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Analysis Law and Policy

Dear Incompetency Ruling Is the Latest Dangerous Signal From Courts on Anti-Abortion Violence

Jessica Mason Pieklo

Two different courts in as many weeks handed down rulings potentially sending some terrifying cues to the anti-choice movement.

On Wednesday, Colorado District Court Judge Gilbert Martinez ruled that Robert Lewis Dear Jr., the admitted Colorado Springs Planned Parenthood shooter, will not immediately stand trial for the November 27, 2015 siege that killed three people. Dear faces 179 counts, including murder and attempted murder, from the attack.

Martinez’s ruling, which came after two competency exams and hours of contested courtroom testimony, was that Dear was not legally competent to stand trial. Dear spoke out during the court proceedings against him again and again, despite court warning. Dear also has some fringe political beliefs that could fairly be described as delusional—he believes the FBI has been tracking him, that President Obama is the Antichrist, and that the federal government has been systematically targeting Christians since the 1993 siege on the Branch Davidians in Waco, Texas.

Based on the evidence disclosed so far, however, it is hard not to second-guess Martinez’s ruling here. Being behaviorally unpredictable or existing on the political fringe is not the same thing as being legally incompetent to stand trial. It’s dangerous for the court to decide otherwise.

Under Colorado law, a defendant is considered “incompetent to proceed” if, as the result of a mental or developmental disability, they do not have the sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding in order to assist in the defense, or if they do not have a “rational and factual understanding of the criminal proceedings.”

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I’ve put the emphasis on a couple of key points, because they are important for understanding the difference between whatever psychiatric diagnosis Dear got and the legal standard for whether or not he is competent to stand trial.

First: Sufficient present ability. That means does Dear, at this moment in time, have the ability to talk to his lawyer? Not “does he want to,” but “can he?”

Second: With a reasonable degree of rational understanding. Now there’s some legalese for you. But broadly speaking, it means: Can Dear reasonably and rationally understand the proceedings against him? For example, does he understand his charges? Can he participate in the court hearings as his case proceeds? Again, not “does he want to,” but “can he?”

And here’s what we know so far from court testimony and the few documents Martinez has allowed to be unsealed: Dear crafted a homemade bulletproof vest prior to November 27, which he said he wore on him when he took siege at the clinic. We also know through court testimony and documents that prior to the siege, Dear collected propane tanks and ammunition, which he brought and set up around the clinic first. He said he shot at those tanks. He missed. But he told investigators his goal was to create as much carnage as possible.

We even know that Dear stopped at a crisis pregnancy center about a mile down the road to confirm whether or not it was the Planned Parenthood clinic in question.

We know a lot more about what happened once Dear surrendered to law enforcement, how he cooperated with investigators up until his defense team was appointed, who then suggested an insanity defense. We know Dear didn’t want to plead insanity and instead wants to argue the siege was justified—that, as with Paul Hill, Michael Bray, and Scott Roeder, violence is necessary in the name of preventing what he sees as the “greater evil” of legal abortion.

Dear himself has stated both to the media and the court that he knew exactly what he was doing on November 27 before he was arrested in that Colorado Springs Planned Parenthood. He surrendered. He wants a trial.

He may never get one, though. All the evidence of Dear’s planning, of his specific targeting of Planned Parenthood, of Dear’s insistence he have a platform in the form of a criminal trial—by ruling Dear incompetent to stand trial because of his “political delusions,” Judge Martinez overlooks Dear’s very real but sincerely held religious belief that abortion is a moral wrong that has no legal justification.

The good news is that Wednesday’s decision is temporary. Competency, as the law defines it, is a fluid state. Which means a defendant like Dear can come in and out of legal competency, even if he’s never fully “cured” of the diagnosis that got him declared incompetent in the first place.

The immediate effect of Martinez’s ruling is to send Dear to the Colorado Mental Health Institute in Pueblo. That’s where Dear will be treated for what forensic psychologists diagnosed as his delusional disorder. Under Colorado law, “mental disability,” like that delusional disorder, means a “substantial disorder of thought, mood, perception, or cognitive ability that results in marked functional disability,” which would significantly interfere with Dear’s ability to adapt to society.

In other words, the question is whether a defendant like Dear can keep himself integrated to a reasonable degree in society. The law states that Dear can be held no longer than his possible sentence—in his case, life in prison or possibly the death penalty—in efforts to rehabilitate him to legal competency. If the state psychologists and the court decide Dear will never become legally competent, they could begin the process of civilly committing Dear to a mental health facility for the rest of his life. They could also release him on bond with conditions that he must meet in order to remain out of state custody, such as remaining on medications or regularly meeting with psychiatrists.

Dear’s diagnosis centers on what the psychologists describe as Dear’s conspiratorial beliefs the federal government is targeting Christians and that the FBI has been watching him for decades. I’m curious as to how those beliefs are going to be “rehabilitated,” given that right-wing politicians and personalities use rhetoric similar, if not identical, to Dear’s. Even one of the psychologists herself admitted this fact during court testimony.

Really troubling, though, was the conclusion that Dear’s beliefs on abortion, the target of whatever fringe political beliefs he may espouse, do not fall into that delusional diagnosis. Those, psychologists testified during the first day of Dear’s competency hearing, are simply Dear’s deeply and sincerely held religious beliefs as to the moral wrong of abortion. 

Let me be clear. I am very uncomfortable with the government making conclusions as to which political beliefs are delusional and which are not. But I am even more uncomfortable with this idea that obstruction against reproductive health care can be explained away, and thus legally insulated, by religious beliefs. Political fringe beliefs, apparently, are enough to warrant a diagnosis of a disorder; anti-choice rhetoric, according to these courts, is a religious belief irrelevant to the matter at hand.

Should Dear ever be found legally competent, that would effectively continue the criminal case against him, months, maybe years later. The soonest prosecutors can request Dear be reevaluated to be declared competent to stand trial is three months from Wednesday’s ruling. But I’m guessing it’s going to take more time than those three months. Call it a hunch.

In the meantime, it’s good to remember that as we saw with Angel Dillard’s case last week in Wichita, Kansas, a trial is no guarantee of any justice or vindication of abortion rights. And like Wichita, Colorado Springs has a deeply ingrained anti-choice movement. Who’s to say a jury wouldn’t excuse Dear’s actions based on those religious beliefs, in much the same way one did in Dillard’s case?

Dear’s case raises troubling questions, then, for reproductive rights advocates: Do we really want him to stand trial? What about the risk of a jury embracing the idea that targeted violence against abortion providers and their patients just comes with the territory for someone who believes in delivering full-spectrum health care, including reproductive services?

What about the fact that anti-choice violence is so normalized in our culture that the courts, in two different cases in as many weeks, will go out of their way to excuse it? Given the increasingly violent anti-choice rhetoric and political climate, do we really have any choice but to fight back in every venue we can, including the courts?

I don’t have a good answer to any of those questions.

I know that these cases, when read together, potentially send some terrifying cues to the radical anti-abortion movement. Dear is now another “lone wolf” delusional person who was arrested for just happening to act out his violent delusions at a Planned Parenthood. Kind of like that young man in Wichita who walked into an abortion clinic to apply for a job. With a homemade bomb in his backpack. Dillard is just another fire-and-brimstone prison minister acting on her sincere religious beliefs that God called her to write a letter to Dr. Mila Means warning her about future car bombs. Not to incite any violence towards Means. Just to save her.

I had a law professor try to explain to me once that the law is often slow to catch up with popular opinion. Just look, for example, at marriage equality: Large swathes of the country had already accepted that discriminating against same-sex couples is wrong before the Supreme Court got around to agreeing with them.

So, then, what does that say right now about anti-abortion violence, if the courts in these cases too are slow to catch up with popular opinion? I think it means that we’ve got a long ways to go before abortion providers and patients can feel like their interests are being heard by the justice system. At all.

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