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United States v. Robertson

United States District Court, E.D. New York

February 9, 2015



KIYO A. MATSUMOTO, District Judge.

Before the court are applications from the government and the defense counsel for a finding regarding defendant Colette Robertson's competency to stand trial and/or enter a plea in this action. For the reasons discussed below, the court finds that Ms. Robertson is able to "understand the nature and consequences of the proceedings against [her]" and "assist properly in [her] defense, " 18 U.S.C. § 4241(d), and therefore is competent to stand trial and/or enter a plea.


On August 16, 2013, a grand jury charged defendant with eight counts of conspiracy to sexually exploit children, sexual exploitation of a child, and attempted sexual exploitation of a child, all in violation of 18 U.S.C. § 2251. ( See ECF No. 13, Indictment.) On August 5, 2014, defense counsel filed a report from Marc Janoson, Ph.D., in which Dr. Janoson concluded that defendant was not competent to enter a plea. (ECF No. 61 (the "Janoson Report").) At the request of the government ( see ECF No. 63), the court ordered defendant to submit to a psychological examination with Barry Rosenfeld, Ph.D., in advance of an evidentiary hearing pursuant to 18 U.S.C. § 4241. (ECF No. 63; see also Minute Entry dated 9/30/14; ECF No. 65-1; Report of Dr. Barry Rosenfeld (the "Rosenfeld Report").) On October 16 and November 5, 2014, the court conducted a hearing with testimony from Drs. Janoson and Rosenfeld to determine whether defendant is competent to stand trial and enter a plea (ECF Nos. 69-70, Transcripts of 10/16/14 and 11/5/14 Hearings), after which the parties submitted post-hearing briefs. ( See ECF No. 71, Letter from Paul Martin, Esq. ("Def.'s Letter"); ECF No. 72, Gov't Post-Hr'g Mem. of Law; ECF No. 74, Gov't Letter in Opp. to Def.'s Letter.)

I. The Competency Hearing

A. Defense Witness: Marc Janoson, Ph.D.

Dr. Janoson, a licensed clinical psychologist with a specialty in forensic psychology and assessment, was called by the defense after having met with and tested defendant over three days at the request of her counsel in order to assess whether she was competent to enter a plea. (ECF No. 69, Transcript of Oct. 16 Hearing ("Oct. 16 Tr.") at 6-7.) Dr. Janoson has been qualified as an expert in forensic psychology on numerous occasions but, as of the date of the hearing, has only testified for the defense. (Id. at 6, 32.) Dr. Janoson met with defendant on three occasions for a total of almost ten hours, during which time he interviewed her and administered three psychological assessments, the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), the Personality Assessment Inventory (PAI), and the MacArthur Competence Assessment Tool-Criminal Adjudication (MacCat-Ca). (Id. at 7-8; see also Janoson Report at 4.) Based on the results of his evaluation, Dr. Janoson issued a report dated July 22, 2014, admitted at the hearing as Defense Exhibit A, in which he diagnosed the defendant with paranoid schizophrenia and opined that she was not competent to enter a plea. ( See Janoson Report at 2.)

Defendant relayed a wide range of background information to Dr. Janoson, including her work, her immigration to this country, and her personal relationships with her daughter and Mr. Yard, a co-defendant in this case. (Oct. 16 Tr. at 11, 37). Defendant also told Dr. Janoson that she experiences auditory hallucinations that began after her arrest in this case, and that she had been the victim of sexual abuse as a child and was physically and emotionally abused by Mr. Yard. (Id. at 12, 38.) At the time she saw Dr. Janoson, defendant indicated that she was taking Seroquel, an antipsychotic medication, and Celexa and Wellbutrin, both antidepressant medications. (Id. at 12.) Dr. Janoson acknowledged that the condition with which he diagnosed defendant, schizophrenia, typically manifests in individuals between their late teenage years and mid-30s, and that defendant did not report any prior psychiatric history, nor present several other typical signs of schizophrenia, including disorganized speech, frequent derailment or incoherence, grossly disorganized behavior, or diminished emotional expression. (Id. at 36-40.)

Dr. Janoson administered the MMPI-2 to defendant twice and submitted each assessment to The Caldwell Report for scoring. (Id. at 10, 13.) Both times, the computer-scored test reports were marked invalid because defendant had given so many atypical responses to the test questions.[1] (Id. at 13-14.) Dr. Janoson testified that such an outcome could reflect either exaggeration by defendant or a disturbance so severe that her responses were "off the charts." (Id. at 13.) The Caldwell Report has a less rigid approach to scoring than Pearson, the other scoring service for the MMPI-2, and thus, has a higher threshold for atypical responses before invalidation of a protocol. (Id. at 34.)

After receiving the second invalidation, Dr. Janoson reviewed the first profile to interpret the data as best he could, despite the warnings contained therein. (Id. at 14, 17, 43-44.) Dr. Janoson testified that, based on his training by Alex Caldwell, the author of the Caldwell Report, and David Nichols, the author of Essentials of MMPI-2 Assessment, he would regularly override scoring rejections of MMPI-2 assessments where other scales - namely, the VRIN, TRIN, F(p), and/or the Gough index - were in an acceptable range. (Id. at 14-18.) The VRIN (Variable Response Inconsistency) and TRIN (True Response Inconsistence) scales measure whether the subject answers the content and the form of the questions consistently, and, according to Dr. Janoson, defendant's scores on both scales were within the normal range. (Id. at 15-16.) Although defendant's score on the F(p) (Infrequent Psychopathology) scale was high, Dr. Janoson chose to interpret the profile because there was some overlap between the F(p) scale and the FAMILY scale; accounting for this overlap brought defendant's F(p) score down to a level that was high but interpretable, according to Dr. Janoson. ( See id. at 16-17, 32.) Dr. Janoson interpreted these scales as demonstrating that defendant was actually responding to the test and not answering randomly. ( See id. at 22, 47.) He testified that it was unlikely that a person could produce a profile similar to defendant's by guessing what would make him or her appear to be sick. (Id. at 50.)

Dr. Janoson also testified that he saw in defendant's MMPI-2 profile what is called a "psychotic V configuration, " where Scales 6 (Paranoia) and 8 (Schizophrenia) are elevated, but Scale 7 is considerably lower. ( See id. at 19.)

The PAI, the second assessment that Dr. Janoson administered to defendant, similarly indicated that defendant was over-reporting her distress and that any hypotheses drawn from the report may not be valid.[2] (Id. at 19.) Similarly to the MMPI-2, the results gave no indication of confusion, reading difficulties, or careless responding by the defendant. (Id. at 51.) Notwithstanding issues regarding invalidity and over-reporting, the computer-generated report also noted the most probable diagnosis of the subject (schizophrenia, paranoid type), and the psychotic V configuration was also present, paralleling the MMPI-2. (Id. at 20.)

The third test administered to defendant was the MacCat-Ca, which, unlike the MMPI-2 and PAI, contains open-ended questions that would "assess Ms. Robertson's competence-related abilities." (Id. at 24.) Unlike the MMPI-2 and the PAI, the MacCat-Ca does not have a scale to assess exaggeration or malingering. (Id. at 54.) Dr. Janoson scored defendant's responses and found that defendant was deficient on the "understanding" and "appreciation" subtests. ( See Janoson Report at 10.)

On cross-examination, Dr. Janoson testified that in response to a question asking defendant to assess the likelihood of her pleading guilty relative to other similarly-situated defendants, Ms. Robertson responded that she wasn't sure. (Oct. 16 Tr. at 55.) When prompted for her reasons, she responded that, while the prosecutor was currently discussing 15 years with defendant, her charges were "30 years stuff, " she didn't think she should go to jail, and she wanted to be deported right away instead. (Id. at 55.) Despite defendant's apparent understanding of the minimum and maximum sentences, as well as the consequence of deportation if she is convicted, Dr. Janoson scored her response with zero out ...

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