Opinion
Case No. 01-149M
December 27, 2001
ORDER
Now before the Court is the United States of America's motion, pursuant to 18 U.S.C. § 4241, for a hearing to determine Defendant's mental competency to stand trial. [Doc. No. 4]. The Court set the motion for hearing and heard argument on December 21, 2001. Defendant was present at the hearing and represented by Julia O'Connell and Paul Brunton with the Federal Public Defender's office in this district. The United States was represented by Assistant United States Attorney, Douglas Horn. The hearing was open to the public and members of the victim's family and members of the press were present.
I. DISCUSSION
The Constitution prohibits a court from trying a defendant who is presently mentally incompetent. Pate v. Robinson, 383 U.S. 375, 378 (1966). The Constitution also requires an adequate hearing to determine the defendant's competence to stand trial. Id.; James v. Singletary, 957 F.2d 1562, 1569-72 (11th Cir. 1992). When deciding whether a criminal defendant is competent to stand trial, a court must determine if the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402 (1960). Congress enacted § § 4241-4247 of Title 18 to provide a procedural mechanism for making determinations of mental competency to stand trial.
"When the United States Attorney has information causing him to have reasonable doubt as to the competency of a criminal defendant he is duty-bound to report it to the court and to request a mental examination." United States v. Varner, 467 F.2d 659, 661 (5th Cir. 1972). For this reason, 18 U.S.C. § 4241 (a) permits the attorney for the government to file "a motion for a hearing to determine the mental competency of the defendant." In this case, Mr. Horn, the Assistant United States Attorney prosecuting Mr. Weed, has concerns about Mr. Weed's present competency. Consequently, Mr. Horn fulfilled his duty to the Court and filed a motion for a hearing to determine Mr. Weed's present mental competency.
The Court is required to grant the government's motion if:
there is reasonable cause to believe that [Mr. Weed] may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.18 U.S.C. § 4241 (a). The Court set the hearing on December 21, 2001 for the sole purpose of determining (1) whether to grant the government's request for a hearing on Mr. Weed's present mental competence (i.e., to make the "reasonable cause" determination required by § 4241(a)); and (2) whether, if a competency hearing were to be held, a psychiatric or psychological examination of Mr. Weed needed to be performed prior to the competency hearing pursuant to § 4241(b). See United States v. McEachern, 465 F.2d 833, 837 (5th Cir. 1972) (holding that, under § 4241's predecessor, a court may set a hearing to determine whether "reasonable cause" exists to believe that the defendant "may" be suffering from a mental disease or defect).
The Fifth Circuit's analysis in McEachern was cited with approval by the Tenth Circuit in United States v. Hill, 526 F.2d 1019, 1023 (10th Cir. 1975).
As an initial matter, the government argued at the December 21st hearing that the Federal Rules of Evidence were not applicable to a determination of its motion. As support, the government referred to Fed.R.Evid. 1101(d)(3), which makes the rules of evidence inapplicable to "preliminary examinations in criminal cases. . . ." The Court does not agree. A review of the entire Rule and the Advisory Committee Notes to that rule make it clear that Rule 1101(d)(3)'s reference to "preliminary examinations" is a reference to the "preliminary examination" contemplated by Fed.R.Crim.P. 5.1. See United States v. Veon, 538 F. Supp. 237, 249 n. 18 (E.D. Ca. 1982); and Wright Gold, Federal Practice and Procedure: Evidence § 8077, p. 626-27 (2000). The Federal Rules of Evidence will, therefore, be in force in connection with the government's request for a hearing to determine Mr. Weed's mental competency to stand trial.
In support of its motion, the government offered at the December 21st hearing a videotape of the Tulsa Police Department's initial interview of Mr. Weed on December 12, 2001 shortly after his arrest for the offense charged in this case. Defendant objected to the admissibility of the tape on two grounds: lack of foundation and relevance. Defendant argued that the tape was irrelevant because the issue now before the Court is whether Defendant is presently suffering from a mental disease or defect, not whether he was suffering from a mental disease or defect on December 12th when he was arrested. The Court finds, however, that a videotape depicting Defendant's mental incompetence seven days ago has at least some "tendency" to make the fact that he is presently incompetent more probable than if that videotape did not exist. Under the standards of Fed.R.Evid. 404, the videotape is, therefore, relevant. The Court also finds that testimony presented by the government from Jeffrey Felton, a Tulsa Ponce Department officer, sufficiently authenticated and established a chain of custody for the videotape under Fed.R.Evid. 901 (b)(1). The Court finds, therefore, that the videotape is admissible in connection with the government's motion requesting that a hearing be set to determine Mr. Weed's mental competency to stand trial.
At the December 21st hearing, the government requested the videotape of Mr. Weed's initial interview be sealed and not displayed in open court. Defense counsel objected to the government's request, arguing that pursuant to the Sixth Amendment to the United States Constitution Defendant was entitled to a public hearing. The Court also raised its concerns with the parties that sealing the videotape might violate the public's (i.e., the family of the victim's and the press') right to access under the First Amendment. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (Press-Enterprise I); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-Enterprise II); United States v. McVeigh, 119 F.3d 806 (10th Cir. 1997); and United States v. McVeigh, 918 F. Supp. 1452 (W.D. Okla. 1996). Because the resolution of the government's motion to seal the videotape implicates important constitutional considerations, the Court took the matter under advisement and ordered additional briefing on the issue.
The government's motion to seal and brief in support are due on or before January 4. 2002. Defendant's response is due on or before January 14, 2002. The government's reply is due on or before January 19, 2002.
Prior to the December 21st hearing, the Court had reviewed the videotape of Mr. Weed's initial interview, the tape having been delivered to the Court by the government as an exhibit to its motion. Unknown to the Court, however, the government did not serve defendant's counsel with a copy of the tape as an exhibit to its motion. In a telephone conference with the parties prior to the December 21st hearing, the Court ordered that the government provide defense counsel with a copy of the videotape prior to the December 21st hearing. Thus, prior to the December 21st hearing, the Court, the government, and defense counsel all had an opportunity to, and did, view the videotape. Immediately prior to the December 21st hearing, the Court also offered defense counsel the opportunity to view the videotape in chambers with their client. Defense counsel did not take the opportunity, preferring instead to stand on their claim that the videotape should be shown in open court. Because all parties had seen the tape prior to the hearing, the Court admitted the videotape at the hearing, without showing it in open court. The videotape is, therefore, in the court file and will be sealed or released for public viewing upon a determination of the government's motion to seal the videotape.
Other than the videotape, the government offered no additional evidence in support of its motion. In response to the videotape, Defendant presented testimony from Curtis Todd Grundy, a psychologist employed by defense counsel to examine Defendant. Dr. Grundy testified that in his opinion Mr. Weed was presently competent to stand trial. Presumably defense counsel presented Mr. Grundy in an attempt o demonstrate that there is no "reasonable cause" to believe that Mr. Weed "may" presently be suffering from a mental disease or defect making him incompetent to stand trial.
At this stage of the proceedings, the government has filed a motion seeking only to have a hearing to determine Mr. Weed's mental competency to stand trial. As discussed above, to obtain such a hearing, the government need not establish by a preponderance of the evidence that Mr. Weed is incompetent to stand trial. Rather, the government need only demonstrate "reasonable cause" under § 4241(a). The Court finds that the government has carried its burden under § 4241(a) of demonstrating that Mr. Weed "may" be suffering from a mental disease or defect which makes him incompetent to stand trial. Mr. Grundy's testimony does not negate this possibility, and his testimony will be weighed at the competency hearing. The Court will, therefore, hold a competency hearing on January 22, 2002 at 9:30 a.m. The hearing will be conducted pursuant to 18 U.S.C. § 4241 (c) and 4247(d). At the hearing, the Court will determine whether a preponderance of the evidence demonstrates that Mr. Weed "is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. . . ." 18 U.S.C. § 4241 (d).
Congress has specifically provided that
[p]rior to the date of the [competency] hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c).18 U.S.C. § 4241 (b). Section 4247(b) provides as follows:
A psychiatric or psychological examination ordered pursuant to this chapter shall be conducted by a licensed or certified psychiatrist or psychologist, or, if the court finds it appropriate, by more than one such examiner. Each examiner shall be designated by the court, except that if the examination is ordered under section 4245 or 4246, upon the request of the defendant an additional examiner may be selected by the defendant. For the purposes of an examination pursuant to an order under section 4241, 4244, or 4245, the court may commit the person to be examined for a reasonable period, but not to exceed thirty days, and under section 4242, 4243, or 4246, for a reasonable period, but not to exceed forty-five days, to the custody of the Attorney General for placement in a suitable facility. Unless impracticable, the psychiatric or psychological examination shall be conducted in the suitable facility closest to the court.18 U.S.C. § 4247 (b) (emphasis added).
With its motion, and at the December 21st hearing, the government invoked § 4241(b) and requested that Defendant be examined by another psychiatrist or psychologist. Defendant objected, arguing that he has already been examined by Dr. Grundy, and that there is no need for an additional examination by another doctor. As quoted above, § 4247(b) specifically provides for an examination by more than one examiner if the Court finds it appropriate. The Court finds that an additional examination is appropriate in this case to balance the opinion offered by Defendant's hand-picked psychologist, and to provide the Court with a sound basis upon which to make a determination at the January 22nd competency hearing.
Pursuant to § 4247(b), the government requested that Defendant be committed to the custody of the Attorney General to be evaluated for 30 days in a federal facility located in Springfield, Missouri. Section 4247(b) provides that the Court "may" commit the Defendant to the custody of the Attorney General. The Court is not, however, required to do so by § 4247(b). See, e.g., In re Newchurch, 807 F.2d 404, 410 (5th Cir. 1986). Section 4247 permits the Court to commit the Defendant to the custody of the Attorney General or to order that the mental status examination be made in some other manner. Id. The legislative history to § 4247(b) specifically contemplates examinations on an outpatient basis absent some need for a commitment to a psychiatric facility. S. Rep. No. 225, 98th Cong, 2d Sess. 234, reprinted in 1984 U.S.C.C.A.N. 3417. The government has made no showing why commitment in this case is required. Defendant may be examined here just as he was when examined by Dr. Grundy.
Section 4247(b) requires that the Court "designate" the examiner. By January 3, 2002, the parties shall each submit a list of at least two examiners, including their qualifications. The Court will review the list and designate an examiner pursuant to § 4247(b).
At the conclusion of the hearing, the government requested that the Court order Dr. Grundy to produce all of his work papers. The government has not, however, provided any basis for the request. The Court finds that, pursuant to § 4247(c), the government is entitled to a copy of a report from Dr. Grundy that complies with the requirements of § 4247(c). On or before January 7, 2002, Defendant shall file with the Court, and serve on the government, a report from Dr. Grundy which complies with 18 U.S.C. § 4247 (c).
CONCLUSION
The government's motion for a hearing to determine the Defendant's mental competency to stand trial is GRANTED. [Doc. No. 4]. A competency hearing is hereby set for 9:30 a.m. on January 22, 2002.
The issue of whether the videotape submitted by the government is to remain under seal is taken under advisement. The government's motion to seal and brief in support are due on or before January 4, 2002. Defendant's response is due on or before January 14, 2002. The government's reply is due on or before January 19, 2002.
Pursuant to 18 U.S.C. § 4241 (b), the Court hereby orders a psychiatric or psychological examination. The Court will not commit Defendant to the custody of the Attorney General for this examination. Rather, the examination will be conducted on an outpatient manner by examining Defendant here. By January 4, 2002. the parties shall each submit a list of at least two examiners, including their qualifications. The Court will review the list and designate an examiner pursuant to § 4247(b).
The Court finds that under 18 U.S.C. § 4241 (b) and 4247(c), the government is entitled to a report from Dr. Grundy. On or before January 7, 2002, Defendant shall file with the Court, and serve on the government, a report from Dr. Grundy which complies with 18 U.S.C. § 4247 (c).
IT IS SO ORDERED this 27 day of December 2001.