Imprisoned — with no conviction? How one word in NC law traps mentally-ill defendants.
A little over a year ago, a senior Superior Court judge in Charlotte reviewed the oldest local cases on the books. Devalos Perkins’ case was among them.
The cases, all involving crimes of various severity, had languished in the system. Around the time of this evaluation, Perkins had just been involuntarily committed to a mental hospital — and his case was stalled yet again.
Despite no verdict in 11 years and no end in sight, the judge decided there was no “undue delay” for Perkins, or the loved ones of Justin Ervin, the man he’s accused of murdering.
Devalos Perkins' Purgatory
This is the last chapter in a 4-part news series by The Charlotte Observer investigating why a 37-year-old man has spent more than half of his adult life in legal purgatory, stuck between jail and mental health hospitals. Earlier chapters show the journey of the victims’ loved ones toward justice as Perkins is trapped, legally considered perpetually incapable of being put on trial. With no end in sight, prosecutors have yet to prove his guilt. Our investigation reveals how a single word in North Carolina law threatens to keep Devalos Perkins in purgatory forever.
Chapter 1: Purgatory behind bars: He’s spent 11 years in jail — and no one knows if he’s guilty
Chapter 2: ‘Make sure he fries.’ Unsolved for years, a Charlotte murder case turns cold in court.
Chapter 4 - You are here
Legal experts told The Charlotte Observer there’s not a clear court precedent on what should happen next.
Perkins could continue to wait without trial for years.
Later this year, Perkins is set to walk into the courtroom again for a capacity hearing. Will this be his chance to break his nearly 11-year cycle, or will the cycle break him?
One word; one year
North Carolina law appears to give prosecutors the power to hold Perkins indefinitely because of one word in the statute, according to legal experts the Observer interviewed.
When Perkins was arrested and charged with murder in 2012, the law left the possibility of indefinite incarceration for defendants deemed mentally-incapable of proceeding to a trial. Judges could decide to dismiss a person’s charges after long waits — but weren’t required to.
The law was changed approximately three months after Perkins went to jail.
Now, after a 10-year wait to go to trial on felony cases, North Carolina judges are required to dismiss the charges for a person deemed mentally-incapable of standing trial.
The pivotal one word in the law was changed from “may” to “shall.”
The old law — “When a defendant lacks capacity to proceed, the court may dismiss the charges” — was repealed, replaced with a new provision with a time limit to purgatory.
Under current law, felony defendants in similar cases must be released from jail when courts decide the person is unlikely to progress mentally to the point of being competent for trial, or 10 years from the court finding they are incapable to proceed, whichever comes first. Another provision requires dismissal of the charges once the person has waited without trial for longer than the maximum sentence corresponding to their charge.
But because the murder happened before the law changed, Perkins is held to the outdated statute that makes it optional for the court to dismiss his charges, according to University of North Carolina Professor John Rubin who specializes in criminal law and public defense education.
“That change of a single word has a world of difference,” Rubin said. “May is discretionary, shall is mandatory.”
The District Attorney’s Office would not confirm if prosecutors are applying the outdated law. But even if they aren’t, some ambiguity in the current-day law may give authorities legal leeway to hold him indefinitely.
Although state law now requires dismissal of felonies after 10 years when the defendant is ruled incapable to proceed, it’s not clear when the clock starts — or stops — ticking.
Perkins’ lawyer, Norman Butler, did not respond to multiple attempts for comment over the past year including numerous phone calls and emails, and a request in-person for an interview.
The District Attorney’s office refused to answer questions specific to Perkins’ case.
Rubin and the chief public defender in Mecklenburg County said they weren’t certain if the 10 years starts over each time Perkins is found capable — which has happened at least twice.
Despite this, there is always a constitutional limit on how long a person can be held in jail without conviction, Rubin said.
But how long? Case law is unclear because there haven’t been many cases like Perkins’ in state history.
A good rule to determine when this constitutional limit has been reached is when the court establishes someone is unlikely to regain capacity, Rubin said. But this can be a difficult thing to prove.
Kevin Tully, Chief Public Defender for Mecklenburg County, wouldn’t speak on many of the specifics of Perkins’ case, but agreed that the one word difference in the statute would allow someone like him to be held indefinitely.
A defendant waiting for years in jail after being found incapable to proceed is not a violation of due process, Tully argues.
Instead, he says it’s the opposite.
The imaginary timer counting down whether a person’s right to a fair and speedy trial is being violated essentially freezes the moment a person is found incapable to proceed.
“The violation of due process would be if they went forward knowing that [the person is incapable of proceeding],” Tully said.
People in court accused of crimes are presumed, under the law, to be competent to stand trial unless shown otherwise. And the burden of proof is on the accused.
Tully said cases delayed as long as Perkins’ are unusual but not unprecedented.
Because of the significant delays in the case, the state’s case against Perkins may be weakened, according to one expert.
Time can impact whether or not the state can successfully prosecute a case, says Carissa Hessick, University of North Carolina professor of criminal law and criminal procedure.
“Witnesses might die or their memory might deteriorate,” Hessick said. “As time goes on the ability to gather physical evidence may have passed. Physical evidence that existed might have been lost. There are a number of ways in which the passage of time can affect what happens at trial.”
While it’s unclear who prosecutors would call as witnesses, the chief eye-witness to the violence is already dead: Shasta Rich, girlfriend of Ervin, who was killed.
When a witness like Rich dies, it doesn’t always mean roadblocks for a prosecutor’s case, but it can certainly complicate things, Hessick said.
The District Attorney’s office refused to respond to questions from the Observer about how the delays and Rich’s death may have impacted the case. The DA’s office refused to say whether DNA evidence ties Perkins to the crime. And the DA’s office would not talk about specifics in Perkins’ case.
Instead, the office issued a statement explaining: “If a judge determines this capacity will never be restored, the court may be compelled to dismiss the case against the defendant. ... Our obligation to the families of homicide victims — and to the community at-large — is to make certain all attempts at capacity restoration are exhausted within the law before ever consenting to the release of a person who has demonstrated the capability to commit such a vicious crime.”
Is this wrong?
Perkins’ lawyer could attempt to have a judge apply the current version of criminal code that requires dismissal after 10 years of him being incapable of standing trial, says Charlotte attorney Tim Emry, former candidate for Mecklenburg District Attorney.
The incapacity to proceed statute in North Carolina doesn’t expressly prevent applying it retroactively, Emry argues.
The defense could also ask for a dismissal of the charges in the interest of justice, Emry said.
No records in Perkins’ case file indicate attempts by his lawyers to have the case dismissed or prosecuted under North Carolina’s current law.
“I understand that they want to prosecute someone for a murder, but it’s been over a decade and he’s not capable,” Emry said. “So how long is enough time to say we have to move on?”
Perkins’ case is very rare, Emry said. Because his circumstances are so rare, the laws surrounding his case are likely something called first impression meaning the circumstances of the law pertaining to his purgatory have never been challenged before.
“That always is a tricky situation, because we don’t have any case law that go on, or precedents to go on,” Emry said.
There are others like Devalos Perkins
While rare, Perkins is not the first to be held this long within the state’s court systems.
Another local defendant David Hamilton, of Huntersville, whose capacity has been in question, has been awaiting trial since 2011.
That’s a year longer than Perkins. Hamilton is accused of stabbing his parents to death just months after breaking into a German Embassy and threatening to kill the president, according to a 2011 news article by WBTV.
In June, the Observer attempted to attend a hearing for Hamilton but the judge closed the courtroom to the public, citing sensitive mental health issues. Afterward, Hamilton’s defense lawyer, Tully, said the parties met to discuss the potential dismissal of his charges. It is unclear what the outcome will be but Hamilton’s case, too, is affected by the law changed in 2013.
Preceding the change in the statute, Floyd Brown, an Anson County man with the IQ of a 7 year old, was found incapable of proceeding and had been held by the state in Dorothea Dix Hospital for 14 years awaiting trial, the Observer reported previously.
Brown was eventually released after he was found to be wrongfully held. He was awarded damages for the wrongful incarceration in 2012, around the same time the new law was being discussed.
Aside from these outliers in the state system, approximately 450 other North Carolina defendants were found incapable of proceeding from 2017-2021, according to data by the Administrative Office of the Courts (AOC).
At least 10 of these defendants faced charges in Mecklenburg, with several smaller counties having twice as many defendants deemed incapable to proceed, AOC data show.
Not enough hospital beds
It’s difficult to address capacity to proceed issues due to a lack of hospital beds and resources, experts told the Observer. Overall, the state has just three psychiatric hospitals equipped to treat these defendants.
Dr. Robert Cochrane, the Department of Health and Human Services director of forensic services, agreed that the state is low on hospital beds and resources.
Cochrane said there is a national crisis where more defendants are being found incapable to proceed — referred to as incompetent to stand trial in most states — and it is overwhelming the system.
“It’s overwhelming the system … three hospitals is not enough to handle the workload,” Cochrane said. “It’s been sort of compounded with other other issues like when COVID hit, that created an enormous backlog,”
There’s a waitlist for treatment, Cochrane said.
“If someone is deemed incapable to proceed and needs to go to the hospital for those restoration services, they’ll oftentimes wait in a jail for months before that becomes available to get into the hospital.”
According to the state’s most recent numbers, the average wait time for a hospital bed as an incapable to proceed patient (ITP) was 149 days, Cochrane said in May.
In addition to the wait for a hospital bed, defendants also must wait for a psychiatric evaluation.
This can take time considering the increase in demand. In 2022 there were approximately 2,000 forensic evaluations. Roughly 60% of those evaluated were found incapable of proceeding to trial, Cochrane said.
Overall, the median wait from the time a defendant is incarcerated in jail, to the time they are hospitalized for restoration services, is 363 days, according to a recent investigation called “Fractured” by WFAE.
Despite the long waitlist, Perkins’ case is extremely uncommon, Cochrane said.
“There have been cases that have gone on years, don’t get me wrong, but it’s pretty infrequent and definitely not common to be awaiting trial going through the capacity restoration process (this) long,” Cochrane said.
Someone may wait as long as Perkins, for example, if they go through treatment but stop taking their medication before trial. Their mental stability can decline to the point they become incapable to proceed once again.
“It’s like a vicious cycle that happens with some patients where they get better and go back to jail, and because the case doesn’t process quick enough … the person gets sick and goes through this cycle,” Cochrane said.
Dr. Anthony Frasca, a psychiatrist who formerly worked in Broughton hospital and who appears as an expert in Perkins’ court records, told WFAE in April he saw patients on multiple occasions who would become capable to proceed, then deteriorate in jail and return for treatment.
While Perkins was not included in WFAE’s 9-part investigation looking at the state’s mental health care system, the station’s findings are in line with what experts told the Observer. Long waits exist for defendants looking for capacity restoration services, and accessing mental healthcare in jail is difficult.
“On more than one occasion, I saw the same people,” Frasca told WFAE. “Mostly men, mostly Black men, but not exclusively, come back to Broughton in as bad or worse shape as I met them the first time. And that was incredibly disheartening.”
This repeated treatment doesn’t bode well for defendants, he said.
“Every time they get sick, they get sicker, and every time that you try to bring them back, they don’t get quite back to where they were the last time. They lose ground,” Frasca said.
More community mental health services and more beds, staff, and support for North Carolina’s three psychiatric hospitals would help, Cochrane said.
“There’s simply not enough beds for those men,” Cochrane said. “I’m not just talking about ITP or incapable folks, but people in our state who are going through a psychiatric crisis, there just aren’t enough beds to provide them the inpatient level of care that they need.”
To counteract the problem, the state launched a new program to bring capacity restoration services directly to those who need it called NC RISE.
This program is the first of its kind in North Carolina and aims to provide mental health restoration services faster to the defendants who need it.
The Mecklenburg County jail is the first facility in North Carolina to have its own capacity restoration program and began providing restoration services on December 7, according to a statement from DHHS.
Wellpath, a health services provider, was awarded the contract to provide these services in the Mecklenburg jail.
The program will provide “psychiatric care, individual and group counseling, substance abuse treatment, psychoeducation, and targeted case management,” according to a news release from the jail.
Jeremy Barr, Wellpath’s President of Recovery Solutions, said this program can provide treatment more efficiently to defendants who would otherwise languish in jail while waiting for a bed at a state hospital.
Still, he said, it’s difficult to treat patients with antisocial behaviors and personality disorder.
Doctors have previously diagnosed Perkins with antisocial personality disorder.
This — coupled with Perkins’ history of refusing prescribed medication for his symptoms — could be one of the reasons he is having a difficult time being restored to capacity.
Antisocial Personality Disorder describes an “ingrained pattern of behavior in which individuals consistently disregard and violate the rights of others around them,” according to Psychology Today.
“Those are some of the most challenging patients to have effective treatment interventions,” Barr said.
According to court records, mental health hospital staff have documented Perkins’ resistance to both taking anti-psychotic medication and completing capacity restoration classes.
It’s not clear if Perkins will be seen by Wellpath professionals in the Mecklenburg jail.
Not long after the program’s start, he was transferred back to a maximum-security prison facility in Raleigh, where he’s waiting for his next court date or waiting to be moved to another hospital.
What’s next for Devalos Perkins?
The safekeeping unit at Central Prison in Raleigh is for defendants who require special attention or pose a danger to jail staff, according to state law.
Perkins’ has been held in safekeeping on and off throughout his time in jail in order to receive psychiatric care from Central Regional Hospital’s Butner campus, court orders show.
It is unclear the exact date of his most recent transfer but jail records indicate he has not been held in Mecklenburg since at least December 2022.
While some experts interviewed by the Observer say safekeeping could help Perkins get mental health treatment and remain stable until trial, the issue is whether he can stay in the facility long enough.
The unit can hold only 200 men and routinely is short on beds compared to demand.
When a sheriff needs to send a prisoner to safekeeping from a local detention center, he or she typically must take someone else from the facility, according to a spokesperson for the North Carolina Department of Adult Correction.
Perkins’ stay this time in safekeeping marks a type of déjà vu ahead of his next court date.
Starting over
Nearly 11 years to the date that he walked through the jail’s doors, Perkins will be right back where his purgatory began.
He’s been here dozens of times in the 20 years since his alleged crime occurred. And on Oct. 13, he’s scheduled to stand in front of a judge who will once again decide whether he is capable to stand trial.
After the hearing, if he still isn’t capable, he will go right back to the beginning of the court’s restoration process with evaluations, mental hospitals, metal bars, and restraint chairs.
Nearly every time he’s found himself here, he’s told doctors he’s heard the voices in his head — sometimes those of his family.
It’s not clear when the voices started but he’s been under psychiatric care since his teens, when he was in and out of group homes after his mother was convicted on drug and child abuse offenses, according to criminal case records for both Perkins and his mother.
He wrote in one of his most recent letters to a judge that when his family hears about the delays in his case they will sue the courts. It’s not clear if Perkins realizes that the aunt who helped raise him died in 2016.
Perkins’ letters to judges over the years show he is left with the same questions reporters are: Why is he being held in jail for so long without a conviction?
He begs to know what is happening in his case and asks his doctor why he can’t just go to trial to tell a jury he “didn’t do it.”
“I am not supposed to be in prison....
“I’m right across the hall and next to inmates with LIFETIME Sentences and some got 34 years.
“I don’t got that time...
“I don’t have no time at all.”
Gavin Off and David Raynor contributed.
Sources
Scenes not witnessed by the reporter in this series were compiled from research, interviews and public records including documents from the Mecklenburg County Detention Center and Clerk of Superior Court.
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Kallie Cox | Reporter
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