LOUISVILLE, Ky. (WDRB) – Cane Madden, who is accused of raping and fracturing the skull of an 8-year-old girl last August, will remain in jail for now despite a request to dismiss charges against him because he has repeatedly been found incompetent to stand trial.
Jefferson Circuit Court Judge Annie O’Connell has declined to dismiss the case, even though she was one of the judges who has ruled him incompetent in the past, most recently in February 2019 in a sexual assault case where he was accused of biting the woman’s face, “removing a large chunk,” according to court records.
The ruling on Thursday is important because while Madden has had several cases dismissed due to incompetency, he also hasn't met Kentucky's criteria for involuntarily hospitalization.
A dismissal likely would have meant he would have walked free again - dodging both prison time and mental health treatment.
In January, Madden’s defense attorney Steven 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."
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.
But prosecutors asked for new mental health evaluations, arguing competency can come and go.
Assistant Commonwealth's Attorney Chris Foster said the judge is required by law to have Madden evaluated again. And she implored O'Connell to consider the "gravity of the case."
O'Connell ultimately agreed, ordering Madden to undergo another psychiatric examination to see if he may now be competent to stand trial.
Madden will be sent to the Kentucky Correctional Psychiatric Center to be examined for up to 30 days.
O’Connell will then 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.
Madden’s case is a nightmare for 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, pointing out that while he has been arrested multiple times over the years, he continues to be released from jail and hospitals.
Legislators and state mental health officials proposed two bills to fix the problem with the law that has allowed Madden and numerous other dangerous but mentally ill defendants all over the state to walk free.
The bills stalled.
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.
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.
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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