Court Alters Outlook for Death Row’s Mentally Ill

A death row inmate who claims there is a computer in his head and a telephone in his shoulder is so mentally ill that the California Supreme Court has appointed a legal guardian for him.

The appointment, quietly made by the high court in a closed conference, is unprecedented in California and may affect whether the inmate can eventually be executed. The U.S. Supreme Court has ruled that it is unconstitutional to execute the insane.

The court appointed a guardian for Jon Scott Dunkle, 41, on the advice of a Superior Court judge whom it had asked to determine his current mental state. That judge, who found Dunkle mentally incompetent, had presided over Dunkle’s 1989 murder trial and sentenced him to death--despite his repeated commitments to a mental hospital and defense attorneys’ contentions that he frequently lost touch with reality.

Dunkle, who was convicted of murdering three boys, is so deranged that he cannot fully understand the nature of his legal appeals or assist his lawyers, San Mateo County Superior Court Judge Judith Whitmer Kozloski reported to the California Supreme Court in March 2000.

The high court gave Dunkle a guardian this summer so his medical and school records could be obtained by his defense lawyers without his consent.

The appointment raises questions about whether Dunkle, diagnosed with paranoid schizophrenia, was really ever sane enough to stand trial for his crimes and whether he will ever be stable enough to be executed.

“We think we have the craziest client on the row,” said Michael B. Dashjian, one of Dunkle’s lawyers.

The court’s action is expected to result in more petitions for guardians from other mentally ill death row inmates. A legal finding that a condemned prisoner is mentally incompetent can help defense lawyers build a case against execution.

“If a person is really crazy, he shouldn’t be tried, let alone be convicted,” Dashjian said. “We certainly believe that Jon Dunkle never should have been tried.”

Court records and transcripts of interviews with psychiatrists depict Dunkle as a man who can express a coherent thought in one breath and burst into gibberish the next. Absorbed by his own hallucinations, Dunkle wants neither a radio nor a television in his cell. When asked by a San Quentin psychiatrist in 1998 why he banged his head against the wall, Dunkle said: “I wasn’t getting along with the computer inside me.”

He told another psychiatrist that he was being medicated because “the computers, they are getting arrested. The technicians, they are making people smaller. Five inches tall. The CIA is doing it.”

Faced with a client who psychiatrists say hears voices and suffers delusions, defense lawyers told the California Supreme Court in 1996 that Dunkle was too unsound to assist in preparing a constitutional challenge to his death sentence.

The court appointed Kozloski, who had sentenced Dunkle to death in 1990, to hear testimony to determine his current mental condition.

When she presided over his 1989 trial for the murders of the two boys in San Mateo County, Kozloski believed that Dunkle was faking mental illness. A jury found him mentally competent at the time, even though he was often incoherent and insisted at one point that his first trial lawyer had murdered a highway patrolman.

Kozloski’s change of heart came reluctantly. “I have to say that I would like to find Mr. Dunkle competent, because I think what he did is so horrible that he should suffer whatever consequences have been meted out to him,” Kozloski said in court. “But I honestly cannot say I think he is competent.”

Deputy Atty. Gen. Rene Chacon, who is representing the prosecution in Dunkle’s appeals, did not object to Kozloski’s finding of current mental incompetence. He called her decision reasonable.

“Dunkle was sitting in his feces, he was so far out at San Quentin,” he said.

Asked whether the inmate will ever be sane enough to be executed, Chacon said: “In California, you can’t execute a mentally incompetent person, and the guy cycles back and forth, so I don’t know.”

He acknowledged that the appointment of a guardian has given defense lawyers more ammunition to overturn Dunkle’s death sentence on the grounds that he also was mentally incompetent when he was tried for murder. A person is deemed incompetent if he or she cannot understand the nature of the legal proceedings and cannot cooperate with lawyers.

But Chacon said the appointment of a guardian also serves the prosecution, because it will expedite the legal proceedings and the production of a habeas corpus petition.

In California, death row inmates receive an automatic appeal in which defense lawyers can object to events that occurred at trial. They can also file a habeas corpus petition to raise claims of constitutional or other serious legal errors based on evidence that was not presented at trial, such as ineffective assistance of counsel or newly discovered evidence.

The California Supreme Court voiced its decision on Dunkle’s petition for a guardian in a two-sentence order July 24--two years after Kozloski made her recommendation. The court appointed Conrad Peterman, one of Dunkle’s attorneys, his guardian for “the limited pursuing of preparing and pursuing” his challenge of his death sentence.

Professor Elisabeth Semel, who directs the Death Penalty Clinic at UC Berkeley’s Boalt Hall School of Law, said the court’s appointment of a guardian was “a very partial and inadequate way of addressing a much larger problem the lawyers have raised.”

Although the lawyers will now be able to obtain Dunkle’s records without his consent, his mental condition may make it impossible for him to tell his lawyers about the events that shaped his life and may have led to his crimes, she said.

“If the client was seriously abused physically or sexually, who is going to tell you about it?” she asked. “If your client is so impaired that he can’t even sign for a release of his records, how will you obtain vital information from him?”

Peterman, appointed to prepare Dunkle’s constitutional challenge, said he does not know whether he will be able to file the petition without the inmate’s cooperation. “It is a question we are discussing but haven’t resolved,” the attorney said. The petition would have to be filed next year.

“He is a very sick man, and, sadly, the whole process is just not set up to adequately deal with people in that kind of condition,” Peterman said.

More than 20 mental health experts, including several who work for the state prison system, said in 1999 that Dunkle was mentally incompetent. Only one psychiatrist, Dr. James Missett, appointed by the prosecution, disagreed. He had testified during Dunkle’s murder trial that the defendant was “evil” and faking schizophrenia.

The California Department of Corrections has been giving Dunkle antipsychotic medication against his will since 1996 after declaring him incompetent to reject medical treatment.

Kozloski believes that Dunkle’s mental state has deteriorated since his murder trial. And in reviewing his mental status for the state high court, she gave no indication that she thought she had erred by sentencing a mentally incompetent man to death.

When a prosecutor insisted that Dunkle’s condition was essentially the same as when he was found competent to stand trial for murder 10 years earlier, Kozloski objected.

“I see a qualitative difference between his 1989 ability,” she said during a hearing Nov. 3, 1999.

Semel said the legal threshold for competency to stand trial “is so invariably low that it repeatedly allows people who cannot meaningfully assist their lawyers to go forward to trial.”

In Dunkle’s case, the jury that found him competent to stand trial knew that he was charged with murdering two boys in San Mateo County and a third in Sacramento.

Dunkle had confessed to his crimes and led police to one of the bodies. All but one mental health expert who interviewed him before his competency hearing in the summer of 1989 concluded that he had a major mental illness, according to his appeal.

While housed in a county jail in San Mateo County before and during his trial, Dunkle had several psychotic breakdowns. In May 1987, officials said he was hallucinating and wanted to kill himself and have his body displayed in front of the jail. He said that would prevent the building from being blown up.

By the time Dunkle was sentenced in 1990, he had been sent from the jail to a mental hospital five times, Dashjian said.

“He would leave court and go back to the mental health facility,” Dashjian said. During one court proceeding, “he was completely off the wall, ranting and raving and saying the most incomprehensible word salad.”

Dunkle’s lawyers are not sure when his mental illness began, even though they have interviewed members of his family. He could not function well in elementary school, and reports indicated that he had learning disabilities. At the age of 22, he was admitted to a hospital because he injected bacon grease into his penis in an attempt to enhance its size. Besides the death sentence for the two murders in San Mateo County, Dunkle is serving life without the possibility of parole for the fatal stabbing of a 12-year-old boy in Sacramento.

He was found mentally incompetent to stand trial in Sacramento in March 1993 and was committed to Atascadero State Hospital. A judge later decided he was sane enough to plead guilty while he was under medication.

Two of Dunkle’s young victims were strangers. One of the San Mateo victims was a 12-year-old who was on his way home from soccer practice. Dunkle randomly chose the Sacramento boy he killed by ramming his bicycle into the victim’s bike on a trail and dragging him into bushes.

The third victim, who was 15, was a member of a family that Dunkle had befriended. None of the boys were sexually assaulted, although one was forced to undress.

Dunkle’s crimes were the subject of a 1993 television movie, “In the Company of Darkness,” starring Helen Hunt. The movie was based on the experience of a female undercover police officer who pretended to be Dunkle’s friend in hopes of getting him to confess.

The officer never succeeded, but Dunkle was eventually arrested for a burglary and told his cellmate of the killings.

If Dunkle loses his appeals, he still may escape execution if his lawyers can show that he does not understand that he will be put to death and the reasons for it. The U.S. Supreme Court ruled in 1986 that it is cruel and unusual to execute a prisoner who is insane.

Dunkle would then probably spend the rest of his life either in prison or in a state hospital for the criminally insane.