2.11 Compounding a Mistake

2.10 The Retreat

Book Two / 11

The defense of not guilty by reason of insanity — in some form or other — remains available in most states.  Success with its intricacies is difficult, however, and proceeding as an indigent defendant without even the aid of an attorney quickly elevates the effort and the risk.

On his own with the complicated legal script of an insanity defense, Terrance Myers lost all ability to communicate his needs effectively.  Refusing the assistance of an attorney whose knowledge and experience could facilitate his strategy, he had become separated from the normal channels of recourse available to defendants when problems arise.

The manner in which this type of situation could rapidly compound an error became apparent when a single mistake was made one day on a court order in the case.  The order had been prepared by the prosecutor for entry at the hearing on Myers’ motion for a psychological examination in support of his insanity defense.

Throughout the hearing that day Myers had persisted in his regular conduct of outraged rants against the judge, the prosecutor, and his standby attorney.  By the conclusion of the hearing we were all near the end of our ability to remain patient and focused.  The order at issue was the final product of that hearing.  We were four months into the court’s pretrial management of the case, and it would take us another four months to untangle the mistake.


As soon as the hearing convened the judge entered his formal findings of Myers’ competency to stand trial.  His ruling was based on the evaluation of the psychologist who had conducted his mental examination of Myers in the jail where he was detained.  The judge could now lift the stay on the proceedings and address Myers’ other pending motions.  These included Myers’ request to discharge his standby attorney, to have the case reassigned to another court, and for a second mental health examination.  This second examination would be in support of Myers’ pursuit of an acquittal at trial — a jury’s judgment of not guilty by reason of insanity.

Whenever a defendant moves for an insanity acquittal the court is required by statute to order an evaluation of the defendant’s state of mind at the time of the alleged act.  If the defendant is indigent, as was the case here, then an expert affiliated with the state mental hospital performs the examination, and writes the report.

Although the judge retained serious misgivings about allowing Myers to proceed entirely without counsel, he now granted Myers’ motion to discharge standby counsel on the grounds of what Myers had termed ‘personality differences.’  Myers retained a constitutional right to represent himself without assistance of standby counsel if that was his choice.  Despite the judge’s heightened concerns, he didn’t have the basis for denying Myers’ request to proceed on his own.

The judge next indicated his intent to enter an order authorizing the additional psychological examination.  The only issue was where the examination should occur, at the jail or at the state hospital.  As with his motions for the first competency evaluation, Myers argued again for transport to the hospital, claiming that the conditions were less stressful there than at the jail.  The hospital would be more conducive to an accurate examination, he insisted.

This time the judge agreed.  He instructed the prosecutor to fill out the standard form order that would begin the process, and to indicate on the order that the exam was to take place at the state hospital.  Once the hearing concluded, the prosecutor would take the order back to his office where paralegal staff would communicate with the hospital and arrange for the defendant’s appearance.

The prosecutor filled out the order and handed it up to the judge.  The hearing had been a lengthy one.  Although Myers’ motions had been granted, he had argued angrily throughout the hearing, accusing everyone present of willfully obstructing his defense.  As the hearing drew to an end we were all feeling overwhelmed by the tension.  We were anxious to have matters concluded.

Several orders had already been drafted, with negotiated terms and language.  Having resolved a number of Myers’ issues by this time, the prosecutor had no intention of creating additional ones.  Nevertheless, being late for trial in another court and feeling pressed by the events of the hearing, he selected the wrong court order for the mental health examination.  The order he grabbed from his files was one for a competency evaluation, not for an evaluation supporting an insanity defense.  Additionally, where the location of the evaluation was to be specified on the form, the prosecutor in his rush checked the county jail rather than the state hospital.

No one noticed the mistakes.  Though just released at that very hearing, Myers’ stand-by counsel was still present in court, hanging back at counsel tables while Myers argued on his own behalf at the bar.  But Myers would not allow the attorney to approach for a final review of the order before presentation to the judge for his signature.  Myers was on his own now, having succeeded with his motion to discharge his standby attorney.  He signed the order himself, in acknowledgement of its contents, and the prosecutor did the same.  The court clerk handed the order up to the judge for his signature along with the other orders to be entered that day.  She then returned the order authorizing the examination to the prosecutor for his assistance in arranging transportation.

The court had granted Myers’ motions to discharge his attorney and for a mental health evaluation at the hospital.  As a consequence of obtaining the relief he’d requested, Myers now withdrew his motion for reassignment to another court.  The hearing concluded, and court recessed on the matter.  The judge and I returned to chambers, feeling that ground had been gained in the case and we were finally moving forward to trial.


One week later Myers wrote a letter to the court complaining that he was still in the jail and had not yet been transferred to the hospital.  He also informed the court that his phone access in jail remained faulty, and he needed more paper.

The judge had explained to Myers several times that he had little authority to control the procedures of the jail.  Nor could he regularly direct the public defender’s office in its own discretion to authorize or deny requested funds and supplies.  It was critical to the fair administration of the courts that no judge involve himself as an advocate on behalf of one party or in opposition to another.  Nevertheless, Myers continued to accuse the judge of intentionally causing these obstructions and delays by not directing these independent departments and agencies.  He demanded that the judge intervene to force a remedy.

In addition to his letter Myers had filed yet another motion to dismiss the case against him.  He captioned the document:  “Motion to Dismiss Based on Inadequate & Insufficient Access to Provisions and Services Allowed and Afforded to the Defendant in Order to Process and Prepare the Defendant for Trial.”  The motion contained many citations to case law that addressed the appropriate legal issue.  The cases he cited, however, were based on other defendants’ situations in trials that were significantly different from his own.  Due to Myers’ lack of formal legal training, he was unaware of the need to apply to the facts of his own case the rules of law developed from the facts of the other cases.

Rather than simply cite existing case law, a moving party must show how the application of the law to his own situation supports his position just as it supported the position in the cases he cites.  Failing to take the critical last step in his analysis, Myers’ arguments stopped far short of being persuasive on the issues in his own case.  The legal rules were good, but the cases from which the rules arose did not support their application to his position.

The failure of the cases to support Myers’ argument would defeat his motion to dismiss, but it would not disturb his mindset.  Committed to the belief that the mere existence of case law meant that it applied to every defendant’s situation, he would continue to feel righteous in his motions and to insist that the judge, by denying his motion to dismiss, was willfully ignoring his prevailing position.

The judge did not grant Myers’ motion to dismiss the case, but he remained troubled by Myers’ ongoing problems with telephone access in jail.  In response, therefore, we scheduled another show cause hearing to require that the officials with responsibility for the matter appear in court to address his concerns one more time.


In preparation for the hearing I contacted staff from the department of detention along with the department’s attorney, advised them of the reason for the hearing, and requested their appearance along with the prosecuting attorney and the defendant.  Myers had recently hired a private investigator to locate witnesses and help conduct interviews.  At Myers’ request, I also asked the investigator to appear.

In his letter preceding the show cause hearing Myers had written with exasperation of his inability to use his access code with the telephone.  Now, with the hearing convened and staff from the jail present in court to hear his complaints, he described the details again.  Each time he attempted to place an outgoing call, he explained, he would be disconnected, but his account would still be charged.  His funds were dwindling, but he’d had no contact with witnesses.

Satisfied at least with his ability to command the presence in court of the individuals with whom he had experienced so much consternation, Myers concluded his argument to the court with a punch of his fist into the air then took his seat.

In their response to Myers’ presentation, the jail staff announced that they were unable to provide any answers.  They insisted that Myers had been provided a working access code, along with instructions on how to use it, and that his account had been credited with funds from the office of public defense that he could access for telephone services.  Beyond that, they advised the court, they had no idea why the defendant was continuing to experience problems connecting his outgoing calls.

Unable to resolve the issue at the hearing, the judge asked the jail staff to investigate further that same afternoon.  He then told their attorney to email me by the end of the day with an update.

Around 4:00 I received word from the attorney for the jail.  Myers had been using the wrong access code, she told me.  She then assured me that jail staff would instruct him one more time on how to use the system, and make sure he was using the correct code.  Additionally, his account had already been credited with additional funds to compensate him for the earlier calls that did not connect.


This latest situation was yet another example of the problem defendants face when representing themselves in custody.  Compounding the problem, of course, were the obvious mental health issues that Myers experienced, but also the complexities involved in administering a modern detention facility in a large urban environment.

The difficulties detention facilities must surmount, and the regulations they must follow in the process, had increased dramatically over the decades as inmate populations grew and available technologies became more complicated.  At the same time government budgets were steadily shrinking.  County departments at every level remained engaged in a game of fiscal tug-of-war as demands on their services grew while available resources dwindled.

Today, overwhelming numbers of inmates appear with special needs arising from mental health issues, chemical addiction, and chronic infectious diseases.  These inmates with their problems confront multiple strains upon detention facilities and staff with their own problems.  Inevitably, this confrontation invites distress and delay.

On one level, for example, Myers had been absolutely right about being unable to use the access code he had, and he was justified in seeking help.  On another level, jail staff deal hourly with hostile, often dangerous inmates, each with numerous demands and an insistence on personal attention and priority.  The officers employed by detention facilities to guard, manage, and transport inmates are not social workers by training or design.  Even if called to the profession out of a genuine concern for the safety and security of criminal defendants, a jail officer will soon harden to the reality he encounters.  He may want to help, but he is constrained by the limits of the institution, and has neither the authority nor the energy to overreach.

Myers had engaged with the jail staff — as he’d engaged in court — with headbutts.  Each inquiry he made became both an accusation and a demand, and he had no attorney to help soften the blow of his communications.  Jail staff, in turn, tuned him out.  Ideally they would have taken his complaints seriously the first or second time.  Someone might have looked into them.  Realistically, however, they exerted the minimum effort required of them to get their jobs done.  Their records reflected that an access code had been given to Myers.  If Myers still had a problem, they surmised, it was likely of his own making.  This defendant was simply too difficult to merit the extension of extra effort.

Their inaction, however, had forced Myers to involve the court simply to uncover the fact that he’d been using the wrong access code.  Moreover, the denial of assistance in jail and the need to petition the court had once again elevated Myers’ anger and anxiety, and strengthened his belief that we were all conspiring to thwart his defense.  Nothing we did reassured him of the court’s neutrality, or the judge’s genuine interest in securing the fairest forum for his trial.  He could only personalize the obstacles he faced, and prepare his case through the filter of his outrage against us.


Before leaving for work that evening I took a moment to email the prosecuting attorney.  Myers had stated in court that morning that he had never received a copy of the competency evaluation.  Not having an attorney of record to whom the examining psychologist could forward a copy of the report, he had simply been dropped from the distribution list.  The judge had made handwritten notes on the court’s copy of the report, so I was unable to forward to Myers a photocopy of our own.  In order to make sure that Myers had the report for his files, the judge had asked me to arrange for the prosecutor to deliver a copy of the report to him in jail.

I emailed the prosecutor and passed on the judge’s request.  I took the opportunity to remind him that an order would need to be entered with a new trial date due to the delays we were continuing to experience.  “Lastly,” I added, hoping for information on the status of Myers’ psychological evaluation, “it doesn’t appear as though the NGI evaluation has occurred.  Do you have any sense of what the hold-up is on that?”

I then scheduled the case setting hearing for the following Tuesday when we could enter an order to extending the trial date, and made arrangements for Myers’ appearance in court.

2.12 Worn Down