State of Colorado v. McGee (Amicus)

The ACLU of Colorado filed an Amicus Brief seeking to provide the Court with Colorado-specific context that counsels strongly against eroding the protection provided by a second competency evaluation by an evaluator of the raising party’s choice.

The trial of a person incapable of understanding what is happening to them and making a defense violates our most fundamental principles of justice. In determining how to prevent putting accused people who are incompetent to proceed to trial, the legislature made an iterative evaluation procedure available. While the first evaluation of a person’s competency is conducted by a Colorado Department of Human Services (Department) forensic psychologist, any party may have a second evaluation conducted, by an independent forensic psychologist.

Mr. McGee, the Petitioner, is facing serious charges in Larimer County. Mr. McGee’s defense counsel raised competency in May 2025. The court ordered a competency evaluation. After the Department evaluator opined that Mr. McGee was competent, the court denied Mr. McGee the second competency evaluation by the evaluator of his choice (in this case, a person with expertise in Mr. McGee’s particular conditions) as guaranteed by statute § 16-8.5-103(3), (4), C.R.S. The defense filed for emergency relief in this Rule 21 proceeding.

We filed an amicus brief in support of Mr. McGee, arguing that Colorado’s statutory protections around competency to proceed are required by our particular context. We argued that the history of the second evaluation requirement, which was passed during an overhaul of the entire competency scheme in 2008, emphasizes its importance. We also described how hiring, training, and management of Department psychologists creates a real risk that Department evaluators may be newly licensed, minimally forensically trained, and under significant time pressure. The option for a second evaluation by an evaluator outside of the Department mitigates this risk. We urged the Court to protect fundamental rights in Colorado by leaving the option for a second evaluation undisturbed.

On January 12, 2026, the Colorado Supreme Court issued an opinion ruling in favor of Mr. McGee, agreeing that the trial court erred in denying his request for a second-opinion competency evaluation since a timely request for the second evaluation was made after the initial court-ordered evaluation. The Court emphasized that the statute is clear; a second evaluation is mandatory, not discretionary, under these circumstances.