Two years ago, a homeless man named David Thompson was beaten in the head with a rock as he slept.

The man charged with Thompson's murder, Justin Matthew Michels, has been in custody since then, but has yet to face trial.

Michels has three times been found incompetent to assist in his own defense by a court-appointed psychiatrist who evaluated him in the Roanoke City Jail. Last week, he was returned to Central State Hospital in Petersburg. Staff there have previously concluded Michels is faking symptoms of mental illness.

Competency refers to a defendant's ability to understand trial procedures and assist attorneys in a defense. Until Michels can be declared competent again, the case will remain on hold.

"When you're found incompetent to stand trial, you kind of move into this limbo," said Thomas Hafemeister, an associate professor at the University of Virginia School of Law. The legal proceedings are put on pause until the defendant is declared competent again. "In some cases that could be the rest of your life."

A second Roanoke murder case potentially entered that same limbo this week. Reginald Killingsworth, charged with capital murder in the November shooting of a Melrose Avenue shopkeeper, was found incompetent to stand trial by the same psychiatrist, Dr. Conrad Daum of Salem. Monday, a judge ordered Killingsworth transported to Central State with the goal of restoring him to competency.

In both the Michels and Killingsworth cases, questions have been raised as to whether the defendants could be faking their symptoms.

There's a misconception that faking mental illness, or malingering, is a way for defendants to get themselves freed, Hafemeister said. "You don't just walk away. You stay in the system."

Friday, Killingsworth remained in the Roanoke City Jail. A prisoner can't be transported to Central State until a bed becomes available.

The forensic hospital serves every jail in the state and is often full, said Director Charles Davis. "We're always struggling against some degree of waiting list."

"There's a lot of competition for those few beds at Central," Hafemeister said.

Caught in the system

It's too soon to know whether the Killingsworth case will undergo the number of delays that have happened in the Michels case. Killingsworth's trial in the slaying of Zaid Almajali remains on schedule.

Michels, on the other hand, has spent two years shuttling back and forth between the jail and the hospital, and his evaluators have filed conflicting reports about his mental condition.

"It's frustrating," said Assistant Roanoke Public Defender Roger Dalton, Michels' defense attorney. "He certainly got caught up in the system."

Michels was arrested July 15, 2005, on a malicious wounding charge, accused of beating David Lee Thompson in the head with a concrete block under a canopy along the David R. and Susan S. Goode Railwalk on Norfolk Avenue. Nine days later, Thompson died from his injuries.

On Aug. 1, 2005, a Roanoke grand jury indicted Michels on a charge of first-degree murder.

In November 2005, Daum found Michels incompetent to stand trial. According to court documents, his behavior included pretending to hang himself with toilet paper.

He was sent to Central State Hospital, where the staff concluded Michels was malingering.

Dr. Dennis Petrocelli found Michels to be intelligent, "without any signs or symptoms of mental illness."

But in April 2006, Dalton asked again for Michels to be evaluated. Daum found Michels uncooperative.

"He sat perched with his knees to his chest looking out the window with a towel over his head," and would not acknowledge Daum, the psychiatrist wrote.

Michels later refused to come to a July 2006 court hearing where Judge Clifford Weckstein again ordered him sent to Central State.

In October, the hospital again declared Michels competent, but his return to jail wasn't simple.

Weckstein addressed concerns of the jail staff in an Oct. 31 letter to the hospital. "I'm told that, when they delivered Mr. Michels to Central State, he walked in under his own power. I am also told that, when the deputies were asked to take custody of Mr. Michels to bring him back from Central State, he was in a wheelchair, his head was canted to one side, and he was drooling from the corner of his mouth."

Petrocelli replied that Michels "has deftly managed to present himself as catatonic as possible without jeopardizing his health."

Michels returned to jail, but was again found incompetent in February. He told Daum he didn't have an attorney and didn't understand what his charges were, according to documents.

Last week, Michels returned to Central State.

Usually, hospital staff agree with court-appointed psychiatrists when someone has been found incompetent, Davis said.

But in a hospital setting, where a patient can be observed 24 hours a day, it's easier to tell if someone is faking. If, for example, a supposedly incompetent person is playing winning poker hands and flirting with the opposite sex, chances are they're malingering, Davis said.

There's another scenario that comes into play, sometimes referred to as "bus therapy," in which people found incompetent in jail genuinely are improved when they arrive at the hospital, said Hafemeister.

"Just getting out of the jail environment can have very beneficial effects," Hafemeister said. Jail can be the worst place for someone with a mental illness to be. "It may be the jail setting that is causing the dysfunction."

'A moving target'

While competency issues come up frequently in criminal cases, it's rare for a defendant to be found incompetent. And even in those cases, about 90 percent are usually restored to competency, Hafemeister said.

But for those who aren't, the question becomes, how long can they be held in the hospital?

The U.S. Supreme Court ruled in 1972 that a defendant cannot be kept indefinitely in a mental institution based solely on inability to stand trial. The court said defendants cannot be held more than "a reasonable period of time" but did not define what that time period should be.

Under Virginia law, someone charged with a misdemeanor who is found incompetent cannot be held longer than a year. In felony cases, hospitalization can't last longer than five years, though in a capital murder case, the defendant can be held indefinitely.

If someone cannot be restored to competency, the state has several options. The person could be released, or he could be formally civilly committed to a mental institution for treatment.

The person could be certified as legally insane and become a ward of the state. Or, if the person is charged with a sex crime, the state can seek to have him committed to an institution as a sexually violent predator.

In a capital case such as Killingsworth's, where the death penalty is a possibility, competency technically should have no effect on the outcome of the trial. But if the accused has a history of mental illness, it will certainly become part of the defense's argument, Hafemeister said.

Weckstein's latest order in the Michels case asks Central State staff to notify him of whether they believe Michels should be released, committed or certified, whether he can be restored, and whether doctors still believe he is faking his symptoms. It's not certain whether the case will stay in the same pattern or finally move forward.

"If someone is not competent to stand trial, there's nothing we can really do about it," said Assistant Roanoke Commonwealth's Attorney Andrew Stephens, the prosecutor in the Michels case. "Competency is a moving target."