MEMORANDUM OF LAW, FINDINGS OF FACT, AND ORDER
ALLOWING DEFENDANTâS FOURTH MOTION TO DISMISS IN THE
INTERESTS OF JUSTICE FOR PERMANENT LACK OF
Kenneth W. Salinger, Justice of the Superior Court
Turner was indicted in early 2015 on two counts of indecent
assault and battery of a child and two counts of rape of a
child aggravated by age difference. The Commonwealth alleges
that in July 2014 Turner indecently touched two girls and
used his finger to penetrate their vaginas.
case has been on hold for years because Turner is not
competent to stand trial. Six different clinicians and two
prior judges have found that Mr. Turner suffers from severe
and pervasive intellectual disabilities and, as a result, is
not competent. The Commonwealth concedes that Turner is still
incompetent. Turner has been held in custody for 28 of the
past 42 months because he is unable to post bail, though
during some periods he would have been held in any case
because he was committed to Bridgewater State Hospital for
repeated competency testing.
Bridgewater clinician who tested and evaluated Turner two
months ago found that it is highly unlikely that Turnerâs
intellectual abilities will ever improve or that he will ever
become competent to stand trial.
counsel therefore asks that the pending charges be dismissed
without prejudice in the interests of justice under G.L. c.
123, § 16(f). For the reasons discussed below, the Court
will ALLOW that motion.
Summary of Decision.
Turner suffers from permanent and severe intellectual
disabilities. His measured intellectual abilities fall below
those of ninety-nine percent or more of the general
population. He has no ability to consult in any meaningful
way with his lawyer, to assist in preparing his defense, or
to make independent and rational decisions about how to
proceed in this case, such as whether to go to trial or
instead plead guilty, or whether to testify at trial.
Mr. Turner cannot continue to be held in pre-trial detention
if there is no substantial probability that he will attain
legal competency in the foreseeable future. In addition, the
charges against him must be dismissed if Turner does not
become competent by the latest time he would be eligible for
parole if convicted, and may be dismissed at any time if
doing so would be in the interest of justice because there is
little chance that he will ever become competent. See G.L. c.
123, § 16(f).
Court finds there is almost no chance that Mr. Turner could
become competent to stand trial in the foreseeable future, or
indeed at any time before these charges would have to be
dismissed by law. It concludes that the pending indictments
should therefore be dismissed without prejudice in the
interest of justice. See Commonwealth v. Calvaire,
476 Mass. 242, 247-248 (2017) (citing with approval dismissal
under § 16(f) of two counts of child rape and two counts
of indecent assault and battery of a child, in
Commonwealth v. Guinta, Norfolk Sup.Ct. No.
2004-00088, 28 Mass.L.Rptr. 501, 2011 WL 3480959 (Mar. 31,
2011) where the defendant was not competent to stand trial
and incompetency was similarly caused by cognitive
limitations that were unlikely to change over time).
Factual and Procedural Background.
Disabilities. Mr. Turner was born in January
1974. He is 44 years old. At the most recent competency
hearing, the Court asked Turner how old he is. He guessed
forty, but was very uncertain.
written competency evaluations of Mr. Turner indicate that
the following facts are true, based on cliniciansâ reviews of
Turnerâs medical records and interviews of Turner.
has suffered from significant intellectual disabilities for
his entire life. He was first diagnosed with "mental
retardation" when he was eight years old. Turner
received special education services throughout his time in
school. He graduated from high school at the age of 22, when
he was no longer eligible to receive such services through
the public school system.
has undergone formal intelligence testing at various times.
The results have consistently indicated that he suffers from
serious intellectual disabilities. In 1996, when Turner was
eighteen years old, testing indicated that his Full Scale
Intelligence Quotient was only 55. In 2000 Turnerâs FSIQ was
estimated to be 59. In 2002 it was estimated to be 56. These
measures were all consistent with a diagnosis of what was
then called mental retardation. As discussed below, testing
two months ago credibly shows that Turnerâs cognitive
function has fallen further, and that his FSIQ is now in the
has regularly received services from the Department of
Developmental Services, starting back when this agency was
known as the Department of Mental Retardation. The Department
provides services to individuals with intellectual or
developmental disabilities. Turner has long received Social
Security Disability Income because of his intellectual
disabilities. Turner also has a long history of
hospitalizations and other treatment for psychiatric
problems, though clinicians who have evaluated Turnerâs
competence to stand trial suspect that Turner may have
exaggerated symptoms of mental illness in order to be
admitted to hospitals when he was homeless, and have
concluded that any mental illness he actually suffers is now
Charges and Criminal Custody. Turner was
arrested on these charges in November 2014. He was indicted
two months later and arraigned in Superior Court in February
2015. Bail was set at $10, 000 cash. Turner could not post
bail and was therefore held in custody.
remained in custody in lieu of bail until August 2016, when
Judge Krupp found that Turner was not competent to stand
trial and therefore released him on personal recognizance,
subject to conditions that Turner live in a particular
residential program for individuals with serious intellectual
or developmental disabilities and that he not have any
unsupervised contact with children.
Turner failed to appear in court several times, bail was
reset in October 2017 at $3, 000 cash, and reset again a
month later at $10, 000. Turner could not post those amounts
and as a result has been in custody since then.
Commonwealth never moved pursuant to G.L. c. 276, § 58A,
to have Turner held on the ground that he poses a danger to
someone else or to the community as a whole. As a result the
Commonwealth has never presented any evidence or proved by
clear and convincing evidence that Turner is dangerous,
Turner has never had any opportunity to contest evidence of
alleged dangerousness, and no judge has ever been to lawfully
consider and make findings as to whether Turner poses any
danger to the community.
2.3. Prior Findings as to
Competence. Dr. Robert J. Mendoza evaluated
Turnerâs competence in late 2015, at the request of defense
counsel. He concluded that Turner was not competent to stand
trial, stating that:
[I]t is my opinion that Mr. Turner does not have the
sufficient present ability to assist his counsel with a
sufficient degree of rational understanding and that he would
have difficulty adequately understanding and processing
information in court especially when information becomes
abstract, complicated or detailed. Further, Mr. Turner
demonstrates impairment in his decision-making abilities and
overall problem-solving and reasoning.
Commonwealth then asked the court to send Turner to
Bridgewater State Hospital for a further evaluation of his
competence to stand trial, in ...