How does the process work for out-of-custody defendants?............... 32
     12.         What happens if the defendant is not restoration-eligible? ................ 32
     13.         Is there anything I should do to help the civil commitment evaluation
                 process? .................................................................................................... 33
F.   Delays in In-Jail Competency Evaluations or in Transports for Inpatient
     Competency Evaluations or Restoration Treatment. ...................................... 34
     1.          Can the defendant obtain a dismissal if the evaluation is delayed, or if
                 the defendant’s transport to Western or Eastern for either a



                                                    Page 3
           competency evaluation or for competency restoration treatment is
           delayed? ................................................................................................... 34
     2.    Can the defendant ask the Court to resume the time-for-trial period if
           there is a delay in the evaluation or transport for the evaluation? .... 34
G.   Involuntary Medication as Part of Competency Restoration Treatment. ..... 34
     1.    Is there a seminal case on the issue of involuntary medication to
           restore competency? ............................................................................... 35
     2.    How did the Supreme Court define the issue? ..................................... 35
H.   Involuntary Medication as Part of Competency Restoration Treatment. ..... 35
     1.    What is the Holding of the Sell Opinion? ............................................. 35
     2.    How does the Court determine whether a particular crime is
           “serious” for purposes of competency restoration treatment? ........... 36
     3.    What is the burden of proof for establishing the four Sell criteria? .. 36
     4.    What constitutes an important governmental interest? ...................... 36
     5.    How does one establish that involuntarily medication will significantly
           further that governmental interest? ...................................................... 37
     6.    What is involved in establishing that involuntary medication is
           necessary to further the important governmental interest? ............... 38
     7.    What does “medically appropriate” mean in terms of competency
           restoration treatment and medication? ................................................ 38
     8.    Can a court order restoration treatment in a “non-serious” case? .... 38
I.   Competency, Sentencing and “Probation” Matters. ....................................... 38
     1.    What are you including in the term “probation” matters? ................ 39
     2.    Are the competency standards the same for defendants at the
           sentencing or “probation revocation” stage as for the pre-disposition
           stage? ........................................................................................................ 39
     3.    Are there any procedures that are the same as for pre- and post-
           disposition cases? .................................................................................... 39
     4.    What about the competency restoration process—can the Court order
           the defendant to engage in competency restoration treatment? ......... 39
     5.    What are my options if the defendant is incompetent to proceed to
           sentencing?............................................................................................... 40
     6.    What happens to the Court’s jurisdiction if the defendant is
           incompetent to proceed with a probation revocation hearing? .......... 41
     7.    How long will probation be tolled if the defendant is incompetent? .. 41
     8.    Can the Court modify any terms of probation while the defendant is
           incompetent? ........................................................................................... 41
     9.    If the Court cannot revoke probation, and if the defendant
           nevertheless remains on probation, what happens to the duties and
           responsibilities of the probation officer? .............................................. 42
J.   Time-for-trial Issues. .......................................................................................... 42
     1.    How do competency issues impact the time-for-trial rules? ............... 42
     2.    How do the time-for-trial rules apply to dispositional continuances
           and deferred prosecutions? .................................................................... 42
     3.    What happens if competency is at issue and there are simultaneous
           criminal proceedings in another court? ................................................ 42



                                                Page 4
                 What if it is unclear whether competency is at issue and there are
                    4.
                 simultaneous criminal proceedings in another court? ........................ 43
          5.     Can simultaneous civil commitment proceedings in another court
                 have an impact on the time-for-trial rules in a pending criminal case?
                 ................................................................................................................... 43
          6.     What would that impact be if the criminal court has no information
                 available to it about the simultaneous civil commitment matter? ...... 44
          7.     How about if the criminal court does have information available to it
                 about the simultaneous civil commitment matter? .............................. 44
PART V—DMHP REFERRALS UNDER RCW 10.77.065. .................................................. 45
     A.   Steps Taken Prior to Actual Referral. .............................................................. 45
          1.     How does this process start rolling? ...................................................... 45
          2.     What are the consequences if the evaluator recommends a civil
                 commitment referral? ............................................................................. 46
          3.     When must the evaluator provide the recommendation? ................... 46
     B.   Making the Actual Referral. .............................................................................. 46
          1.     How does the referral come about under the “prior to release” prong?
                 ................................................................................................................... 46
          2.     How does the referral come about under the “if defendant acquitted”
                 prong? ...................................................................................................... 47
          3.     How does the referral come about under the “dismissal” prong? ..... 48
PART VI—INSANITY ISSUES. ............................................................................................... 48
     A.   Procedural Setting. ............................................................................................. 48
          1.     What is the test for insanity in Washington? ....................................... 48
          2.     How does a defendant assert an insanity defense? .............................. 48
     B.   Evaluation Process. ............................................................................................. 49
          1.     How does the defendant obtain an insanity evaluation? ..................... 49
          2.     What about the prosecution—do we have the right to have our own
                 independent expert?................................................................................ 49
          3.     Should I ever consider stipulating to an insanity plea before the
                 defendant is evaluated? .......................................................................... 50
     C.   Presenting the Defense. ....................................................................................... 50
          1.     Can the defendant present an insanity defense prior to trial? ........... 50
          2.     What can I expect if the defendant pleads insanity at trial?............... 50
     D.   Effect of Insanity Acquittal. ............................................................................... 51
          1.     What happens if the defendant is acquitted by reason of insanity? ... 51
          2.     What is the maximum length of time that a defendant who is
                 acquitted by reason of insanity can be committed for inpatient
                 treatment or subjected to outpatient treatment via conditional
                 release? ..................................................................................................... 51
          3.     What is the procedure if the defendant violates the terms of his/her
                 conditional release? ................................................................................. 51
     E.   Diminished Capacity Distinguished. ................................................................. 52
          1.     What is the “diminished capacity” defense? ........................................ 52
          2.     How does the defendant establish a diminished capacity defense? .... 53




                                                              Page 5
                    Does the prosecution have the right to have its own independent
                    3.
                    expert? ...................................................................................................... 53
            4.      What does the phrase “mental disorder not amounting to insanity”
                    mean? ....................................................................................................... 53
            5.      This sounds complicated. Is there a leading case that might help
                    explain diminished capacity a bit more? .............................................. 54
PART VII—USING MODEL FORM ORDERS. .................................................................... 54
      A.    Initial Competency Evaluation—Exhibit 6. ..................................................... 55
            1.      Need for Evaluation. ............................................................................... 55
            2.      Custody Status and Defendant’s Presence. .......................................... 55
            3.      Status of the Case. ................................................................................... 55
            4.      Order for Evaluation. ............................................................................. 56
            5.      Transmittal of Records; Transport Orders; Ancillary Orders. ......... 57
      B.    Order Retracting Competency Evaluation—Exhibit 7. .................................. 58
      C.    Competency Restoration Order—Exhibit 8. .................................................... 58
            1.      Findings of Fact. ...................................................................................... 58
            2.      Orders Regarding Treatment for Restoration of Competency. ......... 58
            3.      Orders upon Completion of Treatment Period. ................................... 59
            4.      Transport Orders. ................................................................................... 59
      D.    Order Finding Defendant Competent—Exhibit 9. .......................................... 59
      E.    Dismiss and Refer—Unsuccessful or Unlikely Restoration—Exhibit 10. ..... 60
      F.    Dismiss and Detain—Ineligible for Treatment—Exhibit 11........................... 61
      G.    Strike and Refer--Probation Revocation—Exhibit 12. ................................... 61
      H.    RCW 10.77.065 Referral—Exhibit 13............................................................... 62
      I.    Insanity/Diminished Capacity Evaluation—Exhibit 14. ................................. 62
      J.    Insanity Acquittal Order—Exhibit 15. ............................................................. 63
            1.      Findings of Fact. ...................................................................................... 63
            2.      Judgment of Acquittal by Reason of Insanity. ..................................... 63
            3.      Orders Regarding Defendant’s Treatment or Discharge.................... 63
PART VIII--CONCLUSION. .................................................................................................... 64
Exhibit 1:  Comparison of Issues Relating to Competency, Insanity, Diminished
            Capacity, & Civil Commitment in Nonfelony Cases ....................................... 65
Exhibit 2:  The 2008 Introduction to the Mental Health Civil Commitment Law .......... 66
Exhibit 3:  Summary of Nonfelony Competency Evaluation and Restoration Process .. 76
Exhibit 4:  The 2008 Primer on Conducting Involuntary Medication Hearings ............. 77
Exhibit 5:  Guide to Using MIO Form Orders .................................................................... 91
Exhibit 6:  Initial Competency Evaluation .......................................................................... 93
Exhibit 7:  Order Retracting Competency Evaluation ..................................................... 100
Exhibit 8:  Competency Restoration Order....................................................................... 102
Exhibit 9:  Order Finding Defendant Competent ............................................................. 110
Exhibit 10: Dismiss and Refer—Unsuccessful or Unlikely Restoration .......................... 113
Exhibit 11: Dismiss and Detain—Ineligible for Treatment .............................................. 118
Exhibit 12: Strike and Refer—Probation Revocation Hearing ........................................ 121
Exhibit 13  RCW 10.77.065 Referral .................................................................................. 125
Exhibit 14: Insanity/Diminished Capacity Evaluation ...................................................... 127
Exhibit 15: Insanity Acquittal Order .................................................................................. 130



                                                             Page 6
PART I—INTRODUCTION.

        One of the most challenging areas of misdemeanor2 practice in courts of limited
jurisdiction is handling a case in which the defendant has severe mental health issues. The
competency statutes seem complicated at first glance; take a quick look at the provisions of
RCW 10.77.084 and 10.77.088 if you need convincing. But when translated into everyday
English, the statutes aren’t as daunting as they look.

        The purpose of this Guide is to provide a basic approach to handling competency and
insanity issues in courts of limited jurisdiction. Those who have seen prior editions of this
Competency Guide may not recognize the new and (hopefully) improved version, but in my
experience, a “Frequently Asked Questions” format can serve as the perfect vehicle for
deciphering complicated-looking statutes.3

        As with prior editions, the 2008 version comes complete with model orders for handling
the vast majority of circumstances likely to arise, and a Primer for conducting hearings on the
issue of involuntary medication to restore competency to stand trial. Practitioners need to tailor
the forms and the suggestions in the Primer to their specific situation or jurisdiction. This year’s
Guide also contains a new feature: a summary of civil commitment law.

       Parts II and III of this Guide define common terms of art used in the mental health field
and throughout the Guide, and summarize some of the relevant statutory provisions. Part IV
introduces the topics of competency to stand trial and competency to participate in post-
judgment matters such as sentencing or probation revocation hearings. It discusses the stages at
which competency may arise, and describes in detail the practical issues and conceptual
problems that may be encountered. Part V highlights special responsibilities of the Court. Part
VI discusses insanity issues, as well as the diminished capacity defense. Finally, Part VII
discusses the various form orders in detail, and explains the purpose of the different provisions in
them.

PART II—THE BASICS.

        A.       Relevant Statutory Schemes.

                 1.       What statutory provisions should I become familiar with?

       There are two primary sources of law relating to mental health issues that affect criminal
cases. RCW Ch. 10.77 governs competency, insanity and diminished capacity in felony and
nonfelony criminal proceedings. RCW Ch. 71.05 governs civil commitment proceedings for

2
   A misdemeanor is punishable by up to 90 days in jail. A gross misdemeanor is punishable by between 91 and 365
days in jail. See generally RCW 9A.20.010. The phrase “misdemeanor” is often used as a euphemism for both
misdemeanors and gross misdemeanors; a more accurate description is “nonfelony”. The phrases “misdemeanor”
and “nonfelony” are used interchangeably in this Guide, and include all nonfelony criminal charges, other than those
involving juveniles, regardless of the maximum possible punishment.
3
  In any event, a format changed has become necessary because substantial portions of the earlier 2006 Competency
Guide appear in Finkle, Washington’s Criminal Competency Laws: Getting From Where We Are To Where We
Should Be, 5 Seattle Journal for Social Justice 201 (2006), which is copyrighted by the Journal.


                                                     Page 7
adults based on a mental disorder.4 By statute, civil commitment proceedings are handled by the
county prosecutor or by the Attorney General’s Office, depending on the nature and location of
the hearing.5

                  2.       Will you cover civil commitment in this Guide?

       This Guide focuses on RCW Ch. 10.77, although it refers occasionally to relevant
provisions of RCW Ch. 71.05 and other laws and court rules.6

         B.       Defining the Terms.

                  1.       Why should I read the glossary of terms in question 2?

        As lawyers, we are programmed from birth (i.e., from the start of law school) to use
jargon. Jargon is like another language to an outsider, and can lead to misunderstanding and
miscommunication. The areas of competency and insanity in the criminal arena have their own
jargon, and it is easy to become confused or to misunderstand issues unless one is familiar with
several terms. As with any language, some terms are in general use, while others are specific to
geographic areas.

                  2.       What are some of the important words and phrases I should know?

        Civil Commitment (aka Involuntary Commitment). Civil commitment refers to a
proceeding under RCW Ch. 71.05 to commit an adult involuntarily for mental health treatment at
a mental health evaluation and treatment facility. The treatment may be either on an inpatient
basis or an outpatient basis. Following an initial DMHP-initiated detention for up to 72 hours,
the evaluation and treatment facility or the DMHP refers the case to the county prosecutor, who
declines to proceed or presents the case to the Superior Court.

        A civil commitment proceeding is often confused with competency or sanity proceedings
under 10.77, but they are separate proceedings brought in different courts. A person can be
incompetent, or civilly committable, or both, at the same time. A person may be initially civilly
detained for a 72-hour period, followed by an inpatient commitment for a 14-day period,
followed by a 90-day inpatient period, and followed by a 180-day inpatient period. The
commitment is renewable for 180-day inpatient periods as long as the person continues to meet
the civil commitment criteria. An inpatient commitment is commonly referred to as a “More
Restrictive Order” (See More Restrictive Order below.) In lieu of 14-day, 90-day or 180-day
inpatient commitments, a Less Restrictive Order into an outpatient treatment program may be
imposed. (See Less Restrictive Order below.)

4
  RCW Ch. 70.96A applies to involuntary commitment of adults based on alcoholism or chemical dependency.
RCW Ch. 71.34 applies to involuntary commitment of minors based on a mental disorder. All references in this
Guide to “civil commitment” are solely to proceedings pursuant to RCW Ch. 71.05.
5
  See RCW 71.05.130.
6
  All statutory references and references to CrRLJ rules are to the statutes and CrRLJ effective as of 90 days from
the end of the most recent legislative session, unless otherwise specifically noted. In the absence of an emergency
clause, legislative enactments take effect 90 days after the end of the legislative session. WA Const. Article II, sec.
41. Emergency enactments take effect when signed by the Governor. WA Const. Article II, sec. 1(b).


                                                      Page 8
     For a more detailed discussion of the civil commitment process, please refer to the
“Summary” attached as Exhibit 1.

       Competency. This is a statutory term. A defendant is competent if he or she has the
capacity to understand the nature of the proceedings against him or her or to assist in his or her
own defense. A defendant is incompetent if, as a result of mental disease or defect, he or she
lacks such capacity.7 In other words, there must be a causal connection between the mental
disease or defect and the defendant’s capacity. Competency is determined at the time of the
particular proceeding. The provisions of RCW Ch. 10.77 apply to both felonies and
nonfelonies.8

       Conditional Release (aka CR). The term is fully defined in RCW 10.77.010(3).9 As
used in this Guide in the context of a misdemeanor prosecution, a conditional release generally
means that the defendant is released from custody to an outpatient treatment program following
proceedings under RCW Ch. 10.77.

       For competency proceedings, a nonfelony defendant who has been found incompetent
and who has the requisite history can be conditionally released from custody to undergo up to 90
days of outpatient competency restoration treatment. For insanity proceedings, a nonfelony
defendant who has been acquitted by reason of insanity and about whom the requisite factual
findings have been made can be conditionally released to an outpatient treatment program.

        This phrase is also used in mental health contexts beyond nonfelony prosecutions, such as
in the civil commitment context.10 As used in this Guide, the phrase is limited to its meaning
under RCW Ch. 10.77.

        Deferred Prosecution. This is a specialized statutorily created form of Dispositional
Continuance. The deferred prosecution statute, RCW Ch. 10.05, limits deferred prosecutions to
cases in which the nonfelony criminal conduct charged is the result of or caused by alcoholism,
drug addiction or mental problems.11

        Diminished Capacity. This is a defense to a criminal charge based on the defendant’s
lack of capacity to form the particular state of mind required by the charge. It is a challenge to
one of the elements of the crime, namely, the state of mind. Unlike the Insanity defense, a
successful diminished capacity defense will automatically result the defendant’s immediate
release.



7
  RCW 10.77.010(14).
8
  See State v. Wicklund, 96 Wn.2d 798, 801-804 (1982).
9
   According to the subsection, the phrase “means modification of a court-ordered commitment, which may be
revoked upon violation of any of its terms.” The term “commitment” is defined in RCW 10.77.010(2) as “the
determination by a court that a person should be detained for a period of either evaluation or treatment, or both, in an
inpatient or a less-restrictive setting.”
10
   See RCW 71.05.020(5).
11
   RCW 10.05.020(1).


                                                       Page 9
        Dispositional Continuance (or Stipulated Order of Continuance). The phrase
“dispositional continuance” refers to an agreement between the prosecution and defense in which
the case is continued upon certain conditions without a formal entry of a guilty finding. If the
defendant completes the conditions, the charge is amended or dismissed. If the defendant does
not complete the conditions, the prosecution must bring a revocation hearing, which is similar to
a probation violation hearing in a case in which the Court has entered a finding of guilty. If the
Court revokes the dispositional continuance, the Court reads the police report and determines
solely from that whether the defendant is guilty of the charges. In some jurisdictions, a
dispositional continuance is referred to as a Stipulated Order of Continuance, or SOC.

         DMHP. The letters literally stand for the words “Designated Mental Health
Professional.” Every county must have a DMHP, who initiates the civil commitment process
under RCW Ch. 71.05 when the statutory requirements are met. 12 In a so-called “emergency
petition,” the DMHP initiates the civil commitment process by having a person taken into
emergency custody at an evaluation and treatment facility for up to 72 hours. 13 In a so-called
“non-emergency petition,” the DMHP initiates the process by filing a petition asking the
Superior Court to issue an order requiring the person to be detained at an evaluation and
treatment facility for up to 72 hours.14 In some counties, such as King County, the DMHP is
actually a group of mental health professionals (MHPs) who are employed directly by the
county. In other counties, the DMHP is a mental health professional (or group of them) who
provides services to the county on a contract basis. DMHPs are MHPs with specialized training
in crisis work and the civil commitment statutes.

        DSHS. This refers to the state Department of Social and Health Services. Among its
other responsibilities, DSHS administers Eastern and Western State Hospitals.

       Eastern, or Eastern State Hospital. Eastern is one of the two state-run psychiatric
hospitals, and is located in Spokane County. The other is Western State Hospital, which is
located in Pierce County.

       Inpatient. If a person receives either evaluation or treatment as a patient admitted to a
hospital facility, then that person is considered to be on an inpatient basis. For example, if a
criminal defendant is evaluated for competency at Eastern, that defendant is being evaluated on
an inpatient basis. See also Outpatient below.

        Insanity. See Sanity below.

        Involuntary Commitment. See Civil Commitment above.

       Less Restrictive Order (aka LRO). If the Superior Court finds that, as a result of a
mental disorder, a person presents a likelihood of serious harm or is gravely disabled, the Court

12
    RCW 71.05.020(10). Prior to July 1, 2005, the statutory phrase was “County Designated Mental Health
Professional”, or CDMHP. The legislature changed the phrase to reflect that the mental health professional could be
designated by either a county or by any other “authority authorized in rule.” See id.
13
   See RCW 71.05.153.
14
   See RCW 71.05.150.


                                                    Page 10
may order the person into either inpatient or outpatient treatment for a period of 14, 90 or 180
days. If the Court orders inpatient treatment, the person may still be released into outpatient
treatment. The outpatient treatment, whether ordered initially or as a release from inpatient
treatment, is referred to as a less restrictive order (LRO). Typically, this less restrictive order
involves placement somewhere in the community. If a person violates the terms of an LRO, the
LRO can be revoked and the person placed into inpatient treatment. An LRO applies only in
the context of a civil commitment proceeding, and should be distinguished from outpatient
competency restoration treatment.

        MHP. The letters stand for “mental health professional”, and refer to any professional in
the mental health area. This is a term of art in the mental health field, and is defined differently
in different statutes. In the context of RCW Ch. 10.77, MHP is not defined, although a
“professional person” is a duly licensed psychiatrist or psychologist, or a social worker with a
masters or further advanced degree. But under RCW Ch. 71.05, a “mental health professional”
can also include psychiatric nurses and others as defined by rule of the Department of Social and
Health Services.15

        More Restrictive Order (aka MRO). If the Superior Court orders a person into
inpatient treatment pursuant to a civil commitment proceeding, the order is often referred to as a
more restrictive order (MRO). If a defendant is released from inpatient treatment to outpatient
treatment, then the MRO has been converted to an LRO. An MRO applies only in the context
of a civil commitment proceeding, and should be distinguished from inpatient competency
restoration treatment.

        Outpatient. If a person receives either evaluation or treatment as a patient in a manner
other than as an admitted patient to a hospital or at a location other than the hospital facility, then
that person is considered to be on an outpatient basis. For example, if a criminal defendant is
evaluated for competency in the King County Jail facility, that defendant is being evaluated on
an outpatient basis, even though he/she is not free to leave the jail facility. See also Inpatient
above.

       Probation. A nonfelony defendant who has pled guilty, or been found guilty, will be
given either a deferred sentence or a suspended sentence, subject to various conditions such as
commit no criminal law violations. There may be other conditions such as obtaining treatment,
having no contact with an alleged victim, etc. Such a defendant is often referred to as “being on
probation.” A defendant who reports to a probation officer or whose compliance with conditions
is monitored by a probation officer is considered on “formal” or “monitored” probation. A
defendant who does not report to a probation officer and whose compliance with conditions is
not monitored except by way of a court hearing is considered on “informal” or “non-monitored”
probation. A defendant who has entered into a dispositional continuance (see above) or a
deferred prosecution16 is not on probation in the strictest sense of the word. But as a matter of

15
   Compare RCW 10.77.010(17) with RCW 71.05.020(25), (28)-(30).
16
   See RCW Ch. 10.05. This is a statutory form of dispositional continuance, in the sense that there is no formal
finding of guilt entered unless the defendant fails to comply with the conditions of the deferred prosecution. In
most, if not all, court systems, a defendant’s compliance with the terms of a deferred prosecution are monitored
through formal probation.


                                                   Page 11
general practice within the state, such a defendant is treated as if he/she is on probation in the
same way as a defendant who has actually been found guilty.

        Probation Violation. Probation violation refers to a circumstance in which a defendant
has failed to comply with a condition of probation. A defendant has a right to a hearing before a
judge on the issue of whether he/she has committed the probation violation. In practice,
essentially the same standard is applied whether the nonfelony defendant’s “probation” is on a
deferred or suspended sentence on the one hand or a dispositional continuance on the other hand.

         Sanity. This is a statutory term. It refers to a defendant’s capacity, at the time of the
alleged offense, to perceive the nature and quality of the act(s) with which he or she is charged or
to tell right from wrong with reference to the particular act(s) charged. A defendant who lacked
that capacity at the time of the offense as a result of mental disease or defect is entitled to be
acquitted by reason of insanity. 17 Sanity is determined at the time of the alleged offense.

        Stipulated Order of Continuance or SOC. See Dispositional Continuance above.

        Western, or Western State Hospital. See Eastern, or Eastern State Hospital above.

        For a summary of the differences between competency, insanity, diminished capacity and
civil commitment, please refer to the chart at Exhibit 1. For a broader discussion of civil
commitment, please refer to Exhibit 2.

PART III—SUMMARY OF RELEVANT STATUTORY PROVISIONS.

        A.       Initiating the Process.

                 1.       What are the primary statutory provisions I should look at as a
                          starting point?

       The primary statutory provisions which govern competency and insanity issues are: RCW
10.77.030, 10.77.040, 10.77.060-.093, and 10.77.110. Salient portions of those provisions are
summarized in this section, but are discussed in greater detail in the application portions of this
Guide. Exhibit 3 contains a summary of the competency evaluation and restoration processes
involving competency to stand trial.

                 2.       Which provision starts the competency or sanity process?

       RCW 10.77.060 sets out the procedure for evaluating a criminal defendant for
competency and sanity. Note that the process is the same for each issue, and the statute does not
appear to be limited to issues of competency to stand trial. The Court, defense attorney or
prosecutor may place competency at issue.18

17
  RCW 9A.12.010.
18
  Note that there is a vast difference between a defense attorney simply raising the issue of competency, on one
hand, and testifying at a hearing or trial on the issue of competency, on the other hand. See State v. Webbe, 122
Wn.App. 683 (2004), a Division One case. In Webbe, one of the defense attorneys sought to testify at a jury trial on


                                                    Page 12
                  3.       How does the process start?

        If there is reason to doubt a defendant’s competency, then on motion of a party, or on its
own motion, the Court must appoint a panel of at least two qualified experts, one of whom shall
be approved by the prosecutor. If the parties agree, the Court may designate a single evaluator.19
Sometimes the defense seeks to have its own expert appointed to examine the defendant’s
competency or sanity, pursuant to RCW 10.77.070.20 While the defense may be entitled to do
so, that does not abrogate the statutory requirement that the Court appoint a panel of experts, at
least one of whom the prosecution approves.

        RCW 10.77.080 sets forth the procedure for raising a motion for acquittal by reason of
insanity prior to trial. RCW 10.77.030 sets forth the time frame within which a defendant must
assert the defense.

                  4.       What is the first step in the process?

        The defendant must be evaluated for competency or insanity, as applicable. The Court
may order the defendant committed to a “hospital or other suitably secure public or private
mental health facility” for the evaluation, for up to 15 days from the time the defendant is
admitted to the facility.21 If the defendant is held in jail, and if the parties agree, the Court may
authorize that the evaluation occur in the jail.22 The statute does not expressly set forth a time
limit for in-jail evaluations.




the issue of the defendant’s competency. The attorney’s stated intent to testify about his impressions of the
defendant’s competency led to the trial court finding a waiver of the attorney-client privilege. The attorney later
decided not to testify, and prosecutors returned their unredacted copy of the defense attorney’s interview notes with
the defendant. After a hung jury in the first competency trial, a second jury found the defendant competent. The
defendant was subsequently convicted of multiple counts of murder and burglary. Division One upheld the trial
court’s finding that the defense attorney had waived the attorney-client privilege, even though it was made without
the defendant’s consent. Division One also affirmed the convictions, finding that under the circumstances the
“grievous error” did not result in a breakdown in the adversarial process such that prejudice should be presumed.
The defendant did not show any prejudice, nor did Division One find any.
19
   RCW 10.77.060(1)(a).
20
   If the defense does retain an expert pursuant to RCW 10.77.070, the expert’s reports and notes of any examination
of the defendant, and opinions as to sanity or diminished capacity may be discoverable. See State v. Hamlet, 133
Wn.2d 314 (1997) (expert retained for diminished capacity defense; trial court may order disclosure of tests, notes
reports, etc. even if expert will not be testifying as defense witness); State v. Pawlyk, 115 Wn.2d 457 (1990) (expert
retained for insanity defense; State may discover defendant’s statements and expert’s opinion as to sanity, and may
call expert as its own witness without violating defendant’s attorney client privilege). See also RCW 10.77.020(4).
That statute provides that a defendant being evaluated for competency has a right to refuse to answer questions that
might tend to incriminate. But RCW 10.77.020(5) does not give a defendant asserting an insanity defense the same
statutory right. Subsection (5), adopted in 2006, abrogates State v. Carneh, 153 Wn.2d 274 (2004) (defendant
asserting insanity defense has right under RCW 10.77.020(3) to refuse to answer questions of prosecution expert
during evaluation, but prosecution experts can testify to defendant’s refusal to answer questions; defendant entitled
to limiting instruction that jury may not infer insanity from defendant’s reliance on RCW 10.77.020(3)).
21
   RCW 10.77.060(1)(a).
22
   Id..


                                                     Page 13
         B.       Finishing the Process.

                  1.       What happens if the Court finds a nonfelony defendant is
                           incompetent?

        On the substantive side, RCW 10.77.088 requires, in a nonfelony case in which the
defendant is not competent to stand trial, that the Court determine whether the defendant falls
into the “restoration eligible” or the “non-restoration eligible” category, as those terms are used
in this Guide. The Court must order competency restoration treatment for an incompetent
restoration eligible defendant.23 For a non-restoration eligible defendant, the Court has the
following options: stay or dismiss the proceedings and detain the defendant so the DMHP can
evaluate him/her for possible civil commitment; or dismiss the case outright.24

                  2.       What happens if a nonfelony defendant is acquitted by reason of
                           insanity?

        The process for a nonfelony defendant is the same as for a felony defendant who is
acquitted by reason of insanity. Depending on the findings of the trier of fact, the defendant can
be committed or placed on conditional release for a period not to exceed the maximum possible
punishment if he or she had been convicted, or fully discharged.25

                  3.       But what about RCW 10.77.065, which you haven’t mentioned yet?

         Whenever a defendant is evaluated for competency or insanity, the Court should be
cognizant that RCW 10.77.065 requires that it refer a defendant to the DMHP for possible civil
commitment whenever certain criteria are present. Part V contains a full discussion of the
statute.

PART IV—COMPETENCY ISSUES.

        Competency—and insanity—issues can arise in several procedural settings: the defendant
may be in custody; involved in some phase of an inpatient MRO civil commitment; or out of
custody, which includes release within the community on an LRO. Moreover, since competency
is determined at the time of the trial or other hearing, it is possible for competency issues to arise
or disappear at any stage of the criminal proceedings. Most competency issues arise prior to
entry of a finding of guilt. But a competency issue can also arise after a trial or guilty plea but
before sentencing. Or it could arise as part of a probation violation hearing. Each stage at which
competency can arise creates different issues about the application of RCW Ch. 10.77, especially
the provisions relating to competency restoration treatment.

        Competency proceedings follow a natural sequence. First, someone raises the issue,
whether it is the Court, defense, or prosecution. The Court orders an evaluation, and the parties
await the results. Next, the Court holds a hearing at which it makes a finding that the defendant

23
   RCW 10.77.088(1)(a).
24
   RCW 10.77.088(2). As a practical matter, the “stay” authority is seldom if ever used.
25
   RCW 10.77.110.


                                                     Page 14
is competent or incompetent. If the defendant is competent, the criminal proceedings continue.
If the defendant is incompetent and awaiting trial, then all proceedings relating to the defendant’s
competency to stand trial are excluded from the time-for-trial period, beginning on the date the
Court orders the competency evaluation.26 The time-for-trial period begins running again when
the Court enters a written order finding the defendant competent.27

        If the defendant is incompetent, the Court’s actions depend upon the stage of the
proceedings. If the case is at the trial or pretrial stage, the Court must determine whether the
defendant should be ordered to undergo competency restoration treatment. If treatment is
unsuccessful, or if the defendant is not eligible for competency restoration treatment, the Court
must dismiss the matter. Whether the Court refers the defendant for civil commitment
proceedings or releases the defendant outright depends on the facts and circumstances of the
particular case and the applicability of various provisions of RCW 10.77.090.

        If the case is at the sentencing or probation violation stage, the next step is far less clear.

        A.       How and When Competency Issues Arise.

                 1.       Is there a stage in the criminal case at which competency is more
                          likely to be raised?

        More often than not, the Court or one of the parties raises competency at the in-custody
arraignment. A defendant whose mental illness is in an acute stage is more likely to be booked
than released at the scene, and is less likely to be able to post bail.

        The statute authorizes the Court to delay setting bail if the Court commits the defendant
to a hospital or other authorized mental health facility,28 presumably under the theory that a
defendant committed for an inpatient evaluation poses too high a safety risk if he or she bails out
before the commitment commences. But as a practical matter, that provision is virtually never
applied, especially in jurisdictions that have pre-determined bail schedules and personal
recognizance standards: bail or PR has already been set by the time the defendant appears in
Court, which means the bail-delay provision is not available. While there are some nonfelony
charges that require the defendant to appear before a judge before being released, such as
domestic violence or harassment, the effect of the option of delaying granting bail in those
jurisdictions is most likely limited to cases for which there is no bail schedule.

                 2.       Even though most issues arise at in-custody arraignment, what about
                          out-of-custody cases?

        Competency issues are not limited to in-custody cases. Competency issues arise
“whenever . . .there is reason to doubt [the defendant’s] competency. . . .”29 The statute is not
limited to in-custody, and it makes no difference if the defendant is out of custody because he or

26
   CrRLJ 3.3(e)(1).
27
   Id. The Superior Court rule is worded similarly. See CrR 3.3(e)(1).
28
   RCW 10.77.060(1)(b).
29
   RCW 10.77.060(1)(a).


                                                    Page 15
she was never booked into jail, was released on personal recognizance, or posted bail. Indeed,
the bases for setting bail30 apply equally to the mentally ill as to then non-mentally ill.

        Out-of-custody evaluations may be scheduled in several ways. The simplest is for the
Court to order the defendant to schedule the evaluation with Western or Eastern at a mutually
convenient place and time. Defense counsel can and should assist the defendant in setting the
appointment. It is not unheard of for defense counsel to arrange that the evaluation interview
take place in counsel’s office. If the defendant is subject to an MRO, Western or Eastern can
conduct the evaluation at the facility. If the defendant is subject to an LRO, the evaluation can
occur in the same manner as any other out-of-custody matter. A third option of for the Court to
commit the defendant to Western or Eastern, as the case may be, under the authority of RCW
10.77.060(1)(a): for purposes of the evaluation, “the court may order the defendant committed
to a hospital or other suitably secure public or private mental health facility.” There is nothing
that limits such a commitment to defendants who are in custody.

       If the defendant violates the conditions of release,31 the Court could revoke the
defendant’s PR or increase bail. If the defendant could not post the new bail amount, the
evaluation would take place on an in-custody basis.

                 3.      Can competency issues arise after a disposition in a case?

        Yes. “No incompetent person shall be tried, convicted, or sentenced” for an offense so
long as the he or she remains incompetent.32 That section is silent on the issue of probation
violations, though one could argue that a probation violation hearing is a form of “trial” or
“conviction”, and that having punishment imposed for a probation violation is a form of being
“sentenced”. The challenge is dealing with a defendant who (a) has been convicted and is
merely awaiting sentencing, or (b) is facing an allegation of a probation violation.

                 4.      Are there times when the Court should retract the evaluation order?

        As a matter of fact, there are. One example is when a defendant who is awaiting an out-
of-custody competency evaluation fails to appear for a required court appearance, such as a
status hearing. It would make no sense to leave the competency order intact; it might even be
counterproductive, since Western or Eastern would need to keep the case on their “pending” list.
After the bench warrant is served, the defendant may be unable to post bail, which would result
in an in-custody evaluation.

       Another example is when the defense believes that the defendant’s competency is no
longer at issue. Competency can change over time, especially if the defendant has access to




30
   See CrRLJ 3.2. The parameters for felony cases are set out in CrR 3.2.
31
   See CrRLJ 3.2. The parameters for felony cases are set out in CrR 3.2. The specific circumstances that would
constitute a valid legal basis are beyond the scope of this Guide.
32
   RCW 10.77.050 (emphasis added).


                                                  Page 16
medication33 if the defendant appears to defense counsel to be competent at a particular hearing,
it would render the evaluation unnecessary.

        There may be occasions when the one of the parties requests the Court to withdraw, or
retract, the competency evaluation order. There may also be occasions a defense request is
appropriate and the prosecution should concur.

        B.       Concurrent Criminal Proceedings in Other Court Systems.

        The discussion under this section relates only to competency issues involving a pending
nonfelony charge. Sometimes a defendant is also being processed for mental health issues by
more than one court system at the same time. That complicates the process, especially since the
law is not entirely clear about the interplay among the various court systems. The extent to
which the process is complicated depends upon the nature of the other proceeding: a
simultaneous competency proceeding in another criminal court is probably easier to deal with
than a simultaneous civil competency proceeding.

                 1.       What happens if the defendant is facing competency proceedings in a
                          nonfelony case in another municipal or district court?

        Let’s assume that Defendant is charged with a nonfelony in Friendly Municipal Court,
and that competency has not been raised as an issue. Meanwhile, Defendant has another
nonfelony charge pending in Suburban District Court, and competency has been raised as an
issue. Does it automatically follow that the competency proceedings in Suburban District Court
establish per se that competency is at issue in Friendly Municipal Court? In other words, is the
Friendly Municipal Court automatically required to order a competency evaluation?

        As with everything else in the law, the answer depends upon the circumstances. 34 It is
theoretically possible, though unlikely, that a defendant could be competent to stand trial in one
court on one charge or set of charges, yet be incompetent to stand trial in another court on
another charge or set of charges. Competency includes the ability to understand the nature of the
proceedings and to assist in one’s defense. That, in turn, depends to a large extent on the nature
of the proceedings. For example, a defendant may, as a result of mental disease or defect, be
unable to maintain focus and understand what is happening for more than 30-45 minutes at a
time. That defendant would not be competent to proceed with a three-day trial, but might be
competent to proceed to a one-day trial with frequent breaks.

                 2.       How should the Friendly Municipal Court proceed in the preceding
                          example?

      If Friendly Municipal Court has enough information available to determine that
competency is at issue, it could issue a competency evaluation order that piggybacks onto

33
   An in-custody defendant who has a medical prescription can have the prescription filled while in jail. An out-of-
custody defendant can access medication in a number of ways.
34
   The Suburban District Court case will not toll the time-for-trial period in the Friendly Municipal Court case; the
Friendly Municipal Court must first order a competency evaluation. See CrRLJ 3.3(e)(1)..


                                                     Page 17
Suburban District Court’s order, in which case Western or Eastern can conduct one single
evaluation to satisfy both Court’s orders.

         In the alternative, if Suburban District Court’s evaluation occurs in the jail, then the
Municipal Court can have the Defendant present at the next scheduled hearing, and can
determine for itself whether competency is at issue and, if necessary, order a new evaluation.35
If not, then Friendly Municipal Court can enter its own competency evaluation order. Of course,
if Friendly Municipal Court determines that competency is not at issue, the case can proceed. If
the evaluation in the Suburban District Court case takes place at Western, and if Friendly
Municipal Court does not feel comfortable determining that competency is at issue, it can wait
until Defendant is returned to jail and hold its own hearing. If it determines at that point that
competency is at issue, it would need to order a competency evaluation.

                 3.       What if the other competency matter is a felony?

        Let’s change the example slightly, so that the case in which competency proceedings are
pending is Urban Superior Court. The legal issue of whether Friendly Municipal Court must
order a separate evaluation is the same for the example with Suburban District Court. But there
is an additional wrinkle for the Urban Superior Court matter. In felony matters, defendants who
are found incompetent must be placed in a DSHS facility for 90 days of competency restoration
treatment.36 If that treatment is not successful, it is possible for a defendant to be ordered into
further restoration treatment for a period of up to an additional 270 days. 37 What happens in the
Friendly Municipal Court matter if the defendant is at Western or Eastern for 90-365 days of
competency restoration treatment? Unfortunately, the statutes provide no guidance on the issue.
If Friendly Municipal Court ordered a competency evaluation, one option is to continue the
Friendly Municipal Court case until the felony competency matter is resolved. Another option is
to dismiss the Friendly Municipal Court matter without prejudice, and re-file if and when the
Urban Superior Court finds that Defendant’s competency has been restored. The strict privacy
provisions in applicable to competency matters38 render this second option less viable Whether
either of those options is palatable can only be answered on a case-by-case basis.

                 4.       How would Friendly Municipal Court obtain information from the
                          simultaneous Urban District or Urban Superior Court matter?

        A defendant who is involuntarily detained, hospitalized, or committed under RCW
chapter 10.77 has certain privacy rights regarding his or her medical and treatment records.39
Although the defendant’s attorney and the prosecutor in the case that generated the evaluation,
i.e. Suburban District or Urban Superior Court, may receive records and reports, it is not clear
whether the prosecutor or defense attorney in the non-referring court, i.e., Friendly Municipal
Court, can also receive them. RCW 10.77.210(2) authorizes certain records and reports as

35
   It may be worth exploring whether there are any legal impediments to Friendly Municipal Court obtaining a copy
of, and relying upon, the District Court evaluation.
36
   RCW 10.77.086(1).
37
   See RCW 10.77.086(2)-(4).
38
   See RCW 10.77.210.
39
   See RCW 10.77.210 (limiting access to records under RCW Ch. 10.77).


                                                   Page 18
defined in DSHS rules to be made available to “criminal justice agencies” upon request. 40 RCW
10.77.065(4) (emphasis added) permits disclosure to the courts “solely to prevent the entry of
any evaluation or treatment order that is inconsistent with any order entered under chapter 71.05
RCW.” It does not seem to allow for disclosure to prevent entry of inconsistent evaluation or
treatment under simultaneous RCW Ch. 10.77 proceedings.

       Bear in mind that the privacy provisions only apply to reports, records and the like as
generated by the evaluating facility, but not to orders issued by courts in a criminal matters.
Thus, a prosecutor in Friendly Municipal Court could obtain a copy of an order from the
Suburban Superior Court staying the felony proceedings because competency is at issue.

        Sometimes an easy solution to the privacy issue presents itself. For example, if the same
defense attorney or firm represents the defendant in the two separate proceedings, the defense
would be aware of the competency issue. It is this author’s opinion that a criminal defense
attorney must raise with the Court any concerns about the defendant’s competency if known to
the attorney. If the defense attorney truly believed that the defendant was competent for
misdemeanor purposes notwithstanding the competency issue in the felony matter, then the
defense attorney could decline to raise the competency issue. If, on the other hand, defense
counsel felt that competency was still at issue in the misdemeanor case, then the attorney must
raise the issue with the Court.

        Another way to resolve the privacy issue is for the defendant to waive the privacy of the
competency reports and records from the first proceedings. If defense counsel felt it was in the
defendant’s best interests to waive confidentiality, he or she could advise the defendant
accordingly. Whether the defendant is competent to waive confidentiality is a different issue
than whether the defendant is competent to stand trial, and is beyond the scope of this Guide
Nevertheless, the Court and defense counsel will need to consider the validity of any such
waiver.

           C.       Concurrent Civil Commitment Proceedings in Other Court Systems.

        It is becoming more and more common for a nonfelony defendant to be processed by the
civil commitment system at the same time as the criminal matter proceeds. The overlap between
the two systems often complicates the nonfelony criminal proceedings.

                    1.      What happens if a restoration-eligible defendant is arraigned on the
                            criminal charges and then civilly committed?

       If the defendant is arraigned on the nonfelony matter before civil commitment
proceedings begin, then the defendant would have been before the Court, and the Court would
have been able to determine whether competency was at issue. If competency is at issue, the
nonfelony Court can order a competency evaluation, thereby tolling the time-for-trial period.41



40
     For purposes of RCW 10.77.210(2), the phrase “criminal justice agency” is defined in RCW 10.97.030.
41
     CrRLJ 3.3(e)(1)..


                                                     Page 19
        There are three possible outcomes if a competency evaluation is ordered, each of which
presents different issues. The Court could find the defendant: incompetent and in the non-
restoration eligible category; incompetent and in the restoration eligible category; or
competent.42

       If the nonfelony defendant is incompetent and in the non-restoration eligible category at
the time civil commitment proceedings start and is on an MRO, then the nonfelony Court can
simply dismiss the nonfelony matter. Because the defendant is already on an MRO, there is no
basis on which to refer the defendant to the DMHP. If the defendant is on an LRO, the
defendant could be referred for possible revocation of the LRO

       If the nonfelony defendant is incompetent and in the restoration eligible category at the
time civil commitment proceedings start, the nonfelony Court must figure out how to comply
with the requirement that the defendant be ordered into competency restoration treatment.
Unfortunately, RCW 10.77.088(1)(a) does not expressly deal with this fact situation.

                  2.       What are the Courts’ options for handling the preceding issues?

        One alternative is for the Court to take the position that the gap in the statute grants it
inherent authority to interpret RCW chapter 10.77 in a manner consistent with its statutory intent.
The issue of a Court’s inherent authority to interpret a statutory ambiguity is a thorny one, and
neither the Court nor the parties should entertain it without due consideration and research. 43
Another alternative is to wait until the civil commitment proceedings have ended and then order
the defendant into competency restoration treatment. This option works best if the civil
commitment proceedings end following either a 72-hour detention or 14-day MRO commitment.
The defendant can be referred into inpatient competency restoration treatment quickly. If the
defendant is civilly committed for a 90-day LRO, the Court can consider ordering the defendant
into outpatient competency restoration treatment at the same time. If the defendant is civilly
committed for a 90-day MRO, then the Court may consider ordering inpatient competency
restoration treatment at the same time.44

       In the second alternative, the issue of how to bring the defendant back to Court after the
evaluation is a thorny one. The time-for-trial period is not at issue, since it is tolled until the
Court enters a written order finding the defendant competent.45 But the nonfelony Court might
not be comfortable simply staying the criminal proceedings until after the civil commitment
proceeding ends. Even if the Court were comfortable doing so, if the defendant is charged with a


42
   The terms “restoration eligible” and “non-restoration eligible” are defined and discussed in great detail at a later
portion of this Guide.
43
   In State v. E.C., 83 Wn.App. 523 (1996), Division One held that the Juvenile Justice Act takes precedence over
the procedures in RCW Ch. 10.77 if there is a conflict between the two statutory schemes. Thus, the Juvenile
Justice Act does not limit the Juvenile Court’s authority to respond to a particular juvenile offender’s needs, even if
that means declining to follow RCW Ch. 10.77. Strictly speaking, E.C. is not an “inherent authority” case, and this
citation to it is not intended as an analysis of the Court’s inherent authority to interpret RCW Ch. 10.77.
44
   It is also possible for the MRO to be renewed for one or more consecutive 180-day periods. RCW 71.05.320.
That would clearly create even more complexity.
45
   See CrRLJ 3.3(e)(1).


                                                      Page 20
misdemeanor46 and held on bail, staying the proceedings could take the case beyond the
maximum possible 90-day sentence in violation of RCW 10.77.025. The defense might be
inclined to argue that the statute does not authorize an indefinite stay of nonfelony proceedings
for a defendant who is incompetent.

                 3.       Does the analysis change if the defendant is competent at the time he
                          or she is civilly committed?

        If the defendant is competent in the criminal case at the time he or she is civilly
committed, then the criminal case can proceed and the time-for-trial period will begin to run
again. Unless the defendant is civilly committed on a 90-day MRO, the civil commitment
process will not unduly complicate the criminal case; the criminal case can await the end of the
inpatient civil commitment or continue simultaneously with any outpatient civil commitment
treatment.

        If, on the other hand, the civil commitment process results in a 90-day MRO
commitment, then the issue becomes how to bring the defendant back before the Court before the
time trial period expires. If the defendant is unwilling to waive the time-for-trial period, the
prosecution has three options. The first alternative is to rely on some other theory for tolling or
extending the time-for-trial period. The second alternative is to consider making an appealing
settlement offer in the nonfelony case as an added inducement for a time-for-trial waiver. This
alternative should only be considered after evaluating all of the public safety and victim safety
issues. The third alternative is to defer to the civil commitment system by moving to dismiss the
nonfelony case. The difficulty with this last alternative is that the nonfelony prosecutor has no
input into the civil commitment matter, and no real statutory ability to monitor the civil
commitment matter. This should only be considered on a case-by-case basis, and only after
evaluating all of the public safety and victim safety issues.

                 4.       What happens if the defendant is civilly committed before
                          arraignment can take place?

         It is not uncommon, at least in Seattle, for a criminal defendant to be referred to the
DMHP for civil commitment proceedings directly from the jail, even before the arraignment can
occur. If the DMHP initiates civil commitment proceedings, it creates an added issue: the
defendant is entitled to a speedy arraignment, but has been detained at an evaluation and
treatment facility for possible civil commitment and is unavailable for arraignment. The remedy
is for the Court to set a constructive arraignment date,47 which starts the time-for-trial period.48

         Of course, this whole discussion presumes that there is a reason to believe that
competency is at issue. Remember that RCW 10.77.060 requires the Court to appoint a panel to
evaluate a defendant once competency is at issue. Since a person can be civilly committed yet
still be competent, the Court cannot automatically order a competency evaluation just because
the defendant has been civilly committed. Moreover, the period of time during which the

46
   I.e., punishable by a maximum of 90 days, which would be 60 actual days with good time
47
   CrRLJ 4.1(b).
48
   CrRLJ 3.3(c)(1).


                                                   Page 21
defendant is processed in the civil commitment matter will not be excluded from the time-for-
trial under CrRLJ 3.3(e)(1) (relating to competency issues) simply because the defendant has
been civilly committed.

                 5.       What happens with the time-for-trial period if competency is at issue
                          but arraignment can’t occur because the defendant has been civilly
                          committed out of the jail?

        Let’s assume, based on the police report or other information, that the Court does have
reason to believe competency is at issue, and that the defendant has been referred from the jail
for civil commitment prior to arraignment. The Court could set the arraignment over for a few
days, until after the initial 72-hour detention expires, to find out the results of the 72-hour hold.
Although the time-for-trial keeps running, only a few days are lost. At the end of the 72-hour
period, the Superior Court in the civil commitment proceeding will hold a hearing to determine
whether to detain the defendant on a 14-day MRO. If the defendant is not detained further, but
instead returned to jail, the Court can proceed with arraignment at that time.

        If, on the other hand, the defendant is detained on an additional 14-day MRO, and if the
Court is aware of the location of the treatment,49 the Court could order that the defendant be
evaluated for competency. Western can perform that evaluation at the civil commitment facility.
As a general rule (at least in King County), people civilly committed on a 14-day MRO are sent
to a local treatment facility, rather than to Western. If, for some reason, the evaluation does not
occur during the 14-day period but the defendant is civilly committed on an additional 90-day
MRO, the Court should to ensure the evaluation occurs at the treatment facility if that location is
known to the Court. In most cases, defendants who are civilly committed on a 90- or 180-day
MRO are sent to Western or Eastern.

                 6.       What happens with the time-for-trial period if it is not known
                          whether competency at issue but arraignment cannot occur because
                          the defendant has been civilly committed out of the jail?

       One situation that is particularly difficult to deal with is when the defendant is civilly
committed before he or she has even met with the criminal defense attorney. It is difficult to
argue that competency is at issue solely because the defendant is subject to civil commitment
proceedings, since competency and civil commitment criteria are not the same. 50 If the Court
has no basis to believe competency is at issue, then the time-for-trial period continues to run

49
   The subject of a civil commitment proceeding has privacy rights in information about the proceeding. See RCW
71.05.390. That section does allow information to be disclosed to a “professional person” [as defined in RCW
71.05.020(28)] who is providing an evaluation under RCW Ch. 10.77. RCW 71.05.390(1)(f). It also allows
disclosure to a court ordering an evaluation under RCW Ch. 10.77 “solely for the purpose of preventing the entry of
any evaluation or treatment order that is inconsistent with any order issued under [RCW chapter 71.05].” RCW
71.05.390(6)(a).
50
   “The legislature recognizes that a person can be incompetent to stand trial, but may not be gravely disabled or
may not present a likelihood of serious harm. The legislature does not intend to create a presumption that a person
who is found incompetent to stand trial is gravely disabled or presents a likelihood of serous harm requiring civil
commitment.” Chapter 297, Laws of 1998 (Second Substitute Senate Bill 6214), Section 1, which contains the
statement of legislative intent of the sweeping amendments to RCW Chs. 10.77 and 71.05.


                                                    Page 22
unless some other provision of the time-for-trial rule serves to extend the time-for-trial period.
The time-for-trial rule is discussed more fully later in this Guide.

                  7.       What are the alternatives when time-for-trial period would expire
                           before the civil commitment ends.

        The defense attorney (and often the judge) may pressure the prosecutor to dismiss the
case without prejudice, with the possibility of re-filing the case after the civil commitment
concludes. The problem with that approach is that the confidentiality provisions of RCW Ch.
71.05 preclude the civil commitment system from telling the nonfelony prosecutor when the civil
commitment process has ended;51 the prosecutor will not know when to re-file charges. Nor is
the Court able to monitor the defendant’s progress in the civil commitment arena. Sometimes
defense counsel is able to obtain the defendant’s waiver of the confidentiality protections of
RCW Ch. 71.05 in exchange for the dismissal.52 From the defendant’s perspective, he/she
obtains a quick dismissal, and the burden is on the prosecutor to re-file. In the meantime, the
statute of limitations on the original crime53 will in all likelihood re-commence upon the
dismissal, at least based upon a literal reading of the statute of limitations.54

         Another option is for the nonfelony Court to issue a request to the civil commitment
facility (either Western or Eastern) to authorize a temporarily release of the defendant to law
enforcement for transport to and from the local jail. Because the civil commitment order was
issued by a Superior Court, the nonfelony Court cannot order Western or Eastern to release the
defendant, but it can request that they do so. Any order making such a request should make clear
that the defendant is to be released only into custody, and should set appropriate bail to enable
the jail to hold the defendant.

       One could argue that only the Superior Court that issued the civil commitment order may
authorize a temporary release from the treatment facility. If the prosecutor knows which
Superior Court Judge issued the order,55 the case number, and the identity of the civil defense
attorney, it might be worthwhile to request the order from the Superior Court.

         D.       Conducting the Competency Hearing.



51
   See RCW 71.05.390.
52
    Obviously, defense counsel would need to feel confident that the defendant is competent to waive the
confidentiality protections. Whether the defendant’s competency to make such a waiver is subject to a different
standard than for his/her competency to stand trial is, thankfully, beyond the scope of this Guide.
53
   Two years for a gross misdemeanor or one year for a misdemeanor. RCW 9A.04.080(1)(i), (j).
54
   RCW 9.04.080(3). Whether the civil commitment tolls the statute of limitations and will eventually bar re-filing
of charges depends upon whether the defendant is considered to be “publicly resident within this state”. See RCW
9A.04.080(2). If the prosecution has a release of information that enables it to find out the status of the defendant’s
civil commitment, then the defendant could make a strong argument that the civil commitment does not toll the
statute of limitations.
55
   The hearing on a 90-day MRO petition will be heard in the Superior Court for the county in which the subject is
located at the time of the hearing. For those counties that have facilities that handle 14-day MRO commitments,
such as King County, the hearing will be done locally. For those counties that utilize Western or Eastern for 14-day
MRO commitments, the hearing will be handled in Pierce or Spokane County.


                                                      Page 23
        Although the Court has discretion in deciding whether there is reason to doubt the
defendant’s competency to stand trial,56 it must order a competency evaluation once it does
determine that competency is at issue,57 unless waived by the parties.58 The manner in which that
hearing can be held is the same whether the competency issues relate to a pending nonfelony
charge, a sentencing matter, or a probation violation matter.

                 1.       What is the burden of proof, and who bears it?

        A criminal defendant is incompetent to proceed if he or she “lacks the capacity to
understand the nature of the proceedings against him or her or to assist in his or her own defense
as a result of mental disease or defect.”59 The competency process does not start unless the
Court “has reason to doubt” the defendant’s competency.60 In other words, the defendant will be
presumed competent to stand trial unless there is a showing by a preponderance of the evidence that
the defendant is incompetent. Based on this presumption, the burden to show incompetency rests
with the party asserting it, which is generally the defense.61 RCW 10.77.086(3) expressly states that
preponderance is the standard for felonies; prior to the sweeping amendments to RCW Ch. 10.77 in
1998, that provision62 applied to both felonies and nonfelonies. It is hard to imagine that the
legislature intended the 1998 amendments to impose a different standard for felonies and
nonfelonies.

                 2.       What is a mental disease or defect?

       The legislature has not defined the phrase “mental disease or defect”,63 but the Supreme
Court has provided some guidance. In State v. Klein,64 the defendant sought release following an

56
   State v. Harris, 122 Wn.App. 498, 505 (2004). A defense attorney’s opinion as to the defendant’s competency is
a factor to which the trial court should give considerable weight because the attorney has worked most closely with
the defendant. But the opinion of an attorney who is from defense counsel’s office that has had only limited contact
with the defendant is not entitled to such substantial weight. State v. Hicks, 41 Wn.App. 303, 307 (1985). See also
State v. Israel, 19 Wn.App. 773, 779 (1978).
57
   In re Fleming, 142 Wn.2d 853, 863 (2001); State v. Wicklund, 96 Wn.2d 798, 805-806 (1982). See also Harris,
122 Wn.App. at 505; Seattle v. Gordon, 39 Wn.App. 437, 441 (1985), rev. denied, 103 Wn.2d 1031 (1985).
58
   The parties can agree to waive the appointment of experts under RCW 10.77.060 and still hold a hearing. See
State v. Israel, 19 Wn.App. 773 (1978); Ferguson, 12 WA Practice and Procedure, sec. 907 (3rd ed. 2004). See also
Wicklund, 96 Wn.2d at 805. Rather than waiving the appointment of any experts, the parties may choose to proceed
by way of one examiner, waiving the requirement of a second. RCW 10.77.060(1)(a). As a practical matter, if the
parties do not waive the right to two experts, the evaluation will almost certainly occur at Western or Eastern.
59
   RCW 10.77.010(14).
60
   RCW 10.77.060(1)(a).
61
   See Ferguson, 12 WA Practice and Procedure, sec. 907 (3rd ed. 2004). See also State v. Benn, 120 Wn.2d 631,
661 (1993) (criminal defendant may be made to prove his/her incompetency), cert. denied, 510 U.S. 944, 114 S.Ct.
382, 126 L.Ed.2d 331 (1993). Although Ferguson states that the burden is on the defendant to establish he/she is
incompetent to stand trial, there may be cases in which the defendant asserts he/she is competent to stand trial and
the prosecution contends the defendant is incompetent. The author had a case in which the Superior Court found the
defendant incompetent to proceed on a felony. The defendant, through defense counsel, asserted she was competent
in the nonfelony case in Municipal Court. The Municipal Court found the defendant competent over the City’s
objection. The end result: the defendant was sentenced to one year on the Municipal Court case, while the Superior
Court dismissed the felony case based on the defendant’s incompetency.
62
   Codified in former RCW 10.77.090(2).
63
   One might wonder why the Court did not cite to and incorporate the civil commitment definition of “mental
disorder” contained in RCW 71.05.020(24) into the criminal competency arena. But if the legislature intended to


                                                    Page 24
insanity acquittal. The insanity statute utilizes the same “mental disease or defect” language as
the competency statute, so the holding applies equally to competency cases.65 The Court noted
that “neither the legislature nor this court has defined the term in [context of the insanity
defense]”,66 and concluded that substantial evidence in that particular case supported the trial
court’s finding that the defendant suffered from a mental disease or defect.67 Consequently, the
meaning of “mental disease or defect” must be defined on a case-by-case basis.

                 3.       How much understanding of the proceedings must the defendant
                          possess to be competent?

        There is no reason to hold a defendant who is mentally ill to a different standard of
understanding than a defendant who is not mentally ill. The law does not require perfect
understanding from a non-mentally ill defendant, nor should it require perfect understanding
from a mentally ill defendant. Many non-attorneys (and many attorneys who do not practice
criminal law) lack a detailed understanding of the subtle nuances of the proceedings. In any
event, there are many reasons other than mental disease or defect for the defendant to lack
capacity to understand the nature of the proceedings. Examples include language, cultural and
educational barriers.

                 4.       What is encompassed in being able to assist in one’s own defense?

       To be competent, a criminal defendant must be able to rationally assist defense counsel.
There is a great difference between rationally assisting defense counsel and being an ideal client.
For example, in affirming the trial court’s finding that the defendant was competent to stand trial,
Division One explained in State v. Hicks that:

               “Defense counsel maintained that it was ‘absolutely impossible to work with [the
        defendant].’ The record reveals some tension between [the defendant] and his counsel.
        However, as defense counsel himself acknowledged, ‘My client is mad at me and [that]
        has nothing to do with competence.’68

In other words, though a defendant’s mental disease or defect may create a number of
impediments to a productive attorney-client relationship, not all of those impediments rise to the
level of incompetency

                 5.       How does the defendant’s IQ level enter into the equation?

       A low IQ or other disability that makes it difficult for the defendant to communicate with
counsel does not render a defendant incompetent per se. Instead the Court must look at all of the


define the phrases similarly, it would have used the same phrase. Moreover, the civil commitment and criminal
justice systems are sufficiently different that it makes sense to define the mental illness components differently.
64
   156 Wn.2d 102 (2005).
65
   See RCW 9A.12.010; 10.77.010(14).
66
   156 Wn.2d at 113.
67
   Id. at 114-119.
68
   41 Wn.App. 303, 309 (1985).


                                                    Page 25
facts and circumstances. In State v. Ortiz, the Supreme Court upheld a trial court’s determination
that the mentally retarded defendant (whose IQ ranged from 49-59) was competent to stand trial.

        “He knows that the flag is red, white and blue, that there are 12 months in a year, and that
        a thermometer shows how hot it is. He does not know, however, what the shape of a ball
        is or where rubber comes from. He cannot name four presidents, he thinks Longfellow
        was Jesus, and thinks that there is 1 day in a week. He has a speech impediment that
        affects his ability to speak. This speech impediment, however, does not prevent him
        from being able to communicate. [The defendant] also alleges that it is very difficult, if
        not impossible, for him to remember past events.”69

The defendant understood that there was a judge in the courtroom, that the prosecutor would try
to convict him, and that he had a lawyer to help him. The defendant could also recall past facts
(presumably as opposed to past events), and could relate those facts to defense counsel.
Accordingly, the trial court found, and the Supreme Court affirmed, that the defendant was
competent to stand trial.70

                6.      What about other impediments to communication?

        A defendant exhibiting a delayed response to questions or difficulty in expressing
emotions is not automatically incompetent to stand trial. “That is so whether the defendant’s
inability to emotionally communicate springs from a speech impediment or from an emotional
illness.”71

        Memory loss, or an inability to relate facts, does not necessarily rise to the level of
inability to assist counsel. As noted by Division One in State v. Swanson, amnesia is certainly
relevant as a symptom that may indicate a mental disease or defect. But “[a]mnesia alone, in the
absence of mental disease or defect, does not render a defendant unable to comprehend his
position or to assist counsel.”72 The Court pointed to the defendant’s ability to “construct
evidence of the facts of the crime from other evidence.”73

        Though Division One did not have to answer the question of whether amnesia caused by
mental disease or defect would render the defendant incompetent per se, its rationale provides
some guidance. For example, assume the defendant is charged with DUI, and that prior to trial
he/she suffers a traumatic head injury that meets the definition of a mental disease or defect, and
also renders the defendant unable to recall the incident at all. Assume further that the defendant
understands the nature of the proceedings and is otherwise able to assist counsel. Finally,
assume that the police videotaped the incident74 or that the defendant had a passenger who is
available for trial. One can argue that the presence of other evidence, whether videotaped or
based on eyewitness testimony, renders the defendant competent to stand trial.
69
   104 Wn.2d 479, 482-483 (1985), cert. denied, 746 U.S. 1144, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986).
70
   Id. See also State v. Lawrence, 108 Wn.App. 226, 231-232 (2001) (defendant competent despite IQ of 60 and
periods up to 10 minutes in which defendant did not respond to questions).
71
   State v. Gwaltney, 77 Wn.2d 906, 909 (1970).
72
   28 Wn.App. 759 (1981) (emphasis added).
73
   Id.
74
   See RCW 9.73.090(1)(c)


                                                 Page 26
        Sometimes a defendant’s inability to relate the facts of a case stems not from amnesia but
rather from a fixed delusion. For example, assume that a defendant charged with shoplifting and
assaulting the security guard is convinced that secret agents of the government are out to get
him/her. The question is whether the delusion interferes with the defendant’s ability to assist
counsel. If the defendant can recall the incident but justifies his/her behavior because the
government is “out to get me”, then arguably the defendant can relate facts sufficiently well to
assist counsel. On the other hand, if the defendant is so wrapped up in the delusion that he/she
can think of nothing else and cannot confer with defense counsel, then arguably the defendant is
not capable of rationally assisting counsel.

                 7.      What about the defendant’s ability to help choose trial strategy?

       A defense attorney must make countless strategy decisions during the course of trial.75
But defense counsel’s opportunity to consult with the defendant about strategy while on the
record and in the heat of trial proceedings is often limited. It is a different story for trial strategy
decisions that can be made prior to trial; there is ample time for defense counsel and the
defendant to discuss how they want to approach the trial.

        What happens if the defendant’s ability to assist in strategizing is impaired due to mental
disease or defect? In State v. Benn, the Supreme Court held that the ability to assist counsel
“does not mean the defendant must be able to choose or suggest trial strategy.”76 Instead, the
trial court must exercise its discretion in finding the defendant competent or incompetent.

                 8.      Is there a different standard for a defendant’s competency to waive
                         rights?

         The concept of competency to stand trial includes the concept of competency to waive
trial-related rights. The standard for waiving trial-related rights is the same as the standard for
competency to proceed to trial. For example, a court finding that a criminal defendant is
incompetent to stand trial “precludes his entry of any plea or waiver of trial.”77 Similarly, a
criminal defendant who wishes to waive an insanity defense or the right to counsel defendant
must both be competent to stand trial and knowingly and voluntarily waive those rights.78

         A trial court could reach a different result on the issue of whether a defendant’s
confession is valid because the defendant is incompetent to stand trial. In State v. McDonald, the
Supreme Court declined “to hold as a matter of law that a defendant found incompetent to stand
trial is also incompetent to confess to the crime.”79 One might wonder how the issue would
arise, since an incompetent defendant may not be tried. In McDonald the trial court initially
found the defendant incompetent to stand trial, but found that competency restoration treatment
75
   Clearly this statement applies equally to prosecutors and to civil plaintiff and defense trial attorneys.
76
   120 Wn.2d 631, 662 (1993) (citing State v. Ortiz), cert. denied, 510 U.S. 944, 114 S.Ct. 382, 126 L.Ed.2d 331
(1993).
77
   In re Fleming, 142 Wn.2d 853, 864 (2001). See also State v. Marshall, 144 Wn.2d 266, 281 (2001).
78
   State v. Jones, 99 Wn.2d 735, 746-747 (1983); State v. Hahn, 106 Wn.2d 885, 894-895 (1986).
79
    89 Wn.2d 256, 264-265 (1977), overruled on other grounds, State v. Sommerville, 111 Wn.2d 524, 530-531
(1988).


                                                  Page 27
had restored his competency. At the ensuing trial, the prosecution introduced McDonald’s
previous confession. The trial court found that McDonald made his confession knowingly and
voluntarily, and the Supreme Court affirmed that finding

                9.       What are the logistics of the competency hearing?

        In many instances, the parties will stipulate to the Western State Hospital report. That does
not mean that the parties must stipulate to the report; either party, or the Court, can challenge the
report’s findings, or the findings in any other report submitted to the Court.

         If the competency evaluation report concludes that the defendant is incompetent to stand
trial, and if the parties stipulate to the report, the hearing will consist of the Court reading the report,
inquiring of the defendant, and making a finding of competency or of incompetency. The Court
should engage in a colloquy with the defendant before rendering a finding on the issue of
competency, even if the report concludes that the defendant is incompetent. Competency can
change daily, and the evaluation report is an opinion, not a judicial finding.

        If either party challenges the report, the Court should set the matter for a contested hearing.
As with any other contested motion hearing, the parties would have the right, and would most likely
want, to subpoena witnesses, such as the doctor(s) who performed the competency evaluation. In
nonfelony cases, the Court will determine competency. In felony cases, depending on the
procedural background, either the Court or the jury, decide the competency issue.80

        If the Court concludes that the defendant is competent, the criminal proceedings will
resume. Depending on the contents of the competency evaluation report, the Court might need to
take steps to comply with the requirements of RCW 10.77.065.

        E.      Competency Restoration Treatment for Incompetent Nonfelony Defendants.

                1.       What happens if the Court finds the defendant incompetent?

        The Court must determine whether the defendant is eligible to be referred for competency
restoration treatment.81 The legislature has given the courts guidance by creating a bright-line
test to define what this Guide refers to as a “restoration eligible nonfelony defendant.”
Defendants charged with a “serious offense” as defined by statute must be ordered into
competency restoration treatment; those charged with a non-serious offense may not be ordered
into restoration treatment.82

                2.       What is a “serious offense”?

        The phrase “serious offense” is defined in RCW 10.77.092. That section contains a list
of charges that are per se serious. Although most of the listed offenses are felonies, there are
several nonfelony categories: illegal weapons, domestic violence, harassment, and serious traffic

80
   See RCW 10.77.
81
   See RCW 10.77.088.
82
   RCW 10.77.088(1)(a); 10.77.092.


                                                 Page 28
(DUI, reckless driving, or hit and run-attended).83 The statute also authorizes the trial court to
find a particular offense serious, even if it is not specifically listed. The Court must consider a
number of factors relating to the extent of the harm or potential harm to people, the impact on
public safety, the number of charges and potential confinement upon conviction, and the number
of potential or actual victims.84

                 3.       What happens if an incompetent nonfelony defendant is charged with
                          a “serious” offense?

        The Court must place the defendant in either inpatient or outpatient competency
restoration treatment. If the initial treatment fails to restore competency, the Court may place the
defendant in the other form of treatment. In other words, the first treatment attempt is
mandatory, the second optional.85 As a practical matter, outpatient treatment is not a viable
option; there are no formal outpatient competency restoration treatment programs, or at least
there are none in the Western half of the state..

                 4.       What does competency restoration treatment consist of?

         For nonfelony cases, competency restoration treatment means psychotropic medication.
The nonfelony restoration treatment period is too short for any other form of treatment to work.
The difficulty is that many incompetent defendants, both felony and nonfelony, lack insight into
their illness and, consequently, refuse to take medication. The only hope for restoration is for the
Court to grant the treatment facility, i.e., Western or Eastern, authorization to administer
medication involuntarily. In Sell v. United States,86 the U.S. Supreme Court promulgated the test
for determining whether a defendant may constitutionally be medicated against his or her will.
The topic of involuntary medication merits its own detailed discussion, which occurs later in this
Guide.

                 5.       How long is the inpatient treatment period?

       The inpatient treatment period is rather nebulous. The statute provides in relevant part as
follows:

                 The placement shall not exceed fourteen days in addition to any unused time of
                 the evaluation under RCW 10.77.060. . . . . The fourteen-day plus any unused
                 time of the evaluation under RCW 10.77.060 shall be considered to include only
                 the time the defendant is actually at the facility and shall be in addition to
                 reasonable time for transport to or from the facility . . . .”87




83
   RCW 10.77.092(1). The listed per se offenses include equivalent city or county ordinances.
84
   RCW 10.77.092(2)(b).
85
   RCW 10.77.088(1)(a).
86
   539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003).
87
   RCW 10.77.088(1)(a)(i).


                                                    Page 29
If the competency evaluation takes in the hospital, the “time for the evaluation” is 15 days.88
Calculating the restoration period is relatively simple; the restoration period is equal to 14 days,
plus 15 days of time for the initial competency evaluation, minus the length of time the
defendant remained at Western or Eastern for the evaluation. For example, if the defendant
spent 8 days at Western for the evaluation, the restoration period would be 21 days: 14 days,
plus 15 days allowable for the evaluation, minus 8 days actually used.

        If the evaluation takes place in-custody, the legal issue becomes more clouded, though
the equation remains straightforward. Although the statute allows for in-custody competency
evaluations, it does not specify a time limit. Because the jail is not considered an inpatient
mental health treatment facility,89 the in-custody evaluation would not be using any of the 15
allotted inpatient days. Under this analysis, a defendant who spent 7 days in jail for a
competency evaluation would be subject to 29 days of restoration treatment: 14 days, plus 15
days allowable for the evaluation, minus 0 days actually used.

        On the other hand, leaving a defendant in custody for an indeterminate period waiting for
an evaluation runs contrary to equal protection and due process considerations,90 and to general
notions of fair play. One ready solution is to apply the 15-day period for inpatient evaluations to
in-custody evaluations. But that would not necessarily yield equivalent results unless some
period of time in the case is allocated to the equivalent of waiting time for transport for an
inpatient evaluation.

       Let’s look at two examples to see why. Defendant A is being evaluated for competency
on an inpatient basis at Western, and Defendant B is being evaluated for competency on an
outpatient basis in the jail (but still by doctors from Western). In each of their cases, it takes 7
days for the jail to provide Western with the medical information necessary for the evaluation,
and in each case the evaluation is completed in 5 days from the date the evaluator receives the
medical information. Defendant A’s restoration treatment period is 24 days: 14 days, plus 15
days of time for the evaluation, minus 5 days actually used for the evaluation. But Defendant
B’s restoration treatment period is 17 days: 14 days, plus 15 days of time for the evaluation,
minus 12 days actually used (which is the total time Defendant B spent in custody waiting to be
evaluated).

       So what is the solution for outpatient in-custody evaluations? The most equitable result
seems to be to allocate some portion of the in-custody evaluation period to “transport”. Coming
up with a number is the challenge. At a minimum it should include the period it takes to send the
order and discovery information to the evaluator.

                 6.       How long is the outpatient treatment period?


88
   RJCW 10.77.060(1)(a).
89
   Weiss v. Thompson, 120 Wn.App. 402, review denied 152 Wn.2d 1033 (2004). The defendant was held in
custody while awaiting transport to Western for competency restoration treatment. He argued that the jail time
should count against the restoration period, on the theory that the jail was equivalent to a mental health treatment
facility. The court disagreed, holding that the jail is not a mental health treatment facility.
90
   See Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972) (indeterminate competency
restoration period violates equal protection and due process.


                                                    Page 30
The Court may order up to 90 days of outpatient competency restoration treatment.91

                  7.       What if it appears from the outset that the defendant is unlikely to be
                           restored?

       As a general proposition, the law does not require a useless act. By its express terms, the
competency statute says the same thing: if at any time during the restoration treatment a
“professional person”92 determines that the defendant is unlikely to be restored, the defendant is
returned to court. If the Court agrees that restoration is unlikely, the case proceeds just as it
would if the treatment had been completed but unsuccessful.93

                  8.       What happens if the defendant is restored to competency before the
                           end of the restoration treatment period?

         The defendant must be returned to Court for a hearing at the earlier of (a) the end the
restoration treatment period or (b) a determination by a “professional person” that the defendant
has been restored to competency. If the court agrees that competency has been restored, it will
lift the stay and the case will as any other case.94 The Court must comply with RCW 10.77.065,
to the extent it applies.95

                  9.       What happens if a restoration-eligible defendant is not restored after
                           treatment, or if treatment is unlikely to succeed?

        The first consequence is that the Court must dismiss the case without prejudice.96 From
that point on, the defendant’s custodial status dictates the procedure.97

                  10.      How does the process work for in-custody defendants?

        If the defendant is in custody at the time of dismissal, the Court must detain the defendant
and transport him or her to an evaluation and treatment facility, for up to 72 hours. The 72-hour
period starts the morning after the order is signed, and does not include weekends and holidays.98
Historically, at least in the western part of the state, the defendant is transported to Western. The
purpose of the transfer is for the evaluation and treatment facility to determine whether to file a

91
   RCW 10.77.088(1)(a)(ii).
92
   Defined in RCW 10.77.010(17).
93
   RCW 10.77.084(1)(c); 10.77.088(1)(b).
94
   RCW 10.77.084(1)(c).
95
   RCW 10.77.065 is discussed later in this Guide.
96
   RCW 10.77.084(1)(c). See also RCW 10.77.088. Although neither of those sections state expressly that the
dismissal is without prejudice, it is clear that the legislature intended that the dismissal be without prejudice. RCW
10.77.086(4) expressly states that felony dismissals are without prejudice. That language originally resided in
former 10.77.090, and applied to both felonies and nonfelonies. When the legislature amended RCW 10.77.090
they divided the “without prejudice” clause into two different subsections: one for felonies and one for nonfelonies.
That change was carried one step further when the legislature split former RCW 10.77.090 into three smaller
sections: 10.77.084, .086, and .088. The “without prejudice” clause stayed with the felony language, but there is no
reason to suspect that the legislature intended to change the rules for nonfelonies.
97
   See RCW 10.77.088(1)(b)(i)-(iii).
98
   RCW 10.77.088(1)(a)(ii).


                                                     Page 31
petition for a 90-day inpatient MRO or a 90-day outpatient LRO.99 In Seattle Municipal Court
we refer to the order as a “Dismiss and Refer,” or a “D&R.”

        One potential trap for the unwary is the impact of a jail hold that prevents the defendant
being transported to the evaluation and treatment facility (usually Western or Eastern). For
example, the King County Jail will not transport a defendant for civil commitment evaluation if
the defendant is subject to a jail hold from another jurisdiction, whether on a felony or a
nonfelony matter. The 72-hour period is not tolled, so the clock keeps ticking. As reflected in
the Dismiss & Refer form order in Exhibit 10, Seattle Municipal Court resolves the issue by
directing the DMHP to evaluate the defendant in custody for possible civil commitment under a
14-day inpatient MRO or a 90-day outpatient LRO.

                 11.      How does the process work for out-of-custody defendants?

       If the defendant was evaluated on an out-of-custody basis,100 then the Court must order
the DMHP to evaluate the defendant within 48 hours for civil commitment via a 14-day inpatient
MRO or a 90-day LRO.101 Unfortunately, the statute provides no guidance if the defendant fails
to appear as directed by the DMHP, or if the DMHP is unable to locate the defendant.102

                 12.      What happens if the defendant is not restoration-eligible?

                The statute gives the Court these options:: stay or dismiss the proceedings and
detain, or dismiss the proceedings and release the defendant outright.103 The Court has authority to
detain for “sufficient time” to allow the DMHP to complete the evaluation. The definition of
“sufficient time” is open to interpretation. Seattle Municipal Court has historically used a period of
72 hours, excluding weekends and holidays. We refer to the order as a “Dismiss and Detain,”
“D&D”. The author has never encountered a case in which the Court “stayed” the proceedings, and
the statute gives no hint about the impact of a “stay”.

        There is nothing in the statute that prohibits the Court from “detaining” an out-of-custody
defendant, but it may be difficult convincing the Court to do so. In that situation, the best option is
to decline to waive the 24-hours advance notice of the dismissal104 and arrange for the DMHP to
attend the dismissal hearing so they can evaluate the defendant on the spot.



99
   RCW 10.77.088(1)(b)(ii); 71.05.235(2).
100
    The statute uses the phrase “on conditional release,” see RCW 10.77.088(1)(b), while this Guide uses the phrase
“out-of-custody”. A “conditional release” is a modification of a commitment, which is subject to revocation for
non-compliance. RCW 10.77.010(3). “Commitment” is a court-ordered detention for evaluation, treatment, or both.
RCW 10.77.010(2). A nonfelony defendant who has been released at arraignment on his or her personal
recognizance without any conditions of release is arguably not on conditional release because there are no express
conditions and the release is not for evaluation or treatment. But even a PR release requires the defendant to
promise to appear for court, and once the Court orders a competency evaluation, the PR release is for purposes of
evaluation. In other words, it may be more a matter of semantics than substance.
101
    RCW 10.77.088(1)(b)(i); 71.05.235(1).
102
    Id.
103
    See RCW 10.77.088(2).
104
    See RCW 10.77.088(2).


                                                    Page 32
        Before making a recommendation to the Court to dismiss and detain or dismiss outright, the
prosecutor should review the file, including not only the examination report but also the facts of the
crime, criminal history and any other relevant information. Just because the defendant is in the non-
restoration eligible category does not mean that he or she has no history of violence or will not meet
the criteria for civil commitment. Even if there is no history of violence, and therefore little
likelihood of civil commitment for being dangerous to others, the defendant might potentially meet
the civil commitment criteria as gravely disabled or dangerous to him or herself.

         An outright dismissal is appropriate if the defendant is already on an MRO; a civil
commitment evaluation would not be necessary. If the defendant is on an LRO, it might be
appropriate to seek a DMHP evaluation for purposes of filing a revocation of the LRO. Outright
dismissal might also make sense if there is no likelihood, based on the specific background and
history of the case, that the defendant will meet the criteria for civil commitment. But remember
that the competency evaluation may only address the “danger to others” criterion of the civil
commitment provisions, and that assessment will not be made by a DMHP, but rather by a
psychologist or psychiatrist who may or may not be familiar with civil commitment. In addition,
the competency evaluation report may not address the “danger to self” or “gravely disabled”
criteria. If those criteria are addressed in the evaluation, and if the evaluator recommends not
referring the defendant to the DMHP, then it makes no sense recommend that the Court detain the
defendant for the DMHP to evaluate.

        The person most qualified to determine whether the defendant should be civilly committed
is the DMHP. Absent extraordinary circumstances, and unless the evaluation addresses all possible
grounds for civil commitment, the DMHP should make the decision, rather than a prosecutor or a
judge.

               13.     Is there anything I should do to help the civil commitment evaluation
                       process?

       Yes—transmit the relevant information to Western or Eastern, or to the DMHP, as
applicable, as soon as possible. For in-custody Dismiss and Refer orders, Western or Eastern
will have a very short turnaround time. The transport time comes out of the 72-hour period, and
the hospital will have only the time remaining in the 72-hour period after the defendant is
admitted. For out-of-custody Dismiss and Refer orders, the DMHP will have only 48 hours in
which to evaluate the defendant.

        In either case, it is imperative to forward a copy of the police report, and any other
relevant information, including the defendant’s criminal history. If the Dismiss and Refer is
ordered via Western or Eastern, they must have a certified copy of the order and of the criminal
complaint. The certified copies are necessary for the assistant attorney general to establish the
Court’s jurisdiction over the 90-day petition. If you know or suspect that your Court will be
issuing a D & R order, you should make advance arrangements with Western or Eastern, or the
local DMHP, as the case may be, to provide the necessary information and documents.




                                              Page 33
        F.      Delays in In-Jail Competency Evaluations or in Transports for Inpatient
                Competency Evaluations or Restoration Treatment.

                1.       Can the defendant obtain a dismissal if the evaluation is delayed, or if
                         the defendant’s transport to Western or Eastern for either a
                         competency evaluation or for competency restoration treatment is
                         delayed?

        If the defendant moves for dismissal on due process grounds, the Court should analyze
the issue on a case-by-case basis. In Weiss v. Thompson,105 Division One affirmed the trial
court’s ruling denying a motion to dismiss based on a delay in transporting the defendant for
competency restoration treatment. In so doing, the Court explained that “when the facts of this
case are viewed in context, the total deprivation of liberty for Weiss was minimal when weighed
against the government’s significant and legitimate interests in detaining him for a reasonable
time until a bed became available” at Western.106 The trial court heard several days of live
testimony before making its ruling, and that testimony played a significant role in the ultimate
outcome of the due process challenge.

        If the defendant moves for dismissal on a theory that the delay violates RCW 10.77, the
Court should analyze the issue using the Supreme Court opinion in State v. Smith.107 The Court
declined to dismiss a case for failure to comply with time limits under the felony competency
restoration provisions. But Smith must be applied on its particular facts. The Court noted that
the prosecution has substantially complied with the time limits, the defendant was not prejudiced
by the delay, and the essential purpose of determining competency had been fulfilled.

                2.       Can the defendant ask the Court to resume the time-for-trial period if
                         there is a delay in the evaluation or transport for the evaluation?

        If the defendant petitions to resume the time-for-trial clock, the Court should deny the
petition and continue to apply the express terms of the time-for-trial rule. The rule is quite clear:
the time-for-trial period is tolled from the date the trial court enters a written order until the
Court enters a written order finding the defendant competent.108

        G.      Involuntary Medication as Part of Competency Restoration Treatment.

        As mentioned previously, the reality is that competency restoration treatment in
nonfelony cases is predicated on medication. If the defendant agrees to take medication as part
of the treatment, then treatment may proceed. But if the defendant has a history of refusing to
take medication, or indicates that he or she will refuse to take medication as part of the
restoration treatment, the prosecution’s only hope is authorization to administer medication
involuntary.

105
    120 Wn.App. 402, review denied, 152 Wn.2d 1033 (2004).
106
    Id.. at 413.
107
    88 Wn.2d 639, 647-648 (1977), overruled on other grounds, State v. Jones, 99 Wn.2d 735, 744 (1983).
108
     CrRLJ 3,3(e)(1); CrR 3.3(e)(1). See also State v. Harris, 122 Wn.App. 498, 506 (2004) (interpreting prior
version of felony time-for-trial rule).


                                                  Page 34
                  1.       Is there a seminal case on the issue of involuntary medication to
                           restore competency?

        The United States Supreme Court decision in Sell v. United States109 set out the
applicable five part test for administering involuntary medication for the sole purpose of
restoring competency. Exhibit 4 contains a Primer for conducting a “Sell” hearing. It explains
the practical and strategic considerations, and contains some suggested questions for the various
areas of inquiry. It is not intended as a complete guide, nor is it intended as a script to be
followed blindly. Given the complex nature of the issue of involuntary medication, the best
function the mini-Primer can serve is as a guide to preparing for the hearing.

       Charles Sell was charged with 56 counts of mail fraud, six counts of Medicaid fraud, one
count of money laundering, and two counts of attempted murder.110 When Sell’s competency
came into question, the prosecution procured an order authorizing administration of involuntary
medication to restore competency.

                  2.       How did the Supreme Court define the issue?

       The Supreme Court analyzed the issue as limited to whether the Constitution permits the
government to involuntarily medicate a defendant for the sole purpose of rendering him or her
competent to stand trial.111 The United States Supreme Court held that the Constitution does
permit the Government to do so if it can establish the necessary criteria, but that the prosecution
had not met its burden in that particular case. The Court reversed the Court of Appeals and
remanded the case.112

         H.       Involuntary Medication as Part of Competency Restoration Treatment.

         Exhibit 4 contains a Primer for conducting a “Sell” hearing. It explains the practical and
strategic considerations, and contains some suggested questions for the various areas of inquiry.
It is not intended as a complete guide, nor is it intended as a script to be followed blindly. Given
the complex nature of the issue of involuntary medication, the best function the Primer can serve
is as a guide to preparing for the hearing.

                  1.       What is the Holding of the Sell Opinion?

       The Supreme Court described the issue in terms of whether, in a case involving a
“serious” but nonviolent” crime. That might seem to leave open the possibility of a different,



109
    539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003).
110
    123 S.Ct. at 2179.
111
    Id. at 2178.
112
    Id. Justice Breyer, writing for the majority, first analyzed the issue of whether the Eighth Circuit had jurisdiction
to hear the appeal. The Court found that the District Court’s pretrial order was an appealable “collateral order”
within the exceptions to the so-called “final judgment” rule. Writing for the dissent, Justice Scalia focused entirely
on the jurisdictional issue. Id. at 2181-2183.


                                                      Page 35
and presumably more lenient, standard for cases involving a “serious” violent crime. 113 But the
reality is that courts apply Sell to both violent and nonviolent “serious” crimes.

        The Supreme Court held in Sell that, under very limited circumstances in cases involving
“serious” offense, the trial court may authorize the restoration treatment provider to administer
medication to a defendant involuntarily. The Court set out four criteria that trial courts the
prosecution must establish. Involuntary medication must: (a) serve an important governmental
interest; (b) significantly further that important governmental interest; (c) be necessary to further
that important governmental interest; and (d) be medically appropriate.

                  2.        How does the Court determine whether a particular crime is
                            “serious” for purposes of competency restoration treatment?

       Fortunately, Washington has defined “serious” crimes for Sell purposes. You can take a
look back at earlier questions for the details. It’s a good thing Washington has taken the time
and energy to designate certain crimes as serious; without RCW 10.77.092, trial courts would be
forced to examine each charge in each competency case,114 which would result in a significant
drain on the criminal justice and civil commitment systems.

                  3.        What is the burden of proof for establishing the four Sell criteria?

        According to Division Two of the Court of Appeals, the prosecution must establish each
of the Sell criteria by clear and convincing evidence.115 That is consistent with the Second
Circuit of Appeal’s opinion in U.S. v. Gomes.116

                  4.        What constitutes an important governmental interest?

       One might conclude that the government per se has an important interest in bringing a
defendant to trial if he/she is charged with a “serious” offense, especially if the offense is a crime
against a person rather than against property.117 But the Sell opinion did not set a per se rule.
Instead, the Court determined that the trial court must consider the potential for future


113
    For that reason, this Guide will not explore whether there is a separate test for cases involving serious violent
crimes.
114
    See, e.g., United States v. Evans, 404 F.3d 227, 237-238 (4th Cir. 2005), cert. denied, 127 S.Ct. 1162, 166
L.Ed.2d 1004 (2007), in which the Court discussed the right to a jury trial as a basis for finding a charge to be
“serious.” That would not work well in Washington. Under federal law, the right to a jury trial attaches only to
those crimes punishable by more than six months. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20
L.Ed.2d 491 (1968). In Washington, every defendant charged with a charge punishable by even one day in jail day
of jail is entitled to a jury trial. See art. 1, secs. 21, 22; State v. Browet, Inc., 103 Wn.2d 215 (1984); Pasco v. Mace,
98 Wn.2d 87 (1982).
115
    State v. Hernandez-Ramirez,129 Wn.App. 504, 510-511 (2005). Cf. Born v. Thompson, 154 Wn.2d 749 (2005).
(standard of clear and convincing evidence applies to establishing defendant’s eligibility for restoration treatment
under former RCW 10.77.090).
116
    387 F.3d 157, 159-160 (2nd Cir. 2004), cert. denied, 543 U.S. 1128, 125 S.Ct. 1094, 160 L.Ed.2d 1081 (2005).
117
    Sell, 123 S.Ct. at 2184. Washington case law prior to Sell held that the State has a compelling interest in bringing
a criminal defendant to trial. See State v. Adams, 77 Wn.App.50, 55057 (1995), rev. denied, 126 Wn.2d 1016
(1995); State v. Lover, 41 Wn.App. 685, 688-690 (1985). The charges in those two cases were felonies.


                                                       Page 36
confinement the defendant is facing, including civil commitment, and the length of time the
defendant has already been confined.118

        A defendant’s potential future confinement is based on the nature of the crime and the
defendant’s criminal history. On the felony side, the SRA provides guidance; on the nonfelony
side the maximum sentence is either 90 or 365 days.119 The difficulty rests with the potential for
future civil commitment. Civil commitment proceedings are confidential. 120 Although the law
permits some communication between the criminal and civil commitment systems when
involuntary medication is at issue,121 there are still some thorny impediments to effective
information-sharing: the criminal and civil cases follow different tracks under different
procedural rules, different time frames, and with different attorneys and judges.

                5.      How does one establish that involuntarily medication will significantly
                        further that governmental interest?

        The Sell opinion identifies two components to this criterion: involuntary medication
must be substantially likely to restore competency, and substantially unlikely to have side effects
that will interfere significantly with the defendant’s ability to assist in his/her defense. 122 In light
of the relatively short 14-29 day restoration period for nonfelony cases, this portion of the Sell
test is more difficult to meet in nonfelonies than in felonies. With a 90-day minimum treatment
period for felony cases, the felony Court can take a “wait and see” approach by sending the
defendant to Western or Eastern without a forced medication order. If the defendant does not
begin voluntarily taking medication when transferred to Western or Eastern, there is plenty of
time to see if the defendant will change his/her mind and agree to take medication, or to set the
matter for a Sell hearing. The shorter nonfelony restoration treatment period does not lend itself
to a “wait-and-see” approach.

        The Sell test is a legal standard authored by the legal community. The likelihood that
medication will alleviate the defendant’s psychiatric symptoms to restore competency is a
medical conclusion that will be included in a medical expert’s opinion. The challenge is in
translating medical into legal and vice versa. From a legal perspective, statistical probabilities
seem the most straightforward way to establish a substantial likelihood of restoration. But it has
been the author’s experience, at least anecdotally, that the doctors at Western do not include or
rely on statistical probabilities when rendering their opinion.

        Another key question is whether the prosecution must identify the particular medication
or merely the merely the class of medication that would be administered. Washington law does
not require the competency evaluators to specify the exact medication; the general class will
suffice. In State v. Hernandez-Ramirez,123 Division Two affirmed a trial court order authorizing
involuntary medication based on testimony from two doctors that antipsychotic medications are
118
    Sell, 123 S.Ct. at 2184.
119
    There are some misdemeanors that carry a maximum jail sentence of less than 90 days. See, e.g., Seattle
Municipal Code 22.206.290B (30 day maximum).
120
    RCW 71.05.390.
121
    RCW 10.77.093; 71.05.390(6)(b).
122
    Sell, 123 S.Ct. at 2184-2185 (emphasis added).
123
    129 Wn.App. 504, 511 (2005).


                                                Page 37
the typical form of treatment for the defendant’s mental illness.124 But unless the defendant’s
mental health history shows that the/she has had particular success with a specific medication, it
will be difficult for the prosecution to meet the “substantially likely to restore” prong.

                 6.       What is involved in establishing that involuntary medication is
                          necessary to further the important governmental interest?

        The first thing to look at is whether less intrusive means are available and effective.125
The most obvious “less intrusive” means of treatment is giving the defendant a chance to take the
medication voluntarily, and if that doesn’t work then requesting that the Court hold a formal Sell
hearing. The Court spoke about the possibility of ordering the defendant to take medication,
backed up by the threat of contempt. Suffice to say that threatening contempt for failure to
comply with an order to take medication makes little sense in the context of a defendant who is
sufficiently mentally ill that competency is at issue.

                 7.       What does “medically appropriate” mean in terms of competency
                          restoration treatment and medication?

        The short answer is that prosecution must prove that the medication is in the defendant’s
best medical interest in light of the defendant’s medical condition.126 That may sound obvious,
especially since that is what virtually every medical prescription is designed for, but medications
carry side effects which, if they are severe enough, can be worse than the medical condition
itself. For example, some of the older generation anti-psychotic medications can cause
permanent involuntary tremors, a condition known as tardive dyskinesia. Other medications
have a large weight-gain profile; that would be very intrusive for a person whose body image and
self esteem (or lack of self-esteem) was tied to physical appearance.

                 8.       Can a court order restoration treatment in a “non-serious” case?

       The test set out in Sell sets a very high standard for authorizing involuntary medication in
cases involving “serious” offenses. It is unlikely that a Court may authorize involuntary
medication if the defendant is charged with a “non-serious” offense.

        I.       Competency, Sentencing and “Probation” Matters.

        Although it seems counter-intuitive, a defendant can be competent through the course of
a case from arrest to conviction yet still be incompetent at sentencing or at a probation revocation
hearing. There are many reasons for this phenomenon. For example, the defendant may have
been engaged in mental health services and receiving medication until the period in which the
recent act alleged as a probation violation. Or the defendant might simply have had an interim
period of lucidity when he/she entered a plea, and reverted to his/her typical functioning level.

124
    The federal courts are divided on the issue. See, e.g., United States v. Bradley, 417 F.3d 1107, 1113-1116 (10th
Cir. 2005); United States v. Gomes, 387 F.3d 157, 161-162 (2nd Cir. (2004), cert. denied, 543 U.S. 1128, 125 S.Ct.
1094, 160 L.Ed.2d 1081 (2005).
125
    123 S.Ct. at 2185.
126
    Id.


                                                    Page 38
Whatever the reason, it complicates matters when competency arises at the post-disposition
stage.

                 1.       What are you including in the term “probation” matters?

       For purposes of this Guide, “probation” includes: probation as a condition of a
suspended or deferred sentence, as well as conditions on a dispositional continuance, stipulated
order of continuance, or statutory deferred prosecution.

                 2.       Are the competency standards the same for defendants at the
                          sentencing or “probation revocation” stage as for the pre-disposition
                          stage?

        Yes. “[A] defendant may not be tried, convicted, or sentenced” while incompetent.127
Although the statute does not expressly mention probation violation hearings, case law supports
treating them similarly. In State v. Campbell,128 the Supreme Court held that the trial court was
prohibited from altering a defendant’s felony probation during the time he was at Western State
Hospital being evaluated for competency. The Court cited RCW 10.77.050 as part of its
rationale. Regardless of whether RCW 10.77.050 applies to nonfelony probation violation
matters, it seems clear from Campbell that an incompetent nonfelony defendant has a right to be
competent at a probation violation hearing.

                 3.       Are there any procedures that are the same as for pre- and post-
                          disposition cases?

        Yes. The statute governing the initial evaluation does not distinguish between pre- and
post –disposition stages. If the Court believes that the defendant’s competency is at issue, then it
seems clear that the Court must order a competency evaluation and conduct a competency
hearing, even in a post-judgment matter. RCW 10.77.060, which applies to competency
evaluations, does not appear by its terms to be limited to pre-conviction matters. The Court may
order a competency evaluation of a defendant “[w]henever . . . there is reason to doubt his or her
competency”.129 If the defendant is competent, then the sentencing or probation violation matter
can proceed.

                 4.       What about the competency restoration process—can the Court order
                          the defendant to engage in competency restoration treatment?

        There is no express authority for the Court to order competency restoration treatment in a
post-disposition matter. The competency restoration statute by its own terms applies “prior to


127
    RCW 10.77.050.
128
    95 Wn.2d 954, 957 (1981).
129
    RCW 10.77.060(1)(a). And even if that section did not apply to a post-conviction matter, Superior Courts in
Washington likely have inherent judicial powers to make determinations regarding competency to stand trial. See
State v. Wicklund, 96 Wn.2d 798, 801 (1982), in which the Supreme Court noted that courts relied exclusively on
that inherent power prior to the adoption of RCW Ch. 10.77. Whether that inherent authority extends to District or
Municipal Courts is best left for the parties to brief in a particular case.


                                                   Page 39
judgment”.130 One might consider arguing that the Court has inherent authority to impose
competency restoration treatment in a post-disposition case, but inherent authority is generally
limited to gaps in a statute. The competency restoration treatment section clearly limits its own
application to cases that are prior to judgment, which provides little support for the “inherent
authority” theory. Moreover, the competency restoration treatment sections are comprehensive
to say the least, and the few cases discussing the Court’s inherent authority to address
competency are limited to ordering a competency evaluation or to holding a competency
hearing.131

        State v. Campbell132 did involve competency restoration treatment for a defendant facing
probation violation proceedings. But many aspects of the case cast doubt on how strongly it
supports the proposition that the Court has inherent authority to order competency restoration
treatment in a post-conviction case. First, neither party raised the issue—which meant that the
Court never really relied on its inherent authority to order the restoration treatment, and never
really reached the substantive issue. Second, the opinion is silent on the basis for the treatment.
It is possible the Superior Court erroneously based its treatment order on statutory authority
under former RCW 10.77.090, since re-codified as RCW 10.77.084-.088, rather than on inherent
authority. The opinion recites that the defendant requested the trial court to extend the initial 15-
day observation period (presumably ordered pursuant to RCW 10.77.060) by 90 days. 133 That
seems to track the former version of RCW 10.77.090.

        Even if one assumes the Court has inherent authority to order competency restoration
treatment in a sentencing or probation violation matter, one must still grapple with the issue of
the extent of that authority. It seems illogical to think that a Court could use its inherent
authority to order treatment in a manner exceeding the extent to which the Court could order
treatment under its express authority.

                  5.       What are my options if the defendant is incompetent to proceed to
                           sentencing?

        They say that an ounce of prevention is worth a pound of cure. So the best option is to
make sure the defendant is competent at the time of a guilty plea or trial, and avoid the issue
altogether. It is easier to raise the issue prior to a guilty plea and deal with the consequences than
it is to raise the issue after the plea but before sentencing. Consider State v. Marshall,134 in
which the Supreme Court held that “where a defendant moves to withdraw [a] guilty plea with
evidence the defendant was incompetent when the plea was made, the trial court must either
grant the motion to withdraw [the] guilty plea or convene a formal competency hearing required




130
    RCW 10.77.084(1)(a).
131
    See State v. Wicklund, 96 Wn.2d 798, 801(1982), and the cases cited therein. In addition, the general issue of the
extent of a District or Municipal Court’s inherent authority in general is beyond the scope of this Guide
132
    95 Wn.2d 954, 957 (1981).
133
    Id. at 957.
134
    144 Wn.2d 266 (2001).


                                                     Page 40
by RCW 10.77.060.”135 That put the Court in the position of conducting a hearing as to the
defendant’s competency more than a year after the fact.136

       If it is too late to order a pre-plea competency evaluation, you could move to continue
sentencing to re-evaluate the defendant’s competency at a later date. The statute provides no
guidance as to how long the Court can keep continuing the hearing. And it isn’t clear whether
the Court’s two years of jurisdiction starts running or is tolled until the defendant is competent
and sentenced. At some point the defense may move to close the case administratively, without
the defendant ever being sentenced. That would certainly be convenient, but would not
necessarily be consistent with protecting public safety.

                 6.       What happens to the Court’s jurisdiction if the defendant is
                          incompetent to proceed with a probation revocation hearing?

        State v. Campbell137 answers that question: probation is tolled during the time a defendant
is not competent because, during that time, he/she is beyond the supervision of the Court. While
Campbell involved felony probation under the pre-SRA law, it should apply to nonfelonies. In
Spokane v. Marquette,138 the Supreme Court applied Campbell to nonfelony cases in the context
of the impact of a failure to appear on the Court’s jurisdictional period. As the court noted, “the
principle is the same in municipal court, so we find them persuasive.”139

                 7.       How long will probation be tolled if the defendant is incompetent?

        The short answer is: until the defendant is once again competent to proceed. There is no
reason to treat tolling based on incompetency any different from tolling based on a failure to
appear. In neither case is the defendant subject to the Court’s supervision; in neither case does
the prosecution have any control over the situation. If one analogizes to the time-for-trial rule
pertaining to the impact of a defendant’s failure to appear,140 then the Court’s jurisdiction would
recommence when the defendant appears again before the court and is found competent to
proceed.

                 8.       Can the Court modify any terms of probation while the defendant is
                          incompetent?

       No. The Court in Campbell stated in dictum that the trial court in that case was
“powerless to alter defendant’s probation” during the time he was being treated at Western State
Hospital.141 In other words, when the competency process starts, the probationary period stops.


135
    Id. at 281, citing In re Fleming, 142 Wn.2d 853, 863 (2001).
136
    Marshall, 144 Wn.2d at 282. See also United States v. Hutson, 821 F.2d 1015, 1018 (5th Cir. 1987) (meaningful
retrospective competency hearing requires quantity and quality of available evidence such that competency
assessment is more than mere speculation).
137
    95 Wn.2d 954 (1981).
138
    146 Wn.2d 124, 131-132 (2002).
139
    Id. at 131.
140
    See CrR 3.3(c)(2)(ii); CrRLJ 3.3(c)(2)(ii).
141
    95 Wn.2d at 957.


                                                   Page 41
                  9.       If the Court cannot revoke probation, and if the defendant
                           nevertheless remains on probation, what happens to the duties and
                           responsibilities of the probation officer?

       There is no easy or absolutely correct answer, and each office needs to develop its own
philosophy and procedures. The most cautious approach from a civil liability standpoint is to
issue an order relieving probation of its duties and responsibilities until the Court finds the
defendant competent to proceed. The benefit of this approach is that it helps minimize the City’s
exposure to civil damages based on a theory of negligent monitoring.142 The downside to this
approach is that the Court is allowing the defendant to remain unsupervised.

         J.       Time-for-trial Issues.

                  1.       How do competency issues impact the time-for-trial rules?

        Once the Court issues a written order for a competency evaluation, the time-for-trial
period is tolled.143 The triggering event is the written order for an evaluation; it is not enough for
the Court to note that the issue has been raised. The time-for-trial period recommences when the
Court issues a written order finding the defendant competent.144

                  2.       How do the time-for-trial rules apply to dispositional continuances
                           and deferred prosecutions?

        A dispositional continuance is still technically a pending case; as long as the Court issues
a written order for a competency evaluation, there should be no time-for-trial issues. CrRLJ
3.3(e)(1) excludes from the time-for-trial period the time from a written competency evaluation
order through the time of a written order finding the defendant competent. If the defendant
entered into a two-year dispositional continuance, the time-for-trial period would be tolled
during the period of incompetency.

        With respect to deferred prosecutions, RCW 10.05.020(4) requires as a prerequisite to the
Court accepting a petition for deferred prosecution that the Court find the defendant has
knowingly and voluntarily waived his/her right to a speedy trial. In addition, RCW 10.05.110
states the “[d]elay in bringing a case to trial caused by a petitioner requesting deferred
prosecution as provided for in this chapter shall not be grounds for dismissal.”

                  3.       What happens if competency is at issue and there are simultaneous
                           criminal proceedings in another court?

        Things get complicated, especially if the defendant is not available for court because of
the simultaneous criminal matter: the time-for-trial period will continue to run unless there is a
basis to toll it, but the defendant will be unavailable for court..


142
    See, e.g., Hertog v. City of Seattle, 138 Wn.2d 265 (1999).
143
    CrRLJ 3.3(e)(1).
144
    Id. The rule is the same for felonies. See CrR 3.3(e)(1).


                                                      Page 42
        For example, assume that Defendant is charged in Suburban Superior or Suburban
District Court, which has issued a written competency evaluation order. Assume further that
Defendant is charged with a separate crime in Friendly Municipal Court, and that Defendant is
not available to Friendly Municipal Court because of the Suburban Court’s competency
evaluation proceedings. Clearly the time-for-trial period in the Suburban Court is tolled, but
what about in the Friendly Municipal Court case? If the time-for-trial period is not tolled, it is
possible that the period will run out in the case.

        If Friendly Municipal Court has a valid basis for finding that competency is at issue in its
case, there are several options available. The most conservative procedure from a time-for-trial
standpoint would be for Friendly Municipal Court to issue its own written competency
evaluation order, but that raises questions about whether Defendant’s presence is required in
Friendly Municipal Court.145 The parties in Friendly Municipal Court could stipulate to relying
on the Suburban Superior or District Court’s competency evaluation in its proceedings. That
would avoid some duplication in terms of the evaluation, but creates the same issues about
Defendant’s presence in Friendly Municipal Court.

                  4.        What if it is unclear whether competency is at issue and there are
                            simultaneous criminal proceedings in another court?

         If the Friendly Municipal Court does not have a reasonable basis to believe competency
is at issue, then CrRLJ 3.3(e)(1) will not toll the time-for-trial period. The parties would have to
look elsewhere to solve the time-for-trial issue.

        One alternative is to rely on CrRLJ 3.3(e)(2). That rule which excludes from the time-for-
trial period arraignment, pre-trial proceedings and trial on unrelated charges, which should
include “another charge” in “another court”.146 It is reasonable to argue that competency
proceedings in Suburban Superior or District Court are “pre-trial proceedings” under CrRLJ
3.3(e)(2). A second alternative is to rely on CrRLJ 3.3(e)(8), which provides that the time-for-
trial period is tolled by “[u]navoidable or unforeseen circumstances affecting the time-for-trial
beyond the control of the parties.” 147

                  5.        Can simultaneous civil commitment proceedings in another court
                            have an impact on the time-for-trial rules in a pending criminal case?

       In a word: yes. Competency matters can become complicated if the defendant faces
simultaneous civil commitment proceedings. If the defendant is being civilly held on an MRO,
there may be time-for-trial issues unless the criminal court has ordered a competency evaluation.
The issue can arise whether or not the defendant has been arraigned in the criminal case prior to
the MRO. An arraignment will start the time-for-trial period.148 If the defendant has not been
arraigned, the Court could set a constructive arraignment date149 to start the time-for-trial period

145
    See CrRLJ 3.4(a)-(c); CrR 3.4(a)-(c).
146
    See CrRLJ 3.3(a)(3)(ii) for the definition of “related charge”.
147
    Emphasis added.
148
    CrRLJ 3.3(c); CrR 3.3(c) (felony rule)
149
    See CrRLJ 4.1(b); CrR 4.1b (felony rule).


                                                       Page 43
running. In either scenario, the time-for-trial period will begin to run and, depending on the
length of the MRO, the time-for-trial period will either be shortened or run out completely. The
time-for-trial period is not tolled by civil commitment; only a written order for a competency
evaluation will toll the period.

        There are several options available for handling the time-for-trial issue. The best option
depends on the procedural circumstances, including the Court’s and the parties’ knowledge of
the defendant’s civil commitment status, and the Court’s or the prosecutor’s evaluation of the
risks of each option on the case and on public safety.

                  6.       What would that impact be if the criminal court has no information
                           available to it about the simultaneous civil commitment matter?

        If the Court and prosecutor do not have information about the defendant’s status in the
civil commitment proceeding because of confidentiality issues,150 then CrRLJ 3.3(c)(2)(ii)151
may provide a remedy. That rule provides that the time-for-trial period is re-set when the
defendant fails to appear “for any proceeding at which the defendant’s presence was required”.

                  7.       How about if the criminal court does have information available to it
                           about the simultaneous civil commitment matter?

        If the Court and the parties do have knowledge about the defendant’s civil commitment
proceedings, the easiest solution is to seek a time-for-trial waiver from the defendant. If the
defendant is unwilling to provide a waiver, then the prosecutor must carefully avoid a trap for the
unwary that rely on CrRLJ 3.3(c)(2)(ii) to re-set the time-for-trial period. In State v. Raschka,152
the defendant was in the hospital and therefore failed to appear at a hearing at which his presence
was required. The trial court excused his presence with the approval of the prosecutor. Division
Three held that the time-for-trial period did not stop when the defendant failed to appear.153 If
the prosecutor knows that the defendant is being held on a MRO, then under the rationale of
Raschka the time-for-trial period would not be re-set pursuant to CrRLJ 3.3(c)(2)(ii).154

        Another possibility is to apply CrRLJ 3.3(e)(8),155 which excludes from the time-for-trial
period [u]navoidable or unforeseen circumstances affecting the time-for-trial beyond the control
of the court or of the parties.” Since civil commitment proceedings are heard by the Superior


150
    RCW 71.05.390 sets out the confidentiality rules for those who are subject to civil commitment proceedings.
Even if defense counsel in the criminal case is aware of the civil commitment proceedings, there are potentially
conflicting Rules of Professional Conduct that defense counsel must consider. Compare RPC 1.6 (counsel may not
reveal client confidences or client secrets except under limited circumstances) with RPC 3.3 (candor to the tribunal).
151
    See CrR 3.2(c)(2)(ii) for felony rule.
152
    124 Wn.App. 103 (2004).
153
    The Court based its decision on the prior version of CrR 3.3(d)(2), which is identical for former CrRLJ 3.3(d)(2).
The pertinent provision of the current versions of those rules, CrR and CrRLJ 3.3(c)(ii) are identical to the former
rules, so the result in the case might well have been the same under the current rules.
154
    The provisions of CrRLJ 3.3(e)(2) exclude from the time-for-trial period all arraignments, pre-trial proceedings
and trials on unrelated charges. That criminal rule does not appear to apply to civil commitment proceedings, which
are civil in nature.
155
    See CrR 3.8(e)(8) for identical felony rule


                                                     Page 44
Court156 and prosecuted either by the county prosecutor or the Attorney General’s office,157 and
since they are confidential proceedings,158 it would be extremely difficult, to say the least, for the
defendant to be brought to trial within the time-for-trial period on the nonfelony. Even if defense
counsel were aware of the status of the civil commitment matter, there are additional constraints
on his/her ability to notify the Court and the prosecutor.159 Accordingly, there is a strong
argument that the CrRLJ 3.3(e)(8) would exclude from the time-for-trial period the time the
defendant is subject to inpatient treatment on a civil commitment. It would appear that those are
unavoidable circumstances beyond the control of the Court or the parties.

        If the defendant is held in jail in the criminal case because he/she can’t raise bail, a third
alternative is to ask the Court to release the defendant with no conditions of release, and set a
new hearing date. While that would not remedy the time-for-trial issue in full, it would extend
the period and provide some breathing room. This option should not be engaged in lightly, as
there may substantial public safety issues at stake.

PART V—DMHP REFERRALS UNDER RCW 10.77.065.

       The mandatory DMHP referral provisions of RCW 10.77.065 expand upon the duties of the
Court, the DMHP, and the facility providing the competency or sanity evaluation under RCW
10.77.060. The challenge to the Court is how to apply the section in practice.

        A.       Steps Taken Prior to Actual Referral.

                 1.       How does this process start rolling?

         Under RCW 10.77.060(3)(f), the facility conducting the competency or sanity evaluation of
a felony or a nonfelony defendant must include a recommendation to the Court whether the
defendant should be examined by a DMHP for possible civil commitment. The facility must also
include an opinion as to whether the defendant poses a danger160 unless kept under further control.
If the facility concludes that the defendant does pose such a danger, the Court “shall” order that the
DMHP evaluate the defendant for possible civil commitment. Note that the order is directed to the
DMHP, not to the defendant.

       In light of all of the statutory provisions dealing with civil commitment referrals for
criminal defendants who are not competent, one might ask: what is the point of RCW 10.77.065?
With respect to nonfelonies, it is primarily intended to cover defendants who are competent.


156
    See, e.g., RCW 71.05.150(2)(a)); RCW 71.05.290(1); RCW 71.05.300(1).
157
    RCW 71.05.130.
158
    See RCW 71.05.390. But see RCW 71.05.390(6)(a); RCW 10.77.093, added by Chapter 157, Laws of 2004,
secs. 4-5 (expanding a criminal Court’s authority to obtain limited information about civil commitment proceedings,
but only as they relate to the issue of involuntary medications for competency restoration purposes.
159
    Compare RPC 1.6 (duty to maintain client confidences and client secrets except under limited circumstances)
with RPC 3.3 (candor toward the tribunal).
160
    The actual language is “an opinion as to whether the defendant is a substantial danger to other persons, or
presents a substantial likelihood of committing criminal acts jeopardizing public safety or security . . . .: RCW
10.77.060(3)(f), as amended.


                                                    Page 45
There are some situations in which an incompetent non-restoration eligible nonfelony defendant
may also fall within the provisions of this section.

                  2.        What are the consequences if the evaluator recommends a civil
                            commitment referral?

        One might naturally assume, if Western or Eastern recommends that the defendant be
evaluated by a DMHP, that the Court would be required to order that evaluation to occur. But
the Court is only required to order the DMHP evaluation if Western or Eastern concludes under
RCW 10.77.060(3)(f) that the defendant poses a danger unless kept under further control, even
though RCW 10.77.060(3)(f) also requires that the evaluator provide an opinion as to whether
the defendant should be evaluated by a DMHP for civil commitment.161 One could argue that
unless the evaluation contains language tracking RCW 10.77.060(3)(f),162 the recommendation
that the defendant be referred to a DMHP is advisory only. In light of the fact that competency
evaluators are mental health professionals rather than attorneys, it is just as likely that a
recommendation for a DMHP referral is sufficient to trigger the mandatory provisions of RCW
10.77.065.

                  3.        When must the evaluator provide the recommendation?

         The report and recommendation must be provided at least 24 hours before the defendant is
transferred to the correctional facility in the county in which the criminal proceeding is pending.163
It is unclear how this provision applies to evaluations conducted in the local jail facilities. The most
logical interpretation is that the report must be provided at least 24 hours before the defendant’s next
court hearing.

         B.       Making the Actual Referral.

        If Western or Eastern concludes that the Court should keep the defendant under control,
the Court must order that the defendant be evaluated by the DMHP for possible civil
commitment. But the timing depends upon the procedural posture of the case and upon the
defendant’s competency. The first sentence of RCW 10.77.065(1)(b) provides that the civil
commitment evaluation “shall” be conducted. The next sentence provides the timing. The Court
is required to order a DMHP evaluation:

                  “(i) Prior to release from confinement for such person who is convicted, if
                  sentenced to confinement for twenty-four months or less; (ii) for any
                  person who is acquitted; or (iii) for any person: (A) Whose charges are
                  dismissed pursuant to RCW 10.77.086(4); or (B) whose nonfelony charges
                  are dismissed.”

                  1.        How does the referral come about under the “prior to release” prong?


161
    Compare RCW 10.77.060(3)(f) with RCW 10.77.065(1)(b).
162
    I.e., that the defendant poses a danger unless kept under further control.
163
    RCW 10.77.065(1)(a)(i).


                                                       Page 46
       Not every nonfelony defendant who is evaluated for competency will be found
incompetent. Some who are initially found incompetent may be restored to competency
following competency restoration treatment. If the prosecution re-commences, it is possible that
the nonfelony defendant will be convicted, which would lead to sentencing, or acquitted, or have
the charges dismissed on a ground other than incompetency.

        If a nonfelony defendant is sentenced to confinement for less than 24 months,164 then the
Court must order the evaluation prior to the defendant’s release. Clearly the language requires
the Court to order the evaluation before the defendant’s release. The questions are when and
how the DMHP must carry out that order. If the defendant is sentenced to a jail term that extends
well beyond the sentencing date, the DMHP will have time to evaluate the defendant before
his/her release from jail.

        But what happens if the defendant receives no jail time, or receives a jail sentence
amounting to credit for time previously served? Even if the Court were to issue the order prior to
the defendant’s release, it is highly unlikely that the DMHP could conduct the evaluation prior to
release. The simplest solution is for the Court to order the defendant to submit to and cooperate
with a DMHP evaluation within a specified time period as a condition of sentencing. If the
defendant fails to appear for the evaluation, the Court sets a probation violation hearing and
sends notice to the defendant. If the defendant fails to appear at that hearing, the Court can issue
a bench warrant and take the defendant into custody. If the defendant appears at the hearing, and
if the Court finds a willful violation of probation, the Court can revoke jail time and the DMHP
evaluation can occur in the jail.

                 2.       How does the referral come about under the “if defendant acquitted”
                          prong?

        Normally, one thinks of jury verdicts and judge verdicts as findings of “not guilty” rather
than of “acquittal.” But the Court ultimately enters a judgment of acquittal following a not guilty
verdict. The statute seems straightforward enough in that circumstance—the Court must order
an evaluation by the DMHP for potential civil commitment.

        The problem is that the Court has no jurisdiction over the defendant following the
acquittal, and RCW 10.77.065 does not appear to provide any mechanism for the Court or for the
DMHP to require the defendant to cooperate with an evaluation.165 Nor is it feasible for the
Court to “anticipate” an acquittal by a jury and order the evaluation in advance.

       The phrase “acquittal” could also be interpreted to include a judgment of acquittal by
reason of insanity. The detailed provisions of RCW 10.77.110 that apply when a felony or
nonfelony defendant is acquitted by reason of insanity include the possibility of commitment to


164
   It is theoretically possible for a nonfelony defendant to receive three consecutive one-year sentences.
165
   It might be possible to construct an argument, based on RCW 71.05.150(2) (involving non-emergency detentions
authorized by the Superior Court based upon a petition by the DMHP), that the Municipal or District Court has
implied authority to order the defendant to appear for the evaluation, The merits of such an argument are certainly
subject to question, but in any event are beyond the scope of this Guide.


                                                    Page 47
Western or Eastern. It seems unlikely the legislature intended RCW 10.77.065 to supplant the
insanity provisions.

                3.      How does the referral come about under the “dismissal” prong?

        The most common scenario in which this provision will apply is a when a nonfelony
defendant is competent to stand trial, but the charges are dismissed. The dismissal could be for
any number of reasons, such as speedy trial, suppression of evidence, witnesses failing to appear
for trial, or general proof problems. The same issues applicable to acquittals also apply to
dismissals.

        All of the options discussed above presume that the nonfelony defendant is competent to
stand trial.166 But what happens if a nonfelony defendant is not competent? For restoration
eligible nonfelony defendants who cannot be restored to competency, RCW 10.77.084 and
10.77.088 set out automatic referral procedures; the requirements of RCW 10.77.065 would be
redundant. RCW 10.77.088(2), which applies to non-restoration eligible nonfelony defendants,
does not provide for an automatic referral for civil commitment. It does, however, provide for
discretionary detention and referral to the DMHP. The key question is: which of the two
sections, RCW 10.77.065(1)(b) (the first sentence) or RCW 10.77.088(2), takes priority? Since
RCW 10.77.065(1)(b) applies only if the competency evaluator concludes that the defendant
should be kept under further control, it seems most logical that the more specific provisions of
that section would control, rather than the more general provisions of RCW 10.77.088(2).

PART VI—INSANITY ISSUES.

        A.      Procedural Setting.

                1.      What is the test for insanity in Washington?

        Washington utilizes the M’Naghten rule for insanity. To establish the defense of insanity, a
defendant must show that, at the time of the commission of the alleged offense, as a result of mental
disease or defect, the defendant’s mind was affected to such an extent that: “(a) He was unable to
perceive the nature and quality of the act with which he is charged; or (b) he was unable to tell right
from wrong with reference to the particular act charged.”167 In other words, the mental disease or
defect must impair the defendant’s cognitive ability, or ability to perceive and understand what is
happening.

                2.      How does a defendant assert an insanity defense?

        There are two ways in which the Court can reach the issue of the defendant’s sanity at the
time of the alleged offense(s): the defendant can make a motion for judgment of acquittal by reason
of insanity (either before or during trial); or the defendant can submit the issue to the trier of fact at
trial. Even if the Court denies the defendant’s motion, he or she may still present the issue to the

166
    The omitted circumstance involves dismissal of a felony based on the defendant’s incompetency. See RCW
10.77.065(1)(b)(iii)(A) and 10.77.086(4).
167
    RCW 9A.12.010.


                                                Page 48
trier of fact at trial.168 Under either scenario, the defendant must be competent in order to seek an
insanity acquittal; if the defendant is not competent, then the proceedings must be stayed.

        The defense must file written notice of intent to rely on an insanity defense. The notice
must be filed at or within 10 days after arraignment, unless the Court determines there is good cause
to permit a later filing. Insanity is an affirmative defense that the defendant must establish an
insanity defense by a preponderance of the evidence.169

         B.       Evaluation Process.

                  1.       How does the defendant obtain an insanity evaluation?

       A defendant asserting an insanity defense has the right to an independent expert.170 A
defendant who wishes to exercise his/her right to refuse to answer questions or to participate in the
prosecutions evaluation may not assert the insanity defense:

         “In a sanity evaluation conducted under this chapter, if a defendant refuses to answer
         questions or to participate in an examination conducted in response to the defendant’s
         assertion of an insanity defense, the court shall exclude from evidence at trial any testimony
         from any expert or professional person obtained or retained by the defendant.”171

                  2.       What about the prosecution—do we have the right to have our own
                           independent expert?

        Yes. If the defendant pleads not guilty by reason of insanity, the Court is required to order
the defendant to undergo an insanity evaluation.172 The process for evaluating a defendant for
insanity is governed by the same statute as evaluating a defendant for competency.173 In addition,
the Court may order the evaluation panel to include an evaluation as to the defendant’s capacity to
have a particular state of mind that is an element of the offense charged (i.e., an evaluation for
diminished capacity).174 The Court has the option of delaying granting bail if the defendant is
committed to a secure mental health facility for the evaluation.

       Typically, if the Western State Hospital staff determines that the defendant is not competent,
they will not evaluate the defendant’s sanity or capacity to form a specific state of mind.175 If a
defendant is found incompetent, the proceedings are stayed and the defendant may not enter an
168
    RCW 10.77.080.
169
    RCW 9A.12.010(2); 10.77.030(2). See also CrRLJ 4.7(b)(1)(vi) (defendant shall, upon written demand, disclose
to prosecution whether he or she will rely on insanity defense).
170
    RCW 10.77.070.
171
    RCW 10.77.020(5). This statute abrogates the result in State v. Carneh, 153 Wn.2d 274 (2004). In that case, the
Supreme Court held that a defendant who exercised his/her statutory right to refuse to answer questions could
nevertheless raise an insanity defense; the defendant’s refusal would be admissible at trial for the limited purpose of
explaining to the jury why the prosecution experts could not draw any conclusions about the defendant’s sanity at
the time of the acts.
172
    RCW 10.77.060(1)(a).
173
    See RCW 10.77.060.
174
    Id.
175
    The author is not certain whether Eastern will react in the same way as Western in this circumstance.


                                                      Page 49
insanity plea.176 If the defendant later regains competency, or if the Court rules that the defendant is
competent despite the competency evaluation report—perhaps based upon a report by a defense
expert—then the prosecutor will want to have a subsequent evaluation done for sanity and/or
diminished capacity.

                 3.       Should I ever consider stipulating to an insanity plea before the
                          defendant is evaluated?

        As a matter of policy, a prosecutor should never agree to dismiss a case based on a claim of
insanity without complying with the insanity provisions, including those requiring the trier of fact to
make factual findings. In appropriate cases, the parties may stipulate that the Court has a proper
basis upon which to enter an acquittal by reason of insanity, based upon the evaluation and other
available evidence. But if a defendant was insane at the time of the alleged offense, then the Court
should make the appropriate findings and enter the appropriate orders.177

        C.       Presenting the Defense.

                 1.       Can the defendant present an insanity defense prior to trial?

         The defendant may move for acquittal by reason of insanity prior to trial178 rather than wait
for trial. At the motion hearing the Court should conduct a proper colloquy with the defendant.
State v. Brasel179 contains a discussion of the difference between a waiver of rights for a guilty plea
and for a plea of not guilty by reason of insanity. Because the Court must engage in a colloquy with
the defendant, the defendant cannot waive his or her presence at the motion hearing.

        If the motion is granted, the Court must make findings consistent with those required by
RCW 10.77.040, and the defendant cannot later contest the validity of the detention on the grounds
that he or she did not commit the acts charged. If the motion is denied, the defendant may still raise
an insanity defense at trial.180

                 2.       What can I expect if the defendant pleads insanity at trial?

         If the defendant raises an insanity defense at trial, the Court must instruct the jury as
required by RCW 10.77.040. If the issue is raised at a bench trial, the Court should make findings
consistent with that section.181 A defendant who raises an insanity defense at trial (as opposed to
filing a pretrial motion for acquittal) is permitted to contest the acts constituting the crimes alleged.


176
    See State v. Smith, 88 Wn.2d 639, 642 (1977), overruled in part in State v. Jones, 99 Wn.2d 735, 737-744 (1983)
(holding that competent defendant has right to refuse to enter insanity plea, and court may not enter such plea over
defendant’s objection). See also State v. Higa, 38 Wn.App. 522 (1984) (competent defendant may refuse to enter
insanity plea; court may not enter insanity plea over defendant’s objection).
177
    See RCW 10.77.040, 10.77.080.
178
    See RCW 10.77.080.
179
    28 Wn.App. 303 (1981), cited in In re Bratz, 101 Wn.App. 662, 672 (Div. Two 2000). See also State v. Jones,
99 Wn.2d 735 (1983) (court may not enter an insanity plea over a competent defendant’s objection).
180
    RCW 10.77.080.
181
    See RCW 10.77.080.


                                                    Page 50
         D.        Effect of Insanity Acquittal.

                   1.       What happens if the defendant is acquitted by reason of insanity?

        If a nonfelony defendant is acquitted by reason of insanity, the Court has the exact same
options as it would have in a felony case: order the defendant into a state mental hospital, i.e.,
Western or Eastern; order the defendant into a less restrictive order; conditionally release the
defendant; or discharge the defendant outright.182 The options will depend upon the findings
entered by the trier of fact,183 not on whether the defendant is a restoration eligible or non-
restoration eligible nonfelony defendant.

        Given the potential loss of freedom by being committed to Western or Eastern following
an acquittal by reason of insanity, it is unlikely that many nonfelony defendants will raise an
insanity defense. In nonfelony cases, the defenses of diminished capacity or no mens rea will
become more popular alternatives, though they won’t always be legally permissible under the
facts of specific cases.

                   2.       What is the maximum length of time that a defendant who is
                            acquitted by reason of insanity can be committed for inpatient
                            treatment or subjected to outpatient treatment via conditional
                            release?

        The maximum period that a defendant who is acquitted by reason of insanity may be
committed for treatment, or otherwise ordered to undergo alternative treatment, is the maximum
possible sentence for any offense charged for which the person was acquitted by reason of
insanity.184 If, in the opinion of the “professional person” at the treatment facility,185 the
defendant is not suitable for discharge from treatment, the professional person must notify the
DMHP at least seven days prior to the release. The DMHP must conduct a civil commitment
evaluation prior to the release date.186

                   3.       What is the procedure if the defendant violates the terms of his/her
                            conditional release?

        The most common situation in which conditional release issues arise is when a defendant
acquitted by reason of insanity is committed to Western or Eastern on an inpatient basis, and
applies for a conditional release.187 Although DSHS makes a recommendation regarding the

182
    RCW 10.77.110.
183
    The trier of fact must answer three additional questions: (1) is the defendant a substantial danger to other persons
unless kept under further control by the court or other persons or institutions?; (2) does the defendant present a
substantial likelihood of committing criminal acts jeopardizing public safety or security unless kept under further
control by the court or other persons or institutions? and (3) if the answer to either of the first two questions is yes, is
it in the best interests of the defendant and others that the defendant be placed in treatment that is less restrictive than
detention in a state mental hospital? RCW 10.77.040.
184
    RCW 10.77.025.
185
    As defined in RCW 10.77.010(17).
186
    RCW 10.77.025.
187
    See, e.g., RCW 10.77.140-10.77.200.


                                                        Page 51
defendant’s application, “the court of the county” that ordered the commitment ultimately rules
on it.188 For nonfelony cases, is “the court” the Superior Court, or the District or Municipal
Court that entered the acquittal? Prior to the March 1, 1999 effective date of SB 6214, the
conditional release provisions applied only to felonies. SB 6214 did not change their language.
That is important to note because pre-SB 6214, that could only mean the Superior Court. In
addition, the statutes talk about the prosecuting attorney representing the state at hearings related
to the conditional release. Does the legislature intend those provisions to apply to municipal
prosecutors, who represent cities, even though the language refers to the state?

        On rare occasions a defendant who is acquitted by reason of insanity must be released
conditionally without having been committed to inpatient treatment at Western or Eastern.189
Interestingly enough, the statute does not specify who is to provide treatment under the
conditional release, or how the conditional release plan is put into place. The Court must
conditionally release the defendant, but who must set up the conditional release plan, and when
must the plan be put into place? If a defendant who applies for conditional release from an
inpatient commitment fails to present a feasible and appropriate plan, including the identity of
the treatment provider, to the Court, he/she will remain inpatient at the hospital.190 But what
happens if a defendant who is in custody rather than inpatient fails to present a conditional
release plan? Does that responsibility fall to the Court or the prosecution, or does it remain with
the defendant?

       There are no easy answers to any of these questions. The most logical conclusion is that
the District or Municipal Court is responsible for conditional release issues involving defendants
who are committed to Western or Eastern following an acquittal by reason of insanity. That
would include the provisions dealing with violations of the terms of any conditional release
under RCW 10.77.190. As for conditional release from custody rather than from inpatient
treatment, the prosecution and defense would be well-advised to work out a potential solution
with Western or Eastern in advance of the hearing on the defendant’s motion for acquittal.

        E.       Diminished Capacity Distinguished.

                 1.       What is the “diminished capacity” defense?

        Insanity is an affirmative defense created by statute.191 As explained by the Supreme
Court in State v. Ellis, 192 diminished capacity is a judicially created concept that does not rise to
the level of an affirmative defense. Essentially, it is a challenge to the prosecution’s ability to
establish the specific state of mind that is an element of a crime.193 The most common use for
the diminished capacity defense is to negate a particular state of mind required for the crime
charged, typically murder. If successfully applied in a murder case, the most likely result would
be conviction of a less serious charge that requires a lower culpable state of mind, such as
188
    See also RCW 10.77.150(2).
189
    See RCW 10.77.110(3).
190
    See RCW 10.77.150.
191
    See RCW 9A.12.010; 10.77.030.
192
    See State v. Ellis, 136 Wn.2d 498, 541-542 (1998) (dissenting opinion, citing State v. Ferrick, 81 Wn.2d 942,
944, cert. denied sub nom. Gustav v. Washington, 414 U.S. 1094, 94 S.Ct. 726, 38 L.Ed.2d 552 (1973)).
193
    Id. at 542.


                                                   Page 52
manslaughter. For nonfelony charges, such as assault, the most likely result of a successful
diminished capacity defense would be an outright acquittal, since there is no available lesser-
included crime with a lower culpable state of mind.

                  2.       How does the defendant establish a diminished capacity defense?

        To establish the defense of diminished capacity, the defendant “must produce expert
testimony demonstrating that a mental disorder, not amounting to insanity, impaired the
defendant’s ability to form the specific intent to commit the crime charged.” 194 According to
Division One, the expert “must be able to testify based on reasonable medical certainty that the
defendant suffers from a mental disorder that impairs the defendant’s ability to form the
requisite” mental state to commit the crime.195 Unless the expert can testify with such reasonable
medical certainty, the trial court should exclude the testimony.196

                  3.       Does the prosecution have the right to have its own independent
                           expert?

       Based on the language quoted above, it seems logical to conclude that a defendant who
was insane at the time of the offense may not assert diminished capacity. Following that logic,
the prosecution should be entitled to seek its own evaluation in order to rule out that the
defendant was insane at the time of the offense.197

                  4.       What does the phrase “mental disorder not amounting to insanity”
                           mean?

       The Supreme Court has recently provided some guidance in defining “mental disease or
defect” in the context of insanity proceedings.198 And the legislature has defined the similar term
“mental disorder” in the civil commitment context as “any organic, mental, or emotional
impairment which has substantial adverse effects on an individual’s cognitive or volitional
functions.”199 This difference in phraseology implies that a mental condition that would support
a diminished capacity defense would be a mental disorder that is somehow different than a
mental disease or defect. In practice, that may be too fine a distinction to make.

       Another possibility is to look to the M’Naghten test for insanity used in Washington.
That test requires cognitive impairment, or impairment of one’s ability to understand the nature
and quality of one’s actions, to support an insanity defense. But the definition of “mental

194
    Id. at 521 (majority opinion; emphasis added).
195
    State v. Thomas, 123 Wn.App.771, 773, 779 (2004) (emphasis added), rev. denied, 154 Wn.2d 1026 (2005).
Although the diminished capacity cases speak alternately of the defendant forming “specific intent”, “intent” or
“required mental state”, diminished capacity should be available as a defense to any culpable mental state as defined
in RCW 9A.08.010. While historically criminal case law spoke in terms of specific vs. general intent, the 1975
enactment of RCW 9A.08.010 marked a change to specific states of mind.
196
    Id.
197
    See RCW 10.77.060(3)(d), (e). See also State v. Flinn, 154 Wn.2d 193, 197 (2005) (State entitled to continuance
to have its own expert evaluate defendant asserting diminished capacity defense).
198
    State v. Klein, 156 Wn.2d 102 (2005).
199
    RCW 71.05.020(24).


                                                     Page 53
disorder” includes impaired volitional functioning. Volitional impairment means that a person
knows what he/she is doing, but cannot control his/hers actions anyway.

                 5.       This sounds complicated. Is there a leading case that might help
                          explain diminished capacity a bit more?

        Yes. State v. Atsbeha200 contains what is probably the best explanation to date of the
difference between insanity and diminished capacity in the State of Washington. But the area is
complicated, especially since insanity and diminished capacity are based on medical assessments
regarding the defendant’s mental status, rather than legal assessments..

        Atsbeha was convicted of possession of a controlled substance with intent to deliver, or
“VUCSA-delivery,” arising out of an encounter with an undercover police detective. The
detective asked Atsbeha to buy some cocaine, and gave him $80. Atsbeha returned a short time
later and gave the cocaine to the detective.201 Atsbeha suffered from a mental disorder, which
resulted in his irrational belief that by selling cocaine to the undercover officer he was actually
helping the police capture a major drug dealer.202

        Atsbeha’s raised a diminished capacity defense at a pretrial hearing. His expert testified
at that hearing that Atsbeha could form the intent to deliver the drugs, but that his mental
disorder prevented him from forming the intent to commit a crime by that delivery.203 The trial
court excluded the expert’s testimony as “neither relevant nor material to a diminished capacity
defense.”204 The Supreme Court upheld the trial court’s action in excluding the expert’s
testimony, explaining that the testimony would be relevant to an insanity defense but not to a
diminished capacity defense.205 Since his mental disorder did prevent him from understanding
that his actions were criminal, he could have asserted an insanity defense.206

        The case came down to a very simple issue: does VUCSA-delivery require the intent to
deliver the drugs,207 or the intent to deliver the drugs with the objective or purpose to commit a
crime”?208 The Supreme Court held that VUCSA-delivery requires only the intent to deliver.
Since Atsbeha could form the intent to deliver the drugs, no matter how irrational his belief that
he was helping the police, his mental disorder did not diminish his capacity. His expert’s
proposed testimony was therefore irrelevant.209

PART VII—USING MODEL FORM ORDERS.


200
    142 Wn.2d 904 (2001).
201
    Id. at 907-908.
202
    Id.at 913.
203
    Id. at 920.
204
    Id. at 913.
205
    Id. at 920-921.
206
    Id. at 920.
207
    Id. at 918-920 (majority opinion)
208
    Id. at 922-923 (Sanders, dissenting)
209
    Justice Sanders argued in his dissent that VUCSA-delivery requires not only the intent to deliver but also the
intent to commit a crime. Id. at 922-923.


                                                   Page 54
       The orders are drafted with several purposes in mind. First and foremost, they are
designed to carry out what the law requires. Second, they are designed to provide flexibility if
circumstances change, by eliminating the need for supplemental orders. Third, they are intended
to specify in detail for all users (judges, prosecutors, defense attorneys, MHPs, jail staff, etc.)
what is being ordered, and in many cases why it is being ordered. In order to minimize the
number of variations of each form, they are designed with check boxes.

        The orders might seem to contain more information than is minimally necessary. That is
by design, and practitioners may prefer to simplify the orders, especially if there are few
competency cases in their jurisdictions. As drafted, the added information helps educate those
unfamiliar with these kinds of issues, and provides helpful reminders to take actions required by
statute. Some of that added information also helps preemptively resolve thorny issues that might
arise down the road. Those issues have arisen over the past several years in the author’s practice
in Seattle Municipal Court. For a summary guide to using the various orders, please refer to
Exhibit 4.

         A.     Initial Competency Evaluation—Exhibit 6.

        The “Order for Initial Evaluation for Competency and Other Ancillary Orders” should
only be used to bring about the initial evaluation for competency; there is a separate evaluation
order for insanity/diminished capacity. This Initial Evaluation order provides for the evaluation
to occur either in the local jail, at Western or Eastern, at a civil commitment location, or on an
outpatient basis at any other location. The order’s flexibility is designed to eliminate the need
for supplemental orders if the defendant’s custody status or location changed before the
evaluation is completed.

         The order is divided into sections, based upon subject matter. Each section is discussed
below.

                1.      Need for Evaluation.

         This section is self-explanatory

                2.      Custody Status and Defendant’s Presence.

        This section is designed to create a record about the defendant’s custody and/or bail
status. It also provides for the option of delaying granting bail if the legal requirements are met
and the Court deems it appropriate. If the defendant is at a civil commitment facility, the name
of that facility should be filled in if known, so that Western or Eastern will know where to go for
the evaluation.

                3.      Status of the Case.

       This section identifies the procedural setting of the case. It includes a finding that the
charge is either serious or non-serious. This saves Western or Eastern precious time by not




                                              Page 55
requiring a Sell analysis for defendants who will be non-restoration eligible if found
incompetent.

        Section 3.2.3. of the order relates to dispositional continuances. That is the term of art
used in Seattle Municipal Court. Other jurisdictions may use different phrases, such as stipulated
orders of continuance or continuance on conditions. Take a look at the Glossary (section II
above) to see what the term “dispositional continuance” means in terms of this Guide. In Seattle
Municipal Court, there are differences in each of the phrases, which is why the order lists them
separately. The order should be modified according to the terminology used in a particular
jurisdiction.

        Section 3.2. of the order also dovetails with section 7.1., relating to the time-for-trial
period and/or the jurisdictional period for probation. If the numbering within section 3.2. of the
order is modified, it is vital to modify the corresponding provisions of section 7.1. of the order
accordingly.

               4.      Order for Evaluation.

        This section sets out the details of the evaluation. It authorizes evaluations in the jail, at
Western or Eastern, at a civil commitment location, or on another form of outpatient basis. In
most instances, the defendant will be held in custody subject to bail. In that situation, the order
provides that the parties agree to an in-jail evaluation, and permits Western or Eastern to decide
whether to conduct the evaluation in jail or at the hospital. Both Western and Eastern have teams
of evaluators who will go to jails or other locations to conduct evaluations. The availability of
the staff at Eastern is a little more limited by travel distances than is the availability of Western’s
staff.

       If the evaluation is to occur at a civil commitment location, Western or Eastern will need
access to the defendant. The order grants Western or Eastern access to the defendant at the
treatment facility. This is important, because that facility might not grant access to the defendant
without a court order.

        The order describes the contents of the evaluation report, at section 4.4. by referring
directly to RCW 10.77.060. The order requires that Western or Eastern include a Sell analysis
regarding involuntary medication only if the defendant is charged with a serious offense. Section
4.5.3. of the order also contains language relating to the issue of involuntary medication under
Sell. Staff at Western have advised the author that, as a practical matter from a medical
standpoint, they would not use the phrase “substantially likely to restore”. Accordingly, the
wording of section 4.4. of the order is based on conversations with Western State psychiatric
staff and is designed to allow the evaluator to express an opinion in appropriate medical terms
that the prosecution can argue to the Court under Sell. The prosecutor would be well advised to
consult with the psychiatrist well in advance of the hearing to determine how/whether the
medical opinion translates into the Sell test.

        The language also provides that, if in the evaluator’s opinion restoration is not reasonably
likely even with involuntary medication, then the evaluation need not provide opinions about



                                              Page 56
involuntary medication. Finally, the language also requests an opinion about whether the
defendant is reasonably likely to be restored if involuntary medication is not authorized. Bear in
mind that RCW 10.77.084(1)(d) allows the Court to skip the competency restoration process and
refer the defendant directly for civil commitment consideration if a “professional person” opines
that the defendant is not reasonably likely to be restored. It is also important to distinguish
between a finding that the defendant is reasonably likely to be restored for purposes of
determining if competency restoration treatment should be discontinued, on the one hand, and a
finding that the defendant is not substantially likely to be restored for the purpose of determining
if involuntary medication is permissible, on the other hand.210

        Section 4.5. of the order is intended to comply with RCW 10.77.060(1)(a) in the event
one of the parties advises the Court that the defendant may be developmentally disabled. If that
occurs, the statute requires that at least one of the experts or professional persons conducting the
evaluation be a developmental disabilities professional, as that term is defined in RCW
10.77.010(8). Section 4.5. will only be applied if the check-box is marked.

        Section 4.6. of the order is intended to comply with RCW 10.77.065(1)(a)(i). That
section requires that the DMHP, prosecutor, defense attorney and local jail receive a copy of the
evaluation report itself. Please note that the order relates specifically to King County; those who
practice in other counties will need to modify the order appropriately.

        Section 4.7. of the order contains language by which the parties waive the statutory
requirement of two evaluators. If you do not want to waive this requirement, you will need to be
sure to cross out this section. Bear in mind that, due to staffing considerations, Western will only
conduct a competency evaluation away from Western with a single evaluator. Thus, if one of the
parties is not willing to waive the requirement of two evaluators, the evaluation will occur at
Western. The same is most likely true with respect to Eastern.

                     5.       Transmittal of Records; Transport Orders; Ancillary Orders.

        The last three sections of the order are “enabling” provisions. For example, they
authorize the transmittal of information, authorize the defendant to be transported as may be
necessary, and provide for an interpreter to be appointed if necessary. Finally, speedy trial is
tolled if competency is at issue in a pre-judgment matter or dispositional continuance, and
jurisdiction is tolled if competency is at issue in a post-judgment proceeding.

       If the observation and examination is to be carried out at Western or Eastern, the Court
will need to arrange for transporting the defendant to and from the facility. This is a matter that
should be worked out in advance with the local City or County Police Department or the local or
County jail.

       Section 7.1. of the order is designed to work hand-in-hand with sections 3.1. and 3.2. of
the order. There are no check-boxes under section 7.1. of the order, since the provisions will
apply based on the boxes that are marked under section 3.1. or 3.2. or the order.


210
      Each of these concepts is discussed earlier in this Guide.


                                                         Page 57
        If the case is at the pre-judgment stage or if the defendant is on a dispositional
continuance, then speedy trial is an issue. CrRLJ 3.3(e)(1) excludes from the calculation of the
time-for-trial that time involving “[a]ll proceedings relating to the competency of a defendant to
stand trial on the pending charge, beginning on the date when the competency examination is
ordered and terminating when the court enters a written order finding the defendant to be
competent.” Some form orders contain a recital that the action itself is stayed during the
examination period. But the action itself is not stayed until after the Court finds the defendant
incompetent, and in nonfelony cases, only under certain circumstances.211

       If the case is at the post-judgment stage, then probation jurisdiction is an issue. The
running of probation should be tolled during the defendant’s incompetency.

           B.      Order Retracting Competency Evaluation—Exhibit 7.

       If the parties agree that changed circumstances warrant retracting the competency
evaluation order, then the Court will need to sign an order doing so. It is also important to notify
Western or Eastern immediately by phone or e-mail, and then FAX or mail the retraction order to
them. If that does not happen quickly, there is a reasonable likelihood that Western or Eastern
will conduct the evaluation without knowing that the order has been retracted. This has
happened once or twice in Seattle, so it is most certainly possible, especially with an in-custody
defendant.

       The form order specifically applies to the two situations described in the order. It does
not cover all possible situations, but it can be modified to fit other circumstances.

           C.      Competency Restoration Order—Exhibit 8.

        If the Court concludes at the competency hearing that the defendant is a restoration
eligible nonfelony defendant and is incompetent to stand trial, the Court must order competency
restoration treatment. The Competency Restoration Order should be used, regardless of whether
the Court intends to order inpatient or outpatient treatment. If the defendant remains
incompetent after completing one form of treatment and the Court wants to order the other, the
Court should issue a new Competency Restoration Order.

                   1.       Findings of Fact.

       This portion contains the specific findings required for the Court to commit the defendant
for competency restoration treatment.

                   2.       Orders Regarding Treatment for Restoration of Competency.

       The Court can designate the type of competency restoration program by checking the
appropriate box. Section 2.1 relates to inpatient treatment. RCW 10.77.088(1)(a)(i) requires that
the Court calculate the number of days by which the 14-day treatment period can be extended,
and that the Court include that calculation in the order. Section 2.1.3. states that the inpatient
211
      See RCW 10.77.084(1)(a); 10.77.084(4).


                                                Page 58
treatment be provided at Western; if the treatment is to be provided elsewhere, you will need to
modify the order accordingly.

        Section 2.2. of the order relates to outpatient treatment, if ordered by the Court. The
Court will need to fill in the name of the outpatient treatment facility, and any additional
conditions of the outpatient program. The conditions in the order are loosely based on the
deferred prosecution statute212 and the deferred prosecution orders typically used in courts of
limited jurisdiction.

       Section 2.3. of the order contains the Court’s findings regarding authorizing Western or
Eastern to administer involuntary medication as part of the competency restoration treatment.

                  3.    Orders upon Completion of Treatment Period.

       The most important question regarding competency restoration treatment is whether it
worked. Section 3. of the order requires Western or Eastern to evaluate the defendant’s
competency before the treatment ends. As with the initial competency evaluation order, this one
contains a waiver of the requirement of two evaluators.

       The contents of the evaluation report similar to the contents required by the initial
evaluation order, but do not include a Sell analysis. This is intentional, even though theoretically
the Court has the authority to order outpatient treatment once the inpatient treatment ends.

        Subsection 3.3.1. sets a return date for the next competency hearing. It provides for an
early termination of the competency restoration treatment if the treatment facility determines that
competency has been restored or is unlikely to be restored.

        Subsection 3.3.2. provides for the Court to set a later hearing date, in case the next
hearing is scheduled before the defendant’s inpatient competency restoration treatment is
completed. That could occur, for example, if the Court underestimates the time it takes to
transport the defendant to the treatment facility. This subsection alerts Western or Eastern to
notify the Court if this situation arises.

                  4.    Transport Orders.

        This section only applies if the defendant is placed into inpatient treatment. It authorizes
the defendant to be transported to and from the treatment facility.

          D.      Order Finding Defendant Competent—Exhibit 9.

        If the Court finds the defendant competent, the Court must issue a written order to that
effect. The Order Finding Defendant Competent should be used, whether the Court makes its
finding after retracting the initial evaluation, after a hearing based on the initial competency
evaluation, or after competency restoration treatment.


212
      RCW Ch. 10.05.


                                             Page 59
         Section 1 of the order identifies the status of the case—pending trial or post-disposition.
It also identifies whether in a post-disposition matter the defendant is on a suspended or deferred
sentence, or some form of dispositional continuance. This is an important distinction, since
dispositional continuances are governed by the time-for-trial rule rather than by a jurisdiction
end date.

        Section 3 of the order re-commences either the time-for-trial period or the Court’s
jurisdictional period. If the defendant is awaiting sentencing, the order provides for a separate
Judgment and Sentencing Order.

        If the defendant is awaiting trial or is on a dispositional continuance, the time-for-trial
period will recommence and the Court should calculate the new expiration date in section 3.1. of
the order. If the defendant is in on a suspended or deferred sentence, the Court should calculate
the new jurisdiction end date in Section 3.2.. In setting the new jurisdiction end date, the Court
should be mindful of Campbell’s holding that the time a felony defendant is being evaluated for
competency at a mental hospital is excluded from the running of the Court’s jurisdiction. Note
also that this order does not expressly reinstate the duty of probation to continue monitoring the
defendant. That is because the form orders are designed so that the Court does not relieve
probation of its duty to monitor probation unless the Court finds the defendant incompetent to
proceed with a probation violation matter.

       E.      Dismiss and Refer—Unsuccessful or Unlikely Restoration—Exhibit 10.

       If the Court concludes that a restoration eligible nonfelony defendant awaiting trial that
has completed the competency restoration treatment has not been restored to competency, then
the Court is required to dismiss the case. The Court is also required to dismiss the case if it
determines that, although the defendant has not completed the treatment, the defendant is
unlikely to be restored to competency with further treatment. If the defendant was in custody at
the time, then the Court must also detain the defendant and send him or her to an evaluation and
treatment facility for evaluation under RCW Chapter 71.05. If the defendant was out of custody
at the time, then the Court must refer the defendant to the DMHP, who will evaluate the
defendant at a location chosen by the DMHP.

       The order is designed to carry out the Court’s duties. The first section specifies the basis
upon which the defendant qualifies for “restoration eligible” status, similar to the Competency
Restoration Order. This finding is crucial for the Attorney General’s Office or the County
Prosecutor’s Office in any civil commitment proceedings it initiates following the dismissal.

       This section of the order also specifies the basis for the dismissal. There is an alternative
for each reason the Court can enter dismissal. For example, a professional person (as defined in
RCW 10.77.010(17)) might opine, and the Court find, that the defendant is unlikely to regain
competency with either inpatient or outpatient treatment. Or the defendant might have
completed only inpatient treatment, but outpatient treatment will either be unsuccessful or is
otherwise not appropriate in the particular case. Finally, the defendant might have completed
both inpatient and outpatient treatment unsuccessfully.




                                             Page 60
       The remaining portions of the order dismiss the case and make the appropriate referral.
They also authorize the prosecutor to transmit records to the DMHP or the treatment facility, as
appropriate. The order sets a specific time limit within which the jail is to transport the
defendant to Western or Eastern.

            F.       Dismiss and Detain—Ineligible for Treatment—Exhibit 11.

        As previously discussed, if a non-restoration eligible nonfelony defendant is not
competent to stand trial, the Court has limited options: stay213 or dismiss the proceedings and
detain the defendant; or dismiss outright. The Dismissal—Ineligible for Treatment order is the
proper order to use.

        If the dismiss-and-detain option is used, the Court should fill in the maximum length of
detention time in section 2.1.1. RCW 10.77.088(2) contains no specific time limit. The Seattle
Municipal Court has historically used 72 hours, excluding weekends and holidays. One factor to
consider in setting the time limits is the complexity of the particular case, including the number
of witnesses. It is also a good idea to work out release procedures with the jail so that the
defendant is not held in jail longer than is necessary.

       Because the DMHP will be under time pressure to determine whether to pursue civil
commitment proceedings, it is vital that the prosecutor gets the information to them as soon as
possible. Section 3.2. of the order requires the DMHP to notify the Court and both counsel
whether civil commitment proceedings were instituted. The order should contain the defense
attorney’s full name and address for the DMHP’s use.

            G.       Strike and Refer--Probation Revocation—Exhibit 12.

        This order applies when the Court finds a nonfelony defendant incompetent to proceed on
a probation violation matter; it presumes the Court lacks authority to order competency
restoration treatment. The order requires some modification if it is to be used in a sentencing
matter.

        Section 2. of the order strikes the hearing and either refers the defendant to the DMHP for
civil commitment evaluation or releases the defendant immediately. The referral provision in
section 2.1. of the order is similar the dismiss and detain provision in the Dismissal—Ineligible
for Treatment order with one major difference: this order refers the defendant to the DMHP at
once, but strikes the probation violation hearing effective five days later, without further order of
the Court. The defendant is ordered release on the earlier of the fifth day or when the DMHP
declines to initiate a civil commitment. The order is phrased this way in an attempt to avoid the
issue of whether the Court has authority to detain the defendant on a probation matter.

       Section 3. of the order either tolls the time-for-trial period or the period of probation,
defending on the nature of the probation matter. Section 3.3. of the order relieves probation of
its duty, obligation and responsibility to supervise or otherwise monitor the defendant’s
probation until the Court enters a written order finding the defendant competent.
213
      As noted previously, the phrase “stay” is not defined; the City of Seattle does not rely on that provision.


                                                         Page 61
         H.       RCW 10.77.065 Referral—Exhibit 13.

         If the competency evaluator makes the findings based on the evaluation issues required
by RCW 10.77.060(f)(3), then the Court is required to order that the DMHP evaluate the
defendant for possible civil commitment. The requirement applies regardless of whether the
Court ultimately finds the defendant competent or incompetent. If the Court finds the defendant
incompetent, the Court can make the referral under either RCW 10.77.088(1)(b) or RCW
10.77.088(2), as the case may be. But if the Court finds the Defendant competent, then the order
in this section would be the appropriate one

       This order is drafted to apply to a competent, based on the assumption that an
incompetent defendant would be referred under RCW 10.77.088(1)(d) or 10.77.090(1)(e).
Section 2 of the order sets out the various statutory bases for the referral. Section 3 of the order
sets out the timing of the evaluation by the DMHP. The only time frame contained in RCW
10.77.065 is when the defendant has been sentenced to less than 24 months, in which case the
evaluation must occur prior to the defendant’s release from custody. Neither of the other two
grounds for referral contain any time frames, so the order is similarly vague.

         I.       Insanity/Diminished Capacity Evaluation—Exhibit 14.

        An insanity or diminished capacity evaluation is far more intensive and time-consuming
than a competency evaluation, and should only be requested when the defendant is truly
contemplating an insanity or diminished capacity defense. For that reason the competency and
insanity evaluations have been placed in separate orders, even though they are both governed by
RCW 10.77.060. Doing so will eliminate the possibility that the parties inadvertently request an
evaluation for both when they really only want competency, or only want insanity/diminished
capacity.

        If the defense asks for an evaluation for diminished capacity, the prosecution should ask
that the evaluation include insanity. Diminished capacity is a judicially created defense available
when a mental disorder not amounting to insanity impaired the defendant’s ability to form the
requisite specific intent to commit the crime charges.214 Unless the evaluation includes insanity,
there will be no way to determine whether the mental disorder does or does not amount to
insanity.215

       The insanity/diminished capacity evaluation is a bit simpler than the competency
evaluation form. There is no need to waive two evaluators, as Western, and most likely Eastern,
will not conduct an insanity or diminished capacity evaluation with less than two evaluators.
And unlike competency evaluations, insanity or a diminished capacity evaluation cannot be
performed effectively in the jail. Consequently, the detailed language in the competency

214
   State v. Ellis, 136 Wn.2d 498, 521 (1998).
215
   The statute requires that the report include an evaluation of sanity if the defense expresses an intention to rely on
an insanity defense. RCW 10.77.060(3)(d). But that provision only states what the order must include. It still
leaves the Court with discretion to include other information, including an evaluation of sanity in order to determine
whether a diminished capacity defense is available.


                                                      Page 62
language about where the evaluation will occur is unnecessary in the insanity/diminished
capacity evaluation.

           J.      Insanity Acquittal Order—Exhibit 15.

        If the Court grants the defendant’s motion for acquittal by reason of insanity, the Court
should issue written findings of fact and orders. If the defendant is acquitted by reason of insanity at
a jury or bench trial, the Court should modify the order appropriately.

                   1.       Findings of Fact.

        As discussed previously, a defendant must be competent in order bring a motion for
acquittal by reason of insanity. The defendant must also be advised of the rights he or she waives,
and the potential consequences of the motion.216 Section 1.1. of the order states that the defendant
is competent, and recites the rights that the defendant must knowingly, voluntarily and intelligently
waive.

        The Court is also required to make certain findings regarding the defendant’s
dangerousness.217 Sections 1.3. and 1.4. of the order contain the various possible findings. If the
defendant is acquitted by reason of insanity at a jury trial, the form should be modified to recite that
the jury made the findings in those two sections.

                   2.       Judgment of Acquittal by Reason of Insanity.

           Section 2. of the order sets forth the actual judgment of acquittal.

                   3.       Orders Regarding Defendant’s Treatment or Discharge.

        The disposition of the defendant following the acquittal by reason of insanity depends upon
the findings entered in Sections 1.3. and 1.4. of the order. Sections 3.1. through 3.4. of the order
contain the different alternatives; which one applies depends upon which boxes are checked in
sections 1.3. and 1.4. All of the treatment sections require the defendant to comply with treatment.
The defendant’s failure to comply could for the basis for revoking any conditional release.

        Section 3.1. of the order provides for inpatient treatment at a Western or Eastern, and
authorizes the defendant’s transport. It also authorizes confining the defendant in jail for up to
seven days while awaiting transport to Western or Eastern. This provision is based on RCW
10.77.220. In addition, it authorizes the transport to the hospital. Sections 3.2. and 3.3. provide for
outpatient treatment of one kind or another. The Court needs to fill in some blanks regarding the
outpatient treatment. Section 3.4. of the order provides for an outright release of the defendant on
the charge(s) on which the acquittal by reason of insanity is entered. The Court does not need to
take any further action.



216
      See State v. Brasel, 28 Wn.App. 303 (1981). See also RCW 10.77.110.
217
      See RCW 10.77.040, .080, and .110.


                                                    Page 63
        The maximum period of inpatient or outpatient treatment into which the defendant may be
ordered is the maximum possible jail sentence the defendant could have received if convicted on
any of the charges for which he or she was acquitted by reason of insanity.218 The treatment facility
will not have ready access to the Court’s files, and in any event its staff members are not lawyers. It
therefore falls to the Court to calculate the release date. The order grants the defendant credit for
previous bookings in calculating the release date.

        Section 3.5. of the order contains a blank line for the release date, and blank lines for
calculating the release date. The order includes the calculation to make it easier for the Court (or
counsel, if he/she prepares the order) to determine the release date.

PART VIII--CONCLUSION.

        State statutes, as interpreted by case law, govern competency and sanity issues. But the
logistics of complying with the law and ensuring public safety are largely dependent upon local
efforts and resources. The legislature has expanded the options in dealing with mental health
issues in courts of limited jurisdiction. The appellate courts have also added a layer of
complexity in terms of competency restoration treatment. As a result, many of the “how-to”
details require constant communication among all of the players in the system. This includes the
Court, prosecutor defense bar, police, and community mental health professionals (such as the
DMHP and representatives of Western or Eastern).

        This is not an area in which there is a “one size fits all” approach. Counties and cities
should form work groups to develop a uniform approach (and to coordinate between county and
city) in local areas. Judges, prosecutors, and defense attorneys should communicate with other
colleagues in other counties, and with local mental health providers, on a regular basis. It is well
worth the effort, both in terms of public safety and in terms of handling nonfelony cases
involving mentally ill offenders appropriately.


j:/data/criminal/docs/forms/mio/2008 Competency Guide




218
      RCW 10.77.025.


                                              Page 64
Exhibit 1:      Comparison of Issues Relating to Competency, Insanity, Diminished
                Capacity, & Civil Commitment in Nonfelony Cases


                  Competency         Insanity           Diminished          Civil
                                                        Capacity            Commitment
Relevant          Municipal or       Municipal or       Municipal or        Superior Court.
Court             District Court.    District Court.    District Court.

Relevant          The pending        The pending        The pending         A separate civil
Proceeding        criminal action.   criminal action.   criminal action.    proceeding.

Relevant Test     As a result of     As a result of     Evidence of         As a result of
                  mental disease     mental disease     mental disorder     mental
                  or defect, does    or defect, did     may be              disorder, does
                  defendant lack     defendant have     considered in       subject present
                  capacity to        capacity to        determining         likelihood of
                  understand         perceive nature    whether             serious harm, or
                  nature of          and quality of     defendant had       is subject
                  proceedings or     acts charged, or   capacity to         gravely
                  assist in own      tell right from    form particular     disabled?
                  defense?           wrong with         state of mind
                                     reference to       that is element
                                     charged acts?      of crime
                                                        charged.

Relevant Time     At the present     At the time of     At the time of      At the present
                  time.              offense.           the offense.        time.

Can Status        Yes. Defendant     No. Defendant      No. Defendant       Yes. Civil
Change over       can change         was either sane    either did or did   commitments
Time?             from competent     or insane at the   not have            run for 72
                  to incompetent     time of offense.   capacity to         hours, then 14
                  and back again,                       form requisite      days, then 90
                  over time.                            state of mind.      days, then 180
                                                                            days, 180-day
                                                                            renewable
                                                                            periods, and
                                                                            provide for less
                                                                            restrictive
                                                                            orders as well.

Revised 3-1-08
j:/data/criminal/docs/forms/mio/Comparison of Issues 3-1-08




                                            Page 65
Exhibit 2:        The 2008 Introduction to the Mental Health Civil Commitment Law



                             THE 2008 INTRODUCTION TO
                     THE MENTAL HEALTH CIVIL COMMITMENT LAW


                                          By Michael J. Finkle
                                   Assistant City Attorney Supervisor,

                                   Public & Community Safety Division
                                      Seattle City Attorney's Office1



                                                  Prepared for

                        Washington State Association of Municipal Attorneys
                                        Spring Conference
                                      April 30-May 2, 2008
                                     Whistler, B.C., Canada



I.       INTRODUCTION.

Involuntary commitment, more commonly known as civil commitment, is one of the more
specialized areas of practice in Washington. Only the State may bring an action as the petitioner,
and court-appointed counsel typically (though not always) represents the respondent. RCW
chapter 71.05 governs civil commitment of adults based on mental disorder. RCW chapter
70.96A applies to involuntary commitment of adults based on alcoholism or chemical
dependency. RCW chapter 71.34 applies to involuntary commitment of minors based on mental
disorder. All further references in this Guide to “civil commitment” are to proceedings against
adults based on a mental disorder pursuant to RCW chapter 71.05.

This Guide is intended to familiarize you with the general principles and statutory provisions
behind civil commitment on an introductory level. It is not intended to serve as a practice guide
or to substitute for a practitioner reviewing the statutes and case law on his or her own. There
are many appellate decisions interpreting and limiting the application of the statutes cited below.

1
 This Guide reflects the views and conclusions of the author; those views and conclusions are not necessarily those
of the Seattle City Attorney, the Seattle City Attorney’s Office, or any division or section thereof. The author makes
neither express nor implied warranties regarding the use of these materials. Each attorney must depend upon his or
her own legal knowledge and expertise in the use of these materials. The author wishes to express thanks to Ethan
Rogers, Sr. King County Prosecuting Attorney, and Rick Lichtenstadter, The Defender Association, for their
comments on earlier drafts.


                                                     Page 66
There are also many statutory provisions that clarify, limit or expand the general principles
discussed in this Guide. Those cases and statutes are beyond the scope of this Guide, but anyone
practicing this area of law will need to review them.

I have chosen to use a “Frequently Asked Questions” format rather than a traditional outline
form. The Guide starts out with a basic overview of the civil commitment statutory scheme,
including the procedures involved in a prototypical case. Then it discusses areas in which the
criminal justice system overlaps with the civil commitment system.


II.     THE BASICS OF THE CIVIL COMMITMENT SYSTEM.

A.      Introductory Concepts.

1.      What is civil commitment under RCW chapter 71.05? Civil commitment occurs
when a court determines that a person should be detained or lawfully confined2 for evaluation,
treatment or both. The evaluation and treatment may either be inpatient or in a less restrictive
setting.3 Inpatient refers to treatment within a hospital setting. A less restrictive setting refers to
treatment on an outpatient basis, or within the community.

2.     What are the different grounds for civil commitment under RCW chapter 71.05?
Generally speaking, a person may be civilly committed if, as a result of mental disorder, he or
she presents a likelihood of serious harm or is gravely disabled.4

3.     What does “Mental Disorder” mean? A mental disorder means any organic, mental or
emotional impairment that has substantial adverse effects on a person’s cognitive or volitional
functions.5 Organic impairment could include the effects of a serious head injury, as well as a
congenital condition. Cognitive functioning refers to a person’s ability to perceive reality.
Volitional functioning refers to a person’s ability to control his or her behavior.

4.      What does “Likelihood of Serious Harm” mean? Likelihood of serious harm means
that there is a substantial risk that the person could inflict physical harm to himself or herself, or
to another person, or harm to another person’s property. Harm to oneself must be evidenced by
threats or attempts to commit suicide or inflict physical harm on oneself. Harm to another
person must be evidenced by behavior that has caused such harm or that places another in
reasonable fear of sustaining such harm. Harm to property of another must be evidenced by
behavior that has caused substantial loss or damage to another’s property.6 Likelihood of serious



2
  RCW 71.05.020(12).
3
  RCW 71.05.020(4).
4
  RCW 71.05.150(1), (2). The concept of “developmental disability” also impacts the civil commitment provisions.
The definition of “developmental disability” is incorporated from RCW 71A.10.020(3) by RCW 71.05.020(14).
The impact on the civil commitment process for a respondent who suffers from a developmental disability is beyond
the scope of this Guide.
5
  RCW 71.05.020(24).
6
  RCW 71.05.020(23)(a).


                                                   Page 67
harm may also include a showing that the person has threatened the physical safety of another
and has a history of one or more violent acts.7

5.      What does “Gravely Disabled” mean?             Gravely disabled is a rather serious and
extreme condition as defined by statute. It means “a condition in which a person, as a result of a
mental disorder: (a) Is in danger of serious physical harm resulting from a failure to provide for
his or her essential human needs of health or safety; or (b) manifests severe deterioration in
routine functioning evidenced by repeated and escalating loss of cognitive or volitional control
over his or her actions and is not receiving such care as is essential for his or her health or
safety”.8

B.      Procedural Concepts.

1.      What are the parties involved? The parties are the petitioner, who is seeking to civilly
commit an individual, and the individual, referred to as the respondent. An individual, referred to
by statute as the Designated Mental Health Professional, or DMHP, files the initial petition.9
The DMHP is the mental health professional appointed by the county to perform the duties
specified in RCW chapter 71.05.10 As a general practice, the evaluation and treatment facility at
which the respondent is located would file any subsequent petitions, though by statute the
DMHP is also authorized to do so.11

2.      Who represents the various parties? The county prosecutor for the county in which the
proceeding is initiated represents the petitioner in most instances. However, the office of the
Attorney General represents state hospitals (such as Western State and Eastern State Hospitals)
and state institutions, except for petitions for 14-day detentions.12

3.       What court has jurisdiction over the process? The Superior Court has jurisdiction
over civil commitment petitions.13 Because the initial petition is filed by the DMHP, it will be
filed in the Superior Court for the county in which the DMHP works.14 If a county does not have
an evaluation and treatment facility, the respondent will be transferred to a facility in another
county. If the treatment facility files a 14-day petition, the matter will be heard in the county in
which the facility is located, even if the detention originated elsewhere.

By way of example, King County has more than one 14-day facility. Smaller counties that lack
evaluation and treatment facilities often transfer their respondents to King County for treatment.



7
   RCW 71.05.020(23)(b). A “violent act” means behavior that resulted in homicide, attempted suicide, nonfatal
injuries or substantial damage to property. RCW 71.05.020(38). A history of one or more violent acts refers to the
10-year period prior to filing of the civil commitment petition, with certain periods tolled. RCW 71.05.020(19).
8
  RCW 71.05.020(17).
9
  See RCW 71.05.150(3); 71.05.153(3).
10
   RCW 71.05.020(11).
11
   RCW 71.05.230(4); 71.05.290(1)
12
   RCW 71.05.130. See sections II.C.2-6. infra for a discussion of a 14-day detention.
13
   See RCW 71.05.135 and 71.05.137.
14
   RCW 71.05.020(11); 71.05.130; 71.05.153; 71.05.160; 71.05.320.


                                                   Page 68
The King County Superior Court has jurisdiction to rule on any subsequent petitions filed by the
facility.15

If the respondent is on an LRO rather than inpatient, the DMHP would be the petitioner.16 The
Superior Court in which the DMHP is located would have jurisdiction over the petition.17

C.      The Process Itself.

1.       How does the process start? The DMHP starts the civil commitment process by filing a
petition for an initial detention.18 This process begins as an “emergency petition” if the
respondent, as a result of mental disorder, presents an imminent likelihood of serious harm or is
in imminent danger because of being gravely disabled.19 The DMHP must first investigate and
evaluate the specific facts alleged and the reliability and credibility of the persons providing
information. If the DMHP concludes that the criteria for initial detention are met, the DMHP
may take or order law enforcement to take the respondent into emergency custody to an
evaluation and treatment facility for up to 72 hours.20 The facility must evaluate the respondent
within three hours of arrival; the DMHP then has 12 hours in which to decide whether or not to
file a petition.21

If the likelihood of serious harm or the danger due to grave disability is not imminent, then the
DMHP initiates the civil commitment process by filing a non-emergency petition with the
Superior Court. Before filing the petition, the DMHP must take certain steps. For example, the
DMHP must investigate and evaluate “the specific facts alleged and the reliability and
credibility” of persons providing information. In addition, the DMHP must be “satisfied that the
allegations are true and that the [respondent] will not voluntarily seek appropriate treatment.”
Finally, the DMHP “must personally interview the [respondent], unless the [Respondent] refuses
an interview, and determine whether the [respondent] will voluntarily receive appropriate
evaluation and treatment at an evaluation and treatment facility.”22

If the Superior Court grants the non-emergency petition, the court will issue the initial detention
order which allows the DMHP to immediately detain the respondent to a hospital. The DMHP
may have law enforcement take the respondent to an evaluation and treatment facility so the
DMHP can serve the order.23




15
   RCW 71.05.130; 71.05.320.
16
   RCW 71.05.320(3).
17
   RCW 71.05.130; 71.05.320(3).
18
   RCW 71.05.160.
19
   RCW 71.05.150(1) (emphasis added).
20
   Id. The 72-hour period begins to run upon acceptance and excludes Saturdays, Sundays and holidays. RCW
71.05.180. There are also circumstances under which a peace officer may take a respondent to an evaluation and
treatment facility on his or her own initiative. See RCW 71.05.153(2)
21
   RCW 71.05.153(3).
22
   RCW 71.05.150(1)(a).
23
   RCW 71.05.150(2)-(4).


                                                 Page 69
2.      What is the next step after the initial detention? The evaluation and treatment facility
has up to 72 hours to evaluate the respondent.24 The facility must conduct an evaluation to
determine if the respondent needs medical hospitalization or chemical dependency treatment.25
If the facility determines that mental health treatment is appropriate and that the statutory
requirements are satisfied, the facility may file a petition for either 14 days of inpatient or 90
days of a less restrictive alternative treatment.26 This is referred to as a probable cause hearing.27
If the facility does not file a petition for a probable cause hearing, then it must release the
respondent.28

3.     What must the petitioner prove at the “probable cause hearing,” and to what
standard? The petitioner must prove that the respondent, as the result of mental disorder,
presents a likelihood of serious harm or is gravely disabled. Notwithstanding the use of the
phrase “probable cause hearing”, the petitioner’s burden of proof is a preponderance of the
evidence.29

4.       What rights does a respondent have at the probable cause hearing? The respondent
has several important rights at a probable cause hearing. The rights are set out by statute, and
include many of the rights commonly afforded criminal defendants. These include the right to
present evidence, to cross-examine witnesses, to have the rules of evidence apply, to remain
silent, and to review and copy all petitions and reports in the court file. 30 There are other rights
also contained in that same section.

5.      If the petitioner prevails at the probable cause hearing, how long does the treatment
last? If the petitioner meets its burden, the court has two alternatives. If the court finds that
treatment in a less restrictive setting is in the best interests of the respondent or others, then it
must order the respondent into a less restrictive course of treatment for up to 90 days. This is
known as an “LRO”, or a “less restrictive order”. If, on the other hand, court finds that the
respondent does not meet the criteria for an LRO, it must order that the respondent be detained
for up to 14 days of inpatient treatment. 31

6.     Can the respondent be released before the end of the 14-day inpatient treatment
period?32 The 14-day inpatient treatment program must be terminated early when, “in the
opinion of the professional person33 in charge of the facility or his or her professional designee,”


24
   RCW 71.05.170; RCW 71.05.180.
25
   RCW 71.05.210.
26
   RCW 71.05.230.
27
   RCW 71.05.170; RCW 71.05.240.
28
   RCW 71.05.210.
29
   RCW 71.05.240.
30
   RCW 71.05.360(8).
31
   RCW 71.04.240.
32
   This question presumes the court finds that the petitioner has met its burden and that the court has ordered the
respondent into 14-day inpatient treatment. If the petitioner does not prevail at the probable cause hearing, the
respondent will be released. RCW 71.05.180.
33
   A professional person is “a mental health professional” and shall also mean a physician, registered nurse,” or
others designated by rules adopted by the Department of Social and Health Services (“DSHS”). RCW
71.05.020(25), (28). A mental health professional means a psychiatrist, psychologist, psychiatric nurse, or social


                                                    Page 70
certain conditions are met. One alternative is that the respondent no longer meets the original
criteria for commitment (i.e., no longer constitutes a likelihood of serious harm or no longer is
gravely disabled). Another alternative is that the respondent is prepared to accept voluntary
treatment upon referral or is to remain in the facility providing intensive treatment on a voluntary
basis.34

7.       What is the next step in the process? One of three things will happen. One possibility
is that the facility files a petition for further confinement. This is referred to as a “full hearing”.
Another possibility is that the respondent agrees to further treatment on a voluntary basis. If
neither of those occurs, the respondent is released at the end of the 14-day period.35

8.      What must the petitioner prove at the full hearing, and to what standard? The
petitioner must prove by clear, cogent and convincing evidence36 that the respondent meets at
least one of the criteria for continued commitment.37 There are four possible grounds for
continued commitment.

The first ground is that the respondent, after having been taken into custody for evaluation and
treatment, has threatened, attempted, or inflicted physical harm on himself or herself or on
another, or substantial damage on the property of others. In addition, the respondent must
present a likelihood of serious harm as a result of mental disorder.38

The second ground is that the respondent was taken into custody as a result of conduct in which
he or she attempted or inflicted harm on himself or herself or on another, or substantial damage
on the property of others. In addition, the respondent must continue to present a likelihood of
serious harm as a result of mental disorder.39

The third ground relates to referrals from the criminal justice system. 40 The manner in which
that occurs is more complicated than this general introduction is intended to cover.

The fourth ground is that the respondent is gravely disabled.41 As discussed previously, the
definition of “gravely disabled” includes a requirement that the grave disability be as a result of
mental disorder.42

9.      What rights does a respondent have at the full hearing? The respondent has the same
rights at the full hearing include as at the probable cause hearing, as well as some additional
rights such as the right to a jury trial.43


worker, or others defined by rules adopted by DSHS. RCW 71.05.020(25). “Psychiatrist”, “psychologist” and
“social worker” are also defined terms. See RCW 71.05.020(29), (30), (36).
34
   RCW 71.05.260(1).
35
   RCW 71.05.260(2). See also RCW 71.05.280.
36
   RCW 71.05.310.
37
   RCW 71.05.320(1).
38
   RCW 71.05.280(1) (emphasis added). See RCW 71.05.020(23) for the definition of “likelihood of serious harm”.
39
   RCW 71.05.280(2) (emphasis added). See RCW 71.05.020(23) for the definition of “likelihood of serious harm”.
40
   RCW 71.05.280(3).
41
   RCW 71.05.280(4).
42
   See RCW 71.05.020(17) for the definition of “gravely disabled”.


                                                  Page 71
10.      If the petitioner prevails at the full hearing, how long does the treatment last? If the
petitioner meets its burden, the court or jury must determine whether the best interests of the
respondent or others would be served by a less restrictive treatment. Even if a jury hears the
case, it is the court that determines what happens to the respondent once the verdict is rendered.

If the court or jury finds that the best interests are not served by less restrictive treatment, the
court must remand the respondent to a DSHS facility44 for 90 days of inpatient treatment. If the
court or jury finds that best interests are served by less restrictive treatment, the court must either
remand the respondent to DSHS for 90 days of inpatient treatment or to a less restrictive
alternative treatment for 90 days. If the basis for the commitment is a referral from the criminal
justice system under the third ground discussed above, then the period of inpatient or less
restrictive treatment is 180 days instead of 90 days.45

11.     Can the petitioner seek to renew the commitment and if so, for how long? Yes,
under certain circumstances. If the respondent is held on a 90-day inpatient treatment period, the
respondent must be released unless the facility petitions for continued commitment. If the
respondent is held on an LRO, then at the end of the 90-day treatment period, the respondent
must be released unless the DMHP petitions for continued commitment.46 The four grounds for
renewing the commitment are essentially the same as the four grounds for commitment at the full
hearing, except that “harm to self” is not a basis for renewing a 90-day commitment.47 If the
respondent continues to pose a likelihood of serious “harm to self” at the end of the 90-day
period, then presumably the DMHP in the county in which the facility is located would have to
petition for an initial detention and the process would start over again.

The hearing is held in the same manner as the full hearing for the 90-day commitment. This
would include the petitioner bearing the same burden of proof of clear, cogent and convincing
evidence, and the respondent’s same right to a jury trial.48 The renewal petition is filed in the
Superior Court of the county in which the treatment facility petitioning for renewal is located.49
That may or may not be the same county that conducted the full hearing for the 90-day petition.

The respondent may not be detained unless a valid commitment order is in effect, and no
commitment order may exceed 180 days.50 If the petitioner meets its burden of proof before the
court or jury, the court may order the respondent committed for an additional 180-day period. At

43
   RCW 71.05.300; RCW 71.05.310.
44
   This includes a facility certified by DSHS to administer 90 days of treatment. See RCW 71.05.320(1).
45
   RCW 71.05.320(1).
46
   RCW 71.05.320(3).
47
   Compare RCW 71.05.280 (grounds for 90-day commitment at full hearing if condition results from mental
disorder) with RCW 71.05.320(3) (grounds for renewal petition). The latter does not include “harm to self.” As
noted previously, the impact on the civil commitment process, including the renewal process, for a respondent who
suffers from a developmental disability is beyond the scope of this Guide.
48
   RCW 71.05.320(3), referring to RCW 71.05.310.
49
   RCW 71.05.320(3). If the judge or jury at the full hearing found the conduct under ground 2 or 3 (i.e., RCW
71.05.280(2)or (3)), and if that same conduct is part of the required to be proven in the petition for renewal (i.e.,
RCW 71.05.320(3)(b) or (3)(c)), the petitioner need not re-prove that ground at the renewal hearing. RCW
71.05.320(3)
50
   RCW 71.05.320(4).


                                                     Page 72
the end of the 180-day renewal period, the respondent must be released unless another renewal
petition is filed. Successive 180-day commitments are permissible on the same grounds and
procedures as for the original 180-day renewal.51

12.      Can the respondent be released before the end of the 90-day or 180-day period of
inpatient treatment? If the superintendent or professional person in charge of the treatment
facility forms the opinion that the respondent no longer presents a likelihood of serious harm, the
facility may release the petitioner before the end of the 90-day or 180-day commitment period.
This is commonly referred to as an outright release. Though the statute does not provide for a
court hearing in advance,52 the statute does require when the superintendent releases a person
that the superintendent notify the court that ordered the commitment.53 If the basis for the
commitment was the third ground under either the full hearing or a renewal hearing (i.e., a
referral from the criminal justice system meeting certain criteria),54 there are some additional
requirements. These include pre-release notice to the county prosecutor and the possibility of a
pre-release court hearing if the county prosecutor wants the court to determine whether to permit
the early release. 55

Another form of release is referred to as a “conditional release”. A conditional release is “a
revocable modification of a commitment, which may be revoked upon violation of any of its
terms.”56 There are also provisions allowing the county prosecutor to intervene in any motion to
modify the terms of an inpatient commitment.57 A conditional release requires a court
proceeding.58

The superintendent or professional person in charge of the facility has the authority to
conditionally release the respondent from inpatient to outpatient treatment, if in his or her
opinion the respondent can be appropriately served by outpatient treatment. The term of such a
conditional release, when added to the inpatient treatment period, may not exceed the period of
commitment.59 Once again, if the ground for commitment is the third ground, 60 there are
addition requirements such as notice to the county prosecutor and the possibility of a court
hearing on the issue.61 If the outpatient treatment occurs as a result of the court’s original
commitment order62 rather than as a modification of an inpatient commitment order, then it is
referred to as a “less restrictive order” rather than as a conditional release



51
   RCW 71.05.320(3).
52
   Except as required under RCW 71.05.330(2), discussed in the next sentence.
53
   RCW 71.05.330(1).
54
   See RCW 71.05.280(3); RCW 71.05.320(3)(c).
55
   RCW 71.05.330(2).
56
   A conditional release is “a revocable modification of a commitment, which may be revoked upon violation of any
of its terms.” RCW 71.05.020(5). A conditional release may also occur as a modification of a 14-day, 90-day or
180-day commitment order.
57
   RCW 71.05.335.
58
   RCW 71.05.335.
59
   RCW 71.05.340(1)(a).
60
   See RCW 71.05.280(3); RCW 71.05.320(3)(c).
61
   RCW 71.05.340(1)(b).
62
   Whether as part of a 14-day, 90-day or 180-day commitment order.


                                                   Page 73
13.     What happens if the respondent violates the terms of a less restrictive alternative
treatment order or a conditional release order, or decompensates? The grounds and
procedures for revoking a less restrictive treatment order are the same as those for revoking a
conditional release order.63 The phrase “conditional release” will be used in the remainder of
this question and answer, even though the discussion also applies to a less restrictive order.

Upon notification by the outpatient treatment facility that one or more of the revocation criteria
exist, the DMHP or DSHS (as the case may be) may order the respondent to be taken into
custody and detained temporarily in an evaluation and treatment facility. That facility must be in
or near the county in which the respondent is receiving outpatient treatment.64 There are four
possible grounds upon which the petitioner may seek to revoke the respondent’s conditional
release.

The first alternative is that the respondent is violating the conditions of release. The second
alternative is that the respondent’s functioning has substantially deteriorated. The third
alternative is that there is evidence of the respondent’s substantial decompensation, with a
reasonable probability that the decompensation can be reversed by further inpatient treatment.
The fourth alternative is that the respondent poses a likelihood of serious harm.65

The court that originally ordered the commitment will conduct a hearing to determine whether
any of the grounds for revocation exist. If the court so finds, it must also determine whether the
terms of the conditional release should be modified or the Respondent should be returned to the
inpatient facility from which he or she had been conditionally released. 66 The respondent has the
same rights with respect to notice, hearing, and counsel as for an involuntary commitment
proceeding, except as otherwise provided in RCW 71.05.340 and except that the respondent does
not have a right to a jury trial.67 That implies that the burden of proof at the revocation hearing is
clear, cogent and convincing evidence.68 In the case of a conditional release or less restrictive
alternative arising out of a 14-day probable cause hearing, that means that the burden of proof for
revoking would be higher than the burden of proof for the actual commitment.69

14.     What other rights does a respondent who is civilly committed have? Every
Respondent is entitled to all of the rights set out in RCW chapter 71.05. In addition, he or she
retains all rights not otherwise denied to him or her under chapter 71.05.70 The rights under
chapter 71.05 include, among others, the right to adequate and individualized treatment,71 the
right to some assistance upon being released (if the respondent is indigent),72 and other rights

63
   RCW 71.05.340(5).
64
   RCW 71.05.340(3)(a).
65
   Id.
66
   RCW 71.05.340(3)(c)-(d).
67
   RCW 71.05.340(3)(d).
68
    See RCW 71.05.310. That section, entitled “Time for hearing—Due process—Jury trial—Continuation of
treatment,” sets out the procedural requirements, including the clear, cogent and convincing evidence standard.
69
   See RCW 71.05.240 (setting forth preponderance of the evidence standard at probable cause hearing).
70
   RCW 71.05.360(1).
71
   RCW 71.05.360(2).
72
    RCW 71.05.350 provides that indigent respondents may not be conditionally released or discharged without
suitable clothing and enough money as the facility deems necessary for the respondent’s immediate welfare.


                                                  Page 74
relating to everyday life at the treatment facility.73 This list is not included to be all-inclusive of
the statutory rights conferred by chapter 71.05, nor does it include a discussion of the
constitutional rights that a Respondent may have.


CONCLUSION.

The area of civil commitment is a specialty practiced by a relatively few number of attorneys
within the State. As a result, most practitioners have never face with advising a client or a
client’s family about the process civil commitment process. But the volume in the civil
commitment area has been increasing, and the civil commitment and criminal justice systems are
becoming more intertwined. As a result, attorneys need to develop a familiarity with the ins and
outs of the civil commitment process in advance, and to be able to respond more quickly and
appropriately to their clients’ needs.




73
     RCW 71.05.370 sets forth a list of respondents’ rights that must be posted at the treatment facilities.


                                                         Page 75
Exhibit 3:     Summary of Nonfelony Competency Evaluation and Restoration Process


        1.       Competency to stand trial issue arises—Court orders competency evaluation
(usually in jail, but can be at Western or Eastern State Hospital or at outpatient location) pursuant
to RCW 10.77.060.

       2.     Evaluation results received—if defendant is competent, case proceeds to trial. If
defendant is not competent, then must determine if defendant is charged with a “serious
offense” as defined in RCW 10.77.092, or a non-serious offense. This may require contested
hearing.

              a.     If defendant is not competent and non-restoration eligible, then Court
       must dismiss case without prejudice and release the defendant outright. If, however, the
       defendant meets the requirements of RCW 10.77.065. the Court could action.

              b.    If defendant is not competent and is restoration eligible, then Court must
       order competency restoration treatment (14 days of inpatient or 90 days of outpatient.)
       The 14 days of inpatient treatment is in addition to “unused time” from initial
       evaluation.)

               c.    If defendant is restoration eligible, then Court must determine if
       competency restoration treatment should include authorization for involuntary
       medication. Involuntary medication issue not reached if defendant not restoration
       eligible.

3.     If restoration eligible defendant still not competent after restoration treatment (or if
       Court finds competency unlikely to be restored even with treatment), then charges
       dismissed without prejudice, and either:

               a.      Defendant referred to Evaluation and Treatment facility for up to 72 hours
       for evaluation for possible 71.05, if defendant in custody at time of dismissal; or

               b.    Defendant referred to DMHP for evaluation for possible 71.05 (at location
       selected by DMHP), if defendant on conditional release at time of dismissal.

4.     Dismissal ends nonfelony Court jurisdiction and City Prosecutor involvement.

Restoration eligible means defendant is charged with nonfelony crime defined as “serious” under
RCW10.77.092, whether specifically listed or as found by the court.

j:/data/criminal/docs/forms/mio/Summary of Comp Eval 3-1-08




                                             Page 76
Exhibit 4:        The 2008 Primer on Conducting Involuntary Medication Hearings



                    THE 2008 PRIMER ON CONDUCTING INVOLUNTARY
                                MEDICATION HEARINGS




                                           By Michael J. Finkle1
                                    Assistant City Attorney Supervisor
                                   Public & Community Safety Division
                                      Seattle City Attorney’s Office2


                                                  Prepared for

                        Washington State Association of Municipal Attorneys
                                        Spring Conference
                                      April 30-May 2, 2008
                                     Whistler, B.C., Canada




1
  The author wishes to thank several of the psychiatrists with Western State Hospital’s Center for Forensic Services
for reviewing a draft of the original version of this Primer, and for their guidance with the non-legal aspects of the
Primer. Those doctors (in alphabetical order) are Maggie Dean, M.D., Bruce Gage, M.D., Roman Gleyzer, M.D.,
and Greg Leong, M.D. Their suggestions, which have been incorporated into the Primer, have been incredibly
helpful.
2
  This Guide reflects the views and conclusions of the author; those views and conclusions are not necessarily those
of the Seattle City Attorney, the Seattle City Attorney’s Office, or any division or section thereof. The author makes
neither express nor implied warranties in regard to the use of these materials. Each attorney must depend upon his
or her own legal knowledge and expertise in the use of these materials. If you would like to receive e-mail copies of
this Guide, please contact the author by telephone at 206-684-7734, or by e-mail at mike.finkle@seattle.gov.


                                                     Page 77
I.      INTRODUCTION.

        The purpose of this Primer is to provide guidance and suggestions for how to handle
hearings relating to involuntary medication to restore a criminal defendant’s competency to stand
trial. Many of the suggestions are just that—they are not hard and fast substantive rules that are
cast in stone. Nevertheless, the suggestions are based on the experiences of a number of
prosecutors in several jurisdictions, plus that of psychologists and psychiatrists from Western
and Eastern State Hospitals.

       The U.S. Supreme Court opinion Sell v. United States3 provided the impetus for this
Primer. Though designed to serve as a stand-alone reference, this Primer appears in its entirety
as an Exhibit to the 2008 Practitioner’s Guide to Handling Competency and Insanity Issues in
Courts of Limited Jurisdiction, referred to in this Primer as the “Competency Guide”.4

        The scope of this Primer is both narrow and broad. The scope is narrow, in that the
discussion applies only to criminal defendants who are incompetent to stand trial, eligible for
competency restoration treatment,5 and to whom Sell applies. The scope is broad, in that Sell
identifies a number of legal issues that the trial Court must answer, yet the prosecution’s primary
witness is a psychiatrist who will testify in the medical rather than legal context.

         The Primer begins with a “Q & A” format of basic threshold issues. Then it divides up
the subject areas that should be covered in the psychiatrist’s testimony and discusses what
information should be elicited on direct examination. The third section contains a sample set of
questions, though the questions are not intended to be the final word on how to conduct the
hearing. Because each defendant’s medical, psychiatric and legal situations will be so different,
it is virtually impossible to craft a “one-size fits-all” set of questions. You will want and need to
tailor the questions to your situation, and to your specific witness. Though the Primer assumes
the reader has a basic familiarity with the Sell decision. The reader is encouraged to refer to the
most current version of the Competency Guide and to Finkle, Washington’s Criminal
Competency Laws: Getting From Where We Are To Where We Should Be, 5 Seattle Journal for
Social Justice 201 (2006) for more detailed discussions of the issue of involuntary medication for
competency restoration treatment.

II.     (ANTICIPATED) FREQUENTLY ASKED QUESTIONS ABOUT A SELL HEARING.

        A.       What Level of Process is Necessary at the Hearing?

        The Sell opinion does not set out specific procedural guidelines. But given the strict test
applied in analyzing whether an involuntary medication order is constitutionally permissible, the
safest course of action is to assume a high level of process is required. That means applying the
rules of evidence and providing an opportunity to confront and cross-examine the witness.


3
  539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003).
4
  Future revised versions of the Competency Guide will bear the then-current revision year within the title. For
purposes of this Primer, all references to the Competency Guide are intended to be to the most recent version.
5
  See RCW 10.77.084-10.77.088.


                                                  Page 78
According to Division Two, the prosecution must prove each of the Sell criteria by “clear,
cogent, and convincing evidence”.6

          B.       Who Should the Prosecution Call as a Witness?

        The prosecution should call a psychiatrist from Western or Eastern State Hospital as its
witness on the issue of involuntary medication. While a psychologist from Western or Eastern
State Hospital may theoretically be competent to testify about the appropriateness of
psychotropic medication if he/she has sufficient training, background or experience, the Sell test
requires additional medical testimony that is not likely within the expertise of a psychologist. In
any event, just because someone can qualify as an expert under ER 702 does not mean that
his/her testimony will carry any weight with the judge. The psychiatrist can speak to both the
psychological and medical aspects of the test, and is the preferred witness.

          C.       Is Live Testimony Required?

        The safest and most advisable way to proceed is by way of live testimony, unless the
defense is willing to stipulate to telephonic testimony. In Seattle Municipal Court (and probably
a number of other jurisdictions), the defense bar regularly stipulates to telephonic testimony. But
absent such a stipulation, you should be prepared to proceed via live testimony.

          D.       What if the Witness has not Personally Examined or Evaluated the
                   Defendant?

        In the author’s experience with Western State Hospital, if a psychiatrist participated in
the competency evaluation itself, that same psychiatrist will usually be the one who testifies at
the Sell hearing. But sometimes a psychologist or a different psychiatrist who is not available for
the hearing is the one who met with the defendant and prepared the competency evaluation. In
this latter case, the psychiatrist witness will not have had an opportunity to examine the
defendant personally. That should not preclude the psychiatrist from testifying. ER 703 permits
an expert to render an opinion based on facts not personally observed by the expert, and to render
an opinion on otherwise inadmissible evidence so long as experts in that particular field
reasonably rely upon such evidence in forming opinions. Whether the Court finds such
testimony convincing may be another issue, and you may have to go a bit farther in laying the
foundation to qualify the psychiatrist as an expert. But the practical reality is that there is at least
a reasonable likelihood that the psychiatrist witness may not have personally examined or
evaluated the defendant.

III.      Discussion of Subject Matter Areas for Testimony.

       This section contains a summary of the general subject matter for each area of anticipated
testimony. Some of the areas are required to qualify the witness as an expert, some are required
under Sell, and some are helpful for other reasons. Each subsection will discuss the reasons for
the information. Those portions required under Sell will contain cross-references to the
appropriate portions of the Competency Guide.
6
    State v. Hernandez-Ramirez, 129 Wn.App. 504, 510-511 (2005).


                                                   Page 79
       A.      Expertise.

        ER 702 governs the qualifications of an expert witness. You will need to establish the
psychiatrist’s expertise in the mental illness that bears on the issue of competency, in assessing
the impact of that mental illness on the defendant’s mental capacity (i.e., on the defendant’s
competency), and in psychotropic medications. Depending on your specific situation, you can
tailor the questions to elicit more or less detail about the witness. Factors you may want to
consider include whether the defense will call their own expert, how much the defense is likely
to challenge the credibility of the psychiatrist’s opinions or the bases for those opinions, and the
Court’s familiarity with the witness or the issues.

       B.      Assessment of Defendant.

        Obviously, the psychiatrist cannot form any opinions unless he or she has reviewed some
form of information about the defendant. This section is designed to elicit what those materials
are. They could include records from past inpatient or outpatient civil commitments,
community-based outpatient treatment records, records from psychiatric hospitalizations,
information from collateral sources, and/or information elicited by other examiners. The
materials should also include everything submitted as part of the competency evaluation, such as
the police report related to the pending charge and the defendant’s criminal history background.

       Of course, one of the major pieces of information one might expect the psychiatrist to
rely upon is a personal examination of or interview with the defendant. If the examination
occurred, you will want to elicit testimony about the length, location, and number and
circumstances of the examination. If the psychiatrist is relying solely on the information elicited
above and did not personally meet with the defendant, you will need to elicit testimony
explaining how that is still consistent with acceptable psychiatric practices.

       C.      Applying the Sell Criteria.

        The Sell criteria are discussed fully in the Competency Guide. You should refer to it for
specific details. The discussion in this subpart will include all of the criteria, but not necessarily
in the same order as they appear in the Competency Guide. You should feel free to cover them
in testimony in whatever order seems best to you given the specific facts, circumstances, and
medical and legal issues in your case.

        1.     Potential for future civil commitment. One of the measures of the importance
of the governmental interest at stake regarding involuntary medication is the potential for future
confinement, including civil commitment. The initial competency evaluation must contain a
recommendation to the Court whether the defendant should be examined by a DMHP 7 for
possible civil commitment.8 To the extent the psychiatrist has training, background or
experience with the civil commitment process, and depending upon the nature and extent of the

7
   DMHP stands for Designated Mental Health Professional, formerly County Designated Mental Health
Professional. See RCW 71.05.020(11).
8
  RCW 10.77.060(3)(f).


                                              Page 80
defendant’s treatment history he or she has, the psychiatrist may be able to testify about the
likelihood of commitment and the likely length of the commitment.        The psychologist or
psychiatrist who conducted the initial competency evaluation may be useful in this process as
well.

        Even if the psychiatrist cannot provide testimony about the likelihood of civil
commitment or the potential length of such commitment, you should elicit testimony about why
the psychiatrist cannot do so. The potential for civil commitment is a factor that implicates the
importance of the government’s interest in involuntary medication for competency restoration
purposes. You will want to have the record reflect the extent to which the potential for future
civil commitment is or is not predictable.

        2.     Likelihood of restoration. One of the biggest challenges, especially in non-
felony cases, is establishing that the involuntary medication is “substantially likely” to restore
competency within the time frame allowed by statute. In non-felony cases, that restoration
period is a relatively short 14-29 days. There are several reasons it is such a challenging
criterion.

               a.     Legal vs. medical. The phrase “substantially likely” is a legal concept.
Although ER 704 permits an expert to testify on an ultimate issue in the case, psychiatrists can
only speak to medical or clinical concepts. In the context of this discussion, a psychiatrist could
speak about the clinical likelihood that involuntary medication would alleviate the defendant’s
symptoms, and whether alleviating those symptoms would eliminate the impediments to the
defendant’s capacity to understand the proceedings and charges and reasonably assist defense
counsel. It would be up to the prosecutor to “translate” the medical testimony into a legal
conclusion for the Court.

         One burning question is whether statistical probabilities may be used to establish the
legal standard. Federal case law supports the concept that the prosecution can rely upon a
statistical probability that psychotropic medication will restore competency, though the cases do
not specify a minimum probability that would satisfy Sell.9 The author is not aware of any
published opinions in Washington or in the Ninth Circuit10 that address this issue.

               b.      Available medication history. The psychiatrist’s ability to make a valid
clinical assessment of the defendant depends greatly on the amount and type of information
available about the defendant. A defendant who has been civilly committed in the past will most
likely have a well-documented diagnosis and a well-documented medication history. With the
added information, the psychiatrist can more confidently assess the effectiveness of the past
medication and project the likely future effectiveness of the medication. For example, assume a
defendant has been involuntarily committed to inpatient treatment four times in the past five
9
   See, e.g., United States v. Ghane, 392 F.3d 317 (8th Cir. 2004) (5-10% chance not “substantially likely”); United
States v. Gomes, 387 F.3d 157 (2nd Cir. 2004); (70% chance is “substantially likely”), cert. denied, 543 U.S. 1128,
125 S.Ct. 1094, 160 L.Ed.2d 1081 (2005); United States v. Weston, 255 F.3d 873 (D.C. Cir. 2001) (pre-Sell case
holding 70% chance is “likely” to restore), cert. denied, 534 U.S. 1067, 122 S.Ct. 670, 151 L.Ed.2d 583 (2001);
United States v. Algere, 2005 U.S. Dist. LEXIS 33167 (E.D. LA 2005) (70% chance or higher is “substantially
likely).
10
    This includes the District Courts within the Ninth Circuit.


                                                    Page 81
years for the same mental illness as in the present case. Assume further that the defendant has
been involuntarily medicated each time,11 and has been released to outpatient treatment within 14
days each time. Under those circumstances, the psychiatrist can most likely opine that 14-29
days of restoration treatment with the same medication is clinically likely to be successful.

        Unfortunately, such detailed medical information is only sporadically available. A more
typical scenario is a defendant with a limited psychiatric history, or a defendant about whom the
psychiatrist has little or no information regarding prior medications. In this scenario, the
psychiatrist would have to base his or her opinion on the defendant’s current diagnosis and the
most common medications used to treat the defendant’s illness. The psychiatrist lacks
information about effectiveness of any or all of the commonly prescribed medications for this
particular defendant. The best he or she can do is provide statistical information about the
commonly-accepted length of medication treatment needed to alleviate symptoms similar to the
defendant’s in people who have the same mental illness, and the probability of response to the
medication.

        The author is not aware of any published Washington or Ninth Circuit 12 opinions on the
issue of whether Sell requires the prosecution to identify the specific drug and dosage to be used,
or merely the class of medication to be used. The sample questions in subsection IV.C. below
are based on identifying the class of medication, rather than the specific drug and dosage. They
can be modified to apply to a specific drug as well.

        3.      Likelihood of adverse side effects. The Court must find that the medication is
“substantially unlikely” to have side effects that will interfere significantly with the defendant’s
ability to assist in conducting a defense. In the vast majority of cases, the psychiatrist will be
able to testify that the mediation will reduce or neutralize the defendant’s symptoms, which in
turn will improve rather than interfere with the defendant’s ability to assist counsel. While it
may be difficult to imagine a situation in which the medication would restore competency but
nevertheless significantly interfere with a defendant’s ability to work with counsel, it is at least
theoretically possible. For that reason, you will need to elicit testimony about the potential side
effects of the particular medication or medications to be used.

        If the defendant has used the same medication(s) in the past without adverse
consequences, the psychiatrist can give a more confident opinion about the likelihood of adverse
side effects. On the other hand, if the defendant has not taken medication before, or if the
defendant would be taking different medication(s), the psychiatrist will should be able to testify
about the possible side effects and perhaps the statistical likelihood of adverse side effects. The
psychiatrist can also testify about other medications that alleviate or reduce potential side effects.

        The same issue of “specific drug vs. types of medications” exists for the issue of “adverse
side effects” as for the issue of “likelihood to restore.” The questions in subsection IV.C.3.
below are drafted with a general class of medications rather than for a specific drug, though they
can easily be modified if necessary.

11
   There are different criteria for involuntary medication in the civil commitment context. Those criteria are beyond
the scope of this Primer.
12
   This includes the District Courts within the Ninth Circuit.


                                                     Page 82
        4.      No less intrusive alternative. The Court must find that there are no less intrusive
alternatives that are likely to achieve the same results as medication. From a medical
perspective, this refers to other treatment options such as group or individual therapy, behavioral
treatments, psychiatric rehabilitation, and milieu therapy. In felony cases, which carry a 90-365
day restoration period,13 another treatment option for some disorders is to place the defendant at
Western or Eastern State Hospital to see if the defendant changes his or her mind and voluntarily
takes medication. That is not a viable option in non-felony cases because of the relatively short
14-29 day restoration period. The psychiatrist’s testimony will therefore depend upon the
treatment period and the diagnosis, as well as past treatment history, if any.

       5.     Medically appropriate. The Court must find that the medication is “medically
appropriate.” In the context of involuntary medication, this means that the medication is in the
defendant’s best interest in light of his or her medical condition. All medications carry the
potential for physical and psychological side effects, and the involuntary nature of the
medication may also carry psychological side effects. The psychiatrist’s testimony will be based
on physically examining the defendant (if that occurred) as well as medical and psychiatric
records.

        It may be hard to imagine how relieving severe symptoms of a mental disorder could do
anything but benefit a defendant, but it is possible. Consider the following example. Assume
that the defendant formerly served in the military, and was held as a POW for many years.
Assume further that the defendant had suffered torture during his captivity, and that the
psychiatrist testifies at the hearing that involuntarily medicating the defendant would actually
trigger a severe psychological response that would do far more harm than good. The benefits of
the involuntary medication would be more than offset by the potential emotional or
psychological harm to that particular defendant. Based on that information, the Court would
most likely find that involuntary medication was not in the defendant’s medical interests.
Indeed, the prosecutor may decide not to proceed with the Sell hearing under those facts.14

        D.      Likelihood of Restoration if Court Doesn’t Authorize Involuntary
                Medication.

        It is important to elicit testimony from the psychiatrist about the likelihood the defendant
will regain competency, regardless of the type of treatment intervention, absent involuntary
medication. If the defendant is unlikely to be restored to competency, the Court need not order
the futile act of competency restoration treatment. Instead, the Court will dismiss the case
without prejudice and refer the defendant for civil commitment evaluation. The type of referral
depends upon whether the defendant is in or out of custody at the time.

       It is quite likely that the psychiatrist’s testimony on the Sell criteria will include an
opinion about the likelihood of restoration absent involuntary medication. If so, then you will


13
  See RCW 10.77.086.
14
  This example is based on a case handled by the author, in which the author decided not to proceed with the
hearing.


                                                 Page 83
not need to revisit the issue. But if you haven’t already elicited this testimony by now, you
should do so before finishing your direct examination.

           E.       Quick-Reference Checklist of Key Points to Establish at Hearing.

        No matter how much we try to prepare in advance, it seems there is always something we
leave out. When it comes to involuntary medication hearings, that can lead to leaving out an
important piece of testimony. The quick-reference checklist below is not intended as a substitute
for a deep understanding of Sell or to having either the sample questions15 or your own questions
available at trial. But it can help in a pinch, and can serve as a brief reminder of the main points
you need to establish at the hearing. As with all of the materials in this Primer, it is not intended
as a substitute for legal research, skill and judgment. That being said, you might want to keep
this checklist or your own version of it close at hand during involuntary medication hearings.

           1.       Potential for future confinement—incarceration or civil commitment.

           2.       Likelihood of restoration—substantially likely to restore within restoration time
                    period.

           3.       Likelihood of adverse side effects—substantially unlikely to interfere with fair
                    trial.

           4.       No less intrusive alternative—to achieve same results within restoration period.

           5.       Medically appropriate—in defendant’s best interest in light of defendant’s
                    medical condition.

           6.       Likelihood of restoration if no involuntary medication—skip restoration
                    treatment if would be futile to attempt it; go directly to referring defendant to
                    Western or Eastern for civil commitment evaluation.

IV.        SAMPLE QUESTIONS FOR SUBJECT MATTER AREAS OF TESTIMONY.

       These sample questions track the subject matter areas discussed above. They are
intended to serve as a starting point, not as a script to be followed without deviation. They are
designed for use at a hearing before a judge, and may not be as formal as you would use in front
of a jury. The added complexity of each defendant's unique medical and psychological
background makes it extremely important that you listen carefully to your witness's testimony.
You will need to ask follow-up questions when appropriate. I have occasionally added
comments about the questions. Those comments appear in boldface type.

           A.       Background and Expertise.

1.         Please state your name and spell your last name for the record.


15
     See section IV below.


                                                Page 84
2.    What is your current profession?

3.    Who is your current employer?

4.    Please describe your education as it relates to your practice of psychiatry.

5.    Please describe your post-medical school training and experience that qualifies you to
      practice psychiatry.

6.    How long have you been practicing psychiatry?

7.    How long have you been employed by Western/Eastern State Hospital as a psychiatrist?

8.    Please describe any medical licenses and board certifications you currently hold as they
      relate to the practice of psychiatry.

9.    Please describe any training, education or experience that you have relating to
      determining whether or what type of psychotropic medication to prescribe for persons
      suffering from a major mental illness. [Prior to the hearing, you may want to ask the
      psychiatrist to specify the class of medication suggested, for example “antipsychotic
      medication”. You can then tailor the question to that specific class.]

10.   Approximately how many times have you evaluated an individual or reviewed an
      individual's medical chart to determine whether or what type of psychotropic medication
      to prescribe?

11.   Please describe any training, education or experience that you have relating to evaluating
      individuals for possible civil commitment in the State of Washington. [If your witness
      does not have this type of experience, skip this question.]

12.   Have you previously been qualified as an expert witness in a court proceeding? [If the
      answer is no, skip this question. If the answer is yes, then ask the follow-up question
      “Approximately how many times?”]

      B.     Assessment of Defendant.

1.    Have you conducted an assessment of whether medication is necessary or appropriate for
                          , the defendant in this case?

2.    When did you conduct that assessment?

3.    What materials or other information did you review in order to conduct that assessment?
      [At a minimum, this must have included the defendant's competency evaluation,
      which may be formally referred to as "the forensic evaluation dated
      prepared by                                 in this case.”]




                                            Page 85
4.     Did you meet with the defendant in person to perform that assessment? [If the answer is
       "yes", ask the follow-up questions in 4.a. If the answer is "no", ask the follow-up
       questions in 4.b.]

       a.     [If the answer to 4 is "yes"] (i) When did you meet with the defendant? (ii)
              Where did you meet with the defendant? (iii) Who else was present when you
              met? [Skip to question 5.]

       b.     [If the answer to 4 is "no"] (i) Is there a generally accepted opinion in the
              psychiatric community as to whether a face-to-face meeting is necessary to
              conduct an assessment of whether or what type of psychotropic medication is
              necessary or appropriate for an individual? (ii) What is that generally accepted
              opinion? (iii) Please explain the reason a face-to-face meeting is not necessary in
              order to assess the necessity or appropriateness of psychotropic medication for an
              individual. [Proceed to question 5.]

5.     Were you able to conduct your assessment of the defendant in this case in accordance
       with generally accepted principles within the psychiatric community?

6.     Based on the information available to and reviewed by you, what is your diagnosis of the
       defendant's current mental condition?

       C.     Applying the Sell Criteria.

        Each of the criteria is covered under a separate subheading. Some of the criteria may
require a modified approach depending upon whether your case is a felony (with a 90-day
restoration treatment period) or a non-felony (with a 14-29 day restoration treatment period.).

       1.     Potential for future civil commitment.

1.     Have you had an opportunity to review and consider that portion of the defendant's
       competency evaluation that discusses whether or not the competency evaluator is
       recommending that the defendant be evaluated for possible civil commitment?

2.     Based on your review of the competency evaluation and all of the other materials you
       reviewed in this case [and if applicable, "as well as your face-to-face meeting with the
       defendant"], are you able to render an opinion about the likelihood and potential length
       of the defendant's future confinement in a civil commitment proceeding?

3.     [If the answer to 2 is "yes", ask] What is that opinion, and upon what specific factors
       do you base it? [If the answer to 2 is "no", ask] Why are you unable to render such an
       opinion?

       2.     Likelihood of restoration.




                                            Page 86
1.   In assessing the defendant's mental condition, have you considered the defendant's prior
     treatment history for the same mental condition that he/she has currently?

2.   What treatment history information have you reviewed, and from what sources did you
     receive that information?

3.   [If the psychiatrist has been able to review a reasonable amount of treatment
     history, ask the questions in 3.a. If there is only minimal or no treatment history
     available, ask the questions in 3.b.]

     a.     [If there is a reasonable amount of treatment history] (i) What type of
            treatment, including medications, has the defendant received in the past when
            suffering from the same mental condition? (ii) In what dosages? (iii) How
            successful has that treatment been in alleviating the defendant's symptoms of that
            mental condition? (iv) Are you able to tell us how long it usually takes such
            treatment to alleviate the defendant's symptoms? [Skip to question 4.]

     b.     [If there is minimal or no treatment history] (i) Given the lack of or limited
            treatment history, are you nevertheless able to recommend a course of treatment
            for the defendant's current mental condition? (ii) How are you able to do so
            within the bounds of generally accepted principles of psychiatry? [Proceed to
            question 4.]

4.   Based on your assessment of the defendant and the defendant's treatment history, and
     applying generally accepted principles of psychiatry, what is your recommended course
     of treatment for the defendant's current mental condition?

5.   What types of medication or medications would you recommend? [This question raises
     the issue of whether the psychiatrist must recommend a specific drug and dosage, or
     simply the types of classes of medications. See subsection III.C.2. above. The
     prescribing psychiatrist may need to try several different types of medication to find
     one that is effective, or something may turn up on physical or laboratory analysis
     that precludes the use of a particular medication. The psychiatrist may or may not
     be able testify to specific starting dosage levels.]

6.   If the defendant undergoes your recommended course of treatment, what is your
     prognosis for alleviating the defendant's symptoms, within the restoration treatment
     period in this case of                days [insert correct number of days], to a
     sufficient degree that the defendant would regain the capacity to understand the nature of
     the proceedings against him or her and to assist in his or her own defense?

7.   Upon what do you base your prognosis?

8.   What is your clinical level of confidence in your prognosis?

9.   Why is that?



                                         Page 87
     3.     Likelihood of adverse side effects.

1.   What are the possible side effects that                               [insert  the
     name of the type(s) of medication(s) that the psychiatrist would recommend, or the
     specific drug if required] could have on the defendant?

2.   If the medication(s) alleviate the defendant's symptoms enough to restore his/her ability
     to understand the nature of the proceedings against him or her and to assist in his or her
     own defense, what is the clinical likelihood that the medication(s) would also have side
     effects that would interfere significantly with the defendant's ability to assist in
     conducting a defense? [This question assumes that the only issue is competency to
     stand trial. If the defendant also intends to raise an insanity defense if found
     competent to stand trial, then there may be some issues involving the impact of the
     medication(s) on the defendant’s ability to present that defense. See Riggins v.
     Nevada, 504 U.S. 127, 118 L.Ed.2d 479, 112 S.Ct. 1810 (1992). The impact of Riggins
     and an insanity defense is beyond the scope of this Primer.]

3.   Why is that?

     4.     No less intrusive alternative.

1.   Have you considered the possibility that the defendant might voluntarily agree to take
     prescribed medication(s) for his or her current mental condition?

2.   Based on your assessment of the defendant, including but not limited to the forensic
     competency evaluation [add any of the following that is applicable: your face-to-face
     meeting with the defendant, and the defendant's treatment history], is relying on the
     defendant voluntarily taking the medication clinically likely to achieve the same results,
     within the restoration treatment period in this case, as involuntarily administering the
     same medication(s)? [In a felony matter, it may be possible to wait and see if the
     defendant will voluntarily take medication(s). Budgetary concerns, bed space
     availability and the impact on the availability of services to other defendants may be
     valid issues, but they are probably insufficient to justify involuntary medication.
     This question presumes either that it is not feasible to wait and see regardless of
     whether it is a felony or non-felony, or that the defendant has been given an
     opportunity to take the medication(s) voluntarily during the restoration treatment
     but has refused.]

3.   Why not?

4.   Would outpatient competency restoration treatment to provide the defendant with a
     chance to take voluntary medication be appropriate in this case? [The purpose of this
     question is to rule out outpatient restoration treatment as a viable option to
     involuntary medication on an inpatient basis.]




                                         Page 88
5.   Why is that? [The psychiatrist can testify about the appropriateness of outpatient
     restoration treatment for this defendant on a medical basis. If outpatient
     restoration treatment is inappropriate for other reasons, such as public safety
     concerns or the lack of community-based resources or the lack of supervision, then
     follow-up questions would be appropriate.]

6.   Other than the prospect of voluntary medication, are there any other less intrusive
     alternatives to the medication(s) that you indicated would be used to treat the defendant's
     mental condition?

7.   What are they?

8.   Are any of those other less intrusive treatment alternatives clinically likely to achieve the
     same results, within the maximum inpatient or outpatient restoration treatment period in
     this case, as the medication(s) you indicated would be used to treat the defendant's mental
     condition?

9.   Why not? [Non-medication treatment on an inpatient basis for 14-29 days is
     virtually guaranteed to be unlikely to restore competency. The same is most likely
     true of outpatient restoration treatment. Nevertheless, it is wise to prepare to ask
     the witness to rule them out at the hearing.]

     5.     Medically appropriate.

1.   In your opinion, based on your assessment of the defendant [if applicable, add: your
     face-to-face meeting with the defendant] and all of the information and records you
     have reviewed for this case, is involuntary medication to alleviate the symptoms of the
     defendant's current mental condition in the defendant's best medical interest, in light of
     the defendant's medical condition?

2.   Why is that?

     D.     Likelihood of Restoration if Court Doesn't Authorize Involuntary
            Medication.

1.   In your opinion, if Western/Eastern State Hospital is not granted court authority to
     administer involuntary medication to the defendant, is it clinically likely that the
     defendant's symptoms would be alleviated, within the restoration treatment period in this
     case, to a sufficient degree that the defendant would regain the capacity to understand the
     nature of the proceedings against him or her or to assist in his or her own defense?

2.   Why not?

V.   CONCLUSION.




                                           Page 89
        Hearings relating to involuntary medication to restore a criminal defendant's competency
to stand trial involve serious constitutional questions. Psychiatric testimony is crucial to satisfy
the constitutional requirements. Hopefully, this Primer provides a solid starting point to prepare
for and conduct the hearing with confidence.

j:/data/criminal/docs/forms/mio/2008 Primer-Involuntary Med. Hearing




                                             Page 90
Exhibit 5:    Guide to Using MIO Form Orders

Title of Order (and Document Name)*            Description of Use

Order for Initial Evaluation for Competency Used when Court determines that competency
and Other Ancillary Orders                  may be at issue. Used for matters prior to
                                            disposition or trial, and for probation violation
(Initial Competency Evaluation)             and sentencing matters. Provides for initial
                                            evaluation by Western State Hospital.

Order Retracting Competency Evaluation         Used when Court determines that competency
                                               evaluation no longer needed. Reasons usually are
(Order Retracting Competency Evaluation)       that defense no longer believes defendant lacks
                                               competency or that non-custody defendant has
                                               failed to appear at a court hearing and is still at
                                               large.

Order Directing Competency Restoration Used when case is prior to disposition or trial,
Treatment and Related Ancillary Orders defendant is charged with a “serious” offense as
                                       defined in RCW 10.77.092, and Court finds
(Competency Restoration Order)         defendant incompetent. Provides for restoration
                                       treatment on inpatient or outpatient basis.

Order Finding Defendant Competent, and Used when Court finds defendant competent to
Other Ancillary Orders                 stand trial or to proceed on probation violation
                                       matter.
(Order Finding Defendant Competent)

Order     Dismissing   Case—Competency      Used when case is prior to disposition or trial and
Restoration Treatment Unsuccessful or       defendant is charged with a “serious” offense, and
Unlikely to Be Successful—and Related       Court finds defendant’s competency not restored
Ancillary Orders (Dismiss and Refer)        through treatment (or that treatment is unlikely to
                                            restore competency). Provides for referral to
(Dismiss and Refer—Unsuccessful          or DMHP or treatment facility for civil commitment
Unlikely Restoration)                       evaluation.

Order Finding Defendant Not Eligible for       Used when case is prior to disposition or trial,
Competency     Restoration   Treatment,        defendant is not charged with a “serious” offense,
Dismissing or Staying Proceedings, and         and Court finds defendant not competent.
Related Ancillary Orders (Dismiss and          Provides for referral to DMHP for civil
Detain)                                        commitment evaluation or for outright dismissal

(Dismiss and      Detain—Ineligible      for
Restoration)




                                           Page 91
Title of Order (and Document Name)*           Description of Use

Order Striking Probation Revocation           Used when defendant is on probation or some
Proceedings Due to Defendant’s Lack of        form of dispositional continuance and probation
Competency and Related Ancillary Orders       violation alleged for failure to comply with
(FTC with Probationary Conditions)            conditions of probation.

(Strike and Refer—Probation Revocation
Hearing)

Order Directing Defendant be Evaluated by Used when competency evaluator recommends
DMHP for Civil Commitment Pursuant to civil commitment evaluation for defendant whom
RCW        10.77.065(1)(B)    [Defendant Court has found competent.
Previously Found Competent]

(RCW 10.77.065 Referral)

Order for Initial Evaluation for Insanity, or Used when defendant has communicated to the
Diminished Capacity and Other Ancillary evaluator that he/she intends to assert an insanity
Orders                                        or diminished capacity defense.

(Insanity/Diminished Capacity Evaluation)

Acquittal by Reason of Insanity—Findings Used when defendant has been acquitted by
of Fact, Judgment, and Orders Regarding reason of insanity. Provides for required factual
Defendant’s treatment or Discharge       findings and orders defendant’s commitment for
                                         treatment or release
(Insanity Acquittal Order)

*All documents can be accessed under their respective document names, in “Read Only” format,
in the following folder: j:/data/criminal/docs/forms/mio/[insert document name]

j:/data/criminal/docs/forms/mio/Guide to Using MIO Form Orders 3-1-08




                                            Page 92
     Exhibit 6:     Initial Competency Evaluation
1

2
                  IN SEATTLE MUNICIPAL COURT, COUNTY OF KING
3                             STATE OF WASHINGTON
                                        )
4
     CITY OF SEATTLE,                   )
5                                       )
                           Plaintiff,   ) No.
6                                       )
7               vs.                     ) ORDER FOR INITIAL EVALUATION FOR
                                        ) COMPETENCY AND OTHER
8                              ,        ) ANCILLARY ORDERS
                                        )
9
                           Defendant.   )
10                                      )
                                        )
11
            The Defendant’s competency to proceed is at issue in this case. The Court finds the
12
     following facts and issues the following orders:
13
     1.     NEED FOR EVALUATION. The Court finds that the Defendant’s competency to
14
     proceed in this case is at issue. RCW 10.77.060 requires that the Court refer the Defendant for
15
     examination to determine the Defendant’s capacity to understand the nature of the proceedings
16
     against him or her or to assist in his or her own defense as a result of mental disease or defect, as
17
     set forth in RCW 10.77.010 and RCW 10.77.050.
18
     2.     CUSTODY STATUS AND DEFENDANT’S PRESENCE. The Defendant’s custody
19
     status and appearance are as marked below:
20
                     2.1. The Defendant is present in custody.
21
                            2.1.1. Bail and the conditions of bail remain as previously set.
22
                            2.1.2. Bail is hereby set at, or modified to, $                         , with
23
                    the conditions of bail set forth in the Court file in this matter.
24

25

26
     INITIAL COMPETENCY EVALUATION
27   Revised March 1, 2008       Page 93
                                                                                           Thomas A. Carr
28                                                                                         Seattle City Attorney
                                                                                           700 Fifth Avenue, Suite 5350
29                                                                                         P.O. Box 94667
                                                                                           Seattle, WA 98124-4667
                                                                                           (206) 684-7757
30

31

32
1                             2.1.3. The Defendant is hereby released on his/her personal recognizance
2                   without bail, subject to such conditions as are set forth in the Court file in this
3                   matter.
4                   2.2. The Defendant is present in Court out of custody and shall continue to be
5           released on his/her own personal recognizance or on the bail previously set in the matter,
6           subject to conditions of release or bail as are set forth in the Court file in this matter.
7                   2.3. The Defendant is not present in Court.
8                             2.3.1. The Defendant is in custody but defense has waived the his/her
9                   presence.
10                            2.1.2. The Defendant is presently unavailable because he/she is being
11                  detained pursuant to a confidential civil proceeding. This Court’s prior bail order
12                  shall remain in effect. The name of the facility at which the Defendant is detained
13                  (the “Treatment Facility”), if known, is:
14                                  .
15   3.     STATUS OF THE CASE. The Defendant is charged as follows:
16                  3.1. The Defendant is charged with a nonfelony crime that:
17                            IS a “serious offense” as defined in RCW 10.77.092
18                            IS NOT a “serious offense” as defined in RCW 10.77.092
19                  3.2. The Defendant is awaiting a post-judgment proceeding in this case as
20          marked below.
21                            3.2.1. The Defendant is on probation in the form of a suspended sentence.
22                            3.2.2. The Defendant is on probation in the form of a deferred sentence.
23                            3.2.3. The Defendant is on probation in the form of a dispositional
24   continuance.
25                            3.2.4. The Defendant has been convicted and is awaiting sentencing.
26
     INITIAL COMPETENCY EVALUATION
27   Revised March 1, 2008       Page 94
                                                                                              Thomas A. Carr
28                                                                                            Seattle City Attorney
                                                                                              700 Fifth Avenue, Suite 5350
29                                                                                            P.O. Box 94667
                                                                                              Seattle, WA 98124-4667
                                                                                              (206) 684-7757
30

31

32
1    4.     ORDER FOR EVALUATION. The staff at Western State Hospital (“WSH”) shall
2    examine and report upon the mental condition of the Defendant in accordance with RCW
3    10.77.060. The examination and report shall be conducted at the location, and shall include the
4    information, described below in this section. The examination may include psychological and
5    medical tests, and if the examination is conducted inpatient at WSH, voluntary treatment.
6          4.1.     Location of Examination.
7                   4.1.1. Defendant in custody. If the Defendant is held in custody in the King
8    County Jail (either in downtown Seattle or at the Kent Regional Justice Center), the examination
9    shall be held in the King County Jail or, at the discretion of the court, in a hospital or other
10   suitably secure public or private mental health facility. If the Court orders the evaluation to take
11   place in a hospital or mental health facility, the commitment for the evaluation shall not exceed
12   fifteen days from the time of admission to the facility. If the defendant is in custody, and if any
13   other court within King County has issued an order for a competency evaluation that predates
14   this order, then the location of the evaluation listed in that prior order shall be deemed the
15   location of the evaluation for this order as well.
16                          4.1.1.1. Release from custody before completion. If the Defendant is
17                  released from custody before the examination is completed, the Defendant is
18                  ordered to make arrangements with WSH for an examination on an outpatient
19                  basis in the manner described in subsection 4.2.1.
20                          4.1.1.2. Transfer to Western State Hospital for examination. If the
21                  Court orders that the Defendant be transferred to WSH for the examination, the
22                  Defendant’s commitment shall be for, and the examination shall be completed
23                  within, a period not to exceed 15 days from the date of admission to WSH, after
24                  which time the Defendant shall be returned to the King County Jail for further
25                  proceedings in this matter.
26
     INITIAL COMPETENCY EVALUATION
27   Revised March 1, 2008       Page 95
                                                                                          Thomas A. Carr
28                                                                                        Seattle City Attorney
                                                                                          700 Fifth Avenue, Suite 5350
29                                                                                        P.O. Box 94667
                                                                                          Seattle, WA 98124-4667
                                                                                          (206) 684-7757
30

31

32
1                   4.2.1. Defendant out of custody. If the Defendant is out of custody, then the
2           examination shall occur on an out of custody basis. In that event, the Defendant shall
3           contact WSH no later than 7 days after the date the Defendant is released from custody or
4           after the date of this order, whichever is later. The Defendant shall contact WSH at 253-
5           761-7565, to schedule an appointment for the examination. The examination shall take
6           place at WSH, or at any other location deemed appropriate by WSH, and shall occur as
7           soon as is reasonably possible. As a condition of the Defendant’s continued release, the
8           Defendant shall contact WSH within the time limit set out above and shall cooperate fully
9           with the examination.
10                  4.3.1. Examination at other facility. If the Defendant is detained pursuant to a
11          confidential civil proceeding before the evaluation takes place under any of subsections,
12          then the Defendant shall be made available by the staff of the Treatment Facility
13          identified in subsection 2.4. above, or whatever other treatment facility at which the
14          Defendant is detained, for examination by WSH. The examination shall take place at
15          such facility within 15 days of the date WSH receives notice of the Defendant’s location.
16          4.4. Contents of Report. As soon as practicable, WSH shall furnish to the Court a
17   written report of the results of the examination and, if the Defendant was committed to WSH for
18   the evaluation, in no event less than twenty-four hours preceding the transfer of the Defendant
19   back to the King County Jail. The report shall include all of the information required by RCW
20   10.77.060(3)(f). If the Defendant is charged with a “serious offense” as noted above in
21   subsection 3.1. above, the report shall also include the following:
22                  4.4.1. An opinion whether involuntary medication is medically necessary, along
23          with an assessment of the likelihood that such medication will treat the symptoms
24          underlying the Defendant’s lack of such capacity within the maximum statutory
25

26
     INITIAL COMPETENCY EVALUATION
27   Revised March 1, 2008       Page 96
                                                                                        Thomas A. Carr
28                                                                                      Seattle City Attorney
                                                                                        700 Fifth Avenue, Suite 5350
29                                                                                      P.O. Box 94667
                                                                                        Seattle, WA 98124-4667
                                                                                        (206) 684-7757
30

31

32
1           evaluation period for non-felony cases. Such opinion may, but is not required to, include
2           a discussion of clinical probabilities.
3                  4.4.2. An opinion whether involuntary medication is substantially unlikely to
4           have side effects that will interfere significantly with the Defendant’s ability to assist
5           counsel in conducting a trial defense.
6                  4.4.3. An opinion whether any alternative, less intrusive treatment is unlikely to
7           achieve substantially the same results as to rendering the Defendant able to have such
8           capacity
9                  4.4.4. An opinion whether involuntary medication is medically appropriate, in
10          that it is in the Defendant’s best medical interest in light of his/her medical condition.
11                 4.4.5. An opinion whether                days of competency restoration treatment in
12          the manner described in RCW 10.77.088 is reasonably likely to render the Defendant
13          able to have such capacity within the maximum statutory evaluation period for non-
14          felony cases even if the Court does not authorize involuntary medication.
15                  4.5.    Developmental Disabilities Professional.           The provisions of this
16   subsection 4.4. apply only if this subsection is marked. One of the parties has advised the Court
17   that the Defendant may be developmentally disabled. The Court hereby orders that at least one
18   of the experts or professional persons conducting the evaluation shall be developmental
19   disabilities professional, as defined in RCW 10.77.010.
20          4.6. Copies of Report. Copies of the report shall be sent to the City Attorney, the
21   Defense Attorney, the Psychiatric Services Administrator of the King County Department of
22   Adult Detention, and, upon request, to the Designated Mental Health Professional for King
23   County (DMHP).
24          4.7. Waiver of Requirement of Two or More Examiners. The attorneys for both
25   parties have waived the requirement of two or more evaluators.
26
     INITIAL COMPETENCY EVALUATION
27   Revised March 1, 2008       Page 97
                                                                                            Thomas A. Carr
28                                                                                          Seattle City Attorney
                                                                                            700 Fifth Avenue, Suite 5350
29                                                                                          P.O. Box 94667
                                                                                            Seattle, WA 98124-4667
                                                                                            (206) 684-7757
30

31

32
1    5.     TRANSMITTAL OF RECORDS.
2           5.1.   Access to Records.       To the extent permitted by RCW Chs. 10.77 and 71.05
3    (including but not limited to RCW 10.77.060, 10.77.065, 10.77.097, and 71.05.390) or other
4    applicable law, this signed order of this Court shall serve as authority for the evaluator(s) from
5    WSH to be given access to all records held by any mental health, medical, educational, or
6    correctional facility that relate to the present or past mental, emotional, or physical condition of
7    the defendant.
8           5.2. Authorization to Provide Information. The City Attorney, the Court, the Seattle
9    Police Department, any other law enforcement agency possessing relevant information, and the
10   Defense Attorney, are hereby authorized to provide to WSH all information in their possession
11   or control which they reasonably deem may be of assistance to WSH in conducting the
12   examination ordered hereby.
13   6.     TRANSPORT ORDERS. If the examination is to occur at WSH, then the following
14   shall occur. (a) The King County Department of Adult Detention shall transport the Defendant
15   to Western State Hospital at Ft. Steilacoom (WSH) as soon as possible, but not prior to the next
16   business day after WSH receives information within the control of the Court, the prosecutor, or
17   the defense attorney that is relevant to the evaluation. WSH shall notify the King County
18   Department of Adult Detention when it has received such information. (b) Upon completion of
19   the examination, the King County Department of Adult Detention shall be transport the
20   Defendant from WSH to the King County Jail. (c) The King County Department of Adult
21   Detention is hereby authorized to transport the Defendant as directed in this order.
22   7.     ANCILLARY ORDERS.
23          7.1. Time-for-trial/Jurisdiction. If subsection 3.1. is marked, then the running of the
24   time-for-trial period is tolled in this action, pursuant to CrRLJ 3.3(e)(1), until this Court enters a
25   written order finding the defendant to be competent. If either subsection 3.2.1 or 3.2.2. is
26
     INITIAL COMPETENCY EVALUATION
27   Revised March 1, 2008       Page 98
                                                                                            Thomas A. Carr
28                                                                                          Seattle City Attorney
                                                                                            700 Fifth Avenue, Suite 5350
29                                                                                          P.O. Box 94667
                                                                                            Seattle, WA 98124-4667
                                                                                            (206) 684-7757
30

31

32
1    marked, then the running of this Court’s jurisdiction in the probation action shall be tolled
2    pursuant to applicable law, until this Court enters a written order finding the Defendant to be
3    competent. If subsection 3.2.3. is marked, then the running of the time-for-trial period is tolled
4    in this action pursuant to CrRLJ 3.3(e)(1), until this Court enters a written order finding the
5    Defendant competent.
6           7.2.     Next Hearing Date. The next hearing in this case shall be:
7           Date:                            Time:                   Courtroom:
8            7.3. Interpreters. If this subsection is marked, then, that the examination shall be done
9    with the aid of an interpreter in the                         language.   Defense counsel is to
10   arrange for the appointment of an interpreter and to coordinate with WSH for the interpreter to
11   be present at the examination, whether it occurs at WSH, or in the King County Jail (either in
12   downtown Seattle or at the Kent Regional Justice Center), or at the Treatment Facility.
13          DONE IN OPEN COURT this _____ day of                                        ,
14   .
15
                                                          JUDGE
16
     Presented by:                                        Defense Attorney:
17

18
     Assistant City Attorney                              (Attorney Name) WSBA #
19   WSBA #____________
     Attention: Case Preparation Unit                     (Firm)
20

21   Seattle City Attorney’s Office                       (Address)
     Public and Community Safety Division
22   700 Fifth Avenue, Suite 5350                         (City, State, Zip)
     P.O. Box 94667
23
     Seattle, WA 98124-4667
24   (206) 684-7757                                       (Telephone)
     FAX (206) 615-1293
25   j:/data/criminal/docs/forms/mio/Initial Evaluation 3-1-08
26
     INITIAL COMPETENCY EVALUATION
27   Revised March 1, 2008       Page 99
                                                                                         Thomas A. Carr
28                                                                                       Seattle City Attorney
                                                                                         700 Fifth Avenue, Suite 5350
29                                                                                       P.O. Box 94667
                                                                                         Seattle, WA 98124-4667
                                                                                         (206) 684-7757
30

31

32
     Exhibit 7:       Order Retracting Competency Evaluation
1

2
                    IN SEATTLE MUNICIPAL COURT, COUNTY OF KING
3                                 STATE OF WASHINGTON
                                          )
4
     CITY OF SEATTLE,                     )
5                                         )
                           Plaintiff,     ) No.
6                                         )
7               vs.                       ) ORDER RETRACTING COMPETENCY
                                          ) EVALUATION
8                              ,          )
                                          )
9
                           Defendant.     )
10                                        )
                                          )
11
     1.     PROCEDURAL BACKGROUND. This Court has previously issued an order entitled Order
12
     for Initial Evaluation for Competency, Insanity, or Diminished Capacity, and Other Ancillary Orders
13
     (the “Order”).    Among other things, the Order directed Western State Hospital to evaluate the
14
     Defendant and render an opinion as to the Defendant’s competency to proceed in this matter. The
15
     Court has received information that leads the Court to retract the Order as set more fully herein.
16
     2.     INFORMATION REGARDING THE DEFENDANT. The Court has received information
17
     concerning the Defendant as marked below:
18
                       2.1. Based on intervening events, defense counsel has communicated to the Court its
19
     belief that the Defendant is competent to proceed in this matter. The Court, having heard from
20
     defense counsel and the City, finds that there is no longer any reason to doubt the Defendant’s
21
     competency to proceed in this matter. The Court will enter a separate order finding the Defendant
22
     competent.
23
                       2.2. While out of custody, the Defendant was directed to appear at a hearing in this
24
     matter. The Defendant was provided with notice of that hearing as required by law, but failed to
25
     appear at the hearing. This Court issued a bench warrant for the Defendant’s arrest. The Defendant
26
     remains at large at the present time.
27   ORDER RETRACTING COMPETENCY EVALUATION
28   Revised March 1, 2008                 Page 100
                                                                                          Thomas A. Carr
                                                                                          Seattle City Attorney
29                                                                                        700 Fifth Avenue, Suite 5350
                                                                                          P.O. Box 94667
30                                                                                        Seattle, WA 98124-4667
                                                                                          (206) 684-7757
31

32
1                     2.3. Other:
2

3    3.       ORDER FOR EVALUATION RETRACTED. Based on the findings in section 2, the Court
4    finds that it is appropriate at this time to retract the Order, and the Court hereby does retract the Order.
5    Upon receipt of this order, Western State Hospital is relieved of its duties and obligations under the
6    Order.    If the Court determines in the future that there is reason to question the Defendant’s
7    competency to proceed, the Court will issue a new order for a competency evaluation.
8
              DONE IN OPEN COURT this _____ day of                                  ,       .
9

10                                                          JUDGE
11
     Presented by:                                          Defense Attorney:
12

13   Assistant City Attorney                                (Attorney Name) WSBA #
14   WSBA #____________

15                                                          (Firm)
     Attention: Case Preparation Unit
16
     Seattle City Attorney’s Office                         (Address)
17   Public and Community Safety Division
     700 Fifth Avenue, Suite 5350                           (City, State, Zip)
18   P.O. Box 94667
19
     Seattle, WA 98124-4667
     (206) 684-7757                                         (Telephone)
20   FAX (206) 615-1293                                     _________________________________
                                                            (Fax)
21

22
     j:/data/criminal/docs/forms/mio/Order Retracting Comp Eval 3-1-08
23

24

25

26

27   ORDER RETRACTING COMPETENCY EVALUATION
28   Revised March 1, 2008     Page 101
                                                                                            Thomas A. Carr
                                                                                            Seattle City Attorney
29                                                                                          700 Fifth Avenue, Suite 5350
                                                                                            P.O. Box 94667
30                                                                                          Seattle, WA 98124-4667
                                                                                            (206) 684-7757
31

32
     Exhibit 8:     Competency Restoration Order
1

2
                          IN SEATTLE MUNICIPAL COURT, COUNTY OF KING
3                                    STATE OF WASHINGTON
4
                                                        )
5    CITY OF SEATTLE,                                   )
                                                        )
6                                  Plaintiff,           )   No.
7                                                       )
                    vs.                                 )   ORDER DIRECTING COMPETENCY
8                                                       )   RESTORATION TREATMENT AND
                                           ,            )   RELATED ANCILLARY ORDERS
9
                                                        )
10                                 Defendant.           )
                                                        )
11                                                      )
12          THIS COURT has conducted a hearing on the Defendant’s competency to proceed. After
13   reviewing the evidence presented by the parties and other records in the case, this Court finds the
14   following facts and issues the following orders:
15   1.     FINDINGS OF FACT:
16          1.1.    Nature of Charges.          The Court finds by clear and convincing evidence that the
17   Defendant is charged with a non-felony crime that is a serious offense as defined in RCW 10.77.092.
18          1.2. Competency to Stand Trial. The Court finds by a preponderance of the evidence that
19   the Defendant lacks the capacity to understand the nature of the proceedings against him/her or to
20   assist in his/her own defense as a result of mental disease or defect. The Defendant is therefore not
21   competent to stand trial, pursuant to RCW 10.77.010 and 10.77.050.
22          1.3. Competency Restoration Treatment Appropriate. The Court does not presently find
23   that the Defendant is unlikely to regain competency with treatment. The Defendant has not previously
24   been placed in any form of treatment for competency restoration pursuant to RCW 10.77.088(1).
25   2.     ORDERS REGARDING TREATMENT FOR RESTORATION OF COMPETENCY:
26   The Secretary of the Department of Social and Health Services (DSHS) is hereby ordered to place the
27   COMPETENCY RESTORATION ORDER
28   Revised March 1, 2008     Page 102
                                                                                       Thomas A. Carr
                                                                                       Seattle City Attorney
29                                                                                     700 Fifth Avenue, Suite 5350
                                                                                       P.O. Box 94667
30                                                                                     Seattle, WA 98124-4667
                                                                                       (206) 684-7757
31

32
1    Defendant in a program for mental health treatment and restoration of competency, as noted on the
2    blank lines below.
3            _____ 2.1. Inpatient Program. The Defendant shall be placed at a secure mental health
4    facility in the custody of DSHS, or its designee, for mental health treatment for restoration of
5    competency.    The Defendant shall comply with all aspects of the treatment as directed by the
6    treatment facility, including, without limitation, taking any medications prescribed as part of the
7    program.
8                          2.1.1. The placement shall not exceed 14 days in addition to any unused time of
9                  evaluation under RCW 10.77.060. There are              days of unused time of the 15-day
10                 evaluation (if the preceding line is left blank, then there are no unused days of the
11                 evaluation), so the total placement shall not exceed           days (if the preceding line
12                 is left blank, then the total placement shall not exceed 14 days).
13                         2.1.2. The length of the placement includes only the time the Defendant is
14                 actually at the facility and shall be in addition to reasonable time for transport to or
15                 from the facility.
16                         2.1.3. The inpatient treatment program shall be provided at Western State
17                 Hospital (the “Treatment Facility”).
18           _____ 2.2. 90-Day Conditional Release Program.               The Defendant shall be placed on
19   conditional release for 90 days for mental health treatment and restoration of competency. The
20   treatment shall be performed at the following DSHS-designated treatment facility (the “Treatment
21   Facility”):                                                                                             .
22                         2.2.1. If the Defendant is currently in custody in this case, the Defendant shall
23                 be released from custody on this case forthwith on the conditions set out in subsection
24                 2.2.2. below. If the Defendant is currently out of custody, the Defendant shall remain
25                 out of custody on the conditions set out in subsection 2.2.2. below.
26

27   COMPETENCY RESTORATION ORDER
28   Revised March 1, 2008     Page 103
                                                                                          Thomas A. Carr
                                                                                          Seattle City Attorney
29                                                                                        700 Fifth Avenue, Suite 5350
                                                                                          P.O. Box 94667
30                                                                                        Seattle, WA 98124-4667
                                                                                          (206) 684-7757
31

32
1                      2.2.2. The Defendant shall comply with the following as conditions of
2               continued release in this case:
3                              Contact the Treatment Facility in person or by telephone within 7 days
4                      of this Order.
5                              Comply with all terms and conditions of the treatment program as
6                      directed by the Treatment Facility, including, without limitation:
7                              Take any medications prescribed as part of the program.
8                              Notify the Court and the Treatment Facility of any change of address or
9                      telephone number.
10                             Commit no criminal law violations.
11                             Attend all required Court appearances in this matter or in any other
12                     criminal matters in this or any other Court.
13                             Abstain from alcohol and all other mood altering drugs, unless
14                     prescribed by a physician.
15                             Possess no weapons.
16                             Other:
17

18                                                                                                       .
19                     2.2.3. The Treatment Facility shall immediately inform the Court, the Mental
20              Health Court Liaison, the defense attorney listed below, and the prosecutor listed below
21              if the Defendant fails to comply with any of the conditions of the conditional release.
22                     2.2.4. The Treatment Facility shall provide monthly reports on the Defendant’s
23              progress to the Court, the Mental Health Court Liaison, the defense attorney listed
24              below, and the prosecutor listed below.
25              2.3.   Administration of Medication.       Staff from Western State Hospital (WSH)
26        evaluated the Defendant pursuant to a court-ordered competency evaluation. Based on the
27   COMPETENCY RESTORATION ORDER
28   Revised March 1, 2008     Page 104
                                                                                      Thomas A. Carr
                                                                                      Seattle City Attorney
29                                                                                    700 Fifth Avenue, Suite 5350
                                                                                      P.O. Box 94667
30                                                                                    Seattle, WA 98124-4667
                                                                                      (206) 684-7757
31

32
1         report produced by WSH and evidence produced by the parties at the hearing on this issue, the
2         Court makes the following findings and enters the following orders as marked below, pursuant
3         to Sell v. United States, 123 S.Ct. 2174, 539 U.S. 166, 156 L.Ed.2d 197 (2003), Riggins v.
4         Nevada, 504 U.S. 127 (1992), United States v. Weston, 255 F.3d 873 (U.S. Cir. 2001), cert.
5         denied, 534 U.S. 1067 (2001), State v. Adams, 77 Wn.App. 50, 55-57 (1995), rev. denied, 126
6         Wn.2d 1016 1995), and State v. Lover, 41 Wn.App. 685, 688-690 (1985), in addition to all
7         other findings and orders set forth elsewhere in this Order.
8                       2.3.1. Authorization for Involuntary Medication. The Treatment Facility is
9                hereby authorized to administer psychotropic medication to the defendant on either a
10               voluntary basis or an involuntary basis.       The Court grants this authorization to
11               administer involuntary medication based upon the Court’s finding by clear, cogent and
12               convincing evidence as follows:
13                              2.3.1.1. The Defendant is charged with a serious crime as defined in
14                      RCW 10.77.092.
15                              2.3.1.2. The City has an important governmental interest at stake in
16                      trying to render the Defendant competent to stand trial on the charges involved
17                      in this case (which this Court also finds is a compelling interest under Adams,
18                      supra, and Lover, supra). In making this finding, the Court has considered: the
19                      facts of this case, including the potential for future confinement; the current
20                      length of the Defendant’s confinement; and that there are no other grounds upon
21                      which this Court may order involuntary medications.
22                              2.3.1.3.   Involuntary medication will significantly further the City’s
23                      governmental interests. Involuntary medication is substantially likely to render
24                      the Defendant competent. Involuntary medication is substantially unlikely to
25                      have side effects that interfere significantly with the Defendant’s ability to assist
26                      counsel in conducting a trial defense and thereby render the trial unfair.
27   COMPETENCY RESTORATION ORDER
28   Revised March 1, 2008     Page 105
                                                                                        Thomas A. Carr
                                                                                        Seattle City Attorney
29                                                                                      700 Fifth Avenue, Suite 5350
                                                                                        P.O. Box 94667
30                                                                                      Seattle, WA 98124-4667
                                                                                        (206) 684-7757
31

32
1                                   2.3.1.4.   Involuntary medication is necessary to further the City’s
2                           governmental interests. Any alternative, less intrusive treatments are unlikely to
3                           achieve substantially the same results. In making these findings, the Court has
4                           considered less intrusive means for administering the medication.
5                                   2.3.1.5.   Involuntary medication is medically appropriate and in the
6                           Defendant’s best medical interest in light of the Defendant’s medical condition.
7                           2.3.2. Authorization for Voluntary Medication Only. If subsection 2.3.1. is
8                    not marked, then the Treatment Facility may administer psychotropic medication to the
9                    Defendant pursuant to this order only on a voluntary basis.
10                          2.3.3. Conditions for Administering Medication.                  Any medication
11                   administered by the Treatment Facility pursuant to this order, whether on a voluntary or
12                   involuntary basis, shall be administered under the care of a duly authorized psychiatrist
13                   employed by the Treatment Facility, and shall be administered in the minimum dosage
14                   necessary. The psychiatrist shall take all precautions to minimize side effects on the
15                   Defendant and effects on any medical conditions of the Defendant.
16   3.       ORDERS UPON COMPLETION OF TREATMENT PERIOD.
17            3.1. Re-evaluation for competency.        Prior to the end of the treatment period pursuant to
18   section 2 and at least 24 hours before the Defendant’s next scheduled court hearing as determined
19   under subsection 3.3 below, the staff at Treatment Facility shall evaluate the Defendant’s competency
20   to stand trial, and prepare a written report of the results of the evaluation. The parties have waived the
21   requirement of two evaluators. The evaluation, and the contents of the report, shall be as set forth
22   below.
23                   3.1.1. Time and location of evaluation.     The evaluation shall occur at a time prior to
24            the end of the treatment period that the Treatment Facility determines is reasonable and
25            appropriate to evaluate the Defendant’s competency while also maximizing his/her available
26            treatment time.
27   COMPETENCY RESTORATION ORDER
28   Revised March 1, 2008     Page 106
                                                                                           Thomas A. Carr
                                                                                           Seattle City Attorney
29                                                                                         700 Fifth Avenue, Suite 5350
                                                                                           P.O. Box 94667
30                                                                                         Seattle, WA 98124-4667
                                                                                           (206) 684-7757
31

32
1                   3.1.2. Contents of report. The Treatment Facility shall furnish a written examination
2           report to the Court, prosecutor and defense counsel, setting forth its findings. The report shall
3           include all of the contents required for initial evaluations set forth in RCW 10.77.060(3).
4                   3.1.3. Access to records. The Treatment Facility shall be entitled to receive any of
5           the information described RCW 10.77.060(2)(d), whether the information is held by another
6           DSHS-licensed facility, the King County Correctional Facilities, or elsewhere. The Treatment
7           Facility may be given access to any information described in RCW 10.77.060 (2)(e), whether
8           held by Treatment Facility or elsewhere. The City Attorney’s office is authorized and directed
9           to transmit a copy of this order to the Treatment Facility so that the Treatment Facility may
10          conduct the competency re-evaluation pursuant to this order.
11          3.2. Copies of Report. The Treatment Facility shall provide copies of the competency report
12   to the following: the Court, the Mental Health Court Liaison, the City Attorney, the defense attorney,
13   and the Psychiatric Services Administrator of the King County Department of Adult Detention, and
14   upon request, to the Designated Mental Health Professional for King County.
15          3.3. Return to Court. The Defendant shall return o Court at the end of the treatment
16   program, or as otherwise directed below or by further order of this Court.
17                  3.3.1. The next hearing date and time in this case shall be: _____________________ ,
18          at              o’clock, in Courtroom                .
19                  3.3.2. If the treatment program is an inpatient program, the King County Department
20          of Adult Detention shall transport the Defendant to Court for the next hearing, as provided in
21          section 4 below. If the transportation and the next hearing dates set by the Court are prior to
22          the end of the statutorily authorized competency restoration period, and if the Treatment
23          Facility does not believe that the Defendant’s competency will be restored prior to the original
24          transportation date, the Treatment Facility may notify the Court by FAX and request that the
25          transportation and hearing dates be reset to allow for the full restoration period authorized by
26          statute. The Court shall review such request with the parties and shall notify the parties and the
27   COMPETENCY RESTORATION ORDER
28   Revised March 1, 2008     Page 107
                                                                                          Thomas A. Carr
                                                                                          Seattle City Attorney
29                                                                                        700 Fifth Avenue, Suite 5350
                                                                                          P.O. Box 94667
30                                                                                        Seattle, WA 98124-4667
                                                                                          (206) 684-7757
31

32
1            Treatment Facility by FAX of the new date for transport and hearing or of the denial of the
2            request. If the request is granted, the Treatment Facility shall make appropriate transport
3            arrangements with the King County Department of Adult Detention.
4                    3.3.3. If the treatment program is the 90-day conditional release, the Defendant is
5            hereby ordered to appear in this Court for the next hearing.
6            3.4. Time-for-trial Period Remains Tolled. The running of the time-for-trial period in this
7    case remains tolled, pursuant to CrRLJ 3.3(e)(l), until this Court enters a written order finding the
8    Defendant to be competent.
9    4.      TRANSPORT ORDERS. This section only applies if the Defendant is placed in an inpatient
10   treatment program as described in section 2.1.
11           4.1. Transport from Court to Program. The King County Department of Adult Detention
12   shall transport the Defendant to Western State Hospital at Ft. Steilacoom as soon as possible, and the
13   King County Department of Adult Detention is hereby authorized to transport the Defendant as
14   directed in this order.
15           4.2. Transport from Program to Court. Upon the earlier of the completion of the program
16   or such other time as may be set by the Court in accordance with subsections 3.3.1. and 3.3.2., the
17   King County Department of Adult Detention shall transport the Defendant from Western State
18   Hospital to this Court, and the King County Department of Adult Detention is hereby authorized to
19   transport the Defendant as directed in this order. The Defendant shall be transported to Court at least
20   one day prior to the scheduled hearing, excluding Saturdays, Sundays, and Court Holidays.
21

22           DONE IN OPEN COURT this _____ day of                               ,                .
23

24
                                                          JUDGE
25

26   ///
     ///
27   COMPETENCY RESTORATION ORDER
28   Revised March 1, 2008     Page 108
                                                                                        Thomas A. Carr
                                                                                        Seattle City Attorney
29                                                                                      700 Fifth Avenue, Suite 5350
                                                                                        P.O. Box 94667
30                                                                                      Seattle, WA 98124-4667
                                                                                        (206) 684-7757
31

32
     Presented by:                                    Defense Attorney:
1

2
     Assistant City Attorney                          (Attorney Name) WSBA #
3    WSBA #____________
4
                                                      (Firm)
5    Attention: Case Preparation Unit
     Seattle City Attorney’s Office                   (Address)
6    Public and Community Safety Division
7    700 Fifth Avenue, Suite 5350                     (City, State, Zip)
     P.O. Box 94667
8    Seattle, WA 98124-4667
     (206) 684-7757                                   (Telephone)
9
     FAX (206) 615-1293                               _________________________________
10                                                    (Fax)

11   j:/data/criminal/docs/forms/mio/Competency Restoration Order 3-1-08
12

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27   COMPETENCY RESTORATION ORDER
28   Revised March 1, 2008     Page 109
                                                                               Thomas A. Carr
                                                                               Seattle City Attorney
29                                                                             700 Fifth Avenue, Suite 5350
                                                                               P.O. Box 94667
30                                                                             Seattle, WA 98124-4667
                                                                               (206) 684-7757
31

32
     Exhibit 9:     Order Finding Defendant Competent
1

2
                    IN SEATTLE MUNICIPAL COURT, COUNTY OF KING
3                                STATE OF WASHINGTON
                                         )
4
     CITY OF SEATTLE,                    )
5                                        )
                           Plaintiff,    ) No.
6                                        )
7               vs.                      ) ORDER FINDING DEFENDANT
                                         ) COMPETENT, AND OTHER ANCILLARY
8                              ,         ) ORDERS
                                         )
9
                           Defendant.    )
10                                       )
                                         )
11
            THIS COURT has conducted a hearing on the Defendant’s competency to proceed in this
12
     matter. After reviewing the evidence presented by the parties and other records in the case, this Court
13
     finds the following facts and issues the following orders:
14
     1.     DEFENDANT’S BACKGROUND. The Defendant is charged as follows:
15
                    1.1. The Defendant is charged with a non-felony crime that is prior to judgment.
16
                    1.2.   The Defendant is awaiting a post-judgment proceeding in this case as
17
     marked below.
18
                            1.2.1. The Defendant is on probation in the form of a suspended sentence.
19
                            1.2.2. The Defendant is on probation in the form of a deferred sentence.
20
                            1.2.3. The Defendant is on probation in the form of a dispositional continuance
21
            or stipulated order of continuance.
22
                            1.2.4. The Defendant is awaiting sentencing.
23
     2.     DEFENDANT COMPETENT TO PROCEED. The Court finds by a preponderance of the
24
     evidence that the defendant is competent to proceed in this matter.
25
     3.     ANCILLARY ORDERS.
26

27   ORDER FINDING DEFENDANT COMPETENT
28   Revised March 1, 2008      Page 110
                                                                                        Thomas A. Carr
                                                                                        Seattle City Attorney
29                                                                                      700 Fifth Avenue, Suite 5350
                                                                                        P.O. Box 94667
30                                                                                      Seattle, WA 98124-4667
                                                                                        (206) 684-7757
31

32
1           3.1. Time-for-trial Period—Pre-Judgment Case. If subsection 1.1. or 1.2.3. is marked, then
2    the running of the time-for-trial period shall recommence as of the date of this order. In accordance
3    with CrRLJ 3.3(b)(5), the expiration date in this matter is now the later of: (a) the expiration date
4    computed in accordance with CrRLJ 3.3(b)(1) and (b)(2), if the defendant has not previously been
5    arraigned in this matter, (b) the original expiration date plus the time excluded pursuant to CrRLJ
6    3.3(e)(1), or (c) 30 days from the date of this order. The new expiration date in this matter is therefore
7                                          .
8           3.2. Jurisdiction—Post-Judgment Sentenced Case. If either subsection 1.2.1. or 1.2.2. is
9    marked, then the running of this Court’s jurisdiction in the probation action shall recommence as of
10   the date of this order. The Court finds that the jurisdiction end date in this matter, taking into
11   consideration the tolling of jurisdiction while the Defendant’s competency was at issue, is now
12                                 .
13          3.3. Sentencing. If subsection 1.2.4. is marked, then this Court will issue its sentencing order
14   in this matter by a separate Judgment and Sentencing document.
15

16          DONE IN OPEN COURT this _____ day of                                  ,       .
17

18

19                                                        JUDGE
     ///
20
     ///
21   ///
     ///
22   ///
     ///
23
     ///
24   ///
     ///
25   ///
26   ///
     ///
27   ORDER FINDING DEFENDANT COMPETENT
28   Revised March 1, 2008      Page 111
                                                                                           Thomas A. Carr
                                                                                           Seattle City Attorney
29                                                                                         700 Fifth Avenue, Suite 5350
                                                                                           P.O. Box 94667
30                                                                                         Seattle, WA 98124-4667
                                                                                           (206) 684-7757
31

32
     Presented by:                                    Defense Attorney:
1

2
     Assistant City Attorney                          (Attorney Name) WSBA #
3    WSBA #____________
4
                                                      (Firm)
5    Attention: Case Preparation Unit
     Seattle City Attorney’s Office                   (Address)
6    Public and Community Safety Division
7    700 Fifth Avenue, Suite 5350                     (City, State, Zip)
     P.O. Box 94667
8    Seattle, WA 98124-4667
     (206) 684-7757                                   (Telephone)
9
     FAX (206) 615-1293                               _________________________________
10                                                    (Fax)

11

12
     j:/data/criminal/docs/forms/mio/Order Finding Competent 3-1-08

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27   ORDER FINDING DEFENDANT COMPETENT
28   Revised March 1, 2008      Page 112
                                                                               Thomas A. Carr
                                                                               Seattle City Attorney
29                                                                             700 Fifth Avenue, Suite 5350
                                                                               P.O. Box 94667
30                                                                             Seattle, WA 98124-4667
                                                                               (206) 684-7757
31

32
     Exhibit 10:    Dismiss and Refer—Unsuccessful or Unlikely Restoration
1

2
                          IN SEATTLE MUNICIPAL COURT, COUNTY OF KING
3                                    STATE OF WASHINGTON
4
                                                       )
5    CITY OF SEATTLE,                                  )
                                                       )
6                                  Plaintiff,          )   No.
7                                                      )
                    vs.                                )   ORDER DISMISSING CASE—
8                                                      )   COMPETENCY RESTORATION
                                           ,           )   TREATMENT UNSUCCESSFUL OR
9
                                                       )   UNLIKELY TO BE SUCCESSFUL—AND
10                                 Defendant.          )   RELATED ANCILLARY ORDERS
                                                       )   (DISMISS AND REFER)
11                                                     )
12          THIS COURT has conducted a hearing on the Defendant’s competency to proceed in this
13   matter. After reviewing the evidence presented by the parties and other records in the case, this Court
14   finds the following facts and issues the following orders:
15   1.     FINDINGS OF FACT AND PROCEDURAL BACKGROUND:
16          1.1.    Nature of Charges.          The Court finds by clear and convincing evidence that the
17   Defendant is charged with a non-felony offense that is a serious offense as defined in RCW 10.77.092.
18          1.2. Competency to Stand Trial. The Court finds by a preponderance of the evidence that
19   the Defendant lacks the capacity to understand the nature of the proceedings against him/her or to
20   assist in his/her own defense as a result of mental disease or defect. The Defendant is therefore not
21   competent to stand trial, pursuant to RCW 10.77.010 and 10.77.050.
22          1.2.    Competency Restoration Treatment. The Court makes the additional findings with
23   respect to the Defendant pursuant to RCW 10.77.084(1) and RCW 10.88.088(1), as marked below:
24                          1.2.1. The Defendant has not been ordered into either inpatient or
25   outpatient competency restoration treatment. The Court, following notice to the parties and a
26   hearing, hereby finds that the Defendant’s competency has not been restored, and that neither inpatient
27   DISMISS AND REFER—UNSUCESSFUL OR UNLIKELY RESTORATION
28   Revised March 1, 2008                      Page 113
                                                                                        Thomas A. Carr
                                                                                        Seattle City Attorney
29                                                                                      700 Fifth Avenue, Suite 5350
                                                                                        P.O. Box 94667
30                                                                                      Seattle, WA 98124-4667
                                                                                        (206) 684-7757
31

32
1    nor outpatient treatment within the time limits established by RCW 10.77.088(1) is likely to restore
2    competency.
3                             1.2.2. The maximum allowable period of inpatient competency restoration
4    treatment pursuant to RCW 10.77.088(1)(a)(i) has ended and the Defendant’s competency has not
5    been restored.
6                             1.2.3. The   maximum     allowable    outpatient    mental    health       treatment
7    competency restoration period in RCW 10.77.088(1)(a)(ii) has ended and the Defendant’s competency
8    has not been restored.
9    2.     ORDER OF DISMISSAL. The proceedings against the Defendant in this case are hereby
10   dismissed without prejudice pursuant to RCW 10.77.084(1)(c).
11   3.     REFERRAL OF DEFENDANT FOR EVALUATION PURSUANT TO RCW CH. 71.05.
12   In accordance with RCW 10.77.084(1)(c), RCW 10.77.088(1)(b)(i) and RCW 10.77.088(1)(b)(ii), the

13   Court hereby refers the Defendant for evaluation for consideration of filing a petition under RCW ch.

14   71.05. The referral shall be made in as marked below:

15          _____3.1. Defendant to be evaluated at treatment facility. The Defendant is in custody at

16   the present time. In accordance with RCW 10,77.088(1)(a)(i), the Defendant shall be transported to

17                                                         (the “Treatment Facility”) for up to 72 hours,

18   excluding weekends and holidays, for evaluation for purposes of filing a petition under RCW ch.

19
     71.05. If the preceding line is left blank, then the Treatment Facility shall be Western State Hospital.

20
                              3.1.1. The King County Department of Adult Detention shall transport the
     Defendant to the Treatment Facility as soon as possible, but in no event later than the following date
21
     and time:                        ,            at 5:00 p.m.     The Court hereby authorizes the King
22
     County Department of Adult Detention to transport the Defendant as directed in this order.
23
                              3.1.2. The King County Department of Adult Detention shall notify the Court
24
     immediately upon determining that the Defendant cannot transported within the expiration of the time
25
     specified in subsection 3.1.1.
26

27   DISMISS AND REFER—UNSUCESSFUL OR UNLIKELY RESTORATION
28   Revised March 1, 2008                    Page 114
                                                                                           Thomas A. Carr
                                                                                           Seattle City Attorney
29                                                                                         700 Fifth Avenue, Suite 5350
                                                                                           P.O. Box 94667
30                                                                                         Seattle, WA 98124-4667
                                                                                           (206) 684-7757
31

32
1                           3.1.3. In any event, the Defendant shall be released from custody on the above-
2    entitled criminal case upon the earlier of: (a) being transported to Western, or (b) the expiration of 72

3    hours , commencing the morning after the date of dismissal, excluding weekends and holidays. Any

4    other custody orders on any other cases are to remain unaffected by this order.

5           _____ 3.2. Defendant to be evaluated in custody. The Defendant is in custody at the

6    present time, but is subject to a “jail hold” that will prevent the Defendant’s transport to a treatment

7    facility pursuant to subsection 3.1.

8                           3.2.1. The Court is exercising its inherent authority in order to comply with the

9    statutory intent of RCW 10.77.084(1)(c)(ii) and RCW 10,77.088(1)(b)(ii) under circumstances not

10   covered directly by those statutes. Accordingly, the Court hereby finds that it is appropriate to allow

11   the Designated Mental Health Professional (DMHP) to evaluate the Defendant and consider initial

12   detention proceedings under RCW ch. 71.05. In exercising its authority, the Court is looking to RCW

13   10.77.084(1)(c)(ii) and RCW 10,77.088(1)(b)(ii).

14                          3.2.2. Accordingly, the Defendant is to be detained for a sufficient period of

15   time, up to and including 72 hours (excluding weekends and holidays) commencing at 5:00 p.m. today

16   and ending at 5:00 p.m. on                            ,              , to allow the DMHP to evaluate

17   the Defendant and commence proceedings under RCW ch. 71.05 if appropriate.

18                          3.2.3. The Defendant is to be released from custody on the above-entitled

19   criminal case immediately upon the earlier of (a) the DMHP’s determination not to initiate

20   proceedings under RCW ch. 71.05 or (b) the end of the 72-hour period referred to in subsection 3.2.2..

21   Any other custody orders on any other cases are to remain unaffected by this order.

22          _____3.3. Defendant on Conditional Release. The Defendant is on conditional release at the

23   present time.      Accordingly, the DMHP shall evaluate the Defendant pursuant to RCW

24   10.77.088(1)(b)(ii), ch RCW 71.05, and specifically including, but not limited to, RCW 71.05.235(1).

25   The evaluation shall be conducted at a location chosen by the DMHP, and shall occur within 48 hours,

26   in accordance with RCW 10.77.084(1)(b)(i) and RCW 71.05.235(1).              The Defendant is hereby

27   DISMISS AND REFER—UNSUCESSFUL OR UNLIKELY RESTORATION
28   Revised March 1, 2008                    Page 115
                                                                                           Thomas A. Carr
                                                                                           Seattle City Attorney
29                                                                                         700 Fifth Avenue, Suite 5350
                                                                                           P.O. Box 94667
30                                                                                         Seattle, WA 98124-4667
                                                                                           (206) 684-7757
31

32
1    released from custody in this matter. Any other custody orders on any other cases are to remain
2    unaffected by this order.
3           _____ Defendant Currently Subject to RCW ch. 71.05 Proceedings. The Court and the
4    parties have been informed that the Defendant is currently the subject of proceedings pursuant to
5    RCW ch. 71.05 on an inpatient basis. Accordingly, a further referral for evaluation is not legally
6    possible at this time. Therefore, the Court hereby orders that the Defendant be released from custody
7    on this case immediately. Any other custody orders on any other cases are to remain unaffected by
8    this order. The Court further orders that this subsection 3.4. be sealed in the Court files pursuant to
9    GR 15(c) and RCW 71.05.390.
10   4.     ANCILLARY ORDERS.
11          4.1 Copies of Reports. The City Attorney’s Office, the Court, the Seattle Police Department,
12   and any other law enforcement agency possessing relevant information, is authorized to provide to the
13   DMHP or to the Treatment Facility, as applicable, all information in their possession which they
14   reasonably believe may be of assistance to the DMHP or the Treatment Facility, as the case may be, in
15   conducting the evaluation for purposes of filing a petition under RCW ch. 71.05. To the extent
16   permitted by RCW chs. 10.77 and 71.05 (including but not limited to 10.77.065, 10.77.097, and
17   71.05.390) or other applicable law, the DMHP or the Treatment Facility, as the case may be, is hereby
18   granted access to all the Defendant’s medical records, whether they are located at the King County
19   Correctional Facilities, at Western State Hospital, or elsewhere, for the purpose of conducting the
20   evaluation for the purposes of filing a petition under RCW ch. 71.05.
21          4.2. Results of DMHP or Treatment Facility Evaluation. Within five days after evaluating
22   the Defendant as directed in this order, the DMHP or Treatment Facility shall, in writing, inform the
23   Court, the Mental Health Court Liaison, the City Attorney, the defense attorney, and the Psychiatric
24   Services Administrator of the King County Department of Adult Detention whether proceedings under
25   RCW ch. 71.05 were or were not commenced against the Defendant.
26   ///
27   DISMISS AND REFER—UNSUCESSFUL OR UNLIKELY RESTORATION
28   Revised March 1, 2008                   Page 116
                                                                                        Thomas A. Carr
                                                                                        Seattle City Attorney
29                                                                                      700 Fifth Avenue, Suite 5350
                                                                                        P.O. Box 94667
30                                                                                      Seattle, WA 98124-4667
                                                                                        (206) 684-7757
31

32
1           DONE IN OPEN COURT this _____ day of                            ,       .
2
                                                       __________________________________
3                                                      JUDGE

4
     Presented by:                                     Defense Attorney:
5

6
     Assistant City Attorney                           (Attorney Name) WSBA #
7    WSBA #____________
8
                                                       (Firm)
9    Attention: Case Preparation Unit
     Seattle City Attorney’s Office                    (Address)
10
     Public and Community Safety Division
11   700 Fifth Avenue, Suite 5350                      (City, State, Zip)
     P.O. Box 94667
12   Seattle, WA 98124-4667
13
     (206) 684-7757                                    (Telephone)
     FAX (206) 615-1293                                _________________________________
14                                                     (Fax)
15

16   j:/data/criminal/docs/forms/mio/Dismiss-Treatment Unsuccessful (Dismiss and Refer) 3-1-08

17

18

19

20

21

22

23

24

25

26

27   DISMISS AND REFER—UNSUCESSFUL OR UNLIKELY RESTORATION
28   Revised March 1, 2008                  Page 117
                                                                                    Thomas A. Carr
                                                                                    Seattle City Attorney
29                                                                                  700 Fifth Avenue, Suite 5350
                                                                                    P.O. Box 94667
30                                                                                  Seattle, WA 98124-4667
                                                                                    (206) 684-7757
31

32
     Exhibit 11:    Dismiss and Detain—Ineligible for Treatment
1

2
                          IN SEATTLE MUNICIPAL COURT, COUNTY OF KING
3                                    STATE OF WASHINGTON
4
                                                       )
5    CITY OF SEATTLE,                                  )
                                                       )    No.
6                                   Plaintiff,         )
7                                                      )    ORDER FINDING DEFENDANT NOT
                    vs.                                )    ELIGIBLE FOR COMPETENCY
8                                                      )    RESTORATION TREATMENT,
                                            ,          )    DISMISSING OR STAYING
9
                                                       )    PROCEEDINGS, AND RELATED
10                                  Defendant.         )    ANCILLARY ORDERS (TRIAL)
                                                       )    (DISMISS AND DETAIN OR RELEASE)
11                                                     )
12          THIS COURT has conducted a hearing on the Defendant’s competency to proceed and the
13   Defendant’s eligibility for competency restoration treatment.
14   1.     FINDINGS OF FACT. After reviewing the evidence presented by the parties and other
15   records in the case, this Court makes the following findings of fact:
16          1.1. Nature of Charges. The Court finds Defendant is charged with a nonfelony crime that is
17   not a serious offense.
18          1.2. Competency to Stand Trial. The Court finds by a preponderance of the evidence that
19   the Defendant lacks the capacity to understand the nature of the proceedings against him/her or to
20   assist in his/her own defense as a result of mental disease or defect. The Defendant is therefore not
21   competent to stand trial, as defined in RCW 10.77.010.
22   2.     FINDINGS AND ORDERS REGARDING THE STATUS OF THE CASE. The Court
23   hereby finds, and orders that the case shall proceed, as marked below:
24          2.1. Findings and Orders for How Case Will Proceed.
25                            2.1.1. Dismiss and Detain. The Court finds that the Defendant is unlikely to
26   become competent to stand trial if proceedings in the above-entitled cause are stayed. Accordingly,
27   DISMISS AND DETAIN—INELIGIBLE FOR TREATMENT
28   Revised March 1, 2008                       Page 118
                                                                                       Thomas A. Carr
                                                                                       Seattle City Attorney
29                                                                                     700 Fifth Avenue, Suite 5350
                                                                                       P.O. Box 94667
30                                                                                     Seattle, WA 98124-4667
                                                                                       (206) 684-7757
31

32
1    the instant criminal case is dismissed without prejudice as a result of the Defendant’s incompetency to
2    stand trial.   The Court also finds that it is appropriate to allow the Designated Mental Health
3    Professional (DMHP) to evaluate the Defendant and consider initial detention proceedings under
4    RCW ch. 71.05. Therefore, pursuant to RCW 10.77.088(2), the Defendant is to be detained for a
5    sufficient period of time, up to and including 72 hours (excluding weekends and holidays)
6    commencing at 5:00 p.m. today and ending at 5:00 p.m. on                           ,                   , to
7    allow the DMHP to evaluate the Defendant and commence proceedings under RCW ch. 71.05 if
8    appropriate. The Defendant is to be released from custody immediately upon the earlier of: (a) the
9    DMHP’s determination not to initiate proceedings under RCW ch. 71.05 or (b) the end of the 72-hour
10   period described above in this subsection.
11                          2.1.2. Dismiss and Release. The Court finds that the Defendant is unlikely to
12   become competent to stand trial if proceedings in the above-entitled cause are stayed. Accordingly,
13   the instant criminal case is dismissed without prejudice as a result of the Defendant’s incompetency to
14   stand trial. The Court also finds that it is not appropriate to allow the DMHP to evaluate the
15   Defendant and consider initial detention proceedings under RCW ch. 71.05. Therefore, the Court
16   hereby orders that the Defendant be released from custody on this case immediately. Any other
17   custody orders on any other cases are to remain unaffected by this order.
18           2.2. Findings re Prior Notice if Dismissal.      The Court accepts the parties’ waiver of the
19    statutory requirement of 24 hours prior notice of such dismissal.
20   3.      ANCILLARY ORDERS.
21           3.1. Copies of reports. Copies of the mental health evaluation(s) and the police report may be
22   forwarded to the DMHP, together with any other reports or documents which might be of assistance in
23   evaluating the defendant and, if appropriate, commencing proceedings under RCW ch. 71.05.
24           3.2. Results of DMHP evaluation. If the Court has ordered that the DMHP evaluate the
25   Defendant, under subsection 2.1.1. above, then within five days after evaluating the Defendant as
26   directed in this order, the DMHP shall, in writing, inform the Court, the Mental Health Court Liaison,
27   DISMISS AND DETAIN—INELIGIBLE FOR TREATMENT
28   Revised March 1, 2008                   Page 119
                                                                                        Thomas A. Carr
                                                                                        Seattle City Attorney
29                                                                                      700 Fifth Avenue, Suite 5350
                                                                                        P.O. Box 94667
30                                                                                      Seattle, WA 98124-4667
                                                                                        (206) 684-7757
31

32
1    the City Attorney, the defense attorney, and the Psychiatric Services Administrator of the King County
2    Department of Adult Detention whether proceedings under RCW ch. 71.05 were or were not
3    commenced against the Defendant.
4
            DONE IN OPEN COURT this                      day of                        ,                  .
5

6
                                                        JUDGE
7

8    Presented by:                                      Defense Attorney:
9

10   Assistant City Attorney                            (Attorney Name) WSBA #
     WSBA #____________
11
                                                        (Firm)
12
     Attention: Case Preparation Unit
13   Seattle City Attorney’s Office                     (Address)
     Public and Community Safety Division
14   700 Fifth Avenue, Suite 5350                       (City, State, Zip)
15
     P.O. Box 94667
     Seattle, WA 98124-4667
16   (206) 684-7757                                     (Telephone)
     FAX (206) 615-1293                                 _________________________________
17
                                                        (Fax)
18
     j:/data/criminal/docs/forms/mio/Dismiss-Not Eligible for Restoration Treatment 3-1-08
19

20

21

22

23

24

25

26

27   DISMISS AND DETAIN—INELIGIBLE FOR TREATMENT
28   Revised March 1, 2008                  Page 120
                                                                                       Thomas A. Carr
                                                                                       Seattle City Attorney
29                                                                                     700 Fifth Avenue, Suite 5350
                                                                                       P.O. Box 94667
30                                                                                     Seattle, WA 98124-4667
                                                                                       (206) 684-7757
31

32
     Exhibit 12:    Strike and Refer—Probation Revocation Hearing
1

2
                       IN SEATTLE MUNICIPAL COURT, COUNTY OF KING
3                                 STATE OF WASHINGTON
4
                                                        )
5    CITY OF SEATTLE,                                   )
                                                        )    No.
6                                    Plaintiff,         )
7                                                       )    ORDER STRIKING OR STAYING
                    vs.                                 )    PROBATION REVOCATION
8                                                       )    PROCEEDINGS DUE TO DEFENDANT’S
                                             ,          )    LACK OF COMPETENCY AND RELATED
9
                                                        )    ANCILLARY ORDERS (FTC WITH
10                                   Defendant.         )    PROBATIONARY CONDITIONS)
                                                        )
11                                                      )
12          THIS COURT has conducted a hearing on the Defendant’s competency to proceed with a
13   probation revocation hearing related to an alleged failure to comply with conditions of probation.
14   After reviewing the evidence presented by the parties and other records in the case, this Court
15   finds the following facts and issues the following orders:
16   1.     FINDINGS OF FACT. The Court hereby finds by a preponderance of the evidence that
17   the Defendant lacks the capacity to understand the nature of the proceedings against him/her or
18   to assist in his/her own defense as a result of mental disease or defect. The Defendant is
19   therefore not competent to proceed with a probation revocation hearing.
20   2.     FINDINGS AND ORDERS REGARDING THE STATUS OF THE CASE. The
21   Court hereby finds, and orders that the case shall proceed, as marked below:
22          2.1. Findings and Orders for How Case Will Proceed.
23                          2.1.1.    Strike and Refer. The instant probation revocation hearing
24   alleging a failure to comply with probationary conditions shall be deemed stricken without
25   prejudice, effective three days from the date of this order without further order of this Court, as a
26   result of the Defendant’s incompetency to proceed.
27   STRIKE AND REFER—PROBATION REVOCATION HEARING
28   Revised March 1, 2008                        Page 121
                                                                                           Thomas A. Carr
                                                                                           Seattle City Attorney
29                                                                                         700 Fifth Avenue, Suite 5350
                                                                                           P.O. Box 94667
30                                                                                         Seattle, WA 98124-4667
                                                                                           (206) 684-7757
31

32
1                                      2.1.1.1. The Court is exercising its inherent authority in order to
2    comply with the statutory intent of RCW 10.77.088(2), under circumstances not covered directly
3    by that statute. Accordingly, the Court hereby finds that it is appropriate to allow the Designated
4    Mental Health Professional (DMHP) to evaluate the Defendant and consider initial detention
5    proceedings under RCW ch. 71.05. In exercising its authority, the Court is looking to RCW
6    10.77.088 for guidance.
7                                      2.1.1.2.   The competency evaluation recommends that the
8    defendant be referred for a civil commitment evaluation.             Therefore, pursuant to RCW
9    10.77.065(1)(b) and the Court’s inherent authority, the Defendant is to be detained in custody
10   until the earlier of: (a) the DMHP’s determination not to initiate proceedings under RCW ch.
11   71.05 or (b) 24 hours after the issuance of this order.
12                           2.1.2. Strike and Release. The instant revocation hearing alleging a
13   failure to comply with probationary conditions is hereby stricken without prejudice, effective
14   immediately, as a result of the Defendant’s incompetency to proceed. The competency
15   evaluation does not recommend that the defendant be referred for evaluation for proceedings.
16   The Court therefore orders that the Defendant be released immediately from custody on this
17   case. Any other custody orders on any other cases remain unaffected by this order.
18          2.2. Findings re Prior Notice . The attorneys for both parties have agreed to waive
19   their rights to at least 24 hours advance notice of the dismissal.
20   3.     ANCILLARY ORDERS.
21          3.1. Copies of reports. Copies of the mental health evaluation(s) and the police report
22   may be forwarded to the DMHP, together with any other reports or documents which might be of
23   assistance in evaluating the defendant and, if appropriate, commencing proceedings under RCW
24   ch. 71.05.
25

26

27   STRIKE AND REFER—PROBATION REVOCATION HEARING
28   Revised March 1, 2008                     Page 122
                                                                                           Thomas A. Carr
                                                                                           Seattle City Attorney
29                                                                                         700 Fifth Avenue, Suite 5350
                                                                                           P.O. Box 94667
30                                                                                         Seattle, WA 98124-4667
                                                                                           (206) 684-7757
31

32
1           3.2.    Re-calculation of jurisdiction end date or time-for-trial period. The period of
2    the Court’s jurisdiction or the end of the time-for-trial period shall be re-calculated at a future court
3    hearing.
4                   3.2.1. Suspended sentence. The instant probation revocation hearing relates to a
5    suspended sentence.      Accordingly, jurisdiction is and remains tolled during the during the
6    Defendant’s incompetency. State v. Campbell, 95 Wn.2d 954, 957 (1981); see also Spokane v.
7    Marquette, 146 Wn.2d 124, 131-132 (2002).
8                    3.2.2. Deferred sentence. The instant probation revocation hearing relates to a
9    deferred sentence.     Accordingly, jurisdiction is and remains tolled during the during the
10   Defendant’s incompetency. State v. Campbell, 95 Wn.2d 954, 957 (1981); see also Spokane v.
11   Marquette, 146 Wn.2d 124, 131-132 (2002).
12                   3.2.3. Dispositional continuance. The instant probation revocation hearing relates
13   to a dispositional continuance or stipulated order of continuance. Accordingly, the time-for-trial
14   period remains tolled and shall not re-commence running until this Court enters a written order
15   finding the Defendant has regained competency to stand trial.
16          3.3.   Status of probationary conditions. All probationary conditions shall remain
17   unchanged. Based upon State v. Campbell and Spokane v. Marquette, cited above, the defendant
18   is not subject to this Court’s jurisdiction until this Court issues a written order finding the
19   defendant competent to proceed with the probation revocation hearing in this case. Accordingly,
20   during the period that probation is tolled pursuant to this order and until this Court makes such
21   written finding of competency, the Municipal Probation Service is relieved of its duty, obligation
22   and responsibility to supervise or otherwise monitor the defendant’s probation in this matter.
23          3.4. Results of DMHP evaluation. If the Court has ordered that the DMHP evaluate the
24   Defendant, under subsection 2.1.1., then within five days after evaluating the Defendant as
25   directed in this order, the DMHP shall, in writing, inform the Court, the Mental Health Court
26   Liaison, the City Attorney (directed to the attention of the Case Prep Unit), the defense attorney
27   STRIKE AND REFER—PROBATION REVOCATION HEARING
28   Revised March 1, 2008                     Page 123
                                                                                             Thomas A. Carr
                                                                                             Seattle City Attorney
29                                                                                           700 Fifth Avenue, Suite 5350
                                                                                             P.O. Box 94667
30                                                                                           Seattle, WA 98124-4667
                                                                                             (206) 684-7757
31

32
1    (whose name and address are provided at the end of this order), and the Psychiatric Services
2    Administrator of the King County Department of Adult Detention whether proceedings under
3    RCW ch. 71.05 were or were not commenced against the defendant. If the Court has ordered
4    that proceedings be stayed, under subsection 2.1.3., and if proceedings are initiated under RCW
5    ch. 71.05, then the DMHP and any facility to which the Defendant is committed pursuant to
6    chapter 71.05 are hereby authorized (to the extent permissible under RCW ch. 71.05) to provide
7    to the parties listed in the preceding sentence information regarding the length of the
8    commitment, the date and nature of any additional proceedings under RCW ch. 71.05, and the
9    Defendant’s projected release date from the commitment.
10
            DONE IN OPEN COURT this                     day of                        ,
11   .

12
                                                        JUDGE
13

14   Presented by:                                      Defense Attorney:
15

16   Assistant City Attorney                            (Attorney Name) WSBA #
     WSBA #____________
17
                                                        (Firm)
18
     Attention: Case Preparation Unit
19   Seattle City Attorney’s Office                     (Address)
     Public and Community Safety Division
20   700 Fifth Avenue, Suite 5350                       (City, State, Zip)
21
     P.O. Box 94667
     Seattle, WA 98124-4667
22   (206) 684-7757                                     (Telephone)
     FAX (206) 615-1293                                 _________________________________
23                                                      (Fax)
24

25   j:/data/criminal/docs/forms/mio/Strike Hearing-FTC with Probationary Conditions 3-1-08
26

27   STRIKE AND REFER—PROBATION REVOCATION HEARING
28   Revised March 1, 2008                  Page 124
                                                                                      Thomas A. Carr
                                                                                      Seattle City Attorney
29                                                                                    700 Fifth Avenue, Suite 5350
                                                                                      P.O. Box 94667
30                                                                                    Seattle, WA 98124-4667
                                                                                      (206) 684-7757
31

32
     Exhibit 13     RCW 10.77.065 Referral
1

2
                    IN SEATTLE MUNICIPAL COURT, COUNTY OF KING
3                                STATE OF WASHINGTON
                                         )
4
     CITY OF SEATTLE,                    )
5                                        )
                           Plaintiff,    ) No.
6                                        )
7               vs.                      ) ORDER DIRECTING DEFENDANT BE
                                         ) EVALUATED BY DMHP FOR CIVIL
8                              ,         ) COMMITMENT PURSUANT TO RCW
                                         ) 10.77.065(1)(B) [DEFENDANT
9
                           Defendant.    ) PREVIOUSLY FOUND COMPETENT]
10                                       )
                                         )
11
            THIS COURT has conducted a hearing on the Defendant’s competency to proceed. After
12
     reviewing the evidence presented by the parties and other records in the case, this Court finds the
13
     following facts and issues the following orders:
14
     1.     DEFENDANT’S COMPETENCY.                     By separate order, this Court has found that the
15
     Defendant is competent to proceed.
16
     2.     DEFENDANT’S BACKGROUND. The Defendant’s case is at the following stage:
17
                    2.1. The Defendant has been convicted and sentenced in this case:
18
                            2.1.1. To jail for 24 months or less and his/her release date is such that he/she
19
                    will remain in custody in this case for at least 72 hours beyond today’s date, excluding
20
                    weekends and holidays; or
21
                            2.1.2. Is either out of custody or will shortly be released from custody.
22
                    2.2. The Defendant has been acquitted in this case.
23
                    2.3. The Defendant’s charges in this case have been dismissed.
24
     3.     ORDER FOR EVALUATION UNDER CHAPTER 71.05 RCW AND ANCILLARY
25
     ORDERS. Pursuant to RCW 10.77.065(1)(b), the King County DMHP is hereby ordered to conduct
26
     an evaluation of the Defendant as follows:
27   RCW 10.77.065 REFERRAL
28   Revised March 1, 2008                   Page 125
                                                                                          Thomas A. Carr
                                                                                          Seattle City Attorney
29                                                                                        700 Fifth Avenue, Suite 5350
                                                                                          P.O. Box 94667
30                                                                                        Seattle, WA 98124-4667
                                                                                          (206) 684-7757
31

32
1           3.1. Prior to release from custody. If subsection 2.1.1. is marked, then the evaluation shall
2    occur prior to the Defendant’s release from confinement on this matter.
3           3.2. As soon as possible. If subsection 2.1.2., 2.2. or 2.3. is marked, then the evaluation shall
4    occur as soon as possible. The defendant may be held up to 24 hours following an order of dismissal
5    for this evaluation to occur.
6           3.3.     Notification to Court. If subsection 2.1. (including any subsection thereof) is marked,
7    the King County Designated Mental Health Professional (DMHP) shall immediately notify this Court
8    in writing if the Defendant fails to cooperate with the DMHP’s evaluation for consideration of
9    initiating proceedings under RCW Ch. 71.05.
10
            DONE IN OPEN COURT this _____ day of                                 ,      .
11

12
                                                          JUDGE
13
     Presented by:                                        Defense Attorney:
14

15   Assistant City Attorney                              (Attorney Name) WSBA #
16   WSBA #____________

17                                                        (Firm)
     Attention: Case Preparation Unit
18
     Seattle City Attorney’s Office                       (Address)
19   Public and Community Safety Division
     700 Fifth Avenue, Suite 5350                         (City, State, Zip)
20   P.O. Box 94667
21
     Seattle, WA 98124-4667
     (206) 684-7757                                       (Telephone)
22   FAX (206) 615-1293                                   _________________________________
                                                          (Fax)
23

24   j:/data/criminal/docs/forms/mio/RCW 10.77.065 Referral 3-1-08

25

26

27   RCW 10.77.065 REFERRAL
28   Revised March 1, 2008                   Page 126
                                                                                         Thomas A. Carr
                                                                                         Seattle City Attorney
29                                                                                       700 Fifth Avenue, Suite 5350
                                                                                         P.O. Box 94667
30                                                                                       Seattle, WA 98124-4667
                                                                                         (206) 684-7757
31

32
     Exhibit 14:    Insanity/Diminished Capacity Evaluation
1

2
                    IN SEATTLE MUNICIPAL COURT, COUNTY OF KING
3                                STATE OF WASHINGTON
                                         )
4
     CITY OF SEATTLE,                    )
5                                        )
                           Plaintiff,    ) No.
6                                        )
7               vs.                      ) ORDER FOR INITIAL EVALUATION FOR
                                         ) PLEA OF INSANITY OR DIMINISHED
8                              ,         ) CAPACITY
                                         )
9
                           Defendant.    )
10                                       )
                                         )
11
            THIS COURT, has been advised that the Defendant has:
12
             Entered a plea of not guilty by reason of insanity, or
13
             Advised the Court of his/her intent to rely upon a defense of diminished capacity.
14
     The prosecution has moved for an order appointing or requesting the Department of Social and Health
15
     Services (DSHS) to appoint at least one qualified expert of professional person to examine and report
16
     on the Defendant’s mental condition.
17

18   1.  ORDERS COMMON TO INSANITY PLEA AND RELIANCE UPON DIMINISHED
     CAPACITY DEFENSE:
19
            1.1. Access to Records. To the extent permitted by RCW Chs. 10.77 and 71.05 (including but
20
     not limited to RCW 10.77.060, 10.77.065, 10.77.097, and 71.05.390) or other applicable law, this
21
     signed order of this Court shall serve as authority for the evaluator(s) from WSH to be given access to
22
     all records held by any mental health, medical, educational, or correctional facility that relate to the
23
     present or past mental, emotional, or physical condition of the defendant.
24
            1.2. Authorization to Provide Information. The City Attorney, the Court, the Seattle Police
25
     Department, any other law enforcement agency possessing relevant information, and the Defense
26
     Attorney, are hereby authorized to provide to WSH all information in their possession or control
27   INSANITY/DIMINISHED CAPACITY EVALUATION
28   Revised March 1, 2008       Page 127
                                                                                         Thomas A. Carr
                                                                                         Seattle City Attorney
29                                                                                       700 Fifth Avenue, Suite 5350
                                                                                         P.O. Box 94667
30                                                                                       Seattle, WA 98124-4667
                                                                                         (206) 684-7757
31

32
1    which they reasonably deem may be of assistance to WSH in conducting the examination ordered
2    hereby.
3              13. Contents of Report. The report of the examination shall include the items set forth in
4    RCW 10.77.060(3).
5              1.4.    Transport.   The King County Department of Adult Detention shall transport the
6    Defendant to WSH as soon as possible, but not prior to the next business day after WSH receives
7    information within the control of the Court, the prosecutor, or the defense attorney that is relevant to
8    the evaluation. WSH shall notify the King County Department of Adult Detention when it has
9    received such information. Upon completion of the examination, the King County Department of
10   Adult Detention shall be transport the Defendant from WSH to the King County Jail. (c) The King
11   County Department of Adult Detention is hereby authorized to transport the Defendant as directed in
12   this order.
13   2.        ORDERS SPECIFIC TO EACH DEFENSE.
14             2.1. Insanity Defense. If the Defendant has indicated an intent to assert an insanity defense
15   pursuant to RCW 10.77.030, the opinion shall contain the information set forth in RCW 10.77.060(3).
16             2.2. Diminished Capacity Defense. If the Defendant has indicated an intent to assert a
17   diminished capacity defense, the Canned a problem before charged: The crime(s) charged contains
18   the following mental state:
19                                    Intentional
20                                   Knowingly or Willfully
21                                   Recklessly
22                                   Negligently
23   3.        ANCILLARY ORDERS.
24             3.1. Next Hearing Date. The next hearing in this case shall be:
25             Date:                           Time:                 Courtroom:
26

27   INSANITY/DIMINISHED CAPACITY EVALUATION
28   Revised March 1, 2008       Page 128
                                                                                         Thomas A. Carr
                                                                                         Seattle City Attorney
29                                                                                       700 Fifth Avenue, Suite 5350
                                                                                         P.O. Box 94667
30                                                                                       Seattle, WA 98124-4667
                                                                                         (206) 684-7757
31

32
1            4. Interpreters. If this subsection is marked, then, that the examination shall be done with
2    the aid of an interpreter in the                                      language. Defense counsel is to
3    arrange for the appointment of an interpreter and to coordinate with WSH for the interpreter to be
4    present at the examination, whether it occurs at WSH, or in the King County Jail (either in downtown
5    Seattle or at the Kent Regional Justice Center), or at the Treatment Facility.
6

7            DONE IN OPEN COURT this _____ day of                                     ,   .
8

9
                                                           JUDGE
10
     Presented by:                                         Defense Attorney:
11

12
     Assistant City Attorney                               (Attorney Name) WSBA #
13   WSBA #____________
14   Attention: Case Preparation Unit                      (Firm)

15   Seattle City Attorney’s Office                        (Address)
     Public and Community Safety Division
16
     700 Fifth Avenue, Suite 5350                          (City, State, Zip)
17   P.O. Box 94667
     Seattle, WA 98124-4667
18   (206) 684-7757                                        (Telephone)
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     FAX (206) 615-1293

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     j:/data/criminal/docs/forms/mio/Initial Insanity/Diminished Capacity Evaluation 3-1-08
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27   INSANITY/DIMINISHED CAPACITY EVALUATION
28   Revised March 1, 2008       Page 129
                                                                                          Thomas A. Carr
                                                                                          Seattle City Attorney
29                                                                                        700 Fifth Avenue, Suite 5350
                                                                                          P.O. Box 94667
30                                                                                        Seattle, WA 98124-4667
                                                                                          (206) 684-7757
31

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     Exhibit 15:    Insanity Acquittal Order
1

2
                    IN SEATTLE MUNICIPAL COURT, COUNTY OF KING
3                                STATE OF WASHINGTON
                                         )
4
     CITY OF SEATTLE,                    )
5                                        )
                           Plaintiff,    ) No.
6                                        )
7               vs.                      ) ACQUITTAL BY REASON OF
                                         ) INSANITY—FINDINGS OF FACT,
8                                 ,      ) JUDGMENT, AND ORDERS REGARDING
                                         ) DEFENDANT’S TREATMENT OR
9
                           Defendant.    ) DISCHARGE
10                                       )
                                         )
11
            THIS COURT has conducted a hearing on the Defendant’s motion for acquittal by reason of
12
     insanity pursuant to RCW 10.77.080. After reviewing the evidence presented by the parties and other
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     records in the case, this Court finds the following facts and issues the following orders:
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     1.     FINDINGS OF FACT.
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            1.1. Waiver of Rights. The Court finds that the Defendant presently understands the nature
16
     of the proceedings against him/her and is able to assist his/her attorney in his/her own defense. The
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     Court also finds that the Defendant understands: (a) the essential elements of the offenses with which
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     he/she is charged; (b) that by moving for a judgment of acquittal by reason of insanity he/she admits to
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     committing the acts charged and that, if acquitted, he/she may not later contest the validity of his
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     detention on the ground that he/she did not commit the acts charged; (c) that by making the motion
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     he/she waives his rights to remain silent, to confront his accusers, and to be tried by a jury; (d) that if
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     acquitted, he/she could be committed to a state mental hospital for a term up to the maximum possible
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     penal sentence for the offense(s) charged; and (e) that a person who is acquitted by reason of insanity
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     of an alleged offense involving actual, threatened, or attempted physical harm to a person, and who is
25
     later charged with a nonfelony crime and found to be incompetent, shall be placed in a secure mental
26
     health facility for up to 14 days for mental health treatment and restoration of competency, or on
27   INSANITY ACQUITTAL ORDER
28   Revised March 1, 2008                  Page 130
                                                                                           Thomas A. Carr
                                                                                           Seattle City Attorney
29                                                                                         700 Fifth Avenue, Suite 5350
                                                                                           P.O. Box 94667
30                                                                                         Seattle, WA 98124-4667
                                                                                           (206) 684-7757
31

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1    conditional release for up to 90 days for mental health treatment and restoration of competency, or any
2    combination of the two.
3           1.2. Commission of Acts Charged. The Court finds that the Defendant did commit each of
4    the acts alleged in the complaint in the above-entitled cause on the date(s) alleged. The Court finds by
5    a preponderance of the evidence that, at the time of the commission of the acts alleged in the
6    complaint, the Defendant was legally insane, as defined in Seattle Municipal Code 12A.04.160 and
7    RCW 9A.12.010, and is not legally responsible for said acts.
8           1.3. Potential Dangerousness. The Court hereby finds as marked below:
9                           1.3.1. The Defendant is a substantial danger to other persons unless kept under
10          further control by the Court or other persons or institutions, and it is not in the best interests of
11          the Defendant and others that the Defendant be placed in treatment that is less restrictive than
12          detention in a state mental hospital.
13                          1.3.2. The Defendant is a substantial danger to other persons unless kept under
14          further control by the Court or other persons or institutions, and it is in the best interests of the
15          Defendant and others that the Defendant be placed in treatment that is less restrictive than
16          detention in a state mental hospital.
17                          1.3.3. The Defendant is not a substantial danger to other persons but is in need
18          of control by the court or other persons or institutions.
19                          1.3.4. The Defendant is not a substantial danger to other persons and is not in
20          need of control by the court or other persons or institutions.
21          1.4. Likelihood of Further Criminal Acts. The Court hereby finds as marked below:
22                          1.4.1.   The Defendant does present a substantial likelihood of committing
23          criminal acts jeopardizing public safety or security unless kept under further control by the
24          Court or other persons or institutions, and it is not in the best interests of the Defendant and
25          others that the Defendant be placed in treatment that is less restrictive than detention in a state
26          mental hospital.
27   INSANITY ACQUITTAL ORDER
28   Revised March 1, 2008                    Page 131
                                                                                            Thomas A. Carr
                                                                                            Seattle City Attorney
29                                                                                          700 Fifth Avenue, Suite 5350
                                                                                            P.O. Box 94667
30                                                                                          Seattle, WA 98124-4667
                                                                                            (206) 684-7757
31

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1                              1.4.2. The Defendant does present a substantial likelihood of committing
2           criminal acts jeopardizing public safety or security unless kept under further control by the
3           Court or other persons or institutions, and it is in the best interests of the Defendant and others
4           that the Defendant be placed in treatment that is less restrictive than detention in a state mental
5           hospital.
6                              1.4.3. The Defendant does not present a substantial likelihood of committing
7           criminal acts jeopardizing public safety or security unless kept under further control by the
8           Court or other persons or institutions but is in need of control by the court or other persons or
9           institutions.
10                             1.4.4. The Defendant does not present a substantial likelihood of committing
11          criminal acts jeopardizing public safety or security unless kept under further control by the
12          Court or other persons or institutions and is not in need of control by the court or other persons
13          or institutions.
14   2.     JUDGMENT OF ACQUITTAL BY REASON OF INSANITY. The Court has jurisdiction
15   over the parties and subject matter of this cause. Judgment of Acquittal by Reason of Insanity, as
16   defined by Seattle Municipal Code 12A.04.160 and RCW 9A.12.010, is therefore entered as to each of
17   the nonfelony crimes alleged in the complaint.
18   3.     ORDERS REGARDING DEFENDANT’S TREATMENT OR DISCHARGE. The Court
19   hereby issues the following orders, relating to the specific findings in subsections 1.2 and 1.3.
20          3.1. If either or both of subsections 1.3.1. or 1.4.1. are marked, then the Defendant is hereby
21   committed to Western State Hospital for a period of up to the maximum possible sentence for any
22   crime upon which he/she has been acquitted, pursuant to RCW 10.77.110(1) and 10.77.025(1). If the
23   Defendant is charged with crimes with different maximum possible sentences, then the maximum
24   possible period of commitment shall be based on the crime with the longest maximum possible
25   sentence. The Defendant shall receive credit for any previous bookings on this matter. The Defendant
26   shall comply with all of the terms and conditions of the commitment, including any conditional
27   INSANITY ACQUITTAL ORDER
28   Revised March 1, 2008                     Page 132
                                                                                           Thomas A. Carr
                                                                                           Seattle City Attorney
29                                                                                         700 Fifth Avenue, Suite 5350
                                                                                           P.O. Box 94667
30                                                                                         Seattle, WA 98124-4667
                                                                                           (206) 684-7757
31

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1    release. The Defendant shall be confined to the King County Jail while awaiting placement at
2    Western State Hospital, but such confinement shall be for no more than seven days from the date of
3    this order. The King County Department of Adult Detention shall transport the Defendant to Western
4    State Hospital as soon as practicable, and in any event within seven days of the date of this order.
5           3.2. If either or both of subsections 1.3.2. or 1.4.2. are marked and neither of subsections
6    1.3.1. and 1.4.1. are marked, then the Defendant shall comply with alternative treatment that is less
7    restrictive than detention at Western State Hospital, pursuant to RCW 10.77.110(1). The treatment
8    shall be for a period of up to the maximum possible sentence for any crime upon which he/she has
9    been acquitted, pursuant to 10.77.025(1). If the Defendant is charged with crimes with different
10   maximum possible sentences, then the maximum possible period of commitment shall be based on the
11   crime with the longest maximum possible sentence. The Defendant shall receive credit for any
12   previous bookings on this matter. The treatment shall be on the following terms and conditions:
13                  3.2.1. The Defendant shall be released from custody forthwith on this case; this order
14          shall not affect the Defendant’s custody status on any other case(s). The Defendant shall
15          contact the following treatment facility (“Treatment Facility”) in person or by telephone within
16                  days of this order:                                           . If this line is left blank,
17          then the Treatment Facility shall be Western State Hospital. Western State Hospital shall have
18          the discretion to substitute another Treatment Facility that is licensed as such by the
19          Department of Social and Human Services, and the new Treatment Facility shall be bound by
20          the terms of this order.
21                  3.2.2. The Defendant shall comply with the following conditions of the less restrictive
22          alternative:
23                          Comply with all terms and conditions of the treatment program as directed by
24                  the Treatment Facility, including, without limitation attending all appointments that are
25                  part of the program, and taking any medications prescribed as part of the program.
26

27   INSANITY ACQUITTAL ORDER
28   Revised March 1, 2008                    Page 133
                                                                                          Thomas A. Carr
                                                                                          Seattle City Attorney
29                                                                                        700 Fifth Avenue, Suite 5350
                                                                                          P.O. Box 94667
30                                                                                        Seattle, WA 98124-4667
                                                                                          (206) 684-7757
31

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1                           Maintain residence as directed as part of the treatment program, and get
2                   approval of the treatment program before changing residence. Notify the Court and the
3                   Treatment Facility of any change of address or telephone number within 24 hours of the
4                   change.
5                           Commit no criminal law violations.
6                           Abstain from alcohol and all other mood altering drugs, unless prescribed by a
7                   physician.
8                           Refrain from acts and threats of harm to self, others, and others’ property.
9                           Possess no weapons.
10                          Have no contact with
11                          Other:
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14                  3.2.3. The Treatment Facility shall inform the Court, the Mental Health Court Liaison,
15          the defense attorney, and the prosecutor immediately if the Defendant fails to comply with any
16          of the conditions of the less restrictive alternative.
17                  3.2.4. The Treatment Facility shall provide monthly reports on the Defendant’s
18          progress to the Court, the Mental Health Court Liaison, the defense attorney, and the
19          prosecutor.
20           3.3. If either or both of subsections 1.3.3. and 1.4.3. are marked and none of subsections
21   1.3.1., 1.3.2., 1.4.1., or 1.4.2. are marked, then the Defendant shall be conditionally released pursuant
22   to RCW 10.77.110(3). The conditional release shall be for a period of up to the maximum possible
23   sentence for any crime upon which he/she has been acquitted, pursuant to 10.77.025(1). If the
24   Defendant is charged with crimes with different maximum possible sentences, then the maximum
25   possible period of conditional release shall be based on the crime with the longest maximum possible
26

27   INSANITY ACQUITTAL ORDER
28   Revised March 1, 2008                     Page 134
                                                                                          Thomas A. Carr
                                                                                          Seattle City Attorney
29                                                                                        700 Fifth Avenue, Suite 5350
                                                                                          P.O. Box 94667
30                                                                                        Seattle, WA 98124-4667
                                                                                          (206) 684-7757
31

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1    sentence.   The Defendant shall receive credit for any previous bookings on this matter.                  The
2    conditional release shall be on the following terms and conditions:
3                   3.3.1. The Defendant shall be released from custody forthwith on this case; this order
4           shall not affect the Defendant’s custody status on any other case(s). The Defendant shall
5           contact the following treatment facility (“Treatment Facility”) in person or by telephone within
6                   days of this order:                                          . If this line is left blank,
7           then the Treatment Facility shall be Western State Hospital. Western State Hospital shall have
8           the discretion to substitute another Treatment Facility that is licensed as such by the
9           Department of Social and Human Services, and the new Treatment Facility shall be bound by
10          the terms of this order.
11                         3.3.2. Comply with all terms and conditions of the treatment program as
12                  directed by the Treatment Facility, including, without limitation attending all
13                  appointments that are part of the program, and taking any medications prescribed as
14                  part of the program.
15                         Maintain residence as directed as part of the treatment program, and get
16                  approval of the treatment program before changing residence. Notify the Court and the
17                  Treatment Facility of any change of address or telephone number within 24 hours of the
18                  change.
19                         Commit no criminal law violations.
20                         Abstain from alcohol and all other mood altering drugs, unless prescribed by a
21                  physician.
22                         Refrain from acts and threats of harm to self, others, and others’ property.
23                         Possess no weapons.
24                         Have no contact with
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27   INSANITY ACQUITTAL ORDER
28   Revised March 1, 2008                   Page 135
                                                                                          Thomas A. Carr
                                                                                          Seattle City Attorney
29                                                                                        700 Fifth Avenue, Suite 5350
                                                                                          P.O. Box 94667
30                                                                                        Seattle, WA 98124-4667
                                                                                          (206) 684-7757
31

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1                           Other:
2

3

4                   3.3.3. The Treatment Facility shall inform the Court, the Mental Health Court Liaison,
5           the defense attorney, and the prosecutor immediately if the Defendant fails to comply with any
6           of the conditions of the conditional release.
7                   3.3.4. The Treatment Facility shall provide monthly reports on the Defendant’s
8           progress to the Court, the Mental Health Court Liaison, the defense attorney, and the
9           prosecutor.
10          3.4. If both subsections 1.3.4. and 1.4.4. are marked, then the Defendant is hereby ordered
11   discharged immediately and, if in custody on this case, shall be released immediately from jail on this
12   case. This order shall not affect the Defendant’s custody status on any case(s).
13          3.5. The maximum period of commitment under subsection 3.1., of alternative less restrictive
14   treatment under subsection 3.2., or of conditional release under subsection 3.3., is through the date of
15                                         . That date has been determined as follows: The maximum
16   possible sentence is            days in jail; the Defendant has already served       days in jail as of
17   the date of this order; the maximum remaining time of commitment or conditional release is therefore
18                   days from the date of this order.
19          3.6. The Court hereby reserves all jurisdiction otherwise granted by law, including but not
20   limited to that necessary to hear requests for conditional release and to enforce any terms of
21   conditional release related to any commitment or treatment that is the subject of this order.
22

23          DONE IN OPEN COURT this _____ day of                                  ,       .
24

25                                                          JUDGE
     ///
26   ///
27   INSANITY ACQUITTAL ORDER
28   Revised March 1, 2008                    Page 136
                                                                                          Thomas A. Carr
                                                                                          Seattle City Attorney
29                                                                                        700 Fifth Avenue, Suite 5350
                                                                                          P.O. Box 94667
30                                                                                        Seattle, WA 98124-4667
                                                                                          (206) 684-7757
31

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     Presented by:                                      Defense Attorney:
1

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     Assistant City Attorney                            (Attorney Name) WSBA #
3    WSBA #____________
4
                                                        (Firm)
5    Attention: Case Preparation Unit
     Seattle City Attorney’s Office                     (Address)
6    Public and Community Safety Division
7    700 Fifth Avenue, Suite 5350                       (City, State, Zip)
     P.O. Box 94667
8    Seattle, WA 98124-4667
     (206) 684-7757                                     (Telephone)
9
     FAX (206) 615-1293                                 _________________________________
10                                                      (Fax)

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27   INSANITY ACQUITTAL ORDER
28   Revised March 1, 2008                  Page 137
                                                                                 Thomas A. Carr
                                                                                 Seattle City Attorney
29                                                                               700 Fifth Avenue, Suite 5350
                                                                                 P.O. Box 94667
30                                                                               Seattle, WA 98124-4667
                                                                                 (206) 684-7757
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