Cane Madden

Cane Madden in court. (WDRB Photo)

LOUISVILLE, Ky. (WDRB) – The attorney for Cane Madden, who has repeatedly been found incompetent to stand trial after felony arrests, has asked that his latest competency hearing be closed to the public to protect his medical privacy and ensure potential jurors aren’t swayed by media coverage.

The most recent case against Madden, accused of raping and fracturing the skull of an 8-year-old girl in 2019, has gained statewide attention as it exposed a problem with Kentucky law.

Madden has had several cases dismissed due to incompetency but he also hasn't met Kentucky's criteria for involuntary hospitalization, meaning he has repeatedly walked free, dodging both prison time and mental health treatment.

Prosecutors in Kentucky have met with legislators repeatedly since Madden’s case was publicized to warn that similar cases are occurring across the state. 

Legislators and state mental health officials proposed two bills to fix the problem with the law, but the bills stalled.

The Madden case, according to his attorney, Steven Harris, "has attracted significant media attention" and threatens his "right to a fair and impartial trial in front of a neutral jury," Harris wrote in a motion filed Friday.

Jefferson Circuit Court Judge Annie O'Connell, one of the judges who has ruled Madden incompetent in the past, most recently in February 2019 in a sexual assault case where he was accused of biting a woman’s face, will hear Harris' motion on Wednesday. 

Madden's previous competency hearings have been open to the public, and O'Connell has said the upcoming hearing starting Feb. 4 would also be open.

But Harris argues in his motion that Madden's private medical information will be discussed at the competency hearing and prosecutors have not demonstrated a legitimate reason why the public or media should be able to view the proceedings.

"The medical information that will be discussed during this hearing is not information a reasonable person would want widely discussed, publicized, and/or repeated for the public to hear," Harris wrote.

Last year, Harris asked O’Connell to dismiss the child rape case, since O’Connell had ruled Madden incompetent months earlier and found him "unlikely to regain competency in the foreseeable future."

But prosecutors asked for new mental health evaluations, arguing competency can come and go. O'Connell agreed. 

Assistant Commonwealth's Attorney Jeff Cooke, a spokesman for the office, said prosecutors "are researching the issue in order to prepare a response.  The hearings are ordinarily public so we are seeing whether there is any legal precedent to close it."

Madden was sent to the Kentucky Correctional Psychiatric Center to be examined in October.

The results of the evaluation were filed in court records on Jan. 15 but have been sealed.

At the competency hearing, O’Connell will hear from witnesses and determine whether Madden remains incompetent or whether his mental competency should be retested.

If, after a second examination, Madden still has not regained competency, it is a distinct possibility he will again walk free.

For that reason, members of the California Neighborhood Leadership Council, along with other neighbors and activists, say the upcoming competency hearing should be conducted in the open.

“This happened in our community. I live in this community. I have grandchildren in this community. We have a school in this community," said Carol Clark, a member of the leadership council. “We cannot afford not to stay aware, because our safety is at risk.”

However, Harris argues prosecutors haven't established a “legitimate or important state interest” to keep the hearing open.

Yolanda Walker, the leadership council president, says the interest is inherent. However, even if the hearing is closed, she says she and the others will stay engaged and involved.

"We're not going away, because of the protection of our neighborhood," Walker said. "We're never going away."

Madden’s case is a nightmare for the neighbors and prosecutors because he doesn’t meet Kentucky’s criteria for involuntary hospitalization, a law that says, in part, people can only be held against their will if they 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 2019, pointing out that while he has been arrested multiple times over the years, he continues to be released from jail and hospitals.

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.

After he was released in February 2019, 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.  

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.

Copyright 2021 WDRB Media. All Rights Reserved.

Digital Reporter

Jason Riley is a criminal justice reporter for WDRB.com. He joined WDRB News in 2013 after 14 years with The Courier-Journal. He graduated from Western Kentucky University. Jason can be reached at 502-585-0823 and jriley@wdrb.com.