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United States v. Merriweather

United States District Court, N.D. Alabama, Southern Division

October 24, 2014



R. DAVID PROCTOR, District Judge.

Before the court is Defendant William Merriweather's second motion to declare him presently incompetent to proceed to trial. Following a second competency hearing, held pursuant to 18 U.S.C. § 4241(a), the court, having considered all of the evidence and for the reasons set forth below, finds that Defendant is presently competent to stand trial.[1]

I. Procedural History

1. Defendant William Merriweather, Jr. is charged with three capital-eligible offenses: one count of killing during the commission of bank robbery and two counts of use of a firearm during a crime of violence.[2] (Docs. 1; 405 at 1-2). The Government alleges that Merriweather robbed the Bessemer, Alabama branch of Wachovia Bank and during the commission of that offense, shot four employees, killing two of them and wounding the other two. (Doc. 1 at 1-4). While attempting to flee, Merriweather attempted to take hostage another bank employee but was shot by police officers, immediately apprehended, and given emergency medical care. (Doc. 4, sealed at 2). He has remained in custody since that time.

2. The court has previously ruled that Defendant was competent after conducting a competency hearing in 2011. ( See Docs. 160, Findings of Fact and Conclusions of Law, and 161, Order (on competency) denying Merriweather's initial competency motion). Thereafter, two developments counseled toward the need to conduct a supplemental competency hearing to determine "if there is reasonable cause to believe that [Merriweather] may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." 18 U.S.C. § 4241. First, the court learned that the records submitted by the Bureau of Prisons' Federal Medical Center at Butner, North Carolina (FMC Butner), where Merriweather was evaluated pursuant to the initial competency hearing, were incomplete because of the facility's transition from paper to electronic records. Thus, some of the records requested by the Defense from FMC Butner, including a number of nurses' records, were inadvertently omitted from the documents provided to Defense counsel before the 2011 hearing. Those records have now been provided and contain nursing charts called ESH/ADs (Extended Secure Housing/Administrative Services Nurses Flow Sheet)[3] and BEMRs (Butner Electronic Medical Records) ( see Doc. 554, Second Comp. Hrg. Vol. V at 1130).

3. The second development involved one of the experts who evaluated Defendant at the initial competency hearing. On December 22, 2013, Dr. Christine Pietz contacted the court after Merriweather was housed at the United States Medical Center for Federal Prisoners in Springfield, Missouri ("MCFP Springfield") for a criminal responsibility evaluation. (Doc. 549, Second Comp. Hrg. Vol. I at 96). Dr. Pietz told the court that she needed to evaluate Merriweather further because he was presenting in such a way that raised concerns about his competence at that time.

4. After these developments, the Defense moved the court for a second competency hearing, arguing that new evidence and the additional records from FMC Butner cast doubts about Defendant's competency. (Doc. 203).

5. The Supreme Court has not articulated a specific standard for when a second competency hearing is required in a federal case, but the Court has instructed that "[e]ven when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence." Drope v. Missouri, 420 U.S. 162, 180 (1975). While there are "no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed, " the court will, when warranted, take commensurate measures to ensure that Defendant has a fair trial. Drope, 420 U.S. at 180 (1975).[4] In light of the belated disclosure of the nurses' notes, Dr. Pietz's concerns about Merriweather's mental state, and the fact that this is a capital case, the court found that a supplemental hearing was warranted.

6. In 2007, and in connection with the events leading to these federal charges, Merriweather was also indicted by the State of Alabama on charges of Capital Murder, Attempted Murder, and Kidnapping in the First Degree. (Doc. 4 at 3). During preliminary hearings for the state charges, the Defense notified the court that it intended to retain the services of a mental health professional. (Doc 4 at 3; Doc 22 at 1). Anticipating that the Defense would raise mental health defenses, the United States interviewed Merriweather's family and friends. (Doc. 4 at 3). Based on this investigation, the United States filed a motion on July 13, 2007, requesting that the court order Merriweather to submit to a mental evaluation to determine his mental competency to stand trial and his mental state at the time of the offenses. (Doc. 4, sealed at 3-4; see also Docs. 22 at 2; 152 at 2).

7. By that time, the Defense had already retained Dr. Kimberly Svec Ackerson, a local forensic psychologist, to evaluate Merriweather. (Doc. 22 at 2). Magistrate Judge John E. Ott was aware of this arrangement and deferred ruling on the Government's motion until after Dr. Ackerson's evaluation report was received. ( Id. ). Dr. Ackerson's evaluation report, which was completed following her last interview with Merriweather on September 24, 2007, was inconclusive. The report noted that Merriweather exhibited strong indicators of mental illness, but commented that Merriweather's self-admitted history of drug use "serves to complicate the clinical picture." (Def. Ex. 34 at 2). Moreover, Dr. Ackerson indicated that she was at an impasse with Merriweather, who refused to participate. ( Id. ). Dr. Ackerson strongly recommended that further evaluation be conducted at a facility that would be able to provide 24-hour observation with properly-trained mental health professionals available. (Def. Ex. 34 at 2).

8. In light of Dr. Ackerson's recommendations, Judge Ott, in his October 12, 2007 order, referred Merriweather to the Bureau of Prisons for in-patient evaluation and treatment "to discern competency issues and to afford Defendant appropriate mental health treatment." (Doc. 22 at 3).

9. From November 2, 2007 through January 14, 2008, Merriweather was housed at the United States Medical Center for Federal Prisoners in Springfield, Missouri ("MCFP Springfield") where he was evaluated by Dr. Christina Pietz. (Doc. 24, sealed). At the conclusion of Merriweather's stay at MCFP Springfield, Dr. Pietz issued two formal reports: (1) a report regarding Merriweather's competency to proceed to trial (Doc. 24, sealed at 1-17), and (2) a report regarding Merriweather's mental state at the time of the crime. ( Id. at 18-27). In Dr. Pietz's report regarding Merriweather's competency to stand trial, she acknowledged testimony from Merriweather's family describing psychotic behavior, but concluded that such symptoms were best explained by Merriweather's illicit drug use. ( Id. at 11-12). The report concluded that Merriweather "does not currently suffer from a mental illness" ( id. at 13) and that Merriweather "is currently competent to stand trial and make other decisions regarding his case." ( Id. at 15).

10. After his mental evaluations were conducted at MCFP Springfield, Merriweather was returned to the Jefferson County Jail. (Doc. 7 at 4).

11. On June 3, 2008, the United States filed its formal Notice of Intent to Seek the Death Penalty. (Doc. 29). Pursuant to 18 U.S.C. § 3005, Judge Ott appointed Richard S. Jaffe and J. Derek Drennan to represent Merriweather. (Docs. 33 and 36).

12. On November 10, 2008, almost a year after Merriweather's evaluation at MCFP Springfield was completed, Jaffe first expressed his concern to the Government that, based on information discovered by the Defense mitigation team, Merriweather was "decompensating"[5] and would not be competent to assist in his defense. (Doc. 70 at 5). Jaffe repeated his concerns on May 14, 2009, when he again informed the Government that Merriweather was decompensating and having "conversations in his head." (Doc. 70 at 5).

13. On December 9, 2008, Judge Ott granted the Defense's request for a mitigation investigator and a victim liaison. (Doc. 47).

14. On January 26, 2009, Dr. Richard G. Dudley, a psychiatrist retained by the Defense, interviewed Merriweather (Def. Ex. 9 at 2) and later produced an affidavit declaring his belief that Merriweather "is unable to understand the charges against him and is unable to assist his lawyers or [Dudley] with [Merriweather's] case." (Def. Ex. 66 at 1). On April 30, 2009, Dr. James Merikangas, another psychiatrist retained by the Defense, interviewed Merriweather for approximately one and a half hours (Doc. 148, Tr. Vol. VII, 1128)[6] and concluded in a two-sentence letter addressed to the Defense that Merriweather was incompetent to stand trial. (Doc. 66). The Defense did not notify the Government of either of those evaluations. (Doc. 70 at 6-7).

15. Dr. Robert Hunter, a psychiatrist at the Jefferson County Jail, testified that he was called upon to examine Merriweather on two occasions - in April and July 2009. On April 16, 2009, Dr. Hunter was called to examine Merriweather after he fasted enough to slip through the food door, and was able to slide under the gate. (Doc. 146, Tr. Vol. V, 886, Def. Ex. 36 at 1). After escaping his cell, Merriweather assaulted another prisoner. ( Id. ). Dr. Hunter testified that Merriweather was calm and cooperative during the interview and did not show any outward signs of psychosis. (Def. Ex. 36 at 1). During his second examination on July 31, 2009, however, Dr. Hunter testified that Merriweather's behavior was markedly different. (Doc. 146, Tr. Vol. V, Def. Ex. 36 at 1). Merriweather was "paranoid and preoccupied with the idea that he was housed around homosexuals, '" and his speech and thought processes "were rambling and at times disjointed." ( Id. ). Dr. Hunter described Merriweather as irritable and noted that he became increasingly hostile as the interview progressed, which forced Dr. Hunter to terminate the interview. ( Id. ).

16. On August 5, 2009, the Defense moved to have Merriweather declared incompetent to stand trial and requested that he be remanded to the custody of the Attorney General to be placed in a federal mental health facility until competency was restored. (Doc. 65). In support of its motion, the Defense filed Dr. Merikangas's letter as a sealed ex parte pleading. (Doc. 70 at 6-7).

17. Judge Ott conducted a telephone conference with the parties on August 10, 2009, to ascertain their positions regarding the motion. (Doc. 70 at 7). Apprehensive about the impartiality of the previously undisclosed psychiatrists hired by the Defense, the United States requested that Merriweather undergo another mental evaluation by the Bureau of Prisons to obtain a more current and impartial determination as to whether Merriweather had actually decompensated since his evaluation at MCFP Springfield. (Doc. 70 at 7-8).

18. The Defense responded with a request that the court appoint a private independent psychiatrist(s) - rather than the Bureau of Prisons - to evaluate Merriweather's competency due to allegations that Dr. Pietz was biased in favor of the Government. (Doc. 72). The Defense also moved the court to exclude Dr. Pietz from participating in any future evaluations should the court nonetheless remand Merriweather to the Bureau of Prisons for reevaluation. (Doc. 72).

19. A hearing was convened on August 20, 2009, and the parties submitted post-hearing briefs. (Doc. 79 at 1-2). After considering the respective arguments and applicable law, on November 16, 2009, Judge Ott ordered that Merriweather undergo a new evaluation at FMC Butner. (Doc. 79). At the insistence of Defense counsel, Judge Ott further ordered that all interviews with Merriweather be videotaped, and that the final report include input by a neuropsychiatrist and/or neurologist. (Doc. 79 at 14).

20. From December 9, 2009, until April 18, 2011, Merriweather underwent an extended in-patient competency evaluation at FMC Butner. (Doc. 145, Comp. Hrg. Vol. IV at 583). During his 496-day stay at FMC Butner, Merriweather was kept under constant surveillance by medical professionals and staff who checked on him continuously. (Doc. 145, Comp. Hrg. Vol. IV at 584).

21. As a general matter, Merriweather's behavior during his time at FMC Butner appears to have been stable. According to Eugene Singleton, a federal corrections officer who saw Merriweather on a regular basis, Merriweather had the calm demeanor of an ordinary inmate doing his time. (Doc. 145, Comp. Hrg. Vol. VIII at 1265-66). Singleton never observed Merriweather reacting to hallucinations or paranoid delusions. ( Id. ). Merriweather was never aggressive or rude toward the corrections officers. (Doc. 145, Comp. Hrg. Vol. VIII at 1267). Merriweather generally spent his time sleeping, but he would chat from time to time with Singleton when he made his periodic rounds, sometimes requesting peanut butter, or something to read. (Doc. 145, Comp. Hrg. Vol. VIII at 1268-69).

22. In compliance with Judge Ott's second requirement, the Bureau of Prisons secured the services of two outside consultants, Alan Mirsky, Ph.D., a neuropsychologist, and Thomas Gualtieri, M.D., a neuropsychiatrist, to evaluate Merriweather in addition to the evaluation performed by FMC Butner staff. Their reports were reviewed and summarized by Dr. Edward Landis, the Deputy Chief Psychologist at FMC Butner, who passed them to the psychiatrist charged with supervising Merriweather's evaluation at FMC Butner, Staff Psychiatrist Bruce Berger, M.D. (Doc. 145, Comp. Hrg. Vol. VIII at 1288).

23. Dr. Berger reviewed the reports submitted by Drs. Mirsky, Gualtieri, and Pietz (Doc. 145, Comp. Hrg. Vol. IV at 585) as well as collateral reports by Drs. Dudley, Hunter, and Merikangas. (Doc. 145, Comp. Hrg. Vol. IV at 587). Dr. Berger, who was assisted by Dr. Jill Grant and a team of mental health professionals, conducted four videotaped formal interviews in addition to seeing Merriweather on a daily basis for 496 days. (Doc. 145, Comp. Hrg. Vol. IV at 586). On April 1, 2011, Dr. Berger issued a report in which he concluded that Merriweather "does currently possess the capacity to understand his current charges, understand courtroom functioning, and could, should he so choose, work affirmatively with his attorney in a rational way...[and that] he is competent to proceed." (Gov't Ex. 10 at 10).

24. After his evaluation at FMC Butner, Merriweather was returned to the Northern District of Alabama on April 20, 2011, and housed at the Shelby County Jail. (Doc. 148, Comp. Hrg. Vol. VII at 1015).

25. Upon his return to the Shelby County Jail, Merriweather initially refused to eat for nine days, but instead requested Ensure from medical staff. (Doc. 148, Comp. Hrg. Vol. VII at 1215). On the ninth day (April 29, 2011), Merriweather resumed eating with a renewed appetite; he would ask for extra trays and often consumed two or three trays per meal. ( Id. ). According to Officer Tim Laatsch, a corrections officer with the Shelby County Sheriff's Office, Merriweather ate regularly until he was moved from his segregation unit into an intermediate housing unit closer to the general prison inmate population. ( Id. at 1215-16). After being relocated, Merriweather again refused to eat. ( Id. at 1216). Officer Laatsch testified that Merriweather had apparently told another inmate that he (Merriweather) would not eat anything wet or shiny.[7] ( Id. ). Because he refused to eat, Merriweather lost a significant amount of weight and was consequently relocated to the medical unit of the jail where he could be more closely monitored. ( Id. ). Although Merriweather refused the food prepared by the facility, Officer Laatsch was able to procure pre-packaged store items, which Merriweather did consume. ( Id. at 1217).

26. After beginning his stay at the Shelby County Jail, Merriweather refused to bathe regularly, showering only every third or fourth day.[8] (Doc. 148, Comp. Hrg. Vol. VII at 1219).

27. During three days in June 2011, Dr. Merikangas and Dr. Dudley, the expert witnesses retained by the Defense to evaluate Merriweather some two years earlier, attempted to meet with Merriweather at the Shelby County Jail; Merriweather refused to engage with them. (Doc. 148, Comp. Hrg. Vol. VI at 946; Doc. 148, Comp. Hrg. Vol. VII at 1148).

28. On June 22, 2011, Dr. Merikangas visited Merriweather in the Shelby County Jail. (Tr. Vol. VII, 1146, 1149). When Dr. Merikangas attempted to interview Merriweather in a small attorney-client interview room, Merriweather ignored him. ( Id. at 1148). Dr. Merikangas noticed that Merriweather's weight had dropped dramatically. ( Id. ). Dr. Merikangas visited Merriweather again on June 23, 2011. ( Id. at 1149). Again, Merriweather was unresponsive. Dr. Merikangas noted that, when he asked about Merriweather, the correctional officers who accompanied him into the room indicated that Merriweather's behavior towards Dr. Merikangas was not different from his behavior towards the guards and they expressed sympathy for Merriweather. ( Id. at 1151).

29. On June 24, 2011, Dr. Dudley visited Merriweather in his cell at the Shelby County Jail. (Def. Ex. 9 at 2; Tr. Vol. VI, 945). The first thing Dr. Dudley noticed was the smell; he had been told by correctional officers that Merriweather had not been showering. (Tr. Vol. VI, 944-45). Dr. Dudley recounted that correctional officers had told him that Merriweather was not eating food prepared by the jail, but was eating sealed, packaged food. ( Id. at 945). When Dr. Dudley attempted to communicate with Merriweather, the only responses he was able to elicit were "the hand signals and the verbal refusal to speak." ( Id. at 946). On June 27, 2011, in the presence of Mr. Jack Earley, a lawyer retained by the Defense as a criminal law expert, Merriweather engaged in an extensive conversation with Defense counsel. (Tr. Vol. V, 823).

30. Also on June 27, 2011, Judge Ott entered an order authorizing personnel at the Shelby County Jail to take any reasonable steps necessary to ensure Merriweather's health was not further compromised, including forcibly feeding and bathing him. (Doc. 109).

31. Following the court order, Diana Shirley, Director of Nursing at the Shelby County Sheriff's Office, was scheduled to insert a feeding tube through Merriweather's nose. (Tr. Vol. VII, 1233). Director Shirley testified that Merriweather was unhappy about this prospect, and volunteered that he "might try to eat" if she would not insert the feeding tube. ( Id. at 1234). Shirley responded that the offer to maybe "try to eat" was not a real offer; either Merriweather would eat or the tube would be inserted. ( Id. at 1234). Merriweather promptly agreed to eat. ( Id. ). Shirley further testified that Merriweather resumed eating normally after that confrontation and never again complained about food that was wet or shiny nor expressed concerns that he was being poisoned. (Tr. Vol. VII, 1236). Shirley further noted that she never observed Merriweather having conversations in his head while at the Shelby County Jail. (Tr. Vol. III, 1245).

32. Kelly Hammonds, another nurse at the Shelby County Jail who interacted with Merriweather, testified that Merriweather showered daily following the court order authorizing prison staff to take necessary procedures to ensure that Merriweather bathed and ate.[9] (Tr. Vol. VII, 1249). Hammonds further testified that Merriweather spoke clearly and articulately, had no difficulty communicating with prison staff ( Id. at 1244), and never mentioned anything about demons, little green men, or a chip in his arm. ( Id. at 1245). Moreover, after the court order authorized prison staff to force feed him, Merriweather ate three meals a day and was fully cooperative in doing so. ( Id. at 1246).

33. Since being housed at the Shelby County Jail, Merriweather has neither been observed responding to internal stimuli, nor has he given any indication of suffering from delusions or hallucinations. ( Id. at 1218, 1236, 1245).

34. On July 25, 2011, this court convened a hearing, pursuant to 18 U.S.C. § 4241(a) and (c), to hear testimony and receive evidence on the issues surrounding Merriweather's competency to stand trial. The court heard from several Government witnesses, including four mental health experts (Drs. Pietz, Berger, Gualtieri, and Landis), two nurses (Diana Shirley and Kelly Hammonds), and two corrections officers (Laatsch and Eugene Singleton). The Defense presented seven witnesses, including three mental health experts (Drs. Merikangas, Mirsky, and Dudley), an attorney (Jack Earley), Merriweather's sister (Kim Patton), and Merriweather's former girlfriend (Latisha Simpson).[10] Merriweather did not testify. In addition, the court received a total of 106 exhibits into evidence. At the request of the court, the parties submitted briefs as well as proposed findings of facts and conclusions of law. ( See Docs. 152 and 153, Gov't Br. and Proposed Order; Docs. 156 and 154, Def.'s Br. and Proposed Order).

35. On February 5, 2013, the court found that Defendant was competent to stand trial and set this case for trial in January 2014 (Docs. 160 and 161). In advance of that trial setting, Defendant was transported to MCFP Springfield for a criminal responsibility evaluation.

36. Merriweather again asked for a second competency hearing and requested that the prior finding of competency be overturned. (Doc. 203). This court denied the latter request, but because FMC Butner had produced records that had not been previously disclosed, it took the request for a new hearing under advisement. (Doc. 256).

37. During this period, this court additionally considered Merriweather's request to exclude the use of any testimony, documents, records, and testing performed during his 2007-08 evaluation at Springfield, on the grounds that this information had been obtained prior to the filing of his Rule 12.2 notice, in violation of his Constitutional rights. (Doc. 186, Def.'s Mtn. to Suppress Pietz Evaluation). This court ordered that the Government could not use statements made to Dr. Pietz during the 2007-08 evaluation in its case-in-chief, but could use relevant evidence from that evaluation in rebuttal if Merriweather put his mental state at issue in his case-in-chief. ( See Doc. 198 (Order of Magistrate John Ott remanding Merriweather for evaluation at MCPF Springfield)).

38. When Defendant arrived at MCFP Springfield for his criminal responsibility evaluation, he was initially seen by Dr. Lea Preston-Baecht, Ph.D ("Dr. Preston") on November 1, 2013. (Doc. 549, Second Comp. Hrg. Vol. I at 21; GX 33 at 3). Dr. Preston was initially concerned about the manner which Defendant presented because Merriweather was exhibiting disorganized thinking, which can be an indication of psychosis. ( See GX-33 at 3). Unlike the first time that Dr. Preston interviewed Merriweather in 2011, Merriweather was more evasive and less forthcoming during the November 2013 interview. (Doc. 549, Second Comp. Hrg. Vol. I at 23).

39. A few days later, Dr. Pietz met with Defendant. (Doc. 549, Second Comp. Hrg. Vol. I at 24). Dr. Pietz shared Dr. Preston's initial concerns about Merriweather's presentation, as he exhibited the same disorganized and tangential speech in the interview with Dr. Pietz. (Doc. 549, Second Comp. Hrg. Vol. I at 23; GX-33 at 4). Those concerns continued when Dr. Pietz saw Defendant on November 8, 2013. (Doc. 549, Second Comp. Hrg. Vol. I at 24). Defendant again presented as organized and coherent at times, but disorganized at other times. ( Id. ). Dr. Pietz reported that Merriweather occasionally had word-finding difficulties, but then would also adopt evasive behaviors such as asking Dr. Pietz questions in response to her questions. When Dr. Pietz refused to answer personal questions, Merriweather would respond that he would not answer her questions either. (Doc. 549, Second Comp. Hrg. Vol. I at 25). This was a different presentation than his initial stay when at MCFP Springfield.

40. Dr. Pietz requested one of her colleagues, psychiatrist Dr. Carlos Tomelleri, to interview Defendant with her on November 13, 2013. (Doc. 549, Second Comp. Hrg. Vol. I at 27). Defendant again presented as very disorganized, tangential, and difficult to follow, leading Dr. Tomelleri to suspect psychosis. ( Id. at 28). Dr. Tomelleri was also concerned about Defendant's statements that he did not know what his charges were or that he was facing the death penalty. ( Id. at 28-29). When Dr. Tomelleri asked Merriweather open-ended questions, Merriweather responded with an unrelated (but nevertheless organized) story. ( Id. at 31).

41. Soon after these concerns arose, Dr. Pietz asked a staff member at FPMC Springfield, Correctional Counselor Felicia Williams, about Merriweather. Williams told Dr. Pietz that she believed Merriweather understood his charges and why he was at Springfield. (Doc. 549, Second Comp. Hrg. Vol. I at 27). Williams said that while asking Merriweather about his emergency notification information, Merriweather asked Williams if she was a St. Louis Rams fan. ( Id. at 32). When she told him she was actually a Kansas City Chiefs fan, he noted that at that time the Chiefs were undefeated (which was accurate). ( Id. ). Williams said that she found Defendant was coherent and rational and that he clearly answered her questions. ( Id. ).

42. Dr. Pietz tried to interview Merriweather again on November 18. He said he would not speak about his case without his legal counsel being present. (Doc. 549, Second Comp. Hrg. Vol. I at 36). Merriweather again told unrelated stories when Dr. Pietz asked him questions. ( Id. at 32). However, Dr. Pietz noted that while Merriweather at times seemed perplexed, he could follow the thread of a conversation. Dr. Pietz suspected that Merriweather was intentionally evading her questions to manipulate the conversation. ( Id. ). Merriweather also refused to take the Minnesota Multiphasic Personality Inventory (MMPI) on three occasions while at Springfield the second time. (Doc. 549, Second Comp. Hrg. Vol. I at 41-42). He had taken the MMPI during his first stay at Springfield.

43. Merriweather maintained that he did not know his charges in an interview Dr. Pietz conducted on November 22. (Doc. 549, Second Comp. Hrg. Vol. I at 43). Dr. Pietz called upon Dr. Robert Sarrazin, Chief of Psychiatry at Springfield, to get his impression of Merriweather. After speaking with Merriweather, Dr. Sarrazin concluded that Merriweather did not have a mental illness. ( Id. at 45).

44. Dr. Pietz received Judge Ott's order that all interviews must be videotaped. Thus, Dr. Pietz videotaped her interview with Merriweather on November 27, 2013. (Doc. 549, Second Comp. Hrg. Vol. I at 46; GX-19). Dr. Pietz observed that Merriweather's answers during that interview were coherent and organized. ( Id. ). He did not appear to experience any visual or auditory hallucinations. ( Id. at 48, 52). The staff at FPMC Springfield denied seeing Merriweather experience any hallucinations. ( Id. at 53). At times, Merriweather refused to answer or evaded answering questions, but Dr. Pietz concluded that he was doing this intentionally. She believed Merriweather understood the legal process and what roles the judge and his lawyers had in his case. ( Id. at 49). Merriweather was not taking any antipsychotic medications while at MCFP Springfield. (Doc. 549, Second Comp. Hrg. Vol. I at 23, 80).

45. Following the November 27th recorded interview, Merriweather stopped speaking with Dr. Pietz. (Doc. 549, Second Comp. Hrg. Vol. I at 54). Instead, he used hand gestures to pantomime answers to Dr. Pietz's questions, which she interpreted as an unwillingness to speak about the offense - as opposed to signs of schizophrenia or psychosis. ( Id. at 54-55). On December 19th, the last morning that Dr. Pietz asked Merriweather to speak with her, he again pantomimed a response, which she interpreted as a "no." ( Id. at 58).

46. In March 2014, Merriweather's counsel moved the court to conduct a second competency hearing. (Doc. 330). The court granted that motion and ruled that all evidence received during the 2011 hearing would be considered "on the issue of whether [Merriweather] suffers from a mental disease or disorder." (Docs. 335; 428 at 3).

47. From July 21 to July 25, 2014, the court again heard evidence on Merriweather's present competence to stand trial. The court heard from several Government witnesses, including two expert witnesses, Drs. Berger and Pietz and a number of nurses from FMC Butner. The Defense presented two expert witnesses (Drs. Cunningham and Stalcup), more nurses from FMC Butner, and two officers from the Shelby County Jail.

48. At the second competency hearing, the Government, having borne the burden to prove Merriweather competent by a preponderance of the evidence, was permitted to proceed first at the hearing and also had the opportunity to brief and to reply to Merriweather's submissions.[11] (Docs. 565 and 568, Gov't Br. and Reply). The Defense submitted briefs in support of its position that Merriweather is incompetent due to schizophrenia. (Docs. 556; 569). The parties' submissions have been carefully considered along with the testimony of the expert witnesses.

II. Findings of Fact

49. The court's initial competency order discussed Merriweather's background, including his family, employment, and activities before his arrest. (Doc. 160 at 2-9). The court summarizes that hearing testimony below.

A. Testimony Presented at the 2011 Competency Hearing

1. Testimony About Defendant's Background

50. William Merriweather was born the youngest of three children on May 20, 1976, in Birmingham, Alabama to William Merriweather, Sr. and On Sun Merriweather. (Doc. 24 at 5, Tr. Vol. II, 295; Def. Ex. 7 at 1). His mother was diagnosed with a brain tumor and died when Merriweather was three years old. (Doc. 143, Comp. Hrg. Vol. II at 296). Reportedly, prior to her death, Merriweather's mother suffered from depression and once attempted suicide. (Doc. 24, Tr. Vol. II, 296). Shortly after On Sun's death, Merriweather's father married her younger sister, Kum Cha, and together they raised Merriweather and his siblings, along with two sons born to Kum Cha and Merriweather, Sr. (Doc. 24 at 7; Def. Ex. 7 at 2). Merriweather reported during a psychological examination that he had an otherwise ordinary childhood and adolescence, (Doc. 24 at 5) and experienced no signs of psychosis or mental illness during that time. (Doc. 143, Comp. Hrg. Vol. II at 335).

51. After graduating from high school, Merriweather moved in with his sister, Euknesha Kim Patton ("Patton"), to study at Alabama State University in Montgomery, Alabama. (Doc. 143, Comp. Hrg. Vol. II at 296). He did not complete his education at Alabama State and instead moved back to Birmingham in 1996, enrolling in 2001 at ITT Technical College, where he took courses in electrical work. (Doc. 143, Comp. Hrg. Vol. II at 297-98; Doc. 24 at 5).

52. The record evidence demonstrates that Merriweather has used drugs and alcohol consistently since his adolescence. Much of what is known about Merriweather's drug use is self-reported; but there have been enough corroborating sources that the court is convinced that Merriweather has participated in substantial drug use. (Doc. 142, Comp. Hrg. Vol. I at 43; Doc. 24 at 6). Merriweather has reported that he began using alcohol at age 14 and marijuana at 17. (Doc. 142). Merriweather has stated that his marijuana use progressed into substance abuse and addiction, which involved the daily use of marijuana, and the frequent use of cocaine, crystal methamphetamine, alcohol, and ecstasy. (Doc. 142, Comp. Hrg. Vol. I at 43). He began using cocaine at age 22 and at around age 28, he began to use crystal methamphetamine frequently. (Doc. 142, Comp. Hrg. Vol. I at 43). He also acknowledged using "various pills, " "ecstasy, " and shooting heroin intravenously.3 (Doc. 142, Comp. Hrg. Vol. I at 43; Doc. 24 at 6). Merriweather would use cocaine up to three times each day when it was available to him. (Doc. 24 at 6). Significantly, while being treated at UAB Hospital for the gunshot wound following his arrest, Merriweather tested positive for opiates. (Doc. 142, Comp. Hrg. Vol. I at 103-04; Def. Ex. 15 at 18).

53. In the evidence at the first competency hearing, Merriweather's family and friends recounted instances when Merriweather displayed unusual behavior. While Merriweather was a student at Alabama State University in 1995, his then-girlfriend Latisha Simpson testified that he told her that he would at times laugh "when things weren't funny." (Doc. 144, Comp. Hrg. Vol. III at 554). She also recalled that Merriweather frequently experienced "visions" and "hallucinati[ons], " which she explained were bad dreams that would cause him to wake up screaming on "several occasions." (Doc. 144, Comp. Hrg. Vol. III at 554-56).[12]

54. Merriweather's family reportedly began observing unusual behavior by Merriweather after he returned to Birmingham in 1996. Between late 2001 and early 2002, Euknesha Kim Patton, Merriweather's sister, received calls from family members informing her that Merriweather was acting strangely. (Doc. 143, Comp. Hrg. Vol. II at 299). This prompted Patton, who had traveled to Birmingham to visit her family sometime in late 2001 or early 2002, to meet with Merriweather. ( Id. ). Patton testified that, during the meeting, Merriweather informed her that he was hallucinating, and seeing demons in everyone, including family members. ( Id. at 299-300). According to Patton, Merriweather further confided in her that he felt that there was a conspiracy against his life, that he would see signs along the neighborhood and on television directed at him, that he was preoccupied with the letter "C, " that he believed that the government planted a chip in his shoulder, and that he could hear his father's thoughts without his father speaking. (Doc. 143, Comp. Hrg. Vol. II at 300). At the end of their conversation, Patton asked Merriweather if he had been using substances, to which Merriweather responded that he had; however, according to Patton, Merriweather did not associate his experiences with a lack of rest, stress, or drug use. ( Id. at 301).

55. Merriweather's family did not pursue medical treatment for Merriweather's behavior or his reported experiences. (Doc. 142, Comp. Hrg. Vol. I at 27-28; Vol. II at 299-300, 335, 349-50; Doc. 24). Patton and her husband decided that it would be in Merriweather's best interest to invite Merriweather to return with them to Montgomery. (Doc. 143, Comp. Hrg. Vol. II at 302). Merriweather packed a bag and left with them that night. ( Id. at 303). Merriweather left his car in Birmingham. ( Id. at 304). Merriweather stayed with the Pattons in Montgomery for nine months, sharing a bunk bed with their two young children. ( Id. at 303). During the first six months, Patton and her husband took precautions to restrict Merriweather's exposure to drugs and alcohol. ( Id. ).

56. According to his sister, Merriweather's paranoia persisted during his stay in her home. Patton testified that Merriweather told her that he thought her 6 and 4-year-old sons were plotting to kill him because they were allegedly speaking in code. (Doc. 143, Comp. Hrg. Vol. II at 305). Merriweather similarly accused Patton and her husband of speaking in code with each other. ( Id. at 306). Patton recounted that Merriweather would come into her bedroom to sleep at the foot of her bed, complaining that "he was seeing demons and... hearing voices." (Tr. Vol. II, 306). Patton and her husband "would tap him on the shoulder and ask him to go back to the boys' room." ( Id. ). These incidents, however, did not seem to diminish Merriweather's ability to trust Patton with his life or Patton's ability to trust Merriweather with her young children, so it is unclear how seriously Patton took these statements about "seeing demons" and "hearing voices."

57. At the same time, Patton also testified that Merriweather's condition appeared to improve somewhat over the course of his stay with her. His conversations became more rational and he experienced fewer "acrimonious" situations after four months. (Doc. 143, Comp. Hrg. Vol. II at 310). Patton attributed this to Merriweather's church participation. ( Id. ).

58. Merriweather eventually moved out of the Pattons' home to live with Alecia Smith, a former girlfriend (Doc. 143, Comp. Hrg. Vol. II at 307, 314). Merriweather took a position working with the Department of Corrections in Montgomery. ( Id. at 312). The job lasted approximately sixty days. ( Id. ). Merriweather and Smith broke up after several months and Merriweather moved into a separate apartment, but he was evicted from that residence after six months. ( Id. at 313-14).

59. Patton and her husband took Merriweather back into their home in 2003. (Doc. 143, Comp. Hrg. Vol. II at 315). Merriweather stayed in his sister's home for another three to four months. ( Id. ). This final stay in his sister's home proved more fractious than Merriweather's prior tenancy. Patton attested that she laid down several house rules Merriweather was expected to abide by during his stay: (1) he would not bring home visitors, (2) he would not smoke cigarettes in the house, (3) he would not bring alcoholic beverages into the house, and (4) he would clean up after himself. (Doc. 143, Comp. Hrg. Vol. II at 315). Merriweather broke all of these rules. ( Id. ). This prompted the Pattons to ask Merriweather to leave, which he did promptly.[13] ( Id. at 316).

60. Euknesha Patton testified that she continued to maintain contact with Merriweather and saw him the day before he robbed the Bessemer bank. (Doc. 143, Comp. Hrg. Vol. II at 317). She noted that Merriweather's appearance disturbed her. ( Id. ). He wore dirty clothes and his manner of dress was different. ( Id. ). He had shaved his eyebrows and his head except for a patch of hair at the top of his head. (Doc. 143, Comp. Hrg. Vol. II at 317-18). Patton also described finding Merriweather practicing martial arts, chanting "Shaolin Monk, Shaolin Monk." ( Id. at 319).

61. On May 15, 2007, the day after the robbery, Merriweather was interviewed by detectives at the Jefferson County Jail. (Def. Ex. 16 at 1). During this interview, Merriweather's speech remained rational, coherent, and composed, which was surprising given that he had been shot the day before. (Def. Ex. 16 at 3, 128). His responses, however, were noticeably evasive. On several occasions, Merriweather would try to delay answering a question. Merriweather professed to be ignorant of his mother's ethnicity. (Def. Ex. 16 at 55). At one point, Merriweather simply told the investigators that he intended not to cooperate. (Def. Ex. 16 at 22) ("I'm going to look over here the whole time you're talking to me today.").

62. During that post-arrest interview in the Jefferson County Jail, Merriweather repeatedly indicated to law enforcement that there was an accomplice, despite insistence by the detectives that video surveillance of the robbery revealed no other party to the robbery. (Def. Ex. 16 at 19, 23, 27, 29). Merriweather avoided naming the alleged accomplice, and provided an evasive reply when questioned directly. (Def. Ex. 16 at 18) ("[Y]ou know, you can have all types of names."). Merriweather never named the alleged accomplice at the interview. Deeply skeptical about the existence of such an accomplice, one of the interviewers, Agent Paul Watson, informed Merriweather that the charade was a waste of time because if he were to "go back and tell [investigators], well, Charles, was in the bank with [Merriweather]... then they're actually going to be wasting their time [looking] for somebody that may not exist." (Def. Ex. 16 at 88).

63. There is evidence that, on one occasion, Merriweather confided in his father about an incident where he was hearing voices. Suspecting drug use, Merriweather's father asked Merriweather if he had been taking illicit drugs. (Doc. 24 at 7). Merriweather responded in the affirmative, which prompted Merriweather, Sr. to inform him that the voices should cease if Merriweather would stop taking drugs. (Doc. 24 at 7). Merriweather's sister, Euknesha Kim Patton, recalled a similar experience that prompted her to ask Merriweather if he had been using drugs, and Merriweather admitted to her that he was. (Doc. 143, Comp. Hrg. Vol. II at 301).

2. Dr. Christina Pietz

64. Merriweather's first court-ordered evaluation occurred at the United States Medical Center for Federal Prisoners in Springfield, Missouri ("MCFP Springfield") from November 2, 2007 to January 14, 2008. (Doc. 142, Comp. Hrg. Vol. I at 19; Gov't Exs. 2, 3). Merriweather's evaluation was overseen by Dr. Christina Pietz, a psychologist with 24 years of experience at MCFP Springfield. (Doc. 142, Comp. Hrg. Vol. I at 15). Dr. Pietz was the first witness called by the Government in both competency hearings. In her first evaluation of Merriweather, Dr. Pietz conducted six formal interviews totaling 12-15 hours, and informal interviews in the course of routine rounds on Merriweather's unit for 75 days. (Doc. 142, Comp. Hrg. Vol. I at 19-20, 32).

65. Over the course of Dr. Pietz's first evaluation of Merriweather, Dr. Pietz administered five psychological tests: (1) the Validity Indicator Profile; (2) the Shipley Institute of Living Scale; (3) the Minnesota Multiphasic Personality Inventory; (4) the Evaluation of Competency to Stand Trial-Revised (ECST-R);[14] and (5) the Structured Interview of Reported Symptoms. (Doc. 24 at 3). She also consulted daily with the mental health care and correctional staff members who kept Merriweather under constant observation and reviewed collateral information, such as Dr. Ackerson's findings, investigative reports concerning the robbery, and Merriweather's phone conversations after the arrest. (Doc. 142, Comp. Hrg. Vol. I at 24-26).

66. Dr. Pietz filed two reports with the court, one dealing with Merriweather's competency to stand trial and another concerning Merriweather's mental state at the time of the offense. (Doc. 24). In Dr. Pietz's report on Merriweather's competency to stand trial, she diagnosed Merriweather with adult antisocial behavior and attributed Merriweather's behavior to polysubstance dependence. (Doc. 24 at 14). She concluded, "Merriweather does not currently suffer from a mental illness, and therefore, by definition does not meet the criteria for being found not competent." (Doc. 24 at 14). Pietz based this conclusion on Merriweather's responses to the psychological tests, his responses during interviews, and a review of relevant literature. (Tr. Vol. I, 63). Dr. Pietz ruled out malingering as a possible explanation for Merriweather's behavior, noting that both she and Dr. Mirsky administered tests to detect malingering and neither doctor found evidence of malingering. (Doc. 142, Comp. Hrg. Vol. I at 67; 87.

67. Most notably, Dr. Pietz found that Merriweather's scores on the ECST-R suggested no impairment in his ability to consult with his attorney or have a rational understanding of court proceedings. (Doc. 24 at 14). Indeed, Dr. Pietz indicated that Merriweather performed "exceptionally well" on the ECST-R - even better than one of her students. (Doc. 143, Comp. Hrg. Vol. II at 256; Doc. 142, Comp. Hrg. Vol. I at 59).

68. There was one exception to Merriweather's otherwise strong performance on the ECST-R: his score suggested moderate impairment in his ability to have a factual understanding of court proceedings. (Doc. 24 at 14). Dr. Pietz found this result to be surprising given that Merriweather had clearly demonstrated that he had a factual understanding of court proceedings in other interviews. ( Id. ). When asked about the roles of various actors in legal proceedings, Merriweather was able to correctly identify the roles of the judge, the prosecutor, and the Defense counsel. ( Id. at 15). He understood that a jury of 12-14 jurors would be selected from his community, though he did not know that a guilty verdict required a unanimous decision and stated that "[t]he role of the jury is to find the defendant guilty." ( Id. ). When asked about possible pleas, Merriweather had no difficulty articulating his understanding of various pleas available to him. He explained, for example, that "[t]he insanity plea is...instructs that at that moment at the time of what happened, [Merriweather] wasn't [him]self because of illegal drugs that [Merriweather] had taken...from the pills, marijuana and cocaine." (Doc. 24 at 15). Merriweather demonstrated that he understood what it means to plead guilty or not guilty and the consequences of entering a plea bargain, commenting that "a defendant should discuss the options of a plea bargain with his attorney." ( Id. ). Merriweather further acknowledged that, if found guilty, he may receive "possible life in prison or the death penalty." ( Id. ).

69. Conflicts among various statements given by Merriweather are not limited to discrepancies between his performance on the ECST-R and his answers in interviews. Dr. Pietz's interviews with Merriweather are littered with references to inconsistent statements he made that, when taken together, reveal a pattern of evasive behavior undertaken by Merriweather to conceal the extent of his knowledge and culpability. For example, when asked about the charges against him, Merriweather initially claimed that he had no knowledge that he was charged with murder. (Doc. 24 at 14). In a subsequent interview, Merriweather acknowledged the murder charge and indicated that his attorney and investigating officers informed him of the charges against him soon after his arrest. (Doc. 24 at 14). When questioned about the events leading up to the arrest, Merriweather initially asserted that he could recall only a few details of the alleged offenses. (Doc. 24 at 14). During subsequent interviews, however, Merriweather provided clear, detailed, and coherent recollections of the robbery, including a written description of his memory of the events. (Doc. 24 at 15).

70. The details of the robbery provided by Merriweather, however, varied with each interview. One jarring inconsistency in Merriweather's recollection of the robbery was his indication in earlier interviews of the presence of an accomplice named "Charlie." (Doc. 24 at 15). During five of the first six interviews, Merriweather provided a different rendition of the robbery with Charlie featured in a new role with each telling. (Doc. 142, Comp. Hrg. Vol. I at 32-33). In one version, for example, Charlie took Merriweather to the bank to "cash a check." ( Id. at 33). In another version, Charlie was actually the person who got shot escaping the crime scene. ( Id. ). In yet another version, Charlie simply told Merriweather to follow him into the bank, placing Merriweather at the wrong place at the wrong time. ( Id. ). From all of these accounts, Dr. Pietz was left with the impression that Merriweather was trying to minimize responsibility by "trying to blame others." ( Id. at 35). Dr. Pietz noted that when she directed Merriweather's attention to a discrepancy between his stories and the investigative record, Merriweather would "try[] to come up with a different response that made more sense." ( Id. ).

71. Merriweather requested the sixth interview he had with Dr. Pietz, and during that interview gave an account of the robbery in which "Charlie" was absent and Merriweather took responsibility for the robbery. (Doc. 142, Comp. Hrg. Vol. I at 34). In that interview, Merriweather stated that he had received a "message" that described the inside of the bank and the identity of the manager. ( Id. ).

72. While Merriweather gave different descriptions of his involvement in the bank robbery, Dr. Pietz found that there was never any doubt that Merriweather understood what he was charged with and why he was incarcerated. (Doc. 142, Comp. Hrg. Vol. I at 32-35). Dr. Pietz attributed these inconsistencies to evasive behavior rather than mental illness. ( Id. at 34-35).

73. Further supporting her position that Merriweather was more likely manipulative than mentally infirm, Dr. Pietz found Merriweather's speech and behavior to be inconsistent with symptoms typically associated with mental illness. Dr. Pietz testified that persons suffering from mental illness are disorganized in their thoughts and speech, struggle to provide information, and typically provide inaccurate information tainted by delusional thought. (Doc. 142, Comp. Hrg. Vol. I at 30). Concealing disorganized speech (and, therefore, concealing a mental illness) is not easy and will likely reveal itself over time during conversations or meetings involving persons genuinely suffering from a psychotic illness. ( Id. at 54). Throughout Merriweather's 75-day evaluation at MCFP Springfield, his speech was never observed to be disorganized, but was instead described as rational, coherent, and organized. ( Id. at 27-30, 41, 44, 46-47, 54-55). If anything, Dr. Pietz characterized Merriweather's responses to questions relating to the robbery as "cautious." (Doc. 143, Comp. Hrg. Vol. II at 272, 275). Merriweather's behavior was similarly inconsistent with symptoms typical of mental illness. There were no signs of memory deficit. (Doc. 142, Comp. Hrg. Vol. I at 57). Merriweather maintained a clean cell and bathed regularly during his stay at MCFP Springfield. ( Id. at 45). Merriweather was never mute, though he did take time to think through his responses. ( Id. at 46, 57).

74. Dr. Pietz also found no negative signs of schizophrenia.[15] With regard to positive signs of schizophrenia, there were two incidents that, if genuine, could be construed as evincing positive signs of schizophrenia. Dr. Pietz, however, found both instances to be suspect. (Doc. 142, Comp. Hrg. Vol. I at 51, 90).

75. In the first incident, Merriweather reported to Dr. Leanne Preston, the on-call psychologist, that he was seeing gremlins in his cell. (Doc. 142, Comp. Hrg. Vol. I at 39, 90). Merriweather told Dr. Preston that he thought he might be suicidal. ( Id. at 40). Dr. Preston placed Merriweather under suicide watch, but wrote in her report that Merriweather's claim that he saw gremlins was suspect. ( Id. ). Dr. Pietz, who was the medical professional charged with assessing him, found Merriweather's claims to be questionable for at least five reasons. First, as Dr. Pietz noted, it is very rare for truly psychotic people to experience visual hallucinations. ( Id. ). Visual hallucinations are actually more consistent with illicit substance abuse than psychosis. ( Id. ). Second, even in the rare cases when someone actually experiences visual hallucinations, the hallucinations are usually frightening and not casually mentioned. ( Id. at 42). Third, people who complain about being suicidal are typically not truly suicidal since drawing attention to themselves increases the chances that a suicide attempt would be thwarted. ( Id. at 41). Fourth, when placed under suicide watch, Merriweather was more upset about losing his privacy because of the constant surveillance imposed by the watch than he was due to any perceived gremlins or alleged suicidal tendencies. Indeed, Merriweather actually requested to be taken off suicide watch as soon as possible. ( Id. ). Finally, Dr. Pietz testified that generally hallucinations do not completely go away, even for psychotic individuals who are medicated. ( Id. at 42). Merriweather did not mention gremlins when he requested to be taken off the suicide watch or anytime afterwards. ( Id. at 41). Dr. Pietz therefore found Merriweather's alleged hallucination suspect. ( Id. at 40).

76. The second incident involved Merriweather scraping his arms with a spork. (Doc. 142, Comp. Hrg. Vol. I at 42). He told a nurse that there were bugs in the room, which may have been a visual hallucination. ( Id. ). Merriweather, however, did not seem overly concerned about it. ( Id. ). Dr. Pietz discounted this incident because visual hallucinations are typically sufficiently frightening to the patient to warrant more than a single, casual mention. ( Id. ). In this case, Merriweather mentioned the bugs casually, but did not appear disturbed by them nor did he mention seeing bugs in his room again. ( Id. ).

77. Based on her observations of Merriweather during his first 75-day evaluation at MCFP Springfield, his responses to psychological tests, and a review of collateral sources, Dr. Pietz found that Merriweather was not mentally ill. (Doc. 142, Comp. Hrg. Vol. I at 52-53). She diagnosed Merriweather with two disorders found in the Diagnostic and Statistical Manual of Mental Disorders: substance-induced psychotic disorder, and adult antisocial behavior. (Doc. 549, Second Comp. Hrg. Vol. I at 18). She concluded that he was competent to stand trial.[16]

3. Dr. Bruce Berger

78. Reports from Drs. Gualtieri, Mirsky, and Landis were ultimately transmitted to the doctor charged with supervising Merriweather's evaluation at FMC Butner, Dr. Bruce Berger, a board-certified forensic psychiatrist with more than 20 years of experience. Dr. Berger oversaw Merriweather's evaluation during which he, with assistance from Dr. Jill Grant and a team of mental health professionals, observed Merriweather every day for 496 days, conducted four videotaped formal interviews, and reviewed the reports by the other expert examiners and collateral source information. (Doc. 145, Comp. Hrg. Vol. IV at 586). Based on this evidence, Dr. Berger concluded that Merriweather's behavior could be best ascribed to drug use, not a psychotic disorder. On April 1, 2011, Dr. Berger issued a report in which he concluded that Merriweather "does currently possess the capacity to understand his current charges, understand courtroom functioning, and could, should he so choose, work affirmatively with his attorney in a rational way...[and that] he is competent to proceed." (Gov't Ex. 10 at 10).

79. In reaching his conclusion that Merriweather's behavior results from drug use (as opposed to a psychotic disorder), Dr. Berger considered Merriweather's history of substance use. During his initial interview, Merriweather reported that he had used substances, such as alcohol, marijuana, and cocaine, on a daily basis before the robbery. (Doc. 145, Comp. Hrg. Vol. IV at 604). Such drugs were not available to him during his stay at FMC Butner and Merriweather had never been prescribed psychotropic medication before arriving at FMC Butner, nor was he placed on any medication during his stay at FMC Butner (with the exception of a cream for dry skin, medication for constipation, and a nutritional supplement). ( Id. at 588).

80. During Merriweather's 496-day stay at FMC Butner, a time when he was neither treated for mental illness nor under the influence of drugs, Merriweather was generally not observed to exhibit psychotic behavior. Although Dr. Berger acknowledged that there are nurses' notes[17] suggesting that Merriweather may have been responding to internal stimuli and presented other behaviors that could be viewed as psychotic symptomology, Dr. Berger never observed Merriweather responding to stimuli nor were there any consistent reports of such symptoms from his staff. (Doc. 145, Comp. Hrg. Vol. IV at 598). Eugene Singleton, who interacted directly with Merriweather on a daily basis as one of several staff members who (while working) checked on Merriweather every 15 minutes, observed no significant behavioral problems. (Doc. 150, Comp. Hrg. Vol. VIII at 1266-67). Singleton noted simply that Merriweather's behavior was fairly ordinary for someone waiting his time. ( Id. at 1266). Consistent with Singleton's observations, Dr. Berger mentioned that Merriweather maintained a clean cell ( Id. at 1266-67, 1272), maintained acceptable hygiene (Doc. 145, Comp. Hrg. Vol. IV at 593-94), and exhibited no positive or negative signs of schizophrenia. ( Id. at 593-94, 597-98, 610-11, 618, 621). Merriweather's speech pattern was clear and sophisticated ( Id. at 602, 605-06), and he had no difficulty communicating with staff. ( Id. at 596-97).

81. Indeed, many of Merriweather's actions indicate a rational mind at work. Merriweather repositioned the bed in his cell for greater privacy. (Doc. 145, Comp. Hrg. Vol. IV at 594; Doc. 150, Comp. Hrg. Vol. VIII at 1272-73). As an additional assurance of privacy, he posted a "no solicitation" sign on his door. (Doc. 145, Comp. Hrg. Vol. IV at 598-99). When he obtained a radio that was nonoperational, Merriweather was able to successfully reconfigure it to work with the type of battery available to him. ( Id. at 614). To pass the time, Merriweather also would often request novels and magazines to read. (Doc. 150, Comp. Hrg. Vol. VIII at 1268-69).

82. However, Merriweather also engaged in curious behavioral patterns that might potentially raise a suspicion of mental illness. Specifically, Merriweather, while at FMC Butner, as in other facilities, would undergo periods of protracted muteness, abstain from eating, and speak incoherently during taped interviews. (Doc. 145, Comp. Hrg. Vol. IV at 599, 589-93, 601-10).

83. Nonetheless, although he considered the possibility that Merriweather might be suffering from mental illness, in light of Merriweather's demonstrated capacity for rational behavior, Dr. Berger eventually came to conclude that Merriweather's infirmities were feigned.

84. With regard to Merriweather's periods of protracted muteness, Dr. Berger explained that there is a difference between actual mutism and selective silence. Actual mutism refers to a situation where a patient cannot speak, even if the patient desires to communicate. (Doc. 144, Comp. Hrg. Vol. III, 433; Tr. Vol. IV, 599). Selective silence, on the other hand, describes a scenario where a patient is able to communicate when he chooses, but chooses not to communicate when it suits him. ( Id. at 430). Dr. Berger found Merriweather able to communicate when it served Merriweather's own interests. (Doc. 145, Comp. Hrg. Vol. IV, 596-97, 616). Therefore, Dr. Berger concluded that Merriweather's silence was not a symptom of a mental disorder, but rather manipulative behavior. ( Id. ).

85. Similarly, Dr. Berger considered Merriweather's eating patterns to be less indicative of a mental disorder than of a strong will and a willingness to use nutrition as leverage to attain his goals. Merriweather consumed both sealed, pre-packaged meals ( e.g., Ensure, T.V. dinners) as well as the regular trays provided at FMC Butner, so it did not appear that he was actually concerned about being poisoned. (Doc. 145, Comp. Hrg. Vol. IV at 591). He did, however, twice alter his eating habits in order to force the facility to place him under higher surveillance, which in turn meant that he was reassigned to a better cell. ( Id. at 591-92, 617, 663).

86. Dr. Berger noted that Merriweather was calm and collected during the interviews, which was not something he would expect from someone who was decompensating. (Tr. Vol. IV, 605). After the first two interviews, Merriweather refused further interviews until Judge Ott issued an order compelling Merriweather to participate in the videotaped interviews. (Doc. 145, Comp. Hrg. Vol. IV at 606). During the recorded interviews, Merriweather pretended not to know who Dr. Berger was, despite communicating with him without difficulty on a daily basis when not being videotaped. ( Id. at 601-04, 608-10; Gov't Ex. 11). Merriweather was focused when the conversation was about routine matters. ( Id. at 593). These behaviors led Dr. Berger to ultimately conclude that Merriweather (1) was not mentally ill, and (2) his unusual behavior represented various attempts to manipulate his environment.[18] ( Id. at 601-09).

4. Dr. Richard G. Dudley, Jr.

87. Dr. Richard G. Dudley Jr., a forensic psychiatrist, evaluated Merriweather for mental illness and testified for the Defense at the initial competency hearing. (Doc. 147, Comp. Hrg. Vol. VI at 912-17). Dr. Dudley has extensive experience in diagnosing and treating people who are both schizophrenic and substance abusers based upon the time he spent running a community mental health clinic in Harlem, New York. ( Id. at 940). Dr. Dudley met with Merriweather on three separate occasions. The first interview, conducted over two days, began on January 26, 2009. (Def. Ex. 9 at 2). Dr. Dudley also met with Merriweather on August 17, 2009 (Def. Ex. 66 at 1), and again on June 24, 2011, after Merriweather returned from his second extended evaluation at FMC Butner.[19] (Def. Ex. 9 at 2). During that final meeting, however, Merriweather refused to communicate with Dr. Dudley. (Doc. 147, Comp. Hrg. Vol. VI at 946, 962, 1006-07). Altogether, Dr. Dudley estimates that he spent a total of 16 hours with Merriweather over the course of three sessions. ( Id. at 921). Dr. Dudley also reviewed previous evaluations and other collateral sources of information regarding Merriweather's background and history, which he considered vital to his evaluation. (Doc. 147, Comp. Hrg. Vol. VI at 920-21).

88. Dr. Dudley concluded that the most appropriate and accurate diagnosis was that Merriweather is a person who suffers from schizophrenia and who also uses drugs. (Doc. 147, Comp. Hrg. Vol. VI at 926-27). Dr. Dudley defined schizophrenia as "characterized by an episode of illness that lasts for approximately six months." (Doc. 147, Comp. Hrg. Vol. VI at 927; see AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 2000) (DSM-5).[20] That episode of illness, Dr. Dudley testified, has three phases: (1) a prodromal period where the person's ability to function begins to deteriorate; (2) the active phase of the illness (which must span at least one month of that six-month period) where the individual is exhibiting the full spectrum of schizophrenia symptoms, both positive and negative; and (3) a period afterwards that is similar to the prodromal period during which the person is pulling himself back together. ( Id. ). The course the illness may run varies; that is, individuals will alternate between periods of illness and stability. ( Id. ). Dr. Dudley stated that:

[t]here are people who have some residual symptoms in between episodes of illness and then many people, if untreated, gradually deteriorate over time, and the residual symptoms that are there between episodes become more and more severe and so that it begins to look like a pattern of continuous illness with the onset of this whole disorder.

( Id. at 928).

89. Dr. Dudley testified that the symptoms Merriweather's family recounted were exhibited by Merriweather, [21] and the change in Merriweather's condition between Dudley's initial interview in 2009 and what he saw in 2011, were consistent with "classic" schizophrenia. (Doc. 147, Comp. Hrg. Vol. VI at 928-29, 957).

90. Dr. Dudley testified that when he saw Merriweather in 2009, Merriweather was verbal, but disorganized and distracted. Merriweather appeared to be responding to internal stimuli, and his responses were bizarre. According to Dr. Dudley, Merriweather evinced no understanding of the nature of the case, the charges against him, and the possible outcomes of his case. Merriweather talked about his imminent release and expressed the view that he had been held longer than he expected. Dr. Dudley found Merriweather's affect to be flat, and testified that Merriweather would interrupt him with inappropriate laughter. In a subsequent meeting in 2009, Merriweather expressed to Dr. Dudley that he felt he was at risk of being harmed, perhaps poisoned. (Doc. 147, Comp. Hrg. Vol. VI at 943-44).

91. An important factor in Dr. Dudley's diagnosis was Merriweather's substantial weight loss. (Doc. 147, Comp. Hrg. Vol. VI at 923-30, 996). He did, however, concede that Merriweather's later decision to continue eating, arising from his aversion to the needles and tubes that would have been used to inject nutrition into him, reflected a choice by Merriweather to realize a clear preference. ( Id. at 1022).

92. Also important to Dr. Dudley's evaluation was Merriweather's refusal to communicate with him during Dr. Dudley's visits to the Shelby County Jail in June 2011. (Doc. 147, Comp. Hrg. Vol. VI at 946). Dr. Dudley interpreted Merriweather's refusal to communicate with him showing that he was unable to communicate. ( Id. at 951).[22]

93. Dr. Dudley dismissed the role of illicit drugs in the context of Merriweather's diagnosis because (1) Merriweather's symptoms seemed to be present when he was not using drugs, and (2) there was a lack of information to identify a drug, or indicate that drugs were used in the quantity or for the duration necessary to cause the symptoms. (Doc. 147, Comp. Hrg. Vol. VI at 925). However, Dr. Dudley did note that, in addition to marijuana use, there is evidence that Merriweather used other illegal drugs.[23] ( Id. at 958, 978).

94. Dr. Dudley considered but ruled out malingering, in part because mimicking the negative symptoms of schizophrenia, even if one were to assume that the patient knows what they are, would be difficult. (Doc. 147, Comp. Hrg. Vol. VI at 937-39). Dudley admitted, however, that he was unfamiliar with the Test of ...

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