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Commonwealth v. Turner

Superior Court of Massachusetts, Suffolk

August 27, 2018

COMMONWEALTH
v.
Scott TURNER

          MEMORANDUM OF LAW, FINDINGS OF FACT, AND ORDER ALLOWING DEFENDANT’S FOURTH MOTION TO DISMISS IN THE INTERESTS OF JUSTICE FOR PERMANENT LACK OF COMPETENCE

          Kenneth W. Salinger, Justice of the Superior Court

          Scott 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.

         The 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.

         The Bridgewater clinician who tested and evaluated Turner two months ago found that it is highly unlikely that Turner’s intellectual abilities will ever improve or that he will ever become competent to stand trial.

         Defense 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.

         1. Summary of Decision.

         Mr. 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.

         By law, 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).

         The 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).

         2. Factual and Procedural Background.

          2.1. Intellectual 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.

         Prior written competency evaluations of Mr. Turner indicate that the following facts are true, based on clinicians’ reviews of Turner’s medical records and interviews of Turner.

         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.

         Turner 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 Turner’s 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 Turner’s cognitive function has fallen further, and that his FSIQ is now in the low 40s.

         Turner 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 Turner’s 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 under control.

         2.2. 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.

         He 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.

         After 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.

         The 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 Turner’s 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.

         The Commonwealth then asked the court to send Turner to Bridgewater State Hospital for a further evaluation of his competence to stand trial, in ...


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