The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
MEMORANDUM OPINION AND ORDER
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 of a 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 examinations, 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.
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 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 or 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, counsel "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 him] 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. 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 of a 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
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." Defendant appeared to be experiencing auditory hallucinations while in
conference with Dr. Carlson.*fn1 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.*fn2 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 felt he
needed medication like that of his brother Christopher. Christopher, age
18, "was diagnosed with hearing voices as of late last year." 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 after the arrest and he was in custody.*fn3 On cross examination, Mrs.
O'Kennard was asked whether Brock had ever reported to her that he was
hearing voices. Mrs. O'Kennard responded that a little more than a year
before the robber)', "[h]e did tell me, . . . `Ma, I believe I need to
go to the doctor, and I may need medication like Christopher,'" Tr.
50-51, Mrs. O'Kennard could recall no specifics about the voices,
although she later said that he told her two times about voices. Id. at
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 random 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
"I make her mad." He told Dr. Gamze he did not understand why he was in
jail, he could not elaborate on the role of a defense attorney, the
"prostitute" was there "to send you to jail," 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 proceedings,
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 references to voices or "Lucifer." Afterwards, Agent Getz
interviewed defendant at the Homewood police station. Initially,
defendant signed an advice of rights, stating that he understood it.
During the interview, however, defendant professed to hear voices from
"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 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-IV(tm),
malingering "is the intentional production of false or grossly
exaggerated physical or psychological symptoms, motivated by external
incentives such as . . . evading criminal prosecution. . . . Malingering
should be strongly suspected if any combination of the following is
1. Mediocolegal context of presentation (e.g., the
person is referred by an attorney to the clinician
2. Marked discrepancy between the persons' claimed
stress or disability and the objective findings
3. Lack of cooperation during ...