Opinion
No. 4:05CR353-SNL.
December 21, 2007
MEMORANDUM OPINION
Defendant Watkins Loving Care Home Health Agency has been dismissed by the government. Sharon Ann Johnson and Earlean Bessie Hopson have entered pleas of guilty pursuant to plea bargaining agreements, and both await sentencing.
The competency of defendant Jacqueline Hayes (Hayes) has been placed at issue. This concern was first expressed March 30, 2007 when the plaintiff requested Hayes to submit to a psychiatric examination. The motion was filed because of an evaluation of Hayes by Gitry Heydebrand, Ph.D., Department of Psychiatry, Washington University in St. Louis, who, after examining Hayes on March 14, 2007 determined that she was not competent, at that time, to understand the charges against her and participate in her defense due to prominent symptoms of auditory hallucinations, thought disorganization and delusions. Dr. Heydebrand suggested that if Hayes responds to treatment, she may become psychiatrically stable.
After an April 5, 2007 hearing, the Court determined that Hayes was not able to proceed with trial set April 9, 2007 and ordered Hayes committed to the custody of the Attorney General. The Court directed that Hayes be hospitalized in a suitable facility and receive treatment to the extent that she might attain the capacity to permit the trial to proceed.
The case was removed from the trial docket pending the hospitalization of Hayes. Other defendants had no objection to the removal of the case from the trial docket.
Donald T. Cross, Ph.D. in clinical psychology, also submitted a report at the April 5, 2007 hearing in which he, too, found that Hayes was not competent to assist in her defense as a consequence of her impaired intellectual functioning and her current mental status.
The Court then received a report of August 31, 2007 from the Warden of the Federal Medical Center at Carswell, Texas, to which was attached forensic evaluation and certificate of recovery. The Warden in the letter to the Court stated, "In accordance with your Order of April 6, 2007, and pursuant to the provisions of Title 18, United States Code, Section 4241(d), Ms. Hayes has been evaluated at the Federal Medical Center, Carswell. In the opinion of our clinical staff, Ms. Hayes has not been forthright in her presentation, nor has she been open to being educated about the Court process. Based on behavioral observation, we conclude that Ms. Hayes has been feigning severe mental illness, when convenient, for many years. In our professional opinion, Ms. Hayes is not suffering from a mental disease or defect which renders her unable to understand the nature and consequences of the proceedings against her or to assist properly in her defense."
At the conference with all counsel on September 12, 2007 the case was set for jury trial for December 3, 2007. Hayes was allowed to return from Texas to St. Louis, Missouri with the assistance of family subject to any pretrial detention motions that might be filed. Hayes was ultimately allowed to remain on her bond, subject to living in a halfway house as directed by Pretrial Services.
Following further examination of Hayes by St. Louis clinical psychologists and psychiatrists, the Court set a competency hearing for November 13, 2007. At that hearing, substantial live testimony was received as well as exhibits and because of the volume of the exhibits and the need to analyze all of the evidence presented, the Court determined that the case, when set for trial on December 3, 2007, could not proceed. Accordingly, pending the Court's ruling on the competency hearing the case was reset for trial January 28, 2008. This resetting was accomplished with the consent of all counsel.
In the resetting order of November 16, 2007 the Court determined that the ends of justice served by resetting the case to January 28, 2008 outweighed the best interests of the public, and all defendants, in a speedy trial.
In a competency hearing the standard of proof requires that a defendant must prove incompetence by a preponderance of the evidence. 18 U.S.C. § 4241, Cooper v. Oklahoma, 517 U.S. 348, 116 S. Ct. 1373, 134 L.Ed.2d 498 (1996), U.S. v. Denton, 434 F.3d 1104, 1112 (8th Cir. 2006).
"To be competent to stand trial a defendant must have, at the time of his trial, `sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and a `rational as well as factual understanding of the proceedings against him.'"U.S. v. Shan Wei Yu, 484 F.3d 979, 984 (8th Cir. 2007). See also U.S. v. Martinez, 446 F.3d 878, 881 (8th Cir. 2006), U.S. v. Jimenez-Villasenor, 270 F.3d 554, 559 (8th Cir. 2001).
In determining a defendant's competency, the district court may consider numerous factors including expert medical opinions and the Court's observation of the defendant's demeanor. Martinez at 881, Denton at 1112. When there are competing competency opinions given by qualified experts, the district court may rely on one of the opinions. Martinez at 882. Not every manifestation of mental illness demonstrates incompetence to stand trial. Jimenez-Villasenor at 559.
Analysis
At the hearing on November 13, 2007, James A. Shadduck, Ph.D., a forensic psychologist testified for the government. Shadduck, Robert E. Gregg, Ph.D., a psychologist and Susan E. Rudolph, M.A., a psychology intern all signed the forensic evaluation as to Hayes, dated August 25, 2007. This evaluation was attached to the Warden's notice of August 31, 2007 referred to earlier.
Hilary Klein, M.D., Professor of Psychiatry at St. Louis University first testified for Hayes and her three-page analysis dated October 22, 2007 is listed as defendant's deposition I.
Donald P. Cross, Ph.D. (a clinical psychologist), currently with the Headstart Program in St. Louis as a mental health consultant, also testified for Hayes. His resume is listed as exhibit J and the Court also received his evaluations of Hayes marked defendant's exhibit K, L and M. Exhibit K shows Dr. Cross examined Hayes on November 8, 2006 and November 10, 2006. Hayes was interviewed January 4, and March 23, 2007. Exhibit L was a follow-up two-page letter of those evaluations addressed to Cathy DiTraglia, Hayes' attorney. Defendant's Exhibit M is Dr. Cross' mental status examination of defendant on October 19, 2007.
Ronald Davis, an investigator with the Federal Public Defender's Office for the Eastern District of Missouri was Hayes' final witness. He identified numerous photos of defendant's home including the interior shown as Exhibit N.
A general evaluation of the witnesses and the exhibits suggest that Hayes has feigned severe mental illness for many years and is not suffering from a mental disease or defect which renders her unable to understand the nature and consequences of the proceedings against her, or to assist properly in her defense. The witnesses and exhibits for Hayes conclude that she is schizoaffective, bipolar type and is not capable of knowing and appreciating the nature, quality or wrongfulness of her conduct and is unable to assist in her defense.
On behalf of the government, following the Court's order of April 5, 2007, directing that Hayes be committed to the custody of the Attorney General to be hospitalized and receive treatment, Hayes was, in fact, sent to the Federal Medical Center at Carswell, Texas shortly after April 5, 2007. She remained there, being treated, until September 10, 2007 when she was released to return to St. Louis pending further developments in the trial.
Dr. Shadduck testified that on arriving at Carswell, Hayes first met with a psychiatrist for the purpose of resolving medication needed and orienting Hayes to the team-concept, the court process, the function of Hayes' counsel and a variety of other attempts to rehabilitation. A variety of personnel at Carswell were involved in this indoctrination. Shadduck stated that he worked with Hayes on a daily basis and later she was assigned to a restoration group. He stated that Hayes did not respond well to this technique. In addition, various tests were administered. Exhibit 3 was a validity indicator profile, non-verbal and verbal sub-tests, and the summary suggested that Hayes past performance should be considered invalid. Her performance characteristics indicated that she intentionally chose incorrect answers for at least some of the items on both tests. The conclusion was that Hayes had a compelling reason to feign disability on tests of reasoning and comprehension and on tests of word knowledge or reading skill.
Exhibit 4, CAST-MR, was a competency assessment for standing trial. Hayes scored 4 out of 25 for basic legal concepts, 3 out of 15 for skills to assist defense and 2 out of 10 for understanding case events or a total score of 9 out of 50. Shadduck suggests this is the result of someone who is mentally retarded or who is feigning. Exhibit 5 is a structured interview of reported symptoms (SIRS). Shadduck felt Hayes' scores here showed that she was feigning her symptoms.
The relation of Carswell staff to Hayes and observations was mixed. Sometimes Hayes was cooperative and sometimes she did not work well with group therapy. In some therapy sessions, Hayes' symptoms appeared severe yet other staff observations showed normalcy.
Exhibit 6 which was a monitoring of telephone calls Hayes was allowed to make, also produced mixed results. On some occasions, she appeared quite lucid and understanding of the entire conversation with the party on the other end of the line. Other times, she appeared to hallucinate suggesting that the FBI was persecuting her and spirits could help her in court.
Hayes was allowed virtually complete freedom at the institution at Carswell. She could go from place to place and was able to do so and seemed oriented as to what was happening. On some of the telephone calls and conversations with staff, Hayes would indicate that "Cathy" was her lawyer and there to help her. On other occasions, she would appear hesitate about Cathy's role. At times, she would state that "Cathy is working with them." At other times, she would indicate a need to consult with Cathy who was helping her. On occasion, she would appear nervous and anxious and on other occasions, more calm and collected.
Shadduck basically opines that defendant is malingering to avoid prosecution, and while he is aware of the position of other examining doctors and clinical psychologists, he feels that his extended period of examination renders him more qualified to give a better analysis.
Dr. Hilary Klein is a board-certified psychiatrist who first saw Hayes October 22, 2007 in the emergency department at St. Louis University Hospital. She was agitated and confused and was apparently having bad side-effects to prolixin which had been administered as an anti-psychotic medication. She immediately changed the medication. Hayes appeared unkempt and dressed in layers of sleep clothing. She reported auditory hallucinations and has a disorganized thought process. She did not know the function of a judge or jury, but that her lawyer "is helping me." The doctor felt Hayes was not competent at the time, and suggested that she was not malingering in any manner.
After the initial interview, the doctor talked with Hayes one hour later and Hayes indicated she had come from a halfway house. She was aware that she had an approaching legal hearing, but was disorganized. She was unsure what the roles of the court players were except that Cathy "was on her side and no one else was."
The doctor was not aware of tests previously administered by other doctors or psychiatrists, but from her observation those results would not have changed her opinion.
Hayes did indicate her concern about her legal problems and stated that she had been in the health care business and had paid a lot of money to settle a problem. She appeared confused about the legal process and the position she was currently in. The doctor felt Hayes had a mental illness and that she was not competent. Nonetheless, she agreed that the fact that she has a mental illness, in and of itself, does not render her incompetent. The doctor did state that on occasion an experienced person can be fooled but she did not feel there was anything that could change her conclusion in this situation.
Dr. Cross testified as a clinical psychologist who had been practicing for 31 years. He owns a 20-bed facility and practices his profession in Missouri and Illinois. He teaches at Forest Park Community College in St. Louis. At the request of Hayes' counsel, he examined Hayes November 8th and November 10, 2006 and January 4th and March 23, 2007. He last examined Hayes on October 19, 2007.
He used as part of his evaluation, the records of all of those who had previously evaluated Hayes together with her background records, such as social security and public school records, and the St. Charles County Jail records. Throughout, Hayes was difficult to interview, disorganized and generally confused. Her psycho-motor test was not responsive and her verbal IQ was 81. Her reading level was fourth grade and spelling level was fifth grade, and she functioned at a low average. He felt she was schizophrenic and unable to understand what was happening, or to assist in her legal defense.
She does have some periods of lucidity, but at other times remains defensive and uncertain. She does not have a rational understanding of her case and has difficulty consulting and having meaningful discussions with her lawyer.
Medication can assist her, but it is conceivable she could be a chronic schizophrenic and therefore would have problems staying on medication. He did discuss defendant's evaluation of her business, but believes she was as confused about the business as her own general situation.
Ronald Davis accompanied Hayes' attorney to Hayes' home on November 2, 2007 for the purpose of retrieving records. They searched four rooms in the basement in an attempt to find employment documents but were unable to do so. A search was made of a suitcase hoping to find some documents that could prove Hayes innocent of the charges against her, but none were found. Exhibit N was photos of some of the area in the basement which were searched and they showed a substantial amount of disarray of the contents of the basement.
There was no dispute that Hayes has had a difficult background. Hayes is a 53 year-old female, the oldest of 10 siblings. Her parents fought and her grandmother would beat her. She did not adjust well in school both socially and academically and was in special education classes. She did not complete the twelfth grade and does not have a GED. She drew benefits for an alleged mental health disability from 1991 to 2002. Her mother had a home health care agency which she ultimately took over. She married at the age of 15 and has had four subsequent marriages. She has five children by two fathers, but does not live with her most recent husband. As stated, it appears that she has a moderate to moderately low IQ and poor verbal and communication skills. Hayes has also had a history of drug abuse.
As suggested, Hayes is charged in each of the 22 counts in the superceding indictment. The general charges are that Hayes was the owner/director and President of defendant Complete Care. Defendant and the entity defendants provided services to elderly and disabled clients in their homes. The superceding indictment alleges that from 1999 through 2005, Hayes and the other defendants defrauded the Missouri Medicaid Program and others by fraudulently submitting claims for services that were not provided or that were provided by unqualified or unauthorized persons; that false or fictitious documents were used to receive payment for health care benefits not provided; that nursing services to clients were presented for payment when the services had not been provided and that documents presenting the claims had been forged; that various required payroll taxes for employees were not withheld or paid nor were forms 941 properly filed for various years and that federal income taxes were not paid to the Internal Revenue Service for numerous quarters.
Two of the defendants, as previously stated, have entered pleas of guilty pursuant to plea bargaining agreements and have not been sentenced. The stipulation of facts which those defendants have agreed to are detrimental to Hayes and whatever legal defenses she may utilize.
The competency hearing began at 9:10 a.m. on November 13, 2007. A fifteen minute recess was taken in the middle of the morning and a short hour was taken for lunch. Another fifteen minute recess was taken in the middle of the afternoon, and the hearing adjourned at 7:00 p.m.
Hayes was present throughout the entire hearing. She sat at counsel table and throughout the proceedings appeared to the Court to confer with her attorney Caterina M. DiTraglia and Ronald Davis, the investigator for the Federal Public Defender. The Court could see Hayes having conversation with her attorney or Davis. Hayes was properly dressed and her demeanor appeared to be calm and at no time did the Court ever observe any unusual facial or other demonstrative expression on the part of Hayes during the hearing. This appeared remarkable in light of the very candid comments about Hayes' condition from the various witnesses.
Although the foregoing resume is only a brief analysis of the testimony of the witnesses at the hearing, together with all of the exhibits, the Court believes that the preponderance of the evidence suggests that Hayes is either feigning her symptoms or malingering, or both. Accordingly, the Court believes that Hayes is competent to understand the nature of the proceedings brought against her and to proceed to trial, and is competent to assist her counsel in her defense.
There are several reasons for the Court's conclusion. The first is that Dr. Shadduck and his staff had over four months to analyze tests, observe and treat Hayes. Dr. Klein saw Hayes for a period of perhaps one to three hours. There were two visits on the same day interrupted perhaps by an hour or two. Dr. Cross examined Hayes November 8th and November 10, 2006 and January 4th and March 23rd and again on October 19, 2007. In assessing Hayes' problem, Dr. Klein used only her own observation and conversation with Hayes. On the other hand, Dr. Cross as a clinical psychologist performed a variety of tests on the various occasions he saw and examined Hayes.
Dr. Shadduck indicated that he saw and examined and conversed with Hayes almost every day when she was under observation at the Federal Medical Center, Carswell. Numerous members of his staff routinely observed Hayes and performed a variety of tests on different occasions. While at the Federal Medical Center she was sufficiently oriented to be granted privileges throughout the compound. She was self-sufficient and although on occasions appeared to be nervous or anxious, or perhaps somewhat confused, it did not prevent her from exercising her daily functions and being reasonably self-sufficient. This period of four months, or more, examination, testing, observation and treatment lends credibility of the ultimate conclusion of the staff at the Federal Medical Center, Carswell.
The Court feels that Dr. Klein and Dr. Cross are very capable people, and does not in this opinion fault their conclusions in any way other than to feel that the staff at the Federal Medical Center presents a more credible position.
Secondly, as stated in this analysis, the Court had an opportunity from 9:00 a.m. until 7:00 p.m. on the date of the hearing to observe Hayes. The witnesses talked about her in her presence in a way that conceivably could produce a response. Nonetheless, throughout this entire time Hayes appeared calm, collected and understanding of the hearing. She was able to communicate with her attorney during the hearing and the investigator for her attorney. She was neatly dressed and appeared unaffected by the entire proceeding.
Third, the Court has taken the pleas of two co-defendants in this case, and has gone over carefully with those defendants a factual basis for their pleas. While the plea agreements of these two defendants are under seal, the statements of those two defendants heavily implicate Hayes as a leader and organizer of the nursing home fraudulent scheme that resulted in the 22-count indictment against Hayes. Even if only some of the factual statement of those two defendants is correct, this Court is hard-pressed to determine that a person could be the leader and organizer of such a fraudulent scheme and yet schizophrenic and incompetent at the time. This observation is only one of the factors in the Court's ultimate decision in determining the competency of Hayes.
Fourth, even if the Court were to determine that Hayes is schizophrenic or paranoid, or suffered from a mental illness, all of the witnesses suggest that this, in and of itself, would not prevent a person from being competent and able to understand the nature and consequences of the proceeding and be able to assist counsel in a defense. In particular, Dr. Klein on cross-examination, stated that a mental illness does not, in and of itself, render a person incompetent.
There is authority for the Court's decision. In United States v. Martinez, 446 F.3d at 882 the district court was faced with making a decision when there were different opinions by the experts as to competency. The district court gave great weight to the testimony of one expert in making a competency decision. On appeal, the Court held "The district court's reliance on one of two competing competency opinions given by qualified experts was not clearly erroneous. Martinez at 882. In addition, in Martinez the Court relied to some extent on its own observations of the defendant. The district court found that the defendant's attempts to portray herself as incompetent were part of her "continuing pattern of dishonest and deceitful behavior in order to avoid a prison sentence." Martinez at 882.
Conclusion
This Court determines therefore that Hayes is competent as she possesses a sufficient present ability to consult with her lawyer with a reasonable degree of rational understanding and has a rational, as well as factual understanding of the proceedings.