In August 2014, Tyron Calhoun of Lewiston was charged with two counts of trafficking heroin and cocaine at an apartment where several overdoses had been reported. The charges were later dismissed.
In May 2015, he was charged with violating conditions of his release from jail when drug agents allegedly found drugs in his apartment. That charge was later dismissed.
A month later, he was charged with refusing to submit to arrest and charged again with violating the conditions of his release when he was spotted by police and bolted. Those charges were later dismissed.
Calhoun’s guilt or innocence of the charges was never determined. Guilt was not a factor, despite the fact that when drug agents in May 2015 conducted a bail check on him to make sure he wasn’t in possession of illegal drugs, he willingly identified for them the traces of cocaine and marijuana they found in his kitchen, according to court records.
The charges against Calhoun, now 23, were dismissed because, according to forensic psychologists, he lacked the ability to stand trial on those charges.
Prosecutors likened his mental capacity to that of an eight-year-old. For that reason, all drug charges brought against Calhoun over a two-year span were dismissed and he was back on the street.
Calhoun is believed to be part of a relatively small group of people in Maine who have fallen through a crack in the criminal justice system.
The members of that group…have a mental incapacity that prevents the state from taking them to trial for their actions in certain cases.
Yet they are not mentally compromised in a way that allows the state to commit them — as it might do with someone who is mentally ill — or require them to be supervised or even receive support services.
A Grey Area
So these individuals are left in the community to wander a gray area, where they often lack the reason and judgment to steer clear of breaking the law when left on their own. Once charges are dismissed, the courts have no authority to steer defendants toward supervision or services they might need to stay out of trouble.
In recent years, acting by themselves or under the influence of others, some of these defendants have been charged with crimes that pose serious public danger, including arson, domestic violence and drug trafficking. They also have presented risks to themselves.
Police and prosecutors are frustrated by the system, saying that because the courts find such defendants incompetent and free them, the public is at risk.
Those same officials, along with defense attorneys, judges and psychologists, also say the courts, the community and the state are failing to protect such defendants from themselves and the corrupting influences they encounter in jail and on the streets.
Former Androscoggin County Superior Court Justice Thomas Delahanty II, who serves as U.S. attorney for Maine, said that during his time on the bench he was often frustrated by the lack of options available to those defendants.
“There are, overall, in terms of numbers, not that many cases when you look at the entire caseload,” he said, ‘but just for the few that there are, they can be very disturbing.”
At the heart of the issue is the fact that defendants must be able to understand their legal situation. They must know, for instance, whether they would benefit from accepting a plea offer from prosecutors or testifying at trial.
They also have to understand what’s happening to them in court.
“It comes down to their ability to work with their attorney in their own defense,” said Dr. Ann LeBlanc, director of the Maine Forensic Service, which oversees court-ordered competency evaluations.
“Some people aren’t even able to recognize that there’s a decision to be made,” LeBlanc said. “Other people can identify the decisions, identify information that they need, weigh alternatives and consequences and use abstract reasoning to apply that to their own situation.”
When competency is in question, the state orders an evaluation. If defendants are considered to be incompetent to stand trial, two questions are asked: Is the defendant a risk to himself or others, and does the defendant have a diagnosable mental illness?
If the answer to both questions is yes, a defendant will get services and treatment at the Department of Health and Human Services’ Riverview Psychiatric Center in Augusta.
If the answer to the second question is no — they don’t have a diagnosable mental illness — under the state’s current system, the judge in the case will dismiss the charges and the commissioner at DHHS must release the defendant from custody.
Calhoun and others in his situation were not identified as having mental illness — something for which they might be treated and recover their ability to stand trial. Rather, Calhoun was assessed to have a mental incapacity that likely wouldn’t change.
Complicating the situation: Because mental evaluations are not an exact science, psychologists sometimes disagree as to whether a person is competent to stand trial.
Lewiston defense attorney Henry Griffin represented a defendant who has been found both competent and not competent to stand trial on various criminal charges at various times, depending on the psychologist and judge.
David Glenn, 39, formerly of Lewiston, was deemed incompetent to stand trial in 2009, before Griffin had him as a client.
“He’s out there making decisions and being charged with intentional acts in these cases,” Griffin said, “and I’m like, ‘You gotta be kidding me. This guy’s been previously determined to be incompetent.’ I look at those prior evaluations and I say: ‘What’s changed? Why’s he better?’
“Nothing’s changed. What’s changed is the doctor. You’re going to get different results from different doctors on different days.”
Authorities say these reasons and more explain why Calhoun and Bryan Wood, who was charged with setting three fires in downtown Lewiston in 2013, were allowed to return to the community despite prosecutors showing probable cause that they had committed the crimes with which they were charged.
Both were found incompetent to stand trial; yet neither was determined to have a mental illness, something that would have prompted mandatory treatment and, likely, supervision.
Too often, said Andrew Matulis, an assistant district attorney for Androscoggin County who prosecuted the Calhoun and Wood cases, such cases involve someone who is acting on their own — or someone else’s — worst criminal instincts, yet is immune from prosecution.
“Someone who functions on the level of an eight-year-old, (a drug dealer) could certainly get them to a point where they would understand the simple transactions of drug deals, but they would never be able to get to a point where they would understand plea bargaining to the extent that they would be able to explain a split sentence and probation conditions and how it all works,” Matulis said.
In 2013, Wood, then a 23-year-old living in Lewiston, was charged with three counts of arson stemming from fires he allegedly set in three downtown Lewiston apartment buildings — one occupied, the other two, vacant.
Wood’s co-defendant, Brian Morin, whose competence to stand trial had been called into question, eventually agreed to a plea offer and was sentenced to 25 years in prison with 20 years suspended, plus 12 years of probation.
All three arson charges against Wood were dropped more than three months after his arrest when Kennedy determined he was too disabled intellectually to stand trial. He had been jailed during that time.
In addition to the obvious public safety risk of letting dangerous defendants back into the community, Matulis, like defense attorneys interviewed for this story, expressed concern that adults with very low IQs are vulnerable to the criminal element.
“They are the perfect individuals for someone who wanted to use them to commit a crime,” Matulis said.
Ultimately, taking away mentally incapacitated defendants’ rights to live on their own or associate with whomever they please involves the profound and sticky issue of constitutional freedom: At what point do you step in and take this freedom away from an adult who is not considered mentally ill, but does not have the capacity to always make good choices, and may possibly make harmful ones?
Partly for that reason, Maine courts lack the authority to order a defendant, whose charges were dropped because of mental incapacity, to seek social services the judge and attorneys believe would benefit the defendant in the long run.
That same conflict leaves defense attorneys wondering about where their duties to their clients’ end, beyond legal representation.
“From a defense point of view, it’s really tough because we’re arguing (to the court), ‘You’ve got no jurisdiction (because the defendant has been deemed incompetent). You’ve got to let my people go,'” attorney Carey said. “But in reality, I want these people to be successful in life, and I don’t want to have to have them as my client three times in a row.”
Between 2002 and 2013, David Glenn, now 39, of Auburn, was charged and convicted of domestic violence assault, criminal trespass, criminal mischief, violating a protective order and criminal threatening with a dangerous weapon. He was also charged 10 times during that period with violating conditions of release from jail and convicted seven of those times.
But in four of his criminal cases — one in 2008 and three in 2009 — all charges were dismissed after Glenn was found not competent to stand trial because of intellectual disability. Those charges included criminal mischief, domestic violence assault, probation violation and violating condition of release.
The District Attorney’s Office wrote in its dismissal letter in August 2009 that the results of an examination by the State Forensic Service are that “the defendant does not appear to understand charges against him, is childlike in his behavior and thinking, and lacks the necessary capacities to proceed with trial. It does not appear that the defendant’s condition is likely to change.”
There are no efforts underway to fill the void into which Glenn, Wood, Calhoun, and others like them have fallen, again and again.
And, seemingly, there are none on the horizon.
“There’s a small but sometimes colorful number of people who fall into that group,” LeBlanc said. “In those situations, oftentimes the judge, the prosecutor and the defense all would like to find something to do, but in our system, in our society, it’s hard to know what that would be.
“I don’t know that anyone really knows what to do,” she added. “Many, many people would like to do something, but we haven’t been able to figure out what it is. . . . What are we willing to do socially in our society that we would find acceptable that would be helpful for these individuals as well as for our communities at large?”
Maine Rep. Barry Hobbins, D-Saco, who has served on the Legislature’s Judiciary Committee for 16 of his 26 years as a state lawmaker, said the issue of competency is one that has surfaced many times in the Legislature but never fully resolved.
“It’s one of those issues that sometimes falls between the cracks,” Hobbins said, not fitting squarely into any single legislative committee’s purview. “It’s one of those areas that, quite frankly, should possibly be addressed in a hybrid scenario of representatives on different committees of jurisdiction.”
He said he could envision a work group composed of lawmakers from various legislative committees, including judiciary, health and human services and criminal justice, as well as members of stakeholder and advocacy groups and medical and legal experts.
“I think that the time has come to consider this as one of those areas where you might want to consider a blue-ribbon commission approach,” he said. “We’ve done it in the past very successfully in many areas.”
Christopher Williams is a staff writer with the (Maine) SunJournal and a 2015-2016 John Jay/Tow Foundation Juvenile Justice Reporting Fellow. This is an abridged version of a story published this month, and produced as part of his fellowship project. The full article is available here. Readers’ comments are welcome.