Judge: Slaying defendant ‘incompetent’ to stand trial
A 39-year-old man who’s been hospitalized at Moccasin Bend Mental Health Institute at least 24 times was deemed “incompetent” to stand trial last week in his second-degree murder case.
Criminal Court Judge Tom Greenholtz ruled Friday Leviticus Avery will be hospitalized until state doctors report back on Nov. 30. Two court-approved doctors already have seen Avery in the county jail and determined he’s too incompetent to understand the criminal proceedings against him in the 2015 death of Kevin Green, defense attorney Steven Moore said.
Avery still faces a second-degree murder charge, a class A felony that carries 15-60 years in prison.
But a few things remain to be seen, including whether he was competent on Oct. 7, 2015, just before 7 a.m., when police say Avery hit the 38-year-old Green in the head with a chair leg in a recreation room at Moccasin Bend.
“Even if he’s competent to stand trial, that doesn’t mean he was competent at the time of the offense,” Moore said.
The district attorney’s office spokeswoman, Melydia Clewell, declined to comment. Prosecutors typically don’t comment on pending cases.
There are a few options prosectors have in a case like this. If the doctors can’t restore him to competency, authorities can keep Avery in involuntary care for the duration of his sentence. Before this, Avery had been housed at the Hamilton County Jail, Moore said.
State doctors also could find Avery’s mental state was in question at the time of the offense — if his mental condition was too severe that he failed to differentiate between right and wrong.
In that event, the defense and prosecution could work out an agreement where Avery is found not guilty by way of insanity. That happened earlier this year with Julia Shields, a 47-year-old
Hixson woman who faced attempted first-degree murder charges after she drove around her neighborhood in December 2014 wearing body armor and firing at parked cars.
Moore said his client has been hospitalized at Moccasin Bend at least 24 times since the mid1990s, according to documents he’s received in the case. Avery was awaiting assessment in October 2015 for a different vandalism and assault case; Green had voluntarily admitted himself.
A roughly 15-minute surveillance video shows their interaction, Moore said.
First, an agitated Avery walks around the recreation room yelling at other patients. He then turns a wooden table over, spends a few minutes yanking off one of its legs, and begins banging on the safety glass at the front desk with it. Though staff is nearby, nobody stops him. After walking to the nurse’s station, Avery is joined by Green, whom he whacks over the head one time with the chair leg.
Prosecutors upgraded Avery’s charge to first-degree murder when Green, a father of three, died days later. A grand jury later returned an indictment for second-degree murder, court records show.
At the time of the incident, the Tennessee Department of Mental Health and Substance Abuse Services said it would conduct an internal investigation into Green’s death.
“Staff intervened, but not before one patient sustained injuries and was immediately transported to Erlanger hospital in Chattanooga,” then-spokesman Mike Machak said.
A spokesman spokesman for the Department of Mental Health said the agency could not comment on the status of the report.