during her direct examination. From a layman’s perspective, Mrs, O’Kennard described a deeply
depressed son. Defendant’s own manifestations of voices seem to be selective. Because
detendant’s brother Christopher is being treated for schizophrenia, defendant is likely aware of
the phenomenon of hearing voices. He manifested presently hearing voices with individuals who
are aligned with the government: Dr. Henry, Dr. Carlson, Dr. Pindelski and Agent Getz, but he
apparently did not do that with the examiners he more likely trusted, Dr. Koziol and Dr. Gamze
and the hospital physicians. The incident described by Agent Getz, where defendant abandoned
the voices after he spoke with his brother who advised him to be cooperative, suggests that
defendant initially invoked the voices to explain his conduct.

The court is also influenced towards a finding of malingering by the testing which Dr.
Carlson conducted. Although it may be true that the tests have not been validated for psychotic
patients as Dr. Koziol observed, one would still expect that defendant’s scores on the tests would
have been more random if he truly did not understand what he was doing, Dr. Koziol inferred
from defendant’s ability 10 do math on paper although he could not do the same tasks in his head
that he could not initially register information. This would suggest at least that he should be able
to perform a written test of reading ability, but with Dr. Carlson he could not read above
kindergarten level. The court has found nothing in the DSM-IV description of Schizophrenia
that suggests that a dramatic drop in intellectual functioning is characteristic.

Of the critcria for malingering set out above, three are present: a medico-legal context,
marked discrepancy between defendant’s claimed disability and the objective findings of
apparently normal behavior when not under examination, and apparent lack of cooperation

during the diagnostic evaluation (although no treatment regimen has yet been prescribed). To be

13



Defendant appeared to be experiencing auditory hallucinations while in conference with
Dr. Carlson.’ Dr. Henry reported that he appeared to be having both visual and auditory
hallucinations, Defendant told Dr. Gamze that he had been hearing male voices in his left ear
for a year, which were constant, threatening harm to him and telling him to “do bad stuff all the
time.” He wanted the voices to stop but could not make them go away. He asked Dr, Carlson if
he too heard the voices,” He also reported voices to Agent Getz after the arrest, indicating that
the voices told him to commit the crime.

On cross examination, defendant’s mother testified that defendant had reported to her
about a year preceding the bank robbery that he feit hc needed medication like that of his brother
Christopher. Christopher, age 18, “was diagnosed with hearing voices as of late last yeat.” ‘Tr.
at 43, Mrs. O’Kennard also reported that defendant’s father and brother have received medical
treatment for “hearing voices” and that the father was diagnosed in California with schizophrenia
and/or bi-polar disorder.

Mrs. O*Kennard reported that, during the six months preceding the bank robbery, her son
had gone into “isolation,” was “closing down,” in a depression, unlike his normal “outgoing” and
“energetic” manner, She noticed that after two grandparents died and he lost his job, all in May
2002, he “totally shut down,” provoking her to make an appointment with a psychiatrist. Mrs.

O’Kennard testified that defendant did not go to the appointment because it was the morning

'He also reported hallucinations to Dr. Pindelski when he was first evaluated at MCC after his arrest,

2pr. Pindelski reported that defendant stated that his auditory hallucinations usually occurred at sleep onset
and termination, (This is not indicative of schizophrenia, according to the Diagnostic and Statistical Manual of
Mental Disorders, Fourth Edition (‘DSM-1V"TTM) (1994), at 275.)

4


the person’s thoughts or behavior) have been considered to be first-rank

symptoms. If these types of hallucinations are present, then only this single

symptom is need to satisfy Criterion A.”)....

id. at 275, “Individuals with an early age onset are more likely male and have a poorer
premorbid adjustment, lower educational achievement, more evidence of structural brain
abnormalities, more prominent negative signs and symptoms, more evidence of cognitive
impairment as assessed with neuropsychological testing, and a worse outcome. .., Early in the
illness, negative symptoms may be prominent, appearing primarily as prodromal features.
Subsequently, positive symptoms appear.” Jd. al 282.

Dr. Game reached the diagnosis of schizophrenia based on the history provided by
defendant’s mother, as well as the mental status examination he conducted, and to some cxtent
Dr. Koziol’s report. According io Dr. Gamze’s report, Mrs. O’ Kennard told him that defendant
had, over the course of the past year, significantly withdrawn into himself and seemed very
depressed, even suicidal, begining about May, 2002. She told him that defendant began hearing
voices one year ago (i.2., February 2003), although he had never described them to her. Mrs.
O’ Kennard also told him the defendant’s father was either bi-polar or schizophrenic. She
reported that defendant’s brother was then under psychiatric care, having experienced
hallucinations and been diagnosed with schizophrenia Dr, Gamze stated that schizophrenia is
morc likely in children of a schizophrenic parent than in the general population. He also noted
that defendant said little during the interview, seemed confused, displayed a blunted range of
emotions, and reported paranoid delusions. Tr. 65-68.

Unlike his interviews with Dr. Carlson and Dr. Henry, Dr. Gamze did not note in his

report that defendant manifested an episode of hearing voices. Dr. Gamze, however, probed the


judge “always sends people to jail,” and the jury are there for “clapping and stuff.” In short, his
responses on their face fell far short of basic understanding of legal procecdings.

In addition to the professional opinions of Dr, Carlson and Dr. Henry that defendant is
malingering, the government offered into evidence transcripts of recorded telephone
conversations that occurred at the MCC between the defendant and his mother on May 16, 2002,
shortly after the arrest, and on September 16, 19, and 29, 2003. These conversations demonstrate
that defendant understood and gave appropriate responses in normal conversation. He also made
reference to legal proceedings that indicated he knew what “court” and “lawyer” meant, (In the
September 29 conversation, defendant asked, “Did you call the lawyer?” (P. 3, 1.17) On
September 16, he referred to a co-inmate, “... his brother have court [tomorrow].” (P. 2, 1. 22),)

Agent Getz testified that after the arrest, defendant was hospitalized for gunshot wounds.
For approximately one-and-a-half hours at the hospital, he was within hearing distance of the
defendant during conversations with treating physicians. He observed that defendant interacted
appropriately with them, appeared to be oriented, and made no bizarre teferences to voices or
“Lycifer.” Afterwards, Agent Getz interviewed defendant at the Homewood police station.
Initially, defendant signed an advice of rights, stating (hat he understood it. During the interview,
however, defendant professed to hear voices trom “Lucifer,” and he said he had found the gun
that he used during the robbery. Suspecting “faking,” Agent Getz spoke with defendant’s
brother Edward (who had also been arrested but was released). Edward told Agent Getz he was
unaware of defendant’s having mental problems. Edward was allowed to speak with the
defendant and the two engaged in a five-minute conversation overheard by the agents, during

which defendant said nothing about Lucifer or voices. The interrogation continued after this



after the arrest and he was in custody. On cross examination, Mts, O’Kennard was asked
whether Brock had ever reported to her that he was hearing voices. Mrs. O’Kemnard responded
that a little more than a year before the robbery, “[h]c did tell me, .. . ‘Ma, I believe ] need to go
to the doctor, and I may need medication like Christopher,” Tr. 50-51. Mrs. O’Kennard could
recal! no specifics about the voices, although she later said that he told her two times about
voices, Id. at 51.

Although defendant has completed secondary education, and his mother stated he was a C
student, when Dr. Carlson tested his reading skills, he scored at a kindergarten level. Dr. Carlson
administered a variety of tests, the results of which, he believed, pointed to “malingering.”
Because defendant scored considerably lower on the tests than would be expected from merely
tandom answers, Dr. Carlson inferred that defendant purposely answered incorrectly.

The examiners obtained similar information when they questioned defendant about his
understanding of the court system. When Dr. Carlson asked him questions about the role of the
lawyer, the prosecutor and the judge, for example, he responded with “Huhs” and delays, then
gave “nonsensical and immature” answers, such as the prosecutor is “prostitute” and “Judge hit a
hammer.” He gave similar responses to Dr. Henry, although he indicated that both the defense
lawyer and the prosecutor would help him. He thought the judge would yell at him because “t
make her mad.” He told Dr. Gamze he did not understand why he was in jail, he could not

claborate on the role of a defense attorncy, the “prostitute” was there “to send you to jail,” the

Defense counsel, at the court’s request, endeavored to corroborate that this appointment was made but was
unable to do so, He learned that the physician had scheduled an appointment for defendant’s brother, Christopher,
and the physician stated that he saw other family members under the name Christopher “for insurance purposes,” that
he was treating Christopher and had never treated Brock O’ Kennard. This is inconsistent with Dr, Gamzc’s report
where he notes that Mrs. O’ Kennard told him that this psychiatrist had treated defendant with Ritalin to help him
focus better.


meaning that he cannot pay attention to the right information at the right time during the course
of a communication” and “he has a thought disorder, meaning that he is unable to think in a
logical way.” Tr. of Dec. 5, 2003 at 11. Because of his inability to focus, Dr. Koziol believed
that defendant could not cooperate with counsel either by understanding what counsel said to him
or by expressing himself back to counsel. Tr. 13.

Dr. Gamve interpreted defendant’s behavior as indicative of schizophrenia,
undifferentiated type, According to the DSM-IVTM,

The characteristic symptoms of Schizophrenia involve a range of cognitive

and emotional dysfunctions that include perception, inferential thinking, language

and communication, behavioral monitoring, affect, fluency and productivity of

thought and speech, hedonic capacity, volition and drive, and attention. No single

symptom is pathognomonic’ of Schizophrenia: the diagnosis involves the

recognition of a constellation of signs and symptoms associated with impaired

occupational or social functioning.
Id. a. 274. Diagnostic Criterion A requires positive symptoms of delusions, hallucinations,
disorganized speech, grossly disorganized or catatonic behavior, and negative symptoms of
“affective flattening, alogia, or avolition.” Jd. at 285. Diagnosis is indicated if “[t]wo or more of
the symptoms are each present for a significant portion of time during a 1-month period. Sce
4 295.90 (“The essential feature of the Undifferentiated Type of Schizophrenia is the presence of
symptoms that meet Criterion A of Schizophrenia but that do not meet the criteria for Paranoid,
Disorganized, or Catatonic Type.”)

“Auditory hallucinations are usually experienced as voices, whether familiar or

unfamiliar, that arc perceived as distinct from the person’s own thoughts. The

content may be quite variable, although pejorative or threatening voices are
especially common. Certain types of auditory hallucinations (i.e., commentary on

‘Pathognomy is “the study or recognition of emotions and passions through their outward signs or
expression.” WkBSTER’S THIRD NEW IN1’1. DICTIONARY (1981). “Indicative” would be a useful synonym here

8



see

‘Mjnute Orer Form (0697)

United States District Court, Northern District of Dlinois

a
Name of Assigned Judge Joan U1. Lefkow Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 CR 481 DATE 5/27/2004
CASE USA vs. Brock Okennard
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) stute briefly the nature
MOTION: of the motion being presented}

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion duc

(3) f Answer brief to motion due____. Reply to answer briefduc__

(4) (aa) Ruling/Hearing on_____—ssetfor__ at.

(5) o Status hearing[held/continued to] [set for/re-set for}on ___—_eset for at

(6) Q Pretrial conference|held/continued to} {set for/re-set for}on_____s set for___ ss at__

(7) Qa Trial[sct for/re-set for]on___ ss at_

(8) a {Bench/Jury trial] (Hearing] held/continued to at_

(9) a This casc is dismissed {with/without] prejudice und without costs{by/agrcement/pursuant to}

OFRCP4(m) ClLocal Rule 4}.1 OFRCP41(a)(1) 1) FRCP41(a)(2).

| {Other ducket entry] | Enter Memorandum Opinion and Order. For the reasons stated in the
Memorandum Opinion and Order, the Court finds that defendant is competent to stand trial. This order
is without prejudice to another motion by defense counsel under the conditions set out. Defendant is
directed to cooperate with counsel in a sincere effort to assist him in preparing a defense.

(il) @ [For further detail see order attached to the original minute order, ]

No notices required, advised in open court.

‘No notices required,

oa | Notices mailed by judge's statf.

Notified counsel hy telephone.

Docketing to muil notices.

Mail AO 450 form,

Copy to judge/mugisirate judge.

courtroom
MD deputy’s
initials

Date/time received i
central Clerk's Office, mail cpl bis



grant the motion, or shall order such a hearing on its own motion, if there is
reasonable cause to believe that the defendant may presently be 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.

(b) Psychiatric or psychological examination and report.—Prior to the
date of the hearing, the court may order that a psychiatric or psychological
examination of the defendant be conducted, and (hat a psychiatric or
psychological report be filed with the court, pursuant to the provisions of section
4247 (b) and (c).

(d) Determination and disposition —If, after 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 Altorney General. The Attorney General shall hospitalize the
defendant for treatment in a suitable facility... .

The burden falls on the United States to show by a preponderance of the evidence that

O’Kennard is competent to stand trial. See United States v. Teague, 956 F.2d 1427, 1432 & n,10

(7th Cir. 1992); United States ex rel. S.E.C. v. Billingsley, 766 F.2d 1015, 1023-24 & n.10 (7th

Cir. 1985); United States ex rel. Bilvew v. Franzen, 686 F.2d 1238, 1244 (7th Cir. 1982).

Under section 4241(d), if the court finds (a) that the defendant suffers from a mental

disease or defect (b) that renders him. . . unable to understand the nature and consequences of

the procecdings against him or (c) to assist properly in his defense, the defendant must be

committed to the custody of the Attorney General for treatment in a suitable facility. A

defendant is competent to stand trial if he “has sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding . . . [and] a rational as well as factual

understanding of the proceedings against him.” Cooper v. Oklahoma, 517 U.S. 348, 354 (1996),

11



matter in some detail, Defendant told him that the voices were “men’s voices,” that they are
there all the time and he cannot make them go away, they tell him to do “take stuff” and “just
take it.” “The voices holler at him, even though he is not doing anything wrong.’*

Dr. Gamze disagreed with those who believe defendant is malingering because of the
information that he had deteriorated over a period of one year, that he acted consistently among,
all the examiners, even when with his lawyer (suggesting that the motive to malinger would not
be present in an attorney-client context), and Dr. Koziol’s tests indicating a thought disorder
tather than malingering, Dr. Gamze conceded, however, that had he known that the night before
the robbery defendant was watching a video of a jewel theft and told his brother it would be casy
to rob a TCF bank, it might have made a difference in his diagnosis. He acknowledged that
defendant after the robbery gave a complete statement to the fBI about why he robbed the bank
even though he at first claimed to be hearing voices while being questioned. Although he
initially indicated that he did not give substantial credit 10 the confession because it was not in
defendant’s own handwriting, Dr. Gamze stated that he had considered the statement in reaching
his diagnosis.

DISCUSSION

Title 18, United States Code, section 4241, provides in pertinent part:

(a) Motion to determine competency of defendant.—At any time after the
commencement of a prosecution for an offense and prior to the sentencing of the

defendant, the defendant or the attorney for the Government may file a motion for
hearing to determine the mental competency of the defendant. The court shall

5Dr. Carlson’s report does not indicate that he probed the matter of voices in any detail, Dr. Henry reports
that defendant was “evasive” of his inquiry into details about the voices. Dr. Henry also quotes from Dr. Pindelski’s
initial examination at the MCC, “During the interview, he also reported experiencing auditory hallucinations, mostly
around sleep onset and termination. He was unable to discuss specifics of the experience without prompting, again
suggesting a malingered presentation.” Henry Report at 6, 5.

10


conversation and defendant made no more reference to hallucinations but rather gave and signed
a confession.

Both Dr. Carlson and Dr, Henry reached the conclusion, based on all the evidence, that
defendant is malingering. According to the DSM-IVTM, malingering “is the intentional
production of false or grossly cxaggerated physical or psychological symptoms, motivated by
extemal incentives such as . . , evading criminal prosecution .... Malingering should be
strongly suspected if any combination of the following is noted:

1 Mediocolegal context of presentation (e.g., the person is referred by an
attorney to the clinician for examination)

2. Marked discrepancy between the persons’ claimed stress or disability and
the objective findings
3. Lack of cooperation during the diagnostic evaluation and in complying

with the prescribed treatment regimen

4. The presence of Antisocial Personality Disorder.
DSM-IVTM at 683.

Dr. Carlson based his opinion on the observed behavior of defendant at FMC over a six-
week period, including observations (presumably of custodians) that defendant functioned
independently on the open unit and interacted normally with other inmates and staff at FMC, and
his contrasting lack of cooperation or inconsistent behavior with Dr. Carlson.

Dr. Koziol disagreed with Dr. Carlson’s conclusions that defendant was mercly
malingering because “an attempt was really not made to systematically look at his thinking
functions in any of those evaluations.” Dr Koziol interpreted the test information (Dr. Carlson’s

tests as well as his own) as demonstrating that defendant has a “very disturbed focus of attention,


Summary of the Evidence

The defendant's background, according to the various reports, is that he is 23 years of age
(his mother gave his date of birth as May 30, 1980), He was reared principally by his maternal
grandparents, he attended schools in Chicago, was graduated from high school and attended
some courses in a community college during the year prior to the arrest. His grandmother’s
recent death in May, 2002 caused him great grief and her death was followed shortly by the death
ofa paternal grandparent. At the time of the arrest, he was living in his mother’s home. He has
minimal employment history and a record of arrests for minor offenses. All examiners reported
having difficulty obtaining basic information from the defendant, though there are few disparities
among them in this respect.

The four examiners also made similar observations during their interviews with the
defendant. He presented as uncommunicative with blunted affect. His behavior was calm, as
opposed to agitated. He was unresponsive or dramatically slow in responding to questions, often
saying, “Huh?” as if he did not understand, and then responding after one or more repetitions,
often with non-responsive, vague, inappropriate or improbable answers. For example, he told
Dr. Carlson that he did not know his recently deceased grandmother’s name, didn’t know his
height, and gave an unrealistically low body weight of 100 pounds. His reported date of birth was
inconsistent with his mother’s testimony. To some extent, he did not seem to be oriented as to

date, month and year, although he knew he was “in jail.”



sure, a conclusion of malingering rests on which evidence is credited, such as whether the court
believes defendant was being uncooperative as opposed to unable to cooperate during the
examinations. In light of all the evidence, however, the court is persuaded that the evidence of
malingering has somewhat more force than the evidence of mental disease or defect.

If the court is correct that malingering is influencing defendant’s behavior, then it follows
that his mental functioning, with respect to the first prong of the competency analysis, is
adequate to understand the nature and the consequences of the proceedings against him. As
indicated in the facts, defendant in a phone conversation appeared to know what courts and
lawyers were, which make his bizarre responses to the examiners incredible. Further, the
evidence that defendant conducts himself normally while in confinement also makes his bizarre
conduct seem incredible. For these reasons, the court concludes thal the first prong of the
competency test is satisfied.

B. Ability to Properly Assist in Defense

The court confronts much more difficulty on the other prong of the competency test,
whether defendant has sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding. As the court points out in Tinunins, 301 F.3d at 979, “[This]
requirement, though less frequently focused on in the case law, adds independent content to the
judicial inquiry beyond the first. . . factor.”

Cooperation with counsel has been described as “the capacity to provide whatever

assistance counsel requires in order to explore and present an adequate defense.” R. Bonnie,

*Indeed, this court finds no decision of the Seventh Circuit that treats this prong distinctly from the
understanding prong,

14



CONCLUSION AND ORDER
The court finds that defendant is competent to stand trial. This order is without prejudice
to another motion presented by defense counsel under the conditions set out in the preceding
paragraph. Defendant is directed to cooperate with counsel in a sincere effort to assist him in

preparing a defense.

WOAN HUMPHREYLEFKOW
United States District Judge
Dated: May 27, 2004

16



of

June 18, 2003. The indictment was returned on June 14, 2003 and defendant was arraigned on
June 18. On July 8, counsel for defendant filed a motion for a mental health examination, stating
that he was giving notice under Federal Rule of Criminal Procedure 12.2 that he intended to raise
the defense of insanity at the time of the offense and to offer expert testimony concerning the
defendant’s mental disease ov defect. The motion was granted on July 15 and an order was
entered pursuant to 18 U.S.C. 4141 and 4242 that the Federal Medical Center of the Bureau of
Prisons (FMC) conduct a psychiatric and psychological examination of defendant to determine
not only his sanity at the time alleged offense but also his competency to stand trial. O’Kennard
was observed over an approximately three-month period beginning July 2, 2002, at FMC,
Rochester, Minnesota, and evaluated by Daniel Carlson, Psy. D., a psychologist. On

December 16, 2002, Mr. Mondry filed a motion for mental health reexamination, asserting that
after several meetings with defendant, counse! “strongly believes Mr. O’Kennard is currently
suffering from a mental disease or defect, which prevents him from fully appreciating the nature
and consequences of the proceedings against him, but more importantly [renders hirn] unable to
assist properly in his defense.” This motion was granted and defendant was examined during
December, 2003, by Johnathan Gamze, M.D., a psychiatrist, and Leonard Koziol, Psy. D., a
psychologist. On motion of the Government, the defendant was re-examined during March,
2003, by Dr. Stafford Henry, Ph.D., a clinical and forensic psychologist. Thereafter, a
competency hearing was held at which all of the examiners testified as well as defendant’s

mother, Barbara J. O’Kennard, and FBI Special Agent Jerry Getz.


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA

No. 02 CR 481
Judge Joan H. Letkow

vs.
BROCK E, O’KENNARD,

Defendant.

ee ee ee ee renee

Ly,
May - Mey (77)

82
4
MEMORANDUM OPINION AND ORDER M4

Defendant, Brock O’Kennard (“O’ Kennard” or “defendant”), has been charged in a two-
count indictment with armed robbery of a TCF Bank in Chicago on May 11, 2002, in violation of
18 U.S.C. § 2113(a) and (d), and with use ofa firearm during the commission of a felony, in
violation of 18 U.S.C. §924(c)(1)(A)(ii) and (iii). Before the court is the issue of O’Kennard’s
competency to stand trial.

‘The United States Attorney maintains that O’Kennard is competent, Defendant, by his
counsel, resting on independent psychiatric and psychological cxaminations, submits that
O’Kennard is not competent. Following a hearing pursuant to 18 U.S.C. § 4241 (a) the court,
having considered all of the evidence and for the reasons set forth below, concludes that
O’ Kennard is competent to stand trial.

BACKGROUND
On May 15, 2003, defendant appeared before the court for an initial appearance before

United States Magistrate Judge Nan R. Nolan. Counsel, Steven M. Mondry, was appointed on


citing Dusky v. United States, 362 U.S. 402 (1960). Merely having a mental illness is not cnough
to declare a defendant incompetent. £.¢., United States v. Leggett, 162 F.3d 237, 244 (3rd Cir.
1998) (“[A]Jn axiom [is] generally observed by courts: i.2., [i]t does not follow that because a
person is mentally ill [that person] is not competent to stand trial.”) (internal quotations marks
omitted). Rather, the illness must impair the defendant’s ability either to understand the nature
and consequences of the proceeding or to assist properly in his defense. See United States v.
Timmins, 301 F.3d 974, 979 (9th Cir. 2002) (Shadur, J, sitting by designation) (pointing out that
the test consists of two prongs: understanding the proceedings and cooperation with counsel).
Factors the court may consider include, inter alia, testimony from psychiatrists, the defendant’s
behavior—both before the court and elsewhere— intelligence, lapses of memory, and
unresponsiveness. United States v. Blohm, 579 F. Supp 495, 500 (S.D.N.Y. 1993). This court
has also considered defense counsel’s observations, But see Timmins, 301 F.3d at 981 (“[A]
lawyer is not a trained mental health professional capable of accurately assessing the effects of
paranoid delusions on the clicnt’s mental processes.”’)
A. Ability to Understand the Nature and Consequences of the Proceeding

‘The issue here is whether the defendant is malingering or whether this behavior is
genuine and symptomatic of schizophrenia. ‘lhe preponderance of the evidence is that defendant
is malingering, The reasons for this are several. In order to credit Dr. Gamzc’s diagnosis, this
court must credit the evidence that defendant hears voices. The evidence of this is equivocal,
Family members, who have had the greatest opportunity to observe, had little to offer. Edward
O’ Kennard was unaware that the defendant had mental problems. Defendant’s mother could

describe nothing specific about voices, nothing recent, and actually said nothing about voices

12



“The Competence of Criminal Defendants: Beyond Dusky and Drope,” 47 U. MIAMI L. REV. 539,
552 (1993); see also, Dusky, 362 U.S. at 402. Components of such capacity necessarily include
the fundamentals addressed above, that of understanding the nature and possible consequences of
the proceeding. In relation to cooperation with counsel, (hese capacities are put to the test,
particularly when defendant is faced with choices whether to waive constitutional rights, such as
to waive the right to counsel, to plead guilty or go to trial, to waive a jury, to cross-examine
witnesses, and to testify in his own defense. See Godinez v. Moran, 509 U.S. 389, 399 (1993)
(identifying choices which criminal defendants face). Defendant’s counsel has firmly stated that
he has been unable to gain defendant’s cooperation, and he believes it is attributable to a mental
illness. Counsel’s interactions with the defendant have been interrupted by this long competency
proceeding, and it is possible that the communication going forward will be improved. In any
event, the court makes a provisional finding that defendant is capable of cooperating with
counsel. Of course it may ultimately be shown that counsel is unable to obtain from defendant
the assistance he requires in order to explorc and present an adequate defense, Jf that becomes

the case, then alternatives must be explored.

15