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deficiencies are in language and abstract thinking. Like many persons with mental retardation, defendant has the tendency to mask his handicap by indicating that he understands more than he actually does and by telling

others, dissenting) particularly authority

figures, what he believes they want to hear. See State v. Lockwood, 160 Vt. 547, 569 (1993) (Johnson, J.,

(to overcome their

limited communication skills, mentally retarded persons may answer “yes” when they think questioner is looking for “yes”). In finding defendant to be marginally competent in this case, Judge Davenport acknowledged that defendant is significantly impaired in language-based areas of understanding, that his greatest deficiencies are in abstract thinking, that he had no understanding of how a jury trial functioned, and that although the experts were divided on whether defendant was incompetent, they agreed that the competency question was a “close call.”

This series of dissents pertaining to the challenges faced by criminal defendants with cognitive impairments culminated in State v. Beaudoin.11

In a dissent in which

she was joined by Justice Skoglund, Jus- tice Johnson stated that:

¶ 40. I cannot agree with the majority that the district court acted within its discretion in concluding that a mentally retarded defendant with the cognitive facilities of a young child was competent to stand trial. The evidence before the court at the competency hearing plainly demonstrated that defendant’s severely limited memory and abstract-reasoning functions would most likely prevent him from following the proceedings, consulting with his attorney, or otherwise engaging in a defense against the charges. Indeed, defendant’s inability to participate in his defense became apparent in the ensuing proceedings, as evidenced by both his attorney’s and the district court’s fruitless efforts to inform of him of what was taking place. In my view, the court ignored defendant’s cognitive limitations, which were made apparent by the undisputed testimony of defendant’s expert, the concessions of the State’s expert, the court’s own colloquy with defendant, and defense counsel’s ongoing unsuccessful efforts to communicate effectively with defendant concerning a defense against the charges. Instead, the court relied almost exclusively on the opinion of a prosecution expert who focused

primarily on mental illness rather than mental retardation. This was an abuse of discretion.

In this matter, the trial court’s colloquy at the competency hearing with the defendant charged with lewd and lascivious conduct with a child was fully recounted in Justice Johnson’s dissenting opinion:

¶ 45. Following Dr. Weker’s testimony, the district court engaged defendant in a colloquy, presumably to assess his competence to stand trial. After defendant described his relationship with his attorney as “a friendship,” the colloquy went as follows: Q: Do you know if the charges against you are serious or not serious? A: Not serious. Q: Excuse me? A: Not serious. Q: Okay. Do you know what habitual offender is? A: No.

Q: Do you know what the Judge does? A: Find out if the person is guilty or not guilty.

Q: Do you know what a jury is? A: Where people have a decision to make to see who—if they’re not guilty or guilty.

Q: Do you know what a jury trial is? A: What’s that, sir? Q: A jury trial? A: No. I don’t.

Q: Have you ever had a jury trial? A: No, sir.

Q: Have you ever been in adult court before on other charges? A: I’m not sure if I have. Q: Okay, now you spent some time in jail; is that right? A: Yes. Q: And do you recall what that was for?

A: I’ve been in like for five years. Q: Hm-hmm.

A: Maxed out last year. Q: Mr. Beaudoin, do you know what it means to plead guilty? A: If you find a person if he’s guilty or not.

Q: Mr. Beaudoin, do you understand that a child said that you touched her, that you touched her private parts? A: I don’t remember, recall that, sir. Q: You don’t recall that? A: No, I was drinking that night. Q: But I don’t want you to tell me what you remember from that particular occasion, but do you know that’s why you’re in court? A: Yeah. Q: You understand that a little girl said that you touched her in her private parts?


A: I don’t remember that. Q: You don’t remember what? A: What happened. Q: What happened. Okay. Let’s see— we’ll consider the evidence closed. * * * ¶ 49. In its brief conclusions regarding defendant’s competence, the district court merely recited [prosecution expert] Dr. Weker’s opinion and stated that it found the opinion persuasive because it was consistent with recent prior competence evaluations of defendant. The court paid little heed to [defense expert] Dr. Stone’s conclusions or opinion, stating only that accommodations to defendant would ensure a fair trial. Nor did the court mention its colloquy with defendant, which plainly confirmed expert testimony


defendant’s limited cognitive abilities, including his limited capacity to retain information or reason abstractly. [Citation

omitted.] Indeed, the

colloquy unequivocally demonstrated defendant’s severely limited understanding of the proceedings against him. In my view, given the state of the evidence presented to the court at this juncture, the court abused its discretion by finding defendant competent to stand trial.

¶ 50. But even if the evidence were such that the district court could defer its competence determination until it had the opportunity to observe defendant interact with his attorney, defendant’s subsequent conduct and the assertions of defense counsel at pretrial proceedings amply demonstrated that the concerns expressed at the competence hearing were well-founded and that defendant was in fact incapable of consulting with his attorney and participating in his defense. At the outset of the March 2006 motion hearing in which the victim’s relatives and an investigating police officer testified concerning what the victim had told them about the alleged assault, defendant’s attorney expressed her continued belief that defendant was incompetent to stand trial. She stated that despite her persistent efforts to explain to defendant the purpose of that day’s hearing, he did not understand what was going on and he was unable to comprehend potential defense strategies and possible outcomes in the case. Nevertheless, the court (a different judge from the one who presided over the competence hearing) allowed the testimony after confirming that defendant knew who the witnesses were and then informing


Thoughts on the Impending Departure of Vermont’s First Woman Justice

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