United States v. Merriweather (921 F. Supp. 2d 1265, 2013)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

R. DAVID PROCTOR, District Judge.

Before the court is Defendant’s Motion to Declare the Defendant Currently Incompetent to Stand Trial. (Doc. # 65). After thoroughly considering the exhibits and testimony admitted into evidence during the hearing on Defendant’s motion conducted from July 25, 2011 through August 3, 2011, the court file, and each party’s written submissions, the court makes the following findings of fact and conclusions of law regarding Defendant William Merriweather, Jr.’s (“Merriweather”) competency to proceed to trial.

I. FINDINGS OF FACT

A. Background (The Government’s Allegations in the Indictment)

1. On May 14, 2007, the Government alleges that Merriweather robbed the Bessemer, Alabama branch of Wachovia Bank. During the commission of that offense, Merriweather shot four women, killing two of them and wounding the other two. (Doc. # 1 at 1^). Merriweather then grabbed approximately $11,255 in cash and exited the bank with a hostage, whom he used as a human shield. (Doc. # 4 (sealed) at 2). While attempting to flee, Merriweather was shot by police officers, immediately apprehended, and given emergency medical care. (Doc. # 4 (sealed) at 2). Merriweather has remained in custody since that time.

B. Background Regarding Defendant Merriweather

1. William Merriweather was born the youngest of three children on May 20, 1976, in Birmingham, Alabama to William Merriweather, Sr. and On Sun Merriweather. (Tr. Vol. II, 295; Doc. # 24 at 5; Def. Ex. # 7 at 1). His mother was diagnosed with a brain tumor and died when Merriweather was three years old. (Tr. Vol. II, 296). Reportedly, prior to her death, Merriweather’s mother suffered from depression and once attempted suicide. (Tr. Vol. II, 296). Shortly after On Sun’s death, Merriweather’s father married her younger sister, Kum Cha, and together they raised Merriweather and his siblings, along with two sons born to Kum Cha and Merriweather, Sr. (Doc. # 24 at 7; Def. Ex. # 7 at 2).

2. Despite the death of Merriweather’s biological mother, it appears that Merriweather, Sr. and Kum Cha provided Merriweather and his siblings a stable home and childhood. Merriweather, Sr. indicated that Merriweather “was very close to his stepmother.” (Doc. # 24 at 6). When asked to describe his childhood, Merriweather commented that “[e]verything was okay” and that he and his siblings “stayed out in the streets a lot, just playing.” (Doc. #24 at 5). Merriweather believed that the household was financially “okay” and described his parents as supportive, though not emotionally supportive. (Doc. # 24 at 5). He reported that his parents were strict in their discipline, but denied any form of childhood physical abuse. There were no signs of psychosis or any mental illness throughout Merriweather’s childhood and adolescence. (Tr. Vol. II, 335).

'3. Merriweather graduated from Jackson Olin High School in 1994, where he participated in football and ROTC. (Tr. Vol. II, 296; Doc. # 24 at 5). After high school, he moved in with his sister, Euknesha Kim Patton (“Patton”), to study at Alabama State University in Montgomery, Alabama. (Tr. Vol. II, 296). While living in Montgomery, Merriweather began dating Latisha Simpson in 1995. (Tr. Vol. III, 552). Merriweather did not complete his education at Alabama State and instead moved back to Birmingham in 1996. (Tr. Vol. II, 297). In 2001, Merriweather enrolled in ITT Technical College in Birmingham, Alabama, where he took courses in electrical work. (Tr. Vol. II, 298; Doc. # 24 at 5).

4. The record evidence demonstrates that Merriweather has used drugs and alcohol consistently since his adolescence. Much of what is known about Merriweather’s drug use is self-reported; but there have been enough corroborating sources that the court is convinced that Merriweather has participated in substantial drug use. (Tr. Vol. I, 43; Doc. # 24 at 6).

5. According to Merriweather’s testimony during his first mental capacity evaluation with Dr. Pietz, he began consuming alcohol at age 14 and using marijuana at age 17. (Tr. Vol. I, 43). Merriweather reported that his illicit use of marijuana developed into a prolonged and extensive history of substance abuse and addiction, which involved the daily use of marijuana, and the frequent use of cocaine, crystal methamphetamine, alcohol, and ecstacy. (Tr. Vol. I, 43). Merriweather began using cocaine at age 22, and he characterized that controlled substance as his drug of choice. (Tr. Vol. I, 43). Later, at around age 28, he began to use crystal methamphetamine frequently. (Tr. Vol. I, 43). He also acknowledged using “various pills,” “ecstacy,” and shooting heroin intravenously. (Tr. Vol. I, 43; Doc. # 24 at 6). Merriweather would use cocaine up to three times each day when it was available to him. (Doc. # 24 at 6).

6. Merriweather’s father described an incident where Merriweather confided in him that he was hearing voices. Suspecting drug use, Merriweather’s father asked Merriweather if he had been taking illicit drugs. (Doc. #24 at 7). Merriweather responded in the affirmative, which prompted Merriweather, Sr. to inform him that the voices should cease if Merriweather would stop taking drugs. (Doc. # 24 at 7). Merriweather’s sister, Euknesha Kim Patton, recalled a similar experience that prompted her to ask Merriweather if he had been using drugs, and Merriweather admitted to her that he was. (Tr. Vol. II, 301).

7. Substances such as marijuana, cocaine, crystal methamphetamine, alcohol, and ecstacy can cause psychotic symptoms to develop and persist for years after drug use has ended. (Tr. Vol. I, 40, 43, 121-22, 159, 163; Tr. Vol. IV, 604).

8. While being treated at UAB Hospital for the gunshot wound following his arrest, Merriweather tested positive for opiates. (Tr. Vol. I, 103-04; Def. Ex. # 15 at 18).

9. The earliest account of strange behavior exhibited by Merriweather comes from Latisha Simpson, who started dating Merriweather in 1995 when he moved to Montgomery to study at Alabama State University. (Tr. Vol. Ill, 552). Simpson testified at the hearing that Merriweather started to act oddly around 1996. (Tr. Vol. Ill, 553). For example, Simpson noted that Merriweather would laugh “at times when things weren’t funny.” (Tr. Vol. Ill, 554). She also recalled that Merriweather experienced “visions” and “hallucinati[ons].” (Tr. Vol. III, 554). Further questioning revealed, however, that to Simpson’s understanding these “visions” and “hallucinati[ons]” meant bad dreams. (Tr. Vol. Ill, 554). She stated that Merriweather experienced those “all the time.” (Id.). These bad dreams, Simpson testified, would cause Merriweather to wake up screaming on “several occasions.” (Id. at 555, 566). Yet, in her affidavit (Def. Ex. # 75 at 1), Simpson stated that Merriweather woke up screaming “on one occasion,” a fact that she did not dispute at the hearing, but insisted that she meant to say “several occasions.” These and other inconsistencies lead the court to find Simpson’s testimony to be of limited value.

10.Merriweather’s family reportedly began observing unusual behavior by Merriweather a few years after he returned to Birmingham in 1996. Between late 2001 and early 2002, Euknesha Kim Patton, Merriweather’s sister, received calls from family members informing her that Merriweather was acting strangely. (Tr. Vol. II, 299). This prompted Patton, who by her testimony had traveled to Birmingham to visit her family sometime in late 2001 or early 2002, to meet with Merriweather. {Id.). Patton testified that, during the meeting, Merriweather informed her that he was hallucinating, and seeing demons in everyone, including family members. {Id. at 299-300). According to Patton, Merriweather further confided in her that he felt that there was a conspiracy against his life, that he would see signs along the neighborhood and on television directed at him, that he was preoccupied with the letter “C,” that he believed that the government planted a chip in his shoulder, and that he could hear his father’s thoughts without his father speaking. (Tr. Vol. II, 300). At the end of their conversation, Patton asked Merriweather if he had been using substances, to which Merriweather responded that he had; however, according to Patton, Merriweather did not associate his experiences with a lack of rest, stress, or drug use. (Tr. Vol. II, 301). 11. Merriweather’s family did not pursue medical treatment for Merriweather’s behavior or his reported experiences. (Tr. Vol. I, 27-28; Vol. II, 299-300, 335, 349-50; Doc. # 24).

12. Patton and her husband decided that it would be in Merriweather’s best interest to invite Merriweather to return with them to Montgomery. (Tr. Vol. II, 302). Merriweather packed a bag and left with them that night. {Id. at 303). Merriweather left his car in Birmingham. {Id. at 304).

13. For approximately nine months, Merriweather stayed with his sister in Montgomery, sharing a bunk bed with Patton’s two young children. (Tr. Vol. II, 303). During the first six months, Patton and her husband took precautions to restrict Merriweather’s exposure to drugs and alcohol. {Id.).

14. According to Patton, Merriweather’s paranoia persisted during his stay in her home. Patton testified that Merriweather told her that he thought her 6 and 4-year-old sons were plotting to kill him because they were allegedly speaking in code. (Tr. Vol. II, 305). Merriweather similarly accused Patton and her husband of speaking in code with each other. {Id. at 306). Such incidents, however, did not seem to diminish Merriweather’s ability to trust Patton with his life or Patton’s ability to trust Merriweather with her young children. Patton recounted that Merriweather would come into her bedroom to sleep at the foot of her bed, complaining that “he was seeing demons and ... hearing voices.” (Tr. Vol. II, 306). Patton and her husband “would tap him on the shoulder and ask him to go back to the boys’ room.” (Id).

15. At the same time, Patton also testified that Merriweather’s condition appeared to improve somewhat over the course of his stay with her. His conversations became more rational and he experienced fewer “acrimonious” situations after four months. (Tr. Vol. II, 310). Patton attributed this to Merriweather’s church participation. (Id).

16. Merriweather eventually moved out of Patton’s home to live with Aleda Smith, a former girlfriend (Tr. Vol. II, 307, 314). Merriweather took a position working with the Department of Corrections in Montgomery. (Id at 312). The job lasted approximately sixty days. (Id). Merriweather and Smith broke up after several months and Merriweather moved into a separate apartment, but he was evicted from that residence after six months. (Id at 313-14).

17. Patton and her husband took Merriweather back into their home in 2003. (Tr. Vol. II, 315). Merriweather stayed in his sister’s home for another three to four months. (Id).

18. This final stay in his sister’s home proved more fractious than Merriweather’s prior tenancy. Patton attested that she laid down several house rules Merriweather was expected to abide by during his stay: (1) he would not bring home visitors, (2) he would not smoke cigarettes in the house, (3) he would not bring alcoholic beverages into the house, and (4) he would clean up after himself. (Tr. Vol. II, 315). Merriweather broke all of these rules. (Id). This prompted Patton and her husband to ask Merriweather to leave, which he did promptly. (Id at 316).

19. Patton testified that she continued to maintain contact with Merriweather and saw him the day before he robbed the Bessemer bank. (Tr. Vol. II, 317). She noted that Merriweather’s appearance disturbed her. (Id). He wore dirty clothes and his manner of dress was different. (Id). He had shaved his eyebrows and his head except for a patch of hair at the top of his head. (Tr. Vol. II, 317-18). Patton also described finding Merriweather practicing martial arts, chanting “Shaolin Monk, Shaolin Monk.” (Id at 319).

20. On May 15, 2007, the day after the robbery, Merriweather was interviewed by detectives at the Jefferson County Jail. (Def. Ex. # 16 at 1). During this interview, Merriweather’s speech remained rational, coherent, and composed, which was surprising given that he had been shot the day before. (Def. Ex. # 16 at 3, 128). His responses, however, were noticeably evasive. On several occasions, Merriweather would try to delay answering a question. Merriweather professed to be ignorant of his mother’s ethnicity. (Def. Ex. # 16 at 55). At one point, Merriweather simply told the investigators that he intended not to cooperate. (Def. Ex. # 16 at 22) (“I’m going to look over here the whole time you’re talking to me today.”).

21. During that post-arrest interview in the Jefferson County Jail, Merriweather repeatedly indicated to law enforcement that there was an accomplice, despite insistence by the detectives that video surveillance of the robbery revealed no other party to the robbery. (Def. Ex. # 16 at 19, 23, 27, 29). Merriweather avoided naming the alleged accomplice, and provided an evasive reply when questioned directly. (Def. Ex. # 16 at 18) (“[Y]ou know, you can have all types of names.”). Merriweather never named the alleged accomplice at the interview. Deeply skeptical about the existence of such an accomplice, one of the interviewers, Agent Paul Watson, informed Merriweather that the charade was a waste of time because if he were to “go back and tell [investigators], well, Charles, was in the bank with [Merriweather] ... then they’re actually going to be wasting their time [looking] for somebody that may not exist.” (Def. Ex. # 16 at 88).

C. Procedural History and Preliminary Proceedings

1.On June 27, 2007, Merriweather was indicted by the Grand Jury in the United States District Court for the Northern District of Alabama. (Doc. # 1). The charges include allegations that Merriweather engaged in Armed Bank Robbery by Force or Violence Resulting in Death, as well as Armed Robbery with Forced Accompaniment in violation of 18 U.S.C. §§ 2113(a), (d) and (e); the Use or Carrying of a Firearm During a Crime of Violence (gun discharged) in violation of 18 U.S.C. § 924(c)(1)(A); and the Use or Carrying and Discharge of a Firearm in Relation to a Crime of Violence Resulting in Death in violation of 18 U.S.C. §§ 924(e) and (j). (Doc. # 1). Merriweather has also been indicted by the State of Alabama on charges of Capital Murder, Attempted Murder, and Kidnapping in the First Degree. (Doc. # 4 at 3).

2. During preliminary hearings for the state charges, the Defense notified the court that it intended to retain the services of a mental health professional. (Doc # 4 at 3; Doc # 22 at 1). Anticipating that the Defense would raise mental health defenses, the United States interviewed Merriweather’s family and friends. (Doc # 4 at 3). Based on this investigation, the United States filed a motion on July 13, 2007, requesting that the court order Memweather to submit to a mental evaluation to determine his mental competency to stand trial and his mental state at the time of the offenses. (Doc. # 4 (Under Seal) at 3-4; see also Docs. # 22 at 2, # 152 at 2).

3. By that time, the Defense had already retained Dr. Kimberly Svec Ackerson, a local forensic psychologist, to evaluate Merriweather. (Doc. # 22 at 2). Magistrate Judge John E. Ott was aware of this arrangement and deferred ruling on the Government’s motion until after it received Dr. Ackerson’s evaluation report. (Id.). Dr. Ackerson’s evaluation report, which was completed following her last interview with Merriweather on September 24, 2007, was inconclusive. The report noted that Merriweather exhibited strong indicators of mental illness, but commented that Merriweather’s self-admitted history of drug use “serves to complicate the clinical picture.” (Def. Ex. # 34 at 2). Moreover, Dr. Ackerson indicated that she was at an impasse with Merriweather, who refused to participate. (Id.). Dr. Ackerson strongly recommended that further evaluation be conducted at a facility that would be able to provide 24-hour observation with properly-trained mental health professionals available. (Def. Ex. # 34 at 2).

4. In light of Dr. Aekerson’s recommendations, Judge Ott, in his October 12, 2007 order, referred Merriweather to the Bureau of Prisons for in-patient evaluation and treatment “to discern competency issues and to afford Defendant appropriate mental health treatment.” (Doc. #22 at 3).

5. From November 2, 2007 through January 14, 2008, Merriweather was housed at the United States Medical Center for Federal Prisoners in Springfield, Missouri (“MCFP Springfield”) where he was evaluated by Dr. Christina Pietz. (Doc. # 24). At the conclusion of Merriweather’s stay at MCFP Springfield, Dr. Pietz issued two formal reports: (1) a report regarding Merriweather’s competency to proceed to trial (Doc. # 24 at 1-17), and (2) a report regarding Merriweather’s mental state at the time of the crime. (Id. at 18-27). In Dr. Pietz’s report regarding Merriweather’s competency to stand trial, she acknowledged testimony from Merriweather’s family describing psychotic behavior, but concluded that such symptoms were best explained by Merriweather’s illicit drug use. (Id. at 11-12). The report concluded that Merriweather “does not currently suffer from a mental illness” (Id. at 13) and that Merriweather “is currently competent to stand trial and make other decisions regarding his case.” (Id. at 15).

6. After his mental evaluations were conducted at MCFP Springfield, Merriweather was returned to the Jefferson County Jail. (Doc. # 7 at 4).

7. On June 3, 2008, the United States filed its formal Notice of Intent to Seek the Death Penalty. (Doc. # 29). Pursuant to 18 U.S.C. § 3005, Judge Ott appointed Richard S. Jaffe and J. Derek Drennan to represent Merriweather. (Doc. # 33; Doc. # 36).

8. On November 10, 2008, almost a year after Merriweather’s evaluation at MCFP Springfield was completed, Jaffe first expressed his concern to the Government that, based on information discovered by the Defense mitigation team, Merriweather was “decompensating” and would not be competent to assist in his defense. (Doc. # 70 at 5). Jaffe repeated his concerns on May 14, 2009, when he again informed the Government that Merriweather was decompensating and having “conversations in his head.” (Doc. # 70 at 5).

9. On December 9, 2008, Judge Ott granted the Defense’s request for a mitigation investigator and a victim liaison. (Doc. # 47).

10. On January 26, 2009, Dr. Richard G. Dudley, a psychiatrist retained by the Defense, interviewed Merriweather (Def. Ex. # 9 at 2) and later produced an affidavit declaring his belief that Merriweather “is unable to understand the charges against him and is unable to assist his lawyers or [Dudley] with [Merriweather’s] case.” (Def. Ex. # 66 at 1). On April 30, 2009, Dr. James Merikangas, another psychiatrist retained by the Defense, interviewed Merriweather for approximately one and a half hours (Tr. Vol. VII, 1128) and concluded in a two-sentence letter addressed to the Defense that Merriweather was incompetent to stand trial. (Doc. #66). The Defense did not notify the Government of either of those evaluations. (Doc. # 70 at 6-7).

11. Dr. Robert Hunter, a psychiatrist at the Jefferson County Jail, testified that he was called on two occasions to examine Merriweather in 2009. On April 16, 2009, Dr. Hunter was called to examine Merriweather after he fasted enough to slip through the food door, and was able to slide under the gate. (Tr. Vol. V, 886; Def. Ex. #36 at 1). After escaping his cell, Merriweather assaulted another prisoner. (Id.). Dr. Hunter testified that Merriweather was calm and cooperative during the interview and did not show any outward signs of psychosis. (Def. Ex. # 36 at 1). During his second examination on July 31, 2009, however, Dr. Hunter testified that Merriweather’s behavior was markedly different. (Def. Ex. # 36 at 1). Merriweather was “paranoid and preoccupied with the idea that he was housed ‘around homosexuals’ ” and his speech and thought processes “were rambling and at times disjointed.” (Id.). Dr. Hunter described Merriweather as irritable and noted that he became increasingly hostile as the interview progressed, which forced Dr. Hunter to terminate the interview. (Id.).

12. On August 5, 2009, the Defense moved to have Merriweather declared incompetent to stand trial and requested that he be remanded to the custody of the Attorney General to be placed in a federal mental health facility until competency was restored. (Doc. #65). In support of its motion, the Defense filed Dr. Merikangas’s letter as a sealed ex parte pleading, effectively depriving the Government of notice concerning both the existence of the evaluations and their use. (Doc. # 70 at 6-7).

13. Judge Ott conducted a telephone conference with the parties on August 10, 2009 to ascertain their positions regarding the motion. (Doc. # 70 at 7). Apprehensive about the impartiality of the previously undisclosed psychiatrists hired by the Defense, the United States requested that Merriweather undergo another mental evaluation by the Bureau of Prisons to obtain a more current, less biased determination as to whether Merriweather had actually decompensated since his evaluation at MCFP Springfield. (Doc. # 70 at 7-8).

14. The Defense responded with a request that the court appoint a private independent psychiatrist(s) — rather than the Bureau of Prisons — to evaluate Merriweather’s competency due to allegations that Dr. Pietz was biased in favor of the Government. (Doc. # 72). The Defense also moved the court to exclude Dr. Pietz from participating in any future evaluations should the court nonetheless remand Merriweather to the Bureau of Prisons for reevaluation. (Doc. # 72).

15. A hearing was convened on August 20, 2009 and the parties submitted post-hearing briefs. (Doc. # 79 at 1-2). After considering the respective arguments and applicable law, Judge Ott issued an order on November 16, 2009, directing that Merriweather undergo a new evaluation at the Federal Medical Center at Butner, North Carolina (“FMC Butner”). (Doc. #79). At the insistence of Defense counsel, Judge Ott further ordered that all interviews with Merriweather be videotaped, and that the final report include input by a neuropsychiatrist and/or neurologist. (Doc. # 79 at 14).

16. From December 9, 2009, until April 18, 2011, Merriweather underwent an extended in-patient competency evaluation at FMC Butner. (Tr. Vol. IV, 583). During his 496-day stay at FMC Butner, Merriweather was kept under constant surveillance by staff members who checked on his condition every 15 minutes. (Tr. Vol. IV, 584).

17. Merriweather’s behavior during his time at FMC Butner appears to have been stable. According to Eugene Singleton, a federal corrections officer who saw Merriweather on a regular basis, Merriweather had the calm demeanor of an ordinary inmate doing his time. (Tr. Vol. VIII, 1265-66). Singleton never observed Merriweather reacting to hallucinations or paranoid delusions. (Id.). Merriweather was never aggressive or rude toward the corrections officers. (Tr. Vol. VIII, 1267). Merriweather generally spent his time sleeping, but he would chat from time to time with Singleton when he made his periodic rounds, sometimes requesting peanut butter, or a magazine or novel to read. (Tr. Vol. VIII, 1268-69).

18. In compliance with Judge Ott’s second requirement, the Bureau of Prisons secured the services of two outside consultants, Alan Mirsky, Ph.D., a neuropsychologist, and Thomas Gualtieri, M.D., a neuropsychiatrist, to evaluate Merriweather in addition to the evaluation performed by FMC Butner staff. Their reports were reviewed and summarized by Dr. Edward Landis, the Deputy Chief Psychologist at FMC Butner, who passed them to the psychiatrist charged with supervising Merriweather’s evaluation at FMC Butner, Staff Psychiatrist Bruce Berger, M.D. (Tr. Vol. VIII, 1288).

19. Dr. Berger reviewed the reports submitted by Drs. Mirsky, Gualtieri, and Pietz (Tr. Vol. IV, 585) as well as collateral reports by Drs. Dudley, Hunter, and Merikangas. (Tr. Vol. IV, 587). Dr. Berger, who was assisted by Dr. Jill Grant and a team of mental health professionals, conducted four videotaped formal interviews in addition to seeing Merriweather on a daily basis for 496 days. (Tr. Vol. IV, 586). On April 1, 2011, Dr. Berger issued a report in which he concluded that Merriweather “does currently posses the capacity to understand his current charges, understand courtroom functioning, and could, should he so choose, work affirmatively with his attorney in a rational way ... [and that] he is competent to proceed.” (Gov’t Ex. # 10 at 10).

20. After his evaluation at FMC Butner, Merriweather was returned to the Northern District of Alabama on April 20, 2011 and housed at the Shelby County Jail. (Tr. Vol. VII, 1015).

21. Upon his return to the Shelby County Jail, Merriweather initially refused to eat for nine days, but instead requested Ensure from medical staff. (Tr. Vol. VII, 1215). On the ninth day (April 29, 2011), Merriweather resumed eating with a renewed appetite; he would ask for extra trays and often consumed two or three trays per meal. (Id.). According to Officer Tim Laatsch, a corrections officer with the Shelby County Sheriffs Office, Merriweather ate regularly until he was moved from his segregation unit into an intermediate housing unit closer to the general prison inmate population. (Id. at 1215-16). After being relocated, Merriweather again refused to eat. (Id. at 1216). Officer Laatsch testified that Merriweather had apparently told another inmate that he (Merriweather) would not eat anything wet or shiny. (Id.). Because he refused to eat, Merriweather lost a significant amount of weight and was consequently re-located to the medical unit of the jail where he could be more closely monitored. (Id.). Although Merriweather refused the food prepared by the facility, Officer Laatsch was able to procure pre-packaged store items, which Merriweather did consume. (Id. at 1217).

22. After beginning his stay at the Shelby County Jail, Merriweather refused to bathe regularly, showering only every third or fourth day. (Tr. Vol. VII, 1219).

23. During three days in June 2011, Dr. Merikangas and Dr. Dudley, the expert witnesses retained by the Defense to evaluate Merriweather two years earlier, attempted to meet with Merriweather at the Shelby County Jail; Merriweather refused to engage with them. (Tr. Vol. VI, 946; Tr. Vol. VII, 1148).

24. On June 22, 2011, Dr. Merikangas visited Merriweather in the Shelby County Jail. (Tr. Vol. VII, 1146, 1149). When Dr. Merikangas attempted to interview Merriweather in a small attorney-client interview room, Merriweather ignored him. (Id. at 1148). Dr. Merikangas noticed that Merriweather’s weight had dropped dramatically. (Id.). Dr. Merikangas visited Merriweather again on June 23, 2011. (Id. at 1149). Again, Merriweather was unresponsive. Dr. Merikangas noted that, when he asked about Merriweather, the correctional officers who accompanied him into the room indicated that Merriweather’s behavior towards Dr. Merikangas was not different from his behavior towards the guards and they expressed sympathy for Merriweather. (Id. at 1151).

25. On June 24, 2011, Dr. Dudley visited Merriweather in his cell at the Shelby County Jail. (Def. Ex. # 9 at 2; Tr. Vol. VI, 945). The first thing Dr. Dudley noticed was the smell; he had been told by correctional officers that Merriweather had not been showering. (Tr. Vol. VI, 944-45). Dr. Dudley recounted that correctional officers had told him that Merriweather was not eating food prepared by the jail, but was eating sealed, packaged food. (Id. at 945). When Dr. Dudley attempted to communicate with Merriweather, the only responses he was able to elicit were “the hand signals and the verbal refusal to speak.” (Tr. Vol. VI, 946).

26. Finally, on June 27, 2011, in the presence of Mr. Jack Earley, a lawyer retained by the Defense as a criminal law expert, Merriweather engaged in an extensive conversation with his Defense counsel. (Tr. Vol. V, 823).

27. Also on June 27, 2011, Judge Ott entered an order authorizing personnel at the Shelby County Jail to take any reasonable steps necessary to ensure Merriweather’s health was not further compromised, including forcibly feeding and bathing him. (Doc. # 109).

28. Following the court order, Diana Shirley, Director of Nursing at the Shelby County Sheriffs Office, was scheduled to insert a feeding tube through Merriweather’s nose. (Tr. Vol. VII, 1233). Director Shirley testified that Merriweather was unhappy about this prospect, and volunteered that he “might try to eat” if she would not insert the feeding tube. (Tr. Vol. VII, 1234). Shirley responded that the offer to maybe “try to eat” was not a real offer; either Merriweather would eat or the tube would be inserted. (Tr. Vol. VII, 1234). Merriweather promptly agreed to eat. (Id.). Shirley further testified that Merriweather resumed eating normally after that confrontation and never again complained about food that was wet or shiny or that he was being poisoned. (Tr. Vol. VII, 1236). Shirley further noted that she never observed Merriweather having conversations in his head while at the Shelby County Jail. (Tr. Vol. Ill, 1245).

29. Kelly Hammonds, another nurse at the Shelby County Jail who interacted with Merriweather, testified that Merriweather showered daily following the court order authorizing prison staff to take necessary procedures to ensure that Merriweather bathed and ate. (Tr. Vol. VII, 1249). Hammonds further testified that Merriweather spoke clearly and articulately, had no difficulty communicating with prison staff (id. at 1244), and never mentioned anything about demons, little green men, or a chip in his arm. (Id. at 1245). Moreover, after the court order authorized prison staff to force feed him, Merriweather ate three meals a day and was fully cooperative in doing so. (Id. at 1246).

30. Since being housed at the Shelby County Jail, Merriweather has neither been observed responding to internal stimuli, nor has he given any indication of suffering from delusions or hallucinations. (Id. at 1218,1236,1245).

31. On July 25, 2011, this court convened a hearing, pursuant to 18 U.S.C. §§ 4241(a) and (c), to hear testimony and receive evidence on the issues surrounding Merriweather’s competency to stand trial. The court heard from several Government witnesses. Included in this group were four mental health experts (Drs. Pietz, Berger, Gualtieri, and Landis), two nurses (Diana Shirley and Kelly Hammonds), and two corrections officers (Tim Laatsch and Eugene Singleton). The Defense countered with seven witnesses, including three mental health experts (Drs. Merikangas, Mirsky, and Dudley), a legal “expert” (Jack Early), a jail psychiatrist (Dr. Robert Hunter), Merriweather’s sister (Kim Patton), and Merriweather’s former girlfriend (Latisha Simpson). Merriweather did not testify. In addition, the court received a total of 106 exhibits into evidence.

32.At the request of the court, both parties submitted briefs as well as proposed findings of facts and conclusions of law. The Government submitted its brief in support of a determination that Merriweather is competent to stand trial (Doc. # 152), along with proposed findings of fact and conclusions of law. (Doc. # 153). The Defense submitted its brief in support of a determination that Merriweather is incompetent to stand trial (Doc. # 156), along with proposed findings of fact and conclusions of law. (Doc. # 154). The Government, having borne the burden to prove Merriweather competent by a preponderance of the evidence, was permitted to proceed first at the hearing and also had the opportunity to reply to Merriweather’s submissions, which it did on October 4, 2011. (Doc. # 157). The party submissions have been carefully considered along with the testimony of the expert witnesses.

D. Expert Evaluations

Each party called a number of expert witnesses at the hearing, and their testimony is addressed below.

1.Dr. Christina Pietz

1. Merriweather’s first court-ordered evaluation occurred at the United States Medical Center for Federal Prisoners in Springfield, Missouri (“MCFP Springfield”) from November 2, 2007 to January-14, 2008. (Tr. Vol. I, 19; Gov’t Exs. # 2, 3). Merriweather’s evaluation was overseen by Dr. Christina Pietz, a psychologist with 21 years of experience at MCFP Springfield. (Tr. Vol. I, 13). Dr. Pietz conducted six formal interviews totaling 12-15 hours, and informal interviews in the course of routine rounds on Merriweather’s unit for 75 days. (Id. at 19-20, 32). Over the course of Merriweather’s evaluation, Dr. Pietz administered five psychological tests: (1) the Validity Indicator Profile; (2) the Shipley Institute of Living Scale; (3) the Minnesota Multiphasic Personality Inventory; (4) the Evaluation of Competency to Stand Trial-Revised (ECST-R); and (5) the Structured Interview of Reported Symptoms. (Doc. # 24 at 3). She also consulted daily with the mental health care and correctional staff members who kept Merriweather under constant observation and reviewed collateral information, such as Dr. Ackerson’s findings, investigative reports concerning the robbery, and Merriweather’s phone conversations after the arrest. (Tr. Vol. I, 24-26).

2. Dr. Pietz’s findings were compiled into two reports, one dealing with Merriweather’s competency to stand trial and another concerning Merriweather’s mental state at the time of the offense. (Doc. #24).

3. In Dr. Pietz’s report on Merriweather’s competency to stand trial, she diagnosed Merriweather with adult antisocial behavior and attributed Merriweather’s behavior to polysubstance dependence. (Doc. # 24 at 14). She concluded that “Merriweather does not currently suffer from a mental illness, and therefore, by definition does not meet the criteria for being found not competent.” (Doc. # 24 at 14). Pietz based this conclusion on Merriweather’s responses to the psychological tests, his responses during interviews, and a review of relevant literature. (Tr. Vol. I, 63).

4. Most notably, Dr. Pietz found that Merriweather’s scores on the ECST-R suggested no impairment in his ability to consult with his attorney or have a rational understanding of court proceedings. (Doc. # 24 at 14). Indeed, Dr. Pietz indicated that Merriweather performed “exceptionally well” on the ECST-R — even better than one of her students. (Tr. Vol. I, 59).

5. There was one exception to Merriweather’s otherwise strong performance on the ECST-R: his score suggested moderate impairment in his ability to have a factual understanding of court proceedings. (Doc. #24 at 14). Dr. Pietz found this result to be surprising given that Merriweather had clearly demonstrated that he had a factual understanding of court proceedings in other interviews. (Id.). When asked about the roles of various actors in legal proceedings, Merriweather was able to correctly identify the roles of the judge, the prosecutor, and the Defense counsel. (Id. at 15). He understood that a jury of 12-14 jurors would be selected from his community, though he did not know that a guilty verdict required a unanimous decision and stated that “[t]he role of the jury is to find the defendant guilty.” (Id.). When asked about possible pleas, Merriweather had no difficulty articulating his understanding of various pleas available to him. He explained, for example, that “[t]he insanity plea is ... instructs that at that moment at the time of what happened, [Merriweather] wasn’t [him]self because of illegal drugs that [Merriweather] had taken ... from the pills, marijuana and cocaine.” (Doc. #24 at 15). Merriweather demonstrated that he understood what it means to plead guilty or not guilty and the consequences of entering a plea bargain, commenting that “a defendant should discuss the options of a plea bargain with his attorney.” (Id.). Merriweather further acknowledged that, if found guilty, he may receive “possible life in prison or the death penalty.” (Id.).

6.Conflicts among various statements given by Merriweather are not limited to discrepancies between his performance on the ECST-R and his answers in interviews. Dr. Pietz’s interviews with Merriweather are littered with references to inconsistent statements he made that, when taken together, reveal a pattern of evasive behavior undertaken by Merriweather to conceal the extent of his knowledge and culpability. For example, when asked about the charges against him, Merriweather initially claimed that he had no knowledge that he was charged with murder. (Doc. # 24 at 14). In a subsequent interview, Merriweather acknowledged the murder charge and indicated that his attorney and investigating officers informed him of the charges against him soon after his arrest. (Doc. #24 at 14). When questioned about the events leading up to the arrest, Merriweather initially asserted that he could recall only a few details of the alleged offenses. (Doc. #24 at 14). During subsequent interviews, however, Merriweather provided clear, detailed, and coherent recollections of the robbery, including a written description of his memory of the events. (Doc. # 24 at 15).

7. The details of the robbery provided by Merriweather, however, varied with each interview. One jarring inconsistency in Merriweather’s recollection of the robbery was his indication in earlier interviews of the presence of an accomplice named “Charlie.” (Doc. # 24 at 15). During five of the first six interviews, Merriweather provided a different rendition of the robbery with Charlie featured in a new role with each telling. (Tr. Vol. I, 32-33). In one version, for example, Charlie took Merriweather to the bank to “cash a check.” (Id. at 33). In another version, Charlie was actually the person who got shot escaping the crime scene. (Id.). In yet another version, Charlie simply told Merriweather to follow him into the bank, placing Merriweather at the wrong place at the wrong time. (Id.). From all of these accounts, Dr. Pietz was left with the impression that Merriweather was trying to minimize responsibility by “trying to blame others.” (Id. at 35). Dr. Pietz noted that when she directed Merriweather’s attention to a discrepancy between his stories and the investigative record, Merriweather would “try[] to come up with a different response that made more sense.” (Id.).

8. Merriweather requested the sixth interview he had with Dr. Pietz, and during that interview gave an account of the robbery in which “Charlie” was absent and Merriweather took responsibility for the robbery. (Tr. Vol. I, 34). In that interview, Merriweather stated that he had received a “message” that described the inside of the bank and the identity of the manager. (Id.).

9. While Merriweather gave different descriptions of his involvement in the bank robbery, Dr. Pietz found that there was never any doubt that Merriweather understood what he was charged with and why he was incarcerated. (Tr. Vol. I, 32-35). Dr. Pietz attributed these inconsistencies to evasive behavior rather than mental illness. (Id. at 34-35).

10. Further supporting her position that Merriweather was more likely manipulative than mentally infirm, Dr. Pietz found Merriweather’s speech and behavior to be inconsistent with symptoms typically associated with mental illness. Dr. Pietz testified that persons suffering from mental illness, Dr. Pietz testified, are disorganized in their thoughts and speech, struggle to provide information, and typically provide inaccurate information tainted by delusional thought. (Tr. Vol. I, 30). Concealing disorganized speech (and, therefore, concealing a mental illness) is not easy and will likely reveal itself over time during conversations or meetings involving persons genuinely suffering from a psychotic illness. (Id. at 54). Throughout Merriweather’s 75-day evaluation at MCFP Springfield, his speech was never observed to be disorganized, but was instead described as rational, coherent, and organized. (Id. at 27-30, 41, 44, 46-47, 54-55). If anything, Dr. Pietz characterized Merriweather’s responses to questions relating to the robbery as “cautious.” (Tr. Vol. II, 272, 275). Merriweather’s behavior was similarly inconsistent with symptoms typical of mental illness. There were no signs of memory deficit. (Tr. Vol. I, 57). Merriweather maintained a clean cell and bathed regularly during his stay at MCFP Springfield. (Id. at 45). Merriweather was never mute, though he did take time to think through his responses. (Id. at 46, 57).

11. Dr. Pietz also found no negative signs of schizophrenia. With regard to positive signs of schizophrenia, there were two incidents that, if genuine, could be construed as evincing positive signs of schizophrenia. Dr. Pietz, however, found both instances to be suspect. (Tr. Vol. I, 51, 90).

12.In the first incident, Merriweather reported seeing gremlins in his cell to Dr. Leanne Preston, the on-call psychologist. (Tr. Vol. I, 39, 90). Merriweather told Dr. Preston that he thought he might be suicidal. (Id. at 40). Dr. Preston placed Merriweather under suicide watch, but wrote in her report that Merriweather’s claim that he saw gremlins was suspect. (Id.). Dr. Pietz found Merriweather’s claims to be questionable for at least five reasons. First, as Dr. Pietz noted, it is very rare for truly psychotic people to experience visual hallucinations. (Id.). Visual hallucinations are actually more consistent with illicit substance abuse than psychosis. (Id.). Second, even in the rare cases when someone actually experiences visual hallucinations, the hallucinations are usually frightening and not casually mentioned. (Id. at 42). Third, people who complain about being suicidal are typically not truly suicidal since drawing attention to themselves increases the chances that a suicide attempt would be thwarted. (Id. at 41). Fourth, when placed under suicide watch, Merriweather was more upset about losing his privacy because of the constant surveillance imposed by the watch than he was due to any perceived gremlins or alleged suicidal tendencies. Indeed, Merriweather actually requested to be taken off suicide watch as soon as possible. (Id.). Finally, Dr. Pietz testified that generally hallucinations do not completely go away, even for psychotic individuals who are medicated. (Id. at 42). Merriweather did not mention gremlins when he requested to be taken off the suicide watch or anytime afterwards. (Id. at 41). Dr. Pietz therefore found Merriweather’s alleged hallucination suspect. (Id. at 40).

13. The second incident involved Merriweather scraping his arms with a spork. (Tr. Vol. I, 42). He told a nurse that there were bugs in the room, which may have been a visual hallucination. (Id.). Merriweather, however, did not seem overly concerned about it. (Id.). Dr. Pietz discounted this incident because visual hallucinations are typically sufficiently frightening to the patient to warrant more than a single, casual mention. (Id.). In this case, Merriweather mentioned the bugs casually, but did not appear disturbed by them nor did he mention seeing bugs in his room again. (Id.).

14. Based on her observations of Merriweather during his 75-day evaluation at MCFP Springfield, his responses to psychological tests, and a review of collateral sources, Dr. Pietz concluded that Merriweather was not mentally ill, but instead experienced abnormal stimuli as a result of polysubstance abuse, and exhibited an anti-social disorder. (Tr. Vol. I, 52-53). Because Merriweather does not suffer from a mental illness, Dr. Pietz opined that he is competent to stand trial.

2. Dr. Richard G. Dudley, Jr.

1. Over one year after Dr. Pietz completed her 75-day evaluation of Merriweather, the Defense hired Dr. Richard G. Dudley Jr., a psychiatrist, to evaluate Merriweather for mental illness. Dr. Dudley met with Merriweather on three separate occasions. The first interview, conducted over two days, began on January 26, 2009. (Def. Ex. # 9 at 2). Dr. Dudley also met with Merriweather on August 17, 2009 (Def. Ex. # 66 at 1), and again on June 24, 2011, after Merriweather returned from his second extended evaluation at FMC Butner. (Def. Ex. # 9 at 2). During that final meeting, however, Merriweather refused to communicate with Dr. Dudley. (Tr. Vol. VI, 946, 962, 1006-07). Altogether, Dr. Dudley estimates that he spent a total of 16 hours with Merriweather over the course of three sessions. (Id. at 921).

2. Dr. Dudley is qualified by training and experience as a forensic psychiatrist. (Tr. Vol. VI, 912-17). He has extensive experience in diagnosing and treating people who are both schizophrenic and substance abusers based upon the time he spent running a community mental health clinic in Harlem, New York City. (Id. at 940).

3. In addition to interviewing Merriweather, Dr. Dudley reviewed previous evaluations and other collateral sources of information regarding Merriweather’s background and history, which he considered vital to his evaluation. (Tr. Vol. VI, 920-21). After reviewing the available record and evaluations, Dr. Dudley found four possible diagnoses explaining Merriweather’s condition:

a) Merriweather suffers from a psychotic disorder, primarily schizophrenia;

b) Merriweather suffers from substance-induced psychotic disorders;

c) Merriweather suffers from a combination of drugs and schizophrenia; or

d) Merriweather is simply malingering.

(Id. at 922-23).

4. Of these possible diagnoses, Dr. Dudley gave his opinion that the most appropriate and accurate diagnosis was that Merriweather is a person who suffers from schizophrenia and who also uses drugs. (Tr. Vol. VI, 926-27).

5. Drawing from the DSM, Dr. Dudley defined schizophrenia as “characterized by an episode of illness that lasts for approximately six months.” (Tr. Vol. VI, 927). That episode of illness, Dr. Dudley testified, has three phases: (1) a prodromal period where the person’s ability to function begins to deteriorate; (2) the active phase of the illness (which must span at least one month of that six month period) where the individual is exhibiting the full spectrum of schizophrenia symptoms, both positive and negative; and (3) a period afterwards that is similar to the prodromal period during which the person is pulling himself back together. (Id.). The course the illness may run is variable; that is, individuals will alternate between periods of illness and stability. (Id.). Dr. Dudley further attested that “[t]here are people who have some residual symptoms in between episodes of illness and then many people, if untreated, gradually deteriorate over time, and the residual symptoms that are there between episodes become more and more severe and so that it begins to look like a pattern of continuous illness with the onset of this whole disorder.” (Id. at 928).

6. Dr. Dudley testified that the symptoms his family recounted were exhibited by Merriweather, and the change in Merriweather’s condition between Dudley’s initial interview in 2009 and what he saw in 2011, were consistent with “classic” schizophrenia. (Tr. Vol. VI, 928-29, 957).

7. Dr. Dudley testified that when he saw Merriweather in 2009, Merriweather was verbal, but disorganized and distracted. Merriweather appeared to be responding to internal stimuli, and his responses were bizarre. According to Dr. Dudley, Merriweather evinced no understanding of the nature of the case, the charges against him, and the possible outcomes of his case. Merriweather talked about his imminent release and expressed the view that he had been held longer than he expected. Dr. Dudley found Merriweather’s affect to be flat, and testified that Merriweather would interrupt him with inappropriate laughter. In a subsequent meeting in 2009, Merriweather expressed to Dr. Dudley that he felt he was at risk of being harmed, perhaps poisoned. (Tr. Vol. VI, 943^4).

8. An important factor in Dr. Dudley’s diagnosis was Merriweather’s substantial weight loss. (Tr. Vol. VI, 923-30, 996). He did, however, concede that Merriweather’s later decision to continue eating, arising from his aversion to the needles and tubes that would have been used to inject nutrition into him, reflected a choice by Merriweather to realize a clear preference. (Id. at 1022).

9. Also important to Dr. Dudley’s evaluation was Merriweather’s refusal to communicate with him during Dr. Dudley’s visits to the Shelby County Jail in June 2011. (Tr. Vol. VI, 946). Dr. Dudley interpreted Merriweather’s refusal to communicate with him as indicative of the inability to communicate. (Id. at 951).

10. Dr. Dudley dismissed the role of illicit drugs in the context of Merriweather’s diagnosis because (1) Merriweather’s symptoms seemed to be present when he was not using drugs, and (2) there was a lack of information to identify a drug, or indicate that drugs were used in the quantity or for the duration necessary to cause the symptoms. (Tr. Vol. VI, 925). However, Dr. Dudley did note that, in addition to marijuana use, there is evidence that Merriweather used other illegal drugs. (Id. at 958, 978).

11. Dr. Dudley considered, but ruled out malingering, in part because mimicking the negative symptoms of schizophrenia, even if one were to assume that the patient knows what they are, would be difficult. (Tr. Vol. VI, 937-39). Dudley admitted, however, that he was unfamiliar with the Test of Memory Malingering (“TOMM”) and was not an expert in malingering. (Id. at 956,1003).

12. Dr. Dudley recommended to counsel that a neurological expert be retained to determine, among other things, whether scans and MRIs of Merriweather’s brain were normal. (Tr. Vol. VI, 953).

3. Dr. James Merikangas

1. On April 30, 2009, while Merriweather was still incarcerated in the Jefferson County Jail, Dr. James Merikangas, a board-certified forensic neuropsychiatrist retained by the Defense, interviewed Merriweather for one and a half to two hours. (Tr. Vol. VII, 1128). In connection with this meeting, Dr. Merikangas reviewed extensive collateral material and requested an MRI and a PET scan of Merriweather’s brain to detect any physical abnormalities. (Id. at 1129). During the initial meeting, Dr. Merikangas formed an impression that Merriweather was psychotic, suffered from hallucinations, ideas of reference, ideas of influence, and that his grasp on reality was impaired. Merriweather reported to Dr. Merikangas that televisions were speaking directly to him, he thought that he could control people with his thoughts, and asked if they were in a movie. Dr. Merikangas observed positive symptoms of schizophrenia, namely, paranoia, hallucinations, and delusions. (Id. at 1129-31).

2. Two years later, in June 2011, Dr. Merikangas visited Merriweather for a second time. This occurred after Merriweather had returned from custodial evaluations at FMC Butner. Dr. Merikangas reported that he attempted to interview Merriweather in a small attorney-client room, this time at the Shelby County Jail, but Merriweather remained mute during the meeting. (Tr. Vol. VII, 1146). Dr. Merikangas returned the next day to assess whether Merriweather was competent to stand trial using the ECST. (Id. at 1149).

3. Dr. Merikangas also reviewed records from Merriweather’s stay at FMC Butner, jail records from the Shelby County Jail, and reports and interviews conducted by other medical experts. (Tr. Vol. VII, 1147).

4. Based on his interviews and a review of these records, Dr. Merikangas concluded that Merriweather suffers from psychosis due to schizophrenia and recommended that Merriweather be given anti-psychotic and mood stabilizing medication. (Tr. Vol. VII, 1142-43).

5. Dr. Merikangas also found that Merriweather is unable to cooperate with counsel. (Tr. Vol. VII, 1144). Dr. Merikangas concluded that Merriweather’s lack of cooperation with counsel is due to an inability to communicate (rather than a deliberate refusal to communicate), and was not the result of malingering. Dr. Merikangas reached the conclusion that Merriweather is not mahngering based on two observations: (1) it is difficult to maintain a lie for an extended period of time and Merriweather’s behavior was consistent during his 16-month stay at FMC Butner, and (2) Merriweather has no incentive to lie. (Id. at 1151, 1163). With regard to the first observation, Dr. Merikangas stated that “the real determinative thing is to have observations of the patient over a period of time as there are very few people who can totally fake their illnesses in ways that are consistent with their disease under 24-hour observation for weeks and months at a time.” (Id. at 1126). Dr. Merikangas did not observe Merriweather during his 16-month stay in Butner, so his opinions regarding Merriweather’s behavior over that time period are given less weight than the findings of those who actually observed Merriweather over that extended period of time. When asked whether he thought Merriweather has an incentive to malinger, Dr. Merikangas initially testified that Merriweather has no incentive to misrepresent his current mental capacity because the result of this competency determination will merely decide whether Merriweather spends the rest of his life in prison or the rest of his life in a hospital setting. (Tr. Vol. Ill, 1163). Of course, Dr. Merikangas’s response makes clear that he failed to take into account that the death penalty is being sought in this case. The court rejects Dr. Merikangas’s opinion that Merriweather has no incentive to malinger in this case. (Id. at 1163-64).

6.Dr. Merikangas opined that Merriweather is not competent to stand trial because of his psychosis due to schizophrenia and his inability to cooperate with counsel. (Tr. Vol. Ill, 1144).

7. In reaching his conclusion that Merriweather is afflicted with psychosis due to schizophrenia, Merikangas relied upon MRI and PET scan images. While testifying about his interpretation of the MRI and PET scan images, Dr. Merikangas directed attention to thinning in the posterior corpus callosum and atrophy in the right parietal lobe. (Tr. Vol. VII, 1135-36, 1138). However, Dr. Merikangas acknowledged that the thinning of cerebral tissue like that observed in the images could be symptomatic of a large number of medical conditions, including but not limited to lupus, autoimmune diseases, post-encephalitis, some types of demyelinating disease, traumatic brain injuries, a viral infection that affects the brain (such as measles or HIV), and metabolic disturbances like thyroid diseases or disorders of calcium metabolism. (Tr. Vol. VII, 1141).

8. Furthermore, Dr. Merikangas cautioned that he did not conduct the scans himself, and that the images he presented to the court are “for illustrative purposes.” He noted that he “wouldn’t presume to look at [the scans] and say [he] c[ould] make a diagnosis from these tiny images.” (Tr. Vol. VII, 1139-40). Dr. Merikangas then proceeded to diagnose “psychosis because of schizophrenia” based on the MRI and PET scan images. (Tr. Vol. VII, 114-42). Dr. Merikangas noted that the type of atrophy observed in the images is frequently seen in patients with schizophrenia. (Id. at 1134-39). He further testified that the brain abnormalities observed cannot be the result of teenage or adult substance abuse because studies have shown that the brain abnormalities caused by illicit substances are of an entirely different nature. (Id. at 1142).

9. Dr. Merikangas conceded that a schizophrenic can still be found competent to stand trial, citing in particular the case of Ted Kaczynski. (Tr. Vol. VII, 1156).

10. Since 1998, Dr. Merikangas has testified in 97 murder proceedings, twice for the prosecution or the court and 95 times for the Defense. (Tr. Vol. VII, 1165). He acknowledges that he is a staunch opponent of the death penalty, and believes it should be abolished. (Tr. Vol. VII, 1165-66). As the Government correctly notes, his lectures and scholarship suggest he has an agenda. (See Doc. # 152 at 40; citing Tr. Vol. VII, 1167-69). Suffice it to say that of all the mental health experts who testified, Dr. Merikangas was the least objective.

11. After meeting with Merriweather and reviewing the brain scans, Dr. Merikangas recommended that Merriweather be prescribed a anti-psychotic and mood-stabilizing drugs. (Tr. Vol. VII, 1142). Based on one and a half to two hours spent with Merriweather, Dr. Merikangas concluded that Merriweather suffers from a mental disease, most likely schizophrenia, should be medicated, and is not competent to stand trial. (Id. at 1143-44).

4.Dr. C. Thomas Gualtieri

1. In accordance with Judge Ott’s order requiring Merriweather’s competency evaluation at FMC Butner to include input by a neurologist and/or a neuropsychiatrist (Doc. # 79 at 14), Dr. C. Thomas Gualtieri, a board certified psychiatrist with 42 years of medical experience, was asked by FMC Butner’s chief psychiatrist, Dr. Jean Zula, to conduct an independent neuropsychiatric evaluation of Merriweather while he was at FMC Butner. (Tr. Vol. Ill, 381, 385; Gov’t Ex. 5 & 6).

2. Dr. Gualtieri’s evaluation consisted of an approximately two and a half to three hour interview and testing conducted on May 19, 2010. (Tr. Vol. Ill, 389-99). During Dr. Gualtieri’s evaluation, Merriweather was calm, polite, attentive, sufficiently groomed, spoke in a level voice, and was able to appropriately sit in his chair and establish good eye contact. (Tr. Vol. Ill, 401-02, 463, 498, 502; Gov’t Ex. 6, 7, and 8).

3. When engaged in small talk with Dr. Gualtieri, Merriweather behaved appropriately and gave straightforward answers. (Tr. Vol. Ill, 401). When questioned about the robbery or other serious matters, however, Merriweather became evasive, playful, and nonsensical. (Tr. Vol. Ill, 402; Gov’t Ex. 6, 7, and 8). Similar to his behavior during the videotaped interviews with Dr. Berger, Merriweather’s responses to Dr. Gualtieri’s questions were often circuitous, circumstantial, and flowed like a stream of consciousness. (Tr. Vol. Ill, 402, 452-54; Gov’t Ex. 6, 7 and 8). Dr. Gualtieri detected, however, that Merriweather was “focused very clearly during the entire evaluation on what was in his interests.” (Tr. Vol. Ill, 403).

4. Dr. Gualtieri testified that Merriweather’s test results suggest that Merriweather was malingering. (Tr. Vol. Ill, 417). Dr. Gualtieri found that Merriweather had performed well on hard tests, but poorly on easy tests, a pattern that he associated with malingering. (Tr. Vol. Ill, 417). Merriweather performed worse in subsequent administrations of the Verbal Fluency Test, which suggested malingering to Dr. Gualtieri. (Tr. Vol. Ill, 421). When interpreting tests for malingering, Dr. Gualtieri emphasized that not finding malingering on a malingering test does not necessarily mean that the person is not malingering. (Tr. Vol. Ill, 423).

5. Based on his interview, test results, and a review of relevant literature, Dr. Gualtieri testified that he thought that Merriweather is competent to stand trial. (Tr. Vol. Ill, 438-39).

6. During cross-examination, the Defense drew the court’s attention to Wyatt v. Rogers, 985 F.Supp. 1356, 1387 n. 109 (M.D.Ala.1997), a case in which a court discredited Dr. Gualtieri’s expert testimony. In that case, the Wyatt court discredited Dr. Gualtieri’s testimony “because of an attempt to mislead [the court], through charts purporting to give a national average, that was in fact not such an average” and a “failure to correct known error that went to the substance of some very important conclusions.” Id. This court has conducted a thorough review of the transcripts in Wyatt, and finds that the reasons given for discrediting Dr. Gualtieri’s testimony in Wyatt are far