U.S. v. Shenghur

• Decision Date: 01 September 2010
• Docket Number: No. 10 Cr. 50 (JSR),10 Cr. 50 (JSR)
• Citation: 734 F.Supp.2d 552
• Parties: UNITED STATES of America, v. Sayed Nooralishah SHENGHUR, Defendant.
• Court: U.S. District Court — Southern District of New York

734 F.Supp.2d 552

UNITED STATES of America,

v.Sayed Nooralishah SHENGHUR, Defendant.

No. 10 Cr. 50 (JSR).

United States District Court, S.D. New York.

Sept. 1, 2010.

Amie Nicole Ely, U.S. Attorney's Office, New York, NY, for United States of America.

Lawrence K. Feitell, Law Offices of Lawrence K. Feitell, New York, NY, for Defendant.

OPINION

JED S. RAKOFF, District Judge.

Beginning April 30, 2010, the Court conducted a five-day evidentiary hearing to determine whether, as the Government alleged, defendant Sayed Nooralishah Shenghur was competent to stand trial or whether, as defense counsel asserted, defendant was incompetent to stand trial or should be the subject of further physical or psychological evaluation. The proof included, inter alia, the testimony of the Government's expert, Dr. Cheryl Paradis, who opined that defendant was competent, the defendant's expert, Dr. Marc Janoson, who opined that the defendant was not competent, several recently taped conversations of Mr. Shenghur, and the results of various psychological tests. In addition, although defendant did not testify, the Court had ample opportunity to observe his demeanor and hear his volunteered statements. Finally, following the hearing, the Court received, in addition to legal memoranda, certain records of the former Immigration and Naturalization Service ("INS") relating to the defendant's mental health.

After full consideration of the evidence provided at the hearing and the parties' written submissions, the Court, by "bottom line" Order dated June 15, 2010, concluded that Mr. Shenghur was able to "understand the nature and consequences of the proceedings against him," as well as "to assist properly in his defense," and therefore was competent to stand trial. 18 U.S.C. § 4241(a), (d). This Court indicated it would eventually file a written Opinion detailing the reasons for those conclusions. This is that Opinion. ¹

As a threshold matter, the Court addresses which party carries the ultimate burden of establishing defendant's competency.² In United States v. Nichols, 56 F.3d 403 (2d Cir.1995), the Second Circuit chose not to decide the issue, noting that it would rarely make a difference. Id. at 410 ("The allocation of the burden of proof to the defendant will affect competency determinations only in a narrow class of cases where the evidence is in equipoise; that is, where the evidence that a defendant is competent is just as strong as the evidence that he is incompetent."). Courts in this district have followed that approach by declining to reach the issue, see, e.g., United States v. Wolfson, 616 F.Supp.2d 398, 415 (S.D.N.Y.2008), and this Court follows suit. Specifically, this Court finds that, regardless of which side has the burden of proof, the evidence of the defendant's competency to stand trial in this case is overwhelming.

To begin with, the "battle of experts" clearly favored the Government. The Government's psychiatric expert, Dr. Paradis, interviewed Mr. Shenghur on two occasions, and in both, he came across as perfectly competent. He understood Dr. Paradis's questions and responded coherently and with intelligence. Transcript of Competency Hearing ("Tr.") at 17, 42-43, 100-01, 369-70. He understood the charges against him, the roles of the various players,and the different options open to him. Id. at 96, 99, 105-07, 374-76, 389.

When, however, Dr. Paradis turned to putting questions to defendant that related to his claim of incompetency, Mr. Shenghur suddenly began to provide incongruous responses. For example, she asked him to repeat three simple words: "door, cat, pencil" and he responded "bird, head, and hat." Tr. at 18, 41.³ Based on such responses-so inconsistent with his prior coherence-Dr. Paradis suspected Mr. Shenghur of malingering, and proceeded to administer the Test of Memory Malingering (the "TOMM"), a 50-item recognition test in which, during the first phase, the patient is shown 50 line drawings of common objects at various intervals, and then, during the second and subsequent phases, is shown an image he has already seen alongside an image not among the original 50 and asked which one he has seen before. Id. at 18. Mr. Shenghur's performance-scoring 16 out of 50 on the third trial of the test, and well below the standard cut-off of 45-is indicative of someone who is malingering. See id. at 39.

While the TOMM, like other psychological tests, suffers from less than perfect scientific validation, the literature suggests that it is better than other tests for malingering. See Def. Ex. 12, Lilio O. Graue et al., Identification of Feigned Mental Retardation Using the New Generation of Malingering Detection Instruments: Preliminary Findings, 21 The Clinical Neuropsychologist 929, 932, 937-40 (2007); see also Def. Ex. 9, Gordon Teichner and Mark T. Wagner, The Test of Memory Malingering (TOMM): normative data from cognitively intact, cognitively impaired, and elderly patients with dementia, 19 Archives of Clinical Neuropsychology 455 (2004). The TOMM functions in a very common-sense way, as it simply requires the individual to assess whether an image is familiar, based on prior viewings. As Dr. Paradis testified, the overwhelming majority of truthful individuals, even those who are cognitively impaired or suffer mental retardation, perform reasonably well on the TOMM, because the test requires you to simply select the image that seems more familiar, having recently viewed that image at least once if not more times. Tr. at 37. Here, where Mr. Shenghur scored significantly lower than chance would predict and much lower than any of the aforementioned cut-off points, his results suggest that, more likely than not, Mr. Shenghur was malingering. Id. at 37-38. Indeed, in the view of the Court, based on all of the evidence before it, the evidence that Mr. Shenghur was pretending to be incompetent is compelling.

The defendant's expert, Dr. Janoson, was less persuasive. Dr. Janoson administered a number of tests-the Wechsler Adult Intelligence Scale ("WAIS"), the Bender-Gestalt test (the "Bender"), the Fitness Assessment Interview ("FAI"), and the Human Figure Drawings test-on the basis of which he drew extensive conclusions. For example, Dr. Janoson stated in his written report (which was received in evidence) that the defendant's results on the Bender, a screening test for brain dysfunction that requires the patient to reproduce a series of geometric figures, were "unequivocally indicative of cerebral dysfunction on an organic basis," Def. Ex. 1. Similarly, with respect to the human figure drawings test, Dr. Janoson asserted that the defendant's drawings, in which body parts were misplaced and facial features were omitted, clearly indicated brain damage.Tr. at 244-45, 250-52. Finally, based on the Fitness Assessment Interview, a series of questions designed to test the individual's knowledge of the court system, Dr. Janoson concluded that the defendant lacked a sufficient understanding of the U.S. legal system to assist in his own defense. Id. at 336-37.

Despite these conclusions, Dr. Janoson conceded that the defendant's extremely low scores could be the product of malingering. Id. at 70, 73, 136-37, 254. But he discounted this possibility because, in his view, the defendant would have had to have studied the tests in advance-in particular, the human figure drawings test-and learned what signs would be interpreted by an analyst as indicating brain damage or dementia, in order to malinger. See Tr. at 206, 353-54. But the Court is unpersuaded by this assertion for several reasons:

First, the tests, most especially the human figure drawings test, are of doubtful validity and reliability. See Gov't Ex. 20, Stephen J. Lally, Should Human Figure Drawings Be Admitted Into Court?, 76 Journal of Personality Assessment 135, 140 (2001); Gov. Ex. 28, at 51-52; Gov't Ex. 20, at 146 (discussing scoring criteria for human figure drawings and stating that they "arguably have a place in clinical practice, but they clearly do not belong in the courtroom").

Second, analysis of the drawings and of other tests Dr. Janoson administered is a highly subjective enterprise. See, e.g., Gov't Ex. 20 at 140; Gov't Ex. 31, Michael N. Lopez et al., Psychometric Properties of the Bender Gestalt Test Using Lacks' Version of the Hutt-Briskin Scoring System, 14 Applied Neuropsychology 284, at *2 (2007) ("There is a great deal of subjectivity involved when scoring the BGT using Lacks' (1999) system."). Moreover, Dr. Janoson used hybrid approaches to scoring, thus increasing the subjective dimension of the testing. See, e.g., Tr. at 199-201, 204, 243, 261.

Third, the bases of Dr. Janoson's conclusions were obscured by his methodology. For example, during the hearing, Dr. Janoson attempted to "rescore" Mr. Shenghur's results on the Bender-Gestalt test using Patricia Lacks's scoring system. Tr. at 232, 235-36. However, neither the Government nor Dr. Paradis could review his reassessment because he permitted Mr. Shenghur to draw each of his drawings one on top of the other, id. at 265, 340, thus leaving no independent data for review. Even if this were the standard protocol for administering the test, as Dr. Janoson insisted, id. at 341, Dr....