State v. Topolski

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) I.D. Nos. 1906017002
) & 1906016532
JUSTIN M. TOPOLSKI, )
)
Defendant. )
)
Submitted: December 19, 2022
Decided: February 7, 2023
MEMORANDUM OPINION AND ORDER
Upon Defendant’s Motion to Dismiss
DENIED WITHOUT PREJUDICE
Upon Defendant’s Motion for a Writ of Habeas Corpus
DEFERRED AND SUPPLEMENTAL BRIEFING ORDERED
Stephen Welch, Jr., Deputy Attorney General, Department of Justice, Dover,
Delaware, Attorney for the State.
John R. Garey, Esquire, John R. Garey, PA, Dover, Delaware, Attorney for
Defendant.
Primos, J.
Before this Court is Defendant Justin Topolski’s Motion for a Writ of Habeas
Corpus and Dismissal of the criminal charges against him. Mr. Topolski faces nine
felony charges, including attempted murder in the first degree. However, for over
three years, he has been incompetent to stand trial and has been held in custody at
the Delaware Psychiatric Center (the “DPC”) pending efforts to restore him to
competency. In light of the most recent reports from the DPC, such efforts now
appear to be futile. Thus, the questions now before the Court are 1) whether Mr.
Topolski’s state and federal speedy trial rights have been violated and 2) whether
continued confinement at the DPC is consistent with Mr. Topolski’s rights under the
Equal Protection and Due Process clauses of the United States Constitution. For the
reasons that follow, Mr. Topolski’s motion to dismiss on speedy trial grounds is
DENIED WITHOUT PREJUDICE and his motion for a writ of habeas corpus is
DEFERRED pending supplemental briefing.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Topolski suffers from schizoaffective disorder (bipolar type), which
causes him to experience bizarre delusional beliefs. On or around June 25, 2019, he
was arrested after police responded to a domestic incident at his mother’s home. The
allegations against him are summarized here as follows:1 While holding a ten-to-
twelve-inch kitchen knife in one hand, Mr. Topolski used his other hand to push his
mother to the ground, threatening to kill her and to cut her head off. His mother
escaped and contacted the police. When the police arrived at the scene, Mr. Topolski
remained in the house with a rifle, and, over the course of a long stand-off, fired two
shots in the direction of the responding officers. The bullets struck the police car
1
At this stage of the proceedings, as explained below, the State has presented a prima facie case
in support of the charges against Mr. Topolski, and this summary of allegations is based upon that
evidence. However, Mr. Topolski has not been tried, and is presumed innocent of the allegations
and charges against him until found guilty beyond a reasonable doubt.
2
near where one of the officers had been standing. When Mr. Topolski was finally
taken into custody, he expressed surprise that there was not a body near the car,
because he believed he had shot and killed one of the police officers.
Mr. Topolski was indicted on September 4, 2019, on nine separate criminal
counts, including attempted murder in the first degree. He was first committed to
the DPC on November 19, 2019, to undergo a psychological evaluation.2 In that
evaluation, Dr. Douglas Roberts of the DPC opined that Mr. Topolski was not
competent to stand trial.3 While Mr. Topolski had some ability to explain the
charges against him and the nature of court proceedings (e.g., the respective roles of
the prosecutor, the defense attorney, and the judge), Dr. Roberts explained that Mr.
Topolski’s “paranoid delusional beliefs about his mother and about the police
officers who responded to his home” would unduly influence his legal strategy and
preclude him from collaborating rationally with his attorney.4 At that time, Dr.
Roberts described his prognosis for restoration of competency as “guarded.”5
On March 16, 2020, the Court granted Mr. Topolski’s motion for another
psychological evaluation addressing his mental status at the time of the alleged
offenses, his competency to stand trial, and, if he was found incompetent, “the status
of any competency restoration efforts and [Mr.] Topolski’s prognosis for
restoration.”6 An updated report was then filed with the Court, in which Dr. Roberts
reported that little had changed and explained that Mr. Topolski “continues to
experience significant psychiatric symptoms which are interfering with his ability to
2
D.I. 10.
3
DPC Report (Nov. 25, 2019) at 8.
4
Id. at 7–8.
5
Id. at 8.
6
D.I. 15 and 17.
3
view his case from a reality-based perspective.”7 In light of the “lack of progress
thus far,” Dr. Roberts switched his prognosis for competency restoration to “poor.”8
In advance of a scheduled competency hearing, Dr. Roberts filed another
report with the Court. In that report, he indicated that Mr. Topolski’s mental
condition was substantially the same, but that he had begun taking a new
antipsychotic medication. The report explained that the new medication was “likely
not acting to its full potential yet” and that it was “possible” that Mr. Topolski’s
condition might improve.9 However, if he did not respond to the medication (or had
to cease taking it due to side effects), his “prognosis for restoration would be
extremely poor, given all the options that have been tried to date.”10
On May 19, 2021, the Court held a competency hearing, in which it heard
testimony from Dr. Roberts.11 The Court later issued a bench decision finding Mr.
Topolski incompetent to stand trial,12 noting that it was persuaded by Dr. Roberts’s
conclusion that Mr. Topolski’s delusional beliefs, particularly those surrounding the
alleged offenses, undercut his ability to rationally understand the proceedings or to
participate in his defense. The Court further noted that, while Mr. Topolski’s
prognosis for competency restoration had gotten progressively worse, there
remained some possibility that he might be restored to competency and ordered him
to remain at the DPC for continued efforts at competency restoration.
In another report dated December 1, 2021, Dr. Roberts informed the Court in
writing that the new medication had been permanently discontinued because of
7
DPC Report (May 5, 2020) at 6.
8
Id. In a supplemental report ordered by the Court, Dr. Roberts also opined that Mr. Topolski’s
mental state at the time of the alleged offenses was consistent with findings of both Guilty But
Mentally Ill and Not Guilty by Reason of Insanity. DPC Report (June 18, 2020) at 4–5.
9
DPC Report (May 3, 2021) at 4.
10
Id.
11
D.I. 38. In his testimony, Dr. Roberts indicated that the new medication referenced in his May
3, 2021, report had been discontinued due to adverse side effects.
12
D.I. 39.
4
symptoms indicating that Mr. Topolski was allergic to it.13 Dr. Roberts informed
the Court that, as a last resort, Mr. Topolski had consented to and was scheduled to
be treated with Electroconvulsive Therapy (“ECT”), which in some cases is an
“effective treatment for treatment-resistant psychotic disorders.”14 However, in a
follow-up report dated January 27, 2022, Dr. Roberts explained that Mr. Topolski
had completed seven out of eleven scheduled ECT treatments before revoking his
consent to the further use of ECT.15 Dr. Roberts conducted another competency
interview and found that Mr. Topolski’s delusional beliefs about the factual nature
of the alleged offenses continued to render him incompetent to stand trial. 16 As to
his prognosis, Dr. Roberts opined that it was “highly unlikely that Mr. Topolski will
ever reach a point of clinical stability in which he will be competent to proceed.”17
The Court held three office conferences in the following months, discussing
with counsel how to proceed in light of Mr. Topolski’s poor prognosis for
competency restoration. The State considered but ultimately rejected the option of
voluntarily entering a nolle prosequi in the criminal case and pursuing a civil
commitment instead. Subsequently, on Mr. Topolski’s motion, the Court held a
prima facie hearing on September 15, 2022, pursuant to 11 Del. C. § 404(a), in which
the State outlined its case against Mr. Topolski through police officer testimony and
a series of photographs. At the conclusion of the hearing, the Court issued a bench
ruling concluding that the State had met its prima facie burden of showing “some
credible evidence tending to prove the existence of each element of the offense” for
13
DPC Report (Dec. 1, 2021) at 2.
14
Id. at 2–3.
15
DPC Report (Jan. 27, 2022) at 3–4.
16
Id. at 7. Dr. Roberts also noted that “this evaluation is the first in which [Mr. Topolski] claimed
to not remember the charges or allegations against him, which could potentially be a side effect of
ECT, or could be a manifestation of a lack of effort in the evaluation.” Id.
17
Id. (emphasis in original).
5
each charge, pursuant to 11 Del. C. § 301(a), and that continued detention at the DPC
was therefore authorized under 11 Del. C. § 404(a).
Mr. Topolski filed the instant motion for a writ of habeas corpus and dismissal
of charges on September 27, 2022, arguing that continued detention violates his
rights to due process and equal protection of the law and that his right to a speedy
trial compels dismissal of the charges against him.18 The State filed a response to
the defense motion on December 5, 2022, opposing the motion and arguing that Mr.
Topolski’s continued detention is lawful.19 However, the State conceded “that the
defendant cannot necessarily be held indefinitely.”20 Mr. Topolski filed his reply to
the State’s response on December 19, 2022, and the matter was submitted to the
Court for decision.21
After the filing of the defense motion (but before the State’s response was
filed), the DPC submitted its most recent report on October 3, 2022. In that report,
Dr. Andrew Donohue of the DPC concluded that Mr. Topolski remained
incompetent to stand trial, noting first that Mr. Topolski “did not describe fully intact
understanding of the charges against him.”22 The report went on to explain that Mr.
Topolski’s various misunderstandings and/or delusions “substantially impaired” his
rational understanding of the proceedings against him.23 Regarding the possibility
of competency restoration, the report concluded that there was no sign of
improvement despite the administration of “numerous antipsychotic medications”
18
Mot. for a Writ of Habeas Corpus and Dismissal [hereinafter “Def.’s Mot.”].
19
Resp. to Mot. for Writ of Habeas Corpus & Dismissal [hereinafter “State’s Resp.”].
20
Id. ¶ 24.
21
Mot. in Resp. to the State’s Resp. for a Writ of Habeas Corpus and Dismissal.
22
DPC Report (Oct. 3, 2022) at 7.
23
Id.
6
and “a truncated course of electroconvulsive therapy.”24 “Of note,” the report added,
“the partial course of ECT did not result in any noticeable beneficial response.”25
DISCUSSION
Mr. Topolski challenges both the continued pendency of criminal charges
against him, arguing for dismissal on speedy trial grounds, and his continued pre-
trial incarceration on those charges, seeking habeas relief on equal protection and
due process grounds. Considering the speedy trial claim first, the Court concludes
that the reason for the delay is Mr. Topolski’s incompetency to stand trial and
follows courts from other jurisdictions in holding that a defendant’s incompetency
to stand trial, when not attributable to any particular action or inaction by the State,
weighs heavily against dismissal of the charges on speedy trial grounds. Turning to
the Fourteenth Amendment challenges to his continued confinement, the Court
concludes that Mr. Topolski is unlikely to be restored to competency in the
foreseeable future. Accordingly, based on the United States Supreme Court’s
decision in Jackson v. Indiana,26 he may no longer be confined solely on account of
his incompetency to stand trial on the pending charges against him, without a finding
of dangerousness. However, the court will defer decision on his habeas petition
pending supplemental briefing on the heretofore overlooked statutory provision,
codified at 11 Del. C. § 403(b), entitling an incompetent defendant to release upon
a judicial determination that his release will not endanger public safety.
I. Motion to Dismiss on Speedy Trial Grounds
The right to a speedy trial is protected by the Sixth Amendment to the United
States Constitution and by Article I, § 7 to the Delaware Constitution.27 Since the
24
Id. at 8.
25
Id.
26
406 U.S. 715 (1972).
27
Middlebrook v. State, 802 A.2d 268, 272 (Del. 2002).
7
federal and state constitutional speedy trial guarantees typically parallel one
another,28 and no separate analysis has been argued for here, the Court will consider
them in tandem. “[F]ederal and Delaware courts apply a four-part test to determine
whether a defendant’s right to a speedy trial has been violated. Under this test, courts
are to evaluate the following factors: (1) the length of delay; (2) the reason for the
delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) prejudice to
the defendant.”29 A defendant must make a threshold showing that the first factor,
length of delay, weighs in his favor before the other three are considered. 30 These
four factors are known as the Barker v. Wingo factors, from the United States
Supreme Court case of that name.31
As a threshold matter, the first factor, length of delay, weighs in favor of Mr.
Topolski. The right to a speedy trial “attaches as soon as the defendant is accused
of a crime through arrest or indictment, whichever occurs first.”32 Thus, the speedy
trial clock for Mr. Topolski started to run upon his arrest in 2019. The State concedes
that this delay, now over three years, is presumptively prejudicial.33
The second factor is the reason for the delay. There is no dispute that the
ultimate cause of the delay is Mr. Topolski’s incompetency and prolonged yet
28
Scott v. State, 521 A.2d 235, 239 n.2 (Del. 1987).
29
Page v. State, 934 A.2d 891, 896 (Del. 2007) (internal citation omitted).
30
See Skinner v. State, 575 A.2d 1108, 1115 (Del. 1990) (“The threshold consideration is the
length of the delay. Unless ‘there is some delay which is presumptively prejudicial,’ there is no
reason to review the other factors.” (quoting Scott, 521 A.2d at 239)); see also Doggett v. United
States, 505 U.S. 647, 651–52 (1992) (“Simply to trigger a speedy trial analysis, an accused must
allege that the interval between accusation and trial has crossed the threshold dividing ordinary
from presumptively prejudicial delay, since, by definition, he cannot complain that the government
has denied him a speedy trial if it has, in fact, prosecuted his case with customary promptness.”
(internal quotations and citations omitted)).
31
407 U.S. 514 (1972).
32
Middlebrook, 802 A.2d at 273.
33
State’s Resp. ¶ 27; see Cooper v. State, 32 A.3d 988, 2011 WL 6039613, at *7 (Del. 2011)
(TABLE) (“This Court has found that if the delay between arrest or indictment and trial exceeds
one year, the Court generally should consider the other Barker factors.”).
8
unsuccessful efforts at competency restoration. However, the parties nevertheless
dispute whether this factor weighs against the State or against the defendant. Mr.
Topolski lays the blame with the State, arguing that “[t]hree years and three months
is an exceedingly long period to attempt to restore one to competency” and that this
“length of time shows a lackadaisical approach by the state [sic].”34 The State, on
the other hand, faults Mr. Topolski for discontinuing the ECT treatments, and argues
that this case is analogous to recent Delaware cases in which speedy trial claims
were denied because a mentally ill defendant refused to cooperate with competency
restoration efforts.35 However, the Court finds neither party especially blameworthy
for this situation. The State, via DPC personnel, has been diligently attempting to
restore Mr. Topolski to competency, to no avail. On the other hand, the Court
declines the State’s invitation to fault Mr. Topolski for discontinuing ECT
treatments, an extreme last-resort procedure with serious potential side effects, and
which, according to DPC reports, did not appear to be generating any improvement
in Mr. Topolski’s condition despite completion of slightly over half of the course of
treatment.
The question, then, is not whom to blame for Mr. Topolski’s incompetency to
stand trial, but how that fact on its own weighs in the speedy trial analysis. Most
courts to consider this question have concluded that, because an incompetent
defendant may not be brought to trial without violating his or her due process rights,
delays caused by a defendant’s incompetency alone (without some delay or fault
34
Def.’s Mot. ¶¶ 30 and 32.
35
State’s Resp. ¶¶ 35 and 37; see State v. Draughn, 2016 WL 7105933, at *6 (Del. Super. Nov.
29, 2016) (Comm’r Report and Recommendation) (“Balancing the four Barker v. Wingo factors,
I find that the reason for the delay—Draughn’s schizophrenic and obstructionist behavior—
outweighs all other factors at this point in time.”); State v. Williamson, 2020 WL 2790488, at *9
(Del. Super. May 29, 2020) (“The DPC records demonstrate an ongoing refusal by Defendant to
comply with medication and individual therapy. Balancing the four Barker v. Wingo factors,
Defendant significantly caused the extended delay, which outweighs the other points.”).
9
attributable to the state) do not violate a defendant’s federal constitutional right to a
speedy trial.36 In particular, the Court finds persuasive the reasoning of the Supreme
Court of Kansas, which addressed a similar Sixth Amendment speedy trial claim in
Matter of Snyder.37 The defendant in Snyder, like Mr. Topolski, was incompetent to
stand trial, and his chances of restoration to competency were “minimal, if not
nonexistent.”38 In that case, the court assumed without deciding that three factors—
length of delay, assertion of the right, and prejudice to the defendant—weighed in
the defendant’s favor, but nevertheless concluded that “his speedy trial claim is still
foreclosed by the sole reason for the delay—his incompetency to stand trial.”39 As
the court further explained, “[t]he bottom line is [that] Snyder cannot be tried in a
condition of incompetency without running afoul of due process.”40 Thus, the delay
36
See Matter of Snyder, 422 P.3d 1152, 1155 (Kan. 2018) (“Though the Sixth Amendment
guarantees an accused the right to a speedy a trial, the stubborn fact remains—Snyder cannot be
constitutionally tried while incompetent.”); State v. Mendoza, 774 P.2d 440, 443 (N.M. 1989)
(“During the time an accused’s competency is being assessed, he or she is unavailable for trial.
Regardless of who initiates the proceeding a competency examination is clearly on behalf of the
accused and in no way infringes on that person’s speedy trial rights.”); United States v. Mills, 434
F.2d 266, 271 (8th Cir. 1970) (“[D]elays encountered in bringing a defendant to trial who claims
to be incompetent or who is temporarily incompetent ordinarily do not infringe upon his Sixth
Amendment right to a speedy trial.”); Langworthy v. State, 416 A.2d 1287, 1293 (Md. Ct. Spec.
App. 1980) (“[O]nce an accused has been determined to be incompetent, the deferral of his trial
pending a return to competency does not offend any right to a speedy trial under the Sixth
Amendment.”); State v. Woodland, 945 P.2d 665, 670 (Utah 1997) (“That delays caused by
questions of competency do not impinge on an accused’s right to a speedy trial is well
established.”). In addition, the federal Speedy Trial Act (which is separate from the Sixth
Amendment guarantee and does not apply to criminal prosecutions in state court) excludes “[a]ny
period of delay resulting from the fact that the defendant is mentally incompetent or physically
unable to stand trial” from the computation of time within which a defendant must be brought to
trial. 18 U.S.C. § 3161(h)(4).
37
422 P.3d at 1155–56.
38
Id. at 1158 (quoting Jackson, 406 U.S. at 727); see also id. at 1154 (“During this time, a series
of . . . reports indicated that Snyder’s progress toward competency was minimal and slow.”).
39
Id. at 1155.
40
Id. at 1156.
10
was in no way attributable to the state, and the court concluded that there was no
speedy trial violation.41
State v. Hinton, the rare Delaware case dismissing charges against an
incompetent defendant on speedy trial grounds, is consistent with this general rule.42
In that case, a Superior Court commissioner reasoned that, because the State has a
compelling interest in bringing a defendant to trial and bears the burden of proving
the defendant’s competence (by a preponderance of the evidence) in order to do so,
“the onus is necessarily on the State to provide a mechanism for competency
restoration—something it does in most instances, but unfortunately, not for non-
incarcerated defendants.”43 Since the defendant in Hinton was not incarcerated, and
the State offered no outpatient competency restoration services, the Commissioner
concluded that the defendant’s continued incompetency counted against the State in
the speedy trial analysis.44 The reasoning in Hinton is thus inapplicable here, since
Mr. Topolski is committed to the DPC and has been provided competency
restoration services, albeit unsuccessful, over the course of his detention there. In
sum, Mr. Topolski’s incompetency to stand trial, despite consistent restoration
efforts, weighs heavily against a finding of a speedy trial violation.
As to the third factor, the instant motion is the first time Mr. Topolski has
invoked his speedy trial right, though the Court notes that it was alluded to in his
41
Id.
42
2018 WL 366971 (Del. Super. Jan. 11, 2018) (Comm’r Report and Recommendation).
43
Id. at *3.
44
Id. at *3–4 (“Balancing the four Barker v. Wingo factors, I find that the reason for the delay—
the State’s inaction and ultimate inability to restore Hinton to competency—outweighs all other
factors at this point in time. Therefore, I am recommending that the charges against him in both
cases be dismissed.”); see also State v. Cooper, 2018 WL 2129728, at *2 (Del. Super. May 7,
2018) (Comm’r Report and Recommendation) (dismissing charges on speedy trial grounds where
State failed to pursue a motion for involuntary medication after DPC reports indicated that such
medication was the only path to competency restoration), report accepted, 2018 WL 2448109(Del. Super. May 25, 2018).
11
motion for a prima facie hearing.45 Fourth and finally, under the prejudice prong,
the Court must consider “three of defendants’ interests that the speedy trial right was
designed to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing
the anxiety and concern of the accused; and (3) limiting the possibility that the
defense will be impaired.”46 The Court is persuaded that all three of these factors
are present to some degree here—Mr. Topolski has been incarcerated for over three
years, faces serious criminal charges, and, in addition to the normal fading of
evidence, may have suffered some retrograde amnesia as a result of the ECT
treatments.47
In sum, the first and fourth factors, length of delay and prejudice to the
defendant, weigh in favor of Mr. Topolski’s speedy trial claim. The third factor,
assertion of the right, carries relatively little weight at this juncture. However, the
dispositive issue in this case is the reason for the delay.48 Here, the reason for the
delay is the unfortunate but unavoidable reality that Mr. Topolski has remained
incompetent to stand trial since the proceedings against him were initiated, rendering
it impossible to bring him to trial or to allow him to enter a plea without violating
his right to due process. At this point, in light of the fact that Mr. Topolski’s right
to a speedy trial was invoked for the first time in this motion, the reason for delay—
Mr. Topolski’s incompetency to stand trial despite the DPC’s best efforts—
45
Mot. For an 11 Del. C. § 404 Prima Facie Hearing ¶ 12 (referring to a “forthcoming motion to
release Mr. Topolski from the custody of the Department of Corrections under the 5th, 6th, and 14th
Amendments to the United States Constitution of America and Article I, Section 7 of the
Delaware Constitution of 1897.” (emphasis supplied)).
46
Middlebrook, 802 A.2d at 276.
47
See supra note 16; Def.’s Mot. Ex. A (journal article explaining that retrograde amnesia is a
potential side effect of ECT treatment).
48
See Bailey v. State, 521 A.2d 1069, 1081 (Del. 1987) (observing that a “speedy trial argument
usually stands or falls” on the reason for the delay).
12
outweighs the other factors, and the motion to dismiss on speedy trial grounds is
DENIED WITHOUT PREJUDICE.49
II. Writ of Habeas Corpus
That Mr. Topolski’s criminal charges are not subject to dismissal does not
necessarily mean that his continued pretrial commitment at the DPC is permissible.
The Equal Protection and Due Process clauses of the United States Constitution limit
the state’s power to subject an incompetent defendant to indefinite pretrial
incarceration. The Court will review the seminal case for this proposition, Jackson
v. Indiana,50 as well as the Delaware statutes governing the commitment of
incompetent defendants, before turning to the merits of Mr. Topolski’s due process
and equal protection arguments.
a. Jackson v. Indiana
In Jackson v. Indiana, the United States Supreme Court addressed a
constitutional challenge to Indiana’s pretrial commitment of an intellectually
disabled defendant pending minor property offenses for which he was deemed
incompetent to stand trial.51 Given the defendant’s dim prognosis for attaining
competency, the defense argued that “commitment under these circumstances
amounted to a ‘life sentence’” without a criminal conviction.52 Reversing the state
courts, the Supreme Court held that “Indiana cannot constitutionally commit the
petitioner for an indefinite period simply on account of his incompetency to stand
trial on the charges filed against him.”53
49
The Court need not address at this point whether future invocation of the right, coupled with
further passage of time and the prejudice already discussed, could eventually outweigh the reason
for delay—Mr. Topolski’s incompetence to stand trial—and thus warrant dismissal of the charges
against him.
50
406 U.S. 715 (1972).
51
Jackson, 406 U.S. at 717–19.
52
Id. at 719.
53
Id. at 720.
13
The Indiana statute at issue in Jackson provided that, after a hearing at which
a defendant was found incompetent by the court, the defendant would be confined
in an “appropriate psychiatric institution” until “the defendant shall become sane,”
at which point he or she would stand trial.54 The Indiana statute did not provide for
any scenario, besides restoration of competency, that would result in the defendant’s
release, and the Supreme Court emphasized that there was “no statutory provision
for periodic review of the defendant’s condition by either the court or mental health
authorities.”55 Indiana’s generally applicable civil commitment statute, by contrast,
provided for more extensive procedural requirements.56
The Supreme Court based its ruling first on the Equal Protection Clause,
holding that pending criminal charges did not justify “a more lenient commitment
standard” and “a more stringent standard of release” than applicable to the general
public under Indiana’s civil commitment statute.57 The Court also found a “closely
related” violation of the Due Process Clause,58 and held that an incompetent
defendant “cannot be held more than the reasonable period of time necessary to
determine whether there is a substantial probability that he will attain that capacity
in the foreseeable future.”59 Once that reasonable time expires, the state must choose
between civil commitment or release of the defendant.60
b. Applicable Delaware Statutes
Pursuant to 11 Del. C. § 404(a), a criminal defendant who is incompetent to
stand trial may “be confined and treated in the Delaware Psychiatric Center until the
54
Id.
55
Id.
56
See id. at 721–22 (explaining Indiana’s civil commitment procedures).
57
Id. at 729–30.
58
Id. at 731.
59
Id. at 738.
60
Id.
14
accused person is capable of standing trial.”61 Upon the defendant’s motion, the
State bears the burden of presenting “sufficient evidence to constitute a prima facie
case” against the defendant.62 In other words, the State must put forward “some
credible evidence tending to prove the existence of each element of the offense.”63
If the State fails to meet this burden, the Court “shall dismiss the charge” and that
dismissal “shall have the same effect as a judgment of acquittal.” 64 If, on the other
61
11 Del. C. § 404(a).
62
Id.
63
11 Del. C. § 301(a). The Court is aware of two published cases applying instead the “prima
facie” standard used in reverse-amenability hearings, i.e., whether there is a fair likelihood of
conviction, in a § 404(a) hearing. See State v. Tankard, 2014 WL 10187038, at *1–2 (Del. Com.
Pl. Nov. 10, 2014) (“There is no case law directly on-point in this regard, but such a hearing is
analogous to a hearing conducted when the Superior Court makes a determination on whether to
return a juvenile’s case to the Family Court. . . . Accordingly, this Court finds that if a defendant
moves for a sufficiency-of-evidence hearing under § 404, the State is required to present evidence
that is fairly likely to lead to the conviction of the defendant at trial.”); State v. Oakley, 2022 WL
1504926, at *2 (Del. Super. May 11, 2022) (relying on Tankard for the same proposition); see also
State v. Oakley, 2023 WL 1127269, at *1 (Del. Super. Jan. 30, 2023) (noting that the defendant
“requested a consolidated hearing to determine whether the State has made out a prima facie case
against Defendant, pursuant to 10 Del. C. § 1011 and 11 Del. C. § 404”). However, in the case of
a § 404(a) hearing, the requirement of a prima facie case is created and defined by statute within
Title 11 of the Delaware Code. See 11 Del. C. § 404(a) (using the term “prima facie case”); 11
Del. C. § 301(a) (stating that “a prima facie case for the State consists of some credible evidence
tending to prove the existence of each element of the offense”). The prima facie standard required
in a reverse amenability hearing, by contrast, was created and defined by the Delaware Supreme
Court to implement the “nature of the present offense” provision of what is now 10 Del. C. § 1011.
See Marine v. State, 607 A.2d 1185, 1211 (Del. 1992) (“[W]e construe the ‘nature of the present
offense’ provision of section 939 as requiring that [the] Superior Court consider whether the State
can establish a prima facie case against the defendant.”); see also State v. Mayhall, 659 A.2d 790,
791 (Del. Super. 1995) (explaining that a prima facie case in a reverse amenability hearing means
“something more than whether some credible evidence exists tending to prove each element of the
offense charged”), aff’d sub nom. Holder v. State, 692 A.2d 882 (Del. 1997). The Court sees no
indication that the Delaware Supreme Court intended this test to supplant the statutory definition
of a prima facie case found in Title 11. “A statute can define its terms as the lawmakers see fit in
order to make clear what is intended.” Stiftel v. Malarkey, 384 A.2d 9, 11 (Del. 1977). Thus, the
Court disagrees with the standard applied in Tankard and Oakley, neither of which cite the explicit
statutory definition of a prima facie case provided in 11 Del. C. § 301(a).
64
11 Del. C. § 404(a).
15
hand, the State meets its burden of presenting a prima facie case, § 404(a) is silent
as to the duration of confinement.65
However, one other limitation (addressed in neither the briefs nor any case
law the Court has identified) is found in 11 Del. C. § 403(b), which provides that a
person confined in accordance with § 404 will be secured at the DPC “until the
Superior Court of the county wherein the case would be tried or was tried is satisfied
that the public safety will not be endangered by the patient’s release.”66 The court
shall “reconsider the necessity of continued detention” after the patient has been
detained for 1 year, and upon motion on the patient’s behalf or when advised by the
DPC that “the public safety will not be endangered by the patient’s release.”67
Thus, while the Indiana statute at issue in Jackson provided no avenue for
release once a defendant was charged with a crime and found incompetent (other
than restoration of competency), Delaware law provides two. First, the charges
against the defendant will be dismissed if the State fails to make a prima facie case
of the defendant’s guilt. Second, the defendant will be released pursuant to § 403(b)
if such release will not endanger public safety.
Two decisions of this Court construing 11 Del. C. § 404(a) in light of Jackson
v. Indiana are instructive in this case. First, in State v. Goldsberry, the Court
reasoned that while “[t]he statute is silent as to the length of time the State may hold
65
See id.; see also State v. Goldsberry, 2000 WL 710090, at *2 (Del. Super. Apr. 26, 2000)
(“Eleven Del. C. § 404(a) states that a court may order a defendant confined at the DPC until he is
able to stand trial. The statute is silent as to the length of time the State may hold an incompetent
defendant.” (internal citation omitted)); Hampton v. State, 2000 WL 33115720, at *1 (Del. Super.
Sept. 29, 2000) (“The statute does not provide for any scenario that ever results in the defendant
being released if the State meets its burden and if he never becomes competent to stand trial.”).
66
11 Del. C. § 403(b) (emphasis supplied). While § 403(a) refers to defendants who are confined
after being found not guilty by reason of insanity, §403(b) applies to individuals confined at DPC
“in accordance with subsection (a) of this section, § 404, § 405, § 406 or § 408 of this title.” Id.
(emphasis supplied).
67
Id.
16
an incompetent defendant[,] . . . surely such silence was not intended by the
Legislature as bestowing authority on the State to hold an unconvicted criminal
defendant in an institution for what could amount to be a life sentence.”68 After
discussing the requirements of Jackson, Goldsberry effectively read that case’s test
into § 404(a), and held that the statute “does not permit an incompetent criminal
defendant to be held indefinitely while awaiting a return to competency”—rather, an
incompetent defendant may be held only for “a reasonable period of time necessary
to determine whether there is a substantial probability that [the defendant] will attain
the capacity to stand trial in the foreseeable future.”69 On the facts before it,
however, the Court concluded that the defendant still might be restored to
competency and that a reasonable period of time had not yet elapsed.70 Nonetheless,
the Court warned that “[t]he day may come . . . when the State will have to choose
between a civil commitment or release.”71
However, in Hampton v. State, the Superior Court dealt with a case in which
a defendant was considered by medical experts to be “irreversibly incompetent.”72
Relying on Jackson v. Indiana, the defendant sought a writ of habeas corpus. The
Court in Hampton distinguished Jackson, noting that “[t]he Delaware statute
contains a procedural step not contained in the Illinois statute involved
in Jackson”—the requirement of a prima facie hearing.73 Since the defendant had
not yet moved for a prima facie hearing, the Court concluded that “it is not at all
legally clear at this point that the defendant’s commitment is indefinite.”74 The
Court thus declined to pass on his constitutional claims, noting that they would only
68
Goldsberry, 2000 WL 710090, at *2.
69
Id. at *3.
70
Id.
71
Id.
72
Hampton, 2000 WL 33115720, at *1.
73
Id. at *2.
74
Id.
17
“become ripe for adjudication” after a prima facie hearing was held and the State
presented sufficient evidence to justify continued detention.75
c. Mr. Topolski’s Due Process Claim
The Supreme Court explained in Jackson that “due process requires that the
nature and duration of commitment bear some reasonable relation to the purpose for
which the individual is committed.”76 More specifically, when an individual’s
commitment is “solely on account of his incapacity to proceed to trial,” he or she
“cannot be held more than the reasonable period of time necessary to determine
whether there is a substantial probability that he will attain that capacity in the
foreseeable future.”77
As a factual matter, the Court finds that there is not a substantial probability
that Mr. Topolski will attain competency in the foreseeable future, and a reasonable
period of time to so determine has expired. This conclusion is bolstered by multiple
DPC reports with increasingly dire prognoses for Mr. Topolski’s restoration to
competency (summarized above), the failure of a partial course of ECT treatments
to lead to any observable improvement, and the expert opinions of Dr. Roberts and
Dr. Donohue, which this Court has no reason to doubt, that it is highly unlikely that
Mr. Topolski will ever be restored to competency, much less restored in the
foreseeable future. Thus, he can no longer be held solely on the basis of his criminal
charges, and incompetency to be tried for them, consistent with the Due Process
Clause.78
75
Id. The Court takes judicial notice of the docket and case file in Hampton, pursuant to Delaware
Rule of Evidence 202(d)(1)(C), which allows the Court to take judicial notice of, inter alia, “the
records of the court in which the action is pending . . . .” In Hampton, a prima facie hearing was
later held upon defendant’s motion, and the State presented evidence sufficient to establish a prima
facie case to continue detention. However, the docket does not indicate that a follow-up motion
renewing the defendant’s constitutional challenges was ever filed.
76
Jackson, 406 U.S. at 738.
77
Id.78
Id.; Goldsberry, 2000 WL 710090, at *3.
18
This finding does not, however, necessarily end the inquiry. The Supreme
Court in Jackson distinguished prior federal court case law in which incompetent
defendants were detained based on their incompetency to stand trial and a finding of
dangerousness.79 In explaining the standard for commitment under the federal
statute governing incompetency, the Supreme Court wrote that “[w]ithout a finding
of dangerousness, one committed thereunder can be held only for a ‘reasonable
period of time’ necessary to determine whether there is a substantial chance of his
attaining the capacity to stand trial in the foreseeable future.”80
As explained above, 11 Del. C. § 403(b) requires that a person committed to
the DPC pursuant to § 404 “shall be kept there at all times in a secured building until
the Superior Court of the county wherein the case would be tried or was tried is
satisfied that the public safety will not be endangered by the patient’s release.” Thus,
in light of § 403(b), indefinite detention at the DPC is only authorized under
Delaware law so long as the defendant would be dangerous to the public if released
(unlike the Indiana statute at issue in Jackson). Since no Delaware court has yet to
consider the operation of § 403(b) with respect to incompetent defendants in light of
Jackson, and it was not addressed in the briefing, the Court requires supplemental
briefing on the issue. Accordingly, the Court will order supplemental briefing from
the parties on 1) what is required procedurally under 11 Del. C. § 403(b) to justify
an incompetent defendant’s continued detention and 2) whether those safeguards are
sufficient to satisfy the Due Process Clause, specifically, whether the “nature and
79
Jackson, 406 U.S. at 731 (“In the federal criminal system, the constitutional issue posed here
has not been encountered precisely because the federal statutes have been construed to require that
a mentally incompetent defendant must also be found ‘dangerous’ before he can be committed
indefinitely.”).
80
Id. at 733 (emphasis supplied).
19
duration of commitment” authorized by Delaware law “bear[s] some reasonable
relation to the purpose for which the individual is committed.”81
d. Mr. Topolski’s Equal Protection Claim
The Equal Protection Clause does not prohibit legislative classifications
between similarly situated groups of people, but it does require, at a minimum, that
such differential treatment must “bear[] a rational relation to some legitimate end.”82
Unless a suspect classification or fundamental right is implicated, the party
challenging differential treatment under the Equal Protection Clause bears a heavy
“burden of showing a lack of rational justification for the classification created by
the statute.”83 Here, Mr. Topolski argues that his continued detention under 11 Del.
C. § 404(a) violates his rights under the Equal Protection Clause because he is being
held in effect indefinitely at the DPC without the same procedural protections that
would be available to Delawareans subject to an involuntary civil commitment.
Mr. Topolski’s position is supported by Jackson, which does not explicitly
invoke the language of rational basis review. However, since incompetent criminal
defendants have never been identified as a suspect class under equal protection
jurisprudence, the Court concludes that a challenge to their differential treatment
calls for rational basis review.84 Thus, in order to be held unconstitutional, “the
distinction must be patently arbitrary and bear no rational relationship to a legitimate
81
Jackson, 406 U.S. at 731.
82
Romer v. Evans, 517 U.S. 620, 631 (1996); see also Helman v. State, 784 A.2d 1058, 1074 (Del.
2001) (“Under the Fourteenth amendment, where a fundamental right or a suspect class is not
implicated, a classification will be upheld if it is demonstrated that it is rationally related to a
legitimate government interest.”).
83
Helman, 784 A.2d at 1074–75.
84
See State v. Witherup, 1996 WL 527284, at *1 (Del. Super. July 3, 1996) (“Equal protection is
satisfied where, in the absence of a fundamental right or suspect classification, the statutory
distinction is rationally related to a legitimate legislative objective.”); cf. Matter of Lewis, 403 A.2d
1115, 1119 (Del. 1979) (applying rational basis review to a challenge to the indefinite detention
of people found not guilty by reason of insanity).
20
governmental interest.”85 As in Jackson, the first step in the equal protection
analysis here is to identify how the standards of commitment and release for
incompetent criminal defendants differ from those applicable to similarly situated
members of the general public. Only then can the Court determine whether those
differences survive rational basis review.
In order to commit an individual involuntarily to inpatient treatment, the State
typically must meet the requirements of 16 Del. C. § 5011, Delaware’s involuntary
civil commitment statute. Specifically, the State must show by clear and convincing
evidence that 1) the person has a mental condition; 2) the person is, “[b]ased upon
manifest indications,” dangerous to himself or to others; 3) all less restrictive
alternatives have been considered and “determined to be clinically inappropriate”;
and 4) the person has either declined voluntary inpatient treatment or lacks capacity
to consent to inpatient treatment.86 By contrast, all that is required for commitment
under 11 Del. C. § 404(a) is that 1) the person be charged with a crime; 2) the State
fails to prove by a preponderance of the evidence that the person is competent to
stand trial;87 and 3) the State presents a prima facie case that the defendant is guilty
of the crime charged. Moreover, unlike the indefinite nature of commitment under
§ 404, continued civil commitment under 16 Del. C. § 5011 requires a new hearing
every three months “to review whether continued involuntary inpatient treatment is
necessary.”88
Applying the rational basis standard in a related context, the Delaware
Supreme Court has held that involuntary commitment of insanity acquittees (i.e.,
85
Sisson v. State, 903 A.2d 288, 314 (Del. 2006) (quoting Hughes v. State, 653 A.2d 241, 248
(Del. 1994)).
86
16 Del. C. § 5011(a).
87
See Smith v. State, 918 A.2d 1144, 1148 (Del. 2007) (“The prosecution bears the burden of
proving a defendant’s legal competency by a preponderance of the evidence.”).
88
16 Del. C. § 5011(d).
21
people acquitted by a finding of not guilty by reason of insanity) pursuant to 11 Del.
C. § 403(a) and (b), without going through the civil commitment process applicable
to other citizens, does not violate the Equal Protection Clause. First, the Delaware
Supreme Court observed that “insanity acquitees [sic] constitute an ‘exceptional
class’ because ‘they have already endangered the public safety . . . as a result of their
mental conditions as distinguished from people civilly committed because of only
potential danger.’”89 The past conduct of insanity acquittees sets them apart from
“mentally ill person[s]” subject to civil commitment because “insanity acquitees
[sic] have performed acts which, but for the existence of a mental disease or defect
that the time of the acts [sic], would otherwise have subjected them to criminal
sanctions.”90 Moreover, “[u]nlike the involuntary civil committee who generally
denies the existence of the mental condition for which he is committed, the insanity
acquitee [sic] has been provided a judicial hearing at which he has alleged and
proven by a preponderance of the evidence the very mental condition which he has
manifested in past criminal action and for which, by reason of the presumption of
continuing mental illness, he is committed.”91 This, the Delaware Supreme Court
concluded, “provides a rational basis for the insanity acquitee’s [sic] immediate
commitment.”92
Against this backdrop, this Court must decide whether continued detention of
Mr. Topolski, without the benefit of the civil commitment procedures set forth in 16
Del. C. § 5011, bears a rational relationship to a legitimate government interest. Mr.
Topolski is similarly situated to the defendant in Jackson, except that rather than the
89
Lewis, 403 A.2d at 1118 (quoting Chase v. Kearns, 278 A.2d 132, 138 (Me. 1971)).
90
Id.91
Id. at 1119.
92
Id.; see also Witherup, 1996 WL 527284, at *2 (holding that requiring an insanity acquittee,
rather than the State, to bear the burden of proof in a release hearing did not violate the Equal
Protection Clause).
22
mere pendency of criminal charges, the State has made out a prima facie case against
him. The State argues that Delaware’s statutory requirement of a prima facie hearing
sets it apart from the Indiana law at issue in Jackson—whereas Indiana law
authorized indefinite commitment based solely on pending criminal charges and a
finding of incompetency, the State asserts that Delaware law requires that the State
“prove that it has a prosecutable criminal case in order to justify continued detention
for treatment purposes.”93
Here, as in Lewis, there is a legitimate government interest in protecting the
public from the potential danger posed by someone who is both presently mentally
ill and who the State has demonstrated, by way of a prima facie case, has likely
already engaged in criminal conduct. However, the two cases differ in important
respects. First, unlike an insanity acquittee, a defendant need not prove his or her
own mental illness in order to be found incompetent. Rather, once competency is
put in issue, the State must prove that the defendant is competent in order to proceed
to trial. Second, there is not necessarily any connection between an incompetent
defendant’s alleged criminal conduct in the past and his or her present mental illness
(the illness preventing the case from going to trial). In other words, a defendant’s
present mental illness may differ from his or her mental state at the time of the
alleged offenses, and thus might not rationally support any inferences about the
defendant’s future dangerousness or propensity for criminal activity.
Moreover, Section 404(a) draws no distinction between relatively minor
crimes, like those at issue in Jackson, and more serious offenses indicative of
dangerousness, like those alleged in this case. For these reasons, the Court is not
prepared to accept the State’s assertion that the prima facie hearing alone supplies
the necessary rational basis for bypassing ordinary civil commitment procedures that
93
State’s Resp. ¶ 19.
23
was lacking under the Indiana statutory scheme in Jackson. However, as explained
above, the release standard in 11 Del. C. § 403(b) more clearly implicates the
legitimate government objective of protecting public safety. As with Mr. Topolski’s
due process claim, the Court will require additional briefing on 11 Del. C. § 403(b)
prior to ruling on the equal protection claim.
CONCLUSION
For the foregoing reasons, Mr. Topolski’s motion to dismiss on speedy trial
grounds is DENIED WITHOUT PREJUDICE. Decision on his motion for a writ
of habeas corpus is DEFERRED pending supplemental briefing on the requirements
of 11 Del. C. § 403(b) for continued detention, and whether indefinite detention
under 11 Del. C. §§ 403(b) and 404(a) combined comports with the constitutional
mandates of the Due Process and Equal Protection Clauses as construed in Jackson
v. Indiana. Counsel are directed to file concurrent supplemental briefing no
later than February 28, 2023, and shall have the opportunity to respond to one
another’s submissions no later than March 10, 2023.
IT IS SO ORDERED.
NEP/tls
Via Email
oc: Prothonotary
cc: Counsel of Record
24