Opinion
CR 07-1382-PHX-DGC.
January 7, 2009
ORDER
On January 6, 2009, the Court held a competency hearing pursuant to 18 U.S.C. § 4241(c). The purpose of the hearing was to determine whether Defendant is competent to stand trial. The Court heard video testimony from Dr. Robert Lucking, a staff psychiatrist at the Federal Medical Center in Butner, North Carolina. The Court has also considered the 15-page Forensic Evaluation by Dr. Lucking. For the reasons set forth below, the Court concludes that Defendant is not competent to stand trial.
I. LEGAL STANDARD.
II. FACTUAL DETERMINATIONS.
18 U.S.C. § 4241United States v. Woodford,238 F.3d 1084108918 U.S.C. § 4241 United States v. Hoskie,950 F.2d 13881392 18 U.S.C. § 4241
There is a split of authority on whether the government or the defendant bears the burden of proof on this issue. The Ninth Circuit is one of a number of federal courts that have placed the burden on the government. See United States v. Nichols, 56 F.3d 403, 410 (2nd Cir. 1995) (collecting cases). At least one circuit has held that the burden rests on the defendant. See United States v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005). The Supreme Court has stated in dictum that "Congress has directed that the accused in a federal prosecution must prove incompetence by a preponderance of the evidence." Cooper v. Oklahoma, 517 U.S. 360, 362 (1996). This statement, however, was made in passing, without analysis of § 4241(d), and in an opinion where the Supreme Court noted without objection that numerous states place the burden on the prosecution. Id. at 361-62. Because the Supreme Court's statement is dictum, this Court will follow the Ninth Circuit rule.
The Attorney General transported Defendant to the Butner facility where his primary examining physician was Dr. Lucking. Dr. Lucking testified at the competency hearing that Defendant was clearly psychotic upon his arrival. Dr. Lucking prescribed medication to treat Defendant's psychosis and noted a marked improvement in Defendant's condition over the next two months. Defendant no longer engaged in the conduct evident upon his arrival — smiling and laughing inappropriately, talking with persons who were not present, and otherwise responding to internal stimuli.
Once Defendant's psychosis was controlled, Dr. Lucking began the process of determining his competency. Dr. Lucking diagnosed Defendant with schizophrenia, undifferentiated type, and with adult antisocial behavior. After attempting unsuccessfully to administer several tests, Dr. Lucking concluded that Defendant was malingering and, ultimately, that he was competent to stand trial.
During the hearing on January 6, 2009, Dr. Lucking explained the basis for his malingering and competency opinions. He testified that Defendant refused to participate in neuropsychological testing. As a result, Dr. Lucking was unable to directly determine his competency. Defendant did participate in forced choice testing. During this testing and during interviews, Dr. Lucking stated that Defendant displayed multiple inconsistencies and provided ridiculous responses to some questions. He also failed to consider some questions seriously. In terms of inconsistencies, Defendant claimed he could not add, even though his prior history suggested he had been able to add and even though Defendant was able to add fingers displayed by Dr. Lucking; Defendant claimed that he could not speak English, but responded to some questions in English without waiting for the Spanish interpretation of the questions; Defendant gave inconsistent answers for his birth date and the place of his arrest. In terms of ridiculous answers, Defendant stated that he did not know whether he had parents or had been raised by wolves, and at times claimed to have been arrested in Russia. Defendant's results on the forced choice testing suggested to Dr. Lucking that Defendant knew the correct answers but deliberately chose incorrect answers. All of these factors led Dr. Lucking to conclude that Defendant was malingering — deliberately trying to defeat the purpose of the test and convince Dr. Lucking that he was incompetent.
Dr. Lucking concluded that Defendant was competent on the basis of his apparently deliberate choice to malinger as well as his ability to answer some basic questions about the nature of his arrest and the nature of these legal proceedings. For example, Defendant chose correctly when asked to select answers describing the role of the judge, prosecutor, defense attorney, and jury. Defendant accurately described why and how he was hiding from Border Patrol at the time of his arrest. Defendant was also seen to interact with other inmates at the Butner facility, although Dr. Lucking noted that only the most severely impaired inmates are avoided by others.
From Defendant's apparently deliberate attempts to defeat testing and his basic level of understanding on the nature of his arrest and the proceedings against him, Dr. Lucking concluded that Defendant was competent to stand trial. Dr. Lucking noted that he had seen similar efforts at malingering from other Mexican defendants charged with immigration crimes, and concluded that such defendants discuss among themselves the possibility of obtaining an early release through incompetency.
During the course of the hearing, Defendant appeared to be experiencing some symptoms of psychosis. He smiled and laughed inappropriately, mumbled to himself, and rocked back and forth. When Dr. Lucking was asked about these behaviors during the hearing, he stated that they were indicative of psychosis. Although Defendant had told his counsel that he was continuing to take the medication prescribed for his psychosis, Dr. Lucking stated that Defendant's behavior during the hearing could suggest either that Defendant no longer was taking his medication or that the medication was becoming less effective. As a result of Defendant's behavior, counsel for the Government stated in her closing argument that she could not assert that Defendant is presently competent to stand trial. She did assert, however, that the Court can conclude that Defendant was competent when he left the Butner facility in September of 2008.
Defense counsel proffered that Defendant's behavior has been consistent throughout the 13 months that defense counsel has represented him. Although the symptoms of psychosis were improved after Defendant returned from the Butner facility, defense counsel proffered that he has been unable to communicate with Defendant throughout all stages of this case. Defense counsel proffered that Defendant's responses to questions — the same responses that caused Dr. Lucking to conclude that Defendant is malingering — have also been consistent throughout defense counsel's representation. Defendant consistently has been unable to answer most of defense counsel's questions, consistently has stated that he does not know if he has parents, consistently has given little consideration to questions, and often responds to questions in English before obtaining a Spanish interpretation. Thus, defense counsel argued, the behavior observed by Dr. Lucking has been consistent for months. Defense counsel does not believe that Defendant could malinger so consistently over such an extended period of time.
The Court finds this to be a close case. Defendant clearly is schizophrenic and suffers from adult antisocial behavior. All parties agree that Defendant was not competent to stand trial when he was arrested or on his arrival at the Butner facility. Thereafter, Defendant did not participate in testing that affirmatively established his competency. Instead, Dr. Lucking concluded that Defendant was competent based on his apparently deliberate malingering and his correct responses to certain basic questions about his arrest and the nature of these proceedings. As of the January 6 hearing, however, Defendant again appears to be suffering from psychosis and counsel for the Government could not assert that he presently is competent. Thus, we have a Defendant who suffers from a diagnosed mental illness, who was incompetent at the beginning of this case, who appears to be incompetent now, and whose alleged competency in the interim is based primarily on indicia of malingering and his correct responses to very basic questions. When these circumstances are weighed with defense counsel's avowals that he consistently has been unable to communicate with Defendant, the Court concludes, by a preponderance of the evidence, that the Government has not met its burden of proving that Defendant is competent.
The Court particularly is persuaded by the fact that Defendant's very basic understanding of the circumstances of his arrest and the nature of these proceedings is not sufficient to establish his competency to stand trial. The Supreme Court has explained "that it is not enough for the district judge to find that the defendant is oriented to time and place and has some recollection of events." Dusky v. United States, 462 U.S. 402, 402 (1960) (quotation marks and parentheses omitted). "[T]he test must be whether he 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." Id. Defendant's very basic understanding of the circumstances of his arrest and the nature of these proceedings may establish a factual understanding of these proceedings, but they do not demonstrate a rational understanding. Nor, given defense counsel's avowals, can the Court conclude that Defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.
The Court has considered carefully Dr. Lucking's opinion that Defendant is malingering. Dr. Lucking testified that malingering is not itself evidence of competency. Incompetent people can malinger. Although an apparently deliberate attempt to defeat the Butner testing is relevant, the only affirmative evidence of Defendant's competency is his correct responses to very basic questions. The Court concludes that this evidence, when combined with the indicia of malingering, is slightly outweighed by defense counsel's avowal that Defendant consistently has been unable to carry on a coherent conversation or assist in the defense of this case. The Supreme Court has observed that "the defendant's inability to assist counsel can, in and of itself, constitute probative evidence of incompetence, and defense counsel will often have the best-informed view of the defendant's ability to participate in his defense." Medina v. California, 505 U.S. 437, 450 (1992); see also Odle v. Woodford, 238 F.3d 1084, 1088 (9th Cir. 2001) (same).
The Court would likely reach a different conclusion if the Government had been able to present affirmative evidence of Defendant's competency. The Court is quite conscious of the fact that the absence of such evidence is due to Defendant's refusal to participate in neuropsychological testing. But the Court cannot conclude that this alleged malingering by Defendant, when coupled with his very basic understanding of the circumstances of his arrest and the nature of the proceedings against him, outweighs his consistent inability to respond to or communicate with his defense counsel.
III. CONCLUSION.
The Court finds that Defendant is not competent to stand trial. The Court must now determine the appropriate next step. The Court is not persuaded that additional hospitalization and treatment likely would result in Defendant's competency to stand trial, and notes that the Supreme Court has held in some circumstances that a defendant may be committed for additional treatment only if there is a substantial probability that he will attain future competency. See Jackson v. Indiana, 406 U.S. 715, 738 (1972). Before deciding this question, however, the Court concludes that it should hear from the parties. On or before January 16, 2009, the parties shall submit memoranda, not to exceed five pages each, setting forth their views of the next appropriate step given the Court's determination that Defendant is not competent to stand trial.