"I want to assure the court. We agonized over this."
The argument is an ingenious one, but, as a matter of Fact and federal constitutional law, it "presently" falls of its own weight!
1. Standard. In order to find a defendant competent, a court must find by
a preponderance of the evidence that he or she has sufficient "present" ability to consult
with his lawyer with a reasonable degree of rational understanding and that he has a
rational as well as factual understanding of the proceedings against him. Dusky v. U.S.,
362 U.S. 402 (1960).
(“[T]rial of an [amnesiac] defendant can be fundamentally unfair in some circumstances, and consequently trial judges must determine, on a case-by-case basis, whether the defendant could likely receive (and, at the conclusion of the trial, whether he in fact did receive) a fair trial.”). These courts have relied on several nonexhaustive factors relevant to the competency determination, including: (1) whether the defendant has the ability to participate in his defense, such as by consulting with counsel and taking the stand on matters other than the amnesiac event; (2) whether the amnesia is temporary or permanent; (3) whether the crime and the defendant's whereabouts at the time of the crime can be reconstructed without the defendant's testimony; (4) whether access to government files would aid in preparing the defense; and (5) the strength of the government's case against the defendant. See Andrews, 469 F.3d at 1119; Villegas, 899 F.2d at 1341; Rinchack, 820 F.2d at 1569; Swanson, 572 F.2d at 526-27; see also Davis, 766 F.2d at 1202 & n. 8 (relying on similar factors); LaFave, supra, § 8.1(a), at 567 n. 27 (discussing factors).
The Supreme Court has "long
recognized . . . that . . . justice cannot be equal where, simply
as a result of his poverty, a defendant is denied the opportunity
to participate meaningfully in a judicial proceeding in
which his liberty is at stake." Ake v. Oklahoma, 470 U.S. 68, 76,
(1985)
"Due Process of law is the right of the Citizen affected thereby to be present before the tribunal which pronounces judgement upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material-fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law." Black's Law Dictionary, 6th Edition, page 500.
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