Criminal Competency on Trial: The Case of Colin Ferguson
Criminal Competency on Trial
Author(s) Mark C. Bardwell
Bruce A. Arrigo
Published 2002
Publisher Carolina Academic Press
Country United States
Pages 408
ISBN 9780890890707

Criminal Competency on Trial: The Case of Colin Ferguson is a book by Mark C. Bardwell and Bruce A. Arrigo, published by Carolina Academic Press, Durham, NC, in 2002.


Criminal Competency on Trial examines the legal standards by which one can stand trial and the psychological instruments by which one's mental health status is assessed. Acknowledging that determinations of trial fitness represent the most significant mental health inquiry pursued in the system of criminal law today, thoroughly reviews and carefully explains the legal and psychological limits of competency to stand trial (CST). To highlight these limits, this text systematically investigates the controversial and high-profile case of Colin Ferguson, the New York City railway killer who, following a competency finding, elected to represent himself. He was found guilty on all criminal charges.

This book proposes a series of clear, practical, and concise justice policy reforms designed to improve the understanding and employment of the CST doctrine. By demonstrating where and how these policy recommendations would substantially change the CST doctrine, especially in the case of Colin Ferguson and other high-stakes defendants such as Theodore Kaczynski (a.k.a. the Unabomber), Criminal Competency on Trial offers a systematic evaluation of the doctrine. No other book of its type has offered such a systematic evaluation of the CST doctrine while mindful of its legal, psychological, and criminal justice policy dynamics.

Table of contentsEdit

Chapter Page
Preface xiii
About the Authors xv
Introduction. Competency to Stand Trial: An Overview 3
Chapter 1. The Incompetency Doctrine: Historical Considerations, Conceptual Confusion, and Practical Problems 15
A. Socio-Legal History of the Incompetency Doctrine 15
B. Purposes and Justifications for the (In)Competency Doctrine 19
1. The Incompetency Doctrine’s Purposes: What is it Designed to Do? 19
2. Justifications for the Incompetency Doctrine: Underlying Jurisprudential Intent? 20
3. Competency to Stand Trial versus Criminal Responsibility 24
a. Competency 25
b. Criminal Responsibility 26
C. Confusion with Competency to Stand Trial and Criminal Responsibility 29
Chapter 2. The Legal Standard of Competency: Case Developments 33
A. Competence to Stand Trial 35
1. The Dusky Decision 35
2. Limitations and the Dusky Decision 37
B. Competence to Waive the Right to the Assistance of Counsel and Represent Oneself 41
1. Right to the Assistance of Counsel in Federal and State Court 41
2. The Faretta Decision: Competency and the Right to Waive the Assistance of Counsel 42
(a) Limitations and the Faretta Decision 43
(b) Faretta and the Majority Opinion 44
(c) Faretta and the Dissenting Opinion 46
(d) The Relationship Between Faretta and Dusky: More Practical Problems and Conceptual Confusion on the Matter of Competency 47
3. The Godinez Decision 49
(a) Factual and Procedural History 50
(b) Godinez and the Majority Opinion 52
(c) Godinez and the Dissenting Opinion 55
(d) Ambiguity, Conceptual Confusion, and the Godinez Decision 58
(e) Godinez: Defining Competency and Unanswered Questions 60
Chapter 3. The Psychological Standard of Competency: Assessment Developments 63
A. The Evolution of the CST Clinical Protocol 64
1. The Competency Screening Test 65
2. The Competency Assessment Instrument 68
3. The Interdisciplinary Fitness Interview 70
4. The Georgia Court Competency Test and Georgia Court Competency Test-Mississippi Hospital 73
B. Reviewing the Instruments and a Call for Greater Attention to Trial Abilities 76
C. The Macarthur Competence Assessment Tool-Criminal Adjudication 77
1. The MacArthur Research Network and the Competency Project 77
2. The MacArthur Treatment Competency Study 79
3. Development of the MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA) 86
4. Structural Limitations and the MacCAT-CA 88
5. Summary of CST Protocol: Psychological Tests and Competency Constructs 90
Chapter 4. Mental Health Disorders: The Case of Paranoid and Delusional Features 95
A. Schizophrenia: General Features and Diagnostic Requirements 98
B. Schizophrenia, Paranoid Type: General Features and Diagnostic Requirements 103
C. Delusional Disorder: General Features and Diagnostic Requirements 106
D. Delusional Disorder, Persecutory Subtype: General Features and Diagnostic Requirements 110
E. Personality Disorders: General Features and Diagnostic Requirements 112
F. Paranoid Personality Disorder: General Features and Diagnostic Requirements 114
G. CST Complications: The Intersection of Psychology and the Law 117
1. Clinical Objectives in Forensic Settings 120
2. CST Evaluation Time Constraints and Paranoid/Delusional Disorders: The Interplay Between Assessment, Time, and Other Confounding Subissues 122
3. Normal and Abnormal Traits: Degrees of Impairment and Clinical Diagnosis 133
4. Confusing the Issue of Competency with Diagnostic Conclusions 136
5. Sum and Substance: Theoretical Groundwork and Practical Meaning 140
Chapter 5. The Matter of Colin Ferguson: A Case Study Inquiry 143
A. Why Ferguson: The Issue of Competency, the Data Selection Process and its Unique Presentation 145
1. A Synopsis: The Crime, Mr. Ferguson’s Legal Representation, the CST Assessment, and the CST Outcome 148
2. The Man: Information Sources and Mr. Ferguson’s Paranoid and Delusional Behavior 150
3. The Expert Testimony 159
(a) The Defense Calls Dr. Richard Dudley: Direct Examination by Defense Attorney Mr. Kuby 162
(b) Cross Examination by Assistant District Attorney Richard Peck 178
(c) The People call Dr. John D’Alessandro Direct Examination by Mr. Peck 192
(d) Cross Examination by Mr. Kunstler 209
(e) The People Call Dr. Allen Reichman: Direct Examination by Mr. Peck 221
(f) Cross Examination by Mr. Kuby 230
4. Closing Arguments 244
(a) Closing Argument by Mr. Kuby for the Defense 244
(b) Closing Argument by Mr. Peck for the People 252
5. Opinion of the Court: The Issue of Competency, Addressing Ferguson’s Requests to Proceed Pro Se, and Strike the Insanity Defense 256
(a) Judge Belfi’s Ruling on the Competency Issue 256
(b) Collateral Issues: Judge Belfi’s Ruling on Ferguson’s Request to Proceed Pro Se and Application of the Insanity Defense 257
6. Summary of Ferguson’s Pretrial Competency Hearing 270
Chapter 6. A Psychological and Legal Analysis: The Controversial Case of Colin Ferguson 273
A. Psychological Analysis: An Overview of the Relevant Issues in the Case of Colin Ferguson 274
1. Models for Forensic Evaluation and Direct and Cross-Examination Testimony: The Lack of Uniformity, the Issue of Competence, and Colin Ferguson 275
2. Generalizing to Ferguson: Lack of Uniformity in CST Assessment Protocol, Provisional Diagnostic Findings, and Expert Services 278
3. Ultimate Issues, Expert Services, and Ferguson 281
4. Couching the Expert Opinion in the Most Favorable Light and Attorney Strategy 284
5. Generalizing to Ferguson: Advancing Legal Theories, Paranoid and Delusional Disorders, and Pejorative Affect 286
B. Legal Analysis: An Overview of the Relevant Issues in the Case of Colin Ferguson 290
1. The Court’s Pretrial Hearing Decision and New York Legal Precedent 292
2. Political Influences in Judicial Decision Making and Limitations with New York Precedent 294
3. The Role of Expert Services in the Courts and Legal Decisions: Emphasizing Credibility Not Uniformity in CST Assessments 298
4. Generalizing to Ferguson: Minimizing the Importance of CST Assessment Protocol 300
5. The Aftermath: The Trial, the Appeal, and the Outcome 301
6. Sum and Substance: Revisiting the Legal and Psychological Assessment Dynamics in the Ferguson Case 306
Chapter 7. Criminal Justice Policy and the CST Process: Strategy for Reform 309
A. Lawyers and Pragmatic Solutions Regarding Competency Laws, Evaluators, and Competency to Stand Trial 310
1. Assessment Procedures 312
2. Assessment Findings 313
B. Psychological Assessment and CST Rulings 315
1. Shades of Paranoia: Paranoid or Delusional, Does It Really Matter When Assessing Competence-Related Abilities? 316
2. Informational Value and Competency Assessments 317
C. Legal Policy Remedies 319
1. The Court’s Prerogative to Appoint Standby Counsel 323
2. Defendant’s Right to Select Counsel of Choice Following Revocation of the Right to Proceed Pro Se 327
3. Hybrid Representation 330
4. States Are Free To Adopt Higher Competency Standards 332
Chapter 8. Beyond Ferguson: New Directions and Competency to Stand Trial 335
A. Theodore Kaczynski 336
1. Synopsis of Kaczynski: Background and Crimes 337
2. Relevant Psycholegal Issues and the Trial’s Outcome 338
B. Revisiting Kaczynski’s Paranoia: Opposing Views and Profound Evidence 342
1. Opposing Views: Pathologizing Radical Ideology or Recognizing Debilitating Mental Illness 343
(a) Revisiting Kaczynski’s Paranoia 344
(b) Profound Evidence 344
C. The Ferguson and Kaczynski Cases: Revisiting the Legal and Psychological Dynamics in the CST Process 349
1. The Comparative Analysis: CST Problems Achieved in Similar and Different Ways 350
2. Generalizing the Proposed CST Assessment and Legal Reforms 353
(a) Kaczynski and Psychological Assessment Reform 354
(b) Kaczynski’s CST Review 354
3. Problems with the Assessment and Generalizing the Informational Approach 356
4. Proposed Legal Reforms and Kaczynski 359
(a) Kaczynski and Standby Counsel 361
(b) Kaczynski: His Right to Select Counsel of Choice Following Revocation of the Right to Proceed Pro Se to Trial 363
(c) Kaczynski and Hybrid Representation 365
D. Summarizing Kaczynski 367
Chapter 9. Conclusion 369
A. Revisiting the Chapters: A Brief Summary 370
B. Sum and Substance: Blending of Chapters 373
C. A Monumental Problem: Monetary Issues and Expert Services in the Courts 376
Index 379
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