In-depth: Breaking down the criminal justice system

How a defendant’s competency impacts a trial.
Understanding what fit to stand trial means during a criminal court case and how that impacts...
Understanding what fit to stand trial means during a criminal court case and how that impacts defense attorney's as well as psychologists.(WIFR)
Published: Aug. 10, 2022 at 2:47 PM CDT
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ROCKFORD, Ill. (WIFR) - If you commit a crime and go to court, state law requires the person must be competent in order to stand trial. 23 News has an in-depth look at how a defendant’s ability to stand trial impacts the entire court case, but more importantly the burden it has on defense attorney’s.

“People have a very distorted perception of what it means to be found unfit as though it’s somehow a free get out of jail card, it is the polar opposite,” said Rockford area defense attorney Chris DeRango.

“This is so intense compared to the TV, Hollywood version,” said retired psychologist Terry Lichtenwald.

During any criminal court case, no matter how serious, if an attorney feels their defendant could be unfit to stand trial, legal experts say they’re ethically obligated to tell the judge.

“It’s a very difficult position to be in, for most defense attorney’s it’s really almost worst case scenario,” DeRango said. “Obviously they’re not happy about the idea that you have to look them in the eye and say, I don’t think you’re fit to stand trial.”

Experts say fitness to stand trial means the defendant understands the charges and can effectively cooperate with the court proceeding.

“Basically speaking, if I can communicate with my client, they know who I am, they know who the judge is, they know who the prosecutor is, they’re probably fit to stand trial,” DeRango said.

“You don’t even have to know you were arrested you just have to agree that yeah, they wrote it up, that’s what you’re being accused of,” Lichtenwald said.

Attorney Chris DeRango says from his perspective, cases where defendants are unfit to stand trial are rare.

“I think it’s probably happened three times in the last five years out of hundreds of cases, so it is pretty rare but when it happens it’s difficult,” DeRango said. “If I bring it to the courts attention, then they appoint a psychologist to evaluate the client, as you’ve indicated you’ve talked to Dr. Lichtenwald, Dr. Lichtenwald has done thousands of these.”

“I go in person, and I sit with you and I’m like now is the time, what’s the problem,” Lichtenwald said.

Dr. Terry Lichtenwald spent decades evaluating defendants in court cases. He says he takes many things into consideration before reaching a conclusion on their ability to stand trial.

“I have what the person told me, I have officer logs, I have the police reports, I have the pre-trial services report, so I have all these different sources of data and information that I gathered, then I have to cross analyze everything,” Lichtenwald said.

If the defendant is found unfit, DeRango says the judge doesn’t have many options.

“The most common tool in the judges toolbox for that particular situation is to send them to the Illinois Department of Mental Health,” DeRango said. “Because of all the cuts to the mental health system that’s almost the only tool in the judges toolbox.”

But he agrees the system has cracks in the foundation.

“The problem right now particularly with COVID is the Illinois Department of Mental Health as I understand it is not accepting transfers right now,” DeRango said. “Difficult process, difficult system and now almost without resources.”

“You know what Chester is,” asked Lichtenwald. “It’s a prison, where did you think, you were going to go, I mean people picture some sort of hospital with a salad bar.”

Lichtenwald and DeRango say those rough conditions are something nobody would willingly subject themselves to.

“There’s no upside to faking being unfit, it is an extraordinarily narrow, in-fact almost unheard-of scenario where a defendants better off being unfit, it’s almost always worse,” DeRango said.

“Nobody’s walking away, there’s going to be a consequence, nobody drives home into the sunset in a sports car, that’s not happening, nope, nope, nope,” Lichtenwald said.

Time served in a restoration program does not count toward time served in prison. That’s why both Lichtenwald and DeRango stress, being unfitted to stand trial only prolongs your time in the system.

Back in 2014, the State of Illinois had at least five fitness restoration facility programs across the state, now it’s down to two. One in Chester and one in Elgin.

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