Evaluating Competency from Years Past Is Possible and Similar to Other Retrospective Analyses
In Powers v. Noble, 132 F.4th 996 (7th Cir. 2025), Jacob Powers asserted his due process rights were violated and that he received ineffective assistance of counsel because competency concerns were not raised during his trial. Following a retrospective analysis, it was determined that, despite his low intelligence quotient (IQ) and some mental health concerns, there was no indication he was incompetent. The court affirmed the district court’s denial of Mr. Powers’s petition. Thus, his convictions were affirmed.
Facts and Procedures
This case originated from a 2005 offense in Wisconsin in which Mr. Powers was charged with second-degree sexual assault of a child (two counts) and child enticement (one count) involving a 13-year-old female victim. Mr. Powers’s testimony was inconsistent with the victim and witnesses. He testified the victim entered his apartment without knocking and his friend, Mr. Galica, was also there. Mr. Powers stated he later saw his friend and the victim kissing and told them to avoid detection. The victim testified that she met Mr. Powers and went to his apartment to discuss her problems. Soon thereafter, Mr. Galica arrived, and the two men sexually assaulted her. The victim’s testimony was supported by other witnesses, including one person whom Mr. Powers told he had sexual intercourse with the victim. In 2006, Mr. Powers was convicted of all charges and sentenced to 33 years of imprisonment.
Mr. Powers appealed the conviction and sentence to the Wisconsin Court of Appeals. In April 2007, the court appointed him an attorney, who raised competency concerns, resulting in two experts’ testimony. The first expert opined Mr. Powers was “moderately impaired,” and presented with a fifth-grade reading level and questionable ability to “retain complex information” (Powers, p 999). It was noted that Mr. Powers’s lack of effort and distractibility may have negatively affected his performance. Although the evaluation was inconclusive, the expert later testified that he believed Mr. Powers was incompetent. The second evaluator opined that he was competent, as he understood and responded to questions, worked well with his attorney, and did not exhibit symptoms of mental illness. The trial court ultimately ruled Mr. Powers was competent to proceed with his appeal.
Mr. Powers sought to appeal on the grounds of ineffective assistance of counsel for not previously raising competency concerns. But, his appellate attorney determined the argument was frivolous. The appellate court agreed Mr. Powers’s trial testimony gave no indication of incompetency and affirmed his conviction. He then filed for postconviction relief in Wisconsin’s trial and appellate courts, both of which were denied. Mr. Powers requested the Wisconsin Supreme Court to review his appeals, which was also denied. In 2010, he sought a writ of habeas corpus through the federal courts. Mr. Powers claimed he was incompetent in 2006, and therefore, his due process rights were violated, stemming from ineffective assistance of counsel.
Mr. Powers’s habeas petition was not promptly filed, but he professed “mental defects” impaired his timeliness. Therefore, he sought another mental health evaluation regarding his reading, comprehension, and ability to respond to information received from the court. The evaluator opined he would have difficulty “without assistance.” Mr. Powers then sought a full competency opinion, and the same evaluator opined that he was competent to proceed, despite his difficulties. She also noted he was likely feigning or exaggerating symptoms.
Mr. Powers resubmitted his habeas petition with two additional claims. The district court waited to hear the case until it had been resolved in state court. Ultimately, the state court rejected his claims, allowing him to proceed in district court. Mr. Powers then withdrew the two additional claims from his habeas petition. The district court denied postconviction relief based on the findings that he was never incompetent and it was reasonable that trial counsel never raised concerns. Nevertheless, the district court approved Mr. Powers’s appeal to the federal court, believing “reasonable jurists” could dispute the decision. The Seventh Circuit Court of Appeals heard the case.
Ruling and Reasoning
The Seventh Circuit considered multiple factors, including whether Mr. Powers was competent during his 2006 criminal trial. Per Drope v. Missouri, 420 U.S. 162 (1975), although it is preferred that competency concerns be raised during trial, posttrial evaluations of the defendant’s behavior and previous medical opinions can be used. Mr. Powers’s claims were particularly challenging to review, as decades had passed. The court conducted a de novo review by evaluating several factors.
One factor considered was Mr. Powers’s borderline intellectual functioning. Although there were concerns about intelligence, he was not so significantly impaired that he was incompetent. The court also acknowledged Mr. Powers’s history of mental illness, but it noted this did not always result in incompetence. Additionally, the court assessed Mr. Powers’s presentation during the trial and whether he had the capacity to assist in his defense. The court concluded he demonstrated appropriate conduct, provided detailed and coherent testimony from the night in question, displayed strategic thinking (e.g., he testified to a witness’ apparent motivations against him), explained inconsistencies, demonstrated understanding of basic social conventions, and possessed adequate factual and rational understanding of his case.
Another point reviewed was Mr. Powers’s previous adjudication of not guilty by reason of mental disease or defect in 1999. Specifically, he argued that this meant he was incompetent at the time of the 2006 trial. But a defendant must first be competent before asserting a criminal responsibility defense. Additionally, the court reviewed Mr. Powers’s posttrial competency evaluations. In total, two experts opined he was competent (in 2007 and 2015), and one believed he was not competent (in 2007). Overall, the evidence supported a finding of competency. Indeed, all three experts agreed Mr. Powers could understand complex concepts if provided the time to understand them. Although Mr. Powers argued sufficient time was not provided, the court referenced Timberlake v. Davis, 409 F.3d 819 (7th Cir. 2005) and noted that he knew enough. In fact, most people do not understand every complex legal matter, which is why they have a defense attorney.
The Seventh Circuit ultimately ruled Mr. Powers was competent during his 2006 trial. Therefore, his trial attorney was not ineffective as to raising the question of Mr. Powers’s competency. The district court’s decision was affirmed and Mr. Powers’s petition for a writ of habeas corpus was denied.
Discussion
A notable component of this case is the retrospective analysis of competency. Typically, competency involves evaluating an individual’s current functioning. Indeed, Dusky v. U.S., 362 U.S. 402 (1960) focuses on the defendant’s present ability to understand and participate in the proceedings and consult with counsel. Rarely are evaluators assessing a defendant’s competency to proceed in a trial that took place years earlier. Furthermore, in this case, the court analyzed the defendant’s competency at three different points in time. First, the court addressed the fact that Mr. Powers was presumed competent in his 1999 case. Then, the court used a retrospective lens to examine the available data and assess his competency at the time of his 2006 trial. Finally, his competency was evaluated at the time of his 2007 appeal.
Although the retrospective analysis of trial competency is not common, it is a foundational component of other psycholegal questions. For instance, to assess whether defendants can be held criminally responsible for their actions at the time of an alleged offense, evaluators attempt to reconstruct what a defendant was thinking, feeling, and doing at that time by reviewing relevant records and interviewing the defendant about the defendant’s recollection of the event.
A defendant’s past competency can be assessed from available records and interviews with relevant parties. Further understanding of this matter could be ascertained by reviewing available medical or jail records, legal documents, and previously submitted psychological or psychiatric evaluations. Additionally, if possible, it might be fruitful to interview the defense attorney about the defendant’s ability to work with his attorney, maintain proper courtroom decorum, and provide coherent testimony. It would be important to determine whether any concerns were noted with respect to the defendant’s psychiatric and cognitive functioning. If so, the specific nature of the impairment is particularly relevant. For instance, if the defendant has a neurodevelopmental disorder, any previously identified impairment would be expected to persist. Alternatively, we would anticipate that the symptoms of a psychotic spectrum or mood disorder might vary over time. Furthermore, we can expect to see some progressive decompensation if the impairment is because of certain neurocognitive disorders. Finally, evaluators are advised not to rely on what the defendant says the defendant did or did not know before, as it may not account for what information was learned between the two points in time.
- © 2026 American Academy of Psychiatry and the Law
