Anglo-American jurisprudence has long recognized that a defendant accused of a crime must be mentally competent in order to stand trial. All states, and the federal government, recognize that doctrine, and have procedures in place to assure the competency of an accused.
In our federal courts that procedure is found in 18 USC 4241, which provides, “At any time after the commencement of a prosecution for an offense …the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant.”
‘Competency of the defendant’ is not the same as ‘insanity at the time of an offense’. Insanity is a determination, by a jury after a trial, that at the time the charged crime was committed, the defendant was ‘legally insane’ and is therefore “Not Guilty by Reason of Insanity” — which is separate and distinct from competence to stand trial.
A defendant may be both incompetent to stand trial, and insane at the time of the offense; or may be either one but not the other; or may be neither. Whereas the question of legal insanity is for a jury to decide, the question of incompetence to even stand trial is decided by a judge.
A full explanation of ‘legal’ insanity — which is different than ‘medical’ (‘clinical’) insanity is well beyond the scope of this column. Just understand that what I’m discussing here has nothing whatsoever to do with insanity — either legal or clinical.
The United States Supreme Court has declared the standard to determine if an accused is competent to stand trial.
The test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.
Of particular import to the subject of this column is the statutory provision that “the attorney for the government may file a motion” to determine the competency of an accused. That means a prosecutor who has reason to believe a defendant is not competent may ask a court to appoint mental health experts to make that determination.
While the statute says a prosecutor “may” file such a motion, prosecutorial ethics don’t afford such discretion. Based on my 30+ years as a prosecutor, I’m of the opinion that any prosecutor who suspects a defendant is incompetent to proceed, and who fails to assure competency before proceeding, is acting unethically.
Which brings us to former President Joe Biden, and Robert Hur, the Special Prosecutor appointed to investigate Biden’s improper handling of classified documents.
Donald and Melania Trump’s home was searched by the FBI during an investigation of alleged criminal mishandling of classified documents. Donald Trump was indicted for that alleged crime. That indictment was subsequently dismissed by a federal judge because it was illegally obtained. Since the search warrant for Donald and Melania’s home was obtained under the same improper authority, it too was illegal — as well as for other reasons.
The investigation of Biden’s improper handling of classified documents, and search which located some such documents in his home, did not suffer from the same infirmity. They were completely legal. Yet, unlike Donald Trump, Joe Biden was never indicted.
Though it’s seriously debatable whether what Trump did with the documents was a crime, there is no question that Biden’s mishandling of classified document’s was a criminal act, at least according to the legal theory used to indict Trump. But that debate is not the topic here.
This is about President Joe Biden’s competence to stand trial. Based on what I have observed in videos of his public appearances, and of the newly released recording of his interview with Special Prosecutor Hur, there is no question to me that Biden was not competent to stand trial if he had been indicted.
Unlike the special prosecutor who illegally indicted Trump, Robert Hur apparently adheres to prosecutorial ethics. Had I been Hur, I’d have reached the same conclusion he did. Biden’s mental decline was such that he could not stand trial.
The standard for competency to stand trial in federal court is set forth in Section 4241. An accused is incompetent “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.”
Listening to the 5-hour recording of the interview with Hur, that standard is clearly met.
Under the federal statute, Hur could not seek a judicial competency determination at that point in the investigation. But because, as an ethical prosecutor, no doubt knowing he would be obligated to do so after Biden was indicted, Hur simply determined not to even seek an indictment. That, too, was an ethically correct decision.
Because only a judge, not the prosecutor, can make a determination of ‘legal’ competence (and then only after a hearing) Hur could not simply declare Biden incompetent despite the evidence. So Hur phrased his conclusion in terms of how a jury would likely perceive Biden’s cognizance:
It would be difficult to convince a jury that they should convict him … of a serious felony that requires a mental state of willfulness.
The practical effect is the same as a judicial finding of incompetence to stand trial. Again, I would have done the same as a prosecutor, to save the public the expense of the required mental examinations.
Hur incurred criticism from both sides of the political spectrum for his conclusion. Biden’s supporters claimed it was erroneous.
Biden opponents were equally critical of Hur for declining to prosecute.
Hur deserves credit for doing the right thing without being influenced by partisan politics. He is a true prosecutor.
That having been said, I ask: how was Biden possibly able to carry out the duties of President of the United States?
Read Part Two, tomorrow…