Bonkers?

Yesterday I appeared on behalf of JA. JA is bonkers and was declared incompetent a few weeks ago.

At yesterday's hearing the judge reviewed a report in which County mental health denied JA outpatient treatment to restore him to competency on the grounds that his alleged crime---"criminal threats"---is a crime of violence mandating inpatient treatment in a locked facility. (What JA actually did, or is accused of actually doing is irrelevant at this point. Summary denial of outpatient treatment depends on the offense charged, not the conduct alleged in the police reports.)

The judge announced that he agreed with the county. It would have been easy for me to agree, too. JA would be sent off to a secure facilty. I would never again have to sit next to him while he asks over and over "am I going home now?" Instead, I pointed out a linguistic distinction which might well send the bonkers JA home. The statute at issue (California Penal Code section 1601) precludes outpatient treatment for any incompetent person charged with a crime that "poses a threat of serious bodily harm." JA was charged with making a criminal threat (in violation of California Penal Code section 422). To make a criminal threat, however, it is not necessary for the defendant to have the intent to carry through with the threat, thus the victim need never actually be placed under any threat of physical harm. Making a threat vs. posing a threat.

The judge requested written briefs on the issue and a hearing was set in two weeks. I went back to the office and cited to Webster's.

So, my question is this . . .

All the time, criminal defense attorneys are made to feel bad for "putting criminals back on the streets," usually by taking unfair advantage of a "loophole" or a "technicality." And we fire back, "it's not a loophole, it's the Constitution!"

What JA did was probably a dangerous criminal act. If JA goes back home, it will be because the intent to carry out a threat is not a required element of the crime of criminal threats, even though it is highly likely that 90% or more of all those charged with criminal threats actually would carry out the threat. The only way we will know if JA is among that 90% is by letting him out.

If JA goes home and does what he said he was going to do, may we take comfort in the fact that the rights we share with JA were vigorously protected?