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United States of America v. William Mcfall

February 4, 2011

UNITED STATES OF AMERICA,
v.
WILLIAM MCFALL DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION

Defendant William McFall ("McFall" or "defendant") filed a motion to determine competency (ECF No. 54) on February 9, 2010. In this memorandum opinion the court considers whether defendant is incompetent to stand trial based upon his assertion that he is linguistically incompetent.

I. Background

On November 27, 2007, a grand jury returned an indictment against defendant on one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The indictment alleged that defendant illegally possessed child pornography on or about May 7, 2007. Defendant maintains that he is a profoundly deaf man with borderline intelligence and a second grade reading level. Based upon those assertions, defendant requested a hearing to determine his competency to stand trial.

A competency hearing was held on September 14, 2010, pursuant to 18 U.S.C. § 4241(a) ("§ 4241"). The court heard testimony from witnesses Susan Hodges ("Ms. Hodges") and Lynn Mosallem ("Ms. Mosallem"), who were called by the government, and from Jennifer Craig ("Ms. Craig") and Dr. Jean Andrews ("Dr. Andrews"), who were called by defendant. During the competency hearing, the court admitted all exhibits attached to the parties' materials at ECF Nos. 54, 57, 58, 62, 63, 64, and 65. The court will consider the evidence presented during the competency hearing, as well as the submissions of the parties. On this 4th day of February, 2011, the court makes the following findings of fact and conclusions of law with respect to defendant's competency to stand trial.

II. Findings of fact

A.McFall's background

1. McFall was born with a twenty percent hearing loss in both ears, but suffered a more profound loss around the age of four or five when he was beaten and sustained a head injury. (Gov'ts Resp. (ECF No. 58), Ex. 1 at 1.) Following the head injury, defendant lost eighty percent of his hearing in the right ear and one hundred percent in the left ear. (Id.) Defendant received a hearing aid for his right ear at approximately the age of six or seven. (Gov'ts Resp., Ex. 3 at 1.) Defendant wears a 2008 Phonak Super Front PP-C-4 BTE hearing aid in his right ear. (Gov'ts Resp., Ex. 1 at 1.) Defendant suffers from tinnitus, or ringing in the ears, has constant drainage in his right ear for which he receives ear drops and antibiotics, and has a history of dizziness for which he does not take any medication. (Hr'g Tr. September 14, 2010 ("Tr.") (ECF No. 70) at 13.) Defendant communicates through his hearing aid and accompanying visual clues, such as lip reading. (Gov'ts Resp., Ex. 1 at 1.) He is not able to communicate through American Sign Language. (Id.) He communicates on the telephone using a t-coil connected to his hearing aid. (Id.)*fn1

2. Defendant attended public school, enrolled in special education services including speech class at the Shenango School, and graduated from New Castle Senior High School. (Def.'s Supp. (ECF No. 62), Ex. 1 at 3; Gov'ts Resp., Ex. 3 at 1.)

3. After graduating with from high school, defendant secured a job at a car wash. (Def.'s Supp., Ex. 1 at 4.) Defendant changed jobs and began working as a janitor at the courthouse in Lawrence County, Pennsylvania, a position he has held for thirty-three years. (Def.'s Mot. to Determine Competency (ECF No. 54), Ex. 3 at 4.) Defendant pays his taxes, id., takes care of his own finances via check or credit card, shops for groceries, and takes care of his own car. (Tr. at 109.) Defendant fathered and financially supported a son until the son was eighteen. (Def.'s Mot. to Determine Competency, Ex. 3 at 3-4.) His son is now approximately twenty-six or twenty-seven years old. (Tr. at 109.) Defendant currently lives with his aunt, who has cared for him since the age of five, and helps her around the house. (Def.'s Mot. to Determine Competency, Ex. 3 at 2,

4.) Defendant owns and cares for two Chihuahuas named Suzie and Sassy. (Def.'s Supp., Ex. 1 at 4.) Defendant does not belong to any social clubs for the deaf, play in any sports leagues for deaf individuals, and generally leads an isolated social life with few outlets for social interaction. (Id. at 5.)

B.Dr. Andrews' June 11, 2010 session

4. On June 11, 2010, Dr. Andrews, an expert in linguistic deaf education and linguistic competence with a Ph. D. in speech and hearing sciences, conducted an evaluation of McFall. (Def.'s Supp., Ex. 2 at 1.) At the beginning of the session, Dr. Andrews told defendant that she was on his team, she was there to help his case, and she could only help defendant and not hurt him. (Tr. at 204.) The evaluation was taped. During the evaluation, McFall was able to carry on conversations with Dr. Andrews. He paused a few times to ask her to repeat certain words. (See generally Def.'s Supp., Ex. 9.) Defendant engaged in an extended conversation about his favorite T.V. shows and movies, his difficulty reading captions, and the use of surround sound and amplifier systems to increase his viewing experience, including where he could purchase those systems (e.g., RadioShack or Best Buy). (Id. at 02:10.) Defendant discussed other pastimes, including going to the park, id. at 04:50, and shopping online through EBay, commenting that he buys "a lot of stuff" on EBay. (Id. at 06:06.) Defendant engaged in a conversation about the BP oil spill and its impact on the environment, id. at 11:30, and later explained he drove, independently, roughly one hour from his home in New Castle, Pennsylvania, to the session with Dr. Andrews in Pittsburgh, Pennsylvania. (Id. at 18:20.)

5. Dr. Andrews recited several sentences containing legal verbiage and directed defendant to repeat those sentences back to her. (Id. at 40:53.) After each sentence, Dr. Andrews asked defendant the meaning of particular legal words used in the sentences. (Id.) Defendant did not know the meaning of the following words: indictment; charged; count; penalties; imprisonment; procedure; prior conviction; release; pretrial service; and arraignment. (Id. at 40:53-47:40.) Defendant did not understand the phrase "right to remain silent," id. at 1:07:20, and expressed confusion regarding whether he was required to answer questions posed by police officers, indicating, "they will probably take me in jail," if he refused to answer their questions. (Id. at 1:20:20.)

6. At the end of the session, Dr. Andrews asked defendant if he wanted to say anything concerning what might help his case. Defendant made the following statements:

I wish they would give me a second chance . . . I made a mistake one time . . . I learned my lesson . . . why did they put it there . . . put us into this . . . it's wrong . . . they should go after the people who put it there . . . they should have warned us . . . it's wrong . . . they should've just warned us. (Id. at 1:23:25.)

C.Audiologists' testimony

7. During the competency hearing, the court recognized Ms. Hodges as an expert in the field of audiology. (Tr. at 8.) Ms. Craig, a licensed audiologist, is employed by the Western Pennsylvania School for the Deaf and was not formally offered as an expert by defendant during the competency hearing. The court, however, will recognize her as an expert in the field of audiology.

8. Each audiologist performed various tests to assess defendant's hearing abilities. (See Def.'s Mot. to Determine Competency, Ex. 1; Gov'ts Resp., Ex. 1.) The audiology test results and conclusions reached by each audiologist were consistent. (Tr. at 47.) Ms. Hodges testified that with McFall's hearing aid on, in a quiet room, facing away from the speaker, and with no background noise, McFall responded with 88% comprehension when presented with a list of speech discrimination words (i.e., a twenty-five-word list of one-syllable words) at a conversational decibel level. (Tr. at 19-20.) When facing the speaker, defendant scored 100% with the same list of words, despite the addition of background noise. (Id. at 20.) Defendant performed at a higher rate of accuracy on the speech discrimination test when he was provided visual cues, such as lip-reading, regardless whether background noise was present. (Id.)

9. Ms. Craig stated that with his hearing aid on in quiet conditions, defendant scored 76% in speech recognition, and 44% with added background noise. (Id. at 62.)*fn2 When conducting that test, defendant was not looking directly at Ms. Craig. (Id. at 77.)*fn3 Ms. Craig did not test defendant's ability to lip read (i.e., understand speech via visual cues). (Id. at 64.) Ms. Craig testified that only 30% of general sounds used in speech can be lip read, id. at 83, but Ms. Hodges explained she has personally experienced individuals who can lip read 100% of the words on a speaker's lips. (Id. at 38-39.) Ms. Craig admitted that defendant uses lip reading as an assist to him in attempting to hear what is being said, but he never relies on lip reading 100%. (Id. at 83.)

10. During testing, the audiologists were able to converse with defendant and obtain background information from him. (Id. at 48, 55-56.) Defendant was able to follow questions that were asked of him by Ms. Hodges and he responded appropriately to each question. (Id. at 48.) Ms. Hodges testified that with his hearing aid on and facing the speaker in a quiet environment, defendant communicated "very well" and "conversation went quite smoothly." (Id. at 21.) This testimony is consistent with the court's visual review of Dr. Andrews' session with defendant. (See Def.'s Supp., Ex. 9.)*fn4

11. While Ms. Hodges did not test defendant's capacity to follow running speech in her audiologic evaluation, tr. at 41, defendant was able to follow running speech directed at him during his session with Dr. Andrews. (See Def.'s Supp., Ex. 9.) During Ms. Hodges evaluation, she did not assess defendant's ability to hear and understand legal terminology. (Tr. at 49.)

12. Defendant has a t-coil setting on his hearing aid to assist him when he uses the telephone, or to hear through an infrared system in the courtroom. (Id. at 15-16.) A t-coil is a tiny coil wire in the hearing aid that acts like an antenna.

The typical use for a t-coil is the telephone. . . . [The] t-coil connects with a magnet in the telephone to allow the hearing impaired person to hear directly from the telephone without any interference. Likewise, in [the] courtroom, there's an infrared system. And by wearing the neck loop and using the receiver, [defendant] can place his hearing aid on the t-coil switch and it will directly bring the sound of the courtroom to his hearing aid without any interference in the room.

(Id. (alteration added).) Prior to the competency hearing, Ms. Hodges visited the courtroom and tested the neck loop with different hearing aids to make sure the signal was working properly and that there was not any static. (Id. at 32.) During the exercise, Ms. Hodges did hear static through the hearing aid, but testified the static was "very, very minimal," and on a t-coil, "you always get a little bit of static." (Id.) Ms. Hodges stated that defendant should be used to hearing minimal static, id., and the minimal static transmitted through the t-coil would "not be anywhere near" the decibel level of background noise presented to defendant during the audiologic evaluation. (Id. at 33.) Both audiologists testified that the courtroom is a quiet environment. (Id. at 23-24, 81.) Ms. Craig, however, did not evaluate the courtroom's infrared system with respect to its abilities to assist defendant's hearing during court proceedings. (Id. at 83.)

13. The infrared system transmits what is said into the courtroom microphones directly into defendant's hearing aid. (Id. at 22.) For defendant to hear properly someone who is not speaking into a courtroom microphone, he would have to switch his hearing aid off the t-coil setting. (Id. at 23.)

14. Ms. Hodges made several recommendations with respect to courtroom accommodations to assist defendant in hearing and understanding the proceedings. Ms. Hodges recommended the court adopt the following accommodations during court proceedings:

(1) use the infrared system, neck loop and t-coil so defendant can hear at an optimum level; (2) allow defendant to observe the speakers mouth in close proximity to where he is seated (i.e., permit visual cues); (3) require all speakers to speak clearly, slowly, and in a normal tone of voice; (4) allow defendant to cue the speaker, counsel, or the court when he does not understand or hear what is said; (5) provide ideal lighting to view the speaker; and (6) reduce all background noise. (Id. at 22-23; see Gov'ts Resp., Ex. 1 at 3.) Ms. Hodges testified ...


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