A Question of Competence

Dr. Lishan Wang doesn’t want to be forced to take medication. His mind is clear. He is prepared to represent himself at trial against the charge of murder. He wrote all this and more in a recent letter to the New Haven Register. He complains that the folks at the Whiting Forensic Institute in Middletown, where he is being held, are abusing him.

The good doctor was arrested on April 26, 2010, on charges he murdered a colleague, Dr. Vajinder Toor, in Branford that very day. He’s fought for, and won, the right to represent himself in the criminal court. And he’s littered the court file with motions that make little or no sense.

It was hardly surprising the Superior Court Judge Thomas O’Keefe found Dr. Wang incompetent to stand trial at a hearing a couple of weeks ago. The judge held open the possibility that Dr. Wang could be forced to take medication to restore him to competency.

Dr. Wang objects to be being medicated against his will. “I need help from the outside world to fight this injustice of ‘trial with medication’ and ‘mental torture,’” he writes. “I just want the case to move forward without this ‘competency nonsense,’” he intones.

“The illegal medication will compromise my mental status and my capability to testify or cross-examine the witnesses at the trial,” he continues.

As a matter of due process and fundamental fairness, individuals who either do no understand the nature of the proceedings against them or are incapable of assisting in their own defense do not stand trial. The reason for this is that the person accused lacks the ability to comprehend what is happening to him. A quasi-moral dimension to the law teaches respect for persons — at a minimum, a defendant must be able to meaningfully participate in trial.

Thus, a person found incompetent can be medicated back to sanity. It’s a counterintuitive notion, really: we invade a person’s physical autonomy, forcing medication on them, so that they can then be tried for a crime.

But any criminal lawyer can tell you story after story of clients who insisted on a reckless, even self-destructive, course of conduct, yet no one ever questioned their competence.

Criminal defense lawyers develop a close, even sublime, acquaintance with the irrational. Lawyers advise; clients decide. It helps to remember this simple truth: You can lead a client to the courthouse, but you can’t make him think. You just can’t.

I can’t help but wonder whether Dr. Wang is getting privileged treatment because of his status as a doctor. Criminal practitioners know a truth rarely spoken outside the bar: many of the folks standing accused of crimes have ideas so unusual, typically about themselves and their relationship to the rest of the world, as to be bizarre. The community of reasonable minds is a limited access group.

Dr. Wang’s ideas, though unusual, hardly mark him as an outlier. Walk the corridors of any criminal court in one of the state’s larger cities — New Haven, Bridgeport, Hartford, Stamford, New London — and you will see plenty of folks with ideas about themselves and their place in the world that make little sense.

But these folks are routinely found to be competent.

The standard for competency is perishingly low.

A typical competency examination asks whether a defendant understands the different roles in a courtroom. Yes, an examinee might answer: the judge enforces the rules; the prosecutor tries to convict me; my lawyer tries to defend me. Does the defendant understand the charges against him? Yes, the state accuses me of shooting someone to death.

Dr. Wang gets all this, or so it seems: were he some impecunious soul living off the radar, odds are he would not be sitting at Whiting. More likely, he’d have been whisked off to trial, convicted, and then to jail, where many mentally ill inmates languish without adequate care.

Lawyers involved in a case have the responsibility to make a motion for a competency exam when they have good reason to doubt that a defendant is competent. But it is a treacherous thing to do. Make a motion challenging your client’s competence, and lose that motion, and the attorney-client relationship is forever transformed, and colored by suspicion.

What about clients who are just plain odd? How weird must a person be to be incompetent?

One of my favorite film scenes comes from the “Wizard of Oz.” Dorothy has just tossed a pail of water onto the Wicked Witch of the West. As the witch dissolves, she moans: “What a world! What a world!” I hear the witch’s lament more times that I care to admit as I listen to bizarre, irrational, and sometimes nonsensical explanations of conduct, or excuses for breaking the law, or justifications for a bad act.

I can’t fathom what Dr. Wang thinks his defense is. He may not have one. It may be that he will never the share the place the rest of us call normal. He may always believe in some massive conspiracy of malefactors out to get him, and him alone.

Perhaps he truly is incompetent, but, if he is, so are all sorts of other people forced to trial despite their bizarre ideas and pig-headed determination to star in a self-destructive drama of their own creation.

Whether Dr. Wang ever goes to trial is not the point. The point is why are so many other people as odd or odder than the good doctor going to trial? Why do we prosecute the ill and call it justice?

“What a world,” the witch cries out. What a world, indeed.


GM, Volkswagen -- Criminals Without Consequences

There’s a rough divide among criminal defense lawyers, distinguishing those who defend so-called white-collar cases from those who defend other crimes, such as murder, rape, robbery and child abuse. White collar cases, taking their name from the pressed and starched shirts of the power suite elite who are accused of committing them, are typically financial in nature. 

Lawyers walking on the wild side accuse their white collar colleagues of living in a fantasy world, a world without real consequences, where people can buy their way out of trouble with the law.

Oh, there are exceptions, of course. Bernie Madoff’s 150-year sentence for his fraudulent investment schemes made a statement of sorts, although I am not sure just how meaningful it is to send an old man to such a prison term. Do the feds plan on reviving him when he dies, to assure that he serves his sentence?

In the Grey Poupon world of white collar defendants, prison time is something other people do. F. Scott Fitzgerald got it right: “The rich are different from you and me.”

Two white collar cases recently caused a stir:

General Motors agreed to pay a $900 million fine for hiding a defect in ignition switches resulting in the death of 174 people. The sum represents one-third of the profit the automaker made last year, and is a fraction of the firm’s gross revenue for the year.

Then Volkswagen admitted selling some 11 million diesel cars with software specifically designed to scam regulators about the cars’ performance on auto emissions tests. The German auto giant has agreed to set aside some $7.3 billion — half a year’s profit — to “fix” the cars.

Not one person has been arrested for these crimes. Not one.

Let me see if I get this right. General Motors and its employees hid a defect in their product that led to the death of 174 people. Volkswagen jimmied computer software to hide from regulators that 11 million of its cars were pollution machines. And not one person is even charged with a crime?

I count among my friends lawyers who have been charged, convicted, imprisoned and are now enduring supervised release for mortgage fraud arising in the heyday of mortgage fever, when banks didn’t really care who got mortgages so long as brokers got their fees, and funky mortgages could be resold to the unwary on Wall Street. One fellow made all of $20,000 in fees, before the feds ruined his life.

But GM executives can cover up defects in products they put on the market, products that killed people, and walk away by waving a checkbook? And Volkswagen can engage in an elaborate scam resulting in more damage to the air we breathe with what amounts to a dent in its profit margin?

It is results like this that boil the blood.

Few folks understand just how easy it is to commit mail fraud or wire fraud, two of the crown jewels of the federal penal code. Drop a form in the mail, or press the send button on your computer, and you are engaged in “interstate commerce,” sending communications across state lines, a defining characteristic of many federal offenses. (Fact: Every Internet communication in Connecticut moves through interstate commerce. The Web is such that servers bounce messages, even messages between next-door neighbors, across state lines.)

If you deliberately misstate an important fact, what lawyers call a “material fact,” or a fact that matters, in such a communication, you could be guilty of fraud, of attempting to deceive another. What’s more, even if you had no intent to deceive, but you avoid making any effort to assure that what you assert is true, you could be guilty on the theory that you “consciously avoided” engaging in deceit. The federal criminal code is web designed to benefit the spider.

Harvey Silverglate, a Massachusetts lawyer and Boston newspaper columnist, once wrote a brilliant book entitled Three Felonies a Day: How the Feds Target the Innocent. His point was simple: There so many ways in which federal law can be violated that prosecutors can charge almost anyone with a crime. When everyone violates the law, the feds get to choose whom to pursue, and often for reasons other than those stated in an indictment.

Never are the choices federal prosecutors make about who goes to prison, and who remains free, more apparent than in the Volkswagen and GM cases. 

Just how auto executives walk away from the death of customers or from computer crimes designed to hide the truth from regulators is something I will never understand. A lawyer fakes a loan document — bam! Prison. A carmaker kills a customer or fouls the air we breathe? Oh, well!

I’ve noticed in recent years a tendency among federal judges at sentencing hearings to talk about how important criminal sentences are as a means of promoting respect for the law. Just how are we to respect a law that says of corporate crimes: “money talks so criminals walk”?

One justification offered for the failure to seek harsher penalties against corporations is that such measures could hurt us all by hobbling the hand that feeds us. Really? Try telling a judge sometime about how much a father’s absence will define the life of the children he leaves behind as he is sent to prison. When little people and their loved ones suffer, it’s just collateral damage. But all hail the corporation!

Don’t get me wrong, I’m no fan of prisons, and think that our quick and easy reliance on them is something akin to a national delusion. But if we are going to have prisons to punish wrongdoers, then why do corporate kings and queens get a pass?

Heads should roll at GM and at Volkswagen. Executives either knew about, or turned a blind eye to, the fraud committed by their companies. It’s time to introduce the corporate class to the cellblock.

Or is it really true what we lawyers say among ourselves: White collar defendants can get away murder because they can buy their way out of trouble?


About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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