The Competency Question in an
Uncertain, Chaotic, and
Sometimes Unlucky World
Arthur L. Bowie
Supervising Assistant Public Defender,
Sacramento County Public Defender’s Office
9th Annual PJDC Roundtable
September 22, 2012
USF School of Law,
San Francisco, CA
Competency Puzzle in Delinquency Court
2

Characteristics of the Juvenile Justice Population





Mental retardation: 1.61% of the general school age population;
12.6% of the juvenile offender population (Rutherford et al.)
Learning disabilities: 7-12% of the general student population;
36% of the juvenile offender population (Rutherford et al.)
Mental Illness: 10% of the general juvenile population; 50-90% of
youth in juvenile justice (Little Hoover 2001); 42% of youth in
detention; 59% of youth in placement; 33% of youth in field
supervision (NCCD 2003)
One-day California detention snapshot: 4,602 open mental health
cases; 1644 receiving psychotropic medication (CSA, Juvenile
Detention Profile Survey, 1st Quarter Report 2009)
In 2009, 351 petitions were filed in cases of children under 12
years of age and 16,853 for children 12-14 (Juvenile Justice in
California 2009, Table 15)
Competency Puzzle in Delinquency Court
3

What Are We Actually Dealing With in Juvenile
Competence?
 Youth
Law Center Statewide Survey of Probation in 34
Counties in 2006-2007
 Fewer
than 200 judicial determinations of incompetence
statewide (in the year before the survey)
 Numbers would be higher, but:


A
Some counties actively divert
Confusion over competence standards means some youth slip
though
few counties have significantly more competency
proceedings.
Competency Puzzle in Delinquency Court
4
 Numbers
are going up in some counties because of
increased awareness of legal standards and increase in
children with cognitive damage due to huffing and other
drug use.
 Other states estimate 1% are referred for evaluation.
 Not a big population in numbers, but very challenging and
resource intensive.
Competency Puzzle in Delinquency Court
5

Adjudicative Competency
A
legal construction based on a psychological,
psychiatric or medical finding.

U.S. Constitutional Standard for Competence —
Dusky v. United States (1960) 362 U.S. 402
 Whether
the defendant/minor “has sufficient present
ability to consult with his[/her] lawyer with a
reasonable degree of rational understanding—and
whether he[/she] has a rational as well as factual
understanding of the proceedings against him[/her].”
Pre Welfare and Institutions Code section 709
“The question [of incompetency] is cognitive, whether the defendant’s
mental condition is such that he lacks that degree of rationality
required by law [citation] so as to have ‘the mental acuity to see, hear
and digest the evidence, and the ability to communicate with counsel
in helping prepare an effective defense.’ [Citation.]” (Emphasis
added.)
***
“The dictionary defines the word ‘condition’ variously to mean ‘4: a
mode or state of being…state with reference to mental or moral
nature, temperament, character, or disposition’ or ‘5: quality, attribute,
trait.’ (Webster’s 3rd New Internat. Dict. (1971) p. 473.) Under these
definitions, although the term ‘mental condition’ certainly includes
mental disorder or mental retardation, which as noted is a
developmental disability [citation], we see no difference between a
condition that results from a developmental disability and one that
results from developmental immaturity.”
Timothy J. and Dante H. v. Superior Court (Sacramento)
(2007) 150 Cal.App.4th 847, 859-860
6
Moreover, “although [California Rules of Court] rule 5.645(d)
provides that the court “may” appoint an expert to evaluate the child,
where…the child’s counsel has expressed a doubt as to his client’s
competency, it would be an abuse of discretion for the court to refuse to
appoint an expert. [Citation.]” (Italics in the original.)
***
Counsel’s recitation of petitioner’s inability to understand the
proceedings, as well as his later motion to reconsider based upon new
information that petitioner was schizophrenic and bipolar, provides ample
justification for he appointment of an expert to examine petitioner before any
further proceedings begin requiring his cooperation with counsel.
(Emphasis added.)
Tyrone B. v. Superior Court (Sacramento) (2008) 164 Cal.App.4th 227,
231
The court further concluded that “the question [of competency] is
not can the minor become competent in the future with assistance; rather the
question is whether he is presently competent.”
In re Ricky S. (Sacramento) (2008) 166 Cal.App.4th 232, 236
7
Competency Puzzle in Delinquency Court
8
History That May Impact Where We Go From Here
In re Mary T. (1985) 176 Cal.App.3d 38
The court held that a juvenile court may initiate proceedings to determine
present competence, and where necessary, suspend proceedings and make a referral
under Pen. Code, § 4011.6, without a threshold showing of probable cause to
believe the offense alleged in the petition has been committed, or that the
presumption of incapacity to commit a criminal act (Pen. Code, § 26) can be
overcome.
In re Michael E. (1975) 15 Cal.3d. 183
The juvenile court may not commit a minor to a state hospital; commitment
may be accomplished only the compliance with the Lanterman-Petris-Short Act.
In re Patrick H. (1997) 54 Cal.App.4th 1346
9
The Court of Appeal set aside that portion of the trial court's order
continuing the minor's commitment under Penal Code section 1370. The court
held that the juvenile court erred in committing the minor to a mental facility
for a 90-day evaluation pursuant to Penal Code section 1370, which is
applicable to adults found incompetent to stand trial. Once the juvenile court
found that the minor could not cooperate with his counsel, it should have turned to
Welfare and Institutions Code section 705, and proceeded under either Welfare
and Institutions Code section 6550, or Penal Code section 4011.6, whichever was
appropriate. Under Welfare and Institutions Code section 6551, the jurisdiction of
the juvenile court is suspended during the time the minor is subject to the
jurisdiction of the court in which a Lanterman-Petris-Short Act (LPS) petition for
civil commitment is filed. Under Penal Code section 4011.6, however, the juvenile
court may retain concurrent jurisdiction over the minor during the LPS
proceedings. Thus, rather than issuing a 90-day commitment order, the
appropriate step at that time would have been to refer the minor to a facility for 72hour treatment and evaluation. The juvenile court also erred in continuing the
Penal Code section 1370 commitment after the minor was found
incompetent. A finding of incompetence in a juvenile proceeding should not
result in a confinement order or its equivalent; a juvenile is not committed as
incompetent to proceed with Welfare and Institutions Code section 602,
proceedings, but on a wholly independent basis and after wholly
independent procedures.
James H. v Superior Court (1978) 77
Cal.App.3d 169
Although the juvenile law does not contain provisions for dealing
with minors who are incompetent to stand trial, the juvenile court judge
has the inherent power to conduct a hearing on the issue of
competency because the “constitutional dimensions of the
incompetency problem.” If the juvenile court finds that the minor is
incapable of understanding the nature of the proceedings or assisting
counsel, then Welfare and Institutions Code section 705 empowers the
juvenile court to utilize the authority of Penal Code section 4011.6 to
initiate civil commitment proceedings against the minor.
10
W&I Code Section 709
11
1.
2.
3.
Codifies Dusky/Drope standard – having sufficient present ability to
consult with counsel and assist in preparing the defense; and rational as
well as factual understanding of the nature of the charges or
proceedings. Inability to meet either prong results in
incompetence. [Broader than P.C 1367, subd.(a)]
Requires suspension of proceedings if the court finds that substantial
evidence raises a doubt as to competence. [Same standard as in adult
court, e.g., People v. Stankewitz (1982) 32 Cal.3d 80, 92]
Provides that upon suspension of the proceedings, court must order
determination of competence at a hearing and appoint an expert.
[Codifies Tyrone B. v. Superior Court (2008) 164 Cal.App.4th 227, 231.]
W&I Code Section 709
12
4.
Requires evaluation whether minor suffers from a mental disorder, developmental
disability, developmental immaturity, or other condition and, if so, whether the
condition or conditions impair the minor’s competency. [Codifies Timothy J. v.
Superior Court (2007) 150 Cal.App.4th 847.]
5.
Requires expert to have expertise in child/adolescent development, training in
forensic evaluation of juveniles, be familiar with competency standards/accepted
criteria used in evaluating competence. Requires Judicial Council to develop
and adopt rules.
6. Establishes preponderance of the evidence as the standard of
proof. [Same standard as in adult competence law; e.g., Penal Code §
1369, subd.(f)., but does not specifically address which party has the
burden of proof as established by Penal Code § 1369, subd.(f), which
states, “It shall be presumed that the defendant is mentally competent
unless it is proved by a preponderance of the evidence that the defendant
is mentally incompetent.” See also In re Christopher F. (2011) 194
Cal.App.4th 462, 471-472.]
W&I Code Section 709
13
7. Provides that if there is not a substantial probability that the minor will attain competency in
the foreseeable future, the court must dismiss the case. [Codifies Jackson v. Indiana (1972)
406 U.S. 715, 738.]
8. Gives the court the power to make orders that may assist the minor in attaining
competency. [Until now, courts had only James. H. v. Superior Court (1978) 77 Cal.App.3d
169, 175-177, recognizing courts’ inherent power to create procedures.]
9. Allows the court to rule on motions that do not require the participation of the minor,
including but not limited to motions to dismiss; motions by the defense regarding a
change in the placement of the minor; detention hearings; and demurrers. (Reference
Blockton v. Superior Court, S199935, in adult court setting. Right to litigate motion
to dismiss base on speedy trial violation.)
10. Provides that if the minor is found competent, the proceedings shall go forward. Clarifies
that the law applies both to 601s and 602s.
W&I Code Section 709
14
2011 Amendments:
11.




If minor is developmentally disabled, court shall appoint
Regional Center (or his/her designee) to evaluate minor for
service eligibility (per WI 4500 et seq.). However, this referral
shall not delay the court’s proceeding’s for determining
competency.
An expert’s determination that the minor is developmentally
disabled does not supersede an independent determination by
the Regional Center for services qualification.
Section 709 does not give the court the authority to place an
incompetent minor in a developmental center or community
facility operated by State Dep’t. of Developmental Services
without Regional Center approval.
Section 709 does not give the court the authority to appoint the
Regional Center to conduct competency evaluations.
California Rules of Court
Rule 5.645(d)—January 1, 2012
15

W&I Code section 709 (Assem. Bill 2212 [Fuentes];
Stats. 2010, ch 671) requires the Judicial Counsel to
develop and adopt rules for the qualification and
appointment of experts who evaluate children when
the court or minor’s counsel raises the issue of
competency to stand trial in any juvenile
proceeding.
Rule 5.645(d)
16



Reiterates WI 709 competency standard.
Must appoint an expert to determine if child’s
“condition” impairs incompetency.
Expert must be one of the following:
 Licensed

psychiatrist
w/4 yrs. of med. school, AND EITHER


4 yrs. of gen. psychiatry residency, including one yr. of internship
and 2 yrs. of child & adolescent fellowship training, OR
3 yrs. of gen. psychiatry residency, including one yr. of internship,
and one yr. of residency that focused on children & adolescents,
and one yr. of child & adolescent fellowship training.
Rule 5.645(d)
17

Expert must be one of the following:
 Clinical,
counseling, or school psychologist who has
received a doctoral degree in psychology from an
educational institution accredited by an organization
recognized by the Council for Higher Education
Accreditation and who is licensed as a psychologist.
Rule 5.645(d)
18

The expert (psychiatrist or psychologist) must:
 Have
experience in addressing child and adolescent
developmental issues, including emotional, behavioral,
and cognitive impairments of children and adolescents;
 Have experience in cultural and social characteristics of
children and adolescents;
 Possess a CV reflecting training and experience in the
forensic evaluation of children;
 Be familiar w/juvenile competency standards and
accepted criteria used in evaluating juvenile
competence
Rule 5.645(d)
19

The expert (psychiatrist or psychologist) must:
 Possess
a comprehensive understanding of effective
intervention as well as treatment, training, and
programs for the attainment of competency available
to children and adolescents; and
 Be proficient in the language preferred by the child, or
employ the services of a certified interpreter and use
assessment tools that are linguistically and culturally
appropriate for the child.
Rule 5.645(d)
20


Nothing precludes other clinicians with other
professional qualifications from participating as
consultants or witnesses or in other capacities.
After hearing, court must proceed pursuant to WI
709.
People v. Murdoch (2011) 194 Cal.App.4th 230
The court concluded that the trial court should have suspended
the criminal proceeding and instituted competency proceedings pursuant
to Penal Code section 1368. Substantial evidence demonstrated a
reasonable doubt as to defendant's competence to stand trial. Prior
to the taking of evidence at trial, defendant told the trial court his defense
to the felony assault charges: the victim was not a human being.
According to defendant, the victim lacked shoulder blades, which "are
symbolic of angelic beings." Defendant asked the victim one question on
cross-examination: "Can you shrug your shoulders like this?" The
evidence established a reasonable doubt as to whether defendant could
conduct his own defense in a rational matter. It was readily apparent
defendant did not feign insanity to delay the proceedings. He opted for
self-representation precisely because his appointed counsel sought to
continue his trial. Defendant did not want his trial delayed. There was
nothing in the record to indicate defendant's defense was the result of
sheer temper. The correct procedure for the trial court's error was to
reverse the judgment of conviction.
21
In re Christopher F. (2011) 194 Cal.App.4th 462
The court of appeal held that there was no error in failing
to appoint the director of the regional center for the
developmentally disabled to evaluate defendant because the
competency determination was governed by due process
principles and California Rules of Court, rule 5.645(d), not Penal
Code section 1369(a). Due process was satisfied by the evaluation
of the defense expert, who was skilled in the diagnosis of
developmental disabilities, had formerly been employed as a
psychologist at the regional center, and had testified in prior cases as
an expert on developmental disabilities. The evaluation included an
assessment of defendant's potential development disabilities; indeed,
the psychologist specifically opined that defendant's learning
disabilities were not considered to be developmental or mental
retardation because defendant was above average in nonverbal
areas. The evaluation provided sufficient evidence to support the
competence finding, even though the trial court rejected the
psychologist's ultimate opinion that defendant was mentally
incompetent based on the psychologist's apparently failure to
consider defendant's academic performance.
22
In re Christopher F., supra, 194 Cal.App.4th at pp. 471-472
[C]iting People v. Ramos (2004) 34 Cal.4th 494, 507 and section 1369, subdivision
(f), the People argue Christopher is presumed competent “unless it is proved otherwise by a
preponderance of the evidence.” If the People are correct, then Christopher failed to meet
his burden of proof on the issue….
Christopher expressly disclaims any challenge to the applicability of the
presumption of competence in juvenile proceedings. Yet the statutory presumption of
competence set forth in section 1369, subdivision (f), reflects a legislative judgment that
does not necessarily transfer to juvenile proceedings, which, despite the increasing
convergence of the adult and juvenile justice systems, remain markedly different from adult
proceedings because of their general goal of treatment of the juvenile offender, rather than
punishment of the adult criminal. (See People v. Smith (2003) 110 Cal.App.4th 1072, 1080;
see also Manduley v. Superior Court (2002) 27 Cal.4th 537, 593 (dis. opn. of Kennard, J.).)
No statute or rule of court specifically applicable to juvenile proceedings allocates the
burden of proof on this issue. Absent such guidance, it is not immediately obvious
the burden of proving a child's competence, as well as the elements of the offense
charged, should not rest with the People, rather than requiring the child, like an adult
defendant, to prove incompetence. (See Medina v. California, supra, 505 U.S. at p. 446
[“The rule that a criminal defendant who is incompetent should not be required to stand trial
has deep roots in our common-law heritage. … [¶] By contrast, there is no settled tradition
on the proper allocation of the burden of proof in a proceeding to determine competence.”];
People v. Ary, supra, 51 Cal.4th at pp. 518, 520 [placing the burden of proof on the
defendant in mental competence proceedings, whenever conducted during a criminal case,
does not violate due process principles]; see generally Evid. Code, § 500 [“[e]xcept as
23 otherwise provided by law, a party has the burden of proof as to each fact the existence or
nonexistence of which is essential to the claim for relief or defense that he is asserting”].)
In re Alejandro G. (2012) 205 Cal.App.4th 475
“We publish on the issue [of juvenile adjudicative competency] as a reminder of
the proper test of a minor’s competency to stand trial. The doctors evaluating
Alejandro applied the incorrect test, and, on appeal, Alejandro misconstrues the
test as well. A minor’s competency does not hinge on his or her education
regarding or knowledge of the juvenile court system. Instead, the correct test
of competency of a minor is set forth in Timothy J. v. Superior Court (2007) 150
Cal.App.4th 847 [citation]. The court must determine whether the minor has
sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding—and whether he has a rational as well as factual
understanding of the proceedings against him. [Id., at p. 857.]”
Alejandro was evaluated by two psychologists, both administered test designed
to evaluate adults rather than children.
Both psychologists found Alejandro incompetent to stand trial, although one
testified that Alejandro “was able to assist counsel” and “was able to
understand the proceedings”
24
Refuses to answer the question raised in Christopher F. regarding who has the
burden to prove competency, defense or prosecution.
In re Alejandro G. (2012) 205 Cal.App.4th 475
“The fact that both doctors opined Alejandro was not competent does not prove a
lack of substantial evidence to support the court’s finding. The court is not
under any obligation to adopt the doctors’ opinions. Such a requirement
would undermine the court’s role in determining a minor’s competency.
(See James H., supra, 77 Cal.App.3d 172 [“[T]he juvenile court has the
inherent power to determine a minor’s mental competence to understand
the nature of the proceedings pending . . . and to assist counsel in a
rational [manner] . . . .”].)”
25
Beware of Penal Code Section 1054.3(b)
26

(1) Unless otherwise specifically addressed by an
existing provision of law, whenever . . . a minor
juvenile in a juvenile proceeding . . . Places in issue
his or her mental state at any phase of the . . .
juvenile proceeding through the proposed testimony
of any mental health expert, upon timely request by
he prosecution, the court may order that the . . .
juvenile submit to examination by a prosecutionretained mental health expert.
Penal Code Section 1054.3(b)
27
Prosecution has to bear the expense of the expert.
 Prosecutor shall submit a list of tests proposed to be
administered to the minor.
 Minor can have a hearing to consider any objections raised
to the proposed tests before any test is administered.
 Before ordering minor to submit to exam, court must make a
threshold determination that the proposed tests bear some
reasonable relation to the mental state placed in issue by
the minor
 “Tests” include any and all assessment techniques such as a
clinical interview or a mental status examination.

Sharp v. Superior Court (Ventura County) (2012) 54 Cal.4th 168
Defendant was charged with several felonies including murder with
special circumstances, pleaded not guilty by reason of insanity and proposed to
call a mental health expert on the issue of sanity. Pursuant to Penal Code
section 1054.3(b)(1), the prosecution moved to have defendant examined by a
prosecution-retained expert, and the trial court granted the motion.
The Supreme Court held that section 1054.3(b)(1) applied in this case.
By its terms, section 1054.3(b)(1) authorizes an order compelling
examinations by a prosecution-retained expert whenever at any “phase”
of the criminal action the defense has proposed its own expert testimony
on mental state, unless otherwise specifically addressed by an existing
provision of law. Had the legislature meant to exclude discovery in sanity
phase proceedings from the scope of section 1054.3(b)(1), it would not have
expressly stated the statute applies “at any phase of the criminal action.” Even
if the court agreed with the defendant here, as to the lack of need for the
examination, it could not ignore the statute’s broadly inclusive language
authorizing a compelled examination whenever the defendant had put his or
her mental state at issue at any “phase” of the criminal action, through the
proposed testimony of a mental health expert.
28
Maldonado v. Superior Court (San Mateo County) (2012) 53 Cal.4th 1112
29
In a first degree murder case, defendant notified the DA that he
intended to introduce evidence of neurocognitive deficits. The trial court found
that the DA could not be present at a mental health exam by a prosecutionretained expert per. Penal Code section 1054.3(b)(1), but otherwise denied
defendant’s request for protective orders. On the ensuing writ the court of
appeal granted partial mandate relief.
The Supreme Court reversed the judgment of the Court of Appeal.
The court held that neither the 5th Amend. right against selfincrimination, nor prophylactic concerns about the protection of that right
justify precluding the prosecution from full pretrial access to the results
of mental examinations by DA experts conducted pursuant to section
1054.3(b)(1), for the purpose of obtaining evidence to rebut a mental-state
defense the defendant has indicated he or she intends to present on the
issue of guilt. The Court of Appeal erred in ordering that prosecutors could
not observe the exam and could obtain access to the exam materials only
under a procedure whereby the trial court would consider defendant’s privilege
objections pretrial, and would inspect and redact the exam materials in camera,
before allowing the prosecution any access to them. Forcing the trial court to
resolve defense claims of privilege prior to trial, without prosecutorial access to
the evidence in dispute, imposed procedures that were neither required nor
justified by the 5th and 6th Amends., and that were manifestly unfair to the
prosecution.
Baqleh v. Superior Court (San Francisco) (2002) 100 Cal.App.4th 478
At defendant’s arraignment on a murder charge, counsel informed
the trial court that, based on an oral report from a psychiatrist, he had a
doubt as to whether defendant was competent to be arraigned. The trial
court suspended the proceedings and ordered that defendant be evaluated
by a a clinical psychologist. After a clinical examination and reviews of
reports by defendant’s experts, who concluded that defendant was
incompetent to stand trial, the court-appointed expert found that defendant
was competent to stand trial. Thereafter, the trial court ordered defendant
be examined by the director of the regional center for the developmentally
disabled, and also granted the prosecution’s petition to have defendant
examined by the expert of its choosing.
The Court of Appeal ordered issuance of a writ of mandate
directing the trial court to set aside its order granting the motion to direct
defendant to submit to a mental examination and to entertain a new motion.
The court held that the trial court had authority to order defendant to
be examined by the People’s expert, but that the trial court’s order did
not comply with the Civil Discovery Act of 1986 (Code Civ. Proc., sec.
2016, et seq.).
30
Baqleh v. Superior Court , con’t.
The court held that the civil nature of a trial on the issue of
competency vests the trial court with authority to utilize appropriate rules set
forth in the Code of Civil Procedure, even though the underlying issue
relates to the commission of a criminal offense.
The court also held that an accused person cannot, on the basis of
U.S. Const., 5th Amend., refuse to submit to a mental examination by a
prosecution expert when properly ordered to do so in connection with a
Penal Code section 1368 hearing, to determine mental competency to stand
trial. The 5th Amend. does not come into play in this situation because a
judicially declared rule of immunity provides the necessary safeguards.
The court further held that the judicially declared rule of immunity
that protects a defendant’s 5th Amend. right against self-incrimination
concomitantly protects the interest that might otherwise entitle him to a U.S.
Const., 6th Amend., right to counsel, at a court-ordered mental examination
on the question of competence to stand trial.
31
Baqleh Examined
32

Competency trials under PC 1369 are not criminal
proceedings.
 “Although
is arises in the context of a criminal trial, a
competency hearing is a special proceeding, governed
generally by the rules applicable to civil proceedings.”
 “The civil nature of a trial on the issue of competency
vests the trial court with authority to utilize appropriate
rules set forth in the CCP, even though the underlying
issue relates to the commission of a crime.”
Baqleh Examined
33

Civil Discovery Act, which by its own terms applies to
“special proceedings of a civil nature . . . Permits
discovery “regarding any matter not privileged, that is
relevant to the subject matter involved in the pending
action or to the determination of any motion made in
that action, if the matter either is itself admissible in
evidence or appears reasonably calculated to lead to
the discovery of admissible evidence. Discovery may
relate to the claim or defense of the party seeking
discovery or of any other party to the action.” (Baqleh
at p. 491; see also CCP 2017.010 and 2019.010.)
Baqleh Examined
34


See CCP 2032.010 et seq.
A party desirous of obtaining discovery by such an
examination is obliged to seek leave of the court by a
noticed motion that specifies the:
Time
 Place
 Manner
 Conditions
 Scope, and nature of the examination
 Identity and specialty of the person or persons conducting
the examination

Baqleh Examined
35




The motion must be accompanied by a declaration “stating facts
showing a reasonable and good faith attempt to arrange for the
examination by an agreement.
An accused person cannot on the basis of the 5th Amend. refuse to
submit to a mental examination by a prosecution expert when
properly ordered to do so in connection with a section 1368
hearing.
The 5th Amend. does not come into play because a judicially
declared rule of immunity provides the necessary assurance that an
accused will not be convicted of a crime by use of any information
obtained at a court-compelled mental examination or the use of
information obtained from that examination, or that his sentencing
may be affected by such information or the fruits thereof.
By allowing the DA to investigate facts crucial to the determination
of competency without prejudice to the defendant, the rule of
immunity also enhances the search for truth (justice and the American
way!) (Baqleh at p. 502-503.)
Involuntary Medication to Restore Competency
36

People v. Coleman (2012) 208 Cal.App.4th 627

Penal Code section 1370 authorizes involuntary treatment
for the purpose of competency restoration.
Defendant must be charged with a serious crime against the
person or property;
 Involuntary administration of antipsychotic medication is
substantially likely to render the defendant competent to stand
trial;
 The medication is unlikely to have side effects that interfere with
the defendant’s ability to become competent;
 Less intrusive treatments are unlikely to have substantially the
same results; and
 Antipsychotic medication is in the defendant’s best medical interest
in light of his or her medical condition.

Great By Choice: Uncertainty, Chaos, and
Luck—Why Some Thrive Despite Them All
37




The best lawyers are not more risk taking, more visionary, or
more creative than the comparisons; they were more
disciplined, more empirical, and more paranoid.
Innovation by itself turns out not to be the trump card in a
chaotic and uncertain world; more important is the ability to
scale innovation, to blend creativity with discipline.
Following the belief that litigating in a “fast world” always
requires “fast decisions” and “fast action” is a good way to
get killed.
Great attorneys changed less in reaction to a radically
changing world than the comparison attorneys.
Conclusion: “Where’s The Beef?”
38

“Substantial Evidence”







Burden of Proof—dicta in In re Christopher F.
Qualifications of the “expert”
Local protocols
Motions to dismiss (i.e., what is “a period of time that is no longer than
reasonably necessary to determine whether there is a substantial
probability that the minor will attain competency in the foreseeable future
or the court no longer retains jurisdiction.)
Other motions…not limited to(?)





Expression of the doubt
At the competency hearing
To what?
Gladys S. hearings?
Probable cause hearings?
IAC claims
Gettin’ jiggie with it!!!
References
Arthur Bowie
Sacramento County Public Defender
700 H Street, Suite 0270
Sacramento, CA 95814
(916) 874-5208
(916) 995-5169
bowiea@saccounty.net
arthurbowie@surewest.net
Sue Burrell, Staff Attorney
Youth Law Center
200 Pine Street, Suite 300
San Francisco, CA 94104
(415) 543-3379; sburrell@ylc.org,
ckendrick@yld.org
www.ylc.org