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4/20/04 Law & Disorder: Not what they seem

ZIVA BRANSTETTER World Projects Editor AND NICOLE MARSHALL World Staff Writer
Tulsa World (Final Home Edition),
Page A1 of News, Law & Disorder


Unfit for trial, they live under suspicion Defendants may be found incompetent for trial, but the charges often stick. During his 21 years of life, Lewis Damon Brown has graduated from high school, worked at a fast-food restaurant and lived with his girlfriend. During the last year, he spent nine months in jail and two months in an Okmulgee facility for the mentally retarded, surrounded by people so profoundly disabled that some needed help using the bathroom or getting dressed. For Brown, it was the best way to earn his freedom again after being accused of a crime he says he did not commit. "My main goal is to be focused on my family, make sure everything be OK and . . . start my new life over," said Brown, who has an IQ of 66 and is mildly mentally retarded. Brown is one of more than 800 people whose competency to stand trial has been questioned in the last four years in Oklahoma courts. Those who are found incompetent due to mental retardation, mental illness or other disabilities may never get their day in court. Attorneys and advocates for the disabled say that, instead, they spend years under suspicion. In some cases, charges remain pending for years after defendants are found incompetent to stand trial. While mentally ill defendants can often be medicated and restored to competency, those with mental retardation, dementia or serious head injuries will likely never gain competency. The Arc, a national group representing mentally retarded people and their families, has listed on its Web site a variety of problems that the mentally retarded face when accused of crimes. Those problems include failing to have the disability identified, giving false confessions, unknowingly waiving Miranda rights and being institutionalized for long periods of time in order to regain competency. Brown was charged last year with attempted rape, lewd molestation and forcible sodomy involving a younger relative. The case was not reported to police for seven years after it allegedly occurred, when Brown was 15 and the relative was 6, court records show. A police affidavit states that Brown, when questioned, told police, "He and the victim had been playing around and one thing led to another." Brown now says he told police what they wanted to hear. "They were trying to get me to tell something I didn't do," he said. Brown was found incompetent to stand trial due to mental retardation. His attorney, Patrick Adams, said that even after the ruling he couldn't get his client released from jail because there was no place to send him. Due to the charge, the judge wasn't willing to release him into the community under DHS supervision, Adams said. "I eventually had to issue subpoenas to get something done. . . . It was a bureaucratic nightmare." Though state law did not require Brown to stay in the Okmulgee facility, he agreed to stay there to resolve the case, Adams said. He is now living with relatives in Tulsa, and Adams said he is "absolutely comfortable" with his client's release. "This is what should have happened from the start," Adams said. The victim's stepmother said she believes that Brown should remain in the group home. She noted that the law does not require Brown to register as a sex offender because he was not convicted. "I think they are just allowing him to go back out and do this to somebody else," said the woman, who did not want her name used. "This is why I went through all these steps in the first place. . . . Just because somebody is found incompetent to stand trial does not mean that they did not commit the crime." Although Brown has followed the court's orders and has been found incompetent, records show that the charges remain pending. Brian Aspan, a former Tulsa County public defender now in private practice, said it is not unusual for such defendants to remain in legal limbo for years. "If you are found incompetent, you have really no more due-process rights because your case is halted," he said. Aspan represented Shirley Ordiway, charged in 1997 with drugging three children with cold medicine and sexually molesting their sister. Ordiway, who had an IQ of 64, was found incompetent to stand trial and was sent to Eastern State Hospital, now called the Oklahoma Forensic Center. Although the facility is set up to treat those with mental illness, some judges have ordered defendants with mental retardation held there. Records show that Ordiway spent four years at Eastern State and that the facility routinely failed to file reports updating the court on her status. The court file includes Ordiway's handwritten letters to Tulsa County Special Judge Clancy Smith, including one that says: "I have not got a letter or a phone call or nothing else. . . . I want to be in another facility called treatment." Court records show that while attorneys and the Department of Human Services tried to find a suitable placement for Ordiway, numerous facilities refused to accept her. Charges were dismissed in 2002 when Ordiway was accepted at a home for the mentally retarded in Beggs. Aspan said Ordiway's case is typical of others in which disabled defendants are lost in the system. "Eventually Eastern State quits sending reports to the judges, and these guys just fall off the caseload." Such solutions are not always easy for victims and their families to accept. Angie Eastland, a relative of the victims in Ordiway's case, said she wishes she had been given the opportunity to testify about the impact the crimes had on her family. The girl Ordiway was accused of sexually assaulting has had trouble in school, she said. Eastland said Ordiway "got away with it." "They sent her to one of these easy living places," Eastland said.

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