Plaintiff: John Clayton Krollman, Esq.
Defendant: Collin M. Geiselman, Esq.
issue before this Court is whether the Defendant, Matthew
Komrowski (Defendant), is now competent to stand trial on the
charges against him. This Court exercises jurisdiction
pursuant to G.L. 1956 § 40.1-5.3-3(g).
December of 2011, the Defendant was charged in a three-count
indictment, case number P1-2011-3415ADV, with Count (1)
murder, domestic in nature; Count (2) possession of a stolen
motor vehicle or parts; and Count (3) larceny under $1500.
The first competency evaluation was ordered on July 1, 2013.
The Court ordered this evaluation after being told by his two
defense attorneys that they were unable to effectively
communicate with the Defendant. In that report,
Barry Wall and Dr. Katherine Liebesny concluded that the
Defendant was competent to stand trial. The
Defendant contested the finding. A hearing was held on
October 9 through October 11, 2013. The Defendant then
retained his own expert, Dr. Wade C. Myers, to evaluate the
Defendant. On November 4, 2013, Dr. Myers submitted a report
on behalf of the Defendant. Dr. Myers found that the
Defendant was incompetent to stand trial. A hearing
was held on December 6 and 16, 2013. Based on these
conflicting reports, and the complexities of the findings,
the Court, with the agreement of counsel, appointed a third
doctor, Dr. Joseph V. Penn, to conduct a review. Dr. Penn
submitted a report on March 30, 2014 and concluded that the
Defendant was incompetent to stand trial. This Court
found the Defendant incompetent to stand trial on
July 3, 2014, based on the information and testimony
contained in the various reports and findings.
the Court declared the Defendant incompetent to stand trial,
the Defendant was ordered to Eleanor Slater Hospital (ESH)
pursuant to § 40.1-5.3-3, and periodic, six-month
reviews were ordered in accordance with § 40.1-5.3-3(k).
See Order at 1-2, Dec. 1, 2014. Following the
Defendant's placement in a facility, Dr. Pedro Tactacan,
the treating physician, prepared a report that was received
by this Court on September 19, 2014. A hearing was held on
September 23, 2014.
after, Dr. Tactacan, Dr. Wall and ESH determined that there
was a conflict in treating the Defendant, as they did not
believe that he was incompetent. Therefore, the Defendant was
not receiving any treatment. Both doctors recused themselves,
and an outside expert, Dr. Howard V. Zonana, was retained in
December of 2014.
Dr. Zonana's appointment in 2014, a hearing was held in
April of 2015 regarding the Defendant's treatment.
See Hr'g Tr., Apr. 16, 2015. In that hearing,
Dr. Zonana testified that the Defendant was, in his opinion,
incompetent to stand trial to a reasonable degree of
medical certainty. Id. In June of 2015, Dr. Tactacan
filed a Petition for Instruction (PFI), regarding the
Defendant's treatment and care. Later, in July of 2015,
Dr. Zonana testified again before this Court regarding issues
of informed consent and forced medication, stemming from the
PFI. See Hr'g Tr., July 29, 2015. In his July
2015 report, Dr. Zonana found that the Defendant was able to
communicate regarding treatment choices and able to
understand the relevant information regarding risks and
benefits of medication, but that he was not able to reason
clearly about treatment options due to his distrust of
medical staff. See Report at 5, July 22, 2015.
Court ordered the most recent periodic review of
Defendant's competency in January of 2017. In his report
dated April 4, 2017, Dr. Zonana concluded that the Defendant
is now competent to stand trial since he is now able
to understand the character and consequences of the
proceedings against him and is now able to properly assist
his attorneys with a reasonable degree of rational
understanding, if he so chooses. See
Report at 10, Apr. 4, 2017. A hearing regarding this most
recent report was held on June 20, 2017. On July 12, 2017,
the Defendant filed his memorandum of law contending that he
remains incompetent to stand trial. The Court received the
State's memorandum in support of finding the Defendant
competent to stand trial on July 17, 2017. The Court must now
decide whether, based on the evidence before it, the
Defendant is competent to stand trial at this point in
Standard in Rhode Island
Island law begins with the presumption that the Defendant is
competent to stand trial. See
§ 40.1-5.3-3(b). Section 40.1-5.3-3(a)(2) states
that "[a] person is mentally competent to stand trial if
he or she is able to understand the character and
consequences of the proceedings against him or her and is
able properly to assist in his or her defense."
See § 40.1-5.3-3(a)(2). Section
40.1-5.3-3(a)(5), conversely, defines incompetency stating,
"A person is mentally incompetent to stand trial if he
or she is unable to understand the character and consequences
of the proceedings against him or her or is unable
properly to assist in his or her defense." See
Island law provides for a hearing regarding competency where
such an issue is in dispute:
"Upon receipt of the report and appropriate notice to
the parties, the court shall hold a hearing . . . At the
hearing, the report shall be introduced, other evidence
bearing on the defendant's competence may be introduced
by the parties, and the defendant may testify, confront
witnesses, and present evidence on the issue of his or her
competency. On the basis of the evidence introduced at the
hearing, the court shall decide if the defendant is
competent." Sec. 40.1-5.3-3(g); see also State v.
Peabody, 611 A.2d 826, 829 (R.I. 1992).
Court finds, after the hearing, that a defendant is
competent, the Court shall proceed with the criminal case.
See § 40.1-5.3-3(h). However, if the Court
finds that the defendant is incompetent, the Court
"shall commit him or her to the custody of the director
for the purpose of determining whether or not the defendant
is likely to imperil the peace and safety of the people of
the state or the safety of himself or herself and whether the
defendant will regain competency. . . ." Sec.
40.1-5.3-3(h)(2). The director must issue the written report
no more than fifteen days from the date of the commitment.
See 40.1-5.3-3(h)(3). Subsequent to the filing of
that report, the Court must hold a hearing to review the
evidence presented, and-if the Court finds that the defendant
is likely to imperil the peace or safety of the people of the
state or the peace and safety of himself-the Court may order
the defendant to remain at the facility. See §
ordered to remain at the facility, the director "shall
petition the court to review the state of competency of a
defendant committed . . . not later than six (6) months from
the date of the order of commitment and every six (6) months
thereafter, or when the director believes the defendant is no
longer incompetent, whichever occurs first."
See § 40.1-5.3-3(k). Finally, a committed
defendant may, at any time, petition the court to review the
state of his or her competency. See §
instant case, Dr. Zonana's latest report, written on
April 4, 2017, concluded that the Defendant was
competent to stand trial. The Defendant did not
retain his own expert to refute Dr. Zonana's
determination of competency, and instead the Defendant
cross-examined Dr. Zonana's findings on the record at the
1976, the Defendant-according to a 2011 Investigative Report
(Report)-was nine years old when he was hit by a tractor
trailer on Manton Avenue and very badly injured. See
Invest. As a result, the Defendant was in a body cast and he
spent an extended period of time at Rhode Island Hospital.
Although doctors could not find any physical brain injury,
the Defendant's family reported that he began having
behavioral problems at school after his accident. In fact,
the Defendant had four admissions to Bradley Hospital between
1986 and 1992. See Report at 7, Nov. 4, 2013. In the
summer of 1992, during one of the admissions to Bradley
Hospital, "[the Defendant] became tangential, grandiose,
and agitated after being given Prozac . . . [and] [h]e was
diagnosed as having Bipolar Disorder . . . ."
Id. The Defendant has since had multiple psychiatric
diagnoses, including "oppositional disorder, conduct
disorder, developmental disorder, dysthymic disorder,
cyclothymic disorder, psychosis, major depression with
psychotic features, posttraumatic stress disorder,
schizophrenia, malingering, bipolar disorder, depression,
different personality disorders (e.g., Antisocial,
Borderline), adjustment disorder, and substance abuse."
Id. at 7-8.
According to Dr. Myers, "[the Defendant] ha[d] been
tried on virtually all classes of psychotropic medications,
such as antidepressants, antianxiety agents, mood
stabilizers, and antipsychotics, with limited or inconsistent
results." Id. at 8. Dr. Meyers also noted that
"[the Defendant] ha[d] been a dreadful management
problem for institutions." Id. According to Dr.
Myers, "[t]here are multiple reports of past suicide
attempts; self-mutilation (e.g., cutting, biting
self); inserting foreign objects into his body, urethra and
rectum; swallowing of foreign objects; and threatening or
engaging in hunger strikes." Id.
March of 2009, during a period of time while the Defendant
was admitted to ESH, Dr. Tactacan and Dr. Wall reviewed the
Defendant's behavior and mental health through a joint
report entitled "Forensic Treatment Interim Summary
Report." See Report at 1-7, Mar. 6, 2009. In
their opinion, the Defendant was diagnosed with Antisocial
Personality Disorder, Borderline Personality Disorder (BPD),
and Malingering. See id. at 6. Additionally, Drs.
Tactacan and Wall found that the Defendant met the criteria
for Post-Traumatic Stress Disorder (PTSD)- which was in
remission-as well as Polysubstance Dependence (also in
remission within a controlled environment). See id.
Drs. Tactacan and Wall wrote that in their opinion, the
Defendant's "continued impulsive behavior is
willful" and that he "will demonstrate the ability
to control his impulsive behavior, terminate self-damaging
behaviors, and have alleviation of suicidal impulses/ideation
. . . only when he believes that his needs are met by ACI or
ESH staff[.]" Id.
of Previous Competency Reports
Wall and Dr. Liebesny
of 2013, Dr. Wall and Dr. Katherine Liebesny (Dr. Liebesny)
reviewed the Defendant's competency to stand trial. In
that July 2013 report, the doctors diagnosed the Defendant
with Borderline Personality Disorder, Antisocial Personality
Disorder, Malingering, Polysubstance dependence in remission,
Asthma, and GERD. See Report at 14, July 24, 2013.
Dr. Wall and Dr. Liebesny included "Malingering" in
the list of Defendant's diagnoses, stating in their
report that the Defendant is "known to exaggerate his
symptoms and at times overemphasized how his depressive
symptoms interfered with his focus on his case."
Id. at 15. Based on these observations, Drs. Wall
and Liebesny concluded that the Defendant met both prongs
under Rhode Island's competency test and was
competent to stand trial in July of 2013. See
id. at 14.
November of 2013, Dr. Myers conducted a psychiatric
evaluation, at the request of the Defendant, in order to
review the Defendant's competency to stand trial.
See Report at 1, Nov. 4, 2013. In his report, Dr.
Myers stated that the Defendant's "diagnostic
picture is complicated[, ]" ultimately writing that the
Defendant exhibits behavior consistent with Bipolar Disorder,
Borderline and Antisocial Personality Disorders, and possibly
a Neurocognitive Disorder Due to Traumatic Brain Injury.
See id. at 10.
Myers concluded that-in his opinion and to a reasonable
degree of medical certainty-the Defendant was
incompetent to stand trial since he was unable to
properly assist counsel in his defense. Id. at 10-11.
Overall, Dr. Myers concluded that Defendant was, in his
opinion, incompetent to stand trial because he
"has shown continued difficulty with his ability to
properly assist counsel in preparing a defense."
Id. at 11.
March of 2014, Dr. Penn evaluated the Defendant, at the
request of the Court, for competency purposes. See
Report, Mar. 30, 2014. In his report, Dr. Penn recounted the
Defendant's previous diagnoses of possible schizophrenia,
major depressive disorder, Bipolar Disorder, PTSD,
Polysubstance dependence (in remission), Antisocial and
Borderline Personality Disorders, and malingering.
Id. at 17.
Dr. Penn concluded that the Defendant was
incompetent to stand trial since he was "unable
to demonstrate an understanding of the character and
consequences of the proceedings against him and he was also
unable to demonstrate an ability to properly assist in his
defense." Id. at 18. Dr. Penn based this
conclusion on the fact that the Defendant exhibited some
impairment in his thinking and behavior throughout the
interviews, which caused the Defendant to be an
"extremely poor and unreliable historian."
Id. at 17. However, he concluded by writing that
"[i]t was very difficult for this evaluator to clarify
if this belief system was delusional (a fixed false belief)
and specifically psychotic in nature, an over-valued belief
system, or more suggestive of malingering." Id.
Issue of Malingering
issue of the Defendant's malingering was described by the
experts in their various reports and testimony. Dr. Tactacan
reported that the Defendant often exaggerates the symptoms of
his illnesses and noted that individuals will often malinger
or fake symptoms in order to "achieve certain goals,
such as [a] transfer from one part of an institution to
another to get out of a problem, or to access a
hospital." See Report at 29, 30, Feb. 12,
Wall and Dr. Liebesny also raised the issue of malingering in
their report when they stated that the Defendant is
"known to exaggerate his symptoms and at times
overemphasized how his depressive symptoms interfered with
his focus on his case." See Report at 15, July
24, 2013. Moreover, Dr. Penn discussed the possibility of
Defendant's malingering, noting that there are some
inconsistencies in the Defendant's presentation.
See Report at 18, Mar. 30, 2014.
Myers testified at the previous hearing that the Defendant
told lies, and that those lies were volitional in nature.
Hr'g Tr. 75, Dec. 6, 2013. In addition, Dr. Myers
testified that the Defendant had the ability to engage in
normal conversations, but would then get emotional when the
discussion focused on the charges against him, at which time
the Defendant "would suddenly start becoming preoccupied
with the system mistreating him and persecuting him and then
he would be off and racing on that topic and hard to get him
off of it." Id. at 77. When asked if the
Defendant's "hunger strike" was manipulative,
the doctor said that "[i]t may have some manipulative
component to it, but I don't think it is just
manipulation." Id. at 89. Dr. Myers also
testified that Mr. DiLauro succeeded in getting the Defendant
to focus on the case during a meeting between the two that
the doctor observed. Id. at 91.
asked about whether Dr. Wall's opinion that the Defendant
was a malingerer had any effect on his opinion of the
Defendant's malingering, Dr. Myers said: "[y]ou have
to look at what repeated episodes of malingering means in
that context. He looks like a very seriously mentally ill man
throughout those records. I'm not as convinced everything
that happens with him on a day-to-day basis is
malingering." Hr'g Tr. 20, Dec. 16,
2013. Lastly, Dr. Myers appeared to say that
it is possible for an individual to suffer from psychosis but
also be a malingerer when he testified that "[someone]
can be psychotic and malinger and still have psychosis while
[they] are malingering." Id. at 4.
Zonana, in his April 2015 report, wrote that "[t]here
certainly have been times, when [the Defendant] was
incarcerated in the Department of Corrections, that he
claimed to have fabricated symptoms in order to get out of
difficult situations." Report at 9, Apr. 10, 2015. The
doctor also said that "[the Defendant] seems to have the
capacity to both exaggerate real symptoms as well as
fabricate others. Unfortunately there is no bright line that
allows us to specify when it is real, an exaggeration, or
outright malingering." Id. at 10.
Initial Decision on Competency
3, 2014, this Court found the Defendant to be incompetent to
stand trial. In its opinion, this Court noted that the issue
in making the determination was not whether the Defendant
understood the character and consequences of the proceedings
against him. Instead, the significant issue for this Court
had been whether the Defendant could properly assist his
attorneys in his defense. In making its determination that
the Defendant was incompetent to stand trial, this Court
relied upon the various reports discussed above, particularly
the portions discussing the concept of
malingering, as well as multiple expert reports
discussing the factors to be considered when determining if a
defendant is competent to stand trial, specifically the
reports of Drs. Wall and Liebesny, Dr. Myers and Dr. Penn.
Wall and Liebesny felt that the Defendant showed a good
understanding of the charges against him and the potential
consequences. See Report at 9, July 24,
2013. The doctors also discussed different
types of pleas with the Defendant, including guilty, not
guilty and nolo contendere. See
id. Drs. Wall and Liebesny also felt
that the Defendant had an understanding of the trial process.
See id. at 10. In response to what the role of the
judge was, the
"Who controls the court room? I'll try to tell you,
the victim, the family, the witnesses, the people spreading
lies. None of your questions. The lawyer doesn't.
It's the people on the news. You can sit there and lie to
me. It's the people on the outside who are in control.
The people want to complain. They want to lock you up not
because you committed a crime but because the public wants
you locked up." Id.
respect to the role of a defense attorney-imagining that he
had private counsel rather than a public defender-the
Defendant said that the defense attorney's role is
"[t]o take [his] money. Don't believe that anyone is
here to help me. If people wanted to help me they would have
helped me a long time ago." Id. In response to
the doctors' question about why people would not want to
help him, the Defendant said, "I don't know. I
can't read people's minds. People only want to help
when things get bad or after the fact." Id.
When asked about the role of the prosecutor, the Defendant
said a prosecutor's role is to "[tell] lies to
satisfy the public." Id.
response to the question about the role of the jury, the
Defendant answered angrily:
"I've never been to a trial . . . to help the
prosecutor to prosecute your ass and give the people justice.
You got to sit there and fight to change one of those
people's minds. You've gotta win them over. The state
is paying them. It's corrupt. You tell me, who's
paying those people? It will be the same people talking on
the news that he should go away for the rest of his life,
they are going to put me away.'" Id.
Defendant then said that the role of witnesses is
"'[t]o do what the police tell them to do, same
thing they do on the reports. Tell lies to say you were
somewhere you weren't. TV mimics real life you
know." Id. According to the doctors, the
Defendant began mimicking a witness and said "Let's
do this, guilty verdict, I'm tired of sitting here."
respect to purpose of a trial, Defendant responded:
"Formality-it's what we are supposed to do so we are
going to go through the motions but the result is going to be
what the result is going to be. Unless they know that the
case is shit, sorta like my case, if they mishandle the
evidence. That could free you. If they want to fry your ass
they take you to trial." Id. at 11.
Drs. Wall and Liebesny believed that the Defendant was able
to participate in his defense. See id. According to
the doctors, the Defendant "was able to answer questions
and respond to candid redirection for a 60 minute interview
with Dr. Liebesny. However, he was frosty and terse with Dr.
Wall, pretty much glumly sitting there waiting for the
interviews with Dr. Wall to pass." Id. The
doctors also stated that the Defendant "sat calmly and
appeared to have good insight as to when he should censor
himself." Id. With regards to the
Defendant's motivation to defend himself, the doctors
wrote that the Defendant "gave conflicting responses. At
times he would indicate that he did not care about the
outcome but the overall content of many of his angry tirades
was to demonstrate numerous ways he could defend himself and
errors of police and the legal system that would be in his
favor." Id. Regarding the Defendant's hopes
for the best outcome of his case, the doctors wrote that
"[b]ased on [the Defendant's] insistence that he can
only plead not guilty and his repetition of facts that would
help his case, his demeanor was not consistent [with] someone
resigned to a bad outcome or someone looking for punishment
from others." Id.
respect to the "Appreciation of the Charges," Dr.
Myers wrote that the Defendant "showed an appreciation
of the charges he is facing and could name them
(e.g., murder, kidnapping)," which, according
to Dr. Meyers, was "[a]cceptable." Evaluation at 4,
Nov. 4, 2013. Regarding the "Defendant's
Appreciation of the Range and Nature of Possible
Penalties," Dr. Myers wrote that the Defendant
"believed that the best outcome, if he proceeded to
trial, would be a not guilty verdict. If found guilty, he
estimated he would receive a prison sentence ranging from
five to 30 years. He understood the plea bargaining process
and that he did not have to accept one. He added that he was
charged in the past with assault on an officer, a
misdemeanor, and he refused a plea bargain of 30 days.
Instead, his case was heard by a judge and he was sentenced
to six months."
Id. Again, Dr. Myers found this appreciation to be
"[a]cceptable" even though the Defendant's
"understanding of the potential length of a prison
sentence if found guilty is presumably unrealistic on the
lower end ('five years')," because "[the
Defendant] has the ability to be educated on this
respect to the "Defendant's Understanding of the
Adversarial Nature of the Legal Process," Dr. Myers
wrote that the Defendant's "understanding of the
adversarial nature of the legal process was mostly accurate
and rational when it could be discussed with him when he was
not in an agitated, paranoid, emotionally labile state."
Id. Dr. Myers continued:
"To wit, the public defender's role is to 'help
him' and 'fight for him and get him the best outcome
that he can.' In contrast, the attorney general is trying
to convict him of the charges he is facing. The judge listens
to the trial, 'runs the courtroom,' and is involved
with sentencing. The role of the jury is to determine guilt.
They are supposed to be 'neutral and open-minded.'
The best choice for him in his view was to have a jury,
'if there is any chance.' However, he complained the
Investigative reports were biased and not fair. 'The
facts are way off.'" Id.
Myers further wrote that "[i]n contrast to the above,
for example, on my February 7, 2013 evaluation of [the
Defendant], he decompensated when we began discussing his
case." Id. at 4. Dr. Meyers explained:
"(This emotional lability and associated deterioration
in his thought process occurred during each of my interviews
with him, brought about or exacerbated either from discussing
his case or from him bringing up and obsessing over the
verbal abuse and other mistreatment by the ACI officers that
he perceived was occurring). This abrupt change in his mental
state was remarkable for a transition to paranoid ideation,
agitation, and rapid, rambling and pressured speech. His
verbalizations morphed into a rant about his attorneys not
truly being on his team; rather, that they were
surreptitiously working with the prosecution. He spoke
hurriedly and with racing thoughts for about 15 minutes
before he was at last interrupted. Other topics of his
nonstop tirade, to name a few examples, included the evidence
being 'circumstantial,' 'I could not have been
there to light a fire,' conflicting witness descriptions
of a car (one said red, another said gold), 'I was never
with anyone else, a conspirator,' 'I know the cards
are stacked against me,' 'Honestly, she was the only
person I had in my life,' 'I never knew she cheated
on me.' 'After a while I told them whatever they
wanted to hear,' 'I was at my sister's house at
11:30 p.m.,' The fire alarm was 'pulled at 11:45
p.m.' 'They say I arrived at 11:10 p.m. . . ."
Id. at 4-5.
the first two factors, Dr. Myers found the Defendant's
understanding of the adversarial nature of the legal process
to be "[m]arginal." Id. at 5. This is
because "[the Defendant's] understanding of the role
of his defense attorneys is compromised when he is in the
above-described paranoid, agitated state that phenotypically
looks like mania (an abnormally elevated or irritable mood
with racing thoughts and confusion).]" Id.
Myers found the Defendant's capacity to disclose facts
pertinent to the proceedings and properly assist in his
defense to be "[i]mpaired." Id. Dr. Myers
"[the Defendant's] ability to communicate with his
attorney and participate in his defense is impaired based on
my interviews with him, and also from my observations of his
interactions with Mr. DiLauro on June 11, 2013. On that date,
he was suspicious of his attorney's motives and was
hesitant to discuss events pertaining to his involvement in
the crimes, despite repeated assurances from his attorney it
was confidential and important to his defense. He made
several brief forays into discussing the crime facts and his
associated mental state and behaviors, yet each time he
devolved into a paranoid, frantic preoccupation with the ACI
staff listening in through the door and speakers in the
ceiling and would proceed no further. After the last attempt
that day to discuss the crime with him he began hysterically
sobbing, could not continue, and then settled into a state of
paranoid preoccupation. This cycle recurred in my earlier
evaluations of him." Id.
respect to the "Defendant's Capacity to Manifest
Appropriate Courtroom Behavior," Dr. Myers wrote that
"[the Defendant] has the ability to manifest appropriate
courtroom behavior. He has been in court in the past and
reported he was able to conduct himself appropriately,"
and Dr. Myers found this to be "[a]cceptable."
Id. Regarding the "Defendant's Capacity to
Testify Relevantly in Court," Dr. Myers wrote that
"[the Defendant's] capacity to testify relevantly in
court would be vulnerable were he experiencing significant
mood and personality disorder symptoms at the time of trial.
He would be at risk of using poor judgment and testifying
irrelevantly were he to transition into speech that was
rapid, disorganized, and pressured during testimony."
Id. Dr. Myers found the Defendant's capacity to
testify relevantly in court to be "[m]arginal."
Id. at 6.
Penn wrote that "[the Defendant] demonstrated
impairments in his understanding of the current charges and
legal proceedings against him." Report at 11, Mar. 30,
2014. Regarding the Defendant's
understanding of court personnel, Dr. Penn wrote that
"[the Defendant] demonstrated impairments in his
description of the role of his defense lawyer."
Id. With regards to the Defendant's
ability to assist with his defense, Dr. Penn wrote that
"[the Defendant] demonstrated either unwillingness or an
inability to participate in his legal defense."
Id. at 12.
on the statements of the various doctors-regarding the
Defendant's malingering-and the discussions on the
factors to be considered when determining a defendant's
competence to stand trial, the question of whether the
Defendant could properly assist his attorneys remained
unclear to the Court. Even though this Court felt that the
Defendant understood the character and consequences of the
proceedings, it could not rule that he was competent to stand
trial because it was not able to determine whether he was
able to properly assist his attorneys in his defense.
Specifically, this Court could not determine if he was truly
unable to assist his attorneys-as a result of his
illnesses-or if his inability to assist his attorneys was a
result of his own volition and his potential malingering. In
other words, this Court could not determine if the Defendant
was making a conscious decision to not assist his attorneys.
2014, this Court again asked for assistance from an outside
expert to review the Defendant's competency. This Court
eventually retained Dr. Zonana, who prepared a report of the
Defendant's competency in April of 2015. See
Report at 1, Apr. 10, 2015. In preparation for that report,
Dr. Zonana reviewed documents and met with the Defendant on
February 5, 2015, for approximately three and one-half hours
at ESH. See id. at 3.
Dr. Zonana concluded that the Defendant was aware of some of
the factual nature of the proceedings against him. See
id. at 11. However, the doctor found that there was not
"enough in the record to conclude that [the Defendant]
has a rational as well as factual understanding of the
proceedings and [that the Defendant] has the capacity to work
with his attorneys with a reasonable degree of rational
understanding." Id. Dr. Zonana also noted that
the Defendant "seems to have the capacity to both
exaggerate real symptoms as well as fabricate others"
and that "[u]nfortunately there is no bright line that
allows us to specify when it is real, an exaggeration, or
outright malingering." Id. at 10.
for Instruction Hearings
1, 2015, the Defendant's treating physician at ESH, Dr.
Tactacan, submitted a PFI to the Court. As a result
of the standstill between the Defendant and the staff at ESH,
Dr. Tactacan submitted a PFI to the Court and the Court
reviewed the Defendant's situation and behavior at
PFI, Dr. Tactacan stated that the Defendant was diagnosed
with Borderline Personality Disorder. He further stated that
medication would help to manage the Defendant's symptoms,
that the Defendant was unable to provide informed consent,
and that the Defendant refused the necessary medications. The
doctor asked the Court for permission to medicate and treat
the Defendant, since there were no available substitute
decision-makers to agree to the administration of medication
on the Defendant's behalf.
first hearing held on June 4, 2015, Dr. Tactacan appeared
before the Court for testimony regarding the PFI. During that
hearing, Dr. Tactacan testified that, in his opinion, the
proposed medications may be useful in treating the symptoms
of Borderline Personality Disorder. However, the doctor
acknowledged that there are no medications approved by the
FDA to treat Borderline Personality Disorder itself, and that
medication is not an appropriate solution or remedy to the
questioning by the Court, Dr. Tactacan testified that the
Defendant was not currently receiving any formal treatment
while at ESH due to his refusal to work with staff and
doctors; the only treatment ESH could provide, at the time,
was one-on-one supervision to prevent instances of
self-injurious behavior. The doctor explained that from his
conversations with the Defendant, it appeared as though the
Defendant did not have an insight into his own mental illness
or into the charges that brought him before the Court.
Tactacan clarified that no guardian was appointed in this
case to make medical decisions for the Defendant because the
Defendant was not "globally incompetent." Hr'g
Tr. 46, June 4, 2015. The doctor stated that the Defendant
can make decisions and take action regarding his grievances,
purchases, bank accounts, etc., and that he only refuses to
work with staff when it comes to treatment and his medical
decisions. Id. Dr. Tactacan testified that the
Defendant is capable of advocating for himself and making
decisions when it comes to matters that he feels strongly
about. Id. Despite a refusal to participate in
treatment or to discuss medical decisions, the doctor
provided examples of times when the Defendant had asserted
himself, stating that "he's very rights driven and
rights oriented. He certainly can advocate for himself, you
know, when he chooses to." Id. at 49-50.
Dr. Tactacan concluded by stating that the PFI was presented
to the Court because, without court-ordered medication, the
only treatment that ESH can provide the Defendant is
one-on-one supervision. Dr. Tactacan stated that in his
opinion, and to a reasonable degree of medical certainty, the
benefits of the proposed medications outweigh the risks.
Id. at 7. After a short recess and a conference
among the parties, the State requested a short continuance in
order to present a second expert, Dr. Zonana, for a future
hearing on the matter of informed consent and forced
medication. Thus, the Court did not issue an order for forced
medication after Dr. Tactacan's testimony on June 4,
22, 2015, Dr. Zonana prepared a report after he was requested
to address the continued issue of forced medication and
informed consent. See Report at 1, July 22, 2015.
Specifically, the Court asked Dr. Zonana to inquire whether
the Defendant was able to make a "fully informed
decision or [to] provide informed consent" regarding
proposed medications. Id. In preparation for his
July 2015 report, Dr. Zonana met with the Defendant on July
18, 2015 from approximately 9:45 am to noon. Id. Dr.
Zonana had previously met with the Defendant on February 5,
2015, and he reviewed progress notes dating from March 30,
2015 to July 17, 2015. Id.
videotaped meeting on July 18, 2015, Dr. Zonana informed the
Defendant that their discussion would not be confidential,
since it would be included in a report prepared for the
Court. See Report at 1, July 22, 2015. The Defendant
noted that he had spoken with one of his attorneys and that
he was willing to proceed. Id. Dr. Zonana writes
that in their July 18, 2015 meeting, the Defendant spoke
"more clearly and in a normal rate and volume than he
did in [the] first interview. There was no loosening of
associations, neologisms, and he generally was
coherent." Id. at 3. The doctor reported that
the Defendant "recalled [his] previous visit and was
able to bring up some of the details of what [they] had
talked about quite accurately. [The Defendant] was oriented
to person place and time." Id.
Dr. Zonana concluded that the Defendant was able to
communicate regarding treatment choices, able to acknowledge
the symptoms of his psychiatric condition, and that he did
appreciate the need for some kind of treatment. Id.
at 5. However, Dr. Zonana concluded that the Defendant is
unable to reason about treatment options because of
his mistrust for staff and treating physicians. Id.
Therefore, Dr. Zonana found that the Defendant likely cannot