Who should prove an adult defendant’s competency to stand trial?

That question was at the center of an appeal heard Wednesday in a Belgrade sex assault case that should see the state’s top court rule definitively on that and whether it should be proved by a preponderance of the evidence.

The case involves Travis R. Gerrier, 24, of Belgrade, who was convicted of sexually assaulting an 11-year-old girl in a portable outhouse in North Belgrade.

Gerrier had entered conditional guilty pleas Aug. 21, 2017, to charges of gross sexual assault, unlawful sexual contact and furnishing liquor to a minor in connection with the events the night of June 3-4, 2015. The guilty pleas were conditional on his appeal of earlier rulings where he was found competent to stand trial and where a judge refused to suppress a confession Gerrier made to a state police detective that night.

He was sentenced to seven years behind bars and is serving that at the Maine State Prison. That term is to be followed by 20 years of supervised release.

An appeal in the case was first argued at the Maine Supreme Judicial Court, sitting as the Law Court, in July. Associate Supreme Court Justice Jeffrey Hjelm had asked, “Is it the state’s burden to prove that a defendant is competent, or is it the defendant’s burden to prove that he is not competent?” He said the answer would affect the Law Court’s standard of review.

Instead of issuing a ruling on the appeal, the Law Court asked the attorneys to file supplemental briefs on the competency issue and scheduled a second oral argument session.

At Wednesday’s hearing at the Cumberland County Courthouse, Chief Justice Leigh Saufley told Gerrier’s attorney Harold “Hank” Hainke, that the question is “Once issue of competency has been raised, who should have the burden of demonstrating either competence or incompetence? At that phase, is it the state who has the burden, and is the burden of proof clear and convincing evidence?”

Hainke told her the state should have the burden of proving competence by a preponderance of the evidence.

In a supplemental brief filed in the case, Assistant Attorney General Leanne Robbin insists that the defense has the burden to prove that the defendant is competent to stand trial. She cites rulings from a number of different cases to back up her statements that “All adults should be presumed competent to participate in the criminal justice system, whether as a defendant or witness, unless there is evidence to the contrary,” and “Placing the burden on the defendant to prove competence by a preponderance of the evidence comports with concepts of fundamental fairness and due process.”

Robbin says the defense has access to records and witnesses, including family and treating professionals, and “direct information about the defendant’s ability to communicate with counsel.”

She also notes, “Both Maine’s statute on the Mental Examination of Persons Accused of Crime and its legislative history are silent on the burden of proof required to determine a defendant’s competence.”

Robbin said the Law Court set the criteria for determining competence: “Competence to stand trial sufficient to meet the requirements of due process means that the accused is capable of understanding the nature and object of the charges and proceedings against him, of comprehending his own condition in reference thereto, and of conducting in cooperation with his counsel his defense in a rational and reasonable manner.”

On Wednesday, Robbin also cited the Maine Juvenile Code, which specifies who has the burden of proof depending on age: “The burden of proof of competence is on the state if the juvenile is less than 14 years of age at the time the issue of competence is raised. If the juvenile is at least 14 years of age at the time the issue of competence is raised, the burden of proof is on the juvenile. In the event the state has the burden of proof, it must show by a preponderance of the evidence that the juvenile is competent to proceed. In the event the juvenile has the burden of proof, the juvenile must show by a preponderance of the evidence that the juvenile is not competent to proceed.”

“It would make no sense to provide a different standard,” Robbin argued.

She said the issue of competency arose late in Gerrier’s case and only after he had been scheduled to plead to lesser charges with a recommended sentence of nine months in prison. On Aug. 11, 2016, after learning he would be required to register as a lifetime offender under the state’s Sex Offender Registration and Notification Act, Gerrier acted up in a courtroom at the Capital Judicial Center — kicking, screaming and cursing at officers — and had to be forcefully removed. The hearing was canceled and the state withdrew the plea offer.

Hainke’s supplemental brief argues that while it is generally fair to presume defendants are competent to stand trial, “once the court receives a report by a psychiatrist or psychologist that the defendant is incompetent to stand trial, the burden should shift to the state to prove that the defendant is competent by a preponderance of evidence.”

He cited rulings in New York, Massachusetts and Minnesota that say the state has the burden to prove a defendant is competent to stand trial.

“It is grossly unjust for the citizens of the State of Maine, who suffer a mental disease or defect, who are presumed innocent when charged with a crime, to be required to bear the burden of proving their competence to stand trial, after they have been found to be incompetent to stand trial by a psychiatrist or a psychologist,” he wrote.

Hainke also wrote in his brief that Gerrier is incapable of understanding the charges and cooperating with counsel.

“This is made clear by his insistence that he could avoid punishment if the victim explained his truth, which was that she consented to the acts charged,” Hainke wrote. “Mr. Gerrier is not capable of understanding the nature and object of the charges against him, and believes that a jury could be made up of people who care about him.”

Hainke cited an evaluation by a psychologist who rated Gerrier’s intellectural abilitiy as typical of an 11- or 12-year-old.

Hainke concluded, “The (trial) court should have made a finding of incompetent to stand trial and ordered Mr. Gerrier to a psychiatric hospital to see if his competency could be restored.”

Gerrier was found competent to stand trial in December 2016 by Justice Robert Mullen, who wrote, that he had “no concerns that the Defendant in this case is competent to stand trial in this matter, having demonstrated an ability, although admittedly imperfect, to understand the nature and object of the charges against him, comprehending his own condition in reference thereto, and cooperating with counsel to conduct a defense in a rational and reasonable manner.”

Separately, Judge Evert Fowle judge refused to suppress a confession Gerrier made to a state police detective shortly after Gerrier was found on the floor of the outhouse.

Questions of competence have arisen in other case as well, including that of Leroy Smith III of Gardiner, who was under court order to take prescribed medication to restore his competency to stand trial on charges of killing and dismembering his father, and in the case of Eric L. Bard of Sidney who was accused of sexually assaulting a 4-year-old girl he was babysitting and recording it.

Smith eventually was found competent and pleaded guilty but not criminally responsible to manslaughter. He was committed to Riverview Psychiatric Center.

Bard’s conviction for child rape was overturned by the Law Court on the basis that he was deprived of a fair trial. A new trial was ordered, and he is scheduled for a two-day competency hearing at the Capital Judicial Center in late November.

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