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Examining competency in Colorado courts: Delays, solutions and how it impacts victims

A handful of judicial districts in Colorado have implemented competency courts as a way to ease the burden on the state and keep the justice system moving.
Examining competency in Colorado courts: Delays, solutions, and how it impacts victims
Posted at 12:00 PM, Mar 24, 2024
and last updated 2024-03-24 14:00:04-04

BOULDER, Colo. — Friday marks three years since the mass shooting at a Boulder King Soopers where 10 people were killed.

Rikki Olds, Denny Stong, Neven Stanisic, Tralona Bartkowiak, Teri Leiker, Suzanne Fountain, Kevin Mahoney, Lynn Murray, Jody Waters and Boulder Police Officer Eric Talley were killed in the mass shooting on March 22, 2021.

Ahmad Al Aliwi Alissa pleaded not guilty by reason of insanity in November 2023 after he was deemed competent to stand trial. The plea in the case came after nearly two years of delays as the suspect was previously found mentally incompetent and sent to the Colorado Mental Health Hospital in Pueblo (CMHHIP) in December 2021.

The trial is anticipated to begin in August.

boulder king soopers memorial site_decker photography llc_3.jpeg

Boulder King Soopers Shooting

Boulder King Soopers shooting suspect pleads not guilty by reason of insanity

Stephanie Butzer
1:34 PM, Nov 14, 2023

Olivia Mackenzie misses her mother, Lynn Murray, every day. Mackenzie spoke with Denver7 from her car on Thursday — a car that was once her mother's.

Murray was shopping for Instacart inside the Table Mesa King Soopers at the time of the shooting on March 22, 2021.

“Really, really fun. Really easygoing. And she was the best. She was just such a wonderful person," Mackenzie said, describing her mom. “I would say that right now, it does feel like three years, but at the same time, I'm also so shocked that it's been three years. Because yeah, I mean, a lot has happened, but I could go back there like it was yesterday.”

Lynn Murray
Lynn Murray

The loss of her mother in 2021 affected her father greatly, Mackenzie said. Her dad passed away after a heart attack in November 2022. Mackenzie believes he died from a broken heart.

“I don't want every March 22 for the rest of my life to be about reliving that day because that was the worst day and I would rather remember her, and now him," Mackenzie said. “I'm feeling a lot better this year. It's not as rough. It's not as heavy. But regardless, I mean, it has come up this week. But it comes up no matter what. Sometimes there's just certain things that send you back to that day.”

The progress in Mackenzie's personal life has moved much quicker than the court system.

“With it taking so long and being three years down the line, it's kind of, sometimes it feels like a step back," Mackenzie said about the amount of time the judicial system has taken. “When we go to court, the rest of the day kind of has that theme — and the next day too. My heart's pretty heavy and it's hard.”

She understands there are reasons for the delays in the court proceedings, but says it is still difficult to process.

“I don't even know if the court process is going to give me closure because I've had to kind of find that within myself," said Mackenzie. “Their lives deserve to be remembered, and that's what's helped me get through this loss and this event, and I just think they deserve that.”


Boulder County District Attorney Michael Dougherty knows how painful the delays have been for the victim's families. He spoke with Denver7 generally about the challenges facing CMHHIP, where the shooting suspect is being held.

"The state hospital continues to have difficult and mighty challenges that impact cases, individuals who are charged, victims, and also community safety," Dougherty said. "We need this state hospital system to have a complete overhaul for it to be better funded, better resourced and to make sure that it's complying with all the expectations and requirements.”

Dougherty explained the difference between competency and insanity. A suspect can plead not guilty by reason of insanity while simultaneously being deemed competent to stand trial.

“Competency means whether the individual is able to assist in their defense, they understand the legal proceedings against them and they can assist the attorney in defending themselves in court. So they have to have some basic understanding of the court proceedings, what's going on around them and the ability to assist counsel by communicating with them," said Dougherty. "Sanity, or a claim that someone's not guilty by reason of insanity, is on the day of the incident. So if the incident happened last year, it's about their ability to form intent and understand the consequences on the day of the incident when the crime took place.”

A spokesperson with the state hospital provided Denver7 with background about how competency evaluations work and why the system can be lengthy.

In any court case where competency is an issue, the Office of Civil and Forensic Mental Health (OCFMH) is responsible for an initial competency evaluation of the defendant.

Evaluations can be performed in a number of settings, not just at the state hospital in Pueblo. They can occur in one of the two state hospitals, jails or in the community. According to the state, most evaluations happen in jails or on an outpatient basis, so the majority of defendants do not have to be admitted to a state hospital for an evaluation.

OCFMH said the evaluations are completed in compliance with statutorily mandated timeframes.

If a defendant is deemed incompetent, competency restoration treatment begins. When an individual is restored to competency, a court case can proceed.

The restoration treatment can happen in locations that include select jail-based settings, one of the two state hospitals, in a community if a defendant is out on bond, or at a private hospital that contracts with OCFMH.

According to those with the state, delays commonly occur when a defendant is ordered for restoration treatment at an inpatient location, which includes jail-based settings, private hospitals, and the two state hospitals.

State data shows that in fiscal year 2021-22, 2,997 individuals were ordered by the court to receive a competency evaluation from OCFMH. For the next fiscal year, 2022-23, 2,634 people were court-ordered to receive a competency evaluation from OCFMH. 

There's a decrease between the two sets of data, but overall there has been a "significant increase" in court orders for competency evaluations and restoration treatment. For example, in fiscal year 2017-18, only 1,686 competency evaluations were ordered.

The majority of competency evaluations occur while the defendant is in jail or the community if they are granted bond.

"Individuals do not have to be admitted to the state hospital in order to receive an evaluation, unless the court orders it, which is extremely rare," Jordan Saenz, the communications manager for OCFMH, wrote in an email.

Saenz said when CMHHIP is operating at full capacity, there are 516 beds available to serve patients. The hospital has been hit by the nationwide healthcare worker shortage, meaning CMHHIP can only operate 474 beds currently. Recently, the hospital re-opened two additional units accounting for 43 beds "due to vigorous hiring efforts," Saenz said.

According to Saenz, two people are waiting in jail for a competency evaluation and 349 individuals are in jail waiting for restoration treatment. Those numbers reflect people waiting for services at an inpatient location, like the state hospitals in Pueblo and Fort Logan, jail-based settings and private hospitals.

Saenz said, "OCFMH is in compliance with the statutorily mandated 21-day timeframe to complete the jail based evaluations, and this isn’t what causes delay in many cases. OCFMH is not in compliance with time frames to admit individuals for inpatient competency restoration treatment."

Many cases are delayed because of the restoration process, not the evaluation process, according to Saenz.

The state hospital in Fort Logan is operating at full capacity, and efforts at both state hospitals to open beds have decreased the waitlist for restoration treatment from around 460 individuals to 349, according to Saenz.

Dougherty called the system "broken" in Colorado.

"The fact that they're not being cared for and evaluated means their cases are being delayed, their treatment is being delayed. But also, importantly, they're taking up space at a county jail that isn't built for a population the size of Boulder County," said Dougherty. “It's having a very real impact on the lives of everybody involved in those cases but also on community safety.”

A critical difference between a jail and a state mental health hospital is the ability to forcibly medicate individuals. Jails cannot do that to inmates while mental health facilities can, according to Dougherty.

“Currently, the largest mental health facility we have in Boulder County is the Boulder County Jail. And I think we'd all agree that that's a shame and that shouldn't be the case. So that's where that Mental Health Diversion Program came from," said Dougherty.

The Mental Health Diversion Program (MHDP) in Boulder was the first in the state, Dougherty said. The program diverts low-level offenders out of jail and connects them with treatment.

"Now, those are on low-level offenses. But it's been incredibly successful in helping people get treatment and medication as quickly as possible because the last place someone should be when they're suffering from a mental health crisis is a jail cell," said Dougherty.


Competency courts are separate courtrooms that handle cases where the issue of competency is raised.

“Competency courts are one of several programs, several approaches, that have been set up, particularly with regards to trying to facilitate more effective and efficient ways to get people through the competency process, given the challenges we have with the state hospital," said Dougherty.

According to a spokesperson with the Colorado Courts, there are nine judicial districts, plus the Denver County Court, operating competency dockets that serve more than 700 clients. The judicial districts operating competency courts are Districts 1, 2, 4, 5, 8, 10, 12, 16, and 18.

Two other districts are in the early stages of implementation. One of them is Boulder, where Dougherty said they are exploring the concept. Recently, a few of their judges went to Larimer County to see their competency court. Dougherty said they are starting to work on bringing a competency court to Boulder.

“A competency court that would allow mental health providers, the defense bar, prosecution and the bench, the judges, to have a docket that specializes in looking at individuals with competency issues and get them connected to treatment and hopefully have them get through the evaluation process and treatment process more quickly," explained Dougherty. “There are other problem-solving courts that we have in Colorado, and I would put this under that same heading. And if we have people who are able to specialize in a certain area and get a focused approach and treatment, we could do better for them and also for the court dockets as a whole.”

Denver District Attorney Beth McCann said their competency diversion program was started in April 2022. They also have a competency court.

“One of the goals of competency diversion is to get those people out of the system completely so they're not waiting for an evaluation or restoration. And that will result in a reduction in that waiting time and waiting list that is backlogged," McCann explained. “Denver is really addressing this head-on, and I think we are doing a good job of trying to get people out of the system who really are so mentally ill that they shouldn't be in the system. And that's what our competency diversion program is designed to do is identify these people early so they never get on a waitlist, they never even end up in court. They get wraparound services.”

Denver's competency court is in district court, but McCann said their county court is getting ready to launch a competency court this summer.

McCann explained that only eligible defendants can participate in the competency diversion program.

“It depends on the nature of the crime. We have criteria for people to be admitted into competency diversion. So we're not taking, you know, violent, dangerous people. These are people who just cycle in and out of our court system for very minor offenses, clearly mentally ill, and people who need that kind of support. So we're trying to do a balanced approach," McCann said.

McCann said people like the Boulder King Soopers defendant would not be eligible for competency diversion. She said suspects in very serious crimes like mass shootings would be able to go through competency court, where they could be evaluated and restored. The goal of competency court is to alleviate the burden of cases dealing with competency from the court dockets.

To date, in Denver's competency diversion program, there have been a total of 441 referred cases — 145 of those have been accepted.

According to data from the Denver District Attorney's office, there is a 68% success rate, with 27% of the cases determined as unsuccessful. Those numbers break down to:

  • 56 successful diversions
  • 13 unsuccessful due to receiving new charges that were ineligible
  • 9 unsuccessful due to lack of engagement
  • 4 cases closed 

Sixty-three participants are actively being served in Denver by the program, and there are 74 pending referrals at this time.
Both McCann and Dougherty mentioned work being done in the Colorado State Capitol, like House Bill 24-1355, which was introduced into the state legislature on March 4. Among other initiatives, the bill would require each judicial district to create a process that identifies and refers eligible defendants to a wraparound program as an alternative to competency proceedings.