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Court of Appeals: Second eval after first found defendant incompetent OK

State v. Matthew Allen Lilek, 2014AP784-CR, 10/4/16, District 1 (not recommended for publication); case activity (including briefs)

Lilek’s trial counsel raised his competency to stand trial and the court-appointed expert found him incompetent and unlikely to become so. The state, dissatisfied with that result, requested another evaluation, and the court obliged. This new evaluation reached the opposite conclusion, and Lilek was eventually found competent. Is this OK?

The court of appeals thinks so. After disposing of fact-bound plea withdrawal (¶¶21-32) and sentencing (¶¶33-45) claims, the court turns to Lilek’s claim that the court erred in ordering a second competency evaluation.

As noted, the first evaluation found Lilek incompentent and court ordered a second at the state’s request. Per Lilek’s brief, however, the Wisconsin Forensic Unit refused to assign a second expert because of concern over the “appearance of doctor shopping.” The court eventually appointed non-WFU examiner, who found Lilek competent. (¶5). In the meantime, the original expert shifted his position, eventually concluding that Lilek was competent with “reservations.” (¶7). Lilek then retained a third expert, who concluded that he was incompetent. (¶8). After a hearing, the court found him competent. (¶9).

Lilek argues that this procedure violated the timeline laid out in the competency statute, Wis. Stat. § 971.14. Specifically, he notes that for a non-inpatient exam must be completed, and the report filed, within 30 days of the order. § 971.14(2)(c). If the parties decline to present additional evidence, the court is required to determine competency, “promptly”; otherwise it is to hold a hearing. § 971.14(4)(b). Though the statute permits the court to appoint “one or more” examiners, § 971.14(2)(a), the statute does not say that these examiners may be appointed serially–which practice would seem to thwart the statute’s evident concern for prompt determination of competency.

The court of appeals notes that the statute does not prescribe a set time for the completion of the entire proceeding, but only for the completion of the report. (¶51). True enough. More problematically, the court asserts that “Thereafter, the court retains the authority to order more examinations—and the statute allows the State and the defense to request their own experts—before the court holds a competency hearing. See §§ 971.14(2)(g), (3), and (4).” (¶51). But the cited statutes do not say that. They simply state that the parties are permitted to chose their own experts, who may examine the defendant, and that the parties can present evidence at the hearing. The court points out that parties are only likely to seek out their own experts “if they disagree with the initial report” (¶52), suggesting that some lag is contemplated between the report and the hearing. But that’s not quite the same thing as the court appointing a second expert because of the state’s dissatisfaction with the first. In the end, the proceedings here went on for nine months after the first, 30-day report was turned in. (¶51). We’ll have to wait for another case to see whether there are any time constraints at all on the determination of a defendant’s competency.

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