New federal charges against the man accused of attacking a Planned Parenthood clinic in Colorado Springs four years ago — brought as state charges are stalled by questions about his mental competency — may not lead to a faster outcome in the case.
That’s because if his competency is also questioned in the federal case, it’s possible that the same open-ended delays could persist.
“The federal standards for competency determination are broadly similar to the state of Colorado’s system, and the standard is almost identical,” said John Walsh, who was U.S. attorney in Colorado from 2010-16.
In order to be tried in state or federal court, a defendant has to be mentally competent, which means they can understand the charges against them and participate in their defense. This differs from the legal question of sanity, which examines a defendant’s mental state at the time of the alleged crime.
Robert Lewis Dear Jr., the admitted gunman in the Nov. 27, 2015, attack, has been deemed incompetent to stand trial in the state case every 90 days since May 2016. The state case is being prosecuted in El Paso County. On Monday, federal prosecutors in Denver unveiled a 68-count indictment against Dear in the shooting that left three people dead — including a police officer — and nine others wounded.
“This case is not going to move forward quickly, either in the state system or the federal system,” said Walsh, the top federal prosecutor in Colorado when the shooting happened.
Colorado’s U.S. Attorney, Jason Dunn said in a statement announcing the charges that the delays factored into his decision to seek a federal case against 61-year-old Dear. He said the victims of the attack “deserve justice.”
In recent interviews with The Colorado Sun, several former Planned Parenthood employees who survived the attack said they were frustrated by the slow movement of the state case against Dear, especially since he has publicly confessed. Hypothetically, Dear may never stand trial in the 179-count state case because there is no deadline for when he must be restored to competency.
There are some key differences that could allow the charges against Dear to proceed more rapidly in federal court. First, should his competency come into question in the federal case and he be deemed incompetent to stand trial there, the federal system has its own set of prison health care facilities that may be in a better position to restore Dear to the point where he can understand and participate in court proceedings. That’s because of their deeper resource pool and experience.
At the time of the federal indictment, Dear was being held and treated at the state-run Colorado Mental Health Institute at Pueblo.
Also, it could be easier to get a court order to forcibly medicate Dear in the federal system.
“It may be that both the district attorney and the U.S. Attorney’s Office made the decision that it was worth the try in a federal facility,” said Walsh, who is now in private practice at the Denver office of the law firm of WilmerHale.
Also weighing on the decision to charge Dear in federal court was the fast-approaching five-year statute of limitations for accusations to be filed under the Freedom of Access to Clinic Entrances Act. That 1994 federal law created a crime of using force or intimidating people seeking reproductive health services.
Walsh said the plan was always to bring federal charges against Dear “at the appropriate time” on top of the murder accusations he faced in state court. He said the federal counts allow for victims to be vindicated for being attacked while trying to access reproductive health services, a crime that does not exist on the state level.
The situation is not unlike what happened in the case against Dylann Roof, who killed nine people — all of them black — in a 2015 racially motivated attack on the Emanuel African Methodist Episcopal Church in Charleston, South Carolina. He was sentenced to death first on federal hate crime charges and then pleaded guilty to state murder charges.
“At the outset of this case there was every reason to believe that the state prosecution would move more quickly,” Walsh said, referring to Dear. “But with the passage of time it’s become clear that the defendant’s mental state is such an issue that I’m confident that this is the correct decision to preserve those federal charges.”
One other factor that could keep the federal case from moving quickly is the fact that Dear could face the death penalty on the new charges. The U.S. Attorney’s Office in Colorado says it hasn’t made a determination on whether it will seek capital punishment.
The state case against Dear will continue alongside the new federal one. El Paso County District Attorney Dan May released a statement this week saying he is supportive of the federal prosecution.
The three people killed in the attack were University of Colorado Colorado Springs police Officer Garrett Swasey, 44; Ke’Arre M. Stewart, 29; and Jennifer Markovsky, 35.
The 13-page federal indictment alleges that Dear, armed with a dozen firearms and more than 500 bullets, intended to wage war against Planned Parenthood because it offers abortion services. He appeared in federal court earlier this week where he said, “I’m not crazy, I’m just a religious zealot,” CBS4 reported.
Dear also said that he is competent to stand trial and wants to represent himself.