Has Darrell Brooks' behavior set Waukesha parade attack trial on path to reversal?
Darrell Brooks' trial in the Waukesha Christmas parade attacks could begin live streaming to the world as soon as Thursday, via CourtTV.
Many viewers might immediately question Brooks' mental condition. His mother says he's struggled with mental issues, but so far, his competence hasn't been formally tested.
Brooks fired his lawyers last week and has been representing himself through jury selection Monday and Tuesday. He has repeatedly been removed to a separate courtroom to participate via video because of his behavior.
Waukesha County Circuit Judge Jennifer Dorow has painstakingly made a record of each time she has banished Brooks, or muted his microphone, and of the times she has noted improved demeanor and invited him back into the main courtroom. Brooks has lately declined.
More: Here's what you need to know about the Darrell Brooks Jr. Waukesha Christmas Parade trial
Day 3 of trial: Judge denies Brooks' request to adjourn trial for COVID-19 protocols
Brooks talked over the judge, repeatedly asked irrelevant questions, and refused to follow directions regarding picking the jury. When in the second courtroom, he often engaged in angry, animated hand gestures.
"At what point does a personality disorder render someone incompetent to represent himself?" asked Julius Kim, an area defense lawyer who has been following the Brooks case closely.
Kim, who often provides expert commentary for news outlets, said there was little national interest in the Brooks case until he began acting as his own attorney. Kim is worried about how the case will appear now.
"This looks bad, right? National TV sees a guy who clearly has issues getting railroaded," he said. "It has implications for the criminal justice system and mental health's place in it."
Waukesha parade attack trial finds an audience on CourtTV
What was expected to be the final pretrial hearing Wednesday afternoon already had a huge audience on CourtTV, based on the volume of comments on the YouTube channel.
Waukesha defense attorney Anthony Cotton agrees the first days of Brooks' self-representation have been troubling. Competency is usually raised by a defendant's attorney, but the statute allows a judge or any party to bring it up at any time.
"He's raising it through his behavior," Cotton said. "It's not just things he says. This is a classic example of someone a defense attorney would raise competency on. There are inescapable concerns."
Cotton said he's seen judges halt a trial to check a defendant's competency.
"They're breaking four hours for CourtTV (to set up cameras and microphones in the courtroom), they could take four hours for a competency review," Cotton said.
Former attorneys for Darrell Brooks never suggested he might not be competent
In the many months the case has been pending, Brooks' former attorneys from the State Public Defender's office never suggested he might not be competent. That could suggest most of his recent antics are an act, Kim said.
"If he's smart enough to create havoc by acting the way he does, and then people shut him out and shut him down, it creates appealable issues," Kim said, "but to what end?"
There appears to be overwhelming evidence against Brooks. The only defense he or his prior lawyers have hinted at was when he briefly changed his plea to not guilty by reason of mental disease or defect. He withdrew that plea after several doctors submitted reports of their evaluations of Brooks, suggesting he did not meet the standard.
But those evaluations are not the same as the one done to determine whether he is competent to face trial. That test is whether Brooks has "substantial mental capacity to understand the proceedings" and assist in his or her own defense.
Many times, a defendant found incompetent is restored to competency after treatment.
A competency evaluation of Darrell Brooks could prevent chances of reversal on appeal
Over the course of two hearings last week, Dorow asked Brooks many questions designed to see if he was knowingly and voluntarily waiving his right to have an attorney. In granting his request to proceed without counsel, Dorow referenced that NGI, or insanity defense, reports in saying Brooks — to that point — had not caused her to question his competency.
Neither the NGI tests nor the judge's inquiry about waiving the right to counsel are the same analysis mental health providers would use in a competency evaluation.
Kim agrees the safest bet to prevent any chance of reversal on appeal is to have Brooks evaluated for competency now.
"The gut test is, everyone notices, 'Hey, he's a jerk, but he also has issues.'"
Cotton said, "People do fake things, that's why you need the (mental health) professionals," to examine Brooks. "The case is on a reversal path. Any appellate lawyer is going to say 'You permitted an obviously incompetent person to represent himself in a mass murder trial.'"
Kenneth Robbins is a forensic psychiatrist who has done competency and insanity plea evaluations and treatment for years in Wisconsin, including in high-profile cases like the 12-year-olds charged with attempted first-degree homicide in the Slender Man case.
Robbins explained the second part of the competency test — whether someone can assist in their defense — involves how well they process and understand information.
More: A history of Waukesha parade suspect Darrell Brooks interactions with law enforcement
"Is their thinking organized such that they can communicate their perspective to their lawyer,' he said.
He said he's not familiar with Brooks' case, but that in general, thought disorder is a symptom of schizophrenia, just not as well known as hallucinations or hearing voices.
Robbins also said all forensic psychiatrists and psychologists train in specific techniques to discern malingering from legitimate mental illness.
Cotton thinks Brooks does understand the proceedings — despite repeatedly saying he doesn't — but has clearly shown he's not able to assist in his own defense. Kim said Brooks has shown, so far, that he's unlikely to be able to communicate anything effectively to the jury.
Judge Jennifer Dorow unlikely to pause Darrell Brooks' trial
Brooks faces six counts of first-degree intentional homicide, hit-and-run resulting in death, and dozens of reckless injury charges, more than 70 counts in all. From the start, Dorow resisted defense requests to postpone the current trial date due to the volume of evidence, stressing the wide impact on the community and the many direct victims.
So it's unlikely she would, on her own, decide to pause the trial for a competency evaluation. Kim thinks that's still the safer route.
"Why not slow your roll?" he said. "At least why not appoint standby counsel? I think the court of appeals would look more kindly on that."
Opening statements in Brooks' trial may start Thursday.
Contact Bruce Vielmetti at (414) 224-2187 or bvielmetti@jrn.com. Follow him on Twitter at @ProofHearsay.
This article originally appeared on Milwaukee Journal Sentinel: Competency evaluation playing a role in the trial of Darrell Brooks
