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Cane Madden, left, during a previous court hearing. (WDRB Photo)

LOUISVILLE, Ky. (WDRB) -- After hearing from two psychiatrists with opposite opinions on whether Cane Madden is mentally competent to stand trial on charges of raping an 8-year-old, a Louisville judge is set to make a decision that could put in motion a cycle that frees Madden.

On Thursday, Dr. Timothy Allen from the Kentucky Correctional Psychiatric Center (KCPC) in La Grange testified on behalf of the prosecution that Madden is mentally competent to stand trial.

The Jefferson Commonwealth's Attorney and Allen believe Madden, who's been repeatedly institutionalized and hospitalized throughout most of his life, has learned to "manipulate the system" and much of his bizarre behavior documented by evaluators was just to draw a reaction from his caretakers.

"He has shown the ability to turn it on and turn it off when it works for him," Assistant Commonwealth's Attorney Chris Foster told Jefferson Circuit Court Judge Annie O'Connell. "He's trying to make himself look crazier than he is...He is exaggerating."

But Dr. Allan Josephson, a witness for the defense who has previously testified that Madden is not competent, said Friday it would be "virtually impossible" for Madden to work with his defense attorney and understand what was happening during a trial. Josephson said Madden still can't name the defense attorney, Steven Harris, he's worked with since 2019.

Friday, both Josephson and Harris highlighted Madden's behavior in the courtroom during the hearing itself. They described him as disengaged and said he spent most of the hearing doodling on scratch paper. When they asked what he was doing, he told them he was "code breaking," they said.

Madden, Josephson testified, has "profound" mental issues, like severe social incompetence, intermittent explosive disorder, brief psychotic disorder, learning disorder and PTSD-like symptoms from being abused as a child. He described Madden's decision-making skills and impulse controls as unpredictable as a game of "pin the tail on the donkey."

"This disorder is lifelong," he said.

At one point, Judge O'Connell asked Josephson why the opinions of the two psychiatrists were so different.

"That's a good question," he responded. "If ever there was a case that was not black or white, it's this one."

"Why can't you all tell me what the answer is?" O'Connell said, adding that she was joking with Josephson.

Josephson said it is one of the most difficult cases he has handled but that Madden needs to be institutionalized and taken off the streets.

"I don't need to be back testifying about this again," Josephson told O'Connell.

The case against Madden, who has a record of mental illness and has repeatedly been found incompetent to stand trial after past felony arrests, has gained statewide attention as it exposed a problem with Kentucky law.

While Madden has had several cases dismissed due to incompetency, 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. WDRB News highlighted the law's shortcomings after Madden was arrested in August 2019.

O'Connell is one of the judges who has ruled Madden incompetent in the past and did so most recently in February 2019 in a sexual assault case where he was accused of biting a woman's face.

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 outside a home on Hale Avenue, near Dixie Highway.

If the judge finds Madden to be incompetent to stand trial in the current rape case, the cycle could continue.

"It needs to stop and I believe it could stop" if Madden could get long-term care," Josephson told the judge Friday. "He can't control his impulses and we (keep putting) him out on the street."

Sen. Morgan McGarvey, D-Jefferson County, is hoping to change the problematic law that stipulates defendants with mental issues, who are found incompetent to stand trial, can only be involuntarily hospitalized for treatment if they meet three criteria:

•   The person must be deemed a danger to himself or others

•   The person is expected to benefit from treatment, and

•   Hospitalization is the least restrictive treatment available

"We've got to make sure that there's nobody falling through the cracks," McGarvey said.

Early next week, he plans to file a bill that would remedy the issue.

"We've added a third element there that if you're not competent to stand trial, and you won't benefit from treatment, but you will be a danger to yourself or others, then there's still a process to keep you safe and/or keep the community safe," he said.

Though a similar bill stalled last session as legislators targeted their efforts on the burgeoning COVID-19 pandemic, McGarvey is hopeful the legislation will get wide bipartisan support this session.

Meanwhile, O'Connell's decision on Madden's competency, could come early next week. However, she acknowledged that she might need a bit more time than usual given the complexity of the case.

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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.