LOUISVILLE, Ky.  (WDRB) –  After having surgery last summer, Jerry Mills feared that a Norton hospital doctor had inserted "some sort of metal wire or tracking device" into his body.

Mills, a 71-year-old Louisville resident who suffers from mental health problems, according to his family, wrote to the doctor demanding $500,000 in cash "or you will go down for murder one."

That letter landed Mills in jail on a charge of harassing communications – where he remains more than six months later despite having already served more than twice the maximum 90-day sentence for the misdemeanor offense.

Mills' case has been indefinitely delayed as he awaits a court-ordered evaluation to see if he is competent to stand trial.

Yet, even if he is eventually convicted, Mills will have already served his time because of the delay in getting evaluated.

The case shows how the criminal justice system is "poorly equipped to deal with low-level offenders who suffer from mental illness," according to Mills' attorney, Andrew Epstein.

The number of mental health evaluations for people like Mills, charged with misdemeanors, has climbed significantly in the past few years, according to state records, leading to delays.

"They are backed up," Jefferson District Court Judge Michele Stengel said in a hearing last month about getting Mills an evaluation. "It's as simple as that."

Mills' case also raises a legal quandary: Can the state of Kentucky continue to jail a person who has already served more than the maximum penalty he or she faces from pending charges?

Finding no case law on the question in Kentucky, Epstein has asked the Kentucky Court of Appeals to look at the Mills case.

Epstein tried repeatedly over the last several months to get his client released from jail on his own recognizance until he could be evaluated, claiming he is in frail condition, mentally and physically, and shouldn't be incarcerated.

Thus far, Stengel and a circuit court judge have ruled that Mills' case technically has been postponed until his evaluation, so he can remain in custody.

Studies have shown delays in getting mental health evaluations are costly for states as keeping mentally ill inmates in jail is much more expensive.

Kentucky averages about 450 orders each year for psychiatric evaluations, according to records provided by the Kentucky Administrative Office of the Courts.

In 2013, Kentucky had 319 orders out of circuit court, which includes the most serious felony cases, such as murder and robbery, and 127 out of District Court, which typically involves misdemeanor cases like that of Mills. 

Gwenda Bond, assistant communications director for the state Cabinet for Health and Family Services, said for inmates in jail on misdemeanor charges, mental health evaluations are scheduled about three weeks prior to the scheduled trial date "to ensure the information in the evaluation is timely and accurate at the time of trial."

It takes up to three weeks to complete the evaluation, she said.

For in-custody defendants charged with felonies, the average wait to get an evaluation is 4 to 5 weeks, with 81 people on the current waiting list, Bond said. 

The wait for defendants who are out of custody is about three and a half months.

It is unclear how these wait times stack up with other states.

A federal lawsuit in Colorado in 2011 claimed the average wait time to be evaluated and admitted at the state hospital was 87 days. The suit asked a judge to require the wait to be limited to seven days.

There have been similar lawsuits in other states.

Both prosecutors and defense attorneys said the more than three-month delay for defendants who are out of custody is too long.

"There does appear to be a backlog in our opinion," said Susan Ely, director of the criminal division for the Jefferson County Attorney's office.

Dr. Allen Brenzel, a medical director with the cabinet, agreed, saying, "I could see where that is unreasonably long."

But he added that defendants themselves are partially to blame because they often fail to show up for the evaluation.

For example, of the more than 300 evaluations scheduled for defendants not in custody since 2010, 125 failed to show up, according to cabinet records. 

Brenzel said the cabinet is working to improve these numbers by getting in contact with defendants or their attorneys earlier.

An attorney for the alleged victim in Mills' case told Stengel they were worried that if she released Mills on his own recognizance, he wouldn't show up for his evaluation.

Part of the problem for Mills appears to be that he went from jail to being released on home incarceration – which is considered being "out of custody" - in November and back to Metro Corrections in January.

So, in all, Mills has spent more than 4 months in Metro Corrections awaiting his evaluation.

Earlier this week, after WDRB asked state officials about the Mills case, Epstein said he was taken to Central State for his evaluation.

Still, even after his evaluation, Mills will have to wait weeks more for the results of whether he is competent to stand trial and then prosecutors, if they disagree, can also ask for their own evaluation.

Cabinet officials said they could not discuss Mills' case and whether his evaluation has been delayed because he has shuttled back and forth from Metro Corrections to home incarceration.

Epstein appealed Judge Stengel's order to leave Mills in jail to Jefferson Circuit Court, arguing Mills has no criminal history and had "already served the maximum possible sentence allowed by law" and is now being held illegally.

But the Jefferson County Attorney's Office pointed out that under state law, all proceedings in a criminal case are delayed once the issue of competency has been raised. The defendant must be able to understand fully the charges against him and be able to participate in his defense, the prosecution argued.

Judge Angela McCormick Bisig agreed with the prosecution and wrote that Mills was in jail because he violated conditions when he was released.

While he was originally released on his own recognizance, Mills missed a court hearing in September and was thrown in jail. He was released on home incarceration in November but was put back in jail in January after violating the conditions of his release.

"Mills has already suffered a pretty significant punishment for this crime, much more so than anyone charged with a similar offense or similar record," Epstein told Stengel.

"The sum total of his crime is him writing a note to this doctor."

Jack Mills, Jerry's younger brother, acknowledges his brother has some mental issues but finds it upsetting that the result has been indefinitely jailing him.

"This has done him more harm than good," Jack Mills said in an interview. "He don't need to be there. He needs help."

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