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United States v. Armstrong

September 8, 2009

UNITED STATES OF AMERICA
v.
MARJORIE DIEHL ARMSTRONG



The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Defendant, Marjorie Diehl-Armstrong, is charged with one count each of conspiracy to commit armed bank robbery, bank robbery, and carrying and using a firearm during and in relation to a crime of violence. This matter is once again before the Court for a determination of the Defendant's competency to proceed to trial.

Counsel for the Defendant originally filed a motion for a hearing to determine competency on January 24, 2008 based on an examination performed by Dr. Robert L. Sadoff. Pursuant to 18 U.S.C. § 4241(b) and § 4247(b) and (c), the Defendant was committed to the custody of the Attorney General and was subsequently evaluated at the Metropolitan Correctional Center of New York by William J. Ryan, Ph.D., a forensic psychologist. Following a two-day hearing, the Court concluded by a preponderance of the evidence that the Defendant was not competent to proceed to trial.

Accordingly, the Defendant was committed to the custody of the Attorney General for appropriate treatment in accordance with 18 U.S.C. § 4241. She was transferred to the Federal Medical Center in Carswell, Texas, where she underwent a four-month period of treatment. On January 30, 2009, this Court received a Certificate of Recovery from W. Elaine Chapman, Warden of FMC Carswell, accompanied by a Forensic Evaluation prepared by Leslie Powers, Ph.D., stating that the Defendant was believed to be competent to stand trial.

The Defendant was subsequently returned to the Erie County Prison where her counsel arranged for additional forensic evaluations by Dr. Sadoff and Frank Dattilio, Ph.D. Both Drs. Sadoff and Dattilio opined that the Defendant is not competent to stand trial due to the fact that her bipolar disorder is interfering with her ability to properly assist her lawyer in preparing a defense.

This Court held an evidentiary hearing on April 27, 2009, at which time I heard testimony from Dr. Powers, Dr. Sadoff, and Dr. Dattilio and received voluminous records documenting the Defendant's treatment at FMC Carswell. Both sides have submitted their proposed findings of fact and conclusions of law. Accordingly, this matter is now ripe for adjudication.

I. BACKGROUND

FMC Carswell, located in Fort Worth, Texas, is part of the federal Bureau of Prisons. (Tr. 5.)*fn1 In addition to housing a large general population of prisoners, FMC Carswell contains three mental health units, designated as "M1," "M2," and "M3." The M1 unit resembles a hospital setting in which inmates can come and go from their rooms at will. (Tr. 13.) Although the unit is locked, inmates are normally permitted to leave the unit if they have a pass. (Id.) The M2 unit is designated as an outpatient unit. (Id.) The M3 unit is designated as a psychiatric observation unit and is reserved for inmates who are a disciplinary problem or who may be upsetting the milieu of the M1 unit. (Id.) The M3 unit is more like a traditional prison setting where inmates are housed in rooms with a locked door and handcuffed as they are transported in and out of their rooms. (Id. at 13-14.) The goal of the Institution is to have all inmates undergoing forensic studies housed on the M1 unit, away from the general population. (Id. at 13.)

When inmates initially arrive at the facility, they receive an initial evaluation in the Receiving and Discharge (R&D) area for the purpose of assessing whether they are well enough to be housed on the M1 unit. (Tr. at 14.) Individuals who are psychotic or very sick or who present a danger to themselves or others are placed on M3 for psychiatric observation. (Id.) Once it is determined that the inmate is well enough to be housed with the other inmates on the M1 unit, the individual signs a consent to be housed with other inpatients and is transferred to M1. (Id.)

The Defendant was admitted to FMC Carswell on or around September 10, 2008. Because she was already serving a state sentence for murder, she was automatically transferred to the M3 unit for observation at the request of the executive staff. (Tr. 17.) An initial R&D screening form notes that the Defendant was not cooperative with questioning, engaged in perpetual talking, complained, and was grandiose and paranoid. (Ex. 3, p. 47; Ex. A-8272.)

On September 12, 2008, the Defendant was psychiatrically evaluated by Camille Kempke, M.D. (Ex. 3, pp. 48-51; A-8273-8276.) At that time, the Defendant exhibited run-on, tangential speech that was difficult to interpret. Her mood was irritated and she complained about being on the unit and having received the wrong size clothing. She denied being psychologically ill and stated she would not take any medication. Dr. Kempke thought the Defendant appeared hypomanic and delusional and her initial proposed treatment plan included prescribed medication. (Id.)

By September 15, 2008, the Defendant was thought to be capable of transferring to the M1 unit. In conjunction with this transfer, she executed a "Consent to Admission for Mental Health Treatment." (Ex. 3, pp. 5, 27.)

Once on the M1 unit, the Defendant was free to move about the unit and engage in activities such as reading, watching television, doing laundry, working on crafts, and participating in psycho-educational groups. In light of her pending charges and her status as a convicted state inmate, however, the Defendant was not permitted to leave the M1 unit. (Ex. 2, p. 7.) She was very upset by this decision and reportedly complained about the issue at length during her first few visits with Dr. Powers. (Id.)

During her stay on the M1 unit, the Defendant was routinely observed and monitored by staff. No disturbances in sleep were noted. (Ex. 2, p. 8.) Though she adamantly refused to consider psychotropic medication, she was compliant with her other prescribed medications. (Id.) Nursing and correctional staff observed that the Defendant tended to be demanding and had few friends on the unit. Most of the Defendant's time on the M1 unit was spent sitting in the same chair in the television room watching hours of television or talking on the phone. (Id.)

Medical records suggest that the Defendant commonly had problems with other inmates. A staff note from October 20, 2008 reports that "Inmate Marjorie Diehl-Armstrong ... from M-1 almost caused a big fight among other inmates on the unit" by allegedly using demeaning words in reference to other inmates. (Ex. 4, p. 18.) The Defendant denied the accusations and was escorted to the nurses station where she talked to the nurses about the incident. (Id.) She was subsequently confined to her room for the rest of the evening "to prevent any further incidents from happening." (Id.) The note states that seven other inmates had informed staff that "the inmate Armstrong is a bully, hostile, and mean person." (Id.)

According to progress notes from the Defendant's October 23, 2008 treatment team meeting, she was viewed by social work staff as manipulative and lacking insight, while nursing staff reported that she was "very disruptive" on the unit. (Ex. 3, p. 60.) On November 3, 2008 the Defendant reported to nursing staff, "These girls are calling me names again when there is [sic] no witnesses." (Ex. 3, p. 62.) A psychiatric progress note from the following day reflects the Defendant's concern that other inmates were trying to set her up to look manipulative and problematic. (Ex. 3, p. 63.) She reportedly made comments to the effect that "racist blacks" were "all harassing [her]," that they would go to "no length to frame" her, and that she was "the only one not afraid of them." (Id.) It appears that the Defendant's trouble with other inmates involved issues of alleged name-calling as well as use of the television and dryers. (Id.)

At one point on or around December 11, 2008, while talking on the phone within earshot of other inmates, the Defendant was heard discussing the crimes committed by some of the other inmates. (Ex. 2, p. 8.) When confronted by her treatment team with this misconduct, the Defendant became defensive and refused to admit fault. (Id.; Ex. 3, p. 70.) She began yelling at the treatment team and was transferred to the M3 unit for upsetting the milieu of the mental health unit. (Id.) Upon being searched during the (AD) admission process, she was found to be in possession of a piece of paper containing the names and registration numbers of many fellow inmates, and an incident report was written. (Ex. 2, p. 8.) Progress notes reflect that the Defendant remained argumentative and loud and could not be redirected following this incident. She was placed into a cell where she continued to be verbally combative. (Ex. 3, p. 70.) Later that day, a nursing assessment treatment team note was authored, describing the Defendant as hyperverbal, disheveled, pressured in her speech, and insisting that she hadn't done anything wrong. (Ex. 3, p. 71.)

Several days later, on December 16, 2008, the Defendant was seen by mental health staff, pleading to be returned to M1 and insisting that she was not at fault. (Ex. 3, p. 27; Ex. 4, p. 1; Ex. A-8297.) She was advised that the unit team would require her to accept responsibility for her actions and work towards improving her behavior. (Id.)

The Defendant subsequently sent Dr. Powers a letter urging Dr. Powers to meet with her concerning her desire to return to the M1 unit and citing the fact that she is claustrophobic, that her nerves were "frayed" by proceedings in her criminal case, and that she needed to call her father on Christmas. (Ex. 4, pp. 16-17.) The Defendant also remarked in her letter, "I have been thinking about this since December 11th and I am truly sorry for any negativity or confusion caused. I told Dr. Kempke I will be sure not to offend staff or inmates and to conduct myself absolutely properly at all times if given [the] chance to return to M1." (Id.)

The Defendant was seen by Dr. Kempke on December 22, 2008, at which time she was alert but frustrated about remaining on AD status. (Ex. 3, p. 75.) Dr. Kempke discussed with Defendant "the need for polite, sweet [and] short sentences" when conversing with Dr. Powers about her desire to be transferred back to M1. (Id.) Despite her frustrated mood, the Defendant was able to speak in "a little shorter, nicer tone" (id.), and she showed no signs of psychosis. (Id.) According to Dr. Power's report, the Defendant did subsequently make an effort toward accepting responsibility for her behavior, stating to Dr. Powers, "I apologize if it appeared as though I was talking about other inmate's [sic] crimes. I know that I talk too loud and I am working on that too." (Ex. 2, p. 8.)

Despite these overtures, the Defendant remained on AD until the end of December, due to the pendency of the incident report and the need to coordinate her transfer with corrections staff. (Ex. 3, p. 77.) Once transferred, the Defendant expressed her happiness to be back in the M1 unit. (Ex. 3, pp. 77, 82.) She was observed over the next two and 1/2 weeks to be generally appropriate when interacting with peers and staff, making better choices and keeping a low profile. (Ex. 3, pp. 82-84.)

Throughout the course of her evaluation at FMC Carswell, the Defendant attended weekly competency restoration classes. Notes from the November 3, 2008 class indicate that the Defendant interacted appropriately with other group members and was able to stay focused on the activity throughout most of the session. (Ex. 4, p.5.) Though she violated class rules by asking a question related to her own case toward the end of the session, she was easily re-directed and did not respond inappropriately. It was felt that she showed a good understanding of courtroom proceedings and was gaining more control over her behavior in the group. (Id.)

Notes from the November 10 class indicate that the Defendant participated fully but veered off topic at one point to discuss her own personal frustration with the length of time that she is being held without proceeding to trial in her own case. She was easily redirected and able to control her behavior for the rest of the session. (Ex. 4, p. 4.)

On November 17, the Defendant again participated fully in her competency restoration class but became visibly irritated when the class reviewed material which she already knew. (Ex. 4, p. 3.) Once again she required redirection at one point when she started to discuss details about her own case which was not relevant to the group, but she reportedly responded appropriately and created no problems for the remainder of the session. (Id.)

On December 8, 2008 it was noted that the Defendant was late for class, as had been her habit, and that she would be confronted if this continued in the future, as her tardiness was disruptive to the other group members. (Ex. 4, p. 2.) During this session, the Defendant participated fully and offered helpful information to new group members concerning court proceedings. She demonstrated a logical thought process, spoke coherently, and maintained normal attention and concentration. Although she was able to control her behavior for most of the group session, she sparked a controversy at one point by muttering something under her breath which resulted in a confrontation with another inmate. (Id.) Staff notes reflect that she was unable to be redirected and spoke over both group facilitators. All group members were dismissed and the Defendant "was informed that this behavior was a violation of group rules, and was a good example of the type of behavior that would not be allowed in court." (Id.) She reportedly indicated her understanding "but maintained a frustrated expression on her face as she walked back to her room." (Id.)

The Defendant's last attendance at competency restoration was on January 12, 2009. (Ex. 4, p. 6.) Records reflect that her participation in that session was good. (Id.)

On or around January 31, 2009, however, as she was awaiting her release from FMC Carswell, the Defendant was involved in a physical altercation and transferred back to the M3 unit. (Ex. 3, p. 81.) In a letter dated February 1, 2009 and addressed to nursing staff, the Defendant maintained that she was attacked by another inmate after other inmates "egged [the inmate] on." (Ex. 3, p. 97; Ex. A-8322.) A psychiatric examination performed the following day showed the Defendant to be alert and cooperative, using speech that was loud and pressured but capable of being interrupted. (Ex. 3, p. 85.) No psychotic symptoms were noted, but the Defendant's mood was described as "angry to tearful" over the injustice of being transferred to M3. (Id.)

Defendant was eventually transferred from M3 for discharge on February 4, 2009. (Ex. 3, p. 86.) Her Discharge Summary, authored by Dr. Kempke, indicates a diagnosis of: (Axis I) Bipolar I Disorder, Most Recent Episode Hypomanic (by history); (Axis 2) Personality Disorder, Not Otherwise Specified with Borderline, Paranoid, and Narcissistic Traits; (Axis 3) Hypothyroid, Glaucoma, Osteoporosis, allergies to Penicillin, Bactrim, Lithium, Tegretol, and Demorol; (Axis 4) Legal problems and lack of social support; and (Axis 5) GAF of 60. (Ex. 3, p. 24.) Dr. Kempke noted that the Defendant was medically and psychiatrically stable upon discharge, but she assigned the Defendant a poor prognosis due to the severity of her personality disorder. (Id.)

EXPERT REPORTS

Dr. Leslie Powers

Accompanying Warden Chapman's Certificate of Recovery is Dr. Powers forensic evaluation, dated January 12, 2009. (Ex. 2.) In discussing the Defendant's mental status, Dr. Powers observed that the Defendant "often spoke in a pressured manner with an elevated tone when complaining or defending herself but when sternly directed, she was able to speak appropriately." (Id. at p. 7.) When asked questions, the Defendant would "frequently offer more information than needed and would venture from the topic if allowed to continue," but Dr. Powers also noted that "she was generally redirected easily." (Id.)

During the course of her evaluation, Dr. Powers' first several meetings with the Defendant were spent listening to the Defendant complain about her restriction to the M1 unit. (Ex. 2, p. 7.) During these conversations, the Defendant's speech was rapid, loud, and run-on to the point that Dr. Powers could not get a word in. Consequently, Dr. Powers advised the Defendant that, "as long as she refused to let me participate in the conversation, I was going to walk away." (Id.) In fact, Dr. Powers reports that she did exactly that on several occasions; however "[a]fter three attempts to talk about her complaints to no avail, [the Defendant] began to speak in a manner that allowed me to converse with her in an appropriate manner." (Id.) According to Dr. Powers, "[f]rom this point on, when Ms. Armstrong would speak in a loud and rapid manner, I would remind her I was going to walk away and she would slow down and lower her voice." (Id.)

Dr. Powers found the Defendant to be an active participant in her Competency Restoration Classes who would frequently raise her hand to volunteer answers. (Ex. 2, p. 8.) Although she would occasionally speak in her usual loud and rapid manner, particularly when complaining about something, instructors were able to easily redirect her. (Id.)

In assessing the Defendant's competence to stand trial, Dr. Powers had "little doubt" that she "possesses a rational and factual understanding of the Court process," as the Defendant showed a "clear understanding" of the pending charges, could "logically discuss the option of accepting a plea agreement versus taking her case to trial," and understood the roles of the various parties to the court proceedings. (Ex. 2, p. 9.) Dr. Powers also noted that the Defendant was "able to ask appropriate questions, comprehend instructions and advice, and engage in decision-making based on advice presented to her." (Id.) Nevertheless, Dr. Powers acknowledged the "constant concern" over the Defendant's "expressed dissatisfaction" with her present counsel and "the affect [sic] this may have on her ability to assist in her defense." (Id.) Dr. Powers reported that, when questioned about this, the Defendant responded, "I am a perfectionist when it come to my freedom. My attorney has never handled a case this serious and it scares me." (Id.)

Based on her evaluation of the Defendant, Dr. Powers rendered the following diagnosis:

Axis I: Bipolar I Disorder, Most Recent Episode Hypomanic (by history)

Axis II: Personality Disorder, Not Otherwise Specified with Borderline, Paranoid, and Narcissistic Traits

Axis III: Hypothyroidism, Glaucoma (by self report) Axis IV: Legal Problems, Lack of Social Support Axis V: Current Global Assessment Functioning = 60

(Ex. 2, p. 9.)

While acknowledging that the Defendant met the diagnostic criteria for Bipolar I Disorder by virtue of her medical history, Dr. Powers found that the Defendant did not satisfy the criteria for a hypomanic or depressive episode during the period of this evaluation. (Ex. 2, p. 9.) In particular, she did not demonstrate any disturbances of sleep or increase in goal-directed behavior, nor was she observed engaging in pleasurable activities having a high potential for painful consequences. (Id.) Indeed, Dr. Powers reported that the Defendant did not engage in any activities at all, except for talking on the telephone and watching television. (Id. at pp. 9-10.)

Dr. Powers further opined that the Defendant's rapid and pressured speech and irritable mood -- which, in the past, had been reported as manifestations of the Defendant's mania -- were better explained as symptoms of the Defendant's personality disorder. (Ex. 2 at pp. 9-10.) In expounding on this conclusion, Dr. Powers wrote the following:

A review of Ms. Armstrong's records indicate pervasive and long standing characterological deficits in her ability to relate and function in social and personal contexts. Previous psychological reports and Court testimony from the last 25 years have described Ms. Armstrong as impaired socially and occupationally, difficult, defensive, demanding, rigid, deceitful, manipulative and hostile. These descriptives are hallmark characteristics of an individual with pervasive characterological deficits.

Ms. Armstrong exhibits traits of Borderline Personality Disorder. She has demonstrated frantic efforts to avoid real or imagined abandonment and she alternates between extremes of idealization and devaluation in unstable and intense interpersonal relationships. This is best demonstrated by her discussions concerning her relationship with her mother where she indicates intense admiration and the need for acceptance and yet, expresses immense anger and negativity toward her mother as the cause of her social and academic problems. As previously noted, the only time she showed any dysthymic emotion was when discussing her attempts to make her mother proud of her.

During the course of this evaluation, Ms. Armstrong was observed to demonstrate paranoid beliefs. She frequently reported beliefs that others were interested in exploiting or harming her. She often stated, "You all are just out to get me because this is a high profile case." She also reported to nursing staff that other inmates on the unit were "trying to frame her so she would get in trouble." She harbored paranoid beliefs regarding the use of psychological testing she was asked to complete stating, "I know how people can use these tests and twist them." As a result of her beliefs, she refused to participate in any formal testing procedures. Finally, nurses reported she frequently accused them of giving her medication she was not prescribed. She has, on several occasions, looked over each pill carefully and then proceeded to smell it before finally taking it as directed.

Ms. Armstrong also exhibits Narcissistic traits. She displays arrogant behaviors and has a sense of entitlement. She demands specific and special treatment from the nurses and is insulting when she does not get this treatment. For instance, during the first few weeks of her evaluation, she demanded that she receive a special mattress and special shoes because of her unique physical needs. During her phone conversations, she has repeatedly voiced her belief that she is different from the other inmates on the unit and does not deserve to be incarcerated at FMC Carswell like the other inmates. She is interpersonally exploitative. She manipulated a staff member into allowing her to make a phone call to an individual who was not on her approved phone list by stating this individual was the attorney on her case. She has also befriended some of the lower functioning inmates in order to obtain personal items from the commissary. She has exhibited a grandiose sense of self and is preoccupied with fantasies of power and success. During a clinical interview she stated she was "one of the best teachers [the school district] had ever seen" even though she admits she could not secure a permanent position with the school district. Regarding her appearance, she stated, "I used be [sic] the prettiest girl in town. Everyone said so." When an attempt was made to persuade her to participate in psychological testing, she reported, "My intelligence score has already been determined to be the one [sic] of the highest you can get. I don't need another test to tell me that." This sense of grandiosity was also noted in her belief that she is the most knowledgeable concerning the best way to defend her case. This was noted during her conversations with her attorney where she often began sentences with, "You had better..." and she would make frequent demands of him to engage in legal actions under her direction. She also stated, "I don't feel prepared for trial with this attorney. I would like to go into Court and act like a lady but I feel like someone has to be aggressive and my attorney is not, so I am."

(Ex. 2, pp. 10-11.)

As to the ultimate question of competency, Dr. Powers opined that the Defendant is competent to proceed to trial. The Defendant, Dr. Powers wrote, "clearly possesses a factual and rational understanding of information required of a competent defendant" and has "demonstrated her ability to comport her behavior in formal settings and to follow directions given by those in authority." (Ex. 2, p. 11.) As to the Defendant's ability to assist properly in her own defense -- the issue which was the focus of this Court's prior competency determination -- Dr. Powers opined that the Defendant has "demonstrated the ability to participate in defense planning with her attorney although her actual strategy is clouded by her personality deficits." (Id.) Dr. Powers elaborated:

One of the most significant barriers to assisting in her defense has been her argumentative style of speech. She has a tendency to talk rapidly in a loud manner and will not pause long enough for the listener to respond, particularly when discussing issues that are stressful to her. If allowed to continue, she also has a propensity to derail from the topic at hand. During the course of this evaluation, she has consistently responded more appropriately when she is given firm boundaries regarding this behavior. When she is aware that her presentation is not in her best interest, she is able to modulate her tone and stay on topic.

(Id.) In conclusion, Dr. Powers opined that, while the Defendant meets the criteria for a mental disease or defect, the latter does not affect her ability to understand the nature and consequences of the proceedings or to assist properly in her own defense. (Id.)

Dr. Frank Dattilio

In March of 2009, the Defendant underwent a psychological evaluation and competency assessment performed by Frank M. Dattilio, Ph.D., a clinical and forensic psychologist. This evaluation was performed at the request of defense counsel and Dr. Sadoff, with particular focus on determining whether or not the Defendant can rationally assist her attorney in preparing a defense. (See Ex. A-8162.)

Dr. Dattilio initially met with the Defendant on March 26, 2009 at the Erie County Prison for the purpose of conducting a clinical interview. Having been led into the examining room in shackles, the Defendant "immediately became irate" with the idea that she would have to remain restrained in that fashion throughout the interview. She refused to participate in any psychological testing until, through a request to the prison officials, she was eventually unshackled. (Ex. A-8170.)

Thereafter, Dr. Dattilio found the Defendant to be less agitated but still displaying variable emotions with sporadic crying. (Ex. A-8171.) He found it difficult to understand what she was saying, as her speech was "incessant[ ]" and "pressured," "skirt[ing] along from topic to topic in an illogical sequence of thought, often rambling incessantly." (Id.) When asked to repeat was she was saying, the Defendant was unable to comply. (Id.) Any attempt by Dr. Dattilio to talk over or limit the Defendant's speech was "met with a reaction of intense anger and hostility." (Id.)

Despite much difficulty, Dr. Dattilio was able to administer the Minnesota Multiphasic Personality Inventory-2 (MMPI-2). Because the Defendant was unable to concentrate long enough to read and respond to the score sheet independently, Dr. Dattilio administered the test by reading the questions to her and capturing her responses, then having her review the responses for accuracy. (Ex. A-8171.) This process occurred over the course of many hours preceding and following the dinner hour. (Id.) Despite this method of administration, Dr. Dattilio viewed the validity scores as reflecting the Defendant's openness and candidness in her responses, with no indication of deceptiveness on her part or attempting to portray herself in a relatively better or worse light. (Ex. A-8173.)

Dr. Dattilio also convinced the Defendant, again with great difficulty, to participate in the Folstein Mini Mental Status Examination (MMSE) and the Competency Screening Test (CST). (Ex. A-8171.) Her score on the MMSE was 30/30, indicating that the Defendant was alert, responsive and oriented to time, place and person. (A-8172.) In commenting on the Defendant's mental status, Dr. Dattilio observed that, "[w]hile she was devoid of any overt psychotic ideation interfering with her primary thought processes, psychotic content did surface as the interview progressed, particularly as her mania became more pronounced and she rambled about the details of her case." (Id.) Dr. Dattilio found her mood and affect to be "quite volatile and manic," and this lasted "for hours on end." (Id.) He described her speech as uncontrolled and rambling on like a "runaway train" (id.) and her thought content as "often irrational and disconnected." (Id.) Though the Defendant denied hallucinations or delusions, she reportedly made statements to the effect that she could put spells on people she didn't like and that they have "dropped over dead." (Id.)

Having reviewed the Defendant's detailed mental health history, Dr. Dattilio found "strong evidence" that the Defendant "has suffered from a major affective illness ranging from Bipolar Disorder, Manic/Depressive Type to Cyclothymia." (Ex. A-8173.)

While reports indicate that "she has displayed some psychotic features in the past," Dr. Dattilio wrote, "the more predominant aspect of her illness has always been her variable mood that has ranged from depression to manic symptoms." (Id.) From a longitudinal standpoint, Dr. Dattilio found "strong, convergent validity" of the existence of bipolar illness which, at the very least, has been "a major part of Ms. Diehl-Armstrong's diagnosis against the backdrop of a [sic] paranoid, borderline, and narcissistic personality traits." (Id.) Based on his own observations and clinical interview, Dr. Dattilio felt convinced that the Defendant does, indeed, suffer from a bipolar illness, manic type. (Id.)

Dr. Dattilio found that the Defendant's results on the MMPI-2 suggested the profile of "a severely paranoid personality makeup with a psychotic-like state or borderline condition." (Ex. A-8174.) "What was most pronounced," he observed, "is that Ms. Diehl-Armstrong tends to be hostile and agitated when she feels trapped or threatened, causing her to react in manipulative and self-centered ways." (Id.) Dr. Dattilio also noted some indication of impairment with judgment and deterioration with respect to her impulse control. (Id.) He interpreted the MMPI-2 results as also indicating that the Defendant suffers from moderately severe depression and anxiety which, he felt, is "likely to be displayed in dramatic ways." (Id.) He found the Defendant "quite unwilling to admit to any emotional conflicts" and apparently lacking a good repertoire of coping skills. (Id.) "What is often considered a chip on the shoulder or wounded pride syndrome with her profile," he wrote, "indicates that tempter tantrums are likely to have been a major way of getting what she has wanted during her upbringing." (Id.)

"Overall," Dr. Dattilio concluded, it is my impression that Ms. Diehl-Armstrong's profile is typical of a personality disorder, NOS, with strong borderline, paranoid, and narcissistic traits. She also has bipolar illness as well. Ms. Diehl-Armstrong's diagnoses makes it extremely difficult for her to function interpersonally, and in this particular case, has interfered with her ability to work effectively with her legal counsel in developing a viable defense.

(Ex. A-8174.)

With respect, more specifically, to court proceedings, Dr. Dattilio reported that the Defendant's participation in the CST showed that she understood the serious nature of her alleged crime and had a basic understanding of both the trial process and the roles of the various trial participants. (Ex. A-8174.) Moreover, while she displayed an appreciation and reasoning concerning the grounds for developing a defense, Dr. Dattilio found her reasoning to be "quite distorted." (Id.) He noted, for example, that she believes that she is being conspired against and that she has been wrongfully accused because "a crackhead who tried to rob her is trying to save his ass from going to prison." She further states that she can easily prove this, but her attorney does not want to listen to her. She is completely obsessed with the belief that she is not being represented appropriately by her current legal counsel and is under the delusion that high profile attorneys, such as "Johnny Cochran-type attorneys" are interested in taking her case because there is money in it. Therefore, it is her desire to fire her attorney and hire high profile counsel. Although, when asked who this counsel is, she was unable to say, other than simply to state that she needs money from her estate in order to hire effective counsel.

(Id.) Thus, even though the Defendant manifested an understanding of the trial process and its participants, Dr. Dattilio felt she "perceives that it is a forum for vindicating herself by proving the validity of her notion that she is being conspired against." (Ex. A-8174-8175.)

Since the focus of his consultation related to the Defendant's ability to assist her present counsel, Dr. Dattilio considered that relationship. He observed that

[d]uring the examination, Ms. Diehl-Armstrong was very resistant to my attempts to explain the difference between her views and the nature of available defenses, particularly those that her attorney is proposing. During my attempts to explain this to her, she manifested increasing agitation and difficulty in attending to relevant information. While Ms. DiehlArmstrong was able to demonstrate a recognition and appreciation of the importance of legal counsel in presenting a defense, she does not believe that her current legal counsel is capable, nor competent, to represent her and she demands new counsel.

(Ex. A-8175.)

Part of Dr. Dattilio's consultation involved a meeting with both the Defendant and Mr. Patton, her current attorney, which occurred on March 27, 2009. Dr. Dattilio described the Defendant's conduct as extremely agitated and degrading toward counsel in his absence. (Ex. A-8175.) In his presence, she greeted him cordially but then "started on a tirade about how he is not doing what he is supposed to do by following up on certain leads that she has given to him." (Id.) Having witnessed this exchange, Dr. Dattilio described the interaction as follows:

Attorney Patton was extremely professional and patient with Ms. Diehl-Armstrong, who hardly allowed him to get a word in edgewise. Attorney Patton attempted numerous times to reason with Ms Diehl-Armstrong, but it was clear to me that her mania, along with her anger and belligerence left little room for him to get through to her. During the process, Ms. DiehlArmstrong appeared to escalate, becoming quickly derailed and going off on various tangents. She was extremely difficult to center and even after given ample time to ventilate, she simply went on excessively without rest. Ms. Diehl-Armstrong became so obsessed with how her civil attorney, Lawrence A. D'Ambrosio, Esq., is stealing from her and ruining her life that it dominated the entire interview period, despite my efforts to redirect her focus.

On numerous occasions in which Attorney Patton attempted to structure his questions in order to work with Ms. Diehl-Armstrong in building a defense, this was met with opposition, belligerence, and such a diatribe of grandiose statements that it became clear that a productive conversation was futile. This session was concluded with Attorney Patton and myself ending the interview. As we left the interview room, Ms. Diehl-Armstrong continued on her rampage as though we were still present and listening to her attentively.

(Ex. A-8175.)

As to the ultimate issue of the Defendant's competency, Dr. Dattilio opined that, while the Defendant is competent in the basic knowledge of a court proceeding, she is not competent to rationally assist her attorney in building a viable defense due to her serious mental illness -- i.e., her bipolar illness which, at present, remains unmedicated. (Ex. A-8175.) Additionally, Dr. Dattilio opined, the Defendant "maintains a diagnosis of a Personality Disorder, NOS, with strong borderline, paranoid and narcissistic traits." (Id.) He found that the Defendant lacks insight into her mental illness and maintains a delusional belief that she can turn her illness "on and off at will" (Id.), and he concluded that her illness would continue to interfere with her ability to work effectively with her counsel unless she receives treatment. (Ex. A-8176.) Complicating matters, Dr. Dattilio opined, is the fact that the Defendant has a long history of difficult relationships with men and her current counsel is male. (Id.) Dr. Dattilio observed that, during previous episodic occurrences, the Defendant has apparently responded well to psychotropic medication and treatment; however, once returned from the hospital, if she is not presented quickly for trial, the Defendant decompensates in the interim and chooses not to take medication. (Id.) Dr. Dattilio opined that the Defendant "will clearly need to be monitored effectively and have her case heard in an expedient fashion in order to avoid any future deterioration." (Id.) He cautioned, however, that, even with this strategy, there is no guarantee that she will be able to assist her legal counsel in developing a reasonable defense. (Id.)

Dr. Robert Sadoff

The Defendant was also examined by Dr. Sadoff on March 13, 2009 over the course of approximately three hours. (Ex. A-8156.) Dr. Sadoff reported on his examination in a letter to defense counsel dated April 15, 2009. (Ex. A-8156-8159.)

Based on his most recent observations of the Defendant, Dr. Sadoff opined that she has a grasp of her case and her defense from an intellectual standpoint and, when she is not manic, is able to work with her attorney in preparing her defense even though she continues to talk to reporters against counsel's advice. (Ex. A-8157.) Dr. Sadoff described the Defendant's speech during his examination as pressured, with flight of ideas and "non-stop." (Id.) He noted there are times when she shows genuine affect, as when she cries or becomes angry and upset or frightened. (Id.)

Dr. Sadoff found it "clear" from his examination that the Defendant does have bipolar disorder and that she was manic "much of the time" that he was with her. (Ex. A-8158.) "When she is manic," Dr. Sadoff noted, "she does not want to have [present defense counsel] as her attorney," and, he opined, cannot work with defense counsel "because of her psychotic condition." (Id.) Dr. Sadoff concluded:

Thus, it is my opinion at the present time, within reasonable medical certainty, that Marjorie Diehl-Armstrong has bipolar disorder and personality disorder, not otherwise specified, with paranoid, borderline and narcissistic features, and that when she is psychotic she becomes manic and cannot work with you in preparing her defense. When she is not manic and not psychotic, she can understand the nature and consequences of her current legal situation and could work with you if she chooses to do so.

Thus, it is a day to day situation about her competency, and she should be assessed for competency on the day of her hearing or her trial. It is best if she were to be given medication to stabilize her bipolar condition and then have her legal hearing or trial shortly after her discharge from the hospital when she is stabilized.

(Ex. A-8159.)

THE COURT HEARING

The Court held an evidentiary hearing on April 27, 2009, at which time it took testimony from Dr. Powers, Dr. Dattilio, and Dr. Sadoff. Each of these mental health professionals testified consistently with their written reports, as I will discuss in more detail.

Dr. Powers

In general, it is Dr. Powers' opinion that the Defendant's current symptomatology is best explained by her diagnosis of a personality disorder, not otherwise specified, with borderline, narcissistic and borderline traits. It is further Dr. Powers' opinion that the Defendant has a degree of control over her behavior sufficient to render her competent to stand trial.

Central to this opinion is Dr. Powers' view that the Defendant's bipolar disorder was in a state of relative quiescence during her incarceration at FMC Carswell and that the symptoms observed during that time did not suggest the presence of any mania. While Dr. Powers credits the Defendant's diagnosis of bipolar disorder by history, she did not feel comfortable diagnosing the illness herself because, in her view, the Defendant did not manifest enough of the required criteria to warrant such a diagnosis during evaluation at FMC Carswell. (Tr. 63-64.)

Dr. Powers referred to the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, TEST REVISED("DSM-IV-TR") (4th ed. 2000), which discusses "Criteria for Hypomanic Episode," (see id. at 368), and lists as one criterion "[a] distinct period of persistently elevated, expansive, or irritable mood, lasting through at least 4 days, that is clearly different from the ususal nondepressed mood." (Id.) Dr. Powers testified that, of these three types of mania (elevated, expansive, or irritable), the only variety that arguably could have applied was "irritable" mania. (Tr. at 66.)

According to the DSM, when the subject's persistent mood is irritability, the episode can be considered hypomanic if at least four of the following symptoms are present to a significant degree:

(1) inflated self-esteem or grandiosity

(2) decreased need for sleep (e.g., feels rested after only 3 hours of sleep)

(3) more talkative than usual or pressure to keep talking

(4) flight of ideas or subjective experience that thoughts are racing

(5) distractibility (i.e., attention too easily drawn to unimportant or irrelevant external stimuli)

(6) increase in goal-directed activity (either socially, at work or school, or sexually) or psychomotor agitation

(7) excessive involvement in pleasurable activities that have a high potential for painful consequences (e.g., the person engages in unrestrained buying sprees, sexual ...


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