2.12 Worn Down

2.11 Compounding a Mistake

Book Two / 12

Since January, when Terence Myers’ case had first been assigned to our court, we had scheduled numerous hearings to address and redress his demands.  With each occasion, however, Myers had become increasingly volatile and demanding, with expectations unrealistic for his situation, and an insistence on a code of honor that bound everyone but himself to its imperatives.

Like so many criminal defendants who appeared in our court with a mental illness bubbling just below the visible surface, Myers had become both ruthless and rudderless.  With each new appearance before the judge he’d employ yet another avenue available to him to delay and obstruct the proceedings.  Often his tone was contemptuous and spiteful.  At the same time, however, he would ramble through his complaints with the court for an hour, wandering from one accusation to another.

He would claim violations of his right to a speedy trial while simultaneously causing disruptions that prevented the court from taking any meaningful steps to proceed.  He would sit sullen and stubbornly silent at one moment, refusing even to look at the judge directly.  Then, with no apparent provocation, he’d become animated and enraged with a grievance he’d been nursing.  He’d fixate rigidly on his demands and refuse to be redirected, imagining obstacles intentionally placed in his path at every turn.

Unable to navigate the system alone, yet resisting any assistance from standby counsel, Myers’ frustrations and setbacks mounted.  He’d accuse the court of intentionally obstructing his defense, then refuse to be transported for scheduled hearings to clarify his position.  Instead, he’d write long, handwritten letters to the court, to jail staff, to the directors of both the office of public defense and the department of detention, and to the chief criminal judge.

Regularly we’d receive letters from Myers speckled with details of his current complaint and embellished with historical references to injustice.  He’d research the law in the jail library then draft his motions, subpoenas, and proposed orders.  Sometimes his copies to the court would arrive with a bit of adhesive paper binding the pages at the top.  Denied access in jail to staples and paper clips, he would tear a small strip from a label for envelopes or files, then bend it over the top of the pages, affixing one half of the strip to the front page of the stack and the other half to the back page.  Although this method failed to secure the middle pages, it added a visual suggestion of organization to his dogged determination to be heard.

After a few months of hearings before our court Myers began to write a series of renewed motions for reassignment to another trial court, or for dismissal of the case against him altogether.  He cited cases effortlessly, but the cases generally failed to support the issues he raised or the position he argued.  And, as always, appearing liberally among random requests for relief, his harsh accusations of the court’s duplicity and delay strafed the pages.

It was now July 1.  Despite making significant progress on both of Myers’ primary requests, he was again displaying symptoms of increasing disturbance.  When the court convened that morning for a case scheduling hearing, a call from the jail supervisor advised us that Myers was refusing to be transported.  He asked me if the judge wanted staff to compel his appearance.

This hearing was one of several successive hearings at which Myers would refuse to appear.  His refusal was additional evidence of his declining mental health, and the judge understood that forcing him to appear would only increase his agitation.  Myers’ appearance was not critical to the court’s entry of a case scheduling order, and no additional motions had been set for argument that day.  We would proceed without him, and do what we could.

I notified the jail supervisor that the judge was not going to compel Myers’ appearance that morning, and we proceeded through the hearing without him.  The judge inquired into the issue of Myers’ transportation to the hospital, but the prosecutor had no information.  He promised the judge that he would check with his staff, and work from his office to resolve any reasons for the delay.  The judge then advised him that the court would be recessed for the last two weeks of July while he took his summer leave.  We set the next hearing in the case for July 30, the first day of his return.

During the judge’s absence later that month I received another letter from Myers.  The prosecutor had just visited him in jail, and had brought him copies of some discovery documents he’d requested.  Myers had taken the opportunity to ask the prosecutor why he’d been waiting so long for transportation to the hospital for his evaluation.  Other inmates had told him that it frequently takes a month between entry of an order for examination and transport to the hospital.  In contrast, he now explained in his letter to the court, he had been waiting for two months already, and no one had contacted him about the delay.

On July 30 we convened for a status hearing.  The judge had just returned from his summer leave, and I had shown him the latest letter from Myers.  We both expected to hear the reasons for the delay from the prosecutor that day.  When the prosecutor appeared, however, he explained that he’d been so busy on other trials he hadn’t had a chance to investigate completely.  To complicate matters, Myers, in protest, had refused again to be transported to the courtroom from his jail cell that morning.  Being pro se, of course, he had no attorney to appear on his behalf.

Having recently felt that we had taken a step forward in the case, the judge and I realized we were still backing up.  The judge admonished the prosecutor to prioritize his investigation into the situation and update the court right away.  We set the next hearing for a month away, hoping that by then the prosecutor would have resolved the transportation issue, the examination would have occurred, and we’d be on the threshold of trial at last.


The very next day, July 31st, Myers himself discovered the mistake in the order authorizing the exam.  When he had refused to appear for the hearing, the prosecutor had visited him in jail again.  He took with him some copies of paperwork, including orders previously entered by the court.  Among those orders was the order that was intended to authorize an NGI examination at the state mental hospital.  Instead, as Myers recognized, the order had authorized what amounted to a second trial competency evaluation, to be conducted inside the jail.

Perhaps owing to the caseload that the prosecutor was managing simultaneous to his ongoing pretrial management of Myers’ case, and all the other cases and trials with which our own court was continually preoccupied, neither the prosecutor, the judge, nor I had taken a moment to pull from the file the order that had been entered authorizing the examination, and to review it for possible mistakes.  In the intervening months it simply hadn’t occurred to us that the court’s own order may have been at fault.

Myers, on the other hand, spent every moment available to him in the jail library or in his cell, reading and writing about his own case.  Ironically, he was the only one of us with time to investigate every angle.  On account of his persistence, he had identified the error in the order as soon as a copy had been made available to him.  That copy, however, had arrive way too late.

Despite having an opportunity to correct the problem now that he could inform the court of its origins, Myers’ discovery of the mistake served instead to bolster his belief in the court’s deliberate deceit.  In a letter to the court, written that same day, he opened with accusations that the judge and the prosecutor were colluding in an effort to deny him justice.

“After receiving the document, which was agreed upon in good faith,” he began, “I now fully understand why the transfer has not occurred.”  Rather than explain the reasons right from the start, however, Myers picked up the strand of insults to the court that he had been weaving with each prior interaction.  “I am simply appalled,” he wrote to the judge, “at the level you have undertaken to mislead, pervert, lie and deceive this defendant who has constantly and continually fought, argued, and engaged in abusive language with you about my position in your court.”  He then advised the judge that he would no longer appear in our court for any scheduled hearings, and again insisted on reassignment to another court for trial.

Several paragraphs into the letter Myers diverted his attention from the outrage he felt and attempted to describe the mistake he had identified.  He had not seen that the order was captioned incorrectly, and that it authorized a second competency evaluation rather than the court-ordered NGI exam.  Nevertheless, desperately wanting a transfer to the state hospital, he had recognized immediately that the order authorized the examination to occur in the jail.  He knew that everyone in court back when the order was entered had agreed that the exam would occur at the hospital.  He now concluded from the order not that a mistake was made but that the prosecutor and the judge had intentionally marked the wrong location, intending to deny him what he had been granted that day.

“This is not what was agreed upon and signed by the parties involved,” Myers wrote.  “Because of this, the defendant would like to state that the judge and prosecutor conspired, lied, deceived and manipulated the defendant into an agreement which the transcript will surely verify.”

He then closed his letter by exhorting God to grant his wish for the judge:  “May his place in hell be reserved for him at the earliest possible moment in life.”


Myers’ letter to the court would be routed through the usual channels, and I would not receive it for a couple of days.  When I did receive it, I pulled the file and tried to review for my own benefit the long trajectory of his case in our court since its assignment to us in January.  We had done everything we knew to do to manage the difficult pretrial matters in this case as they were presented to us.  At the same time, however, as with the prosecuting attorney, we’d been managing a mountain of other obligations.

Over the months we had convened for dozens of criminal trials, administered hundreds of civil cases in their pretrial posture, convened weekly for large sentencing calendars, and been available to handle numerous miscellaneous assignments of an emergency nature.  Although I was dismayed to learn of the mistake we had made, I was not surprised by it.  Considering the difficulties of working with this particular defendant, I knew that mistakes, if not inevitable, were likely.

I realized that on some level Myers had simply worn us all down.  Due to his crippled method of communication, his threatening, obstructing conduct, and his refusal to work with an attorney capable of assisting his needs, both the court and the prosecutor had begun to tune out his demands.  Exhausted by his litany of accusations and complaints about matters over which the court simply had no control, we had begun to hear in his voice the words of a self-absorbed shepherd whose impertinence compels him to cry wolf too often.  We’d been worn out by the extra efforts of managing Myers, and we proceeded as though fatigue alone would excuse a slip in our vigilance.

Myers had been complaining of the delay in his transport for nearly two months, and the court had done what it could to inquire with the prosecutor for the reasons.  His persistent letters and petitions, however, failed to rouse in us more than the standard concerns.  They did not move us, for example, to suspect that something other than institutional delay was involved – something, in fact, involving our own oversight.

Ultimately, we had succumbed to the temptation to believe that this occasion was no different from every other one preceding it.  Assuming that Myers was merely continuing the same verbal gamesmanship in which he had regularly engaged, we had failed to spot the mistake until he spotted it for us.  Moreover, as Myers was now refusing to appear in court for every pretrial hearing, he had closed opportunities for the judge to redress and resolve the problem.

The case was nearly a full year past Myers’ initial arrest, and all we had to show for that time was a finding of his competence to proceed to trial.  Meanwhile, the horizon of that trial kept receding.

2.13 More Delays