Then, in July 2010, a court clerk in Waterbury discovered that Custodio's criminal case was still open and brought it to the attention of the late Judge Richard Damiani. Damiani scheduled a hearing, which Custodio — who had no way of learning about it — did not attend. At the hearing, an arrest warrant was issued for his failure to appear in court.
Custodio was finally located at Prospect Towers, a subsidized apartment complex for the elderly in Waterbury. Once back in custody, the failure to appear charge was dropped. Another competency hearing was scheduled for the next month at which it was determined that Custodio was still not competent enough to stand trial.
During the court proceedings, he was unable to identify where he was or the day, month or year. He was unable to remember information three to five minutes after it was presented to him. His IQ is 70. He still thinks John F. Kennedy is president. And he was never promoted out of the first grade, according to court documents.
Still, Custodio's lawyer said he shouldn't have to return to state custody because he hadn't caused any problems over the past 18 years.
Judge Damiani disagreed. He ordered that the defendant again be committed to the custody of the Department of Mental Health and Addiction Services, that he be provided services in a less restrictive setting than civil confinement, and that he submit to periodic competency evaluations.
"I'm not going to just simply release him back into the community; that's not why he's here," Damiani said at the hearing according to a court transcript. "I'd like to know where he is and what he's doing and how he progresses, looking out for [his] safety and the public's safety."
Temmy Ann Pieszak, chief of habeas corpus services in the state, appealed the ruling to the state Appellate Court. Pieszak claimed that since Custudio committed his crime in 1991, that the judge couldn't apply a 1998 law when deciding he had the authority to order periodic competency exams for Custodio. State law didn't allow judges to order periodic exams in cases before 1998.
But the Appellate Court upheld Damiani's decision and said the new law was presumed to apply retroactively. Pieszak then asked the state Supreme Court to look at the case. The justices agreed, but they quickly upheld the Appellate Court decision less than two months after oral arguments were held in September.•
The Associated Press contributed to this article.
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