INDIANAPOLIS — De’Aire Gray was one of the first people placed in a new program for defendants declared incompetent to stand trial. The pilot program was designed to save money and eliminate months of trial delays that clog court dockets and crowd the jails.
Four weeks later, Gray was shot by Speedway police.
His family says he never got the medication he needed. A forensic psychiatrist said Gray’s history of refusing medication meant he was not a good candidate for the program.
Now Gray is dead, the program’s future is in limbo and defendants ruled incompetent to stand trial continue to take up jail space without any treatment while they wait for space at a state hospital.
“His placement in that program, obviously in retrospect, it worked out tragically badly, about as badly as any placement could ever work out,” Dr. George Parker, the former medical director for the Indiana Division of Mental Health and Addiction and one of two experts who evaluated Gray, said.
In a three-page evaluation filed in August, Parker said Gray suffered from schizophrenia and recommended he be treated at an in-patient facility.
Instead, the state’s Division of Mental Health and Addiction placed Gray in the new community-based competency restoration pilot program on Jan. 13.
Four weeks later, Gray was running from Speedway police when they say he pulled a weapon.
Officer Robby Harris shot Gray twice on Feb. 12. Gray, 28, died at Eskenazi Hospital on Feb. 21.
Related: Veteran Speedway officer fatally shot man during foot chase, officials say
The new community-based program that Gray was placed in provided counseling and medication to help incompetent defendants regain their mental health. People accused of crimes can only be tried when they understand the charges and can assist their attorneys.
Gray met with doctors and counselors during the four weeks he was in the program, but his mother Tanya Atkins insists that he never received the medicine.
“I felt that he would be getting the meds, that was my only concern,” Atkins said. “They said eventually. That’s what they were aiming for.”
Medicine might not have stopped Gray from running from officers on Feb. 12, but Atkins believes it would have cleared his head and given him a chance to make better decisions, just like in 2015.
Voices and strange behavior
In the summer of 2015, Gray was convinced that strangers were following him. He heard them talking and sneaking around inside his apartment.
His family said Gray was muttering to himself and conversing with his sister who had passed away.
He suddenly believed he was adopted. He told his mother she didn’t like him and was treating him badly because he was not really her child.
“When we went to court he told them the reason why I treated him the way I did was because I wasn’t his real mother, that I adopted him, which wasn’t true,” Atkins said. “But in his mind, it was.”
It became clear to his loved ones that Gray was sick.
In July of 2015, Gray, then 23, tipped over furniture and threatened his mother because there was no food in the fridge, according to a police report. A neighbor who overheard the commotion called 911.
Officers took custody of Gray on immediate detention, a facet of Indiana law that gives police the power to take someone to a hospital to be evaluated and treated for a mental illness.
Atkins recalled going to court that summer. A judge ordered Gray to spend three months in treatment under a civil commitment, a way for courts to force a person with mental illness to get medical help.
It was the first and only time Gray had been properly medicated, Atkins said. Drugs eased the paranoia and quieted the voices, according to Atkins.
“He wouldn't talk to me the whole time while he was in the hospital,” Atkins said. “The day that he took the medicine, he called me that night.”
But once the doctors stopped forcing him, Gray stopped taking the medicine. He felt fine and believed he didn’t need it, Atkins said.
Refusal to take medicine is common among patients with schizophrenia, according to studies cited on the website MentalIllnessPolicy.org. Experts say many people living with severe mental illnesses don’t believe they are sick.
Without the medication, Atkins said Gray was again muttering to himself, pacing the halls, staring at the sky and talking to his sister in Heaven.
Loved ones believed Gray's behavior was harmless, until the fires.
17 counts of arson
In September 2019, Marion County prosecutors say Gray poured a 556-foot-long trail of gasoline around much of a city block. A firefighter saw him trying to ignite the fuel and Gray ran, according to court documents.
Prosecutors say Gray set a series of fires at buildings on the west side over the next three months. Some had people inside, including a 77-year-old woman who was asleep when a fire started outside her home on South Rybolt Avenue.
Prosecutors charged Gray with 17 counts of arson, all felonies, in December 2019.
For Atkins, the arson case was proof her son was sick and needed help.
“The arson, it does not bother me because my son was not on meds,” Atkins said. “I know my son, the way he was before then.”
Incompetent to stand trial
Marion Superior Court Judge Sheila Carlisle ordered Parker and Forensic Psychologist Stephanie Callaway to evaluate Gray. Both found him incompetent.
Mental health records are kept confidential by the court, but Gray’s mother provided a copy of Parker’s report to WRTV. She did not have a copy of Callaway’s report when asked.
Dr. Parker told the court that Gray was very sick and needed care at an in-patient facility.
Medicine would likely make him well, Parker wrote. But he made clear that it was unlikely Gray would take the medicine willingly.
Parker wrote that Gray should be given an injection of long-acting antipsychotic drugs, the common way that doctors treat patients who refuse to take medicine.
The new program in Marion County is not set up to force people to take medicine, a spokesperson for the state told WRTV.
That’s why, in Parker’s opinion, Gray was a poor candidate for the pilot program.
“He had a long history of not taking medication,” Parker told WRTV. “He had very poor insight into his illness, which is not that unusual in people who have schizophrenia … So, if he's not going to take medication, at least not easily, he's not going to be restored.”
Parker said he believed Gray should start treatment in an in-patient facility that would administer drugs even if Gray refused to take them.
“He wouldn't have been the first person I would have chosen for a community restoration program that's just getting off the ground,” Parker said.
Incompetent defendants can be forced to take medication, said Marion Superior Court Judge Amy M. Jones, but it’s left to the DMHA and the treatment provider to decide if that’s necessary.
Judge Carlisle found Gray incompetent to stand trial on Sept. 9. He was already on house arrest, so the judge kept him there and ordered him to be treated by the DMHA.
More humane and saves money
Marion County has the most incompetent defendants in the state with 61 in 2019. According to DMHA, most remained in jail for an average of three months until a hospital bed opened up.
At the time Gray was found incompetent to stand trial, the only available treatment option for him, and all incompetent defendants in Indiana, was a state hospital.
Most mentally incompetent defendants go to Logansport State Hospital, where patients are locked down as they undergo intensive therapy under 24-hour supervision.
But the DMHA presented another option last fall. It launched a new community-based competency restoration pilot program that would save the state money and get people help more quickly.
Taxpayers spend $800 per day for each person sent to Logansport, the DMHA explained in a presentation to officials in charge of Marion County’s criminal justice system.
The presentation, prepared by DMHA Director Jay Chaudhary and Forensic Treatment Services Clinical Director Kelli Jensen, said treating these defendants in the community would shift the medical costs to the federal government.
“The costs are very minimal for a defendant to stay in the community while receiving competency restoration services as these services can be billed through Medicaid,” Chaudhary and Jensen wrote in the presentation, obtained by WRTV through a Freedom of Information Act request.
Chaudhary and Jensen declined to be interviewed.
The National Alliance on Mental Illness-Indiana endorses the plan because it means some defendants could be restored to mental competence without having to be locked up in a hospital far from home.
“It's more compassionate to the individual,” said Marianne Halbert, NAMI Indiana’s criminal justice director. “If they have to go through that process, let them start that earlier if that's an option.”
For the first time, Indiana would provide mental health services and medication to incompetent defendants somewhere other than a state hospital.
“That’s what it’s always been until this pilot,” Halbert said. “Even though the law provided for other options that was just never done.”
The program would ease the backlog at the state hospital and help resolve court cases more quickly, officials said.
Defendants could be restored to competency without needing the pricey hospital beds. There would be less time wasted waiting for trial and less cost to taxpayers.
Many defendants with mental illnesses are accused of minor crimes, Halbert said. Incarceration, she said, is often not the best option.
“Contrary to popular belief most people with mental illness are not violent,” Halbert said. “A lot of the situations where law enforcement is called to intervene could be diverted to the mental health system. But for those that do end up in the criminal justice system and are found incompetent to stand trial, I think these pilots are very promising.”
'Imperative that we know'
The DMHA is part of the Indiana Family and Social Services Administration, the state agency that administers health care and social services for more than 1.5 million Hoosiers.
In response to WRTV's request for records, the FSSA provided a copy of its contract with Indianapolis-based Adult & Child Health promising to pay up to $810,520 over two years for competency restoration services and medication to treat incompetent defendants in Marion County in the jail and in the community.
The part of the program that treats incompetent inmates in the jail has not yet launched, FSSA spokesperson Marni Lemons said.
Gray was already free on bond awaiting a hospital bed when the DMHA notified Judge Carlisle they were placing him in the community-based restoration program, according to court records.
Carlisle declined to comment. Judge Amy Jones, the presiding judge of the Marion Superior Courts, said Carlisle had no choice as to where Gray would be treated.
“I don’t know what they looked at to consider him as a good candidate, I really don’t and that’s what is lacking,” Jones said.
According to documents FSSA provided to WRTV, the program calls for a clinically licensed professional with Adult and Child to provide treatment reports to the court every month.
Records show no one from Adult and Child Health or DMHA updated the court on Gray’s treatment after he was placed in the program on Jan. 13. Gray spent one month on the program before he was shot and hospitalized on Feb. 12. Additionally, records show no treatment report was filed before he died on Feb. 21.
Jones said the DMHA should more regularly tell judges how defendants in the restoration program are doing, especially if they refuse to take medicine or comply with their doctor’s orders.
“The judges, it's imperative that we know what they're going to be involved with, that we know what resources will be offered and available to them, so that we can make informed decisions about whether or not this is a good candidate,” Jones said.
What's next for the program
Jones said one other defendant besides Gray was in the community-based restoration program. The DMHA recently decided to move that defendant to Logansport State Hospital, she said. Jones said she knows of no other defendants in the program and doesn't know if any new defendants have been selected.
“At this point, they [the county courts and DMHA] aren’t looking to bring anyone else in the program,” Jones said.
Allen Brown, CEO of Adult & Child Health, declined to comment on Gray’s case citing patient confidentiality laws.
The pilot program, Brown said, is still in development.
“At this point, we’re going to work closely with DMHA,” Brown said in a short phone interview with WRTV. “There’s a tremendous need for mental health services for these populations.”
Lemons, the FSSA spokesperson, would not comment on Gray’s treatment citing confidentiality laws, declined to tell WRTV how many people were in the program and declined to let WRTV interview Chaudhary, Jensen or anyone else about the program.
WRTV asked how many people were in the program to date and if anyone is currently in the program. Lemons declined to answer.
“We continue to have ongoing, collaborative discussions with all stakeholders,” Lemons said via email in response to WRTV’s written questions. “These programs are pilot programs that FSSA launched to help provide additional options in restoring competency.
“Our goal is to continue these pilot programs.”
The death of De’Aire Gray
Speedway police were investigating complaints of a man living in a vehicle and defecating in a parking lot when they saw Gray climb into the car on Feb. 12 in the 5900 block of West 25th Street.
Gray wasn’t homeless. According to his mother, his belongings were in the car because he had recently moved into his mother’s apartment. There was no room in the apartment for his things.
The car was parked about 15 feet from the apartment door.
Police tried to speak with Gray, according to a probable cause affidavit, but he ran away.
Police chased Gray for about a block, when they say Gray displayed a weapon.
Officer Robby Harris shot Gray twice. Gray died nine days later on Feb. 21.
Related: Family of man killed by Speedway police wants body camera video released
It’s unclear if officers at the scene knew Gray had a mental illness. Special Prosecutor Chris Gaal and Indiana State Police detectives are investigating.
Last month, Atkins and her lawyers called on Speedway police and Gaal to publicly release the body camera video of the shooting. They have declined WRTV’s request for the footage because the incident is still under investigation.
Jones said she wants the DMHA to review the program and give judges more information about the treatment program.
“If you are going to do something that's less restrictive, that’s a community-based program, the judge has to be informed and on board,” Jones said.
Jones said the court doesn’t know what kind of treatment Gray received because DMHA never provided an update. DMHA and FSSA declined to answer specific questions about Gray.
“My hope is that the community-based treatment provider did do those things and followed through and made those attempts [to get treatment and medicine to Gray],” Jones said. “Unfortunately, I just don't know.”
Contact WRTV reporter Vic Ryckaert at victor.ryckaert@wrtv.com or on Twitter: @vicryc.
