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Posted on: Nov 10, 2016


Major Davis ruled incompetent: What does it mean? Where do we go from here?

By K. Michael Gaerte, Bingham Greenebaum Doll LLP

The man awaiting a death penalty trial for the killing IMPD Officer Perry Renn was back in the news last month. Marion County Superior Court Judge March Rothenberg ruled that Major Davis was legally incompetent to stand trial, concluding that Mr. Davis was unable to understand the proceedings and assist in his own defense. As a direct consequence, the Court ordered Mr. Davis committed to the Family and Social Services Administration for mental health evaluation and treatment. For the un-initiated, the Court’s ruling may be easy to misinterpret. Does this mean that Mr. Davis “gets off” the charge prior to trial? A review of the Indiana Code reveals quite the opposite.

If a court has a reasonable basis to believe that a defendant lacks the ability to understand the proceedings and assist in his or her defense, Indiana Code §35-36-3-1(a) mandates that it shall appoint at least two or three competent and disinterested psychiatrists, psychologists or physicians who are experts in determining competency. The court must then set a hearing in order to hear evidence on the same. If the court concludes that a defendant is incompetent, it must “delay or continue the trial and order the defendant committed to the division of mental health and addiction… (which) shall provide competency restoration services…” I.C. §35-36-3-1(b) (parenthesis added).

In the 1970’s Indiana’s institutionalization framework was ruled to be an unconstitutional deprivation of due process in Jackson v. Indiana. 92 S.Ct. 1845 (1972). In Jackson, the Supreme Court of the United States ruled that individuals can only be held for a “reasonable period of time” in order to determine whether competency can be restored. Now, the Indiana Code now mandates a time-based process to either restore competency or institute a civil commitment.

After ninety days, the superintendent of the defendant’s institution must certify to the court whether there is a “substantial probability” that the defendant can attain competence. I.C. § 35-36-3-3. If not, the institution must initiate commitment proceedings. If so, the institution can retain the defendant until he or she is competent, or six months, whichever comes sooner. Statistically, in Indiana, 72.3 percent of people admitted for incompetency to stand trial were restored within six months and 83.9 percent restored within one year. See “When Treatment is Punishment” available here. (Last viewed October 31, 2016). Assuming competency can be obtained, the defendant is returned to the jurisdiction where the case is pending, and the matter can be tried as if no delay has occurred. I.C. § 35-36-3-2.

Under either continuum, one thing is clear: the ruling on Major Davis is in no way a “free pass.” Either his competence will be restored and he will be tried, or the State will seek a mental health commitment. Assuming that Mr. Davis’ experience is consistent with the statistics, he will receive what all involved desire – a fair trial by a jury of his peers.

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