SOUTH BEND — A U.S. Navy veteran will return to Pacific County Jail after he was found competent to stand trial by psychologists at Western State Hospital near Tacoma.

In a competency assessment written Nov. 3, hospital staff wrote that Gian Moreno, 43, is able to assist in his defense. Moreno is charged with three misdemeanors including criminal trespass in the second degree, obstructing a law enforcement officer and disorderly conduct. He was arrested on Aug. 8 and later that month found not competent to stand trial due to a mental illness.

So far, he has spent nearly three months in some variety of incarceration.

A law that went into effect on July 28 requires judges to dismiss charges against those found not competent in misdemeanor cases unless prosecutors can present compelling evidence as to why a defendant should be sent for restoration. The findings of fact for why Moreno needed restoration were not filed until after he was sent to Western State Hospital.

Restoration is when a court orders a defendant to treatment to see if their mental health can be stabilized so they can be prosecuted. The court entered findings of fact in Moreno’s case on Oct. 30, about two months after South County District Court Judge Nancy McAllister ordered Moreno be sent to Western State Hospital and about two weeks after he was transferred. McAllister said she will no longer comment on Moreno’s case.

Restoration treatment does not have the same goals as someone seeking mental health treatment through a hospital, said Joe Scovel, a prosecutor with Pierce County who worked with the Pierce County veteran’s treatment court and mental health court.

“I imagine that there is some individualized treatment for some participants, but generally, and specifically at the misdemeanor level, the times allotted are not long enough to really address diagnosis and therapeutic treatment of a mental pathology,” Scovel said in an email on Oct. 31.

PTSD from war

Moreno’s medical records show a history of service-connected post traumatic-stress disorder, for which he received treatment in Veterans Affairs hospitals. Moreno served in the Navy from 2006 to 2012 during the Persian Gulf War. He was honorably discharged.

Moreno was arrested on nonviolent low-level charges, but Jonathan Dumais, deputy prosecutor for Pacific County, said Moreno’s criminal history was cause for concern. In a declaration supporting the order for restoration, Dumais wrote Moreno was convicted of resisting arrest in Oregon in 2018. And in 2017, Moreno was charged in California with battery of a peace officer and emergency personnel; attempting to remove a firearm from a peace officer; and obstruction of a police officer. Dumais did not include whether Moreno was convicted of those charges. There is a pattern of behavior endangering law enforcement and the general public, Dumais wrote as justification for sending Moreno to Western State Hospital for restoration.

Hospital staff said Moreno was cooperative when responding to questions, but got upset when he first arrived and found out he may have to stay at Western State Hospital for 29 days. He had sat in jail for about two months by the time he was transferred to the hospital.

Unusual sentence

In the findings of fact filed with the court to justify sending him to the hospital, prosecutors wrote that Moreno could face up to 544 days in jail if he served his sentences consecutively, one after the other. Dumais said the state does not actually intend to seek that long of a sentence for Moreno.

Former Pacific County Superior Court Judge Doug Goelz said this would be an unusual sentence for the misdemeanor court to hand down. Goelz served as South County District Court Judge for 28 years.

“The only time that I can remember ever running consecutive sentences for crimes in the same charging document is when the same charging document included two instances of domestic violence assault,” Goelz said.

Reactions to confinement

In Moreno’s competency assessment, hospital staff said he acknowledged his full beard and long hair didn’t make him look like a CEO, but said he liked it. He told hospital staff he was concerned about being at the hospital against his will on misdemeanor charges. He also was concerned about bills that needed to be paid and about the possible loss of his SUV and his belongings due to his arrest.

Western State Hospital is one of two state-owned psychiatric hospitals for adults in the state of Washington. It provides services to people in 20 western Washington counties, including Pacific. Western has struggled over the past decade to keep up with the increasing demand for services. It is the focus of federal and judicial scrutiny.

Washington state is investing in more diversion programs and crisis stabilization services across the state, said Thomas Kinlen, director of the office of forensic mental services within the behavioral health administration in the state Health and Human Services Department.

There are some states that do not pursue misdemeanor restoration, Kinlen said. Washington does, but the change in the law was meant to make prosecutors show a compelling state interest in doing so and force judges to rule on that. Prosecutors look at the issue from a public safety side.

“I would say my point of view is, ‘How can we just keep those individuals from not having their mental illnesses criminalized,’” Kinlen said.

Kinlen is excited about the changes the state is making in trying to divert people from entering the criminal justice system due to mental illness. And the hospital is doing its best to educate courts on what is needed if it wants to pursue restoration treatment.

Reforms driven by lawsuit

In 2015, a federal judge ruled in Trueblood et. al. v Washington State DSHS, wait times for treatment in Washington jails violated the rights of people with a mental illness. The Trueblood lawsuit, filed by Disability Rights Washington, sought relief for defendants waiting months in jail for competency evaluations and a bed in Western State Hospital.

The lawsuit showed that each additional day in jail causes further deterioration for people with severe mental illness.

The state was ordered to move individuals facing criminal charges out of jail and into treatment facilities within seven or 14 days of when they are eligible for competency evaluation and restoration treatment. After the ruling, the state was being fined for each day and each defendant waiting in jails statewide. New laws passed during the 2019 legislative session, including the law requiring a higher bar for misdemeanor restoration, were meant to help the hospital meet the requirements of the federal ruling.

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