Op-ed from the Providence Journal—March 23, 1998

     Most jokes come and go with the times. There were Polish jokes, “knock-knock-who’s-there” jokes, lightbulb jokes. You don’t hear them anymore. But one kind of joke endures—lawyer jokes “How can you tell when a lawyer is lying? His mouth moves.” In public polls that rate trustworthiness, lawyers rank right down there with used car salesmen.

     Along with lawyers, the entire judicial system is increasingly held in contempt. Recent cases where many feel that justice has not triumphed—the Simpson case, the Nanny cases—increase our doubts of the ability of the courts do deal rationally and fairly with those who  appear before them. In Rhode Island, controversies regarding Supreme Court Chief Justices, the political nature of judicial appontments, and most recently the Traffic Court have done little to bolter our confidence in the judicial system.

     Recently, I spent a day in court that caused me to reassess the validity of our system of justice. Last year, an attorney asked me to evaluate her client with regard to his competency to stand trial. He was a young black man charged with the murder of a young Latino man. The defendant was indigent, but since one of the co-defendants in the case who was a potential witness against him was already being represented by the Public Defender, the court appointed and paid (albeit at the less than customary fee) a private attorney for him. Thus, he had the good fortune to be represented by one of the top criminal lawyers in the state. Because of a record of prior serious offenses, he was being held in Maximum Security at the ACI [Rhode Island’s State Prison]. The lawyer told me that when she would visit her client to interview him, she found him to be in a daze, mumbling, appearing to respond to voices that only he was hearing. He could barely carry on a coherent conversation with her, let alone supply her with information that would help in his defense.

     I had carried out many psychiatric evaluations at the ACI, but I had never been to Maximum Security. Maximum is the gray stone building that you see from Route 95 that looks like a medieval fortress. Inside, the first word that comes to mind is “dungeon.” The poet said that “stone walls do not a prison make,” but here they do pretty well. It’s cold and damp, and the sound echoes eerily. They brought Harold (a pseudonym) out to see me in cuffs. The guard removed them at my request. Harold’s school records described a mentally retarded child who spent all his school years in special education classes. He had been evaluated by several psychologists over the years, and his IQ was scored between 60 and 70. He had been referred for psychiatric treatment. He had been found to be totally disabled and was receiving SSI (Supplemental Security) payments from the Federal government.

     I interviewed Harold with his mother present, so as to enhance his trust in me. I found a young man essentially as his attorney described. He did not know the date or his age. He knew his mother, but was completely unable to comprehend who I was and what I was doing there, despite repeated explanations in the simplest of terms by his mother and me.

     In my opinion, he did not understand what went on a court of law and could not cooperate in any meaningful way with his attorney.

     However, a psychiatrist working for the state had already come to the conclusion that he was competent to stand trial, based on Harold’s ability to play basketball during recreational periods at the prison, as well as on his ability to make telephone calls. I did not agree that these skills made him competent to stand trial. In a letter to the court, I stated that Harold was incompetent to stand trial, was mentally retarded, and was also suffering from a psychotic mental disorder that was in need of treatment. I recommended that he be transferred to the locked Forensic Unit at the Eleanor Slater Hospital for further evaluation and treatment.

     Several months later, the attorney asked me to see him again. She had been able to reach an agreement with the prosecutor whereby for a plea of guilty, Harold would receive a sentence of 25 years, with the possibility of parole in 18 years. The two attorneys had presented their agreement to the judge, who agreed not to tack on an extra sentence for Harold’s being a “habitual offender.”

     Harold had been transferred to the Forensic Unit and had received treatment there with the appropriate anti-psychotic medication. The state psychiatrist had once again found him competent to stand trial. The question now went beyond that, however. Was Harold competent to understand the complexities of this plea bargain? When I saw him there, this time together with his attorney, he was much improved from the man I had seen at the ACI. He recognized his attorney by name, and knew that her job was “to help me.” He was still quite limited, however. When I asked him what the role of the judge is in the courtroom, he answered, “He send you to jail.” Asked what the job of the jury was, he answered, “They send you to jail.” I asked him if he knew anyone who had a trial who was found not guilty and did not have to go to jail. He said that he did not. I asked him, “What about O.J.? Where is he?” “He in jail,” he answered.

     His attorney explained “the deal” to Harold. She said that he could take the deal or take a chance in a trial  before a judge or jury. “But the choice is up to you, Harold,” she told him, “What do you want?”

     “I want to go home,” he answered.

     We explained to him that he could go home only if he was found not guilty in a trial, but there were witnesses against him, and his  chances did not look good.”

     “What do you think I should do?” he asked his lawyer.

     “I think you should talk it over with your family and let me know when I see you on Monday,” she answered.

     Over the weekend, Harold met with his family, and on Monday, he told his lawyer that he would “take the deal.” Both of us felt he understood the basics of the bargain.

     Later that week Harold appeared before Judge Darigan. I testified regarding his history and my interviews with him. I offered my opinion that Harold was competent to understand the basics of “the deal” that had been offered.

     Then Harold’s mother testified about her son’s history, and offered her opinion that he understood the plea bargain. Then Harold stood before the judge. On his right stood the Assistant Attorney-General, and on his left his own attorney. In a calm and patient manner, using simple terms, the prosecutor outlined to Harold what potential evidence and witnesses he had against him. Judge Darigan asked Harold, “Are you frightened, Harold?” to which Harold nodded. “Do you understand what “the deal means?” Harold responded that he did. Then, Judge Darigan went step by step through each component of the deal, pausing to see if Harold understood completely what his plea of guilty would mean. When he had finished, it was clear to all that Harold could understand.

     Sentence was given, and Harold waved to his tearful family as he was taken from the courtroom to begin his sentence. The prosecutor stopped to speak with the family and offered some words of comfort. They thanked him They hugged Harold’s attorney and thanked her. They thanked me, as well.

     I don’t know what will happen to Harold at the ACI. I hope he doesn’t fall back into a psychotic state, for psychiatric treatment there is limited, to say the least.

     I do know that the criminal justice system in Rhode Island spent hundreds of hours of time and many thousands of dollars (between the attorney, the prosecutor, the judge, the staff of the forensic unit, and me) to restore Harold to competency so that justice could be done.

     And I do know that justice is dispensed to poor and disadvantaged defendants like Harold every day in every courtroom in the United States with wisdom, diligence, compassion, care, and understanding. These cases never make the news.