court's jurisdiction may be or can practicably be made preliminarily subject to reconsideration when and if the party regains competency.
While competency or a presumption of its existence (see Medina v. California, 120 L. Ed. 2d 353, 112 S. Ct. 2572 ) is necessary to a criminal trial or criminal conviction ( Pate v. Robinson, 383 U.S. 375, 378, 15 L. Ed. 2d 815, 86 S. Ct. 836 ; Dusky v. United States, 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (; Greenwood v. United States, 350 U.S. 366, 100 L. Ed. 412, 76 S. Ct. 410 ), it has never been determined that preliminary matters cannot be resolved absent competency of a criminal defendant. A contrary ruling would be impracticable, as well as unfair to both society and defendants. The latter would suffer because they might be imprisoned indefinitely without the opportunity for threshold matters to be considered, merely because they could not fully assist their own defense - a paradox hardly consistent with due process.
Like subject matter jurisdiction, bail applications and requests for emergency relief of various types must necessarily be considered regardless of a party's competency, subject to reconsideration, if appropriate, once competency is re-established. If probable cause for a criminal charge were found absent on a preliminary hearing held in connection with a criminal complaint or a bail or other application, I assume that the Executive Branch would recommend appropriate dismissal or that the court would have the authority to grant it regardless of competency. Otherwise, a finding of incompetency could subject citizens to otherwise improper imprisonment because they would be unable to challenge such imprisonment in a fully effective manner and hence would not be allowed to challenge it at all. This is hardly a position "worthy of our great government," United States v. Sears, Roebuck & Co., 250 U.S. App. D.C. 189, 778 F.2d 810, 818 (D.C.Cir. 1985), quoting Brandt v. Hickel, 427 F.2d 53, 57 (9th Cir. 1970). If incompetency were a barrier to challenging criminal prosecutions short of full trial, the result might undermine or bypass constitutional protections applicable to involuntary commitment generally as set forth in Zinermon v. Burch, 494 U.S. 113, 110 S. Ct. 975, 108 L. Ed. 2d 100 (1990).
I noted in a prior memorandum order of September 15, 1992, permitting Ms. Galu to choose whether or not to challenge the incompetency finding itself, that there are reasons for permitting a person found incompetent to exercise at least some autonomy, and to obtain a determination of probable cause concerning retention in the criminal justice system rather than being treated by whatever civil psychiatric procedures, if any, are appropriate. See New York State Bar Association, Committee on Federal Legislation, The Dilemma of Mental Issues in Criminal Trials, 41 N.Y. State B.J. 394, 396-98 (1969).
Subject matter jurisdiction, moreover, is almost always open to challenge, see generally United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 101 L. Ed. 2d 69, 108 S. Ct. 2268, (1988). Indeed the court has a duty to determine issues with respect to subject matter jurisdiction on its own initiative, see American Fire & Casualty Co. v. Finn, 341 U.S. 6, 95 L. Ed. 702, 71 S. Ct. 534 (1951), even though its absence would not destroy the ability of the court to take measures short of ruling on the merits in order to manage the litigation brought before it. See Willy v. Coastal Corp., 112 S. Ct. 1076, 117 L. Ed. 2d 280 (1992).
The criminal complaint in this case is within the subject matter jurisdiction of this court. The complaint is based on a federal criminal statute enacted by Congress prohibiting certain types of threats. That statute is obviously appropriate to protect the functioning of the national government and hence is authorized by Article I § 8, clause 18, authorizing enactment of "all laws which shall be necessary and proper" for carrying into execution the other powers granted by the Constitution. See In re Neagle, 135 U.S. 1, 34 L. Ed. 55, 10 S. Ct. 658 (1890).
Legislation of this type has never been held invalid. Instead, it been recognized as appropriate in numerous cases, including the recent Supreme Court decision in Hunter v. Bryant, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991). Prosecutions under federal criminal statutes are brought under the laws of the United States and hence within federal judicial cognizance under Article III of the Constitution and Title 18 of the United States Code.
Jurisdiction exists to adjudicate complaints filed under the statute, including to enter convictions, acquittals, or - as here, dismissals. Such jurisdiction protects defendants as well as the public, since it is exercised to find parties charged not guilty as well as guilty, or to dismiss the charges as here at the request of the United States. See generally Bell v. Hood, 327 U.S. 678, 90 L. Ed. 939, 66 S. Ct. 773 (1946). The latter disposition, already initially made by United States Magistrate Judge Mark D. Fox, is appropriate in this case, and I therefore treat it as the final as well as initial one.
Since I have been informed that Ms. Galu has been released from custody, I direct the United States Attorney and her previously assigned counsel to forward copies of this memorandum order to her at her current address.
Dated: White Plains, New York
December 16, 1992
VINCENT L. BRODERICK, U.S.D.J.
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