Judge Dale Hahn decided yesterday that Marvin Patrick Sullivan, 47, has shown enough change in his mental state that a new evaluation is required. And, although he declined to reach a decision, Hahn is also weighing the option of mandating Sullivan take his anti-psychotic medication while the new determination is made — a first in California.

“I don’t see how anybody reviewing this record could say that there was not a substantial question about the defendant's competency,” said Judge Dale Hahn of Marvin Patrick Sullivan.

Prosecutor Steve Wagstaffe argued that Sullivan’s demeanor and lack of cooperation is no different than it has ever been, but Hahn agreed with defense attorney Vince O’Malley that is to a larger extreme.

Over four years have passed since Sullivan allegedly shot Millbrae police officer David Chetcuti to death and attempted to kill San Bruno officer Seann Graham. Those years have been punctuated by multiple reviews of Sullivan’s competency and both sides agree he is a documented paranoid schizophrenic. Sullivan, though, was declared fit to stand trial in September and an October trial date was set.

Yesterday, Hahn suspended all criminal proceedings until either doctor reports or a jury trial decides if Sullivan is now fit but agreed to keep the trial date in place. Two doctors and a jury competency trial date will be set this afternoon.

Outside the courtroom, Wagstaffe said if the doctors believe Sullivan is incompetent he will review their reports to decide whether to push for a jury competency hearing. Wagstaffe said he is also hopeful about his motion to compel medication.

“A step has been taken. And that has never been done in the state of California,” he said.

State law only allows for somebody to be forcefully medicated in a hospital setting. Hahn said he needed more information before ruling if that action can be forced while Sullivan is in jail.

O’Malley said Sullivan has been uncooperative with all but one doctor and refuses to take his medicine while in jail because it is a different color than those given to him in Napa State Hospital. He maintained that Sullivan’s refusal makes the possibility of a defense nearly impossible.

“We cannot proceed to trial with a client who by virtue of his mental illness cannot communicate with us,” O’Malley said

Wagstaffe countered that Sullivan is making rational decisions not to take the medicine and to not cooperate with his attorneys. Wagstaffe again pushed for Sullivan to be mandated to take his medicine in order to keep his competency in tact rather than create a cycle of hospital and jail stays.

“This will create a merry-go-round that insures he will never go to trial,” Wagstaffe said.

Sullivan was arrested in April 1998 after a routine traffic stop went awry. Graham pulled Sullivan over for expired tags on his car but he came out shooting an automatic assault rifle. Graham ducked for cover in a ditch and called for back up. Chetcuti responded and was hit 13 times.

Sullivan refused to enter any plea on his behalf, so the San Mateo County Grand Jury indicted him on charges of murder, attempted murder and firearms possession last November.