The Colorado Supreme Court determined on Monday that a Larimer County judge had no choice but to permit a doctor to give their second opinion on a criminal defendant’s competency to proceed, even though he had received numerous such evaluations in the past.

Justice Carlos A. Samour Jr., in the Jan. 12 decision, noted that once Chief Judge Susan Blanco ordered a fresh competency evaluation, she could not decide to deny the defense a second opinion or characterize the underlying evaluation as unnecessary.

“Although we appreciate the court’s frustration with the number of competency evaluations that have been performed in this case, not to mention the lengthy delays those evaluations have caused,” wrote Samour, “the court could not determine that the defense’s motion for that evaluation should not have been granted and that the defense was therefore not entitled to a second-opinion evaluation.”

Prosecutors charged Austin Rhys McGee with multiple child sex offenses in 2021. The following year, his defense lawyer suggested McGee may not be competent, meaning he did not have a rational and factual understanding of the proceedings or the ability to participate in his defense due to a mental condition. McGee received an evaluation and he was deemed competent to proceed. His lawyer requested a second opinion and a different doctor agreed McGee was competent.

In 2023, a different defense lawyer questioned McGee’s competency again. A third doctor found him competent. After McGee entered a not-guilty plea by reason of insanity, another professional evaluated McGee. He remained competent to proceed, another doctor determined without prompting.

Finally, last May, McGee’s lawyer again suggested he was not competent, citing different grounds than before regarding McGee’s ability to participate in his trial. McGee received another evaluation, during which a physician again rendered an opinion that McGee remained competent.

The defense requested a second opinion, but this time, Blanco declined to grant one. In a June 30 order, she wrote that the motion for an evaluation did not raise any new indicators of McGee’s incompetency.

“This defendant has been found competent four times in the span of three years. This Court has been presented no evidence to support the necessity of a fifth competency evaluation in this matter,” Blanco concluded.

In a subsequent order, Blanco added she had “no concern” about McGee’s competency and “obliged an evaluation merely for the benefit of the Defense.”

“The truth is, Mr. McGee has been clear that he does not want to have the case litigated and has created a multitude of reasons to delay the case from proceeding over the course of the last four years,” she wrote. “Within reason, the Court has allowed more than what would have been necessary to protect Mr. McGee’s rights.”

The defense appealed directly to the Supreme Court. The ACLU of Colorado submitted a supportive brief arguing that the “variable quality” of the state’s competency evaluations makes it important to have a second opinion.

The justices agreed that Blanco was mistaken. Although judges are not required to order competency evaluations if the criteria are not met, wrote Samour, once they do order one, the defense is entitled to a second opinion if they request it.

“It is true that the defense was seeking the fifth competency evaluation in these proceedings,” he continued. But “while we commend the court for its patience throughout this litigation, once the June 2025 competency evaluation was completed, the court had no choice but to grant the defense’s timely motion for a second-opinion evaluation.”

The case is People v. McGee.