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For the first time ever in California, the state supreme court has appointed a guardian ad litem to make crucial decisions for a death row inmate declared incompetent to assist in his own defense. The high court voted 5-0 last week to name Beverly Hills, Calif., solo practitioner Conrad Petermann as the official guardian of his own client, convicted San Mateo County murderer Jon Scott Dunkle. Justices Kathryn Mickle Werdegar and Janice Rogers Brown were absent and didn’t vote. Both Petermann and San Francisco Senior Assistant Attorney General Dane Gillette, who supervises all the state’s capital cases, agreed Tuesday that the California Supreme Court’s decision sets a precedent. “It’s the only time we know of that it’s happened,” Petermann said. Added Gillette: “I believe that’s true in California. I have never seen it, with but one exception in which a federal court granted a ‘next friend’ motion based on a conclusion that there was some question on the competence of the inmate.” But while Gillette and the defense bar agree on the precedent-setting nature of the court’s decision, they disagree on its significance or impact. Gillette said Dunkle’s case is “unique,” and he doesn’t anticipate a flood of similar grants, while San Francisco solo John Philipsborn, Petermann’s co-counsel, called the decision a “potentially wide-ranging development.” “There’s been a question about whether courts should be concerned about whether someone is competent to assist counsel during the years of appeals and habeas corpus [representation],” Philipsborn said. “And this one-page order signals, at least in California, the court does have concerns for post-conviction competence issues.” The order could also raise future questions about whether an inmate who is too incompetent to assist his counsel is also too incompetent to be executed — especially in light of the U.S. Supreme Court’s decision last term banning the execution of the mentally retarded. The court’s July 24 order provides a guardian for Dunkle, a middle-aged man convicted of murdering two Belmont, Calif., boys — John Davies, 15, in November 1981, and Lance Turner, 12, in October 1984. Both were brutally stabbed, Turner 23 times. Dunkle’s competency was questioned at trial, but San Mateo County Superior Court Judge Judith Whitmer Kozloski refused to declare him incompetent. Jurors convicted Dunkle of two counts of first-degree murder on Dec. 6, 1989, and he was sentenced to death the following Feb. 7. Dunkle subsequently pleaded guilty to the 1985 first-degree stabbing murder of 12-year-old Sean Dannehl in Sacramento County and was sentenced to life in prison without the possibility of parole. Petermann had been trying to be named Dunkle’s guardian ad litem since April 1996, but got nowhere until the high court assigned a trial court judge to conduct a competency hearing. Ironically, the judge was Kozloski, the same San Mateo County jurist who refused to declare Dunkle incompetent at trial. At the appellate level, however, Kozloski relented, and in a four-page order declared Dunkle incompetent to assist his defense counsel after hearing testimony that he suffered a form of schizophrenia with symptoms of agitation, delusional behavior, grandiose ideas, looseness of association and disorganized thinking. Her decision was made reluctantly, however. “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 or those consequences should be fulfilled,” the judge was quoted as saying during the 1999 hearing. “But I honestly cannot say that I think he is competent.” She also noted that the appellate hearing into Dunkle’s competency at the habeas level “is without reported precedent.” Even though Kozloski made her recommendation in January 2000, it still took the high court another 2 1/2 years to reach last week’s conclusion. It probably helped Petermann that the state agreed that Dunkle was incompetent, asking only that the court name some Dunkle friend or family member as the guardian. “The role of defense counsel in a capital appeal is different from that of a guardian ad litem,” San Francisco Supervising Deputy Attorney General Rene Chacon, who’s handling the Dunkle case, wrote the court nine months ago. “And we think that blurring (or combining) those roles, rather than identifying and securing the services of a surrogate acting on behalf of the client vis-�-vis all matters (including his relationship with counsel) is inadvisable.” On Tuesday, Senior Assistant Attorney General Gillette said he wasn’t surprised by Judge Kozloski’s flip-flop on Dunkle’s competency. “Competency can fluctuate, and there are a lot of cases where [defendants] can be found to be competent to stand trial, and then later found not to be competent,” he said. “That may well be what happened here. [Dunkle] may have been fully competent at the time of trial, and developed different problems at this time.” While Gillette maintained that he sees the court’s grant as a rare act not likely to occur again anytime soon, he said he “wouldn’t be surprised” if other death row lawyers make the same argument for their clients. “It gives authority,” he said, “to conduct the habeas litigation for a defendant who apparently is unable to assist his counsel in developing any possible collateral grounds.” Petermann said the court’s grant gives him a huge opportunity to represent Dunkle the best he can. “When you are putting together a habeas petition, it’s important to have your client’s input and help you develop what needs to be developed, and in this instance our client has not been able to do that,” he said. “We couldn’t even get copies of documents because he wasn’t able to give us authorization.” In written arguments to the court, co-counsel Philipsborn pointed out examples of the value of a guardianship for Dunkle. While working up Dunkle’s case, he noted, Petermann had been denied access to documents such as prison medical records and grade school psychological assessments that might have bearing on Dunkle’s current condition. Dunkle, he wrote, “has not been competent, or able, to sign waivers of confidentiality, and the like, that are a routine part of the investigative process.” Philipsborn cautioned, though, that he could be wrong about the possible wider effect of the court’s action. “By issuing a simple order, as opposed to an opinion, the court was clearly trying to keep the implications of this case contained,” he said. “In other words, there was no published opinion. “But,” he added, “the fact that the court issued the order clearly means the court recognizes that in certain cases it’s going to have to address post-conviction, deep-seated mental disorders exhibited by someone — particularly in a death penalty case.”

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