"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,
Contemptible police tactics - Cops raid the home of a licensed medical marijuana provider in Washington, handcuff the fourteen year old son and put a gun to his head, and search the nineteen year old daughter and take the contents of her mickey-mouse wallet.
How To Survive Traffic Stops in America, Submit, Instantly! - What the cops want is immediate obedience and submission. Many cops are ex-military and view the civilian motorists of America about like they viewed the hapless peasants of Iraq and Afghanistan, that is, with contempt, not as fellow citizens deserving of civility and respect. It is a possibly lethal mistake to do anything other than submit, instantly and obey! Or be ready to shoot first. But aim high.