2.2 Last Connection to Dignity

2.1 Terence Myers: A Brother’s Loss

Book Two / 2

Myers made his second appearance in our court in February.  At that hearing he raised for the first time several problems he was experiencing obtaining access to a telephone in jail so he could contact his witnesses.  He also complained that he had not been provided enough paper for his research in jail and his motions to the court.

In an attempt to help Myers access the supplies and services he needed to prepare for his defense, the judge convinced him at this hearing to accept once again the appointment of standby counsel.  Standby counsel, the judge assured him, would not interfere with his control over his own case.  Rather, the attorney would be available in a limited capacity to communicate with other agencies and staff on Myers’ behalf in an effort to ensure that he had what he needed.

Myers agreed to the appointment that day, but with one condition.  Just as he had previously requested assignment to our court based on a prior experience with the judge, he now requested assignment of a specific public defender with whom he recalled once getting along.  If he could have that exact attorney appointed, he said, then he’d be willing to accept the help.  The judge told Myers that he would enter an order requiring the public defender’s office to re-appoint standby counsel, and that the court itself would take responsibility for requesting the attorney he wanted.

An order commemorating the judge’s rulings was entered at the conclusion of the hearing, and that afternoon I wrote to the director of the public defender’s office with an explanation of the case.  He agreed to appoint the specific attorney requested.  That attorney would appear in court with Myers at the next scheduled hearing.


In March, a few weeks later, I received a handwritten letter from Myers.  At that point the case had been assigned to our court for only two months.  Within that brief span of time, however, he had already honed both of the issues that would plague the court until the judge’s recusal from the matter later that year:  his insistence on competency examinations, and his expectations concerning telephone access and writing paper in jail.

Despite the relative brevity of the proceedings in our court to date, it was clear from Myers’ letter that he believed he’d been unjustly deprived of resources for a much longer period.  “There comes a time,” he began ominously in his letter to the court, “when a person has to simply lay his cards on the table and challenge all takers.”

Apparently, that time had arrived.  Frustrated by the failure of jail staff to provide him with the access number he needed to place outgoing calls from the jail, Myers had concluded that the judge was conspiring in the delay.  In his letter he reminded the judge of the conversation they’d had at the last hearing.

At that hearing Myers had brought up his problems with phone access, and then agreed to the judge’s suggestion of standby counsel for assistance with the matter.  In response the judge had invited Myers to keep the court informed of any continued delays.  Despite having little authority over jail staff and their internal procedures, the judge had wanted to acknowledge Myers’ frustrations and illustrate his desire to help.  Myers, however, in a characteristically truncated analysis of the situation, was now interpreting the judge’s invitation to keep him informed of the delays as evidence of the court’s direct involvement in them.

For his part the judge had no reason to doubt Myers’ representations of his situation.  Myers’ expectations of phone access appeared reasonable, and if access was cut off then his frustrations were appropriate.  The problem was that Myers was unable on his own to make inquiries about his needs in a manner that did not immediately accuse and alienate whomever he addressed.

The judge knew that many legitimate reasons could exist for the inability of the jail staff to authorize his telephone access.  But the jail was under no standing order to advise the court of those reasons, nor would the court overstep its boundaries by getting involved in the jail’s policies without good cause.  As the judge had anticipated, Myers was experiencing the inevitable drawbacks of self-representation within a system burdened by necessary rules and procedures.

Making the situation worse were Myers’ “narcissistic and antisocial personality features,” as one psychologist would later describe them.  As soon as Myers identified a need, he would jump from expectations of instant gratification to accusations of persecution if the need were not immediately met.  In his letter to the court it was clear that Myers had already concluded that the judge was involved in a conspiracy to rush him to conviction, and he would not be convinced otherwise.

“The prosecution tastes blood,” he wrote:  “my blood.”  Of the family who had housed and supported him for years, despite court orders against their contact, Myers wrote, “My brothers can smell victory.”  We were all happy, he accused us, because we were about to send him “down the road for a very long time.”

Near the end of his letter Myers revealed a perception of the courts as a combat zone in which the judge was an opposing general and he himself a mere foot soldier drafted from the civilian ranks, with no interests to defend on a battlefield and nothing to gain from a fight.  “I can fully understand why so many individuals end up in prison,” he concluded.  “They lack the ability to engage in warfare.”

Myers then ended his letter with a quote he attributed to a book titled Guests of the Ayotollah.  In the book the author wrote of a man detained in the Iranian hostage crisis.  Myers had excerpted a statement about this man as his postscript to the judge, implying his identification with the situation of the detainee, and with the detainee’s psychological response:

“He worked up a whole philosophy of anger.  His sense of outrage was his last connection to dignity.”

I forwarded a copy of Myers’ letter to the prosecutor, then sat down with the judge to discuss the court’s response.  The judge recognized an escalation of Myers’ anxiety in his accusations.  He also understood the danger Myers’ instability now posed to a fair prosecution of the case.  In response he decided to inquire immediately into the reasons for Myers’ inability to place outgoing calls from the jail.

Needing to avoid the ex parte communication that might occur through less formal channels, I arranged for what is termed a show cause hearing for the first available time on the court’s calendar.  At the hearing the court would address on the record both the issue of telephone access and Myers’ third motion for a competency evaluation, a motion renewed through his new standby attorney.


The court convened for the show cause hearing a few days later, near the end of March.  The judge had required the appearance of the prosecutor, a captain from the jail, staff from the office of public defense, and Myers himself with his newly appointed attorney — the one he had requested.  Having assembled the entire group at one time the judge anticipated being able to determine together what the holdup was, and to devise an approach that would ensure a resolution.  Soon, he hoped, we could proceed without additional obstacles to the trial ahead.

And yet, despite our efforts to identify the individuals with the most authority over the issues to be addressed, by the end of the hearing we were no closer to understanding why Myers had not received an access number for the telephone.  The captain assured the court that his staff would investigate and take care of the matter right away.  He agreed to have one of the staff sergeants contact me by the end of the week with an update.

The judge had addressed the telephone issue as well as he could that day, and he now turned to Myers’ renewed motion for a competency evaluation.  It was his third motion; the first two had been denied.

Courts exercise their authority to order mental health evaluations conservatively, based on their knowledge and experience with the resource, and with each individual defendant.  Judges are familiar with the ways defendants appearing in court as their own attorneys may use a motion for a competency evaluation as a way to delay the proceedings and establish their ability to command action.  For this reason the courts view these requests cautiously.  A judge, for instance, may deny a motion without prejudice initially, reserving a final decision until she’s observed the defendant’s conduct for a longer period of time.  Mental health evaluations are also costly.  Authorizing an examination merely because a defendant requests one, where no evidence suggests that competence is an issue, unnecessarily increases the expense of a trial.

But sometimes an evaluation is appropriate.  Judging from Myers’ recent communications with the court, and his conduct at the hearing that day, it looked like that time had come.  The only real question was where the examination should occur.  If the judge were to grant Myers’ third motion, he could order that the examination be held either at the state mental hospital or at the jail.  Myers was insisting that he be transported to the state hospital for the examination, understandably preferring the environment there to the facilities at the jail.  But the time associated with transporting a defendant to the state hospital, and the higher costs associated with an inmate’s detention there, tended to persuade courts against the option.

After hearing argument from both sides the judge granted Myers’ third motion for a competency evaluation.  In keeping with a fiscally conservative approach, however, he ordered that the examination be held at the jail.


As with most standard forms of orders used regularly in criminal trials, the office of the prosecuting attorney had developed the order for a pretrial competency evaluation.  The order contained the language required by law for this type of evaluation:  that the judge was finding a reason to doubt the defendant’s fitness to proceed, and for that reason was ordering a mental health examination for a determination of competency to stand trial.

The order also specified the parameters of the evaluation.  The examiner was to include in his report a diagnosis of Myers’ mental condition, and an opinion on his capacity to understand the proceedings and assist in his own defense.

This final language mirrored the two-pronged legal standard for a defendant’s competency to stand trial.  The first prong required that Myers have a basic knowledge of the fundamentals of criminal trial proceedings.  To address this requirement the examiner must report on whether Myers knew the roles of the judge, the prosecutor, and the defense attorney, and whether he understood the charges filed against him, the consequences of conviction, and the options available to him in his defense.

The second prong required the examiner to determine narrowly whether Myers was capable of assisting in his own defense.  Critically, however, it did not require a determination that he was competent to conduct his own defense — proceeding to trial without an attorney.  Although trial courts wrestle with this difference regularly, the law had not yet recognized a distinction.

At the conclusion of the show cause hearing that day the prosecutor took a copy of the standard order from his files and began to fill it out according to the judge’s rulings.  In the space on the form where the location of the examination could be selected, he checked the jail.  When he was done, he presented it for review to Myers’ new standby attorney.

At the bottom of the order the standby attorney interlineated a note at Myers’ request and with the judge’s agreement.  The note stated:  “An evaluation for not guilty by reason of insanity may be requested at a later date depending on the outcome of the competency evaluation.”

Both the prosecuting attorney and Myers himself signed the order in acknowledgment of its contents.  The judge then signed it as well, and handed it to the clerk for filing.

The defendant’s present competency was now formally at issue.  The judge took a moment to explain to Myers before he left the courtroom that, by law, all action in the case against him must be stayed pending the outcome of his evaluation.  The court could neither entertain additional motions nor enter any rulings until the examination was concluded, the report was received, and a finding of his competence to proceed was formally entered into the record.

We then set a status conference with the parties for early in April, and court adjourned.

2.3 A Downward Spiral