Opinion
Case No. 2:03-CR-00701 PGC
May 25, 2004
ORDER ALLOWING NON-CUSTODIAL MENTAL EXAMINATION
Before the court is the government's motion for a non-custodial mental evaluation. The motion must be reviewed in light of the Tenth Circuit's ruling in United States v. Visinaiz, which reversed this court's decision to order a custodial examination of the defendant. The court GRANTS the motion for a mental examination of Mr. Visinaiz with the following limitations and procedures.
2004 WL 902328 (April 28, 2004).
Findings of Fact
The court makes the following findings of fact for purposes of this motion. Mr. Visinaiz is charged with the second degree murder of Ms. Clara Jenkins. Mr. Visinaiz has given notice he intends to rely on a theory of self-defense. He has also given notice that he intends to introduce evidence through an expert witness at trial as to Mr. Visinaiz's mental condition at the time of the murder. Specifically, the expert will testify about Mr. Visinaiz's state of mind at the time of the decedent's death given his medical diagnoses for agoraphobia, panic disorder, and alcohol abuse. Mr. Visinaiz apparently intends to prove that his subjective beliefs were reasonable at the time of the crime, given his mental status at the time of the incident.
In December 2003, Mr. Visinaiz participated, while in custody at the Davis County Jail, in a mental examination with Dr. John Watts Podboy, a clinical and forensic psychologist. Dr. Podboy administered seven different psychological tests. While Mr. Visinaiz was in custody in the Davis County Jail, Dr. Podboy personally interviewed him for five hours. Mr. Visinaiz was being treated with antidepressant and anti-anxiety medication at the time of Dr. Podboy's interview.
Dr. Podboy provided a thirteen-page report to the defense. Among his many findings, he concluded that Mr. Visinaiz would be prone to violence only in the most "unusual circumstances." He also concluded that Mr. Visinaiz's decision to strike Ms. Jenkins in the head was "entirely reasonable given Mr. Visinaiz's heightened sensitivity toward fear when attacked." Mr. Visinaiz provided the government a copy of the report.
Discussion
This court previously ordered Mr. Visinaiz committed for purposes of a government mental examination. Mr. Visinaiz filed an interlocutory appeal. The Tenth Circuit reversed and held that sufficient findings had not been made to support a custodial examination.
In the wake of this decision, the government has now requested a non-custodial examination of Mr. Visinaiz. The Tenth Circuit quite specifically held this court has authority to order such an examination:
Consequently, while it is clear the district court has authority to order a non-custodial examination under Rule 12.2(c) for mental conditions raised under Rule 12.2(b), it is not as clear with regard to custodial examination.
Id. at 5 (emphasis added).
The Circuit also provided further direction:
Unlike evidence of a defendant's competency of sanity, expert evidence relating to a mental disease, defect or other condition, is extremely varied, requiring a case-by-case analysis to determine how extensive an examination is warranted in order for the government to fairly prepare for this evidence at trial. In instances where a district court finds the claimed mental condition to be complex, a greater examination might be warranted, whereas for minor conditions, a more limited examination would suffice.
Id. at 4 (internal citations omitted).
Despite this clear direction from the Tenth Circuit, Mr. Visinaiz now argues this court should not allow the non-custodial mental examination for three reasons: (1) cross-examination of him and Dr. Podboy along with review of his medical records provides the United States with sufficient evidence to rebut his theory of self-defense; (2) that the United States will use its requested four visits to force him to make contradictory and inconsistent statements; and (3) Mr. Visinaiz's medication may be arbitrarily adjusted by his jailers.
Mr. Visinaiz's first argument implies the evidence to support his theory of self-defense will be so weak that the United States will be able to refute it on its face with cross-examination. Given the speculative nature of the defense, that is possible. But there is no way to know at this time how the cross-examination will play out. Moreover, the mental issues in this case are complex. Dr. Podboy contends that Mr. Visinaiz suffered from at least three different diagnoses — alcoholism, agoraphobia, and panic disorder. These diagnoses have many different symptoms and can cause many different types of behaviors. In light of all these facts and the entire record in this case, the court finds that the diagnosis' application to the circumstances of this case is not immediately clear. As a result, the United States needs the aid of its own expert and a mental examination of Mr. Visinaiz to adequately rebut Dr. Podboy's findings. Of course, should Mr. Visinaiz chose not to submit Dr. Podboy's report at trial, any results of a mental examination done by the United States would not be admissible.
Mr. Visiniaiz second concern is that the United States' request for four different visits with Mr. Visinaiz will coerce Mr. Visinaiz into making contradictory statements. This concern can easily be resolved. The court will allow the United States' expert to examine Mr. Visinaiz on a one-day visit. Dr. Podboy made his conclusions based on a single visit, and the United States seemingly should have the same limitation. Should the single visit not prove sufficient, the United States can apply to the court for any necessary follow-up.
Mr. Visinaiz's final concern is that his jailers will adjust his medication, which will affect the results of a mental examination. To address this concern, the court directs that the United States' expert witness confirm with Mr. Visinaiz' jailers what medication has been provided to Mr. Visinaiz. Defense counsel can, of course file a motion of this court if it appears that Mr. Visnaiz is being improperly denied prescribed medication.
In sum, the court allows the United States to conduct a non-custodial mental examination of Mr. Visinaiz under Fed.R.Crim.Pro. 12.2(c). The court finds that Mr. Visinaiz has raised at least three different diagnoses that may have affected his behavior on the night in question and that fairness requires the court allow this examination by the United States. However, the examination is to be limited to subjects that might rebut Dr. Podboy's report.
Mr. Visinaiz next argues that the Supreme Court's decision in Estelle v. Smith allows his defense counsel to be present during the mental examination. The court disagrees. Smith held that an uncontested psychiatric examination regarding future dangerousness in a capital case violated the defendant's Sixth Amendment right. The court in Smith was aware the mental exam of the defendant had occurred without counsel present, but suggested that the Sixth Amendment only applied to a defendant's right to consult counsel before the examination. In Estelle, the court specifically disavowed any implication of a constitutional right to have counsel present during the opinion. As the Supreme Court's later case of Buchanan v. Kentucky makes clear, the defendant's Sixth Amendment right is protected so long as counsel is informed about "the scope and nature of the proceeding" and is aware "of the possible uses to which [the defendant's] statements in the proceeding could be put."
451 U.S. 454 (1981).
Id.
Id. at 470 n.l4.
483 U.S. 402, 424-2-5 (1987); see also Godfrey v. Kemp, 836 F.2d 1557, 1564-65 (11th Cir. 1988).
In United States v. Byers, the D.C. Circuit also concluded that no right to counsel exists during the psychiatric interview. The court explained:
But at the psychiatric interview itself, [the defendant] was not confronted by the procedural system; he had no decisions in the nature of legal strategy or tactics to make — not even, as we have seen, the decision whether to refuse on Fifth Amendment grounds, to answer the psychiatrist's questions.
740 F.2d 1104, 1118 (D.C. Cir. 1984).
The Circuit held that the right to cross-examine and rebut any government expert witness sufficiently protected the defendant's Sixth Amendment rights.
Id. at 1104.
Mr. Visinaiz will have the right to consult with counsel before the examination. Moreover, Mr. Visinaiz has chosen to place his mental condition at issue, with much advice and the assistance of his defense counsel. But the court finds that permitting defense counsel's physical presence might significantly harm the ability of the United States' expert to conduct an appropriate interview. As one circuit has noted:
Ordinarily the only effective rebuttal of psychiatric opinion testimony is contradictory opinion testimony; and for that purpose . . . the basic tool of psychiatric study remains the personal interview, which requires rapport between the interviewer and the subject.
United States v. McSherry, 226 F.3d 153, 156 (2nd Cir. 2000); cited with approval in Visinaiz, 2004 WL 902328 p. 4; see also United States v. Byers, 740 F.2d 1104, 1120 (D.C. Cir. 1984).
Defense counsel's presence at a mental examination would thwart any attempt by the United States' expert to create a rapport with Mr. Visinaiz. Indeed, the defense counsel here seeks the right to terminate the examination should it become "oppressive."
Defendant's Brief on Non-Custodial Mental Examination, p. 9.
The court also orders Mr. Visinaiz to cooperate with the United States' mental examination or risk exclusion of his expert on the point.
See, e.g., United States v. Garcia, 739 F.2d 440, 442 (9th Cir. 1984) (noting exclusion as a possible remedy).
The court notes that Dr. Podboy's report remains the subject of a possible motion in limine. Allowing the government's examination now protects against all eventualities.
The United States' expert report must be filed by July 9, 2004. The defense must file any motions in limine by July 21, 2004, and any reply is due by July 28, 2004. All other dates listed in the court's May 6, 2004, order remain in place,
SO ORDERED.