In re J.M.

Skoglund, J.,

dissenting. I agree with the Court’s ruling that the trial court erroneously failed to comply with V.R.Cr.P. 11.1 also concur in its conclusion that the trial court’s findings on the issue of competency were inadequate. I do not agree, however, with its holding that the record supported the trial court’s finding of competency. Although the State’s psychiatric expert opined that J.M. was “marginally mentally competent,” that opinion was virtually eviscerated by the expert’s own admissions at trial, and the overwhelming evidence submitted by the defense concerning J.M.’s severe cognitive limitations. Without substantial credible evidence to support it, an expert’s bare “opinion” is worthless. I would thus hold that the court’s finding of competence was clearly erroneous, and reverse the judgment in its entirety.

This case turns on the sufficiency of the record evidence of J.M.’s competence to stand trial. Accordingly, although the facts are adequately described in the Court’s opinion, certain evidence warrants additional scrutiny. As the Court notes, the evidence of J.M.’s mental retardation and cognitive deficits was not substantially in dispute. The trial court heard testimony from a school psychologist, instructional specialist, and school counselor, as well as a court appointed psychiatrist who evaluated J.M. specifically for competence to stand trial. The school psychologist, who had twice evaluated J.M., testified that his full scale IQ was 65, which placed him in the category of mentally retarded. According to the psychologist’s report, J.M.’s academic ability was far below the sixth grade level. Indeed, his performance revealed “only beginning first grade level reading and writing skill.” J.M.’s academic scores represented “an almost total lack of skill and even familiarity with the most basic facts of the written language.” When asked at trial if J.M. would be able realistically to appraise the likely outcomes of the trial, the psychologist replied, “I think his chances are zero.” The psychologist also indicated that J.M. would be suggestible on the witness stand, seek to avoid conflict with *72authority figures, and at some point become “overwhelmed” in his attempts to understand concepts of the trial process.

J.M.’s case manager from his school, an instructional specialist, also testified. She categorized his ability to comprehend and reason, to think abstractly and problem solve on an abstract conceptual level as being that of “a third grader, maybe fourth.” J.M.’s school counselor further testified that J.M. told her that he knew he didn’t commit this crime because his mother told him he didn’t do it.

The court also heard the testimony of a psychiatrist who performed a two-hour court ordered competency evaluation of J.M. As stated in his written report, the psychiatrist’s diagnostic impression of J.M. was “Mild Mental Retardation or Borderline Intellectual Functioning.” The doctor reported that J.M. “was oriented to person, place and time,” and concluded that “[a]n opinion that [J.M.] is marginally mentally competent to stand trial for the alleged offenses would find support.” He immediately qualified that opinion, however, stating that “[intellectually, he can follow the [court] proceeding to the degree his limited vocabulary allows.” He cautioned that J.M.’s “reading level is low, scored near a first grade level in 1997. His inability to understand the language used will impair his motivation to attend to the process. He would need to be advised in simple language about many matters discussed in order to comprehend the process.”

At trial, the doctor indicated that J.M. had been able to relate his version of events that led to the charges against him. He conceded, however, that he could not say whether J.M. had related an actual memory of the events, or something that had been told to the juvenile by others about the events. The doctor stressed in his testimony that a special effort would be necessary to ensure that J.M. could understand the trial process and assist counsel. It was his opinion that J.M was “marginally competent, because I’m recognizing that he is a person who has special needs, that he needs education on issues, and providing that education is going to have to take a special path because of the way he learns and the way the information has to be presented to him. ... So he’s going to require a special approach.” There was no detailed testimony from the doctor or any other witness, however, as to what that “special approach” might require or how it would work during the trial process.

The doctor also identified several potential problems in tutoring J.M. about the court process. He emphasized that J.M. does not learn easily or retain everything he learns for long periods of time. He noted that J.M. could become fixated on the first issue that came up and fail *73to comprehend subsequent issues as they arose. While the doctor opined that it was not “impossible” for an attorney to overcome J.M.’s limitations, he suggested that someone skilled in teaching, and communicating with, persons with J.M.’s deficits should work with the attorney. There was no testimony that anyone was available to provide such assistance.

In addition to his testimony concerning J.M.’s competence to stand trial, the psychiatrist also addressed J.M.’s competence to enter into a plea agreement. He observed, in this regard, that J.M. does not learn easily, that “his understanding of abstract concepts is minimal at best,” and that these limitations were particularly relevant in the plea bargaining process, which he characterized as a “relatively abstract type of affair.” He testified that it was not until the age of thirteen or fourteen that young adults begin to develop a capacity to think abstractly, and acknowledged that J.M. does not think in abstract terms. While suggesting that the concepts comprising a plea agreement could be broken down in a way that could be understood by someone with limited abstract thinking ability, the doctor acknowledged that it would be difficult and time consuming.

Finally, when asked:

just to summarize your testimony, you’re saying that a boy with an IQ of 65, a verbal IQ that falls within the first percentile, an ability to concentrate auditorily that falls within the point fifth percentile, a boy who will either acquiesce, make up something, or just shut down when he doesn’t understand something, a boy who reads at a first grade level, a boy with a mental age of an eight-year-old, you’re saying that you feel that a boy with all those deficits is competent to stand trial?

the doctor responded, “if you’re referring to J.M., yes.”

The standard for competency to stand trial is a familiar one. A competency determination measures whether a defendant has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and has “a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960); see also State v. Lockwood, 160 Vt. 547, 554, 632 A.2d 655, 660 (1993). The standard of competence for pleading guilty is the same as the standard for standing trial. See Godinez v. Moran, 509 U.S. 389, 396-99 (1993); Lockwood, 160 Vt. at 554, 632 A.2d at 660. Nevertheless, as the Supreme Court observed in Godinez, “when a defendant seeks to waive his right to counsel, a *74determination that he is competent to stand trial is not enough; the waiver must also be intelligent and voluntary before it can be accepted.” 509 U.S. at 402.

In reviewing a trial court’s competency determination, we will uphold the court’s findings if they are supported by. substantial credible evidence and are not clearly erroneous. See State v. Thompson, 162 Vt. 532, 535, 650 A.2d 139, 141 (1994).

The sole evidence to support the court’s conclusion that J.M. was competent to stand trial was the two hour competency evaluation by the forensic psychiatrist. Upon careful review, however, neither the report nor the witness’s trial testimony can be found to support a finding of competency. The doctor concluded that J.M. was “marginally mentally competent to stand trial.” He admitted, however, that he did not know if J.M.’s recitation of the facts of the charges were actually known by J.M., or the product of what others had told him concerning the charges. Indeed, the evidence indicated that although J.M. might be capable of recalling some basic concrete facts concerning the alleged offenses, he would routinely add details from other unrelated events. The evidence also suggested that J.M. would make up things so as not to appear stupid, and would not admit to a lack of understanding.

Most significantly, the psychiatrist’s clinical assessment of “marginal competence” was virtually negated by caveat after caveat in his own testimony concerning the extraordinary efforts necessary to allow J.M. to follow meaningfully the proceedings. The psychiatrist readily acknowledged, and the evidence overwhelming showed, that J.M.’s lack of reasoning ability, knowledge, and verbal skills would significantly impair his ability to understand the trial process and assist his attorney.

The Court acknowledges that it is often difficult to accurately assess an adult defendant’s capacity to understand his or her rights, that the problem is exacerbated when a child defendant is on trial, and that the task is truly daunting when the circumstances also involve a diagnosis of mental retardation. The Court also recognizes that the very complexity of the situation demands a careful assessment of the multiple factors relevant to the issue of competency, and specific findings'regarding those factors — findings which were lacking here. The Court identifies a number of these factors. In addition to the juvenile’s age, education, background, and experience, they include the child’s specific cognitive maturity, capacity for abstract reasoning, demeanor, ability to understand simple cause and effect relationships, appreciation of *75the various roles of the court and counsel, witnesses, and juries, reactions to stress, and memory and communication skills. See I. Mickenberg, Competency To Stand Trial and the Mentally Retarded Defendant: The Need for a Multi-Disciplinary Solution to a MultiDisciplinary Problem, 17 Cal. W. L. Rev. 365, 392-401 (1981); V. Cowden & G. McKee, Competency to Stand Trial in Juvenile Delinquency Proceedings Cognitive Maturity and the Attorney-Client Relationship, 33 J. Fam. L. 629, 646-47 (1995); J. Ellis & R. Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414, 455-56 (1985).

Applying these factors here, it is impossible to conclude that the evidence supported a finding of competency. The minor’s cognitive age was that of a first-grader. His psychological profile indicated that he could barely read or write, that he had no real understanding of trial procedure or the potential consequences of trial, that his language and communication skills were minimal, that his ability to attend to lengthy trial proceedings was limited, and that he would distort events to avoid conflict or the appearance of incompetence. There was no evidence that the minor had any prior experience with criminal procedure or the trial process. Thus, the Court’s conclusion that, despite the absence of findings, the record evidence was sufficient to support a finding of competency, is incomprehensible.

In the end, the “marginal” finding of competence in this case rests entirely upon the psychiatrist’s suggestion that someone trained to deal with individuals with such cognitive deficits might be able to facilitate his understanding, and the Court’s directive — based on this suggestion — that someone, somehow must be provided to assist this minor on remand. Yet no evidence was offered at trial as to what such assistance might actually require, who specifically would be qualified to render it, or how — as a practical matter — it would be provided during the course of trial. The Court, not surprisingly, provides no guidance either, leaving it to the trial court and the parties to puzzle through the Court’s mandate.

This is a thin reed upon which to rest a holding. As noted, a finding of legal competence to stand trial requires a “rational as well as factual understanding of the proceedings,” and a “sufficient present ability to consult with [a] lawyer with a reasonable degree of rational understanding.” Dusky, 362 U.S. at 402 (emphasis added). The possibility that a “cognitive facilitator” might overcome the myriad obstacles to this juvenile’s rational capacity to assist in his own defense does not, in my view, satisfy this standard.

*76Accordingly, I would reverse the judgment. I am authorized to state that Justice Johnson joins in this dissent.