For the second time in three years, charges of illegal sexual conduct with a minor were dismissed and the defendant set free because of a loophole in the law.
Most recently, because twice-accused sex offender Albert Manuel Rosthenhausler lacks the ability to understand the charges he faced, Pima County Superior Court Judge Deborah Bernini had no option but to release him.
Unless the law is changed, if he repeats his crime the court will have to let him go again because mental health evaluations found him incompetent to understand or participate in his defense — and due to a traumatic brain injury, no amount of treatment or course of medication can restore him to competency.
The law is clear: No matter how serious the allegations, if someone is not competent to help defend himself, the government must drop the charges and set the defendant free.
While Rosthenhausler’s circumstances are rare, they illustrate a gap in the criminal code some have called “the Rule 11 hole” — a hole some county officials want state lawmakers to fill.
What is Rule 11
Rule 11 in the Code of Criminal Procedure says that if either side in a criminal case thinks a defendant may have a mental illness or cognitive defect that prevents him or her from understanding or participating in court proceedings, the defendant can request a hearing. In Pima County the judge would be Bernini, who heads up the county’s mental health court.
Under Rule 11, the defendant must undergo at least two evaluations by behavioral health professionals. If one or both doctors find the defendant not competent, he or she is ordered to participate in the Restoration to Competency program, which aims to help the person meet the legal definition of competent. That means defendants must be able to understand the charges they face, assist in their defense and be able to knowingly accept a plea agreement or face trial.
Through the program, the defendant receives what amounts to a remedial civics education designed to explain the legal process and the potential consequences he or she faces.
While most defendants either successfully complete the restoration program or are deemed “not competent, not restorable” within three to four months, the process legally can last as long as 21 months before a determination is made.
Pima County’s in-custody restoration program has a high success rate. Since 2008, the rate of defendants found not competent, not restorable has fallen almost every year, from more than a third of defendants referred to as few as 1 percent in fiscal 2013.
Since 2008, in-custody defendants in 80 cases have been ruled incompetent.
One of those was Rosthenhausler, a finding that didn’t surprise anyone familiar with his history.
Court documents show Rosthenhausler, now 27, suffered a traumatic brain injury when he was a teen. In addition to physical disabilities like diminished mobility, his injury left him with severely limited cognitive ability and little impulse control.
He was accused of sexual conduct with a minor in 2014 and sexual abuse of a minor in 2011.
“He is not able to answer questions in a appropriate manner, as he does not present with the ability to process information,” said a report the public fiduciary filed with the recently dismissed case.
When a defendant like Rosthenhausler is found incompetent, the court has three options:
- Remand the defendant to the department of health services for civil commitment proceedings;
- Refer the case to probate court for appointment of guardianship over the defendant;
- Dismiss the charges and drop the case.
The third option is the most common because many defendants faced nonviolent drug offenses or other low-level charges.
Other options are rarely useD
If a judge refers a case to what’s called a Title 36 civil commitment hearing, the person will be evaluated to determine if one of three factors are present — whether the person is a danger to himself or others, gravely disabled or persistently disabled.
If any of those conditions apply, a commitment hearing is held. And for commitment to be approved, two doctors must agree on the person’s mental condition. But even if doctors and witnesses agree an involuntary commitment is warranted, the process will stop if at any time the person agrees to take medication.
Appointed guardianship is another infrequently exercised option. Either a family member proves able to care for the person or the public fiduciary can take guardianship. But the courts cannot order the fiduciary to do so, and the office is more often inclined to help a person locate public resources like Arizona Long Term Care System or the state’s Division of Developmental Disabilities rather than accept guardianship.
“We cannot place anyone without public resources or their own resources,” said Pima County Public Fiduciary Philip Grant, whose office was asked to take over Rosthenhausler’s guardianship because his family was unable to manage his care.
Grant said the office instead found Rosthenhausler placement in a secure group home with Department of Economic Security funding.
He lives there with other men. Security limits his ability to go out into the community and come in contact with juveniles. But he is not in “lock down.”
And his stay is voluntary, insofar as a relative who serves as his legal guardian has agreed to his placement there. But since he hasn’t been convicted of any crime, he could be released if that permission is revoked.
Grant said the fiduciary’s budget and limited staff make it difficult to accept guardianships over people without assets. Right now the office has only one Rule 11-connected guardianship.
“It becomes no one’s responsibility,” said Danna Whiting, behavioral health administrator with Pima County Behavioral Health.
In other words, the hole in the system prevents anyone being the responsible party over an incompetent defendant.
What can be done?
“The system left me a little frustrated by its lack of ability to address his specific situation,” said Rosthenhausler’s defense attorney, Kyle Ipson.
Cases like Rosthenhausler’s, though infrequent, present a challenge to the legal system in terms of balancing the rights of individuals against the right of the community to be safe.
State lawmakers have talked of addressing the issue in past sessions but not taken action.
“In their effort to do the right thing legally, they have failed in their ability to do the right thing socially,” said Terri Rahner, mental health clinical coordinator for Pima County Superior Court.
Rahner said the size and complexities of the criminal justice system make it difficult to address all situations. But the limited options available to the courts to deal with potentially violent offenders who were set free presents a cause for concern, she said.
“The law itself has to change in order to fix the problem,” Whiting said. “At this point, there’s no one responsible, there’s no one watching them.”
Kathleen Mayer, a deputy Pima County Attorney who lobbies the legislature, said she and officials from Pima County Behavior Health and Pima County Superior Court have been discussing ways to address the Rule 11 issue.
One solution, she said, would be to give the court expanded oversight of an incompetent person’s case.
For example, a person could be deemed potentially dangerous and hospitalized for as long as he or she would have been sentenced, Mayer said, with annual reviews to determine mental state and to re-evaluate status.
“It’s very similar to how we deal with people who are found to be sexually violent,” Mayer said.
A bill proposed in the last Legislative session that would have let judges order a potentially dangerous offender who was previously found incompetent to be involuntarily committed to a secure facility.
The bill failed, in part because of the potential costs.
Estimates showed about 24 defendants each year could be eligible for involuntary commitment to the Arizona State Hospital at a total cost of as much as $5.7 million per year.
The program was expected to grow, requiring more bed space. As a result a new facility with an estimated cost of $50 million was expected.
Mayer said the current discussions seek to find a less costly solution, but she said that no matter what the outcome, even if no reforms are made, costs will remain in the form of court fees, social services and incarceration.
“Money is going to be spent on these individuals in some way,” she said. “A cost will be borne no matter what happens.”
