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United States v. Verdino

May 14, 2010


The opinion of the court was delivered by: Judge Joan B. Gottschall


Defendant Larry Verdino, who is charged with receipt of child pornography in violation of 18 U.S.C. § 2252A(5)(A), has moved for a finding that he is incompetent to stand trial. Having reviewed expert reports and having heard testimony both from those experts and from Mr. Verdino, the court is not persuaded that he is competent to stand trial. Mr. Verdino has a basic factual understanding of the proceedings but lacks the requisite rational understanding. Specifically, the evidence indicates that he lacks the ability to consider the alternatives necessary to assist his lawyer in making the decisions that are indispensable to meaningful participation in a criminal trial.


As the parties agree, the test for competency comes from Dusky v. United States, 362 U.S. 402 (1960). Dusky teaches that a defendant is competent if he "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "has a rational as well as factual understanding of the proceedings against him." 362 U.S. at 402. In a later case, the Court stated that competency depends on whether the defendant has "the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense . . . ." Drope v. Missouri, 420 U.S. 162, 171 (1975).


Larry Verdino is a 52-year-old man who has been diagnosed as a low-functioning, special-needs adult with limited cognitive abilities, a number of physical problems, and mild cerebral palsy. Except for a period after his arrest in which he was housed at the Metropolitan Correctional Center ("MCC"), where he was segregated for his own protection, Mr. Verdino has lived with his family since birth.

A. Expert Reports

Three experts provided forensic reports to the court concerning Mr. Verdino's competence, each finding Mr. Verdino to be significantly limited. Department of Justice Clinical Psychologist Ron Nieberding tested Mr. Verdino's intelligence on the Wechsler Adult Intelligence Scale-IV ("WAIS-IV"). (See Forensic Report: Addressing the Issue of Trial Competence, Mar. 7, 2009 ("Nieberding Rep.") 6.) On the WAIS-IV, Dr. Nieberding measured Mr. Verdino's IQ in a number of areas, including verbal comprehension, perceptual reasoning, working memory, and processing speed, and concluded that Mr. Verdino's full-scale IQ was 65, placing him in the first percentile of persons measured. Defense psychologist William Herman Hillman III measured Mr. Verdino's full-scale IQ as 71 and, as detailed further within, found that Mr. Verdino had specific limitations that would prove problematic at trial. (See Evaluation of Larry Verdino, Dec. 11, 2008 ("Hillman Rep. I") 7.) Psychiatrist Stephen H. Dinwiddie relied on the testing done by the two psychologists, but separately met with and evaluated Mr. Verdino, finding specific deficits in Mr. Verdino's knowledge of legal concepts.*fn1

While the experts did not significantly disagree on the nature of Mr. Verdino's condition, they came to different conclusions concerning his competency to stand trial. Dr. Nieberding concluded, "[T]here [is] insufficient evidence to suggest Mr. Verdino is not competent to proceed to trial at the present time," Nieberding Rep. 11, assuming Mr. Verdino's needs are properly accommodated. Dr. Nieberding suggested that those needs might be accommodated by: encouraging Mr. Verdino to ask questions; making sure that verbal information provided to him is not "overly complex or abstract in nature," id.; and asking him to summarize information presented to him in order to ensure that his understanding is accurate. Defense expert Dr. Hillman also examined Mr. Verdino and found that "Mr. Verdino's performance on tests of memory and problem solving revealed significant impairment [in] his capacity to concentrate, resist distraction, and apply strategies to solve simple problems [which] abilities are affected by stress." (Hillman Rep. I, at 7.) Dr. Hillman concluded, "Based on his limitations, which have been verified from previous records, psychological testing, interviews with him, his mother, and family . . . Mr. Verdino is not competent to stand trial." (Hillman Rep. II, at 11.) Last, Dr. Dinwiddie concluded that Mr. Verdino is competent to stand trial. (See generally Letter from Stephen H. Dinwiddie, Dec. 10, 2009.) He stated, "Insight was felt to be modest. Judgment, based on history, was felt to be moderately impaired. Intellect was estimated as being substantially below average." (Id. 7.) Nevertheless, Dr. Dinwiddie found that Mr. Verdino was competent to stand trial due to his "generally accurate understanding of the nature of the legal process," his "motiv[ation] to assist in his defense," and proper courtroom behavior. (Id.10.)

B. Hearing

All three experts testified at a hearing held on April 2, 2010. Like their reports, the experts' testimony revealed no substantial disagreement about Mr. Verdino's limitations or his unusually compliant, cooperative personality. Their dispute, rather, is whether, given Mr. Verdino's limitations, he has a rational and factual understanding of the proceedings sufficient to assist his lawyer. In other words, as Dr. Dinwiddie indicated, the experts disputed what cognitive capacity is necessary to stand trial, but not, to any significant degree, what capacity Mr. Verdino actually possesses.

Dr. Nieberding testified that in his opinion Mr. Verdino "demonstrated to me that he understood on a factual and rational level many of the issues related to the criminal proceedings and that he demonstrated clearly his ability to assist and engage in interaction, productive interaction with other people, and with his attorney, with some assistance." (Tr. 6.)*fn2 He continued:

Based on his responses, they were relatively concrete and simplistic, but accurate, fundamentally. He understands, I believe, what the roles and responsibilities of the individuals involved in court proceedings are. I think he has the capacity to assist and engage in productive interaction with other people. He certainly was that way with me. I did not find ...

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