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United States v. Richard

United States District Court, S.D. Mississippi, Southern Division

June 23, 2019




         THIS MATTER IS BEFORE THE COURT to determine whether the defendant, Tracy Jermaine Richard, is competent to stand trial. After reviewing the three confidential forensic psychological evaluation reports submitted to the Court and considering the testimony, evidence, and argument presented at the competency hearing conducted on June 20, 2019, the Court finds that Richard is competent to stand trial.


         On March 3, 2016, Richard was indicted for conspiracy to possess with intent to distribute cocaine hydrochloride and attempt to possess with intent to distribute 1 kilogram of cocaine hydrochloride. He was arrested on February 28, 2018. Counsel for Richard filed a Motion for Competency Exam, which was granted.

         Richard was evaluated by psychologist Kale E. Kirkland, Ph. D., in June 2018. Dr. Kirkland observed that malingering was present. Richard “put forth minimal effort during the assessment. He was exaggerating his intellectual deficits and his experience of psychosis.” (Report 6, ECF No. 89.) Dr. Kirkland evaluated Richard's knowledge of the courtroom and the trial process using the ECST-R instrument. Richard claimed that he did not know the charges against him, the name of his attorney, or the role of a jury. He could not identify any figures on a courtroom diagram. Dr. Kirkland opined that “[i]t is likely that [Richard] understands the allegations against him and the potential consequences associated with his charges, but he cannot adequately discuss his case or provide adequate discussion for his decision-making with respect to his legal defense.” (Id.) Dr. Kirkland attempted to administer the WAIS-IV, but Richard “put forth minimal effort, and was intentionally missing items.” (Id. at 5.) Therefore, Dr. Kirkland could not obtain a valid IQ score. Dr. Kirkland noted that administration of the Weschler Intelligence Scale for Children - Revised (WISC-R) in 1987 revealed that Richard's full-scale IQ was 58. Administration of the WAIS-R in 1997 revealed a full-scale IQ score of 61. Dr. Kirkland determined that Richard has a mild to moderate intellectual disability that prevents him from understanding the nature and consequences of the proceedings against him and from properly assisting in his defense.

         The Court conducted its first competency hearing concerning Richard on August 21, 2018, and determined, based on Dr. Kirkland's report, that Richard was at that time suffering from a mental disease or defect that rendered him mentally incompetent. The Court committed Richard to the custody of the Attorney General for treatment and evaluation. While in the custody of the Attorney General, Richard was evaluated and treated by forensic psychologist Evan S. Du Bois, Psy. D., and several other mental health professionals at the Federal Medical Center in Butner, North Carolina. Dr. Du Bois observed that, while Richard frequently complained of memory problems, Richard “was able to navigate the institution without difficulty, attend appointments which he chose to attend, and utilize the telephone system to communicate with family.” (Report 4, ECF No. 91.)

         While at FMC Butner, Richard displayed some knowledge of past criminal proceedings against him by reporting that he had previously been incarcerated for cocaine. He also stated that he had been arrested for burglary because police claimed he “kicked the door in.” (Id. at 2.) He claimed that he was arrested for a parole violation due to a urine test.

         Richard was enrolled in several groups at FMC Butner aimed at restoring competency and treating mental illness, but he stopped attending each group after the first session because he claimed that he did not understand what was being said at the group meetings. He was prescribed multiple medications due to his complaints of hallucinations, but he claimed that the medications did not help. During a session with FMC Butner's chief psychiatrist, Richard claimed he did not know his age, but he knew the number of medications that he was taking. He also disputed the assertion that he had refused to sign a consent form, by stating “How did I refuse to sign if I can't read or write?” (Id. at 5.)

         Richard's phone calls at FMC Butner were monitored. In conversations with his girlfriend[1], Richard displayed no difficulty communicating or remembering prior conversations. He was also able to provide her with instructions for putting money in other inmates' accounts so that he could call her from different accounts. One of the phone calls took place on December 28, 2018, soon after a meeting with Dr. Du Bois. Richard had told Dr. Du Bois that he could not remember why he was arrested or what would happen when he returned to Court. However, during the phone call with his girlfriend, Richard discussed in detail what had happened during his session with Dr. Du Bois. He stated that Dr. Du Bois was going to find him competent, and that he would plead guilty and face about two to three years in prison. He also said that he would probably be released on bail when he returned to court. Finally, he asked his girlfriend to relay this information to his attorney.

         Intellectual testing was not performed on Richard at FMC Butner because of his past poor performance and engagement during such testing. FMC Butner providers administered the Test of Memory Malingering (TOMM) due to Richard's claim of severe memory problems. In his report, Dr. Du Bois explained,

The TOMM is a well-validated instrument designed to assess whether an individual is feigning memory deficits by comparing the person's performance with the recall ability of unimpaired and neurologically injured groups, as well as comparing performance to that expected by chance. The test is a 50-item memory recognition task in which an individual is presented with a list of 50 pictures and then asked to select each of the pictures previously shown from two choices. For example, given the simplicity of the task, during validation studies of TOMM, “normal” individuals in the community correctly recalled approximately 49 of 50 items by Trial 2 and the Retention Trial (which follows a 15-minute delay). Even individuals with serious brain injuries and dementia perform well on this test, obtaining on average at least 45/50 items correctly.

(Id. at 7.) On the TOMM, Richard scored twenty-two and twenty-four out of fifty on Trial 1 and Trial 2, respectively. Dr. Du Bois opined that “[t]hese results strongly suggest that he put forth effort to provide incorrect responses and thus into appearing impaired in memory functioning.” (Id.) Dr. Du Bois also noted that Richard's behavior during sessions with medical professionals was very different than his behavior during phone calls and while interacting with other inmates at the facility. Dr. Du Bois opined that this was further evidence of malingering.

         The Inventory Legal Knowledge (ILK) was also administered during Richard's stay at FCM Butner. “The ILK is designed to assess response styles of defendants undergoing competency evaluations.” (Id. at 9.) Richard's ILK score “suggested he was not putting forth adequate effort and was likely attempting to feign deficits in legal knowledge during this administration.” (Id.)

         Dr. Du Bois diagnosed Richard with malingering and antisocial personality disorder based on the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). “Malingering is defined in the DSM-5 as ‘the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives.'” (Id. at 7.) Dr. Du Bois noted that these diagnoses do not rule out the possibility that Richard has intellectual deficits and/or a psychological disorder, but “it is impossible to accurately document the nature or severity of any deficits he may have until such time that he is willing to provide adequate motivation for testing.” (Id.) Dr. Du Bois further opined that Richard's assertions of memory impairment and an inability to read and write are not genuine. Furthermore, “[h]e was able to establish relationships with several other inmates, including making arrangements to utilize their phone accounts to contact his family and/or ...

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