Criminal
Aug. 2, 2002
Death Row Attorney Is Guardian Ad Litem
SAN FRANCISCO - A death row inmate convicted of three 1980s murders is now so mentally ill that he's been declared unfit to help his attorneys prepare his appeal.
That has put lawyers and judges in the case of Jon Scott Dunkle in an odd position that has no precedent in California's 25-year-old death penalty law: Dunkle's lengthy appeals process will continue, but no one knows if he will be ever be sane enough to be executed.
For now, the California Supreme Court has appointed Dunkle's lead attorney to act as his guardian ad litem, allowing the defense team to carry on without needing Dunkle's permission to gather evidence that might help his case.
But experts say the high court's novel intervention may encourage other defense attorneys representing chronically unstable death row inmates to seek guardianships, adding a complicated new twist to the drawn-out capital appeals process.
"The court has seemingly recognized that there is an impact to a person being incompetent during appeals and habeas corpus, which could have a fairly large implication,' said San Francisco attorney John T. Philipsborn, a veteran capital defense specialist who has worked on Dunkle's case for five years.
Prosecutors could ultimately prevail in their effort to uphold the judgment of death for Dunkle's murder of two Belmont boys in 1981 and 1984, only to see the defendant's execution postponed indefinitely because of his ongoing mental problems.
It is well-settled law that mentally incompetent people cannot be executed, even if the defendant was deemed sane at the time of his crimes and when he stood trial.
Dunkle's sanity during his high-profile trial in 1990 was hotly contested and will occupy center stage in his appeals, along with allegations that the attorneys who represented him at trial failed to provide him with an adequate defense.
Records show that Dunkle was repeatedly institutionalized in mental hospitals following his arrest on murder charges in 1986 because he was behaving bizarrely in jail. He insisted his only ally was the San Mateo County district attorney's office. At trial, his defense attorney conceded in court that Dunkle's acts were "absolutely indefensible" and described the case to the jury as one of "really almost overwhelming evil."
Ironically, the same judge who found Dunkle fit to stand trial concluded in 2000, after a special hearing to re-examine Dunkle's competency, that he was too ill to work with his lawyers on his appeals.
At trial, San Mateo Superior Court Judge Judith W. Kozloski rebuffed the opinions of a dozen mental health professionals who said Dunkle suffered from a major psychotic illness and sided with the prosecution's psychiatric expert, who concluded Dunkle was faking mental illness to avoid punishment.
"His defense at trial was, 'Cut me a break because I've been diagnosed a chronic schizophrenic,'" said Deputy Attorney General Rene Chacon. "But the record does not indicate that he was not lucid at the time he committed the two murders."
However, after trial, when Dunkle's appellate attorneys complained to the Supreme Court that his illness was an obstacle to completing his petition for habeas corpus, the court in 1999 assigned Kozloski to conduct a fact-finding hearing.
Following extensive testimony, including reports from prison authorities that Dunkle was being forcibly medicated because he was a danger to himself and others, Kozloski concluded that Dunkle's mental state had deteriorated to the point that he was unable to help his lawyers in their effort to prepare a habeas petition.
Court documents indicate that Dunkle refused to talk to any attorney except Philipsborn. Reports also show that he had displayed classic symptoms of schizophrenia such as banging his head against his cell wall, refusing to attend to personal hygiene and asserting that voices in his head were manipulating him.
Conrad Petermann, of Beverly Hills, Dunkle's lead appellate attorney, was designated last week by the Supreme Court as Dunkle's guardian, over the objection of the state attorney general's office that the appointment may create a conflict of interest.
Petermann said the guardianship is merely a procedural step that will enable him to obtain medical records that would ordinarily be kept confidential without consent from Dunkle to release them. "It puts me in the position of being able to do whatever my client would have done in his own behalf with regard to this lawsuit,' Petermann said.
The medical records will be cited as evidence in the habeas petition that Petermann plans to file in compliance with a court-imposed deadline of January 2003. Dunkle's automatic appeal, initiated in 1993, is still in the briefing stages.
In addition to his death sentence for the Belmont murders, involving victims who were 12 and 15 years old, Dunkle was sentenced in 1995 to life without parole for the 1985 murder of a 12-year-old Sacramento boy. Although prosecutors did not offer conclusive evidence that any of the victims were sexually assaulted, they maintained that Dunkle was a sexual sadist.
Given the slow pace of capital appeals, it may be years before the Supreme Court decides Dunkle's fate and years more before his federal appeals are resolved.
Meanwhile, the sparring over Dunkle's sanity figures into an ongoing debate among specialists and academics over how best to evaluate a defendant's competency to assist counsel.
Philipsborn argues that courts traditionally have deferred too much to mental health professionals to determine whether a defendant has the capacity to consult with counsel with a reasonable degree of rational understanding.
He advocates that lawyers should play a more active role in the review process because trial preparation rests so much on the quality of the interaction between client and counsel.
"It isn't so much that a higher threshold is needed, but that competency involves a wider range of capabilities than most lawyers have traditionally argued for,' he said.
Others in the defense bar say that with the wide prevalence of mental illness in prison, particularly among the 600 inmates serving death sentences, the appointment of guardians makes good sense legally and ethically.
"I don't know how many prisoners meet the threshold that this prisoner met, but many, many are very seriously mentally ill,' said Steve Fama, a staff attorney at the Prison Law Office, in San Rafael. "What we have found is that approximately 20 percent of the prisoners have some sort of mental health problem that is constitutionally required to be addressed."
Prosecutors are concerned the defense bar may exploit claims of post-conviction incompetence to gain a tactical advantage and further delay the appeals process.
"We're going to hear this as another avenue that the defense will travel if they have any support for such a position as a means of avoiding the ultimate sanction that was set by the jury,' said Steve Wagstaffe, San Mateo's chief deputy district attorney, who prosecuted Dunkle at trial.
And what if Dunkle remains incompetent even after he's exhausted all his appeals?
Prosecutors say they may have no choice but to seek a court order forcing him to take psychotropic medication that he routinely resists because he doesn't like the side effects. In theory, a continuous dosage of such medication could stabilize Dunkle's mental state enough that a court would find him fit to be executed with lethal chemicals.
Fama said that would be "a perverse use of medication."
Peter Blumberg
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