In August 2014, Tyron Calhoun of Lewiston was charged with two counts of trafficking heroin and cocaine at an apartment where several overdoses had been reported. The charges were later dismissed.

In May 2015, he was charged with violating conditions of his release from jail when drug agents allegedly found drugs in his apartment. That charge was later dismissed.

A month later, he was charged with refusing to submit to arrest and charged again with violating the conditions of his release when he was spotted by police and bolted. Those charges were later dismissed.

Calhoun’s guilt or innocence of the charges was never determined. Guilt was not a factor, despite the fact that when drug agents in May 2015 conducted a bail check on him to make sure he wasn’t in possession of illegal drugs, he willingly identified for them the traces of cocaine and marijuana they found in his kitchen, according to court records.

The charges against Calhoun, now 23, were dismissed because, according to forensic psychologists, he lacked the ability to stand trial on those charges.

Prosecutors likened his mental capacity to that of an 8-year-old. For that reason, all drug charges brought against Calhoun over a two-year span were dismissed and he was back on the street.

Calhoun is believed to be part of a relatively small group of people in Maine who have fallen through a crack in the criminal justice system.

The members of that group, including several known to be in the Lewiston-Auburn area, have a mental incapacity that prevents the state from taking them to trial for their actions in certain cases.

Yet they are not mentally compromised in a way that allows the state to commit them — as it might do with someone who is mentally ill — or require them to be supervised or even receive support services.

So these individuals are left in the community to wander a gray area, where they often lack the reason and judgment to steer clear of breaking the law when left on their own. The courts, once charges are dismissed, have no authority to steer defendants toward supervision or services they might need to stay out of trouble.

In recent years, acting by themselves or under the influence of others, some of these defendants have been charged with crimes that pose serious public danger, including arson, domestic violence and drug trafficking. They also have presented risks to themselves.

Police and prosecutors are frustrated by the system, saying that because the courts find such defendants incompetent and free them, the public is at risk.

Those same officials, along with defense attorneys, judges and psychologists, also say the courts, the community and the state are failing to protect such defendants from themselves and the corrupting influences they encounter in jail and on the streets.

Former Androscoggin County Superior Court Justice Thomas Delahanty II, who serves as U.S. attorney for Maine, said that during his time on the bench he was often frustrated by the lack of options available to those defendants.

“There are, overall, in terms of numbers, not that many cases when you look at the entire caseload,” he said, ‘but just for the few that there are, they can be very disturbing.”

‘You’re going to get different results from different doctors on different days.’

At the heart of the issue is the fact that defendants must be able to understand their legal situation. They must know, for instance, whether they would benefit from accepting a plea offer from prosecutors or testifying at trial.

They also have to understand what’s happening to them in court.

“It comes down to their ability to work with their attorney in their own defense,” said Dr. Ann LeBlanc, director of the Maine Forensic Service, which oversees court-ordered competency evaluations.

“They have to have knowledge of the legal facts and what we call a rational understanding of their situation, free from delusion,” she said.

“Some people aren’t even able to recognize that there’s a decision to be made,” LeBlanc said. “Other people can identify the decisions, identify information that they need, weigh alternatives and consequences and use abstract reasoning to apply that to their own situation.”

When competency is in question, the state orders an evaluation. If defendants are considered to be incompetent to stand trial, two questions are asked: Is the defendant a risk to himself or others, and does the defendant have a diagnosable mental illness?

If the answer to both questions is yes, a defendant will get services and treatment at the Department of Health and Human Services’ Riverview Psychiatric Center in Augusta.

If the answer to the second question is no — they don’t have a diagnosable mental illness — under the state’s current system, the judge in the case will dismiss the charges and the commissioner at DHHS must release the defendant from custody.

Calhoun and others in his situation were not identified as having mental illness — something for which they might be treated and recover their ability to stand trial. Rather, Calhoun was assessed to have a mental incapacity that likely wouldn’t change.

Complicating the situation: Because mental evaluations are not an exact science, psychologists sometimes disagree as to whether a person is competent to stand trial.

Lewiston defense attorney Henry Griffin represented a defendant who has been found both competent and not competent to stand trial on various criminal charges at various times, depending on the psychologist and judge.

David Glenn, 39, formerly of Lewiston, was deemed incompetent to stand trial in 2009, before Griffin had him as a client.

“He’s out there making decisions and being charged with intentional acts in these cases,” Griffin said, “and I’m like, ‘You gotta be kidding me. This guy’s been previously determined to be incompetent.’ I look at those prior evaluations and I say: ‘What’s changed? Why’s he better?’ Nothing’s changed. What’s changed is the doctor. You’re going to get different results from different doctors on different days.”

Further blurring the picture: A defendant may be considered incompetent to stand trial for one charge but competent to stand trial for a different charge, often depending on the seriousness of the case and the complexity of possible sentencing.

In the end, a judge will review the reports of the examiners and may even quiz them in court before deciding whether a defendant can understand the legal procedures that follow from a particular criminal charge.

That’s why a defendant may have been found competent to stand trial for a misdemeanor but not competent for a successive felony charge, LeBlanc said.

Authorities say these reasons and more explain why Calhoun and Bryan Wood, who was charged with setting three fires in downtown Lewiston in 2013, were allowed to return to the community despite prosecutors showing probable cause that they had committed the crimes with which they were charged.

Both were found incompetent to stand trail, yet neither was determined to have a mental illness, something that would have prompted mandatory treatment and, likely, supervision.

Too often, said Andrew Matulis, an assistant district attorney for Androscoggin County who prosecuted the Calhoun and Wood cases, such cases involve someone who is acting on their own — or someone else’s — worst criminal instincts, yet is immune from prosecution.

“Someone who functions on the level of an 8-year-old, (a drug dealer) could certainly get them to a point where they would understand the simple transactions of drug deals, but they would never be able to get to a point where they would understand plea bargaining to the extent that they would be able to explain a split sentence and probation conditions and how it all works,” Matulis said.

He said he could ‘pretty much get away with any crime he pleased.’

In 2013, Wood, then a 23-year-old living in Lewiston, was charged with three counts of arson stemming from fires he allegedly set in three downtown Lewiston apartment buildings — one occupied, the other two, vacant.

Wood’s co-defendant, Brian Morin, whose competence to stand trial had been called into question, eventually agreed to a plea offer and was sentenced to 25 years in prison with 20 years suspended, plus 12 years of probation.

At Morin’s sentencing, Androscoggin County Superior Court Justice MaryGay Kennedy said the 2:24 a.m. fires in the “highly congested area” of downtown Lewiston put residents in “extreme danger of loss of life.”

Although the fires caused only property damage, totaling more than $85,000, it was “truly just a miracle” that no one was injured, Kennedy said.

By his actions, Morin placed the community in fear and caused “an extremely dangerous situation,” Kennedy said.

In that case, all three arson charges against Wood were dropped more than three months after his arrest when Kennedy determined he was too disabled intellectually to stand trial. He had been jailed during that time.

That wasn’t the first time for Wood. It turned out he also had been charged with arson at age 18. Those charges also had been dismissed when a judge found he was not competent to stand trial.

Wood’s IQ had tested between 55 and 57, according to testimony at a 2013 hearing in Androscoggin County Superior Court in Auburn. The average range for IQ is between 90 and 110.

A friend of Wood’s testified at that hearing that Wood had told her he could “pretty much get away with any crime he pleased.”

In addition to the obvious public safety risk of letting dangerous defendants back into the community, Matulis, like defense attorneys interviewed by the Sun Journal for this story, expressed concern that adults with very low IQs are vulnerable to the criminal element.

“They are the perfect individuals for someone who wanted to use them to commit a crime,” Matulis said.

Wood’s attorney, Steve Carey, a criminal defense attorney in Portland who often handles cases involving competency issues, said he believes that may have been the case with his client.

“I had major concerns that the alleged co-defendant could have either had influence or was using Bryan as a scapegoat on that (arson) case,” Carey said.

Often, that attention is wanted, LeBlanc said. “People with intellectual disabilities are like all of us: They want to fit in; they want to have friends; they want to have people they do things with that are fun.

“And sometimes their ability to make good choices about those companions is not as good as we would hope,” she said. “And sometimes they engage with acquaintances or friends who are engaging in criminal behavior. And sometimes those people can be exploited by people who are smarter than they are because they want to be part of a group, they want people to like them, just like we all do. But their ability to identify people that don’t have their best interests in mind is not very good sometimes and that gets them into trouble.”

Ultimately, taking away mentally incapacitated defendants’ rights to live on their own or associate with whomever they please involves the profound and sticky issue of constitutional freedom: At what point do you step in and take this freedom away from an adult who is not considered mentally ill, but does not have the capacity to always make good choices, and may possibly make harmful ones?

Partly for that reason, Maine courts lack the authority to order a defendant, whose charges were dropped because of mental incapacity, to seek social services the judge and attorneys believe would benefit the defendant in the long run.

That same conflict leaves defense attorneys wondering about where their duties to their clients’ end, beyond legal representation.

“From a defense point of view, it’s really tough because we’re arguing (to the court), ‘You’ve got no jurisdiction (because the defendant has been deemed incompetent). You’ve got to let my people go,'” attorney Carey said. “But in reality, I want these people to be successful in life, and I don’t want to have to have them as my client three times in a row.”

What is NOT an answer to the problem: Riverview

One afternoon in May last year, state drug agents conducted a bail check on Tyron Calhoun, whose conditions of release barred him from having illegal drugs. The agents believed he was still dealing narcotics even after he had been arrested and charged with drug trafficking.

Calhoun opened his Lewiston apartment to the officers when they came knocking. They spotted small white flakes on the stove, which Calhoun willingly identified as cocaine residue. An agent field tested the powder, confirming it was cocaine, according to court records.

In a drawer next to the stove was a plastic bag that held a “green leafy” substance, which Calhoun again willingly identified as marijuana, according to a sworn statement by a drug agent.

Also in the drawer were several clear plastic bags with the corners cut off. Agents recognized them as packaging for narcotics. They also found a wad of cash, that statement said.

Lorne Fairbanks, a Lewiston defense attorney who recently represented Calhoun, said he sought support services for Calhoun when charges against him were dismissed because of his intellectual incapacity. But Fairbanks kept bumping up against roadblocks when he called Adult Protective Services at the Maine Department of Health and Human Services.

“I spoke with the case manager of the county and they said that, in order for them to get involved, there has to be a referral and there has to be a belief that someone was taking advantage of that person,” Fairbanks said.

He was told there must be some sort of abuse, such as financial or emotional.

“I don’t know what level it has to rise to for them to come out and actually accept him into their services,” Fairbanks said. “Having services available would definitely benefit someone in these circumstances and it’s just not there for them.”

Matulis, who had worked with Fairbanks to secure services for Calhoun, said if Calhoun had been treated like the 8-year-old he is considered to be mentally, he never would have been charged criminally and likely would have been provided social services, as well as a court-appointed guardian to make sure all of his personal interests and needs were met.

Peter Rice, legal director at Disability Rights Maine, said the state’s Adult Protective Services provides emergency services designed for someone in crisis and is not intended to be a provider of long-term assistance.

And, he said, no other government agency is poised to step in to help adult criminal defendants who need services but have fallen through a major crack in the system.

“That’s a huge problem,” Rice said. “It’s a real problem finding services for them and I think they end up on the street,” living in homeless shelters or reconnecting with their bad-actor acquaintances, then reoffending, he said.

DHHS does provide some services for people with confirmed intellectual disabilities or autism, according to Rice.

A person might qualify for housing, food and other assistance, depending on the severity of an intellectual deficit, Rice said.

The state might provide a bed at a group home or placement in adult foster care and provide flow-through Social Security funding for support services, he said, while others may live in an apartment with job assistance and other supports in the community.

However, the bar for such services is very high. The defendant must have an IQ under 70 or a test confirming autism, Rice said, and there must be confirmation of either before the defendant turns 18.

“Let’s say they’re 30 years old now and you can’t establish that (disability was confirmed by 18); it’s really difficult,” Rice said. “You’re facing an uphill battle trying to find the 30-year-old individual eligible for developmental services because you have to show that at age 18, they were eligible and that’s very difficult to do.”

Repeated efforts to speak with someone at DHHS’ Adult Protective Services and Guardianship were unsuccessful.

And for those who feel Riverview Psychiatric Center in Augusta is the answer, attorney Carey and LeBlanc with the Maine Forensic Service are among those who disagree strongly.

Carey said those defendants should never go to Riverview, and the inevitable finding of incompetence shouldn’t be postponed.

“When I’ve got someone with a deficit to the point that I don’t believe they’re going to be competent in the foreseeable future, I’m asking the court, ‘Don’t even go to Riverview. Don’t even do the observation,'” Carey said. “‘That’s not going to change. Make the finding that they’re not going to be competent in the foreseeable future now, instead of wading through the whole process.’

“Riverview, from my experience, tells us, ‘We’re not really the place to put those people, either,'” he said.

Even for the observation period, when psychologists are conducting their evaluations, the defendants shouldn’t be placed at a psychiatric hospital, Carey said.

LeBlanc agreed that a psychiatric center is no place for this population.

“There’s nothing about treatment at Riverview or anywhere that would . . . increase their intelligence,” LeBlanc said. “There is no medication, there is no talk therapy, there are no classes that would lead a person who was developmentally intellectually disabled to overcome that.”

Answers: ‘I don’t know that anyone really knows what to do.’

Between 2002 and 2013, David Glenn, now 39, of Auburn, was charged and convicted of domestic violence assault, criminal trespass, criminal mischief, violating a protective order and criminal threatening with a dangerous weapon. He was also charged 10 times during that period with violating conditions of release from jail and convicted seven of those times.

But in four of his criminal cases — one in 2008 and three in 2009 — all charges were dismissed after Glenn was found not competent to stand trial because of intellectual disability. Those charges included criminal mischief, domestic violence assault, probation violation and violating condition of release.

The District Attorney’s Office wrote in its dismissal letter in August 2009 that the results of an examination by the State Forensic Service are that “the defendant does not appear to understand charges against him, is childlike in his behavior and thinking, and lacks the necessary capacities to proceed with trial. It does not appear that the defendant’s condition is likely to change.”

There are no efforts underway to fill the void into which Glenn, Wood, Calhoun and others like them have fallen, again and again. And, seemingly, there are none on the horizon.

“There’s a small but sometimes colorful number of people who fall into that group,” LeBlanc said. “In those situations, oftentimes the judge, the prosecutor and the defense all would like to find something to do, but in our system, in our society, it’s hard to know what that would be.

“I don’t know that anyone really knows what to do,” she added. “Many, many people would like to do something, but we haven’t been able to figure out what it is. . . . What are we willing to do socially in our society that we would find acceptable that would be helpful for these individuals as well as for our communities at large?”

As an attorney on the front lines, Carey said he believes “there should be some type of oversight or adult services, a program or something that could at least come up with adult case management.”

He said all of the defendants he’s represented “could benefit from some type of supervision or service provider that could check on them and make sure they’re getting their needs met.”

Fairbanks, the Lewiston attorney who recently represented Calhoun, agreed that if the court could provide defendants with a case manager who could help steer them to support services once charges are dismissed, that would be ideal.

Expecting defendants to pursue services on their own likely wouldn’t work for them, he said. Despite even their best intentions, they may lack the capacity to follow through by themselves.

But Fairbanks pointed out that “if you make it a requirement (of the dismissal of charges,) I wouldn’t want to see them punished at the end of it for not following through,” he said. “I don’t know if there’s a good answer to that. I don’t think making it a requirement is necessarily the path to go down.”

Maine Rep. Barry Hobbins, D-Saco, who has served on the Legislature’s Judiciary Committee for 16 of his 26 years as a state lawmaker, said the issue of competency is one that has surfaced many times in the Legislature but never fully resolved.

“It’s one of those issues that sometimes falls between the cracks,” Hobbins said, not fitting squarely into any single legislative committee’s purview. “It’s one of those areas that, quite frankly, should possibly be addressed in a hybrid scenario of representatives on different committees of jurisdiction.”

He said he could envision a work group composed of lawmakers from various legislative committees, including judiciary, health and human services and criminal justice, as well as members of stakeholder and advocacy groups and medical and legal experts.

“I think that the time has come to consider this as one of those areas where you might want to consider a blue-ribbon commission approach,” he said. “We’ve done it in the past very successfully in many areas.”

“This is one where you’re dealing with a very, very vulnerable group of society,” Hobbins said.

cwilliams@sunjournal.com

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