Opinion
Case No. 01-149M
January 8, 2002
ORDER
This Order, and the Court's December 27th Order, were entered pursuant to 28 U.S.C. § 636 (b)(1)(A), (3) and (4), and pursuant to the general reference in N.D. LCR 5.1(B).
Now before the Court is the United States of America's motion to reconsider the Court's December 27, 2001 Order. For the reasons discussed below, the motion is GRANTED IN PART and DENIED IN PART.
I. INPATIENT EXAMINATION
The United States asks the Court to reconsider its decision that psychiatric or psychological evaluation of the Defendant be conducted on an "outpatient," rather than an "inpatient," basis. In particular, the United States seeks an order committing Defendant to the custody of the Attorney General for placement in the United States Medical Center for Federal Prisoners ("USMCFP") in Springfield, Illinois. As support for its request, the United States attaches a letter from William H. Grant, a psychiatrist with the USMCFP.
Dr. Grant opines that an inpatient examination of Defendant is preferable "in this case for reasons of efficiency and because of the superior database it will provide." For the reasons stated in his letter, Dr. Grant believes that an inpatient examination of Defendant would enable him to "provide a forensic opinion with a greater degree of confidence than would evaluation at the Tulsa County Jail."
The Court is, however, still not convinced that the proceedings in this case need to come to a 30 day halt while Defendant is sent off to Springfield, Illinois for a mental competency evaluation. While the Court does not doubt that Dr. Grant could provide a more comprehensive report given a 30 day inpatient evaluation, there is no indication that Dr. Grant cannot give an adequate report based on an outpatient review of Defendant at the Tulsa County Jail, just as Curtis Todd Grundy did. In fact Dr. Grant admits that
[m]uch can be learned in the course of a one-on-one jail interview. I have done many over the years, expect to do more in the future, and am capable of conducting the Jason Weed interview in Tulsa if called upon to do so.
Dr. Grant's December 21, 2001 Letter.
As previously discussed the legislative history to 18 U.S.C. § 4247 (b) expresses a preference for outpatient review absent some specific need for commitment to a psychiatric facility. S. Rep. No. 225, 98th Cong., 2d Sess. 234, reprinted at 1984 U.S.C.C.A.N. 3182, 3417. It is probably always the case that a 30 day commitment for purpose of preparing a mental competency report under § 4247 would produce a more comprehensive report. The United States has not demonstrated, however, that there is some specific reason why an adequate evaluation of Defendant cannot occur here in Tulsa. For example, the United States has not demonstrated that there is some diagnostic test or procedure that can only be performed on an inpatient basis and could not be performed at the Tulsa County Jail.
The Court agrees with the United States that In re Newchurch, 807 F.2d 404 (5th Cir. 1986), relied on by the Court in its December 27th Order, is distinguishable on the basis asserted by the United States — that the Defendant in Newchurch was on bond and that her proposed commitment implicated liberty concerns which may not be present in this case given that Mr. Weed is detained pending trial. Nevertheless, the Court cited Newchurch in its December 27th Order not because of its factual similarity to this case, but to support its reading of § 4247(b) as giving the Court discretion over the issue of commitment. For the reasons discussed above, the Court now exercises that discretion and find no basis for requiring an inpatient commitment of Defendant in this case. The United States' motion to reconsider the Court's requirement of an outpatient examination of Defendant is DENIED.
II. DESIGNATION OF AN ADDITIONAL EXAMINER
In its December 27th Order, the Court required both parties to submit 2 names of examiners for possible designation pursuant to 18 U.S.C. § 4247 (b). The United States has moved to reconsider, asking permission to submit the name of only one examiner — Dr. Grant. The motion to reconsider is GRANTED. The United States' obligation under the December 27th Order is discharged.
III. RULES OF EVIDENCE
In its December 27th Order, the Court determined that the Federal Rules of Evidence would be applied in this proceeding to determine Defendant's mental competency to stand trial under 18 U.S.C. § 4241.
At the December 21st hearing, the government argued that the rules of evidence did not apply, focusing the Court's attention on the "preliminary examinations" exception in Rule 1101(d)(3). That is, therefore, the only section with which the Court concerned itself in its December 27th Order, finding that Rule 1101(d)(3)'s reference to "preliminary examinations" is a reference to the "preliminary examination" contemplated by Fed.R.Crim.P. 5.1. In was in this context that the Court cited and relied upon United States v. Veon, 538 F. Supp. 237, 249 n. 18 (E.D. Ca. 1982). The United States does not take issue with this finding, but now raises a variant of its original argument.
The United States moves to reconsider on the ground that Fed.R.Evid. 1101(d), which delineates proceedings to which the rules of evidence are not applicable, is not an exhaustive list. The Court recognizes that Rule 1101(b) states that the Federal Rules of Evidence "apply generally . . . to criminal cases and proceedings." Use of the word "generally" implies that there are exceptions which are not specifically contemplated by the Rule itself. 31 Wright Gold, Federal Practice and Procedure: Evidence § 8073, p. 600 (2000). While the Court agrees that Rule 1101(d)(3) does not provide an exhaustive list of exceptions, the United States has not persuaded the Court to add mental competency to the list of proceedings to which the rules of evidence are inapplicable.
Section 4257(d) of Title 18 of the United States Code provides that at any hearing regarding a person's mental condition, that person "shall be afforded an opportunity to testify, to present evidence, to subpoena witnesses on his behalf, and to confront and cross-examine witnesses who appear at the hearing." Thus, a hearing regarding a person's mental condition is to have all of the hallmarks of an adversarial proceeding. It would seem strange, therefore, that the rules of evidence would not apply to such a hearing. Absent some historical precedent or compelling policy reasons as to why the rules of evidence should not be applied to a particular criminal proceeding, the Court will heed Rule 1101(b) and apply them generally to criminal proceedings.
The cases which the United States cites in support of its position are distinguishable. In United States v. Zannino, No. 83-235-N, 1985 WL 2305 (D. Mass. Jun. 5 1985), the Court had before it a motion by a criminal defendant to continue his trial because of his alleged physical inability, caused by health problems, to proceed to trial. At the hearing on the defendant's motion to continue, the defendant argued that the hearing should be governed by the Federal Rules of Evidence. In support of his position, the defendant argued by analogy that because the rules of evidence would apply to mental competency hearings under § 4247(d), they should also be applied to determine his physical ability to proceed to trial.
The court in Zannino made the following comment about the defendant's § 4247(d) analogy:
[T]he Court is not persuaded by the defendant's contention that because reference is made in 18 U.S.C. § 4247 (d) to presentation of evidence and cross examination of witnesses, the Federal Rules of Evidence necessarily apply. Notwithstanding defendant's arguments, the statute is not trenchantly clear as to the applicability of the rules. However, in that mental competency is not an issue in the case sub judice, this Court declines to. decide the issue.Id. at *3 n. 3. The court in Zannino also spent several paragraphs in the text of its opinion finding, for the reasons stated therein, that physical incompetency cannot be analogized to mental incompetency; a physically incompetent person could in some instances be required to stand trial, while a mentally incompetent person could never be required to stand trial. Id. at * *2-3. Thus, the Court in Zannino refused to make any findings regarding the very issue presented by this case.
In United States v. Palesky, 855 F.2d 34 (1st Cir. 1988), the defendant had been found not guilty of bank robbery by reason of her insanity. The sentencing judge did not immediately commit the defendant to the Attorney General as required by 18 U.S.C. § 4243. Rather, he released her to her husband's care. The First Circuit reversed and on remand ordered the sentencing judge to commit the defendant as required by § 4243. The court noted, however, that in 40 days the defendant would be entitled to a hearing under § 4243(d) to demonstrate that her release "would not create a substantial risk of bodily injury to another person or serious damage of property to another." 18 U.S.C. § 4243 (d). The First Circuit held that because the determination to be made at the § 4243(d) hearing was analogous to a bail determination under 18 U.S.C. § 3146, and because Rule 1101(d)(3) specifically makes the rules of evidence inapplicable to bail or detention proceedings, the rules of evidence should not apply to hearings under § 4243(d). Palesky, 855 F.2d at 35-36.
All of the exceptions listed in Rule 1101(d) have some historical precedent or some strong policy reason supporting the inapplicability of the rules of evidence to the proceedings listed there. See generally 31 Wright Gold, Federal Practice and Procedure: Evidence § 8077 (2000). The United Sates has not, however, attempted to analogize the mental competency determination to be made under 18 U.S.C. § 4241 to any of the types of proceedings listed in Rule 1101(d), as the court did in Palesky. The United States has also not offered any historical precedent or policy reasons of its own to demonstrate why the Federal Rules of Evidence should not apply to determinations under § 4241, especially in light of § 4247(d). The Court will not, therefore, modify its prior ruling on this issue. The Court will apply the Federal Rules of Evidence to any proceedings under § 4241 in this case. The United States' motion to reconsider is DENIED to the extent it seeks a ruling otherwise.
CONCLUSION
The United States of America's motion to reconsider the Court's December 27, 2001 Order, filed January 4, 2002, is hereby GRANTED IN PART and DENIED IN PART. The Court's December 27th Order stands as the order of the Court except to the extent it requires the United States to designate at least two examiners. The United States may designate one examiner as it has done.
IT IS SO ORDERED.