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The Journal Gazette

  • Hoffmann

Sunday, January 15, 2017 11:57 am

State law stringent on competency

Ron Shawgo | The Journal Gazette

Amber Pasztor, who has admitted killing two of her children, told a judge last month she didn’t want a second doctor probing her brain. She got one anyway.

Under a long-standing federal ruling, Indiana requires criminal defendants to be mentally competent to stand trial. If there are "reasonable grounds" to believe a defendant does not understand the proceedings or can’t help in his or her defense, the court can assign at least two and sometimes three experts to determine competency.

Fort Wayne psychologist Stephen Ross has seen plenty of those cases. He usually handles two or three at any time and currently has four, he said. Determining whether someone is fit for trial is an all-day process for Ross.

"It’s important because we’re talking about a legal issue that affects somebody’s liberty, especially when it comes to sanity," he said.

Pasztor allegedly stormed the Allen County home of her father and stepmother Sept. 26 and abducted two of her children, Liliana Hernandez, 7, and Rene Pasztor, 6. She drove to the Elkhart Police Department and told officers the children’s bodies were in the back seat and that she smothered them with her hands.

Pasztor, who is being tried in Elkhart County, will undergo her second evaluation Monday, after a public defender told the court in December attorneys believe she can’t fully understand the proceedings or help in her defense. A status hearing is set for Feb. 23.

Ross declined to say if he is involved in the Pasztor case. But for cases he handles, it’s a 9 a.m.-to-4 p.m. interview, he said.

Since a 1960 U.S. Supreme Court ruling that set the standard, defendants are not competent to stand trial if they don’t understand rationally what’s happening to them or are unable to assist in their defense, at least talk to their lawyer and answer questions, said Joseph Hoffmann, a professor at Indiana University’s Maurer School of Law in Bloomington.

"If either of those two things are lacking, as a matter of due process we just can’t try a person for a crime," he said. "It’s not to say they can’t be guilty of the crime, but we can’t put them on trial."

The evaluation is not the same for all people, said Ross, who takes extensive notes and records interviews. With an outside camera, he also observes defendants coming to the office to note any changes after they are inside, he said. 

Because the criteria require understanding the nature of the charges, a person’s intelligence quotient is measured. Someone with an IQ of 65, in the mentally deficient range, can still be deemed competent, Ross said.

Tests to measure personality functioning and those that determine if someone is trying to fake mental illness are used, he added.

Some psychological tests indicate if someone is "faking bad," or exaggerating psychological symptoms that are worse than even those with a severe disorder, Ross said. Those who are faking bad might also show symptom combinations that are not typically found in certain disorders.

About half of defendants in Ross’ office try to fake bad, he said.

"There was one workshop I attended a few years ago in Chicago, it was called ‘The New Excuses,’ " Ross said. "The cat litter box made me do it."

When synthetic drugs such as spice appeared several years ago, "It really caused some bizarre and very impulsive behaviors," Ross said. "I know I’ve done a number of murder cases and assault cases where spice was involved, which was the reason they did what they did, but that’s not a defense."

As a forensic psychologist, Ross uses the same templates and standards of practice others use, he said. There are variances. Ross tries to get mental health and jail evaluation records. He contacts defendants’ family members for information. He’ll also get school records.

Most defendants he interviews are competent, Ross said. Several last year were clearly incompetent, he added. For those, Ross recommends what might restore competency. That could mean medications. Sometimes defendants are sent to state hospitals in Logansport or Richmond for "competency restoration treatment."

If the court finds a defendant incompetent, the law allows the trial to be delayed and the defendant committed for treatment. Ross said. Logansport and Richmond are common places for that. Within 90 days after a defendant is admitted, the institution must tell the court if the defendant has "a substantial probability" of gaining competency within the foreseeable future, according to state law.

If it’s not probable, the defendant is committed until he or she retains competency or for six months. Defendants unable to attain comprehension for trial can be recommitted to an institution.

Indiana is noted for a 2008 U.S. Supreme Court case, Indiana v. Edwards, that addressed the competency issue. Ahmad Edwards, charged with attempted murder and other crimes, was in and out of Logansport State Hospital after three separate competency hearings.

The trial judge eventually ruled that although Edwards was competent to stand trial he was not capable of defending himself, as he wanted. A lawyer was appointed to represent him, and Edwards was convicted.

The Supreme Court upheld Indiana, with the late justice Antonin Scalia dissenting, arguing if a defendant is competent to stand trial he is competent to make a decision to represent himself.

"At the end of the day Edwards was forced by the government to be put on trial for a crime and was forced by that same government to be there with a lawyer he didn’t want," Hoffmann said.

rshawgo@jg.net