Full opinion text
ORDER ORINDA D. EVANS, District Judge! This post-conviction federal death penalty case, in which a motion under 28 U.S.C. § 2255 has been filed, is before the Court on motions captioned as follows: (1) motion to disqualify Judge Orinda D. Evans, (2) motion to randomly assign Defendant’s 28 U.S.C. § 2255 habeas proceeding to another judge, (3) motion to compel BOP to cooperate with ongoing investigation of this case, (4) motion to cease court’s continued direction, restrictions upon and interference with the work of habeas counsel, (5) petitioner’s objection to the October 2, 2001 statute of limitations and being required to file his 28 U.S.C. § 2255 motion prior to the completion of all necessary investigation which had been hindered by the ruling of the court, or in the alternative, Petitioner’s renewed motion to toll the statute of limitations or alternative request for liberal permission to amend. This case is also before the Court for review under Rule 4 of the Rules Governing § 2255 Proceedings in the United States District Courts. The following facts in the record are undisputed unless noted otherwise. On the morning of December 21, 1994, D’Antonio Washington, a corrections officer at the United States Penitentiary in Atlanta, Georgia, was killed by an inmate. The murder weapon was a ballpeen hammer which struck several fatal blows to the back of Officer Washington’s head. The Defendant, Anthony Battle, was arrested immediately after the murder. Defendant was an inmate at USP-Atlanta, serving a paroleable life sentence for the murder of his wife. On the evening of December 21 Defendant was transferred to the Federal Correctional Institute in Talladega, Alabama. On January 26, 1995, FBI agents Frank Pickens and Tyrone' Smith interviewed Defendant at FCI Talladega. According to Agent Pickens Battle orally confessed and said he had killed Washington because he was angry at the guards and Washington was the first guard he saw that day. On February 14, 1995, Stephanie A. Kearns and John R. Martin were appointed by the Court to represent the Defendant. Ms. Kearns is the Director of the Federal Defender Program, Inc., for the Northern District of Georgia, and Mr. Martin is a criminal defense lawyer in private practice in Atlanta, Georgia, who is experienced in trial and post-conviction work in death penalty cases. On April 24, 1995, Defendant attacked and injured a corrections officer at FCI Talladega. In mid-August 1995, Dr. Dave M. Davis, a psychiatrist, interviewed Defendant at FCI Talladega for several hours at the request of the defense team. Defendant described his delusions which he claimed controlled his behavior. Based on this interview, and also upon review of a 1987 report on the Defendant which had been prepared at FCI Butner, Dr. Davis made a diagnosis of paranoid schizophrenia, continuous, with prominent negative symptoms. He also made a diagnosis of polysubstance dependence, currently in remission. Tr.2072. Dr. Davis furnished a written report to defense counsel on August 15, 1995, reporting these conclusions. See Docket No. 363, also Sealed Docket No. 363. The indictment was filed on November 21, 1995. Defendant was arraigned on December 4, 1995 and entered a plea of not guilty. On that same date his counsel filed a notice of intention to rely upon defense of insanity at the time of the alleged offense. The government filed a motion for psychiatric examination under 18 U.S.C. § 4241 (competency) and 18 U.S.C. .§ 4242 (sanity). This motion, was granted and Dr. Sally C. Johnson, chief psychiatrist at FCI Butner,- was designated by the Court to conduct the examination. . . - • Defendant arrived at FCI Butner on January 10, 1996, and remained there until early May 1996. During this time Dr. Johnson and her assistant, Dr. Mark Ha-zelrigg (a psychologist) interviewed Defendant and administered numerous tests designed to measure his cognitive and neurological functioning and to determine the presence or absence of psychosis. During the interviews Defendant stated at times that he believed the government had placed implants in his body to monitor him,' control his thoughts, and inflict pain upon him. Drs. Johnson and Hazelrigg determined that Defendant understood the nature of the legal proceedings and the charge against him, and that he would be able to assist his counsel in defending the case. Thus, they found Defendant competent to stand trial. In addition, they did not find the existence of a psychosis and determined that Defendant was faking his claims of delusions and hallucinations. Their diagnosis was: mixed personality disorder, not otherwise specified, with schizotypal, paranoid and anti-social features. Additionally, they made a diagnosis of malingering. These findings were in a written report dated March 21, 1996, which was sent to the Court. The trial record also reflects that in 1987 Defendant had been observed and diagnosed at FCI Butner. by Dr. Johnson while he was awaiting trial on the charge of murdering his wife. The 1987 diagnosis was that Defendant had a personality disorder, with paranoid and schizotypal features, but no psychosis. Dr. Johnson’s 1987 report did note, however, that the Defendant presented unusual mannerisms, including grimacing and eye blinking, digressive and vague speech, and that he reported unusual perceptual experiences. While Dr. Johnson did not find that these factors yielded a diagnosis of psychosis, she noted: “Nevertheless, it is possible that they may constitute evidence of a prodomal phase to the onset of schizophrenia despite a history of absence of clearly psychotic features”. Defendant was transferred from FCI Butner to the Paulding County Jail, a facility in the metropolitan Atlanta area, in early May 1996. On May 23, 1996, he was interviewed again by Dr. Davis who reaffirmed his diagnosis of paranoid schizophrenia. At that time Davis also concluded that Defendant has anti-social personality features. That report stated: “It would seem clear that his murder of Officer Washington was related to his delusional system”. See Docket No. 363, also Sealed Docket No. 363. In May, July and September, 1996 Dr. George W. Woods, Jr. (a psychiatrist retained by the defense) interviewed the Defendant. Based on these interviews and previous test results from 1987 and 1996, plus the Defendant’s medical records from FCI Butner, Dr. Woods concluded that the proper diagnosis was schizophrenia, paranoid type, acute. He opined that when Battle killed Washington he was delusional. He also concluded that the Defendant was not capable of rationally assisting his attorneys in the preparation of his defense. Dr. Woods prepared a written report dated September 23, 1996, so stating. See Defendant’s Exhibit 56. In August and September of 1996, Defendant was interviewed and tested numerous times by Dr. Stephen O’Hagan, a psychologist retained by the defense team. The tests administered including many of those administered at Butner by Dr. Ha-zelrigg in January of 1996, and many of the results were similar. Dr. O’Hagan sent a written report dated September 26, 1996, to defense counsel. According to American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (“DSM-IV”), “The essential feature of the paranoid type of schizophrenia is the presence of prominent delusions or auditory hallucinations in the context of a relative preservation of cognitive functioning and affect.... These individuals usually show little or no impairment on neuropsy-chological or other cognitive testing.” § 295.30, p. 287. The DSM-IV defines delusions as “Erroneous beliefs that usually involve a misinterpretation of perceptions or experiences .... ” The distinction between a delusion and a strongly held idea is sometimes difficult to make and depends on the degree of conviction with which the belief is held despite clear contradictory evidence. DSM-IV, p. 275. It is generally agreed that schizophrenia waxes and wanes; it is a progressive disease, with a deteriorating course unless treated. Malingering is defined in § V65.2 of the DSM-IV: “The essential feature of malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs.... Malingering should be strongly suspected if any combination of the following is noted: (1) medical legal context of presentation (e.g. the person is referred by an attorney to the clinician for examination), (2) marked discrepancy between person’s claimed stress or disability and objective findings; ... (4) the presence of antisocial • personality disorder.” DSM-IV, p. 683. In the instant case; the government’s claim of malingering is specifically' addressed to the Defendant’s stated belief that implants in his head monitor -his thoughts and control his actions, and sometimes cause him pain. Defendant’s claim through counsel was that he was delusional when he killed Officer Washington, such that he could not appreciate the wrongfulness of his actions, or conform his conduct to the requirements of law. The government contended at trial that Defendant’s claimed belief that implants were controlling his behavior was faked to provide an excuse for his conduct, and that in any event Defendant understood the wrongfulness of killing officer Washington, and did so with premeditation and with malice aforethought. According to the DSM-IV, “a personality disorder is an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment.” DSM-IV, p. 629. Personality disorder not otherwise specified is the appropriate diagnosis for a ‘mixed’ presentation in which criteria are not met for any single personality disorder but features of several personality disorders are present and .involve clinically significant impairment. DSM-IV, pp. 630-631. Both Dr. O’Hagan and Dr. Hazelrigg administered versions of the Minnesota Multiphasie Personality Inventory (“MMPI”), a test designed to identify personality traits and assist in diagnosing mental illness or psychosis. Hazelrigg gave the MMPI-II and O’Hagan the MMPI. The MMPI-II is the revised and updated version of. the MMPI. The test contains several validity scales; when the validity scales were scored in the manner prescribed by .the- makers of the MMPI they.revealed that Defendant’s scores on the clinical scales were valid. In other words, the validity scales were not elevated in such a way as to indicate that the Defendant had lied in answering the questions, or faked answers to try to look sick, or responded so defensively as to invalidate the tést results. The MMPI has one validity scale, the K scale, which is designed to make a correction for those test takers who answer questions in a defensive way. Defendant’s K score was calculated on both tests and the results were added to his scores on, the clinical scales in the test as required by the test scoring instructions. The clinical scales on the MMPI include scales for psychopathic deviate (scale 4); schizophrenia (scale 8) and mania (scale 9). A clinically elevated score on any of these scales is not , itself diagnostic of mental illness or psychosis, nor is the failure of the score to achieve clinical significance diagnostic of the absence of mental illness or psychosis.. Also, the names of the scales are archaic and confusing.. For example, the schizophrenia scale (8) is understood today to measure the relative presence of unusual thoughts. It is a thought disorder scale. Scale 4, the psychopathic deviate scale, measures someone’s ability to function within society’s expectations. Scale 9, the mania scale, measures distrac-tibility and impulsivity. The MMPI is generally agreed to be difficult to cheat on without getting caught. It is an objectively graded test; the examiner has no discretion in grading it. Also, it is generally agreed that it is difficult for lay persons to figure out how to achieve a particular result on the test. On the MMPI-II administered by Dr. Hazelrigg, the Defendant showed clinically significant elevation of only the mania scale. Even after the schizophrenia scale was adjusted by adding Defendant’s K score the raw score was 31, below the level of clinical significance. Def. Trial Ex. 31. The two highest scales were psychopathic deviate (two points below level of clinical significance) and mania (five points above the level of clinical significance). On the MMPI administered by Dr. O’Hagan, none of the scales reached the level of clinical significance. An MMPI which had been administered at FCI Butner in 1987, however, showed clinically significant elevation of the hypo-chondriasis, psychopathic deviate, schizophrenia, and mania scales. Other tests administered to Defendant, mainly by Dr. O’Hagan, showed an absence of gross or diffuse brain damage. Both O’Hagan and Hazelrigg gave the Weehsler Adult Intelligence Scale — Revised and both tests revealed a full scale score of 86, which is within normal range. Both administered the Weehsler Memory Scale — Revised and both showed poor results on verbal memory, good results on visual memory, with a full scale score of 81. Both administered the Trail Making Test which is a test of concentration and the results were within normal limits on both tests. Both O’Hagan and Hazelrigg administered the Rorschach Ink Blot Test to Defendant. On the test given by Hazelrigg, Defendant scored a 3 on the schizophrenia index (not suggestive of schizophrenia). On the one given by O’Hagan, he scored a 4. (suggestive of schizophrenia). The Rorschach is a test frequently used in diagnosing schizophrenia, but it does not have an objective scoring system. Rather, the Rorschach is scored by using the Exner guideline system which allows some discretion to the scorer. O’Hagan and Hazelrigg disagreed in several respects in interpreting the tests they gave. First, they disagreed on the correct interpretation of the two 1996 MMPIs. O’Hagan asserted that adding Battle’s K score to his clinical scores was an insufficient adjustment to take into account Battle’s defensiveness while taking the test. O’Hagan contended that a further calculation should be made, that of subtracting Battle’s K score from his F score. Under O’Hagan’s analysis this number was not something that would be added to the clinical scale but simply used as a supplementary tool in interpreting Battle’s MMPI. O’Hagan admitted that there was some controversy in the literature about use of a negative F minus K score, although he pointed out there is considerable literature concerning the utilization of a positive F minus K score. The net of O’Hagan’s testimony on this point was that the lack of any elevation of Battle’s clinical scores on the MMPI given by O’Hagan was not trustworthy. Therefore, the normal profile indicated on the MMPI given by O’Hagan was discounted by him as not significant to Battle’s diagnosis. Hazelrigg on the other hand did not accept the validity of using a negative F minus K score in interpreting the MMPI. He admitted he was familiar with the computation of a positiv.e F minus K score, but he contended there was no precedent for using a negative F minus K score as an aid in diagnosis. His position was that the normal profile presented by Battle on O’Hagan’s MMPI, and the reasonably normal profile suggested in the MMPI given by Hazelrigg pointed away from a diagnosis of schizophrenia. Hazelrigg pointed out that the makers of the MMPI do not prescribe the use of an F minus K scale in interpreting the MMPI. If none of the validity scales are elevated, the test is valid. The second major point of disagreement between the two psychologist experts was whether any of the tests had shown any brain damage. O’Hagan felt this had been shown. He .said that-the variation in Battle’s scores in various subparts of the WAIS-R meant “there is an erratic quality in intellectual processing for this individual”. Tr. 1732. He also believed Battle’s strong performance on the second part of the Trail Making Test, as opposed with his weaker performance on the first part, “demonstrates strongly the probability that there is an organic or neuropsychological impairment present.” Tr. 1749. He testified that the imbalance of Battle’s scores on the Wechsler Memory Scale Revised — 79 for verbal memory and 93 for visual memory, plus 118 on the attention and concentration scale “is consistent with some erratic quality to intellectual and cognitive processing and memory -function”. Tr. 1756. He felt this raised questions about the possibility of some problem in the left frontal hemisphere of the brain. Tr. 1756. O’Hagan felt this concern was also highlighted by Battle’s performance on the Wisconsin Card Sorting Test, which Battle had difficulty with. -■ He gave Battle the test three times and the first two times Battle did not finish it. He did poorly the third time. O’Hagan said this pointed to “a very strong likelihood of impairment in brain functioning in the dorsal lateral area of the frontal lobe”. Tr. 1773. O’Hagan had also given the Finger Tapping Test in which Battle achieved moré taps within a given time frame with his left hand than with his right. O’Hagan opined this also indicated difficulty in the left hemisphere of the brain adjacent to the frontal lobe. Tr. 1782. O’Hagan admitted, however, that he was familiar with a study which had concluded that 50 per cent of normal individuals have subtest scatter of 7 points, the same as that Battle had on the verbal portion of the WAIS-R. He also admitted that the subtest scatter on the performance portion of the WAIS-R was only 3 points. He testified he did not know whether the 14 point difference between verbal and visual memory indices on Battle’s Wechsler Memory Seale Revised was within the norm for the general population. Tr.1981. Hazelrigg on the other hand emphasized that everyone has some subtest scatter. He said the variation in scores on the subtest' of the WAIS-R and the Wechsler show nothing of significance. Hazelrigg said the results on the Trail Making Test which he gave were virtually identical to those of Dr. O’Hagan and he stated the test showed there was no gross brain damage or for that matter “any kind of brain damage”. Tr. 2840-41. O’Hagan characterized Battle’s low K scale on the 1987 MMPI as reflecting that Battle took the test in an “open and candid” manner. Hazelrigg testified that in taking the 1987 MMPI, Battle had been “careless”. Another point of disagreement was over whether the tests reflected evidence of antisocial features. Hazelrigg contended that the MMPIs given by both him and O’Hagan showed a “4-9 profile” in which the high scales are 4 (psychopathic deviate) and 9 (mania). Hazelrigg said people with a 4-9 profile are considered to be antisocial, commit crimes, are manipulative, egocentric and impulsive. Tr. 2608. O’Hagan disagreed that either MMPI showed a “4-9” profile. He disagreed that Battle had a personality disorder with antisocial features. Hazelrigg also administered the SIRS test — Structured Interview of Reported Symptoms, to Battle. The SIRS test, which was authored by Dr. Richard Rogers, is specifically designed to identify persons who are faking symptoms of mental illness. The test is based on the principle that certain responses are typical of feig-ners or malingerers and others are typical of honest responders. The test is objectively graded. Hazelrigg’s administration of the SIRS showed a 72.2 per cent probability that Battle was being honest in reporting his symptoms on the test. All of the aforesaid mental health experts except Dr. Rogers testified at the competency hearing before U.S. Magistrate Judge Richard H. Deane in October 1996. Judge Deane, in a 32-page written report and recommendation, determined that Defendant was competent to stand trial. After considering the objections of counsel, and after a de novo review of the record, the Court adopted the report and recommendation in an order entered on November 15,1996. Defendant freely admitted to all of the mental health professionals who examined him, including those retained by the defense, that he had killed Officer Washington. They so testified at trial. On December 30, 1996, Defendant assaulted and injured a guard at the Pauld-ing County Jail. Before the trial began on February 18, 1997, the Court met with counsel for the parties to discuss a number of pretrial matters. In response to the Court’s question defense counsel stated that no final decision had been made regarding assertion of the insanity defense. The Court ruled that no later than opening statement, defendant would be required to make this election in order to facilitate management of the trial and proper rulings on eviden-tiary issues. The Court further ruled that once defendant had made his election the decision could not be changed. Defense counsel did state in opening statement that the defense was relying on the defense of insanity and that the Defendant had not understood his actions and had not been able to control his actions when the murder occurred. Beginning at the time of the voir dire, and at various points during the trial both in and out of the jury’s presence, the Defendant stated that he did not want to participate in the trial and that he did not approve his lawyers’ strategy of urging his insanity. While the Court was initially inclined to allow Defendant’s voluntary absence from the courtroom, it reversed its ruling after government counsel pointed to a Supreme Court decision, Diaz v. United States, 223 U.S. 442, 445, 32 S.Ct. 250, 56 L.Ed. 500 (1912), which held that the Defendant’s presence is not waivable in a capital case. The Defendant remained in court, at some points stating he had changed his mind and that he had decided to participate. At two points during the trial he was removed from the courtroom for a period of time on account of continued outbursts. The trial proceeded in these phases: (1) government’s evidence on issue of guilt; (2) Defendant’s evidence on issues of guilt and insanity; (3) government’s evidence on issue of insanity; (4) Defendant’s rebuttal on issue of insanity. The government’s case on the issue of guilt unfolded as follows: Richard Boone, an inmate serving a 15 year sentence, testified that on the morning-of December 21, 1994, Defendant Battle borrowed his hammer. Shortly thereafter a commotion occurred across the cellbloek. When officers answered the emergency call, they found Officer Washington lying face, down in a pool of blood. One officer saw Defendant holding a hammer., Tr. 1085. Others' saw Defendant Battle standing in front of a vending machine. He had blood on his clothing. Tr. 1045, 1110. A bloody hammer was found under the vending machine. Tr. 1005-1007. Washington’s head wounds were severe. Tr. 1023. Blood was spattered on the wall. Tr. 1028. According to Robert Willis, a prison guard, Defendant Battle stated on December 21 in response to Willis’ question why he had killed Washington, “Fuck him. I had a dance with him. Do you want to dance?” Tr. 1040. The doctor who performed Washington’s autopsy testified that he died from blunt force trauma to the back of his head, specifically blows delivered with a hammer. Tr. 1071. Inmate William Hester, who was serving lengthy federal and state sentences, testified that on the morning of December 21 Defendant Battle came to his cell and asked him to give an inmate named McGee two telephone numbers which had been written on a piece of paper. The telephone numbers were those of Jim Battle and Gloria Bandy in Tarboro, North Carolina. The paper was admitted at trial as government’s exhibit 2-A. Battle told Hester he wanted for them to be contacted because he was going to be in trouble and would be going to “the hole” later that day. Tr. 1151. Within 20 minutes alarms started going off and a lockdown occurred. Tr. 1154. Later that day Hester gave the paper to an investigator and told him of his discussion with Battle. Tr. 1166. On January 26, 1995, the Defendant was interviewed by two FBI agents at FCI Talladega. Defendant was advised of his Miranda rights. According to FBI agent Frank Pickens, Defendant Battle stated that he had become frustrated with being bossed around by the guards. Tr. 1259. They -bumped into him and did not say excuse me, and they messed with his money orders. He attacked Washington because he was the first guard he saw that day.. Tr. 1259. ,He-felt attacking a guard would get him more respect. He admitted hitting the back of Washington’s head with a hammer. Tr. 1261. According to the agents, Battle said he was happy he killed Washington, and had no remorse for it. Tr. 1262. Agent Pickens said Battle had said nothing about implants directing his actions, or about hearing voices. An FBI agent testified that DNA tests had revealed a match between the blood of Officer Washington and the blood stains on Defendant’s trousers and shirt. Tr. 1361. An announced point of disagreement between- Defendant and his trial counsel was concerning the issue of whether -he should testify on. his own behalf. ■ The Court encouraged Defendant to accept his lawyers’ advice in that regard, but also told Defendant on .the record that he had the ultimate right to make that decision on his own behalf. The following colloquy occurred outside the jury’s presence shortly before the -beginning of the defense’s case in chief: THE COURT: And you have the right to testify on your behalf. Now, maybe this is a good time for us to talk about that subject. You have very good lawyers, and Mr. Martin indicated yesterday when we had our conference in chambers that he was going to advise you, or perhaps that he had advised you that it would not be in your best interests to testify in this case. THE DEFENDANT: Gees. THE COURT: Pardon me? THE DEFENDANT: You expect me to believe that? THE COURT: Well, I’m just telling you what he said. THE DEFENDANT: That’s what he has always told me, but I’m not in agreement with a damn thing they are doing. THE COURT: Now, let me say this: Your lawyers do, in fact, have your best interests in mind. THE DEFENDANT: No, they don’t. They don’t have it at all. There’s something else. THE COURT: Let me do the talking now. You can talk in just a minute. THE DEFENDANT: You are saying what you are saying. THE COURT: Right. THE DEFENDANT: And you believe these guys are actually presenting and preparing the best defense for me, but it’s not actually what the facts in this case are. There is something else involved, and it is being covered up, and these people are plodding right along and letting this happen. They are not really trying to get to the main issue of this thing, that I have something implanted in my body that has been implanted, and this stuff is being manipulated through my system, my nervous system, and it is controlling my body. THE COURT: Yes, sir, I hear you. THE DEFENDANT: That’s the main issue. These people are not trying to address that issue, or expose that issue, but anything. This is what I wanted. THE COURT: As I said, you will be able to testify if you want to, but I want to make sure you understand the full implications of what you are doing. THE DEFENDANT: I understand the full implications. THE COURT: The chances are that your decision to testify is not in your best interests. THE DEFENDANT: Well, that’s what this attorney says. THE COURT: Well, I’m saying it too, but in the final analysis, every defendant has the right to testify. In other words, you can override your lawyer’s decision. THE DEFENDANT: I intend to. THE COURT: That’s up to you. THE DEFENDANT: I intend to. THE COURT: But you do need to understand something, and that is if you do take the stand and testify, the lawyers will have right to ask you questions. THE DEFENDANT: That’s understandable. THE COURT: And you will have to answer their questions, okay? That’s part of the deal. If you get up on the witness stand and testify, you will have to answer the questions that the lawyers on either side may choose to ask you, okay? THE DEFENDANT: That’s understandable. (Trial Tr. 1372-1374). Defendant Battle was called as the defense’s first witness. In response to his counsel’s questions, he testified as follows: Defendant explained the circumstances of his wife’s death, which followed a period of his unemployment, distress over the family finances, discussion of divorce, intoxication, and finally the incident in which his wife was stabbed with a knife. Defendant described his feelings of guilt about her death. Tr. 1380-1387. Defendant described his incarceration at Butner following his 1987 conviction, his subsequent transfer to FCI Lewisburg and then to USP Leavenworth, and the beginning of his feeling at Leavenworth that he was being manipulated and monitored by prison guards through implants in his body. Tr. 1395-1396. He testified he started hearing voices while at Leavenworth. Tr. 1396. This continued at USP Atlanta. Tr. 1403. He believed that implants had been placed in his body by government agents when he had surgery to repair wounds he received in the 1986 incident in which his wife was killed. Tr. 1405. In response to his counsel’s questions Defendant described in detail the feelings he had had immediately before he attacked Officer Washington — his sense that the guards were controlling his thoughts and bodily functions, causing him physical pain, hearing voices. Tr. 1411— 1412. He thought killing a guard might put a stop to this harassment. Tr. 1411. During the government’s cross-examination Battle admitted he knew it was wrong to kill another human being. Tr. 1425. He knew Washington was a corrections officer. Tr. 1426. He testified that this was an effort to get rid of the implants in his body. Tr. 1428. On cross examination Defendant admitted he had signed a handwritten statement prepared by FBI agents McGinnis and Johnson on the afternoon of December 21, 1994. See Government Exhibit 41. He admitted this statement did not mention implants or his desire to stop the monitoring of his thoughts. Defendant admitted he had initialed each paragraph of the statement, but stated that there were spaces in between the paragraphs which were subsequently filled in without his approval. Tr. 1439. Battle admitted he had given inmate Hester a note with his father’s and sister’s telephone numbers on it immediately preceding Washington’s murder. Tr. 1442. Battle denied having said the following which was a part of Government Exhibit 41: Officer Washington always talked a lot of shit. I didn’t like him. He fucked with me. Defendant testified that this portion of the statement was added later by the agents after he signed it. Battle testified that he could not recall whether he had given this part of the written statement: It doesn’t bother me that he’s dead. People die every day. He fucked with people. Battle was then asked the following questions and provided the following answers: Q. It’s Officer Washington’s fault, but all he did is work there; is that right? A. He harassed me also. You know, he did things. He said provocative things to me. He slammed my door. He called me black mother fucker and all this other stuff. Q. So, it’s his fault, and you killed him because you didn’t like the way he was talking to you; is that right? A. There was several officers, man, that I could name that harassed me. Q. So Washington was the officer that just happened to be in the wrong place at the wrong time, so you killed him; is that right? A. That could be said. Tr. 1458. ^ # # ‡ A. It’s not so much that I stated I was alone when I did this. I know I did express - Q. Let me finish my question. Did you tell them about the implants? A. I did express that there was no one else involved. Q. I’m done with that. Tell me, did you ask them about, did you tell them about the implants? A. I didn’t feel like it was necessary. I thought they already knew. Q. Answer my question. The FBI agents knew? A. Yeah. Tr. 1460. Q. Well, it didn’t matter that they knew you did it. Did you tell them about the implants, yes or no? A. I didn’t think it was necessary. I thought the guy already knew. Why should I go back and express - Q. Did you ever tell them you killed Officer Washington because of the implants, yes or no? A. No, I didn’t tell those first agents. I told this guy here. Q. These guys here, but you could have told them at the Atlanta Penitentiary. You could have told the people who were harrassing you. A. I could have told them. Q. And you didn’t say a word about it, did you? A. I didn’t say a word at that particular time, no, I didn’t. Tr. 1461. Defendant testified he had not told his family about his implants or the monitoring until “lately” because he did not want for them to be worried about him. Tr. 1465. He stated he had never mentioned the implants in any telephone call he made from FCI Talladega, USP Atlanta, or USP Leavenworth. Tr. 1466. In response to the question “Tell me the name of one inmate who you told about your implants, and your voices, and your pain?” Defendant said “Not one inmate.”. Tr. 1468. Defendant admitted he had seen various mental health care professionals while he was at Leavenworth and that he had not told any of them about his implants. He also saw numerous doctors for medical problems and he had not told any of them about his implants. Defendant admitted that on the day before he killed his wife, they had had an argument and he had said, ‘We will see who has the last laugh here”. Tr. 1514. He denied that he had intended to kill his wife, and denied he had raped or sexually assaulted her.. Tr. 1521-22. FBI Agent Don Johnson testified that he had prepared the original handwritten form of Defendant’s confession on December 21 and that contrary to Defendant Battle’s testimony, he had not added any portions after Battle signed the statement and initialed the paragraphs. Tr. -1552. He testified he read the statement out loud to Battle before Battle signed it. Tr. 1558. Defendant next called Eldson McGhee, a former federal inmate now on parole. McGhee testified he had met Battle in 1991 or 1992 at FCI Leavenworth and also knew him at USP Atlanta. They were friends. Tr. 1600. At Leavenworth he noticed that Battle was a loner, Tr. 1599, that he would stare for hours, Tr. 1599, and that he would “get in a corner with his back up against a wall” Tr. 1599. At Leavenworth they had coffee two or three times a week. While both men were incarcerated at USP Atlanta, McGhee and Battle continued to have coffee from time, to time, Tr. 1603. McGhee observed that Battle was still staring for one to two hours at a time, and that he was still a loner, Tr. 1607. On cross examination McGhee was asked whether either at Leavenworth or at Atlanta Defendant had ever told him that he had implants in his body, that he was hearing voices, that the corrections staff was controlling his thoughts, that he was having burning sensations from the implants, or that there were electrical shocks pulsating through his body from the implants. McGhee testified that Battle had never mentioned any of these things to him. Tr. 1614,1618. The next witness was Dexter Graham, a Bureau of Prisons employee at USP Atlanta. He stated he had some recollection of seeing Battle on occasion though he did not really know him. He testified he had noticed that Battle’s eyes appeared to be “wandering”, Tr. 1628; that he was a loner, Tr. 1629, that he mumbled to himself, Tr. 1629, and that he appeared to be disoriented. Tr. 1630. David Philpot, an employee of the Bureau of Prisons at USP Atlanta, testified that he had responded to the emergency call when Officer Washington was killed and noticed that Battle “was looking down in a daze”. Tr. 1642. Federal inmate Willie Shirley, serving a sentence for bank robbery at USP Atlanta, testified he had known Battle at Atlanta. Battle never spoke and never socialized with anyone. Tr. 1647. He testified he never had a conversation with Battle about anything. Tr. 1648. Lucious Johnson, a lieutenant employed by the Bureau of Prisons at USP Atlanta, testified he saw the Defendant after Washington’s murder when Defendant had been placed in restraints. Tr. 1664. He then went with Battle and some guards to the prison hospital. Tr. 1664. He denied noticing anything unusual about Battle’s posture or gait at that time, except to note that Battle was in leg irons. Tr. 1665. Donald Little, an employee at USP Atlanta, testified that he had been an officer on the east yard and that he could not remember whether Battle had worked there as an orderly. Tr. 1681. He said he could not recall whether Battle was “constantly late” while he was working for him. He stated he could not recall Mr. Battle’s performance as an orderly. Tr. 1683. Tyrone C. Smith, an FBI agent, testified that he had been one of the officers called to investigate Washington’s death on the date it occurred. He had interviewed Donald Little on that date. Little had told him that Battle’s performance as an orderly was unsatisfactory on account of constant absenteeism and poor work habits. Tr. 1686. He did not follow proper procedures for the job. Tr. 1687. At that point, the defense began calling its mental health experts. The first witness was Steven O’Hagan, Ph.D., a psychologist. Before beginning his evaluation of Defendant Battle, he had reviewed the evaluations done in 1987 and 1996 by Dr. Johnson and her associates at Butner and Dr. Davis’ report. He had been furnished with medical records from the prison system and a social history. Ms. Kearns introduced him to the Defendant at Paulding County Jail on August 9, 1996. Dr. O’Ha-gan stated: He began to speak in a very uninhibited way about experiences that he was reporting that were, frankly, bizarre, the idea that he was being persecuted by the Bureau of Prisons, that he had implants or some sort of monitoring devices placed in his body that would control his thoughts, his feelings, and various bodily functions. Some of it did get very bizarre in terms of talking about problems he would have with bowel movements because his anus would get locked in a certain position and cause serious pain, and that he would have difficulty with sexual ejaculation, disclosures that are highly unusual, and the hour went more or less — well, the hour and a -half or two hours went more or less like that with Mr. Battle reporting various examples that were occurring of this persecution. O’Hagan testified this was “a picture very consistent with paranoid schizophrenia.” He said that Battle’s delusions and hallucinations, together with his rambling and disorganized speech was characteristic of schizophrenia. Tr. 1716. He testified that people with paranoid schizophrenia have psychotic episodes. Tr. 1723. O’Hagan also administered the Rey 15 Item Memorization Test, a screening test for malingering. The subject is asked to examine a piece of paper with fifteen items on it; the paper is removed and subject is asked to reproduce the drawings on another sheet of paper. It is expected, that a test-taker without brain damage could correctly reproduce at least nine items of the fifteen. Battle got 14 out of 15 items correct. Thus, there was no indication of ■gross brain disorder or dysfunction. Tr. 1763. Also, Battle was not malingering. O’Hagan administered the Wisconsin Card Sorting Test, a neuropsychological test which is very sensitive to dysfunction in the frontal lobes of the brain. Tr. 1764. This involves matching drawings on cards based on a principle that is unannounced to the test-taker. For example, the first 10 cards are to be matched based on the color of the drawings on the cards; the second 10 cards are to be matched based on the shape of the drawings depicted on the cards. If the test-taker makes a successful match, the examiner will signify that the match is correct without stating why. The test-taker is to discover the guiding principle for each of four sets of 10 cards based on the pattern of responses from the examiner. O’Hagan testified that Battle performed poorly on the test, becoming extremely agitated when he was unable to figure it out. He tried giving it a number of times, and Battle did poorly each time. O’Hagan said this pointed to “a very strong likelihood of impairment in brain functioning in the dorsal lateral area of the frontal lobe”. Tr. 1773. On the California Verbal Learning Test, a verbal memory test, Battle got a score of 59, about a standard deviation below average. Tr. 1777. On cross O’Hagan agreed that classic traits of someone with antisocial personality features are that they are deceitful and manipulative; they disregard the rights and feelings,of others; they exhibit irresponsible work behavior; and they frequently lie and malinger. Also, they often engage in high risk activities such as alcohol abuse and drug abuse. Tr. 1886. Dr. O’Hagan testified Defendant had told him that before he killed Washington he had been having fantasies about hurting someone and that he started to think of himself as a soldier on a mission. While he initially got the hammer from Boone to fix something in his cell, he then thought about using the hammer as a weapon to kill a guard. Battle had been thinking about Officer Washington although had not been specifically focused on him. However, on that morning he did encounter Washington and killed him. Battle perceived himself as a hero, as though he were on a special mission.' Tr.1942. Thus, O’Hagan concluded that'Battle had been delusional on December 21,1994. O’Hagan said that when he interviewed Battle on August 9, 1996, he was alert and fully oriented. Tr.1965. Similarly, Battle was oriented when he saw him on August 14 and October 21, 1996. When asked whether some paranoid schizophrenics are capable of understanding the nature and quality of their actions, O’Hagan stated “some individuals with paranoid schizophrenia are capable of that at some times or even most of the time, but may have limitations at other times.” Tr.2021. O’Hagan admitted that none of the tests he had given were diagnostic of schizophrenia, although he stated that the Rorschach “came close”. Tr.2021. Defendant’s next mental health witness was Dr. George Woods, a psychiatrist who practices in California. Dr. Woods testified that a negative F minus K score appropriately measures or identifies a person who is trying to present themselves in a favorable light. Tr.2095. He said there was no controversy about that. O’Hagan agreed that the MMPIs given by Hazel-rigg and O’Hagan in 1996 indicated defensive test taking. Tr. 2101. He said “once again, in 1987 the MMPI showed significant problems. It showed disturbed thinking and showed significant problems. In 1996, nine years later, they don’t show any problems at all, and, in fact they reflect someone who is at best being defensive.” Tr. 2102. He stated that the results on the Wisconsin Card Sorting Test, Finger Tapping and California Verbal Test were abnormal. He said that in schizophrenia, “the total brain isn’t impaired”. Tr. 2104. Woods agreed that the SIRS test administered by Hazelrigg showed about a 72 per cent probability that the Defendant was not malingering. Woods related that Battle had told him about his claimed delusions. Tr. 2115. Woods’ diagnosis was “schizophrenia, paranoid type, chronic”. He also concluded that Defendant is not malingering. Tr. 2125. The defense’s final mental health witness was Dave M. Davis, M.D., a psychiatrist who practices in Atlanta, Georgia. Dr. Davis saw Defendant Battle initially on August 15, 1995, at FCI Talladega at the request of the defense. He interviewed the Defendant for approximately three hours on that day. The Defendant described his delusions in detail. Prior to interviewing the Defendant, Dr. Davis had read the 1987 report from FCI Butner. ■Dr. Davis described Battle’s statements to him in part as follows: He thought that microdots and microchips had been implanted in his brain, in his body, his chest, and that the chips and microdots somehow sent these messages to computer centers which the police and other people in the government monitored, that they were able to monitor his thoughts and his gestures, that they knew what he was thinking all the time even before he thinks it. And through these microchips and this monitoring system, the government agents were able to control his central nervous system, and able to “order his nerves, and his breathing, and his head,” parts of his body, and due to the fact that he had trouble with the military, he felt the Secret Service was also in on the monitoring. He said that the government agents were able to deliver these electric shocks through his body, and they could speed up his heart, make him catch his breath, make his eyes water, make his skin burn, make his jaw twitch, control his body, and that all of the police knew that this was going on. He described to me how he had planned to kill a guard in the yard three times before he killed Mr. Washington. This was another guard, not Mr. Washington, and each time that he would approach this guard in order to attack him, the guard would walk away from him, and he thought that was because the guard knew his thoughts before he had them, that his thoughts were being somehow transmitted to this guard. He thought that there was a piece -of steel that was planted- in his body, and that that would send messages up to- the guard tower, and that the prison authorities could. communicate through air sounds, blinking lights, blips on a TV screen, and other noises which-he,said sounded like flushing sounds on the loud speaker. He told me how the little waves that sometimes would go. across the TV were directed towards him, and that there were popping sounds on the loud speaker system in the prison, and that that was directed toward him, and it had meaning, and was done to harass him, and it was personally done because of him. (Tr. 2275-2277). Dr. Davis described Battle as “a classic picture of schizophrenia”. Tr. 2283. Regarding the issue of-malingering, Dr. Davis said: There were certain things that are very bizarre and unusual that a malingerer doesn’t come up with. One of the things he told me is that the guards could do such things as open up his pores, cause him to dehydrate, wither up, drain out the fluids from his body, make his heart beat fast, and make catches in his breathing. Now, I have never seen anybody malinger who could make things up like that. That’s just a bizarre description typical of schizophrenia. Tr. 2284. Davis said that the Defendant’s -suspi-ciousness, the fact that he bears grudges and is quick to act with anger and is impulsive, plus his facial grimacing and eye blinking is typical of paranoid schizophrenia. Tr. 2289. - Davis interviewed the Defendant again on May 23 and September 15, 1996, at the Paulding County Jail. Defendant claimed that his cell mate had joined the conspiracy" to harass him. Tr. 2297. He reiterated his claim that he had a microchip planted in his head. Tr. 2298. Davis stated that typically paranoid schizophrenia when untreated expands and becomes worse as the patient deteriorates. Tr. 2298. Dr. Davis saw the Defendant again in February of 1997, just before the trial of the instant case. At that time Defendant was located at the Atlanta Pretrial Detention Center. He stated that Battle seemed somewhat better at that time than he had been during the previous visits, particularly the one in September of 1996. Tr. 2313. Davis testified that schizophrenia waxes and wanes, and it also is affected by environment. Tr. 2301. He had read the 1996 report from But-ner, and did not believe it justified a determination that Battle was malingering. Tr. 2303. Davis found that Battle has some features of an antisocial personality. Tr. 2307. Davis related that Battle said the following to him concerning the events of December 21,1994: And Officer Washington was someone he perceived as particularly unfriendly and harassing him, "and he thought-again, he told me that he thought these guards knew whaf he was thinking all the time, and when he found this ball-peen hammer and he went over to kill Washington, he thought Washington would know it and would leave. But he didn’t, and he beat him and killed him with it, and then he hid the hammer, and he thought that Washington was a robot, and that he had special powers that the other guards had to know what he was thinking and that he was coming, and he didn’t really expect when he hit him that the man wasn’t going to leave, but when he did, then he tried to conceal it by hiding the hammer. Tr. 2313. Dr. Davis also said Battle had stated: That the officers had been harassing him, that this was going on constantly, and this particular officer was unfriendly, and had been one of those that particularly harassed him. Tr. 2324. Battle also told Davis that prior to the murder he had possessed a weapon made of steel which he was'planning to use to kill a guard. Tr. 2324-25. He" said he preferred to be executed rather than spend his life in prison. He wanted his lawyers to find “a way out” for him. Tr. 2335. Defendant’s next two witnesses identified records from the Defendant’s case file at Talladega which showed that he had refused recreation and showers at various times. Next, Defendant’s investigator, Susan Miller, identified charts she had created from those files which showed that the Defendant had not showered or taken recreation for large amounts of time during the period from January 1995 until November 18,1995. The next witness was Calvin Lamar Hunton, administrator of the Paulding County Jail. Defendant had a shower, soap and towels within his cell so he was not required to leave to shower. Defendant was kept in a two-man cell although he had no cell mate. Tr. 2407. The Paulding County records reflected that Battle consistently ate lunch, but not breakfast or supper. Tr. 2410. At that point Susan Miller retook the stand and testified concerning an exhibit she had created from the information contained in the Paulding County Jail records. The exhibit showed that the Defendant had refused some meals and had refused recreation for large amounts of time. Defendant’s next witness was Ralph Tressel, operations manager of the Cobb County Medical Examiner’s Office. He testified that after examining the photographs of the blood spatters at the scene of Officer Washington’s murder, he was of the opinion that the blows to Washington’s head had been delivered in fairly rapid succession, probably taking no more than a second and a half, two seconds and that the hammer was probably not drawn back “excessively high or hard, and then brought forward.” Tr. 2438. He also testified that Officer Washington was probably still alive when he was removed from the area where the incident occurred. Tr. 2458. With the defense case on the issue of guilt and insanity having ended, the government called as its first witness Arthur Stratman, M.D., an employee of the Bureau of Prisons at FCI Leavenworth in 1993 when the Defendant had been incarcerated there. He described having seen the Defendant on January 29, 1993. Defendant complained of low back pain from having injured his back. Defendant refused to do some of the movements requested by Dr. Stratman for the purpose of evaluating the possibility of malingering. Dr. Stratman determined that pending an electromyographic study, Defendant’s activities should be restricted. After Defendant left the examination area, Dr. Strat-man saw him. He testified Defendant “walked briskly without the slow, rigid walk that he displayed both in my office and in the hospital corridor. His walk was entirely normal then.” He concluded that Defendant had been feigning illness. Kevin Donovan, Ph.D., an employee of the Bureau of Prisons and a staff psychologist at FCI Talladega testified concerning his examination of the Defendant on the evening of December 21,. 1994. He did a mental status examination and determined that the Defendant was alert and oriented in terms of person, place, time and situation. The Defendant stated to Dr. Donovan that he had no recollection of the assault on Washington. Battle never mentioned implants or being controlled by others or of having people read his thoughts or hearing voices. Tr. 2537. In its rebuttal case on the insanity defense, the government’s first witness was Mark Hazelrigg, Ph.D., a psychologist employed by the Bureau of Prisons at FCI Butner. He said Battle had a so-called 4-9 profile on the MMPI because the two highest scales are the fourth and the ninth. People with a 4-9 profile are considered to be antisocial, commit crimes, are manipulative, egocentric and impulsive. Tr. 2608. Hazelrigg said he played chess with Battle and said that Battle played a reasonably good game of chess.’ Tr. 2668.' Battle described his implants to Hazel-rigg, including the fact that the government was using the implants to control his thoughts, movements and to cause him pain. Tr. 2672. Hazelrigg described the Defendant’s ability to communicate as follows: He could always carry on a logical, coherent conversation, sometimes talking about complicated issues, and following the conversation quite well, sometimes talking about kind of irrelevant things. He liked to talk about sports. He is an active sports fan. He could talk about ongoing sporting events, discuss the different teams, their strengths and weaknesses, who the better players were, how the different teams might match up. He could do all of that very adeptly. He could talk about current events. • He followed things in the newspapers. He was following — at that time Timothy Mcvey was being charged with the Oklahoma City bombing. O.J. Simpson was on trial, and he was following those events quite closely and making comparisons between his situation as a defendant in a serious offense, and their situation. Tr. 2679-80. Hazelrigg said he saw Battle almost every day during the time the evaluation was being conducted at Butner. Tr. 2684. Hazelrigg testified that there was an explanation for why Battle would not try to manipulate tests such as the MMPI in order to prove the validity of his symptoms. Hazelrigg pointed out that he had been through the. tests before and “he knows that there are validity scales within the test, and the validity scales tell the psychologist if they are trying to manipulate the materials or not. He was well aware that there are validity scales associated with these tests.” Tr. 2688. Hazel-rigg said he had been over the tests with Battle after he took them. Tr. 2688. Thus, “he took it honestly, knowing that if he tried to lie on the tests; that we would detect it.” Tr. 2689. He opined that Battle does not have paranoid schizophrenia and that he is “free from any serious -mental disorders”. Tr. 2687. He said Battle has some antisocial attitudes but he does not have a disordered thought process. Hazelrigg commented that overall, Battle’s test scores had improved between 1987 and 1996. For example, the testing in 1987 indicated an IQ of 77 as opposed to the 86 in 1996. Tr. 2700. Also, Battle still retained the ability to function in generally the' same way in 1996 as he had in 1987. Hazelrigg said it was not consistent with schizophrenia that Battle’s condition had not deteriorated over ten years. He thought it significant that on the MMPI and the PAI, the validity scale showed that Battle was honestly responding and the tests did not indicate disordered thought processes. Tr. 2700. He said that a schizophrenic taking an MMPI and PAI will have significant elevations on a number of scales. Tr. 2701. His opinion is that Battle is not now and never has been a paranoid schizophrenic. Tr. 2702. Hazelrigg talked to Battle concerning his attitudes about the death penalty. Ha-zelrigg described Battle’s attitude as follows: Throughout that time it would have been described as ambivalent in that he really couldn’t make up his mind. There are many times when he stated he wasn’t afraid to die, that he wasn’t afraid of death, and there were other times when he said “what I really want is to get back out in society and live as a free person.” So, he kind of went back and forth saying in some ways- — -he frequently stated that if he had to live in prison the rest of his life, he would just as soon die. Tr. 2893. * ❖ * * # * Hazelrigg further commented: He’s looking at a variety of choices. All of them are really bad. He’s serving a life sentence. He’s looking at another life sentence at least for the current offense, or he’s looking at living in a hospital. It doesn’t look like he’s ever going to be released from prison, but that’s what he wants. So, he’s facing the death penalty or life in prison, and the option that he wants, which is to be released, doesn’t seem to be realistic. Tr. 2894. The government’s next witness was Sally Johnson, M.D., chief psychiatrist and associate warden for health services at FCI Butner. Tr. 2908. She began employment at FCI Butner in 1979 as a staff psychiatrist. A very large proportion of the patients at Butner’s hospital suffer from schizophrenia. Tr. 2913. She became chief psychiatrist at Butner in 1988 or 1989. Dr. Johnson said she explained to the Defendant what the evaluation would consist of at Butner. He said he wanted to talk to his lawyers before it started and that was done. She states he was oriented and understood the information she gave him. Tr. 2964. Battle early on described his delusional system to her. He said that the staff and other inmates were involved in harassing him and that this had been going on for a number of years since he had been at Leavenworth. Tr. 2966. He mentioned there was some kind of a control device that allowed the guards to monitor his thoughts and his behavior and harass him. Tr. 2967. She talked with him about the extent to which this was bothering him and she concluded he wasn’t very disturbed about it. Tr. 2968. At Butner Defendant was not in any overt distress. He was eating and sleeping and was sociable with the staff. Tr. 2969. Battle was in a room at Butner that had an ante room and also a large window on the wall of the room. He was observed 24 hours a day by staff. Records were kept as to whether he ate, slept, showered or had visits. Tr. 2972. Battle did not neglect his appearance while at Butner. Tr. 2974. Dr. Johnson felt by the end of the evaluation period that Battle was not committed to his claimed delusions. Battle kept up with current events and read the newspaper at Butner. Tr. 2983. Johnson discussed the insanity defense with Battle. He did not like the idea of being in a prison psychiatric hospital for an extended period of time. Tr. 2998. He asked her if he was found not guilty by reason of insanity whether he would get out. She told him that he was already serving a sentence and a not guilty by reason of insanity verdict in the new case would not resolve that sentence. Tr. 2999. The principal diagnosis Dr. Johnson reached was personality disorder with mixed features, paranoid, schizotypal, and antisocial. She also determined that Battle was malingering, and gave him that diagnostic assessment at well. She felt Battle was seeking to present himself as mentally ill to have some mitigating impact on his legal situation. Tr. 3000. Battle described the murder of Officér Washington to Dr. Johnson. Q Well, Mr. Battle described to me that although he had thought about killing a staff member after he was incarcerated, that he never actually formall