With long delays for competency treatment in Nevada, could a new ruling mean cases get dismissed?

The Nevada Supreme Court found in a series of recent decisions that a judge was justified in dismissing criminal cases after a state agency failed to promptly transport criminal defendants for treatment to restore their mental competency.

These rulings — an opinion in one case and shorter orders in similar cases — may have a significant impact, according to legal experts.

By the state’s own admission, there are still long treatment delays as demand for competency restoration beds outpaces bed space in state hospitals.

The Nevada Division of Public and Behavioral Health, the agency at the center of the issue, says the situation will improve in the near future with some competency restoration treatment being provided in jail and a new state hospital anticipated to open in 2029.

But for now, attorneys expect the Supreme Court’s stance will lead to more cases being thrown out or attempts to have cases dismissed.

Prosecutors are concerned about the risk to public safety. Public defenders say it’s not possible to predict whether someone will commit another crime.

“The state has to take the mandate to restore competency forthwith very seriously because otherwise there is a potential for the case to be dismissed,” said Chief Deputy Public Defender Patricia Doyle, who represents defendants in competency cases.

There are 178 criminal defendants waiting for treatment, according to Drew Cross, the state official who oversees the hospitals where defendants are treated for competency restoration. As of June 18, the average wait time was 99 days, he said.

Doyle said there is a two-month delay from the time someone is ordered for restoration treatment to the time they’re actually sent. More than 150 people in Clark County currently await competency restoration treatment, she said.

Court: Due process violation

Matthew Desavio was released from the Southern Hills Behavioral Center in the fall of 2022, according to Supreme Court Justice Linda Bell’s May 22 opinion.

The night after his release, Bell wrote that he reappeared at the hospital, honking his car horn. A nurse found a post on his social media page that said, “Something BIG is about to hit the Las Vegas Strip. #October1stwasjustapreview!!!!! Let’s F*** s—- up before I literally #blowup ‘Paradise’ NV,” according to the decision.

The nurse called police.

Desavio told officers he “was not current on his medications” and that he wanted to drive his car into Mandalay Bay or the Bellagio fountains, the ruling said, and also went on a tangent about the pandemic and the Oct. 1 shooting.

Assistant Public Defender John Piro said Desavio was clearly someone struggling with his mental health and not receiving the necessary treatment.

Desavio was found incompetent in his criminal case and District Judge Christy Craig ordered him committed in January 2023 for competency restoration treatment, according to the ruling.

After two months passed and Desavio was not transferred to a psychiatric hospital, a public defender asked for the case to be dismissed or the Division of Public and Behavioral Health to be held in contempt.

Craig decided to hold the state agency in contempt and ordered a $500 fine for every day Desavio was not transported for treatment.

When he had not been transported eight days later, Craig dismissed the case. Prosecutors appealed the dismissal. The Supreme Court decided Craig meant to dismiss Desavio’s case without prejudice, meaning it could be refiled, and ruled that “was an appropriate step.”

“Although the prosecution was not directly at fault, Desavio nevertheless was languishing in county jail, in violation of his due process rights,” Bell wrote.

Desavio waited in “a limbo not of his making,” Piro said.

“He is sitting in jail without treatment,” Piro said. “He can’t be prosecuted because he is incompetent.”

In at least 14 other cases, the Nevada Supreme Court issued similar orders on June 17 and 18 upholding dismissals without prejudice because of the due process violation posed by 70- to 100-day delays in transporting defendants for competency treatment.

The implications

Assistant District Attorney Alexander Chen, who represented the district attorney’s office in the Desavio case, said the delays were not prosecutors’ fault. He said the district attorney’s office may refile charges against some of the defendants whose cases were dismissed.

Chen said prosecutors are particularly concerned about Desavio “and the danger that he poses.”

The Supreme Court’s decision in Desavio’s case is precedential, according to Chen, meaning lower courts must follow the ruling in the future.

“The fact is the courts may use dismissal as a remedy when individuals aren’t transported for restoration hearings no matter what the serious underlying facts of a case might be,” he said.

Chen added: “From a public safety perspective, I think it’s dangerous, especially (when) you have a case like some of these where things were being threatened like October 1st type of situations. And it’s not just the prosecution is going away, but the case is dismissed and the person is theoretically released into the open without any type of monitoring, treatment or anything else.”

Doyle said she agreed it “is not in anyone’s best interest” to release people to the street who need medication and therapy.

But, Piro said, “The remedy is to get these people treatment, not to hold them indefinitely and violate their constitutional rights.”

The state will try to provide services to inmates who are discharged but has “limited authority” once charges are dismissed, Cross said.

Attorney Scott Coffee, a former public defender who has represented high-profile defendants with competency issues, said the Supreme Court’s decision may have “profound implications.”

Some cases will likely be dismissed without prejudice and not refiled, he said, but more severe cases will be refiled by prosecutors and may get priority for bed placement.

Doyle said she anticipates there will be “an influx” of motions to dismiss as a result of the decision in Desavio’s case.

Persistent delays

Defendants who need competency treatment are supposed to be transported to receive it within seven days of a judge’s order, according to Doyle and Piro.

But that’s still not happening and the lag can create problems.

“One, they just languish in jail and nothing happens in their case,” Doyle said. “Two, they languish unmedicated and that can cause severe issues. The longer someone goes unmedicated, the harder it is restore competency.”

Cross said the state is trying to address the delay. The legislature has funded the construction of a 298-bed hospital expected to open in 2029 and 21 beds are being added to the Stein forensic hospital and expected to open next month, he said. There are also plans to help defendants regain competency while they are in jail.

In Nevada, said Piro, “We are so far behind where we need to be in dealing with this problem.”

“This competency system is (an) inadequate solution for a system that is broken, and the competency system was never designed to solve this broken system … but it’s all we have,” he added.

Contact Noble Brigham at nbrigham@reviewjournal.com. Follow @BrighamNoble on X.