Jose Veguilla, an elderly father of five grown children, was already in his 80s when he developed severe dementia after sustaining a brain injury in a fall. Veguilla was placed in a care home, where he was displaying aggression and experiencing other problems before he, eventually and devastatingly, killed his roommate in the facility – bludgeoning him with a walker. Veguilla’s violent act was the first event in the story of his murder case. Only later, however, did Veguilla’s mental state become an issue that impacted the court. When Veguilla first appeared in court to hear the judge read the charges against him, he clearly had no understanding of the information being provided to him (figure 6.1). His dementia prevented him from knowing even what day it was, or what year. He had no memory of what he had done. “‘You could tell he had no clue what was going on,’ said his son, Henry Veguilla. ‘He was smiling for the cameras like he was at a birthday party’” (Thompson, 2023).

Figure 6.1 is a news clip reporting the charges against Jose Veguilla. Though the focus is already on who is responsible for his murderous acts, given his severe dementia, the first barrier to resolving this case would be Veguilla’s competence to proceed.

As in the Veguilla case, early events in a criminal case typically include appearance before a judge as well as meeting with a defense attorney. If, like Jose Veguilla, the accused person has significant impairment at this point in time, the question will arise: is this person mentally able, or competent, to engage in the criminal court process, where they are charged with the very serious crime of murder? Note that this question of competence is entirely separate from the issue (which we will discuss later) of whether or not a mental disorder played any role at the time of the murder. In other words, the only issue at this point in Veguilla’s case (or any similar case) is whether the defendant’s mental disorder prevents him from adequately participating in the court proceedings – not whether his mental disorder caused him to kill the victim.

The issue of whether an accused person is mentally able to engage in the criminal court process is referred to in varying terms depending upon the legal language of a particular jurisdiction. Many relevant statutes use the terms “fitness” or “competence” to stand trial. Competence (or whatever alternative term a state uses) means that a person has the ability to understand what is happening and to participate in their own defense. In Oregon, competence is often referred to as the ability to aid and assist, a phrase that focuses on the person’s ability to work with their defense attorney as a key element of competence.

6.2.1 Requirement of Competence

Competence, or ability to aid and assist, looks at the accused person’s mental state and abilities at the time they are engaging with their attorney or with the court – not at the time of the offending conduct. Mental state or impairment at the time of the offending conduct may be considered later, possibly in defense of the person’s actions. First, however, the person must be competent to work with their attorney and the court. If a person is not competent, the criminal proceedings against them must stop. The proceedings usually just pause until the person is judged competent to move forward, but sometimes proceedings may pause repeatedly or even stop completely.

The requirement that a person be competent is an ongoing demand throughout the time a person is involved with the courts. Often, questions about competence arise early, when the person first appears in court or confers with an attorney, as in the example of Jose Veguilla. A newly appointed defense attorney who suspects their client may not be competent faces an ethical dilemma: defense attorneys are supposed to zealously advocate as their client directs, not reveal their secrets. However, if there is a clear lack of competence, the attorney is probably ethically obliged to report this concern to the court. Whether raised by an attorney or the court itself, this early recognition of a competency question is often the first step in the procedures described in this chapter.

Sometimes, however, competency issues can become apparent later, even in the midst of a trial. Regardless, the accused person needs to be competent to participate throughout their court proceedings. Thus, it is never too late – and always required – for competency issues to be raised or considered.

6.2.2 Competence as a Constitutional Issue

Why is competence so important? And why does lack of competence demand that a criminal proceeding be immediately halted?

The protection of individual rights is central to our ideas of fairness in the criminal justice system. We presume a person is innocent, for example, until they have been proven guilty beyond a reasonable doubt. We ensure that a person knows the charges against them; we protect them against self-incrimination; and we provide them with an attorney. These rights are guaranteed by the U.S. Constitution (specifically the Fifth and Sixth Amendments as applied to the states by the Fourteenth Amendment). These constitutional amendments are intended to ensure that every single person in the criminal justice system is governed by the same fair rules and procedures – including (and perhaps most especially) those vulnerable individuals who experience mental illness or disability. The idea of fairness based on guaranteed procedures is what is meant by due process. If you are unfamiliar with the language of the Fifth  [Website], Sixth [Website], and Fourteenth Amendments [Website] to the Constitution, use these links to take a look at the language.

When a person is not competent, or “fit” to proceed with trial, their Constitutional rights may not be protected, and the fairness of the proceeding is endangered. The conviction of a person who does not understand the charges against them, or cannot appreciate the gravity of their predicament as an accused person, or who cannot work with a defense attorney, thus violates the Constitution – specifically the constitutional guarantees of due process.

Though some criminal procedures can occasionally be bypassed or violated without significant consequence, the competence of the defendant is not one of those; it always matters whether a defendant is fit to proceed. In 1966, the Supreme Court considered the case of Theodore Robinson, who had killed his wife. Robinson was tried and convicted for the murder in the Illinois court system. Despite serious questions about Robinson’s mental capacity, including witness testimony about a lifetime of mental disorders after Robinson was hit in the head with a brick as a small child, no hearing was held to determine his competence during the criminal proceedings. The Supreme Court overturned Robinson’s conviction, saying specifically that competence had to be considered at the time competency questions were raised and prior to proceeding with the case – even if the defendant was not asking for such a hearing. Pate v. Robinson, 383 U.S. 375 (1966). Based on Robinson, it is clear that competence is a Constitutional issue that cannot be bypassed – even by the accused person.

Though a court must avoid proceeding against a mentally incompetent person, there are also competing concerns. A court cannot take lightly the importance of moving forward with a case. The Sixth Amendment to the Constitution guarantees, for the sake of the accused, that a criminal trial must occur without unnecessary delay. This is often called the accused’s right to a “speedy” trial. While criminal trials in the United States are rarely “speedy” in our common understanding of that word, the system should not tolerate unnecessary delays.

6.2.3 Legal Standard for Competence

Competence to proceed as a defendant in a criminal case is a very particular requirement that is not necessarily the same as competence to do other things. A person who is charged with murder may have a diagnosis of a serious mental disorder, and be impaired in certain areas, but still be reasonably fit to proceed in court. In order for the parties in a case to question competence, and for the court to decide whether a person is competent, there must be a shared understanding of what that term means in this context. This shared understanding is called a legal standard – a guidance or definition that the courts follow, so every judge is not making up their own definition of what makes a defendant competent.

The United States Supreme Court provided guidance, or a legal standard, as to the meaning of competence in Dusky v. United States, 362 U.S. 402 (1960)(figure 6.2). In Dusky the Court ruled that it is not enough for a defendant simply to know where they are and what happened – what the Dusky court called “oriented to time and place” with “some recollection of events. ” Rather the accused person must have a more meaningful understanding of their situation. Specifically, the Dusky standard requires that the defendant should (1) be able to consult with their lawyer “with a reasonable degree of rational understanding,” and (2) have a “rational as well as factual understanding of the proceedings” against them.

Figure 6.2 is a photo of the Supreme Court in 1960, led by Chief Justice Earl Warren (center), who decided the Dusky case. The court remained all-white until 1967 when Justice Thurgood Marshall was appointed to the Court, and all-male until 1981, when Justice Sandra Day O’Connor joined the Court. Attrib – retrieved from https://juvenilecompetency.virginia.edu/legal-precedents/dusky-v-united-states, fair use

There have been many legal discussions about the meaning and significance of the repeated word “rational” in the Dusky standard. A common-sense understanding is that the Court intended defendants to be the opposite of “irrational,” meaning that they have a clear and unconfused grip on the situation, with the ability to consider options and make reasoned decisions based on the facts (Felthous, 2011; Maroney, 2006). Returning to our recurring example of Jose Veguilla, he would be expected to be found competent under Dusky if he understood and could discuss the basic landscape of his case: that he was charged with killing his roommate with his walker; that the prosecution had witnesses to his conduct; and that he was facing severe punishment if convicted. In order to be deemed competent, Veguilla (or any other defendant) would need to further understand that he might receive a lighter sentence for admitting the crime in a plea bargain, but that he has the right to go to trial to contest the charges. A competent defendant would be able to weigh the pros and cons of alternative courses of action, in discussion with an attorney.

Figure 6.3 is an image showing the various terms associated with the subjective standard of “rationality” encompassed in the Dusky standard for competence.

All state and federal criminal courts use a version of the Dusky standard to define competence. Though jurisdictions may use varying language, they must follow a standard that at a minimum complies with the Constitution as interpreted by Dusky. In Oregon, for example, competence is defined by statute that largely mirrors the Dusky language: a defendant is incompetent (“incapacitated”) for purposes of a criminal trial if, due to a mental disorder, the defendant cannot understand the proceedings, cannot “assist and cooperate with” their attorney, or cannot “participate in” their defense. Or. Rev. Stat. § 161.360(2).

6.2.4 Competence to Stand Trial: Licenses and Attributions

“Competence to Stand Trial” by Anne Nichol is licensed under CC BY 4.0.

Figure 6.1 Prosecutors: 83-Year-Old Used Walker To Kill Nursing Home Roommate In Haverhill by CBS Boston is licensed under the Standard YouTube License.

Figure 6.2 Photo via Juvenile Competency Attainment Research & Development Center, UVA, is included under fair use.

Figure 6.3. “Rational word cloud” by Anne Nichol and Michaela Willi Hooper is licensed under CC BY 4.0.