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May 27, 2004.


The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge


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 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." 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 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 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 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 ...

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