GERALD E. ROSEN, Chief District Judge.
This matter comes before the Court on Defendant's motion seeking that the Court order a forensic evaluation of Defendant in order to determine his competency to stand trial, pursuant to the Insanity Defense Reform Act of 1984, 18 U.S.C. § 4241 (Dkt. # 25). On October 16, 2013, Defendant Richard Arterberry, along with several co-defendants, was indicted for conspiracy to possess with intent to distribute several controlled substances, including N-Benzylpiperazine, methamphetamine, MDMA, and marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1). First Superseding Indictment, Dkt. # 7, at 1-2. On May 3, 2014, Defendant filed an amended motion for a non-custodial forensic evaluation assessing his competency to stand trial, pursuant to 18 U.S.C. § 4241. Dkt. # 25. Following a hearing on June 10, 2014, the Court ordered that Defendant be examined by Jack P. Haynes, Ph.D., a forensic psychologist. Dkt. # 29. That report reached the conclusion, based on an interview and a battery of testing, that "Mr. Arterberry may arguably be marginally able to assist in some ways in his defense by working with his lawyer, but he would do this in a limited and extremely concrete manner that may not be helpful." Report of Dr. Haynes, at 12. Accordingly, Dr. Haynes provided the opinion that Defendant is not competent to stand trial. Id.
After reviewing Dr. Haynes's report, the parties agreed that "there is reasonable cause to believe that the defendant may be suffering from a mental disease or defect rendering him mentally incompetent," but also agreed that "the examiner failed to review several documents provided by the parties," and accordingly, the parties requested that the Court order a custodial examination by another examiner, which the Court ordered. Stipulated Order for Custodial Psychiatric or Psychological Evaluation, Dkt. # 32. That examination was performed by Christine Scronce, Ph.D., a forensic psychologist at the Metropolitan Correctional Center in Chicago, Illinois. Dr. Scronce's opinion of Mr. Arterberry's competence differs substantially from Dr. Haynes's — Dr. Scronce found that, based on an interview and a battery of tests, "Mr. Arterberry made efforts to falsely portray cognitive deficits, memory problems, and a poor comprehension of the legal process. While Mr. Arterberry may decide to continue to be uncooperative by feigning mental problems, he appears capable of collaborating in a defense." Report of Dr. Scronce, at 9. Accordingly, Dr. Scronce provides the opinion that Mr. Arterberry does not currently suffer from mental disease or defect which renders him unable to understand the nature and consequences of the proceedings against him, or to properly assist in his defense." Id. The parties reconvened for a competency hearing on February 18, 2015, at which the parties agreed to rest on the two psychologists' reports for the purposes of the Court's competency evaluation. Dkt. # 34.
"A district court is obligated `to inquire into a defendant's competency whenever there is reasonable cause to believe that the defendant is incompetent to stand trial.'" United States v. Heard, 762 F.3d 538, 541 (6th Cir. 2014) (quoting United States v. Denkins, 367 F.3d 537, 545 (6th Cir. 2004)). This obligation is rooted in a criminal defendant's due process rights, which are violated if the defendant is tried while legally incompetent. Pate v. Robinson, 383 U.S. 375, 378 (1966). The test for determining whether a defendant is competent to stand trial is well-established — "To be adjudged competent, a defendant must have `sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and `a rational as well as factual understanding of the proceedings against him.'" Filiaggi v. Bagley, 445 F.3d 851, 858 (6th Cir. 2006) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)); see also Drope v. Missouri, 420 U.S. 162, 171 (1975) ("It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial."). Several factors may weigh on the inquiry including "evidence of a defendant's irrational behavior" and "medical opinion on competence to stand trial." Drope, 420 U.S. at 180. In this case, the determination turns on the relative thoroughness and reliability of the two examining psychologists' reports.
Dr. Haynes conducted an initial interview of Defendant to obtain background information about his familial and relationship history, educational background, employment history, and physical and mental health. Dr. Haynes describes Defendant's demeanor during the interview as "not uncooperative," but Dr. Haynes notes that Defendant "volunteered little, making few spontaneous statements, responding concretely and with minimal words to questions, sometime [sic] appearing mildly annoyed." Report of Dr. Haynes, at 3. Defendant's background, as described in Dr. Haynes's report, does not appear to be strongly out of the ordinary, though Defendant lacks substantial connections with his family and did not receive any education beyond the eighth grade. Id. at 3-4. Defendant has not been employed for the last "eight or nine years," and he is supported by "disability (SSI) funds" and his mother. Id. at 4. Defendant "did not indicate any history of having been diagnosed with mental retardation and seemed to indicate that he had been in regular rather than Special Education classes." Id. Of particular importance, Defendant "indicated that he never has had a serious head injury," and he reported no physical injuries that would imply severely reduced cognitive functioning, though he has had occasional mental health treatment as well as issues with substance abuse. Id. at 4-5.
In addition to his interview of Defendant, Dr. Haynes conducted the Wechsler Adult Intelligence Scale-IV ("WAIS-IV") on Defendant. That test, often considered the "gold standard" in intelligence testing, provides an "approximation of an individual's overall cognitive functioning" and includes various subsections to test different cognitive abilities. United States v. Montgomery, No. 2:11-CR-20044-JPM-1, 2014 WL 1516147, at *27 (W.D. Tenn. Jan. 28, 2014). Defendant's scores on the WAIS-IV test were uniformly low: at or below the bottom 0.1 percentile in each category measured by the test.
Dr. Haynes also conducted a "semi-structured interview" called the Evaluation of Competency to Stand Trial-Revised Instrument ("ECST-R"). Id. at 10. As described in Dr. Haynes's report:
Id. The ECST-R interview raised some potential issues regarding Defendant's knowledge of the relevant legal structures, though it appears that the ECST-R is vulnerable to a defendant who provides answers that intentionally exaggerate his lack of understanding. For example, Defendant said "I don't know what is going on" with regard to the role of his attorney. Id. Dr. Haynes notes that "this is an unusual comment in some ways: a volunteered self-observation that he is puzzled." Id. Along similar lines of confusion, Defendant stated that he "was not sure who was in charge of the Court or ran it," could not provide a definition of the term "guilty," did not know whether there were criminal charges against him, did not know whether he could face a prison sentence if convicted, did not know who would make the decision as to his potential guilt, and did not understand the function of the jury. Id. at 10-11.
As a result of his examination, Dr. Haynes, though recognizing that "this is a difficult case," provides the opinion that Defendant is not competent to stand trial, giving the following final reasoning:
Id. at 12.
Dr. Scronce's report provides a countering view. Dr. Scronce, like Dr. Haynes, conducted an interview of Defendant to obtain background information. Like Dr. Haynes, Dr. Scronce found Defendant "typically vague in his responses" and noted that he "provided little spontaneous detail." Report of Dr. Scronce, at 2. The two reports provide nearly identical background information, with the exception of some of Defendant's reported prior drug use and history of mental health treatment, which Dr. Scronce reports as less extensive than Dr. Haynes does. See id. at 3-4.
The most relevant substance of Dr. Scronce's report relates to the WAIS-IV and ECST-R tests that Dr. Haynes administered, as well as follow-up tests that Dr. Scronce conducted. Dr. Scronce notes that the WAIS-IV results, as well as a prior competency exam, "raised concerns about defendant's intellectual functioning." Id. at 4. Dr. Scronce emphasizes, however, the potential malingering concerns that Dr. Haynes alluded to:
Id. at 5. Due to the potential for malingering that Dr. Haynes's report raised, Dr. Scronce performed three separate formal malingering tests. She first administered the Validity Indicator Profile ("VIP") test, which, according to her report, is "a measure designed to identify valid and invalid response styles on cognitive tests," such as the WAIS-IV test that Dr. Haynes administered to Defendant. Id. at 6. Dr. Scronce's report states that
Id. at 6-7.
In addition to the VIP, Dr. Scronce administered two other malingering tests. First, she administered the Test of Memory Malingering ("TOMM"), "a forcedchoice test designed to distinguish between malingered and true memory impairment." Dr. Scronce's report states that while Defendant "was attentive during the test and gave the appearance of deliberating over his responses," he "performed very poorly on the test, obtaining scores that were no better than he should have been able to achieve by random responding," results which "clearly indicate[] sub-optimal effort" and "strongly suggest[] [Defendant] attempted to feign memory impairment." Id. at 7.
Last, Dr. Scronce administered the Inventory of Legal Knowledge ("ILK"), a test containing 61 true-false items related to the legal process. Id. at 7. According to the distributors of that test, it "utilizes two strategies: one based on [detecting] scores that are significantly lower than scores expected by chance, and a second based on scores that are significantly lower than those attained by relevant normative groups." PAR, Inventory of Legal Knowledge, http://www4.parinc.com/products/Product.aspx?ProductID=ILK (last visited March 1, 2015). As Dr. Scronce's report details, that second level of analysis was not necessary; Defendant "obtained a total score of only 14 out of 61," a result that would be expected to occur in "fewer than 1 in 100,000" tests taken by an examinee who was merely responding randomly. Id. That is to say, if Defendant had absolutely zero knowledge about the legal system, he still would only be expected to do as poorly as he did about 0.001% of the time. Accordingly, "[t]he results indicated that the defendant discerned the correct responses but purposely provided incorrect responses." Id.
Dr. Scronce's final opinion was heavily influenced by the outcomes of these three malingering tests, when placed in context:
Id. at 9. Accordingly, Dr. Scronce stated that, in her professional opinion, Defendant "does not currently suffer from a mental disease or defect which renders him unable to understand the nature and consequences of the proceedings against him, or to properly assist in his defense." Id.
After thoroughly reviewing the reports of both doctors, the Court finds Dr. Scronce's methodology and report significantly more thorough and reliable. As is carefully recounted in Dr. Scronce's report, Dr. Haynes's examination of Defendant raised clear warning signs of malingering, which Dr. Haynes himself notes in his report, and yet Dr. Haynes never conducted any malingering tests. Instead, Dr. Haynes simply declares in his report, ipse dixit, that Defendant is not exaggerating his cognitive deficits. Dr. Scronce's opposing conclusion, however, is supported by three separate empirical tests of Defendant's malingering, each of which provides compelling evidence in support of the conclusion that Defendant is exaggerating his deficits. In particular, the ILK results are striking — it stretches plausibility that Defendant would get only 14 of the 61 multiple choice questions correct if his deficits were legitimate. Instead, mere probability gives the Court very strong confidence that Defendant was intentionally failing the test. As such, the Court cannot give any weight to Defendant's poor scores on the WAIS-IV test that Dr. Haynes administered, nor is it convinced by Defendant's interview answers that indicated his lack of understanding of the trial process. The only plausible conclusion is that Defendant was exaggerating any deficits he has on those measures as well. The Court finds that Defendant is competent to stand trial.
Accordingly,
IT IS HEREBY ORDERED that Defendant's motion seeking that the Court declare him incompetent to stand trial (Dkt. # 25) is DENIED.
Richard I. Frederick & Ross D. Crosby, Development and Validation of the Validity Indicator Profile, 24 Law & Hum. Behav. 59, 59 (2000). The Frederick and Crosby article goes on to explain various metrics that the test uses to identify invalid responding. Many relate to consistency, that is, whether an individual performs comparably on questions of comparable difficulty, or whether the pattern of correct and incorrect responses is random, which would indicate malingering. See id. at 63-65. On the whole, the test appears to be well-established in the field and well-studied.
