U.S.A v. Mitchell

• Decision Date: 01 March 2010
• Docket Number: Case No. 2:08CR125DAK.
• Citation: 706 F.Supp.2d 1148
• Parties: UNITED STATES of America, Plaintiff,v.Brian David MITCHELL, et al., Defendants.
• Court: U.S. District Court — District of Utah

706 F.Supp.2d 1148

UNITED STATES of America, Plaintiff,v.Brian David MITCHELL, et al., Defendants.

Case No. 2:08CR125DAK.

United States District Court,

D. Utah,

Central Division.

March 1, 2010.

COPYRIGHT MATERIAL OMITTED

Brett L. Tolman, David F. Backman, Diana Hagen, Richard N. Lambert, US Attorney's Office, Salt Lake City, UT, for Plaintiff.

Steven B. Killpack, Audrey K. James, Parker Douglas, Robert L. Steele, Utah Federal Defender Office, Salt Lake City, UT, for Defendants.

MEMORANDUM DECISION & ORDER DETERMINING COMPETENCY

DALE A. KIMBALL, District Judge.

This matter is before the court on the United States' motion, brought pursuant to 18 U.S.C. § 4241, to determine Defendant Brian David Mitchell's competency to stand trial for the charges of kidnaping in violation of 18 U.S.C. § 1201(a)(1), and unlawful transportation of a minor in violation of 18 U.S.C. § 2423(a). This court held an evidentiary hearing on Mitchell's competency on October 1, 2009 and November 30, 2009 through December 11, 2009. At the hearing, the United States was represented by Brett L. Tolman, Richard N.W. Lambert, David F. Backman, Diana Hagen, and Alicia Cook, and Defendant Brian David Mitchell was represented by Robert L. Steele, Parker Douglas, Audrey K. James, and Kent Hart. After the hearing, the parties submitted legal memoranda and proposed findings and conclusions. The court received the parties' final submissions on February 16, 2010. Having carefully considered the evidence admitted at the hearing, including the competency evaluations of Dr. Michael Welner, Dr. Noel Gardner, and Dr. Richart DeMier, the arguments advanced by the parties in their written memoranda and at the hearing, as well as the law governing a determination of competency, the court enters the following Findings of Fact, Conclusions of Law, Memorandum Decision and Order Determining Competency.

PRELIMINARY LEGAL ISSUES

A. Competency Standard

The standard for determining competency is well established through United States Supreme Court case law. Federal courts have acknowledged that the Due Process Clause of “[t]he Constitution forbids the trial of a defendant who lacks mental competency.” United States v. DeShazer, 554 F.3d 1281, 1285 (10th Cir.2009). Accordingly, the United States Supreme Court set forth a standard for determining competency in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), which requires a defendant to have (1) a rational and factual understanding of the proceedings and (2) the ability to consult with counsel with a reasonable degree of rational understanding. Id. More recently, the Supreme Court has recognized that requiring a criminal defendant to “be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel.” Godinez v. Moran, 509 U.S. 389, 402, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993).

In this case, Mitchell's defense counsel recognized at the competency hearing that Mitchell has a factual understanding of the proceedings. The issue for the court, therefore, is to determine whether Defendant has a rational understanding of the proceedings and the ability to consult with counsel with a reasonable degree of rational understanding. “A defendant lacks the requisite rational understanding if his mental condition precludes him from perceiving accurately, interpreting, and/or responding appropriately to the world around him.” Lafferty v. Cook, 949 F.2d 1546, 1551 (10th Cir.1992). “Although the facts in each case vary, the circuits addressing competency after Dusky, including our own, have used a sufficient contact with reality as the touchstone for ascertaining the existence of a rational understanding.” Id. (citing cases).

B. Evidence Relevant to Determining Competency

The court's determination of competency is a factual, rather than legal, determination. United States v. Mackovich, 209 F.3d 1227, 1232 (10th Cir.2000). In determining competency, this court “ ‘may rely on a number of factors, including medical opinion and the court's observation of the defendant.’ ” United States v. Boigegrain, 155 F.3d 1181, 1189 (10th Cir.1998) (quoting United States v. Nichols, 56 F.3d 403, 411 (2d Cir.1995)). In cases, such as this one, with multiple experts, a district court may find a defendant competent by adopting the findings of one expert and discounting the contrary findings of another. Miles v. Dorsey, 61 F.3d 1459, 1472-74 (10th Cir.1995); Mackovich, 209 F.3d at 1232; Deshazer, 554 F.3d at 1287.

“[T]he Court may rely on, in addition to expert testimony, lay witness testimony concerning the [defendant's] rational behavior, and cross examination of [defendant's] expert.” Bundy v. Dugger, 675 F.Supp. 622, 634 (M.D.Fla.1987) (citing United States v. Mota, 598 F.2d 995, 998-1000 (5th Cir.1979)). Lay witness testimony is especially important where the evidence indicates a defendant may be malingering or manipulating the system. See, e.g., United States v. Gigante, 925 F.Supp. 967, 976 (E.D.N.Y.1996) (relying on lay witness testimony to find that defendant's “actions and decisions were wholly inconsistent with the behavior observed by the doctors ... and that his motive for putting on a ‘crazy act’ for all those years was to avoid apprehension by law enforcement”); United States v. Birdsell, 775 F.2d 645, 650-51 (5th Cir.1985) (affirming finding of competency based in part on the district court's reliance on “the observations of those witnesses in long-term daily contact with the patient rather than conclusions based on a relatively brief period of examination”); State v. Robertson, 932 P.2d 1219, 1224 (Utah 1997) overruled on other grounds by State v. Weeks, 61 P.3d 1000 (Utah 2002) (affirming finding of competency based in part on district court's reliance of lay witness testimony from a police officer, a nurse, and a clinical worker).

In several pre-hearing motions, defense counsel sought to preclude lay witness testimony, expert testimony relating to Mitchell's cultural influences, and the report and testimony of Dr. Michael Welner. The court previously denied those motions in written opinions issued prior to the competency hearing. Defense counsel continues to assert that the evidence should not be considered or should be given little, if any, weight. The court, however, having now had the opportunity to view the evidence in context during the competency hearing is more persuaded than before as to the relevance and necessity of this evidence to the court's determination of competency. Mitchell's refusal to participate in the process makes this information necessary to a full understanding of his condition. Mitchell has selectively spoken with mental health evaluators and refused to be psychologically tested. There was no credible evidence that Mitchell's refusal to participate in psychological testing, something that could undermine a finding of incompetence given the results of psychological testing he had when he was younger, was anything other than a self-serving decision. The court, therefore, concludes that there is no basis for revisiting its prior evidentiary rulings.

The defense also takes issue with the court making extensive factual findings in relation to its determination of competency. Defense counsel contends that any findings relating to Mitchell's potential guilt of the charged crimes will prejudice Mitchell at trial. But courts routinely make preliminary factual findings in connection with pre-trial motions, such as motions to suppress, that may relate to the potential guilt of the defendant. Rule 12(d) of the Federal Rules of Criminal Procedure states that “[w]hen factual issues are involved in deciding a motion, the court must state its essential findings on the record.” Fed.R.Crim.P. 12(d). Accordingly, the court is required to include any fact it believes essential to its ruling. As discussed above, the court disagrees as to the scope of relevant evidence relating to Mitchell's competency and Mitchell himself has made the need for extensive information necessary. Moreover, the court is only making findings relevant to competency, an eventual jury will make findings as to guilt. Under 18 U.S.C. § 4241(f), the court's findings with respect to competency are not admissible at trial and “shall not prejudice the defendant in raising the issue of his insanity as a defense to the offense charged.” Any question as to potential juror prejudice can be dealt with during the jury selection process and in specific jury instructions.

C. Burden of Proof

Under 18 U.S.C. § 4241, a defendant is not competent to stand trial if “the court finds by a preponderance of the evidence that the defendant is 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.” Id.; see also United States v. Parsons, 967 F.2d 452, 455 (10th Cir.1992). While the statute plainly states that the burden of proof is a preponderance of the evidence, it does not state which party bears that burden. See United States v. Wayt, 24 Fed.Appx. 880, 883 (10th Cir. Nov. 27, 2001) (unpublished) (noting that the “federal statute providing for competency hearings does not allocate the burden of proof”); see also United States v. Whittington, 586 F.3d 613, 617 (8th Cir.2009) (stating “Congress has not set forth which party has the burden of proving whether a defendant is competent to stand trial”).

In dicta, the United States Supreme Court has indicated that the burden under Section 4241 lies with the defendant. Cooper v. Oklahoma, 517 U.S. 348, 362, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). Cooper dealt specifically with an Oklahoma state statute requiring defendants to prove incompetence by clear and convincing evidence rather than burden of proof under the federal statute. But, in the context of discussing the...