Man jailed 4 years without trial in Mississippi
By KATHRYN EASTBURN
Dec. 17, 2017
GREENWOOD, Miss. (AP) — When he was 14, Dequariann Pilcher was accused of firing a gun in Sam Leach Park in Greenwood. That was in June 2011.
When he was 16, between March and September 2013, Dequariann, who was known as "D," was charged by police in a number of aggravated assaults and a murder.
By the time he was 17, he had been arraigned and jailed for seven counts of aggravated assault and one count of murder in the shooting death of Torrey Shaffer.
Since then, Pilcher has remained in the Leflore County Jail for four years without a trial.
The primary delay in his case, and in hundreds of others around Mississippi, was awaiting a court-ordered competency evaluation to stand trial.
To stand trial, generally within 270 days of indictment according to Mississippi Supreme Court procedures for a criminal trial, Dequariann Pilcher first had to be found mentally competent.
Dequariann's grandmother, Betty Pilcher, who got custody of him when he was 2 and raised him, said everyone knew "D'' was "slow."
When Pilcher was charged as an adult at age 16, he was identified in a story in the Commonwealth as an eighth-grader at Greenwood Middle School.
Betty Pilcher, in a family history taken for the purposes of evaluating his mental health, told his attorney in 2014 that Dequariann had a history of emotional instability, psychotic diagnoses, attention deficit-hyperactivity disorder and mental retardation and had been classified for special education classes in school.
Dequariann's attorney at the time, Whit Mounger, filed a motion requesting mental examination, evaluation and possible treatment for his client. Mounger said he'd "found it difficult to consult with his client, in part because of the aforesaid condition," and didn't feel he could adequately defend him without a full competency evaluation.
G.S. Macvaugh III, a forensic psychologist from Greenville, performed the first evaluation of Dequariann Pilcher for the courts. Macvaugh measured Pilcher's IQ at 57. (An IQ score of 80 is generally considered to be a measure of normal intellectual ability.)
Dequariann scored 68 percent on basic legal concepts he needed to understand in order to be found competent to stand trial. He scored 33 percent in the skills needed to assist in his defense.
Macvaugh said Dequariann was taking no medication at the time, though Betty Pilcher said he had been taking Abilify, a drug used to treat schizophrenia and bipolar disorder, before he was incarcerated. According to her, Dequariann was "too scared" to take the drug in jail because he had once experienced a seizure while taking it.
Macvaugh's evaluation concluded: "(Pilcher) lacks sufficient present ability to consult with his attorneys with a reasonable degree of rational understanding in the preparation of a defense, and he also lacks a factual as well as rational understanding of the nature and object of the legal proceedings against him."
Consulting that report, Circuit Judge Richard Smith agreed in March 2015, a year after Pilcher entered the county jail, that Pilcher was incompetent to stand trial.
Smith ordered that "the Defendant undergo a mental evaluation and, if deemed necessary and appropriate, admission and treatment at the Mississippi State Hospital at Whitfield or as directed, by such other competent psychiatrist that may be selected or allowed by the court."
The judge's order, dated March 10, 2015, went on to say that a written report on Dequariann's progress should be submitted to the court within 65 days of the evaluation and every four months thereafter during the time that he was being evaluated and/or treated.
He was 18, and instead of being evaluated or treated, he remained in custody of the sheriff in the Leflore County Jail for two more years, awaiting evaluation at the State Hospital.
Trial delays while defendants await competency evaluations in Mississippi are not unusual — and the problem has grown more critical in recent years as the number of forensic beds available at the State Hospital has decreased to 15 because of state budget cuts.
In Dequariann Pilcher's case, during the time the judge ordered his evaluation at Whitfield until the time he actually went there, continuances were granted at least 10 times between April 21, 2015, and August 22, 2017. In each case, the reason stated by the judge was that the mental evaluation was not completed.
At the end of August 2017, Dequariann Pilcher was finally admitted to Whitfield. He was 20 years old.
During the time he had spent in jail, his grandmother said, she tried to visit him about once a month but often wasn't allowed to see him because he was "in the hole." She was referring to solitary confinement at the jail, usually a punishment for a behavioral infringement.
However, the evaluation by doctors at the state hospital said Pilcher's jail record indicated no behavioral problems.
Pilcher was reportedly on no medication and had received no treatment during the years he awaited evaluation. But the evaluation report said "he exhibited no signs of mental illness, was familiar with legal concepts and was able to rationally discuss his legal situation" after two weeks at Whitfield.
Doctors spent one hour and five minutes evaluating him. In short, they concluded he was better.
His IQ measured 71 this time — within the borderline range of intellectual ability but also within the borderline range of intellectual disability. Doctors Thomas V. Record and Reb McMichael, who signed the evaluation report, said they believed the new IQ measurement was more accurate than Dr. Macvaugh's score of 57 and that Dequariann admitted not trying hard enough on the first test.
He was found to be neither psychotic nor depressed and was found to have "little to no impairment in all domains related to his competence to proceed legally."
According to the report, he "participated in a court-competence restoration group" but said he was "already familiar with the concept being taught."
The doctors unanimously concluded that Dequariann was competent to stand trial. Assistant District Attorney Tim Jones said Pilcher has been found to be "restored to competency."
"It's not a measure of intellectual ability," Jones said. "Some people come in who know nothing about the system. Sometimes being restored means they've received more medication; for some it's simply educating them about what the process is, who the players are, and determining whether they can communicate with their lawyers, whether they understand what's going on. All of that goes into a determination of competency to stand trial."
Jones said that the problem of trial delay for competency evaluations — like the problem of an understaffed crime lab, which also frequently delays trials — has to do with the number of cases and the lack of people qualified to perform these evaluations.
"It takes a while to get them to the state hospital, and there's only a couple of individuals in this area who can do those evaluations," he said.
Mississippi's Department of Mental Health (DMH) is trying to interest psychologists and psychiatrists around the state in becoming certified as evaluators or deemed by a judge as qualified to make a competency assessment. A training session held in August served as a general orientation, introducing practitioners to the idea.
Mississippi State Hospital's Forensic Services, headed by McMichael, hope to make pre-trial competence evaluations more readily available by training interested psychologists and psychiatrists to become qualified evaluators available to courts to perform jail-based services, according to a DMH press release. Those services at this time are available only in Hinds and Madison counties through a pilot program, according to DMH Director of Communication Adam Moore.
Moore said it's not yet clear what judges will think of the idea. He said the pilot program in Hinds and Madison counties is aimed at the restoration aspect of the evaluation process. In other words, the psychologists and psychiatrists doing jail-based work there are working with inmates who have already been declared incompetent but were found restorable or able to be restored to competency.
But in the case of people with an Intellectual or Development Disability (IDD), those persons generally "would not be able to be restored to competency," Moore said.
In none of the evaluations of Dequariann Pilcher has he been classified as a person with an IDD. According to his grandmother, he flunked second grade over and over and over because he couldn't read.
According to the American Association on Intellectual and Developmental Disabilities, such a disability originates before the age of 18 and is characterized by limitations in intellectual functioning and in adaptive behavior.
Intellectual function or intelligence is most often measured by an IQ test, and generally a score of around 70 or as high as 75 indicates a limitation in intellectual functioning.
Adaptive behavior is defined as "the collection of conceptual, social and practical skills that are learned and performed by people in their everyday lives," such as language and literacy, interpersonal skills and practical skills.
Before he was incarcerated, Dequariann Pilcher exhibited distinct limitations in both.
Assistant District Attorney Jones said an omnibus hearing is scheduled in Smith's court in January and the case of Dequariann Pilcher will be raised at that time. He said an omnibus hearing includes cases "that are not quite ripe for trial, where the discovery is not right or parties need to settle any outstanding motions."
Once the defense and the prosecution are satisfied that everything pre-trial has been completed, the judge will set a trial date.
Jones said he doesn't plan to file any more motions in the Pilcher case. Discovery is complete on it, and "it's just a matter of whether the defense has any other motions they're going to file," he said.
Wallie Stuckey, defense attorney for Dequariann Pilcher, said the defense does not intend to file any further motions.
That means if all goes as expected in the January omnibus hearing, trial for Pilcher could be set as early as the judge's next session or February.
Betty Pilcher has mixed feelings about that possibility.
She has openly expressed her belief in her grandson's innocence in the murder charge, and she says police failed to consider any other possible suspects once they arrested Dequariann.
"He's being railroaded," she said.
Betty Pilcher cites signed affidavits by two eyewitnesses who were in the car with Torrey Shaffer when he was hit by the bullet that killed him.
Both state that they were told by police to look through a book of suspects and were instructed "to pick number five (5).
"Although I picked number five (5) because the police told me too, but the truth is ... when I was in the car, with my cousin, when we got shot, I did not see anyone," said both affidavits, signed by two brothers who were cousins of Torrey Shaffer.
Betty said she saw Dequariann about three weeks ago and "he was sad.
"Sometimes I get in there and he says, 'Mama, you can go.'"
She points to a picture of him at about age 10, hanging high in the living room above an ornate piece of furniture.
"He was a good boy," she said. "He's got a birthday coming up on January 24.
"He'll be 21."