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PROVO — A day after the controversial release of a convicted sex offender facing more than 20 new counts of rape and aggravated sex abuse of a child, the case of Lonnie Johnson appears headed for a competency showdown.
"The state has received new information in the past week from the Utah State Hospital that suggests that the defendant does have a realistic chance of regaining competence," if he continues treatment at the State Hospital, according to a motion filed Thursday in Fourth District Court.
Johnson, 38, a registered sex offender from a child rape conviction in Washington state, had spent the past year and a half in the Utah State Hospital. He is charged in Fourth District Court in Provo with more than 20 counts of rape of a child, sodomy of a child and aggravated sex abuse of a child.
It has never been the hospital's position that Mr. Johnson could not be restored to competency. I believe that there is a substantial probability that Mr. Johnson is competent to proceed at this time.
–- Peter Heinbecker, a forensic psychiatrist at the Utah State Hospital.
But defense attorneys say Johnson has a "cognitive disorder," is unable to assist in his own defense and is incompetent to stand trial. Furthermore, a judge ruled Johnson was not a danger to himself and others and could not be civilly committed.
Because of that, a second judge ordered Johnson's release from custody Thursday, despite an outcry from protesters around the nation, including Gov. Gary Herbert who said he was "outraged" by the decision to free him.
Johnson's sister, Cindy Lorenz, denies the allegations against her brother and said they stem from a bitter divorce battle between Johnson and his wife.
But prosecutors say this is not the end of the case.
A motion was filed Thursday for a new competency hearing. On Wednesday, an affidavit was filed by prosecutors from Peter Heinbecker, a forensic psychiatrist with more than 23 years of experience at the Utah State Hospital.
"My impression from working with Mr. Johnson for the past 3 years is that he is competent to proceed at this time," Heinbecker said in his affidavit. "It has never been the hospital's position that Mr. Johnson could not be restored to competency. I believe that there is a substantial probability that Mr. Johnson is competent to proceed at this time."
Heinbecker said Johnson was diagnosed in 2008 when he was admitted to the hospital with alcohol abuse, marijuana abuse, pedophilia and anti-social personality disorder.
Hospital staff noted "inconsistencies in his behavioral and cognitive functioning," according to court papers. Some of the notes from hospital staff members indicated that Johnson was able to cook multiple meals at once at the Forensic Canteen, taught himself by reading manuals and is always friendly.
But some notes also indicated that during group sessions, Johnson rarely participated in discussions and struggled to show good participation, according to court records.
The last high-profile case in Utah involving a competency question was the Elizabeth Smart kidnapping. Like Johnson, Brian David Mitchell was diagnosed by two expert witnesses with pedophilia and anti-social personality disorder.
In 2005, prior to her receiving anti-psychotic medication, attorneys for co-defendant Wanda Barzee requested that their client be released because the Utah State Hospital had run out of options for treating her and she did not pose a danger to herself or others. Instead, a judge ordered the first "Sell Hearing" in Utah history.
Sell Hearings establish criteria for involuntary medication of a defendant: if there is important government interest at stake; the involuntary medication will significantly further those important governmental interests; it is necessary to further the state's interest; and it is medically appropriate.
But Deputy Utah County Attorney Craig Johnson said the difference between the Mitchell and Barzee cases and Johnson is that medication is not an issue.
"It's a different diagnosis. Medication would not be a factor," he said.
A judge has now ordered two new psychiatrists be picked by Oct. 3 to give a new competency evaluation of Johnson. Johnson was ordered to make himself available for the evaluation.
A new hearing was scheduled for Nov. 17.
While they prepare for the hearing, Craig Johnson said his office was activly pursuing a legislative change to the civil commitment statute and hope to present it to the Legislature during next year's session. Johnson said Rep. Brad Daw, R-Orem, has already agreed to sponsor the bill.