Accused of killing his nursing home roommate, he will likely never face trial. Here's why.

PROVIDENCE – Robert Hill, who is 77, is scheduled to be arraigned for murder later this month.

But it's doubtful that will happen.

Warren police arrested the Navy veteran in April last year. They charged him with killing his Crestwood Nursing Home roommate, John "Jack" Sullivan, who was 81.

The police say Hill suffocated him in their room using pillow stuffing.

"He tried to kill me first," Hill told the nursing home staff, records show. "He's been trying to kill me for 10 years."

Except Hill, diagnosed with severe cognitive impairment, had lived at Crestwood for less than three weeks.

Caught in legal limbo

Since his arrest last year Hill has been held at the Eleanor Slater Hospital, the state psychiatric hospital. His arraignment has been scheduled and rescheduled several times.

Each time, the case has been continued because Hill remains mentally incompetent to stand trial, court records show.

And Hill isn’t expected to get better, placing him – and the family of Jack Sullivan – in a rare case of legal limbo.

“Understanding that the cognitive issues in this case are not going to change, I don’t think there will be a change in competency,” said Hill’s lawyer, John MacDonald.

How common is this situation in Rhode Island?

As of May 6, 47 criminal suspects were being held in the state’s two psychiatric hospitals after judges found them incompetent to stand trial, according to figures supplied by the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals.

Three defendants had been found incompetent to stand trial and "non-restorable,” a legal term meaning the defendants’ incompetency can’t be overcome with treatment.

The phrase may eventually apply in Hill’s case.

Cases like Hill’s are “fairly rare,” says law Roger Williams University School of Law Prof. Peter S. Margulies, but they follow a path well marked by both federal and state law to ensure defendants don’t remain "on an endless carousel ride without any end point” as to their due process.

Step back: How does competency work in the courts?

In 1972, in the case of Jackson versus Indiana, the U.S. Supreme Court ruled that criminal suspects whose competency is in question can be detained only for the “reasonable amount of time” needed to determine whether their competency can be restored.

“Basically, it says, as a matter of due process, the state can only hold someone for a period which is reasonable to determine whether it is likely that the defendant will regain competence at some point in the future,” says Margulies.

“It would just be unfair to hold someone indefinitely,” says Margulies. “It makes the state too powerful, and it takes away liberty without appropriate safeguards.”

Dropping a charge because of incompetency does not mean, however, that someone is automatically released from detention.

Prosecutors can seek to have a defendant held in the custody of BHDDH under civil commitment, arguing they remain a danger to society or themselves.

But how long does it take to get to that point?

The Supreme Court left undefined how long a “reasonable” amount of time is, and states have defined it variously.

More on nursing home violence: What hundreds of pages of records reveal about nursing home resident-on-resident violence

Here's how it works in Rhode Island

In Rhode Island, two timeframes come into play.

If a judge finds a defendant is incompetent but there is a reasonable likelihood that the defendant will become competent, the defendant can be held up to two-third of the maximum term for the most serious offense they face.

And in a case of murder, punishable by life imprisonment, the courts have used, for the sake of computation, a maximum sentence of 30 years.

That would technically mean in Hill’s case, the clock for trying to restore him to competency would run out in 20 years. Hill would be 97 at that point.

But the state law includes a speedier provision that says "if the court finds that the defendant is incompetent and that a reasonable likelihood does not exist that the defendant will become competent" prior to the two-thirds dismissal deadline, the judge shall order within 30 days that charges be dropped and the defendant discharged.

At that point, prosecutors may commence civil commitment proceedings.

A defendant is ruled incompetent if a judge determines they are unable to “understand the character and consequences of the proceedings” against them and unable to assist in their own defense.

Staff at the BHDDH conduct regular evaluations to gauge whether a defendant’s competency status has changed, and the results of those evaluations are brought back before the judge for review during periodic competency hearings.

If the court rules that the defendant is competent, prosecution moves forward.

If a judge finds the defendant incompetent and “unrestorable,” the process of possible civil commitment begins.

It is also possible that an "unrestorable" defendant deemed not a danger to himself or others can be released to a different kind of care facility.

The number of older criminal suspects is growing

According to a story published last year by USA Today in conjunction with the Marshall Project, a nonprofit news organization covering the U.S. criminal justice system, just over 1% of people arrested for murder in 2021 were 65 years or older.

But the number of older criminal suspects is growing.

A 2022 report by the American Bar Association Commission on Law and Aging said the number of Americans age 65 and older who have dementia is expected to double to 12.7 million by 2050.

Meanwhile, the number of state prisoners age 55 and older has increased by 400% from 1993 to 2013, and it is predicted that by 2030 this age group will account for one-third of the U.S. prison population.

The authors of the bar association report surveyed legal professionals, health care workers and corrections staff nationwide. They found one challenge in dealing with defendants with dementia was “the almost unbending insistence of the courts to seek restoration.”

The authors recommended that people with dementia no longer be hospitalized for competency restoration at all, as it “has little chance of success [and] may be harmful.”

Instead, they recommended more tightly secured nursing facilities.

What comes next for Robert Hill?

What ultimately happens to Robert Hill remains uncertain, though his lawyer says he can almost predict what will happen later this month at Hill’s scheduled arraignment.

“The judge will be informed he’s still incompetent to testify or to even take part in his trial. I don’t expect any of that to change in the future. And it will be continued for another six months status date.”

How long will that continue?

“I think it’s far too early in the process to know.”

Contact Tom Mooney at: tmooney@providencejournal.com

This article originally appeared on The Providence Journal: Robert Hill, accused in RI nursing home murder, may never face trial