Recent Nebraska murder cases put concept of “mentally competent” to the test


May 4th, 2015

Nebraska Supreme Court (Courtesy Photo)

Nebraska Supreme Court (Courtesy Photo)

What does it mean to be “competent to stand trial?” It’s a phrase often heard in coverage of major trails where the mental health of the accused becomes part of the defense or when questions are raised about his or her ability to grasp what is at stake.


In the media glare of his Omaha-based murder trial, Nikko Jenkins’ erratic behavior tested the patience of the judge and the definitions of “mentally competent.”


Jenkins pleaded no contest to charges arising from four 2013 murders that unfolded in two weeks time. From day one in the court system his mental health has been an issue.

Despite Jenkin’s howling for TV cameras on his way into court and his talk of hearing the voices of an “Egyptian god of death” known as Apophis, Jenkins was found competent for sentencing.

How does a judge determine if someone has the mental capacity to comprehend trial proceedings? In Jenkins case, Judge Peter Batallion assigned three mental health professionals to review the sometimes conflicting evaluations and reports prepared by previous analysts over the course of almost 20 years.

Nebraska state law requires a review of the mental health of any defendant when such a disability is “called to the attention of the district court” by anyone involved in the process.

Establishing whether someone is competent to be part of any of the legal process is a long-established principal in the American judicial system.

“You don’t want to put somebody on trial or to put someone in a capital sentencing proceeding who doesn’t have a rational understanding of why they are there or what is going on,” said Dennis Keefe, the former chief public defender for Lancaster County. His office saw many clients in need of such reviews.

Even struggling with something as disorienting as schizophrenia may not rule out competency if it distorts only part of one’s perception of the world.  The accused may still have the ability to comprehend why they are in court.

Professor Robert Schopp with the College of Law at the University of Nebraska-Lincoln said in determining competence to stand trial, the central question asked on the defendant’s behalf is whether they “have the ability to understand the trial process and communicate with your attorney.”

Schopp, who practiced psychology prior to obtaining his law degree, said experts use a variety of diagnostic tools to analyze whether the accused can participate in their own defense.  He says at its most basic the objective is to assure defendants “both understand what the attorney is presenting and communicate with the attorney so that you can make decisions and provide the attorney with relevant information that is needed during the trial.”

“If we have at least a plausible claim that he is incompetent to proceed, that decision has to be made by the court,” Schopp said.  “Then you will have the court assessing the evidence from the psychological assessment and also from the courts interview right there with the client and what the attorney tells us about the client.

There are a few guidelines judges use to make that decision.

“The courts through their cases try and give definition every time they rule in terms of what it means to be competent or not competent to stand trial,” Schopp said.

In 1971 The Nebraska Supreme Court specified a three-prong approach for determining if a person has the capacity to take part in their own trial or sentencing.

The case, State v. Klatt, grew from a case out of Anselmo, Nebraska. In 1967 Rudolph Klatt murdered his half-brother after a barroom fight. Klatt had a history of treatment for mental illness.

Justice Hale McCown wrote “the test of mental competency to plead or stand trial is whether the defendant has capacity to understand the nature and object of the proceedings against him; to comprehend his own condition in reference to such proceedings and to make a rational defense.”

That was the primary touchstone for competency hearings until 1980. The state Supreme Court was asked to resolve the case of William “Freight Train” Guatney. The transient carnival worker, charged with the murder of two boys taken from the Nebraska State Fair, had been institutionalized for mental illness related to his heavy use of alcohol.

In an unusual move, Gautney’s attorney pressed for a trial on the murder cases. The state fought to have him remain institutionalized even if he had not been found guilty of any crime.

The Supreme Court agreed, writing in the unanimous opinion, “in the presence of the evidence that he is, in fact, competent to stand trial, he must be afforded his right to that speedy trial.”

Chief Justice Norman Krivosha wrote a concurring opinion that has since been used extensively by trial courts to determine competency. Krivosha added 20 separate questions judges could ask to help measure a defendant’s competence. Do they have an appreciation of the concepts of time and place? Is their memory sufficient to answer questions? Can they give and receive advice from attorneys? (You can read his list here)

More often than not defendants are found competent. A study published by the American Psychological Association revealed trials take place in about 7 out of every 10 cases where the court considered mental competency.

The decision is ultimately in the hands of the judge, but “you are going to have conflicting opinions,” Schopp cautions. “It is not an easy task, especially when you have competing (opinions) from respected mental health professionals.”

Conflicting evaluations of Nikko Jenkins created contradictory images of his mental state.  To sort it out, Judge Battalion ordered three other psychologists review all the previous testing. They determined Jenkins often exaggerated his own mental issues. They believe he does grasp the reality of his situation. (Read the full evaluation HERE)

Part of the conflict, according to Schopp comes because “a well-defined standard is not fully defined.” He adds, “future cases will give us even more guidance.  It is as well defined as it can be at this point.”

In July, a three-judge panel is scheduled to determine whether Jenkins’ crimes rise to the level of deserving the death penalty.  That gives rise to another element of competency of the accused in the legal system. Ultimately it must be decided if an individual is mentally competent to be executed.

The U.S. Supreme Court ruled in 1986 it is not constitutionally appropriate to execute someone who doesn’t understand what is happening or why.

“When you are talking about a capital sentencing hearing you are talking about a unique animal,” Keefe said. Although the basic guidelines may be the same, “they are held to a much higher standard obviously because of the consequences.”

Since Nebraska has not carried out an execution in over 20 years, this is uncharted legal territory in the state’s courts.

Prof. Schopp believes it is not clear where the bar has been set to determine competency to be put to death. The rulings to date say the individual must have a “rational understanding” of what is about to happen at the execution.

“Neither of (the cases ruled on the by the Supreme Court) enunciated a clear reliably applicable standard. We don’t have a clear articulation of what rational understanding means,” Schopp said.

In the 30-page review of Nikko Jenkins’ psychological history there’s a hint the confessed murderer may understand what is at stake as well as anyone. Jenkins reportedly told one evaluator: “I don’t want to be competent. I don’t want to die.”


One Response

  1. How interesting, thanks for sharing, I had not realized some of this prior to reading the article.

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