Plaintiff: Joseph J. McBurney, Esq. Jeffrey Q. Morin, Esq.
Defendant: Robert Kando, Esq.
McLean's current (now fourth) attorney and the chief
forensic psychiatrist at Rhode Island Hospital say that
McLean is not competent to stand trial. McLean's three
prior defense attorneys and the director of forensic
psychiatry at Eleanor Slater Hospital say that he is. So does
November 24, 2015, a grand jury returned an indictment
charging Andrew McLean and two others with first degree
robbery of a pawnshop, assault with a dangerous weapon
(shooting the pawnbroker in the head), conspiracy, and
ancillary firearm offenses. On March 22, 2016, assisted by
retained (and his first) attorney John M. Cicilline, McLean
pled guilty to first degree robbery in exchange for a
parolable life sentence and concurrent ten-year terms for
other charges. He also received a mandatory consecutive,
non-parable twenty-year term, which was suspended with
probation, for discharging a firearm and injuring the
shopkeeper during the robbery.
months later, McLean learned from ACI inmates that Mr.
Cicilline had mistakenly told him, prior to the guilty plea,
that his initial parole eligibility date would be in ten
years, instead of the twenty years which the Legislature had
recently decreed for a life term on a first degree robbery
charge. With the assistance an of an ACI inmate librarian,
McLean filed a pro se postconviction relief (PCR)
application based upon ineffective assistance of counsel and
asked that his guilty plea be vacated. Since he could no
longer afford counsel, the Court appointed Glenn Sparr, an
experienced criminal defense attorney, to represent him in
his pursuit of the PCR petition. At the March 24, 2017 PCR
hearing, Mr. Cicilline readily acknowledged that he had
erred, and the prosecutor also admitted that he, too, had
been unaware that the ten-year parole eligibility had been
extended to twenty years and that he had misinformed Mr.
Cicilline of the ten-year period. PCR Hr'g. at 5, Mar.
Court, with Mr. Sparr's participation, thoroughly and
carefully explained to McLean that if his PCR application
were granted, all of the original counts in the indictment
would be restored and that this Court would no longer engage
in any binding plea negations. That colloquy included the
following dialog, during which McLean was under oath:
MR. SPARR: I have met with Andrew three times about this
since I've been appointed, and I indicated to him that I
was going to find merit in one of his contentions. I will
also put on the record that in my opinion he is making this
request of this Court knowing and voluntary [sic].
I have discussed with him the ramifications of making this
request to the Court, that he obviously doesn't have to
do this. That if he wanted to, he could withdraw his request
and his application and could leave well enough alone, so to
speak, but I believe, based on my conversations with him,
that this is what he does want to do. I know the Court will
address him, but I do believe that he is making this request,
if this is what he still wants to do, knowing and voluntary
[sic] and intelligently. ***
THE COURT: Mr. McLean, I want to be sure that I have your
assent to the application that has been filed and the
comments that Mr. Sparr has made, that you are in full
agreement with his representations to the Court, that you are
in full agreement with that which he seeks from the Court,
namely, essentially to have your guilty pleas vacated, and
that the matter would thus be back in the process as if you
had never pled guilty to this case, the matter would simply
be pending and it would be back to, if I can use the
vernacular, square one.
Is that your desire, sir?
MR. MCLEAN: Yes.
Q. You understand that if this post-conviction petition for
relief is granted, not only are you back to square one, but I
would advise you that this Court will in no way in the future
engage in any binding plea negotiations or discussions with
counsel for you or counsel for the state, and only one of two
things will happen, or possibly three things: The matter will
go to trial on all counts, we understand that; or the state
will dismiss the case. I don't know that that's very
likely; or thirdly, you may later decide to change your mind
and plead to some or all of the counts, but if the third
option occurs, this Court will not bind itself in any way to
any sentence that would be imposed under those circumstances.
Do you understand all three of those?
A. The last one -
Q. I can't hear you.
A. I said the last one I kind of don't understand. The
Q. What part did you not understand, sir?
A. The third one.
Q. That is, if you went to trial or that if you plead guilty
Q. If you plead guilty later on, I'm telling you after
today, if I grant this petition, I'm not binding myself
to any kind of sentence that will ever be imposed in this
case. You're back to square one. I am not going to get
involved and get involved in any binding plea agreements
Q. Do you understand that?
Q. Do you agree to that?
Q. Okay. Very well. The state not voicing any objection to
the particular circumstances present in this case, and the
defendant-excuse me-the applicant being insistent on pursuing
this application, knowing full well the consequences and
ramifications, the petition is granted. Unless there's
something else you want to add [addressing the prosecutor].
PROSECUTOR ROKLAN: *** I just want to make it clear, though,
the dismissed counts in exchange for the plea come back.
THE COURT: Everything is back to square one. Every count in
this indictment is right back in play.
Do you understand that?
MR. MCLEAN: Yes. PCR Hr'g. at 4; 8, Mar. 24, 2017.
the Court granted the PCR application and also installed Mr.
Sparr as trial counsel. Within a few months, however, McLean
began to disparage Mr. Sparr's efforts, filed a
disciplinary complaint against him, and demanded to be
separated from him. Because of the disciplinary complaint,
Mr. Sparr also requested that he be allowed to withdraw. On
September 6, 2017, Mr. Sparr was released from the case, and
attorney Jay Canham, another veteran criminal defense
attorney, was appointed to represent McLean, with this
Court's admonition that no additional court-appointed
attorneys would be furnished if McLean also failed to get
along with Mr. Canham. McLean voiced his understanding and
said he had no questions. Tr. 3-5, Sept. 6, 2017.
January 8, 2018, Mr. Canham, at McLean's request, moved
for a grant of bail and a bill of particulars. Both motions
were denied. Mr. Canham, also at McLean's request, asked
the Court to disqualify itself. The recusal motion was also
denied. McLean again, notwithstanding this Court's prior
admonitions, expressed dissatisfaction with Mr. Canham in a
fashion similar to the criticism he had leveled at Mr. Sparr,
and he asked that Mr. Canham also be relieved as counsel.
of his imprecations, aimed first at Mr. Sparr and then at Mr.
Canham-and in each instance with trial looming closer-McLean
nonetheless continued to lament his inability to proceed
without the help of a lawyer. Accordingly, this Court, after
extensive dialog with McLean, relented and appointed yet
another attorney, Robert Kando (current counsel), to
represent him. McLean has since complained about Mr. Kando,
too; and he has filed a disciplinary complaint against him,
as well. Tr. passim, Jan. 8, 2018.
McLean, at least to date, has not requested separation from
Mr. Kando, who, to his credit, has maintained his willingness
to represent him. He has, however, expressed a concern that
McLean is not competent to proceed to trial because,
according to Mr. Kando, McLean refuses to confer with him,
engages in protracted monologues complaining about the court
system, and is allegedly unable to assist in his defense. On
March 15, 2018, at Mr. Kando's request, this Court
ordered a competency evaluation pursuant to G.L. 1956 §
a few days, McLean was interviewed at the Adult Correctional
Institutions (ACI) by Dr. Barry W. Wall, Director of Forensic
Psychiatry at Eleanor Slater Hospital (ESH), and his
colleague Dr. Michael J. Byrne, a psychiatrist and a Fellow
at ESH. They also administered what Dr. Wall referred to as a
Competence Assessment Screening Tool for Persons with Mental
Retardation (CAST-MR), a standardized psychological test
which assists in determining competency to stand
trial. Thereafter, Drs. Wall and Byrne prepared a
Competency Report as well as a Risk Assessment Evaluation.
Neither document was intended to be discursive nor conclusive
of McLean's mental condition; rather, the March 28, 2018
"competency" report was prepared in order "to
trigger hospitalization so that we could do a more in-depth
analysis of his intellectual capabilities. . . . It was a
provisional assessment at the time. We wanted more
testing which needed to occur in the hospital, and
observation." Comp. Tr. at 105, 106, 107 (emphasis
added). As Dr. Wall explained:
"[T]he first [March 28, 2018] examination is just a
snapshot without really getting to know him, and the second
examination is more in-depth, after the hospital has had the
opportunity examine him 24 hours a day, seven days a week, to
get an idea of what his capacities are, what his limitations
are. And we've had a chance by that point to really
observe him, to see if he has any symptoms of mental illness
that might account for things or symptoms of drug use that
might account for problems of intellectual disability. So
it's more in-depth analysis because our entire team has
had a chance to observe him round the clock for a long time
in the hospital." Comp. Tr. at 121-22.
Risk Assessment Evaluation was created principally to
determine whether McLean was likely to endanger the ESH
populace or himself. McLean's risk was deemed
"high," not because of any psychiatric
reason, but because he had a "history of assaultive
behavior (his current charges aside) and antisocial
personality traits[.] . . . The relationship, if any, between
possible Intellectual Disability Disorder and risk
will be assessed during his inpatient psychiatric
hospitalization." Risk Assessment Evaluation at 5
a neuropsychologist administered a battery of tests to assess
McLean's mental functioning and to determine his IQ (69).
He was further evaluated by Dr. Wall and Dr. Byrne on May 3,
2018; and, after further reviewing his progress, they
presented their June 4, 2018 Competency Report, concluding
that McLean was competent to stand trial.
Wade C. Myers, Director of Forensic Psychiatry at Rhode
Island Hospital, who was engaged as an expert by the
defendant, met with McLean on August 7, 2018. Subsequently,
in his October 12, 2018 report, Dr. Myers opined that McLean
was not competent to go to trial.
four-day competency hearing during the week of January 28,
2019 (the Competency Hearing), Dr. Wall and Dr. Myers
testified, as did all four of McLean's attorneys. Also
presented were transcripts of prior court proceedings before
this Court in which McLean participated, as well as some of
McLean's recorded (and transcribed) ACI telephone calls,
and some other written materials.
United States Supreme Court has long made clear that
"[a] criminal defendant may not be tried unless he is
competent . . . This requirement 'has a modest aim: It
seeks to ensure that [the defendant] has the capacity to
understand the proceedings and to assist counsel.'"
United States v. Kenney, 756 F.3d 36, 43 (1st Cir.
2014) (quoting Godinez v. Moran, 509 U.S. 389, 402
(1993); see also Dusky v. United States, 362 U.S.
402 (1960) (other internal cites omitted). "The
'understanding' required [of the defendant] is of the
essentials-for example, the charges, basic procedure,
possible defenses-but not of legal sophistication."
United States v. Brown, 669 F.3d 10, 17 (1st Cir.
2012) (quoting Robidoux v. O'Brien, 643 F.3d
334, 339 (1st Cir. 2011)).
Rhode Island law, McLean is statutorily presumed competent,
and he shoulders the burden to prove, by a fair preponderance
of the evidence, that he is incompetent. Sec.
40.1-5.3-3(3)(b). He must thus demonstrate that he is
"unable to understand the character and consequences of
the proceedings against him" and that he is also
"unable properly to assist" in his defense.
Id. at 3(a)(5). As stated in State v. Owen,
693 A.2d 670, 671 (R.I. 1997) (quoting State v.
Cook, 104 R.I. 442, 447, 244 A.2d 833, 835-36 (1968)):
"For a court to permit an accused to be prosecuted
criminally, 'three things must be found: first, that
defendant understands the nature of the charges brought
against him; second, that defendant appreciates the purpose
and object of the trial proceedings based thereon; and third,
that defendant has the mental capacity to assist reasonably
and rationally his counsel in preparing and putting forth a
defense to the criminal charges of which he stands
decisions, like insanity trials, are typically balanced on a
fulcrum of expert testimony. "Ideally,
psychiatrists-much like experts in other fields-should
provide grist for the legal mill, should furnish the raw data
upon which the legal judgment is based. It is the
psychiatrist who informs as to the mental state of the
accused-his characteristics, his potentialities, his
capabilities." State v. Gardner, 616 A.2d 1124,
1127 (R.I. 1992) (citations omitted.)
end, however, it is a legal not a medical decision, and the
trial justice is free to choose between expert opinions so
long as he does so "not from mere whim or fleeting
caprice, but with reasonable justification."
Cook, 104 R.I. at 449, 244 A.2d at 836. "While
judges may rely heavily upon the advice of mental health
professionals in assessing a defendant's competency, it
is the judge, not the mental health professionals, who must
make the final call and who bears the weight of the final
decision on his or her shoulders." In re
Tavares, 885 A.2d 139, 150 (R.I. 2005).
focus of the Competency Hearing was narrow, as both Dr. Myers
and Dr. Wall agree that McLean understands the charges, the
trial process, and the roles of the various parties
(i.e., the judge, the prosecutor, defense counsel,
and the jury). Comp. Tr. at 10-11, 59-61, 123, 292. In
addition, both Dr. Myers and Dr. Wall agree that McLean has a
Mild Intellectual Disability Disorder and a full scale IQ of
Thus, the only issue to be decided by the Court is whether
McLean has the mental capacity to assist
Myers believes that McLean's low intellectual capacity,
when coupled with what he perceives as McLean's
Oppositional Defiant Disorder (ODD), renders McLean without
the mental capacity to assist Mr. Kando. He believes,
however, that McLean's present "inability to
properly assist in his defense could be treated through a
combination of brief, focused psychotherapy (geared at a
basic, problem-solving level) in tandem with psychotropic
medication to target his underlying ODD symptoms
(e.g., anger, oppositionality, resentfulness,
suspicioness [sic])." Myers Rep. at 11.
Wall disagrees. He has concluded that McLean does not suffer
from ODD and that irrespective of his Mild Intellectual
Disability Disorder, McLean is nonetheless able to rationally
confer with his lawyer. Wall Rep.2 at 9; Comp. Tr. at 261-62.
All three of McLean's prior attorneys testified that they
conferred with McLean about the case without his resistance
and that he never exhibited any sign that he was incompetent
to stand trial. Mr. Kando offered a different scenario,
testifying that McLean has resisted his efforts to discuss
the case, has engaged in protracted rebukes of the criminal
judicial system and has sought advice from prison inmates
rather than from him.
noted above, there is no disagreement between Dr. Wall and
Dr. Myers that McLean demonstrates Mild Intellectual
Disability Disorder, a debility which, as explained by Dr.
Wall, is a neurodevelopmental condition reflecting low
cognitive/intellectual function. However, a person who has a
mild intellectual disability (typically with an IQ
which hovers in the 60's to about 70) can usually
function in society. Notwithstanding a substantially low IQ,
he or she is capable of learning, albeit at a slower rate.
Comp. Tr. at 117-120. Dr. Myers similarly testified,
"Having an intellectual disability doesn't equate
with a person being competent to stand trial or incompetent
to stand trial." Comp. Tr. at 93.
and June of 2013, Dr. Wall and Dr. Byrne again met with
McLean and reviewed all of the test results and his progress
at ESH. They also reviewed other pertinent materials such as
court transcripts, McLean's written materials, and
previously recorded ACI telephone calls. By that time McLean
had also decided to engage in weekly one-on-one competency
restoration classes with a psychologist and had voluntarily
enrolled in GED, social studies, and life skill classes.
Additionally, according to ESH staff observations, he had
displayed a daily ability to conduct himself independently
without any symptoms of mental illness, and, importantly,
without behavioral outbursts and with no need for medication.
Wall Rep.2 at 3; Comp. Tr. at 110-111, 113.
Myers also testified that after eight to twelve classes, he
expected that McLean's competency would likely have
improved. Comp. Tr. at 81. He also noted that by the spring
of 2018, McLean had "improved with one-on-one
counseling. For example, his original CAST-MR score was 32.5
and his most recent was 38.5. So he now tests pretty much
within the range of people recommended to courts as competent
even though they have an intellectual disability." Comp.
Tr. at 317; Wall Rep.2 at 9 ("While he still has a Mild
Intellectual Disability Disorder . . . competency education
has mitigated his previous deficits.").
Dr. Myers has acknowledged that McLean himself told him
during his August 7, 2018 interview that "the competency
classes have been helpful." Myers Rep. at 6. Mr. Kando,
too, has accepted that "McLean has learned to adapt to
his handicap." McLean Supp. Mem. at 9.
Dr. Wall testified that those who, like McLean, have a mental
disability but have experienced prior criminal prosecution,
may actually better comprehend court proceedings and the
importance of conferring with counsel than those who,
although they suffer no such disability, have never had to
deal with criminal court matters:
"It is important to assess a person's ability to
stand trial based on what they know about what could happen
in court. A person with a lot of experience in the criminal
justice system who has a lower IQ may actually be competent
or capable in some ways that a person with a higher IQ with
no experience in the court might not have. So that's why
the examination of competence to stand trial is separate from
the examination of diagnosing an intellectual disorder. And
that's why we look at both the CAST-MR, as well as the
face-to-face interview to help us assess a person's
ability to stand trial." Comp. Tr. at 120.
Dr. Myers met with McLean at ESH on August 7, 2018, he had
reviewed various source materials similar to those considered
by Dr. Wall, as well as Dr. Wall's June 4, 2018 report.
He also was cognizant of McLean's test results, including
his IQ of 69 and low academic skills. Like Dr. Wall, he knew
that McLean had not progressed beyond the ninth grade, had
quit school with failing grades and had amassed a history of
suspensions and abused drugs, and had demonstrated antisocial
tendencies. He had also considered Mr. Kando's reported
difficulties communicating with McLean, as well as Mr.
Kando's concern that McLean was relying on
"jailhouse notions" of other ACI inmates,
particularly his incarcerated grandfather.
noted earlier, Dr. Myers, like Dr. Wall, also acknowledged at
the competency hearing that McLean's mental disability,
particularly his low IQ, does not, by itself, render McLean
incompetent. His opinion that McLean is nonetheless
incompetent is based on McLean's intellectual disability
coupled with his belief that McLean also suffers from ODD.
Myers Rep. at 11; Comp. Tr. at 93-94.
making that ODD diagnosis, Dr. Myers relied upon the
Diagnostic and Statistical Manual of Mental
Disorders, published by the American Psychiatric
Association (5th ed. 2013) (the DSM-5), the principal
authority for diagnosing mental disorders. Dr. Myers opined
in his report and at the competency hearing:
"[McLean] also meets the criteria for Oppositional
Defiant Disorder, which is a pattern of an angry/irritable
mood, argumentative/defiant behavior, and/or vindictiveness
lasting at least six months, and that occurs during
interactions with at least one other person who is not a
sibling. Mr. McLean has the necessary four symptoms needed
for this diagnosis, and they include being touchy or easily
annoyed, being angry and resentful, arguing with authority
figures, and refusing to comply with authority figures."
Myers Rep. at 11, Comp. Tr. at 73-76.
DSM-5 criteria underpinning a finding of ODD consist of the
following factors and accompanying notes: