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Mentally handicapped are held for years without trial

BARTOW — Dreek Drayton spent nearly a decade locked up because of a crime he says he didn't commit.

He never faced trial. No jury ever convicted him. And ultimately, a judge dismissed the charges against him.

Yet, year after year, state authorities held on to him based largely on allegations from an accuser who would eventually refuse to testify.

Most anyone else would have walked free.

But Drayton, 55, isn't like most people. He is intellectually disabled. And in a court of law, that makes all the difference.

Drayton cannot face trial because he has been ruled mentally unfit to help in his own defense. Rather than let him go, state officials argued that Drayton was too dangerous to be free based largely on allegations that he inappropriately touched a 7-year-old girl.

In Florida, a mental handicap combined with a criminal allegation, even if unproved, is all it takes for the state to keep someone confined for years.

The Tampa Bay Times identified nearly 100 intellectually disabled men who have been held in secure state facilities long after criminal proceedings against them were dismissed. A review of police and court records and interviews with the men in custody found:

• Intellectually disabled defendants can spend years — in some cases, decades — in state custody with no opportunity to argue their innocence.

• By law, a judge must review their cases each year to determine, based on the nature of the original unproven charge, if the men are still too dangerous to release. Hearings can sometimes last just minutes, with a judge relying almost exclusively on written reports from the state.

• The law allows the men to be detained for as long as they could have been sentenced for their alleged crime. For some men, this amounts to a potential lifetime in confinement.

Among the mentally disabled accused of serious crimes, Drayton has an unusual story. He had a defense attorney take special interest in him.

In 2007, Bob Young, general counsel for the Polk County Public Defender's Office, came across his case. Young won Drayton's release by way of an appellate decision three years later — 11 years after he was first locked up.

The right to a trial by jury is enshrined in the U.S. Constitution, spelled out in the Sixth Amendment and reiterated in the 14th. A landmark U.S. Supreme Court ruling in 1972, Jackson vs. Indiana, affirmed that states cannot indefinitely detain someone based solely on a finding of incompetence to stand trial.

State officials insist that the law in Florida meets constitutional standards.

But some experts say the state continues to flout the Supreme Court's mandate. Florida is one of 11 states that essentially set no limit on how long someone can be detained if the person is deemed dangerous, according to a Washington University Law Review paper in 2012.

Christopher Slogobin, a professor of law and psychiatry at Vanderbilt University, said this peculiarity of the law exists because of concern that certain people are dangerous and ought to be locked up even if they can't face trial.

"But the practice," Slogobin said, "is still unconstitutional."

Young puts it more bluntly.

"If somebody is retarded, and someone accuses them of a crime, then they're going away for a long time whether they did it or not."

Held without charge

Dayron Dreek Darwin Drayton is a hulk of a man at 6 foot 2, with thick arms and a plump paunch. Short gray curls speckle his head, which bobs side to side when he gets excited. He talks a lot, and loudly. But when the words come, they are delivered through a muddled stutter.

Drayton wasn't always this way.

He was born healthy and grew up with six sisters and brothers in the small phosphate mining town of Mulberry.

Drayton's mother worked at the mines and helped provide what her children describe as a middle-class lifestyle. She was separated from the children's father, who was in and out of their lives.

Then came the accident.

When he was 11 or 12, a sister recalled, Dreek survived a bad traffic crash. A head injury left him a changed boy.

He never got far in school, his family said.

"At a certain age, he just got a little wild," said his sister Shenay Gilliard.

"He was a nice guy growing up," recalled his youngest sister, Kimberly Anderson. "I think it was the company that he used to hang around with that got him in trouble."

Among his early arrests was a larceny charge in 1978. Drayton, then 19 and on probation, crawled under a chain-link fence on property belonging to the city of Mulberry. He made off with a bagful of empty Coke bottles.

For that — and because he was on probation for a previous theft — he was sentenced to five years in prison, state records reflect.

Records also show that Drayton was arrested more than 20 times before the mid 1990s. They were always minor offenses — theft, shoplifting, trespassing.

But his life took a serious turn on the evening of Sept. 11, 1998.

That night, a woman told Polk County sheriff's deputies that Drayton had molested her 7-year-old daughter.

The girl said she and her 4-year-old sister had gone to Drayton's house for a glass of water. While they were there, Drayton pulled up the 7-year-old's dress and put his hand on the shorts she was wearing underneath, the girl told the detective. The palm of his hand was "touching my bottom," and "his fingers were touching my private," the girl said, according to an investigative report.

In his interviews with detectives, Drayton denied the girls had ever been inside his home. He also denied touching them.

Although there was no physical evidence, Drayton was charged with lewd and lascivious behavior. The case moved forward until doctors were called upon to assess Drayton's mental abilities.

The U.S. Supreme Court has mandated that in order to face trial, a defendant must understand the charges against him and be capable of assisting in his own defense. Drayton's intellectual disabilities made that impossible, a judge ruled. His competence would have to be restored before he could get a trial.

By law, the state has two years to try to restore mentally handicapped defendants' competence. The majority never shows enough improvement to stand trial.

Nonetheless, defendants work with counselors and other state officials in an effort to get them to understand their legal situation. For an hour a day, five days a week, they are taught how the justice system works. There are quizzes and games designed to reinforce the concepts.

Over seven years, Drayton was shuffled between jail and state mental health facilities. His IQ always tested on the cusp of what is considered mental retardation.

In 2006, a judge noted that the case had exceeded the two-year limit. Drayton was deemed "non-restorable." The charges were dismissed and he went home.

Less than a month later, he was back in jail, even though he had not been charged with a new crime. Lawyers with the Agency for Persons with Disabilities had argued that Drayton was too dangerous to be free.

In a court petition, the agency said Drayton met the criteria for "involuntary commitment." It said that he was unable to care for himself and that he was prone to hurt himself or someone else.

The primary evidence? The allegations of the 7-year-old girl.

Behind the razor wire

Take a drive up Interstate 75 and snake your way through the back roads along the outskirts of Gainesville and you will come to a squat building surrounded by chain-link gates, razor wire and miles of dense forest.

This is the Seguin Unit, one of two state facilities that house mentally disabled defendants who have been found permanently incapable of standing trial. A similar facility, the Pathways Unit, is on the campus of Sunland Center, near Marianna.

Inside, the unit is reminiscent of a college dormitory. A small classroom holds a library of books ranging from high school math texts to classic literature. There is a dining area, a recreation room with video game systems and a karaoke machine, and a small canteen.

All of it is monitored 24 hours a day by surveillance cameras mounted on the ceilings.

Heavy steel doors and sealed windows ensure that the men can't escape.

Together, Seguin and Pathways house about 60 people at any given time.

Citing medical privacy laws, the Agency for Persons with Disabilities, the state agency that runs the units, denied requests from the Tampa Bay Times to provide a list of those confined at the facilities.

But through court files and other public records, the Times was able to identify about 100 people who, at one time or another, were housed there.

Most of those behind the razor wire are men accused of sex crimes. A few have been accused of murder.

But among them are men who wound up at the facilities after being charged for relatively minor crimes. Although charges against them were dropped, a judge deemed each too dangerous for release.

Mark Baio was sent to Seguin in 2008 after facing charges of battery on a law enforcement officer. Police said he spit on an officer who had responded to his mother's Tampa home to investigate a domestic violence call. Baio, 29, spent a year there before he was moved to another state facility, and later a private group home. Other men have lingered for much longer.

Nathaniel Daniels was being held in a Polk County youth facility in 1995 on a criminal mischief charge when he fought with several staff members, according to court records. He was charged with felony battery on a detention center employee.

Eventually, he spent time in both the Seguin and Pathways units. He has remained in custody for nearly 20 years because of repeated fights with staff members and other residents and other assorted bad behavior, according to records.

Even people accused of crimes as juveniles can end up in custody for long periods.

In 1998, Bryan Kretchmer was charged with sexual battery after he had sex with two 12-year-old girls. Soon after, a 9-year-old girl accused him of trying to grab her from her back yard.

Kretchmer was 15 at the time. In an interview with the Times, he admitted having sex with the 12-year-old girls, but said he didn't realize it was wrong and doesn't believe he committed a crime. He has never had a trial.

Today he is 31. Tests have pegged his IQ score at about 55, which is considered moderately disabled. He has spent most of the past 15 years confined at Seguin. Because one of his dismissed charges — kidnapping — is punishable by life in prison, the state could theoretically hold onto Kretchmer until the day he dies.

"I did not do it," Kretchmer said in a recent interview. "I'm 100 percent sure, if I can get back to court, I can prove I'm not guilty."

Florida law requires that those confined by the state have their cases reviewed at annual court hearings. To be moved elsewhere, they must convince a judge they are not a danger to themselves or others.

At his hearing last year, Kretchmer was absent from the courtroom when lawyers called his name.

Pinellas-Pasco Circuit Judge Keith Meyer read a report provided by officials at Seguin. He read about 28 rule violations and disciplinary actions. He read that Kretchmer was "not suitable for community placement."

"I'm satisfied he's in the right place receiving the treatment he needs," the judge said.

There was no word from the defendant himself. The hearing was over in five minutes.

Maladaptive behaviors

Men at Seguin and Pathways gain privileges through good behavior. The better they do, the greater their freedom. They are put through special programs designed to teach them to control their anger and manage money.

The goal, agency officials say, is to ease the men toward a less restrictive environment.

But any kind of slip-up — what state officials term "maladaptive behaviors" — can send a man down to a more restrictive level. It can also lessen his chances of being freed.

At the annual hearings, judges get agency reports that recount the men's maladaptive behaviors. These can be violent actions. Or they can be much less serious.

In Drayton's case, behavioral analysts noted a host of behaviors that were deemed problematic. Among them:

• While cleaning up after a meal, Drayton ate a piece of cake that someone had left behind, a violation of his diet restrictions.

• He borrowed an audio CD from another resident without first seeking staff permission, a violation termed "trafficking and trading."

• In court, Drayton's behavior was characterized as "loud and disruptive," according to court filings.

State lawyers used these incidents to argue that Drayton was a threat to the public.

But Drayton's list of behavioral slip-ups never included anything of a sexual nature. Nor did he ever exhibit violence.

Drayton's release

For a year after he was sent to the Seguin Unit, Drayton's case languished in circuit court with little activity.

But by 2007, Polk County Public Defender Bob Young had read his file.

"Looking through it, it just was offensive the way he got into the system," said Young. "I was amazed that a person like that was in there."

Young took up the cause. He successfully argued that the behavioral analysts and psychologists who said Drayton was dangerous had based their recommendations largely on the assumption that he was guilty of the criminal charges. But the charges had never been proved in court.

Young's investigators tracked down the girl who accused Drayton of touching her. She and her sister, then teenagers, refused to testify. That called into question the state's ability to prove Drayton's guilt.

In 2010, the 2nd District Court of Appeal ruled that the case for Drayton's dangerousness was slim.

"Because the experts' opinions were based on faulty premises, we find the trial court's order was not based on competent substantial evidence," Judge Marva Crenshaw wrote.

Since 2010, Drayton has lived free and without a single brush with the law. A caretaker visits him daily. She makes sure he eats a decent meal, takes his anti-anxiety medication and pays his bills on time.

Young points out that this kind of personal care is more efficient than locking up people like Drayton.

"He's doing great and at much less cost to the taxpayers," Young said. "And if you believe in freedom of the individual, he's certainly a good example of how you can provide just a little bit of help and people stay out of trouble."

Contact Dan Sullivan at dsullivan@tampabay.com or (813) 226-3386. Follow @TimesDan.

How the process works

• When defendants are deemed incompetent to stand trial because of an intellectual disability, they often are sent for treatment to have their competency restored.

• State officials have two years to restore them, or charges must be dismissed.

• Once the charges are dismissed, state officials can seek to have the defendant involuntarily committed by arguing that he can't care for himself or that he poses a danger to others.

• At the commitment hearing, questions of a defendant's guilt or innocence are not discussed. Instead, a judge must rule based on reports detailing the defendant's behavior while in custody. The nature of the original criminal charge, which has never been proved, can also play a role.

• Judges can order defendants into a "secure facility," based on their perceived dangerousness. By law, the commitment cannot last longer than the maximum sentence the defendant would get if convicted. For some, this amounts to a life sentence.

• Those who are committed are guaranteed an annual hearing in front of a judge. But the hearings don't address the defendants' guilt or innocence. Instead a judge decides whether to keep them in state custody based on their behavior while confined.

Mentally handicapped are held for years without trial 08/29/14 [Last modified: Saturday, August 30, 2014 10:36pm]

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