‘Black hole of the justice system’: Debate continues over what to do with man, 71, incompetent to stand trial

Bottom, Gary Earls and his attorney Dennis Adams during last weeks hearing in Butler County Common Pleas Court, Top left, Gary Earls at arraignment, top right, Judge Jenner McElfresh

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Bottom, Gary Earls and his attorney Dennis Adams during last weeks hearing in Butler County Common Pleas Court, Top left, Gary Earls at arraignment, top right, Judge Jenner McElfresh

Gary Eugene Earls is a 71-year-old man with limited mental capacity, who says he cannot read or write and who is incarcerated and charged with raping a fellow nursing home resident.

Now, a Butler County judge is tasked with deciding what should happen to him.

Earls was arrested by Middletown police after a November incident at Close to Home on Roosevelt Boulevard. He was indicted by a Butler County grand jury on two counts of rape in December and has been held in the Butler County Jail since common pleas Judge Jennifer McElfresh set his bond at $100,000.

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Earlier this month, Earls was declared incompetent to stand trial and deemed not recoverable to sanity for future court proceedings.

Prosecutors are now fighting to keep control over the case to assure, they say, that Earls is not placed in a facility where he can assault another person.

During a three-hour hearing this week, prosecutors called witnesses who worked at the Middletown assisted living facility, a nurse who examined the elderly victim after the incident, forensic scientists and a Middletown police officer who interviewed Earls — all in an attempt to prove Earl committed the crime, even if he couldn’t stand trial.

In an interrogation tape played for the judge, Earls told Detective Jon Hoover he could not read and write when his Miranda rights were read to him, but he said he understood he did not have to talk with officers.

Earls admitted to digitally penetrating the 95-year-old woman during the early morning hours of Nov. 17. He said he went into the woman’s room and pulled down his pants. The woman was naked, Earls said.

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Hoover pointed out to Earls that the victim had health concerns and could not talk or give consent.

Earls’ response: “She can talk, I heard her.”

Earls told Hoover he grew up in Middletown and has children living in Kentucky. He indicated “the court” placed him in a nursing home because he couldn’t take care of himself.

Dr. Robert Kurzhals, clinical psychologist at the Forensic Evaluation Center, examined Earls and testified he suffers from cognitive defects.

“There is some indication he was hit by a car at the age of 7 and has had problems ever since,” Kurzhals said.

Kurzhals said Earls has not been able to function independently for years and that his memory is “extremely impaired.”

In addition to the cognitive problems, Earls has a history of alcohol and drug abuse, Kurzhals said.

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When asked by the defense what facility would be appropriate for Earls, Kurzhals said it would not necessarily have to be a mental institution, but perhaps a secured nursing home. He said additional evaluation of Earls might be needed for him to make decision.

The victim’s two daughters quietly said “no” when a secured nursing home was mentioned for Earls’ care.

“He doesn’t need to be back in a nursing home with regular people,” the older daughter said.

The 95-year-old woman died just weeks after the incident. She suffered from dementia but was alert at times, her daughter said. The women said their mother has lived at the facility for 10 years and it was home to her.

“She was a fighter,” the older daughter said. “I believe it affected her. She was never the same.”

Heather Quinn, an aide at the facility, was called to testify about what she saw on Nov. 17.

“She was one of my favorites,” Quinn said.

She said the woman was checked every two hours. Quinn was working the overnight shift.

At about 5 a.m., Quinn said she was coming back from the laundry when “I heard her screaming.”

The woman was in her recliner wearing a pajama top and an adult brief. Quinn said she saw Earls straddling the woman and holding her down.

“I screamed, Get away from her.’ I said get out get out of her room,” she said.

Butler County Prosecutor Michael Gmoser called the issue surrounding what to do with Earls “a black hole of the justice system.”

The state is asking McElfresh to place Earls in an institution so that he does not commit any other crimes. But defense attorney Dennis Adams said a less restrictive option might be appropriate for Earls.

Gmoser said prosecutors want to keep control over the case and assure it is not sent to the probate system.

“(The judge) ultimately has to make a determination that the evidence established that he committed the acts to constitute the criminal offense,” he said. “It is also a serious offense and the public has an interest in respect to public safety … the state is asking for her to approve his commitment to a mental facility equipped to handle these type of offenders.”

McElfresh has asked for further psychological examination of Earls before making her decision. A hearing has been scheduled for May 1.

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