MARTHA VÁZQUEZ, District Judge.
On July 8, 2014, the United States filed with this Court a Criminal Complaint charging Defendant Wendell Denetdeal with sexually abusing Jane Doe, a minor, in Indian Country. See Doc. 1 at 1. In the subsequently-filed two count Indictment, the Grand Jury charged Defendant with "knowingly engag[ing] in and caus[ing] sexual contact with and by Jane Doe, who had not attained the age of 12 years" and with attempting that same conduct. See Doc. 11 at 1. The following month, on August 11, 2014, Defendant, through counsel, filed his Sealed, Unopposed Motion for an Evaluation to Determine Defendant's Competence to Stand Trial [Doc. 17], based in part on the "undersigned counsel's interactions with Mr. Denetdeal," which indicated that Defendant "might not have the present capacity and ability to review the evidence against him, to understand the application of the United States Sentencing Guidelines, to realistically evaluate potential plea offers or to assist meaningfully in the preparation of a defense." Doc. 17 ¶ 5. The Court acceded to this request and ordered that "Defendant shall submit to a comprehensive psychological evaluation of his mental condition performed by Dr. Mercedes Marshall" and that a "sealed report of the evaluation shall be prepared in accordance with 18 U.S.C. § 4247(b) and (c), and submitted to the Court with copies provided to counsel for the defendant and counsel for the government." Doc. 19 at 1-2. See also 18 U.S.C. § 4241(a) (a federal criminal defendant may request a determination of his competency to stand trial "[a]t any time after the commencement of a prosecution for an offense").
On November 10, 2014, the Court received a Competency Evaluation from Dr. Marshall. See Docs. 22, 24. In this Evalution, Dr. Marshall opines that Defendant "is found to have moderate to severe compromise in all requisite areas, sufficient compromise to find him incompetent to proceed at this time." Doc. 22 at 11. Approximately one month later, on December 11, 2014, the United States filed an Unopposed Sealed Motion for an Evaluation to Determine Defendant's Competence to Stand Trial [Doc. 23]. In its Motion, the United States requested that Defendant be remanded to the custody of the Attorney General "for a period not to exceed four months in order to conduct a psychiatric and/or psychological examination so that an evaluation report can be filed with the Court." Doc. 23 ¶ 4. The Court granted the Motion and ordered that "Defendant Denetdeal is hereby committed to the custody of the United States Attorney General for a reasonable period of time-not to exceed 120 days," for the purpose of a psychiatric and/or psychological evaluation regarding his competency to stand trial. See Doc. 25 at 1-2.
On August 17, 2015, the Court received a psychological evaluation from Dr. Joseph S. Zonno, Ph.D., a forensic psychologist at the Federal Medical Center in Butner, North Carolina and a Certificate of Restoration of Competency to Stand Trial from the Federal Bureau of Prisons. See generally Docs. 31, 32. Approximately two months later, on October 16, 2015, the Court set an Evidentiary Hearing for November 9, 2015 in Santa Fe. See generally Doc. 34. At the conclusion of the hearing the Court ordered supplemental briefing, noting that it viewed the determination as "a close call." Doc. 37 at 129. Having considered the Parties' briefs, the psychologists' reports, hearing testimony, relevant law, and being otherwise fully-informed, the Court now holds that Defendant Denetdeal is
The Supreme Court has "repeatedly and consistently recognized that the criminal trial of an incompetent defendant violates due process." Cooper v. Okla., 517 U.S. 348, 354 (1996) (internal quotation marks omitted). Similarly, the "test for incompetence is also well settled. A defendant may not be put to trial unless he `has 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." Id. (internal quotation marks omitted). Stated differently, a "defendant is competent to stand trial if he has the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense." United States v. Landers, 564 F.3d 1217, 1221 (10th Cir. 2009) (internal quotation marks omitted). Accordingly, "[i]n a competency hearing, the emphasis is on [the defendant's] capacity to consult with counsel and to comprehend the proceedings." United States v. Mooney, No. CR 08-1545 JB, 2014 WL 711551, at *3 (D.N.M. Feb. 7, 2014) (internal quotation marks omitted).
A defendant must establish incompetence by a preponderance of the evidence. See Allen v. Mullin, 368 F.3d 1220, 1239 (10th Cir. 2004) ("A substantive competency claim, on the other hand, requires the higher standard of proof of incompetency by a preponderance of the evidence."). See also United States v. Loman, 597 F. App'x 518, 520 (10th Cir. 2015) ("The defendant bears the burden of establishing incompetency."). In making such a showing, a defendant may rely on, and a court may properly consider, a variety of evidence, "including medical opinion and the court's observation of the defendant's comportment." United States v. Johnson, 479 F. App'x. 811, 814 (10th Cir. 2012) (internal quotation marks omitted).
Here, the hearing testimony, the Parties' briefs, and the psychologists' reports lead the Court to conclude, by a preponderance of the evidence, that Defendant is not competent to stand trial. Even so, as the Court stated at the evidentiary hearing, it views this determination as a "close call" and therefore writes now to explain carefully its analysis. Doc. 37 at 129. In service of this explanation, the Court will organize its discussion thematically, rather than attempting to walk through sequentially all of the testimony, exhibits, and argument.
As an initial matter, it is important to note that, while the Parties, and, by extension, their proffered experts, dispute whether Defendant is competent to stand trial, neither side disagrees with the assessment that Defendant labors under some degree of mental impairment. See, e.g., Doc. 37 at 25 (Dr. Zonno noted that he "diagnosed [Defendant] with borderline intellectual functioning, which is noted by the DSM-5, as somebody having impairments in intellectual functioning that may impact their clinical presentation."). See also, e.g., id. at 81 (Dr. Marshall explained that she "found him to have an intellectual level that was within the borderline range."). Similarly, neither psychologist believes that he suffers from any other "mental disease or defect," such as schizophrenia, major depression, or bipolar disorder, that might bear on his competency. The sole dispute in this case, then, resides in the question of whether Defendant's current intellectual limitations render him incompetent to stand trial. On this point, the Parties are divided.
Based largely on Dr. Zonno's testimony, the Court concludes that Defendant has made significant progress in his factual understanding of the legal processes at work in this case, including, for example, a basic description of legal institutions and personnel. See, e.g., Doc. 37 at 91 (Dr. Marshall noted that "based on Dr. Zonno's testimony, [she] believe[d] he's progressed tremendously in the area of factual understanding of what the requisites are for competency."); id. at 52 (Dr. Zonno explained that Defendant "demonstrate[d] definitional capabilities with courtroom personnel."). Ultimately, while the Court will not minimize the importance of this progress, for reasons that the Court will explain below, it does not believe that Defendant's improved factual comprehension indicates commensurate improvement in his capacity to reason and, therefore, his ability to assist in his defense and consult meaningfully with his attorney.
After considering the psychologists' reports and their hearing testimony, the Court is left with three primary concerns, that, combined, lead this Court to conclude that a preponderance of the evidence indicates that Defendant is not competent to stand trial. The Court will address each in turn.
The Court finds that evidence drawn from beyond of the clinical evaluations supports Dr. Marshall's opinion. For example, Defendant has never maintained employment for more than a month a time, has never "lived independently," is not licensed to drive an automobile, and left high school before the tenth grade. See Doc. 37 at 35-36. While none of these facts independently establishes that Defendant is incompetent to stand trial, taken in aggregate, they contribute to the finding that Defendant's functioning is significantly impaired and that he does not possess the comprehension necessary to assist in his own defense. Stated otherwise, these indicia of maturity and, by extension, intellectual development, are absent in Defendant's case, a fact which weighs against a finding that Defendant is competent to stand trial.
Ultimately, the Court is persuaded by a distinction between Defendant's factual and rational understanding drawn out during Dr. Marshall's testimony. She explained that although it appeared to her, from Dr. Zonno's testimony, that Defendant had "progressed tremendously in the area of factual understanding of what the requisites are for competency," she maintained "significant concerns about his rational appreciation of the requisites for competency." Id. at 91-92. That is, she continues to harbor "significant concerns regarding his ability to rationally appreciate what this all means, what he has learned means, from an abstract thinking perspective, if you will." Id. at 92. See also id. at 107 ("I think he's gained factual understanding, but I don't know that he has gained rational understanding.").
This Court finds this explanation to be apt; an example offered by Dr. Zonno is illustrative of this distinction as it applies to Defendant. Dr. Zonno explained that while "I don't know that he ever fully understood all the ins and outs of a plea bargain, such as which individual rights he gives up, by the end of the evaluation period," Defendant "demonstrated a basic understanding that that typically involves pleading guilty in exchange for a lesser sentence." Doc. 37 at 30. See also Doc. 41 at 8 (collecting Defendant's responses describing a plea bargin); Doc. 37 at 45 ("I think he may have difficulty with the percentages, but if that was rephrased to, I think there's a better chance than not that you will be convicted, that would be maybe a simpler way to phrase that, where he would garner some degree of understanding."). This level of reasoning is consistent with what Dr. Zonno and Dr. Marshall broadly described and what Dr. Marshall theorized: that Defendant may be able, with significant assistance, to retain factual material, including the role of the various Court personnel, and explain that twenty years in prison is longer than ten years in prison, but, that he remains incapable of abstract analytical thought, even at the relatively rudimentary level demanded by Due Process. See, e.g., id. at 50 ("Over the course of attending group educational sessions, he developed a greater knowledge of the courtroom and the process, in terms of what comes first and what follows and who's on his side and who is not on his side, and things of that nature.").
In the Court's view, this level of comprehension is insufficient to demonstrate any substantive ability to consult with his attorney, either in assessing the relative merits of accepting any potential plea offer, or in preparing his defense. In this regard, the Court finds Defendant's own words particularly telling. For example, when asked to explain "what exactly a plea bargain referred to," Defendant replied that it was the "[a]mount of time given to you for a sentence" and that this was "in exchange for" in Defendant's words, "time served," at which point "got confused and basically started laughing and that's when he acquiesced." Doc. 37 at 62. Although he later indicated that "the major advantage to a plea bargain" would be that he would serve "less time," the Court still finds that Defendant's responses, even as reported by Dr. Zonno, reveal a significant deficit. As described above, although Defendant appeared to have gained some factual understanding of the mechanics of plea bargaining, it appears that his "comprehension of words [remains] limited to simple words and phrases" and bears some indication that Defendant is merely repeating what he has been told without actually processing it. Id. at 81. See also id. at 95 ("he's very susceptible to wanting to be agreeable, and very susceptible to use the terminology that he hears" and "[s]ome things that I said, and I think I characterized it in the report, he would repeat, and repeat them out of context, would repeat them wrong, and would do it consistently for a period of time.").
It should be noted that the Court does not seek to require that each defendant attain mastery of the American judicial system or demonstrate superior analytical reasoning before he stands trial. Rather, the Court merely holds that, in this case, Defendant's capacity is below the constitutional minimum required to protect Defendant's right to Due Process and ensure the proper functioning of the criminal justice system.
Similarly, given Defendant's apparent eagerness to supply the response desired by his interlocutor, irrespective of that response's accuracy, Defendant effectively cannot be called to the stand to testify on his own behalf. That is, given Defendant's eagerness to acquiesce and the relative frequency with which he becomes confused, there is no real possibility of Defendant navigating an effective cross-examination. This is not predicated on a concern that Defendant may
Similarly, while Dr. Zonno insists that "with enough repetition and with the use of concrete, specific language, Mr. Denetdeal showed the ability to not only understand the information that was presented, but to retain it, regurgitate it, and then to recall it in subsequent interviews sometimes occurring weeks later," the practical difficulties associated with attempting to implement this proposed remedial measure during a trial are obvious. That is, even with ample breaks and frequent consultation between attorney and client, trials simply move too quickly and present too much information that must be processed, retained, and synthesized for it to be feasible for the degree of repetition envisioned by Dr. Zonno to take place. See id. at 114 ("I've been given two recommendations: Repetition and breaks. Very difficult to implement in legal proceedings. I mean, I think it would be very difficult for me to ask both attorneys to repeat their opening arguments, opening statements, to have them repeat their sentences.").
Moreover, the Court is not able to restrict the language used by attorneys, much less witnesses, to "simple English," as recommended by Dr. Zonno, which, given Defendant's linguistic deficits, adds yet another layer of difficulty to managing a trial. See id. at 84 (according to Dr. Marshall, his vocabulary is on par with a person who is "[a]pproximately 9 years, 10 months" old, even though Defendant was twenty years old when she interviewed him); see also id. at 85 (noting that Defendant is in the third percentile "in the Communication Domain," and the second percentile "in Socialization."). Indeed, even Dr. Zonno conceded that he "really hadn't thought of it in terms of his taking the stand and that specific application of what I was recommending," reinforcing the Court in its conclusion that these recommendations cannot be implemented in any feasible fashion at a trial. Id. at 55. Thus, the Court is left with the prospect of Defendant standing trial and being unable to implement effectively the measures recommended to ameliorate the issues; this, coupled with the deficits under which Defendant labors, leads the Court to conclude, by a preponderance of the evidence, that Defendant is incompetent to stand trial.
For the foregoing reasons, the Court holds that Defendant Wendell C. Denetdeal is
