United States District Court, N.D. Illinois
January 14, 2004.
UNITED STATES OF AMERICA
DANIEL E. SALLEY, Defendant
The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
MEMORANDUM OPINION AND ORDER
On January 31, 2003, this court entered an order finding in this case
that the defendant, Daniel Salley, was "presently suffering from a mental
disease or defect (Delusional Disorder) rendering him mentally
incompetent to the extent that he is unable to assist properly in his
defense." Memorandum Opinion and Order at 17 [Docket # 66],
246 F. Supp.2d 970 ("January 2003 Decision"). The order committed the
defendant to the custody of the Attorney General for hospitalization for
treatment, to be returned to court after 90 days, and directed the
Attorney General to provide a report on whether the progress of treatment
has restored the defendant to competency. On July 7, 2003, A. F. Beeler,
Warden, Federal Bureau of Prisons, Burner, North Carolina, transmitted a
progress report prepared by Dr. Angela Walden Weaver, Ph.D, Staff
Psychologist ("Report"). A hearing on restoration of competency began on
September 26, 2003 and concluded on November 14, 2003, at which Dr.
Ronald Roesch, Ph.D., called by the United States Attorney, testified.
The court, having reviewed the evidence considered in the January 2003
Decision, and having considered the Report, the testimony of Dr. Roesch,
and the transcript of Dr. Roesch's interview/evaluation of defendant of
September 25, 2003 (Salley Exhibit B), enters the following decision
finding the defendant competent to stand trial.
SUMMARY OF THE EVIDENCE
The Report reflects that defendant was admitted to the Federal Medical
Center, Burner, North Carolina ("TMC"), on February 21, 2003. Defendant
was not taking psychotropic medication upon admission and he was not
treated with any such medication during his confinement at FMC. Indeed,
although this court ordered that defendant be treated, the Report
states, "The primary clinician considered whether Mr. Salley would
benefit from psychotropic intervention, and tentatively scheduled an
involuntary medication hearing[, but] decided that Mr. Salley would not
benefit from treatment with psychotropic medication, and cancelled the
involuntary medication hearing." Report 13.*fn1 It further appears that
although Dr. Weaver believes that "the treatment of choice" for
defendant's disorder is "long-term (i.e., many years) of insight
oriented, individual, therapy," no effort was made to engage defendant in
therapy during his confinement at FMC, as Dr. Weaver believed the
prognosis for such treatment is poor because defendant would have
difficulty perceiving himself as a patient or subordinate and would not
likely engage in the therapeutic relationship. Id. at 17.
The Report, then, amounts to a forensic evaluation based on clinical
observations made over approximately four months. Dr. Weaver's
observations are generally consistent with those of previous examiners.
See January 2002 Decision. Dr. Weaver diagnosed defendant with Adult
Anti-Social Behavior (Diagnostic and Statistical Manual of Mental
Disorders-Text Revised (4th ed., 2000)("DSM-IV-TR") V71.01) on Axis I and
Narcissistic Personality Disorder (DSM-IV-TR 301.81) on Axis II.*fn2
Dr. Weaver concluded that defendant is competent to stand trial.
The diagnostic criteria for Narcisissistic Personality Disorder are the
A pervasive pattern of grandiosity (in fantasy or
behavior), need for admiration, and lack of empathy,
beginning by early adulthood and present in a variety
of contexts, as indicated by five (or more) of the
(1) has a grandiose sense of self-importance (e.g.,
exaggerates achievements and talents, expects to
be recognized as superior without commensurate
(2) is preoccupied with fantasies of unlimited
success, power, brilliance, beauty, or ideal
(3) believes that he or she is "special" and unique
and can only be understood by, or should associate
with, other special or high-status people (or
(4) requires excessive admiration
(5) has a sense of entitlement, i.e., unreasonable
expectations of especially favorable treatment or
automatic compliance with his or her expectations
(6) is interpersonally exploitative, i.e., takes
advantage of others to achieve his or her own
(7) lacks empathy: is unwilling to recognize or
identify with the feelings and needs of others
(8) is often envious of others or believes that
others are envious of him or her
(9) shows arrogant, haughty behaviors or attitudes
DSM-IV-TR at 717.
Dr. Weaver identified in defendant criteria (1); (5) and possibly (6).
Report 14. She ruled out Delusional Disorder on the basis that during his
confinement at FMC defendant "did not exhibit the associated features of
Delusional Disorder, such as ideas of reference, in which random events
are of special significance. He did not present as generally irritable,
resentful, angry or dysphoric, . . . [and] did not file numerous frivolous
complaints . . . or lawsuits in an attempt to remedy some perceived
slight." Id. at 15-16. Further, he did not talk "ad nauseum" about who
was conspiring against him or trying to harm him, and he maintained good
behavioral control. Dr. Weaver concluded that "[w]hile Mr. Salley may
have suffered from Delusional Disorder in the past, during the past four
months he did not, and therefore, the diagnosis is documented only for
historical purposes." Id. at 16.*fn3 She pointed out that Dr. Christine
Scronce, on whose report the court relied in the January 2003 Decision,
stated that Delusional Disorder may wax and wane; thus, she inferred that
defendant's history of Delusional Disorder had apparently waned during
his confinement at FMC. Id. at 16.
Regarding defendant's lack of ability to cooperate with counsel, Dr.
Weaver concluded that this was related to his grandiosity and sense of
entitlement. Id. at 14. She stated,
Mr. Salley's personality type is going to cause him to
continue to have problems with his attorney. He will
likely have problems with any attorney assigned to his
case unless they are in a secondary, stand-by role.
Unless he is assigned an attorney who is willing to do
exactly as he requests, he will assume the person does
not have his best interests in mind. His behavior is
characteristic of people with severe personality
disorders. Mr. Salley is so self-absorbed that he is
not able to see any viewpoint except his own. He does
not want to work with an attorney who will not let him
conduct his defense in the manner that he sees fit.
Mr. Salley does not believe that anyone could truly
have his best interest in mind, so he thinks he has to
do everything himself. He is not confident that
attorneys paid by the government will present his
evidence because it will put the government in a "bad
light.". . . .
Id. at 17-18.
Relying on this report as well as his second interview with defendant,
Dr. Roesch testified that, although a diagnosis of Narcissistic
Personality Disorder is "arguable," he is convinced, at least, that
defendant does not now have and "has probably never had a delusional
disorder." Transcript of Proceedings, September 26, 2003, 22, 27. This is
significant, he said, because Narcissistic Personality Disorder is not a
major mental illness (Axis I in DSM language) but rather a less serious
impairment that would not impair his ability to make decisions in the
course of a trial or participate in a defense.*fn4
With respect to the determinative issue of whether defendant is able to
cooperate with counsel, Dr. Roesch stated, "I think he has the ability to
cooperate with his attorney. He may
make a choice not to cooperate but he has the ability to make that
choice. In other words, there is nothing about his thought process that
would render him incompetent to make that choice." Id. at 20. Although
Dr. Roesch, in response to the court's question, responded affirmatively
when asked, "[Would you] agree that he has inability to put sufficient
trust in counsel for counsel to represent him[?]," Dr. Roesch believed
this inability was based on his experiences with the several appointed
counsel in this case. Id. at 49.
On examination by defendant's appointed counsel, Paul Wagner, Dr.
Roesch conceded that because defendant has refused to submit to
diagnostic personality tests, these useful tools were not available to
inform the diagnosis. Transcript of Proceedings, October 30, 2003, 13.
Dr. Roesch conceded that defendant is "not only wary of the motivation of
attorneys, but of virtually everybody that he comes in contact with. . . ."
Id. at 22. He acknowledged that defendant believes that in light of
Sell v. United States, 123 S.Ct. 1274 (2003),*fn5 the conspiratorial
plan has changed. Whereas before he believed that Dr. Roesch was being
called in to find him incompetent, he now believes that the government
wants a finding of competency "and let's railroad him." Transcript of
Proceedings, October 31, 2003, 23. He conceded that although defendant
seemed originally to believe that another appointed attorney, Kent
Anderson, who filed an appeal from the January 2003 Decision, was a
lawyer he could work with, once Mr. Anderson filed a motion to stay the
appeal until this restoration of competency proceeding was complete,
defendant decided that Mr. Anderson was also part of the conspiracy
"concocted by the Court."
Id. at 25. He acknowledged that defendant believes that he has the
complete right to control his defense, including those matters ultimately
committed to counsel such as which witnesses to examine. Again, Dr.
Roesch reiterated that this is a free choice which he makes in light of
his experiences with his attorneys in this case rather than a delusion or
other mental disorder. At the same time, he acknowledged the fact that
defendant is suspicious of everybody involved in his case, including four
appointed lawyers, the prosecutors, clerks of the court, the district
judge, and the appellate judge who granted the stay motion, id. at
37-40, and there is no question that he has a conspiratorial view, "that
people in the courtroom involved in this case are working against him."
Asked if defendant is competent to assist properly in his defense if a
lawyer in fact is assigned to represent him, Dr. Roesch responded, "I
believe that . . . it will be a difficult interaction if he is not
allowed to represent himself," which in Dr. Roesch's judgment is why he
should be allowed to represent himself. Id. at 41-43.
The court makes the following additional observations, based
principally on its review of the transcript of Dr. Roesch's interview:
Defendant appears to be convinced that a conspiracy exists. He believes
that "the Government" knows that defendant has proof that Officer Airhart
was actually shot by a fellow FBI agent and accuses defendant in order to
protect that agent; he believes this is "why the competency issue came up
in the first place." Roesch Interview Transcript at 13, 11. 1-14; 44,
11. 8-30. He believes the prosecutors chose Kent Carlson to represent
him. Id. at 23, 11. 22-31.
Defendant is attempting to file a law suit alleging a conspiracy
between the court and the government, to railroad him to prison after he
is found competent. Id. at 22, 29. He also suspects, in addition
to the lawyers and judges, that the surgery on his knee was unneeded and
must have been done for malevolent reasons, id. at 62-63; and that
Congressman Bobby Rush and Dr. Weaver maybe also involved in the
conspiracy. Id. at 13, 15, 27, 32, 49.
The reality is there is no conspiracy surrounding defendant, neither a
conspiracy to find him incompetent in order to prevent the discovery that
an FBI agent shot Officer Airhart, nor a conspiracy to find him competent
in order to "railroad" him into a long prison sentence, nor any other
conspiracy. Defendant believes a false reality that a conspiracy exists.
Each of defendant's relationships with counsel has dissolved because
the attorney took an action in representation that displeased defendant.
Mr. Meyer declined to seek review of the magistrate judge's detention
order on the basis that it would be futile*fn6; Mr. Carlson filed a
motion to sever the charges of bank robbery and misdemeanant in
possession of weapon from the charges related to the events of August 28,
2001, id. at 51-52; see Docket #41; Mr. Anderson moved to stay briefing
on the appeal until the restoration of competency proceeding was
completed. Roesch Interview Transcript at 37. As stated above, defendant
suspects that Mr. Wagner, the most recently appointed counsel, is also
involved in the conspiracy. See also Transcript of Proceedings, November
14, 2003, 12.*fn7 Although he continues to profess that he could work
with some privately retained attorneys, defendant would still insist that
any such attorney would have to do as he instructed. Roesch Interview
Transcript at 45-46.
The reality is that an attorney has a right to make decisions while
representing a client, with the exceptions that only the defendant may
waive constitutional rights and counsel must make decisions in
consultation with the client. See January 2003 Decision, 246 F. Supp.2d
at 977 & n.8. Defendant believes a false reality that he has a right
to be completely in charge of his case and an attorney is useful only so
long as he complies with defendant's wishes.
At the same time, the interview reflects defendant has clear memory of
events, strong verbal skills, and apparent intelligence. In addition, his
courtroom behavior is controlled in the sense that he is not disruptive
and maintains a calm demeanor and is responsive to directives from the
The principles of law by which the evidence is measured are set out in
the January 2003 Decision and are not repeated here other than to
reiterate that the issue is whether defendant has a mental disease or
defect that renders him unable to assist properly in his defense. Ability
to assist properly in one's defense is "`the capacity to provide whatever
assistance counsel requires in order to explore and present an adequate
defense.'" January 2003 Decision 11, quoting R. Bonnie, "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. 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). The court may also consider
prior medical opinions on
defendant's competency. United States v. Rivera, 90 CR 1001-1, 1995 WL
20452, at *3 (N.D. Ill. Jan. 12, 1995).
Although the court continues to have considerable doubt that defendant
has the present ability to assist properly in his defense, the evidence
before the court is to the contrary. The court is not a mental health
professional and, therefore, must rely on the expert opinions in the
record as to whether defendant has a mental disease or defect that
interferes with his ability to cooperate with counsel. Both Dr. Weaver
and Dr. Roesch are firm in their beliefs that defendant presently has the
volitional ability to cooperate with counsel but chooses not to do so.
There is also evidence that defendant, in fact, had discussions with Mr.
Anderson and Mr. Wagner and did cooperate with them until each did
something that displeased him. Defendant's refusal to continue in
cooperation could be viewed as volitional if one accepts that his conduct
stems from misunderstanding the role of an attorney rather than from
delusional, narcissistic or paranoid thought processes rooted in a mental
disease or defect. Certainly, it is not unusual for a defendant to assert
that counsel is not properly representing him or to deflect blame from
himself onto the lawyer or "the system" for the predicament in which he
finds himself. Although these theories are usually dispelled as an
attorney-client relationship grows and the defendant faces the reality
that as a person charged with serious crime he is in no position to
advocate for himself, defendant Salley has such confidence in his own
ability that he sees no reason to rely on counsel.*fn8
A somewhat similar situation was addressed in Rivera, 1995 WL 20452.
One psychiatrist, who diagnosed major depression, reported that the
defendant was able to properly assist his attorney. He "stressed that the
court must distinguish between the defendant's ability to consult his
attorney and to participate in the planning of his defense and the
defendant's desire and willingness to do so." Id. at *3. Another
psychologist testified that although the defendant had a factual
understanding of the charges against him, he was "unable to assess
various legal strategies and assist counsel in preparing a defense
because the defendant always reverts back to the notion that there really
is no need for a defense, believing instead that he can simply explain
what happened to the court and the court will release him." Id. at *5. He
also had difficulty concentrating and understanding. The psychologist
believed that the mental illness caused defendant's inability to
communicate with his attorneys. Id. Acknowledging that it was a close
case, the court found defendant competent, crediting the psychiatrist's
testimony offered at the competency hearing and the court's observations
of the defendant's testimony, behavior and demeanor at the hearing. The
court found that defendant's lack of communication with counsel was his
own choice, based on the psychiatric evidence as well as the court's
observation of defendant that he made rational arguments at one point as
to why he needed to be returned to FMC Rochester and why he wanted new
counsel. Id. at *6. The court inferred that because defendant was unhappy
with the options available to him regarding the outcome of the
proceedings, he saw no benefit in cooperating with his attorneys. Thus the
court concluded that his refusal was not inability to communicate. The
Therefore, although it may be difficult to communicate
with the defendant, the court finds that the
defendant's depression does not render him unable to
consult with his attorneys. It is undisputed that the
defendant has a factual understanding
of the legal system; knows the roles and functions of
courtroom personnel; understands the charges against
him; and appreciates the seriousness of a potential
conviction on those charges. The court also finds that
the defendant has the sufficient present ability to
consult with his attorneys with a reasonable degree of
rational understanding. Therefore, the court concludes
that Mr. Rivera is presently legally competent to
Id. *6. It is undisputed here also that defendant Salley has a factual
understanding of the legal system; knows the roles and functions of
courtroom personnel; understands the charges against him; and appreciates
the seriousness of a potential conviction on those charges. In addition,
as noted above, delusional disorders may wax and wane over time, and
there is evidence that Delusional Disorder on which this court relied in
finding defendant incompetent in the January 2003 Decision has waned.
Dr. Weaver was able to evaluate defendant over a long period of time
(four months). She believes that his Delusional Disorder has waned.
Thus, her observations are entitled to the greatest weight among the
experts. Based on all of the evidence received, the preponderance of the
evidence is that the defendant understands the nature and consequences of
the proceedings and has sufficient present ability to consult with his
attorneys with a reasonable degree of rational understanding. Therefore,
the court concludes that defendant is competent to stand trial.
This case will be called for a pretrial conference on February 4, 2004
at 9:30 a.m., for the purpose of admonishing the defendant as to his
right to counsel and the dangers of waiving that right as well as to set
a trial date. The parties are to submit, by January 28, 2004, a brief
memorandum of law concerning whether, in light of the facts set out
herein, defendant should be allowed to represent himself. Counsel for
defendant and the government are further requested to
consider (and may include in their memoranda) the advisability of
appointing a mental health advisor to the court as recommended by Dr.
Roesch in his Report of October 12, 2002.