United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION
TO APPOINT EXPERT TO ASSIST DEFENDANT'S
COUNSEL IN EVALUATING THE PSYCHOLOGICAL FORENSIC REPORT OF
MIKEL MATTO, M.D.
LINDA
V. PARKER, U.S. DISTRICT JUDGE.
On
October 28, 2019, Defendant filed a motion to appoint an
expert to assist defense counsel in evaluating a report that
contains the conclusions of Dr. Mikel Matto, a psychiatrist
appointed by the Court to determine Defendant's
competency to stand trial. (ECF No. 87.) Defendant argues
that counsel “[can] not effectively cross examine Dr.
Matto without the assistance of his own expert who would
review the report and records” and (i) “advise .
. . of any deficiencies in the report”; (ii)
“advise . . . [of] potential cross examination
questions”; (iii) “counsel . . . whether Dr.
Matto failed to administer any tests”; and (iv)
“counsel . . . whether the tests he did administer were
adequate.” (Id. at Pg. ID 664-65.) Defendant
contends that Ake v. Oklahoma, 470 U.S. 68 (1985)
mandates such an expert in cases like the one at
bar.[1]
(Id. at Pg. ID 666.)
However,
the difference between an insanity defense and competency to
stand trial points to a deep flaw in Defendant's
argument-and neither Ake nor McWilliams v.
Dunn, 137 S.Ct. 1790 (2017) provide a solution. As
Defendant concedes, (Def.'s Mot., ECF No. 87 at Pg. ID
666), McWilliams states in relevant part:
Ake thus clearly establishes that when
its threshold criteria are met, a State must
provide a mental health professional capable of performing a
certain role: “conduct[ing] an appropriate examination
and assist[ing] in evaluation, preparation, and presentation
of the defense.”
137 S.Ct. 1794 (emphasis added) (citation omitted). What are
Ake's “threshold criteria”?
Ake states in relevant part:
[The] issue in this case is whether the Constitution requires
that an indigent defendant have
access to the psychiatric examination and assistance
necessary to prepare an effective defense based
on his mental condition, when his
sanity at the time of the offense is seriously in
question.
Ake, 470 U.S. at 70 (emphasis added). Put another
way, general allegations of need will not suffice to trigger
Ake: only after “a defendant demonstrates to
the trial judge that his sanity at the time of
the offense is to be a significant factor at
trial, [must] the State [], at a
minimum, assure the defendant access to a competent
psychiatrist who will conduct an appropriate examination and
assist in evaluation, preparation, and presentation of
the defense.” Id. at
83 (emphasis added).
In
McWilliams, where the petitioner was charged with
rape and murder, the Supreme Court stated that “no one
denies that the conditions that trigger application of
Ake are present” because (i) petitioner
“is and was an ‘indigent defendant'”;
(ii) “[h]is ‘mental condition' was
‘relevant to . . . the punishment he might
suffer'” since “mitigating circumstances
[would] be considered in a capital case in the sentencing
stage”; and (iii) his “‘mental
condition,' i.e., his ‘sanity at the time
of the offense,' was ‘seriously in
question.'” 137 S.Ct. at 1794, 1798 (quoting
Ake, 470 U.S. at 70, 80.)
Here,
Defendant fails to meet the threshold criteria required by
Ake. Though Defendant is indigent, she is not
proffering an insanity defense and her sanity is not relevant
to the punishment she might suffer. Nor is Defendant's
sanity at the time of the alleged offenses “seriously
in question.” In fact, Defendant's sanity at the
time of the alleged crimes is not in question at all. Rather,
Defendant's competency to stand trial is at
issue. Thus, the requested expert would not serve the purpose
envisioned by Ake. 470 U.S. at 70, 80.
Defendant
points to no case in which a court authorized an expert to
help defense counsel review a competency report submitted by
a court-appointed evaluator when defendant's competency
to stand trial is alone at issue. The lack of case law is
likely because, as other courts have articulated, a
competency evaluation “is conducted to serve the
court”-not a defendant-“in a completely
nonpartisan manner.” United States v.
Caldwell, 543 F.2d 1333, 1350 (D.C. Cir. 1974) (emphasis
added) (citation omitted); see also Estelle v.
Smith, 451 U.S. 454, 465 (1981) (describing as
“neutral” a court-ordered examination used for
the sole purpose of determining competency); United
States v. Abernathy, No. 08-20103, 2009 WL 982794, at *3
(E.D. Mich. Apr. 13, 2009) (quoting FED. PROC. § 22:549,
Hearing and Determination as to Competency) (“The
determination of whether a defendant is mentally competent to
stand trial is a question left to the sound discretion of the
district court, with the advice of psychiatrists [or other
mental health professionals]. . . . [T]he law imposes the
duty and responsibility for making the ultimate decision of
such a legal question on the court . . . .”). Indeed, a
court-appointed psychiatrist merely furnishes an opinion
which the Court, as the final arbiter of competency, may
accept or reject.
Moreover,
under 18 U.S.C. § 3006A(e)(1), a district court has the
authority to authorize payment for investigative, expert, or
other services for indigent defendants only after “a
demonstration that (1) such services are necessary
to mount a plausible defense, and (2) without such
authorization, the defendant's case would be
prejudiced.” United States v. Pacheco, 466
Fed.Appx. 517, 521 (6th Cir. 2012) (emphasis added) (quoting
United States v. Gilmore, 282 F.3d 398, 406 (6th
Cir. 2002)). Here, Defendant fails to show the
“necessity” of an expert to assist defense
counsel in evaluating a competency report ahead of a
competency hearing.
During
the October 25 hearing on this motion, defense counsel stated
that “[he] needed [his] own expert to consult with and
meet with and go over the report and maybe[, ] at the end of
the day[, ] [his] expert says [Dr. Matto is] spot on,
everything here seems to be correct or he might say
there's some glaring holes here or there's some
inconsistencies in what Dr. Matto says. You know, there's
that potential.” Tr. at *4. But the Sixth Circuit has
made clear that a defendant who points to § 3006A(e)(1)
to launch nothing more than a “fishing
expedition” has not demonstrated a necessity for expert
assistance. United States v. Howard, 621 F.3d 433,
447 (6th Cir. 2010) (citing United States v. Clark,
385 F.3d 609, 618 (6th Cir. 2004) (citation omitted)
(affirming the district court's decision to deny a
request for a psychological expert where the need for such
expert was based entirely on speculation)); see also
Pacheco, 466 Fed.Appx. at 521 (quoting Gilmore,
282 F.3d at 406) (“A district court need not grant an
indigent's motion under § 3006A on the off chance
that the requested services might turn up something.”).
Ultimately,
Defendant fails to make the showing required for the expert
assistance contemplated by § 3006A(e)(1) and
Ake. In addition, the Court is satisfied that it can
determine Defendant's competency based on the record
available following a competency hearing and without the
assistance of additional expert opinion.
Accordingly,
IT IS ORDERED that Defendant's motion to
appoint an expert to assist defense counsel in evaluating the
psychological ...