Free Memorandum - District Court of Arizona - Arizona

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DIANE J. HUMETEWA United States Attorney District of Arizona DANIEL R. DRAKE Assistant U.S. Attorney Arizona State Bar No. 3781 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-02-1028-PHX-NVW (MHB) Plaintiff, v. Bryan Leland Deal, Defendant. The United States respectfully submits this memorandum regarding the competency hearing Memorandum re Action Following Continued Competency Hearing

15 held April 9, 2008. The Court has set a hearing on Friday, April 18, to conclude the hearing with 16 arguments of counsel. 17 18 The Law Regarding Competency Hearings 19 A defendant is presumed competent to stand trial. Neither the statute nor the Supreme Court

20 have clearly provided which party bears the burden of proving comptency or lack thereof. The 21 party with the burden of proof is not specified; the Supreme Court has said in dicta that 22 "Congress has directed that the accused in a federal prosecution must prove incompetence by 23 a preponderance of the evidence," Cooper v. Oklahoma, 517 U.S. 348, 362, (1996), a view 24 adopted by some courts, but other courts have ruled that the government carries the burden of 25 proving the defendant's competence. 1A Fed. Prac. & Proc. Crim.3d § 208. The judicial officer 26 must find, by a preponderance of the evidence, that the defendant is unable to understand the 27 proceedings against him or assist counsel in the preparation of his defense. 18 U.S.C. § 4241(d) 28 .

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1 The Hearing Established Defendant is Not Competent 2 The government presented the testimony of psychologist Carlton Pyant, Ph.D., and

3 psychiatrist Jean Zula, M.D., of the Federal Medical Center Staff in Butner, North Carolina 4 ("FMC Butner"). Dr. Pyant testified that he participated in the examination of defendant in 2003 5 and 2004 after defendant had been deemed not competent by Susan Downs Parrish, a 6 psychologist in Phoenix. Dr. Pyant and psychiatrist Bruce Capehart, M.D., evaluated defendant 7 and found him not competent, with little insight into his mental condition, and reluctant to take 8 medication prescribe for him. They also found he was not compliant with their orders. (Exh. 9 1, pp. 6, 8, 9. 13-14.) Drs. Pyant and Capehart sought court permission to forcibly medicate 10 defendant in 2003, and were successful in restoring him to competency. (Exh. 2, pp. 2-3.) 11 Permission to force medicate was not granted during the 2004 evaluation, and defendant was 12 returned to court at the end of the evaluation period without being restored to competency. 13 (Exh.2, p. 8.) 14 At various times while at FMC Butner, according to the report of Drs. Pyant and Capehart,

15 defendant was placed in isolation or separated from the general population as he was deemed 16 a danger to self or others. (Exh. 1, pp. 9, 10, 11; Exh. 2, pp. 4, 5.) During his evaluations he 17 repeated his threats to kill President George W. Bush, and even threated violence toward FMC 18 Butner staff. (Exhs. 1, pp. 5, 6, 7: Exh. 2, pp. 6.) 19 Dr. Zula, director of the psychiatric program at FMC Butner, testified that Drs. Pyant and

20 Capehart conducted their evaluations of defendant under her supervision and that she was 21 familiar with their efforts and the results. She also had reviewed the 2005 letter from Jack Potts, 22 M.D., finding defendant incompetent at that time. (Exh. 4.) She had reviewed, as well, a 23 January 2008 memo from A. Hamidi, M.D., of CCA Phoenix (Exh. 9), and a January 2008 24 Report of Independent Psychiatric Evaluation and Competency Statement for Brian Deal by 25 Joseph Franzetti, M.D.. (Exh. 10.) These documents reported findings consistent with the 26 reports authored at FMC Butner, and revealed defendant's continued pattern of refusal to follow 27 directions of his attending physicians, even as it pertained to medical treatment, refusing to 28
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1 permit treatment of a self-inflicted wound on his leg. (See CR 163, Defendant's Motion for 2 Involuntary Medical Treatment.) In addition, the most recent evaluation, that of Dr. Franzetti, 3 concluded that defendant was not competent. (Exh. 10, pp. 5-6.) 4 As the court is well aware, defendant has been voluntarily mute ("elective mutism," as

5 described by Drs. Pyant and Capehart) at recent procedings, declining to respond to the Court's 6 questions, although he did stand when the proceedings were called to order as the Court took the 7 bench. During the competency hearing defendant sat with his back to the Court and evidenced 8 no interest in the proceedings. 9 In sum, this Court's own observations, coupled with the expert opinion of Dr. Franzetti,

10 supported by the previous opinions of Drs. Potts, Pyant, and Capehart, together with the memo 11 of Dr. Hamidi, establish that defendant is not competent to understand the nature of the 12 proceedings against him and to assist in his own defense. 13 14 The Law Following Competency Hearings 15 The applicable statute directs the court to commit defendant to the custody of the Attorney

16 General if the Court finds defendant not competent. 17 18 19 20 21 If, after the hearing, 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, the court shall commit the defendant to the custody of the Attorney General.

22 18 U.S.C. § 4241(d). By its use of the mandatory language­"the court shall commit the 23 defendant"­the statute offers the Court no other option but to commit should it find defendant 24 not competent to proceed. Of course, the commitment is for a limited time and for a limited 25 purpose: "...not to exceed four months, as is necessary to determine whether there is a substantial 26 probability that in the foreseeable future he will attain the capacity to permit the proceedings to 27 go forward." 18 U.S.C. § 4241(a)(1). 28
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1 Suggestion of Combined Order for Examinations Under 18 U.S.C. §§ 4241 and 4246 2 Given the history of this defendant, the government suggests that, in the event defendant is

3 found to be not competent and it is determined he cannot be restored to competency without 4 forced medication, as the evaluation of Dr. Franzetti implies, the Court also order an 5 examination under 18 U.S.C. § 4246, to determine whether defendant is a danger to others. A 6 determination of that factor would provide substantial guidance to the parties and the Court. A 7 combined order, with appropriate precatory language, would also avoid unnecessary delay 8 between the time the experts make their initial assessment regarding competency and an a 9 subsequent assessment regarding whether defendant poses a danger to others, should one be 10 needed. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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I hereby certify that on April 16, 2008, I electronically transmitted the attached document to the Clerk's Office using the ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mark Berardoni S/Daniel R. Drake Daniel R. Drake

Respectfully submitted this 16th day of April, 2008.

DIANE J. HUMETEWA United States Attorney District of Arizona /s/Daniel R. Drake DANIEL R. DRAKE Assistant U.S. Attorney

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