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State v. Bostwick9/30/1999
stand trial and to assist in his defense in his own right, then there is simply no basis in the law of which I am aware that will permit the defendant, nevertheless, to be tried because a competent, trusted family member or friend can advise him. Our system of jurisprudence does not even allow a mentally unfit criminal defendant to be tried when advised by legal counsel--much less a third-party lay person untrained in the law--notwithstanding that the accused's attorney is professionally and ethically bound to represent his client's interests and notwithstanding that counsel is trained in the intricacies of criminal law and procedure.
The reason is obvious. The defendant, unlike the third-party advisor, is the fellow who if convicted will lose his life, liberty or property. As a consequence, the accused must be able to make decisions as to his case and defense based on his own understanding of the charges filed against him; based on his own knowledge of the facts; based on his own assessment of his particular situation; and based on his own evaluation of his lawyer's advice on tactics and strategy. Allowing substitution of the judgments and decisions of some third party on these critical matters for the judgments and decisions of the accused himself (because he is not mentally capable of making those judgments and decisions on his own) not only perverts the statutory scheme which the legislature has adopted but also effectively deprives the defendant of his right to appear and defend in person; of his right to demand the nature and cause of the accusation against him; of his right to confront witnesses; of his right to testify or remain silent; of his right to due process of law; and of his right to a fundamentally fair trial--all of which are rights guaranteed to the defendant personally under Article II, Sections 17, 24 and 25, of the Montana Constitution.
The bottom line is this. If Mr. Bostwick is not mentally capable of standing trial and assisting in his defense in his own right and without reference to and dependent upon his mother's mental competency and her advice, then he is not mentally fit to be further prosecuted. Period.
JAMES C. NELSON
Justice Terry N. Trieweiler joins in the foregoing specially Concurring opinion.
TERRY N. TRIEWEILER
Justice William E. Hunt, Sr., joins in the foregoing specially Concurring opinion.
WILLIAM E. HUNT, SR.
Chief Justice J. A. Turnage, Dissenting.
I respectfully Dissent from the majority decision to remand this case to the District Court for the purpose of determining if a meaningful retrospective competency hearing can be held.
The District Court, based on a report by Dr. Davis, concluded that defendant Bostwick was fit to proceed to trial. I agree with the District Court.
At the pretrial omnibus hearing, the defense represented that it would not rely upon a mental disease or defect defense, but that it would rely upon the defense of compulsion. The District Court determined that it was authorized by § 46-14-221, MCA, to make a decision based upon Dr. Davis's report without a hearing, since neither party contested that report. Accordingly, the District Court concluded that the defendant was fit to proceed to trial. A review of the record in this case, in my view, clearly establishes that the defendant was fit to proceed to trial, and the District Court did not err in so concluding.
During the early morning of May 11, 1996, Bostwick, after a prolonged period of drinking alcohol and with a blood alcohol content of .18--nearly twice the legal limit establishing drunken driving--drove his vehicle arou
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