Opinion
C.A. No. 1808013518
08-07-2019
STATE OF DELAWARE, Plaintiff, v. JOSHUA STEPHENSON, Defendant.
cc: Samuel B. Kenney, Esquire, Deputy Attorney General Kevin P. Tray, Esquire
Supreme Court No. 88, 2019 ORDER
By Order dated June 20, 2019, the Delaware Supreme Court remanded this case to Superior Court for an evidentiary hearing concerning Defendant's competency and his request to proceed pro se. As directed, this Court held an evidentiary hearing on July 29, 2019. The Court attempted to question the Defendant pursuant to the Watson v. State factors, as enumerated in the Supreme Court's Order on remand. Following are the Court's findings as a result of those inquiries.
564 A.2d 1107 (Del. 1989).
Defendant has not retained private counsel to represent him on appeal.
Defendant is incarcerated and is indigent. Defendant's educational background is "Like seventh, ninth, eight grade, somewhere." Defendant is not personally familiar with the rules of procedure or evidence.
Competency Hearing Transcript ("Tr.") at 14, attached as Exhibit 1.
Tr. at 14-15.
Defendant does not wish to proceed pro se. Throughout the evidentiary hearing, Defendant asserted his desire to be represented by a "Guardian at My Lighthouse." The Court asked Defendant's counsel if there were any other proceeding in which a guardian ad litem had been appointed. It appears that there is no guardian ad litem. Defendant was most insistent that the correct title is "Guardian at My Lighthouse."
Tr. at 6 (references to "Guardian at My Lighthouse continue throughout the transcript.).
Defendant asserted that the Guardian at My Lighthouse should represent him at his new trial". Defendant stated that he had a right to appointment of a Guardian at My Lighthouse pursuant to the 13th Amendment to the United States Constitution. However, Defendant was unable to provide the name or credentials of such a person. He requested that his new trial take place during the evidentiary hearing. The Court explained the purpose of the hearing, and that no trial was scheduled. The Court also explained that only an attorney can represent Defendant in legal proceedings.
Tr. at 18-20.
Tr. at 19-23.
Tr. at 11-15, 17-18.
Defendant further stated that he would need the assistance of the Guardian at My Lighthouse for purposes of appeal to the Supreme Court.
Tr. at 15-28.
With regard to the issue of competency, the Court considered the report of Douglas S. Roberts, Psy, D., Licensed Psychologist with Delaware Health and Social Services. Dr. Roberts concluded:
Ultimately, in my opinion, given Mr. Stephenson's current psychiatric stability, there is not a sufficient psychiatric or cognitive basis to determine that he is not competent to proceed (through the Court may have concerns about his ability to proceed pro se due to his lack of knowledge and experience in the appeals process). As such, in my opinion, the available psychiatric evidence suggests that Mr. Stephenson is competent to proceed with post-trial proceedings.This conclusion in Dr. Roberts' report regarding competency was not disputed.
June 17, 2019 Report, attached as Exhibit 2 (emphasis in original).
It appears to the Court that Defendant is legally competent for purposes of his appeal to the Delaware Supreme Court. The Court also finds that Defendant has neither the educational background nor familiarity with the rules of procedure, substantive law or rules of evidence to proceed without assistance of counsel. Further, because Defendant stated that he does not wish to proceed with the appeal pro se, appellate counsel should prosecute the appeal. Should an individual be identified by Defendant as his Guardian at My Lighthouse, appellate counsel may exercise discretion to consult with that person, in addition to consultation with Defendant.
SO ORDERED. 8/7/19
Dated
/s/_________
The Honorable Mary M. Johnston Original to Prothonotary
cc: Samuel B. Kenney, Esquire, Deputy Attorney General
Kevin P. Tray, Esquire
Exhibit 1
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY Cr. ID No. 1808013518 BEFORE: HONORABLE, J. MARY M. JOHNSTON
UNDER SEAL
APPEARANCES: DEPARTMENT OF JUSTICE
SAMUEL B. KENNEY, ESQ.
Deputy Attorneys General
for the State LAW OFFICE OF KEVIN TRAY
KEVIN P. TRAY, ESQ.
for the Defendant
COMPETENCY HEARING TRANSCRIPT
JULY 29, 2019
MARIE C. LYNAM, RPR, CCR
SUPERIOR COURT OFFICIAL REPORTERS
500 N. King Street, Suite 2609, 2nd Floor
Wilmington, Delaware 19801-3725
(302) 255-0653
ANY REPRODUCTION OF THIS TRANSCRIPT
IS PROHIBITED WITHOUT THE AUTHORIZATION OF THE
OFFICIAL COURT REPORTER
INDEX
COMPETENCY HEARING TRANSCRIPT
JULY 29, 2019
Courtroom No. 6C
2:00 P.M. PRESENT:
As noted.
- - - - -
THE COURT: I apologize for keeping you all waiting. I was in a meeting with the chief justice, so this is the earliest I could get away and I apologize. That is -- I believe you have the file.
This is a competency hearing for Joshua Stephenson. Are we ready to proceed?
MR. TRAY: Can I just address, Your Honor, because I'm in a little bit of a weird spot here. Well, I think Mr. Kenney and I received the evaluation today because it was in the other file for Mr. Stephenson. He has actually two post conviction matters at this point. He has this and, he also has a murder case before Judge Streett, which has the same procedural posture. There was a competency evaluation ordered. And it looks like this was done in response to that order by Judge Streett. And I'm talking about, for the record, the June 17th report.
In any event, I, as stand-by counsel, I don't really know what my function should be today because on the one hand, the report says at least it's the authors opinion that Mr. Stephenson is competent to stand trial, or at least there's not enough to say he's not competent to stand trial. But on the other hand, it also suggests that he may -- that it's not of a determination of whether he is competent to proceed pro se. At least the procedure of the case was that he was pro se at trial.
I helped him perfect his appeal just by filing a notice of appeal. Mr. Stephenson and I had subsequent conversation and it came to my attention that he had this issue pending in his other case and so we asked for a remand in this case as well. So I spoke to Mr. Stephenson just now about whether he still wanted to proceed pro se. He indicated -- and I'm not trying to be funny -- but in his words, he believes that guardian at lighthouse was appointed and I could not disabuse him of that view, number one, that it is a guardian ad litem. I'm not aware of one that's been appointed to Mr. Stephenson. But I will just say I read the report, but today I am starting out with my belief this is a delusion on the part of Mr. Stephenson.
So I just wanted to put out that there because, I, as standby counsel, I don't know really know what is expected on that law, but that's all.
THE COURT: All right. Does the State have an opinion?
MR. KENNEY: Your Honor, just to follow-up on what Mr. Tray said, there does appear there are two cases in post-conviction proceedings right now that do appear to have the same procedural posture. And it appears to the State that this psychiatric opinion, and for that matter, almost all other proceedings in these cases were docketed under those cases, the 2012 case, which is referenced in the report. And I think that's why neither the State or Mr. Tray received a copy of the report until today. The State would also like to note that in that 2012 proceeding, Mr. Stephenson does have post-conviction counsel that has been appointed for him. And if the proceedings today are contemplated to allow him to proceed pro se in this matter, the 2018 case, as well as the other matter, the 2012 case, I don't know that it's fair or proper to his counsel in the 2012 case who has not been noticed for these proceedings and is therefore not present for these proceedings, if he seeks to be relieved of counsel in both proceedings.
THE COURT: Well, what does Mr. Stephenson wish to do? Go ahead.
THE DEFENDANT: I would like the guardian at my lighthouse and I want to take care of a trial now.
THE COURT: I'm sorry, what was the second thing you said?
THE DEFENDANT: I want to take of care trial. This is my new trial. I want this to be my new trial. I need to take care of it now.
THE COURT: Oh, you want a trial today?
THE DEFENDANT: Yes.
THE COURT: I am afraid that's not possible because we schedule trials. This is a hearing to decide whether or not you can proceed without counsel.
THE DEFENDANT: Well, that would be a conflict of interest.
THE COURT: Why would that be a conflict of interest?
THE DEFENDANT: Because I have a right to my guardian of my lighthouse and the right to a new trial.
THE COURT: Who is the guardian?
THE DEFENDANT: It somebody that helps represent me.
THE COURT: Do you know who that person is?
THE DEFENDANT: I haven't them, but when I come to court I meet the lawyer and things like that. It's the same difference. I don't talk to them when I'm not here. But they should get my paperwork and know everything about me.
THE COURT: But you don't know who that is because I don't have a person entitled a guardian involved in any of your cases that is a matter of court record. How do you know that person is your guardian?
THE DEFENDANT: Because I talked to staff and I wanted to be introduced to my guardian at my lighthouse to start my new trial today. That's what I want to do.
THE COURT: All right. If you can have a seat, I want to ask Mr. Tray a question.
It is possible there is another proceeding pending in which a guardian ad litem would have been appointed for Mr. Stephenson?
THE DEFENDANT: Excuse me, Miss, it's a guardian at lighthouse.
THE COURT: All right. What Mr. Stephenson is calling a guardian at lighthouse?
MR. TRAY: So I'm only aware on the criminal side of things. I'm not only aware of two proceedings.
THE COURT: So you don't know? There may
MR. TRAY: No, I don't know. I know that counsel has been appointed in his post-conviction proceedings on the murder case.
THE COURT: You may have a seat? All right. The State procedural concerns are noted, but I think we can -- we have been directed by the Supreme Court on remand to have an evidentiary hearing about Mr. Stephenson's competence and ability to proceed pro se. I think that this point we should, at the very least -- do we have a witness here with regard to the report?
MR. KENNEY: No, Your Honor, in large part because the State did only receive this report today.
THE COURT: I do not have a copy of the report in my file. Do you have a copy? Does the clerk have a copy?
THE CLERK: June 17th, Your Honor.
THE COURT: All right. I would like this marked as Court Exhibit 1. This is the report dated June 17, 2019.
Pause
THE COURT: Thank you.
I am including the report in its entirety as part of the record.
The concluding opinion by Douglas R. Roberts, who is a doctor of psychology and a licensed psychologist, states as follows: Ultimately in my opinion, given Mr. Stephenson's current psychiatric stability, there is not a sufficient psychiatric or cognitive basis to determine that he is not competent to proceed. Though the Court may have concerns about his ability to proceed pro se due to his lack of knowledge and experience in the appeals process.
As such, in my opinion, the available psychiatric evidence suggests that Mr. Stephenson is competent to proceed with post-trial proceedings.
Is there anything else we should put on the record either in support of this opinion or in opposition to it?
MR. KENNEY: Your Honor, I do believe the mandate from the Supreme Court contemplated the Court conducting a colloquy with Mr. Stephenson regarding the factors disseminated in the Watson opinion.
THE COURT: All right. But that has to do with whether he is going to proceed pro se?
MR. KENNEY: Yes.
THE COURT: So it's two separate issues.
MR. KENNEY: Yes, Your Honor.
THE COURT: That was going to be my next question. All right. I think I can question -- you may stay seated for this, Mr. Stephenson, so you don't have to stand up for this.
All right, I have a number of questions to ask you. So you say that a guardian at lighthouse has been retained. Is that an attorney, do you think?
THE DEFENDANT: I don't know.
THE COURT: You don't know?
THE DEFENDANT: I know they're here to help represent me, that's all I know.
THE COURT: So at this point it does not appear that private counsel has been appointed to represent Mr. Stephenson on appeal. And so my next question to you is, you do have the right to an attorney, to represent you on appeal. Would you like to have an attorney represent you on appeal?
THE DEFENDANT: I want the guardian at my lighthouse and I want my new trial.
THE COURT: Okay. We're talking about an appeal before the Supreme Court, not in this court. So we will talk about your new trial in this court in a minute. Let's just talk about the case that's on appeal before the Supreme Court.
Would you like to have an attorney represent you in that appeal?
THE DEFENDANT: No.
THE COURT: And tell me why not?
THE DEFENDANT: Because it's a conflict of interest.
THE COURT: Tell me what the conflict of interest is.
THE DEFENDANT: They don't do what I say. They keep going against the grain of my intentions. And that's not what I'm here to do. I'm not here to tell my attorney to do something and him tell me what he wants to do for the State. I need somebody to represent me for my best interest, what my interests are. And I like to be in the driver's seat at trial so I be the main mouthpiece and I can ask somebody for assistance, And when they get -- when I need assistance, they give it to me.
THE COURT: So if you're doing that -- now, if this guardian at lighthouse is not an attorney, they cannot represent you in trial. Only an attorney can represent you.
THE DEFENDANT: I want my guardian at my lighthouse.
THE COURT: That's not possible unless they're an attorney, but you don't know whether they're an attorney?
THE DEFENDANT: I don't know.
THE COURT: You don't know. So let's assume they are not an attorney. I have some other questions for you, so let's put that aside.
THE DEFENDANT: Excuse me.
THE COURT: Do you want to proceed by yourself?
THE DEFENDANT: I want to proceed with myself and my guardian at my lighthouse. I don't like you bamboozling me because I have 13th Amendment Right to my guardian at my lighthouse. So being that I have that right, I like to secure that right and I like to take care of trial.
THE COURT: So would it be fair to say that you don't want to go -- let's talk about trial for a minute. You don't want to go to trial by yourself? You want somebody with you?
THE DEFENDANT: I want somebody there I can ask for legal advice and expertise and stuff. But I'm the main mouthpiece. I'm doing the same I've been always doing. I'm representing myself, but I want somebody there in case I have issues to help me.
THE COURT: So you're talking about standby counsel; is that right?
THE DEFENDANT: No. No, counsel. No counsel. I want the guardian at my lighthouse.
THE COURT: Well, in order for you to, as you say be your own mouthpiece, I have a few questions I need to ask you. What is your educational background?
THE DEFENDANT: Like seventh, ninth, eighth grade, somewhere.
THE COURT: Are you able to read and understand the rules of procedure and anything else that's in a book that you might need to know about how to conduct a trial?
THE DEFENDANT: That's what my guardian at lighthouse would be there for.
THE COURT: So is the answer to that question, it would be hard for you to do that yourself?
THE DEFENDANT: It's confusing at times.
THE COURT: And how familiar are you with the criminal justice system?
THE DEFENDANT: I have been coming back and forth to court for a long time, and I know everything else I tried isn't worked.
THE COURT: Has not worked?
THE DEFENDANT: Has not worked.
THE COURT: Do you know anything about the rules of evidence, what is admissible and what is not?
THE DEFENDANT: My guardian at my lighthouse would explain that to me.
THE COURT: So would it be fair to say, you don't have that knowledge yourself? You would need some assistance with that; is that correct?
THE DEFENDANT: Somewhat.
THE COURT: All right.
THE DEFENDANT: I just want -- I just want my guardian at my lighthouse in place and then I'll work from there.
THE COURT: So have you talked to any other person about whether or not you should have an attorney?
THE DEFENDANT: No.
THE COURT: Do you understand that for you to continue your appeal in the Supreme Court -- now this isn't a trial, this is appealing your case, you have to follow the rules of procedure in that court; do you understand that?
THE DEFENDANT: There's rules everywhere.
THE COURT: Do you think you can figure out those rules
THE DEFENDANT: I -- I -- I -- I'm going at this long, but I need a little help and that's where the guardian at my lighthouse comes in. And any questions I refer to them like I would refer to my lawyer or anything of that nature, my legal issues, and my mental health issues, whatever questions I have to ask as long I can call them and they'll be there when I'm ready to go to trial and we should be all right -- or I should be all right.
THE COURT: It would really be helpful to know who this person is for us to be able to evaluate whether that person is going to be someone that may be able to assist you.
THE DEFENDANT: So let me ask you this: You give me a lawyer, but you can't give me a guardian at lighthouse.
THE COURT: Well, the reason for that is, that only lawyers, people who have gone to law school and have taken the bar examine and are learned in the law can practice law in front of this Court. So if someone has not been trained in that way, they're simply not allowed to come in and represent somebody else. That's just
THE DEFENDANT: I feel like I'm being lied to.
THE COURT: Do you think what I just told you is not accurate?
THE DEFENDANT: No.
THE COURT: Well, even if that rule seems unfair to you or seems like something that you are 23 unhappy with, that's the rule. So in other words
THE DEFENDANT: But I have a right to a guardian at my lighthouse. I have that right.
THE COURT: Okay. So you're saying that's under the 13th Amendment of the
THE DEFENDANT: Yes.
THE COURT: -- U.S. Constitution or the Delaware Constitution?
THE DEFENDANT: U.S.
THE COURT: Well, let's take a look at that.
Pause
THE DEFENDANT: I know it's been explained to me as my right by somebody that works for the prison.
THE COURT: Well, the 13th Amendment talks about the fact that there can never be any slavery or involuntary servitude and that congress shall have the power to enforce this article by legislation. There's nothing in the 13th Amendment about a guardian
THE DEFENDANT: Of my lighthouse.
THE COURT: Of the lighthouse.
THE DEFENDANT: Let me ask you something. They say involuntary. Isn't this involuntary?
THE COURT: You mean the fact that you're in prison or to what are you referring?
THE DEFENDANT: I'm referring to right now the whole guardian at the lighthouse and my new trial happening here today. If I want those to happen today, this is my case. This is not nobody else's case in this courtroom. This is my case.
THE COURT: I agree with you that that's involuntary because you don't want that to happen
THE DEFENDANT: I want it to happen. I want to have my new trial today. I want my new guardian at my lighthouse to be here today. That's what I want. I want to take care of everything today.
THE COURT: Well, it's awfully hard for him to be here if we don't know who he is.
THE DEFENDANT: I didn't go through a phonebook and call my lawyer and say, hello, would represent me. He was already assigned to me. So why can't I have the guardian at lighthouse assigned to me the same way?
THE COURT: There aren't any rules or procedures in this court for appointment of the guardian of the lighthouse. There's nothing in this court that there is a position called that, so that's why I can't appoint that person.
THE DEFENDANT: Well, can I appoint them?
THE COURT: There is no role for them in this court. As I said, the only people that can assist you are lawyers.
THE DEFENDANT: I just want you to see if you can go out of your way to make sure that I have someone like a guardian -- not like them, I need them to, the guardian at lighthouse to be here in my new trial. I'm ready.
THE COURT: Let me go over a few of these other questions.
THE DEFENDANT: Excuse me, Your Honor. I'm not really interested. I feel like I'm getting the short end of the stick and there's nobody there to -- that's why I said the conflict of interest because I feel like I'm in the corner all by myself, and basically all these walls is closing in around me. I'm not having a fair chance to fight for myself.
THE COURT: I really am listening carefully to what you're saying. I have been at this for many years and I know this is not what you want to hear, but I do think you would be best served by having a competent attorney represent you.
THE DEFENDANT: Well, right now I just want to go back because any questions that I have I take up with the law library or the counselor or the mental health person or whoever I got to talk to. I really don't feel like having this hearing and it seem like things are here for my interest. But it seems like it's in the interest of the State or some other interest. I don't want to partake in none of that because it's confusing and I feel like I'm being stripped of my rights instead of my rights being advocated for. I don't know what's going on and I need to do my homework or I need somebody like a guardian at lighthouse to come see me and we'll talk then.
But as far as this stuff, this feels like this is just stripping me of my rights and pushing me into a corner where I can't fight for myself.
THE COURT: Would you like to leave the courtroom at this point or would like to stay and hear my decision? It's up to you. You can do whatever you feel.
THE DEFENDANT: Can you arrange for them to be here tomorrow and we take care of this thing tomorrow.
THE COURT: I cannot arrange for anything to happen tomorrow. It takes longer than
THE DEFENDANT: Well, I needed them today. I needed them today, and I already talked about this.
THE COURT: Well, we don't know who they are. So it's helpful to us to have them here. We need to know who they are. So I think probably the best thing to do is for you to, you know, write me a letter or whatever and tell me who this person is because that would be very helpful. And it would help me make a decision as to what to do and it would be also helpful to get them here if we knew who they were.
THE DEFENDANT: So I'll take care of my end and you take care of your end and I will have everything situated in court.
THE COURT: Well, I still have to decide whether they are going be allowed to represent you. And if they're not an attorney, I don't want to "mislead you, they are not going to be able to represent you. They might be able to be present in the court. But if they are not an attorney, they cannot represent you. And I didn't make that rule or that law up, but that is the law and there is nothing I can do about that.
I also, again, I know that you don't want to hear this, but that is really who is going to be most helpful to you is an attorney. But if you don't want an attorney, then that is something we will have to deal with, but I know this is frustrating for you.
THE DEFENDANT: Well, I need the transcripts to this hearing, please, and I need a copy of the
THE COURT: The psychiatric report?
THE DEFENDANT: Yes.
THE COURT: All right. We can arrange for that.
THE DEFENDANT: And I will correspond with you and write to tell you what is going on, or I can call somebody to let you know what is going on,
THE COURT: All right. We can certainly do that. Do you want to stay in this room long enough for me to issue a decision today or do you want to go back in the lockup right now? It's your "decision.
THE DEFENDANT: Will the decision be issued either way?
THE COURT: Yes.
THE DEFENDANT: Well, I want to hear what you got to say.
THE COURT: All right. There are two issues that have been on remand from the Supreme Court. The first issue is Mr. Stephenson's competency to "stand trial and the second is his request to proceed pro se. So that's what we have been directed to address today.
With regard to the first issue, I have in front of me an undisputed psychiatric report. It does certainly go into great detail and outlines certain issues that Mr. Stephenson has. But the ultimate conclusion is that he is indeed competent to stand trial. I find that -- yes.
THE DEFENDANT: I talked to Dr. Robin Timme and he agreed with me on some of the points that I touched base with him on. I don't know exactly what his, um -- what he would say right now. But if you can contact him for me also. I haven't seen him in a while, but I know he's helpful. And I talked to him. I just talked to him one time. I think it's my second time I ever spoken to him.
THE COURT: Dr. Timme?
THE DEFENDANT: Dr. Robin Timme. He's the chief psychiatrist at James T. Vaughn. And he agreed with some of the things I was touching bases with him on. And he do the same thing like -- um -- Roberts, like Dr. Roberts, and he supports me. He supports me.
THE COURT: Do you think that you are competent to stand trial?
THE DEFENDANT: I can't answer that question because every time I do, you all do want you want to do anyway.
THE COURT: You haven't seen the report, have you?
THE DEFENDANT: He tried to, but I wasn't going to read it all that in this little bit amount of time.
THE COURT: Well, for purposes of this hearing today, this report is undisputed. So I'm answering the first question in the affirmative.
The second question is whether or not Mr. Stephenson should be permitted to proceed pro se. And I have gone through as many of the questions that the Supreme Court outlined in its June 20, 2019 order as possible. And the record will reflect what the answers were to those questions such as I was able to ask. At some point Mr. Stephenson indicated that he didn't want to answer anymore questions.
It is very clear that what Mr. Stephenson wants to do is not to proceed pro se, but to proceed with the assistance of a guardian at lighthouse. And, therefore, based upon that and also, as the record will reflect, the interchange between Mr. Stephenson and myself concerning these questions, I must find that, first of all, Mr. Stephenson is really not requesting to proceed pro se, as we understand it, because he is requesting to proceed with assistance. But even if he were making that request, I must say that I find -- I must answer that question in the negative, that Mr. Stephenson at this point has neither the educational background or familiarity with the system or the ability to follow the rules and procedures without the assistance of legal counsel. Therefore, my determination is that he is not -- he should not be permitted to proceed pro se.
Now, Mr. Stephenson, I will be happy to review anything you send to me. Again, the guardian at lighthouse information would be very helpful. But today there is nothing more that we can do.
THE DEFENDANT: I need you to talk to doctor
THE COURT: Dr. Timme?
THE DEFENDANT: Yes.
THE COURT: What would be helpful to me is if you can send me a letter telling me what you think Dr. Timme would say?
THE DEFENDANT: I can't tell you what that man think he say. I want you to talk to that man.
THE COURT: Well, I'm not allowed to have conversations with people privately. I have to do everything in a courtroom.
THE DEFENDANT: Well, can you order him to submit a report on me because I talked to him? I talked to him twice. And at the same time I talked to him was the last time I talked to him. I don't know. It wasn't -- it wasn't that long ago because I remember.
THE COURT: What do you think he will say?
THE DEFENDANT: I don't know what he will say, but he agreed with me, and he touched bases on the things with me and he agreed with me.
THE COURT: You will have to ask him to submit something to the Court. I cannot.
THE DEFENDANT: Oh, okay.
THE COURT: So I think you can take Mr. Stephenson into custody.
THE DEFENDANT: Can I get copy of
(The defendant leaves the courtroom)
THE COURT: As I'm looking at page 4 of the order, I am required to make findings of fact and conclusions of law and transmit the same to this Court.
So at this point what I'm going to do is ask for a copy of the transcript and I will convert that into the findings of fact and conclusions of law. And I assume that means that the Supreme Court will determine how the appeal should proceed.
I have a procedural question. Is there another trial pending or was Mr. Stephenson talking about a potential re-trail for this case?
MR. TRAY: My understanding was that it is a re-trial in this case.
THE COURT: So I don't have another pending proceeding that I need to decide about?
MR. TRAY: Not that I'm aware of.
THE COURT: All right. Very well.
MR. KENNEY: Just a couple points for the record that the State would like to clarify.
THE COURT: I don't want to do anything substantive without the defendant here. Is this procedural?
MR. KENNEY: Yes.
THE COURT: All right.
MR. KENNEY: The State would like to clarify that there are in fact two appeals pending. We would like the record to reflect that there are in fact two separate appeals pending from two separate cases.
THE COURT: And I do recognize that. And I have -- this has been remanded to me for the purpose of making determinations for only the '18 appeal.
MR. KENNEY: Yes.
THE COURT: So I'm assuming the other appeal will proceed as it's already -- I don't know. That's a decision for the Supreme Court to make. I was not asked to make any rulings with regard to that.
MR. KENNEY: And then, Your Honor, just one other -- I don't believe it's substantive -- the State noted that it hadn't received the report until today. I can only speak as to the 2018 case. I don't know whether the deputies or his assigned counsel in the 2012 case, that is the murder case, which Mr. Tray was referring to, had previously received the report. But for purposes of the 2018 case, the State only received -- me personally, I only received that report today.
THE COURT: All right. Did you wish to have time to review it and decide whether or not you object to any portions of the report?
MR. KENNEY: No, Your Honor, the report seems fairly clear on its face.
THE COURT: Anything procedural to add?
MR. TRAY: No, Your Honor, not at this time.
THE COURT: All right. Very well.
Can I take this file with me? Do you need it?
THE CLERK: No, I can make a note that it's in your chambers.
THE COURT: Thank you.
(The proceedings concluded at 2:22 p.m.) STATE OF DELAWARE: NEW CASTLE COUNTY:
I, Marie C. Lynam, Official Court Reporter of the Superior Court, State of Delaware, do hereby certify that the foregoing is an accurate transcript of the proceedings had, as reported by me in the Superior Court of the State of Delaware, in and for New Castle County, in the case therein stated, as the same remains of record in the Office of the Prothonotary at Wilmington, Delaware, and that I am neither counsel nor kin to any party or participant in said action nor interested in the outcome thereof.
This certification shall be considered null and void if this transcript is disassembled in any manner by any party without authorization of the signatory below,
WITNESS my hand this 2nd day of August, 2019.
/s/Marie C. Lynam
Marie C. Lynam, CCR, RPR
Official Court Reporter
Exhibit 2
39 June 17, 2019 The Honorable Diane Clarke Streett Superior Court Judges' Chambers 500 N King St Wilmington, DE 19801 Dear Judge Streett: I am writing to you in reference to Mr. Joshua Stephenson, a criminal defendant under Case Numbers 1212015998A and 1212015998B. In an Order dated May 14 2019, the Court requested a mental health evaluation of Mr. Stephenson in order to assist the Court in determining Mr. Stephenson's competency to proceed with post-trial proceedings. Mr. Stephenson informed me that he would like to proceed pro se, due to his lack of faith in public defenders based on his past experience, which I presume is part of the question related to his competency. Mr. Stephenson was transported from James T. Vaughn Correctional Center to the Jane E. Mitchell forensic unit of the Delaware Psychiatric Center today for his evaluation. I met with him for approximately one hour for his evaluation. As part of my evaluation, I also had the opportunity to review several previous forensic evaluation of Mr. Stephenson performed by myself and other clinicians here at the Delaware Psychiatric Center. I was also able to review recent progress notes from Mr. Stephenson's mental health treatment at the Department of Correction, as well as letters he has sent to DPC to Dr. Charlotte Selig (one of the psychologists here at the Mitchell building who assisted Mr. Stephenson with legal/competency-related issues in the past). In these letters, he requested assistance and advice regarding his current appeals related to "judicial misconduct" and "ineffect assistant of counsel." He also requested to be admitted to the Mitchell building, as he has been in the past, in order to get assistance from Dr. Selig in the present proceedings. Mr. Stephenson is well-known to the staff at the Delaware Psychiatric Center, as he has been evaluated and hospitalized here on several occasions over the past decade or so. I personally performed a comprehensive mental health evaluation of Mr. Stephenson to assess his competency to stand trial and mental state at the time of the alleged offense under this case in July of 2013. He has consistently carried a diagnosis of Schizoaffective Disorder, which is characterized by a combination of psychotic symptoms (e.g., hallucinations, delusions), as well as clinically-significant mood episodes (e.g., manic episodes, depressive episodes). Throughout Mr. Stephenson's history of assessment and treatment at DPC, it has been consistent that when he is not taking antipsychotic medication as prescribed, he can become quite disorganized and agitated, even violent. However, when he takes his medication as prescribed, he tends to show a much brighter affect and his psychotic symptoms stabilize. Consistent with his diagnosis of Schizoaffective Disorder, in addition to psychosis, Mr. Stephenson can have mood episodes (e.g., manic or hypomanic 40 symptoms, depressive symptoms), though these symptoms tend to be relatively well-managed by medication. From my review of Mr. Stephenson's recent mental health records from the Department of Correction, it appears that he has been compliant with his prescribed medications. He is currently given a daily injection of Haldol (an antipsychotic), which is supplemented with oral Haldol (in liquid form, so it cannot be "cheeked"). Mr. Stephenson also takes Cogentin, which is commonly prescribed to help manage the side effects that can come from antipsychotic medication. Recent progress notes indicate that his emotional expression has been appropriate (though sometimes described as bright and "bubbly), and he has not displayed signs of hallucinations, delusions, or significant disorganization. In other words, according to DOC progress notes, Mr. Stephenson appears to have been at his psychiatric baseline level of functioning. Mr. Stephenson's presentation when I met with him also matched what I have observed in the past to be his psychiatric baseline level of functioning. Consistent with what has been described in recent DOC progress notes, Mr. Stephenson greeted me with a bright smile when I first walked into the room. He recognized me from his last inpatient hospitalization here, but he could not recall my name. He was clear and rational in his speech; he did not display signs of disorganization, nor did he express any delusional or bizarre ideas. Mr. Stephenson did not report any hallucinations, nor did I observe any indications that he was experiencing or responding to things that I could not see or hear. He was able to maintain his focus and respond to my questions appropriately. After I reminded him of my name and explained the purpose and nature of the evaluation, Mr. Stephenson began to talk about the perceived errors in his legal case and appeals to date, and how he feels that his previous legal representation has been inadequate and given him advice that he feels resulted in his current sentence. I spoke with Mr. Stephenson at length about what errors he feels were made in his original trial and recent appeals, as well as his strategy for how he might proceed representing himself, which he said is his intended goal. In discussing this with Mr. Stephenson, it was clear that he feels he was given poor advice by defense counsel at trial, which was that he should not testify on his own behalf. He said that defense counsel instructed him that if he were to testify, the prosecutor could ask him questions about his past record, which could be potentially damning to the jury. Mr. Stephenson feels strongly that if he had decided to testify, his testimony would have been so compelling that it could have resulted in a different outcome or more lenient sentence. When I tried to provide an alternate perspective (i.e., that defense counsel likely was obligated to give legal advice as to the potential benefit and/or harm of testimony, and that Mr. Stephenson's testimony may not have been as beneficial as he seems to believe), Mr. Stephenson became upset, as he seemed to perceive that I was not on his side. However, I should note that, while he seems fairly set in his mind of how his testimony could have helped him, his beliefs were not delusional in nature. Rather, he seems merely overly optimistic about how things could have turned out differently. Another component of Mr. Stephenson's desire to proceed pro se is that he feels his previous attorneys have either not provided good advice to him, or that they have failed to act or speak up when he thought they should. For instance, he gave an example of an attorney who was assigned to him in a previous appeal hearing, whom Mr. Stephenson said merely sat at the table and occasionally whispered to him, but did not speak up to the judge when Mr. Stephenson felt that counsel should have. However, Mr. Stephenson also told me that he was trying to represent himself at that point, so it seems that his assigned counsel was engaging in appropriate behavior in letting Mr. Stephenson take the lead. When I tried to 41 reflect this perspective to Mr. Stephenson, he again became upset (but not irate or overly agitated) that I was not taking his side. My impression from these two interactions with Mr. Stephenson is that he strongly desires to have a different outcome and believes he should have received a lighter sentence. He gave abstract examples of hearing about other defendants with similar types of charges who received lighter sentences. However, when I tried to explain that he needed to provide specific examples of legal errors that were made in his case in order to have grounds for an appeal, he struggled to come up with specific, concrete examples, stating that he did not know all of the ins and outs of the appeals process. Mr. Stephenson told me that he asks a lot of questions of other inmates who have helped guide him to relevant materials in the law library, and he is trying to learn all that he can, but his lack of legal experience in this area seems to be the main obstacle. In other words, the reason he does not seem to know enough about the appeals process is not due to a psychiatric or cognitive impairment; he simply does not have the legal experience or training to be familiar with it. Still, Mr. Stephenson strongly opposes being represented by counsel because of his perception of how they failed to help him in the past. When I asked Mr. Stephenson to tell me more specifically how his defense counsel failed him in the past, he made vague references to how the judge, the prosecutor, and defense counsel seemed to be "in cahoots" or "conspiring" against him. I asked why they would want to conspire against him (in order to determine if this was a true delusion, or simply a commonly-held belief among criminal defendants that since Delaware is so small, everyone works together). Mr. Stephenson gave an example of how his original public defender (Ms. van Amerongen) has a husband who was allegedly working in the Attorney General's offense. He said that he thinks the judge and the attorneys work together to incarcerate people in order to make the State money. What seemed to be a crucial point here (in determining whether this is a delusion or simply an extension of distrusting beliefs that many criminal defendants have about working with public defenders) is that Mr. Stephenson expressed that there was nothing in particular about him that made him a target. He did not believe that the judge or attorneys in his case in particular targeted him or wanted to put him away to keep him quiet. Rather, he believes that this is commonplace among many cases in which defendants are represented by public defenders. He also explicitly told me that this would not be happening if he had a "paid lawyer." As such, this led me to conclude that while Mr. Stephenson is very distrusting of working with a public defender or appointed attorney, it does not appear to be the result of a paranoid delusion. Rather, he has suspicions - as many criminal defendants do - about how hard public defenders will work for them, or whether they can be trusted because they are working for the State. Thus, while Mr. Stephenson is adamant about representing himself because, in his words, "If I lose, at least I lose on my own terms," his decision-making does not appear to be unduly influenced by mental health symptoms. It is true that he is likely over-estimating how successful he could have been in the past (and will be in the pending appeal) if he were to be representing himself, but his over-estimation is not due to psychosis or active delusions. Like many criminal defendants, Mr. Stephenson appears set in how he views his case and what he believes to be a fair outcome, and advice to the contrary is unlikely to be successful. However, his stubbornness (for lack of a better term) is not part of his mental illness. In other words, he is not set in his view of his case because he has a mental illness, and it does not appear to be true that, if not for his mental illness, he would be more amenable to representation by counsel. I understand that there may be concern about how Mr. Stephenson is viewing his case and his likelihood of success, but from my interview with him, and my knowledge of him from his past DPC hospitalizations, 42 his decision-making does not appear to be unduly influenced by mental health symptoms. While his decisions may be questionable in terms of the likelihood of success, he is not making these decisions because he is delusionally paranoid. He is suspicious of attorneys and judges because of how he feels he has been treated in the past, but he is not delusional. In my opinion, Mr. Stephenson is currently at his psychiatric baseline level of functioning, and his rational capacities do not appear to be unduly influenced by delusions or other psychotic symptoms. Thus, his mental health does not appear to be a barrier to his competency to proceed at this point. His psychiatric symptoms are stable and well-managed on his current treatment regiment. Factually, Mr. Stephenson does not appear to have a firm grasp on the appeals procedure or how to frame his arguments to have the highest likelihood of success. However, his lack of factual knowledge is not due to psychiatric or cognitive impairments, and thus, from my understanding of the statute, is not a basis for a finding of incompetency to proceed. His lack of knowledge is due to lack of experience and legal training in this area, not due to a mental health reason. If allowed to proceed pro se, I highly recommend that Mr. Stephenson still utilize a second-chair counsel for advice and legal strategy, though I recognize that he is highly unlikely to do so with a public defender. It may be possible that he is more amenable to a court-appointed "private attorney," though he may still view this arrangement as against his interests. Ultimately, in my opinion, given Mr. Stephenson's current psychiatric stability, there is not a sufficient psychiatric or cognitive basis to determine that he is not competent to proceed (though the Court may have concerns about his ability to proceed pro se due to his lack of knowledge and experience in the appeals process). As such, in my opinion, the available psychiatric evidence suggests that Mr. Stephenson is competent to proceed with post-trial proceedings. If you have any questions or would like to provide DPC with any further direction on how you would like us to proceed in this matter, please feel free to contact me at 255-9704. Respectfully submitted, /s/ Douglas S. Roberts, Psy.D. Licensed Psychologist