Where a juvenile has been found incompetent to stand trial, Wis. Stat. § 938.30(5)(e)1. says he or she can be later reevaluated–but only if he or she was found likely to regain competence. Nevertheless, the court of appeals, relying on a tendentious reading of the legislative history, decided even a juvenile who has been found unlikely to become competent can also be reevaluated.
A thorough analysis of the statute and its history can be found in our post on the court of appeals decision. Perhaps more troubling than the court of appeals’ analysis, though, is the practical effect of its decision. Basically, an attorney with a juvenile client who may be incompetent is presented with a serious moral and ethical dilemma–because trying to protect his or her right not to be tried while incompetent could well lead to the juvenile finding him- or herself in the adult criminal system. All this is explained by Deborah Stahl’s insightful comment on that earlier post.