The Defendant Who Hears the Radio People
Mr. R., 29, is charged with second-degree murder. He has a ten-year history of schizophrenia treated with depot haloperidol. Jail records show he attends meals, plays cards, and has had no behavioral incidents in 60 days. In your two interviews he whispers that the radio people control his thoughts, says he cannot remember the night of the offense, and when asked to define a plea, describes a basketball tryout. He scores 32 and 38 on TOMM Trials 1 and 2 (below the standard cutoff), 11/15 on the Rey-15, and his MMPI-3 yields Fp-r T = 82 and RBS T = 78. His sister reports he has always been a little slow, left school in ninth grade, and was in special education, but no IQ testing exists. Jail medical confirms he receives his monthly injection and refuses oral medication. Defense counsel tells you the judge wants a report in ten days and asks whether you will just say he is incompetent so we can get him restored.
1. How do you integrate the TOMM, Rey-15, and MMPI-3 overreporting scores into a Dusky analysis, and what may you legitimately conclude?
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The validity data constrain the interpretation but do not resolve the question.
What the scores mean
- TOMM scores below the standard cutoff indicate that performance on that specific task was not valid. That is a statement about one forced-choice recognition measure, not a diagnosis of malingering and not proof that the entire presentation is fabricated. Two failures plus a borderline Rey-15 (Rey cutoffs are coarse and insensitive to genuine impairment in some examinees) raise the probability of non-credible performance but leave room for true severe cognitive limitation or inattention.
- Fp-r and RBS elevations suggest exaggeration of psychopathology and cognitive complaints, yet both can rise in genuinely psychotic or cognitively impaired respondents, and RBS is a broad response-bias indicator rather than a feigning test.
What Dusky requires The prongs are functional: factual understanding, rational understanding, and ability to consult with counsel. These are answered by structured interview (e.g., the ECST-R or MacCAT-CA), collateral record review, observation of attorney contacts, and information from jail staff about real-world functioning. No score answers them.
Legitimate conclusion You should not opine incompetent on these data alone, nor clear him. State that testing was invalid and that the competency question remains unresolved, order cognitive and adaptive testing, obtain school and treatment records, and consider a structured inpatient evaluation. Document the limits of the data rather than forcing a binary answer.
2. Does his claimed inability to remember the offense affect the competency opinion, and how would you test that claim?
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Amnesia for the offense is generally not, by itself, a basis for a finding of incompetence; courts have repeatedly held that a defendant is not incompetent simply because he cannot recall the events. The question is whether the memory loss functionally impairs the Dusky capacities, for example by preventing him from testifying, from evaluating a defense strategy that depends on his account, or from correcting inaccurate evidence.
The claim here is suspect for several reasons and should be tested rather than accepted:
- He reports dense amnesia for the offense while reporting detailed ongoing auditory experiences, an inconsistent pattern.
- His performance on stand-alone validity measures was invalid, which contaminates all self-report.
- Collateral sources (jail logs, booking video, arrest reports) can indicate whether he was disorganized or intoxicated at the time.
Crucially, memory impairment does not explain the demonstrated failure to define a plea or to describe his attorney's role. Those deficits are the core competency problem and point toward cognitive limitation and untreated psychosis rather than memory. In the report, treat amnesia as a separate, secondary issue and explain its functional impact, if any, apart from the validity findings.
3. How do you handle counsel's request to say he is incompetent so restoration can begin?
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The request should be declined clearly and documented.
A court-appointed evaluator's client is the court. The opinion must be based on data, not on the strategic advantage a finding would give one party. Agreeing in advance to a conclusion is exactly the kind of role confusion that produces allegiance effects and undermines the report's credibility under cross-examination. In the reply to counsel: restate your role, note that you will follow the data and may return a conclusion of competent, incompetent, or unable to determine, and explain that an opinion offered to achieve a specific outcome is not defensible.
Be transparent about the legally relevant constraints so counsel understands your reasoning. If restoration is pursued, involuntary medication analysis under Sell v. United States requires that the treatment be medically appropriate, substantially unlikely to have side effects that undermine the fairness of the trial, necessary to further important government interests, and the least intrusive available option; prolonged confinement for restoration is limited by Jackson v. Indiana. These are judicial determinations, but they shape what you should communicate about treatability and prognosis.
Finally, brief counsel on the timeline: ten days is insufficient for the cognitive and adaptive testing you need. Request an extension and say so in writing, copying the court.