'Independent' But Incompetent to Stand Trial

Prosecution Hopes Evaluation Will Change
For Woman Charged in Murder

By Elizabeth Dinan

The Herald Sunday, Sunday, October 16, 2005

[The following article is courtesy of The Herald Sunday and Seacoast Online.]

Helen Garland

Since she was found incompetent to stand trial on charges of murdering her elderly sister, Helen Garland lives in her own Hampton home, drives her own car and runs her own errands.

"That was part of our case in the first place," said Will Delker, a prosecutor for the attorney general's homicide division and one of a pair of attorneys who brought murder and assault charges against Garland. "She is able to function day-to-day on her own, so she's not that impaired."

Garland is one of two Seacoast defendants recently found incompetent to stand trial. The other, Joseph Wisniewski, had four Portsmouth District Court charges - including indecent exposure - dismissed after a court-ordered psychologist deemed him incompetent. His whereabouts are unknown, while his address has been cited as "homeless."

Competency is defined in narrow legal terms as a defendant having the ability to understand the charges against him or her and their ability to assist legal counsel with their defense.

What happens after an unfit finding, legal experts say, are as varied as the defendants.

The dementia defense

"Fully independent" is how Helen Garland described herself to court-appointed psychologist Gerrold Pollak during his July 20 and 21 evaluations of her mental competency, Pollak told a court during Garland's Aug. 31 competency hearing.

"She was actually a very easy person to evaluate," Pollak testified.

He also testified Garland was competent to stand trial.

Offering contrary opinion, forensic psychiatrist Dr. Albert Drukteninis testified he evaluated Garland at the Epping Police Department for three hours and determined she's suffering from cognitive disorder, "maybe early dementia," and that she was not competent to stand trial.

Drukteninis told the court Garland "understands the trial process," but has difficulty remembering details surrounding the events of her sister's murder. And he told the court he'd asked her if she understood the role of a jury.

"She said they're probably out to hang me," Drukteninis testified.

After studying both reports, Judge Patricia Coffey found Garland incompetent for trial.

Since then, Delker said, the court has adopted a number of his recommendations regarding restoration of Garland's competence. Those recommendations include Garland making regular visits to a physician and consideration for the use of "cognitive enhancing" medication, prescribed at the onset of dementia and reportedly delaying mental decline and restoring memory.

She is also court ordered to be examined by a neurologist and undergo an MRI exam. The results will be reviewed Dec. 21 in Rockingham County Superior Court.

Meanwhile, Garland continues living her self-described "fully independent" life.

Her public defender, Barbara Keshen, said while Garland functions wel* within her limited universe," that universe is shrinking. For example, she said, Garland could not drive herself to court because she couldn't always remember the way to Route 101.

Keshen, a former New Hampshire homicide prosecutor, said competence is "rarely raised," and that her representation of those who cannot afford lawyer's fees "intersects with mental illness a lot."

She also said she does not believe Garland can be restored to competence.

When asked to discuss incompetence findings in Rockingham County Superior Court, County Attorney Jim Reams expressed an understanding that Garland was hospitalized under court order. After learning that's not the case, Reams said, "I find that hard to reconcile with incompetence."

"That's part of the frustration of law enforcement, the issue of someone not being held accountable and to stand trial."

Unfit and acquit

According to Reams, during the past seven years only three Superior Court defendants entered incompetency defenses.

"It's fairly rare," he said, adding it's most commonly used in cases involving the most serious of criminal allegations.

"As a general rule, if a defendant is found incompetent to stand trial today, that doesn't mean they'll be incompetent tomorrow," he said. "If it's at all possible to bring them back to competence, there should be some plan."

That's Delker's plan, but in the case of Joseph Wisniewski, 37, he was found not only incompetent, but "unrestorable."

Wisniewski was arrested in Portsmouth near Gary's Beverage store on June 8 after a woman called police to report seeing him with his pants at his ankles and his hand moving beneath his boxer shorts. After police found him passed out and unresponsive, even after sounding the siren on a cruiser, he was charged with disorderly conduct, indecent exposure, criminal trespassing and having an open container.

Police reports say he soiled himself during the booking process.

While citing state law saying alcohol abuse is "to be treated as health and social problems rather than criminal transgressions," his public defender, Lisa Wolford, successfully argued before the district court that Wisniewski's competency was questionable. An evaluation was ordered, while prosecutor Keith Diaz convinced the court to also order an evaluation for dangerousness.

After serving nearly four months in the Rockingham County House of Corrections, a court-ordered psychiatrist found Wisniewski both incompetent and unrestorable. In light of those findings, Judge Sawako Gardner dismissed all four charges during an Oct. 4 hearing.

The judge declined to comment on the findings, while Wolford said "there are no generalities that can be made in the competency arena, and I think it is misleading to suggest otherwise."

She also reminds that Wisniewski's alleged crimes are not nearly as serious as Garland's, while citing possible outcomes for people like Wisniewski who are found incompetent, unrestorable and not dangerous.

"Can that former defendant go about business as usual? Absolutely," she said. "That is their right, subject of course to the law. The civil rights of nondangerous mentally ill adults are not somehow diminished because they are mentally ill and therefore we don't get to lock them up, or tell them what to do, or where to go, or how they should be helped just because they are a nuisance or because we think it's in their best interest."

Wolford suggests if local police have "reasonable suspicion" that a person is mentally ill, incapacitated by drugs or alcohol, or both, that officers take the person into protective custody rather than arrest and send him to jail. This, she advocates, could mean a night in jail to sober up, a ride to an emergency room or a treatment facility, or an evaluation for commitment to a state hospital.

"Don't forget, your average jail population has no sympathy for, or understanding of, mental illness," Wolford said. "Incarceration for a nonviolent schizophrenic, for example, most likely means being beaten up by other inmates who think that talking to oneself warrants assault. Further, lengthy incarceration isn't cheap."