The Morris County Law Division concluded with the following in relevant part: As for the second prong, defendant has been subjected to three evaluations since the initial criminal complaint was filed against defendant on July 20, 2020. Dr. McNiel’s psycho-sexual evaluation concluded that defendant was not competent to stand trial and that he is “unlikely to improve in the foreseeable future.” McNiel Report, p. 11. Dr. Terranova and Dr. Palmer also agreed that defendant is not competent to stand trial. In this regard, Dr. Palmer agreed with Dr. Terranova’s finding that defendant’s intellectual disability is his only barrier to becoming competent and that “repeated exposure” to the competency standard “could restore J.D.’s competency.” Terranova Report, p. 15. (emphasis added).
The court notes that Dr. Terranova and Dr. Palmer never indicate within their reports that it is probable, or even substantially likely, that repeated exposure to the competency standard would result in defendant’s competency. Sell, 539 U.S. at 181. Rather, they agreed only that “repeated exposure to the competency standard could restore J.D.’s competency.” Terranova Report, p. 15 (emphasis added).
Given that: (i) there is professional disagreement between Dr. McNiel, on the one hand, and Dr. Terranova and Dr. Palmer, on the other hand, as to whether defendant can attain competency; and (ii) Dr. Terranova and Dr. Palmer’s opinions are tepid regarding any substantial likelihood of defendant attaining competency through repeated exposure to the competency standard, this court concludes that the State has failed to establish by clear and convincing evidence prong two of Sell.
This court also expresses significant concern that subjecting defendant to “repeated exposure” to involuntary education over an indefinite period, as called for by Dr. Terranova and agreed with by Dr. Palmer, would involve a significantly higher level of invasiveness to defendant’s rights and exceed the constitutional parameters established by Sell, which addressed only “forced medication” over a finite period. Compare Winston v. Lee (1985) (acknowledging that “a compelled surgical intrusion into an individual’s body . . . implicates expectations of privacy and security of such magnitude that the intrusion may be unreasonable”). Based upon the foregoing, this court denies the State’s motion to appoint a Guardian / Guardian Ad Litem to facilitate defendant’s involuntary education for the purpose of defendant attaining competency.
The analogy of forced education to a surgical intrusion seems weak. A surgical intrusion is more akin to forced medication.