Criminal defense lawyers console themselves about the self-destructive course some clients take by saying such things as: “You can lead a client to the courthouse, but you can’t make him think.” Courthouses are dark places; a courtroom rarely brings out the best in people.
Consider the case of Dr. Lishan Wang. He stands accused in New Haven of the murder of Dr. Vajinder Toor in Branford in 2010. The two men worked together in Brooklyn until Wang was fired in 2008. Suspicions abound that the shooting was in retaliation for some workplace grudge.
By all accounts, Wang is a smart guy, but for all his intelligence, he’s made a foolish choice to represent himself. He has appeared in court dozens of times, and filed more than 200 motions asking the court for various forms of relief. Although he has yet to be tried for murder, his case has already reached the Connecticut Supreme Court, which decided that, because he is indigent and is representing himself, he qualified for investigative and expert services paid for by the state’s public defender system.
When he was first charged, back in 2010, the trial court deemed him competent to stand trial. Just this week, a different judge, Thomas O’Keefe deemed him incompetent. Wang was sent from the courthouse to the Connecticut Valley Hospital for a tune up. The staff at CVH will report on May 21 to the court on their efforts to restore Wang to competency.
What is legal competency?
Due process requires that a person be capable of understanding the nature of the proceedings against him and capable of rendering assistance. It is a minimal standard. You can believe that Elvis is alive and well and living at Graceland and still be found competent to stand trial. Indeed, you might even be insane but competent.
In Wang’s case, evaluators concluded that he understood well enough that he was standing trial accused of murder, but that his understanding of the proceedings is limited. He keeps focusing on issues irrelevant to the murder case, raising questions about why he lost his job in Brooklyn, asking about cash missing from his car when he was arrested, alleging that New Haven’s chief public defender, Thomas Ullman, is conspiring against him. The first prong of the competency evaluation is a close call.
Wang flunked the second prong of the test with flying colors, however. Evaluators concluded his ability to “assist in his own defense is very compromised.” Wang’s rambling reference to the Petit murders in Cheshire and the Boston Marathon bombing are, to say the very least, bizarre.
The goal of his placement at CVH is to restore him to competency, if he can be restored. He will be studied, interviewed, and, if necessary, medicated against his will. The goal is get him to the point where evaluators deem him competent enough to assist in his own defense. If he cannot be restored to competency, he will sit in the hospital for the rest of his days, railing at a world he cannot understand.
But here’s where the line separating insanity from competence becomes blurred. Under Connecticut law, a person may be found not guilty by reason of insanity if, at the time of the offense, he “lacked substantial capacity as a result of a mental disease or defect to appreciate the wrongfulness of his conduct or control it within the requirements of the law.” (You can’t claim insanity if you are blotto as a result of the voluntary use of “unprescribed intoxicants.”)
The law distinguishes between volitional and cognitive insanity. You are volitionally insane if you quite literally could not control yourself. Cognitive insanity means simply inability to see the world as the rest of us see it, as a result, for example, of auditory or visual hallucinations.
Wang does not appear to be suffering a cognitive form of insanity. He can file pleadings. They may be bizarre in content, but that is to be expected. He is not a trained lawyer. He has no experience in the dark arts of litigation. It takes years to acquire a feel for the courtroom, and, candidly, some lawyers never do.
If Wang has bizarre unconventional ideas about what is relevant, does that make him insane? It certainly makes him inconvenient to the court and those now required to pay his bills for investigators and experts. But how bizarre do you have to be to be insane?
I am reduced several times a week to uttering the following aloud, usually in the presence of the lawyers with whom I work: “You can’t make this stuff up.” The human drama of criminal law practice is often surprising, even shocking.
I suspect many people in the criminal courts walk in the netherworld between the communal norms we all share and therefore regard as reasonable, or sane, and outright insanity. Eccentricity is the coin of the criminal court’s realm.
How eccentric do you have to be before you are declared insane?
Wang’s various pleadings strike me as close to that line. What is the point, for example, in challenging, as he has done, whether the state’s medical examiner actually performed an autopsy on Toor, rather than someone else?
Lawyers are required to have a good faith basis for the motions they file. Wang is not a lawyer. So what if he challenges each and every element of proof the state produces against him. Isn’t that his right?
I have a lingering suspicion that the competency standard was lowered just a touch in the Wang case because the man was too eccentric to be processed cheaply and quickly. His trial loomed. He raised too many questions, many of them bizarre.
He marches to a different drummer, to be sure. He may well be incompetent, perhaps even insane. But just how different are the crazy ideas he espouses? Are they really that different from what many clients say in desperate circumstances? The answer to the question might surprise you.