In some cases, the defense or the prosecution may disagree with the first evaluation and either side can request can request a second. If those evaluations are different, a third can be ordered by a judge before a ruling is made.
Brown’s attorney Clyde Bennett said after having conversations with Brown, “he did not appear to be mentally normal.”
“He could not assist me with my defense. He did not appear to be lucid. Therefore his competency is an issue,” Bennett said after a court hearing. “When I sat with him after the Walmart incident he could not assist in his defense. If you can’t tell me what happened and you don’t know what happened and this is all a mystery and a fog to you, well hell, how do I know you knew what happened when it happened?”
Brown will be back in court next month for the result of the second evaluation.
Last week, Washington was in court representing Justin Glenn, a Hamilton man who is accused for shooting and killing his brother last February in the yard of their Summer Street home.
Again, Washington questioned his client’s competency after meeting with Glenn. An evaluation was conducted, and unlike in the Gosney case a phycologist agreed and Glenn was ordered to undergo treatment to be determine if he can be restored to competency.
“Competency for trial is about their ability to understand the proceedings and assist in their defense,” Washington said. If a person is found incompetent, it is possible they can be restored to competency with treatment and their case will then be litigated.
Many factors can render a defendant incompetent — intelligence level, drug usage, mental illness, injury or Washington said, “a combination of things.”
Washington said a finding of not guilty by reason of insanity is about the person’s state of mind when the crime was committed — “basically, they didn’t understand the difference between right and wrong.”
“When you talk about competency, you talk about how they (defendant) are right now as opposed to NGRI (Not Guilty by Reason of Insanity), which is how they were when the incident happened,” he said.
Competency evaluations and evaluations for a not guilty by NGRI are ordered for a number of defendants in Butler County courts annually. Few result in an NGRI or incompetent findings, and the legal definitions are very different.
Butler County Prosecutor Michael Gmoser said questions of competence can come from the defense, prosecutors or a judge who observes a defendant during proceedings. It is important to all sides to make sure the accused understands the defendant charges and can help with a defense.
But that’s not the case with NGRI. The person may be restored to function mentally for trial with treatment, but if they have been found not guilty because they did not understand the wrongness of their actions when the crime was committed, there will be a determination by a judge at a bench trial and treatment will be ordered.
Two bench trials are set for next month in the case of women charged in serious crimes.
Nancy Imfeld, 64, is charged with felonious assault for the alleged shooting of her husband in May at their Monroe home. Her attorney Jonathan Fox says Imfeld has a history of mental health issues and Monroe officers had been called to the Imfeld residence more than 140 times since 2011 for incidents due to his client’s mental health issues.
Imfeld was initially found incompetent but was restored to competency for trial with treatment at a mental health facility. Fox then entered an insanity plea on her behalf and the psychological evaluation seems to support the plea.
Imfeld will be in Butler County Common Pleas Court on Sept. 8 for bench trial in which evidence supporting the NGRI plea will be submitted by stipulation of the defense and prosecution. Judge Keith Spaeth will make the final finding.
Monica Pennington, 52, is charged with murder for the November shooting death of her sister in Middletown. She too was declared incompetent for trial, but restored with treatment. Her attorney David Brewer then filed a not guilty by reason of insanity plea on her behalf.
On Thursday, Pennington was in Spaeth’s courtroom where a bench trial was scheduled for Sept. 15. In that trial, evidence stipulated by the prosecution and defense will be presented to support the insanity plea. Again, it will be up to the judge to make the final ruling.
Prosecutors and Brewer said Pennington and the victim, Pamela, were often involved in physical fights. When Pennington was arrested she had two black eyes that were visible at arraignment. Part of Pennington’s psychological evaluation included battered women’s syndrome and she has physical and mental disabilities, according to her attorney.
In both cases, if there is an NGRI finding, Spaeth will order another evaluation for recommendation of treatment and care in “the least restrictive setting.”
Gmoser said NGRI is not a pass for any crime because it comes with years of mental health treatment in an institution.
“No, they didn’t get away with murder because they didn’t commit a crime in the first place, as far as the law is concerned. Now as far as the perceptions of the general population ... they will always be branded a murderer. They will always be seen as someone who got away with it, ” Gmoser said.
And in cases where it is warranted, objecting to an NGRI plea for the sake of winning a case is not the way to go.
“You can’t put a square peg into a round hole,” Gmoser said. “In some cases it is very clear based on the psychologists. And I don’t challenge it for the sake of challenging it. I have to have confidence in the people who are make the assessment from someone who is court appointment.”
Is it a delay tactic?
Gmoser said both suggestions of competency and NGRI in which the court has to order an evaluation, which takes weeks to complete, can be used as a delay tactic by the defense.
“We have seen that over the years and I don’t think that will ever go away,” Gmoser said.
Melynda Cook Howard, attorney for a woman found NGRI for gunning down a Miami University professor in 2002, said the bar is high in an insanity case that must be presented a trial.
Tonda Lynn Ansley was found not guilty by reason of insanity for fatally shooting Sherry Lee Corbett, 55, her landlord and employer, on July 27, 2002, just blocks from Corbett’s home in the Dayton Lane Historic District of Hamilton, where both women lived.
“The law states at the time of the commission of the offense the person did not know as a result of a severe mental defect or disease the wrongfulness of the person’s act,” Cook Howard said. “And there has to be proof to back it up.”
“For instance, in Tonda Ansley’s case, the doctors who evaluated her all agreed that she was NGRI. She didn’t believe it was wrong to kill ‘the professor,’ as she called her, because in her mind she believed they were harming her and her child therefore she was protecting them.”
Ansley is now medicated and has conditional release privileges from the treatment facility.
Ansley, like others, including Raymond Tanner, who was found NGRI after killing his wife on Valentine’s Day 1990, are monitored by the court, and hearings are held every couple of years.
After an argument in their Fairfield home, Tanner sawed off his wife’s head, put the head on their bed, then walked to the police station in bloody clothes to admit to the the slaying.
Tanner, who psychologists say suffered acute schizophrenia and was having paranoid delusions that rendered him incapable of distinguishing right from wrong at the time of his wife’s death, was released from a mental health facility in 1996. He continues to follow specific treatment provisions set by the court.