LOUISVILLE, Ky. (WDRB) – An attorney for Cane Madden, who is accused of raping and fracturing the skull of an 8-year-old girl in August, has asked a judge to dismiss the charges against Madden because he has already been found incompetent to stand trial in several previous criminal cases.
In fact, defense attorney Steven Harris argued in a motion filed Wednesday, the judge handling the current case ruled Madden was incompetent earlier this year in a separate sexual assault case, finding he was “unlikely to regain competency in the foreseeable future.”
Under Kentucky law, Harris argued, “foreseeable future” is defined as no more than 360 days, meaning that at the time of the alleged Aug. 9 sexual assault of the child, Madden would still legally be considered incompetent.
“We are reviewing the motion and preparing a written response," said Jefferson County Commonwealth's Attorney Tom Wine in response to the new motion. "We expect to have oral arguments before Judge Annie O’Connell on these issues.”
The motion to dismiss, while not unexpected, is a nightmare scenario for prosecutors, legislators and state mental health officials who are hurriedly trying to fix a problem with the law that has allowed Madden and numerous other dangerous but mentally ill defendants to walk free.
Under current law, Kentucky's criteria for involuntary hospitalization says, in part, people can only be held against their will if they will benefit from treatment, even if they are mentally ill and considered dangerous.
WDRB News highlighted the law’s shortcomings after Madden was arrested in August, pointing out that while he has been arrested multiple times over the years, he continues to be released from jail and hospitals.
Prosecutors urged lawmakers to read the story during last month’s meeting of the interim judiciary committee.
Sen. Danny Carroll called the story an “Oh my God!” moment and said the revolving door of violent criminal cases involving Madden is “the most blatant example” of a failure in the justice system he has ever seen.
The problem is that one set of laws determines whether someone is competent to stand trial, while another addresses whether that person can be involuntarily hospitalized.
Judges in Kentucky must decide, based on psychiatric evaluations, whether a defendant can understand the charges against him and participate in his defense. If not, the defendant's charges are dropped and prosecutors then file paperwork to have the defendant hospitalized for treatment.
However, there are three separate criteria determining whether a mentally ill patient can be involuntarily hospitalized:
• The person must be deemed a danger to himself or others
• The person is expected to benefit from treatment
• Hospitalization is the least restrictive treatment available
If any one of those criteria is not met, at any time during treatment, the hospital is required by law to release the person. Because of that law, prosecutors say some defendants, like Madden, are sometimes released within hours and without receiving proper mental help.
It is not publicly known which criteria Madden hasn't met when he's been released in the past.
"The safety net is absolutely failing. It's failing our community, and it's failing these people that are desperately in need of mental health treatment," said Ashlea Hellmann, a defense attorney who doesn't represent Madden but knows a lot about the dangerous breakdown in law.
Hellmann wasn't surprised by the motion to dismiss Madden's rape case.
"Typically when this argument is raised, it is that someone is still incompetent to proceed forward with a trial," she said. "It's not so much about our discretion or our opinions, it's our obligation under the law to raise this to the court that we still don't belive our client is competent, and that's based on a continuation of incompetence from a prior proceeding."
However, she pointed out that it isn't a guarantee that Madden remains incompetent.
"Competency is essentially a moving target, which means that a person, again, can be competent one day and then incompetent the next," Hellmann said.
She said a judge will ultimately have to use discretion to determine whether Madden remains incompetent or whether his mental competency should be retested.
Jefferson Circuit Court Judge Annie O’Connell will hear the motion to dismiss during a hearing at 10 a.m. on Oct. 25.
It was O’Connell who on Feb. 9 found Madden incompetent to stand trial in a violent sexual assault case where he was accused of biting the woman’s face, “removing a large chunk,” according to his arrest report.
After he was released, Madden was arrested again in May for breaking into a business. But a judge dismissed that case because of the same competency concerns and recommended Madden be hospitalized instead.
And, again, he was quickly released, starting the cycle anew. Less than 24 hours later, Madden was accused in the rape and assault of the 8-year-old girl, who was playing in her backyard in the 1700 block of Hale Avenue, near Dixie Highway.
In the motion to dismiss, Madden’s attorney cites several criminal cases going back to 2015 that were dismissed because of competency issues.
Among Madden's arrests in past years include charges for threatening to kill a child, hitting a nurse at Metro Corrections and biting another at U of L Hospital.
The recent motion to dismiss the rape case against Madden evoked strong feelings in California, where the alleged attack happened.
"It shocked me. It really stung me," said Craig Goodman, who believes Madden might be harmed if he's released and returns to the Louisville neighborhood. "When will it stop? When will the merry-go-round stop? When will the roller coaster stop?"
He is currently charged with rape, assault and robbery and lodged in Metro Corrections on a $1 million bond. A not guilty plea has been entered on his behalf.
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