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COA: Circuit court properly held trial despite concerns about defendant’s competence

State v. Lance L. Black, 2019AP592, 3/3/20, District 1 (not recommended for publication); case activity (including briefs)

Black’s first trial ended in a hung jury. When the state said it would try him again, he made a fuss–swearing and pounding on a table. At his second trial, Black again erupted (twice), was removed from the courtroom, and refused to return. His counsel requested a competency evaluation, which the court permitted, though with apparent reluctance. After the examiner found Black incompetent, the court disagreed with her, finding him competent and continuing the trial to (guilty) verdicts.

On appeal, Black argues that the court’s remarks before the competency evaluation show he had prejudged the result:

[T]he jury’s not coming back until 9:30. If somebody from the forensic unit can make an emergency trip to his cell, I mean, I’ll allow it. I’ve already got one juror here. These jurors already were subjected to a four-hour delay yesterday. I certainly am not going to allow Mr. Black’s outbursts and behavior to result in more extreme delays or result in a mistrial, for that matter.

So let’s see if we can get somebody there promptly. If we can, I’ll send that person over and order it. If we can’t, we’ll just proceed with the trial once the jurors are here.

(¶5).  He argues this prejudgment is confirmed by the fact that the court found him competent even though the only evidence it heard was the examiner’s opinion to the contrary; it said that the examiner had “very limited information” about Black, and implied that his outbursts were a manipulative reaction to the fact that his trial was going badly. (¶7).

The court of appeals affirms, leaning heavily on the deferential “clearly erroneous” standard of review. See State v. Byrge, 2000 WI 101, ¶45, 237 Wis. 2d 197, 614 N.W.2d 477. Noting that competency is a legal question, not a medical one, it observes that the trial court was free to assign what weight it liked to the examiner’s opinion. (¶¶11, 13). The two judges in the majority here say that Black’s argument of “prejudgment”–founded in comments the court made before the evaluation–is defeated by the reasoning the court gave afterward, which showed that it “actually assessed” the evidence reasonably. (¶12).

Judge Dugan concurs. He faults the majority for focusing on the circuit court’s assessment of Black’s competency post-evaluation. He observes that Black isn’t arguing that that analysis, on its own, was legally faulty; he’s saying the court’s prior remarks show it had already made up its mind. Judge Dugan thinks these prior comments reflected not a decision on competency, but “frustration that the delays were impacting the jurors.” He says the court’s other actions and comments showed a willingness to consider whether Black was truly incompetent; he would affirm on this basis.

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