; Drope v. Missouri, 420 U.S. 162, 171 (1975) (“[A] person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial”); Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam) (the test for competency “must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him”); Miles v. Stainer, 108 F.3d, 1109, 1112 (9th Cir. 1997) (“Competence is defined as the ability to understand the proceedings and to assist counsel in preparing a defense.”); see 18 U.S.C. § 4241(a). “In performing its fact-finding and credibility functions, a district court is free to assign greater weight to the findings of experts produced by the Government than to the opposing opinions of the medical witnesses produced by the defendant.”

A defendant must satisfy both prongs in order to be mentally competent to stand trial. The Dusky standard was codified at 18 U.S.C. § 4241(a), which provides that an individual is mentally incompetent to stand trial if he suffers from a mental disease or defect which makes him (1) unable to Case 3:10-cr-00510-JO Document 95 Filed 01/22/13 Page 2 of 4 Page ID#: 144 DEFENDANT’S MEMORANDUM OF LAW RE MOTION TO DETERMINE COMPETENCY Page 3 understand the nature and consequences of the legal proceedings against him; or (2) unable to assist properly in his defense. The government has the burden of demonstrating by a preponderance of the evidence that the defendant is competent to stand trial.

The sum of $2,500.00 is initially sought to retain his services. WHEREFORE, counsel respectfully moves that this Court grant the following relief: A. Grant this Motion and order that a competency evaluation pursuant to 18 U.S.C. §4241 of Edward Brown be conducted; and, B. Order that the aforementioned competency evaluation occur in the District of New Hampshire; and, C. Allow funds for services other than counsel in the amount of $2,500.00 for the purposes of retaining a forensic psychiatrist; and, D. Once a competency evaluation has been conducted, schedule a hearing to determine whether the Defendant is competent to stand trial; and, E .

Once competency is raised, the government bears the burden to establish that the defendant is competent “by a preponderance of the evidence.” 18 U.S.C. § 4241(d). When the trial court fails to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent, the defendant is deprived of his due process right to a fair trial.

For the Court’s consideration, the People cite the following additional authorities not contained in the briefs on file. Argument I: United States v. Garza (9th Cir. 2014) 751 F.3d 1130, 1134–1137; People v. Ghobrial (2018) 5 Cal.5th 250, 269; People v. Mendoza (2016) 62 Cal.4th 856, 871; People v. Lightsey (2012) 54 Cal.4th 668, 691; Hale v. Superior Court (1975) 15 Cal.3d 221, 223, fn. 1; 18 U.S.C. § 4241. Argument IX: People v. Woodruff (2018) 5 Cal.5th 697, ___, 421 P.3d 588, 623– 626; People v. Covarrubias (2016) 1 Cal.5th 838, 860–866; People v. Zaragoza (2016) 1 Cal.5th 21, 35–41; People v. Jones (2013) 57 Cal.4th 899, 913–916; People v. Riccardi (2012) 54 Cal.4th 758, 778–783; People v. McKinnon (2011) 52 Cal.4th 610, 635–653; August 27, 2018 Page 2 Russell v. State (1995) 670 So.2d 816, 820–825.

D.E.1357, at 4; D.E.1357-1, at p.7. In addition, on June 6, 2014, in an order memorializing the Court’s decision to order a competency examination under 18 U.S.C. §4241, the Court referred to the report Dr. Gilligan had submitted in the §2255 litigation, ordering the government to provide to the Bureau of Prisons for use by the competency examiner, inter alia, “Relevant evidence submitted in connection with the §2255 Motion, including but not necessarily limited to: * * * the Report of Dr. James F. Gilligan (§2255 Motion Ex. A) * * *.

Before an examination can be ordered, there must be “reasonable cause to believe that the defendant may be presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his own defense.” 18 U.S.C. § 4241(a).1 In order to establish the 1No grounds lie for an examination pursuant to 18 U.S.C. § 4242, as no Fed. R. Crim. P. 12.2 notice has been filed.

______________________________) DEFENDANT’S OPPOSITION TO GOVERNMENT’S MOTION FOR MENTAL EXAMINATION AND OTHER RELIEF The government has moved for the following relief: a. A compelled psychiatric examination, purportedly pursuant to F.R.Crim.P.12.2(a) and 18 U.S.C. §4241 and 4242, “for purposes of: (1) determining whether the defendant is suffering from a mental disease or defect rendering her mentally incompetent to the extent that she is unable to understand the nature and consequences of the proceedings against her or to assist properly in her defense: and (2) determining whether the defendant suffered from a mental disease or defect or mental condition bearing on the issue of her guilt for the crimes with which she is charged and/or bearing on her ability to understand the wrongfulness of her behavior or to control behavior she knew was wrongful.” b.

2 The United States, by and through Michael J. Sullivan, and B. Stephanie Siegmann, Assistant United States Attorney for the District of Massachusetts, hereby moves pursuant to Fed. R. Crim. P. 12.2(c) and 18 U.S.C. §§ 4241 and 4242, that an independent psychiatric examination of the defendant be conducted by Russell Vasile, M.D., a licensed psychiatrist and Director of the Affective Disorders Program at Beth Israel Deaconess Medical Center, for purposes of: (1) determining whether the defendant is suffering from a mental disease or defect rendering her mentally incompetent to the extent that she is unable to understand the nature and consequences of the proceedings against her or to assist properly in her defense; and (2) determining whether the defendant suffered from a mental disease or defect or mental condition bearing on the issue of her guilt for the crimes with which she is charged and/or bearing on her ability to understand the wrongfulness of her behavior or to control behavior she knew Case 1:03-cr-10381-NG Document 49 Filed 04/27/2005 Page 1 of 5 2 was wrongful. The power of the court to issue such an order falls within its inherent authority.