No one knows what to do about Russell Ables.
He has lived in a state-run mental health facility in Vinita for more than three years, but the court and the state’s department of mental health say he doesn’t have a mental illness.
The 49-year old has a hard time talking to people, struggles with impulse control and often stares vacantly into space. However, judges and the Oklahoma Department of Human Services have said he’s not developmentally disabled either.
Ables has a traumatic brain injury from a 2013 motorcycle accident. In 2015, a Beckham County judge ruled him incompetent to stand trial for charges that include first-degree burglary and two counts of threatening acts of violence toward his ex-wife’s partner.
Since then, Ables has remained in a state facility — his case in limbo — while the two agencies try to decide what to do with him, arguing in court that neither are responsible for his care.
Ables is stuck in the Vinita hospital, and the hospital is stuck with him.
“They’re not equipped to care for him,” Ables’ sister, Rhonda Herring said. “They don’t know what to do. They’re not professionals on medication for traumatic brain injuries. It’s awful.
“It’s just one of those deals that’s not ever going to go away. And it’s a horrible, sad situation.”
His criminal case has sat in district court for more than four years, at one point making it up to the state’s Supreme Court and the Court of Criminal Appeals before being kicked back down to Beckham County, leaving Ables and his family in the same place as before — with no answers and in a state of uncertainty between two agencies that say they can’t take care of him.
Ables’ case underscores the gaps and challenges in Oklahoma to find placement for people who are deemed violent and incompetent to stand trial and have conditions that fall outside of state agencies’ statutory obligations.
The two agencies contend there are no state-run facilities in Oklahoma that are tailored to care for people with needs such as Ables’. By statute, the state’s department of mental health is only required to treat those with mental illnesses, and DHS only has private facilities it contracts with that have rejected proposals to house him.
The agencies do agree on one thing: Ables is a danger to himself and others, and he will never obtain competency. He needs long-term care in a secure facility. The agencies say there are no options, and the state’s department of mental health has sought to release Ables from its custody.
‘Russell, you’re not competent’
On Oct. 23, 2013, Ables crashed his motorcycle into a ditch while intoxicated. He wasn’t wearing a helmet.
In the aftermath of the accident Ables suffered severe head injuries that included a broken nose and several brain bleeds. When he arrived at the hospital’s emergency room he was placed on a ventilator and spent several weeks in at least two hospitals before he was sent to a rehabilitation center in Oklahoma City.
Doctors quickly found Ables had a brain injury. He had trouble with simple math, recalling words and would become agitated. When that happened he would try to escape, at one point even climbing over a barbed-wire fence after leaving an emergency room, according to medical records filed in his case.
At the time of the crash, Ables had been living with his ex-wife and 13-year old son in Elk City, court records show. He worked in the oil fields and owned 11 rental homes that he remodeled and managed. He and his sister were “extremely close.”
Since then, his personality has completely changed, Herring said. It’s hard for her brother to understand the situation he’s in and he often tells her about his future plans. He says once he’s released from the facility, he’ll buy a travel trailer and get back to work in the oil field.
“But I said, ‘Russell, you’re not competent,’” Herring said. “And I try to explain that to him what that means, and that really makes him angry when I say that because then he thinks that means he’s ‘retarded.’ He uses that word.
“He remembers things from 15 years ago better than he does things the last five years.”
In late 2014, Ables was charged with three counts of violating a protective order, three counts of placing threatening phones calls to his ex-wife’s partner and one count of resisting an officer in Beckham County District Court. Those followed charges of first-degree burglary and two counts of threatening violence Ables had gotten only three months earlier.
Ables was arrested in October 2014 after he broke a protective order by calling his ex-wife’s partner and threatening to kill him, according to a probable cause affidavit. After the crash, Ables’ ex-wife had gotten a protective order against him, too.
The question of whether Ables was competent quickly came up in court.
In April 2015, Beckham County District Judge F. Douglas Haught found Ables incompetent and ordered him into the custody of the Oklahoma Department of Mental Health and Drug Abuse Services. The agency sent him to the Oklahoma Forensic Center in Vinita where he would be treated in an effort to obtain competency.
Oklahoma considers a defendant incompetent when they don’t have the ability to understand the charges and can’t effectively participate in their defense.
Though a forensic evaluator with ODMHSAS will make a recommendation on whether a defendant is incompetent, a judge or jury makes the final decision. If the person is developmentally disabled, DHS may also issue an opinion.
The insanity defense is rarely used. Less than 1 percent of all felony cases raise the issue, and only a quarter of those are successful, according to ODMHSAS data.
The 200-bed forensic center in Vinita, the only facility of its kind in the state, houses people deemed incompetent to stand trial and found not guilty by reason of insanity. ODMHSAS officials say the center provides treatment similar to a mental health hospital.
Herring said she thinks employees at the forensic center are doing their best to treat Ables, but they’re not equipped to care for him. She’s in the process of selling off his 11 rental properties in Elk City in an effort to make him eligible for more assistance. Any profit will go toward his care, she said.
The issue of finding Ables placement has been made more difficult because he does not have a guardian or health insurance.
Herring said she’s been asked to take guardianship of her brother several times, but she fears she couldn’t handle him. He has become violent and inappropriate, and Herring works full time and has two kids.
“I just can’t do it,” she said. “It’s a 24-hour care because if you’re not watching every move he makes, well just for starters he doesn’t remember anything because of the brain injury. So he might remember what you said right now, but he doesn’t remember tomorrow.”
“Like he’ll say, ‘Oh I haven’t talked to you in about three weeks.’ And I’m like, ‘No, I talked to you almost every day.’ But he doesn’t remember.”
Ables has remained at the Vinita facility since 2015, and the mental health agency has argued several times in court that he doesn’t belong in its care because he doesn’t have a mental illness. Attorneys for DHS have said they have no facilities to place Ables and he isn’t considered a vulnerable adult or developmentally disabled anyway.
ODMHSAS has also argued that by law, it can only treat Ables in an effort to obtain competency for up to two years.
The agency asked the state Supreme Court in August 2017 to discharge Ables from the agency’s custody and place him in a more appropriate facility. He cannot be released from the facility without a judge’s permission, and Haught maintains that, at least for now, the agency is the best place for him.
“Russell Don Ables is not mentally ill,” the agency’s petition stated. “Nevertheless, he was unlawfully placed in the custody of the Oklahoma Department of Mental Health and Substance Abuse Services by The Honorable F. Douglas Haught, District Judge of Beckham County.”
In response, an attorney for Haught noted Ables’ situation appears to be the first of its kind in the state, and that because all parties agree the man is dangerous, he must be secured in a facility.
The response said the Legislature never meant for the law to be interpreted in a way that would leave an Oklahoma citizen “found to be factually dangerous and in need of secured mental health treatment would be cast out on the streets to fend for himself and place the public in peril.”
The case highlights a loophole in Oklahoma law, the attorney wrote, that gives a district judge authority to place someone who is incompetent, but offers no guidance as to which agency to put them, no funding for their care and lists no facilities that would take them.
“What was Judge Haught to do about this quagmire,” the attorney wrote. “Ables cannot be held to his felony charges, yet he cannot be committed to ODMHSAS custody for treatment and care, and yet as the parties have agreed, he is extremely dangerous and cannot live independently.”
The Supreme Court passed the issue to the state’s Court of Criminal Appeals, in part because Ables’ charges have still not been dismissed, and it agreed with Haught. In an order in June, the court noted the state agencies had abandoned their duties to find placement for Ables.
The case would be turned back to district court, and the agencies’ efforts to find placement for Ables are still at an impasse. His case is again set for review in December.
‘No one wants him’
Rick Yohn is an attorney with the Oklahoma Indigent Defense System who represents Ables. He said because Ables doesn’t necessarily fall into the category of being mentally ill or developmentally disabled, neither agency will claim him.
“DHS doesn’t want him because of their budget cuts,” Yohn said. “That’s primarily the reason no one wants him, because they’re low on funds. That’s why no one wants him.”
Though DHS is mandated to provide services to vulnerable adults, Haught agreed with DHS that Ables doesn’t meet that definition.
The search to find a facility to care for someone with Ables’ needs is getting harder, and the Legislature has done nothing to address the problem, Yohn said.
Haught, the judge overlooking Ables’ case, will retire in January and a new judge will take over. Ables cannot be released until a judge gives permission, and that won’t happen until an agency finds him proper placement.
Yohn, who has practiced law for 25 years, said he has never seen anything quite like it. Cases that involve competency are rarely as complicated as Ables’ and are usually settled quickly in district court.
The case is so unusual, Yohn said he couldn’t find a similar case anywhere in Oklahoma, including in surrounding states within the Tenth Circuit Court of Appeals.
“It’s going to be a definite quagmire to get through,” he said.
DHS spokeswoman Debra Martin said in an email the agency is working with ODMHSAS to find a solution
“DHS does oversee privately-operated adult group homes, but they are designed for people with developmental disabilities and Mr. Ables does not have a diagnosed disability,” she said. “It’s possible that a brain injury facility would accept a person in this kind of circumstance or a relative may step forward and seek guardianship through the court.”
What’s going to happen to him?
“We don’t know,” Yohn said. “It’s such an unusual circumstance and an unusual situation.”