The Competency Evaluation: A Crime to Criminal Defendants in Michigan

“It’s always personal,” I screamed as the prosecutor and the probation officer stared at me. Alone in the judge’s chambers, we sat there are 7:30 am on a Saturday morning. Snow on the ground, no suit or tie, just 4 men screaming over the fate of this 18-year-old kid. Would he go to prison, would he go to jail, would he be sent home to be with his family? I pleaded that my client did not know her age. The judge yelled, “Michigan does not recognize the mistake of age Mr. Amadeo.” I told them that the sex was consensual and that the alleged victim lied about her age, the judge said, “Bill, enough with the Rape by Fraud argument, this is not Illinois!!!” I argued how he passed a state polygraph, he gave 2 private polygraphs, the girl was lying, we cannot destroy this kid’s life.

The judge wanted to put him in prison for 87 months, the probation officer recommended 20 years, violating the Tanner-Max, the prosecutor looked at me and asked to speak for a moment. We sat alone in this small room in a courthouse that was built was nearly 100 years old, and we argued back and forth. The prosecutor wanted to become a judge and needed to get as many people as possible on the Sex Registry, and in reality, he had all of the evidence to win at trial, and the only thing standing in is way was me. They need that if I go to war, anything can happen. Maybe, just maybe I can get the jury to nullify the law, perhaps I can attack the complaining witness and prove her inconsistencies and possibly, just maybe, I cannot. I only had one card left to play, if I could show that this kid has mental deficiency, then perhaps I could work around the probation officer, maybe I could convince the judge and maybe, I could get on the same page as the prosecutor so that he could save face by granting a dismissal despite having enough evidence to convict. I motioned for an evaluation to show that my client was not criminally responsible and was not competent to stand trial. The judge looked at me and said, Bill, if this is frivolous, your career is over.” I nodded my head, and I walked out of court, and I remembered what 2 people that I have respected had told me. Pete Winter said, “Sometimes we cannot change the facts.” Scott Grabel told me, “Some cases are about risk assessment, some cases are about guilt and innocence.” I thought about what had been taught to me, and I went to work. This was not about me, this was about a kid’s life, his future, his world. I pushed for competency tests based upon my research, and now, I had to wait for yet another party, a psychologist to tell me whether or not I was correct.

In Michigan, there are 2 types of competency tests: The first is a motion for lack of criminal responsibility. This means that the defendant did not understand what was happening and that they should not be charged because they could not form the Mens Rea to commit the crime.

The second test is a motion for one not being competent to stand trial. This means that the defendant cannot provide assistance to the defense counsel in their own defense. Both of the competency tests question if one could form intent or understand the nature and quality of their actions but with criminal sexual conduct, we are dealing with strict liability offenses which mean that the court only will examine the act, not the mindset so while the tests available could be helpful, the power that lay with the judge is still overwhelming.

This case had problems. The prosecutor had a confession, he had a video, he had a 12-year-old girl performing sexual acts on the computer screen. The defendant was 17 at the time of the offense, but his medical documentation displayed that he had the mental capacity of a 14-year-old child. By the letter of the law, my client had violated the law and was being charged with 3 different 15-year felonies. If I can display that the client was not criminally responsible, this could all go away, but the testing for competency is always tricky.

“The Information provided for the test.”
In producing documentation for the test, we displayed that the client had to have an Individualized Education Plan (IEP) during school. We had a letter from the military stating that despite the client’s lack of intellect they could be a good soldier and the army would be more beneficial than the Michigan Department of Corrections. We displayed educational records and previous tests. We had an independent mental status test that demonstrated that the client had an array of incapacities and we sent him into the analysis. 42 days later, a report was generated, and it claimed that this young boy with the mindset of a child was perfectly competent according to the state of Michigan. With the news in place, the judge set the matter for trial.

“Second Meeting with the Judge”
Some will call this a meeting, but I would call this more of a shouting match. I have lost physical altercations in the past that were far less painful than this meeting. While I respect this particular judge, he deferred to the competency tests and told me to prepare for trial. In the passionate of arguments, I pleaded with the judge to look at the documentation that was provided as opposed to just the report from the state. I looked at the probation officer, the prosecutor, and the judge and screamed, “How in the hell can this kid be deemed competent!!!” The judge looked at me and replied, “Bill, I have never meant a lawyer that fights as hard as you but the reality is they are always going to be deemed competent.” As I pressed the judge for an explanation for what they meant, the research attorney walked in and said that I had to leave or security would escort me out. The trial was forthcoming, and this kid was going to go down no matter what I argued, and that was becoming very apparent. I did not know which way to turn.

“The parking lot meeting.”
As I jumped into my car, the prosecutor came up to me and started banging on my car window. I rolled down the window and in an angry tone asked what he wanted to which he said, “We need to talk.” We went for a walk to discuss the case, and he told me that he had an offer. The deal on the table was for one year in jail and Sex Registration. He told me that my client would be out in 9 months. I told him no, we were going to war and he said to me something that will stick with me forever: “You always put the client first. You can walk away and get your client less than 10 months in jail instead of risking at least 8 years in prison, and you are refusing it?” I replied, “He doesn’t deserve anything, he is not competent!!!” The prosecutor looked at me and said, “I’m giving you a chance to save this kid’s life, and it’s on you if you turn it down.” “You are only making the offer because you know that I can make you look bad at trial and if I paint my kid as a victim, you never won a judicial election.” He smiled at me and asked what my point was. My point was that the state let this kid down. Michigan let him down as a student, and they are letting him down with his future. The prosecutor looked at me and said, “Take it up with the legislature.”

“Meeting with the family.”
A late night meeting with the family brought a lot of things into the equation. The family, and more importantly, my client, wanted to take the deal. Less than one year in jail, as opposed to a life-altering prison sentence, made sense to them. They thanked me and asked me to cut the deal.

In what was one of the toughest days of my career, I argued for the judge to follow the agreement that the prosecutor and I had in place. I explained how this kid was a victim of the educational system and how if our stare followed the “Mistake of Age” defense or had a valid competency evaluation process, he would not be here today. The judge looked at me, told me what an incredible job that I had done and sentenced my client to 1 year in county jail and the Sexual Registry. As the judge banged down the gavel, a part of my soul just collapsed. Why couldn’t I do more for this young person?

“The Legislature”
In a desperate attempt to get this client off of the registry, I have been in constant contact with members of the Michigan Legislature and have tried to explain this case. How many times will we be faced with a young defense that has issues that the testing will not shed light on? To this point, I have made 242 calls and e-mails, and in return, I have received nothing.

“The Future”
As defense lawyers, we need to fight, as a team and chance the competency standards. How many times are we going to be forced into a situation where our hard work protects our client from prison but still has a horrific effect on the life of the criminal defendant. While programs such as Mental Health Courts are an option, they do not solve these problems and do not even entertain certain crimes. If we do not change the competency standards in the state of Michigan, a win in criminal court for those in need will not be between incarceration and freedom; instead, it will be about the best possible plea deal. We need to put money, fame, and ego aside and make a change for these defendants in need or we do not deserve to have a P-number.

William Amadeo is a partner at McManus and Amadeo which is a criminal defense firm in Ann Arbor and Grand Rapids, Michigan. Amadeo is also a Senior Associate at Grabel and Associates in Lansing, Michigan. Amadeo is licensed in Michigan, New Jersey, and the federal court system. In addition to his legal duties, Amadeo is a professional journalist and owns BAT Tutoring. Amadeo can be reached at or

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