GOVERNMENT'S MOTION FOR A PSYCHIATRIC EVALUATION AND DETERMINATION OF THE DEFENDANT'S MENTAL COMPETENCY TO STAND TRIAL

MARCIA S. KRIEGER, District Judge.

The United States, by United States Attorney John F. Walsh, through Assistant United States Attorney Guy Till (Government), hereby respectfully files the Government's Motion for a Psychiatric Evaluation and Determination of the Defendant's Mental Competency to Stand Trial, as to Defendant George A. Gaddy.

1. Title 18 U.S.C. § 4241(a) provides that at any time after the commencement of a prosecution for an offense the attorney for the Government "may file a motion for a hearing to determine the competency of the defendant." The statute provides that the Court shall grant the motion for a hearing if there is "reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and the consequences of the proceedings against him or to assist properly in his defense."

2. In the present case, the Government respectfully asks the Court to take judicial notice of the contents of the Court's own file, and of the defendant's appearance, demeanor and affect while in open Court.

3. The Government respectfully submits there is some basis in the record to conclude the defendant might not be able or willing to assist in his defense. See DOC 746.

4. Title 18 U.S.C. §§ 4241 (c) and 4247 (d) provides that "a psychiatric or psychological examination of the defendant [may] be conducted, and that a psychiatric or psychological report [may] be filed with the court, pursuant to the provisions of section 4247 (b) and (c)." The report filed on November 9, 2012, at DOC 746, was not prepared by a psychiatrist. In part because a medical condition may sometimes lie beneath and profoundly affect a psychological condition, the Government respectfully asks the Court to enter an Order appointing a qualified psychiatrist, pursuant to Title 18 U.S.C. § 4241(b), to review all pertinent available personnel, medical, or psychological records and Rule 16 discovery in this case, examine the defendant, and provide a written report addressing the issue of competency to the Court within the next 90 days.

5. Staff of the U.S. Attorney's Office has been in communication with two psychiatrists who indicate a willingness to accept such an appointment. Karen V. Fukutaki, M.D., of Denver, Colorado, and Susan Bograd, MD, of Denver, Colorado have each indicated they are available; the appointment of either psychiatrist is acceptable to the Government. Due to the time of year and the press of other business, the Government anticipates a period of 60 to 90 days would be required to complete the background review, examine pertinent documents and reports, examine the defendant, and submit a report.

6. The Government respectfully suggests the 90 day due date to permit the defense to respond to the Government's request to provide military and Veteran's Affairs records pertaining to the defendant's status and to provide the psychiatrist named by the Court reasonable time to coordinate with the defense for access to the defendant over the Holidays and during January and February of the new year if necessary. On November 29, 2012, Government transmitted Department of Defense records request forms to the defense pertaining to the defendant's military records. Assuming the defense does request the pertinent records, experience has shown it sometimes takes more than a month for the Department of Defense agencies to respond to requests for military records.

7. After the Court ordered psychiatric report has been filed, the Government requests that the matter of the defendant's competency be set for hearing pursuant to Title 18 U.S.C. §§ 4241 (c) and 4247 (d).

ORDER FOR PRE-TRIAL PSYCHIATRIC EXAMINATION

The Court having considered the motion by the Government (DOC ) for pre-trial psychiatric examination of defendant George A. Gaddy to determine the defendant's mental competency to stand trial pursuant to Title 18, United States Code, Sections 4241(a) and 4247 and Fed. R. Crim. P. 12.2(c)(1)(B),

It is hereby ORDERED that said motion is GRANTED:

Susan Bograd, M.D., is ordered to meet with the defendant, conduct examinations, review pertinent documents and report, and prepare a written report of findings as provided for in Title 18, United States Code, Section 4247( c), with respect to the matter of the defendant's mental competence within 90 days. Upon request, the attorney for the defendant and the U.S. Probation Officer supervising the defendant's pretrial release are directed to assist in coordinating access to the defendant. The Government is directed to provide copies of the pertinent Rule 16 discovery in this case and to provide background information on the history and progress of the case if requested to do so. The defense attorney of record, upon request by Dr. Bograd, is directed to provide background information on the nature and quality of communications with the defendant. Dr. Bograd is authorized to request the Veteran's Administration and the Department of Defense to provide any available pertinent records or information pertaining to the defendant's status and competence. The Government attorney may assist Dr. Bograd's efforts to acquire such records.

After Dr. Bograd's written report has been received by the Court and copies of said report have been distributed to the attorneys for the parties, a hearing on this matter will be set. The question to be addressed at such hearing is whether "there is reasonable cause to believe that the defendant may be presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." Title 18, United States Code, Section 4241(a). Further, assuming arguendo the defendant is incompetent, the Court will determine whether a period of hospitalization is appropriate under the terms of Title 18 U.S.C. § 4241(d). See also United States v. Steil, 916 F.2d 485, 486-87 (8th Cir. 1990).

So ORDERED.