United States District Court, E.D. Kentucky, Southern Division, London
A. Ingram, United States Magistrate Judge
October 2, 2018, the Court conducted a competency hearing in
this matter, per 18 U.S.C. §§ 4241 and
4247(d). D.E. 26. The hearing followed an oral
motion for a competency evaluation made by Defendant's
attorney at a June 21, 2018 hearing. D.E. 11. The Court
granted the motion, ordered an evaluation in a custodial
setting, and Defendant was remanded to the custody of the
United States Marshal. D.E. 12. The Court, upon the required
findings, ordered the psychiatric or psychological
examination pursuant to 18 U.S.C. §§ 4241(b). D.E.
15. As a result of this motion, Defendant has not yet had his
initial appearance and arraignment on the indictment.
Court ordered the examination to be performed at the SeaTac
Federal Detention Center in Seattle, Washington. D.E. 15. All
parties had access to the Forensic Report (“the
Report”) issued by Dr. Cynthia A. Low, Ph.D. D.E. 22.
In the Report, Dr. Low opined that Defendant is competent for
trial purposes. Id. at 15. After receipt of the
Report, the Court set a hearing (D.E. 23), and the parties
appeared with counsel (D.E. 26). During that hearing, the
parties stipulated to the admissibility of the Report, as
well as to the Report's findings. The parties also waived
introduction of other proof or argument and waived the right
to examine or cross-examine the evaluator.
4241 codifies the competency principles of Dusky v.
United States, 362 U.S. 402 (1960). Thus, to be
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 a factual understanding of the proceedings against
him.” Dusky, 362 U.S. at 402; see
also 18 U.S.C. § 4241(a) (phrasing the test as
whether a defendant is “unable to understand the nature
and consequences of the proceedings against him or to assist
properly in his defense”). Section 4247(d) of 18 U.S.C.
governs the competency hearing and assures certain trial-type
rights. These include the right to confront and cross-examine
witnesses, and the right to participate in the hearing.
See 18 U.S.C. § 4241(c) (referring to the
hearing procedures outlined in section 4247(d)).
per section 4241(d) and based on the hearing, a defendant is
not competent if, “after the hearing, the court finds
by a preponderance of the evidence that the defendant”
meets the incompetency definition of section 4241(a). This
framework does not dictate which party bears the burden,
which has led to disagreements among the Circuits. See
United States v. Carter, No. 1:12-CR-29, 2013 WL
6668715, at *11 (E.D. Tenn. Dec. 18, 2013) (compiling
cases). Here, the proof is not in any way
disputed, and the Court need not resolve the burden
allocation question. See Medina v. California, 505
U.S. 427, 449 (1992) (indicating that argument over burden,
in competency context, only matters in “narrow
class” of cases where the proof is “in
stipulated as to both the admissibility and the substance of
the Report. Accordingly, the only proof concerning
Defendant's competency is the expert analysis of Dr. Low.
The Report reflects personal observation, a review of
Defendant's available medical history and status,
sufficient psychological testing, and a thorough assessment
of Defendant's abilities in light of the applicable
competency standards. The author analyzed Defendant's
history, course of evaluation, and testing performance. Dr.
Low directly observed Defendant via interviews and subjected
him to a battery of psychological testing. D.E. 22. Dr. Low
also made contact with defense counsel Christy Love, and
received Ms. Love's report regarding Defendant's
behavior. Id. at 8. The evaluator also secured and
reviewed some legal documents, including Defendant's
criminal history. Id. at 7.
Report is a thorough and comprehensive assessment of
Defendant's mental and psychiatric condition. Notably:
(1) The Report indicates that, although Defendant “was
generally a reliable historian . . ., his reported mental
health symptoms were questionable and his credibility was not
sound in that regard.” D.E. 22 at 2.
(2) Defendant has a history of drug use and violence going
back to his childhood. Id. at 4. “He reported
a childhood history of physical and emotional abuse.”
Id. at 9. He “began using marijuana and pills
during middle school.” Id. at 4. He was
expelled from ninth grade after he was caught with a knife:
“He planned to stab one or two people and a friend
reported him.” Id. He attended alternative
school the following year, but was expelled for planting
marijuana. Id. He has been mostly incarcerated since
age 18. Id. at 6.
(3) Defendant has “a significant history of substance
abuse.” Id. at 4. He made his own alcohol in
prison and injected it. Id. When released, he
prefers methamphetamine, which he uses as a medication to
make him feel normal. Id. Six months of substance
abuse classes in prison were “not effective.”
Id. at 5.
(4) Significantly, Defendant “claimed to have a second
personality named FTP, ” FTP being an acronym for
“fuck the police.” Id. at 6. FTP talks
to Defendant constantly, and Defendant has difficulty
controlling FTP, who “drives” Defendant and
“takes over.” Id. Defendant
“blames all of his violent actions on FTP.”
Id. Defendant reports he experiences “blank
spots” and he “loses time.” Id.
(5) During the evaluation, Defendant “was polite and
cooperative and exhibited good eye contact.”
Id. at 10. He was oriented to person and place but
was unsure whether it was 2017 or 2018. Id.
“No significant difficulties were observed with
attention, concentration, or short-term memory.”
Id. “Despite his reports of auditory
hallucinations, no signs of psychosis were ever
observed.” Id. He stated it was difficult to
suppress FTP, and “appeared to be exerting much effort
to control his anger.” Id. at 10-11.
(6) On the date of his arrival at SeaTac, July 16, 2018,
Defendant initially “denied a mental health history,
denied a history of hearing voices, but reported a
significant substance abuse history.” Id. at
9. “Nothing unusual was observed with his mental
status.” Id. Two days later, he “again
denied a history of mental health problems or auditory
hallucinations, and his mental status was normal.”
Id. Over a week later, on July 27, he told
evaluators that he had “past diagnoses of Bipolar
Disorder, Schizophrenia, and Multiple Personality Disorder
since he was a teenager.” Id. The physician
who examined Defendant diagnosed him with “Anxiety
Disorder, Essential hypertension, and Gastro-esophageal
reflux disease without esophagitis.” Id. The
report notes elsewhere that Defendant “has been tried
on many different psychotropic medications beginning in
prison in the mid 2000s, but none have worked.”
Id. at 6. (7) On August 1, 2018, Defendant told a
contract psychiatrist he suffered from depression and has
“a dude in my head that tells me to do bad
things.” Id. When this person takes over,
Defendant “loses time up to several days and cannot
recall what happened during that time.” Id.
The contract psychiatrist diagnosed Defendant with
“Dissociative and conversion disorder; Major depressive
disorder, single episode; and Other stimulant use, with
stimulant-induced disorder.” Id. at 10.
Additionally, the psychiatrist “indicated Mr. Gray was
difficult to diagnose accurately since he has never been off
methamphetamine until five months ago.” Id.
(7) Various tests were administered, but the results were
generally deemed invalid. Id. at 11. Defendant was
suspected of malingering mental illness. Id. The
evaluator estimated that Defendant's intellectual
functioning was in the “low ...