August 14, 2009
Coma may just postpone defendant's day of reckoning
By ANDREW BERGH
Special to the Journal

Trying to commit suicide is never a good idea.

Actually, let's make that almost never. Because ironically, as shown by State v. Anene, the defendant in a criminal trial may conceivably benefit from trying to take his own life.

In October of 2005, Child Protective Services removed Osadebe Anene's five-year-old daughter from his home in Vancouver and placed her with foster parents. Anene was eventually charged with three felonies in Clark County Superior Court, including one count of child rape and two counts of child molestation. (To protect the alleged victim's privacy, only her initials - CJA - were used in court papers.)

When the case went to trial in 2007, CJA was only seven years old.

Given her tender age, the prosecutor intended to call various witnesses, including members of her family, a treating pediatrician, and investigators assigned to the case, to testify about CJA's prior statements that implicated her father. Although some of the witnesses lived in Texas, they were cooperative and agreed to travel to Washington for the trial.

On the third day of trial, the parties and their counsel were supposed to arrive at the courthouse just before 9 a.m. Thirty five minutes later, Anene was still AWOL. (A military term fits since Anene was a major in the armed forces.)

The trial court described two options.

If Anene's absence was “voluntary,” said the court, the trial could proceed without him. But if they resumed and Anene's absence later proved to be “involuntary,” the court added, the defense could then move for a mistrial. Instead of forcing the issue right away, the court took a short recess since Anene had always been on time for every other court appearance.

Around 10 a.m., the prosecutor learned from Vancouver police that, per the manager at Anene's apartment complex, Anene had tried to commit suicide that morning and been taken to a nearby hospital.

After court reconvened a short time later so the parties could again discuss options, the prosecutor received an update from an investigator at the hospital.

According to the medical staff, Anene had called that morning at 7 a.m. to report a drug overdose. When found at home, he was lying in bed, in full military uniform (including hat), with a Bible on his chest. Although paramedics were able to revive Anene when his heart stopped beating on the way to the hospital, his “survivability,” the investigator reported, was unknown.

The prosecutor, who had witnesses returning to Texas the next day, argued that Anene had “intentionally absent(ed)” himself by trying to commit suicide, and that the trial should proceed in his absence. Anene's attorney, on the other hand, wanted to wait until his client could attend the trial and assist with his defense.

Siding with the prosecutor, the trial court agreed that the drug overdose was no accident, that “simply waiting” for Anene to show up was no option, and that the trial should be resumed.

But after the prosecutor rested his case that afternoon, the trial court received another update regarding Anene's condition. This time, the word was that Anene was “intubated and comatose,” that his prognosis was “extremely poor,” and that nothing else would be known for three to five days.

Given this news, defense counsel moved for a mistrial. It would be highly prejudicial to continue the trial, said the attorney, since Anene — the only defense witness — was comatose. But again ruling that Anene's absence was voluntary, the trial court said a mistrial would be inappropriate.

Since the defense didn't present any evidence, the jury, predictably enough, found Anene guilty on all three counts. But in light of Anene's comatose state, his sentencing was postponed indefinitely.

About 15 weeks later, Anene surprisingly came out of his coma. Although he had suffered brain damage and partial blindness, a court-appointed expert said he was competent to understand and participate in his sentencing. So in February 2008, the trial court belatedly sentenced Anene to 15 years in prison.

The ensuing appeal involved a simple issue: whether the trial court had violated Anene's rights by ordering the trial to proceed while he was in a coma and clearly unable to assist his attorney or otherwise participate in the trial.

In a nutshell, Anene's conviction was recently reversed by a Washington appeals court.

Under the Fourteenth Amendment's due process clause, said the court, a person charged with a crime must be competent to stand trial. This protection is “even greater” under state law, the court said, because a Washington statute says no incompetent person will be “tried, convicted, or sentenced” for a crime as long as the incapacity continues.

So was Anene “incompetent” during his trial? That was a no-brainer, as he obviously couldn't assist with his defense while unconscious in the hospital.

But in big-picture terms, unless the prosecutor has lost some crucial evidence since the first trial, Anene may have only postponed the day of reckoning.

The better question is, will Anene be present or absent in court whenever that day arrives?