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2016-03-03

Hay competent to stand trial – Part 2

By Judith Pannebaker BCC Editor

On Feb. 16, 17 and 18, Nathan Frederick Hay was imbued in a competency trial in the 198th District Court. If a jury had found Hay incompetent to stand trial, the defendant would have been confined to a mental institution for an indefinite period of time rather than face incarceration in the Texas Department of Criminal Justice – had he been found guilty of myriad felony charges.
However, when Hay’s attorney Anton “Tony” Hackebeil called Hay’s wife as a defense witness, during direct examination, she revealed, “I don’t believe (Nathan) has a mental disorder.”
During cross examination by Assistant District Attorney Stephen Harpold, Shannon Hay added, “(Nathan) wanted to be out of jail. He demanded that I sell the house to get money for his bond. Now that I’m out of that situation, I can see Nathan was manipulative, but it didn’t seem that way at the time.”
Apparently the 12-person jury took the assessment of Hay’s wife to heart. After sitting through three days of testimony, they deliberated only 15 minutes before finding Hay competent to stand trial.
Dr. Ferrell redux
Hackebeil’s first witness was Jack G. Ferrell Jr., PhD, of Southwest Forensic Consultations and Psychological Associates, LLC, of San Antonio, who had been appointed by the court to determine if Hay was competent to stand trial.
Although Ferrell found Hay to have “significant psychological problems, schizophrenia and paranoia that would affect his ability to assist his lawyer,” the forensic psychologist refused to call Hay “incompetent to stand trial.” When Hackebeil put the question to Ferrell directly, Ferrell replied, “The court ultimately decides (if Hay is competent).”
In his cross-examination, Harpold asked if Ferrell had sought out any collateral witnesses other than those supplied by the defendant himself. Ferrell said he had not, adding, “I put the responsibility of whom I could contact in the client’s hands. I did not want to exceed the scope of what the attorney wanted.”
After ceding additional collateral information would have been “valuable,” Ferrell said he had not reviewed Hay’s jailhouse telephone calls, arrest and interrogation videos or interviewed Hay’s wife, father and siblings for the court-ordered evaluation. Additionally, Ferrell did not interview jailers or the jail’s on-site registered nurse.
‘I respect boundaries’
Additionally, Ferrell revealed that Hay’s childhood history, which included a broken home, drug abuse, bed-wetting and trauma, came mostly from self-reporting and had not been substantiated by interviews with siblings and parents. “I would have needed permission from Nathan or his attorney to contact them,” Ferrell explained. “I respect people’s boundaries.”
“You’re doing what the defense attorney wants you to do regarding Mr. Hay’s competency issues if I’m hearing correctly,” Harpold replied.
Additionally, Ferrell agreed with the ADA’s contention, “The statute gives you authority to look under any stone in order to comply with your requirement to determine competency.”
Another factor in determining Hay’s mental state that weighed heavily with Ferrell was the fact that on one significant test, Hay simply did not answer the last 10 questions. In Ferrell’s professional opinion, it made no sense for Hay to have simply failed to respond to the questions.
“If he had answered the questions, would that have changed the test results?” Harpold asked. “If you had listened to the jail conversations, could you have perhaps understood why Mr. Hay chose to do something that didn’t make any sense?”
“Yes,” Ferrell replied.
After calling Hay’s wife to the stand, the defense rested.
Incompetency falls on defense
At that point, the state began its case.
However, Harpold made it clear to the jury that, unlike in a criminal trial that determines guilt or innocence, the state does not have to prove Hay competent. “Rather it’s up to the defense attorney to prove that his client is incompetent to stand trial on the charges,” Harpold explained
Harpold entered into evidence a videotape of Deputy Marshal Earl Heidelberg’s traffic stop on March 24, 2014. At the time of the 3:30 am stop, Hay was asleep in the backseat of the Suburban and his 14-year-old stepdaughter was driving. The vehicle was stopped because Heidelberg observed the vehicle being driven erratically.
After stepping out of the vehicle, Hay’s first words were, “I do not give my consent to search my vehicle.” This came prior to any request from law enforcement for a vehicle search.
Hay also accused law enforcement officials of “harassing” him and his daughter, saying, “I would like to know what the f**k is going on?” Heidelberg explained the circumstances of the traffic stop – that the driver of the vehicle had crossed the centerline and was later found to have no driver’s license. Hay then asked that he be allowed to “get (his) daughter home.”
Drug alert & arrest
However, after a K-9 alerted to the presence of drugs in the vehicle, Hay was arrested and the 14– year – old was eventually released into the custody of her mother.
After loudly proclaiming, “There is no meth lab in that Suburban,” Hay wanted to know, “What did y’all find? I have a right to know.” Throughout the videotape, Hay appeared to be articulate but frustrated because he was unable to control the ensuing proceedings.
“I’m going to jail tonight?” Hay asked. “Why am I going to jail?” He then offered to give up his alleged confederates on the spot, saying, “If I go to jail I help nobody.”
Hackebeil’s cross examination veered off into the teenager’s release into the custody of her mother, which District Judge Rex Emerson disallowed. Hackebeil had no further questions for Heidelberg.
(The Thursday, March 10, edition of the Courier will include observations about a videotaped interview with Bandera County Sheriff’s Office investigators as well as a lengthy series of taped jailhouse telephone conversations initiated by Hay.)