R. DAVID PROCTOR, District Judge.
Before the court is Defendant's Motion to Declare the Defendant Currently Incompetent to Stand Trial. (Doc. #65). After thoroughly considering the exhibits and testimony admitted into evidence during the hearing on Defendant's motion conducted from July 25, 2011 through August 3, 2011, the court file, and each party's written submissions, the court makes the following findings of fact and conclusions of law regarding Defendant William Merriweather, Jr.'s ("Merriweather") competency to proceed to trial.
1. On May 14, 2007, the Government alleges that Merriweather robbed the Bessemer, Alabama branch of Wachovia Bank. During the commission of that offense, Merriweather shot four women, killing two of them and wounding the other two. (Doc. #1 at 1-4). Merriweather then grabbed approximately $11,255 in cash and exited the bank with a hostage, whom he used as a human shield. (Doc. #4 (sealed) at 2). While attempting to flee, Merriweather was shot by police officers, immediately apprehended, and given emergency medical care. (Doc. #4 (sealed) at 2). Merriweather has remained in custody since that time.
1. William Merriweather was born the youngest of three children on May 20, 1976, in Birmingham, Alabama to William Merriweather, Sr. and On Sun Merriweather. (Tr. Vol. II, 295; Doc. #24 at 5; Def. Ex. #7 at 1). His mother was diagnosed with a brain tumor and died when Merriweather was three years old. (Tr. Vol. II, 296). Reportedly, prior to her death, Merriweather's mother suffered from depression and once attempted suicide. (Tr. Vol. II, 296). Shortly after On Sun's death, Merriweather's father married her younger sister, Kum Cha, and together they raised Merriweather and his siblings, along with two sons born to Kum Cha and Merriweather, Sr. (Doc. #24 at 7; Def. Ex. #7 at 2).
2. Despite the death of Merriweather's biological mother, it appears that Merriweather, Sr. and Kum Cha provided Merriweather and his siblings a stable home and childhood. Merriweather, Sr. indicated that Merriweather "was very close to his stepmother." (Doc. #24 at 6). When asked to describe his childhood, Merriweather commented that "[e]verything was okay" and that he and his siblings "stayed out in the streets a lot, just playing." (Doc. #24 at 5). Merriweather believed that the household was financially "okay" and described his parents as supportive, though not emotionally supportive. (Doc. #24 at 5). He reported that his parents were strict in their discipline, but denied any form of childhood physical abuse. There were no signs of psychosis or any mental illness throughout Merriweather's childhood and adolescence. (Tr. Vol. II, 335).
3. Merriweather graduated from Jackson Olin High School in 1994, where he participated in football and ROTC. (Tr. Vol. II, 296; Doc. #24 at 5). After high school, he moved in with his sister, Euknesha Kim Patton ("Patton"), to study at Alabama State University in Montgomery, Alabama. (Tr. Vol. II, 296). While living in Montgomery, Merriweather began dating Latisha Simpson in 1995. (Tr. Vol. III, 552). Merriweather did not complete his education at Alabama State and instead moved back to Birmingham in 1996. (Tr. Vol. II, 297). In 2001, Merriweather enrolled in ITT Technical College in Birmingham, Alabama, where he took courses in electrical work. (Tr. Vol. II, 298; Doc. #24 at 5).
5. According to Merriweather's testimony during his first mental capacity evaluation with Dr. Pietz, he began consuming alcohol at age 14 and using marijuana at age 17. (Tr. Vol. I, 43). Merriweather reported that his illicit use of marijuana developed into a prolonged and extensive history of substance abuse and addiction, which involved the daily use of marijuana, and the frequent use of cocaine, crystal methamphetamine, alcohol, and ecstacy. (Tr. Vol. I, 43). Merriweather began using cocaine at age 22, and he characterized that controlled substance as his drug of choice. (Tr. Vol. I, 43). Later, at around age 28, he began to use crystal methamphetamine frequently. (Tr. Vol. I, 43). He also acknowledged using "various pills," "ecstacy," and shooting heroin intravenously. (Tr. Vol. I, 43; Doc. #24 at 6). Merriweather would use cocaine up to three times each day when it was available to him. (Doc. #24 at 6).
6. Merriweather's father described an incident where Merriweather confided in him that he was hearing voices. Suspecting drug use, Merriweather's father asked Merriweather if he had been taking illicit drugs. (Doc. #24 at 7). Merriweather responded in the affirmative, which prompted Merriweather, Sr. to inform him that the voices should cease if Merriweather would stop taking drugs.
7. Substances such as marijuana, cocaine, crystal methamphetamine, alcohol, and ecstacy can cause psychotic symptoms to develop and persist for years after drug use has ended. (Tr. Vol. I, 40, 43, 121-22, 159, 163; Tr. Vol. IV, 604).
8. While being treated at UAB Hospital for the gunshot wound following his arrest, Merriweather tested positive for opiates. (Tr. Vol. I, 103-04; Def. Ex. #15 at 18).
9. The earliest account of strange behavior exhibited by Merriweather comes from Latisha Simpson, who started dating Merriweather in 1995 when he moved to Montgomery to study at Alabama State University. (Tr. Vol. III, 552). Simpson testified at the hearing that Merriweather started to act oddly around 1996. (Tr. Vol. III, 553). For example, Simpson noted that Merriweather would laugh "at times when things weren't funny." (Tr. Vol. III, 554). She also recalled that Merriweather experienced "visions" and "hallucinati[ons]." (Tr. Vol. III, 554). Further questioning revealed, however, that to Simpson's understanding these "visions" and "hallucinati[ons]" meant bad dreams. (Tr. Vol. III, 554). She stated that Merriweather experienced those "all the time." (Id.). These bad dreams, Simpson testified, would cause Merriweather to wake up screaming on "several occasions." (Id. at 555, 566). Yet, in her affidavit (Def. Ex. #75 at 1), Simpson stated that Merriweather woke up screaming "on one occasion," a fact that she did not dispute at the hearing, but insisted that she meant to say "several occasions." These and other inconsistencies
10. Merriweather's family reportedly began observing unusual behavior by Merriweather a few years after he returned to Birmingham in 1996. Between late 2001 and early 2002, Euknesha Kim Patton, Merriweather's sister, received calls from family members informing her that Merriweather was acting strangely. (Tr. Vol. II, 299). This prompted Patton, who by her testimony had traveled to Birmingham to visit her family sometime in late 2001 or early 2002, to meet with Merriweather. (Id.). Patton testified that, during the meeting, Merriweather informed her that he was hallucinating, and seeing demons in everyone, including family members. (Id. at 299-300). According to Patton, Merriweather further confided in her that he felt that there was a conspiracy against his life, that he would see signs along the neighborhood and on television directed at him, that he was preoccupied with the letter "C," that he believed that the government planted a chip in his shoulder, and that he could hear his father's thoughts without his father speaking. (Tr. Vol. II, 300). At the end of their conversation, Patton asked Merriweather if he had been using substances, to which Merriweather responded that he had; however, according to Patton, Merriweather did not associate his experiences with a lack of rest, stress, or drug use. (Tr. Vol. II, 301).
11. Merriweather's family did not pursue medical treatment for Merriweather's behavior or his reported experiences. (Tr. Vol. I, 27-28; Vol. II, 299-300, 335, 349-50; Doc. #24).
12. Patton and her husband decided that it would be in Merriweather's best interest to invite Merriweather to return with them to Montgomery. (Tr. Vol. II, 302). Merriweather packed a bag and left with them that night. (Id. at 303). Merriweather left his car in Birmingham. (Id. at 304).
13. For approximately nine months, Merriweather stayed with his sister in Montgomery, sharing a bunk bed with Patton's two young children. (Tr. Vol. II, 303). During the first six months, Patton and her husband took precautions to restrict Merriweather's exposure to drugs and alcohol. (Id.).
14. According to Patton, Merriweather's paranoia persisted during his stay in her home. Patton testified that Merriweather told her that he thought her 6 and 4-year-old sons were plotting to kill him because they were allegedly speaking in code. (Tr. Vol. II, 305). Merriweather similarly accused Patton and her husband of speaking in code with each other. (Id. at 306). Such incidents, however, did not seem to diminish Merriweather's ability to trust Patton with his life or Patton's ability to trust Merriweather with her young children. Patton recounted that Merriweather
15. At the same time, Patton also testified that Merriweather's condition appeared to improve somewhat over the course of his stay with her. His conversations became more rational and he experienced fewer "acrimonious" situations after four months. (Tr. Vol. II, 310). Patton attributed this to Merriweather's church participation. (Id.).
16. Merriweather eventually moved out of Patton's home to live with Alecia Smith, a former girlfriend (Tr. Vol. II, 307, 314). Merriweather took a position working with the Department of Corrections in Montgomery. (Id. at 312). The job lasted approximately sixty days. (Id.). Merriweather and Smith broke up after several months and Merriweather moved into a separate apartment, but he was evicted from that residence after six months. (Id. at 313-14).
17. Patton and her husband took Merriweather back into their home in 2003. (Tr. Vol. II, 315). Merriweather stayed in his sister's home for another three to four months. (Id.).
18. This final stay in his sister's home proved more fractious than Merriweather's prior tenancy. Patton attested that she laid down several house rules Merriweather was expected to abide by during his stay: (1) he would not bring home visitors, (2) he would not smoke cigarettes in the house, (3) he would not bring alcoholic beverages into the house, and (4) he would clean up after himself. (Tr. Vol. II, 315). Merriweather broke all of these rules. (Id.). This prompted Patton and her husband to ask Merriweather to leave, which he did promptly.
19. Patton testified that she continued to maintain contact with Merriweather and saw him the day before he robbed the Bessemer bank. (Tr. Vol. II, 317). She noted that Merriweather's appearance disturbed her. (Id.). He wore dirty clothes and his manner of dress was different. (Id.). He had shaved his eyebrows and his head except for a patch of hair at the top of his head. (Tr. Vol. II, 317-18). Patton also described finding Merriweather practicing martial arts, chanting "Shaolin Monk, Shaolin Monk." (Id. at 319).
20. On May 15, 2007, the day after the robbery, Merriweather was interviewed by detectives at the Jefferson County Jail. (Def. Ex. #16 at 1). During this interview, Merriweather's speech remained rational, coherent, and composed, which was surprising given that he had been shot the day before. (Def. Ex. #16 at 3, 128). His responses, however, were noticeably evasive. On several occasions, Merriweather would try to delay answering a question.
1. On June 27, 2007, Merriweather was indicted by the Grand Jury in the United States District Court for the Northern District of Alabama. (Doc. #1). The charges include allegations that Merriweather engaged in Armed Bank Robbery by Force or Violence Resulting in Death, as well as Armed Robbery with Forced Accompaniment in violation of 18 U.S.C. §§ 2113(a), (d) and (e); the Use or Carrying of a Firearm During a Crime of Violence (gun discharged) in violation of 18 U.S.C. § 924(c)(1)(A); and the Use or Carrying and Discharge of a Firearm in Relation to a Crime of Violence Resulting in Death in violation of 18 U.S.C. §§ 924(c) and (j). (Doc. #1). Merriweather has also been indicted by the State of Alabama on charges of Capital Murder, Attempted Murder, and Kidnapping in the First Degree. (Doc. #4 at 3).
2. During preliminary hearings for the state charges, the Defense notified the court that it intended to retain the services of a mental health professional. (Doc #4 at 3; Doc #22 at 1). Anticipating that the Defense would raise mental health defenses, the United States interviewed Merriweather's family and friends. (Doc #4 at 3). Based on this investigation, the United States filed a motion on July 13, 2007, requesting that the court order Merriweather to submit to a mental evaluation to determine his mental competency to stand trial and his mental state at the time of the offenses. (Doc. #4 (Under Seal) at 3-4; see also Docs. #22 at 2, #152 at 2).
3. By that time, the Defense had already retained Dr. Kimberly Svec Ackerson, a local forensic psychologist, to evaluate Merriweather. (Doc. #22 at 2). Magistrate Judge John E. Ott was aware of this arrangement and deferred ruling on the Government's motion until after it received Dr. Ackerson's evaluation report. (Id.). Dr. Ackerson's evaluation report, which was completed following her last interview with Merriweather on September 24, 2007, was inconclusive. The report noted that Merriweather exhibited strong indicators of mental illness, but commented that Merriweather's self-admitted history of drug use "serves to complicate the clinical picture." (Def. Ex. #34 at 2). Moreover, Dr. Ackerson indicated that she was at an impasse with Merriweather, who refused to participate. (Id.). Dr. Ackerson strongly recommended that further evaluation be conducted at a facility that would be able to provide 24-hour observation
4. In light of Dr. Ackerson's recommendations, Judge Ott, in his October 12, 2007 order, referred Merriweather to the Bureau of Prisons for in-patient evaluation and treatment "to discern competency issues and to afford Defendant appropriate mental health treatment." (Doc. #22 at 3).
5. From November 2, 2007 through January 14, 2008, Merriweather was housed at the United States Medical Center for Federal Prisoners in Springfield, Missouri ("MCFP Springfield") where he was evaluated by Dr. Christina Pietz. (Doc. #24). At the conclusion of Merriweather's stay at MCFP Springfield, Dr. Pietz issued two formal reports: (1) a report regarding Merriweather's competency to proceed to trial (Doc. #24 at 1-17), and (2) a report regarding Merriweather's mental state at the time of the crime. (Id. at 18-27). In Dr. Pietz's report regarding Merriweather's competency to stand trial, she acknowledged testimony from Merriweather's family describing psychotic behavior, but concluded that such symptoms were best explained by Merriweather's illicit drug use. (Id. at 11-12). The report concluded that Merriweather "does not currently suffer from a mental illness" (Id. at 13) and that Merriweather "is currently competent to stand trial and make other decisions regarding his case." (Id. at 15).
6. After his mental evaluations were conducted at MCFP Springfield, Merriweather was returned to the Jefferson County Jail. (Doc. #7 at 4).
7. On June 3, 2008, the United States filed its formal Notice of Intent to Seek the Death Penalty. (Doc. #29). Pursuant to 18 U.S.C. § 3005, Judge Ott appointed Richard S. Jaffe and J. Derek Drennan to represent Merriweather. (Doc. #33; Doc. #36).
8. On November 10, 2008, almost a year after Merriweather's evaluation at MCFP Springfield was completed, Jaffe first expressed his concern to the Government that, based on information discovered by the Defense mitigation team, Merriweather was "decompensating"
9. On December 9, 2008, Judge Ott granted the Defense's request for a mitigation investigator and a victim liaison. (Doc. #47).
10. On January 26, 2009, Dr. Richard G. Dudley, a psychiatrist retained by the Defense, interviewed Merriweather (Def. Ex. #9 at 2) and later produced an affidavit declaring his belief that Merriweather "is unable to understand the charges against him and is unable to assist his lawyers or [Dudley] with [Merriweather's] case." (Def. Ex. #66 at 1). On April 30, 2009, Dr. James Merikangas, another psychiatrist retained by the Defense, interviewed Merriweather for approximately one and a half hours (Tr. Vol. VII, 1128) and concluded in a two-sentence letter addressed to the Defense that Merriweather was incompetent to stand trial. (Doc. #66). The Defense did not notify the
11. Dr. Robert Hunter, a psychiatrist at the Jefferson County Jail, testified that he was called on two occasions to examine Merriweather in 2009. On April 16, 2009, Dr. Hunter was called to examine Merriweather after he fasted enough to slip through the food door, and was able to slide under the gate. (Tr. Vol. V, 886; Def. Ex. #36 at 1). After escaping his cell, Merriweather assaulted another prisoner. (Id.). Dr. Hunter testified that Merriweather was calm and cooperative during the interview and did not show any outward signs of psychosis. (Def. Ex. #36 at 1). During his second examination on July 31, 2009, however, Dr. Hunter testified that Merriweather's behavior was markedly different. (Def. Ex. #36 at 1). Merriweather was "paranoid and preoccupied with the idea that he was housed `around homosexuals'" and his speech and thought processes "were rambling and at times disjointed." (Id.). Dr. Hunter described Merriweather as irritable and noted that he became increasingly hostile as the interview progressed, which forced Dr. Hunter to terminate the interview. (Id.).
12. On August 5, 2009, the Defense moved to have Merriweather declared incompetent to stand trial and requested that he be remanded to the custody of the Attorney General to be placed in a federal mental health facility until competency was restored. (Doc. #65). In support of its motion, the Defense filed Dr. Merikangas's letter as a sealed ex parte pleading, effectively depriving the Government of notice concerning both the existence of the evaluations and their use. (Doc. #70 at 6-7).
13. Judge Ott conducted a telephone conference with the parties on August 10, 2009 to ascertain their positions regarding the motion. (Doc. #70 at 7). Apprehensive about the impartiality of the previously undisclosed psychiatrists hired by the Defense, the United States requested that Merriweather undergo another mental evaluation by the Bureau of Prisons to obtain a more current, less biased determination as to whether Merriweather had actually decompensated since his evaluation at MCFP Springfield. (Doc. #70 at 7-8).
14. The Defense responded with a request that the court appoint a private independent psychiatrist(s) — rather than the Bureau of Prisons — to evaluate Merriweather's competency due to allegations that Dr. Pietz was biased in favor of the Government. (Doc. #72). The Defense also moved the court to exclude Dr. Pietz from participating in any future evaluations should the court nonetheless remand Merriweather to the Bureau of Prisons for reevaluation. (Doc. #72).
15. A hearing was convened on August 20, 2009 and the parties submitted post-hearing briefs. (Doc. #79 at 1-2). After considering the respective arguments and applicable law, Judge Ott issued an order on November 16, 2009, directing that Merriweather undergo a new evaluation at the Federal Medical Center at Butner, North Carolina ("FMC Butner"). (Doc. #79). At the insistence of Defense counsel, Judge Ott further ordered that all interviews with Merriweather be videotaped, and that the final report include input by a neuropsychiatrist and/or neurologist. (Doc. #79 at 14).
16. From December 9, 2009, until April 18, 2011, Merriweather underwent an extended in-patient competency evaluation at FMC Butner. (Tr. Vol. IV, 583). During his 496-day stay at FMC Butner, Merriweather
17. Merriweather's behavior during his time at FMC Butner appears to have been stable. According to Eugene Singleton, a federal corrections officer who saw Merriweather on a regular basis, Merriweather had the calm demeanor of an ordinary inmate doing his time. (Tr. Vol. VIII, 1265-66). Singleton never observed Merriweather reacting to hallucinations or paranoid delusions. (Id.). Merriweather was never aggressive or rude toward the corrections officers. (Tr. Vol. VIII, 1267). Merriweather generally spent his time sleeping, but he would chat from time to time with Singleton when he made his periodic rounds, sometimes requesting peanut butter, or a magazine or novel to read. (Tr. Vol. VIII, 1268-69).
18. In compliance with Judge Ott's second requirement, the Bureau of Prisons secured the services of two outside consultants, Alan Mirsky, Ph.D., a neuropsychologist, and Thomas Gualtieri, M.D., a neuropsychiatrist, to evaluate Merriweather in addition to the evaluation performed by FMC Butner staff. Their reports were reviewed and summarized by Dr. Edward Landis, the Deputy Chief Psychologist at FMC Butner, who passed them to the psychiatrist charged with supervising Merriweather's evaluation at FMC Butner, Staff Psychiatrist Bruce Berger, M.D. (Tr. Vol. VIII, 1288).
19. Dr. Berger reviewed the reports submitted by Drs. Mirsky, Gualtieri, and Pietz (Tr. Vol. IV, 585) as well as collateral reports by Drs. Dudley, Hunter, and Merikangas. (Tr. Vol. IV, 587). Dr. Berger, who was assisted by Dr. Jill Grant and a team of mental health professionals, conducted four videotaped formal interviews in addition to seeing Merriweather on a daily basis for 496 days. (Tr. Vol. IV, 586). On April 1, 2011, Dr. Berger issued a report in which he concluded that Merriweather "does currently posses the capacity to understand his current charges, understand courtroom functioning, and could, should he so choose, work affirmatively with his attorney in a rational way ... [and that] he is competent to proceed." (Gov't Ex. #10 at 10).
20. After his evaluation at FMC Butner, Merriweather was returned to the Northern District of Alabama on April 20, 2011 and housed at the Shelby County Jail. (Tr. Vol. VII, 1015).
21. Upon his return to the Shelby County Jail, Merriweather initially refused to eat for nine days, but instead requested Ensure from medical staff. (Tr. Vol. VII, 1215). On the ninth day (April 29, 2011), Merriweather resumed eating with a renewed appetite; he would ask for extra trays and often consumed two or three trays per meal. (Id.). According to Officer Tim Laatsch, a corrections officer with the Shelby County Sheriff's Office, Merriweather ate regularly until he was moved from his segregation unit into an intermediate housing unit closer to the general prison inmate population. (Id. at 1215-16). After being relocated, Merriweather again refused to eat. (Id. at 1216). Officer Laatsch testified that Merriweather had apparently told another inmate that he (Merriweather) would not eat anything wet or shiny.
22. After beginning his stay at the Shelby County Jail, Merriweather refused to bathe regularly, showering only every third or fourth day.
23. During three days in June 2011, Dr. Merikangas and Dr. Dudley, the expert witnesses retained by the Defense to evaluate Merriweather two years earlier, attempted to meet with Merriweather at the Shelby County Jail; Merriweather refused to engage with them. (Tr. Vol. VI, 946; Tr. Vol. VII, 1148).
24. On June 22, 2011, Dr. Merikangas visited Merriweather in the Shelby County Jail. (Tr. Vol. VII, 1146, 1149). When Dr. Merikangas attempted to interview Merriweather in a small attorney-client interview room, Merriweather ignored him. (Id. at 1148). Dr. Merikangas noticed that Merriweather's weight had dropped dramatically. (Id.). Dr. Merikangas visited Merriweather again on June 23, 2011. (Id. at 1149). Again, Merriweather was unresponsive. Dr. Merikangas noted that, when he asked about Merriweather, the correctional officers who accompanied him into the room indicated that Merriweather's behavior towards Dr. Merikangas was not different from his behavior towards the guards and they expressed sympathy for Merriweather. (Id. at 1151).
25. On June 24, 2011, Dr. Dudley visited Merriweather in his cell at the Shelby County Jail. (Def. Ex. #9 at 2; Tr. Vol. VI, 945). The first thing Dr. Dudley noticed was the smell; he had been told by correctional officers that Merriweather had not been showering. (Tr. Vol. VI, 944-45). Dr. Dudley recounted that correctional officers had told him that Merriweather was not eating food prepared by the jail, but was eating sealed, packaged food. (Id. at 945). When Dr. Dudley attempted to communicate with Merriweather, the only responses he was able to elicit were "the hand signals and the verbal refusal to speak." (Tr. Vol. VI, 946).
26. Finally, on June 27, 2011, in the presence of Mr. Jack Earley, a lawyer retained by the Defense as a criminal law expert, Merriweather engaged in an extensive conversation with his Defense counsel. (Tr. Vol. V, 823).
27. Also on June 27, 2011, Judge Ott entered an order authorizing personnel at the Shelby County Jail to take any reasonable steps necessary to ensure Merriweather's health was not further compromised, including forcibly feeding and bathing him. (Doc. #109).
28. Following the court order, Diana Shirley, Director of Nursing at the Shelby County Sheriff's Office, was scheduled to insert a feeding tube through Merriweather's nose. (Tr. Vol. VII, 1233). Director Shirley testified that Merriweather was unhappy about this prospect, and volunteered that he "might try to eat" if she would not insert the feeding tube. (Tr. Vol. VII, 1234). Shirley responded that the offer to maybe "try to eat" was not a real offer; either Merriweather would eat or the tube would be inserted. (Tr. Vol. VII, 1234). Merriweather promptly agreed to eat. (Id.). Shirley further testified that Merriweather resumed eating normally after that confrontation and never again complained about food that was wet or shiny or that he was being poisoned. (Tr. Vol. VII, 1236). Shirley further noted that she never observed Merriweather having conversations in his head
29. Kelly Hammonds, another nurse at the Shelby County Jail who interacted with Merriweather, testified that Merriweather showered daily following the court order authorizing prison staff to take necessary procedures to ensure that Merriweather bathed and ate.
30. Since being housed at the Shelby County Jail, Merriweather has neither been observed responding to internal stimuli, nor has he given any indication of suffering from delusions or hallucinations. (Id. at 1218, 1236, 1245).
31. On July 25, 2011, this court convened a hearing, pursuant to 18 U.S.C. §§ 4241(a) and (c), to hear testimony and receive evidence on the issues surrounding Merriweather's competency to stand trial. The court heard from several Government witnesses. Included in this group were four mental health experts (Drs. Pietz, Berger, Gualtieri, and Landis), two nurses (Diana Shirley and Kelly Hammonds), and two corrections officers (Tim Laatsch and Eugene Singleton). The Defense countered with seven witnesses, including three mental health experts (Drs. Merikangas, Mirsky, and Dudley), a legal "expert" (Jack Early), a jail psychiatrist (Dr. Robert Hunter
32. At the request of the court, both parties submitted briefs as well as proposed findings of facts and conclusions of law. The Government submitted its brief in support of a determination that Merriweather is competent to stand trial (Doc. #152), along with proposed findings of fact and conclusions of law. (Doc. #153). The Defense submitted its brief in support of a determination that Merriweather is incompetent to stand trial (Doc. #156), along with proposed findings of fact and conclusions of law. (Doc. #154). The Government, having borne the burden to prove Merriweather competent by a preponderance of the evidence,
Each party called a number of expert witnesses at the hearing, and their testimony is addressed below.
1. Merriweather's first court-ordered evaluation occurred at the United States Medical Center for Federal Prisoners in Springfield, Missouri ("MCFP Springfield") from November 2, 2007 to January 14, 2008. (Tr. Vol. I, 19; Gov't Exs. #2, 3). Merriweather's evaluation was overseen by Dr. Christina Pietz, a psychologist with 21 years of experience at MCFP Springfield. (Tr. Vol. I, 13). Dr. Pietz conducted six formal interviews totaling 12-15 hours, and informal interviews in the course of routine rounds on Merriweather's unit for 75 days. (Id. at 19-20, 32). Over the course of Merriweather's evaluation, Dr. Pietz administered five psychological tests: (1) the Validity Indicator Profile; (2) the Shipley Institute of Living Scale; (3) the Minnesota Multiphasic Personality Inventory; (4) the Evaluation of Competency to Stand Trial-Revised (ECST-R);
2. Dr. Pietz's findings were compiled into two reports, one dealing with Merriweather's competency to stand trial and another concerning Merriweather's mental state at the time of the offense. (Doc. #24).
3. In Dr. Pietz's report on Merriweather's competency to stand trial, she diagnosed Merriweather with adult antisocial behavior and attributed Merriweather's behavior to polysubstance dependence. (Doc. #24 at 14). She concluded that "Merriweather does not currently suffer from a mental illness, and therefore, by definition does not meet the criteria for being found not competent." (Doc. #24 at 14). Pietz based this conclusion on Merriweather's responses to the psychological tests, his responses during interviews, and a review of relevant literature. (Tr. Vol. I, 63).
4. Most notably, Dr. Pietz found that Merriweather's scores on the ECST-R suggested no impairment in his ability to consult with his attorney or have a rational understanding of court proceedings. (Doc. #24 at 14). Indeed, Dr. Pietz indicated that Merriweather performed "exceptionally well" on the ECST-R — even better than one of her students. (Tr. Vol. I, 59).
5. There was one exception to Merriweather's otherwise strong performance on the ECST-R: his score suggested moderate impairment in his ability to have a factual understanding of court proceedings. (Doc. #24 at 14). Dr. Pietz found this result to be surprising given that Merriweather had clearly demonstrated that he had a factual understanding of court proceedings in other interviews. (Id.). When asked about the roles of various actors in legal proceedings, Merriweather was able to correctly identify the roles of the judge, the prosecutor, and the Defense counsel. (Id. at 15). He understood that a jury of 12-14 jurors would be selected from his community, though he did not know that a guilty verdict required a unanimous decision and stated that "[t]he role of the jury is to find the defendant guilty." (Id.). When asked about possible pleas, Merriweather had no difficulty articulating
6. Conflicts among various statements given by Merriweather are not limited to discrepancies between his performance on the ECST-R and his answers in interviews. Dr. Pietz's interviews with Merriweather are littered with references to inconsistent statements he made that, when taken together, reveal a pattern of evasive behavior undertaken by Merriweather to conceal the extent of his knowledge and culpability. For example, when asked about the charges against him, Merriweather initially claimed that he had no knowledge that he was charged with murder. (Doc. #24 at 14). In a subsequent interview, Merriweather acknowledged the murder charge and indicated that his attorney and investigating officers informed him of the charges against him soon after his arrest. (Doc. #24 at 14). When questioned about the events leading up to the arrest, Merriweather initially asserted that he could recall only a few details of the alleged offenses. (Doc. #24 at 14). During subsequent interviews, however, Merriweather provided clear, detailed, and coherent recollections of the robbery, including a written description of his memory of the events. (Doc. #24 at 15).
7. The details of the robbery provided by Merriweather, however, varied with each interview. One jarring inconsistency in Merriweather's recollection of the robbery was his indication in earlier interviews of the presence of an accomplice named "Charlie." (Doc. #24 at 15). During five of the first six interviews, Merriweather provided a different rendition of the robbery with Charlie featured in a new role with each telling. (Tr. Vol. I, 32-33). In one version, for example, Charlie took Merriweather to the bank to "cash a check." (Id. at 33). In another version, Charlie was actually the person who got shot escaping the crime scene. (Id.). In yet another version, Charlie simply told Merriweather to follow him into the bank, placing Merriweather at the wrong place at the wrong time. (Id.). From all of these accounts, Dr. Pietz was left with the impression that Merriweather was trying to minimize responsibility by "trying to blame others." (Id. at 35). Dr. Pietz noted that when she directed Merriweather's attention to a discrepancy between his stories and the investigative record, Merriweather would "try[] to come up with a different response that made more sense." (Id.).
8. Merriweather requested the sixth interview he had with Dr. Pietz, and during that interview gave an account of the robbery in which "Charlie" was absent and Merriweather took responsibility for the robbery. (Tr. Vol. I, 34). In that interview, Merriweather stated that he had received a "message" that described the inside of the bank and the identity of the manager. (Id.).
9. While Merriweather gave different descriptions of his involvement in the bank robbery, Dr. Pietz found that there was never any doubt that Merriweather understood what he was charged with and why he was incarcerated. (Tr. Vol. I, 32-35).
10. Further supporting her position that Merriweather was more likely manipulative than mentally infirm, Dr. Pietz found Merriweather's speech and behavior to be inconsistent with symptoms typically associated with mental illness. Dr. Pietz testified that persons suffering from mental illness, Dr. Pietz testified, are disorganized in their thoughts and speech, struggle to provide information, and typically provide inaccurate information tainted by delusional thought. (Tr. Vol. I, 30). Concealing disorganized speech (and, therefore, concealing a mental illness) is not easy and will likely reveal itself over time during conversations or meetings involving persons genuinely suffering from a psychotic illness. (Id. at 54). Throughout Merriweather's 75-day evaluation at MCFP Springfield, his speech was never observed to be disorganized, but was instead described as rational, coherent, and organized. (Id. at 27-30, 41, 44, 46-47, 54-55). If anything, Dr. Pietz characterized Merriweather's responses to questions relating to the robbery as "cautious." (Tr. Vol. II, 272, 275). Merriweather's behavior was similarly inconsistent with symptoms typical of mental illness. There were no signs of memory deficit. (Tr. Vol. I, 57). Merriweather maintained a clean cell and bathed regularly during his stay at MCFP Springfield. (Id. at 45). Merriweather was never mute, though he did take time to think through his responses. (Id. at 46, 57).
11. Dr. Pietz also found no negative signs of schizophrenia.
12. In the first incident, Merriweather reported seeing gremlins in his cell to Dr. Leanne Preston, the on-call psychologist. (Tr. Vol. I, 39, 90). Merriweather told Dr. Preston that he thought he might be suicidal. (Id. at 40). Dr. Preston placed Merriweather under suicide watch, but wrote in her report that Merriweather's claim that he saw gremlins was suspect. (Id.). Dr. Pietz found Merriweather's claims to be questionable for at least five reasons. First, as Dr. Pietz noted, it is very rare for truly psychotic people to experience visual hallucinations. (Id.). Visual hallucinations are actually more consistent with illicit substance abuse than psychosis. (Id.). Second, even in the rare cases when someone actually experiences visual hallucinations, the hallucinations are usually frightening and not casually mentioned. (Id. at 42). Third, people who complain about being suicidal are typically not truly suicidal since drawing attention to themselves increases the chances that a suicide attempt would be thwarted. (Id. at 41). Fourth, when placed under suicide watch, Merriweather was more upset about losing his privacy because of the constant surveillance imposed by the watch than he was due to any perceived gremlins or alleged suicidal tendencies. Indeed, Merriweather actually requested to be taken off suicide watch as soon as possible. (Id.). Finally, Dr. Pietz testified that generally hallucinations do not completely
13. The second incident involved Merriweather scraping his arms with a spork. (Tr. Vol. I, 42). He told a nurse that there were bugs in the room, which may have been a visual hallucination. (Id.). Merriweather, however, did not seem overly concerned about it. (Id.). Dr. Pietz discounted this incident because visual hallucinations are typically sufficiently frightening to the patient to warrant more than a single, casual mention. (Id.). In this case, Merriweather mentioned the bugs casually, but did not appear disturbed by them nor did he mention seeing bugs in his room again. (Id.).
14. Based on her observations of Merriweather during his 75-day evaluation at MCFP Springfield, his responses to psychological tests, and a review of collateral sources, Dr. Pietz concluded that Merriweather was not mentally ill, but instead experienced abnormal stimuli as a result of polysubstance abuse, and exhibited an anti-social disorder. (Tr. Vol. I, 52-53). Because Merriweather does not suffer from a mental illness, Dr. Pietz opined that he is competent to stand trial.
1. Over one year after Dr. Pietz completed her 75-day evaluation of Merriweather, the Defense hired Dr. Richard G. Dudley Jr., a psychiatrist, to evaluate Merriweather for mental illness. Dr. Dudley met with Merriweather on three separate occasions. The first interview, conducted over two days, began on January 26, 2009. (Def. Ex. #9 at 2). Dr. Dudley also met with Merriweather on August 17, 2009 (Def. Ex. #66 at 1), and again on June 24, 2011, after Merriweather returned from his second extended evaluation at FMC Butner.
2. Dr. Dudley is qualified by training and experience as a forensic psychiatrist. (Tr. Vol. VI, 912-17). He has extensive experience in diagnosing and treating people who are both schizophrenic and substance abusers based upon the time he spent running a community mental health clinic in Harlem, New York City. (Id. at 940).
3. In addition to interviewing Merriweather, Dr. Dudley reviewed previous evaluations and other collateral sources of information regarding Merriweather's background and history, which he considered vital to his evaluation. (Tr. Vol. VI, 920-21). After reviewing the available record and evaluations, Dr. Dudley found four possible diagnoses explaining Merriweather's condition:
(Id. at 922-23).
4. Of these possible diagnoses, Dr. Dudley gave his opinion that the most appropriate and accurate diagnosis was that Merriweather is a person who suffers from schizophrenia and who also uses drugs. (Tr. Vol. VI, 926-27).
5. Drawing from the DSM,
6. Dr. Dudley testified that the symptoms his family recounted were exhibited by Merriweather,
7. Dr. Dudley testified that when he saw Merriweather in 2009, Merriweather was verbal, but disorganized and distracted. Merriweather appeared to be responding to internal stimuli, and his responses were bizarre. According to Dr. Dudley, Merriweather evinced no understanding of the nature of the case, the charges against him, and the possible outcomes of his case. Merriweather talked about his imminent release and expressed the view that he had been held longer than he expected. Dr. Dudley found Merriweather's affect to be flat, and testified that Merriweather would interrupt him with inappropriate laughter. In a subsequent meeting in 2009, Merriweather expressed to Dr. Dudley that he felt he was at risk of being harmed, perhaps poisoned. (Tr. Vol. VI, 943-44).
8. An important factor in Dr. Dudley's diagnosis was Merriweather's substantial weight loss. (Tr. Vol. VI, 923-30, 996). He did, however, concede that Merriweather's later decision to continue eating, arising from his aversion to the needles and tubes that would have been used to inject nutrition into him, reflected a choice by Merriweather to realize a clear preference. (Id. at 1022).
10. Dr. Dudley dismissed the role of illicit drugs in the context of Merriweather's diagnosis because (1) Merriweather's symptoms seemed to be present when he was not using drugs, and (2) there was a lack of information to identify a drug, or indicate that drugs were used in the quantity or for the duration necessary to cause the symptoms. (Tr. Vol. VI, 925). However, Dr. Dudley did note that, in addition to marijuana use, there is evidence that Merriweather used other illegal drugs. (Id. at 958, 978).
11. Dr. Dudley considered, but ruled out malingering, in part because mimicking the negative symptoms of schizophrenia, even if one were to assume that the patient knows what they are, would be difficult. (Tr. Vol. VI, 937-39). Dudley admitted, however, that he was unfamiliar with the Test of Memory Malingering ("TOMM") and was not an expert in malingering. (Id. at 956, 1003).
12. Dr. Dudley recommended to counsel that a neurological expert be retained to determine, among other things, whether scans and MRIs of Merriweather's brain were normal. (Tr. Vol. VI, 953).
1. On April 30, 2009, while Merriweather was still incarcerated in the Jefferson County Jail, Dr. James Merikangas, a board-certified forensic neuropsychiatrist retained by the Defense, interviewed Merriweather for one and a half to two hours. (Tr. Vol. VII, 1128). In connection with this meeting, Dr. Merikangas reviewed extensive collateral material and requested an MRI and a PET scan of Merriweather's brain to detect any physical abnormalities. (Id. at 1129). During the initial meeting, Dr. Merikangas formed an impression that Merriweather was psychotic, suffered from hallucinations, ideas of reference, ideas of influence, and that his grasp on reality was impaired. Merriweather reported to Dr. Merikangas that televisions were speaking directly to him, he thought that he could control people with his thoughts, and asked if they were in a movie. Dr. Merikangas observed positive symptoms of schizophrenia, namely, paranoia, hallucinations, and delusions. (Id. at 1129-31).
2. Two years later, in June 2011, Dr. Merikangas visited Merriweather for a second time. This occurred after Merriweather had returned from custodial evaluations at FMC Butner. Dr. Merikangas reported that he attempted to interview Merriweather in a small attorney-client room, this time at the Shelby County Jail, but Merriweather remained mute during the meeting. (Tr. Vol. VII, 1146). Dr. Merikangas returned the next day to assess whether Merriweather was competent
3. Dr. Merikangas also reviewed records from Merriweather's stay at FMC Butner, jail records from the Shelby County Jail, and reports and interviews conducted by other medical experts. (Tr. Vol. VII, 1147).
4. Based on his interviews and a review of these records, Dr. Merikangas concluded that Merriweather suffers from psychosis due to schizophrenia and recommended that Merriweather be given anti-psychotic and mood stabilizing medication. (Tr. Vol. VII, 1142-43).
5. Dr. Merikangas also found that Merriweather is unable to cooperate with counsel. (Tr. Vol. VII, 1144). Dr. Merikangas concluded that Merriweather's lack of cooperation with counsel is due to an inability to communicate (rather than a deliberate refusal to communicate), and was not the result of malingering. Dr. Merikangas reached the conclusion that Merriweather is not malingering based on two observations: (1) it is difficult to maintain a lie for an extended period of time and Merriweather's behavior was consistent during his 16-month stay at FMC Butner, and (2) Merriweather has no incentive to lie. (Id. at 1151, 1163). With regard to the first observation, Dr. Merikangas stated that "the real determinative thing is to have observations of the patient over a period of time as there are very few people who can totally fake their illnesses in ways that are consistent with their disease under 24-hour observation for weeks and months at a time." (Id. at 1126).
6. Dr. Merikangas opined that Merriweather is not competent to stand trial because of his psychosis due to schizophrenia and his inability to cooperate with counsel.
8. Furthermore, Dr. Merikangas cautioned that he did not conduct the scans himself, and that the images he presented to the court are "for illustrative purposes." He noted that he "wouldn't presume to look at [the scans] and say [he] c[ould] make a diagnosis from these tiny images." (Tr. Vol. VII, 1139-40). Dr. Merikangas then proceeded to diagnose "psychosis because of schizophrenia" based on the MRI and PET scan images. (Tr. Vol. VII, 1141-42). Dr. Merikangas noted that the type of atrophy observed in the images is frequently seen in patients with schizophrenia. (Id. at 1134-39). He further testified that the brain abnormalities observed cannot be the result of teenage or adult substance abuse because studies have shown that the brain abnormalities caused by illicit substances are of an entirely different nature. (Id. at 1142).
9. Dr. Merikangas conceded that a schizophrenic can still be found competent to stand trial, citing in particular the case of Ted Kaczynski.
10. Since 1998, Dr. Merikangas has testified in 97 murder proceedings, twice for the prosecution or the court and 95 times for the Defense. (Tr. Vol. VII, 1165). He acknowledges that he is a staunch opponent of the death penalty, and believes it should be abolished. (Tr. Vol. VII, 1165-66). As the Government correctly notes, his lectures and scholarship suggest he has an agenda. (See Doc. #152 at 40; citing Tr. Vol. VII, 1167-69). Suffice it to say that of all the mental health experts who testified, Dr. Merikangas was the least objective.
11. After meeting with Merriweather and reviewing the brain scans, Dr. Merikangas recommended that Merriweather
1. In accordance with Judge Ott's order requiring Merriweather's competency evaluation at FMC Butner to include input by a neurologist and/or a neuropsychiatrist (Doc. #79 at 14), Dr. C. Thomas Gualtieri, a board certified psychiatrist with 42 years of medical experience, was asked by FMC Butner's chief psychiatrist, Dr. Jean Zula, to conduct an independent neuropsychiatric evaluation of Merriweather while he was at FMC Butner. (Tr. Vol. III, 381, 385; Gov't Ex. 5 & 6).
2. Dr. Gualtieri's evaluation consisted of an approximately two and a half to three hour interview and testing conducted on May 19, 2010. (Tr. Vol. III, 389-99). During Dr. Gualtieri's evaluation, Merriweather was calm, polite, attentive, sufficiently groomed, spoke in a level voice, and was able to appropriately sit in his chair and establish good eye contact. (Tr. Vol. III, 401-02, 463, 498, 502; Gov't Ex. 6, 7, and 8).
3. When engaged in small talk with Dr. Gualtieri, Merriweather behaved appropriately and gave straightforward answers. (Tr. Vol. III, 401). When questioned about the robbery or other serious matters, however, Merriweather became evasive, playful, and nonsensical. (Tr. Vol. III, 402; Gov't Ex. 6, 7, and 8). Similar to his behavior during the videotaped interviews with Dr. Berger, Merriweather's responses to Dr. Gualtieri's questions were often circuitous, circumstantial, and flowed like a stream of consciousness. (Tr. Vol. III, 402, 452-54; Gov't Ex. 6, 7 and 8). Dr. Gualtieri detected, however, that Merriweather was "focused very clearly during the entire evaluation on what was in his interests." (Tr. Vol. III, 403).
4. Dr. Gualtieri testified that Merriweather's test results suggest that Merriweather was malingering. (Tr. Vol. III, 417). Dr. Gualtieri found that Merriweather had performed well on hard tests, but poorly on easy tests, a pattern that he associated with malingering. (Tr. Vol. III, 417). Merriweather performed worse in subsequent administrations of the Verbal Fluency Test, which suggested malingering to Dr. Gualtieri. (Tr. Vol. III, 421). When interpreting tests for malingering, Dr. Gualtieri emphasized that not finding malingering on a malingering test does not necessarily mean that the person is not malingering. (Tr. Vol. III, 423).
5. Based on his interview, test results, and a review of relevant literature, Dr. Gualtieri testified that he thought that Merriweather is competent to stand trial.
6. During cross-examination, the Defense drew the court's attention to Wyatt v. Rogers, 985 F.Supp. 1356, 1387 n. 109 (M.D.Ala.1997), a case in which a court discredited Dr. Gualtieri's expert testimony. In that case, the Wyatt court discredited Dr. Gualtieri's testimony "because of an attempt to mislead [the court], through charts purporting to give a national average, that was in fact not such an average" and a "failure to correct known error that went to the substance of some very important conclusions." Id. This court has conducted a thorough review of the transcripts in Wyatt, and finds that the reasons given for discrediting Dr.
1. Dr. Allan F. Mirsky, a neuropsychologist with over 50 years of experience in the field, was, like Dr. Gualtieri, asked to conduct additional psychological testing of Merriweather at FMC Butner pursuant to Judge Ott's order. (Tr. Vol. VI, 1032, 1043-46). Dr. Mirsky has devoted much of his 50-year career to the study of schizophrenia. (Id. at 1032-43). During his extensive career, Dr. Mirsky conducted three or four other competency determinations before evaluating Merriweather. (Id. at 1085). To evaluate Merriweather's mental condition, Dr. Mirsky interviewed Merriweather for four to four and a half hours at FMC Butner. (Id. at 1089-90).
2. During the interview, Dr. Mirsky conducted several tests of Merriweather's mental performance, including tests he developed himself to detect attention deficits. (Tr. Vol. VI, 1045). The first test, the Test of Sustained Attention, measures the ability of the patient to respond to the letter X when it appeared among other letters of the alphabet. (Id. at 1049). The second test, the AX-Test, requires the patient to respond to the letter X if it follows the letter A. (Id.). The third test, the Auditory Tone Test, requires the patient to distinguish one tone from other tones. (Id.). Dr. Mirsky also subjected Merriweather to the Wisconsin Card Sorting Test, the TOMM, the Test of Verbal Fluency, and the Reciprocal Motor Programs Test. (Id. at 1048-50).
3. Merriweather performed poorly on the Test of Sustained Attention, the AX-Test, the Auditory Tone Test, and the Wisconsin Card Sorting Test. (Tr. Vol. VI, 1050). Dr. Mirsky testified during the hearing that he believed the results of these tests were consistent with a diagnosis of schizophrenia. (Id. at 1051). Current research, Dr. Mirsky stated, suggests that schizophrenia is a disease of attention deficits and verbal memory deficits.
4. On the other hand, Merriweather performed within the normal range on the TOMM, the Test of Verbal Fluency, and the Reciprocal Motor Programs Test. (Tr. Vol. VI, 1051). Dr. Mirsky interpreted these results to mean that Merriweather was not malingering because "somebody who is faking a disorder just does poorly on everything." (Tr. Vol. VI, 1051). Furthermore, Dr. Mirsky noted, the TOMM failed to detect malingering. (Tr. Vol. VI, 1048). Dr. Mirsky trusted that Merriweather was not malingering because, he noted, it is very difficult for a person, even one who is familiar with the disease's features, to mimic the symptoms of schizophrenia. (Tr. Vol. VI, 1060).
5. The Government asserts that Dr. Mirsky never firmly opined that Merriweather was incompetent, only that certain test results suggest that conclusion. (Doc. #152 at 38). In any event, his failure to probe into such things as Merriweather's understanding of (1) the charges against him, (2) the role of his lawyers, the prosecution, and the court, (3) the facts of the case, (4) the nature of the proceedings, and (5) the elements of the crime (as well as defenses available to him) render his opinion testimony less than helpful.
1. Dr. Edward E. Landis, Ph.D., the deputy chief psychologist at FMC Butner, reviewed and analyzed all psychological testing performed on Merriweather in preparation for Dr. Berger's evaluation report, including the tests administered by Dr. Mirsky. (Tr. Vol. VIII, 1282, 1286,
2. Dr. Landis criticized Dr. Mirsky's approach to diagnosing Merriweather with schizophrenia. Rather than observe Merriweather for positive or negative signs of schizophrenia, Dr. Mirsky tested Merriweather's mental performance and found attention deficits. While there is a theoretical connection between schizophrenia and some lower-level functional processes, such as attention and concentration, attention deficits are not generally accepted as a primary symptom in diagnosing schizophrenia. (Tr. Vol. VIII, 1292). Under current standards and accepted diagnosing criteria, Dr. Landis commented, schizophrenia cannot be diagnosed based on deficits in cognitive processing, such as attention. (Id. at 1298-99). Testing that endeavors to identify deficits in attention, while useful in recovery and rehabilitation, is presently not accepted and will not be accepted in the foreseeable future as part of the differential diagnosis system for diagnosing schizophrenia. (Id. at 1299).
1. Reports from Drs. Gualtieri, Mirsky, and Landis were ultimately transmitted to the doctor charged with supervising Merriweather's evaluation at FMC Butner, Dr. Bruce Berger, a board-certified forensic psychiatrist with more than 20 years of experience. Dr. Berger oversaw Merriweather's evaluation during which he, with assistance from Dr. Jill Grant and a team of mental health professionals, observed Merriweather every day for 496 days, conducted four videotaped formal interviews, and reviewed the reports by the other expert examiners and collateral source information. (Tr. Vol. IV, 586). Based on this evidence, Dr. Berger concluded that Merriweather's behavior can be best ascribed to drug use, not a psychotic disorder. On April 1, 2011, Dr. Berger issued a report in which he concluded that Merriweather "does currently posses the capacity to understand his current charges, understand courtroom functioning, and could, should he so choose, work affirmatively with his attorney in a rational way ... [and that] he is competent to proceed." (Gov't Ex. #10 at 10).
2. In reaching his conclusion that Merriweather's behavior results from drug use (as opposed to a psychotic disorder), Dr. Berger considered Merriweather's history of substance use. During his initial interview, Merriweather reported that he had used substances, such as alcohol, marijuana, and cocaine, on a daily basis before the robbery. (Tr. Vol. IV, 604). Such drugs were not available to him during his stay at FMC Butner and Merriweather had never been prescribed psychotropic medication before arriving at FMC Butner, nor was he placed on any medication during his stay at FMC Butner (with the exception of a cream for dry skin, medication for constipation, and a nutritional supplement). (Id. at 588).
3. During Merriweather's 496-day stay at FMC Butner, a time when he was neither treated for mental illness nor under the influence of drugs, Merriweather was generally not observed to exhibit psychotic behavior. Although Dr. Berger acknowledged that there might have been, at most, a nurse's note suggesting that Merriweather may have been responding to internal stimuli, Dr. Berger never observed Merriweather responding to stimuli nor were there any consistent reports of such symptoms from his staff. (Tr. Vol. IV, 598). Eugene Singleton, who interacted directly with Merriweather on a daily basis as one of several staff members who (while working) checked on Merriweather every 15 minutes, observed no significant behavioral problems. (Tr. Vol. VIII, 1266-67). Singleton
4. Indeed, many of Merriweather's actions indicate a rational mind at work. Merriweather re-positioned the bed in his cell for greater privacy. (Tr. Vol. IV, 594, Tr. Vol. VIII, 1272-73). As an additional assurance of privacy, he posted a "no solicitation" sign on his door. (Tr. Vol. IV, 598-99). When he obtained a radio that was non-operational, Merriweather was able to successfully reconfigure it to work with the type of battery available to him. (Id. at 614). To pass the time, Merriweather also would often request novels and magazines to read. (Tr. Vol. VIII 1268-69).
5. However, Merriweather also engaged in curious behavioral patterns that might potentially raise a suspicion of mental illness. Specifically, Merriweather, while at FMC Butner, as in other facilities, would undergo periods of protracted muteness, abstain from eating, and speak incoherently during taped interviews. (Tr. Vol. IV, 599, 589-93, 601-10).
6. Nonetheless, although he considered the possibility that Merriweather might be suffering from mental illness, in light of Merriweather's demonstrated capacity for rational behavior, Dr. Berger eventually came to conclude that Merriweather's infirmities were feigned.
7. With regard to Merriweather's periods of protracted muteness, Dr. Berger explained that there is a difference between actual mutism and selective silence. Actual mutism refers to a situation where a patient cannot speak, even if the patient desires to communicate. (Tr. Vol. III, 433; Tr. Vol. IV, 599). Selective silence, on the other hand, describes a situation where a patient is able to communicate when he chooses, but chooses not to communicate when it suits him. (Id. at 430). Dr. Berger found Merriweather able to communicate when it served Merriweather's own interests. (Tr. Vol. IV, 596-97, 616). Therefore, Dr. Berger concluded that Merriweather's silence was not a symptom of a mental disorder, but rather manipulative behavior. (Id.).
8. Similarly, Dr. Berger considered Merriweather's eating patterns to be less indicative of a mental disorder than of a strong will and a willingness to use nutrition as leverage to attain his goals. Merriweather consumed both sealed, pre-packaged meals (e.g., Ensure, T.V. dinners) as well as the regular trays provided at FMC Butner, so it did not appear that he was actually concerned about being poisoned. (Tr. Vol. IV, 591). He did, however, twice alter his eating habits in order to force the facility to place him under higher surveillance, which in turn meant that he was reassigned to a better cell. (Id. at 591-92, 617, 663).
9. Dr. Berger noted that Merriweather was calm and collected during the interviews, which was not something he would expect from someone who was decompensating. (Tr. Vol. IV, 605). After the first two interviews, Merriweather refused further interviews until Judge Ott issued an order compelling Merriweather to participate in the videotaped interviews. (Tr. Vol. IV, 606). During the recorded interviews, Merriweather pretended not to know who Dr. Berger was, despite communicating with him without difficulty on a
Mr. Jack Earley, a California-based public defender retained by the Defense, accompanied Defense Counsel — Mr. Jaffe and Mr. Drennan — to see Merriweather on June 27, 2011. (Tr. Vol. V, 819). Merriweather was initially unresponsive; however, as the three began to leave, a guard stopped them and told them that Merriweather recognized Mr. Jaffe and wished to speak with him. (Tr. Vol. V, 822). This eventually led to a conversation that lasted hours. (Tr. Vol. V, 823). Among the issues discussed during the conversation, Mr. Earley recalled that Merriweather was dismissive of the efficacy of retaining additional medical experts, telling his lawyer that "the judge was the one that was going to make the ultimate decisions in the case, and the judge didn't need to hear from defense lawyers or a defense doctor, especially since he already had doctors that he could rely upon." (Tr. Vol. V, 833). Earley testified that Merriweather's speech during this conversation, while somewhat incoherent to others, seemed organized to Merriweather. (Id. at 838).
This case presents a question regarding whether the Government bears the burden of establishing competency, or whether Merriweather bears the burden of establishing that he is incompetent. The language of Section 4241 is silent on this point, noting only that the court must find by a preponderance of the evidence that a defendant is incompetent to stand trial. The legislative history is also silent. "The Senate Report simply states: `Subsection (d) of section 4241 provides that the court must make a determination with respect to [a] defendant's competency based upon a preponderance of the evidence.'" United States v. Gigante, 996 F.Supp. 194, 199 (E.D.N.Y.1998) ("Legislative history does little to provide additional guidance.").
In Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), the Supreme Court briefly addressed this issue, albeit in dicta. The Court held that an Oklahoma statute requiring defendants to prove incompetence to stand trial by clear and convincing evidence violated a defendant's due process rights under the Fourteenth Amendment. Id. at 356, 369, 116 S.Ct. 1373. In the context of a discussion on the varying burdens of proof required in the fifty states, the Court noted:
Id. at 361-62, 116 S.Ct. 1373 (emphasis added). As the Eleventh Circuit has also noted, "a petitioner raising a substantive claim of incompetency is entitled to no presumption of incompetency and must
The Government's position is that it should assume the burden of proof (based upon a preponderance of evidence standard) in this case. The court agrees. As indicated in a previous order (Doc. #133), the court recognizes that there is a split of authority on the question, but has carefully reviewed the statute, the relevant case law, and the parties' arguments. After doing so, the court concludes that the decision in United States v. Talley, 2010 WL 4791821 (S.D.Fla.2010) is well-reasoned and correctly decided. Thus, this court finds that the burden of proof at a pretrial competency hearing rests squarely on the Government and that United States v. Makris, 535 F.2d 899 (5th Cir.1976), is binding precedent on this court.
For the reasons explained below, the court finds the Government has met its burden in establishing that Defendant is competent to stand trial. This court finds that Merriweather is not presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable (1) to understand the nature and consequences of the proceedings against him or (2) to assist properly in his defense.
For these reasons, the court finds by a preponderance of the evidence that Defendant Merriweather is competent to stand trial and, accordingly, a trial date will be set by future order. Therefore, Defendant's Motion (Doc. #65) is due to be denied with respect to his request that the court find Defendant incompetent to stand trial.
The law is well-settled: "a criminal defendant may not be tried unless he is competent." Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); Drope v. Missouri, 420 U.S. 162, 172-73, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); see also United States v. Sanchez-Ramirez,
Title 18 U.S.C. §§ 4241 and 4247 of the United States Code set forth the procedures for determining whether a defendant is competent to stand trial. The court must first conduct a competency hearing in accordance with 18 U.S.C. § 4247(d).
Section 4241(d) outlines a two-prong legal standard for determination of a defendant's mental competency to stand trial:
Section 4241 legislatively adopted the standard articulated by the Supreme Court in Dusky. See United States v. Wiggin, 429 F.3d at 37 n. 8.
The Government has sought to show that, although Merriweather may have experienced drug-related psychotic symptoms in the past, he is not presently suffering from a mental disease or defect. (Doc. #152 at 10). Rather, the Government insists that Merriweather's current symptoms are feigned and his apparent inability to communicate with Defense counsel is deliberate. On the other hand, the Defense urges that Merriweather is afflicted with schizophrenia as evidenced by his alleged history of hallucinations, odd behavior, and his lack of engagement with counsel. After thoroughly reviewing the available evidence, including reports and records submitted by the parties, video recordings of Merriweather's interviews at FMC Butner, carefully considering testimony delivered at the hearing, and applying the governing legal standards, the court concludes that the Government has carried its burden of proving by a preponderance of the evidence that Merriweather is not currently suffering from any mental disease or defect, including schizophrenia.
In reaching this determination, the court has analyzed conflicting testimony from multiple expert witnesses. Because the court has been tasked with resolving conflicts among competing interpretations of fact, it is worth explaining here how much weight the court gave to each of the expert witnesses who testified at the hearing. The court does so not only to make its reasoning behind this decision more transparent, but also because the Defense has attacked the professional credibility of all of the expert witnesses called by the Government
The main reason the Defense provides for asserting that Drs. Pietz, Berger, and Gualtieri have acted with "extreme negligence" is that each one of them ultimately found that Merriweather does not have schizophrenia. (Doc. #156 at 39-41).
Here the court is confronted with competing (and irreconcilable) opinions by two groups of expert witnesses. In the unique context of this case, the court concludes that a significant factor to consider is the familiarity and exposure each expert witness had with (and to) Merriweather, the thoroughness of the evaluation performed, and the care with which the respective experts reached their conclusions. Because of the particular set of facts in this case,
The Defense argues that Merriweather currently suffers from schizophrenia and that his schizophrenia is evidenced by the following symptoms:
The court has counted five specific instances
The first incident was described by Merriweather's former girlfriend, Latisha Simpson, who testified that Merriweather experienced "visions and hallucinati[ons]." (Tr. Vol. III, 554). Further questioning revealed that Simpson's statement about "visions and hallucinati[ons]" actually referred to one bad dream. (Id.).
Another incident that could arguably be described as a hallucination was Merriweather's mention of an alleged accomplice named "Charlie" during his recollection of the robbery in interviews with Dr. Pietz. (See Tr. Vol. I, 32-33; Doc. #24 at 15). Dr. Pietz dismissed these accounts as an attempt by Merriweather to deflect responsibility
The third incident also occurred during Merriweather's evaluation at MCFP Springfield. On a single occasion, Merriweather told the on-call psychologist, Dr. Leanne Preston, that he thought he might be suicidal and reported seeing gremlins. (Tr. Vol. I, 39). Dr. Preston wrote in her report that she found Merriweather's claim of seeing gremlins to be suspicious. (Tr. Vol. I, 40). Dr. Pietz was similarly skeptical of Merriweather's claim for at least five reasons: (1) visual hallucinations are more consistent with illicit substance abuse than psychosis; (2) in the rare cases where an individual actually experiences a visual hallucination, the hallucination is usually frightening and not casually mentioned; (3) people who complain about suicide are typically not actually suicidal since drawing attention to their suicidal inclinations increases the risk that their suicide attempts will be intercepted; (4) after being placed under suicide watch, Merriweather became primarily concerned about the loss of privacy and requested to be taken off suicide watch, and (5) where true hallucinations never completely go away, Merriweather never again mentioned gremlins. The court finds Dr. Pietz's reasoning persuasive and concludes that Merriweather's claim of seeing gremlins was most likely pretense.
The fourth incident that could potentially be interpreted as a hallucination was a single occasion when Merriweather was found scraping his arms with a spork and complaining that there were bugs in the room. (Tr. Vol. I, 42). Merriweather mentioned the bugs casually and never complained about bugs in his cell again. (Id.). For the same reasons she discounted Merriweather's account of gremlins, Dr. Pietz found this claim similarly suspect.
Finally, the fifth incident was related by Merriweather's sister, Kim Patton, who testified that sometime in either late 2001 or 2002, Merriweather told her that he was hallucinating that there were demons in everybody, including members of his family. (Tr. Vol. II, 299-300). Patton suspected drug use, which Merriweather confirmed when Patton raised the question. (Tr. Vol. II, 300). From a review of the record, the court finds that the best theory to explain the association between Merriweather's hallucinations and his substance abuse is that his substance abuse caused his hallucinations.
It is largely uncontested that Merriweather has used illicit substances. During interviews with Dr. Pietz, Merriweather described a history of substance abuse that began with alcohol at age 14, grew to include marijuana at age 17, and expanded to included cocaine, crystal methamphetamine, and ecstasy by age 22. (Tr. Vol. I, 43). He also acknowledged using "various pills" and injecting heroin intravenously. (Id.). Following the robbery, Merriweather tested positive for opiates while being treated at UAB Hospital. (Def. Ex. #15 at 18).
There is also a correlation between Merriweather's history of substance abuse and reports of his odd behavior. As already
According to Dr. Pietz, hallucinations are actually quite rare, and, in any event, more consistent with illicit drug use than psychosis. (Tr. Vol. I, 40). Substances such as marijuana, cocaine, crystal methamphetamine, alcohol, and ecstacy can cause psychotic symptoms to develop and persist for years after direct drug use has ceased. (Tr. Vol. I, 40, 43, 121-22, 159, 163; Tr. Vol. IV, 604). Given that hallucinations are more likely to arise from drug use than from actual psychosis, and that prolonged drug use can cause hallucinations and psychotic-like symptoms long after the consumption of such drugs has ceased, it is reasonable to conclude that someone who has not only had a history of extensive drug use, but a history
It is not clear whether the Defense has raised Merriweather's refusal to communicate with Drs. Dudley and Merikangas solely for the argument that Merriweather's lack of engagement amounts to mutism, a negative symptom of schizophrenia, or the Defense seeks to show that Merriweather's alleged mutism renders him unable to assist counsel. In any case, both arguments miss the mark.
The great weight of the evidence indicates that Merriweather is not actually mute. As Dr. Berger explained, there is a difference between actual mutism and selective silence. People who are actually mute cannot speak whereas people who are selectively silent can speak, but choose not to when it suits them. (Tr. Vol. III, 430; Tr. Vol. IV, 599). Dr. Berger found that Merriweather was being selectively silent. (Tr. Vol. IV, 596-97; Def. Ex. #51 at 1) (Merriweather was "mute with most of the staff but, ... [was] interested and willing to discuss" what Dr. Berger wrote in his report.). Medical and correctional professionals who observed Merriweather, such as Diana Shirley, Kelly Hammonds, Eugene Singleton, and Timothy Laatsch all communicated freely with Merriweather. (Tr. Vol. VII, 1233-34; Tr. Vol. VII, 1244; Tr. Vol. VIII, 1268; Tr. Vol. VII, 1229). Dr. Mirsky testified that "[t]here was no period of time when [Merriweather] was mute with [him]." (Tr. Vol. VI, 1091).
Even with respect to those incidents to which the Defense points as evidence of Merriweather's mutism,
The relationship between personal hygiene and schizophrenia was raised at least two times during the hearing. First, the Defense asked Dr. Berger if Merriweather's poor hygiene is a negative symptom of schizophrenia. (Tr. Vol. V, 762). Dr. Berger denied that hygiene was a major issue for Merriweather while he was at FMC Butner and further noted that poor hygiene may be used by a prisoner as a tool to get attention. (Id.). Dr. Dudley suggested that Merriweather's hygiene was indicative of his inability to take care of himself, which was indicative of Merriweather's mental condition. (Tr. Vol. VI, 929). While poor hygiene is not a symptom of schizophrenia, Dr. Dudley offered it as a proxy for Merriweather's inability to care for himself (i.e., another sign of disorganized behavior). (Id.). When pressed on that point, Dr. Dudley admitted that he was unaware of Judge Ott's order, issued subsequent to Dr. Dudley's last visit with Merriweather, that directed staff at the Shelby County Jail to force bathe Merriweather if necessary. (Id. at 999). As it turns out, forced bathing was unnecessary because Merriweather, when faced with Judge Ott's order, began bathing himself daily without issue. (Tr. Vol. VII, 1220; Tr. Vol. VII, 1249). Therefore, the court finds, in any event that Merriweather had the ability (and mental capacity) to care for his personal hygiene, but simply declined to do so until a court order motivated him to act.
It is uncontested that flat affect can be one negative symptom of schizophrenia. (Tr. Vol. V, 770; Tr. Vol. VI, 933). However, only Dr. Dudley testified to Merriweather exhibiting flat affect.
The Defense has presented two theories to connect Merriweather's weight loss to schizophrenia: (1) it results from a delusion of persecution, which could be a negative symptom of schizophrenia (Tr. Vol. I, 120), and (2) "a person incapable of making basic decisions about [his] own physical health is in no position to make the sorts of decisions required of a defendant facing the death penalty." (Doc. #156 at 44). Regarding the first argument, when Merriweather refused to eat, the record simply does not suggest that a delusion of persecution was a primary reason why Merriweather fasted. Dr. Berger testified that weight loss is often a way for prisoners to get attention. (Tr. Vol. IV, 617). His observation notes related to his evaluation of Merriweather indicate that Merriweather used his refusal to eat "as a bargaining chip[,] asking for a phone call or other staff request." (Def. Ex. #53 at 1). "There is some apparent manipulation in this," Dr. Berger wrote, "where [Merriweather] will at times key a request with refusal of food if the request is not granted." (Def. Ex. #52 at 1). One example where Merriweather manipulated his weight to accomplish a desired result occurred during his stay in FMC Butner when he used weight loss to force the facility to house him in a better cell. (Tr. Vol. V, 761). On another occasion, Merriweather apparently fasted long enough to slip through a food slot in order to enter the cell of another inmate he disliked and "beat the stew out of [him]." (Id. at 899). Merriweather's use of his weight loss as a bargaining chip to manipulate others stopped after Director Shirley confronted him with a feeding tube. (Tr. Vol. VII, 1233). Here, the Defense raises its second theory. "[I]t is not rational for a person to have to be strapped down and threatened with a tube being snaked down his nose to finally get someone to eat," as "[a] rational person would never let it progress that far." (Doc. #156 at 44). But that argument is undercut by Merriweather's own volitional conduct; he successfully negotiated with Director Shirley to avoid being force-fed. (Tr. Vol. VII, 1233-35). Judge Ott's court order made Merriweather's concerns about poisoned food immediately vanish. Accordingly, even considering the Defense's own definition of the term, Merriweather is a rational person. Merriweather's ability to successfully negotiate with medical and correctional staff members shows that he is in fact capable of making decisions and engaging with his environment to reach his goals. His dietary habits have more to do with control issues (manipulation) than any alleged psychosis.
Medical symptoms can be malingered. In an attempt to bolster the legitimacy of the aforementioned symptoms (and attack the findings of Drs. Berger and Pietz), the Defense has stated that "multiple experts concluded that [Merriweather] was not malingering in any of his tests that were administered to him." (Doc. #156 at 43). The Defense then names Drs. Pietz and Mirsky as experts who testified that Merriweather did not malinger on his tests. (Id.) In both cases, the Defense's assertion is off target.
First, contrary to the Defense's characterization of her testimony, Dr. Pietz did not "testif[y] that there were no signs of malingering in any of the tests she conducted." (Doc. #156 at 43) (citing Tr. Vol. I, 67-68). In the relevant testimony. Dr.
In addition, the Defense makes an even less convincing argument when it asserts that "Dr. Mirsky testified that Merriweather did not malinger on any of the tests." (Doc. #156 at 43) (citing Tr. Vol. VI, 1050, 1060). Dr. Mirsky never testified that Merriweather did not malinger; he testified that he did not find evidence that Merriweather malingered. (Tr. Vol VI, 1050, 1060). To be sure, this is a distinction with a difference. Just as a fisherman should not conclude that the absence of fish in his net means that there is an absence of fish in the sea, the failure to catch Merriweather malingering does not prove that Merriweather did not malinger. This is precisely why Dr. Gualtieri testified that a malingering test does not indicate with any assurance that a subject is not malingering. That is, a finding of no malingering on a malingering test can be a false negative. (Tr. Vol. III, 422-23). Putting aside the issue of testing for malingering, there is record evidence of Merriweather actually malingering in this record. Indeed, the court is more impressed with the testimony of Dr. Berger on this question. In his testimony, Dr. Berger recounted specific observations (made over a substantial period of time) about Merriweather's manipulative tactics.
Finally, in evaluating the Defense's claim that Merriweather did not malinger, it is worth remembering that the Defense has only cited testimony regarding whether Merriweather malingered on malingering tests, not whether he malingered his symptoms. As established in the preceding section, there is already abundant evidence of the latter.
The Defense has also argued that objective evidence of schizophrenia exists in the form of brain scans interpreted by Dr. Merikangas. (Doc. #156 at 37). Dr. Merikangas, the Defense states, "has noted that the type of atrophy ... that was found in [Merriweather's] brain is frequently seen in patients with schizophrenia." (Id.). There are two reasons why this statement is without merit: (1) the methodology appears suspect, but (2) even accepting Dr. Merikangas's methodology as valid, Dr. Merikangas's conclusion is far from conclusive.
First, the enterprise of diagnosing medical conditions using brain imaging techniques, such as MRI or PET, is questionable at best. Dr. Landis testified disapprovingly of Dr. Merikangas's methodology, noting that it is inappropriate to use imaging to diagnose behavior. (Tr.
Second, Dr. Merikangas, despite the suggestions otherwise by the Defense, never actually diagnosed Merriweather with schizophrenia. He mentioned that certain observations, such as a thin corpus callosum and atrophy in the parietal lobe, may be "seen in people with schizophrenia." (Tr. Vol. VII, 1135-37). However, he also testified that the brain scans could also be consistent with other conditions, including conditions such as lupus, auto-immune diseases, post-encephalitis, some types of demyelinating disease, traumatic brain injuries, a viral infection that affects the brain (such as measles or HIV), and metabolic disturbances (like thyroid diseases or disorders of calcium metabolism). (Tr. Vol. VII, 1141). Given this inconclusive finding, and in light of the totality of evidence presented on the subject area, the brain scans simply do not prove much of anything.
Taking all the relevant facts into account, the court agrees with the findings of Drs. Pietz and Berger that Merriweather does not currently suffer from a mental disease or defect.
While a finding of incompetency is predicated on the existence of a mental disease or defect,
The Defense asserts that the Dusky standard was "expanded to include a fourth element in Drope v. Missouri," specifically requiring that a defendant be able to "assist in preparing his defense." (Doc. #156 at 6, 34). It is not abundantly clear what language Defendant relies upon in urging this interpretation of Drope
With that said, while the law is settled as to what the proper standard is, at least one prong of the standard remains poorly defined. The Supreme Court has not yet fully explained what a "rational understanding" entails, much less whether "rational understanding" has the same meaning in the first prong as it does in the second prong.
The court hesitates to adopt this interpretation because it is unclear how "sufficient contact with reality" makes a defendant's understanding rational as opposed to factual. A defendant who has a sufficient contact with reality may know facts, such as the day of the week or the name of the current President, but the plain language of Dusky clearly indicates that competency requires something more. "[I]t is not enough," the Supreme Court admonished in Dusky, "to find that the defendant is oriented to time and place and has some recollection of events." 362 U.S. at 402, 80 S.Ct. 788 (internal quotations omitted). To give the Dusky standard effect, the term "rational understanding" must mean something different from a "factual understanding."
In Drope, the Supreme Court expounded upon the common law origins of
In the final analysis, the determination of competency is a legal conclusion.
As already noted, the court finds that the Government has shown by a preponderance of the evidence that Merriweather does not currently suffer from a mental disease or defect. However and
Here, the preponderance of the evidence shows that (1) Merriweather has sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding, and (2) Merriweather has both a rational as well as a factual understanding of the proceedings against him. Thus, Merriweather's functioning has not been impaired to a level below that required by Dusky.
The first prong of the Dusky standard, whether a defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding," concerns the ability of a defendant to effectively participate in his defense by communicating effectively with his counsel. See Drope, 420 U.S. at 171-72, 95 S.Ct. 896; Cooper, 517 U.S. at 356-57, 116 S.Ct. 1373. It is worth emphasizing that the Dusky standard refers to the ability of a defendant to communicate with his attorneys, not his willingness to communicate with his attorney. Being able but unwilling to communicate with one's attorney does not make a defendant incompetent to stand trial. See e.g., Ferry v. State, 453 N.E.2d 207, 212 (Ind.1983).
Merriweather's attorneys argue that Merriweather ought to be found incompetent under the first prong because "Merriweather is not engaged in meaningful communication with his counsel." (Doc. #156 at 44). In making this argument, the Defense correctly identifies the issue to hinge on whether Merriweather deliberately refused to communicate or was unable to communicate due to a mental disease or defect. (Id. at 44-45). However, in making these arguments, the Defense fails to account for this critical distinction, arguing simply that Merriweather's communication with his counsel so far has been "insufficient to protect and exercise his Constitutional rights." (Id. at 45).
Moreover, the conversation that took place the next day among Merriweather, Jack Earley, and Merriweather's attorneys belies the assertion that Merriweather is unable to communicate with his attorneys with a reasonable degree of rational understanding. As Earley, Jaffe, and Drennan were leaving the Shelby County Jail, Merriweather told a guard to call them back because he recognized Jaffe and wanted to talk with him. (Tr. Vol. V, 822). The conversation lasted for hours. (Id. at 822-23). Earley testified that Merriweather's speech during this conversation seemed organized (at least to Merriweather). (Id. at 838). By the Defense's own testimony, although they contend Merriweather is not able to consult his counsel, he has consulted his lawyers when he desired to speak with them. Merriweather's refusal to speak with members of the Defense team can therefore be best understood to show, not a lack of ability, but a lack of cooperation. As the Eleventh Circuit has noted previously, even if a criminal defendant is "at times uncommunicative with his counsel, periods of uncooperativeness alone are insufficient to support a finding of incompetence." United States v. Jones, 200 Fed.Appx. 915, 921 (11th Cir.2006).
The Defense may protest that, while their own evidence demonstrates that Merriweather is able to consult with his counsel, it does not establish that Merriweather is able to consult with his lawyers with a reasonable degree of rational understanding. Since this requires inquiring into whether Merriweather has rational understanding of the proceedings against him, the court turns now to the second prong of Dusky.
Dusky requires that a defendant have both a rational as well as a factual understanding of the proceedings against him. 362 U.S. at 402, 80 S.Ct. 788. Subsequent cases have clarified that the standard does not require that a defendant actually have a present rational and factual understanding of the proceedings against
The evidence leaves little doubt that Merriweather has a factual understanding of the proceedings against him. In his interviews with Dr. Pietz, Merriweather provided clear, detailed, and coherent recollections of the robbery. (Doc. #24 at 16). Merriweather correctly identified the roles of the judge, the prosecutor, and the Defense counsel. (Id.). He knew that a jury of 12-14 jurors would be selected from his community. (Id.). He was aware of the insanity defense, understood the meaning of a guilty plea, and indicated that "a defendant should discuss the options [sic] of a plea bargain with his attorney." (Id.). During his conversation with his lawyers in the presence of Mr. Earley, Merriweather told his lawyers that "the judge was the one that was going to make the ultimate decisions in the case, and the judge didn't need to hear from defense lawyers or a defense doctor, especially since he already had doctors that he could rely upon." (Tr. Vol. V, 833). While Merriweather's understanding of the facts may reflect a cynical outlook, it is nonetheless connected to reality.
As established earlier, to determine whether Merriweather has a rational understanding of the proceedings against him, the court considers whether Merriweather has some ability to (1) confer intelligently and testify coherently, (2) to follow and evaluate the evidence presented, (3) has some awareness of the significance of the proceeding, and (4) has some ability to understand the charges against him, the defenses available to him, and the basic elements of a criminal trial.
The evidence has demonstrated that Merriweather has had the ability to communicate intelligently and coherently with psychological examiners and correctional officers over the years, and has that ability at present. The transcript from Merriweather's initial interview at the Jefferson County Jail shows that Merriweather had no difficulty communicating intelligently and coherently with investigators on the day after the robbery. (Def. Ex. #16). During his evaluations at MCFP Springfield, Dr. Pietz found Merriweather articulate
The record also shows that Merriweather does have the ability to follow and evaluate the evidence in his trial because his behavior, especially when he attempts to be evasive, reveals a rational, manipulative mind. During his interview with Jefferson County Investigators, Merriweather frequently paused to consider his answers and repeatedly tried to stall the interview. (Def. Ex. #16 at 12, 18, 25). During his interviews with Dr. Pietz, Merriweather would take time to think through his responses (Tr. Vol. I, 46, 57) and recognized when to change them when they were not eliciting the response that he wanted, such as when he changed his recollection of the robbery. (Id. at 35). Merriweather also demonstrated that he is able to predict the path of a conversation and react accordingly, which Dr. Gualtieri noticed when Merriweather would become more evasive when the conversation turned to topics relevant to the instant proceedings against him. (Tr. Vol. III, 404-06).
Further evidence of Merriweather's ability to follow and evaluate facts around him can be found in the activities Merriweather performed in his spare time. While at FMC Butner, Merriweather would read novels. (Tr. Vol. VIII, 1269). Drawing from his electrical engineering background, Merriweather fixed a radio so that he could listen to broadcasts. (Tr. Vol. V, 614). These are not activities associated with people divorced from reality.
Even more revealing was Merriweather's conversation with his attorneys in the presence of Mr. Earley. According to Mr. Earley, Merriweather told his lawyers that he believed that "the judge was the one that was going to make the ultimate decisions in the case, and the judge didn't need to hear from defense lawyers or a defense doctor, especially since he already
Merriweather acknowledged to Dr. Pietz that he is aware that the death penalty may be imposed in his case. (Doc. #24 at 16). His awareness of the nature and the implications of these proceedings is similarly evident in the way that he responded to Judge Ott's order authorizing the Shelby County Jail to forcibly feed and bathe him. His immediate transformation — taking showers and eating regularly without incident after being confronted with Judge Ott's orders — evidences his ability to appreciate his situation.
During Dr. Pietz's interview of Merriweather, it became apparent that Merriweather has an unusually comprehensive understanding of the criminal legal process. Merriweather understood the charges against him and provided a written description of the robbery from memory. (Doc. #24 at 16). He understood possible pleas and described the insanity defense. (Id.). He correctly identified court personnel and proceedings. (Id.). Dr. Pietz noted that Merriweather had not only done "exceptionally well" on the ECST-R, he had performed better than one of her students. (Tr. Vol. I, 59-60). Given his outstanding performance, Merriweather must certainly be able to understand the charges against him, the defenses available to him, and the basic elements of the criminal trial.
After thoroughly reviewing all available evidence, the court concludes that Merriweather is competent to stand trial. He does not currently suffer from a mental disease or defect that could render him incompetent. Moreover, even if he did have an undetected mental disease or defect, the evidence clearly establishes that he does not have any impairments that rise to a level that would render him incompetent under Dusky. A separate order consistent with this Memorandum Opinion will be entered.
As a judicial officer in this case, and a practitioner in this state before appointment, the undersigned is simply not in a position to accept at face value the Wyatt credibility determination without understanding its context. For this reason, the court required Defendant to provide the court with the relevant trial transcripts where Dr. Gualtieri testified in Wyatt. (Tr. Vol. III, 469). The court notes that Dr. Gualtieri strongly disagreed with the Wyatt court's credibility finding. (Tr. Vol. III, 461-63). While expressing great respect for the federal judiciary, Dr. Gualtieri stated his belief that the Wyatt court's conduct was both wrongheaded and unprofessional. The court will not weigh in on the latter issue. As to the former — wrongheadedness — the court has meticulously reviewed the transcripts and simply does not understand the Wyatt court's credibility analysis.
In Wyatt, by all accounts, the court discredited Dr. Gualtieri's testimony for two reasons: (1) when testifying about the rehospitalization rates of patients in Alabama mental institutions (Wyatt Tr. 1097:20) compared to rehospitalization rates nationally (Wyatt Tr. 1085:13), Dr. Gualtieri used a chart as demonstrative evidence that included numbers labeled as national averages (Wyatt Tr. 895:24-25); and (2) Dr. Gualtieri gave an inaccurate description of a confrontation between two employees at a mental institution. Regarding the first reason, the Wyatt court objected to the use of the term "national average," which it seemed to expect to be computed as the simple mean of rehospitalization rates from all 50 states. (Wyatt Tr. 1088:4). As Dr. Gualtieri testified, however, the figures he used to represent national "averages" actually described rates aggregated from available data from other hospitals as compiled by a research paper (William S. Edell et. al., Effects of Long-Term Psychiatric Hospitalization for Young, Treatment-Refractory Patients, 41 HOSP. & COMMUNITY PSYCHIATRY 780 (July 1990)). (Wyatt Tr. 1085:12-16). Although the Wyatt court found this misleading, it is quite clear to this court that Dr. Gualtieri had candidly discussed his methodology on direct examination (Wyatt Tr. 1097:6-9) and no one contested the truth of Dr. Gualtieri's facts. The confusion surrounding the term "average" is unfortunate, but it appears to have been used, not as an attempt to mislead the court, but as a shorthand for Dr. Gualtieri to convey his principal point: that rehospitalization rates in Alabama mental institutions are lower than in most other states.
The second reason the Wyatt court disregarded Dr. Gualtieri's testimony was that Dr. Gualtieri recited an inaccurate account of a confrontation between two employees at a mental institution. Wyatt, 985 F.Supp. at 1387 n. 109 (citing Wyatt Tr. 1313-27). Specifically, Dr. Gualtieri wrote in his report that no knife fights occurred in the presence of children because there were no knife fights at the institution. After preparing his report, Dr. Gualtieri discovered (the week before he testified) that he was wrong, and candidly admitted as much at the hearing. (Wyatt Tr. 1322:5-6). The reason for his mistake is simple, and readily apparent from even a cursory review of the hearing transcript. Dr. Gualtieri called staff at the mental institution, including the center's director, the center's clinical director, and the department director of institutions, to ask about the alleged knife fight. (Wyatt Tr. 1314:16-18, 20-21, 23-25). He was assured "that no such thing happened" and relied upon that statement in preparing his report. (Wyatt Tr. 1321:21-22). Dr. Gualtieri may have been wrong, but there is nothing in that case's record (and nothing in the record here) to support a finding that he made any attempt to deceive the court.
The court has articulated its findings on this issue in detail not only because it is important in ruling upon the credibility challenge directed at Dr. Gualtieri, but also for another reason. Oftentimes it is easy for a member of the judiciary to forget the effects such rulings (particularly those not supported by an evidentiary record) can have on third parties' lives, both professional and personal. The court believes that Dr. Gualtieri is owed at least this: the undersigned has reviewed the relevant portions of the transcripts along with the Wyatt court's ruling, and categorically disagrees with the Wyatt court's finding that Dr. Gualtieri intended to mislead that court.
For obvious reasons, this argument fails, at least in part because of its faulty logic. For example, the Defense could just as well argue that it would be "extremely negligent" to conclude that Merriweather does not have a condition like ovarian cancer because:
Clearly, something is amiss. (Note: the court understands that this analogy leads to an absurd result — but that is the point.).
