Psychologists believe the suspect in the Boulder King Soopers shooting is mentally incompetent to stand trial, court documents revealed Monday, plunging a second recent Colorado mass shooting case into the nuanced and sometimes drawn-out realm of mental competency proceedings.

The Boulder County District Attorney's Office last week asked for a second evaluation of Ahmad Al Aliwi Alissa, 22, who is accused of killing 10 people at the Boulder grocery store in March. Alissa's public defenders opposed that request, which has yet to be addressed by 20th Judicial District Chief Judge Ingrid Bakke.

Alissa, who is facing 115 criminal charges including 10 counts of first-degree murder, is due in court Thursday for a review hearing.

Whether Alissa is evaluated a second time or declared incompetent and sent for treatment, the competency proceedings will delay the criminal case against him, though it remains to be seen for how long. Most defendants who are considered incompetent are restored to competency within six months through mental health treatment, forensic psychologist Kate McCallum said. A small percentage of people are restored more slowly or never restored.

The criminal case against Robert Dear, the accused gunman in the 2015 Planned Parenthood attack in Colorado Springs, has been stalled for five years because he has consistently been found incompetent to stand trial.

A competency evaluation considers whether a criminal defendant is mentally ill or developmentally disabled, and whether that mental illness impedes the defendant's ability to understand the court process. It centers on two prongs — whether defendants have a factual and rational understanding of the proceedings, and whether defendants are able to consult with their attorneys and assist in their own defenses.

Competency refers only to a defendant's current mental capacity and is distinct from an insanity defense, which focuses on the defendant's mental state at the time of the alleged crime.

In Alissa's case, prosecutors said in a court filing that two psychologists recommended he be considered incompetent because of the latter prong — he couldn't work with his attorneys.

"In this first competency evaluation, defendant indicates an understanding of his charges, the potential sentence, the roles of the judge, prosecutor and defense attorney," a court document filed by the DA's office reads. "However, the doctors conclude that their 'provisional' mental health diagnosis of Defendant 'limit(s) his ability to meaningfully converse with others.' And that his 'superficial responses' to hypothetical legal situations indicate a 'passive approach to his defense' and 'potential overreliance on his attorneys.'"

But Alissa's defense attorneys pushed back in a filing of their own, arguing that the district attorney's office was misstating the report, which is not available to the public.

"For example, the prosecution contends that Mr. Alissa understands the potential sentence, but the report indicates otherwise," that court document says. "The death penalty is not a potential sentence in this case, and the report reflects his fixation on that as a sentence. Nor does Mr. Alissa understand the role of the judge, as the prosecution tells it. The judge does not decide the verdict, as Mr. Alissa told the evaluator."

Matthew Jonas, Daily Camera

Boulder King Soopers shooting suspect Ahmad Al Aliwi Alissa appears in a Boulder County District courtroom at the Boulder County Justice Center on Tuesday, May 25, 2021.

How competency is evaluated

To determine whether a person is mentally competent to stand trial, psychologists typically interview the person for two to three hours, experts said, and potentially longer in complex cases. Examiners also consider the defendant's history, mental health diagnoses and the specifics of the criminal case.

"If I'm doing an evaluation regarding competence to stand trial, I'll do a formal, structured interview, where I'll ask very specified questions to give the person the chance to explain their understanding of their charges, and the law and proceedings," forensic psychologist Rick Spiegle said. "If they don't know the correct answer, I'll give them the answer, and if they can later repeat it back in their own words, then that is adequate."

Spiegle once recommended a man be considered incompetent to stand trial because the man insisted on using "post-alien abduction syndrome" as a defense in his case, he said.

"He understood the proceedings, the charges against him, the different players. However, he would not cooperate in a hearing, he would insist on using that defense, 'post-alien abduction syndrome,' which the judge, and I also, reiterated is not an acceptable defense," Spiegle said.

After asking basic factual questions, like what the role of the judge is, or what a plea bargain is, evaluators move on to questions about the defendant's specific case, McCallum said. Part of the evaluation is designed to determine whether the defendant is being honest, she said.

"There are certain sets of questions that someone who is feigning mental illness is likely to endorse but someone who is truly mentally ill would be unlikely to endorse," she said, adding that evaluators are trained to look for red flags. "If you had someone who suddenly presents with symptoms of a mental illness but didn't have any symptoms of mental illness prior to the charges being laid on them, that would be one thing to look at."

If a defendant is found to be incompetent, the criminal case is put on hold until the person can receive mental health treatment and be restored to competency. Occasionally, as with Dear, the defendant is not quickly restored to competency. Some are found to be permanently incompetent.

"That would be people with extensive brain injuries, severe intellectual disabilities, things that can't respond well to treatment," McCallum said. "Usually in Colorado, they'll go through several rounds of attempted treatment to bring them up to competency, but eventually a judge may determine they're permanently not competent."

If that happens, defendants who are deemed dangerous are typically committed to secure mental health facilities for long-term treatment. Some low-level cases may be dismissed.

Robert Lewis Dear
Andy Cross, Denver Post file

In this Dec. 9, 2015 file photo, Robert Lewis Dear, middle, talks during a court appearance in Colorado Springs.

A slow, lengthy process

Dear, who admitted to killing three people and wounding eight others at a Colorado Springs abortion clinic in 2015, was declared mentally incompetent to stand trial in 2016 and has been held in mental health facilities ever since, with a judge reviewing his mental state every 90 days. He has consistently been found incompetent to stand trial. Efforts are still underway to restore him to competency, and he is next due in court for a review on Dec. 6.

Three years after the state's case against Dear stalled, federal prosecutors in December 2019 pursued their own case against Dear, charging him with civil rights violations and using a firearm during a crime. Prosecutors in the U.S. Attorney's Office had hoped Dear would be found mentally competent in federal court after he underwent an independent evaluation, but a judge last month ruled Dear was incompetent in the federal case as well.

He was ordered to undergo additional treatment for no longer than four months to see whether it's likely he'll be returned to competency and the proceedings can go forward in federal court.

Some cases face lengthy delays around competency because of long waits for evaluations at the Colorado Mental Health Institute in Pueblo. In September, Alissa was ordered to undergo his competency exam locally in Boulder, rather than at the state hospital, because of concern about undue delay.

At the time, District Attorney Michael Dougherty said Boulder County had 28 individuals at the hospital awaiting either a competency evaluation or restoration, and another 28 defendants waiting at the jail for a spot at the hospital. On Monday, a spokeswoman for the office said prosecutors would "continue to work through this process."

Judges ordered defendants to undergo inpatient competency evaluations at the state hospital 257 times between July 1, 2019, and June 30, 2021, according to data provided by the Colorado Department of Human Services.

On average, defendants who were found incompetent were restored within 149 days — about five months.

"It goes both ways, some people get very frustrated with the competency process, they want to be competent but they aren't," McCallum said. "There are people who are motivated to be found competent, but they get stuck in this legal limbo and they can't move forward with their case."